ROBERTS v. UNITED STATES

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Argument of Allan M .palmer

Chief Justice Warren E. Burger: The case is submitted.

We'll hear arguments next in Roberts against the United States.

Mr. Palmer, I think you may proceed when you're ready.

Mr. Allan M .palmer: Mr. Chief Justice and may it please the Court.

Perhaps the most important transcript to cite from the sentencing one that is relevant to disposition of this case did not become available until after the brief and the appendix of -- of petitioners were filed.

The Court of Appeals for the D.C. Circuit sent it over here on December 5th and the briefs were filed in November 15th, as I recall.

Now, the transcript we refer to is a 40-page-transcript concerning a so-called Miranda hearing held in the District Court.

And, that transcript indicates that there was a wiretap in the district and, during the course of it, someone named Win was overheard.

Justice Byron R. White: This is an argument that isn't in the brief?

Mr. Allan M .palmer: No, it's in the briefs, Your Honor, because, although the full transcript was not available, we in fact summarized the gist of it from other source material.

Justice Byron R. White: Thank you.

Mr. Allan M .palmer: When it was heard on a wiretap and then a green jaguar, he was alleged to have delivered $50 or $100 worth of drugs and was observed at the situs of the tap.

The young lady who owned the car was summoned to the stands subpoenaed to the US Attorney's Office.

At this point, there were no indictments or criminal charges pending.

She was asked “who drives the car?”

She said, “The only other person that drives it is her male friend, Winfield Roberts and he's right outside the door.”

Impressed with their good fortune, the district attorney and the police officers there invited him in to discuss the matter.

And, as the District Attorney Mr. McSorley said, as soon as you walked in the door, the defendant or potential defendant, he was not a defendant at that time, was read his Miranda rights pursuant to the PD 47 which is a compilation of those rights, except the one that indicated he was under arrest because, clearly, he was not.

He was advised he had the right to remain silent anything he said --

Chief Justice Warren E. Burger: In that proceeding.

Mr. Allan M .palmer: -- may be used against him.

Chief Justice Warren E. Burger: Do you make any point of impropriety and giving the Miranda warning too soon rather than too late?

Mr. Allan M .palmer: No, sir.

Chief Justice Warren E. Burger: No.

Mr. Allan M .palmer: They did it out of abundance of caution --

Chief Justice Warren E. Burger: I see.

Mr. Allan M .palmer: -- so to speak, and he was told that “If you want to answer any questions now with a lawyer present, you have the right to stop answering in any time.

You also have the right to stop answering at any time until you talk to a lawyer.”

This is standard PD 47 warning.

Now, as the district attorney testified at this hearing at transcript 38, he said, “The petitioner fully understood his rights and the trial court agreed.”

Now, initially, the petitioner was vague about any involvement in the case until an actual tape of his voice was played indicating when his own voice, the jaguar, etcetera.

At that point, he admitted what was on the tape to the extent of, on two occasions, he delivered drugs with $50 or $100 to this Charles B. Thornton in a jaguar.

At that point, the Prosecutor Preston said, “Well, where did you get the drugs from?”

And, as the testimony indicated, at that point, police officers testified, at transcript 12, the petitioner was -- gave an evasive answer, “He refused to tell us.”

The prosecutor testified.

He clamped up and the conversation ended because he wouldn't go any further than that.

He was advised to come back in two or three days and think it over.”

He did so and he said, “I can't help you anymore,” and he left.

Now, obviously, the defendant who was not advised by counsel at that point, he was not under duress, only admitted that which the Government knew.

When he heard his own voice on the tapes to deliveries, he said, “Yes, I was involved in that.”

As to any further involvement, any conspiracies of the persons who may be involved, he relied and, pursuant to his warning to remain silent.

And, indeed, this is the very consequence envisioned by this Court in the Miranda opinion where it indicated that if the individual indicates in any manner at any time prior to or during questioning, he wants to rely on these warnings, rights.

At this point, he has shown that he intends to exercise his Fifth Amendment privilege.

This is precisely what this petitioner did.

He was then indictment, arrested and indicted.

He was arrested about a month later, indicated about two months after that.

Here, again, after the indictment on three or four occasions, now, there's a transcript -- the remand transcript of January 28, 1977 that was sent to this Court also in December 5th, alluded to in the Government's brief.

On three or more occasions, personally, the prosecutor spoke to his attorney for cooperation.

He wanted his cooperation to testify in open court against the codefendant and to identify the other people he was involved with, the places, locations, the full conspiracy, so to speak.

And, as the prosecutor testified at the remand hearing, “This was rejected out of hand.

There was never any indication that Mr. Roberts would assist us and, indeed, throughout the course of this three-year-litigation."

Mr. Roberts, the petitioner, consistently relied on his right to remain silent until, at the sentencing hearing, the prosecutor urged this noncooperation as a basis for increasing penalty or, as a sentencing aggravating factor and the court relying thereon and enunciated this as one of the reasons for the consecutive sentence.

At that point, Mr. Roberts, the petitioner was penalized for relying on his Fifth Amendment rights which the Government concedes, at brief 37, it could not do.

The court that is could not so penalize him.

Now, the Government, in its brief, argues a waiver theory that this was never actually urged by petitioner during the course of the three years or the sentencing hearing.

He says, at page 35 of the brief, petitioner as counsel never said that non-cooperation was based on constitutional rights and in cri -- and, immunity was never sought by petitioner or his counsel.

And, further, goes on to say the, point two, that, at no time during the sentencing hearing that, in fact, counsel elude to Fifth Amendment rights.

Now, these are important considerations and we're going to answer them fully, as we have in the brief, we believe.

Insofar as the three-year phase --

Justice William H. Rehnquist: But this isn't true -- true Mr. Palmer, that there was a colloquy at least before the trial where you -- where, in defense counsel, agreed to withdraw their motion to recues Judge Pratt if he would agree to concur in sentences.

Mr. Allan M .palmer: We filed a memorandum.

We don't -- previously had a -- we filed a memorandum.

There was a mandamus petition we set to the judge.

“We'd ask you to recuse yourself because, under the Greg opinion of this Court, you've already sentenced the man, you've heard the -- you've read the presentence report.

Out of an abundance of caution to preserve this issue of fairness, the preservation, the appearance of fairness, we think the Court should recuse itself.”

And, in fact, if the Court does recuse itself in the -- well, it didn't recuse itself, we said.

But, if it did not recuse itself, if it gave concurring sentences, we would withdraw that claim, that's true.

In a footnote, we did indicate that upon consent and advice of the defendant.

Now, in many cases, petitioners arrest to cooperate.

