# Opposition — Kenney v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1379%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 984 ## Text No. 80-1432 | tn ALENANO i ¢y In the Supreme Court of the Unithr-Stafes OCTOBER TERM, 1980 ROBERT KENNEY, PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WapDE H. McCree, Jr. Solicitor General D. LOWELL JENSEN Assistant Attorney General FRANCIS J. MARTIN Attorney Department of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED Whether a Drug Enforcement Agent and later the pros- ecutor abridged petitioner’s Sixth Amendment right to counsel by conducting pre-indictment interviews with peti- tioner, where petitioner was admonished prior to each interview that he could have an attorney’s help during questioning. (1) TABLE OF CONTENTS Page Opinion below ....... cece cece eee eee eeeeeeeeeees I errr rrr Tr eT rere rT terre I rrr rere eT ret rr Ter ere er I ATBUMENE 2... cccccccccccccrcccecccecesccceseees 3 errr rrr Tr rere rre ry Te ere 8 TABLE OF AUTHORITIES Cases: Aiken v. United States, cert. denied, No. 80-1096 (March 23, 1981) ........eeeeees 7 Brewer v. Williams, 430 U.S. 387) «2... eee eee 6,7 Dillingham v. United States, 423 U.S. 64 ...... 7.8 Government of the Canal Zone v. Sierra, 2 ae | wPeeeeer TTT ererrrrrr Terre rer or 7 Johnson v. Zerbst, 304 U.S. 458 2... eee eee ees 6 Massiah v. United States, 377 U.S. Mee cUaveuneeidss ses eu hey eee keen tara 4.7.8 United States v. Brown, 569 F. 2d 236 .......4+: 7 United States v. Duvall, 537 F. 2d 15, cert. denied, 426 U.S. 950 ............06- 3.4/7 United States v. Marion, 404 U.S. 307 ......+45- 8 United States v. Mohabir, 624 F. 2d 1140 ....... 7 United States v. Woods, 613 F. 2d 629, cert. denied, 446 U.S. 920 ......cceeeeeeeeees 7 United States v. Zazzara, 626 F. 2d 135 ......... 7 Il PREVIOUS PAGE WAS BLANK lV Page Constitution, statutes and rules: United States Constitution: Fifth Amendment .......--0+eeeeeeeeee 4.6.8 Sixth Amendment ...........--++++ 3.4.6. 7.8 21 U.S.C. B4l (al) 2. ccc cece cece eee e eee eeees 2 OO OD coin cckcuverestaseersbannseues | Fed. R. Crim. P. : ee os cadeeentesns Stavseaseewens 4.7 SS Ce Perr ere eT rT 6 SS Pree r eee rere err Ter te tL. 6 In the Supreme Court of the United States OCTOBER TERM, 1980 No. 80-1432 ROBERT KENNEY, PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A) is unreported. JURISDICTION The judgment of the court of appeals was entered on Ociober 29, 1980 (Pet. App. A). A timely petition for rehearing was denied on December 23, 1980 (Pet. App. C). The petition for a writ of certiorari was filed on February 20, 1981. The jurisdiction of the Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Southern District of New York, petitioner was con- victed of conspiring to distribute heroin, in violation of 21 U.S.C. 846. and of distributing, and possessing with intent 2 to distribute, one ounce of heroin, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to 15 months’ impris- onment, to be followed by a three-year term of special parole. The court of appeals affirmed (Pet. App. A). 1. The evidence at trial showed that in early March 1979 Victor Herrera, a paid informant for the Drug Enforcement Administration, encountered petitioner at a Manhattan night club (Tr. 30).' Petitioner, who had known Herrera since 1974, asked him if he would be interested in engaging in some cocaine business. Thereafter, Herrera and peti- tioner went to petitioner’s apartment, where Herrera told petitioner he was interested in heroin rather than cocaine. Petitioner stated that he had a potential heroin source and made an unsuccessful attempt to telephone his source (Tr. 22-24, 31-33). In the days that followed, petitioner intro- duced Herrera to his heroin source, Lincoln Stephens. Peti- tioner later gave Herrera a small sample of heroin, provided by Stephens, in exchange for $500 (Tr. 33-38). Petitioner and Herrera thereafter had a number of telephone conver- sations concerning arrangements for a larger sale of heroin (GX 11, 12, 13). These negotiations culminated in the base- ment of petitioner’s apartment building with the sale by Stephens of one ounce of heroin to Herrera for $10,000 (Tr. 74-76, 223, 289-291, 345). 2. A complaint was filed and a warrant issued for peti- tioner’s arrest on September 14, 1979 (Pet. App. D). Peti- tioner was arrested at his home on October 22, 1979. He was given his Miranda warnings, and he acknowledged that he understood them (S. 9-10). While being transported to the DEA office, petitioner told DEA agents that he was guilty “Tr.” references are to the transcript of the trial, held May 13-20. 1980; “S.” references are to the transcript of the suppression hearing, held May 12-13, 1980. “GX” references are to Government Exhibits. “Tr."and “GX” references are based on those in the government's brief in the court of appeals. 3 of conspiracy but felt he was innocent of any sale of heroin. Petitioner stated that the heroin had come from Stephens, that Stephens’ source was one “John” from Queens, and that he, petitioner, could introduce the agents to several drug dealers (S. 11). Petitioner was permitted to return home that night upon the understanding that he would return the next day for his initial appearance before a magistrate (S. 12; Tr. 492-495). The next morning petitioner met again with the agents and with an Assistant United States Attorney. He was again given Miranda warnings, and he again made essentially the same admissions.’ At petitioner’s request his initial appearance was delayed for two days to allow him to visit an elderly relative in Philadel- phia (Tr. 495-496; S. 13-15). Petitioner was indicted on February 14, 1980, together with his co-defendant Lincoln Stephens (Pet. App. E). Peti- tioner sought to suppress the statements of October 22 and October 23, 1979, in which he admitted to being guilty of conspiracy. The district court denied the motion (Pet. App. B), and the statements were introduced against him at trial. ARGUMENT Petitioner contends (Pet. 12-23) that the district court erred in refusing to suppress his post-arrest statements because they were obtained in violation of his Sixth Amendment rights. In particular, he challenges the court of appeals’ reliance on United States v. Duvall, 537 F. 2d 15 (2d Cir.), cert. denied, 426 U.S. 950 (1976), which holds that the Sixth Amendment right to the assistance of counsel Petitioner was not unfamiliar with criminal procedure, having pre- viously been arrested for armed robbery in 1945 and for bribery in 1975 (Tr. 544-545). Petitioner also acknowledged that he had learned that Herrera was an informant, and he was expecting to be arrested (S. 69, 82-83). 4 during any government interrogation, recognized in Mas- siah v. United States, 377 U.S. 201 (1964), does not auto- matically attach upon an individual’s arrest pursuant to a warrant based ona criminal complaint issued under Fed. R. Crim. P. 3. For the reasons explained below (pages 4-7), this is not an appropriate case in which to consider the Duval. In any event, we believe Duvall is correct, and it does hot conflict with any holding of this Court or of any other court of appeals. Accordingly, review by this Court is unwarranted. 1. We note at the outset that, in the district court, peti- tioner did not base his motion for suppression of the state- ments here at issue on the Sixth Amendment. Rather, he argued that he had not understood the Miranda warnings and that the statements were coerced in violation of his rights under the Fifth Amendment (S. 6, 121-123). The Sixth Amendment was mentioned only as a basis for sup- pressing similar statements made two months later, which were not used at trial (S. 5-6, 63, 123, 131-132). Because the government and the district court thus were not on notice of the present Sixth Amendment claim, the government lacked a proper opportunity to introduce proof with respect to a waiver of Sixth Amendment rights and the district court had no occasion to rule on the waiver question. Since the facts underlying petitioner’s Sixth Amendment claim were well known to him at the time of trial, his failure to assert the claim prior to or during trial would appear to bar its assertion on appeal. Fed. R. Crim. P. 12(f). While the court of appeals nevertheless considered and decided the Sixth Amendment issue (Pet. App. A), it relied ona ground that pretermitted any decision of the waiver question. Notwithstanding the government's initial lack of notice concerning the Sixth Amendment issue now raised, the evidence introduced at the suppression hearing establishes that petitioner waived any Sixth Amendment rights he may \ LY Me 5 have had when he gave his statements to the DEA agent immediately following his arrest and, onthe next day, to the prosecutor. DEA agent Sandler. whose testimony was cred- ited by the district court (Pet. App. B), testified that he gave petitioner his Miranda warnings, including an assurance that petitioner could refuse to answer questions in the absence of counsel and could have an attorney appointed for him if he could not afford one (S. 10). Assistant United States Attorney Stuart Baskin, whose testimony was also credited by the district court (Pet. App. B), testified (S. 111, 116) that before beginning the interview he read petitioner a number of rights from a printed form (S. GX 1), pausing after each sentence to ask petitioner if he understood the statement and to note petitioner’s response that he did. The statements read to petitioner included the following (S. 14; S. GX 1): You have a right to consult an attorney and to have that attorney present during this interview. * * * * * If you do not have funds to retain an attorney[,] an attorney will be appointed to represent you[,] and you do not have to answer any questions before this attor- ney is appointed and you can consult with him. * * * * * Would you like to answer some questions? You may pick and choose those questions you wish to answer and you may stop at any time. Because petitioner wished to visit an elderly relative that evening in Philadelphia and thus did not wish to be delayed by an appearance before the magistrate, he signed a form titled “Waiver of Arraignment” (S. GX 2), which in three 6 separate places advised him of his right to counsel.