DONALD STEVEN ROGERS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7763 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-22) is reported at 899 F.2d 917. JURISDICTION The judgment of the court of appeals was entered on March 26, 1990. The petition for a writ of certiorari was filed on June 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a probation officer assigned to prepare a presentence investigation report is required, by the Fifth or Sixth Amendment, to give Miranda warnings before conducting an interview with a convicted defendant. STATEMENT After a jury trial in the United States District Court for the Western District of Oklahoma, petitioner was convicted of (1) conspiracy to participate in racketeering activities, in violation of 18 U.S.C. 1961 and 1962(d); (2) participation in racketeering activities, in violation of 18 U.S.C. 1961 and 1962(c); (3) conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. 846; (4) possession with intent to distribute heroin, in violation of 21 U.S.C. 841(a)(1); and (5) interstate travel to facilitate the conspiracy, in violation of 18 U.S.C. 1952(a)(3). The district court sentenced him to concurrent prison terms of 156 months on the first four counts and 60 months on the fifth count, to be followed by concurrent supervised release periods of five years on the first four counts and three years on the fifth count. The court of appeals affirmed. Pet. App. 1-2; Judgment and Commitment Order 1-3. 1. The evidence at trial established petitioner's role in a drug trafficking operation. The evidence included testimony concerning two distributions of heroin by petitioner in 1987, and petitioner's involvement with Johnny Sanders and his heroin distribution organization. The evidence also included tapes of conversations, which had been recorded pursuant to court-authorized electronic surveillance, between petitioner and Sanders and between Sanders and other individuals. Gov't C.A. Br. 3-8, 18-19. 2. After petitioner's trial, the district court ordered the probation office to prepare a presentence investigation report (PSI). The court briefly discussed the presentence report process with petitioner's counsel in petitioner's presence. A probation officer subsequently prepared the PSI, and interviewed petitioner as a routine part of the process. During the interview, petitioner admitted to trafficking in 24 ounces of heroin within the charged enterprise, rather than the five ounces specified in the indictment against him. Pet. App. 2-3. In the probation officer's first draft of the PSI, he attributed to petitioner the entire 30 kilograms of heroin possessed and distributed by the drug ring. When petitioner's counsel objected, the officer revised the report, recalculating petitioner's base offense level on the basis of the 24 ounces of heroin to which petitioner had admitted. This quantity was multiplied by seven to reflect the number of times it could be "cut" for street distribution. Even though the PSI allowed petitioner a two-point downward sentencing adjustment for "acceptance of responsibility" (pursuant to Guidelines Section 3E1.1), the use of 24 ounces of heroin, rather than five ounces, increased petitioner's potential sentence by four years. /1/ The district court accepted the classifications recommended in the PSI and imposed sentence accordingly. Pet. App. 3-4. 3. On appeal, petitioner challenged the sentence on Fifth Amendment grounds. He contended, first, that he was entitled to Miranda warnings before his presentence interview, and, second, that the Sentencing Guidelines provision permitting a reduction in sentence for acceptance of responsibility compelled self-incrimination. Pet. App. 4-5. The court of appeals rejected these contentions. The court first noted that petitioner's argument "face(d) two hurdles at the outset" (id. at 6) -- (1) in the district court, petitioner had not objected on constitutional grounds to the use of his admissions in the PSI, and thus appellate review was "limited to plain error, or the exercise of supervisory power" (ibid.), and (2) the evidence at trial itself, although disputed, could be construed to provide independent support for the district court's finding concerning petitioner's base offense level (id. at 6-7). Nevertheless, as an "alternative ground for (its) affirmance of the sentence" (id. at 7), the court addressed the merits of petitioner's constitutional argument. With respect to petitioner's claim that he should have received Miranda warnings, the court concluded that a routine post-conviction, presentence interview by a probation officer is not "the type of inherently coercive situation and interrogation by the government for which the Miranda rule was designed." Pet. App. 9. The court emphasized several factors about such