Petition for Writ of Certiorari — John Edmund Patterson v. United States

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87-5722

NO. »

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JOHN EDMUND PATTERSON,

PETITIONER,

- vs —

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDY CLARKE

— Defenders of San Diego, Inc.

101 W. Broadway, Suite 440

San Diego, California 92101-8297

Telephone (619) 234-8467

Attorneys for Petitioner

Supreme Court US

FILED

art 19 wer

JOSEPH F SPANIO’. UR.

CLERK

QUESTIONS PRESENTED FOR REVIEW

1. Whether evidence seized pursuant to 4 search warrant

should be suppressed where the affidavit in support of the search

warrant was predicated upon statements made without Miranda

warnings and which the district court ruled were “inadmissible”

since “they (were) fruits of prior coerced statements"?

2. Whether the use of non-Miranda-ized statements to

support probable cause to issue a search warrant violates due

process of law and the Sixth Amendment right to counsel?

3. Whether the sentence in Mexico for the importation or

introduction of counterfeit notes and the circulation of those

notes in Mexico prohibits prosecution for the manufacture of

counterfeit notes in the United States under Title 18, United

States Code, section 4111?

— Prefix -

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JOHN EDMUND PATTERSON,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

The Petitioner, John Edmund Patterson, respectfully

prays that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Ninth Circuit entered

on March 16, 1987.

QPINION BELOW

On March 16, 1987, the Court of Appeals entered its

opinion affirming the convictions of Petitioner for conspiracy to

falsely make counterfeit federal reserve notes and counterfeiting

plates and for making counterfeit federal reserve notes in

violation of 18 U.S.C. §§371, 471 and 474. On August 20, 1987,

the Court of Appeals entered an Order denying the Petition for

Rehearing. A copy of the March 16, 1987 opinion,.which is

reported at 812 F.2d 1188 (9th Cir. 1987), is attached hereto as

Appendix "A". A copy of the August 20, 1987 Order denying

Petition for Rehearing is attached as Appendix 8 1

JURISDICTION

On March 16, 1987, the Court of Appeals entered

judgment affirming the convictions of Petitioner for conspiracy

to falsely make counterfeit federal reserve notes and

1 No other petitioner is involved in this petition.

—

counterfeiting plates and for making counterfeit federal reserve

notes in violation of 18 U.S.C. §§ 371, 471, and 474 (App. A.

On August 20, 1987, an Order was entered denying the Petition for

Rehearing (App. "B"). The jurisdiction of this Court is invoked

under 28 U.S.C. 5 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall! . be compelled in any

criminal case to be a witness against

himself, nor be deprived of life, liberty, or

property, without due process of law; .

United States Constitution, Amendment VI:

In all criminal prosecutions, the accused

shall .. . have the assistance of counsel

for his defense.

Title 18, United States Code, § 4111:

An offender transferred to the United States

shall not be detained, prosecuted, tried, or

sentenced by the United States, or any State

thereof for any offense the prosecution of

which would have been barred if the sentence

upon which the transfer was based had been by

a court of the jurisdiction, seeking to

prosecute the transferred offender...

STATEMENT OF THE FACTS

Petitioner and the United States stipulated to the

facts in the district court. The court below summarized those

facts as:

“Patterson and three others were arrested in Tijuana,

Mexico, on December 16, 1983, in connection with an attempt by

Patterson to pass a counterfeit twenty dollar bill at a local

store. Patterson was taken to the Federal Police Station in

Tijuana. When he refused to make any incriminating statements,

he was bound and beaten by the Mexican police. Patterson was hit

on his back, sides, stomach, face and testicles. After forty-

five minutes to an hour of intermittent beating, Patterson

involuntarily confessed his role in a counterfeiting scheme.

