Amicus Curiae Brief — Dickerson v. United States

No. 99-5525 HN

IN THE

Supreme Court of the United States

CHARLES THOMAS DICKERSON,

Petitioner,

V.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF BENJAMIN R. CIVILETTI AMJCUS CURIAE

IN SUPPORT OF THE UNITED STATES OF AMERICA

Benjamin R. Civiletti

Kenneth C. Bass, III

(Counsel of Record)

John F. Cooney

Venable, Baetjer, Howard &

Civiletti LLP

1201 New York Avenue, N.W.

Washington, D.C. 20005

(202) 962-4800

Counsel for Amicus Curiae

January 28, 2000

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

ee I 6 v0 5 6.55 40605 Seeds ennda cs li

INTEREST OF AMICUS CURIAE ...............4..5. l

SUMMARY OF ARGUMENT ...................... 2

EE fd be unc Sebel eckeneene ieeaecsauekns 5

I. THE MIRANDA RULES AID THE

ENFORCEMENT OF FEDERAL

CRIMINAL LAWS BY FACILITATING

DECISIONS BY PROSECUTORS

CONCERNING WHICH CRIMINAL CASES

SHOULD BE PURSUED ................. 5

Il. THE COURT OF APPEALS VIOLATED

THE PRINCIPLE OF SEPARATION OF

POWERS AND USURPED EXECUTIVE

AUTHORITY, BY BASING ITS DECISION

ON A GROUND THAT THE EXECUTIVE

BRANCH EXPLICITLY DECLINED TO

ey ee ee 7

A. Governing Legal Authority ................. 8

B. The Decision by the Court of Appeals, to

Overturn the Suppression of the Defendant’s

Statement on a Ground that the Executive

Branch Expressly Chose Not to Present,

Violated the Principle of Powers ............ 12

EE Givi dnd San RkGNES weed euasoncesdeness 16

TABLE OF AUTHORITIES

Page(s)

CASES:

Baker v. Carr, 369 U.S. 186 (1962) ..............005- 1]

Davis v. United States, 512 U.S. 452 (1994) ......... 7,14

Ex parte United States, 287 U.S. 241 (1932) ............ 9

Heckler v. Chaney, 470 U.S. 821 (1985) ............... 8

Miranda v. Arizona, 384 U.S. 436 (1966) ......... passim

Morrison v. Olson, 487 U.S. 654 (1988) ........... 13,14

Muskrat v. United States, 219 U.S. 346 (1911) ......... 3 11

Nathan v. Smith, 737 F.2d 1069 (D.C. Cir. 1984) ....... 1]

Newman v. United States, 382 F.2d 479 (D.C. Cir.

BDG7) . 0000s 00008's ee eee ee eee 9

Northern Pipeline Construction Co. v. Marathon Pipe

Line Co., 458 U.S. SO (IGRZ) ... oc nc cc cccscessees 1]

The Grey Jacket, 72 U.S. (5 Wall.) 370 (1866) .......... 9

United States v. Armstrong, 517 U.S. 456 (1 996) eo 8,9

United States v. Cox, 342 F.2d 167 (5" Cir.)(en banc),

cert. denied, 381 U.S. 935 (1965) ............. 9,10

United States v. Nixon, 418 U.S. 683 (1974) ............ 8

United States v. San Jacinto Tin Co., 125 U.S. 273

(UGGE) onc cccyeccccesessus Guy smu 9

United States v. Thompson, 251 U.S. 407 (1920) ........ 9

ii

Table of Authorities continued

Page(s)

CONSTITUTIONAL AND STATUTORY PROVISIONS:

U.S. Constitution

PE ccecdddedsescesececveccccevccces 8

ET Sdescdeeecdeceseosecoceccccceces 8

Statutes

PU MED cc cccccccccccccccccerecccccecess 7

BI EE scvccccccccccccccccescccccccccoees 4

MEINE cc ccccccceccccscccccvccccccccceces | i)

MPURME IEE cccccccccccecccccceccocccess passim

MISCELLANEOUS:

