Petition for Writ of Certiorari — Gordon v. United States

on y | Supreme Coy ,US,

90-15 | FILED

No. 89- | IN, ?

| JN 079 1999

IN THE

Supreme Court of the Cited States

,..4,4 .

f PHOWeOYr.

PETITION FOR A WRIT OF CERTIORARI

TO THE FOURTH CIRCUIT COURT OF APPEALS

Varvin D. MILLER

AV

LOOT King ‘=

Viexandrnia, VA 22314

TO3) 548-5000

( pid { tory Petit

PRESS OF RAM PRINTING, HYATTSVILLE. MBP 2¢

QUESTIONS PRESENTED

ie

WHAT ARE THE POLICE REQUIRED TO DO WHEN

AN ARRESTEE HAS GIVEN AN EQUIVOCAL

RESPONSE, i.e., A RESPONSE SUBJECT TO MORE

THAN ONE INTERPRETATION, WHEN ASKED

WHETHER OR NOT HE WILL WAIVE HIS MIRANDA

RIGHTS; ARE THE POLICE REQUIRED TO

CLARIFY THE EQUIVOCAL RESPONSE BEFORE THEY

CONTINUE QUESTIONING?

II.

IS THE FOURTH CIRCUIT'S DECISION

SHIFTING THE BURDEN TO THE ACCUSED TO

PROVE A CLEAR INVOCATION OF MIRANDA RIGHTS

CONSISTENT WITH THE DECISIONS OF THIS AND

OTHER COURTS WHICH PLACE THE BURDEN

INSTEAD ON THE PROSECUTION TO PROVE A

CLEAR, FREE AND VOLUNTARY WAIVER OF

MIRANDA RIGHTS?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...-----eeeeeeees

TABLE OF CONTENTS ...----2eeeeeeeees ii

TABLE OF AUTHORITIES .....---eeeees eG

OPINIONS BELOW ....-- eee eee eee eces 1

JURISDICTION ...- cc vecccccccccseces 2

CONSTITUTIONAL PROVISIONS INVOLVED . 3

STATEMENT OF MATERIAL FACTS........ 4

REASONS FOR GRANTING THE WRIT ..... 8

COBCLWOTOM 4. 00 5c a dissed 22

Ce a rr sre ne App-1

BOUEMOTN Books icc dsc ese App-42

il

TABLE OF AUTHORITIES

CASES Page

Campaneria v. Reid, 891 F.2d 1014

er i3

Colorado v. Connelly, 479 U.S. 157

DT eee Ps ee bo ob 6 66 6 08 8 te ee 8 es 18

Connecticut v. Barrett,

PS ae

Coppola v. Powell, 878 F.2d 1562

DUE MOUMM) pecs ccs csccsccvece 20

Edwards v. Arizona, 451 U.S. 47

ee ance ccvecencecs 15

Johnson v. Zerbst, 304 U.S. 458

DPPC Eh eee he een bee ese cesecevwess 18

Lamp v. Farrier, 763 F.2d 994

ER 17

Lightbourne v. Dugger,

S829 F.2d 1012 (lith Cir. 1987),

cert. denied 109 S.Ct. 329 (1988) 12

Michigan v. Mosley, 423 U.S. 96

Ne tack kee en cece 15, 19

Miranda v. Arizona, 384 U.S. 436

ES ETT Ce eee eee passim

North Carolina v. Butler,

eres SEO FED79) . nn wee ce eee 14,18,20

Ochoa v. State, 573 S.W.2d 796

eee ees Ws 2978)... wwe ee ees 12

Pennsylvania v. Muniz, U.S .

Record No. 89-213, 4/18/90....... 19

iii

People v. Superior Court,

542 P.2d 1390 (Cal.1975),

cert. denied 429 U.S. 816

(1976) . ccc ccccneseccccesecseccees 12

Quinn v. United States,

SAG U.8. SOO TEOEE) wa twnsdavcess 21

Ruffin v. United States,

524 A.2da 685 (D.C. Ct. App. 1987). 13

Smith v. Illinois, 469 U.S. 91

(1984) (per curiam) .......---e-- 9,15,21

Smith v. Illinois, 102 Ill. 2d 365,

73-74, 466 N.E. 2d 236, 240 (1984) 13

Taque v. Louisiana, 444 U.S. 469

(1980) (per curiam) ..........-4-- 14,18,20

Tinsley v. Purvis, 731 F.2d 791

FRAG Ge. TODA) ccna cen cdanseuces 17

Tippitt v. Lockhart, 859 F.2d 595

(8th Cir.), cert. denied

109 S.Ct. 2452 (1989) ..ccccccveee 17

United States ex rel. Espinoza

v. Fairman, 813 F.2d 117

(7th Cir. 1987), cert. denied

483 U.S. 1010 (1988).........-2.- 17

United States v. Binder,

769 F.2d 595 (9th Cir. 1985)..... 17

United States v. D'Antoni,

856 F.2d 975 (7th Cir. 1988)..... 13

United States v. DiGiacomo,

579 F.2d 1211 (10th Cir. 1978)... L?

United States v. Fouche,

833 F.2d 1284 (9th Cir. 1987),

cert. denied 108 S.Ct. 1756

PU co Xs 05K es ks koe RRO 12

iv

United States v. Lord,

565 F.2d 831 (2nd Cir. BUR asker 17

United States v. Montgomery,

714 F.2d 201 (lst Cir. 1983)..... 17

United States v. Nash,

997 F.2d 513 (5th Cir.)

(en banc), cert. denied

SOS Usmee 2WOS CHUTE) sen nncecesecce 13

United States v. Short,

790 F.2d 464 (6th Cir. 1986)..... 17

United States v. Sonderhup,

639 F.2d 294 (5th Cir.)

cert. denied 452 U.S. 920 (1982). 18

United States v. Weisz,

7i8 F.24 413 (0.¢C. Cir. 1983),

cert. denied 104 S.Ct. 1285

PR eae ee aes oc! 17

Wyrick v. Fields, 459 U.S. 42

Lawn Se GU UO 6 os 0 us 6% 60 Sx aes 1s

STATUTORY AND CONSTITUTIONAL PROVISIONS

United States Constitution,

P< Wao cabs ee he chek eb K um 3

United States Constitution,

SL SEE ee ke a a Owe & wh sk eK 3

21 U.S.C. Sec. B41 fa) (1) cn ccccccccs 7

ee wees es tes coe wks bod hw he xe 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

No.

IAN GORDON

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE FOURTH CIRCUIT COURT OF APPEALS

OPINIONS BELOW

The published opinion of the Fourth

Circuit Court of Appeals is found at 895

F.2d 932 (4th Cir. 1990), decided on the

2nd day of February, 1990. (App. A). The

denial of the Petition for Rehearing with

the Suggestion for Rehearing en banc was

entered by the Fourth Circuit Court of

Appeals on the 31st day of March 1990 in

Record Nos. 89-5003 and 89-5038. (App.

B).

JURISDICTION

The final judgment of the Fourth

Circuit Court of Appeals was entered on

the 31st day of March i990. The

jurisdiction of this Court is invoked

J

pursuant to 28 U.S.C. § 1254.