(App. "A" at Pp. 4-5)

“The Mexican police then contacted United States Secret

Service Agent Steven Davis. Approximately three hours later,

Agent Davis interviewed Patterson, who was still in the custody

of the Mexican authorities. Davis did not advise Patterson of

his Miranda rights because (1) he was unaware that he was

required to do so in a foreign country and (2) he knew Patterson

was being prosecuted by the Mexican aufhorities and he was

interested in collecting evidence about Patterson's co-

conspirators in the United States. (App. “A” at p. 5)

»In the presence of the Mexican Federal Police,

Patterson voluntarily provided Davis with a detailed account of

the counterfeiting operation. Agent Davis was unaware that

Patterson had been beaten. (App. "A" at p. 5)

In the early morning of December 17, 1983, Agent Davis

applied for a search warrant for the printing shop in San Diego

identified by Patterson as the location of the counterfeiting

operation. Davis summarized Patterson's statement in an

aff falt in support of the warrant. The warrant was granted by

@ magistrate. (App. "A" at p. 5)

"At 6:00 a.m. on the same day Davis and several other

Secret Service agents established surveillance at the front of

‘he printing shop. Another agent pretended to be a friend of

Patterson. He contacted one of Patterson's co-conspirators who

was present at the shop. After s lengthy conversation, the

undercover agent signaled the other agents who then arrested the

co-conspirator. The printing shop was searched pursuant to the

warrant in question. The search yielded approximately $1,500,000

in counterfeit bills as well as counterfeiting equipment. (App.

"A" at p. 5)

"Patterson was tried and convicted in Mexico on

April 30, 1984 for introducing and circulating counterfeit bills

within Mexico. Pursuant to a treaty, he was voluntarily

transferred to the United States to serve his sentence. ([App.

"A" at p. 6)

“Following Patterson's conviction in the Mexican court,

the United States government brought charges against hin,

pursuant to a seven-count federal grand jury indictment, for

violating United States counterfeiting laws. On May 6, 1985,

Patterson moved (1) to dismiss the indictment on double jeopardy

grounds under 18 U.S.C. § 4111, (2) to suppress the incriminating

statements made to Mexican police and united States Secret

Service Agent Davis, and (3) to suppress all physical evidence

seized at the printing shop. The government agreed to dismiss

four of the seven counts and it agreed not to use Patterson's

statements in its case in chief. (App. "A" at p. 6)

"The district court denied Patterson's got ion to

Gismiss the remaining three counts and the motion to suppress

physical evidence but suppressed Patterson's statements, ruling

that they could not be used even for impeachment purposes

(App. * at p. 6)

The court below acknowledged that the appeal of

Petitioner presented several issues of first impression, stating:

“We must consider whether the counterfeiting charges

against Patterson should have been dismissed pursuant to 18

U.S.C. § 4111 because he had elready been prosecuted in Mexico on

the same charges and whether Patterson's unwarned voluntary ?

statements to Agent Davis could properly be used in an affidavit

in support of 4 search warrant. The latter issue requires us to

consicer (1) whether the statements were the fruit of the prior

coerced statements, (2) whether Miranda applies to statements

used in an affidavit for a search warrant, and (3) whether the

*good- faith’ exception to the exclusionary rule applies if the

statements should not have been used in the affidavit.” (App.

"A" at pp. 6-7)

2 Although the opinion of the court below depicts

Petitioner as having "voluntarily" ided Davis with a

counterfei operation, the district

i

REASONS FOR GRANTING THE WRIT

1. The decision of the court below conflicts with the

principles enunciated by this Court in Wong Sun v. United States,

2210.8. 47) (1963); Brown v. Illinois, 422 U.S. 590 (1975); ang

Edwards v. Arizona, 45) U.S. 477 (1981).

