Opposition Brief — Goodson v. United States

>) Office “Supreme Court, U.& |

Le FILED

No. 84-1015

R 22 1985

In the Supreme Court of the Hniteh Steg, |

OcTOBER TERM, 1984

JOHNNIE K. GOODSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lge

Solicitor General

Department of Justice

Washington, D.C. 20530

(262) 633-2217

THOMAS M. CuRTIS

LTC, JAGC, USA

JOHN F. De Pug

LTC, JAGC, USAR

PATRICK J. CUNNINGHAM

CPT, JAGC, USA

Appellate Government Counsel

Government Appellate Division

Office of the Judge Advocate General

United States Army

Falls Church, VA 22041

QUESTIONS PRESENTED

1. Whether the government was precluded from interro-

gating petitioner when petitioner had requested counsel

during detention but before he was advised of and waived

his Miranda rights and before the initiation of custodial

interrogation.

2. Whether petitioner knowingly and intelligently waived

his right to counsel after receiving Miranda warnings prior

to custodial interrogation.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Berenyi v. Immigration Director,

ee 15

Edwards v. Arizona, 451 U.S. 477 ........ passim

E.I. du Pont de Nemours & Co. v. Train,

ee 14

Escobedo v. Illinois, 378 U.S. 478 .......... 9, 12

Michigan v. Mosley, 423 U.S.96 ............. 12

Michigan v. Tucker, 417 U.S. 433 ....... Menees 7

Miranda v. Arizona,

CED dgivns se secesess 3, 6, 7, 8, 9, 11, 12

Oregon v. Bradshaw, No. 81-1857

CE cccweccsceeescececes 6, 8, 10, 13

Rhode Island v. Innis, 446 U.S. 291 ...... 9, 11, 12

Rogers v. Lodge, 458 U.S. 613 .............0.. 15

Shea v. Louisiana, No. 82-5920 |

ie Rs 7

Smith v. Illinois, No. 84-5332

Seed cea eK een ee eee s 11, 14

IV

Page

Cases—Continued:

Solem v. Stumes, No. 81-2149

GI i SE nae ok hea eRdee Cdk e va cee enaee 12

United States v. Booth, 669 F.2d 1231 ........ 12

United States v. Doe, No. 82-786

A a 6 Soke ens s eee siisndawerces 15

United States v. Foskey, 636 F.2d 517 ......... 12

Ubsised Somtes ¥. TEA, 3 WE.5. TES nc cccvccccceccs 6

United States v. Lovasco, 431 U.S. 783 ........ 14

United States v. Mendoza, No. 82-849

SS cv akis sie dNe ae eekeeveesneis 14

_ United States ex rel. Hines v. LaVallee,

521 F.2d 1109, cert. denied,

ee ce ene cnnnweeenns 12

Wyte ¥. FURR, SOP ULB. GE noc cccvesecceves 10

Constitution and statutes:

CE gc b acc cans ixencenes 8, 12

Uniform Code of Military Justice,

10 U.S.C. 801 et seq. :

PE ok ov cn cinecesedivs 12

Att, FE OS i BOOED oes cen secesncs 3

ee a a his h-0.0 0 5 eR ees Ress 2

Art. GGfe), 10 U.S.C. B6GfC) 0. nc ccccceses 15

Art. 67(b)(3), 10 U.S.C. 867(b)(3) .......... 2

ee a ee a NE hn 0 6 keh doce Kevenes 2

Art. 138, 16 U.S.C. Foe on ccc ccc cccccccecns 2

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-1015

JOHNNIE K. GOODSON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals (Pet. App. 1a-23a) is reported at 18 M.J. 243. The

opinion of the United States Army Court of Military

Review (Pet. App. 24a-29a) is reported at 14 M.J. 542.

JURISDICTION

The judgment of the United States Court of Military

Appeals was entered on July 23, 1984. A petition for recon-

sideration was denied on November 2, 1984 (Pet. App. 30a).

The petition for a writ of certiorari was filed on December

26, 1984. The jurisdiction of this Court is invoked under

Section 10(a)(1) of the Military Justice Act of 1983, Pub. L.

No. 98-209, 97 Stat. 1405 (to be codified at 28 U.S.C.

1259(1)).

