Opposition Brief — Gavin Yepa, Petitioner v. United States

Supreme Court briefJan 29, 2018

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No. 17-6542

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

GAVIN YEPA, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

KIRBY A. HELLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTION PRESENTED

Whether petitioner’s statements to police officers during the

execution of a search warrant of his person were spontaneous or

were the result of interrogation.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-6542

GAVIN YEPA, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A16) is

reported at 862 F.3d 1252.

JURISDICTION

The judgment of the court of appeals was entered on July 17,

2017.

The petition for a writ of certiorari was filed on October

16, 2017 (Monday). The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the District of New Mexico, petitioner was convicted of first-

degree murder in Indian Country, in violation of 18 U.S.C. 1111

and 18 U.S.C. 1153 (2006).

life imprisonment.

Pet. App. B1.

Id. at B2.

He was sentenced to

The court of appeals affirmed.

Id. at A1-A16.

On December 28, 2011, petitioner and two friends picked

up Lynette Becenti as she was walking along the side of the road.

Gov’t C.A. Br. 2-3.

The group drove to a liquor store and, after

petitioner bought a bottle of vodka, they ended up at petitioner’s

house where they continued to drink until about 8:30 p.m., when

everyone except petitioner and Becenti left. Id. at 4-5. Sometime

after 9:00 p.m., petitioner’s cousin, Rodney Adams, arrived at

petitioner’s house and saw Becenti lying on the floor with her

breasts exposed and pants pulled down. Id. at 6. He then witnessed

petitioner sexually assault Becenti by shoving a water bottle into

Becenti’s vagina.

Id. at 6-7; see Pet. App. A2.

Around midnight, petitioner went to a neighbor’s home and

told the neighbor that there was a woman at his house who was not

breathing.

Pet. App. A2.

Petitioner and the neighbor ran back to

petitioner’s house where the neighbor found Becenti’s dead body on

the floor, naked and covered with blood.

Ibid.

Petitioner

admitted that he had been trying to have sex with Becenti but

claimed that he did not remember what had happened.

Br. 8.

Gov’t C.A.

An autopsy determined that Becenti had died from a wound

from a shovel that had penetrated her body through her vagina into

her abdomen.

Pet. App. A2; Gov’t C.A. Br. 21-22.

Petitioner was arrested and advised of his Miranda rights.

Pet. App. A2.

Petitioner invoked his right to counsel, and he was

transported to the Jemez Pueblo Police Department for processing.

Ibid.

Agent Ben Bourgeois of the Federal Bureau of Investigation

obtained a warrant to search petitioner’s body.

Ibid.

The body

warrant “authorized photographing [petitioner], taking his clothes

for analysis, taking a blood sample for intoxication, and swabbing

areas of his body for DNA testing.”

Ibid.

The search took place in a room at the police department.

Pet. App. A2.

The search took “a bit more than 50 minutes” and

was audio recorded.

Ibid.

During the search, petitioner made

several statements to the officers.

Id. at A2-A3; see id. at A3-

A8 (describing the recording in detail).

For example, as the

officers were instructing petitioner about where to stand as they

took photographs of petitioner’s body (“Let me have you back up

against the wall a little bit more.”), petitioner stated that his

toes, feet, and face were “bloody.”

Id. at A5.

In another

instance, petitioner blurted out that “Oh, man, it got sick,” after

one of the officers told petitioner he would get petitioner the

water he had requested.

Id. at A7.

Petitioner said that he had

tried to have sex with Becenti, asked the officers whether they

believed he had killed her, and repeatedly asserted his innocence.

Id. at A3-A7.

In a largely inaudible exchange, Agent Bourgeois attempted to

clarify a reference by petitioner to “[t]hat chick.”

A7; see ibid. (“With who?”) (emphasis omitted).

Pet. App.

During that same

exchange, in response to petitioner’s comment that “we picked her

up,” Bourgeois and another officer asked petitioner, “Who were you

with?”

Ibid. (emphasis omitted).

Petitioner did not answer.

Ibid.

The officers concluded their search shortly thereafter.

Ibid.

Some statements during the search labeled as “inaudible”

appear to be in Towa, the language of the Jemez Pueblo.

Ibid.

“The record contains no translation of those portions.” Id. at A3.