_

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V to the United States

Constitution reads as follows:

"NO person shall be held to answer for

a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a grand jury, except in

cases arising in the land or naval

forces, or in the militia, when in

actual service in time of war or

public danger; nor shall any person be

Subject for the same offense to be

twice put in jeopardy of life or limb,

nor shall be compelled in any criminal

case to be a witness against himself,

nor deprived of life, liberty, or

Property, without due process of law;

nor shall private property be taken

for public use, without jus

compensation."

Amendment VI to the United States

Constitution reads as follows:

"In all criminal Prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the state and

district wherein the Crime shall have

been committed, which district shall

nave been previously ascertained by

law, and to be informed of the nature

and cause of the accusation; to be

confronted with the witnesses against

him; to have compulsory process for

obtaining witnesses in his favor, and

to have the assistance Of counsel for

his defense."

STATEMENT OF MATERIAL FACTS

The material facts in this case

concern the waiver or invocation of

Miranda rights by Ian Gordon after he was

arrested by a DEA agent and a Virginia

sheriff's deputy in the Washington

National Airport on 14 September 1988.

The agents had observed Mr. Gordon and

other passengers deplane from a New York

shuttle flight at Washington National

Airport. They followed him through the

terminal and intercepted him, identified

themselves as drug agents on a drug

interdiction operation, and asked to

search him and his bags. Upon discovering

contraband, Mr. Gordon was arrested and

read his Miranda rights. The deputy then

asked Mr. Gordon whether he would talk

with them, and Gordon replied, "What do

you want to know?"

The deputy asked, “Where are you

taking this stuff?" Gordon responded by

shaking his head in a negative manner. He

4

would not answer the question. The agent

and deput:y then ceased questioning him and

took Gordon to a nearby police station.

At the station, Agent Callahan of the DEA

began processing Gordon's arrest by taking

the usual personal information such as

birthdate and place of residence, etc.

While the agent was filling out this

arrest form, the deputy sheriff resumed

his prior questioning about the offense.

Despite Gordon's earlier refusal to answer

questions, Deputy Becerra again asked him

where he was taking the drugs. Again,

Gordon would not answer. He would not

waive his’7 rights. Becerra tried to

persuade Gordon to change his mind and

waive his rights. He told Gordon that the

United States Attorney would be informed

of his cooperation and might help him in

exchange for his cooperation. Gordon

Still refused to waive his Miranda rights.

He replied, "No one can help me now. Only

the Lord." He continued his refusal to

answer Becerra's questions. Becerra,

however, would not stop questioning

Gordon. He would not leave him alone.

As the DEA agent continued to fill

out the form and ask Gordon questions in

relation to it, Deputy Becerra continued

his efforts to persuade him to give up his

rights. Gordon persisted in his refusal

to waive his rights. When the deputy

asked Gordon, "Do you use this stuff?",

Gordon just shook his head in a negative

manner.

Because the amount of cocaine

involved was small, (nine ounces), this

head gesture was a critical piece of

evidence for the prosecution's contention

that he possessed it with the intent to

distribute it rather than to consume it

for his own use.?1

l In the joint incident and arrest

report prepared by the DEA agent

consulting with his’ sheriff's deputy

partner, there was no mention of any

statement being made in any manner by Ian

Gordon. There was no mention of his

waiver of his -Miranda rights. At the

6

ee

Ian Gordon was tried in the United

States District Court for the Eastern

District of Virginia, Alexandria Division,

on 16 November 1988 for an alleged

violation of 21 U.S.C. §841(a)(1). He was

convicted. Sentencing occurred on 13

January 1989.

A notice of appeal was filed on

the 13th day of January 1989. The Fourth

Circuit Court of Appeals sustained the

conviction, Associate Justice (retired)

preliminary hearing following his arrest,

the DEA agent testified that Gordon

"...never voluntarily made a statement."

The agent, when asked whether or not

Gordon waived his rights, testified, "No".

The magistrate found that the evidence

only supported simple possession. When

the federal agent testified before the

grand jury, he also made absolutely no

mention of any statement or the like and

did not say that Ian Gordon had waived his

Miranda rights in any way, shape, or form.

At a pretrial hearing with a

different prosecutor, the deputy added the

head shake to the facts. The government

acknowledged in open Court that it needed

a statement from Ian Gordon that he did

not use cocaine in order to make a charge

of possession with intent to distribute.

A report was filed claiming the head shake

after that hearing and just shortly before

trial.

Powell, United States Supreme Court,

sitting by designation, and Circuit Judge

Wilkins, formed the majority, with

Circuit Judge Murnaghan dissenting. A

Petition for Rehearing with a Suggestion

for Rehearing En Banc was denied on the

31st day of March 1990. This Petition for

a Writ of Certiorari follows.

REASONS FOR GRANTING THIS WRIT.

Introduction:

The opinion of the Fourth Circuit

Court of Appeals in this case principally

focused on what the police are required to

do when an arrestee gives a response that

is not clear to a request that he waive

his Miranda rights. The majority opinion

below is in direct conflict with the

United States Courts of Appeals for the

Second Circuit, Fifth Circuit, Seventh

Circuit, Ninth Circuit, Eleventh Circuit,

District of Columbia Court of Appeals, and

the Supreme Courts of Texas and

California. Those Courts all hold that

8

EE

when an arrestee is asked whether or not

he will waive his Miranda rights’ and

gives an answer which is equivocal or

unclear, then the police are required to

cease questioning or clarify the answer

before they continue.

The Fourth Circuit and the Supreme

Court of Illinois in Smith v. Illinois,

102 Ill. 2d 365, 73-74, 466 N.E. 2d 236,

240 (1984) are of the opinion that, under

such circumstances, the police can

continue to question the individual about

the offense and are not’ required to

Clarify the response to be sure whether

the accused 1S invoking his rights or

walving his rights

This Court expressly held this

question open in Smith v. Illinois, 469

U.S. 91, 96 n.3 (1984) (per curiam). See

also Connecticut v. Barrett, S73 Usd.

223, 3930 A.3, (A967).

In the circuit court below, all

three members of the panel agreed that Mr.

Gordon did not clearly and unequivocally

waive his Miranda rights. Judge

Murnaghan determined that he did not waive

his rights and that once he refused to

answer the questions right after his

arrest in the airport, the police had to

cut off their questioning unless and until

Gordon initiated conversation. All

agreed that he did not initiate

conversation after his first refusal to

waive his rights.

Mr. Justice Powell and Judge

Wilkins on the other hand, found that

Gordon's negative response could have been

taken in more than one way and,

therefore, the police could continue to

question him about the offense without

first clarifying his response. The panel

majority also ruled, in effect, that the

burden was on Gordon to show a clear

invocation of his rights instead of the

burden being on the prosecution to

establish a clear, voluntary waiver.

10

The position of your Petitioner is

that he did not waive his rights at all

and that the police had to cut off all

questioning until he initiated contact

with them. Even if his response was

ambiguous, the police still had the duty

to clarify his response before continuing

their questioning. This they did not do.

at. This Court Should Settle The

Dispute In The Circuits As To What The

Police Are Reguired To Do When An Arrestee

Gives An Equivocal Or Unclear Answer In

Response To Whether Or Not He Will Waive

His Miranda Rights.

There is no question, in this case,

that Mr. Gordon did not clearly,

unequivocally waive his' rights. When

there is an ambiguous invocation of the

Miranda rights, some jurisdictions permit

the police to ask limited questions to

Clarify the ambiguity and nothing more.

Other jurisdictions require an immediate

cessation of questioning upon an

11

EES

ambiguous’ remark. The immediate

cessation is required in California.

