Petition — United States v. Eagle Elk

Office soc

82-886 Piney

NOV 26 i962

ALEXANDE

No. ER tL. STEVAs,

CLERK

- ———

In the Supreme Court of the Anited States

OCTOBER TERM, 1982

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROBERT EAGLE ELK, JR.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether a defendant’s statement, made during a

noncustodial polygraph examination that the defendant

took with his attorney’s consent and after receiving

Miranda warnings, must be suppressed because prior

to the making of the statement the examiner advised

the defendant that the polygraph showed some of his

responses to be deceptive.

(1)

TABLE OF CONTENTS

EST EERE Le ie ae eet Pee

TABLE OF AUTHORITIES.

. Cases:

_ Brewer v. Williams, 430 U.S. 387.........

Clewis v. Texas, 386 U.S. 707 ............

Culombe v. Connecticut, 367 U.S. 568 .....

Edwards v. Arizona, 451 U.S. 477 ........

Fields v. Wyrick, 682 F.2d 154, petition for

cert. pending, No. 82-158 (Filed July 26,

Dy sundddeddscadsccnceaabendsene 3-4, 5, 6

Greenwald v. Wisconsin, 390 U.S. 519..... 4

Haynes v. Washington, 373 U.S. 508 ...... 4

Lynumn v. Illinois, 372 U.S. 528 ......... 4

Michigan v. Mosley, 423 U.S. 96.......... 5

Mincey v. Arizona, 437 U.S. 385.......... 4

2

5

4

5

oh & D

Miranda v. Arizona, 384 U.S. 436 ........

Oregon v. Mathiason, 429 U.S. 492 .......

Sims v. Georgia, 389 U.S. 404 ............

United States v. Henry, 447 U.S. 264 .....

United Scates v. Jackson, No. 82-1433 (8th

OE ey eee 5

(IV)

Constitution and statutes: Page

United States Constitution, Fifth Amend-

i s¢hitheeiuss sdabkeseeudecedas oes se 5

| A RRS GSS oe, 4 Eanes 2

i eels dade pdbectaetes 2

In the Supreme Court of the Gnited States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

v.

ROBERT EAGLE ELK, JR.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF A?PEALS FOR THE

EIGHTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Eighth

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-lla) is reported at 682 F.2d 168. The oral opinion of

the district court (App. B, infra,12a—14a) is not

reported.

JURISDICTION

The judgment of the court of appeals (App. C, infra,

15a) was entered on June 30, 1982. A petition for re-

hearing was denied on August 27, 1982 (App. D, infra,

16a). On October 18, 1982, Justice Blackmun extended

the time in which to file a petition for a writ of certi-

orari to and including November 25, 1982. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Respondent was indicted in the United States Dis-

trict Court for the District of South Dakota for volun-

tary manslaughter, in violation of 18 U.S.C. 1158 and

1112. The victim, Richard Schreiner, was killed during

an altercation with respondent; respondent contended

at trial that another person present at the altercation

was responsible for Schreiner’s death. App. A, infra,

la-2a.

Respondent was first interviewed, by the Oglala

Sioux Tribal Police, on the night of Schreiner’s death.

Before questioning him, the Tribal Police fully advised

respondent of his rights under Miranda yv. Arizona,

384 U.S. 436 (1966). Three days later, respondent was

arrested, arraigned, and released on bond. App. A,

infra, 3a & n. 2. Almost two months after his release on

bond, respondent, on the advice of counsel, volunteered

to take a polygraph examination administered by the

FBI. Before beginning the examination, the examiner

again gave respondent Miranda warnings, and respon-

dent signed a form waiving his Miranda rights. He also

signed a form specifically consenting to the polygraph

interview. App. A, infra, 3a.

At one point during the interview with the polygraph

examiner, the examiner advised respondent that the

polygraph indicated that some of his responses were de-

ceptive. Respondent subsequently told the examiner

that he had twice struck Schreiner on the head with a

rifle. App. A, infra, 3a. The United States District

Court for the District of South Dakota denied respon-

dent’s motion to suppress this incriminating statement

(App. B, infra, 12a—14a), and a jury convicted respon-

dent of the lesser included offense of involuntary man-

slaughter. App. A, infra, la.

The court of appeals rejected respondent’s claim that

the use of his statement was impermissible under

3

Edwards vy. Arizona, 451 U.S. 477 (1981), but it held

the statement inadmissible under its decision in Fields

v. Wyrick, 682 F.2d 154 (1982), petition for cert. pend-

ing, No. 82-158 (filed July 26, 1982). The court of ap-

peals explained (App. A, infra, 4a):

[Respondent] contends that his incriminating state-

ment should have been suppressed because, in the

absence of an additional Miranda warning after

the polygraph examination but prior to further in-

terrogation, the statement must be viewed as not

being voluntarily made. In light of this court’s re-

cent decision in Fields v. Wyrick, * * * we feel

compelled to agree. * * * ‘fhe relevant circum-

stances in Fields are virtually identical to those in

the instant case.

The court accordingly reversed respondent's conviction

“on the basis of” its decision in Fields (App. A, infra,

5a).

