FRANCISCA ROSA VELASQUEZ, PETITIONER V. UNITED STATES OF AMERICA No. 89-6156 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A22) is reported at 885 F.2d 1076. The opinion of the court of appeals in a companion case (Pet. App. A23-A28) is reported at 885 F.2d 1094. JURISDICTION The judgement of the court of appeals was entered on September 1, 1989. A petition for rehearing was denied on September 28, 1989. The petition for a writ of certiorari was filed on November 27, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's denial of a co-defendant's motion for judgement of acquittal resulted in a violation of petitioner's constitutional right to subpoena the testimony of a co-defendant. 2. Whether there was probable cause to arrest petitioner at the time she was detained. 3. Whether petitioner validly waived her rights under Miranda v. Arizona, 384 U.S. 436 (1966). STATEMENT After a jury trial in the United States District Court for the District of Delaware, petitioner was convicted of possession of more than five kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) (Count 1), and of conspiracy to possess more than five kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. 846 (Count 2). The district court sentenced petitioner to terms of 151 months' imprisonment on each count, to be served concurrently. The court of appeals, with one judge dissenting, affirmed petitioner's conviction on the possession count, but reversed the conviction on the conspiracy count. The district court then resentenced petitioner to a term of 151 months' imprisonment on Count 1, to be followed by a five-year period of supervised release. 1. At 11:10 a.m. on February 8, 1988, petitioner and a companion, Ivan Terselich, were driving a 1982 Ford with Florida license plates northbound on Interstate 95 in Delaware. After clocking the car at 62 m.p.h. in a 55 m.p.h. zone, Corporal Robert Durnan of the Delaware State Police pulled the car over. At Durnan's request, petitioner, who had been driving, identified herself and produced the Ford's registration card, which stated that the car's owner was Javier Perez of Miami, Florida. After petitioner got out of the Ford, Durnan explained to her that she was being stopped for speeding. In response to Durnan's questions, petitioner said she was traveling from Miami to Long Island for a vacation with her husband, who was seated in the car. Petitioner said that the Ford belonged to her cousin, but could not name the cousin. Petitioner was nervous and stuttered. Pet. App. A2. Durnan then spoke with Terselich, who was still sitting in the Ford. Terselich said that petitioner was not his wife, that he was traveling from Miami to New York on business, and that the car belonged to a friend named Lopez. Terselich also appeared nervous. Pet. App. A2. Durnan asked petitioner to accompany him into his patrol car. Once they were seated in the car, Durnan asked petitioner whether she had contraband in the Ford. She said she did not. Durnan asked for permission to search the Ford. Petitioner said, "Yes, you can search." Because Durnan detected a Spanish accent in petitioner's speech, he produced a written, Spanish-language "Consent to Search" form. He explained the form to petitioner, and she examined and signed it. Pet. App. A2. Returning to the Ford, Durnan asked Terselich to step out of the car. After searching the passenger compartment, Durnan opened the trunk. Almost immediately, he recognized a false floor, which led him to suspect that the trunk contained contraband in a secret compartment. It appeared to Durnan that he could not reach that compartment without removing the Ford's gas tank. Pet. App. A2-A3. Because he did not have the tools or facilities to do so, at about 11:20 a.m. he advised petitioner and Terselich that they were being detained under Delaware's two-hour detention statute, Del. Code Ann. tit. 11, Section 1902. The two were handcuffed and then transported, along with the Ford, to a state police station. At the station, petitioner was placed in a holding room near the main desk. Durnan then searched beneath the floor of the Ford's trunk and found a quantity of block packages. Upon closer inspection and testing, the 21 packages were found to contain a total of 21 kilograms of cocaine. Pet. App. A3. After discovering the cocaine, Durnan read petitioner a set of English-language Miranda warnings, stopping after each sentence to ask if she understood. Petitioner replied affirmatively to each question. Durnan also