STATEMENT

Pursuant to his pleas of guilty, petitioner, a member of

the United States Army, was convicted by a military judge

(1)

2

sitting as a special court-martial convened by the Com-

manding General, U.S. Army Test and Evaluation Com-

mand, Aberdeen Proving Ground, Maryland, of possessing

and using marijuana, in violation of Article 134 of the

Uniform Code of Military Justice (UCMJ), 10 U.S.C. 934.

Contrary to his pleas of not guilty, petitioner also was

convicted of attempting to possess, transfer, and use

amphetamines, in violation of Article 80, UCMJ, 10 U.S.C.

880. He was sentenced to a bad conduct discharge, con-

finement at hard labor for three months, forfeiture of $334

pay per month for three months, and reduction to Private

E-1. The convening authority reviewed the case pursuant to

Article 60, UCMJ, 10 U.S.C. 860, and approved the find-

ings and sentence. The United States Army Court of Mil-

itary Review likewise affirmed the findings and sentence

(Pet. App. 24a-29a). Upon discretionary review pursuant to

Article 67(b)(3), UCMJ, 10 U.S.C. 867(b)(3), the United

States Court of Military Appeals aiso affirmed (Pet. App.

la-23a).

1. Evidence developed at a suppression hearing showed

that during the early morning of February 28, 1981, peti-

tioner and eight other service members were apprehended

by Military Police Sergeant Faron R. Slye for possession of

marijuana and other controlled substances on the Aberdeen

Proving Ground military reservation (Pet. App. 2a, 4a; Tr.

15-16). After a search of petitioner’s clothing revealed the

presence of marijuana and the other suspected dangerous

drugs, he was handcuffed and, along with the other sus-

pects, transported to the Military Police Investigation

(MPI) office (Pet. App. 4a; Tr. 15-17). There, petitioner was

released from his handcuffs and detained with the other

suspects to await questioning by Investigator Dennis T.

Allinder, the only Military Police Investigator on duty at

the time (Pet. App. 3a, 4a-5a; Tr. 20).

3

Approximately 15 minutes after arriving at the MPI

office, petitioner informed Sergeant Slye, the arresting

officer, that “he didn’t want to make a statement” and

“requested a lawyer” (Pet. App. 5a; Tr. 23). Sergeant Slye

responded that he would relay the request to Investigator

Allinder (ibid.). Some time later, while Sergeant Slye was

obtaining data concerning petitioner’s name, rank, social

security number, and date and place of birth, petitioner

again requested counsel (Pet. App. 5a, 16a; Tr. 25). About

two hours later, petitioner requested counsel again (Pet.

App. 5a; Tr. 26). On these occasions, Sergeant Slye again

told petitioner that he would inform Investigator Allinder

of petitioner’s request, and Sergeant Slye later testified that

he did so (Pet. App. 2a-3a; Tr. 23-26). Investigator Allinder,

however, testified that he did not recall anyone having

informed him that petitioner wanted to see an attorney (Pet.

App. 3a; Tr. 31, 34-35).

The military judge found, in accordance with petitioner’s

own testimony, that Sergeant Slye told petitioner that he

should not make any statements or sign anything until his

rights were read to him by Investigator Allinder (Pet. App.

3a-4a, 5a; Tr. 88-89, 132-133). The military judge also found

that, while waiting to see Investigator Allinder, petitioner

“was told that he could not see a lawyer at that time and that

the on-duty [legal] officer could not be called by [peti-

tioner]” (ibid.).

At approximately 12 noon, nine hours after petitioner’s

apprehension, Investigator Allinder, who had first inter-

viewed six of the other suspects apprehended along with

petitioner, interviewed petitioner (Pet. App. 3a-Sa; Tr. 36).

Investigator Allinder began the session by fully advising

petitioner of his rights as required by Article 31(b), UCMJ,

10 U.S.C. 831(b), and Miranda v. Arizona, 384 U.S. 436

(1966). Petitioner initialed and signed a form signifying that

he wished to waive his right to counsel and that he was

4

willing to discuss the offenses (Pet. App. 3a & n.1, 5a; Tr.

31-35; GX 1). He then made incriminating oral statements

concerning his attempted possession, use, and transfer of

amphetamines (Tr. 34).

The following day, petitioner was interviewed by his

company commander. After she prefaced the interview with

the proper warnings, petitioner again waived his right to

counsel and agreed to discuss the offenses. He then gave

another inculpatory statement concerning the contested

charges. The following day, the commander made arran-

gements for petitioner to consult with counsel, although

petitioner had never asked her to do so. Tr. 55-65.

