LARRY JEROME BRADEN, PETITIONER V. UNITED STATES OF AMERICA No. 89-5420 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. I) is not reported. The order of the district court denying petitioner's motion to suppress evidence (Pet. App. III) is not reported. JURISDICTION The judgment of the court of appeals was entered on June 23, 1989. The petition for a writ of certiorari was filed on August 22, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the incriminating statements of a defendant who has been newly advised of his Miranda rights and voluntarily elects to waive them are admissible, even though the defendant refused on an earlier occasion to waive his Miranda rights. STATEMENT After a jury trial in the United States District Court for the Eastern District of California, petitioner was convicted on three counts of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to a term of 94 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed (Pet. App. I). 1. During a five-week period in December 1987 and January 1988, a branch of the Community First Bank of Bakersfield, California, was robbed on three occasions. Evidence at trial -- including bank surveillance photographs and the identification testimony of two tellers, a bank security officer, and a bystander -- showed that petitioner committed all three robberies. In addition, FBI Agent Joseph Servel testified regarding a custodial interview conducted with petitioner on February 1, 1988. After being advised and waiving his Miranda rights, petitioner pointed to surveillance photographs taken during one of the robberies and told Agent SErve. "This one, I did." Gov't C.A. Br. 4-7. 2. The facts surrounding petitioner's post-arrest statements to Agent Servel were developed at a suppression hearing in the district court. On January 28, 1988, petitioner was arrested by Bakersfield police officers for bank robbery and violation of parole. At 1:45 p.m. that day, Detective Randolph Boggs attempted to interview petitioner at the Bakersfield Police Department. After first identifying himself, Detective Boggs informed petitioner of the nature of the investigation and advised petitioner of his Miranda rights. Petitioner indicated that he understood his Miranda rights, and he stated that he did not wish to speak with Detective Boggs. Detective Boggs therefore immediately terminated the interview. Pet. App. III, at 1-2; E.R. 26-27. /1/ Petitioner was next interviewed by Agent Servel on the morning of February 1, 1988, at the Kern County Jail. At the start of the interview, Agent Servel fully advised petitioner of his Miranda rights. Agent Servel then stated that he wished to speak to petitioner about four bank robberies: the three at the Community First Bank and a fourth at the Bakersfield office of the Bank of America. As the district court found, petitioner "waived (his) rights and agreed to respond to (Agent) Servel's questions." Pet. App. III, at 2; E.R. 29-30. Upon being informed that he was a suspect in all four robberies, petitioner stated that he "didn't pull four bank robberies." He was then shown bank surveillance photographs from the four robberies. Examining the Bank of America photograph, petitioner stated that he "kn(e)w nothing about it." Examining next the remaining photographs, petitioner selected the photograph of the January 26, 1988, robbery at the Community First Bank and stated, "This one, yeah. * * * This one I did." Petitioner added that he had not noticed the presence of the security guard until after he had already completed the January 26 robbery, but that he pushed the guard aside when he saw that the guard was unarmed. When Agent Servel asked for further details concerning that robbery, petitioner stated that he "felt it best to consult an attorney." Agent Servel immediately ended the interview. E.R. 30-31. Both the district court (Pet. App. III) and the court of appeals (Pet. App. I) upheld the admission of petitioner's confession to Agent Servel. Both courts noted that the court of appeals had repeatedly held that subsequent interrogation of a person who had previously invoked his right to silence did not violate the principles of Miranda v. Arizona, 384 U.S. 436 (1966), even if the second interrogation related to the same offense as the first. ARGUMENT Petitioner contends (Pet. 4-6) that a person in custody, who has previously exercised his right to remain silent, may not be questioned about the same crime even if he is given fresh Miranda warnings. That claim is answered by this Court's decision in Michigan v. Mosley, 423 U.S. 96 (1975), and the lower court decisions that have followed and applied it. In Mosley, the defendant was arrested in connection with two robberies, advised of his Miranda rights, and then questioned about the robberies. When the defendant said he did not wish to answer any questions about the robberies, the officer immediately terminated the interrogation. Two hours later, the defendant was questioned by a different officer regarding a homicide. After receiving a new set of Miranda warnings, the defendant waived his right to remain silent and incriminated himself with respect to the homicide. This Court upheld the admission of the defendant's statements. The Court noted that the rule in Miranda requires that "interrogation must cease" once a defendant has received warnings and indicates that he wishes to remain silent. 