Amicus Curiae Brief — Vermont v. Cox

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No. 86-1108

In the Supreme Court of the

OCTOBER TERM, 1986

STATE OF VERMONT, PETITIONER

Rick Cox

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF VERMONT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

& itor General

WILLIAM F. WELD

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTION PRESENTED

Whether respondent’s Fifth Amendment privilege

against compelled self-incrimination was violated

when respondent participated in a presentence inter-

view after the probation officer told him she would

not return if he chose to postpone the interview until

he had consulted an investigator from the public de-

fender’s office.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ......................................... 1

EEA TE 2

ee ssessunscenesenes 4

Argument:

I. Respondent’s interview with the probation offi-

CC 5

II. Respondent’s statements to the probation officer

Seen eeensesnsnons 10

III. The failure to remind respondent of his Fifth

Amendment privilege creates no presumption

that his admissions were compelled .....__»»_-______ 13

Neen nenecnecscnononces 21

TABLE OF AUTHORITIES

Cases:

Barnes vy. United States, 412 U.S. 837 (1973)... 7

Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981)... 18

Baumann Vv. United States, 692 F.2d 565 (1982). 20

Beckwita v. United States, 425 U.S. 341 (1976)... 6, 20

Booth v. Commonwealth, 675 S.W.2d 856 (Ky.

Ne ceseuscnveccceres 20

Brooks v. Tennessee, 406 U.S. 605 (1972) ...... at 10

Brown Vv. Butler, 811 F.2d 938 (5th Cir. 1987). 20

Brown v. United States, 356 U.S. 148 (1958). 7

Burch v. State, 450 N.E.2d 528 (Ind. 1983) ......... 20

California Vv. Beheler, 463 U.S. 1121 (1983)... 14-15

Cervantes Vv. Walker, 589 F.2d 424 (9th Cir.

Ne cnepeennocercces 15, 16, 17

Chafiin Vv. Stynchcombe, 412 U.S. 17 (1973)... x

Colorado v. Connelly, No. 85-660 (Dec. 10, 1986) . 6

(IIT)

Cases—Continued : Page

Commonwealth v. Burton, 451 Pa. 12, 301 A.2d

675 (1973) ....... snsanitacainiiidielt ass aaiseudeeeieeaaabaaaidaial 20

Estelle v. Smith, 451 U.S. 454 (1981) —........ _..6, 18, 20

Fitzpatrick v. United States, 178 U.S. 304 (1900)... 7

Garner v. United States, 424 U.S. 648 (1976) _.11, 12, 19

Jenkins vy. Anderson, 447 U.S. 231 (1980) —.......... 8

Jones Vv. Cardwell, 686 F.2d 754 (9th Cir. 1982). 10

Mathis v. United States, 391 U.S. 1 (1968) —........ 13, 17

McGautha vy. California, 402 U.S. 183 (1971) _..... 7,8,9

Michigan Vv. Mosley, 423 U.S. 96 (1975) ............. 14

Michigan v. Tucker, 417 U.S. 433 (1974) —........... 6

Minnesota Vv. Murphy, 465 U.S. 420 (1984) 6, 12, 13, 21

Miranda v. Arizona, 384 U.S. 436 (1966)... 1-2, 13, 14,

15,16

Oregon V. Estad, 470 U.S. 298 (1985) ..... ania 14

Oregon V. Mathiason, 429 U.S. 492 (1977) —......... 15

Palmigiano v. Barter, 510 F.2d 534 (1st Cir.

1974), rev’d, 425 U.S. 308 (1976) —...................... 18

Roberts v. United States, 445 U.S. 552 (1980) ........ 12, 13

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)... 7

Spencer Vv. Texas, 385 U.S. 554 (1967) 0. 7

United States v. Conley, 779 F.2d 970 (4th Cir.

1985), cert. denied, No. 85-6467 (Oct. 6, 1986)... 15, 16,

United States v. Cooper, 800 F.2d 412 (4th Cir.

Re ee A a A 16

United States vy. Dickson, 712 F.2d 952 (5th Cir.

1983) sinieeteatimsudaiaedmeaiaaen ana 20

United States vy. Domenech, 176 F.2d 1229 (2d

Cir.), cert. denied, 414 U.S. 840 (1973) ........... 6

United States v. Havens, 446 U.S. 620 (1980) _...... 7

United States v. Hayes, 646 F. Supp. 146 (N.D.

Ind. 1986) " 16

United States v. Johneon, ‘488 F.2d 1206 (ist Cir.

