SETA KOVAKIAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6806 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A) is reported at 912 F.2d 1469 (Table). JURISDICTION The judgment of the court of appeals was entered on August 10, 1990. The petition for a writ of certiorari was filed on January 14, 1991, and is therefore substantially out of time under Rule 20.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's post-arrest statements should have been suppressed because her waiver of her Miranda rights was not knowing and voluntary, or because the agents failed to cease questioning her after she invoked her right to counsel. STATEMENT Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted of possessing one kilogram of heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). She was sentenced to 136 months' imprisonment. The court of appeals affirmed by judgment order. Pet. App. A. 1. The evidence showed that, on December 22, 1988, petitioner arrived in Atlanta on a flight from Switzerland. She was referred at the airport to Sylvia Mansour, an interpreter who assisted non-English speaking travellers. Mansour had previously been told that her assistance might be required by the DEA, but she was not told the name of the person in whom the DEA was interested. Petitioner and Mansour conversed in Arabic. When petitioner was questioned by immigration officers, Mansour translated for her. Gov't C.A. Br. 2-3. Petitioner was referred by immigration officers to the secondary inspection area, where, accompanied by Mansour, she was interviewed further. Although petitioner had listed on her immigration form an uncle in Atlanta, she could not give his address or state how he could be contacted. She said she was going to visit a relative in Los Angeles, but could not give the address of that relative either. Although she had a return ticket to Beirut, she had no ticket to Los Angeles and did not appear to have enough money to maintain herself. The officers allowed petitioner to pass Immigration on a controlled admission at the request of Customs Agent McGarragher, who was working with DEA in its investigation of petitioner. Gov't C.A. Br. 3-4. After clearing Customs with Mansour's assistance, petitioner, again with Mansour's help, bought a one-way airplane ticket to Los Angeles. In buying the ticket, petitioner's statements were exactly responsive to the questions asked her. Petitioner and Mansour continued to converse in Arabic, as they had throughout petitioner's processing through Immigration and Customs. Gov't C.A. Br. 4. Customs agents then recalled petitioner to the secondary Customs inspection site, where a search of her luggage uncovered 1,759 grams of heroin. Accompanied by Mansour, petitioner was thereafter directed to a private room. Petitioner followed the agents' directions, as translated by Mansour, doing everything asked of her. When a Customs agent gave petitioner instructions through Mansour on where and how to stand for a pat-down, she complied with those instructions. Gov't C.A. Br. 4-5, 7. After the pat-down, Agent McGarragher, with Mansour translating, identified himself, told petitioner that she was under arrest, and twice gave her Miranda warnings. Petitioner asked whether she would be allowed to leave if she got a lawyer and if she answered questions. The agents told her that she could not leave. Gov't C.A. Br. 5. Petitioner stated that she understood her rights and that she was willing to talk to the agents. She then stated that she had received the suitcase containing the heroin from a neighbor who offered it to her so that she would not have to buy a new one. She stated that she was going to visit an uncle in California and that she intended to leave the suitcase behind. Id. at 6. DEA agents then took over the interview. Through Mansour, they again advised petitioner of her Miranda rights, asking her, after each individual right, if she understood it. She indicated through Mansour that she understood each right and that she was willing to answer questions without a lawyer. She stated that the suitcase had been loaned to her, that she did not know it contained heroin, and that she intended to visit relatives in California. When the agents asked her if she planned to take her suitcases back to Lebanon, she stated that she intended to leave the suitcase containing the heroin behind because it was too cumbersome. She had no answer when asked why she would leave behind a suitcase that was loaned to her. She told the agents that she would call a relative in Cairo for money for her return ticket, and that her travel route -- Beirut to Zurich to Atlanta to Los Angeles -- had been recommended to her as the least expensive by the neighbor who had loaned her the suitcase. In fact, a roundtrip, direct flight from Beirut to Los Angeles would have cost $544 less. Gov't C.A. Br. 6-7. 2. Prior to trial, petitioner moved to suppress her statements to the Customs and DEA agents on the ground that her waiver of her Miranda rights was not knowing and voluntary because she was unable to understand her interpreter. After an evidentiary hearing, the district court denied the motion. In the court of appeals, petitioner raised this claim, and, for the first time, also contended that she had invoked the right to counsel. The court of appeals affirmed without opinion. Pet. App. A; Gov't C.A. Br. 2, 10. ARGUMENT Petitioner contends that her post-arrest statements were admitted in violation of her Miranda rights. First, she claims that her waiver of her Miranda rights was not knowing and voluntary because she did not understand the Miranda warnings. In addition, she claims that the agents continued to question her after she invoked her right to counsel, in violation of the rule of Edwards v. Arizona, 451 U.S. 477 (1981). The courts below properly rejected these claims. 