2 Op. Att’y Gen. 482 (1831) ........ ne a Oe )

iii

IN THE

Supreme Court of the United States

No. 99-5525

CHARLES THOMAS DICKERSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF BENJAMIN R. CIVILETTI AMICUS CURIAE

IN SUPPORT OF THE UNITED STATES OF AMERICA

INTEREST OF AMICUS CURIAE

Benjamin R. Civiletti, having obtained the written consents

of the parties pursuant to Rule 37.3, submits this Brief amicus

curiae.' Mr. Civiletti is a distinguished lawyer with a long

career that spans public service and private practice. His

background and experience in criminal law provide a basis for

' This brief was not authored, in whole or in part, by counsel to a party,

and no monetary or other contribution to the preparation or submission of

this brief was made by any person or entity other than the amicus and his

counsel. The consents of the parties have been filed with the Court.

his analysis, from the point of view of Federal prosecutors, of

the effects of the Miranda warnings on the operation of the

criminal justice system and of the adverse effects of the lower

court's decision on the ability of the Department of Justice to

Carry Out its role, as the President’s delegate, in helping him

discharge his constitutional responsibility to "take care that the

laws be faithfully executed."

From 1962 until 1964, Mr. Civiletti served as an Assistant

United States Attorney. In 1977, he joined the Department of

Justice as the Assistant Attorney General in charge of the

Criminal Division. In 1978, he was appointed Deputy Attorney

General. In 1979, he was appointed Attorney General and

served in that capacity until the end of the Carter

Administration in 1981. During his tenure at the Department,

Mr. Civiletti was responsible for the development and

publication of the Department’s Principles of Federal

Prosecution. Mr. Civiletti is presently engaged in private

practice in Washington, D.C. at the firm of Venable, Baetjer,

Howard & Civiletti, where he serves as Chairman of the firm’s

Board. The views expressed in this Brief are those of Mr.

Civiletti and his counsel in their personal capacities and do not

necessarily reflect the views of the firm.

SUMMARY OF ARGUMENT

The decision in Miranda v. Arizona, 384 U.S. 436 (1966),

is a victim of its own success. In the 34 years since the case

was decided, prosecutors at all levels, as well as State and

Federal courts, have largely been spared the extensive litigation

over the voluntariness of confessions that marked

administration of the prior totality-of-the-circumstances test.

Id., at 476, 490. Memories of the pre-Miranda prior period

have dimmed for many lawyers and many judges.

The majority and the dissent in the Fourth Circuit

discussed at length whether the Miranda warnings are required

by the Constitution. At bottom, this is a fruitless scholastic

debate over nomenclature. All sides agree that, in Miranda,

this Court established a functional requirement as to the level

of protection that must be met in order to preserve the rights of

subjects of custodial interrogations. While the precise words of

the Miranda warnings are not constitutionally required, in order

to devise an alternative protocol that satisfies the Fifth

Amendment, a State government or Congress must establish

procedures that provide a degree of protection against

involuntary confessions that is greater than or equal to that

provided by the classic formulation of the four Miranda

statements. The statute on which the Fourth Circuit relied, 28

U.S.C. § 3501, plainly does not provide the required level of

protection and therefore cannot, by itself, provide a

constitutionally sufficient basis for admission of a custodial

confession in the prosecution’s case-in-chief. For this reason,

regardless of the taxonomic category in which one places the

Miranda warnings, the position of the United States should be

sustained.

Rather than discuss this issue, which will be covered at

length by the Solicitor General and the amicus party who

participated below, this Brief Amicus Curiae will present two

issues that are not addressed by the parties. First, the current

Miranda warnings are of substantial benefit to Federal

prosecutors in the administration of the criminal laws. By

reviewing whether the police have complied with four bright-

line rules before conducting custodial interrogations, Federal

prosecutors can determine efficiently, and with a high degree

of accuracy, whether the defendant’s confession is likely to be

admitted into evidence and thus whether the government

possesses sufficient admissible evidence to warrant proceeding

with a criminal charge.

Second, the court of appeals violated the principle of

separation of powers by considering the question whether

Dickerson’s confession was admissible under Section 3501,

when the United States made a considered decision not to

attempt to justify its admission on that basis. Under the

Constitution, the President, acting through his delegate the

Attorney General and her subordinates, has exclusive authority

to enforce the criminal laws. As long as the prosecutor does

not exceed legal or constitutional limitations, the Department

of Justice has unreviewable discretion as to whether to initiate

a prosecution, the terms under which a prosecution will be

conducted, the evidence that will be presented in support of a

charge, and whether to dismiss a prosecution.