Petitioner testified that he did not request counsel when

Investigator Allinder advised him of his rights because he

“didn’t think [he would] get one” and “[b]ecause it was

already denied to me, two or three times” (Pet. App. 4a; Tr.

90). However, petitioner also testified that, after listening to

the other suspects’ admissions to Investigator Allinder, he

realized that “{t]hey already knew everything” (ibid.). He

further testified that he did not request counsel when inter-

viewed by his commanding officer on the following day

because he “thought [he] was already hung * * * [and]

didn’t stand a chance because they already knew” (Pet.

App. 4a; Tr. 91).

2. The military judge rejected petitioner’s argument that

his statement to Investigator Allinder was obtained in viola-

tion of his right to counsel (Pet. App. 4a; Tr. 135). After

making specific findings of fact,! the military judge rea-

soned (Pet. App. 6a):

[Petitioner’s] initial request for a lawyer * * * was not

made at a time when he had full knowledge of his rights

1The military judge’s findings of fact are set out in the decision of the

court below (Pet. App. 4a-6a).

5

and was not due to any interrogation whatsoever. It is

not uncommon for one arrested to want to see a law-

yer, but the state of the law does allow the government

to inform the accused of his rights and then ask if he

understands them. Once ascertaining the suspect under-

stands his rights, the next question is to whether he

wants a lawyer present. [Petitioner] had his opportun-

ity at that point when questioned by Agent Allinder to

state that he did want an attorney and that would

require the government to suspend any further ques-

tioning. In this case [petitioner], after being informed

of his rights completely and for the first time * * *,

consciously elected not to demand a lawyer and waived

his rights. Therefore the statement taken by MPI

Agent Allinder was voluntarily and intelligently given

by [petitioner] with full knowledge of his rights.

Both petitioner’s statement to Investigator Allinder and

his subsequent statement to his company commander were

admitted into evidence (Pet. App. 26a). In addition to peti-

tioner’s confessions, the government presented independent

evidence of the offenses. That evidence showed that, at the

time of petitioner’s apprehension, he was in possession of

marijuana and various capsules that proved to be stimu-

lants (Tr. 154, 159, 176; GX 7).

3. The United States Army Court of Military Review

rejected petitioner’s claim that his confessions should have

been suppressed under Edwards v. Arizona, 451 U.S. 477

(1981), because they were obtained after he had requested

the assistance of counsel. The court reasoned that “[{t]he

prohibition in Edwards is aimed at attempts by authorities

‘to reinterrogate an accused in custody if he has clearly

asserted his right to counsel’ ” and that the “Fifth Amend-

ment right to counsel identified in Miranda does not grant

an accused a right to confer with or have counsel imme-

diately upon apprehension and before questions eliciting an

6

incriminating response are put to him” (Pet. App. 26a-27a

(citation omitted)). The court therefore concluded that “the

Edwards ‘bright line’ was not transgressed by the police”

(Pet. App. 27a).

The United States Court of Military Appeals also held

that petitioner’s suppression motion was properly denied.

Writing the lead opinion for the court, Judge Cook con-

cluded that Edwards was distinguishable. He noted that,

unlike the situation in Edwards, petitioner made his

requests for counsel while the case was still in the investiga-

tory stage and before he had been advised of his Miranda

rights or subjected to any interrogation (Pet. App. 9a).

Observing that under Miranda and its progeny the right to

appointed counsel does not attach until custodial interroga-

tion has begun, Judge Cook concluded that the “corollary is

that a waiver of the Miranda rights cannot occur unless

there has been a full advisement of rights” (Pet. App. 10a).?

Chief Judge Everett dissented (Pet. App. 15a-23a). In his

view, the distinction relied upon by Judge Cook between

pre-interrogation requests for counsel and those made after

interrogation has commenced was unsupported by Edwards

and Oregon v. Bradshaw, No. 81-1857 (June 23, 1983) (Pet.

App. 21a).

2 Judge Fletcher concurred in the result for the reasons set forth in his

opinion in United States v. Hill, 5 M.J. 114, 117 (CMA 1978) (see Pet.