The court below declined to re-examine the

voluntariness of Petitioner's statements to Secret Service Agent

Davis because the Petitioner had stipulated in the district court

that said statements to Agent Davis were voluntary. [App. "A" at

p. 11) However, the district court found that the statements to

Agent Davis were “involuntary” and “inadmissible” since “they are

fruits of prior coerced statements." (C.R. 122 at p. 12)

Consequently, the opinion below that “the fact that

Patterson's statements to Agent Davis followed earlier coerced

statements does not preclude the use of Patterson's statement in

an affidavit for a search warrant” ignores the tests set forth in

Wong Sup and Brown vy. Jilinois. Were, the district court had in

fact found that the statements to Agent Davis not only did not

meet the Fifth Amendment standard of voluntariness but also that

said statements were not an act of free will sufficient to purge

the primary taint. See Brown vy. Illinois, 422 U.S. 590 at 602

(1975).

The record affirmatively reflects that Secret Service

Agent Davis did not advise Petitioner of his Miranda rights,

which this Court said “declared that an accused has a Fifth and

Fourteenth Amendment right to have counsel present during

custodial interrogation." Edwards v. Arizona, 451 U.S. at 482.

The failure of Agent Davis to advise Petitioner of his rights

under Miranda prior to conducting his custodial interrogation

must be deemed a denial of procedural due process and the right

to counsel and therefore constitutional violations which invoke

Wong Sun's “fruit of the poisonous tree." Certainly, there can

be no “intelligent” and “knowing” waiver of the Sixth Amendment

right to counsel where, as here, the Secret Service Agent failed

to inform Petitioner of that right.’ As this Court said in

Edwards v. Arizona, 451 U.S. 477, 482 (1981):

It is reasonably clear under our cases

that waivers of counsel must not only be

voluntary, but sust also constitute a

knowing and intelligent relingquishment or

abandonment of a known right or privilege, a

matter which depends in each case “upon the

particular facts and circumstances

surrounding that case, including the

background, experience, and conduct of the

accused.

(Citing Johngon vy. Zerbst, 304 U.S. 458, 464 (1938).) The use of

statements found by the district court to have been

“involuntary” and “inadmissible” must be deemed a constitutional

violation which prohibits the use of those statements in an

affidavit to obtain a search warrant. The opinion below does not

address these constitutional violations. As a result, this case

Goes not fall within the Court of Appeals’ reading of Oregon vy.

Elstad, 470 U.S. 298, 308 (1985), that the “fruit of the

poisonous tree“ principle only applies where there are

constitutional violations. [See App. “A” at p. 12

Assuming arguendo that there was no “constitutional”

violation but only a violation of the “prophylactic standards” of

Miranda, as the decision of the court below points out, this

Court “has not decided whether statements taken in violation of

Miranda may be used in an affidavit for a search warrant to

establish probable cause." (App. “A” at p. 12) In Massachusetts

v. White, 439 U.S. 280 (1978), this Court addressed the use of

non-Miranda-ized statements to support probable cause. There a

four-four Court affirmed the decision of the state court which

had refused to allow the use of statements taken in violation of

Miranda to provide the basis for a search warrant. This Court

could have resolved New York v. Quarles, 467 U.S. 649 (1964), on

the basis that the nontestimonial fruits of a Miranda violation

are admissible, see concurring opinion of Justice O'Connor, 467

tue instant case is unlike Schneckloth x. Bustamonte

412 U.S. 218 (1973), where this Court found it unnecessary to

provide the Miranda warnings prior to seeking consent to search.

Here, the court below did not address the question as to whether

Petitioner had knowingly and intelligently relinquished his

right to counsel.

U.S. at 660, but did not take this far-reaching step. The Court

chose instead to create the “public safety” exception to Miranda.

The issue of nontestimonial fruits ae Miranda violation was

likewise not resolved by Michigan vy. Tucker, 417 U.S. 433 (1974).

In using the "fruits" of the Miranda violation, the government

invoked the power and assistance of the court without disclosing

thet it had violated the law, namely, that Agent Davis had

obtained the statements from Petitioner without having provided

him with his warnings under Miranda v. Arizona, 384 U.S. 436

(1965). The United States Magistrate who issued the search

warrant was unaware of the Miranda violation and could have

refused issuance of the warrant had he been so informed.

application of 18 U.S.C. § 4,1).

