BILLY HALL, PETITIONER V. UNITED STATES OF AMERICA No. 90-5706 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 Sixth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. 1-16) is reported at 905 F.2d 959. JURISDICTION The judgment of the court of appeals was entered on June 18, 1990. A petition for rehearing was denied on July 11, 1990. The petition for a writ of certiorari was filed on September 11, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a prisoner who has requested appointed counsel at his arraignment on an escape charge may properly be interrogated in the absence of counsel about an unrelated charge. STATEMENT Following a jury trial in the United States District Court for the Western District of Kentucky, petitioner was convicted of mailing a letter threatening the lives of the President and Vice President of the United States, in violation of 18 U.S.C. 871. He was sentenced to five years' imprisonment. The court of appeals affirmed. 1. In June of 1988, petitioner escaped from the state penitentiary in Eddyville, Kentucky, where he was an inmate. Petitioner was recaptured, and was arraigned in state court in August 1988 on escape charges. Pet. App. 1-2. At the arraignment, the trial court asked petitioner whether he wished to be represented by counsel in connection with the escape charges, and petitioner responded that he did. Pet. App. 13. Counsel was appointed for petitioner, and petitioner consulted with the appointed attorney concerning the escape prosecution. Pet. App. 2. On October 28, 1988, the White House mail room received a letter threatening the lives of the President and Vice President of the United States. The letter was signed by petitioner and two other persons, and the return address on the envelope was that of the Eddyville penitentiary. On November 8, 1988, two agents of the Secret Service went to the state penitentiary and questioned petitioner about the threatening letter. After the agents advised petitioner of his Miranda rights, petitioner told them that he had written the letter, that he meant what he had said, and that he would kill the President and Vice President if he had the opportunity to do so. Pet. App. 2. 2. Petitioner was indicted for mailing a letter threatening the lives of the President and Vice President. At trial, petitioner objected to the admission of his statements made during the interview with the Secret Service agents. After an evidentiary hearing, the district court concluded that petitioner had made a valid waiver of his Miranda rights, and that the statements were therefore admissible. Pet. App. 3-4. 3. On appeal, petitioner argued that his statements to the Secret Service agents were elicited in violation of his Fifth Amendment privilege against self-incrimination. Petitioner relied on Edwards v. Arizona, 451 U.S. 477 (1981), in which this Court held that a suspect who invokes his right to counsel is not subject to further police-initiated interrogation "until counsel has been made available to him," and on Arizona v. Roberson, 486 U.S. 675 (1988), in which the Court held that the Edwards rule applies when interrogation following a suspect's request for counsel occurs in the context of an unrelated criminal investigation. The court of appeals unanimously affirmed. Pet. App. 1-16. Each judge wrote separately. Judge Smith concluded that the prophylactic rule of Edwards and Roberson, which was designed to "protect() against the inherently compelling pressures of custodial interrogation suspects who feel incapable of undergoing such questioning without the advice of counsel," did not require exclusion of petitioner's statements. Pet. App. 5-6. He noted that three months had elapsed between petitioner's request for counsel and the subsequent interrogation, and that petitioner had consulted with his attorney during that time. Pet. App. 6-9. Judge Smith declined to adopt a rule that would forever bar police-initiated interrogation of a suspect who previously had invoked his right to counsel in connection with unrelated criminal activity, "even though the (suspect) had fully conferred with his counsel regarding that previous activity." Pet. App. 8-10. Judge Smith also concluded that because petitioner was "no stranger to the state penitentiary," where he was interrogated, he "was not 'in custody' as that term has been used in the context of Edwards and Roberson." Pet. App. 8. Judge Kennedy concluded that petitioner had been subjected to custodial interrogation after he had "requested an attorney on another pending charge," and that therefore the interrogation violated the "bright line rule" of Roberson. Judge Kennedy concurred in the judgment, however, because she concluded that the admission of petitioner's statements was harmless error. She noted that petitioner's signature appeared on the letter and his first name in the body of the letter, a handwriting expert testified that it is "virtually certain" that petitioner wrote