App. 15a). In Hill, Judge Fletcher had dissented from an opinion

written by Judge Cook excluding a confession because the defendant’s

request for counsel following a reading of Miranda rights and prior to

reinterrogation nine hours later was not “ ‘scrupulously honored’ ” (5

M.J. at 116). In dissent, Judge Fletcher stated that, in his view, the

government had met its burden of showing that the defendant had»

intelligently waived his right to counsel because, inter alia, after request-

ing counsel but before asking to discuss the case with an investigator, he

learned that one of his co-suspects had made a statement implicating

him (id. at 118).

7

ARGUMENT

The decision of the United States Court of Military

Appeals is correct and does not conflict with any decision of

this Court or of any other court of appeals; indeed, it does

not appear that any other appellate court has considered the

Edwards issue raised by petitioner. In addition, petitioner

failed to preserve his alternative claim that his waiver of the

right to counsel was involuntary. Accordingly, further

review is not warranted.

1. Relying upon Edwards v. Arizona, 451 U.S. 477

(1981), which was decided by this Court subsequent to

petitioner’s interrogation,’ and Miranda v. Arizona, 384

U.S. 436 (1966), petitioner contends (Pet. 5-9) that the

failure of the military police to honor his requests for coun-

sel during his pre-interrogation detention precluded a find-

ing of a valid waiver of his right to counsel once interroga-

tion began. This claim was properly rejected by all three

courts below. As those courts correctly recognized, peti-

tioner’s right to counsel simply had not attached at the time

that he made his requests to Sergeant Slye, because he had

not yet been subjected to any custodial interrogation.

Accordingly, the rule announced in Edwards, precluding

reinterrogation following a request for counsel, or a finding

of a valid waiver of that right absent initiation by the

‘Petitioner argues (Pet. 9-11) that Edwards should be applied to this

case even though the decision was announced after his interrogation by

the military police. Subsequent to the filing of the petition, this Court

held that Edwards does indeed apply retroactively to cases still pending

on direct review at the time of the decision. Shea v. Louisiana, No.

82-5920 (Feb. 20, 1985). As we demonstrate in this brief, however,

petitioner is asking the Court to extend Edwards to a new situation.

Whether such an extension is appropriate raises no question of retroac-

tivity. See Michigan v. Tucker, 417 U.S. 433, 452-453 n.26 (1974). And

even if the Court were to disagree with our submission that Edwards

does not govern the instant case, review still would be inappropriate for

the additional reasons set forth at pages 14-15, infra.

8

defendant of a conversation with the police, is inapplicable

to this case. Moreover, the extension of Edwards urged by

petitioner would produce a result bearing no relationship to

the concerns that animated the Edwards decision in the first

place.

a. In Miranda, the Court dealt with the “admissibility of

statements obtained from an individual who is subjected to

custodial police interrogation” and the inherent cocercion

present during that process. 384 U.S. at 439. The Court

concluded that protection of a suspect’s Fifth Amendment

right against self-incrimination required that custodial

interrogation be preceded by advice to the suspect that he

has the right, inter alia, to the presence of counsel during

questioning. 384 U.S. at 471. The Court emphasized that

the right not to be interrogated in the absence of counsel

attaches at the point of interrogation because it is the “pro-

cess of in-custody interrogation * * * [that] contains inher-

ently compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak where

he would not otherwise do so freely.” Id. at 467.‘

Edwards, in turn, merely established an additional pro-

phylactic rule intended to ensure that the safeguards estab-

lished by Miranda would not be eviscerated by police

badgering. See Oregon v. Bradshaw, No. 81-1857 (June 23,

1983), slip op. 5 (plurality opinion). In Edwards, following

the administration of the warnings required by Miranda,

the accused voluntarily submitted to questioning but sub-

sequently stated that he wished to consult with an attorney

before the discussion continued. Nevertheless, the police

‘See also Miranda, 384 U.S. at 448 (in-custody interrogation is

psychologically oriented); id. at 478 (Fifth Amendment privilege

against self-incrimination is jeopardized when an individual “is taken

into custody * * * and is subjected to questioning”).

9

persisted in their questioning on the following day, inform-

ing the accused that “he had” to talk with them. 451 U.S. at

478-479. Concluding that the resulting confession was

inadmissible because the defendant had not effectively

waived his previously invoked right to counsel, the Court

announced a bright line rule prohibiting the police from

“further interrogation” of an accused once he invokes his

right to counsel and requiring the accused to initiate further

dialogue with the police as a prerequisite to a finding of a

valid waiver of the right to be free from uncounseled

interrogation.