People v. Superior Court, 542 P.2d 1390,

1394-95 (Cal. 1975), cert. denied 429 U.S.

816 (1976). Texas followed the same

reasoning in Ochoa v. State, 573 S.W.2d

796,800-01 (Tex. Crim. App. 1978).

Courts holding that limited

questions to clarify the response are

mandatory prior to continuing with

questions include the Eleventh Circuit in

Lightbourne v. Dugger, 829 F.2d 1012,

1018, (llth Cir. 1987), cert. denied 109

S.Ct. 329 (1988) (when invocation of Fifth

Amendment rights is ambiguous, police may

only question the accused for the narrow

purpose of clarifying the equivocal

response). In United States v. Fouche,

833 F.2d 1284, 1287 (9th Cir. 1987), cert.

denied 108 S.Ct. 1756, (1988), the Ninth

Circuit required police to ask only

limited clarifying questions when there is

an unclear invocation of the Miranda

12

a

rights. See also United States v. Nash,

597 F.2d 513 (5th Cir.), (en banc) cert.

denied 444 U.S. 1981, (1979); and United

States v. D. Antoni, 856 F.2d 975 (7th

Cir. 1988). The _Second Circuit is in

accord in its decision in Campaneria v.

Reid, 891 F.2d 1014 (2nd Cir. 1989) as is

the District of Columbia Court of Appeals

in Ruffin v. United States, 524 A.2d 685,

(D.C. Ct. App. 1987).

The clear majority of the circuits

hold that an equivocal or unclear response

to the question of whether or not an

individual will waive their Miranda rights

does not permit the police to barge ahead

and continue questioning and to persist in

efforts to persuade the individual to

relinquish his rights. These holdings are

based upon the proposition that to allow

continued questioning would subvert

Miranda's intent to demand unmistakable

clarity in the waiver or relinquishment of

the Miranda rights.

13

In Miranda v. Arizona, 384 U.S. 436

(1960), this Court was quite clear in its

pronouncement that: "...If the individual

indicates in any manner, at any time prior

to or during questioning that he wishes to

remain silent, the interrogation must

cease." Id. at 473-74 (emphasis added).

The prosecution, not the accused, has the

burden of establishing the waiver if they

claim there was a waiver. Id. at 444.

Because the rights embodied in the Miranda

rights decision are so important, there is

a presumption against waiver. North

Carolina v. Butler, 441 U.S. 369, 373

(1979).

In order to show a waiver and

overcome the presumption against waiver

the burden on the prosecution is a heavy

one. Taque v. Louisiana, 444 U. S. 469,

470-71 (1980). It is for these reasons

that the majority of the courts require

either cessation of questioning, or, at

most, questions limited only to

14

clarification of intent when the response

is unclear.

In Wyrick v. Fields, 459 U.S. 42,

45, 46 (1982), (per curiam), this Court,

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

(1981), indicated that the Miranda

protections are designed to prevent an

accused from being badgered by police

officers when he is in custody. That is

exactly what happened here. Ian Gordon was

continually badgered by the deputy after

he was in custody. The deputy would not

leave him alone, would not stop

questioning him, and would not stop trying

to persuade him to relinquish his rights.

The appeals decision below is in

conflict with prior decisions of this

Court and most of the other courts of

appeal. It represents a clear departure

from the mandate that the accused is

allowed, at any time, to indicate, in any

way, that he wishes not to waive his

rights. Miranda, supra at 473-74. Any

15

Lee

indication of intent to remain silent

must be scrupulously honored. Michigan v.

Mosley, 423 U.S. 96, 104 (1975).

Because of tine split in authority

represented by the opinion below, this

Court should grant this Petition, hear

this case and resolve the issue left open

in Smith v. Illinois, supra.

eee Should The Burden On_ The

Issue Of Waiver Or Invocation Of Rights Be

Shifted From The Prosecutor To The

Accused?

Since all of the members of the

lower court's panel agreed that there was

no clear, unequivocal waiver by Ian Gordon

of his Miranda rights, their inquiry

should have been focused on whether or not

the prosecution met its heavy burden to

establish that he clearly waived his

rights. Miranda, supra; Butler, supra.

The lower court, however, misplaced its

focus by looking at whether or not there

had been a clear invocation of the Miranda

16

nes

rights. This shifted the burden from the

prosecution to the defense. It is in this

shifting of the burden away from the

prosecution and to the accused that the

majority opinion below is in conflict with

this Court and the other circuits. The

burden is on the prosecution in at least

nine of the twelve circuits. See e.q.

United States v. Weisz, 718 F.2d 413 (D.C.

Cir. 1983), cert. denied 104 S. Ct. 1285

(1984); Tinsley _v. Purvis, 731 F.2d 79)

(llth Cir. 1984); United States v. Binder,

769 F.2d 595 (9th Cir. 1985); Tippitt v.

Lockhart, 859 F.2d 595 (8th Cir. 1988),

cert. denied 109 S. Ct. 2452 (1989

United States v. DiGiacomo, 579 F.2d 121]

(10th Cir. 1978); United States ex rel.

Espinoza v. Farmer, 813 F.2d 117 (7th Cir.

1987), cert. denied 483 U.S. 1010 (1988) ;

Lamp _v. Farrier, 763 F.2d 994 (8th Cir.

1985), cert. denied 474 U.S. 1009 (1986

United States v. Short, 790 F.2d 464 (6th

Cir. 1986); United States v. Montgomery,

714 F.2d 201 (list Cir. 1983); United

States v. Lord, 565 F.2d 831 (2nd Cir.

1977); United States v. Sonderhup, 639

F.2d 294 (5th Cir. 1981), cert. denied 452

U.S. 920 (1982).

As a general proposition, there is

a presumption against the waiver of a

constitutional right. Johnson v. Zerbst,

304 U.S. 458, 464 (1938). Miranda and its

progeny have made it indisputably clear

that the prosecution has the burden to

demonstrate that the accused waived his

Miranda rights prior to interrogation.

Miranda, 384 U.S. at 444; North Carolina

v. Butler, supra. The presumption is

against waiver and the burden is on the

prosecution to show a knowing and

intelligent waiver; it is not on the

accused to show invocation. Butler,

Supra; Tague _, supra. See also Colorado

v. Connelly, 479 U.S. 157, 168 (1986)

(government bears heavy burden and must

18

prove waiver by “preponderance of

evidence").

Most recently in Pennsylvania v.

Muniz, U.S. (Record No. 89-213

decided 18 June 1990), this Court

reaffirmed these basic principles by its

recognition of the compulsive environment

that is an inherent part of custodial

interrogation. id. et @lip Gp., BP. 43,

n.10. See also Michigan v. Mosley, supra,

which cautioned against police activity

designed to undermine the will of the

person being questioned. 2a. #t i102,

Judge Murnaghan was correct in his

dissent. He focused on the prosecutor's

burden and did not shift it to the

accused. With proper focus he found no

waiver established by the prosecution. 2

é Deputy Becerra sought to use the

compulsive environment of the. police

station to undermine Gordon's will.

Gordon would not agree to talk at the

airport when arrested, refused

prosecutorial help in exchange for talking

once at the police station, and did not

initiate conversation. He was’ being

questioned by the agent for the arrest

19

Under this panel decision from the

Fourth Circuit, the burden is shifted to

the accused to present clear proof that he

did not waive his Miranda rights. This

Court should grant this Petition and lay

this errant split in authority to rest.

