# Roberts v. United States > Supreme Court of the United States · April 15, 1980 · 445 U.S. 552 URL: https://www.frixlaw.com/law-library/cases/9427851 ## Case - **Full name:** Roberts v. United States - **Court:** Supreme Court of the United States - **Decided:** April 15, 1980 - **Citations:** 445 U.S. 552; 100 S. Ct. 1358; 63 L. Ed. 2d 622; 1980 U.S. LEXIS 93 - **Precedential status:** Published - **Opinion:** Concurrence by Brennan - **Judges:** Powell, Burgee, Brennan, Stewart, White, Blackmun, Rehnquist, Stevens, Marshall - **Cited by:** 634 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9427851 ## How later opinions describe it (automated extraction) - holding that “the District Court properly considered, as one factor in imposing sentence, the petitioner’s refusal to cooperate with officials investigating a criminal Carter does not allege any violation of a firmly established statutory right that 2 would overcome an appella… - finding “no such misinformation [of constitutional magnitude]” where the “sentencing court relied upon essentially undisputed facts,” including “that petitioner rebuffed repeated requests for his cooperation over a period of three years” - concluding that a defendant’s failure to cooperate “protected his former partners in crime” and that “[f]ew facts available to a sentencing judge are more relevant to the likelihood that a defendant will transgress no more” (cleaned up) - holding that a defendant properly invokes his Fifth Amendment rights by informing law enforcement that he is refusing to provide information either “based upon the right to remain silent or the fear of self-incrimination” - explaining that Miranda “protects] persons who, exposed to [coercive] interrogation without the assistance of counsel, otherwise might be unable to make a free and informed choice to remain silent” ## Opinion text Mr. Justice Brennan, concurring. I join the Court’s opinion. The principal divisive issue in this case is whether petitioner’s silence should have been understood to imply continued solicitude for his former criminal enterprise, rather than assertion of the Fifth Amendment right against self-incrimination or fear of retaliation. I agree with the Court that the trial judge cannot be faulted for drawing a negative inference from petitioner’s noncooperation when petitioner failed to suggest that other, neutral, inferences were available. And because the Government questioning to which he failed to respond was not directed at incriminating him, petitioner may not stand upon a Fifth Amendment privilege that he never invoked at the time of his silence. See United States v. Mandujano, 425 U. S. 564, 589-594 (1976) (Brennan, J., concurring in judgment); Garner v. United States, 424 U. S. 648, 655-661 (1976); Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927). * *563 Nevertheless, the problem of drawing inferences from an ambiguous silence is troubling. As a matter of due process, an offender may not be sentenced on the basis of mistaken facts or unfounded assumptions. Townsend v. Burke, 334 U. S. 736, 740-741 (1948); see United States v. Grayson, 438 U. S. 41, 55 (1978) (Stewart, J., dissenting) (collateral inquiry may be required before sentence is enhanced because of trial judge’s unreviewable impression that defendant perjured himself at trial). It is of comparable importance to assure that a defendant is not penalized on the basis of groundless inferences. At the least, sentencing judges should conduct an inquiry into the circumstances of silence where a defendant indicates before sentencing that his refusal to cooperate is prompted by constitutionally protected, or morally defensible, motives. Furthermore, especially where conviction is based upon a guilty plea, it may be advisable for trial judges to raise the question of motive themselves when presented with a prosecutorial recommendation for severity due to an offender’s noncooperation. During the Rule 32 allocution before sentencing, Fed. Rule Crim. Proc. 32 (a)(1), the defendant could be asked on the record whether he has a reasonable explanation for his silence; if a justification were proffered, the judge would then proceed to determine its veracity and reasonableness. Such an allocution procedure would reduce the danger of erroneous inference and provide a record to support sentencing against subsequent challenge. Cf. McCarthy v. United States, 394 U. S. 459, 466-467 (1969) (Fed. Rule Crim. Proc. 11 allocution procedure). When the Government actually seeks to incriminate the subject of questioning, failure to invoke the Fifth Amendment privilege is reviewed under the stringent “knowing and completely voluntary waiver” standard. United States v. Mandujano, 425 U. S., at 593 (Brennan, J., concurring in judgment). But when it is only the subject who is reasonably aware of the incriminating tendency of the questions, it is his responsibility to *563 put the Government on notice by formally availing himself of the privilege. Id., at 589-594 ; Garner v. United States, 424 U. S., at 655 . At that point, the Government may either cease questioning or continue under a grant of immunity. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9427851. Public record. Not legal advice.