The opinion of the court below acknowledges that

Petitioner “was tried and convicted in Mexico on April 30, 1984,

for introducing and circulating counterfeit bills within Mexico."

(App. “A" at p. 6) However, the opinion fails to consider that

proof of introducing counterfeit bills within Mexico necessarily

includes that the counterfeit bills were imported into Mexico and

not manufactured within Mexico and that the Petitioner was

sentenced based upon all of the actions.

Here, also, the district court found that Petitioner

received punishment in Mexico for both importing and circulating

counterfeit notes C. R. 122 at p. 4). Receiving punishment is

tantamount to the language resorted to by Congress in enacting 18

U.S.C. § 4111, “had he been sentenced by the court of the

jurisdiction seeking to prosecute hin."

In its enactment of section 4111 Congress used the term

“sentence” and not “offense” as the foundation for precluding

prosecution of an offender transferred to the United States. The

Court of Appeals looked to the legislative history rather than

construing the plain language of the statute in restricting the

jeopardy analysis to the offenses ebend. Lapp. "A" at p. 8)

Congress must be deemed to have intended to preclude prosecution

of an “offender” transferred to the United States where such

prosecution was within the ambit of the “sentence” of the fore ien

jurisdiction.

The “FINDINGS OF FACT" of the Mexican Court upon which

that court imposed its sentence unequivocally reflects:

That the one and one-half million dollars in

counterfeit twenty dollar bills (upon which Count Three is

predicated) had been printed on December 15, 1983, at Quality

Printing located on 30th Street of EI Cajon Boulevard in San

Diego, California lc. R. 108, at pp. 4, 7, 8); and

That thirteen photographs of Quality Printing and tne

different processing machinery located there depic’ the place

where defendant and two others printed and produced the N

counterfeit bills by the use of said items then introduced

counterfeit into Mexico to obtain benefits in a way that would

undermine the Treasury Department of the United States. [C.R.

108, at p. 11)

The criminal action instituted against Petitioner in

Mexico, as stated by the Mexican Court, encompassed: “the crime

of circulating counterfeit bank bills and the introduction of

these into the Mexican Republic, as provided and sanctioned by

Article 238, Subsection IV, second paragraph of the Federal Penal

Code.” le. R. 108, at p. 3]

Consequently, the record reflects that Petitioner was

sentenced and punished for a crime in the Mexican Court which had

various elements included in it, namely, the manufacture of

counterfeit bills outside Mexico and the introduction or

importation of those bills into Mexico. As this Court said in Ex

parte Nielsen, 131 U.S. 176 (1889):

here, „ person has been tried and

convicted for a crime which has various

incidents included in it, he cannot be a

second time tried for one of those incidents

without being twice put in jeopardy for the

same offense.

131 U.S. 176 at 188-89. ™

Here, the crime of importing or introducing counterfeit

bills into Mexico included the “various incidents" of

manufacture of those counterfeit bills ovtside Mexico. The

section 4111 language of Congress as to “sentence” clearly

encompasses the manufacture of those bills within the Southern

District of California and prohibited the trial of Petitioner in

that court for that manufacture.

CONCLUSION

For the foregoing reasons, Petitioner prays that «4 writ

ot certiorari issue to review the judgment of the United States

Court of Appeals for the Ninth Circuit.

Respectfully submitted,

Dated: October 19, 1987 N 22

Federal Defengers of San Diego, Inc.

101 West ay, Suite 440

San Diego, California 92101-8297

Telephone: (619) 234-8467

Attorneys for Petitioner

2 „ RECEIVED

sl MAR 18 1887 7 ® )

es

UNITED STATES COURT OF APPEALS“ 2 — —

FOR THE NINTH CIRCUIT ——— — Davis. Approni-

TT ~ A dant, who was still in the custody of the Mexican authorities

: , Unrreo Srerts OF AMERICA, Davis did not advise defendant of bis Miranda nghts.

