EUGENE GRIFFIN, PETITIONER V. UNITED STATES OF AMERICA
   No. 90-6317
   In The Supreme Court Of The United States
   October Term, 1990
   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
   Brief For The United States In Opposition
                             OPINION BELOW
   The judgment order of the court of appeals, Pet. App. A, is
reported at 914 F.2d 269.
                             JURISDICTION
   The judgment of the court of appeals was entered on August 23,
1990.  The petition for a writ of certiorari was filed on November 21,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
                          QUESTION PRESENTED
   Whether the district court properly admitted into evidence
petitioner's post-arrest statement to his parole officer.
                               STATEMENT
   After a jury trial in the United States District Court for the
Northern District of Georgia, petitioner was convicted of possession
of a firearm by a previously convicted felon, in violation of 18
U.S.C. 922(g) (Count 1), and possession of cocaine with intent to
distribute it, in violation of 21 U.S.C. 841(a) (Count 2).  The
district court enhanced petitioner's sentence under 18 U.S.C.
924(e)(1) (Supp. V 1987) because it determined that petitioner had
three previous convictions for violent felonies within the meaning of
18 U.S.C. 924(e)(2)(B) -- five Georgia burglary convictions and one
Georgia murder conviction.  Pet. 9-10.  The district court therefore
sentenced petitioner to life imprisonment on the firearm conviction
and to a consecutive 20-year term of imprisonment on the drug
conviction.
   1. On May 19, 1987, petitioner, who was driving a Ford Pinto,
failed to stop for a school bus that was loading children in front of
an elementary school.  Atlanta police officer Mark Stillman stopped
petitioner's car.  Petitioner remained behind the wheel of his car and
made a "hunching motion with his back," as if he was either picking up
or concealing something.  Stillman ordered petitioner out of his car.
Petitioner was abnormally nervous and was shaking visibly.  When
petitioner was unable to produce a driver's license, Stillman made an
attempt by radio to verify whether petitioner had a valid license.
Because of petitioner's agitated state, Stillman handcuffed him while
awaiting the driver's license report.  Gov't C.A. Br. 2-3;  Pet. 8.
   Suspecting that the car was stolen, Stillman went to the front of
the car to examine the steering column.  Looking inside the car,
Stillman saw a purse containing "glassine-dope type bags" on the seat
next to petitioner, and a handgun on the floorboard of the car at the
foot of the driver's seat.  R. 8-73.  Stillman picked up the handgun
and asked "What is this?" Petitioner immediately ran from the scene.
Stillman apprehended him nearby.  Gov't C.A. Br. 3;  Pet. 8-9.
   Stillman placed petitioner in his police car and advised him of his
Miranda rights.  Petitioner indicated that he understood his rights.
R. 8-70.  Stillman then asked to whom the gun and drugs belonged.
Petitioner replied that he had purchased the handgun that morning for
$150, and that the cocaine in the bag was his as well.  Gov't C.A. Br.
4;  R. 9-80.  Petitioner stated, however, that he would rather not say
where he had bought the gun.  R. 8-72;  Gov't C.A. Br. 4;  Pet. 9.
   One week after his arrest, while petitioner was still in custody,
petitioner was interviewed by his state parole officer.  During the
interview, petitioner told the parole officer that the cocaine and gun
were his, and that he had purchased the gun for $150 on the morning of
his arrest.  Petitioner refused to reveal the source of the drugs or
the gun.  Rather, petitioner indicated that he wished to trade that
information for a reduction in his sentence.  Gov't C.A. Br. 4;  Pet.
9.
   2. Following a hearing on the first day of trial, the district
court ruled that petitioner's statement to Officer Stillman was
admissible, but reserved judgment on the admissibility of petitioner's
statement to his parole officer.  Pet. 10-11.  The court noted,
however, that
      (t)here is absolutely nothing oppressive in the evidence on (the
      parole officer's) interview, nothing improper, nothing shocking
      to the conscience, nothing that, in the ordinary sense of the
      word would violate due process.  And (petitioner), according to
      the evidence, was rather intent on cooperating with the
      authorities so as to -- so as hopefully to earn some
      consideration on his sentence, which indicates that he had at
      that time made a decision even to dispose of the case by a
      voluntariness plea.
R. 8-38 to 8-39.
   During cross-examination of Officer Stillman, petitioner's counsel
insinuated that the prosecutor had coached Stillman in his testimony,
and that any fact not contained in Stillman's police report of
petitioner's arrest indicated either a faulty report or a faulty
memory.  R. 8-81 to 8-83.  After eliciting that petitioner's statement
to Stillman had not been tape recorded, and that petitioner had not
signed a written waiver of his Miranda rights, counsel remarked:  "So
really, all we have is your recollection of what he told you,
correct?" R. 8-93.
   The following day, the district court suppressed petitioner's
statement to his parole officer.  R. 9-5.  The court based its ruling
on the failure of the parole officer to remind petitioner of his
Miranda rights, and on the government's failure to show that
petitioner knew that he did not have to speak to his parole officer
when being interviewed in custody.  Id. at 9-5 to 9-6.  The court
found that in such situations "the law presumes compulsion." Ibid.  In
so ruling, however, the court stated:
      I regret that decision in this case because the defense has
      sought to impugn the integrity of the arresting officer's
      testimony as to the accuracy of the confession.  Of course,
      there is evidence that there was a second confession.