provided petitioner with a card containing Spanish-language Miranda warnings, which petitioner held and appeared to read. Durnan then contacted Agent William Glanz of the Drug Enforcement Agency (DEA). Pet. App. A3. Glanz arrived at the police station between 12:30 and 1:00 p.m. He identified himself to petitioner as a DEA agent and said he wanted to talk to her. Petitioner said that she did not want to be questioned and wanted to speak with a lawyer. The conversation ended. Pet. App. A3. One half hour later, when Durnan went to take petitioner to court for a bail hearing, she told Durnan she wanted to speak to Glanz. Thereafter, petitioner asked Glanz, "What is going to happen?" Glanz explained that a magistrate would set her bail, and that the mandatory minimum sentence for possession of more than five kilograms of cocaine was 10 years. Petitioner asked what would happen to Terselich. Believing that petitioner was initiating a conversation about the investigation and was thereby waiving the Miranda rights she had previously invoked, Glanz told her, falsely, that Terselich had been released after revealing to the authorities that the cocaine was petitioner's and that she was being paid $5,000 to drive the drugs north. /1/ Glanz asked her if she wanted to give Terselich her belongings, because he would be traveling south that evening. Pet. App. A4. When petitioner did not respond to these statements, Glanz asked if she would like to tell her version of the story. She asked what he wanted to know. Eventually Glanz asked how petitioner came to be driving a car containing a large amount of cocaine. She said that she had been paid $10,000 to drive the drugs north, was afraid to make the trip alone, and was paying Terselich $5,000 to accompany her. In response to a question about Terselich's knowledge of the drugs, she shook her head several times and said, "This is all my fault, this is all my fault." Glanz asked petitioner what she planned to do with the drugs when she reached New York. She said she was to call Miami to receive a New York phone number, and was then to call the New York number to arrange to transfer the drugs. Pet. App. A4. 2. In the district court, petitioner moved to suppress the cocaine and her statements to Glanz. The district court, finding that petitioner lacked standing to contest Durnan's search of the car and, in any event, had voluntarily consented to the search (Pet. App. A36), denied the motion to suppress the cocaine. /2/ With respect to petitioner's statements to Glanz, after advising the parties that it considered the matter "a very close question" (Pet. App. A50), the court found (id. at A51) that petitioner had initiated the conversation with Glanz by showing "a willingness and a desire for a generalized discussion about the investigation," Oregon v. Bradshaw, 462 U.S. 1039, 1045-1046 (1983) (plurality opinion), and that she had made "a voluntary and intelligent waiver (of her Miranda rights) before the lies were told to her by Glanz." Pet. App. A55. The court therefore denied the motion to suppress the statements. Pet. App. A44. 3. With one judge dissenting, the court of appeals affirmed petitioner's conviction on the possession count, but reversed her conviction on the conspiracy count. /3/ Finding that petitioner had voluntarily consented to Corporal Durnan's search of the Ford, the court concluded that the district court had correctly denied her motion to suppress the cocaine. Pet. App. A7. The court further found that at the moment Durnan detained petitioner and Terselich, he had a reasonable basis to believe that they were engaged in the interstate smuggling of contraband, most likely illegal drugs, and had sufficient probable cause to make an arrest. The court therefore ruled that Durnan's seizure of petitioner did not violate the Fourth Amendment, and refused to order the suppression of the cocaine and petitioner's statements to Agent Glanz on this ground. Pet. App. A8. /4/ Finally, although the court found that the district court had improperly applied the principles outlined in Oregon v. Bradshaw, supra, by determining that petitioner had waived her rights under Miranda v. Arizona, 384 U.S. 436 (1966), at the point when she asked Glanz what would happen to her, it nevertheless concluded that shortly thereafter petitioner had voluntarily waived her right to counsel and her right to remain silent. The court reasoned that petitioner's question to Glanz about what would happen to Terselich satisfied the threshold