Ce: 8 Norns Appellee. No 86-5068 ; —

1 D.C. No.

pce: De 4 c 84.00141-JL1-01

on ~ ny Jonn EDMUND PaTTEeRson, OPINION

30 ve ee

L@te.ud

; Argued and Submitted

November 7, | 986— Pasadena, oe

Filed March 16, 1987

Before James R Browning, Chief Judge.

Alfred I Goodwin and Jerome Farris, Circuit Judges

Opinion by Judge Farns

Appeal from the United States Distnct Court

for the Southern Distnct of Calforma

J Lawrence Irving, District Judge, Presiding

SUMMARY

CH Procedure

Appeal from conviction Affirmed.

Defendant Patterson was arrested in Mexico in connection

with an attempt by defendant to pass a counterfeil twenty

dollar bill at a store Defendant was taken to the police station

in Tyuana After forty-five minutes to an hour of intermittent

beating. defendant involuntarily confessed his role in a coun-

2 — 3

APPENDIX A“

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seized pursuant to the search warrant should have been sup

pressed, because the affidavit in support of the search warrant

was based on unwarned statements that followed coerced

statements This court has not yet decided an appeal involv-

ing a statement elicited after a bor involuntary statement

and later used in an affidavit for a search warrant [S| How-

ever. this court need not re-examine the voluntanness of

defendant's second statement to Agent Davis because defen-

dant stipulated that his statement to Davis was voluntary

Therefore, the fact that defendant's statements to Davis fol.

lowed earlier coerced statements does not preclude the use of

defendant's statement in an afhdavit for a search warrant

Je All evidence concerning defendant is not fruit of the

poisonous tree simply because it would not have come to hight

but for the reprehensible actions of the police in Mexico.

Agent Davis did not exploit the brutai beating of defendant

which led to defendant's first statement He did not know

about the beating Davis's questions elicited voluntary

responses in a manner which purged the pnmary taint so that

the responses could be used in an affidavit to support a search

warrem. ' The Supreme Court has not decided whether

statements taken in violation of Miranda may be used in an

affidavit for a search warrant to establish probable cause This

lish probable cause [8] Since defendant's statements could

properly be used to obtain the search warrant, this court need

not decide the applicability of the good faith exception.

COUNSEL

Judy Clarke, San Diego, California, for the defendant-

appellant

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a Unrrep States v. Patrerson

Patrick O'Toole, San Diego, California, for the plaintiff-

appellee

OPINION

FARRIS, Circuit Judge:

John Edmund Patterson appeals his conviction of one

count of conspiring to make counterfeiting plates and coun-

ierſen twenty dollar federal reserve notes, in violation of 18

U.S.C. §§ 371, 471, and 474 (1982), and of one count of coun-

terfeiting federal reserve notes as proscribed by 18 USC.

§ 471. The conviction followed a conditional guilty plea pur

suant to Fed R Crim. F | (a2). Patterson was sentenced to

two years of probation.

Patterson argues (|) that the counterfeiting charges against

him should have been dismissed pursuant to 18 U.S.C. § 4111

(1982) because he had already been prosecuted in Mexico on

the same charges and (2) that evidence seized pursuant to a

search warrant should have been suppressed because the afh-

davit in support of the warrant was based on unwarned state

ments that followed coerced statements We affirm

I. BACKGROUND

A. Facts

The parties stipulated the facts The stipulation can be

summanzed as follows.

Patterson and three others were arrested in Tijuana Mex-

ico, on December 16, 1983, in connection with an attempt by

Patterson to pass a counterfeit twenty dollar bill at a local

store. Patterson was taken to the Federal Police Station in

Tyuana When he refused to make any incriminating state

1 J

Unrrep Sta Tes v. Parrerson 5

ments, he was bound and beaten by the Mexican police Pat-

terson was hit on his back sides, stomach, face, and testicles

After forty-five minutes to an hour of imtermittent beating.