1973) _.. 6

United States v. Mandujano, 425 US. 564, (1976). 11, 12,

United States v. Miller, 771 F.2d 1219 (9th Cir.

1985) — 6

United States v. Menia, 817 US. 424 (1943) ies 12

Cases—Continued : Page

United States v. Paris, 812 F.2d 471 (9th Cir.

I ecient aaah 6

United States v. Pierce, 561 F.2d 735 (9th Cir.

1977), cert. denied, 435 U.S. 923 (1978) —.......... 6

United States v. Rodriguez, 706 F.2d 31 (2d Cir.

ig ERE a aE EI tw SRNR Nepoeny RAAD 6

United States v. Sealf, 725 F.2d 1272 (10th Cir.

I F itech ha aS i ain 16

United States v. Sullivan, 274 U.S. 259 (1927)... 11

United States v. Trejo-Zambrano, 582 F.2d 460

(9th Cir.), cert. denied, 439 U.S. 1005 (1978)... 6

United States v. Washington, 431 U.S. 181

SETI: ininecsresiohiesennesSintiniesiesleleniadiciasin tialaadeieakteecliian ce hicentse 6

United States vy. Wiggins, 509 F.2d 454 (D.C. Cir.

siderite hah ail aaa aati aes 17

United States v. Yurasovich, 580 F.2d 1212 (3d

GE: ‘EIT . sestedensecnntnantsibinsieticiniatstuhiiinhneientenmemmeanientt 6

Williams v. Florida, 399 U.S. 78 (1970) ............. 7

Constitution and rule:

U.S. Const. Amend. V_ (Self-Incrimination

ee passim

REE evens verre renee oe 1

Miscellaneous :

U.S. Sentencing Comm'n, Sentencing Guidelines &

Policy Statements for the Federal Courts (Apr.

SinEy IIE. scmiescnntubitnateaincaatanbemataasianteeinidcemstnantenehatiabitid init 19

ae ene

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Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1108

STATE OF VERMONT, PETITIONER

Vv.

Rick Cox

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF VERMONT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The procedures for conducting presentence inter-

views involved in this case closely parallel the proce-

dures used in the federal courts. See Fed. R. Crim.

P. 32(c). Accordingly, the Court’s decision in this

case may affect the practice of federal probation offi-

cers in conducting presentence interviews with con-

victed defendants. In addition, the federal govern-

ment has a significant interest in the interpretation

of the Fifth Amendment privilege against compul-

sory self-incrimination and the scope of Miranda v.

(1)

Arizona, 384 U.S. 436 (1966), issues that are pre-

sented by the facts of this case.

STATEMENT

Respondent, who was originally charged with kid-

napping, entered nolo contendere pleas to three counts

of simple assault in the District Court of Vermont.

Following respondent’s entry of his plea, the district

court ordered the probation officer to prepare a pre-

sentence report. To help her prepare the report, the

probation officer scheduled an interview with re-

spondent at the correctional institution where he

was incarcerated (Pet. App. 2a). At the subsequent

sentencing hearing, respondent’s counsel described

what happened when the probation officer arrived for

the interview (Pet. App. 4a; J.A. 15):

[W]hen the Probation Officer came to interview

our client we in fact arranged for our investi-

gator to go down and talk with him to prepare

him for what would be coming forward, and he

indicated to the Probation Officer that he really

didn’t want to talk to her until [the investiga-

tor on the case] was there. * * * And she indi-

cated to him that that was fine but she wouldn’t

come back again. And made him feel as though

he would have no opportunity to consult with us

before talking with her.

Respondent then agreed to be interviewed. In the

course of the interview, respondent discussed with

the probation officer his drug-related activities (Pet.

App. 6a-7a). The presentence report contained re-

ferences to respondent’s admissions about nis prior

involvement with drugs (J.A. 20-21, 22, 23).

At the sentencing hearing, respondent’s counsel

objected to the court’s consideration of the presen-

tence report. Counsel relied primarily upon a state

court decision holding that a sentencing court may

not rely on “mere assertions of criminal activity.”

In addition, counsel argued that some of respondent’s

admissions to the probation officer should not be con-

sidered by the court because if respondent had had

an opportunity to speak with a representative of the

public defender’s office prior to the interview, he

would have been advised not to make some of the

admissions he made (J.A. 15). Counsel further as-

serted that “it must be Constitutionally necessary

for the probation officer who is preparing a [presen-

tence report] to * * * tell a defendant his rights he

is waiving and what trouble he might get himself

into by being fully open and not remaining silent”

(J.A. 17).

