EUGENE GRIFFIN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6317 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals, Pet. App. A, is reported at 914 F.2d 269. JURISDICTION The judgment of the court of appeals was entered on August 23, 1990. The petition for a writ of certiorari was filed on November 21, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly admitted into evidence petitioner's post-arrest statement to his parole officer. STATEMENT After a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g) (Count 1), and possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a) (Count 2). The district court enhanced petitioner's sentence under 18 U.S.C. 924(e)(1) (Supp. V 1987) because it determined that petitioner had three previous convictions for violent felonies within the meaning of 18 U.S.C. 924(e)(2)(B) -- five Georgia burglary convictions and one Georgia murder conviction. Pet. 9-10. The district court therefore sentenced petitioner to life imprisonment on the firearm conviction and to a consecutive 20-year term of imprisonment on the drug conviction. 1. On May 19, 1987, petitioner, who was driving a Ford Pinto, failed to stop for a school bus that was loading children in front of an elementary school. Atlanta police officer Mark Stillman stopped petitioner's car. Petitioner remained behind the wheel of his car and made a "hunching motion with his back," as if he was either picking up or concealing something. Stillman ordered petitioner out of his car. Petitioner was abnormally nervous and was shaking visibly. When petitioner was unable to produce a driver's license, Stillman made an attempt by radio to verify whether petitioner had a valid license. Because of petitioner's agitated state, Stillman handcuffed him while awaiting the driver's license report. Gov't C.A. Br. 2-3; Pet. 8. Suspecting that the car was stolen, Stillman went to the front of the car to examine the steering column. Looking inside the car, Stillman saw a purse containing "glassine-dope type bags" on the seat next to petitioner, and a handgun on the floorboard of the car at the foot of the driver's seat. R. 8-73. Stillman picked up the handgun and asked "What is this?" Petitioner immediately ran from the scene. Stillman apprehended him nearby. Gov't C.A. Br. 3; Pet. 8-9. Stillman placed petitioner in his police car and advised him of his Miranda rights. Petitioner indicated that he understood his rights. R. 8-70. Stillman then asked to whom the gun and drugs belonged. Petitioner replied that he had purchased the handgun that morning for $150, and that the cocaine in the bag was his as well. Gov't C.A. Br. 4; R. 9-80. Petitioner stated, however, that he would rather not say where he had bought the gun. R. 8-72; Gov't C.A. Br. 4; Pet. 9. One week after his arrest, while petitioner was still in custody, petitioner was interviewed by his state parole officer. During the interview, petitioner told the parole officer that the cocaine and gun were his, and that he had purchased the gun for $150 on the morning of his arrest. Petitioner refused to reveal the source of the drugs or the gun. Rather, petitioner indicated that he wished to trade that information for a reduction in his sentence. Gov't C.A. Br. 4; Pet. 9. 2. Following a hearing on the first day of trial, the district court ruled that petitioner's statement to Officer Stillman was admissible, but reserved judgment on the admissibility of petitioner's statement to his parole officer. Pet. 10-11. The court noted, however, that (t)here is absolutely nothing oppressive in the evidence on (the parole officer's) interview, nothing improper, nothing shocking to the conscience, nothing that, in the ordinary sense of the word would violate due process. And (petitioner), according to the evidence, was rather intent on cooperating with the authorities so as to -- so as hopefully to earn some consideration on his sentence, which indicates that he had at that time made a decision even to dispose of the case by a voluntariness plea. R. 8-38 to 8-39. During cross-examination of Officer Stillman, petitioner's counsel insinuated that the prosecutor had coached Stillman in his testimony, and that any fact not contained in Stillman's police report of petitioner's arrest indicated either a faulty report or a faulty memory. R. 8-81 to 8-83. After eliciting that petitioner's statement to Stillman had not been tape recorded, and that petitioner had not signed a written waiver of his Miranda rights, counsel remarked: "So really, all we have is your recollection of what he told you, correct?" R. 8-93. The following day, the district court suppressed petitioner's statement to his parole officer. R. 9-5. The court based its ruling on the failure of the parole officer to remind petitioner of his Miranda rights, and on the government's failure to show that petitioner knew that he did not have to speak to his parole officer when being interviewed in custody. Id. at 9-5 to 9-6. The court found that in such situations "the law presumes compulsion." Ibid. In so ruling, however, the court stated: I regret that decision in this case because the defense has sought to impugn the integrity of the arresting officer's testimony as to the accuracy of the confession. Of course, there is