# Petition for Writ of Certiorari — John Edmund Patterson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1464%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 922 ## Text 65 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“ — ——ů—— 2202 te. * 9 ec 1 | 2 2 * 0 5 0 * ct > 4 Cc 1 9 4 3 Uwrrep Stents» Parrerson 3 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 1 72 a? 94205 92020 fo 44 * 0 [CU . 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 o¢ 0 ay 1 * ‘ i 9 6 9202 — oO 22 125 1 Unrrep rents Parrersow [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. * that person — — ata ~ 9 9020202 Sat Se at e Cnr 2 10 Uwrrep Staves e PaTrersow 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 6 3 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1464%3A2. Public record. Not legal advice.