RAFAEL SANTOS HERNANDEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-5936 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A17) is reported at 897 F.2d 47. JURISDICTION The judgment of the court of appeals was entered on February 20, 1990. The petition for a writ of certiorari was filed on August 1, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly denied petitioner's motion to suppress his post-arrest statement to an emergency room nurse. 2. Whether the evidence was sufficient to support petitioner's convictions on various charges, including conspiring to distribute cocaine and attempting to murder a federal officer. 3. Whether the district court properly applied the Sentencing Guidelines in sentencing petitioner to life imprisonment. STATEMENT After a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted of conspiring to distribute cocaine, in violation of 21 U.S.C. 846 (Count 1); possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 2); using a firearm during the course of a narcotics trafficking offense, in violation of 18 U.S.C. 924(c) (Count 3); assaulting a federal officer with a deadly weapon, in violation of 18 U.S.C. 111 (Count 4); conspiring to murder a federal officer, in violation of 18 U.S.C. 1117 (Count 5); attempting to murder of a federal officer, in violation of 18 U.S.C. 1114 (Count 6); and receiving and possessing a firearm with a defaced serial number, in violation of 26 U.S.C. 5871 (Count 7). He was sentenced to life imprisonment. /1/ 1. a. On the evening of September 6, 1988, two DEA informants met with Rafael Romero on a Manhattan street corner to consummate a prearranged purchase of two kilograms of cocaine for $17,500 per kilogram. Romero got into the informants' car and assured them that everything was ready. Romero directed the informants to drive to a nearby street corner, where Albert Rodriguez was waiting. Rodriguez stated that the transaction would take place in his apartment, and led the informants and Romero there. Rodriguez then announced that the cocaine was stored in another apartment that he maintained in the building, and left. Gov't C.A. Br. 3-6. During Rodriguez's absence, Romero told the informants that he had known Rodriguez for some time and had sold drugs for him before. He further promised that as much cocaine as the informants wanted or needed would be available in the future. Soon after Rodriguez returned to the apartment, someone came to the door and delivered a package to Rodriguez. One of the informants activated a signalling device when the package arrived, notifying a team of agents waiting nearby that the cocaine had been delivered. Gov't C.A. Br. 6-8. A number of DEA agents then raided the apartment, shouting "police." They arrested Romero and wrestled Rodriguez to the floor. One of the agents, while making a protective sweep of the apartment, opened the hall closet. Petitioner, who was hiding inside the closet, shot the agent in the face with a .357 Magnum revolver. A volley of bullets followed, injuring petitioner and one of the informants. Pet. App. A3; Gov't C.A. Br. 10. After being advised of his Miranda rights, petitioner was taken to the hospital for treatment. Pet. App. A12; Gov't C.A. Br. 12-13. In response to questions from an emergency room nurse who was trying to determine how he had been injured, petitioner said that he had been in a closet armed with a gun to serve as a backup "in case something went wrong in the course of an expected business transaction." Pet. App. A12; Gov't C.A. Br. 13. b. Following his indictment, petitioner moved to suppress the statement to the emergency room nurse. The trial court held that petitioner's statement to the attending nurse was voluntary. The court also found that although petitioner was in great pain, he "was alert, oriented, coherent, and able to exercise his free will at the time he made the postarrest statement." Gov't C.A. Br. 17. The court accordingly denied the motion to suppress. Petitioner proceeded to trial and was convicted on all counts. c. In sentencing petitioner, the district court grouped all the counts together in order to determine the base offense level, pursuant to Section 3D1.2(c) of the Guidelines Manual. The Guideline for the most serious of the offenses -- the drug trafficking offense charged in Count 2 -- was Section 2D1.1(a)(2) (1987), which at the time provided that the base offense level was 38 for drug offenses resulting in serious bodily injury. The district court adjusted petitioner's offense level upward by three levels under Section 3D1.2 of the Guidelines Manual (1987) because one of the victims was a DEA Agent. The district court also adjusted the offense level upward by two levels under Section 3C1.1 of the Guidelines Manual (1987) because petitioner attempted to impede and obstruct justice by attempting to avoid arrest. The result, an adjusted offense level of 43, called for life imprisonment even though the court used criminal history level I. See Guidelines Manual Section 5.2 (sentencing table). The district court accordingly sentenced petitioner to life imprisonment. 2. The court of appeals affirmed. Pet. App. A1-A17. The court rejected petitioner's claim that his statement should have been suppressed because he had not been advised properly of his Miranda rights and because the statement was not made voluntarily. The court found that because the statement was made to a private party, there was no need that it be preceded by Miranda warnings. The court further found that petitioner's statement was voluntary. Id. at A12-A13. The court also found that the evidence was sufficient to support petitioner's convictions on both conspiracy counts and on all the substantive counts. In response to petitioner's contention that the evidence was insufficient because it showed that he had been in a closet during most of the events, the court concluded that a reasonable jury could conclude that petitioner "knew of the plan to sell narcotics and knowingly participated in it." Pet. App. A7. Indeed, the court concluded that the jury could reasonably infer that petitioner had been in the closet as "the result of a plan agreed to by all the defendants to kill anyone posing a threat to them or the business." Id. at A8. Finally, the court rejected petitioner's various challenges to his sentence. First, the court rejected petitioner's claim that his sentence should have been adjusted downward because he was only a minor participant in the scheme. Rather, the court found, petitioner had lain in wait and shot a federal agent, and thus had "played an active, fully culpable role in the offenses." Pet. App. A16. The court also rejected petitioner's contention that his sentence should have been adjusted downward on account of his personal history and character. The court found that the district court had given petitioner full credit for his "clean record" by calculating his criminal history at the lowest possible level. Ibid. Finally, the court found that petitioner's challenge to the district court's