Patterson involuntarily confessed his role in a counterfeiting

scheme

The Mexican police then contacted United States Secret

Service Agent Steven Davis. Approximately three hours later.

Agent Davis interviewed Patterson, who was still in the cus-

tody of the Mexican authorities. Davis did not advise Patier-

son of his Miranda rights because (I) he was unaware that he

was req red to do so in a foreign country and (2) he knew

Patterson was being prosecuted by the Mexican authorities

and he was interested in collecting evidence about Patterson's

co-conspirators in the United States.

In the presence of the Mexican Federal Police, Patterson

voluntarily provided Davis with a detailed account of the

counterfeiting operation Agent Davis was unaware that Pat-

terson had been beaten

In the early morning of December 17, 1983, Agent Davis

applied for a search warrant for the printing shop in San

Diego identified by Patterson as the location of counterfeiting

operation Davis summanzed Patterson's statement in an

affidavit in support of the warrant. The warrant was granted

by a magistrate

At 8:00 a.m. on the same day Davis and several other

Secret Service agents established surveillance at the front of

the printing shop Another agent pretended to be a fnend of

Patterson — deg he ed —¾4

who was at the shop. a lengthy conversation,

pr Sn rn the other agents who then arrested

to the warrant in question The search yielded approximately

31.500.000 in counterfeit bills as well as counterfeiting equip

ment

6 Unrrep stens Parrenson

B. Proceedings

Patterson was tried and convicted in Mexico on April 30,

1984, for introducing and circulating counterfeit bills within

Mexico. Pursuant to a treaty, he was voluntarily transferred

to the United States to serve his sentence.

Following Patterson's conviction in the Mexican court, the

United States government brought charges against him, pur-

suant to a seven count Federal Grant Jury indictment, for

violating United States counterfeiting laws. On May 6, 1985,

Patterson moved (1) to dismiss the indictment on double

jeopardy grounds under 18 U.S.C. § 4111, (2) to suppress the

incnminating statements made to the Mexican police and

United States Secret Service Agent Davis, and (3) to suppress

all physical evidence seized at the printing shop. The govern-

ment agreed to dismiss four of the seven counts and it agreed

not to use Patterson's statements in its case in chief

The district court denied Patterson motion to dismiss the

remaining three counts and the motion to suppress physica!

evidence but suppressed Patterson's statements, ruling that

they could not be used even for impeachment purposes Pat-

terson then pied guilty to one count of conspiring to make

counterfeiting plates and twenty dollar federal reserve notes,

in violation of 18 U.S.C. §§ 371, 471, and 474; and to one

count of counterfeiting federal reserve notes as proscribed by

18 U.S.C. § 471. The third count was dismissed.

Patterson's appeal involves several issues of first impres-

sion. We must consider whether the counterfeiting charges

against Patterson should have been dismissed pursuant to 18

U.S.C. 4111 because he had already been prosecuted in Mex-

ico on the same charges and whether Patterson's unwarned

voluntary statements to Agent Davis could properly be used

in an affidavit in support of a search warrant. The latter issue

Unrrep States v PATTERSON 7

requires us to consider (1) whether the statements were the

fruit of the prior coerced statements, (2) whether Miranda

applies to statements used in an affidavit for a search warrant,

and (3) whether the “good-faith” exception to the exclusion-

ary rule applies if the statements should not have been used

in the affidavit.

Ill. DISCUSSION

A. Application of Section 411!

III Patterson contends that the wording of § 4111 implies

broader double jeopardy protection than that defined in exist-

ing case law. He further contends that this broad protection

prohibits his prosecution in the United States because he was

already prosecuted for the same offense in Mexico. We review

this question of law de novo. See United States v. Launder.