CONCLUSION

No magic words or ritualistic

formula is required for one to stand on

his rights and not waive them. Quinn v.

United States, 349 U.S. 155 (1955). The

decision below challenges this fundamental

proposition.

form and simultaneously by the deputy

about the offense.

ue SES Ian Gordon did not

testify. He also did not testify or make

any statements directly related to the

specifics of the criminal conduct at

sentencing even though he received a

stiffer sentence as a result. He wanted

to preserve his right to remain silent and

keep it in tact pending appeal. This is

a further indicia of his non-waiver. The

First Circuit holds that one factor to be

taken into account in deciding whether or

not one has waived his Miranda rights is

whether the individual testifies at his

trial. Not testifying at trial indicates

that there was no initial waiver of the

Miranda rights. Cf. Coppola v. Powell,

878 F.2d 1562, 1568 (1st Cir. 1989).

20

This Court should grant this

Petition and tell police what to do when

there is an unclear response as to whether

or not the arrestee wishes to waive or

invoke his Miranda rights. That issue was

reserved in Smith and recognized again in

Connecticut v. Barrett, supra. This case

clearly presents this issue.

Gordon shook his head no and would

not answer questions at the airport. Once

at the police station, should the police

(1) refrain from questioning unless and

until Gordon initiates it; (2) seek to

Clarify his response; or (3) continue to

question as at the airport. Decisions of

the majority of the courts of appeal

require options (1) or (2) above. Option

(3) is permitted by this’ conflicting

opinion of the Fourth Circuit and the

decision of the Illinois Supreme Court in

Smith v. Illinois, supra. The conflict in

authority should be resolved by granting

this Petition.

21

This Court should also grant this

Petition because the panel decision below

presents, in effect, an unprecedented

shift of the burden on the issue of waiver

of Miranda rights from the prosecution to

the accused. Such a shift is at odds

with prior case law.

The panel below did not apply a

presumption against waiver to Gordon's

negative shake of the head, rejection of

help from the prosecution (only the Lord

could help him) and refusal to answer

questions. They did not require the

deputy to scrupulously honor Gordon's

refusal to waive, or invocation of, his

rights at the airport and they did not

require the prosecution to prove that he

had clearly waived his’ rights. They

required the accused to prove invocation

of the right. That cannot be correct if

there is a presumption against waiver and

no magic words are required.

22

This split away from traditional

authority should be laid to rest. This

Petition should be granted.

Respectfully submitted,

MARVIN D. MILLER

1007 King Street

Alexandria, VA 22313

(703) 548-5000

Counsel for Petitioner

23

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-5003

UNITED STATES OF AMERICA

Plaintiff-Appellee

IAN GORDON

Defendant - Appellant.

No. 89-5038

UNITED STATES OF AMERICA

Plaintiff - Appellant

v.

IAN GORDON

Defendant - Appellee.

App - l

Appeals from the United States District

Court for the Eastern District of

Virginia, at Alexandria. Albert V. Bryan,

Jr., Chief District Judge. (CR-88-213-A)

Argued: October 5, 1989

Decided: February 2, 1990

Before POWELL, Associate Justice

(Retired), United States Supreme Court,

sitting by designation, and MURNAGHAN and

WILKINS, Circuit Judges.

Marvin David Miller for Appellant.

Bernard James Apperson, III, Assistant

United States Attorney (Henry E. Hudson,

United States Attorney, on brief) for

Appellee.

App - 2

WILKINS, Circuit Judge:

Ian Gordon appeals his convicticn

of possession of cocaine with the intent

to distribute. 21 U.S.C.A. §841(a) (1)

(West 1981). He claims violations of the

fourth and fifth amendments and that the

district court erroneously denied him

offense level reductions for acceptance of

responsibility and for being a minimal

participant. The United States cross-

appeals Gordon's sentence claiming that

the district court erroneously found

Gordon to be a minor participant. We

affirm the conviction but reverse and

remand for resentencing.

z.

On September 14, 1988, Drug

Enforcement Administration Special Agent

Callahan and Loudon County Deputy Becerra

were engaged in general surveillance of

passengers at Washington National Airport

in Arlington, Virginia. They observed

App - 3

Gordon deplane from a Pan Am shuttle from

New York. While the officers knew that

New York was a “source city" for

narcotics, they had no prior information

about this particular flight or Gordon,

nor did Gordon meet a "drug courier

profile."

Callahan and Becerra. followed

Gordon outside the terminal, where

Callahan approached Gordon and explained

that he was part of a Drug Enforcement

Administration drug interdiction team.

Callahan asked for and received permission

to search Gordon's bag. Finding no

contraband, Callahan requested permission

to "pat him down." Gordon again gave

verbal permission. Upon discovering a

bulge in Gordon's”~ pocket, Callahan

requested to see its contents. Although

he claimed that the pocket contained only

a sandwich, Gordon removed a small clear

plastic bag partially wrapped in gray duct

tape containing 249.50 grams or white

App - 4

powder, which Callahan recognized to be

cocaine. The officers placed Gordon under

arrest and informed him of his Miranda

rights.

When the officers asked Gordon if

he would answer’ some questions he

responded, "What do you want to know?"

When asked the question, "Where were you

taking this stuff?" Gordon shook his head

in response. He was immediately

transported to a nearby police station, a

trip which Gordon concedes took no more

than five minutes. Becerra testified that

at the station he asked Gordon "if he was

high, at which he said no. I asked him if

he snorted or smoked cocaine. He said no."

When asked how Gordon indicated that he

did not snort or smoke cocaine, Becerra

Stated that Gordon "made a negative

gesture with his head."

At a preliminary hearing, Gordon

moved to suppress the cocaine as the

product of an illegal search and seizure.

App - 5

He also moved to suppress any inculpatory

statements made at the police station on

the basis that their admission would

violate his fifth amendment rights under

Miranda. Both motions were denied and

Gordon was subsequently convicted by a

jury of possession with the intent to

distribute cocaine.

At sentencing, Gordon admitted that

he was guilty of simple possession of

cocaine and requested a reduction for

acceptance of responsibility. U.S.S.G.

§3E1.1. However, on the advice of counsel

he would not acknowledge that he possessed

the cocaine with the intent to distribute.

He refused to elaborate, expressing his

desire to preserve any fifth amendment

rights in the event of a successful appeal

and retrial. He also requested a four-

level reduction of his offense level,

claiming that as a courier he was entitled

to be classified as a minimal participant

under section 3Bl.2(a) of the guidelines.

App - 6

Over the government's objection, the court

granted Gordon a two-level reduction for

being a minor participant. U.S.S.G. §

3B1.2(b). The resulting offense level of

18 with a criminal history category of I

produced a guideline range of 27-33

months. The court sentenced Gordon to 27

months.

il.

On appeal, review of a district

court determination regarding role in the

offense is governed by the clearly

erroneous'7 standard. United States v.

Daughtrey, 874 F.2d 213 (4th Cir. 1989)

(determination that defendant was neither

minimai nor minor participant is a factual

question and due deference requires

affirmance unless clearly erroneous); see

United States v. Sanchez-Lopez, 879 F.2d

541 (9th Cir. 1989); United States v.

Wright, 873 F.2d 437 (lst Cir. 1989);

United States v. Nunley, 873 F.2d 182 (8th

App - 7

Cir. 1989); United States v. Rojas, 868

F.2d 1409 (5th Cir. 1989).