R. 9-6.
   During presentation of the defense case, a defense witness
testified that the color of the car that petitioner was driving at the
time of his arrest was red.  R. 9-53 to 9-54.  This testimony
contradicted Officer Stillman's testimony on direct examination that
the car was blue.  R. 8-85.  In rebuttal, the government recalled
Stillman for the sole purpose of clarifying the color of the car.
Stillman testified that at the time he filled out the police report,
he had listed the car as red, not as blue, as he had previously
testified.  R. 9-58 to 9-59.  On cross-examination, petitioner's
counsel elicited that Stillman had been mistaken about the color of
the car, and then asked a series of questions regarding other
perceived mistakes that Stillman allegedly had made in his testimony.
R. 9-59 to 9-62.
   At the conclusion of petitioner's cross-examination of Stillman,
the government moved the court to allow it to introduce petitioner's
statement to his parole officer in order to rebut the inference that
petitioner had not admitted to Stillman that he owned the gun and the
cocaine that had been found in his car.  R. 9-62 to 9-63.  In response
to an inquiry from the court, petitioner's counsel acknowledged that a
part of his defense was to attack the truthfulness of Stillman's
testimony with reference to petitioner's admission.  R. 9-65.  The
court then ruled that the government in rebuttal could introduce
petitioner's statement to his parole officer.  Ibid.  The court held
that by leaving the jury with the impression that there was no
corroboration for Stillman's testimony concerning petitioner's
admission, counsel had misled the jury.  Id. at 9-66 to 9-71.  The
court found its ruling to be a logical extension of this Court's
holding in Harris v. New York, 401 U.S. 222 (1971), that a testifying
defendant may be impeached with voluntary and reliable statements
elicited in violation of the Miranda requirements.  Id. at 9-67.
   The parole officer then testified that petitioner had admitted
during his interview with him that the gun and cocaine found in the
car at the time of his arrest were his, and that he had purchased them
that morning.  R. 9-74 to 9-76.
   3. On appeal of his convictions, petitioner argued that the
district court improperly admitted his statement to his parole officer
because it was not voluntary and because it had not been immediately
preceded by Miranda warnings.  The court of appeals, in a per curiam
order, summarily affirmed petitioner's convictions.  Pet. App. A.
                               ARGUMENT
   Petitioner argues that the district court erred in admitting his
statement to his parole officer for impeachment purposes because it
was not voluntary and because he himself had not testified at trial.
Pet. 14-18.
   1. Because petitioner's statement to his parole officer could
properly have been admitted during the government's case-in-chief to
establish petitioner's guilt, it was not error to admit it for the
purpose of impeachment.
   a. At the time of petitioner's arrest, the record establishes that
he had been advised of his Miranda rights, that he understood those
rights, and that he knowingly and voluntarily decided not to exercise
them.  It is undisputed that Officer Stillman advised petitioner of
his Miranda rights and that petitioner indicated that he understood
those rights.  Petitioner then informed Officer Stillman that he owned
the gun that was found in his car, having purchased it that morning
for $150, and that the cocaine was also his.  However, he refused to
tell Stillman who had sold him the gun.
   The parole officer was not required to readvise petitioner of his
Miranda rights prior to requestioning him about the events surrounding
his arrest.  It is settled that once a suspect has knowingly and
intelligently waived his Miranda rights, he need not be continually
advised of those rights.  "(R)epeated warnings are not necessary to a
finding that a defendant, with full knowledge of his rights, knowingly
and intelligently waived them." Biddy v. Diamond, 516 F.2d 118, 122
(5th Cir. 1975), cert. denied, 425 U.S. 950 (1976);  see Ballard v.
Johnson, 821 F.2d 569, 571-572 (11th Cir. 1987);  Evans v. McCotter,
790 F.2d 1233, 1238 (5th Cir.), cert. denied, 479 U.S. 922 (1986);
Martin v. Wainwright, 770 F.2d 918, 930-931 (11th Cir. 1985), modified
on other grounds, 781 F.2d 185, cert. denied, 479 U.S. 909 (1986);
Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S.
1067 (1985);  United States v. Anthony, 474 F.2d 770, 773 (5th Cir.
1973) (per curiam);  Miller v. United States, 396 F.2d 492, 496 (8th
Cir. 1968), cert. denied, 393 U.S. 1031 (1969);  Maguire v. United
States, 396 F.2d 327, 331 (9th Cir. 1968), cert. denied, 393 U.S. 1099
(1969).  To the contrary, the lapse of time between the giving of the
Miranda warnings and the defendant's statements are but one factor to
consider in determining the validity of a waiver of Miranda rights.
United States ex rel. Patton v. Thieret, 791 F.2d 543, 548 (7th Cir.),
cert. denied, 479 U.S. 888 (1986).  Thus, "(t)he significance of (the)
elapsed time must be assessed in view of (the defendant's) knowledge
and conduct and other relevant circumstances." Stumes v. Solem, 752
F.2d at 320.
