Opposition — Cruz v. United States

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No. 79-650 (i JAN & Iggq ||

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OCTOBER TERM, 1979

HERMINIO CRUZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN C. WINKFIELD

Attorney

Department of Justice

Washington, D.C. 20530

1a > Bete FRO 2 atin —

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-650

HERMINIO CRUZ, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment of the court of appeals was entered

on Augu ; 1979, and a petition for rehearing was

denied on October 2, 1979. The petition for a writ

of certiorari was filed on October 22, 1979. The juris-

diction of this Court is invoked under 28 U.S.C. 1254

aieF

QUESTIONS PRESENTED

1. Whether petitioner’s voluntary oral statements

to DEA agents should have been suppressed because

petitioner declined to sign a “waiver of rights” form

before seeing a lawyer.

(1)

2

2. Whether the affidavit supporting a search war-

rant for petitioner’s house established probable cause.

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Illinois, petitioner

was convicted of possessing heroin with intent to dis-

tribute, in violation of 21 U.S.C. 841(a)(1). He

was fined $25,000 and sentenced to a 15-year term

of imprisonment.’ The court of appeals affirmed.

In December 1976, Jose De Leon of Chicago, II-

linois, called Rafael Kercado-Rivera in Springfield,

Massachusetts, and arranged to sell him a kilogram

of heroin.” On December 16, 1976, Kercado-Rivera

and an accomplice named Daisy Gonzales met with

De Leon in a house in Chicago. Minutes later, DEA

agents saw De Leon leave that house carrying a

brown paper bag and travel to petitioner’s house.

When he returned to the house in which Kercado-

Rivera and Gonzales were waiting, he was carrying

a white paper bag. Kercado-Rivera and Gonzales

thereafter flew back to Hartford, Connecticut, where

1 Petitioner was subsequently convicted on drug related

charges in the United States District Court for the District

of Massachusetts and was sentenced to another 15-year term

of imprisonment, to run concurrently with the sentence im-

posed in this case. On October 9, 1979, the Court denied

petitioner’s petition for a writ of certiorari regarding his

conviction in the District of Massachusetts. See Cruz Vv.

United States, No. 78-1504.

2 This conversation was monitored by DEA agents pursu-

ant to a court-ordered wire interception.

3

DEA agents arrested and searched them, discovering

a white paper bag containing a kilogram of heroin

(Pet. App. 2a-8a; S.H. Tr. 88-118, 117-119, 123).

Information concerning the arrests and seizure in

Connecticut was sent to DEA agents in Chicago, who

promptly obtained a warrant io search petitioner’s

house. The agents executed the warrant that same

evening. Upon entering the house, the agents placed

petitioner in protective custody and asked him some

preliminary questions. Petitioner confirmed that the

house was his. In the search that ensued, the agents

found more than 3.8 kilograms of heroin, drug para-

phernalia, and a brown paper bag containing $29,000

(Pet. App. 2a-8a; S.H. Tr. 17-18, 27, 88-89, 117,

161).

The agents arrested petitioner, informed him of

his Miranda rights, and asked him to sign a waiver

of rights form. Petitioner stated that he understood

his rights but that “he would not sign any documents

unless his lawyer was present” (S.H. Tr. 401, 413-

415). The agents then advised petitioner that they

wished to question him, that he was entitled to have

his lawyer present, that he did not have to answer

any questions until he consulted with his lawyer, and

that he could stop the questioning at any time. Pe-

titioner again acknowledged that he understood his

rights and immediately thereafter he admitted that

the heroin found in his home was his (Pet. App. 4a;