The district court rejected counse?’s arguments and

accepted the presentence report with some redactions

(J.A. 17-20). After giving respondent an opportu-

nity to make a statement, which respondent refused

(J.A. 21), the court imposed consecutive terms of 6

to 12 months’ imprisonment on each of the three

counts.

On appeal to the Vermont Supreme Court, re-

spondent argued that the sentencing court erred by

relying on information in the presentence report that

was obtained in violation of respondent’s privilege

against compulsory self-incrimination and his right

to counsel (Pet. App. 2a). The Vermont Supreme

Court vacated the sentence on the basis of respond-

ent’s claim under the Fifth Amendment; the court

therefore did not address his other claims (ibid.).

The court first found that respondent’s request to

consult with the investigator was equivalent to a re-

quest to consult with counsel (Pet. App. 5a).' It

then rej

constituted a waiver of the privilege (Pet. App. 4a-

Ta). The court noted that respondent “was pre-

sented with two choices: (1) to await the investiga-

tor and forfeit the interview, or (2) to proceed with

the interview without additional advice” (Pet. App.

6a). As a result, the court concluded, the condition

under which respondent continued with the presen-

tence interview was coercive, which rendered re-

spondent’s statements involuntary, in violation of his

Fifth Amendment rights (ibid.). Although the court

referred in passing to the fact that respondent was

incarcerated at the time of the interview, it did not

consider whether Miranda warnings were necessary.

As a remedy for the Fifth Amendment violation, the

court vacated respondent’s sentence and remanded

for the preparation of a new presentence report and

resentencing by a judge unfamiliar with the original

report (Pet. App. 7a).

SUMMARY OF ARGUMENT

The Vermont Supreme Court was incorrect in hold-

ing that respondent’s statements were obtained in

violation of his Fifth Amendment privilege against

compulsory self-incrimination. First, the choice pre-

sented to respondent—to participate in a presentence

interview at the appointed time without the advice

of his counsel’s representative, or to forfeit the inter-

' The State does not challenge this determination, nor do we.

be an exception to the general rule that one must as-

sert the Fifth Amendment privilege in order to bene-

fit from its protections, the extraordinary safeguard

of requiring specific warnings and a voluntary waiver

of Fifth Amendment rights as a prerequisite to cus-

todial interrogation was not a basis for the state

court’s decision, nor is it applicable to the circum-

stances of this case. Respondent’s disclosures to the

probation officer therefore did not constitute a form

of compelled self-incrimination in violation of re-

spondent’s Fifth Amendment privilege.

ARGUMENT

I. RESPONDENT'S INTERVIEW WITH THE PROBA-

TION OFFICER WAS NUT COMPELLED

When the investigator from the public defender’s

office did not arrive for respondent’s presentence in-

terview on time, respondent was faced with the

choice of speaking to the probation officer at the des-

ignated time or forgoing the interview. That choice

did not constitute a form of coercion sufficient to

render respondent’s statements involuntary in viola-

tion of his Fifth Amendment privilege (Pet. App.

6a).’

What the Fifth Amendment privilege proscribes is

not the necessity to make difficult choices, but “genu-

ine compulsion of testimony.” United States v.

Washington, 431 U.S. 181, 187 (1977) (quoting

Michigan v. Tucker, 417 U.S. 433, 440 (1974)).

That compulsion exists only in situations in which

official actions “overbear [defendant’s] will to resist

and bring about confessions not freely self-deter-

mined” (Beckwith vy. United States, 425 U.S. 341,

348 (1976)). Cf. Colorado vy. Connelly, No. 85-660

(Dec. 10, 1986), slip op. 9 (“coercive police activity

* We do not dispute that respondent enjoyed the protection

of the Fifth Amendment privilege, despite the fact that he

had been convicted on his plea of nolo contendere. As this

Court noted in Estelle v. Smith, 451 U.S. 454, 462-463 (1981),

the availability of the Fifth Amendment privilege turns on

the nature of the statement and the exposure it invites, not on

the type of proceeding in which the privilege is asserted. See

Minnesota V. Murphy, 465 U.S. 420, 426 (1984). A convicted

but unsentenced defendant may often retain Fifth Amend-

ment rights, even with regard to the subject matter of his

conviction, for two reasons. First, any admissions he makes

may subject him to enhanced punishment. See United States

Vv. Paris, 812 F.2d 471, 475 (9th Cir. 1987); United States

Vv. Miller, 771 F.2d 1219, 1235 (9th Cir. 1985) ; United States

Vv. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.), cert. denied,

439 U.S. 1005 (1978); United States v. Johnson, 488 F.2d

1206, 1209 (ist Cir. 1973); United States v. Domenech, 476

F.2d 1229, 1231 (2d Cir.), cert. denied, 414 U.S. 840 (1973).