Gordon bases his claim that he was

a minimal participant on the commentary to

section 3Bl.2 of the guidelines, which

states that an offense level reduction for

minimal participation would be appropriate

"in a case where an individual was

recruited as a courier for ae single

smuggling transaction involving a small

amount of drugs." ee ee §3Bl.2,

comment. (n.2). Gordon also argues that

the government's reference to him during

the trial as a courier entitles him to a

reduced offense level. However, as this

circuit and che Fifth Circuit have held,

the fact that a defendant is a drug

courier does not automatically entitle him

to a reduction. United States v. White,

875 F.2d 427, 434 (4th Cir. 1989); see

United States v. Buenrostro, 868 F.2d 135,

138 (5th Cir. 1989). In Buenrostro the

court, referring to the commentary cited

App <- &

by Gordon, stated that "[t]he example

suggests that some couriers may

appropriately receive the reduction; it

does not suggest that all couriers are

entitled to a downward adjustment."

Buenrostro, 868 F.2d at 138. In White we

adopted the reasoning of Buenrostro and

held that section 3Bl.2 of the guidelines

turns upon culpability, not courier

status. White, 875 F.2d at 434. A

aGefendant may be a courier without being

less culpable than the other participants.

Id. Gordon offered absolutely no evidence

to support a finding that he was a minimal

participant. Therefore, we affirm the

refusal by the district court to grant

Gordon a four-level reduction of his

offense ‘evel on this basis. ,

In its cross-appeal, the government

urges that Gordon was not entitled to the

two-level reduction for minor participant

status. Its position is simply thet

Gordon was apprehended while possessing,

App - 9

with the intent to distribute, a quantity

of cocaine. The government had _ no

knowledge of the source of the cocaine or

that Gordon was involved in a conspiracy

with others. At sentencing Gordon offered

no evidence regarding the scope of his

involvement with another participant or

any other evidence on which the district

court could base a finding of reduced

culpability or involvement justifying his

classification as a minor participant.

Although Gordon correctly asserts that the

number of defendants indicted does not

determine whether there was more than one

participant involved in the offense, there

waS no evidence here of participation by

anyone else.

The government iS correct that

mitigating role adjustments apply only

when there has been group conduct and a

particular defendant is less culpable than

other members of the group to such a

degree that a distinction should be made

App - 10

at sentencing between him and the other

participants.! When seeking a mitigating

adjustment, a defendant has the burden of

proof to convince the district court of

its application by a preponderance of the

evidence. United States. v. Urrego-

Linares, 879 F.2d 1234, 1239 (4th Cir.),

cert. denied, 110 S. Ct. 346 (1989).

Since there are no facts in the record to

support Gordon's position, he is forced to

rely on two conclusory statements one by

the prosecuting attorney and the other by

the probation officer who prepared the

presentence report. During trial, the

prosecuting attorney referred to Gordon as

a courier, and Gordon argues that this

entitles him to be viewed as a minimal

participant. Interestingly, Gordon

1 The language of Chapter Three, Part

B, Role in the Offense, requires that for

an aggravating or mitigating adjustment to

apply, evidence of group conduct is

necessary. In addition, a defendant's

role in the offense should be weighed

against the elements of the offense of

conviction. Daughtrey, 874 F.2d at 216.

App - ll

continues to deny that he intended to

deliver the cocaine to anyone, yet at the

same time he contends that’ the

government's reference to him as a courier

entitles him to a reduced offense level.

Also, a worksheet prepared by the

probation officer and submitted to the

court recommended a two-level reduction as

a minor participant. But, as we have

previously held, the decision of the

district court on whether to apply a

particular guideline is not controlled by

the probation officer's recommendation.

White, 875 F.2d at 431. Further, in

paragraph 5 of the presentence report

entitled "Defendant's Role in the

Offense," it is reported that "[tjhe

defendant is solely responsible for the

charge for which he is before the court."

The district court adopted the report in

its statement of findings and reasons for

the sentence imposed.

App - 12

We are faced with a record devoid

of any justification for the conclusion of

the district court that "[t]he court finds

that the base level should be reduced by 2

for the defendant's role in the offense

ar The court offered no explanation

nor pointed to any fact to support its

conclusion. See United States v. White,

888 F.2d 490, 495 (7th Cir. 1989) ("Every

sentence under the Guidelines must be

supported by reasons.").

Under the new sentencing system

mandated by the Sentencing Reform Act of

1984, 18 U.S.C.A. §§ 3551, et seq. (West

1985 & Supp. 1989), a request for the

district court to find and apply an

aggravating or mitigating factor when

determining the appropriate guideline

sentence must be based on some evidence.

The moving party cannot meet his burden

Simply by offering conclusory statements.

Here, the record is devoid of any

evidence, aggravating or mitigating, other

App - 13

than that Gordon was simply a participant

not entitled to any adjustment. See

U.S.S.G. §3B1.4. While the finding of the

applicability of an aggravating or

mitigating factor is protected on appeal

by the clearly erroneous’ standard of

review, this protection does not extend to

a determination made without any factual

foundation. To follow Gordon's logic,

everyone apprehended for possession with

the intent to distribute cocaine under

these circumstances would be entitled to a

reduced offense level because of the

general nature of the drug trade where

contraband passes from its primary source

to the ultimate user through a number of

hands.

Consequently, because the district

court erroneously applied ae two-level

reduction for minor role, we remand for

resentencing within the sentencing

guidelines range resulting from an offense

App - 14

level of 20 and a ecriminal history

category of I.

IIil.

Gordon also argues that the

district court erred by not reducing his

offense level for acceptance of

responsibility. See U.S.S.G. § 3E1.1.

Although at sentencing he did admit that

he was guilty of simple possession of

cocaine, he did not accept responsibility

for his intent to distribute it. He

maintains that to have done so would have

rendered a successful appeal a hollow

victory. He contends that in the event

of retrial his admission to the probation

officer and district court could be used

against him to prove intent to distribute

(a fact which Gordon has’ contested

throughout). Gordon characterizes this as

a Hobson's choice between obtaining a

reduction and preserving his’ right to

appeal. He likens the choice to the

impermissible situation where a defendant

App = 15

must choose to Surrender one

constitutional right to assert another

one. Simmons v. United States, 390 U.S.

377 (1968). Gordon relies on United

States v. Perez-Franco, 873 F.2d 455 (lst

Cir. 1989), and contends that it supports

his position. Although we do not accept

the holding and reasoning of Perez-Franco

as correct, it nevertheless offers Gordon

no support. In Perez-Franco, the First

Circuit held that a defendant need only

accept responsibility for the count to

which he has pled guilty as part of a plea

agreement. Id. at 453. We believe the

approach taken by the Second and Fifth

Circuits is correct and hold that in order

for section 3E1l.1 of the guidelines to

apply, a defendant must first accept

responsibility for all of his criminal

conduct. See United States v. Moskowitz,

888 F.2d 223 (2d Cir. 1989); United States

v. Tellez, 882 F.2d 141 (Sth Cir. 1989).

However, a defendant is not penalized for

App - 16

failing to accept responsibility. Rather,

acceptance of responsibility is a

mitigating factor available under

appropriate circumstances.

Gordon further argues that’ the

district judge's comment that "I don't

really view acceptance of responsibility

as a postguilty finding or plea factor"

indicated that he believed that acceptance

of responsibility would never be available

as a mitigating factor after trial.

