GREGORY SCARPA, JR., PETITIONER V. UNITED STATES OF AMERICA No. 89-1856 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 Second Circuit Brief For The United States In Opposition TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-14a) is reported at 897 F.2d 63. The opinion of the district court (Pet. App. 1b-15b) is reported at 701 F.Supp. 379. JURISDICTION The judgment of the court of appeals was entered on February 23, 1990. The petition for a writ of certiorari was filed on May 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner waived his Sixth Amendment right to counsel during post-indictment questioning. STATEMENT Following a jury trial in the United States District Court for the Eastern District of New York, petitioner was convicted of conducting a racketeering enterprise, in violation of 18 U.S.C. 1962(c); engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848(a) (1982 & Supp. V 1987); conspiring to distribute marijuana, in violation of 21 U.S.C. 846 (1982); distributing marijuana, in violation of 21 U.S.C. 841(a)(1); and conspiring to commit extortion and committing extortion, in violation of 18 U.S.C. 1951. He was sentenced to terms of 20 years' imprisonment on the racketeering, continuing criminal enterprise, extortion, and extortion conspiracy counts, and 5 years' imprisonment on the marijuana conspiracy and marijuana distribution counts. All of the prison terms were concurrent. 1. An indictment returned in January 1988 charged petitioner and eight co-defendants with crimes committed as part of a marijuana distribution operation headed by petitioner. Petitioner's co-defendants were tried jointly and convicted of various narcotics and extortion offenses. Petitioner fled the jurisdiction, however, and remained a fugitive until he was arrested by Drug Enforcement Administration agents at a motel in Lakewood, New Jersey, on August 29, 1988. Pet. App. 3a. Upon petitioner's arrest, DEA Special Agent John Gilbride advised petitioner of his Miranda rights. Petitioner interrupted the agent, stating, "I understand my rights, you don't have to go on." Agent Gilbride completed the Miranda warnings, and petitioner again indicated that he understood his rights. When Gilbride asked petitioner whether he had a lawyer, petitioner responded "that he didn't have a lawyer, that he was going to get a lawyer. But he didn't know the guy's name." In response to further inquiries, petitioner explained that he "didn't know the (lawyer's) name but he's the guy that defended (a co-defendant) when he bit the cop's ear off." Petitioner was taken to the Lakewood Township jail without any further questioning. Pet. App. 6a. The following day, Agent Gilbride and a Deputy United States Marshal drove petitioner from the Lakewood jail to the federal courthouse in Camden, New Jersey, where he was arraigned. Sometime before or during that trip, Joseph Benfante, a lawyer who had been retained by petitioner's family earlier that morning, telephoned the United States Attorney's office in Camden. The Assistant United States Attorney with whom Benfante spoke told Benfante that petitioner would not be questioned. Neither petitioner nor the officers who transported petitioner to Camden were aware that Benfante had been retained to represent petitioner or that Benfante had contacted the U.S. Attorney's office. Pet. App. 6a-7a. During the two-hour drive from Lakewood to Camden, petitioner and Agent Gilbride conversed about petitioner's experiences as a fugitive and the trial of petitioner's co-defendants. During the conversation, petitioner repeatedly asked Gilbride to disclose who had revealed his wherabouts, but Gilbride refused. Gilbride asked petitioner whether he thought his friends were angry with him because they went to trial while he was a fugitive. Petitioner responded that his friends were not "like that" and that they were "good guys." He mentioned that one of the co-defendants had visited him while he was a fugitive and described two others as "stand-up guys." When Gilbride commented on the length of the co-defendants' trial, petitioner stated that another of the co-defendants, who had been taped in conversations with police officers and a cooperating witness, was his "biggest problem" because he "talked too much." Petitioner told Gilbride that he had not heard the tapes, but that his father had kept him informed during the trial. At no time during his conversation with Gilbride did petitioner request an attorney or indicate in any way that he did not want to talk. Pet. App. 7a-8a. Prior to trial, petitioner moved to suppress his post-arrest statements to Agent Gilbride on the ground that they had been elicited in violation of his Sixth Amendment right to counsel. The district court denied the motion, holding that the government had "more than amply sustained its burden of establishing that (petitioner) knowingly and intelligently waived his Sixth Amendment rights." Pet. App. 13b-14b. The court ruled that petitioner's statement that he "was going to get a lawyer" was not a request for counsel and that the attempted intervention of an attorney retained by petitioner's family without his knowledge did not invalidate petitioner's waiver of his right to counsel. Id. at 5b-14b. Accordingly, the court concluded that petitioner's Sixth Amendment rights had not been violated. /1/ 2. The court of appeals affirmed. Pet. App. 1a-14a. In considering whether petitioner had waived his right to have counsel present during the questioning by Agent Gilbride, the court noted that petitioner had been informed of his Miranda rights, that he had indicated that he understood them, and that there was "no suggestion of intimidation, coercion or deception." Id. at 9a-10a. The court also found that although petitioner had previously retained