Before

trial,

petitioner

moved

suppress

his

statements from the recording of his body search, arguing that

they were in response to interrogation by the officers.

A8.

The

petitioner’s

district

court

“statements

denied

during

the

motion,

execution

Pet. App.

finding

the

that

warrant for [his] person were spontaneous and were not the result

interrogation.”

Ibid.

The

court

further

found

that

petitioner’s “responses to the very few follow-up questions

* * *

were simply neutral efforts to clarify his spontaneous volunteered

statements, and did not constitute interrogation.”

Ibid.

The

court also found that the agents “were business-like but polite

toward

[petitioner]

all

times,”

and

found

“absolutely

evidence

* * *

of any implied or explicit threats or coercion or

any other form of law enforcement overreaching.”

trial,

petitioner’s

statements

were

Ibid.

admitted

into

evidence, along with the testimony of the witnesses who observed

the events described above.

Gov’t C.A. Br. 23, 35.

Forensic

evidence also established, among other things, that Becenti’s

blood

was

petitioner’s

clothing

and

that

petitioner’s

fingerprint was on the shovel that killed Becenti and was stained

with her blood.

Id. at 20-21, 35.

The jury found petitioner

guilty of first-degree murder in Indian Country, in violation of

18 U.S.C. 1111 and 18 U.S.C. 1153 (2006).

C.A.

Br.

The

imprisonment for life.

district

court

Pet. App. A2; Gov’t

sentenced

petitioner

Pet. App. B2.

The court of appeals affirmed.

Pet. App. A1-A16.

After

identifying five specific statements whose admission petitioner

challenged, the court stated that petitioner “must establish that

the challenged statements were (1) the result of words or actions

of law-enforcement officers (2) that constituted interrogation.”

Id. at A11.

The court then reviewed in detail each of the

statements and affirmed the district court’s determination that

they were not in response to interrogation. See, e.g., id. at A11A12 (petitioner’s statement acknowledging that “his toes, feet,

and face were bloody, and that he had abrasions on his body” was

not the product of Agent Bourgeois’s question at least ten minutes

earlier asking whether petitioner had “any scars,” “[m]arks,” or

“[a]nything like that”); id. at A12-A13 (agent’s comments that

petitioner was a “tough guy” and “not a real modest guy” referred

to petitioner’s “coping with the cold” and his “comfort with being

photographed”

and

did

not

constitute

interrogation

goad

petitioner into making inculpatory statements 16 to 29 minutes

later) (citation omitted).

argument

that

the

The court also rejected petitioner’s

officers’

interaction

with

him

constituted

interrogation because a reasonable officer would have considered

that petitioner was particularly vulnerable as a result of his

intoxication,

fatigue,

and

emotional

distress.

Id.

A13.

Finally, the court concluded that, although “there could be some

doubt” about whether the officer’s question “Who were you with?”

constituted interrogation, it did not need to resolve the issue

because petitioner did not answer that question.

Id. at A15.

ARGUMENT

Petitioner contends (Pet. 14-19) that the government has the

burden of demonstrating that a defendant’s statements were not the

result of interrogation by police officers.

Petitioner did not

adequately preserve that contention below, and the court of appeals

does not appear to have directly resolved it.

This case also would

be a poor vehicle for addressing that question, as the allocation

the

burden

here

did

not

alter

the

court

appeals’

determination that the district court properly denied petitioner’s

motion to suppress.

In any event, the decision below is correct;

does not implicate a conflict of authority among the courts of

appeals or state courts of last resort; and any evidentiary error

would have been harmless because overwhelming evidence established

petitioner’s guilt.

The

court

Further review is unwarranted.

appeals

correctly

determined

that

the

district court did not err in denying petitioner’s motion to

suppress.

When a suspect invokes his Fifth Amendment right to

counsel, later statements resulting from custodial interrogation

in the absence of counsel are generally inadmissible unless the

suspect himself initiates further communication with the police

and makes a knowing and intelligent waiver of his rights.

See

Minnick v. Mississippi, 498 U.S. 146, 150-151 (1990); Edwards v.

Arizona, 451 U.S. 477, 482-486 & n.9 (1981).

these

purposes,

limited

express

Interrogation, for

questioning

its

“functional equivalent,” namely, “words or actions on the part of

the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.”

Rhode Island

v. Innis, 446 U.S. 291, 300-301 (1980) (footnote omitted).

