BRIEF FOR PROSECUTION:
Defendant was not given "
Miranda rights" and wants confession suppressed under Miranda.
Prosecutor wants confession allowed under 18 USCS 3501(c).
This hypothetical was based on
Dickerson v. United States, No. 99-5525, Decided June 26, 2000
.
This is a SAMPLE ONLY of what all 1st year law students must write.
Obviously, this never was filed in any court, nor was it really written for any court.
 
 

IN THE

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

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April Term 0000

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No. 00-00000

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United States of America,

  Appellant  

v.

John Dot-Com,

  Defendant-Appellee  

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On Appeal from

The United States District Court

Southern District of New York

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Brief for United States of America

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Alice Marie Beard

Attorney for United States of America


STATEMENT OF JURISDICTION

The United States Court of Appeals for the Second Circuit has jurisdiction over this matter pursuant to 18 U.S.C. 3731 (2000).

QUESTION PRESENTED

May a voluntary confession be admitted into evidence in the Government's case-in-chief under 18 U.S.C. 3501, notwithstanding that the confession was taken in clear violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966)?

CONSTITUTIONAL and STATUTORY PROVISIONS

United States Constitution, Amendment 5:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

United States Constitution, Amendment 14, Section 1:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

18 U.S.C. 3501:Admissibility of confessions:

(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.

(c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.

(d) Nothing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention.

(e) As used in this section, the term ''confession'' means any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing.


STATEMENT OF THE CASE

On Dec. 13, 1999 (R-2), in a hotel-suite-like holding facility (R-8), after questioning that spanned 52 minutes (R-3 & 4), questioning that happened in written exchanges via a computer monitor (R-8), Defendant John Dot-Com confessed to FBI Agent Stevie Case that he had knowingly violated copyright laws. Mr. Dot-Com admitted to having sold over 2,500 electronic books in early 1999 in violation of copyright laws, and he admitted that those sales totaled several thousands of dollars (R-5). Mr. Dot-Com's confession was voluntary. He was not touched during questioning. While he was being questioned, he was by himself in a comfortable hotel-suite. After confessing, the Defendant filed a motion to suppress his confession, saying he had not been informed of his Miranda rights. The government stipulated that Mr. Dot-Com did not formally execute "an advice of rights form" until after he had signed his confession. However, the government has asked that Mr. Dot-Com's statement and confession be admitted pursuant to 18 U.S.C. 3501. Judge Ralph Nader of the U.S. District Court for the Southern District of New York has ruled that the statements and confession would be suppressed under Miranda v. Arizona, 384 U.S. 436 (1966).

SUMMARY OF THE ARGUMENT

Section 3501 of Title 18 of the U.S.C. should control in this case. Mr. Dot-Com's statements and confession were the voluntary statements of an educated man in a safe, hospitable, non-threatening environment. There is nothing in the record to suggest that the court found the defendant's confession to be coerced. The intent of Miranda is to elimate coerced confessions, and it must be noted that there was nothing coercive done to bring about this confession. What has come to be known as the "Miranda rule" is not mandated by the Constitution. In fact, the Miranda decision itself invited Congress and the States to implement alternative methods. Thus, Congress' enactment of 18. U.S.C. 3501 was consistent with Miranda and with Congress' Constitutional power to legislate procedures and rules of evidence. While this society has spent thirty years watching television programs and Hollywood movies which would try to convince us that the Constitution mandates that a suspect under arrest must have those magic words read to him by the arresting officer, such is not the law. According to the law, a confession need only be voluntary. Will this nation be one ruled by laws and judges, or one ruled by Hollywood script writers? The government looks to the courts to enforce the law, and the determining law in this case is 18 U.S.C. 3501 which allows for voluntary, non-coerced confessions.

ARGUMENT

I.
THE MIRANDA RULE IS NOT MANDATED BY THE CONSTITUTION.

There is the world of the law as it exists in the minds of those who learn the law by watching television, and then there is the law. As early as Marbury v. Madison, 5 U.S. 137 (1803), and as recently as City of Boerne v. Flores, Archbishop of San Antonio, 521 U.S. 507 (1997), it has been made clear that Congress cannot overrule a Supreme Court's interpretation of the Constitution. However, Congress has the power to overrule judicially created rules of evidence and procedure that are not required by the Constitution. The prophylactic guidelines given in Miranda were not required by the Constitution and were not an interpretion of the Constitution. In Miranda, the Supreme Court specifically invited Congress and the states to develop their own safeguards for protecting individuals against coerced confessions:

We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it.

Two years after that invitation, Congress passed 18 U.S.C 3501.

The recently decided Smith v. Robbins, 120 S.Ct. 746 (2000), demonstrates how the Supreme Court can issue guidelines to solve a problem, while allowing that a state might find another way to adequately solve the problem. In Smith, California adopted its own methods for determining whether an indigent's direct appeal is frivolous. Those methods were other than the procedures that the Supreme Court set forth in Anders v. California, 386 US 738 (1967), but the Court ruled in Smith that these new procedures adequately safeguard a defendant's Fourteenth Amendment right to appellate counsel. What we in this society have come to call "Miranda rights" were in fact only prophylactic suggestions on how to solve the problem of making certain that a confession is not coerced. The Supreme Court itself made clear that States, or Congress, would be free to experiment with other methods of safeguarding an individual's right against coerced confessions.