It happens all the time in District Courts, and it is understood by all experienced counsel, defense counsel, that if the man says no, obviously he's relying on his Fifth Amendment rights.

He does not have to confess, say anything to the Government at all.

And, indeed, in this case, the petitioner was brought -- not brought into court during the three-year-period and said, “Well, while I have you not confessed late at the scheme for the benefit of the prosecutor?”

It was understood by the prosecutor and defense counsel that, by not cooperating, the defendant simply relied on his right to remain silent as he had throughout the proceedings.

And so, when the Government says that the defense never came forward during these three years and said, “Well, we're relying on the Fifth Amendment as such” or that “He never asked for cooperation,” that argument is long -- the brief in that regard is long in argument and short on experience because it is generally understood that there is no right for the Government to compel this incriminating statement from the defendant.

And, furthermore, we're not familiar with any instance where or a general practice whereas the defendant who says, “I would like immunity prosecution.

Please give us immunity.”

The Government knows what to -- knows what to do.

If it wants to, it could put the man before the grand jury, if he claims his Fifth Amendment right, then give him immunity.

It's not up to the defendant to ask for it.

It's up for the prosecution to confer it if it deems fit.

Now, at the time of the sentencing or prior thereto, from day one, June 13, 1975 when the defendant walked into the prosecutor's office, through the morning of the sentencing hearing, not one time in writing or otherwise did the Government ever urge noncooperation as a sentencing factor for aggravation or as any factor at all.

Chief Justice Warren E. Burger: Do you think cooperation could be used and is it sometimes argued as a reason for moderating a sentence?

Mr. Allan M .palmer: Of course.

It happens all the time.

Chief Justice Warren E. Burger: Well, then, it's just a one-way street in your view?

Mr. Allan M .palmer: On these facts, it is a one-way street in the sense that the man is consciously giving up right to self-incrimination if he cooperates.

In narcotic cases especially, there's a danger to one's safety, there's a danger to one's life, the -- his family, and he consciously gives up these factors, these rights, the right to silence, the right not to endanger himself or his family.

And, for that reason, when a man cooperates, he does so voluntarily, fine.

Courts have indeed given benefit to that.

But at the Congress, it's not true because if he doesn't cooperate, there are many valid reasons such as, in this case, his reliance on the right of self-incrimination.

Well, he did not cooperation -- did not cooperate and, in fact, Judge Lombard, in considering the issue in the Ramos and DiGiovanni case, a most experienced federal appellate judge, has indicated that it is a one-way street in that regard.

That is quite true, Your Honor.

Now, in its first allocution, prior to the -- or after the first sentence, the Government, in discussing the confession statement of the defendant, they've indicated that he did not cooperate with the Government in a historical sense, just laying out the facts.

It did in no way suggested or intimated that that was the reason for the court to take into account in his sentence and, in fact, it was not urged in allocution and it was not urged by the court in sentencing.

Now, we came to the second sentence that is now before us.

Here, again, the Government wrote a written allocution and never once did it ever suggest, intimate, or anything else say that lack of cooperation is a sentencing factor, never said it.

Chief Justice Warren E. Burger: Are the -- are the prosecutors supposed to -- in the District of Columbia Circuit, do the prosecutors get into the act with recommendations?

Mr. Allan M .palmer: Well, Your Honor, it's interesting.

Prior to 1970 or 1971, prosecutors never recommended sentences.

It is only a recent occurrence.

Having started in about 1970 or 1971, this report, for example, I was there prosecuting cases up until 1968, the Government stood mute at every sentencing, never said a word.

It's a recent innovation, so to speak.

Justice Thurgood Marshall: And it varies around the country.

Mr. Allan M .palmer: Yes, I remember I once clerked, when I was a student, in the Second Circuit, a long time ago, many years ago and they always allocuted.

I remember the prosecutors allocuted their rights since time and memorial, I believe.

Justice William J. Brennan: Mr. Palmer, do you think it would be permissible for a district judge to have a policy that when he takes a plea, that he tells the defendant that he, he -- in his own sentencing practice, if the defendant cooperates, he'll probably get one year.

If he does not cooperate, he'll probably get two years, assuming it fits the normal pattern of a certain kind of defense?

Mr. Allan M .palmer: I don't believe so because it's forcing the defendant to give up Fifth Amendment rights which is still in here after the plea, as in this case, for example.

Justice William J. Brennan: But -- but you did acknowledge, if I understood your response to the Chief Justice, that the judge could have such a policy that if the man cooperates, he'll only sentence him a year instead of an otherwise appropriate sentence of two.

Mr. Allan M .palmer: I think he could so sentence the man if he cooperates, but I don't think the judge can get involved in that decision insofar as the defendant is concerned.

I think when the judge gets involved with it, he's coercing the man to give up his Fifth Amendment rights.

That's where the danger is.

Justice William J. Brennan: Well, supposing he had 10 -- 10 very similar cases.

In the first one, the man cooperates and he says, “I'm only giving you one year because you cooperated.”

The next man, he gives him two years.

He didn't cooperate and he says nothing about it, but he established the pattern by what he actually did.

So, the lawyer now knows by -- based on a series of cases that if his client cooperates, he'll get one year and if he doesn't cooperate, he'll probably get two.

Can the l -- I take it, the lawyer could tell the defendant.

Mr. Allan M .palmer: You know, that's a fact of life in the trial courts all the time.

That's true.

Justice William J. Brennan: But it's a fact of life that the judge cannot tell the defendant.

Mr. Allan M .palmer: I think, at that point, he's coercing the defendant to give up his Fifth Amendment rights which he can't do, and I'm going to get into that a little further in the even broader detail, if the Court will.

Now, the Government erroneously suggests the reason why the Government urged this lack of cooperation in its brief.

It indicates at page 814 and 841 of its brief that, well, the Government was responding to petitioner counsel's argument to the effect that the courts should consider his cooperation or limited statement as to involvement as a mitigating factor, and the Government responded “tit-for-tat,” so to speak.

At brief 8 -- at 8 of its brief, the Government says, “In addition, the prosecutor response to the defense counsel's remarks about the extent of petitioner's cooperation with the Government."

We never alluded to his cooperation as such as a mitigating factor.

What we did do, when you read the sentencing transcript, is to allude to the facts of the statement he gave to show that the case was not as large or serious as urged by the Government because, insofar as the facts were concerned in the statement the defendant gave, he said that, on two or three occasions, he delivered drugs worth $50 or $100 for Mr. Charles Thornton's own personal use.

And, indeed, when the search warrants were executed to six of them, found in Thornton's house was bottle top cookers and syringes in dish of personal use.