Second, he may be exposed to the hazards of self-incrimination

with respect to possible prosecution for other crimes, either

in that jurisdiction or others. See United States v. Rodriguez,

706 F.2d 31, 36-37 (2d Cir. 1983); United States v. Yuraso-

vich, 580 F.2d 1212, 1218 (3d Cir. 1978); United States v.

Pierce, 561 F.2d 735, 738-739 (9th Cir. 1977), cert. denied,

435 U.S. 923 (1978).

is a necessary predicate to the finding that a confes-

sion is not ‘voluntary’ within the meaning of the Due

Process Clause of the Fourteenth Amendment”) ;

Schneckloth vy. Bustamonte, 412 U.S. 218, 223-227

(1973) (concept of voluntariness requires consid-

eration of totality of circumstances to determine

whether defendant’s “will has been overborne and his

capacity for self-determination critically impaired”).

The choice that the probation officer gave to respond-

ent was not even remotely coercive under that stand-

ard.

This Court has repeatedly held that the Fifth

Amendment privilege does not protect an individual

from being faced with hard choices as to whether to

exercise the privilege. The Court summarized a

number of those choices in MeGautha vy. California,

402 U.S. 183 (1971). Thus, a criminal defendant

must decide whether to testify in his own defense,

knowing that if he does, he will then be subject to

cross-examination, and that he may be impeached by

proof of prior convictions or the like. /d. at 215; see,

e.g., Brown vy. United States, 356 U.S. 148 (1958);

Fitzpatrick v. United States, 178 U.S. 304, 314-316

(1900); Spencer v. Texas, 385 U.S. 554, 561 (1967);

United States v. Havens, 446 U.S. 620, 627-628

(1980). A defendant whose motion for judgment of

acquittal is denied at the close of the government's

case must decide whether to put on a defense, know-

ing that if he does, he runs the risk of bolstering the

government’s case enough to support a guilty ver-

dict. MeGautha vy. California, 402 U.S. at 215. And

a defendant must choose between remaining silent

and subjecting himself to cross-examination by testi-

fying in order to present an affirmative defense. /d.

at 216; Williams v. Florida, 399 U.S. 78, 84 (1970);

Barnes v. United States, 412 U.S. 837, 846-847

The criminal process, like the rest of the legal

system, is replete with situations requiring “the

making of difficult judgments” as to which

course to follow. McMann v. Richardson, 397

U.S. [759,] 769 [(1970)]. Although a defend-

ant may have a right, even of constitutional

dimensions, to follow whichever course he

chooses, the Constitution does not by that token

always forbid requiring him to choose. The

* See also Jenkins Vv. Anderson, 447 U.S. 231 (1980). The

Court there held that a state could constitutionally impeach a

testifying defendant with his silence at the time of his arrest.

The Court noted (id. at 236) that “[i}t can be argued that a

person facing arrest will not remain silent if his failure to

speak later can be used to impeach him.” The Court pointed

out, however, that the Constitution “does not forbid ‘every

government-imposed choice in the criminal process that has

the effect of discouraging the exercise of constitutional

rights’ (ibid., quoting Chaffin Vv. Stynehcombe, 412 U.S. 17,

30 (1973)).

Based on this analysis, the Court in McGautha re-

_ jected “the suggestion that a desire to speak to one’s

sentencer unlawfully compels a defendant in a single-

verdict capital case to incriminate himself” (402

U.S. at 216). The fact that a defendant's sentence,

rather than his guilt, was at issue did not “call for a

difference in constitutional result” (402 U.S. at 216-

217). Accordingly, the Court concluded that the poli-

cies of the privilege against compulsory self-incrimi-

nation are not offended when a defendant in a capi-

tal case “yields to the pressure to testify on the issue

of punishment at the risk of damaging his case on

guilt” (402 U.S. at 217).