requirement, as set forth in the Bradshaw plurality opinion, 462 U.S. at 1044-1046, that she initiate a conversation that "evince(d) a desire to discuss the case generally." Pet. App. A12. The court also concluded that, in the totality of the circumstances -- including petitioner's background, her understanding of the Miranda warnings when they were given to her, and her request to speak to Glanz, and despite Glanz's false statements about Terselich -- petitioner's waiver of her Miranda rights was knowing, intelligent, and voluntary. Pet. App. A12-A14 (citing Frazier v. Cupp, 394 U.S. 731, 739 (1969), and Miller v. Fenton, 796 F.2d 598, 607 (3d Cir.), cert. denied, 479 U.S. 989 (1986)). In dissent, Judge Stapleton, though joining the court's opinion in all other respects, disagreed with its conclusion that the holding in Miller v. Fenton, supra, that voluntariness is entirely a "legal" issue and therefore subject to plenary review, made a remand superfluous. Because, in his view, a determination by the district court of the voluntariness of petitioner's waiver of her Miranda rights would materially assist an appellate court in deciding the issue, he would have remanded for such a determination. Pet. App. A18-A20. ARGUMENT Petitioner contends (Pet. 13-16) that her Sixth Amendment right to subpoena witnesses was violated when the district court erroneously failed to grant her co-defendant's motion for a judgement of acquittal at the conclusion of the government's case; that Delaware's two-hour detention statute, Del. Code Ann. tit. 11, Section 1902 (1985) is unconstitutional; and that she did not validly waive her Miranda rights because her waiver was triggered by a DEA agent's deception. None of these claims warrants further review by this Court. /5/ 1. Petitioner initially contends (Pet. 13-14) that the district court, through its erroneous denial of Terselich's motion for judgement of acquittal, deprived her of her Sixth Amendment right to subpoena Terselich as a defense witness. This contention has no merit, and does not warrant review by this Court. This case does not present an occasion to decide whether a conviction must be overturned when the reversal on appeal of a trial court's erroneous denial of a motion to acquit effectively deprives a defendant of her Sixth Amendment right to present testimony in her favor. Petitioner has not made out a violation of her rights under the Sixth Amendment. "(M)ore than a mere absence of testimony is necessary to establish a violation" of that right. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1981). Rather, the testimony of which a defendant is deprived must be "testimony (that) would have been relevant and material and * * * vital to the defense." Ibid. (quoting Washington v. Texas, 388 U.S. 14, 16 (1967)). See also Rock v. Arkansas, 483 U.S. 44, 52 (1986) (citations omitted) ("the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call 'witnesses in his favor,' * * * (l)ogically include(s) (only) the accused's right to call witnesses whose testimony is 'material and favorable to his defense'"). Petitioner has not established that she was deprived of favorable testimony by the trial judge's denial of Terselich's motion of acquittal. First, petitioner can only speculate about the content of the testimony she would have elicited from Terselich. It was, of course, Terselich's contradictory account of the purpose and circumstances of his trip with petitioner that contributed to the probable cause to arrest petitioner. Petitioner thus had no guarantee -- indeed, she did not even have reason to believe -- that any testimony given by Terselich would tend to exonerate her. Petitioner thus falls far short of making a "plausible showing of how (Terselich's) testimony would have been both material and favorable to (her) defense." United States v. Valenzuela-Bernal, 458 U.S. at 867. See also id. at 867 n.7 (noting that Fed. R. Crim. P. 17(b) requires the Government to subpoena witnesses on behalf of indigent defendants, but only "upon a satisfactory showing * * * that the presence of the witness is necessary to an adequate defense"). Second, it is speculative to suggest that the jury would have credited any testimony Terselich would have given, even if that testimony was favorable to petitioner. On evidence that the court of appeals subsequently determined to be insufficient, the jury found Terselich guilty of a serious narcotics offense and a related conspiracy offense. Given the jury's appraisal of his