423 U.S. at 100-101. Nonetheless, the Court held that that requirement does not "create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject once the person in custody has indicated a desire to remain silent." 423 U.S. at 102-103. To the contrary, the Court held, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" 423 U.S. at 104. As the Court noted, the police in Mosley "immediately ceased the (initial) interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been the subject of the earlier interrogation." 423 U.S. at 106. Under those circumstances, the Court observed, it could not be said that "the police failed to honor the decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind." 423 U.S. at 105-106. Mosley did not limit the admissibility of custodial statements to those situations in which the renewed questioning concerned a "crime that had not been the subject of the earlier interrogation." 423 U.S. at 106. Rather, the key to admissibility under Mosley is the absence of evidence of "attempted persuasion" -- either in the form of a refusal to discontinue questioning or of efforts to wear down the suspect's resistance through repeated efforts at interrogation -- to "induce (a defendant) not to invoke his right to remain silent." Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.), cert. denied, 469 U.S. 849 (1984). Under the analysis prescribed by the Court in Mosley, "it is not decisive that the interrogations covered the same crime," since that factor, standing alone, is relatively unimportant in assessing whether untoward persuasion to break the defendant's resistance has been exerted. Kelly v. Lynaugh, 862 F.2d 1126, 1131 (5th Cir. 1988). The courts of appeals have consistently found custodial statements to be admissible under Mosley even when the questioning pertained to the same offense that was the subject of an earlier interrogation session at which the defendant invoked his right to silence. See United States v. Hsu, 852 F.2d 407, 409-412 (9th Cir. 1988); Jackson v. Dugger, 837 F.2d 1469, 1471-1472 (11th Cir.), cert. denied, 108 S. Ct. 2005 (1988); Hill v. Kemp, 833 F.2d 927, 929 (11th Cir. 1987); Grooms v. Keeney, 826 F.2d 883, 885-886 (9th Cir. 1987); Jackson v. Wyrick, 730 F.2d at 1179-1180; United States v. Bosby, 675 F.2d 1174, 1181-1182 (5th Cir. 1982). /2/ As these courts have stated, it is more significant to the Mosley analysis that there has been a "cooling off period," Hill v. Kemp, 833 F.2d at 929, or that a "fresh set of warnings" have been given, United States v. Hsu, 852 F.2d at 411, than that the two interrogations pertain to different crimes. The record in this case demonstrates that the local police officer who attempted to interview petitioner on January 28 immediately ceased his questioning once petitioner asserted his wish to remain silent. Petitioner was not questioned again until four days later, and then by a different officer at a different location. See United States v. Hsu, 852 F.2d at 412 ("When questioning did resume, the context and the atmosphere were different" and the resulting "change of scenery served as an intervening event to help alleviate any pressure that (the defendant) may have felt to waive his rights"). When questioning resumed, petitioner was furnished with a fresh set of Miranda warnings, which served as a powerful intervening circumstance by reminding him of his ability to cut off questioning immediately. Without the exertion of any pressure by the agent, petitioner thereupon elected to waive those rights. Under these circumstances, it is apparent that petitioner's "right to cut off questioning" was "scrupulously honored." Mosley, 423 U.S. at 104. Petitioner's statements to Agent Servel were therefore properly admitted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S. G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney NOVEMBER 1989 /1/ "E.R." refers to the Excerpt of Record filed in the court of appeals. /2/ In other contexts, courts have also upheld the admission of statements even though circumstances did not mirror exactly the factors that the Court pointed to in Mosley as indicating that the right to cut off questioning had been honored. See Stumes v. Solem, 752 F.2d 317, 321 (8th Cir.), cert. denied, 471 U.S. 1067 (1985) (no fresh Miranda warnings given before the second interrogation); United States v. Udey, 748 F.2d 1231, 1241-1242 (8th Cir. 1984), cert. denied, 472 U.S. 1017 (1985) (defendant twice asserted right to silence before ultimately waiving on third occasion).