The Attorney General has formally informed Congress that

the Department of Justice believes that Section 3501 is

unconstitutional and that it will not argue for admission under

that provision of confessions that violate the Miranda

warnings. The decision by the prosecution in this case, not to

argue before the court of appeals for admission of Dickerson’s

statement on the basis of Section 3501, was a considered

application of the general Executive Branch policy. The Fourth

Circuit has usurped the exclusive authority of the Executive

Branch to determine how to prosecute this criminal case, in

overturning the suppression decision under Section 3501 in

response to an argument made by an amicus that contradicted

the express policy decision of the Department of Justice not to

seek admission of the confession on that basis.

ARGUMENT

I. THE MIRANDA RULES AID THE

ENFORCEMENT OF FEDERAL CRIMINAL

LAWS BY FACILITATING DECISIONS BY

PROSECUTORS CONCERNING WHICH

CRIMINAL CASES SHOULD BE PURSUED.

Miranda prevents the introduction in the prosecutor’s case-

in-chief of statements obtained from the defendant in a

custodial interrogation, unless the suspect was given prescribed

warnings and knowingly waived his rights to remain silent and

to have legal counsel.

A Federal prosecutor, seeking to determine whether the

government has sufficient evidence to prosecute and obtain a

conviction against a suspect, derives substantial benefits from

the Miranda rules. The easily understood, bright-line nature of

the tests provides the prosecutor with a highly reliable

mechanism for determining whether statements made during a

custodial interrogation will be found to be voluntary and thus

be deemed admissible at trial. With a clear understanding as to

whether this critical aspect of the government’s proof is

admissible, the prosecutor may make an informed judgment as

to whether the government has enough information to initiate

a criminal proceeding and whether it must obtain additional

information about the defendant and the crime in order to

increase its prospects of obtaining a conviction at trial.

By contrast, under a totality-of-the-circumstances approach

to admission of a custodial confession, a Federal prosecutor

faces a more difficult calculus, whose results are less

predictable. The prosecutor must weigh whether a Federal

district judge will determine that the defendant’s statement was

made in a custodial setting; whether the podlice properly

apprised the defendant of his rights; and whether, balancing all

the aggravating and ext:uuating factors surrounding the

interrogation, the judge is likely to admit the evidence or

preclude its admission in the government’s case-in-chief.

At a minimum, a totality-of-the-circumstances regime

would generate increased litigation over the admissibility of

statements made by criminal defendants during interrogation.

This would impose increased time and resource demands on

United States Attorneys and their assistants. Further. Federal

prosecutors would no longer be able to verify, quickly and with

minimum investigation costs, whether Federal law enforcement

personnel had properly warned the defendant before taking his

statement. Therefore, uncertainty and a risk of error would be

introduced into the prosecutor’s pre-trial determination as to

whether the government has a case that would prove guilt

beyond a reasonable doubt. The clearest showing on this point

is the extensive litigation over the voluntariness issue that

occupied the Federal courts of appeals and this Court in the

years immediately before Miranda was decided.

In sum, the benefits of the current Miranda protocols to

Federal prosecutors, and the problems for the prosecution that

would be reintroduced by a return to a totality-of-the-

circumstances regime, counsel strongly that the Court should

follow the doctrine of stare decisis and reject the argument that

Section 3501, rather than Miranda, governs admission of

custodial confessions in Federal criminal trials.

Il. THE COURT OF APPEALS VIOLATED

THE PRINCIPLE OF SEPARATION OF

POWERS AND USURPED EXECUTIVE

AUTHORITY, BY BASING ITS DECISION

ON A GROUND THAT THE EXECUTIVE

BRANCH EXPLICITLY DECLINED TO

INVOKE.

In Davis v. United States, 512 U.S. 452 (1994), the

Court declined, as a prudential manner, the invitation of an

amicus curiae that it consider whether a confession that was

not obtained in compliance with Miranda could nonetheless be

admitted under Section 3501. /d., at 457-458 n. *. Since that

time, the Attorney General has formally notified Congress,

pursuant to 2 U.S.C. § 288k(b), that the Department of Justice

will not defend the constitutionality of Section 3501. In the

appeal to the Fourth Circuit, no party in this criminal

prosecution raised the issue of whether Section 3501 provided

an independent ground for admission of Dickerson’ s statement

or whether the statute, if so applied, was constitutional.