If a

defendant

law

“himself

initiates

further

communication”

with

enforcement, “nothing in the Fifth and Fourteenth Amendments would

prohibit

the

police

from

merely

listening

his

voluntary,

volunteered statements and using them against him at the trial.”

Edwards, 451 U.S. at 485.

For example, in Pennsylvania v. Muniz, 496 U.S. 582 (1990),

this Court held that the defendant’s incriminating remarks during

sobriety

testing

“interrogation.”

arrest

for

police

Id. at 605.

driving

under

station

were

not

part

He made those remarks following his

the

influence,

and

the

officer’s

statements during the testing (such as informing the defendant how

to conduct a breathalyzer test and informing him of the state’s

implied consent law) were “limited and focused inquiries” that

were “necessarily ‘attendant to’ the legitimate police procedure”

and

“were

not

incriminating

likely

response.”

perceived

Ibid.

(citation

calling

for

any

omitted);

see

id.

at 602-605.

this

case,

the

district

court

applied

those

settled

principles to the particular facts before it and determined that

petitioner’s

“statements

during

the

execution

the

warrant for [his] person were spontaneous and were not the result

of interrogation.”

Pet. App. A8 (citation omitted).

The court of

appeals then applied those same principles in reviewing that

determination,

and

correctly

affirmed.

considered

each

challenged statement in context and correctly concluded that the

officers did not interrogate petitioner after he invoked his right

to counsel and that petitioner’s statements were spontaneous.

the court explained, most of petitioner’s statements were not

responsive to questions or comments by the officers that were

identified by petitioner, many of which had been uttered many

minutes before.

See Innis, 446 U.S. at 301–302 (“[T]he police

surely cannot be held accountable for the unforeseeable results of

their words or actions.”).

Petitioner challenges (Pet. 20-23) the

court of appeals’ determinations about his interactions with the

officers, but the court’s factbound conclusions are correct and do

not warrant further review.

Petitioner

contends

(Pet.

10-16)

that

the

court

appeals erred by stating that he had to “establish that the

challenged statements were (1) the result of words or actions of

law-enforcement

officers

(2)

that

constituted

interrogation.”

Pet. App. A11.

Petitioner contends that the court thus placed the

burden

him

establish

that

the

police

were

engaged

interrogation, when (he asserts) the government should bear the

burden of establishing the absence of interrogation.

As a threshold matter, petitioner did not preserve this

issue in any manner that would make it suitable for further review.

Petitioner did not raise any question in his opening brief on

appeal about who bore the burden of proof in establishing that

interrogation had (or had not) resumed.

See Pet. C.A. Br. 1-56.

The government in turn did not address the question in its brief

on appeal.

See Gov’t C.A. Br. 1-37.

Petitioner contends (Pet.

20) that he preserved this issue in his reply brief.

C.A. Reply Br. 13, 19.

See Pet.

But the two passing references to the

burden in his reply brief, ibid., did not adequately present the

issue.

* * *

The Tenth Circuit “will not consider

* * *

arguments

raised for the first time in [a] reply brief.”

Wheeler v.

Commissioner, 521 F.3d 1289, 1291 (2008); e.g., Rowley v. Morant,

631 Fed. Appx. 651, 655 (2015) (“[A]n argument made for the first

time in a reply brief comes too late.”); see Fed. R. App. P.

28(a)(8)(A) (requiring an opening brief to contain “appellant’s

contentions

and

the

reasons

authorities

and

parts

for

the

them,

record

with

citations

which

the

appellant

relies”).

The court of appeals does not appear to have considered or

directly

decided

this

failure to preserve it.

question

notwithstanding

petitioner’s

Petitioner focuses on a single sentence

of the court’s opinion, stating that petitioner “must establish

that the challenged statements were (1) the result of words or

actions

law-enforcement

interrogation.”

officers

Pet. App. A11.

(2)

that

constituted

But that sentence does not use

the word “burden,” cite any legal authority, assert that petitioner

had an affirmative legal obligation in the district court in the

first instance, or explain the reasons why that would be so.

See

Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (declining to

review claim “without the benefit of thorough lower court opinions

to guide our analysis of the merits”).