several lawyers to represent his underlings in the marijuana operation, and could easily have obtained counsel for himself before his arrest, he had never attempted to do so. The court concluded that petitioner had chosen to speak to Agent Gilbride on his own because he "was confident in his own ability to deal with law enforcement officers and * * * thought he could persuade Gilbride to reveal who had given him up." /2/ Accordingly, the court held that petitioner had knowingly and intelligently waived his right to the assistance of counsel during the questioning. Id. at 10a-11a. The court also rejected petitioner's claim that the communication between the lawyer retained by his family and the United States Attorney's office required suppression of his subsequent statements to Agent Gilbride. Noting that there was no "indication that (petitioner) doubted his ability to deal with the government agents on his own," the court concluded that the intervention of an attorney retained without petitioner's knowledge could not invalidate petitioner's waiver of his right to counsel. Pet. App. 12a-13a. ARGUMENT Petitioner renews his contention (Pet. 6-14) that his statements to Agent Gilbride should have been suppressed because they were elicited in violation of petitioner's Sixth Amendment rights. The Sixth Amendment guarantees criminal defendants the right to the assistance of counsel during post-indictment questioning by law enforcement authorities. Michigan v. Jackson, 475 U.S. 625, 629-630 (1986); Brewer v. Williams, 430 U.S. 387, 401 (1977); Massiah v. United States, 377 U.S. 201, 205-207 (1964). Nothing in the Sixth Amendment, however, "prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney." Michigan v. Harvey, 110 S. Ct. 1176, 1181 (1990); see Patterson v. Illinois, 487 U.S. 285, 291 (1988). Here, the court of appeals and the district court agreed that petitioner made a knowing and deliberate choice to relinquish his Sixth Amendment rights and to speak with Agent Gilbride after his arrest. Petitioner first contends (Pet. 9-11) that the waiver was invalid because the police used "subtle manipulation and slick interrogation techniques" to elicit information from him. The facts, however, provide no support for that argument. The district court described the conversation between Agent Gilbride and petitioner as "relaxed and friendly" (Pet. App. 3b) and "casual and congenial" (id. at 15b). The court of appeals concluded that Agent Gilbride's questions contained "no suggestion of 'intimidation, coercion or deception.'" Id. at 10a (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Petitioner next contends (Pet. 11-13) that the attempted intervention of the attorney that petitioner's family retained on his behalf invalidated petitioner's waiver of his right to counsel during his conversation with Agent Gilbride. /3/ Petitioner argues (id. at 12) that the "intervention of any counsel asserting that he represents the accused mandates the cessation of all interrogation activity" and that "any subsequent waiver of counsel may occur only after the accused has had an opportunity to consult with that lawyer." This Court's decisions, however, do not support that argument. The Court held in Moran v. Burbine, supra, that statements made by an unindicted suspect in response to police questioning were properly admitted, even though an attorney retained by the suspect's family without his knowledge had contacted the police and been assured that the suspect would not be questioned. 475 U.S. at 421-424. As in this case, the suspect had been advised of his Miranda rights and had not requested counsel. Id. at 415. The Court concluded that the attorney's attempt to intervene on the suspect's behalf did not invalidate the suspect's subsequent waiver of his Miranda rights, explaining that "(e)vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right." Id. at 422. Two years later, the Court held in Patterson v. Illinois, supra, that an indicted defendant's waiver of his Miranda rights also served to waive his Sixth Amendment right to the assistance of counsel during police questioning. 487 U.S. at 296-297. The Court expressly rejected the "notion that because a Sixth Amendment right may be involved, it is more difficult to waive than the Fifth Amendment counterpart." Id. at 297-298. Instead, the Court adopted a "more pragmatic approach to the waiver question," focusing on "what purposes a lawyer can serve at the particular stage of the proceedings in question * * * to determine the scope of the Sixth Amendment right to counsel and the type of warnings and procedures that should be required before a waiver of that right will be recognized." Ibid. Because the lawyer's role during both pre-indictment and post-indictment questioning is "largely limited to advising his client as to what questions to answer and which ones to decline to answer," id. at 294 n.6, the Court concluded that a suspect's valid waiver of his Miranda rights was also sufficient to waive his Sixth Amendment right to counsel. Taken together, the decisions in Moran and Patterson indicate that a defendant may waive his Sixth Amendment right to counsel irrespective of efforts by an attorney, retained without the defendant's knowledge, to invoke the defendant's Sixth Amendment right on his behalf. The Court suggested in both Moran and Patterson that a different result might obtain if a suspect is questioned after he has sought the assistance of counsel. /4/ But as the court of appeals noted, "it does not follow under either the fifth or sixth amendments that an attorney unknown to the defendant may invoke the defendant's rights and thereby prevent the defendant from waiving them." Pet. App. 12a. Instead, the defendant himself must exercise those rights by requesting, retaining, or