EARNESTINE MACK, PETITIONER V. UNITED STATES OF AMERICA ALBERT RAY MACKLIN, PETITIONER V. UNITED STATES OF AMERICA No. 89-7795, 89-7811 In The Supreme Court Of The United States October Term, 1990 On Petitions For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Memorandum For The United States In Opposition Petitioners contend that the court of appeals erred in reversing an order suppressing their confessions as evidence. On September 12, 1988, petitioners were indicted by a federal grand jury sitting in the Western District of Tennessee. They were charged with forging the endorsement of the payee on a United States Treasury check, in violation of 18 U.S.C. 510. Petitioners moved to suppress statements they made to federal agents. The evidence at the suppression hearing showed that Secret Service agents, investigating a forged endorsement on a United States Treasury check, questioned petitioners about their involvement in the forgery. The agents questioned them first at petitioners' home and then at the agents' office where petitioners appeared on their own volition. On each occasion, the agents advised petitioners that they were not under arrest and were free to leave. An expert witness testified that petitioners were mildly retarded and had difficulty understanding instructions. 89-7795 Pet. App. 12-14. The district court suppressed the confessions. The court concluded that petitioners should not have been questioned outside the presence of counsel and that they should have been read their rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to questioning. The court ruled that the confessions were involuntary because petitioners could not protect their rights without assistance from counsel and that they could not appreciate the consequences of confessing. 89-7795 Pet. App. 14. The court of appeals reversed. 89-7795 Pet. App. 11-19. The court held that the agents were not required to advise petitioners of their Miranda rights, because petitioners were not in custody during the questioning. The court also found that petitioners had the capacity to make admissible confessions and that their confessions were not involuntary. Petitioners contend (89-7795 Pet. 6-9; 89-7811 Pet. 12-18) that the court of appeals erred in reversing the district court's findings that petitioners' mental disability incapacitated them from making voluntary statements, absent their receiving and comprehending their Miranda rights. Whatever the merits of petitioners' contentions, they are not presently ripe for review by this Court. The court of appeals' decision places petitioners in precisely the same position they would have occupied if the district court had denied their motions to suppress. If petitioners are acquitted following a trial on the merits, their claims will be moot. If, on the other hand, petitioners are convicted and their convictions are affirmed on appeal, they will then be able to present their contentions to this Court, together with any other claims they may have, in a petition for a writ of certiorari seeking review of the final judgment against them. Accordingly, review of the court of appeals' decision would be premature at this time. /*/ It is therefore respectfully submitted that the petitions for a writ of certiorari should be denied. KENNETH W. STARR Solicitor General JULY 1990 /*/ Because this case is interlocutory, we are not responding on the merits to the question presented by the petitions. We will file a response on the merits if the Court requests.