Rather, that sentence

appears simply to describe in accurate terms what petitioner needed

to establish on appeal to justify reversing the district court’s

conclusion that suppression was unwarranted, given the court’s

findings that petitioner’s statements were spontaneous and not the

result of any interrogation.

Petitioner thus failed to preserve

this claim of error below, and further review would be at odds

with this Court’s “traditional rule

of certiorari

* * *

preclud[ing] a grant

when ‘the question presented was not pressed

or passed upon below.’”

United States v. Williams, 504 U.S. 36,

41 (1992) (citation omitted).

This case would also be a poor vehicle for addressing

any question about the allocation of the burden of proof, because

the court of appeals’ decision does not depend on the allocation

of the burden of proof.

As this Court has observed, placing the

burden of proof by a preponderance of the evidence on one party

rather than another has practical consequence “only in a narrow

class of cases where the evidence is in equipoise; that is, where

the evidence” on one side “is just as strong” as the evidence on

the other.

Medina v. California, 505 U.S. 437, 449 (1992).

“In

truth, however, very few cases will be in evidentiary equipoise.”

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 101 (2008)

(quoting Schaffer v. Weast, 546 U.S. 49, 58 (2005)).

This case is

not one of the “very few” cases within that “narrow class.”

Ibid.;

Medina, 505 U.S. at 449.

Here, it is undisputed that the body search was not in itself

an interrogation.

Cf. Muniz, 496 U.S. at 605.

Thus, the only

issues are what to make of petitioner’s various statements during

the body search, and how to understand their relationship to the

handful of questions the police officers asked him during that

time.

In resolving those issues, the district court did not

indicate

that

the

evidence

was

equipoise

even

closely

balanced, nor did it point to a lack of proof of any particular

fact.

Rather, relying on the transcript of the body search, the

court

squarely

found

that

petitioner’s

statements

spontaneous and were not the result of interrogation.”

“were

Pet. App.

A8; see ibid. (“The audio transcript reveals that the agents

executing

the

warrant

were

[petitioner] at all times.”).

business-like

but

polite

toward

The court of appeals then reviewed

the district court’s findings of fact for clear error and its legal

conclusions

judgment.

See Pet. App. A11-A16.

decision,

the

novo,

court

before

affirming

appeals’

the

district

court’s

Like the district court’s

decision

does

not

state

otherwise indicate that the evidence was in equipoise or even that

it was close.

In any event, petitioner’s claim of error is unsupported

and would not warrant certiorari even if petitioner had preserved

it and it were squarely presented here.

Consistent with the

general rule that the movant ordinarily bears the burden of proof,

the movant ordinarily bears the burden of proof when seeking to

suppress evidence.

E.g., United States v. Smith, 783 F.2d 648,

650 (6th Cir. 1986) (“The burden of production and persuasion rests

on the person seeking to suppress evidence.”); United States v.

Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (collecting cases),

cert. denied, 450 U.S. 917 (1981).

To be sure, “in some well-defined situations the ultimate

burden of persuasion may shift to the government upon an initial

showing of certain facts by the defendant.”

United States v. de

la Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied, 431 U.S.

932, and 434 U.S. 954 (1977).

In particular, this Court has placed

the burden on the government in “situations where the government

sought to introduce inculpatory evidence obtained by virtue of a

waiver

of,

violation

of,

defendant’s

constitutional

rights,” Medina, 505 U.S. at 451-452, including waiver of rights

under Miranda, see Berghuis v. Thompkins, 560 U.S. 370, 382 (2010);

Colorado v. Connelly, 479 U.S. 157, 168 (1986).

Here, however,

the question is not whether petitioner waived his constitutional

rights

whether

the

government

may

introduce

evidence

notwithstanding a finding that it was obtained in violation of

constitutional rights, but instead whether petitioner was subject

interrogation

the

first

place

and

thus

whether

his

constitutional rights were violated at all.

Petitioner provides

no sound basis for concluding that the burden should shift to the

government in that context.

Petitioner contends (Pet. 16-19) that a conflict exists

among the circuit courts and state courts over who bears the burden

proving

that

interrogation.

remarks

are

(or

are

not)

the

result

But perhaps reflecting that the allocation of the

burden is relevant only in a “narrow class” of cases, Medina, 505

U.S. at 449, no such conflict exists.

As previously discussed, it

is far from clear that the court of appeals’ decision here answers

any question about the burden of proof that it would apply in a

case in which the evidence is in equipoise.