conduct, it is probable that the jury would have viewed with extreme skepticism any testimony provided by him after his motion for a judgment of acquittal had been granted. Cr. Sharlow v. Israel, 767 F.2d 373, 378-379 (7th Cir. 1985), cert. denied, 475 U.S. 1022 (1986) (exclusion of exculpatory hearsay testimony not Sixth Amendment violation where testimony failed to meet any criteria for reliability or truthfulness). And, given that it would almost certainly be inconsistent with statements Terselich gave to Corporal Durnan before he was arrested, any testimony by Terselich that would tend to exonerate petitioner would render Terselich vulnerable to impeachment under Fed. R. Evid. 613, and thus would further diminish the value of such testimony to petitioner. Finally, although petitioner might have subpoenaed Terselich, she could not compel him to testify. Roussell v. Jeane, 842 F.2d 1512, 1516 (5th Cir. 1988) (defendant's Sixth Amendment right to compulsory process does not overcome witness's Fifth Amendment privilege); United States v. Paris, 827 F.2d 395, 399 (9th Cir. 1987) (same). At trial, Terselich invoked his Fifth Amendment privilege against self-incrimination (see Pet. 13). It is speculative to suppose that if his motion for a judgement of acquittal had been granted when the government rested he would have waived that privilege in order to testify for petitioner. While the double jeopardy clause would have protected him against a revival of the charges of which he was acquitted, he was still vulnerable to perjury charges if he testified falsely and to charges on other, unrelated offenses if evidence of those crimes emerged from his testimony. In the circumstances, a waiver by Terselich of his Fifth Amendment privilege would have been most unlikely. In short, the record provides no support for petitioner's claim that her Sixth Amendment rights were violated. Her contention to the contrary does not warrant this Court's review. /6/ 2. Petitioner renews her substantive claim (Pet. 14-15) that Del. Code Ann. tit. 11, Section 1902 (1985) is unconstitutional, and that because she was unconstitutionally taken into custody pursuant to this statute, the cocaine discovered during the search of the Ford and her statements to Agent Glanz -- the fruits of this allegedly unlawful detention -- must be suppressed. The court of appeals correctly held that the constitutionality of the Delaware statute was irrelevant to the admissibility of the cocaine because Durnan ahd probable cause to arrest petitioner. Thus, the case prsents no occasion for consideration of the constitutional validity of the Deleware Statute. The record reveals that at the time Corporal Durnan placed petitioner under "two-hour detention," he knew that: (1) petitioner and Terselich told him conflicting stories about the purpose of their trip and the nature of their relationship; (2) petitioner and Terselich both appeared nervous as they answered his questions; (3) petitioner told him the Ford belonged to her cousin, but could not name the cousin; (4) petitioner and Terselich were on a long-distance trip from Miami, a major drug importation area, to New York; and (5) the car petitioner was driving had a false floor in its trunk and appeared to have been specially modified to carry contraband in a secret compartment. On these facts, the court of appeals correctly found that Durnan had a reasonable basis to believe that petitioner and Terselich were smuggling contraband, most likely illegal drugs, and that he therefore had probable cause to arrest petitioner. The court of appeals thus had ample reason to conclude that Durnan's seizure of petitioner did not violate the Fourth Amendment, and accordingly had no occasion to consider petitioner's claim that Del. Code Ann. tit. 11, Section 1902 (1985) is unconstitutional. Even if the court of appeals had found the Delaware statute unconstitutional, this determination would not have precluded the government from showing probable cause as a justification for petitioner's detention. See Florida v. Rover, 460 U.S. 491, 507 (1983) (plurality opinion) (although officers did not believe they had probable cause and proceeded on Terry stop rationale, State was not precluded from justifying defendant's custody by proving probable cause); United States v. Hawkins, 811 F.2d 210, 214-215 (3d Cir. 1987) (pretextual justification will not invalidate objectively reasonable stop); United States v. Belle, 593 F.2d 487, 496-497 (3d Cir.) (initial non-arrest characterization of detention does not preclude review of record for probable cause to support arrest), cert. denied, 442 U.S. 911 (1979). In the present case, the court of appeals correctly concluded that when Corporal Durnan placed petitioner under temporary detention, he had probable cause to arrest her as well. Thus, the subsequent search was not "tainted" by an illegal detention, and the evidence obtained was not, for that reason, inadmissible. 