However, in holding that Gordon was not

entitled to the reduction, the district

judge also stated that "I don't think he

is automatically denied the two points

merely because he goes to trial." The

district court found that Gordon had done

nothing to indicate his acceptance of

responsibility. Indeed, Gordon's claim

that he was entitled to this mitigating

factor while at the same time denying the

criminal conduct for which he was

App - 17

convicted by a jury borders on the

frivolous.

The determination of whether to

give a reduction under section 3El.1 of

the guidelines is a factual one reviewable

under the clearly erroneous’ standard.

United States v. White, 875 F.2d 427, 431

(4th Cir. 1989). The sentencing judge is

in "a unique position to carefully examine

the particular circumstances of each

case." Id. As the district court

correctly pointed out, the timeliness of

the defendant's conduct in accepting

responsibility is a consideration.

U.S.S.G. § 3E1.1, comment. (n.1(q)).

There is nothing in the record to indicate

that Gordon was entitled to the reduction

for acceptance of responsibility except

for his counsel's assertion that he was

sincere in accepting his guilt for simple

possession of cccaine. The district court

did not clearly err in denying Gordon the

App - 18

reduction for acceptance of

responsibility.

IV.

Gordon also challenges the denial

of his motion to suppress the cocaine by

first arguing that he was "seized" in

violation of his rights under the fourth

amendment. But, before addressing the

constitutional issue, we must first

resolve the issue of whether a seizure

took place. This determination is a

question of fact subject to a Clearly

erroneous standard on appeal. United

states v. Gooding, 695 F.2d 78, 82 (4th

Cir. 1982). In determining whether a

person has been "seized," the issue is

whether "in view of all the circumstances

Surrounding the incident, a reasonable

person would have believed that he was not

free to leave." Immigration §&

Naturalization Service v. Delgado, 466

U.S. 210, 215 (1984) (quoting United

54

uw

states _ v. Mendenhall, 446 U.S. 544,

App - 19

(1980) (plurality opinion)). We have

frequently used this standard in reviewing

district court decisions. See United

States v. Gray, 883 F.2d 320, 322 n.2 (4th

Cir. 1989).

Gordon argues that because the

officers had no justification for

interfering with his travel this encounter

was a seizure. However, the fact that

Gordon did not meet a "drug courier

profile" and the officers had no other

reason to suspect Gordon does not mandate

that the officers were prohibited from

having a brief police-citizen encounter.

Florida v. Royer, 460 U.S. 491, 497 (1983)

(fourth amendment not violated when law

enforcement officers merely approach an

individual in public and ask him to answer

some questions). In fact, it is only when

an encounter is classified as a seizure

that the court must determine whether

there was a reasonable suspicion. United

States v. Harrison, 667 F.2d 1158, 1160

App - 20

(4th Cir.), cert. denied, 457 U.S. 1121

(1982).

Gordon argues that an Arlington

County, Virginia, ordinance making it a

misdemeanor for a person in a public place

to refuse to identify himself when

requested to do so by a law enforcement

officer* and the fact that his father was

a former police officer who taught him to

respect and obey law enforcement personnel

demonstrate that he believed that he was

not free to leave. But Gordon

misinterprets the Mendenhall objective

test of whether a reasonable person under

the circumstances would have believed that

ne was not free to leave.

As Gordon testified, the officers

were polite and quiet, did not instruct

him that he could not leave, did nothing

to prevent him from leaving, and did not

tell him that he must permit the search.

2 Gordon offered no evidence to show

that he was aware of this ordinance at the

time of his arrest.

App - 21

Based on all the facts and circumstances,

the district court was not clearly

eecenain in finding that there was not a

seizure of Gordon's person.

Gordon also challenges the

voluntariness of the search. The

voluntariness of a defendant's consent to

a search is a factual question determined

in light of the totality of the

circumstances and should be upheld unless

clearly erroneous. United States v.

Peterson, 524 F.2d 167, 178 (4th Cir.

1975) (citing Schneckloth v. Bustamonte,

412 U.S. 218, 226 (1973)), cert. denied,

423 U.S. 1088 (1976). Moreover, the

government need not demonstrate that the

defendant knew of the right to refuse to

consent for the search to be deemed a

voluntary one. Schneckloth, 412 U.S. at

248-49. When the officer discovered a

bulge in Gordon's pocket, he asked Gordon

what the pocket contained. When Gordon

replied, "A sandwich," the officer asked

App - 22

to see it. Gordon then removed phe bag of

cocaine from his pocket. The district

court was correct in finding that this was

a voluntary search.

Ve

Gordon also argues that shaking his

head in a negative manner in response to a

question at the police station of whether

he used cocaine, thus implying that the

cocaine may not be for personal use, was

obtained in violation of his’ fifth

amendment rights against self-

incrimination. Gordon characterizes the

shaking of his head after being asked at

the airport where he was taking the

cocaine as ending the interrogation so

that a subsequent question at the police

station without renewed warnings did not

"scrupulously honor" his "right to cut off

questioning" under Miranda as interpreted

by Michigan v. Mosley, 423 U.S. 96 (1975).

Gordon's reliance on Mosley is misplaced.

Mosley held that the principles of Miranda

App - 23

were not violated when, after a defendant

had terminated an interrogation and a

significant amount of time had elapsed

before another officer sought to question

the defendant about an unrelated crime,

the Miranda warnings were given again.

Here, only a few minutes had _ passed

between the Miranda warnings at the

airport and the questioning at the police

station. Under these circumstances, it

was unnecessary for the officers to recite

the Miranda warnings again.?

Additionally, the finding by the

district court that Gordon did not

indicate that he was terminating the

interrogation is fully supported by the

evidence. In response to whether he would

3 The dissent indicates puzzlement by

a discussion of Mosley. However, in his

brief Gordon relied heavily on Mosley and

urged this court to hold that he had

terminated the interrogation at the

airport and, thus, because the agents did

not inform him of his Miranda rights a

second time before beginning questioning

at the police station, his Miranda rights

were not scrupulously honored.

App - 24

answer questions, Gordon asked, "What do

you want to know?" When asked where he

was taking the cocaine, he replied by

shaking his head. Reasonable

interpretations of this act are that he

did not know or that he did not intend to

answer that question--not that he was

refusing to answer other questions. We

agree with the district court that Gordon

did not indicate that he intended to

conclude all questioning. The dissent

would hold that Gordon did not waive his

Miranda rights. However, a waiver "need

not be explicit, but may be inferred from

all of the circumstances." United States

v. Hicks, 748 F.2d 854, 859 (4th Cir.

1984); see also North Carulina v. Butler,

441 U.S. 369, 373 (1979) ("The question is

not one of form, but rather whether the

defendant in fact knowingly and

voluntarily waived the rights delineated

in the Miranda case."). Here, Gordon

indicated that he understood his rights,

App - 25

did not request counsel, and when asked

whether he would answer some questions,

responded by asking "what do you want to

know." All of the circumstances support

the conclusion by the district court that

Gordon waived his rights, a finding which

we cannot say was clearly erroneous. See

United States v. Smith, 608 F.2d 1011,

1013 (4th Cir. 1979). Additionally, his

statement at the police station was freely

and voluntarily made and not in violation

of his fifth amendment right against self-

incrimination.

AFFIRMED in part;

REVERSED in part;

and REMANDED.