* One sentence stated that “I understand I have a right to consult with counsel before signing this document waiving my rights.” Another sentence, at the end, directly above the line for petitioner’s signature, stated “I do not want a lawyer.” Petitioner contended, in connection with his Fifth Amend- ment claim, that his incriminating statements were coerced by suggestions that he would be held on high bail if he failed to cooperate. This claim was expressly rejected by the dis- trict court, which found nothing in the evidence “to support the argument of the defendant that he was coerced in order to obtain his cooperation or to pressure him into making some kind of confessions” or “to suggest that under the circumstances there would have been a high bail fixed, in fact, or that he would have had to remain in jail more than overnight” (Pet. App. B).4 This record shows “ ‘an intentional relinquishment or abandonment of a known right * * *’” to assistance of counsel (Brewer v. Williams, 430 U.S. 387, 404 (1977), quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), on the part of petitioner, who was familiar with criminal proce- dures, having been twice previously convicted of serious crimes (see note 2, supra). It thus seems clear that petition- er’s Sixth Amendment claim would have fared no better in 3The term “Waiver of Arraignment” appears to be a misnomer. Arraignment is a proceeding at which a defendant pleads to an indict- ment or information. Fed. R. Crim. P. 10. The proceeding that occurs whena defendant is arrested, either without a warrant or witha warrant issued upon a complaint, is an “initial appearance” governed by Fed. R. Crim. P. 5, at which the arrestee is advised of his rights and an initial bail determination is made, but at which the arrestee is “not * * * called upon to plead.” 4Petitioner’s suggestion (Pet. 10) that AUSA Baskin had threatened to have him held on $150,000 bail is contradicted by Baskin’s testimony (S. 109-110), which was credited by the district court (S. 129-130). 7 any other circuit than it did in the court below. regardless of whether other circuits would agree with Duvall regarding the point at which Sixth Amendment rights to counsel attach. See, e.g., United States v. Woods, 613 F. 2d 629. 634 (6th Cir.), cert. denied, 446 U.S. 920 (1980); Government of the Canal Zone v. Sierra, 594 F. 2d 60, 67-68 (Sth Cir. 1979); United States v. Brown, 569 F. 2d 236 (Sth Cir. 1978) (en banc).5 2. For the reasons stated in the government’s brief in Opposition to the petition for certiorari in Aiken v. United States, cert. denied, No. 80-1096 (March 23, 1981) (Br. in Opp. 5-7), an arrest made pursuant toa warrant based upon a complaint under Fed. R. Crim. P. 3 does not mark the commencement of a criminal prosecution for the purpose of Massiah rights. United States v. Duvall, supra. (A copy of our Aiken brief has been provided to petitioner’s counsel.) We add only that United States v. Zazzara, 626 F. 2d 135. 138 (9th Cir. 1980), the sole court of appeals decision from another circuit cited by petitioner as contrary to Duvall, provides only dictum in support of petitioner’s argument, since the Zazzara court found no violation of Sixth Amendment rights. We also note that this Court’s decisions in Brewer v. Williams, 430 U.S. 387 (1977), and Dillingham Vv. United States, 423 U.S. 64 (1975), do not aid petitioner. In Brewer, the interrogation at issue was preceded by the defendant's arraignment, appointment of counsel for him. and an agreement between his counsel and the police that he *The waiver standard employed in these cases is less stringent than the standard for post-indictment waivers of the right to counsel established in United States v. Mohabir, 624 F. 2d 1140 (2d Cir. 1980). In Mohabir the court held. in the exercise of its supervisory power, that “a valid waiver of the Sixth Amendment right to have counsel present during post-indictment interrogation must be preceded by a federal judicial officer's explanation of the content and significance of this right.” 624 F. 2d at 1153. 8 was not. to be questioned in the absence of his lawyer. In Dillingham, the Court’s reference to the arrest as the com- mencement of prosecution was a reference to an arrest immediately followed by the defendant’s presentation before a magistrate for the setting of bail; as the briefs filed in that case indicate (Memorandum for the United States in Oppo- sition at 2. No. 74-6738, 1975 Term), bail was set and the defendant, who had waived a preliminary hearing, was incarcerated for over a month before making bond. Thus, in a passage quoted from United States v. Marion, 404 U.S. 307. 320-321 (1971), the Court noted that “ ‘it is either a formal indictment or information or else the actual re- straints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.’ ” 423 U.S. at 65 (emphasis added). There is no suggestion that in Dil- lingham the Court was deciding the question whether an arrest pursuant to warrant based ona complaint, without more, would trigger Sixth Amendment rights, including any special rights under Massiah that exceed Miranda rights under the Fifth Amendment. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WapeE H. McCreEE, JR. Solicitor General D. LOWELL JENSEN Assistant Attorney General FRANCIS J. MARTIN Attorney APRIL 1981 DOJ-1981-04 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1379%3A2. Public record. Not legal advice.