3. Finally, petitioner contends (Pet. 15-16) that because her waiver of her Miranda rights was triggered by a DEA agent's deception, the waiver was invalid. The contention is without merit, and presents a fact-bound issue that does not warrant this Court's consideration. An accused person in custody who has invoked his right to have a lawyer present before answering questions is generally not subject to further interrogation "unless the accused himself initiates further communications, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-485 (1981). As subsequently articulated by a plurality of this Court in Oregon v. Bradshaw, 462 U.S. at 1045-1046, it is not a violation of Miranda to resume an interrogation so long as (1) the accused person, not the authorities, initiates the conversation in question, and (2) after the suspect has initiated the conversation, he knowingly and voluntarily waives his rights to counsel and to remain silent. The plurality in Bradshaw held that the requisite "initiation" could be established by questions that "evinced a willingness and a desire for a generalized discussion about the investigation," but not "merely (by) a necessary inquiry arising out of the incidents of the custodial relationship," 462 U.S. at 1046, such as a request for a drink of water or to use the telephone. 462 U.S. at 1045. In the present case, half an hour after petitioner had been given her Miranda warnings and had initially declined to speak to DEA Agent Glanz, she told Corporal Durnan to call the agent back. In the interview room, she asked Glanz, "What is going to happen?" Agent Glanz explained that a magistrate would set bail for her, and that she faced a possible mandatory minimum sentence of 10 years. Petitioner then asked what would happen to Terselich. /7/ Glanz falsely told her that Terselich had incriminated her. The court of appeals correctly concluded that petitioner's initial inquiry to a federal narcotics investigator showed petitioner's desire to enter into "a generalized discussion about the investigation," and satisfied the first leg of the Bradshaw test. See 462 U.S. at 1042 (requisite initiation of conversation shown when suspect asked, "Well, what is going to happen to me now?"). The court also correctly found that the subsequent waiver was knowing and intelligent (Pet. App. A12-A13). The determination whether a suspect has knowingly and voluntarily waived his Miranda rights to counsel and to remain silent is made in the totality of the circumstances, Edwards v. Arizona, 451 U.S. at 486 n.9, and those circumstances include the suspect's background, experience, and conduct. See Bradshaw, 462 U.S. at 1046. The court observed that at the time of the waiver petitioner was a mature, 43-year old adult, who had graduated from college in Columbia and worked as a journalist there, who spoke and understood English and had lived in the United States for 15 years, and who had worked in Miami as a cosmetologist. She evidently had understood the Miranda warnings given her by Corporal Durnan because she had invoked her rights to counsel and to remain silent half an hour before she made the incriminating statements to Agent Glanz. The court of appeals thus had good reason to conclude that petitioner had "a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it" (Moran v. Burbine, 475 U.S. 412, 421 (1986)), and that her waiver was therefore knowing and intelligent. That waiver, as the court of appeals also found, was voluntary as well. While such a waiver, to be voluntary, must be "the product of a free and deliberate choice rather than intimidation, coercion or deception" (Moran v. Burbine, 475 U.S. at 421), lies told by the police do not necessarily render a waiver involuntary, but are simply a factor for a reviewing court to consider in determining whether, in the totality of the circumstances, a waiver was voluntary. Frazier v. Cupp, 394 U.S. 731, 739 (1969) (voluntariness of confession); see Miller v. Fenton, 796 F.2d at 607 (same). Here Glanz's false statements were the sole circumstance