the letter, and 22 of 27 fingerprints on the letter were identified as petitioner's. Pet. App. 11. Judge Ryan also concurred. He noted that there were "substantial" factual differences between this case and Roberson: Roberson was interrogated by state officials on an unrelated offense within three days after indicating, explicitly, a desire to deal with the police only through counsel. (Petitioner) was interrogated by federal authorities on an unrelated offense some three months after the appointment of counsel in the state court arraignment proceeding during which he said nothing about his willingness to speak to the police. Whereas Roberson's fifth amendment right to consult an attorney had not been honored, counsel had been appointed for (petitioner) and he had met with his counsel months prior to the challenged interrogation. Pet. App. 13. Because there was "no evidence whatever" that, by requesting counsel at the arraignment proceeding, petitioner "expressed an intention 'to deal with the police only through counsel,'" Judge Ryan concluded that the Roberson rule was inapplicable to this case. Pet. App. 15. ARGUMENT Although we believe that the court of appeals' decision is correct on several independent grounds, the Court may wish to hold this case pending its decisions in Minnick v. Mississippi, No. 89-6332 (argued Oct. 3, 1990), and McNeil v. Wisconsin, No. 90-5319 (cert. granted Oct. 29, 1990). The question presented in Minnick is whether law enforcement officers may reinitiate custodial interrogation after a suspect has invoked his right to counsel and consulted with a lawyer. McNeil presents the question whether a suspect's acceptance of appointed counsel at an initial appearance is sufficient to invoke his Fifth Amendment right to deal with police only through counsel at a subsequent custodial interrogation on an unrelated charge. This case presents questions similar to those presented in Minnick and McNeil -- petitioner's only "invocation" of his Fifth Amendment privilege was his acceptance of appointed counsel on the escape charges, and the Secret Service agents initiated the interrogation after petitioner had consulted with his lawyer on those unrelated charges. But this case, unlike either Minnick or McNeil, involves the questioning of a prison inmate in the familiar surroundings of a state penitentiary. As we noted in our brief amicus curiae in Illinois v. Perkins, 110 S. Ct. 2394 (1990), a copy of which has been sent to petitioner, courts have recognized that an inmate who is questioned in the prison setting is not subjected to the coercive pressures associated with the interrogation of a suspect who has been taken into custody for questioning. See Leviston v. Black, 843 F.2d 302, 304 (8th Cir.), cert. denied, 488 U.S. 865 (1988); United States v. Cooper, 800 F.2d 412, 414-415 (4th Cir. 1986); United States v. Conley, 779 F.2d 970, 972-974 (4th Cir. 1985), cert. denied, 479 U.S. 830 (1986); United States v. Scalf, 725 F.2d 1272, 1275-1276 (10th Cir. 1984); Cervantes v. Walker, 589 F.2d 424, 427-428 (9th Cir. 1978). The rulings of these courts are not inconsistent with this Court's decision in Mathis v. United States, 391 U.S. 1 (1968), which held that a state prison inmate who was interviewed by an agent of the Internal Revenue Service about possible federal income tax violations was entitled to Miranda warnings. Rather, we view Mathis as holding only that a suspect's prisoner status does not automatically eliminate the necessity for Miranda warnings. In addition to the fact that petitioner was questioned in familiar surroundings, three months elapsed between petitioner's request for counsel at his arraignment on the escape charge and his interrogation by Secret Service agents concerning the threatening letter. In contrast, the suspect in Minnick was subjected to police questioning three days after he invoked his right to counsel during an earlier interrogation. And in McNeil, the questioning occurred on the same day that the suspect appeared in court with the lawyer appointed to represent him on an unrelated charge. Accordingly, the judgment in this case might well survive even if this Court were to reverse the judgment of the Mississippi Supreme Court in Minnick and the Wisconsin Supreme Court in McNeil. Nevertheless, because the issues raised in those cases are closely related to the issues raised in this case, the Court's decisions in those cases may affect the disposition of this case. We therefore suggest that the Court hold the petition in this case pending its decisions in Minnick and McNeil. CONCLUSION The petition for a writ of certiorari should be held pending the Court's decisions in Minnick v. Mississippi, No. 89-6332 (argued Oct. 3, 1990), and McNeil v. Wisconsin, No. 90-5319 (cert. granted Oct. 29, 1990), and then disposed of as appropriate in light of the Court's decisions in those cases. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney NOVEMBER 1990