Neither Miranda nor Edwards, therefore, supports the

proposition that requests for counsel made prior to the

commencement of the interrogation process prohibit the

initiation of that process (which is commenced not by actual

questioning but merely by the administration of the Miranda

warnings) unless counsel has been provided or the suspect

initiates a conversation with the police. Instead, Miranda

identified the time at which the right to counsel attaches and

efforts to conduct questioning must cease upon invocation

of the right as the point when the suspect is advised of his

rights and “is first subjected to police interrogation while in

custody.” Miranda, 384 U.S. at 477; id. at 444-445, 473-474.

See Rhode Island v. Innis, 446 U.S. 291, 300 (1980) (pro-

cedural safeguards of Miranda “are required not where a

suspect is simply taken into custody, but rather where a

suspect in custody is subjected to interrogation”); Escobedo

v. Illinois, 378 U.S. 478, 490-491 (1964) (right to consult

with counsel attaches when “the suspect has been taken into

police custody, [and] the police carry out a process of

interrogations that lends itself to eliciting incriminating

statements”). Edwards, in turn, simply “reconfirm[ed]”

that, once the right to counsel is invoked by the suspect

during custodial interrogation, the police cannot initiate

efforts to “reinterrogate” him, and adopted a prophylactic

10

rule to enforce that prohibition against “further interroga-

tion by the authorities.” Edwards, 451 U.S. at 484-485. See

also Oregon v. Bradshaw, slip op. 5 (rule in Edwards

prohibits “further interrogation” once right to counsel is

asserted by accused during custodial interrogation); Wyrick

v. Fields, 459 U.S. 42, 45-46 (1982) (per curiam) (same).

That the Edwards rule applies only to situations of

“further interrogation” or “reinterrogation” following the

suspect’s invocation of his right to counsel during or after

the commencement of custodial interrogation is made clear

by the final footnote of the opinion, in which the Court

cautioned (451 U.S. at 487 n.10):

We need not decide whether there would have been a

valid waiver of counsel had the events of January 20

[the date of the “reinterrogation”] been the first and

only interrogation to which Edwards had been sub-

jected. Cf. North Carolina v. Butler, 441 U.S. 369

(1979).

Here, however, petitioner seeks to extend Edwards not

merely to the first custodial interrogation that occurred in

this case, but to a point in time that preceded the com-

mencement of any custodial interrogation. It would, of

course, be possible to apply the Edwards rule at virtually

any point in time. For example, a person who expects to be

arrested in the near future could advise the police that he

will want counsel following his arrest. Under petitioner’s

reading of Edwards, the police would be precluded, upon

arresting that person, from advising him of his Miranda

rights in the absence of counsel or the initiation of commun-

ication with the police by the arrestee. Obviously, a line

triggering the application of Edwards must be drawn

11

somewhere, and, as we have shown above, this Court has

drawn it at the point of custodial interrogation.®

b. Because the prophylactic rule of Miranda is designed

to act as a safeguard against the inherently compelling

pressures found to be so often present during custodial

interrogation (Miranda, 384 U.S. at 467), rather than the

mere “subtle compulsion” resulting from the the fact of

custody (cf. Rhode Island v. Innis, 446 U.S. at 303), limita-

tion of the Edwards rule to requests for counsel made

during or after the commencement of in-custody interroga-

tion makes perfect sense. A suspect awaiting interrogation

may decide, for any number of legitimate reasons, that he

wishes to answer questions without counsel. To allow a

request for counsel prior to the commencement of custodial

interrogation to invalidate a waiver made once police-

initiated interrogation begins would “deprive suspects of an

opportunity to make informed and intelligent assessments

‘The Court’s recent decision in Smith v. Illinois, No. 84-5332 (Dec.

10, 1984) (per curiam), is not to the contrary. In that case, the defendant,

while being advised of his Miranda rights at the inception of interroga-

tion, stated that a female acquaintance had advised him to obtain

counsel and that he would “like to do that.” Nevertheless, “{iJnstead of

terminating the questioning,” the police “proceeded to finish reading

Smith his Miranda rights and then pressed him again to answer their

questions.” Smith v. Illinois, slip op. 2. Smith then responded “Yeah

and no, uh, I don’t know what’s what, really” to a question whether he

wished to speak without the presence of counsel. /bid. He then admitted

commission of the offense. Rejecting the analysis of the Illinois

Supreme Court that ambiguous responses to further questioning cast

doubt upon the initial clarity of Smith’s request for counsel, the Court

reiterated its holding in Edwards that the police cannot subject an

accused to further interrogation once he expresses his desire to deal with

the police only through counsel, absent the procurement of counsel or

subsequent waiver of the request. Smith, slip op. 6-9. Nothing in Smith

Suggests that requests for counsel during detention but prior to the

commencement of any interrogation preclude the police from giving

Miranda warnings and obtaining a valid waiver when they are ready to

commence interrogation.

