EARNESTINE MACK, PETITIONER V. UNITED STATES OF AMERICA

   ALBERT RAY MACKLIN, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7795, 89-7811

   In The Supreme Court Of The United States

   October Term, 1990

   On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Memorandum For The United States In Opposition

   Petitioners contend that the court of appeals erred in reversing an
order suppressing their confessions as evidence.

   On September 12, 1988, petitioners were indicted by a federal grand
jury sitting in the Western District of Tennessee.  They were charged
with forging the endorsement of the payee on a United States Treasury
check, in violation of 18 U.S.C. 510.  Petitioners moved to suppress
statements they made to federal agents.

   The evidence at the suppression hearing showed that Secret Service
agents, investigating a forged endorsement on a United States Treasury
check, questioned petitioners about their involvement in the forgery.
The agents questioned them first at petitioners' home and then at the
agents' office where petitioners appeared on their own volition.  On
each occasion, the agents advised petitioners that they were not under
arrest and were free to leave.  An expert witness testified that
petitioners were mildly retarded and had difficulty understanding
instructions.  89-7795 Pet. App. 12-14.

   The district court suppressed the confessions.  The court concluded
that petitioners should not have been questioned outside the presence
of counsel and that they should have been read their rights under
Miranda v. Arizona, 384 U.S. 436 (1966), prior to questioning.  The
court ruled that the confessions were involuntary because petitioners
could not protect their rights without assistance from counsel and
that they could not appreciate the consequences of confessing.
89-7795 Pet. App. 14.

   The court of appeals reversed.  89-7795 Pet. App. 11-19.  The court
held that the agents were not required to advise petitioners of their
Miranda rights, because petitioners were not in custody during the
questioning.  The court also found that petitioners had the capacity
to make admissible confessions and that their confessions were not
involuntary.

   Petitioners contend (89-7795 Pet. 6-9;  89-7811 Pet. 12-18) that
the court of appeals erred in reversing the district court's findings
that petitioners' mental disability incapacitated them from making
voluntary statements, absent their receiving and comprehending their
Miranda rights.  Whatever the merits of petitioners' contentions, they
are not presently ripe for review by this Court.  The court of
appeals' decision places petitioners in precisely the same position
they would have occupied if the district court had denied their
motions to suppress.  If petitioners are acquitted following a trial
on the merits, their claims will be moot.  If, on the other hand,
petitioners are convicted and their convictions are affirmed on
appeal, they will then be able to present their contentions to this
Court, together with any other claims they may have, in a petition for
a writ of certiorari seeking review of the final judgment against
them.  Accordingly, review of the court of appeals' decision would be
premature at this time.  /*/

   It is therefore respectfully submitted that the petitions for a
writ of certiorari should be denied.

   KENNETH W. STARR

      Solicitor General

   JULY 1990

   /*/ Because this case is interlocutory, we are not responding on
the merits to the question presented by the petitions.  We will file a
response on the merits if the Court requests.