Furthermore, we urge that Thornton, a previously convicted narcotic felon who pleaded to gambling and narcotic law violations was sentenced to probation by another federal judge in the very same case in which this petitioner was charged.

So --

Chief Justice Warren E. Burger: If it wasn't a very big deal as you were suggesting --

Mr. Allan M .palmer: No, sir.

Chief Justice Warren E. Burger: Doesn't that undercut your argument or his argument, I should say, that he was liable to be murdered and liquidated if he cooperated with the prosecution?

Mr. Allan M .palmer: Well, whose argument does Your Honor refer to?

I don't --

Chief Justice Warren E. Burger: Well, you've just been -- I thought you were telling us that this wasn't a very big narcotics operation.

Mr. Allan M .palmer: It was not a very big -- insofar as this petitioner was concerned, as we saw it.

Notwithstanding that fact, if someone gave him the drugs, who was a person in the more a distribution type of role, to that person, whether you call it a small amount distributed or not, the individuals who supplied from above are very concerned about their liability and the danger comes from them, I would think, as the case has indicate.

In any event --

Chief Justice Warren E. Burger: Do you think the judge, in those circumstances, is not entitled to take into account that with the damage that the use of drugs does to a great many people that peddlers -- drug peddlers should be put away for quite a while?

Mr. Allan M .palmer: Of course the judge could take that into account.

Chief Justice Warren E. Burger: I thought that's what he did here.

Mr. Allan M .palmer: Well -- he --

Chief Justice Warren E. Burger: He sure complained --

Mr. Allan M .palmer: -- took into account several factors, Your Honor.

Now, if this judge never talked about cooperation, never alluded to it, possibly, the sentence he gave might have been a viable one.

The fact is, theory aside, he specifically alluded to lack of cooperation as a sentencing factor, and I'm going to now refer to that more specifically.

Now, the real reason the Government alluded to noncooperation was this.

We urged in writing and orally that when you have pleas or verdicts concerning two phone counts, two so-called phone counts, now there was about 16 judges in the District Court here active and seen who hear criminal cases.

No judge in the District of Columbia has ever given consecutive sentences for two or more telephone counts.

Justice William H. Rehnquist: Mr. Palmer, a moment ago you said that if the judge had not alluded to the absence of cooperation, the sentence he gave might have been a viable one, was the one word you used.

And then, you mentioned sentencing factors.

Is there some case from this Court that holds absent if, constitutional or statutory violation, a sentence is to be reviewed by an appellate court on the basis of the sentencing factors the judge took into consideration?

Mr. Allan M .palmer: Well, the Grayson case itself so hold, as we read it.

In Grayson, the Court said -- one of the reasons may be impermissible that I'm going to sit in this man for -- sentence this man for, this page -- 438 U.S. at page 44, and the Court said, “Mr. Grayson, I'm going to sentence you to a prison term because, one, to deter you and, two, it is my view that your defense was a fabrication and it doesn't have the slightest merit whatsoever.

And, I feel it's proper for me to mention the second factor because, if it's an improper factor, I want the Court of Appeals to know it so they can reverse me.”

Of course, the Court of Appeals did reverse him, then, it came to this Court which upheld that sentencing factor.

Justice William H. Rehnquist: Well, but that was the District Court's view --

Mr. Allan M .palmer: Right.

Justice William H. Rehnquist: -- that sentencing factors could be taken into consideration even though the sentence imposed was limit -- in the limits proscribed by law.

Mr. Allan M .palmer: I think that the factor was an improper or impermissible one.

It is the basis upon which to reverse the sentence.

Justice William H. Rehnquist: How do you know whether it's improper or impermissible?

Mr. Allan M .palmer: Well, we look at it and, if it strikes us in the realm of human experience as an improper factor that he shouldn't consider, I think the reversal is required.

For example, more -- if he had said, “Well, Mr. so and so, you are a particular ethnic group” or “you are a particular race”--

Justice William H. Rehnquist: Well, that would be a constitutional claim, would it not?

Mr. Allan M .palmer: It would indeed, and we think, in this sense, the use of the improper factor has always been understood or has always been a basis upon which to, at least, reverse the sentence even though it has been within the proper guideline.

Justice William H. Rehnquist: But do you define improper factor as being a violation of some constitutional claim?

Mr. Allan M .palmer: In this case, there was such a violation of a constitutional claim, the Fifth Amendment.

Justice William H. Rehnquist: And you -- and so, that's what you mean when you say improper factor.

Mr. Allan M .palmer: Yes, sir.

That was the critical or most important factor in this case, the violation of the Fifth Amendment and the right to remain silent which was penalized on the facts of this case.

That is true.

That is the outstanding reason.

Now, as we indicated, no federal judge before in this jurisdiction had ever given consecutive sentences --

Justice Thurgood Marshall: But can a -- then, can a federal district judge in this District give consecutive sentences despite what you said?

Mr. Allan M .palmer: I'm not sure.

We -- it's never been decided.

Justice Thurgood Marshall: Well, what's to stop him from doing it?

Mr. Allan M .palmer: Well, there's the rule of lenity.

We urge that you have a wiretap case.

The lead count here was a wiretap and several overt acts.

Justice Thurgood Marshall: My point, you say that a judge can't give two consecutive sentences.

Mr. Allan M .palmer: On these facts, I'm not sure.

Justice Thurgood Marshall: Well, I mean, suppose a man is caught with $18 billion worth of dope, hand it out to children on the corner.

Could he be given two consecutive sentences?

Mr. Allan M .palmer: I guess, in those aggravating circumstances, it's -- I'm just looking to the facts of this case and where there was a conspiracy and four overt acts.

Two of the overt acts were also substantive counts, use of the telephone.

Our point was, under the rule of lenity, we made an argument that the main count is the lead conspiracy count.

If, pursuant to that, you have 200 phone calls, does that mean a man can get 800 years consecutively for use of the phone and only 15 years for use of conspiracy?

Justice Thurgood Marshall: If he made them -- if he made them with children?

Mr. Allan M .palmer: I don't know about children.

There were no children involved in this case, if it please the Court.

Justice Thurgood Marshall: I know, but it's --

Mr. Allan M .palmer: Hard facts --

Justice Thurgood Marshall: You know 200 involved in this either.

Mr. Allan M .palmer: Well, hard facts make different circumstances, I would submit.

Chief Justice Warren E. Burger: Mr. Palmer, where do we get the -- where do we find this data that you mentioned on judges never giving consecutive sentences?