743 F.2d 686, 688-89 (9th Cir. 1984)

Section 4111 provides in part:

An offender transferred to the United States shal!

not be... prosecuted . dy the United States . . for

any offense the prosecution of which would have

been barred if the sentence upon which the transfer

was based had been by a court of the jurisdiction

seeking to prosecute the transferred offender. .. .

The statute defines “offender” as “a person who has been con-

victed of an offense... .” 18 U.S.C. § 4101(e). lt defines sen-

tence as “not only the penalty imposed but also the judgment

of conviction. ...” 18 U.S.C. § 4101(h). ©

The statute requires us to hypothesize that the first sen-

tence was imposed by a United States District Court. The

transfer of Patterson from Mexico to the United States should

be analyzed as if it were a transfer between two United States

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[2] The legislative history reveals that § 4111 “provides the

that he would have had had he been sentenced by the coun of

the jurisdiction seeking to prosecute bim H.R. Rep. 720,

95th Cong, Ist Sess. 38, reprinted in 1977 U.S. Code Cong.

& Admin News 3/46, 316! (emphasis added) Patterson's

contention that he is afforded expanded double jeopardy pro

tection under § 4!!! is without ment.

U.S. 299(1932) is apposite The test is appropriate where the

legisiati ve intent of the relevant statutes is pot clear See gen.

erally. Garrett ». United States. . US. —. 105 s Ci. 2407

(1985) Here legislative history which would define the inter.

ules is Nonexistent

In Blockburger the Supreme Court stated that “where the

same act or transaction constitutes a violation of two distinct

Statutory provisions, the test to be apphed to determine

whether there are two offenses or only one. 1s whether each

Provision requires proof of a fact which the other does

not... .” Blockburger, 284 US. at 304, see also May » United

States, 261 F.2d 629, 630 (9th Cir. 1958) (applying

Blockburger to uphold conviction for three counts of counter-

„

a

Patterson was convicted in Mexico under 13 CDF an

238, § TV, 1 two. That statute provides, in relevant part, that

“[w)hoever introduces into the Repubhc or circulates im it

counterfeit or altered bills as proscnbed by this section shal!

be punished... .” Article 238, §§ 1, Il, inn and the first para-

of IV make it ce to counterfeit or alter Mexican or

bank bills Circulating counterfeit bills 1s chme dis-

tinct from producing counterfert bills The record of Patter.

— = — —

Unrreo Staves v Parrersow .

son's Mexican tral 1s replete with facts emphasizing that be

circulated foreign bills

On the other hand Count One of the offense charged by the

United States government involves a conspiracy, under 18

U S.C. § 371, to twenty dollar reserve notes, as pro-

scribed by 18 U.S.C § 474, and (2) counterfeiting plates, as

proscribed by 18 U.S.C. § 471. A violation of the U.S. con-

spiracy statute does not require the same elements or facts as

does a violation of the Mexican statute for circulating coun-

terte Dalls

Count Three, however, charged Patterson with the subsian-

tive offense of counterfeiting 18 U.S.C. § 471. That section

does not require or mention circulating the counterfeit notes

Instead, it provides that “[w}hoever, with intent to defraud.

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afidavit im suppor of the search warrant was based on

unwarned statements that followed coerced statements If the

statements should not have been used in the search warrant

afhdavit. then the warrant may have been defective for lack

of probable cause

1 Sagnificance of the Prnor Coerced Statements

We have not yet decided an appeal involving a statement

ehcited after a pror involuntary statement and later used in

an afhdayit for a search warrant However, this court and the

“When a statement 1s claimed to be madmissible as the

product of a pnor coerced confession the issue is solely one of

voluntariness.” United States v Schmidt, $73 F.2d 1057.

1062 (9th Cir), cert denied. 439 U.S. 881 (1978), see also.