1. Petitioner's assertion (Pet. 12-17) that she did not understand her Miranda warnings rests on her testimony that her primary language is Armenian and that Mansour translated the warnings into Arabic. However, petitioner does not deny that she speaks Arabic and the record demonstrates that Mansour communicated with petitioner sufficiently well to support the district court's finding that petitioner understood her rights. Petitioner's trek through the airport prior to her arrest, during which she successfully dealt through Mansour with airline ticketing agents, Immigration officers, and Customs officers, established that she understood Arabic. Further, the evidence showed that petitioner responded appropriately to directions; that her answers were responsive to questions asked; that she twice stated that she understood her rights; and that she never expressed difficulty in understanding Mansour. Indeed, Mansour characterized her ability to communicate with petitioner as excellent. Gov't C.A. Br. 5. In short, the district court's fact-specific determination that petitioner understood her rights was supported by the record and does not warrant this Court's review. /1/ 2. Nor can petitioner prevail on her claim that she was improperly questioned by the agents after she requested counsel. As an initial matter, petitioner did not raise this claim in the district court; the sole argument she made in support of her pretrial suppression motion was that her Miranda waiver was invalid. See Gov't C.A. Br. 10, 12; Pet. 11, 21. Accordingly, petitioner failed to preserve this claim. See Fed. R. Crim. P. 12(f). In any event, petitioner did not validly invoke her right to counsel. This Court has stated that the right to counsel must be "specifically invoked." Edwards v. Arizona, 451 U.S. at 482. This may be accomplished by indicating "in any manner and at any stage of the process" that counsel is desired. Miranda v. Arizona, 384 U.S. 436, 444-445 (1966). The Court has recognized that sometimes "an accused's asserted request for counsel may be ambiguous or equivocal." Smith v. Illinois, 469 U.S. 91, 95 (1984). The Court has not defined ambiguity in this context or ruled on its consequences. See id. at 99-100. In general, however, the courts of appeals have held that when a suspect makes an ambiguous statement that can arguably be construed as a request for counsel, interrogation must cease except for narrow questions designed to clarify the earlier statement. See, e.g., United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988); Lightbourne v. Dugger, 829 F.2d 1012, 1018 (11th Cir. 1987), cert. denied, 488 U.S. 934 (1988); United States v. Fouche, 776 F.2d 1398, 1404-1405 (9th Cir. 1985), after remand, 833 F.2d 1284 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988); United States v. Porter, 776 F.2d 370 (1st Cir. 1985), after remand, 807 F.2d 21 (1st Cir. 1986), cert. denied, 481 U.S. 1048 (1987); United States v. Cherry, 733 F.2d 1124, 1130-1131 (5th Cir. 1984); Nash v. Estelle, 597 F.2d 513, 517 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 (1979); United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir. 1976). /2/ Here, the alleged invocation of the right to counsel consisted of petitioner's question to the agents, after she received her Miranda warnings, asking whether she would be allowed to leave if she had an attorney. That did not even qualify as an equivocal request for counsel. If anything, it suggested that, unless getting a lawyer meant that petitioner could leave, she did not want a lawyer. As the agents correctly explained to petitioner, she could not leave even if she had a lawyer because she was under arrest. That being the case, there was no basis for treating petitioner's question as a request for counsel. /3/ Accordingly, the agents were not required to cease questioning petitioner or to limit their questions to ascertaining whether she wanted a lawyer. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOEL M. GERSHOWITZ Attorney APRIL 1991 /1/ Petitioner's suggestion (Pet. 16) that her Miranda waiver was invalid because she had no familiarity with the "legal concepts" of the United States does not help her. Familiarity with the legal concepts of the United States has never been held to be necessary for an understanding of the Miranda warnings, which are self-explanatory. See Perri v. Director, Dept. of Corrections, 817 F.2d 448, 452 (7th Cir.) (finding that defendant understood his rights sufficiently for valid waiver, because defendant "did not need a full appreciation of all the consequences of a waiver for it to be knowing and intelligent"), cert. denied, 484 U.S. 843 (1987). /2/ One court of appeals has suggested that even an equivocal reference to counsel requires cessation of all questioning. Maglio v. Jago, 580 F.2d 202, 205 (6th Cir. 1978). See also Smith v. Illinois, 469 U.S. at 96 n.3 (reviewing state approaches). /3/ Any differences in approach to this issue, see note 2, supra, therefore are not implicated by petitioner's claim. /4/ Petitioner's reliance (Pet. 19-20) on Smith v. Illinois, supra, is unavailing. There the defendant was read his Miranda rights and asked if he understood his right to have an attorney. He answered, "Uh, yeah. I'd like to do that." 469 U.S. at 93. Unlike petitioner's question here, that statement, as this Court held, id. at 97, was an unequivocal request for counsel.