FREDDIE LEE McCALEB, PETITIONER V. UNITED STATES OF AMERICA No. 86-5418 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Memorandum for the United States in Opposition Petitioner contends that the court of appeals erred by concluding that any error in admitting his allegedly involuntary confession was harmless. 1. After a jury trial in the United States District Court for the Northern District of Ohio, petitioner was convicted of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to 15 years' inprisonment. The court of appeals affirmed (Pet. App. 1-7). The evidence at trial is summarized in the opinion of the court of appeals (Pet. App. 4-5). It showed that on the morning of October 15, 1984, a black male entered a branch of Bank One in Cleveland. The man approached a teller and handed her a note demanding money. The teller gave him several packets of money, one of which contained an exploding red dye pack. Moments later, a security guard at a nearby arcade saw a black male run through the arcade with red smoke and tear gas pouring out from under his coat (id. at 4). The following day, a black male entered another branch of Bank One and asked a teller if she could exchange 20 red-stained $10 bills for unstained bills. When the teller took the bills to show them to the bank manager, the man left. Unbeknownst to him, a surveillance camera had taken his picture (Pet. App. 4). The teller at the first bank identified the individual in the surveillance photograph taken at the second bank as the robber. The teller at the second bank identified the man in the photograph as the person who tried to exchange the bills; she also picked petitioner's photograph from a photographic array. The security guard at the arcade also picked petitioner's photograph from a photographic array. In addition, he recognized the man in the surveillance photograph as the one he had seen in the arcade. Both the second teller and the security guard identified petitioner at trial (Pet. App. 5). /1/ Medical records showed that petitioner had obtained treatment on the morning after the robbery, for a burn on his right hand. According to the evidence at trial, such a burn could be produced by an exploding dye pack. The surveillance picture taken at the second bank showed that the man who attempted to exchange money had a bandage on his right hand. When arrested, petitioner was carrying more than $350 in red-stained bills. After being given his Miranda warnings following his arrest, petitioner confessed to the crime (Pet. App. 5). 2. Prior to trial, petitioner sought to suppress his confession. He argued that he did not "voluntarily, knowingly, and intelligently" waive his Fifth Amendment rights before making the statements, because at the time of his confession he was under the influence of Percodan, a narcotic drug. The district court rejected petitioner's claim. The court noted the testimony of one of the arresting officers that at the time of arrest petitioner seemed rational, he understood what he was being told, and he had neither bloodshot eyes nor any speech impediment. The court also noted that petitioner knew enough to ask for permission to make a telephone call before signing a statement, which he eventually refused to sign. The court found that the request to make the call showed that petitioner had the capacity to understand the proceedings and to make a valid waiver of his Fifth Amendment rights (Pet. App. 2). On appeal, the court of appeals declined to address the merits of petitioner's claim that his confession was involuntary. Instead, it concluded that any error in admitting petitioner's confession was harmless beyond a reasonable doubt in light of the other evidence of petitioner's guilt (Pet. App. 3-5). 3. Petitioner contends that the court of appeals erred by applying the harmless error rule; he asserts that the admission into evidence of an involuntary confession can never be harmless error. /2/ The court of appeals properly rejected that contention. In Milton v. Wainwright, 407 U.S. 371 (1972), this Court applied the harmless error rule where the defendant claimed that the admission of his confession to a police officer posing as a cellmate violated both his due process rights -- because the confession was involuntary -- and his Sixth Amendment right to counsel (id. at 371, 372). The Court assumed that the confession should have been excluded on those grounds, but it upheld the defendant's conviction because the overwhelming evidence of the defendant's guilt rendered the admission of the confession harmless beyond a reasonable doubt (id. at 372, 377-378). Milton thus indicates that the harmless error rule can apply in cases in which an involuntary confession is improperly admitted into evidence. To be sure, earlier decisions of this Court suggest that the admission of an involuntary confession at trial cannot be harmless error where the confession was obtained through improper government conduct. Chapman v. California, 380 U.S. 18, 23 n.8 (1967) (including "coerced confessions" in list of constitutional infractions that can never amount to harmless error); Lynumn v. Illinois, 372 U.S. 528, 537 (1963); Payne v. Arkansas, 356 U.S. 560, 568 (1958). See Rose v. Clark, No. 84-1974 (July 2, 1986), slip op. 6. There is nothing in this case, however, to suggest that petitioner's will was overborne or that his confession was coerced. The agents did not fail to give petitioner his Miranda warnings (see H. 6, 10, 18) /3/ or otherwise violate his rights in any way. If petitioner's statements were not "the product of a rational intellect and a free will" (Townsend v. Sain, 372 U.S. 293, 307 (1963), quoting Blackburn v. Alabama, 361 U.S. 199, 208 (1960)), that was the result of his own voluntary act of taking Percodan. /4/ Assuming that due process forbids the admission of an involuntary confession where the government did not act improperly in obtaining it, /5/ there is no reason that the harmless error rule should not apply. Any reluctance to apply the harmless error rule to due process violations in the confession context must be based upon the importance of the values protected by this constitutional guarantee and the interest in deterring unconstitutional police conduct. Here, there was no improper conduct to deter, and a principal value underlying the constitutional guarantee -- the prohibition of such improper conduct -- is not implicated. The court of appeals thus correctly determined that the harmless error rule applies in the circumstances of this case. See United States v. Murphy, 763 F.2d 202, 208 (6th Cir. 1985), cert. denied, No. 85-5350 (Jan. 13, 1986). /6/ It is therefore respectfully submitted that the petition for a writ of certiorari should be denied. CHARLES FRIED Solicitor General NOVEMBER 1986 /1/ The first teller was not permitted to identify petitioner at trial because she had been exposed to an impermissibly suggestive photographic array after her identification of the surveillance photograph (Pet. App. 5). /2/ Assuming that the admission of an involuntary statement can be harmless error, petitioner does not dispute the court of appeals' factual determination of harmlessness here. /3/ "H." refers to the transcript of the suppression hearing. /4/ Assuming that petitioner's intellectual capacity was diminished at the time of his arrest, the agents were unaware of that fact and thus cannot be charged with attempting to exploit the situation. One arresting agent testified that following his arrest petitioner seemed "alert, awake and responsive" (H. 10, 21), that his eyes were "(n)ormal (and) clear" (H. 10, 21), that his walking gait was normal (H. 22), and that he indicated that he did not take drugs (H. 25). /5/ The question whether a statement should be excluded as involuntary in the absence of policy misconduct in obtaining it is now before the Court in Colorado v. Connelly, No. 85-660. /6/ The Court has also cited the unreliability of involuntary statements as a factor weighing against the application of the harmless error rule. Payne v. Arkansas, 356 U.S. at 568 n.15. But Payne was decided before the recognition in Chapman v. California, supra, that constitutional errors may be harmless. In light of the constitutional harmless error rule, the inherent unreliability of an involuntary confession should not by itself require automatic reversal. The point of the constitutional harmless error rule is that convictions that are "reliable" (in the sense that they could not have been affected by the constitutional error) should not be reversed. Where, as here, evidence apart from the confession guarantess the reliability of the conviction, the unreliability of the confession is beside the point. A rule exempting the admission of involuntary statements from the operation of the harmless error rule can be justified only by the need to deter police misconduct. As we have shown, that factor is not present here.