JOSE GUADALUPE VARGAS-VICTORIA, PETITIONER V. UNITED STATES OF AMERICA No. 90-5434 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 Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-4) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 22, 1990. The petition for a writ of certiorari was filed on August 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erroneously admitted into evidence documents that had been obtained as a result of a Miranda violation. STATEMENT After a bench trial in the United States District Court for the Western District of Washington, petitioner was convicted on one count of illegal entry into the United States after deportation, in violation of 8 U.S.C. 1326. He was sentenced to a term of two years' imprisonment. The court of appeals affirmed. Pet. App. 1-4. 1. The evidence at trial showed that petitioner is an alien and citizen of Mexico. In 1982, and then again in 1986, petitioner was deported to Mexico after serving sentences for California burglary convictions. In each of those criminal and deportation proceedings, petitioner identified himself as Jose Barela-Victoria -- a fact reflected on the pertinent records. In March 1988, petitioner was once again found in the United States when he sold cocaine to an undercover police officer in Tacoma, Washington. Petitioner told Tacoma authorities he was Joe Hererra. Petitioner was convicted of drug trafficking in Washington state court and sentenced to a term of nine months' imprisonment. Because neither the Tacoma authorities nor the sentencing judge knew of petitioner's identity as Barela-Victoria, they were unaware of petitioner's previous criminal convictions and deportations. Gov't C.A. Br. 4-5. In May 1988, officials at the Pierce County Jail, where petitioner was serving his Tacoma sentence, contacted the INS because they suspected that petitioner was an illegal alien. On June 8, INS Agent James Shepherd visited petitioner at the jail. Shepherd introduced himself to petitioner as an INS agent and advised petitioner of his Miranda rights in both Spanish and English. After petitioner stated that he understood his Miranda rights, Shepherd asked him if he would sign a written waiver. Petitioner refused. Shepherd then asked petitioner if he would be willing to answer some questions and petitioner agreed. During the interview, petitioner identified himself as Jose Guadalupe Vargas-Victoria. He stated that he was a citizen of Mexico and that he had entered the United States unlawfully by crossing the border on foot. Gov't C.A. Br. 5-7. After the interview, Agent Shepherd began the process of verifying petitioner's identify. Using petitioner's fingerprints, which had been obtained by the Tacoma authorities in connection with the drug case, Shepherd obtained a copy of his FBI "rap sheet." The rap sheet showed that Jose Guadalupe Vargas-Victoria was also the Jose Barela-Victoria who had been convicted in California of burglaries and had been deported in 1982 and 1986. Shepherd also obtained INS documents recording those deportations, which showed that petitioner had not applied for permission to reenter the United States. Gov't C.A. Br. 7-9. 2. The court of appeals affirmed. Pet. App. 1-4. In the court of appeals, petitioner contended that his statements to Agent Shepherd should have been excluded as a violation of Miranda v. Arizona, 384 U. S. 436 (1966). Pet. C.A. Br. 12-18. The court of appeals determined that petitioner's "refusal to sign a waiver was an assertion of his rights to remain silent." Pet. App. 3. The court therefore concluded that petitioner's statements were inadmissible. The court held, however, that "(t)he trial court's error was harmless beyond a reasonable doubt * * * because the prosecution properly admitted INS documents containing the same information contained in (petitioner's) statements." Ibid. The court stated that "non-testimonial physical evidence discovered as a result of statements obtained in violation of Miranda is admissible so long as the illegally obtained statements were made voluntarily." Ibid. (citing United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir. 1990)). Here, the record showed that petitioner's statements, although obtained in violation of Miranda, were voluntary. Pet. App. 3-4. /1/ ARGUMENT 1. Petitioner contends (Pet. 5-8) that the district court erroneously admitted into evidence INS documents that had been obtained as a result of a Miranda violation. Although the court of appeals reached that issue in the context of holding that the admission of petitioner's statements was harmless error, petitioner did not seek to exclude the INS documents on that ground in either the district court or the court of appeals. See Tr. 75-76; Pet. C.A. Br. 12-18, 24-28. For that reason alone, further review of petitioner's claim is unwarranted. See United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). Moreover, even assuming petitioner's statements were obtained in violation of Miranda, but see North Carolina v. Butler, 441 U.S. 369 (1979), this case does not present the issue petitioner poses. The record shows that Agent Shepherd did not obtain the INS documents as a result of petitioner's statements; indeed, the name that petitioner provided to Shepherd was different from the one under which he had previously been deported. Rather, Shepherd obtained the documents as a result of his own routine computer check of petitioner's prior record by using the fingerprints taken from petitioner by the Tacoma authorities at the time of petitioner's arrest -- not the name provided by petitioner during the interview. Gov't C.A. Br. 7-8. 