# Amicus Curiae Brief — Vermont v. Cox > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1148%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 479 U.S. 1083 ## Text No. 86-1108 In the Supreme Court of the OCTOBER TERM, 1986 STATE OF VERMONT, PETITIONER v. 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 ay fe. at 2 ~~ sone - - ° hay “ » -“< ~ 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, 17 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, 19 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 Hy F A, ae ene 7 tee —, a a Oe ~ etre ie ier eh abt cae nal 7 i i a) a rs < t & 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 4 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). 7 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- 10 cer would write a favorable sentencing report.‘ That is not enough to render respondent's interview with the probation officer the product of compulsion.’ i Li iy fies rt5i [iti vel it 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 i + | | i tl Hi rigst igus z i ? 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. 11 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. 12 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 13 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 14 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). 15 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 16 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. 17 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. 18 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 19 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. 20 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). \ 21 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 WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General KATHLEEN A. FELTON Attorney APRIL 1987 WT UV. S. GOVERNMENT PRINTING OFFICE; 19867 1614863 40314 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1148%3A6. Public record. Not legal advice.