Warren E. Burger: We'll resume arguments in Roberts against the United States. Mr. Shapiro, you may proceed whenever you‘re ready.
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.
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?
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.
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?
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.
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.
Stephen M. Shapiro: That's quite correct.
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.
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.
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.
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.
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?
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 --
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?
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 --
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?
Stephen M. Shapiro: Our position is that that would present a very serious difficulty. I'm reluctant to say --
Thurgood Marshall: (Voice Overlap) what you said that under those circumstances, he would not have done it.
Stephen M. Shapiro: I -- he may well have -- have not considered that, but I don't want to --
Thurgood Marshall: But it's your position that he could do it?
Stephen M. Shapiro: It's my position that -- that that's a difficult question under the Corbitt case that was recently handed down.
Thurgood Marshall: Could the judge do it or not, if he raised his Fifth Amendment point and suppose that --
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 --
Thurgood Marshall: It's your position at the Court can take into consideration, these arguments.
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 --
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?
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.
Thurgood Marshall: Well then this careful embezzlement to --
Stephen M. Shapiro: It would.
Thurgood Marshall: Well, why do you have to say that injecting heroin in?
Stephen M. Shapiro: Because it -- it reflects on the man's character. His --
Thurgood Marshall: But you don't really need a separate law for --
Stephen M. Shapiro: You don't need a separate law for that.
Thurgood Marshall: (Voice Overlap) --
Stephen M. Shapiro: I agree with you, Your Honor. As the Court --
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 --
Stephen M. Shapiro: Yes, he would.
Byron R. White: -- danger of incrimination.
Stephen M. Shapiro: Quite correct.
Byron R. White: That compels self-incrimination.
Stephen M. Shapiro: Quite correct.
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?
Stephen M. Shapiro: Well, if -- if he's --
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?
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.
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.
Stephen M. Shapiro: That the --
Byron R. White: And that the -- and that the threat or the likelihood of taking that into account and not of the legal compulsion.
Stephen M. Shapiro: That's correct.
Byron R. White: Well -- and how do you square that with Corbitt?
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.
Byron R. White: You tell me where the compulsion would be?
Stephen M. Shapiro: It would -- would it be --
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.
Stephen M. Shapiro: That's correct. There is no complete testimony.
Byron R. White: But it's the (Voice Overlap) --
Stephen M. Shapiro: It would --
Byron R. White: That he ever -- you never -- any testimony.
Stephen M. Shapiro: But it would arguably be a penalty imposed on him --
Byron R. White: Because of -- because of (Voice Overlap) --
Stephen M. Shapiro: -- for -- for not cooperating.
Byron R. White: -- compulsion. Because of -- thus from compulsion or --
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.
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.”
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.
Warren E. Burger: Is there any constitutional right to maintain silence about criminal activity that -- that is known to the person questioned.
Stephen M. Shapiro: Certainly, there --
Warren E. Burger: There is unless, it will -- being compelled incrimination of himself.
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 --
Thurgood Marshall: Anyone who charged him?
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 --
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?
Stephen M. Shapiro: He -- he doesn't have --
Thurgood Marshall: Doesn't he?
Stephen M. Shapiro: He doesn't' have to use his lawyer's language.
Thurgood Marshall: You can call him, can you?
Stephen M. Shapiro: He doesn't have to use lawyer's language.
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.
Stephen M. Shapiro: As this Court has held repeatedly in the Rogers case and the Vajtauer case --
Thurgood Marshall: And that a minute ago, I asked you about this case.
Stephen M. Shapiro: It's --
Thurgood Marshall: Why -- when was he obliged to say “I am relying on the Fifth Amendment”?
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.
Thurgood Marshall: Well, isn't that what the Fifth Amendment gives him the right to do?
Stephen M. Shapiro: It's not self-executing.
Thurgood Marshall: Not talk.
Stephen M. Shapiro: It's not self-executing.
Thurgood Marshall: Well, what does it say?
Stephen M. Shapiro: It -- it says that no person maybe compelled to be a witness against himself in a criminal trial.
Thurgood Marshall: Well, but that means --
Stephen M. Shapiro: But --
Thurgood Marshall: -- to talk, doesn't it?
Stephen M. Shapiro: This -- but this Court has held repeatedly that there must be --
Thurgood Marshall: Suppose that the --
Stephen M. Shapiro: -- invocation of the Fifth Amendment.
Thurgood Marshall: And the sense in here and he stood -- didn't say anything. It still would be better off, wouldn't it?
Stephen M. Shapiro: He -- if he didn't invoke his noncooperation --
Thurgood Marshall: Hence, my -- you -- you'd given --
Stephen M. Shapiro: -- would be --
Thurgood Marshall: You're putting him on the duty to come forth.
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.
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.
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 --
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 --
Stephen M. Shapiro: That's correct.
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?
Stephen M. Shapiro: There -- the outer limit is prescribed by the Eighth Amendment, and I submit that -- that in Your Honor's hypothetical --
John Paul Stevens: Assume it's not a violation of the Eight Amendment, I --
Stephen M. Shapiro: If it's not a violation of the Eight Amendment --
John Paul Stevens: After sentencing procedure for the judge to say -- to get in -- get involved in the investigatory process in that way.
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.
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.
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.
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?
Stephen M. Shapiro: 1970. That is part of the comprehensive --
Warren E. Burger: Comprehensive -- the omnibus -- now, did that add anything to what this Court said in Williams against New York?
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 --
Warren E. Burger: Yes.
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.
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?
Stephen M. Shapiro: Not at all. We -- we --
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.
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.
Warren E. Burger: Do you have anything further, Mr. Palmer?
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.
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 --
Allan M. Palmer: No, Your Honor.
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?
Allan M. Palmer: The statement of Miranda?
Warren E. Burger: That you just -- yes.
Allan M. Palmer: Well, the --
Warren E. Burger: (Voice Overlap) --
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.
Warren E. Burger: Thank you. Thank you, gentlemen. The case is submitted. We'll hear arguments next in --