failure to grant a downward departure from the Guideline sentence was not reviewable on appeal. Ibid. ARGUMENT 1. Petitioner contends (Pet. 17-20) that his statement to the emergency room nurse should have been suppressed because it was not preceded by adequate Miranda warnings and because it was not voluntary. The court of appeals properly rejected this contention. First, the court of appeals correctly concluded that petitioner's statement to the nurse need not have been preceded by any warnings. This Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), requires only that warnings be given to a suspect who is subject to "custodial interrogation." The rule of Miranda does not apply to statements that are made to private persons in the absence of police subterfuge or intimidation. Arizona v. Mauro, 481 U.S. 520, 529, 530 (1987). Thus, becaue petitioner's statements were made to a nurse during the routine performance of medical duties, no warnings were required. Petitioner nonetheless claims (Pet. 3, 17-19) that the nurse was acting as an interpreter for the agents, and was thus in effect a government agent. The record establishes, however, that at the time petitioner made the incriminating statement to the nurse, the nurse had not been in contact with the agents and was not acting at their direction. The record shows that petitioner made the incriminating statement while the nurse, following routine medical practice and procedure in the trauma care unit, sought to determine how petitioner had been shot and to assess petitioner's mental status. It was not until after petitioner made the incriminating statement that the nurse spoke with the agents and, at their request, read to petitioner in Spanish from a Miranda warning card. Gov't C.A. Br. 18 & n.*. Petitioner also alleges (Pet. 3, 17-19) that the statement in question was not voluntary because at the time it was given he was in a state of "pre-shock" and suffering a great deal of pain. As an initial matter, such circumstances do not, without police coercion, constitute a violation of petitioner's Fifth Amendment rights or render his statements involuntary. Colorado v. Connelly, 459 U.S. 157, 164, 167 (1986). In any event, the evidence showed, and the district court found, that at the time petitioner made the incriminating statement he was "alert, oriented, coherent, and able to exercise his free will." Gov't C.A. Br. 17. That fact-bound determination does not warrant review by this Court. /2/ 2. Petitioner also argues (Pet. 3-4, 20-21) that the evidence was insufficient to support his convictions on the various charges. The evidence showed, however, that while a narcotics sale was being consummated in the apartment, petitioner lay in wait in a closet armed with a .357 Magnum revolver. Drugs and drug paraphernalia were in plain view in the apartment and, even with the door closed, petitioner could overhear the conversation in the apartment. Pet. App. A7. After DEA agents had entered the apartment shouting "police," petitioner fired at one of the agents at point-blank range. Petitioner subsequently admitted that he had been recruited to serve as "backup" for a "business transaction," and that he was to shoot if anything went wrong. As the court of appeals correctly found (id. at A5-A11), the evidence amply supported petitioner's convictions on the conspiracy and substantive charges. 3. Petitioner also contends (Pet. 4-5, 22-23) that the upward adjustment of his offense level by three points for shooting a federal officer was erroneous because the Guidelines for three of the offenses for which he was convicted (assault on a federal officer using a deadly weapon, 18 U.S.C. 111; conspiracy to murder a federal officer, 18 U.S.C. 1117; and attempted murder of a federal officer, 18 U.S.C. 1114) already incorporated that factor. As an initial matter, petitioner did not raise this issue in the court of appeals, and should not be allowed to raise it for the first time in this Court. United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). In any event, petitioner's claim lacks merit. For purposes of sentencing petitioner, the district court focused on Section 2D1.1(a)(2) of the Guidelines Manual, which provided that the base offense level for a drug offense resulting in serious bodily injury was 38. That offense level took into account petitioner's narcotics trafficking and his use of violence, but it did not take into consideration the official status of the victim. Accordingly, the district court properly adjusted petitioner's offense level upward by three points under Section 3A1.2 of the Guidelines Manual to reflect the fact that the victim was a federal officer. /3/ Similarly, there is no merit to petitioner's complaint (Pet. 22-23) that the district court impermissibly adjusted his base offense level upward by two points for obstruction of justice because his conviction for possession of a firearm with an altered serial number already took that factor into account. At the time of petitioner's offense, Section 3C1.1 of the Guidelines Manual provided for an increase of two offense levels if the defendant "willfully interfere(d) with the disposition of criminal charges, in respect to the instant offense." That factor was taken into account only once in determining petitioner's sentence because he was sentenced under the Guideline governing drug offenses resulting in serious bodily injury, which does not incorporate obstruction of justice. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney JANUARY 1991 /1/ In particular, petitioner was sentenced to concurrent terms of life imprisonment on each of the conspiracy charges, twenty years on the attempted murder charge, ten years each on the assault and possession charges, and five years on the receipt of a defaced firearm charge. He received a consecutive five-year term of imprisonment on the use of a firearm charge. /2/ Petitioner claims (Pet. 19) that prescribed painkillers were deliberately withheld until after he had given his statement. That claim is spurious. The record shows that a painkiller was prescribed to be administered as needed once petitioner was admitted to the hospital ward. However, it was not prescribed, and thus not withheld, while petitioner was being examined and treated in the emergency room, which is when he made the incriminating statement. Gov't C.A. Br. 23 n.*. /3/ Moreover, a subsequent clarifying amendment to Section 3A1.2 makes clear that "(t)he only offense guideline in Chapter Two, Part A, that specifically incorporates (consideration of the status of the victim as a federal officer) is Section 2A2.4 (Obstructing or Impeding Officers)." Guideline Section 3A1.2 (Application Note 3) (as amended effective Nov. 1, 1989). See also United States v. Sanchez, 914 F.2d 1355, 1362 (9th Cir. 1990) (rejecting the defendant's contention that his sentence should not have been adjusted upward three levels on account of the official status of the victim because the aggravated assault Guideline already incorporated that factor).