Mr. Allan M .palmer: Well, we urged it in our statement of facts prior to sentencing.The district attorney, in sentencing --

Chief Justice Warren E. Burger: I'm thinking about documenting it.

Where is that report?

Mr. Allan M .palmer: Well, it was based on (a) my experience of 17 years in the District Court, having conferred with drug agents, etcetera, and the Government conceded it at the sentencing.

It was never controverted in the Court of Appeals and, indeed, not controverted here.

In fact, the prosecutor said that, in asking for consecutive sentences at appendix 34 and 45, we realize we're going against custom and practice in this courthouse and I'd like to explain why we're doing so.

It's not to appear as to sigh and agree.

And then, he launched for three pages the argument that this lack of cooperation should move the District Court to do what no other District Court had ever done before, that is, impose consecutive sentences for two telephone counts.

Now, after he allocuted, the Court turned to us and said, “Do you want to make a response, Mr. Palmer?”

and, remember, at this point, the issue had not been joined.

Of course, the Government had never, until that moment, urged this is a sentencing factor.

And, for a brief paragraph, we de -- when you're dealing with an allocution, you're trying to persuade somebody.

It's not a legal argument.

And, we said to the Court, “Well, apparently in this situation, the codefendant Thornton got probation."

This defendant is before the Court, he isn't -- he hasn't cooperated.

The defendant -- the Government is obviously mad at him.

Let's give him the time we can, as much as we can, while we've got him before us and then, I went on to another matter.

And, in these circumstances, we don't think we can be faulted for not raising the issue having -- we never thought about the issue, the implications of the right to remain silent, the Miranda warnings, etcetera when Courts of Appeal are -- appeals are divided on the issue.

In fact, that's why we're here today.

So, we can't be faulted for not raising at that time and, indeed, the issue only came into the case when the judge, in imposing sentence, said, “That is one of the factors I'm relying upon.”

After that, the case went on appeal and we researched the law, presented it to the Court of Appeals, and the case ultimately wound its way here.

Now, since the record below was silent, in effect, as to the reasons for the lack of cooperation, other than this Fifth Amendment issue which is clearly there, it was impermissible for the Court to penalize lack of cooperation when lack of cooperation could just as easily have been, as Judge Lombard said in his opinions, from fear of harm, danger to himself, or his family, or other like reasons.

In other words, there's no reason to say that failure to cooperate on these facts was because the man was not amenable to rehabilitation.

Now, there's a further consideration here, and that is the fact that, in this case, the prosecutor urged consecutive penalties because petitioner failed to cooperate over the entire course of the case.

At appendix 36, he said, “Throughout the long process that has occurred some-June of 1975, when he first came into my office, up to today, he still has refused to cooperate.”

Now, at the stage where the defendant was in the prosecutor's office and he refused to cooperate, the defendant was then penalized in part because, at that point, unrepresented by counsel, he didn't confess everything the Government wanted to know, indicate where he got the drugs from and things of that nature, and we think that is clearly impermissible.

Secondly, between the -- the indictment and the plea, as we understand it, the defendant has pleaded not guilty.

He has no duty to confess, cooperate with the Government.

He's Fifth Amendment rights have not been waived in any shape or form and, yet, the defendant was penalized in this case, during this phase of this case also, because he never came and said, “Prosecutor, let -- I want to lay my soul bare to you.”

I think that's impermissible.

And, in line with the question that Justice Stevens asked, for example, under Grayson, we think a judge could probably say to a defendant “Mr. Defendant, you're going to testify.”

The Supreme Court has said, “If you do and do so falsely, and you're convicted, I'm going to take that into account when I impose sentence.”

But, we don't think that, prior to the disposition of the case, the defendant can be brought into the courtroom and the judge say to him, “Now, Mr. Defendant, you know, I've heard you haven't cooperated in here.

The Government wants you to testify against your codefendant.

You haven't done that.

You haven't indicated who you got your drugs from, and I think that's something that should be done and, if you don't do it, when -- if you're convicted and the sentencing comes about, I'm going to penalize you for that.”

I think that is totally impermissible, coercive, collides with fundamental rights of a defendant in a criminal case.

And, for these reasons, we think the sentencing in this case on these facts was improper.

Now, I have five minutes to go and I'd like to reserve those for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well.

I think we want to ask you to take two minutes today and the rest tomorrow.

We'll resume at 10 o'clock in the morning.

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Argument of Stephen M. Shapiro

Chief Justice Warren E. Burger: We'll resume arguments in Roberts against the United States.

Mr. Shapiro, you may proceed whenever you‘re ready.

Mr. Stephen M. Shapiro: Mr. Chief Justice, and may it please the Court.

After listening to extensive allocutions from defense counsel and the prosecutor, Judge Pratt imposed sentence on petitioner, explaining that he had considered the fact that petitioner was a dealer in heroin, that petitioner was on parole from a prior bank robbery conviction and that petitioner had refused to cooperate with the Government in identifying the persons who supplied them of heroin.

We contend that Judge Pratt's consideration of petitioner's refusal to cooperate, along with his prior record and the severity of his offense, was entirely proper and was consistent with Congress' directive that no limitation shall be placed on the information concerning the character and the conduct of a person convicted of an offense, which maybe considered in imposing sentence.

Petitioner's contrary view is based on the argument that his refusal to cooperate was an exercise of Fifth Amendment rights and that Judge Pratt punished him for exercising those rights.

The short answer to that contention is that petitioner never claimed or asserted any Fifth Amendment right which he may have had.

Throughout the three-year period that preceded his sentence, petitioner never suggested that his refusal to cooperate rested on Fifth Amendment grounds.

In addition, his conduct gave no indication that he was relying on the Fifth Amendment.

When he was first interviewed in 1975, he immediately confessed.

He later pleaded guilty, first, of the charge of conspiracy and later, to two of the substantive counts in the indictment.

Most importantly, at the time of the sentencing hearing, defense counsel fully disclosed petitioner's refusal to cooperate and did not even hint that the extent of this cooperation should not be considered or that this subject was immune from consideration under the Fifth Amendment.

Far from invoking the Fifth Amendment, counsel stated to the Court that petitioner refused to cooperate because he wasn't that involved in the conspiracy.

Counsel argued yesterday that everyone must have known that petitioner was relying on the Fifth Amendment.

With deference, the District Court would have needed powers of clairvoyance to recognize that there was a Fifth Amendment claim in this case.

The Fifth Amendment was not raised as a justification for petitioner's refusal to cooperate until he filed his brief in the Court of Appeals.

This Court has repeatedly held that the Fifth Amendment is not self-executing and may not be relied on unless it's invoked in timely fashion.