If, as the Court concluded in McGautha, the poli-

cies of the Fifth Amendment privilege are not of-

fended when the defendant “yields to the pressure to

testify on the issue of punishment at the risk of

damaging his case on guilt” (402 U.S. at 217), it

follows a fortiori that the Fifth Amendment is not

violated when a defendant in a non-capital case yields

to the far less compelling pressure of participating

in the presentence interview lest he lose his oppor-

tunity to tell his side of the story to the probation

officer. This is particularly true in light of the fact

that even if respondent had chosen not to participate

in the interview, he would still have been able to

“speak to [his] sentencer” (McGautha, 402 U.S. at

216) by exercising his right of allocution. Thus, the

only pressure that the probation officer’s choice ex-

erted on respondent stemmed from respondent's per-

ception that by failing to participate in the interview,

he might reduce his prospects that the probation offi-

cer would write a favorable sentencing report.‘ That

is not enough to render respondent's interview with

the probation officer the product of compulsion.’

fies

rt5i

[iti

vel

testify at the outset of the defense case was that the

ant lost all opportunity to testify at trial. In

contrast, respondent lost only opportunity

the

Although there is no claim in this case that

rigst

igus

he had declined to be interviewed

prived of his right to a subsequent interview by the

officer's error. His decision to proceed with the

interview, however, rendered consideration of that question

unnecessary.

* This case is a far cry from Jones v. Cardwell, 686 F.2d 754

(9th Cir. 1982), on which the state court relied. In that case,

the defendant was told that he had no choice but to answer

to exercise his option to participate in the interview.

untary and therefore were not obtained in violation

of respondent’s privilege against compulsory self-

incrimination. When the probation officer presented

respondent with the choice of participating in the

scheduled interview or forgoing the opportunity of

being interviewed, respondent decided to be inter-

viewed, and he answered all the questions put to him

without objection. Accordingly, his responses to the

probation officer’s questions—even if incriminating—

were not involuntary.

The Vermont Supreme Court ignored the impor-

tant distinction between compulsion to participate in

the interview and the voluntary decision to make in-

eriminating statements without asserting the privi-

lege. It is quite clear from this Court’s cases that

the mere obligation to appear and answer questions

dees not make otherwise voluntary statements com-

pelled ones within the meaning of the Fifth Amend-

ment. The Fifth Amendment privilege does not con-

fer on a witness an absolute right to refuse to re-

spond to a grand jury summons or a subpoena to

testify at trial." But a witness in either proceeding

has not been compelled to answer within the meaning

of the Fifth Amendment unless he is required to an-

swer specific incriminating questions despite a valid

claim of the privilege. United States v. Mandujano,

425 U.S. 564, 572-575 (1976) (plurality opinion).

Similarly, a taxpayer is certainly compelled to file a

tax return, but that requirement does not mean the’

he is compelled to engage in a self-incriminatory act

im the course of completing the return. Garner v.

United States, 424 U.S. 648, 650-656 (1976); United

States v. Sullivan, 274 U.S. 259 (1927). And a pro-

*In contrast, respondent was offered the option of not

participating in the presentence interview.

bationer who is required to report to his probation

officer and answer questions truthfully is not thereby

compelled to incriminate himself. Minnesota v. Mur-

phy, 465 U.S. 420, 427 (1984). The question is what

happens when the witness under compulsion to testify

is asked incriminating questions.

At that point, the general rule is that such a wit-

ness, once asked incriminating questions, must claim

the protection of the privilege or he will not be con-

sidered to have been compelled. “[I]f a witness

under compulsion to testify makes disclosures instead

of claiming the privilege, the government has not ‘com-

pelled’ him to incriminate himself.” Garner v. United

States, 424 U.S. 648, 654 (1976) (footnote omitted).

As the Court has explained, “(t]he Fifth Amendment

privilege against compelled self-incrimination is not

self-executing. At least where the Government has

no substantial reason to believe that the requested dis-

closures are likely to be incriminating, the privilege

may not be relied upon unless it is invoked in a

timely fashion.” Roberts v. United States, 445 US.

552, 559 (1980); Minnesota v. Murphy, 465 U.S. at

427, 429 (the same rule applies to a witness who is

confronted with questions that the government should

reasonably expect will elicit incriminating evidence) ;

United States v. Mandujano, 425 U.S. at 574-575

(quoting United States v. Monia, 317 U.S. 424, 433

(1943) (Frankfurter, J., dissenting) ).

Respondent’s decision to participate in the inter-

view and to answer all the probation officer’s ques-

tions, without claiming his privilege when the proba-

tion officer inquired about his drug-related activities,

precludes his belated assertion that the disclosures he

made in response to those inquiries were compelled.

The district court thus could properly rely upon those

disclosures in determining the appropriate sentence

to impose on respondent.