accepting appointment of a lawyer. See Patterson v. Illinois, 487 U.S. at 290 n.3 ("We note as a matter of some significance that petitioner had not retained, or accepted by appointment, a lawyer to represent him at the time he was questioned by authorities."); Moran v. Burbine, 475 U.S. at 423 n.1 ("the crucial distinguishing feature of this case (is) that Burbine at no point requested the presence of counsel"). /5/ Like the defendants in Moran and Patterson, petitioner did not invoke his Sixth Amendment right to counsel prior to police questioning. He made no attempt to contact or retain an attorney before his arrest, even though he was aware of the indictment and had been a fugitive for months. After being arrested and advised of his Miranda rights, petitioner did not request a lawyer. Instead, he deliberately elected to speak to Agent Gilbride, knowingly and intelligently waiving his Sixth Amendment right to counsel. Petitioner also urges this Court (Pet. 13-14) to adopt a "bright-line rule" that a waiver of the Sixth Amendment right to counsel will be found only when there is "an express, affirmative waiver" of that right by the accused. This Court, however, has refused to require an express waiver of the Fifth Amendment right to counsel guaranteed by Miranda. See North Carolina v. Butler, 441 U.S. 369, 375-376 (1979). In rejecting an "inflexible rule that no implicit waiver can ever suffice," id. at 376, the Court noted that "(e)ven when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" Id. at 374-375 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Petitioner's contention that the Court should adopt a more stringent standard for the waiver of Sixth Amendment rights than it has for the waiver of Fifth Amendment rights was squarely rejected in Patterson: While our cases have recognized a "difference" between the Fifth Amendment and Sixth Amendment rights to counsel, and the "policies" behind these constitutional guarantees, we have never suggested that one right is "superior" or "greater" than the other, nor is there any support in our cases for the notion that because a Sixth Amendment right may be involved, it is more difficult to waive than the Fifth Amendment counterpart. 487 U.S. at 297-298. 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 NINA GOODMAN Attorney JULY 1990 /1/ Because the district court held that petitioner had made a valid waiver of his Sixth Amendment rights, it concluded that it need not consider "the government's contention that the casual and congenial conversation between Agent Gilbride and (petitioner) during the drive from Lakewood to Camden could not reasonably be construed as interrogation." Pet. App. 15b. /2/ The court of appeals also found that petitioner's statement that he "was going to get a lawyer" did not constitute a request for counsel; the court concluded that petitioner "knew how to get a lawyer and * * * knew that he wanted one at a later time, after he attempted to get information out of Gilbride." Pet. App. 13a. /3/ Petitioner concedes (Pet. 10) that he "did not formally request counsel" after being advised of his Miranda rights. Accordingly, he does not seek to rely on the prophylactic rule announced in Michigan v. Jackson, 475 U.S. 625 (1986), that once a defendant who has been charged with a crime requests the assistance of counsel, any subsequent waiver of his Sixth Amendment rights in response to police-initiated interrogation is presumed invalid. Id. at 636. /4/ In Moran, the Court rejected the defendant's Sixth Amendment claim because the questioning that elicited the challenged statements occurred before the "formal initiation of adversary judicial proceedings," 475 U.S. at 432, but stated that "once the (Sixth Amendment) right has attached, it follows that the police may not interfere with the efforts of a defendant's attorney to act as a 'medium between (the suspect) and the State' during the interrogation." Id. at 428 (quoting Maine v. Moulton, 474 U.S. 159, 176 (1985)). In Patterson, the Court noted that not all "Sixth Amendment challenges to the conduct of postindictment questioning will fail whenever the challenged practice would pass constitutional muster under Miranda. For example, we have permitted a Miranda waiver to stand where a suspect was not told that his lawyer was trying to reach him during questioning; in the Sixth Amendment context, this waiver would not be valid." 487 U.S. at 296 n.9. /5/ Indeed, this Court's decisions make clear that a defendant's right to choose whether or not to speak to police without counsel is a personal right that can be invoked only by the defendant himself. As the Court explained in Patterson. Preserving the integrity of an accused's choice to communicate with police only through counsel is the essence of Edwards (v. Arizona, 451 U.S. 477 (1981)) and its progeny -- not barring an accused from making an initial election as to whether he will face the State's officers during questioning with the aid of counsel, or go it alone. If an accused "knowingly and intelligently" pursues the latter course, we see no reason why the uncounseled statements he then makes must be excluded at his trial. 487 U.S. at 291; see Michigan v. Harvey, 110 S. Ct. at 1182 ("the Sixth Amendment does not disable a criminal defendant from exercising his free will"). In this case, the lower courts found that petitioner was a knowledgeable defendant who made a deliberate decision to speak to Agent Gilbride without counsel in an effort to obtain information about who had betrayed him to the police. An attorney retained without a defendant's knowledge or authorization may not nullify the defendant's otherwise valid waiver of his Sixth Amendment rights, even if the attorney seeks to act in the defendant's best interests.