Petitioner's argument, that the Fifth Amendment protects his silence without any invocation of the Fifth Amendment in the District Court.

Chief Justice Warren E. Burger: Would your position here be different if he had in his allocution, asserted a Fifth Amendment right and not to reveal the sources of his drug supply?

Mr. Stephen M. Shapiro: I believe that that would present a far different question and it would raise a serious constitutional difficulty if petitioner had invoked and relied on the Fifth Amendment.

That issue can be argued two different ways, but we submit that the Court need not to grapple with that difficulty in this case, where the Fifth Amendment was never exercised.

Chief Justice Warren E. Burger: Well, how would -- just -- just -- how would you go about asserting of the Fifth Amendment? Would it be an assertion that would be retroactive to the time when he failed to cooperate?

Mr. Stephen M. Shapiro: He would simply, as the Second Circuit pointed out that the Vermeulen case, he would simply advise the sentencing court that he was relying on the Fifth Amendment and not cooperating and that this was an impermissible factor in sentencing.

And had he done so, I had every confidence that the District Court would have taken that factor out of its consideration.

It's a simple matter as Judge Moore pointed out in the Vermeulen case to apprise the Court of one's reliance on the Constitution at the sentencing hearing.

A great deal of debate was focused on the question of cooperation and it would have been very simple for counsel to advise the Court that this was an improper consideration and that the Fifth -- Fifth Amendment privileged his refusal to cooperate.

Justice William H. Rehnquist: But you're not entitled to invoke the Fifth Amendment, unless there's a real and substantial probability that the answer to the question will in fact incriminate you.

Mr. Stephen M. Shapiro: That's quite correct.

Justice William H. Rehnquist: So that, I mean just a talismanic invocation of the Fifth Amendment would necessarily solve the problem even though you say that in -- apparently, it's conceded, that didn't take place here.

Mr. Stephen M. Shapiro: That didn't take place here.

And Your Honor is quite correct in pointing out that if the District Court concluded that there was no realistic exposure to incrimination from this answer and that petitioner was simply covering up for other person which was our inference all along, that then it would be an invalid invocation of the Fifth Amendment.

That's what this Court held in the Rogers case and another case that we cited in our brief.

Chief Justice Warren E. Burger: I took -- took it from Mr. Palmer's argument yesterday that his chief reliance on this claim was because of -- of a fear of some possible consequences of disclosing who his principal sources of heroin were.

Mr. Stephen M. Shapiro: Had he brought that to the attention of the Court, it would've greatly altered the complexion of this case.

But as this Court has held, it's not sufficient merely to refuse to answer a question or to fail to provide information.

That's not an invocation of the Fifth Amendment.

And had he entertained the subjective beliefs, he should've advised the Court.

The Court would have no way of knowing that he was fearful of self-incrimination under these circumstances.

There was no indication of this at all from counsel.

And he had three years to -- to develop this theory, if we wish -- wished to advance it.

We notified him from the outset that the extent of this cooperation would affect the charges against him.

The amount of time he spent in prison and would be made known to the Court.

And yet he never invoked the Fifth Amendment until this theory occurred to him in the Court of Appeals, when he put this argument into his appellate brief.

Chief Justice Warren E. Burger: Suppose a witness is called in any ordinary criminal case and he declines to answer on the ground that if he gives information, he -- he might be placing himself in jeopardy of retaliation by the defendants or friends of the defendants.

Is -- is that -- is that a sort of de facto assertion of the Fifth Amendment?

Mr. Stephen M. Shapiro: This Court held that it is not in the Piemonte case.

In Piemonte, the Court concluded that fear of retaliation and of -- and one's physical safety.

It's not the same as a fear of self-incrimination and that it's the duty of the Government to protect persons against retaliation.

And we do indeed have a system for doing that, the witness protection program.

If this had been explained to the Government or to the Court, steps could have been taken to protect petitioner if that was his concern.

But no one was ever advised of this factor as being a concern on his part.

Other coconspirators in this conspiracy did assist the Government and did testify against persons who were higher up in the chain of the conspiracy.

And there was no retaliation.

If petitioner had been fearful of this, he should've apprised the Court and the prosecutor, but this was never raised.

As -- as this Court pointed out --

Justice John Paul Stevens: Mr. Shapiro, suppose they were a codefendant who was not asked to cooperate?

Is he to be treated more harshly than one who is asked to cooperate and does it only partially or less harshly?

Mr. Stephen M. Shapiro: I would think that -- that a person who was not been asked to cooperate could not be faulted for failing to come forth with information and that would not be an adverse circumstance to take account in sentencing where somebody who provides some information, but still mulls the Government as to the rest of it, would be turning his back on the request and that would reflect on this character and his attitude towards society.

In the first instance that Your Honors post, where there has not been a request, I think it's difficult to fault that individual for not coming forward with the information.

This Court pointed out in the Vajtauer case --

Justice Thurgood Marshall: Let's clear your point, before you get there, did I understand that if he had said before the sentence, “That the reason I was quiet was because I was asserting my Fifth Amendment right, that the judge could not have used it entirely.”

Is that's your position?

Mr. Stephen M. Shapiro: Our position is that that would present a very serious difficulty.

I'm reluctant to say --

Justice Thurgood Marshall: (Voice Overlap) what you said that under those circumstances, he would not have done it.

Mr. Stephen M. Shapiro: I -- he may well have -- have not considered that, but I don't want to --

Justice Thurgood Marshall: But it's your position that he could do it?

Mr. Stephen M. Shapiro: It's my position that -- that that's a difficult question under the Corbitt case that was recently handed down.

Justice Thurgood Marshall: Could the judge do it or not, if he raised his Fifth Amendment point and suppose that --

Mr. Stephen M. Shapiro: Well, I submit there's -- there's a strong argument that he could've done it, although that question isn't -- hasn't been decided by this Court of course and there are alternative --

Justice Thurgood Marshall: It's your position at the Court can take into consideration, these arguments.

Mr. Stephen M. Shapiro: After he's pleaded the Fifth Amendment, if the Court views that as a refusal to cooperate, which is essentially the same as standing on one's right to go to trial --

Justice Thurgood Marshall: What do you mean by cooperate?

That main charge with crime is bound without more to come in and say, “One, I committed the crime.

And two, everybody did help me, and three, everybody who might have helped me.”

How far does he have to cooperate?

Mr. Stephen M. Shapiro: Well, his -- this is a reflection of you on his attitude towards society.

If he's unwilling to identify the persons who continue to inject heroin into the community and continue to cause this injury to the community even though he has that information, we submit that that is an adverse reflection on his character.