Ill. THE FAILURE TO REMIND RESPONDENT OF

HIS FIFTH AMENDMENT PRIVILEGE CREATES

NO PRESUMPTION THAT HIS ADMISSIONS

WERE COMPELLED

An exception to the general rule that the Fifth

Amendment privilege must be claimed is the require-

ment of Miranda y. Arizona, supra, that incriminat-

ing statements obtained during custodial interroga-

tion must be excluded unless the suspect failed to

claim the Fifth Amendment privilege after being

specifically advised of his right to remain silent and

of the consequences of his failure to assert it. The

Court has made it clear, however, that this exception

“does not apply outside the context of the inherently

coercive custodial interrogations for which it was

designed.” Roberts v. United States, 445 U.S. at 560;

see also Minnesota v. Murphy, 465 U.S. at 429-430.

This case does not involve such a context.

Although the Vermont Supreme Court did not rely

on Miranda vy. Arizona, supra, its decision might be

explained under this Court’s cases interpreting the

Miranda doctrine (see, e.g., Mathis v. United States,

391 U.S. 1 (1968); Minnesota v. Murphy, 465 U.S.

at 429-430) on the theory that, because respondent’s

statements were taken while he was in custody and

because the probation officer failed to advise him of

his Miranda rights, those statements were inadmis-

sible in any judicial proceeding.’ “Failure to admin-

TIt is quite clear that this is not the basis on which the

court in fact decided the case. Not only did the court fail to

mention Miranda or its progeny, but it also mentioned

only in passing that defendant was incarcerated, and it said

ister Miranda warnings [when they are required]

creates a presumption of compulsion.” Oregon v.

Elstad, 470 U.S. 298, 307 (1985). This rationale

assumes that Miranda applies in this situation, when

in fact it does not.*

This Court’s decision in Miranda was premised on

the assumption that custodial police interrogation

presents a special risk of pressures that may violate

the prohibition against compelled self-incrimination.

The Court emphasized that the purpose of the warn-

ings prescribed in Miranda is to protect against these

pressures, and that warnings therefore are not re-

quired in every case of official questioning (384 U.S.

at 477, 478). The warnings must be administered

only when “questioning [is] initiated by law enforce-

ment officers after a person has been taken into cus-

tody or otherwise deprived of his freedom of action in

any significant way” (id. at 444 (footnote omitted) ).

The Court subsequently has made clear that the

proper inquiry for determining when a suspect is in

police custody is “whether there is a ‘formal arrest

or restraint on freedom of movement’ of the degree

associated with a formal arrest.” California v.

nothing about whether Miranda warnings—or any other

warnings—were given. The record does not reveal that any

such warnings were given.

* The anomaly of applying the Miranda rationale to this

case is demonstrated by the fact that the state court faulted

the probation officer for offering to do precisely what Miranda

requires—to terminate the interview when the defendant

states that he wishes the advice of counsel before proceeding.

Nothing in Miranda suggests any further obligation to resume

the questioning later. See Michigan v. Mosley, 423 U.S. 96

(1975).

Beheler, 463 U.S. 1121, 1125 (1983) (quoting Ore-

gon v. Mathiason, 429 U.S. 492, 495 (1977)).

Miranda involved police questioning of individuals

suspected of criminal activity who were not other-

wise subject to confinement. Respondent, however,

was incarcerated because he had already been con-

victed; he was not in any special custodial status for

the purpose of or in connection with investigative

questioning, the setting for which Miranda was in-

tended.

An inmate who is questioned for some purpose

without the imposition of any additional restraints

on his liberty is not in the same position for pur-

poses of Miranda as a suspect who was previously

at liberty and is taken into custody for the purpose

of questioning. The courts of appeals have recognized

that “[a] rational inmate will always accurately per-

ceive that his ultimate freedom of movement is ab-

solutely restrained and that he is never at liberty to

leave an interview conducted by prison or other gov-

ernment officials” (United States v. Conley, 779 F.2d

970, 973 (4th Cir. 1985), cert. denied, No. 85-6467

(Oct. 6, 1986)). Thus, application of the traditional

standard for determining whether an interviewee is

in custody for purposes of Miranda “would be tanta-

mount to a per se finding of ‘eustody’” for prison

inmates. /hid.; see also Cervantes v. Walker, 589

F.2d 424, 427-428 (9th Cir. 1978) (application of

the traditional “ ‘free to leave’” standard would

“lead to the conclusion that all prison questioning is

custodial because a reasonable prisoner would always

believe he could not leave the prison freely,” thus

leading to “the illogical position of providing greater

protection to a prisoner than to his nonimprisoned

counterpart”). This result would be wholly inappro-

priate.”