evidence that there was a second confession. R. 9-6. During presentation of the defense case, a defense witness testified that the color of the car that petitioner was driving at the time of his arrest was red. R. 9-53 to 9-54. This testimony contradicted Officer Stillman's testimony on direct examination that the car was blue. R. 8-85. In rebuttal, the government recalled Stillman for the sole purpose of clarifying the color of the car. Stillman testified that at the time he filled out the police report, he had listed the car as red, not as blue, as he had previously testified. R. 9-58 to 9-59. On cross-examination, petitioner's counsel elicited that Stillman had been mistaken about the color of the car, and then asked a series of questions regarding other perceived mistakes that Stillman allegedly had made in his testimony. R. 9-59 to 9-62. At the conclusion of petitioner's cross-examination of Stillman, the government moved the court to allow it to introduce petitioner's statement to his parole officer in order to rebut the inference that petitioner had not admitted to Stillman that he owned the gun and the cocaine that had been found in his car. R. 9-62 to 9-63. In response to an inquiry from the court, petitioner's counsel acknowledged that a part of his defense was to attack the truthfulness of Stillman's testimony with reference to petitioner's admission. R. 9-65. The court then ruled that the government in rebuttal could introduce petitioner's statement to his parole officer. Ibid. The court held that by leaving the jury with the impression that there was no corroboration for Stillman's testimony concerning petitioner's admission, counsel had misled the jury. Id. at 9-66 to 9-71. The court found its ruling to be a logical extension of this Court's holding in Harris v. New York, 401 U.S. 222 (1971), that a testifying defendant may be impeached with voluntary and reliable statements elicited in violation of the Miranda requirements. Id. at 9-67. The parole officer then testified that petitioner had admitted during his interview with him that the gun and cocaine found in the car at the time of his arrest were his, and that he had purchased them that morning. R. 9-74 to 9-76. 3. On appeal of his convictions, petitioner argued that the district court improperly admitted his statement to his parole officer because it was not voluntary and because it had not been immediately preceded by Miranda warnings. The court of appeals, in a per curiam order, summarily affirmed petitioner's convictions. Pet. App. A. ARGUMENT Petitioner argues that the district court erred in admitting his statement to his parole officer for impeachment purposes because it was not voluntary and because he himself had not testified at trial. Pet. 14-18. 1. Because petitioner's statement to his parole officer could properly have been admitted during the government's case-in-chief to establish petitioner's guilt, it was not error to admit it for the purpose of impeachment. a. At the time of petitioner's arrest, the record establishes that he had been advised of his Miranda rights, that he understood those rights, and that he knowingly and voluntarily decided not to exercise them. It is undisputed that Officer Stillman advised petitioner of his Miranda rights and that petitioner indicated that he understood those rights. Petitioner then informed Officer Stillman that he owned the gun that was found in his car, having purchased it that morning for $150, and that the cocaine was also his. However, he refused to tell Stillman who had sold him the gun. The parole officer was not required to readvise petitioner of his Miranda rights prior to requestioning him about the events surrounding his arrest. It is settled that once a suspect has knowingly and intelligently waived his Miranda rights, he need not be continually advised of those rights. "(R)epeated warnings are not necessary to a finding that a defendant, with full knowledge of his rights, knowingly and intelligently waived them." Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir. 1975), cert. denied, 425 U.S. 950 (1976); see Ballard v. Johnson, 821 F.2d 569, 571-572 (11th Cir. 1987); Evans v. McCotter, 790 F.2d 1233, 1238 (5th Cir.), cert. denied, 479 U.S. 922 (1986); Martin v. Wainwright, 770 F.2d 918, 930-931 (11th Cir. 1985), modified on other grounds, 781 F.2d 185, cert. denied, 479 U.S. 909 (1986); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S. 1067 (1985); United States v. Anthony, 474 F.2d 770, 773 (5th Cir. 1973) (per curiam); Miller v. United States, 396 F.2d 492, 496 (8th Cir. 1968), cert. denied, 393 U.S. 1031 (1969); Maguire v. United States, 396 F.2d 327, 331 (9th Cir. 1968), cert. denied, 393 U.S. 1099 (1969). To the contrary, the lapse of time between the giving of the Miranda warnings and the defendant's statements are but one factor to consider in determining the validity of a waiver of Miranda rights. United States ex rel. Patton v. Thieret, 791 F.2d 543, 548 (7th Cir.), cert. denied, 479 U.S. 888 (1986). Thus, "(t)he significance of (the) elapsed time must be assessed in view of (the defendant's) knowledge and conduct and other relevant circumstances." Stumes v. Solem, 752 F.2d at 320. Here, the circumstances plainly demonstrate that although one