Justice Thurgood Marshall: Well then this careful embezzlement to --

Mr. Stephen M. Shapiro: It would.

It would.

Justice Thurgood Marshall: Well, why do you have to say that injecting heroin in?

Mr. Stephen M. Shapiro: Because it -- it reflects on the man's character.

His --

Justice Thurgood Marshall: But you don't really need a separate law for --

Mr. Stephen M. Shapiro: You don't need a separate law for that.

Justice Thurgood Marshall: (Voice Overlap) --

Mr. Stephen M. Shapiro: I agree with you, Your Honor.

As the Court --

Justice Byron R. White: Do you believe me -- if -- if there was an assertion of the Fifth, the judgement still have to find that there is some realistic --

Mr. Stephen M. Shapiro: Yes, he would.

Justice Byron R. White: -- danger of incrimination.

Mr. Stephen M. Shapiro: Quite correct.

Justice Byron R. White: That compels self-incrimination.

Mr. Stephen M. Shapiro: Quite correct.

Justice Byron R. White: And in order to sustain it, you would have to say that, when you ask him to cooperate and you tell him that, “If you don't, this is going to be taken into consideration.”

And he says, "Well, I will speak" you have to assume that is compulsion.

Is that right?

Mr. Stephen M. Shapiro: Well, if -- if he's --

Justice Byron R. White: If you assume that it's compulsion, I don't know why you wouldn't -- you say then that -- that taking this into consideration is a penalty for a -- for his remaining silent?

Mr. Stephen M. Shapiro: Yes, but this Court is pulled in an analogous situation in the Corbitt case that taking into account someone's unwillingness to waive their Fifth Amendment rights and go to trial is something can be taken into account in sentencing.

Justice Byron R. White: Well then, I -- I just wonder if -- if the judge would ever -- that in order to sustain his Fifth Amendment claim, he would have to say that there was compulsion involved.

Mr. Stephen M. Shapiro: That the --

Justice Byron R. White: And that the -- and that the threat or the likelihood of taking that into account and not of the legal compulsion.

Mr. Stephen M. Shapiro: That's correct.

Justice Byron R. White: Well -- and how do you square that with Corbitt?

Mr. Stephen M. Shapiro: Well, my -- my understanding is -- is that under Corbitt, it's permissible to impose differential sentences when one does insist on a -- a right to go to trial and to grant lenience to those who do not insist on that right.

And in your -- Your Honor's hypothetical, if the individual refuses to cooperate relying on the Fifth Amendment, I would think that would be analogous to the person who says "I'm not going to plead guilty.

I'm going to stand trial."

Where the Court has -- has agreed that differential sentencing is -- is proper, but I -- I would reemphasize that that is not the issue here, because there's been no invocation of the Fifth Amendment.

This is an interesting and difficult issue, but it simply is not posed here.

Justice Byron R. White: You tell me where the compulsion would be?

Mr. Stephen M. Shapiro: It would -- would it be --

Justice Byron R. White: If he invoked it and said -- and said, "I was silent because I didn't want to incriminate myself.

And where was the -- what's the compulsion?

He never said anything.

Mr. Stephen M. Shapiro: That's correct.

There is no complete testimony.

Justice Byron R. White: But it's the (Voice Overlap) --

Mr. Stephen M. Shapiro: It would --

Justice Byron R. White: That he ever -- you never -- any testimony.

Mr. Stephen M. Shapiro: But it would arguably be a penalty imposed on him --

Justice Byron R. White: Because of -- because of (Voice Overlap) --

Mr. Stephen M. Shapiro: -- for -- for not cooperating.

Justice Byron R. White: -- compulsion.

Because of -- thus from compulsion or --

Mr. Stephen M. Shapiro: It would just be an additional sentence attached to is lack of cooperation, but that -- that arguably is what was approved in Court.

Justice Byron R. White: Well then, I don't see what -- why it makes any difference whether he -- whether he tells the judge if he relied on the Fifth Amendment or not.

He should just say, "I was silent and you can't penalize me for it.”

Mr. Stephen M. Shapiro: Well, I -- I would agree that -- that I -- I think we could -- we might be able to win this case even if the Fifth Amendment was pleaded under the Corbitt precedent.

But here it's on our fortiori case, because the Fifth Amendment was never raised.

And this Court has held repeatedly that before the Fifth Amendment can be relied on in the Court of Appeals, it has to be asserted in the -- in the lower court.

Chief Justice Warren E. Burger: Is there any constitutional right to maintain silence about criminal activity that -- that is known to the person questioned.

Mr. Stephen M. Shapiro: Certainly, there --

Chief Justice Warren E. Burger: There is unless, it will -- being compelled incrimination of himself.

Mr. Stephen M. Shapiro: There is no such right and in fact there is a federal criminal statute, 18 U.S.C. 4 that provides that it's compounding of a felony or misprision of a felony to fail to report and to conceal the occurrence of crimes by other persons.

And this conduct of petitioners threads very close to that, without an invocation of the Fifth Amendment and simply withholding the information that was in his possession.

That's --

Justice Thurgood Marshall: Anyone who charged him?

Mr. Stephen M. Shapiro: He was not charged with that, but we say it -- it reflects on his character and it reflects on his attitude towards society.

Just the way the perjury in the Grayson case reflected on the --

Justice Thurgood Marshall: Let me get to another one.

If a witness -- if a defendant in a criminal trial and the judge called him to the witness stand and he says “I'm not going to talk,” does he have to say, “I'm not going to talk,” on the basis of my constitutional right not to testify?

Does he have to say that in detail?

Mr. Stephen M. Shapiro: He -- he doesn't have --

Justice Thurgood Marshall: Doesn't he?

Mr. Stephen M. Shapiro: He doesn't' have to use his lawyer's language.

Justice Thurgood Marshall: You can call him, can you?

Mr. Stephen M. Shapiro: He doesn't have to use lawyer's language.

Justice Thurgood Marshall: So why does he have on this Fifth Amendment, after saying, “In every stage of the proceeding, there are no exerting efforts on them.

Mr. Stephen M. Shapiro: As this Court has held repeatedly in the Rogers case and the Vajtauer case --

Justice Thurgood Marshall: And that a minute ago, I asked you about this case.

Mr. Stephen M. Shapiro: It's --

Justice Thurgood Marshall: Why -- when was he obliged to say “I am relying on the Fifth Amendment”?

Mr. Stephen M. Shapiro: At the sentencing hearing, he was obliged to say, "I rely on the Fifth Amendment,” or “I'm relying on my right to refuse to incriminate myself."

He has to fairly apprise the tribunal of his reliance on that constitutional privilege.