2. In any event, even if the government obtained the INS documents as a result of a Miranda violation, those documents were properly admitted into evidence. This Court has noted that since the Miranda prophylactic rules exceed the requirements of the Fifth Amendment, "in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm." Oregon v. Elstad, 470 U.S. 298, 307 (1985); see New York v. Quarles, 467 U.S. 649, 654 (1984); Michigan v. Tucker, 417 U.S. 433, 444 (1974). As a result, the Court has held that evidence obtained in violation of Miranda -- but not in violation of the Constitution itself -- may be used at trial, although the defendant's statements may not themselves be used in the government's case-in-chief. See, e.g., Elstad, 470 U.S. at 308-309; Tucker, 417 U.S. at 445; see also Harris v. New York, 401 U.S. 222 (1971). The admissibility of such evidence, the Court has explained, depends upon the deterrent effect its exclusion will have on police conduct and the reliability of the evidence itself. See, e.g., Tucker, 417 U.S. at 447-449. Indeed, in Oregon v. Elstad, supra, the Court reaffirmed that approach. There, the defendant confessed after being questioned without Miranda warnings; he then was advised of his rights and confessed again. In this Court, he argued that the second confession, as a "fruit" of the first, was inadmissible. See 470 U.S. at 303-304. Following Michigan v. Tucker, supra, the Court rejected that argument, concluding that it would be "an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." 470 U.S. at 309. Instead, the Court stated that the critical inquiry was whether suppression of the second confession would further either "the general goal of deterring improper police conduct (or) the Fifth Amendment goal of assuring trustworthy evidence." Id. at 308. Finding that suppression would further neither purpose, the Court held the second confession admissible. Although the Court has never expressly resolved the question whether physical evidence derived from a Miranda -- but not a constitutional -- violation may be used at trial, /2/ the analysis and approach in Oregon v. Elstad dictate an affirmative answer. Here, petitioner's statements, although found to have been obtained in violation of Miranda, were not at all coerced and were made voluntarily. See Pet. App. 3-4. And the physical evidence allegedly derived from petitioner's statements -- official INS records -- was reliable. In these circumstances, as in Oregon v. Elstad, "the absence of any coercion or improper tactics undercuts the twin rationals -- trustworthiness and deterrence -- for (exclusion of that evidence)." 470 U.S. at 308. As the Court explained: "If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself." Id. at 309. 3. As petitioner points out (Pet. 5-7), lower courts in the past have divided over the admissibility of physical evidence derived from Miranda violations. Compare United States v. Cassell, 452 F.2d 533 (7th Cir. 1971) (inadmissible); State v. Preston, 411 A.2d 402 (Me. 1980) (same); People v. Lowe, 616 P.2d 118 (Colo. 1980) (en banc) (same) with United States ex rel. Hudson v. Cannon, 529 F.2d 890 (7th Cir. 1976) (admissible); United States v. Lee, 699 F.2d 466 (4th Cir. 1982) (same); Miller v. Zant, 290 S.E.2d 442 (Ga. 1982) (same). /3/ Those decisions, however, predate Oregon v. Elstad. And in light of the more recent decisions following this Court's analysis in Elstad, /4/ there is no reason to believe that the lower courts' previous disagreement survives that decisions. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General JOEL M. GERSHOWITZ Attorney OCTOBER 1990 /1/ Petitioner also contended that the government's delay in bringing him before a magistrate violated Fed. R. Crim. P. 5(a) and the Due Process Clause, Pet. C.A. Br. 19-24, and that the INS documents were improperly admitted into evidence under the "public records" exception to the hearsay rule, Fed. R. Evid. 803(8)(B), Pet. C.A. Br. 24-28. The court of appeals rejected each of those contentions, Pet. App. 1-3, and petitioner has not sought further review of them. /2/ In Michigan v. Tucker, 417 U.S. at 447, the Court reserved the question. In Massachusetts v. White, 439 U.S. 280 (1978), an equally divided Court affirmed a state court decision (371 N.E.2d 777 (1977)) holding that physical evidence derived from a Miranda violation must be excluded. /3/ Petitioner's citation (Pet. 5) to United States v. Castellana, 488 F.2d 65 (5th Cir. 1974), does not support his claim. The panel opinion initially held that physical evidence derived from a Miranda violation was inadmissible. The Fifth Circuit, however, granted rehearing en banc, vacated that decision, and then held that the evidence at issue was admissible without having to reach the derivative evidence question. 500 F.2d 325 (5th Cir. 1974). In a more recent decision, the Fifth Circuit, sitting en banc, held that a Miranda violation does not mandate the exclusion of nontestimonial physical evidence. See United States v. Bengivenga, 845 F.2d 593, 600-601 & n. 28 (5th Cir.) (citing Oregon v. Elstad), cert. denied, 488 U.S. 924 (1988). /4/ See, e.g., United States v. Sangiento-Miranda, 859 F.2d 1501, 1517-1518 (6th Cir. 1988); United States v. Bengivenga, 845 F.2d at 600-601; United States v. Quinn, 815 F.2d 153, 161 (1st Cir. 1987); United States v. Patterson, 812 F.2d 1188, 1193 (9th Cir. 1987), cert. denied, 485 U.S. 922 (1988); United States v. Morales, 788 F.2d 883, 886-887 (2d Cir. 1986).