See pp. 10-12, supra.

But even if it had, there would still be no conflict.

Petitioner

contends (Pet. 16) that the First and Ninth Circuits place the

burden on the government to establish that interrogation has not

occurred.

See United States v. Jackson, 544 F.3d 351 (1st Cir.

2008); United States v. Smith, 48 F.3d 1229, 1995 WL 81943 (9th

Cir. 1995) (Tbl.).

But Jackson does not even discuss the burden

of proof, much less resolve the question.

The court instead found

it “clear that the police subjected [the defendant] to custodial

interrogation,” 544 F.3d at 360, thus indicating that the evidence

was not in equipoise and therefore that the question was not

presented.

And

Smith

unpublished

establish circuit precedent.

and

therefore

does

not

See 9th Cir. R. 36-3(a). *

Petitioner identifies (Pet. 18) two cases from state courts

of last resort, but they do not support petitioner’s claim of a

conflict either.

2015),

the

court

In State v. Thelusma, 113 A.3d 1165, 1169 (N.H.

relied

state

government bore the burden of proof.

law

conclude

that

the

And in People v. Stoesser,

421 N.E.2d 110, 111 (N.Y. 1981), the court appeared to assume that

the government bore the burden of proof, but did not discuss the

issue.

See ibid.

The court instead appears to have reversed and

remanded because the trial court had failed to make any finding as

to whether interrogation had occurred under the Innis standard.

Ibid. (stating that “[n]o finding was made by the courts below in

this regard” and that the determination could not be made as a

matter of law).

Petitioner otherwise relies (Pet. 17-18) on decisions of the

federal district courts and lower state courts.

But any conflict

between those decisions and the decision below would provide no

Some circuit courts have stated that a defendant must

demonstrate that police questioning in the absence of Miranda

warnings is “custodial.” See Pet. 18-19 (citing United States v.

Lawrence, 892 F.2d 80, 1989 WL 153161 at *5 (6th Cir. 1989) (per

curiam) (Tbl.), cert. denied, 494 U.S. 1019, and 494 U.S. 1069

(1990); United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.

1989); de la Fuente, 548 F.2d at 533.

But petitioner does not

identify any decision of a court of appeals that has held that the

burden is on the government to prove that interrogation did not

occur.

basis for further review by this Court.

See Sup. Ct. R. 10.

Furthermore, the cases that petitioner cites from state lower

courts relied on state law, see Pet. 18 (citing Commonwealth v.

Culver, No. 321 WDA 2013, 2014 WL 10795161, at *3 (Pa. Super. Ct.

Oct. 1, 2014) (unpublished); People v. Whitfield, 54 Cal. Rptr. 2d

370, 373 (Cal. Ct. App. 1996); State v. Boggs, 559 P.2d 11, 15

(Wash. Ct. App. 1977)), and the cited district court decisions

(Pet. 17) do not discuss the burden issue in any depth.

Many of

those cases simply cite Connelly, supra, for the proposition that

the prosecution bears the burden of proving that a defendant waived

his Miranda rights, a principle that is not at issue here.

See,

e.g., United States v. Ivery, No. 16-cr-158, 2017 WL 728309, at *2

(S.D.

W. Va.

Feb.

24,

2017);

United

States

Abdallah,

196 F. Supp. 3d 599, 600 (E.D. Va. 2016); United States v. Freeman,

61 F. Supp. 3d 534, 536 (E.D. Va. 2014); United States v. Eggers,

21 F. Supp. 2d 261, 266 (S.D.N.Y. 1998).

Finally, even if there had been an evidentiary error, it

would have been harmless beyond a reasonable doubt.

Neder v. United States, 527 U.S. 1, 7 (1999).

See, e.g.,

Several witnesses

testified that petitioner was alone with Becenti at his house, and

Adams

testified

Becenti.

that

observed

petitioner

sexually

assault

Moreover, petitioner’s fingerprint was on the shovel

caused

guilt.

that

See

Becenti’s

Gov’t

death,

C.A.

Br.

further

35-36.

confirming

petitioner’s

Conversely,

petitioner’s

statements during the body search, many of which were assertions

of innocence, contributed little to the government’s proof.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

KIRBY A. HELLER

Attorney

JANUARY 2018

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