a routine presentence interview -- its purpose is neither prosecutorial nor punitive; the probation officer is acting as an agent of the court to assist it in its sentencing responsibility; a presentence interview does not represent coercive custodial interrogation; the PSI process, including the topics of the interview, is both familiar and accessible to defendants and their counsel; the interview is normally voluntary; and, by the time of the interview, defendants have usually been counselled and are aware of their Fifth Amendment rights. Pet. App. 10-12. /2/ Observing that two other Circuits had also concluded that Miranda warnings are not required before routine presentence interviews, the court of appeals agreed with the conclusion of those Circuits. See Pet. App. 13 (citing United States v. Jackson, 886 F.2d 838, 841-842 n.4 (7th Cir. 1989) and Baumann v. United States, 692 F.2d 565, 575-577 (9th Cir. 1982)). /3/ With respect to petitioner's claim that the "acceptance of responsibility" Sentencing Guidelines provision compels self-incrimination, the court concluded that petitioner's argument "proceeds from a faulty premise" (Pet. App. 16) because petitioner was not "'compelled'" to incriminate himself and because "the denial of a downward adjustment under (the provision) does not constitute a penalty or an enhancement of sentence" (id. at 17-18). The court noted that the burden of proof for establishing entitlement to the reduction is on the defendant, that qualification for the reduction may arise from a variety of factors, and that the provision authorizes a reduction from the base offense level rather than a penalty or a sentence enhancement. Id. at 16-18. /4/ Finally, although noting that petitioner did not specifically claim that his Sixth Amendment right to counsel had been violated by the interview with the probation officer, the court of appeals also considered the applicability of the Sixth Amendment to petitioner's situation. Joining three other Circuits, the court held that "a routine post-conviction presentence interview is not a 'critical stage' of the proceedings at which a defendant has a Sixth Amendment right to be represented by counsel." Pet. App. 5 n.7 (citing United States v. Jackson, 886 F.2d at 843-844; Brown v. Butler, 811 F.2d 938, 941 (5th Cir. 1987); and Baumann v. United States, 692 F.2d at 577-578). /5/ ARGUMENT Petitioner contends that his Fifth and Sixth Amendment rights were violated by the district court's use of his statement, contained in the probation officer's presentence report, that he had participated in the distribution of 24 ounces of heroin. The court of appeals correctly rejected this contention, and its holding does not conflict with any decision of this Court or of any other court of appeals. /6/ 1. The court of appeals correctly concluded that Miranda warnings are not required for a routine post-conviction, presentence interview with a probation officer. As the court determined, the circumstances of such an interview argue forcefully against a conclusion that the interview is an "inherently coercive custodial interrogation()" (Roberts v. United States, 445 U.S. 552, 560 (1980)) for which the Miranda requirements are designed. Because the probation officer acts as an agent of the court gathering information for use at sentencing, that officer's role is neutral, rather than prosecutorial or punitive. The neutral and information-gathering nature of the presentence report process negates any inference that an interview during it is intended to "subjugate the individual to the will of his examiner" (Miranda v. Arizona, 384 U.S. 436, 457 (1966)), or "will continue until a confession is obtained" (Minnesota v. Murphy, 465 U.S. 420, 433 (1984)). As the court of appeals pointed out, the interview is usually voluntary (Pet. App. 12), and the information sought during the process falls into categories that are "standardized, well documented, publicized, and accessible" both to defendants and their counsel (id. at 11). As the court also observed (id. at 11-12), it is reasonable to assume that at the time of the presentence interview, defendants will have been advised by counsel and thus will already be aware of their Fifth Amendment rights. Additionally, the particular circumstances of this interview included no suggestion of any pressure, trickery, or overreaching by the probation officer. Id. at 7-8. In view of the circumstances of a routine presentence interview by a probation officer, the court of appeals correctly joined two other Circuits in holding that Miranda warnings are not required at such an interview. See United States v. Jackson, 886 F.2d at 841 n.4; Baumann v. United States, 692 F.2d at 576-577. /7/ Contrary to petitioner's contention (Pet. 7-8, 10-12), moreover, the decision below is not in conflict with this Court's decision in Estelle v. Smith, 451 U.S. 454 (1981). Estelle was a capital case involving a bifurcated jury proceeding in which the jury's finding during the penalty phase of the proceeding was binding on the sentencing judge. 