week had passed since he had been advised of his Miranda rights, petitioner was well aware of those rights at the time he spoke to his parole officer and that he voluntarily and knowingly waived them. First, petitioner was no stranger to the criminal justice system, having as he did five burglary convictions and one murder conviction. Second, petitioner's actions demonstrate that he clearly understood his rights under Miranda. When initially advised of his Miranda rights at the time of his arrest, petitioner refused to divulge from whom he had purchased the gun that was found in his car. One week later, petitioner persisted in his refusal to divulge to his parole officer the source of either the gun or the cocaine. Instead, he indicated his intention to trade that information for a reduction in his sentence. Petitioner's selective exercise of his Miranda rights is irresistible evidence that he knew of their existence. In circumstances similar to petitioner's, courts have held that defendants knowingly and voluntarily waived their Miranda rights. See United States ex rel. Patton, 791 F.2d at 548; Stumes v. Solem, 752 F.2d at 320. b. Petitioner argues that his confession was coerced and thus could not be used for any purpose. Pet. 14-16. But the district court did not suppress petitioner's statement to his parole officer because it was the product of constitutionally-impermissible coercion, as petitioner suggests. Rather, the court suppressed the statement because it believed the statement to have been obtained in violation of Miranda. R. 8-38. Indeed, the court found that, absent the technical violation of Miranda, there was nothing involuntary about petitioner's statement. "There clearly is absolutely nothing oppressive in the evidence of (the parole officer's) interview, nothing improper. Nothing shocking to the conscience, nothing that, in the ordinary sense of the word would violate due process. And (petitioner), according to the evidence, was rather intent on cooperating with the authorities so as to -- so as hopefully to earn some consideration on his sentence, which indicates that he had at that time made a decision even to dispose of the case by a voluntariness plea." Id. at 8-38 to 8-39. Absent the presumption of compulsion that applies when there has been a failure to administer Miranda warnings, the question as to voluntariness is "whether the will of the defendant ha(s) been overborne so that the statement was not his free and voluntary act, and that question (is) to be resolved in light of the totality of the circumstances." Procunier v. Atchley, 400 U.S. 446, 453 (1971); see Oregon v. Elstad, 470 U.S. 298, 307-308 (1985) ("Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, 'the primary criterion of admissibility (remains) the "old" due process voluntariness test'"); id. at 318. Because petitioner's statement to his parole officer was not obtained in violation of Miranda, the sole question is whether petitioner's will was overborne so that his statement was not his "free and voluntary" act. The record fully supports the district court's finding that there was nothing oppressive or coercive in the manner in which the statement was obtained. 2. Even if petitioner's statement to the parole officer should have been preceded by Miranda warnings, any error in admitting that statement was harmless beyond a reasonable doubt. /1/ To begin with, petitioner's statement to the parole officer was merely cumulative and corroborative of his earlier confession to Officer Stillman. In addition, the evidence against petitioner was overwhelming. At the time of his arrest, petitioner was the sole occupant of the car. The cocaine was found in an open bag next to him, and the gun was found at his feet. Petitioner, after being advised of his Miranda rights, admitted that the gun and the cocaine were his. Admission of the statement to the parole officer was at most harmless error. See Howard v. Pung, 862 F.2d 1348, 1351 (8th Cir. 1988), cert. denied, 109 S. Ct. 3247 (1989); United States v. Johnson, 816 F.2d 918, 923 (3d Cir. 1987); Bryant v. Vose, 785 F.2d 364, 367 (1st Cir.), cert. denied, 477 U.S. 907 (1986); Martin v. Wainwright, 770 F.2d at 932. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney FEBRUARY 1991 /1/ Because petitioner's Miranda rights were not violated and the alleged violation would have been harmless in this case in any event, there is no need for the Court to consider whether the court of appeals properly relied on Harris v. New York, 401 U.S. 222 (1971), in the peculiar circumstances of this case. In Harris, the Court held that the government may impeach a testifying defendant using voluntary and reliable statements elicited in violation of the Miranda requirements. However, in James v. Illinois, 110 S. Ct. 648 (1990), the Court refused to expand the class of impeachable witnesses from the defendant to all defense witnesses. Here, the purpose of the admission of the statement at issue was to rehabilitate the testimony of an impeached government witness concerning an admission made to that witness by the defendant. By contrast, in James the statement at issue was admitted to impeach the testimony of a defense witness -- an extension of Harris that would sweep much more broadly.