Under these circumstances, the Fourth Circuit violated

the principle of separation of powers in addressing the

admissibility of the confession under Section 3501 , when the

question was not presented by either the prosecution or the

defendant. By ignoring the Attorney General’s explicit

decision that the Department of Justice would not argue in any

case that Section 3501 permitted admission of a confession that

was invalid under Miranda, the court of appeals usurped the

exclusive, discretionary authority of the Executive Branch to

determine how it would prosecute this criminal case.

The Executive Branch, no less that the Judiciary, has a

sworn duty to uphold the Constitution. That duty requires

Executive Branch prosecutors not to assert legal argumen’s that

are inconsistent with the Constitution. Where, as here, mature

consideration persuades the Attorney General that a statute is

unconstitutional, the Executive Branch should not seek to

enforce it, and the courts are without authority to force

prosecutors to rely on a potential argument in support of their

case that they have determined not to use. Review of the

Department’s policy decision rests with Congress. If Congress

has a different view, Congress has remedies through its powers

of oversight, appropriations, confirmation and impeachment.

There is no need for the Judiciary to intervene to, in effect,

provide an advisory opinion on the issue.

A. Governing Legal Authority.

Art. Il, § 1 of the Constitution provides that the

“executive Power shall be vested in a President of the United

States of America." Art. II, § 3 further states that the President

"shall take care that the laws be faithfully executed... ."

These provisions establish the core of the President’s

constitutional responsibility to enforce the criminal laws, an

area that the Court has characterized as a "special province" of

the Executive. United States v. Armstrong, 517 U.S. 456, 464

(1996), quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985).

The Executive Branch “has exclusive authority and

absolute discretion to decide whether to prosecute a case."

United States v. Nixon, 418 U.S. 683, 693 (1974). Neither the

Judicial nor Legislative Branches may interfere with the

discretion of the Executive by directing the Department of

Justice to prosecute particular individuals or by dictating the

positions that the United States shall take in prosecuting those

cases.”

The Attorney General and her subordinates, including

the United States Attorneys, have broad discretion to enforce

the criminal laws, because they are designated by statute as the

President’s delegates to help him discharge his constitutional

responsibility to take care that the laws be faithfully executed.

28 U.S.C. §§ 516, 547; Armstrong, 517 U.S. at 464. See

United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); The

Grey Jacket, 72 U.S. (5 Wall.) 370 (1866). See 2 Op. Att’y

Gen. 482, 486 (1831)(the President has supervisory power over

the prosecution of lawsuits by United States Attorneys as a

necessary consequence of the duty to take care that the laws be

faithfully executed).

As then Judge (later Chief Justice) Burger stated in

Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967):

Few subjects are less adapted to judicial review

than the exercise by the Executive of his

discretion in deciding when and whether to

institute criminal proceedings, or what precise

charge shall be made, or whether to dismiss a

proceeding once brought.

The broad scope of the Attorney General’s discretion

was further confirmed in United States v. Cox, 342 F.2d 167

2 See United States v. Thompson, 251 U.S. 407, 412-13 (1920)(the

Executive Branch has an absolute right to determine whether to initiate

prosecutions for crime, which is not subject to control by judicial

discretion); Ex parte United States, 287 U.S. 241 (1932) (distric: court may

not refuse to issue arrest warrant after indictment, because this would negate

the absolute right of the Executive Branch to prosecute).

9

(5" Cir.)(en banc), cert. denied, 381 U.S. 935 (1965). There,

the court overturned a district court order that the United States

Attorney must file an indictment that the grand jury had voted

to return.

The Attorney General is the hand of the

President in taking care that the laws of the

United States in legal proceedings, and in the

prosecution of offenses, be faithfully executed.

... The discretionary power of the attorney for

the United States in determining whether a

prosecution shall be commenced or maintained

may well depend upon matters of policy wholly

apart from any question of probable cause. . . .

[I]t is as an officer of the executive department

that he exercises a discretion as to whether or

not there shall be a prosecution in a particular

case. It follows, as an incident of the

constitutional separation of powers, that the

courts are not to interfere with the free exercise

of the discretionary powers of the attorneys of

the United States in their control over criminal

prosecutions.