S.H. Tr. 400-402, 413-415; Tr. 65-67, 112-113; Gov’t

Ex. 8).°

3 Petitioner did not testify at the suppression hearing. At

trial, however, he claimed that he had never been informed

4

ARGUMENT

1. Petitioner contends (Pet. 22-24, 28-37) that,

in light of his refusal to “sign any documents un-

less his lawyer was present” (S.H. Tr. 401), the

courts below erroneously concluded that he voluntarily

and knowingly waived his Miranda rights.‘ But, as

this Court made clear in North Carolina v. Butler,

No. 78-354 (Apr. 24, 1979), slip op. 2-7 & n.5, the

fact that petitioner refused to sign a waiver form

does not preclude a finding of voluntary waiver. Such

behavior ‘may indicate nothing more than a reluc-

tance to put pen to paper under the circumstance of

custody. A detainee may still wish to digeuss the

matter with his detainers for any number of reasons

** *” United States v. McDaniel, 463 F.2d 129,

1385 (5th Cir. 1972), cert. denied, 413 U.S. 919

(1973) ; see, e.g., United States v. Gardner, 516 F.2d

334, 341 (7th Cir. 1975). Here, the record demon-

strates that the officers twice informed petitioner of

his rights, that petitioner stated that he understood

those rights, and that petitioner nonetheless chose to

admit his guilt.®

of his rights and that he had never admitted that he owned

the heroin (Tr. 204, 293, 303).

4 Although petitioner arguably suggests that his Sixth

Amendment right to counsel was also violated, that right “at-

taches only at or after the time that adversary judicial pro-

ceedings have been initiated against” the defendant. Kirby

v. Illinois, 406 U.S. 682, 688 (1972) ; Brewer v. Williams, 430

U.S. 387, 398 (1977).

5 Petitioner also claims (Pet. 33-37) that the district court

improperly charged the jury regarding the admissibility of

5

As petitioner points out (Pet. 22-24), there is a

conflict among the courts of appeals as to whether a

suspect who has previously invoked his Fifth Amend-

ment right to counsel, but has not yet consulted an

attorney, may ever waive his rights in response to

custodial questioning. Compare, e.g., United States

v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.) (en

bane), cert. denied, 486 U.S. 919 (1978); United

States v. Grant, 549 F.2d 942 (4th Cir.), cert. denied,

432 U.S. 908 (1977); and United States v. Tafoya,

459 F.2d 424, 427 (10th Cir. 1972), with Nash v.

Estelle, 597 F.2d 518 (5th Cir. 1979) (en banc) and

White v. Finkbeiner, 570 F.2d 194 (7th Cir. 1978).°

That issue is not presented here, however, because

petitioner never invoked his right to the presence of

counsel. Rather, he stated only that he would not

sign any documents unless advised by counsel. When

the officers then asked petitioner whether he also

his confession. See 18 U.S.C. 3501. Petitioner initially sub-

‘mitted a different instruction on this point, but he expressly

approved the instruction that was ultimately given (Tr. 263)

and cannot now be heard to complain. In any event, the in-

struction adequately informed the jurors that they should

consider his admission only after determining “‘whether he

made those statements and, if so, whether he made them vol-

untarily and understandingly” (Tr. 388-389). Although the

trial court properly instructed the jury that the government

had to prove petitioner’s guilt beyond a reasonable doubt

(Tr. 389), no such burden exists with regard to the volun-

tariness of petitioner’s confession. See Lego v. Twomey, 404

U.S. 477 (1972).

6 See also Brewer Vv. Williams, supra, 430 U.S. at 404-405

& n.11; Michigan v. Mosley, 423 U.S. 96, 101 n.7 (1975) ;

Maglio v. Jago, 580 F.2d 202, 205-206 (6th Cir. 1978).

#

6

wanted counsel present before answering questions,

petitioner indicated that he understood his rights and

that he wished to make a statement. In these cir-

cumstances, the courts below properly found that pe-

titioner had waived his rights (see, e.g., Nash v.

Estelle, supra, 597 F.2d at 517-520; United States v.

Rodriguez-Gastelum, supra, 569 F.2d at 484 n.2),

and further review of this essentially factual ques-

tion is not warranted.’