supporting a finding that petitioner's waiver was involuntary. She had been in custody for less than two hours when she made the incriminating statements. She had not been threatened or ill-treated, nor had any promises been made to her. She had been given Miranda warnings only half an hour before she asked to speak with Glanz, and she had understood those warnings well enough to invoke her rights to counsel and to reamin silent. Cf. Frazier v. Cupp, 394 U.S. at 739 (fact that defendant had received "warnings of his constitutional right()" to remain silent prior to confession is "a circumstance quite relevant to the finding of voluntariness"). In light of these circumstances and of petitioner's age, intelligence, and maturity, the court of appeals correctly found (Pet. App. A13-A14) that Glanz's deceptions, although they created a false impression of the strength of the government's evidence of petitioner's guilt and may have partially influenced her statements, had nonetheless not overcome petitioner's will or her capacity for self-control. Accordingly, those deceptions, "while relevant, (were) insufficient * * * to make this otherwise voluntary confession inadmissible" (Frazier v. Cupp, 394 U.S. at 739). Thus, the court of appeals did not err in holding that, in the totality of the circumstances (Bradshaw, 462 U.S. at 1046; Edwards v. Arizona, 451 U.S. at 486 n.9), petitioner's waiver of her rights to counsel and to remain silent was knowing, intelligent, and voluntary. Petitioner suggests (Pet. 15-16) that review of this case is necessary to resolve an "important question of federal law:" whether the voluntariness of a waiver of Miranda rights is a question of law to be decided de novo by the court of appeals, or a question of fact on which the appellate court must defer to the findings of the district court. Review to address this issue is unwarranted, for two reasons. First, the court of appeals correctly applied, in this context, this Court's previous ruling in Miller v. Fenton, 474 U.S. 104, 111 (1985) that the voluntariness of a confession is a legal question requiring independent federal determination. See also Miller v. Fenton, on remand, 796 F.2d 598 (3d Cir.), cert. denied, 479 U.S. 989 (1986). /8/ Although the Court in Miller noted that it had no occasion to address the issue of deference to trial court findings "concerning the validity of a waiver (of Miranda rights)" 474 U.S. at 108 n.3, there is nothing in the discussion in Miller to suggest any reason why the question of voluntariness of a waiver of constitutional rights should not also be considered a question of law subject to de novo review. In any event, there is no disagreement in the courts of appeals on this issue. Indeed, even in this case, the dissent agreed with the majority's fundamental conclusion that the voluntariness of petitioner's waiver, like the voluntariness of the confession in Miller v. Fenton, "was not a 'factual' issue, the resolution of which by (the trial court) must be 'presumed correct.'" Pet. App. A18. The sole source of disagreement was with the procedural implications of the standard of plenary review ratified by the majority. The majority, noting that district court determinations are not entitled to deference in this area (Pet. App. A11 n.8), did not think it necessary to remand the case to the district court for a determination of the voluntariness of petitioner's waiver of her Miranda rights. The dissent argued (Pet. App. A18-A20) that such a remand should be ordered because it would materially assist an appellate court to resolve the issue. At most, then, the dissent suggests the possibility of a disagreement within the Third Circuit over the proper application of this Court's holding, and its own, on remand, in Miller v. Fenton. Such a disagreement does not provide a basis for this Court's 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 FEBRUARY 1990 /1/ In an Order Amending Slip Opinion, dated October 2, 1988, the court of appeals struck from its opinion the sentence asserting that Glanz had told petitioner that Terselich had said that petitioner had been paid $5000 to drive the drugs north from Miami. See Pet. App. A22. However, the record reveals that Glanz did testify at the suppression hearing that he reported such a statement to petitioner, see Gov't C.A. Br. 30 (citing App. 399), and Judge Higginbothom referred to this testimony in the companion opinion of the court of appeals. See Pet. App. A25. /2/ The district court specifically