342 F.2d at 171. In a concurring opinion concerning the

application of the former Independent Counsel Act, Judge Bork

also explained:

the principle of Executive control extends to all

phases of the prosecutorial process. ... If the

execution of the laws is lodged by the

Constitution in the President, that execution

may not be divided up into segments, some of

which courts may control and some of which

10

——~_£

—_

the President’s delegate may control. It is all

the law enforcement power and it all belongs to

the Executive.

Nathan v. Smith, 737 F.2d 1069, 1079 (D.C. Cir. 1984)(per

curiam)(Bork, J., concurring).

Article III gives Federal courts the power to pronounce a

judgment and carry it into effect between persons and parties

who bring a case before the court for resolution. Muskrat v.

United States, 219 U.S. 346, 356 (1911). This Court

consistently has taken a strict approach to defining the powers

of Article III courts, in part to safeguard the independence of

the Judiciary against encroachments by the other Branches,

Northern Pipeline Construction Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 74 (1982), but also from the recognition that

the courts should not interfere with authority "committed by the

Constitution to another branch of government." Baker v. Carr,

369 U.S. 186, 211 (1962).

Article III courts possess the authority, of course, to make

certain that Federal prosecutors do not exceed legal or

constitutional limitations in investigation or prosecution of

crimes. This Court’s prior decisions establish, however, that so

long as the United States Attorney is operating within the

proper sphere of his or her authority in prosecuting a crime, the

Judicial Branch may not interfere with the discretion of the

Executive as to how it will seek to enforce the law. This

principle of judicial non-interference extends to such basic

subjects as what evidence to introduce, what witnesses to call,

or what legal arguments the prosecutor will present in

opposition to defense motions to suppress evidence.

linterference by an Article II] court with the prosecutor's

11

discretion on these basic questions impinges upon the

Executive’s constitutionality authority.

B. The Decision by the Court of Appeals, to

Overturn the Suppression of the Defendant’s

Statement on a Ground that the Executive

Branch Expressly Chose Not to Present,

Violated the Principle of Separation of

Powers.

In accepting an invitation by an amicus to consider

whether Dickerson’s confession was admissible under Section

3501, an issue that was not presented by either the prosecution

or the defendant in this criminal prosecution, the court of

appeals violated the principle of separation of powers.

In considering an argument raised only by an amicus and

deliberately not presented by the prosecution, the Fourth

Circuit intruded into an area of discretion reserved to the

Executive Branch and impaired the discharge of a

constitutional function assigned to the President and his

subordinates. The function of determining what evidence to

introduce in a criminal prosecution, and what authority to bring

to bear to justify actions by Federal law enforcement personnel,

is inherently Executive in nature, and is not analogous to the

functions that Federal courts perform in any other context. The

action of the court of appeals therefore should be overturned as

inconsistent with Article III.

In considering an argument for admissibility that the

Attorney General has refused to offer in any Federal court, the

court of appeals intruded into the power of the Executive to

determine how potential evidence wil! be utilized in a criminal

prosecution and what arguments will be made in support of its

12

—-_- —- <_ <e _

admission. It thereby violated the principle of separation of

powers because it reduced the ability of the Department of

Justice to control the prosecutorial powers that the Executive,

and the Executive alone, may exercise.

This is, in Justice Scalia’s phrase, an issue that has come

before the Court "clad . . . in sheep’s clothing," Morrison v.

Olson, 487 U.S. 654, 699 (1988)(Scalia, J., dissenting), because

the immediate effect of the lower court’s intrusion into the

sphere reserved for Executive authority would be the admission

of Dickerson’s statement. Whatever the short-term effect in

this case, there is no assurance that in other cases, the effect of

similar judicial intrusions would be benign. The lower court's

unprecedented assumption of the power to second guess

prosecutorial decisions about the evidence to be presented in a

criminal case and the grounds to be argued for its admissibility

is conceptually no different from assertion of a judicial right to

review Department of Justice decisions about whom to

prosecute, and for what offenses, in circumstances in which the

Executive has made a considered decision not to file charges.

In this connection, it is significant that the Fourth Circuit's

rationale for reaching out to decide the Section 3501 issue was

its assertion-that, by “elevating politics over law," the

Department of Justice prohibited the local prosecutor from

arguing that Dickerson’s confession was admissible under the

statute. 166 F.3d at 672. This claim is answered by Justice

Scalia’s observation that:

Almost all investigative and prosecutorial

decisions - including the ultimate decision

whether . . . prosecution is warranted - involve

the balancing of innumerable legal and practical

considerations. Indeed, even political

13

_

considerations (in the nonpartisan sense) must

be considered .... [T]he balancing of various

legal, practical and political considerations,

none of which is absolute, is the very essence of

prosecutorial discretion.