2. Petitioner also argues (Pet. 38-40) that the

affidavit supporting the search warrant misrepre-

sented the nature of the confidential informant and

the identity of one of petitioner’s co-defendants. Pe-

7In United States v. Priest, 409 F.2d 491 (5th Cir. 1969),

the court of appeals concluded that the defendant, a 19-year

old boy of limited education who was recuperating in a hos-

pital, had expressly requested counsel when he stated that “he

did not want to sign the [waiver] form until he had consulted

with an attorney.” 409 F.2d at 492 (emphasis supplied).

The court therefore held that the confession that was there-

after extracted during interrogation in the hospital room was

inadmissible. Here, in contrast, petitioner merely stated that

he would not sign any document unless he consulted with an

attorney, and, after he was again warned of his rights, he

immediately made an inculpatory statement. In light of the

difference in statements and circumstances between this case

and Priest, and the recent decision of the en banc Fifth Cir-

cuit in Nash v. Estelle, supra, it seems likely that the Fifth

Circuit would agree with the decision of the court of appeals

in this case.

In any event, given the discovery of almost nine pounds

of heroin in petitioner’s house and the sale of heroin that had

previously been observed, the admission of petitioner’s state-

ments was probably harmless error if it was error at all. See,

e.g., United States v. Charlton, 565 F.2d 86, 91-93 (6th Cir.

1977) ; Null v. Wainwright, 508 F.2d 340 (5th Cir.), cert.

denied, 421 U.S. 970 (1975).

‘be

7

titioner contends that if these allegedly false portions

of the affidavit were excised, then the redacted af-

fidavit would not “support a finding of probable

cause.” See Franks v. Delaware, 488 U.S. 154, 172

(1978). The district court and the court of appeals

specifically held, however, that the misstatements

were immaterial and unintentional (Tr. 373; Pet.

App. 3a), and there is no reason to review these con-

current factual findings. See Berenyi v. Immigra-

tion Director, 385 U.S. 630, 635 (1967).

In any event, there is no merit to petitioner’s

claims. The affidavit did incorrectly refer to co-

defendant De Leon as co-defendant Kercado-Rivera,

but the mistake was an understandable one given the

conditions of surveillance and the looks of the two

individuals (Pet. App. 38a). Furthermore, that mis-

identification was completely immaterial to the is-

suance of the search warrant, since in either case the

agents had en one of the co-defendants pick up a

package later found to contain heroin at petitioner’s

house. Similarly, the fact that the main affidavit Me-

scribed a wire interception as a confidential inform-

ant was also immaterial.* In addition, the agents

filed a supplemental affidavit informing the magis-

trate that the informant was in fact court-authorized

electronic surveillance (Pet. App. 12a).°

8 That mistake did not exaggerate the degree of probable

cause that actually existed, because the reliability of infor-

mation obtained from a wire interception is at least as great

as the reliability of an informant.

® Insofar as petitioner attempts (Pet. 40-44) to challenge

the interception on other grounds, we note that he was not

8

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN C. WINKFIELD

Attorney

JANUARY 1980

a party to the intercepted conversation nor the object of the

intercept order; he therefore has no standing to raise these

claims. 18 U.S.C. 2510(11) ; 2518(10) (a). See Alderman v.

United States, 394 U.S. 165, 176 (1969); United States v.

Williams, 580 F.2d 578, 582-587 (D.C. Cir. 1978); United

States v. Fury, 554 F.2d 522, 525-527 (2d Cir.), cert. denied,

433 U.S. 910 (1977) ; United States v. Plotkin, 550 F.2d 693,

695 (1st Cir.), cert. denied, 434 U.S. 820 (1977); United

States v. Calhoun, 542 F.2d 1094, 1097-1098 (9th Cir. 1976),

cert. denied, 429 U.S. 1064 (1977).

W ou. S. GOVERNMENT PRINTING orrice; 1980 308107 1862