A prison inmate, of course, enjoys no freedom of

movement. The restraints upon a prisoner’s liberty

that are a constant of everyday prison life become

familiar to the inmate and are therefore :inlikely to

have the coercive effect that the Miranda warnings

are designed to dispel. Such a coercive effect will

arise in the prison context only when an inmate’s

liberty has been restricted in some manner that is

different from the restraints that are a consistent

feature of prison life. As the Ninth Circuit bas ob-

served, “[i]n the prison situation, [the concept of re-

striction of the suspect’s freedom] necessarily im-

plies a change in the surroundings of the prisoner

which results in an added imposition on his freedom

of movement. * * * [We look to some act which

places further limitations on the prisoner.” Cervantes

v. Walker, 589 F.2d at 428; accord United States

v. Cooper, 800 F.2d 412, 414-415 (4th Cir. 1986);

United States v. Conley, 779 F.2d at 972-974; United

States v. Scalf, 725 F.2d 1272, 1275-1276 (10th Cir.

1984): United States v. Hayes, 646 F. Supp. 146,

149-151 (N.D. Ind. 1986). For these reasons, a

prison inmate should be deemed to be in custody for

purposes of Mirand= only if he is subjected to more

® Miranda itself states that it was “not intended to hamper

the traditional function of police officers in ‘nvestigating

crime” and that “[g]eneral on-the-scene questioning as to

facts surrounding a crime or other general questioning of

citizens in the fact-finding process is not affected by [the]

holding” (384 U.S. at 477). Failure to modify the definition

of “custody” to take account of the special circumstances of

the prison setting would deprive prison administrators of this

leeway accorded by Miranda itself.

than the usual restraint on his liberty to depart

(Cervantes v. Walker, 589 F.2d at 428).

We do not believe that a contrary result is required

by this Court’s decision in Mathis v. United States,

391 U.S. 1 (1968). In Mathis, an inmate incarcer-

ated in a state prison was interviewed by an agent

of the Internal Revenue Service about possible fed-

eral income tax violations. The agent did not admin-

ister Miranda warnings before initiating the ques-

tioning. This Court reversed the inmate’s subsequent

conviction for filing false tax returns on the ground

that incriminating statements made in the course of

the interview should not have been admitted at crial.

The Court rejected the government’s argument that

Miranda is applicable “only to questioning [of] one

who is ‘in custody’ in connection with the very case

under investigation” (391 U.S. at 4-5).

To be sure, the Court’s brief opinion in Mathis

can be read as establishing a per se rule that an in-

mate who is subject to questioning is automatically

‘in custody’ and is therefore entitled to Miranda

warnings merely by virtue of his status as a prisoner.

We believe, however, that Mathis is better under-

stood as simply rejecting the government’s competing

per se rule that Miranda should not be applicable to

an inmate who is in custody in connection with a case

other than the one under investigation. Several

courts of appeals have interpreted Mathis in that

fashion. See United States v. Conley, 779 F.2d at

972; Cervantes v. Walker, 589 F.2d at 427: see also

United States v. Wiggins, 509 F.2d 454, 459-460

(D.C. Cir. 1975). Under that interpretation, a pris-

oner is not put in a better position than an ordinary

citizen by being entitled to Miranda warnings prior

to questioning of any sort, regardless of the setting.

On the other hand, the prisoner is not put in a worse

position than unincarcerated persons, since he is en-

titled to Miranda warnings if the normal circum-

stances of his confinement are changed for purposes

of the interview in question."

There was no such additional restraint here. In-

deed, both the probation officer and respondent acted

on the understanding that the presentence interview

was an opportunity offered to respondent, not an in-

cident of incarceration to which he was required to

submit. That understanding of the situation also

underlies the Vermont Supreme Court’s analysis—the

“eoercive” threat, in its view, was the threat that

respondent would “forfeit” the opportunity to have

the interview at a later date (Pet. App. 6a). The

interview was thus viewed as a chance for respond-

ent to benefit himself, not as an obligation or an

imposition on him."

1° Formal investigative questioning of an inmate typically

results in a change in the normal circumstances of the in-

mate’s confinement that may justify a finding that the inmate

was in custody for Miranda purposes. That was the case in

Mathis, and it was also the case in several of the court of

appeals cases that have held Miranda applicable to inter-

rogation of a prison inmate. See Battie v. Estelle, 655 F.2d

692, 699 (5th Cir. 1981) (defendant awaiting trial in county

jail was entitled to Miranda warnings when he was examined

by a court-appointed psychologist); Palmigiano v. Baxter,

510 F.2d 534, 536-537 (1st Cir. 1974), rev’d on other grounds,

425 U.S. 308 (1976) (Miranda warnings required when in-

carcerated suspect was interviewed in connection with prison

disciplinary proceeding) ; see also Estelle v. Smith, 451 U.S.