App - 26

MURNAGHAN, Circuit Judge, dissenting:

The panel here affirms the district

court's finding that Ian Gordon waived his

Miranda rights when he asked interrogating

police officers what they wanted to know,

twice refused to answer their questions on

the delivery of drugs, and then shook his

head when asked whether he used drugs.

Because I cannot find any evidence in the

record to support the district court's

conclusion of waiver, I respectfully

dissent. 1}

1 I do agree with Judge Wilkin's

fourth amendment analysis and find none of

Gordon's arguments on this’ basis

persuasive. Particularly unappealing is

Gordon's contention that the existence of

an Arlington County, Virginia, ordinance

requiring identification upon request

transformed the encounter with the police

into a seizure. The ordinance is

completely inapplicable to the present

case because the Virginia Supreme Court

has interpreted the ordinance to require a

reasonable and articulable suspicion prior

to the imposition of criminal liability

for refusal to provide identification.

Jones _v. Commonwealth, 230 Va. 14, 334

S.6.2G 536 (1985). Thus, as a matter of

statutory interpretation, the ordinance

could not have been applied to the

encounter and the officers did not attempt

App - 27

| ieee aia aati ae ie

After Gordon was placed under

arrest at the airport, Agents Callahan and

Becerra advised him of his Miranda rights.

Becerra asked Gordon whether he would talk

with the agents and Gordon replied, "What

do you want to know?"

Becerra asked, "Where are you

taking this stuff?" Gordon responded by

shaking his head in a negative manner, he

would not answer the question. Gordon was

then taken to the police station.

At the station, Agent Callahan

began processing Gordon, taking the usual

personal information such as birth date

and place of residence. During the

processing, Becerra resumed his- prior

questioning and again asked Gordon where

he was taking the drugs. Becerra told

Gordon that the U. S. Attorney would be

informed of his cooperation and that the

U. S. Attorney might help him. Gordon

replied, "No one can help me now. Only

to invoke its authority.

App - 28

the Lord." He again refused to answer

Becerra's question.

Becerra, referring to the drugs,

then asked Gordon, "Do you use this

stuff?" In response, Gordon just shook

his head in a negative manner. Gordon's

head gesture and a quantity of cocaine (9

ounces) consistent with either

distribution or personal consumption were

the only evidence supporting the

distribution charge on which Gordon was

convicted.

My brothers conclude that’ the

district court's determination of the

voluntariness of the gesture is fully

supported by the evidence. See United

States v. Smith, 608 F.2d 1011, 1013 (4th

Cir: 1979) (determination of waiver

reviewed by appellate court under "clearly

erroneous" standard). They reach that

conclusion because Gordon never indicated

that he wanted to conclude all questioning

and even his negative response to the

App - 29

first question could have been reasonably

interpreted as simply refusing to answer

the specific question.

If our inquiry were whether Gordon

unambiguously asserted his right to remain

Silent, I would join Judge Wilkins'

opinion. But I fear he asks the wrong

question. The inquiry is not whether

Gordon clearly invoked his’ rights’ to

remain silent and to have counsel present

during custodial interrogation but,

rather, whether he ever waived them. It

cannot be said here that a determination

of knowing and voluntary waiver is

Supported by substantial, indeed if any,

evidence.

Miranda v. Arizona, 384 U.S. 436

(1966), and its progeny have made

indisputably clear that the prosecution

can make no use of an accused's statements

elicited during custodial interrogation

unless it demonstrates that an accused had

waived his Miranda rights prior to

App - 30

OO

interrogation.* Miranda, 384 U.S. at 444;

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

a7 (1979) (courts must presume that

defendant did not waive Miranda rights);

Tague v. Louisiana, 444 U.S. 469, 470-71

(1980) (per curiam) (heavy burden on

government to show knowing and intelligent

Waiver); Colorado v. Connelly, 479 U.S.

157, 168 (1986) (government bears heavy

burden and must prove waiver by

"preponderance of evidence"). Wavier is

2 It is only after an accused has

waived his Miranda rights and custodial

interrogation has been permissibly

initiated that the accused must indicate

his wish not to be interrogated to make

further questioning impermissible.

Miranda, 384 U.S. at 444-45. Once the

accused so indicates a desire to remain

Silent, all interrogation must cease. Id.

at 473-74.

The panel's discussion of Michigan v.

Mosley, 423 U.S. 96 (1975), is puzzling to

say the least. Mosley is an exception to

the rule that prohibits further

interrogation once an accused indicates

his intent to remain. silent. Mosley

provides the police with the ability to

resume interrogation after a significant

length of time if they "scrupulously

honor" an accused's right to cut off

questioning. Id. at 104. It simply does

not apply here.

App - 31

defined as an “intentional relinquishment

or abandonment of a Known right." ohnson

Vv. Zerbst, 304 U.S. 458, 464 (1938).

Thus, the record must contain sufficient

evidence to support the inference that the

defendant was in fact willing to make a

statement. And, the defendant's

willingness to make a statement cannot be

presumed solely because a statement was in

fact made. Miranda, 384 U.S. at 475.

The record here simply contains

insufficient evidence to conclude that

Gordon knowingly and voluntarily waived

his Miranda rights. Gordon never indicated

that he was willing to make a statement

and he never did make a verbal statement

to the police that was responsive to any

of their questions. Indeed, some of

Gordon's actions were marked with

steadfast resistance. Aside from his

resistance to answer the officers'.

questions, Gordon only did two things:

(1) when asked if he was willing to talk,

App - 32

he replied, "What do you want to know?"

and (2) while being processed, he shook

his head in response to Becerra's question

On personal drug consumption. Gordon's

conduct cannot constitute waiver.

Gordon could not have waived his

Miranda rights by saying “What do you want

to know?" Its content does not allow an

inference that Gordon was willing to make

a statement. If it suffices to constitute

waiver, then almost any statement other

than "No!" will constitute waiver. As

long as an accused verbally responds to an

officer who asks if he will talk, waiver

can be found notwithstanding an absence

of evidence indicating that the accused

was willing to make a statement. Such a

ruie eviscerates the waiver requirement.

But here the situation is even

worse. After Gordon said, “What do you

want to Know?" the officers asked Gordon

where he was taking the drugs. He shook

his head and did not answer the question.

App - 33

His gesture was not an answer to the

question: there is no destination

equivalent to "no," at least none employed

by Gordon. Gordon's gesture was a refusal

to answer either the specific question or

all questions.

Even in cases in which an accused

has waived his Miranda rights, when he

then ambiguously asserts his right to

remain silent, the police are allowed to

ask only limited questions to clarify the

ambiguity. See Lightbourne v. Dugger, 829

F.2d 1012, 1018 (5th Cir. 1987), cert.

denied, 109 S.Ct. 329 (1988); United

States v. Fouche, 833 F.2d 1284, 1287 (9th

Cir. 1987), cert. denied, 108 S.Ct. 1756

(1988) ; f. Smith v. Illinois, 469 U.S.

91, 96 n.3 (1984) (per curiam) (noting,

but not resolving, conflict between courts

over whether an ambiguous request permits

limited clarifying quesitons or instead

demands cessation of interrogation). Here

we have an ambiguous refusal to answer a

App - 34

question? coupled with a lack of any

evidence indicating that Gordon was

willing to make a statement. The police

should have clarified Gordon's refusal to

answer the question in order to determine

whether he was willing to taik. Ce.