Morrison v. Olson, 487 U.S. at 707-708 (Scalia, J. dissenting).

In sum, by asserting a right to invoke sua sponte an argument

for admissibility not raised by the prosecution in this criminal

case -- indeed, deliberately rejected by the Attorney General on

a nationwide basis -- the Fourth Circuit has impermissibly

undermined the discretionary authority of the Executive Branch

to enforce the law as it sees fit, within legal and constitutional

boundaries, and has thereby interfered with the Executive’s

ability to accomplish an important function assigned to it by the

Constitution.’

Although an Article III court may not consider the

constitutionality of Section 3501 in a criminal case in which the

Executive Branch determines not to raise this argument for

admission of the suspect’s custodial statement, this does not

* This case is in a fundamentally different posture from the hypothetical

situation discussed by Justice Scalia in Davis v. United States, where he

asserted that “once a prosecution has been commenced and a confession

introduced, the Executive assuredly has neither the power nor the right to

determine what objections to admissibility of the confession are valid in

law." 512 U.S. at 465 (Scalia, J. concurring) (emphasis added). This

Statement, by its terms, applies only after the confession has been

introduced, and the defendant is challenging an alleged violation of his right

to a fair trial. The situation before the Fourth Circuit was different, because

the incriminating statement was never entered into evidence. The case thus

remained in a posture where the prosecution has full discretionary authority

over the evidence to be introduced and the arguments to be made in support

of admission of its own evidence.

14

mean that the Department of Justice’s position is immune from

review under our political system. It is subject to review, but

in other forums - by Congress and ultimately by the people at

election time. In particular, Congress may exercise its

oversight authority and the power of the purse to try to

influence the Executive Branch’s policy position. Upon the

appointment of a new Attorney General or her Assistant

Attorneys General, the Senate may exercise its power to advise

and consent. Finally, if Congress so choses, it can initiate

impeachment proceedings based on an assertion of dereliction

of duty.

Further, the Fourth Circuit’s decision to reach out to

consider the relationship between Section 3501 and Miranda

appears to have been based on the calculation that, if the court

did not decide the question in this case, this important legal

issue, which has been framed by academics for many years,

would continue to evade judicial resolution. Its decision is

erroneous for two reasons. First, as the dissenting judge below

correctly observed:

The premise of our adversarial system is that

appellate courts do not sit as self-directed

boards of legal inquiry and research, but

essentially as arbiters of legal questions

presented and argued by the parties before

them.

166 F.3d at 697.

Second, there is no reason for Article III courts to reach

out to decide this issue prematurely. A future President may

exercise his or her discretion to reverse the policy decision of

15

prior Administrations and to seek to enforce Section 3501 in

the manner recommended by the amicus below. If and when

that happens, there will be ample occasion at that time for the

Judicial Branch to consider the proper relationship between the

law and the Fifth Amendment, as interpreted in Miranda, upon

the appeal of one of the parties to a criminal case. Until a

future President makes that determination and the issue of

voluntariness under a totality-of-the-circumstances test is

presented by an actual dispute between the prosecution and a

criminal defendant, the Court should not disrupt the proper

relationship between the Branches and prevent the Executive

Branch from exercising the power to enforce the criminal laws

that is confided in it by the Constitution.

CONCLUSION

For the reasons set forth above, Amicus Curiae

Benjamin R. Civiletti respectfully submits that the judgment

below should be reversed and that the Court should decline, on

separation of powers grounds, to decide whether Dickerson’s

confession may be admitted under Section 3501, since neither

of the two parties to this criminal prosecution has raised that

question and it therefore falls outside the power of Article III

courts to consider. Should the Court reach the merits, it should

hold that Section 3501 does not trump the Miranda decision

and reverse the judgment of the court of appeals.

16

January 28, 2000

Respectfully submitted,

Benjamin R. Civiletti

Kenneth C. Bass, III

(Counsel of Record)

John F. Cooney

Venable, Baetjer, Howard

& Civiletti LLP

1201 New York Avenue, N.W.

Washington, D.C. 20005

(202) 962-4800

Counsel for Amicus Curiae

17