   Here, the circumstances plainly demonstrate that although one week
had passed since he had been advised of his Miranda rights, petitioner
was well aware of those rights at the time he spoke to his parole
officer and that he voluntarily and knowingly waived them.  First,
petitioner was no stranger to the criminal justice system, having as
he did five burglary convictions and one murder conviction.  Second,
petitioner's actions demonstrate that he clearly understood his rights
under Miranda.  When initially advised of his Miranda rights at the
time of his arrest, petitioner refused to divulge from whom he had
purchased the gun that was found in his car.  One week later,
petitioner persisted in his refusal to divulge to his parole officer
the source of either the gun or the cocaine.  Instead, he indicated
his intention to trade that information for a reduction in his
sentence.  Petitioner's selective exercise of his Miranda rights is
irresistible evidence that he knew of their existence.  In
circumstances similar to petitioner's, courts have held that
defendants knowingly and voluntarily waived their Miranda rights.  See
United States ex rel. Patton, 791 F.2d at 548;  Stumes v. Solem, 752
F.2d at 320.
   b. Petitioner argues that his confession was coerced and thus could
not be used for any purpose.  Pet. 14-16.  But the district court did
not suppress petitioner's statement to his parole officer because it
was the product of constitutionally-impermissible coercion, as
petitioner suggests.  Rather, the court suppressed the statement
because it believed the statement to have been obtained in violation
of Miranda.  R. 8-38.  Indeed, the court found that, absent the
technical violation of Miranda, there was nothing involuntary about
petitioner's statement.  "There clearly is absolutely nothing
oppressive in the evidence of (the parole officer's) interview,
nothing improper.  Nothing shocking to the conscience, nothing that,
in the ordinary sense of the word would violate due process.  And
(petitioner), according to the evidence, was rather intent on
cooperating with the authorities so as to -- so as hopefully to earn
some consideration on his sentence, which indicates that he had at
that time made a decision even to dispose of the case by a
voluntariness plea." Id. at 8-38 to 8-39.
   Absent the presumption of compulsion that applies when there has
been a failure to administer Miranda warnings, the question as to
voluntariness is "whether the will of the defendant ha(s) been
overborne so that the statement was not his free and voluntary act,
and that question (is) to be resolved in light of the totality of the
circumstances." Procunier v. Atchley, 400 U.S. 446, 453 (1971);  see
Oregon v. Elstad, 470 U.S. 298, 307-308 (1985) ("Where an unwarned
statement is preserved for use in situations that fall outside the
sweep of the Miranda presumption, 'the primary criterion of
admissibility (remains) the "old" due process voluntariness test'");
id. at 318.  Because petitioner's statement to his parole officer was
not obtained in violation of Miranda, the sole question is whether
petitioner's will was overborne so that his statement was not his
"free and voluntary" act.  The record fully supports the district
court's finding that there was nothing oppressive or coercive in the
manner in which the statement was obtained.
   2. Even if petitioner's statement to the parole officer should have
been preceded by Miranda warnings, any error in admitting that
statement was harmless beyond a reasonable doubt.  /1/ To begin with,
petitioner's statement to the parole officer was merely cumulative and
corroborative of his earlier confession to Officer Stillman.  In
addition, the evidence against petitioner was overwhelming.  At the
time of his arrest, petitioner was the sole occupant of the car.  The
cocaine was found in an open bag next to him, and the gun was found at
his feet.  Petitioner, after being advised of his Miranda rights,
admitted that the gun and the cocaine were his.  Admission of the
statement to the parole officer was at most harmless error.  See
Howard v. Pung, 862 F.2d 1348, 1351 (8th Cir. 1988), cert. denied, 109
S. Ct. 3247 (1989);  United States v. Johnson, 816 F.2d 918, 923 (3d
Cir. 1987);  Bryant v. Vose, 785 F.2d 364, 367 (1st Cir.), cert.
denied, 477 U.S. 907 (1986);  Martin v. Wainwright, 770 F.2d at 932.
                              CONCLUSION
   The petition for a writ of certiorari should be denied.
   Respectfully submitted.
   KENNETH W. STARR
      Solicitor General
   ROBERT S. MUELLER, III
      Assistant Attorney General
   DEBORAH WATSON
      Attorney
   FEBRUARY 1991
   /1/ Because petitioner's Miranda rights were not violated and the
alleged violation would have been harmless in this case in any event,
there is no need for the Court to consider whether the court of
appeals properly relied on Harris v. New York, 401 U.S. 222 (1971), in
the peculiar circumstances of this case.  In Harris, the Court held
that the government may impeach a testifying defendant using voluntary
and reliable statements elicited in violation of the Miranda
requirements.  However, in James v. Illinois, 110 S. Ct. 648 (1990),
the Court refused to expand the class of impeachable witnesses from
the defendant to all defense witnesses.  Here, the purpose of the
admission of the statement at issue was to rehabilitate the testimony
of an impeached government witness concerning an admission made to
that witness by the defendant.  By contrast, in James the statement at
issue was admitted to impeach the testimony of a defense witness -- an
extension of Harris that would sweep much more broadly.