Judge Ross, in a separate opinion, “concur[red] in the

result * * * only because I am firmly convinced that it

is required by this court’s recent broad holding in

Fields v. Wyrick” (App. A, infra, 6a). Judge Ross re-

viewed the objections to the Fields decision that he had

stated in his dissent in that case. He noted, for exam-

ple, that the court’s holdings that the statements given

to the polygraph examiners were “involuntary” did not

rely “on considerations of coercive conduct by the poly-

graph administrator, [the suspect's} age, intelligence,

emotional condition, or any other factors which clearly

would be relevant to a determination of whether he

might not have voluntarily, knowingly, and intelligently

made the incriminating statement or waived his right to

have counsel present” (App. A, infra, 6a). Judge Ross

also pointed out that in this case, as in Fields, “a de-

fendant has clearly and fully been advised on at least

two occasions prior to the administration of the poly-

graph of the constitutional rights to remain silent and

to the presence of counsel during any questioning

4

* * ©. T can find no evidence in any of these cases that

the defendants did not fully comprehend the meaning

and the consequences of a waiver of those rights” (App.

A, infra, 10a).

Judge Gibson also concurred “only because Fields v.

Wyrick * * * requires this action” (App. A, infra,

lla). He stated that he agreed with the reasoning of

Judge Ross’s opinion. [bid.

REASONS FOR GRANTING THE PETITION

1. The court of appeals’ decision is plainly incorrect.

The stated basis for the court’s decision is that respon-

dent’s statement was not voluntarily made. App. A,

infra, 4a. But as Judge Ross noted, the court of ap-

peals did not even purport to undertake the “careful

evaluation of all the circumstances of the interrogation”

needed to determine whether a statement is involun-

tary (Mincey v. Arizona, 437 U.S. 385, 401 (1978)).

See, e.g., Sims v. Georgia, 389 U.S. 404, 407 (1967);

Clewis v. Texas , 386 U.S. 707, 709-712 (1967); Haynes

v. Washington, 373 U.S. 508, 513-515 (1963); Culombe

v. Connecticut, 367 U.S. 568 (1961). Nor is it plausible

to conclude that respondent’s statement was “not ‘the

product of his free and rational choice’” (Mincey v.

Arizona, supra, 437 U.S. at 401, quoting Greenwald v.

Wisconsin, 390 U.S. 519, 521 (1968)), or that his “will

was overborne” at the time he made the statement

(Lynumn v. Illinois, 372 U.S. 528, 534 (1968)). Re

spondent was subjected only to the “pressure” of being

confronted with the polygraph examiner’s opinion that

his previous statements were not wholly truthful.' This

' It should be noted in this connection that it is a relatively

routine aspect of the administration of polygraph examinations

that when the polygraph shows a response to be deceptive, the

examiner will ask the examinee if there are any circumstances

that might account for the polygraph’s indication. The examiner

5

Court’s decisions indicate that even confronting an ac-

cused with false “evidence” of a much more damaging

character does not by itself render his responses inad-

missible. See, e.g., Oregon v. Mathiason, 429 U.S.

492, 495-496 (1977); Michigan v. Mosley, 423 U.S. 96,

98 & n.3 (1975).

In Fields, the court of appeals emphasized the de-

fendant’s right to counsel. See, e.g., 682 F.2d at

157-158 (“Fields did not knowingly and intelligently

waive his right to have counsel present at the interro-

gation * * *. {His} incriminating statements were,

therefore, not voluntarily made * * *.”). The court ap-

peared to be referring to the Fifth Amendment “right”

to counsel referred to in the Miranda warnings. See

6827.2d at 158. But that right attaches only when a sus-

pect is in custody, and under Oregon v. Mathiason,

supra, respondent plainly was not in custody at the

time of his polygraph examination; he was free on bond,

he reported voluntarily to the examination, and there is

no suggestion that he could not terminate the examina-

tion and leave at any time, as indeed he had been told

he could do.*

The court of appeals’ decision also is not sustainable

on the basis of respondent’s Sixth Amendment right to

counsel.* See generally United States v. Henry, 447

U.S. 264 (1980). Respondent's counsel agreed to allow

respondent to be questioned about the crime by the

makes this inquiry so that, for example, any ambiguity or other

imperfection in the question can be corrected.

2 The court of appeals’ conclusion that the defendant in Fie/ds

ws in custody at the time of the polygraph examination also ap-

pears to be inconsistent with Oregow v. Mathiason. See 682

F.2d at 158 n.6.

% We note that in United States v. Jackson, No. 82-1433 (8th

Cir. Oct. 14, 1982), the court of appeals applied Fields and Ea-

gle Elk to suppress statements made during a polygraph exami-

nation at a time when the defendant's Sixth Amendment right

to counsel plainly had not attached.

6

FBI polygraph examiner in counsel's absence, and

there is no indication that he received any assurances,

subsequently violated, about the nature of the ques-

tioning. This case is thus diametrically opposed to

Brewer v. Williams, 430 U.S. 387 (1977). The Court

has never suggested that a suspect, having waived a

right at the beginning of the interview, must waive the

same right again with each new question or at each

point when the tenor of the interview might be said to

have changed.

2. A petition for a writ of certiorari to review Fields

is now pending before the Court. Wyrick v. Fields,

No. 82-158 (filed July 25, 1982). Although the court of

appeals’ decision in this case appears to be, if anything,

less defensible than its decision in Fields,* we do not

believe the two cases are materially different for pur-

poses of this Court’s exercise of discretionary review.

Accordingly, we submit that the present petition should

be disposed of as the Court deems appropriate in light

of its disposition of Fields.

CONCLUSION

The petition for a writ of certiorari should be dis-

posed of as appropriate in light of the Court's disposi-

tion of Wyrick v. Fields, supra.

Respectfully submitted.

Rex E. Lee

Solicitor General

NOVEMBER 1982

*In Fields, for example, the defendant may not have con-

sulted with his attorney before attending the polygraph inter-

view (see 682 F.2d at 156), although the court of appeals held

that the defendant had clearly “waived his right to have counsel

present while the examination itself was being conducted” (id.

at 160).