rejected petitioner's arguments that (1) she was under arrest at the time she consented to the search, (2) she did not consent at all because she was psychologically incapable of doing so and, moreover, needed her glasses to understand the "Consent to Search" form, and (3) the search exceeded the scope of the consent. Pet. App. A38-A41. /3/ The reversal was prompted by the court's decision in the companion case of United States v. Terselich, 885 F.2d 1094 (3d Cir. 1989). See Pet. App. A23-A28. In Terselich, the court found that evidence insufficient to support the possession and conspiracy convictions of petitioner's companion. This finding resulted in a related finding that there was insufficient evidence for the jury to conclude that petitioner conspired with Terselich. Because the court could not conclusively ascertain whether the jury had based petitioner's conspiracy conviction on a finding that she had conspired with Terselich, and because the record showed a substantial likelihood that the jury had based the conspiracy conviction on that impermissible determination, the court of appeals reversed the conviction. Pet. App. A16-A17. /4/ Because of its disposition of this issue, the court of appeals did not reach petitioner's claim that Del. Code Ann. tit. 11, Section 1902 (1985) is unconstitutional. Pet. App. A8. See also Pet. App. A26 n.2. But cf. id. at A25 n.1 (stating, erroneously, in the companion case that the court of appeals in the instant case had held the Delaware two-hour detention statute unconstitutional). /5/ Petitioner raises (Pet. 1), but does not argue, four additional claims: (1) that the traffic stop of petitioner by Corporal Durnan was unconstitutional; (2) that petitioner was not competent to stand trial; (3) that the evidence against petitioner was insufficient to support her conviction; and (4) that petitioner's possession conviction should have been reversed because it was impossible to tell whether that conviction was based on impermissible grounds. The court of appeals explicitly considered and rejected the first three claims. See Pet. App. A6 n.6, A14-A15, A15-A16, and implicitly rejected the fourth -- which, in any event was not raised or argued below -- when it rejected her claim on the sufficiency of the evidence. Pet. App. A15-A16. /6/ In the related area of severance motions based on the need for a co-defendant's testimony, it is well settled that "(t)o establish a prima facie case for severance * * *, a movant must demonstrate: 1) a bona fide need for the testimony; (2) the substance of the testimony; (3) the exculpatory nature and effect of the testimony; and (4) the likelihood that the co-defendant will testify if the cases are severed." United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989) (collecting cases). See also e.g., United States v. Machado, 804 F.2d 1537, 1544 (11th Cir. 1986); United States v. Daly, 756 F.2d 1076, 1080 (5th Cir.), cert. denied, 474 U.S. 1022 (1985); United States v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984); United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983); United States v. Finkelstein, 526 F.2d 517, 523-524 (2d Cir. 1975), cert. denied, 425 U.S. 960 (1976); see generally 1 C. Wright, Federal Practice and Procedure, Section 225, at 832 (2d ed. 1982). In the present case, while petitioner might arguably satisfy the first of these requirements, she has not made the showing required to satisfy the other three criteria. /7/ The district court found that petitioner had made a voluntary and intelligent waiver of her Miranda rights when she asked this question, and as a result of its determination, declined to consider the effect of Glanz's deceptions on petitioner. Pet. App. A11. The Court of appeals rejected this conclusion as erroneous. Ibid. Because petitioner admitted her involvement in transporting the cocaine only after Glanz had lied to her about Terselich, the court of appeals reasonably concluded (Pet. App. A12) that petitioner's waiver of her Miranda rights took place after Glanz made his false statements. /8/ Although the Court in Miller considered the issue in the context of federal habeas review of a state court judgement, the Court noted that it was relying on earlier decisions that established "the independent-determination rule in confession cases" in the context of "direct appeal from state-court judgements." 474 U.S. at 110-111. See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978); Ashcroft v. Tennessee, 322 U.S. 143 (1944).