Clewis » Texas, 386 US. 707, 708 (1967) (the issue is

whether, considernng the totality of circumstances. the state

ment was voluntary), Lyons » Oklahoma, 322 U 8 596, 603

—— abide m identity of the

Oregon

interrogators ~

„ Elstad. 470 U.S. 298, 310(1985), (4) removal of the

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Uwrrep Stares v. Parrensow 11

conditions which preclude the use of the first statement.

United States „ Bayer. 331 U.S. $32, 540-41 (1947).

Similar considerations have been advanced, under 4 ong

Sun v United States, 371 US. 471 (1963) and its progeny, to

determine whether to admit statements or other fruits

derived from an illegal arrest or entry in violation of the

Fourth Amendment “In order for the causal chain, between

the illegal arrest and the statements made subsequent thereto.

to be broken, Wong Sun requires not merely that the state-

ment meet the Fifth Amendment standard of voluntanness

but that it be sufficiently an act of free will to purge the pri-

mary taint.” Brown v Illinois, 422 US. $90, 602 ( 1975) ens.

thon omitted)

[5S] We need not re-examine the voluntariness of Patter-

son's second statement to Agent Davis Patterson stipulated

that bis statement to Davis was voluntary “When parties

have entered into stipulations as to maternal facts, our duty 1s

to treat such facts as having been established by the clearest

proof” Schlemmer» Provident Life & Accident Ins Co. 349

F 2d 682, 684 (9th Cir. 1965), see also Kealy v. Harter, 682

F 2d 198, 201 (8th Cir. 1982) (“Voluntary stipulations of fact

are conclusive and can de controverned on appeal only under

statements does not preclude the use of Patterson's statement

om an affidavit for a search warrant

{6} All evidence concerning Patterson is not “frust of the

porsonous tree simply because u would not have come to

light but for the reprehensible actions of the police in Tu

See Wong Sun, 371 US. at 487-88. Agent Davis did not

explort the brutal beating of Patterson which led to Patter-

son's first statement He did not know about the beating nor

12 Uwnrrep Stents PaTrrersow

affidavit to support a search warrant. We express no view as

to other uses of Patterson's statements We limit our review

to the umique fact situation and issues before us

2. Miranda Violation

standards laid down to safeguard that pnvilege See Michigan

v Tucker, 417 US. 433, 446 (1974). Statements obtained in

violation of Miranda may not be admitted against the

accused, at least in the prosecution's case in chief Fare »

Michael C 442 US. 707, 718 (1979). “But the Wande

Presumption. though irrebuttable for purposes of the prose-

cution’s case in chief, does not require that the statements

and their fruits be discarded as inherently tainted ” Elsiad

[7] The Supreme Court has not decided whether statements

taken in violation of Miranda may be used in an ahda vt for

a search warrant! to establish probable cause The Supreme

Coun y ryt this issue in Massachusetts v

White. ; 1978\ per cunam), aff'd by an equally

divided Court Commonwealth e White. 374 Mass. 132, 37!

NE.24 777 (1977), reh'g denied, 439 U.S. 1136(1979), but an

equally divided court (4-4) afirmed the decision of the Mas

made in violation of Miranda Our decision in United States

v. Lemon, 550 Fd 467 (9th Cir. 1977), however, dictaics a

1s 11 argued that he had reason to know about 1 Davis s ques- Py ts ‘

tons elicited voluntary responses in a manner which purged ‘ In Lemon we held that it was to admit )

the primary taint so that the responses could be used in an tee Ganse—anashad bile hom sobbed beste endo — —

41

198525

S

2

Unrrep States v Paterson 13

the one worn by the robber discovered after police arrested

search,” id at 473, relying Principally upon the Fifth Circuit's

decision in United States „ Garcia, 496 F.24 670, 674-75

(1974).

Lemon requires a holding that Patterson's statement, con-

cededly voluntary, was properly used to establish probable

cause

could Properly be used to obtain the search warrant, we need