451 U.S. at 457-458. Prejudicial information derived from a pretrial psychiatric examination of the defendant was used during the penalty phase to show the aggravating factor of future dangerousness and thus justify imposition of the ultimate penalty of death. Id. at 458-460. Though the Court found that Miranda warnings were required if the psychiatrist were to testify for the government in the sentencing phase (id. at 469), the Court was careful to limit the reach of its decision: "(W)e do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination." Id. at 469 n.13. The routine presentence interview at issue in this case is far different. Rather than becoming a witness for the government, the probation officer remains a neutral agent of the court. Rather than a change in purpose from a pretrial competency examination to an evaluation of future dangerousness, the PSI purpose is clear, consistent, and predictable. Rather than a court-ordered examination, the PSI interview is usually voluntary. As the court of appeals determined, the circumstances of the examination in Estelle are thus "distinguishable from a post-conviction presentence interview" by a probation officer. Pet. App. 14. /8/ Petitioner's reliance (Pet. 11) on Jones v. Cardwell, 686 F.2d 754 (9th Cir. 1982) is also misplaced. In Jones, a probation officer acting as a state agent sought a confession to additional criminal activity so aggressively that the defendant's confession was found to be involuntary. 686 F.2d at 756-757. See also id. at 757 n.2 (leaving open the question of whether Miranda warnings were required). In the present case, there is no suggestion that the probation officer aggressively sought incriminating information from petitioner or that petitioner's admission to trafficking in 24 ounces of heroin was anything but voluntary. See Pet. App. 7-8. /9/ Moreover, as the court of appeals noted (id. at 14), Jones was succeeded in the Ninth Circuit by Baumann v. United States, supra, with which the court of appeals specifically agreed. To the extent that there is any tension between Jones and Baumann, that tension is for the Ninth Circuit, not this Court, to resolve. See United States v. Wisniewski, 353 U.S. 901 (1957). 2. The court of appeals also correctly concluded that petitioner's Sixth Amendment right to counsel was not violated. /10/ The Sixth Amendment right to counsel applies at "critical stages" of the proceedings against a defendant. See Michigan v. Jackson, 475 U.S. 625, 629-630 (1986); Estelle v. Smith, 451 U.S. at 469-470. As the court of appeals concluded, "the same reasons set forth * * * with respect to (petitioner's) Fifth Amendment arguments" -- namely, the characteristics of a routine post-conviction, presentence interview by a probation officer -- also compel the conclusion that the interview is not a "critical stage." Pet. App. 5 n.7. Three other Circuits have reached the same conclusion, and have emphasized that such an interview is not an adversary proceeding. See United States v. Jackson, 886 F.2d at 843-845; Brown v. Butler, 811 F.2d at 940-941; Baumann v. United States, 692 F.2d at 577-578. No court has reached a contrary conclusion. Petitioner nevertheless claims (Pet. 8, 11) a conflict with Estelle v. Smith and its holding that the examination by the psychiatrist proved to be a "critical stage" requiring Sixth Amendment protection (451 U.S. at 470). As the courts of appeals have concluded, however, Estelle is readily distinguishable. See United States v. Jackson, 886 F.2d at 845 ("Estelle is simply inapplicable on its facts and legal theory to a federal district judge's discretionary use of a defendant's postconviction statement to a federal probation officer carrying out a nonadversarial presentence investigation"); Brown v. Butler, 811 F.2d at 941 ("We agree * * * that Estelle should be read narrowly"); Baumann v. United States, 692 F.2d at 578 ("(A) routine presentence interview of an individual convicted of a noncapital federal offense is not, under Estelle and United States v. Wade (388 U.S. 218 (1967)), a critical stage of the proceedings in which counsel's presence, or advice, is necessary to protect the defendant's right to a fair trial"). Petitioner's assertion of a conflict with Estelle is unfounded, and his claim does not warrant review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS M. GANNON Attorney AUGUST 1990 /1/ Petitioner's criminal history category was III. If the five-ounce amount had been used in the PSI, his adjusted offense level