Connecticut v. Barrett, 479 U.S. 523, 529-

30 (1987) (when an accused's request for

counsel, “understood as ordinary people

would understand [it]," is ambiguous, the

request should be construed broadly by the

court). Because there was absolutely no

evidence that Gordon was willing to make a

statement, Gordon's course of conduct

3 Even assuming, for the sake of

argument, that Gordon's head gesture was

unambiguous and was clearly intended only

as a refusal to answer the specific

question on delivery, the police did not

even honor that request. After Gordon

refused to answer the delivery question,

the police, at the station, again asked

him the same question. A request not to

be questioned with regard to a particular

subject-matter must be honored by the

police. United States v. Vasquez, 476

F.2d 730, 732-33 (Sth Cir.), cert. denied,

414 U.S. 836 (1973). Further questioning

after police refuse to honor a desire for

limited silence is impermissible.

App - 35

preceding the question on drug consumption

did not constitute waiver.4

The only fact capable of

demonstrating waiver is Gordon's possibly

inculpatory gesture itself. But a valid

waiver cannot be presumed simply because a

statement was in fact elicited. Miranda,

384 U.S. at 475. Yet, even more troubling

is the fact that Gordon's’ inculpatory

response was a nonverbal gesture made in

reaction to an accusatory question. Such

a response is far more ambiguous than a

verbal response, and, alone, is incapable

of communicating a knowing and voluntary

waiver.

As Judge Wilkins notes, such

gestures are susceptible to various

reasonable interpretations. A head shake

could have been intended as an answer to a

question or instead it could have been

4 Gordon said, "What do you want to

know?", shook his head and refused to

answer a question, was taken to the

station, and again refused to answer the

question.

App - 36

intended as a refusal to answer the

specific question or all questions.°® In

the case of a nonverbal statement, two

separate inferences must be drawn for one

to conclude waiver: (1) the gesture was

an answer, not a refusal to answer; and

(2) the defendant answered the question

because he wanted to do so voluntarily,

declining to exercise his rights. It

seems, to me, that drawing these

inferences in the present case does a

great injustice to the protections of

Miranda, greatly increasing the risk of

police precipitation of reactive gestures

as grounds for conviction, and greatly

decreasing the likelihood that defendants

were actually willing to make these

gestures.

Significantly, the Miranda rights

only forewarn an accused to keep his

° That Gordon's gesture was a refusal

to answer is, perhaps, more likely when

considering that he also shook his head in

refusing to answer the officer's first

question.

ADD = 37

"mouth shut," not his "head still."

Miranda essentially set forth a disclosure

scheme, based on the premise that

voluntariness can be ensured only by

informing an accused of the consequences

of foregoing his right to have counsel

present during interrogation. See

Barrett, 479 U.S. at 530. But, pursuant

to Miranda, an accused is only informed

that “anything said can and will be used

against [{him]." Miranda, 384 U.S. at 469

(emphasis added) .® A reasonable inference

an accused might draw from such a warning

is that his rights to remain silent and to

have the assistance of counsel will be

protected as long as he does not "say"

anything. Gordon should not be considered

to have waived his Miranda rights when he

6 Callahan told Gordon that "he had

the right to remain silent, that anything

he said could and would be used against

him in a court of law; that he had the

right to an attorney; if he could not

afford one, one would be provided for him

by the court;and that he did not have to

make any statements at this time unless he

wished to do so." (Emphasis added.)

App - 38

was not informed that a responsive yet

ambiguous gesture could be used against

him, particularly when no other evidence

existed to show that he was willing to

make such a statement.’ See Colorado v.

Spring, 479 U.S. 564, 574 (1987) ("The

Miranda warnings ensure that a waiver of

these rights is knowing and intelligent by

requiring that the suspect be fully

advised of . . . the critical advice that

whatever he chooses to say may be used as

evidence against him.").

Because Gordon did not waive his

Miranda rights, and because the admission

of his head gesture into evidence

Significantly prejudiced his case, I

would reverse Gordon's conviction. ®

7 I do not mean to suggest that

nonverbal communication should be

prohibited from the interrogation roon,

only that the police clarify whether an

accused is in fact willing to make such a

statement prior to eliciting it.

8 Whereas I would reverse Gordon's

conviction, I do not reach the Sentencing

Guidelines issues addressed in the panel

opinion. I must note, however, that I am

App - 39

troubled by Judge Wilkins' rejection of an

approach used by the First Circuit on a

issue that is not presented in this case.

Not only does Judge Wilkins unnecessarily

create a direct conflict with another

circuit court, but his statements, obiter

dictum, restrict the discretion of the

sentencing judges.

Prior to - sentencing, Gordon

admitted his possession of the cocaine but

did not admit an intent to distribute; he

feared that such an admission might be

used against him if he was successful on

appeal. The probation office's report

recommended against giving Gordon a

downward adjustment due to his failure to

admit the crime for which he was

convicted. Although the district court

denied Gordon the acceptance of

responsibility adjustment, the judge

stated reasons different from _ those

contained in the probation office's

report. Essentially, Judge Bryan reasoned

that something more than post-conviction

statements is required to manifest

acceptance of responsibility.

Nevertheless, Judge Wilkins

addresses, and rejects Gordon's argument

that a defendant should not be required to

admit the entire crime for which he was

convicted to receive the responsibility

adjustment. In light of Judge Bryan's

rationale, the argument is a non-issue.

Also unnecessary is Judge Wilkins'

rejection of the approach used in United

States v. Perez-Franco, 873 F.2d 455 (lst

Cir. 1989), in which the First Circuit

heid that a defendant need only accept

responsibility for the counts to which he

has pled guilty as part of a plea

agreement. Id. at 463. Judge Wilkins

App - 40

takes the opposite view, stating that "for

section 3E1.1 of the guidelines to apply,

a defendant must Firet accept

responsibility for all of his criminal

conduct." But, as Judge Wilkins

acknowledges, Perez-Franco is irrelevant.

The problem here is that Gordon did not

accept responsibility for the count on

which he was convicted. The correctness

of Perez-Franco is not before the court.

App - 41

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-5003

UNITED STATES OF AMERICA

Plaintiff

Vv.

IAN GORDON

Defendant

No. 89-5038

UNITED STATES OF AMERICA

Plaintiff

Vv.

IAN GORDON

Defendant

Appellee

Appellant

Appellant

Appellee

On Petition for Rehearing with Suggestion

for Rehearing In Banc

App - 42

The appellant's petition for

rehearing and suggestion for rehearing in

banc were submitted to this Court.

On the question of rehearing before

the panel, Judge Murnaghan voted to rehear

the case. Justice Powell and Judge

Wilkins voted to deny.

In a requested poll of the Court on

the suggestion for rehearing in banc,

Judge Murnaghan voted to rehear the case

in banc; and Justice Powell, Chief Judge

Ervin and Judges huasall, Widener, Hall,

Phillips, Sprouse, Chapman, Wilkinson and

Wilkins voted against in banc rehearing.

As the panel considered the

petition for rehearing and is of opinion

that it should be denied, and as a

Majority of the active circuit judges

voted to deny rehearing in banc,

IT IS ADJUDGED AND ORDERED that the

petition for rehearing and suggestion for

rehearing in banc are denied.

App - 43

’ | :

Entered at the direction of Judge

Wilkins.

For the Court,

/s/ John M. Greacen

Clerk

“App - 44