# Petition — United States v. Eagle Elk > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1228%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1167 ## Text 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1228%3A1. Public record. Not legal advice.