would have been 28, and his Guideline sentence would have been 97-121 months. Use of the 24-ounce amount produced an adjusted offense level of 32 and a Guideline range of 151-188 months. The district court imposed a 156-month sentence. See Pet. App. 2, 4 n.6. /2/ The court also noted several facts about petitioner's interview that formed "an important backdrop" (Pet. App. 7) for consideration of his Fifth Amendment claim -- petitioner volunteered the information that he had trafficked in 24 ounces of cocaine; the probation officer had not overreached or in any way interfered with the exercise of petitioner's Fifth Amendment right to remain silent; petitioner's counsel, although not present at the interview, had not been excluded from it; and petitioner's contention amounted to, at most, a subjective belief that the availability of a two-point downward adjustment compelled him to admit to additional criminal activity. Pet. App. 7-8. /3/ The court also determined that the characteristics of a routine PSI interview distinguished this case from Estelle v. Smith, 451 U.S. 454 (1981), and United States v. Chitty, 760 F.2d 425 (2d Cir.), cert. denied, 474 U.S. 945 (1985), in which information obtained by psychiatrists in court-ordered pretrial competency examinations was used by the government to carry its burden of proof at sentencing. Pet. App. 13-14. The court also distinguished Jones v. Cardwell, 686 F.2d 794 (9th Cir. 1982) based on the different facts concerning the conduct in "'extracting a confession'" (Pet. App. 14); additionally, the court noted that Jones v. Cardwell had been succeeded by the Ninth Circuit decision of Baumann v. United States, supra. Pet. App. 14. /4/ In this Court, petitioner does not renew his contention that the Sentencing Guideline provision itself compels self-incrimination. /5/ The court of appeals also considered and rejected petitioner's claims that his right to a speedy trial had been violated and that his case should have been severed from that of a co-defendant. Pet. App. 18-22. Petitioner does not pursue those claims in this Court. /6/ In addition, the procedural posture of the case counsels against review. As the court of appeals pointed out, petitioner did not raise a constitutional objection at all in the district court, and did not raise the Sixth Amendment claim in the court of appeals. Pet. App. 5 n.7, 6. Since the evidence at trial could be construed to support the base level offense, moreover, petitioner's statement may have been unnecessary; as noted, the court of appeals stated that its discussion of the constitutional issue was "an alternative ground for (its) affirmance of the sentence." Pet. App. 7. /7/ Petitioner asserts (Pet. 9-10) that the decision below is in conflict with Baumann because Baumann held that the presentence interview constituted "interrogation." This suggestion is mistaken. The court of appeals in this case held that a presentence interview is not the type of coercive interrogation for which Miranda was designed. See Pet. App. 9 ("A routine post-conviction presentence interview by a probation officer does not constitute the type of inherently coercive situation and interrogation by the government for which the Miranda rule was designed"). The essential point, in any event, is that the court of appeals explicitly agreed with Baumann that Miranda warnings are not required in a routine presentence interview by a probation officer. /8/ Petitioner similarly claims (Pet. 11) a conflict with In re Gault, 387 U.S. 1 (1967), which was relied on in Estelle (451 U.S. at 462) and which held that "the availability of the (Fifth Amendment) privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." 387 U.S. at 49. As the court of appeals noted, however, "the possibility of adverse consequences flowing from an admission to a probation officer is not in and of itself the test for triggering the application of Miranda." Pet. 14-15 (citing Minnesota v. Murphy, supra); rather, the context of the situation must be considered, and the circumstances of a routine presentence interview establish that such an interview is not the type of encounter that triggers the Miranda requirements. Pet. App. 15. /9/ Because petitioner's statement was clearly voluntary, it was also unlike the statement found to be involuntary in Vermont v. Cox, 519 A.2d 1144, 1147 (1986), cert. dismissed, 484 U.S. 173 (1987). /10/ In his Question Presented, petitioner suggests that his claimed Sixth Amendment right was a right to receive Miranda warnings before the presentence interview. Cf. Patterson v. Illinois, 487 U.S. 285, 292-293 (1988) (State met its Sixth Amendment burden "by admonishing petitioner with the Miranda warnings, * * * and petitioner's waiver of his right to counsel at the questioning was valid.").