12

of their interests.” Michigan v. Mosley, 423 U.S. 96, 102

(1975).® At the same time, invocation of the right to counsel

prior to custodial interrogation should not confer “perman-

ent immunity from * * * interrogation, regardless of the

circumstances,” lest “the Miranda safeguards [be trans-

formed] into wholly irrational obstacles to legitimate police

investigative activity” (ibid.).

In this case, each of petitioner’s requests for counsel was

made to Sergeant Slye during the preliminary stages of the

investigation and well before the time that he was “first

subjected to police interrogation while in custody at the

station.” Miranda, 384 U.S. at 477.’ Sergeant Slye’s

responses to petitioner’s requests bore none of the hall-

marks of police “badgering” that animated the Edwards

‘Although Mosley dealt with the invocation of the right to silence

during custodial interrogation, “much of the logic and language of the

opinion could be applied to the invocation of the [right to counsel].”

Solem v. Stumes, No. 81-2149 (Feb. 29, 1984), slip op. 10.

7Petitioner notes (Pet. 2, 7) that one of his requests for counsel was

made while Sergeant Slye was conducting “administrative questioning”

— the process of obtaining administrative data concerning the suspect

such as his name, rank, and social security number. But as Chief Judge

Everett observed in his dissent (Pet. App. 21a), questions concerning

such “neutral subjects” do not constitute interrogation within the mean-

ing of the Fifth Amendment or Article 31, UCMJ, 10 U.S.C. 831.

Questioning of this type is not interrogation within the meaning of

Miranda because an essential ingredient of interrogation is “words or

actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.” Rhode Island v.

Innis, 446 U.S. at 301 (footnotes omitted). See, e.g., Escobedo v.

Illinois, 378 U.S. at 491 (right to counsel attaches at the “process of

interrogations that lends itself to eliciting incriminating statements”);

United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1982) (routine

gathering of background biographical data ordinarily not custodial

interrogation under Miranda); United States v. Foskey, 636 F.2d 517,

522 n.3 (D.C. Cir. 1980); United States ex rel. Hines v. LaVallee, 521

F.2d 1109, 1112-1113 (2d Cir. 1975), cert. denied, 423 U.S. 1090 (1976).

13

decision. See Oregon v. Bradshaw, slip op. 5. Instead,

Sergeant Slye told petitioner that “he should not make any

siatements and sign anything until his rights were read to

him by the MPI Agent” (Pet. App. 5a; see also Tr. 88).

Moreover, on each occasion that petitioner requested coun-

sel, Sergeant Slye told him that he would relay the request

to Investigator Allinder. Under these circumstances, all that

petitioner had to do when Investigator Allinder read him

his rights was assert that he did in fact want counsel, as he

had previously told Sergeant Slye.* That he did not do so

suggests not that the police engaged in improper behavior

designed to overcome petitioner’s will, but rather that peti-

tioner had changed his mind. This conclusion is borne out

by the findings of the United States Army Court of Military

Review (see Pet. App. 29a) that petitioner waived his right

to counsel because he realized that the “cat was already out

of the bag” by virtue of his confederates’ statements at the

time Investigator Allinder commenced interrogation. See

page 15, infra. Nothing in Edwards or its progeny was

intended to prevent an accused from waiving his right to

counsel in these circumstances.?

*As earlier noted, Investigator Allinder testified that he did not recall

being advised that petitioner had requested counsel. The discrepancy

between Sergeant Slye’s testimcny and Investigator Allinder’s was

never resolved by the courts below, but that discrepancy is irrelevant to

the legal question here, because our position does not depend on any

claim that Investigator Allinder was ignorant of petitioner’s pre-

interrogation statements. Moreover, because the interrogation anted-

ated Edwards, it seems unlikely that Investigator Allinder would have

thought that a prior request for counsel could disable petitioner from

agreeing to submit to interrogation.