He doesn't have to use a particular kind of lawyer's language, but it isn't enough just to say, "I'm not talking."

The Court has held that repeatedly.

Justice Thurgood Marshall: Well, isn't that what the Fifth Amendment gives him the right to do?

Mr. Stephen M. Shapiro: It's not self-executing.

Justice Thurgood Marshall: Not talk.

Mr. Stephen M. Shapiro: It's not self-executing.

Justice Thurgood Marshall: Well, what does it say?

Mr. Stephen M. Shapiro: It -- it says that no person maybe compelled to be a witness against himself in a criminal trial.

Justice Thurgood Marshall: Well, but that means --

Mr. Stephen M. Shapiro: But --

Justice Thurgood Marshall: -- to talk, doesn't it?

Mr. Stephen M. Shapiro: This -- but this Court has held repeatedly that there must be --

Justice Thurgood Marshall: Suppose that the --

Mr. Stephen M. Shapiro: -- invocation of the Fifth Amendment.

Justice Thurgood Marshall: And the sense in here and he stood -- didn't say anything.

It still would be better off, wouldn't it?

Mr. Stephen M. Shapiro: He -- if he didn't invoke his noncooperation --

Justice Thurgood Marshall: Hence, my -- you -- you'd given --

Mr. Stephen M. Shapiro: -- would be --

Justice Thurgood Marshall: You're putting him on the duty to come forth.

Mr. Stephen M. Shapiro: And invoke the constitutional privilege.

And this Court has held that that's the requirement of the law consistently over the years.

Justice Thurgood Marshall: And you want us to say here that from now on, every defendant who is relying on the Fifth Amendment must make it clear to the Court that he is relying on the Fifth Amendment.

Mr. Stephen M. Shapiro: Precisely.

He -- he would be -- he would be leading the Court into error, if the rule were anything else, because he brought the Court's attention to his cooperation and gave a totally different explanation for his refusal.

He said he was not that involved in the conspiracy.

He asked the Court to consider it.

And if -- if he didn't then and there asserted, this shouldn't be a permissible factor, he was simply leading the Court into -- into error.

And the reason for the first time in the Court of Appeals, to us is just a -- a ploy.

It -- it's leading the Court into error and then --

Justice John Paul Stevens: Mr. Shapiro, could I -- could I ask you a question?

I wonder if it necessarily (Voice Overlap) you must rest entirely on the Fifth Amendment.

I noticed neither the questions presented are framed in constitutional terms.

And I suppose, the Court has some supervisory power over the factors that could be considered.

Supposing in the case -- this was a crime of using a telephone to facilitate the distribution of Narcotics --

Mr. Stephen M. Shapiro: That's correct.

Justice John Paul Stevens: -- and supposing the Government intercepted 40 or 50 different telephone conversations and they concluded that this man was just a runner of some kind, who would normally be entitled to a sentence of -- of six months or a year, or some - some first offender and so forth.

Could the judge say to him at sentencing, "I know that you know who the hire ups are on this and if you don't tell, the prosecutor, who they are, I'm going to give you 30 years because there are 30 different instances and I can make consecutive sentences out of it."

Would there be any -- any legal objection of the judge doing that?

Mr. Stephen M. Shapiro: There -- the outer limit is prescribed by the Eighth Amendment, and I submit that -- that in Your Honor's hypothetical --

Justice John Paul Stevens: Assume it's not a violation of the Eight Amendment, I --

Mr. Stephen M. Shapiro: If it's not a violation of the Eight Amendment --

Justice John Paul Stevens: After sentencing procedure for the judge to say -- to get in -- get involved in the investigatory process in that way.

Mr. Stephen M. Shapiro: Yes.

We submit that it is.

If it's within the statutory limits -- Congress has -- has prescribed expressly that all information bearing on the conduct and the character of the individual can be considered.

And if there's no statutory objection under the relevant penal statute, no Eighth Amendment barrier to piling on the punishments, then this is a proper procedure.

But I -- I would point that there is no element in this case of -- of threatening the defendant and negotiating with the defendant by the Court.

The Seventh Circuit has approved a -- a course of behavior similar to what Your Honor described.

That was a rule in the Seventh Circuit and we've cited the Seventh Circuit's decisions in our brief.

Justice William H. Rehnquist: Then this -- the -- it isn't up to the Government in the sense that the Government is the prosecutor to prescribe the sentence for a convicted defendant.

They said, it's up to the judge.

Mr. Stephen M. Shapiro: It's up to Congress and the judge.

That's quite correct.

And if petitioner had within his -- within his own mind, any mitigating information that he wanted to bring to the attention of the judge, he was permitted to do that under the rules.

And he made an extensive allocution.

And if any of these concerns that he's raising for the first time on appeal were concerns that troubled him.

Any fear about self-incrimination or fear about retaliation, he should have presented them then and there.

That's the only way the District Court could have known these concerns.

Chief Justice Warren E. Burger: Truly in your argument, Mr. Shapiro, you referred to the statute which defined broad powers in the sentencing judge to take into account, everything.

What's the date of that statute, when was that enacted?

Mr. Stephen M. Shapiro: 1970.

That is part of the comprehensive --

Chief Justice Warren E. Burger: Comprehensive -- the omnibus -- now, did that add anything to what this Court said in Williams against New York?

Mr. Stephen M. Shapiro: It was merely a codification of the rule in Williams.

The legislative history shows that -- that Congress meant to adopt the standard that this Court had prescribed in several of its prior cases including Williams.

Laying aside, petitioner's afterthought arguments, it's possible to see this case as it was presented to Judge Pratt.

Petitioner stood before the Court as a convicted heroin dealer.

He had distributed heroin and then previously been convicted for bank robbery.

He'd also been convicted for unauthorized use of a motor vehicle as well as larceny.

He was on parole for his prior bank robbery convictions, when he was arrested once again for dealing with heroin.

In addition, he stood before the Court as a man who refused to cooperate.

Although petitioner in amici argued that this had no logical relationship to the length of sentence to be imposed, we submit that it was a highly relevant datum.

Along with the other information available to Judge Pratt, it showed what kind of a man petitioner was.

It was part of the mosaic of information that revealed his character and his attitude towards society.

It showed who he wanted to protect and who was unwilling to protect.

It showed that he still adhere to the Code of Conduct of the criminal conspiracy.

Not the Code of Conduct that society recognizes.

The prosecutor's repeated request to cooperate presented a chance for petitioner to turnover a new leaf.

It's beyond dispute that heroine causes addiction of members of the community, which not only ruins many lives and causes large numbers of crimes --

Chief Justice Warren E. Burger: Yes.

Mr. Stephen M. Shapiro: -- but it actually results in deaths of persons who overdose on heroin.

Last year in the District of Columbia, 41 persons died from heroin overdoses.

In short, dealing in heroin is a highly antisocial act.

The prosecutor gave petitioner a chance to mitigate the harm which he had done, by stopping the other persons who continued to inject heroin into the community.

It was an opportunity to break off his prior pattern of behavior, an opportunity that he rejected.

Petitioner's refusal to help make immense for the harm which he had done, was one of many invocations that he was a full prospect for rehabilitation.

As Professor Heart has correctly pointed out, rehabilitation requires recognition of the community's interests and the obligations of community life.

Refusal to cooperate also suggested that the substantial period of imprisonment was needed to protect the community.

By refusing to cooperate, petitioner shows with his allegiance with his coconspirators was unbroken, an association that could be easily resumed on his release from prison.

Although petitioner at amici argued that noncooperation should not be considered, we submit that this -- the statute that the Chief Justice referred to, is direct evidence to the contrary.

It says that there should be no limits on the information concerning the character and conduct of the person convicted of an offense, which may be considered in imposing sentence.

This Court has approved that principle repeatedly in its own decisions.

Most recently in the Grayson case, this Court emphasized that the sentencing judge should consider the whole range of information, bearing on a convicted defendant's character and his attitude towards society.

Failure to cooperate with the authorities in stopping persons who continue to distribute heroin with in the community, is certainly relevant to the appraisal of the defendant's character and his attitude towards society.

We note that at common law there was a duty to raise the “hue and cry” to alert the police to the occurrence of crimes by other persons, so those crimes could be stopped.

And under the modern Penal Code, it's a compounding, or misprision of felony not to report felonies and to conceal felonies by other persons.

Petitioner's unwillingness to realign his interests with those of society and his determination to conceal the actions of those persons who prey on society, was a factor that the sentencing court could not properly ignore in making a responsible evaluation of his attitude and his character.

Petitioner and amici have advanced the rather surprising argument that the extent of a defendant's cooperation is relevant in granting leniency, but is not relevant in enhancing punishment.

We say that this is surprising because it presupposes two levels of punishment, based on the convicted defendant's willingness to cooperate and do name his accomplices.

This theory would open the door to precisely the result that petitioner opposes.

Within statutory limits, consecutive sentences could be imposed on those persons who do not cooperate and concurrent sentences could be reserved for those who do and show their entitlement to leniency.

This procedure, like the procedure that the petitioner opposes, would play substantial pressure on convicted defendants to name their accomplices to avoid additional prison time.

We contend that there is no logical reason why defendant's refusal to cooperate should not be relevant in imposing sentence, whether the decision is characterized as increasing punishment or withholding lenience.

If the sentence is within statutory limits, if the defendant has had the opportunity to cooperate and if he's had the opportunity to plead any applicable constitutional privilege or present any mitigating information that he may possess to the District Court.

And if he doesn't take any of these actions, his uncooperative conduct is properly judged at face value.

Along with the other information available with the judge, it sheds light on the question whether the defendant is willing to recognize the obligations of community life and whether he continues to pose a threat to the community.

Justice John Paul Stevens: Mr. Shapiro, let me just think through again the Fifth Amendment point.

Are you saying that -- you're not saying, I -- I take it that he must plead the Fifth Amendment when he's being interviewed by the prosecutor before the sentencing hearing?

Mr. Stephen M. Shapiro: Not at all.

We -- we --

Justice John Paul Stevens: You're saying at the time of the sentencing hearing, he has to tell the judge that the reason he previously did not cooperate was because of a Fifth Amendment concern.

Mr. Stephen M. Shapiro: That's correct.

Our -- our point is that -- that when the judge is considering these factors and petitioner's counsel is adverting to them before the Court, he has a duty to at least advise the Court that this is an impermissible factor, because of the Fifth Amendment.

A counsel is there for that very purpose to raise a constitutional or any other legal objections to these considerations.

As the Court reaffirmed in the case of Dorszynski versus United States and I quote, "If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by statute."

This Court has applied that rule in narcotics cases where substantial consecutive sentences were imposed by the Court.

The Gore case and the Blockburger cases are examples.

The sentence imposed by Judge Pratt, fell squarely within the limits prescribed by Congress.

Limits that Congress contemplated would provide maximum flexibility to the judge permitting him to tailor the period of imprisonment, as well as the fine under circumstances of the particular case.

From a common sense point of view, the sentence imposed within these limits was not a severe or disproportionate one.

Judge Pratt required petitioner to serve only two years, before becoming eligible for parole and he declined to impose any fine of any kind.

For convicted heroin dealer, who was already on parole for a prior conviction for bank robbery, this we submit was a very lenient sentence.

In our view, there is nothing here that would tempt an appellate tribunal to disturb the sentence imposed by the District Court.

For these reasons, we respectfully request that the decision of the court below be affirmed.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Palmer?

Argument of Allan M. Palmer

Mr. Allan M. Palmer: Just briefly.

If it please the -- Chief Justice, Members of the Court.

Counsel's waiver argument, there is no relationship to the facts for this reason, from the first day petitioner walked in to the Government's office, he was advised of his Miranda rights and he refused to testify or cooperate.

This Court had said that is -- that refusal or silence is an indication that the man intends to rely on his Fifth Amendment rights.

He did that for three years throughout these proceedings.

Never until the day of sentencing did the Government ever urged lack of cooperation as a sentencing factor.

Therefore, there was no reason to -- for the defense or petitioner to urge it because the Government had never alleged it.

And that is the reason why the (Inaudible) came up for the first time on appeal, after the judge had injected it into the case.

Chief Justice Warren E. Burger: But the statement you referred to was made in the context of the person being interrogated after arrest and while in custody, was it not?

Is it that -- that the --

Mr. Allan M. Palmer: No, Your Honor.

Chief Justice Warren E. Burger: -- interrogation must stop as soon as he indicates that he doesn't want to talk.

Is that the context of that statement?

Mr. Allan M. Palmer: The statement of Miranda?

Chief Justice Warren E. Burger: That you just -- yes.

Mr. Allan M. Palmer: Well, the --

Chief Justice Warren E. Burger: (Voice Overlap) --

Mr. Allan M. Palmer: -- Miranda dealt in that sense, but in any event, regardless of whether he's under arrest or not, if he's warned and relies on that warning to refrain from saying anything, whether you say he's in custody or not, it was all just the same, as we see it.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Thank you, gentlemen.

The case is submitted.

We'll hear arguments next in --