In a concuring opinion in Davis v. U.S., 512 U.S. 452 (1994), Justice Scalia quoted United States v. Alvarez-Sanchez, 511 U.S. 350 (1994), to make clear that 3501 is alive and well:

Section 3501 of Title 18 of the United States Code is 'the statute governing the admissibility of confessions in federal prosecutions.' That provision declares that 'a confession . . . shall be admissible in evidence if it is voluntarily given,' and that the issue of voluntariness shall be determined on the basis of 'all the circumstances surrounding the giving of the confession, including whether or not [the] defendant was advised or knew that he was not required to make any statement; . . . whether or not [the] defendant had been advised prior to questioning of his right to the assistance of counsel; and . . . whether or not [the] defendant was without the assistance of counsel when questioned . . . .' [ 3501(a), (b)] ... For most of this century, voluntariness vel non was the touchstone of admissibility of confessions. Section 3501 of Title 18 seems to provide for that standard in federal criminal prosecutions today. ... I will no longer be open to the argument that this Court should continue to ignore the commands of 3501 simply because the Executive declines to insist that we observe them. ... Section 3501 of Title 18 is a provision of law directed to the courts, reflecting the people's assessment of the proper balance to be struck between concern for persons interrogated in custody and the needs of effective law enforcement. ... The United States' repeated refusal to invoke 3501 ... may have produced ... the acquittal and the nonprosecution of many dangerous felons, enabling them to continue their depredations upon our citizens. There is no excuse for this.

Rights guaranteed by the Constitution do not have exceptions. Miranda has exceptions; it is not a right guaranteed by the Constitition. It is only one way to get to that guarantee: a freedom from coerced self-incrimination. Among the exceptions to Miranda, exceptions which themselves show that Miranda itself is not a guarantee by the Constitituion, are two cases that began here in the Second Circuit: New York v. Quarles, 467 U.S. 649, 654 (1984), in which the Court ruled that a voluntary confession obtained because of a police question was admissible even though there had been no Miranda warnings given, and Harris v. New York, 401 U.S. 222, 224 (1971), in which the Court held that an unMirandized confession could be used to impeach the testimony of a defendant who took the stand. In giving these rulings, the Court reasoned that the Miranda rule is not constitutionally required. Thus, unMirandized confessions may be admitted if they are voluntary. Constitutional rights do not have exceptions; Miranda clearly has exceptions. The Miranda of Hollywood and television script writers is not a Constitutional right.

II.
THE CONSTITUTION REQUIRES ONLY THAT A CONFESSION BE
VOLUNTARY, AND 3501 IS IN HARMONY WITH THAT REQUIREMENT.

Voluntariness is the issue. As early as 1884 in Hopt v. Utah, 110 U.S. 574 (1884), the Supreme Court ruled that, if a confession had been made voluntarily, it was deemed reliable. The Court saw that the mere fact that a suspect was in custody did not mean that a confession was involuntary. The first the Court stated that there is a Constitutional basis that a confession be voluntary was in 1897 in Bram v. United States, 168 U.S. 532, citing the Fifth Amendment. In Brown v. Mississippi, 297 U.S. 278 (1936), the Court called on the Fourteenth Amendment's Due Process Clause to find a Constitutional requirement that a confession be voluntary in a case involving infringement by the state. Miranda did not attempt to leave this fold of voluntariness; it only offered an analytical approach to determine whether a confession would be deemed voluntary and thus admissible, and said the specific analytical approach would be used until States and Congress "develop[ed] their own safeguards" that would be as effective as the four warnings required in a Miranda warning. [The four warnings are (1) that the suspect has the right to remain silent; (2) that any statements he makes can be used against him; (3) that he has the right to the presence of an attorney during questioning; and (4) that an attorney will be appointed for him if he cannot afford one. Miranda v. Arizona, 384 U.S. 436, 444 (1966).] Two years after the Miranda decision, Congress enacted 18 U.S.C. 3501 (in full at page 1 of this brief), clearly returning voluntariness as the test for admitting confessions in federal courts. Indeed, Congress included the four warnings in 3501, but it also allowed that a greater consideration of the circumstances might show a confession to have been voluntary even in a case when the four warnings were not issued.

III.
THERE IS NO EVIDENCE OF COERCION.

And now we come to the case before the bench today: The case of a literate, well-read, technologically savy man, quartered in the comfort of a hotel suite holding facility. Mr. Dot-Com knew no fear or coercion as he sat safely in a hotel suite. He willingly communicated with an FBI agent via electronic chat, surely a method of communication familiar and safe to a man who would be turning the likes of Robert Frost's poetry into electronic books. After 52 minutes of simple chatting, something a "tech nerd" no doubt had done often, Mr. Dot-Com voluntarily confessed to having sold over 2,500 electronic books, knowingly in violation of copyright laws, an act that brought several thousands of dollars to him. Before this Court are two roads: One is a road that would grant a pass to an intelligent man who found a neat, clean way to steal from writers, from the people who deserve to profit from their own creative efforts. The other is a road that would see this man as a law breaker and modern-day thief who voluntarily confessed while he was in a safe, non-threatening situation, and who deserves to be punished just as much as if he had stolen the money directly from the pockets of these writers and their estates. The Court can travel only one road in this case.

CONCLUSION

For these reasons, 18 U.S.C. 3501 applies. This case should be remanded to the United States District Court for the Southern District of New York for one issue: To determine whether Mr. John Dot-Com's confession was voluntary under 18 U.S.C. 3501

Respectfully submitted,

Alice Marie Beard
Counsel for Appellant
       


other examples of what all 1st-year law students write

Alice Marie Beard