454, 466-469 (1981) (warnings must precede court-ordered

psychiatric examination of prisoner).

11 In the federal system, the offender’s cooperation with the

probation office may often be a critical factor for the sentenc-

ing court when there is a question whether to place an offender

Moreover, the presentence interview does not in-

volve the sort of risk cf intimidation or trickery pre-

sented by police interrogation upon which Miranda

was based. See, e.g., United States v. Mandujano,

425 U.S. at 579-580. The presumption “that without

proper safeguards the circumstances of custodial in-

terrogation deny an individual the ability freely to

choose to remain silent” (Garner v. United States,

424 U.S. at 657), is simply inapplicable here, where

the probation officer was faulted precisely for offer-

ing respondent the option of remaining silent.

There is no suggestion that the course or contents

of the interview itself were in any way affected by

the fact that petitioner attended the interview while

he was incarcerated, rather than released pending

sentencing. In the absence of any such suggestion,

the fact that defendant is incarcerated rather than

released pending sentencing should not make the in-

terview itself custodial interrogation. The Ninth Cir-

cuit has recognized this, holding that “[n]othing in

the record suggests that * * * presentence interviews

on probation or impose a term of imprisonment. In the Sen-

tencing Guidelines & Policy Statements for the Fedcral

Courts submitted to Congress and the President on April 13,

1987, the United States Sentencing Commission has formal-

ized consideration of this factor. The guidelines provide

that the court may reduce the offense level by two levels,

depending upon the nature of the case and manner and extent

to which the defendant acknowledged responsibility. In mak-

ing this determination, one factor the guidelines suggest that

the court look to is whether the defendant made “voluntary

and truthful admission to authorities of involvement in the

offense and related conduct.” See Section 3E1.1 and com-

mentary to that section. It is thus apparent why an offender

is likely to regard a presentence interview as an opportunity

to have a favorable influence on the disposition of his case.

in general[] entail pressures at all similar to those

‘which the Miranda court found so inherently coer-

cive as to require its holding.’” Baumann v. United

States, 692 F.2d 565, 577 (1982) (quoting Beckwith

y. United States, 425 U.S. 341, 341, 347 (1976)). The

Fifth Circuit agrees (Brown v. Butler, 811 F.2d 938,

941 (1987)). Cf. United States v. Dickson, 712 F.2d

952, 955 (5th Cir. 1983) (no violation of Fifth

Amendment privilege when presentence report com-

ments unfavorably on defendant’s refusal to cooper-

ate with federal agents). Several state cases have

reached the same result.”

As Baumann and Brown recognize, Estelle v.

Smith, 451 U.S. 454 (1981), is not inconsistent with

this analysis. There, this Court concluded that state-

ments an incarcerated defendant made to a psychia-

trist in the course of a court-ordered pretrial com-

petency examination could not be used to support im-

position of the death penalty because the defendant

was not informed of his right to remain silent. The

error in Estelle was that statements made in the

course of a routine competency examination were

later used to persuade the jury to impose the death

penalty. The Fifth Amendment privilege was impli-

cated only because the State “used respondent’s own

statements, unwittingly made without an awareness

that he was assisting the State’s efforts to obtain the

death penalty.” 451 U.S. at 466. There was no such

trickery involved here. Respondent chose to discuss

his prior offenses with the probation officer conduct-

12 Burch v. State, 450 N.E.2d 528 (Ind. 1983) (Miranda

warnings not required at presentence interview; does not

disclose whether defendant was incarcerated) ; Commonwealth

v. Burton, 451 Pa. 12, 14, 301 A.2d 675, 677 (1973) (same) ;

Booth v. Commonwealth, 675 S.W.2d 856 (Ky. 1984) (same).

ing the presentence interview. Unlike the respondent

in Estelle, he could scarcely have been under any mis-

apprehension as to the use that might be made of his

statements. Cf. Minnesota v. Murphy, 465 U.S. at

432-433 (probationer has no reasonable expectation

that statements to probation officer will remain con-

fidential). Estelle indicates that the routine use of

statements made in a competency hearing for the

purpose for which they are intended is constitutionally

unobjectionable. 451 U.S. at 465. The routine use

of presentence interview statements for the purpose

for which they are intended is similarly constitution-

ally acceptable.

CONCLUSION

The judgment of the Vermont Supreme Court

should be reversed. 7

Respectfully submitted.

CHARLES FRIED

Solicitor General