*In his dissent (Pet. App. 20a), Chief Judge Everett errs in stating that

holding Edwards inapplicable to this case renders petitioner’s pre-

interrogation requests for counsel and the resulting conduct of the

police “immaterial.” As the United States Army Court of Military

Review correctly observed (Pet. App. 27a), these factors must be consi-

dered “to determine whether, at the time of questioning, the suspect’s

waiver was knowing and intelligent.” That inquiry, of course, is entirely

distinct from the question of the applicability of the presumption

created by Edwards. See pages 14-15 & note 11, infra.

4

c. Atall events, the question whether Edwards applies to

the instant case does not warrant this Court’s review at this

time. Petitioner cites no case — federal, state, or military

—-that has addressed the issue of the effect of a pre-

interrogation request for counsel. So far as we are aware,

the issue simply has not arisen before. It would thus appear

that the factual situation presented by this case is not a

recurring problem. And, if it does recur, further analysis by

the lower courts would be beneficial before this Court con-

siders the issue. See, e.g., United States v. Mendoza, No.

82-849 (Jan. 10, 1984), slip op. 6; E.J. du Pont de Nemours

& Co. v. Train, 430 U.S. 112, 135 n.26 (1977).

2. Petitioner also claims (Pet. 11-13) that even if Investi-

gator Allinder lawfully initiated custodial interrogation,

petitioner’s waiver of the right to counsel was neither know-

ing nor voluntary. 3ut the fact-bound issue of the voluntar-

iness of petitioner’s waiver of the right to counsel is not

properly before this Court because petitioner did not raise it

in any of the courts below.’® It therefore cannot be raised for

the first time in this Court. See, e.g., United States v.

Lovasco, 431 U.S. 783, 788 n.7 (1977)."! In any event, this

10 At trial, the sole basis for petitioner’s motion to suppress his confes-

sions was that his requests for counsel were not “scrupulously

honored.” Tr. 105; see also Tr. 125-126, 130; Def. Br. 1-2. When, during

the suppression hearing, the prosecutor attempted to introduce evi-

dence bearing on the knowing and voluntary nature of the waiver,

petitioner’s attorney objected on the ground that it was irrelevant. The

military judge then terminated the line of questioning. Tr. 105-106.

Petitioner’s arguments in both the United States Army Court of Mil-

itary Review and the Court of Military Appeals also focused exclusively

on the question whether Investigator Allinder’s interrogation violated

Edwards and did not address the question whether, in the absence of a

violation of Edwards, his waiver of the right to counsel was knowing

and voluntary.

'!Petitioner’s belated attempt to challenge the voluntariness of his

waiver is particularly inappropriate because “{iJnvocation and waiver

are entirely distinct inquiries, and the two must not be blurred by

merging them together.” Smith v. Illinois, No. 84-5332 (Dec. 10, 1984),

slip op. 7 (footnote omitted).

15

fact-bound claim is without merit. The military judge made

a sua sponte determination that “the statement taken by

MPI Agent Allinder was voluntarily and intelligently given

by [petitioner] with full knowledge of his rights” (Pet. App.

6a). Thereafter, the United States Army Court of Military

Review, exercising its factfinding powers under Article

66(c), UCMJ, 10 U.S.C. 866(c), and relying upon petition-

er’s own testimony during the suppression hearing, found

that petitioner waived his right to counsel at the inception of

Investigator Allinder’s questioning because of his belief that

Investigator Allinder “already knew everything” as the

result of the interrogation of a co-accused and that peti-

tioner was “attempting to make the best out of a bad situa-

tion rather than acting on the belief that counsel would be

denied him upon his timely request” (Pet. App. 29a). These

concurrent factual determinations plainly do not warrant

further review by this Court. See, e.g., United States v.

Doe, No. 82-786 (Feb. 28, 1984), slip op. 8; Rogers v.

Lodge, 458 U.S. 613, 623 (1982); Berenyi v. Immigration

Director, 385 U.S. 630, 635 (1967).

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Resp°<tfully submitted.

Rex E. LEE

Solicitor General

THoMA®S M. CurTIS

LTC, JAGC, USA

JOHN Fe, USAR

LTC, ;

x J. CUNNINGHAM

PATRIC

on JAGC, USA

’

ellate Government Counsel

G P ernment Appellate Division

vce of the Judge Advocate General

oO

Offi:

Unite? States Army

7H 1985

MARC

1985-03

DOJ-1: