Warren E. Burger: The arguments next in number 46, United States against Campos-Serrano. Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice and may it pleas the court. I move the admission pro hac vice of Mr. W. Bradford Reynolds who is of my staff for the purpose of arguing this case. I may say that his three years expires on Saturday and if the case had gone over till Monday, it would not have been necessary to make this motion.
Warren E. Burger: Perhaps, we are happy to grant your motion and we will be happy to welcome Mr. Reynolds on a more prominent basis.
William Bradford Reynolds: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari to the United States Court of Appeals for the Seventh Circuit to review the decision of that Court, reversing a judgment of conviction of the District Court. It presents important questions relating to the manner in which immigration investigators can without infringing on the individual right against self-incrimination under the Fifth Amendment, carry out their statutory of responsibility to determine whether aliens or persons believed to be aliens are lawfully in the United States. The facts were essentially these. On the morning of November 19, 1968, approximately eight agents of the immigration and Naturalization Service conducted an investigation of employees as a rule on manufacturing company in Chicago, Illinois where it was expected that aliens unlawfully in the United States were working. Some 15 or 16 aliens were arrested for being in the country in violation of the immigration law, including Juan Miguel Rico. All were place in Agent’s Automobile and as is customary practice, they were driven to their respective residences to gather their personal belongings. Upon arriving at Rico’s residence at approximately 8:45 am, Rico and two INS investigators, Jacobs and Beryl, went to the door of his apartment. Rico knocked and respondent opened the door and admitted the three men. The Agents identified themselves and explained to respondent in Spanish that Rico had been arrested and that they were there to collect his personal belongings. No search was made of the premises. Agent Beryl accompanied Rico into his room, Agent Jacobs remained in the living room with the respondent. Jacob who is an INS investigator is authorized by statute to interrogate without warrant, any alien or person believed to be an alien as to his right to be or remain in the United States. He inquired in Spanish as to respondent's citizenship. Respondent replied that he was Mexican and when asked about his alien status, he stated that he was a resident alien. Jacobs then asked for proof and respondent produced his Alien Registration receipt card which is the identification card that is issued by the immigration service to all the aliens who have been locally admitted into the country in a permanent resident status.
Speaker: Is that what they call the Blue Card?
William Bradford Reynolds: The Green Card, Your Honor.
Speaker: Green Card. Now here is the requirement have that on at all times.
William Bradford Reynolds: At all times, yes Your Honor by the statute.
Speaker: Under this layer?
William Bradford Reynolds: The statute does not require that he display it. The statute requires that he retain it in his possession at all times and the statute does permit interrogation of the alien to satisfy the investigators. It authorizes under request and to display but the statute did not require that he display that as a batch.
Harry A. Blackmun: When you say in his possession, do you mean on his person?
William Bradford Reynolds: On his person, yes Your Honor.
Harry A. Blackmun: Just like the draft card?
William Bradford Reynolds: Exactly, it is like the draft card.
Speaker: It could be proved is out of the some other way than by displaying the card?
William Bradford Reynolds: Well, he could proved his status in another way, although not in as direct way for hatch.
Speaker: I suppose under the broad interpretation the best evidence rule to apply would be the best connotation evidence of his status.
William Bradford Reynolds: Well, he has the -- he has -- he is required by law to register at the time that he had admitted into the country and his status is on the registration form, that is information that is in the government's possession and he -- if he had the passport for instance and can show that he is in the country, has a valid passport and give his name, you can determined his status from the alien registration form which is on file with the government, but the card is I think the most direct way to establish it.
Warren E. Burger: As you know, how long would it take as a practical matter to execute that, carry out that exercise?
William Bradford Reynolds: I would assume relatively short time. I do not know of great length of time. I think it could be ascertained, perhaps if I am an Agent calling, making a phone call I believe it could be determined relatively, in relatively short period of time.
Thurgood Marshall: He had found in that he did not have the card and admitted that he was illegally there, would the government had done anything other than deport him?
William Bradford Reynolds: The government could have done something other than deport him.
Thurgood Marshall: Would they have done anything else as a matter of quality, what is the policy?
William Bradford Reynolds: I think it is the matter of policy that they would have done nothing other than the court. There is a -- it is a misdemeanor to be in the country illegally and there is that possibility, but as a matter of policy, the government would have deported him. In fact that is what the government did with Rico in this case. They deported him. He was in the country unlawfully.
Thurgood Marshall: They did not in this case?
William Bradford Reynolds: In this case, this man was indicted, but he was indicted for possession of a false alien registration receipt form.
Potter Stewart: He was indicted for registration of a false document required for entry into the United States, is that not issue in this, (Voice Overlap) covers an alien registration?
William Bradford Reynolds: That is correct. Jacobs inspected the alien’s registration receipt card and also he found a social security card which had been produced on request and he showed both the cards to Agent Beryl. The lighting conditions were extremely poor and on this viewing, the Agents found nothing in it. They returned the documents to respondent and then left the apartment with Rico who had by then collected his personal effects. Now, respondent raises no objection to this initial inquiry and the Court of Appeals found that it did not violate respondent's Fifth Amendment privilege. This initial inquiry occurred in what the Court of Appeals characterized as “the normal immigration inquiry situation and that is what permissible, the court concluded, since the card served the non-criminal purpose of an enabling the government to be aware of a number of aliens in the country and their status. When the Agents returned with Rico to the car, a third investigator, Agent White, motioned toward another individual approaching them and suggested that he had been acting -- he had acted suspiciously on seeing the Agent and should be questioned. Agent Beryl spoke to this individual, Jose Rodriguez Ortiz and inquired as to his citizenship. Ortiz produced an alien registration receipt card which upon examination both Beryl and White found to be altered. Ortiz was then placed under arrest. He was put in Jacob’s car and given Miranda warning in Spanish by Jacobs. He was asked if he wanted to obtain any personal belongings. He stated that he did and indicated that he lived in the same apartment building from which the agent had just emerged with Rico. Agents White and Beryl then went with Ortiz. Unexpectedly, he led them to the same apartment that was occupied by Rico and respondent. Ortiz opened the door with a key and as the three agents -- and as the three men entered, respondent came out of the back room into the living room. While Agent White accompanied Ortiz into his room to collect his clothes, Agent Beryl spoke with respondent in the living room. He explained to respondent in Spanish that Ortiz was under arrest and was being permitted to collect his clothes. Then Agent Beryl thinking that if Ortiz’s card was altered, there was a possibility that respondent's card too was altered and recalling that its earlier inspect -- earlier inspection of respondent’s card had been in the dimly living room. He asked to see respondent’s registration card, alien registration receipt card again. Respondent gave him the card and Beryl examined it a second time. The card was shown to Agent White and both agents inspected it under a flashlight.
Speaker: Who was that (Inaudible) I think you have already answered it, I just want to be sure. The agents could compel him to exhibit the card?
William Bradford Reynolds: No, Your Honor. The agent could not compel --
Speaker: But could have (Inaudible) the card?
William Bradford Reynolds: The agent could have appropriately asked for the card and in this case, he produced the card, but the agents had no authority to compel him --
Speaker: So, respondent might or could refuse to exhibit it?
William Bradford Reynolds: He might.
Speaker: Nothing could follow from that, there was a huge --
William Bradford Reynolds: Not directly. No, Your Honor. Nothing could follow and in these circumstances nothing would follow.
Warren E. Burger: I suppose the agent would draw some inferences but might be to the disadvantage of the subject?
William Bradford Reynolds: That I suppose could well be, Your Honor, and might a warrant of some further investigation on the part of the agents as to this subject, but in terms of what they could do at that time, they were in -- they had no authority to do anything more.
Thurgood Marshall: Do they have authority to arrest?
William Bradford Reynolds: No, Your Honor, they did not have authority to arrest. Now --
Thurgood Marshall: Well, they arrested the other man who did not have a card (Voice Overlap)
William Bradford Reynolds: Well, Your Honor, the agent’s authority to arrest under the statute arises, an immigration, agent’s authority, arises where he has reason to believe that the agent is in the country unlawfully and that the agent might try to escape or flee.
Speaker: The alien.
William Bradford Reynolds: I am sorry, the alien.
Thurgood Marshall: So he could arrest him?
William Bradford Reynolds: Your honor, in these circumstances, we submit that there was, if we are now positing that the card had not been produced, there was not reason to believe in these circumstances that respondent was in the country unlawfully. Nor was there is any reason to believe that he would try to escape.
Thurgood Marshall: Then my last question on that point is, does this man, whatever his name is Serrano, did he know that the agents could arrest him. One did he know he did not have to show the card? Perhaps he said there was indeed there was nobody. The man just gotten in and said I got Ortiz, I just arrested Ortiz, I am going to take him away. Now, let me see your card. Do not you think that that man assumed that he had a probable arrest or assumed --
William Bradford Reynolds: Your Honor --
Thurgood Marshall: -- that he was under his duty to show it?
William Bradford Reynolds: As to what respondent felt the record is silent on that. I do not think it is unreasonable to assume as you suggest that he might have thought that, but our position is that is not the test in terms of whether you need to give Miranda warnings which I believe is the question you are directing your remarks to.
William J. Brennan, Jr.: Well, Mr. Reynolds does this all add up to the government taking a position that he is not in custody (Inaudible)
William Bradford Reynolds: Yes, Your Honor, I believe, that is right.
William J. Brennan, Jr.: And that he was not in custody that is the end of the statement or --
William Bradford Reynolds: Well, that -- yes, Your Honor.
Byron R. White: The circumstances are called toward the Miranda warning is required?
William Bradford Reynolds: That is our position, Your Honor.
Byron R. White: And really it does not make any difference whether the document was legal on the public record or protected by the decision of the Fifth Amendment or anything else?
William Bradford Reynolds: Well, I believe that if the document is a public record, it does not make any difference whether Miranda warning, whether the situation was custody or not custody.
Byron R. White: Well, if that, if you cannot take this and turn it over.
William Bradford Reynolds: Because --
Byron R. White: Because the point would be whether the document is protected, but whether he his coerced to turn it over. In Miranda would be your (Inaudible) with the situation?
William Bradford Reynolds: But Your honor, if it is a public record then you are not -- if it is a required record, even if in the circumstances here you would say that there was custody and therefore would force him to turn it over. You would not be forcing him to incriminate himself under the Fifth Amendment.
Byron R. White: Do you think, let us assume that he was in the custody, did you ask him, do you have an alien card?
William Bradford Reynolds: Yes.
Byron R. White: Is it forged?
William Bradford Reynolds: Yes.
Byron R. White: And then ask to (Inaudible)?
William Bradford Reynolds: And you --
Byron R. White: Without warning?
William Bradford Reynolds: If your question is you have been custody --
Byron R. White: The circumstances of testifying required; you ask him, do you have a card yet? Do you have -- is it forged? Yes. Is that answer (Inaudible) without warning?
William Bradford Reynolds: It is a -- I think, Your Honor, that if he went ahead and answered, I do not think he needs to answer the second question.
Byron R. White: Well, I know, but let us say, Miranda would include it and let us say it is improper warning. Do you think that situation is different if you say do you have a card yet? Show it to me please and you go get on his property (Inaudible)
William Bradford Reynolds: Well, I think that is a different situation then if he does show the card and the card is a document which is a required record such as a driver’s license or --
Byron R. White: Not if he does not have to turn it over so he study it under note the quality form and turned it over. You have to turnover at least your driver’s license?
William Bradford Reynolds: Your Honor, I do not think that the -- I think it is turns on the state statue as to whether or not you have to show him on the request that you have to turnover the driver’s license (Voice Overlap) but I think in most, in most states today --
Byron R. White: But you said that refuse that they did not account to -- let us say your alien card?
William Bradford Reynolds: That is correct, Your Honor.
Byron R. White: And there is no provision in the law that you have to after a request to display your card?
William Bradford Reynolds: That is right. And if you --
Warren E. Burger: Well is not this alien in the same position that I am, if an immigration our officer that comes to me and says let me see your alien card and I say, “I have no alien card and I am not an alien and if I did have one, I would not show it to you.” He does not know that if the man is an alien by looking at him, does he?
William Bradford Reynolds: Actually, he would not know.
Warren E. Burger: So that a request for an alien card is not something which officers has throw around (Inaudible) I would assume?
William Bradford Reynolds: No, but our point -- the proposition of Mr. Justice White is it that the man is in a custodial situation as I understand here.
Byron R. White: But the assumption that he were -- that he was in a custodial situation. May he -- if he then asked to display his card, what he does (Inaudible) form who is the evidence before the --
William Bradford Reynolds: If the card is a required reference --
Byron R. White: Yes. I am assuming that it is.
William Bradford Reynolds: Then I think it would be admissible --
Byron R. White: Even though if you asked him if his card is forged, (Inaudible)
William Bradford Reynolds: Yes.
Byron R. White: He would not show it?
William Bradford Reynolds: I think that is correct as to the question because we are not talking, if we had a required reference, we are not in a Fifth Amendment area that we are in, in terms of interrogation that you were positing when you said, “do you ask the question?”
William J. Brennan, Jr.: Mr. Reynolds, I tell you what confuses me is your position today I suppose may be (Inaudible) particularly in your brief. I am reading from page 5 of your brief, “it is rather a public document like a driver’s license or a collective service card which must be maintained by the individual,” you said that, so that, “and to produce it upon request by appropriate governmental agency under the required reference law.”
William Bradford Reynolds: That is the -- applied that was the refusal (Inaudible)
Byron R. White: Do you intend that the (Inaudible) I have heard, may be I have never (Inaudible)
William J. Brennan, Jr.: Well, that is may be I have (Inaudible)[Laughter]
William Bradford Reynolds: It maybe requested legitimately under the law properly by the lawful authority, but if there is nothing in the law which requires that he produced it, at the time of that request, but Shapiro, Your Honor I believe, suggested that if you have a record which is required to be kept and it is a required record, that then if an officer asked for the record that you -- the law would assume that it should be produced under the required reference law.
Byron R. White: Then you say he asked that there is a public record then he must produce it?
William Bradford Reynolds: Yes, Your Honor.
Thurgood Marshall: Mr. Reynolds.
William Bradford Reynolds: And there is an obligation in the law to produce it?
William Bradford Reynolds: To the -- yes, Your Honor, well, in that respect, yes. I assume you were asking whether there is an obligation on the statute to produce it and our position is that, if they required reference and it is asked, then there is an obligation to produce it without the protection of the Fifth Amendment.
William J. Brennan, Jr.: Well, I know and I understand your position, in which case then that obviates the application of Miranda or in any event, he was not in custody that was in the requirement of Miranda and on that ground Miranda was enacted, that is your position?
Thurgood Marshall: Mr. Reynolds, my problem is that assuming that you did not have any Miranda problem, if I can go and ask the man, are you an alien or not, solely because of the statute which puts -- which gives the Agent the right over alien, right? If you are still in that, does it automatically follow that the same alien and the same officer, is in the identical position of no Miranda ruling when the purpose is to find evidence to convict of a crime. Again, I come back to the difference between deportation and criminal conviction?
William Bradford Reynolds: Your Honor, I believe that the answer to that is that when you were talking in the Miranda area, you’re talking apparently, I think that in this respect --
Thurgood Marshall: Well, is it not -- is not an alien always in the custody of a immigration officer?
William Bradford Reynolds: Not in the Miranda sense, Your Honor
Thurgood Marshall: Well, can he stop him at any time and ask him anything he wants to ask him under any circumstances?
William Bradford Reynolds: He may stop him I believe at time and interrogate him as to whether he is lawfully in the United States.
Thurgood Marshall: Alright, that is close to custody.
William Bradford Reynolds: Well, Your Honor, I do not believe that Miranda defines custody as meaning focus. I think that what Miranda said quite explicitly is that focus in the Escobedo sense under the Sixth Amendment question that focus means custody that that custody does not mean focus. Now, our position is that in the first instance when he first was in the room and asked the initial time, that was not in custodial situation and we submit that there is nothing at the second -- on the second occasion, if you look at the surrounding circumstances of the second request, that would have changed what was a clearly non-custodial situation into a custodial situation. Now, it maybe that there was heighten suspicion on the part of the agent, not probable cause -- but --
Thurgood Marshall: (Inaudible)
William Bradford Reynolds: The alien -- the alien was -- well, he was --
Speaker: He was home, was he not?
William Bradford Reynolds: He was in -- in the home. The agent went --
Thurgood Marshall: (Voice Overlap) he leave home, like people sometimes do?
William Bradford Reynolds: Yes, Your Honor. I would have to submit that he would have been -- but he was not deprived from freedom of action in any significant way which I believe is a Miranda test. The agent, after they were given the card went into the kitchen and left the respondent alone in the living room while they examined the card. So I think in that respect --
Thurgood Marshall: You said (Inaudible), is that what you are saying?
William Bradford Reynolds: I am not saying that. What I am saying is that I believe that if you have a non-custodial situation in the first in the instance that what the agent was doing even though there was heighten suspicion in the second which was, they were making the routine request, I mean, a routine interrogation as to whether this alien was lawfully in the country. It was no less no routine because they might have been a little more suspicious that he had a forged card, he was still trying to determine whether this alien was lawfully in the country and in our view they are very --
Speaker: Not this order but it is (Inaudible)
William Bradford Reynolds: That is the result -- the end result I think.
Speaker: (Inaudible)
William Bradford Reynolds: I think that is right but --
Thurgood Marshall: (Inaudible) Why do you have to recommend a deal before you deport him, you are going to deport him when he gets done (Inaudible)
William Bradford Reynolds: Well, Your Honor that --
Thurgood Marshall: Are they not?
William Bradford Reynolds: That is a determination I would not (Voice Overlap).
Thurgood Marshall: But would you not assume so?
William Bradford Reynolds: I am not the -- but I think that when you are trying to determine whether there was custody in the Miranda situation that is not determined by what subsequently the decision might be as to whether you deport this alien or you prosecute a criminal.
Warren E. Burger: I suppose that a man has asked for his card asked to exhibit it, whether in his home or on the street, he might much rather prefer to do that than being directly to report to the Immigration Office on the following day at 10 o’clock in the morning. That is a greater inconvenience to himself. Is that not a reasonable assumption?
William Bradford Reynolds: I think that is a reasonable assumption. I agree with that.
Warren E. Burger: And if he did not, if he refused to exhibit the card would that be the start of the remedy that the immigration officer would pursue, is that one of the alternatives?
William Bradford Reynolds: Well, Your Honor, I think that that is a possibility whether or not that was the request for him to report would have to await further investigation to determine, if there was anything on file that indicated that he had lawfully registered that those intervening circumstances may have occurred, but I think that that might possibly be one of --
Warren E. Burger: Is it not a fairly common thing for the holders of these cards to be requested by writing or otherwise to report to the Immigration Office without knowing at the time what they are reporting for? I thought that was a matter of common knowledge.
William Bradford Reynolds: I think that that does -- that that is a practice. I would like to say just a word about the -- the public of the required record document. Our view is if it is a public record and it is a record that is required by law to be kept in the possession of the alien for very legitimate regulatory purposes and in that sense it is in the most traditional sense within the required records document. It is a record of public or again it is one that contains information that is public in nature, that is information, it is already in the possession of his Government. It had only information as to identity, name, sex, date of birth, his alien status, his registration number, his photograph. It is issued pursuant to or into -- the part be maintained as into a very legitimate regulatory purpose that it controlling immigration in the United States. Now, because it is --
William J. Brennan, Jr.: I think Mr. Reynolds, I gather, you said the first time he tried to require recognition as something which by law one is required to maintain, but is there also an element of that doctrine, in addition to maintaining the but (Inaudible) you must also produce it upon the request of the appropriate government agent?
William Bradford Reynolds: Well, I believe that the Shapiro case indicated that where one is required by law to maintain a record (Voice Overlap)
William J. Brennan, Jr.: And must also produce it or has a duty to produce it?
William Bradford Reynolds: He has a duty to produce it.
Byron R. White: But Shapiro was a subpoena or was it a --
William Bradford Reynolds: I believe that there was a subpoena. I believe -- I am not, do not remember that is on the request. I believe it was a subpoena and actually it was a request for sales record of a whole seller. The element in Shapiro that is not present here is that Shapiro was addressed to what are essentially private records. And here we ask what are in a most traditional sense a public record and for that reason the additional factor that was suggest in Shapiro and appeared again in Marchetti and Grosso that is if the record be as a kind customarily checked. It is one that in our view has no relevance here, is that --
Byron R. White: Would you say that if in this case he lawfully said would you please show me your alien cards and he says, no I will not do so. The obligation to the law is to keep the card, to produce it upon request. He says sorry I am not going to do it and then (inaudible) is that the time of the requirement to produce that should you talking about?
William Bradford Reynolds: Well, that of course raises Fourth Amendment question that I think that the David case would indicate that that was essentially the paper requirement that we are talking about. Whether or not they could have at that point searched them or whether they would have been legal process, but that is the type of requirement. Davis indicates that in those circumstances where you are dealing with a public record, the police officer may well, on the Fourth Amendment ground be able to go a little further than he would normally be able to go in terms of obtaining the document. But I think that is essentially probably to do really are --
William O. Douglas: It is hard for me to understand, how a forged document could be a required document?
William Bradford Reynolds: Well, Your Honor, that I think is what was troubling the Court of Appeals. The required record document turns on the record-keeping requirement, possession of a card and if that card, under the statute and that possession of keeping requirement is one that is not aimed at a highly selective group, inherently suspected of criminal activity which we maintain is the case here. Here you deal with all aliens. Then the fact that -- in this particular instance we are dealing with a forged card, is not enough to state that this particular case has the required record document. You have to look at the scheme, statutory scheme and see where the scheme, the statutory scheme is directed -- is at criminal activity alone. I believe that was the threat to the plurality opinion in California v. Fires last term and I think that the scheme itself is important and if in this particular instance the respondent is maintaining that he alone because he acted in an unlawful manner, he would have to incriminate himself by producing it. That does not take the doctrine out the required record.
Warren E. Burger: Suppose everything that is “required,” the only thing that required is to produce of his own desire to pass it off as a valid doctrine, is that not so?
Speaker: He was trying to (Voice Overlap)
William Bradford Reynolds: I believe that in the document that that is so, I think, Your Honor.
Potter Stewart: But he is volunteering in response to a request?
William Bradford Reynolds: It was in response to a request.
Potter Stewart: Mr. Reynolds, your time has run out. There is another quite separate issue that has been brought over this case by the respondent, by the appellee, by the respondent having to do with (Inaudible) whether or not this indictment charges for an offense under the statute, 18 U.S.C. 1546, you dealt with that in your reply brief?
William Bradford Reynolds: We did deal with it in some detail in our reply brief that that turns, Your Honor I believe on the history of the statute, the legislative history and the background of this particular legislation.
Potter Stewart: At least one Court has held that does not charge an offense that an alien registration card is not the kind of document covered by that section of the code that, am I correct?
William Bradford Reynolds: That is correct.
Potter Stewart: Any other?
William Bradford Reynolds: That is the only one that I am aware of. I do not know if -- of any other course as to defense. And we for the reasons set forth in the reply brief, we disagree with that decision. And as to the other issues that were also raised initially in their answering brief, we have dealt with them in our reply brief, I was relying on -- thank you.
Warren E. Burger: Thank you, Mr. Reynolds. Mr. Cleary.
John J. Cleary: Mr. Chief Justice and may it please the Court. In response to one of the questions earlier put the requirement, I would like to point out to the Court, in 1896 Code Section 1357 (a) (1). It deals with the right of an immigration officer to interrogate any person, any alien, or any person believed to be an alien concerning his citizenship. There is not the next step to the next as said, because there is another statute requiring this individual to carry his alien registration with the card that he might been produce the card. There are three separate statutory sections, on the problems confronting the defendant in this case which of course, he felt, was not need to be raised, it is possibly to discriminatory inherent defect within the statute which means to say that anyone could be inquired or interrogated in this fashion. In this case, the defendant contends that the interrogation conducted in this case, under these circumstances call for the application of Fifth Amendment. He would even contend that it is even stronger than Miranda because of the circumstances involved in the nature of the interrogation.
Potter Stewart: Now what Miranda does is it prevents the introduction of the evidence at the interogee’s subsequent criminal trial.
John J. Cleary: Yes, Your Honor.
Potter Stewart: What was the evidence introduced against your client in this -- just the false card, was it not?
John J. Cleary: Government's exhibit one, for identification was hos forged card. I think they used a social security card, I am not sure. They also introduced a statement of Mrs. Diana Barbette Garcia, concerning her statement requesting another card because she lost the card in a court, we have asserted that this is taken (Inaudible) in the violation of his confrontation, introduced the statements of another person. Those two items were an essence to (Inaudible)
Potter Stewart: Yes, of his conviction, but what evidence specifically was introduced that was secured in violation under your submission of the Miranda rule?
John J. Cleary: Several; first the actual knowledgeable possession and that was manifested by, show me proof of citizenship or upon the second interrogation, produce your card. It was no longer a proof was the term he asked the first time, second time, produce your card. So by producing a card he would then portray a verbal act that he had knowledgeable possession of that card. One of the elements of the offense is his knowledgeable possession. Two; the card itself, in the result the actual production of the card, turning over the card was introduced in evidence against, those were the items that incriminated. In other words, there was a combination of both a physical and a verbal act. There was also a statement on this man that he was and acknowledged the card and there was one confession I was able to knock out on the ground that volunteer Mr. McMeller (ph) rule and the District Court did grant that, but they let in another one, an earlier statement to the authority. At this time was neither the Court, I would like to ask permission to be able to cite two additional authorities concerning my case. The first one deals with, a Court of Military Appeals and that is, U.S. versus Nowling, 9 United States Court of Military Appeals, 100, 1958, and the other Court case I would like to cite and that is on the issues one and two dealing with Fifth Amendment and the production of the card, an item, 4 (c), requirement of defense counsel be allowed to interview witnesses before they are deported as affective assistance to counsel, I would cite to the Court an -- it was not in the F 2nd reporter yet, U.S. versus Linda Rodriguez, Ninth Circuit, Number 71, 1238, dated, 13, July 1971. The --
Potter Stewart: Hold it, where is the citation you have pointed out from the Court of Military Appeals?
John J. Cleary: U.S. versus Nowling and --
Potter Stewart: (Inaudible) of the case?
John J. Cleary: 9 U.S.C.M.A. 100. That case dealt with almost head on with this type of situation that we have here in the sense that and the Courts below, the Lower Court certainly not binding on this Court, it was where an Air Force policeman thought that an Airman did not have a proper pass, a required document possibly by the Military Service. He went up and he -- thinking that he might possibly not have an appropriate pass, he said, produce your pass. The man produced the pass and the Court held that this was in violation of Article 31 of Uniform Code of Military Justice which is the precursor through the Miranda position on the warning it must given to servicemen.
Warren E. Burger: Are the decisions of that court reviewable anywhere?
John J. Cleary: Well, that is a question that I would not be able to really respond to Your Honor. The question of the interrogation in this case, one has to take a look at the total circumstances. This was task force group of the Immigration and naturalization Service. This is a sweep type of a procedure whereby they apprehend certain aliens. It is brought out in the transcript that they knew of people that they had planned to apprehend. They apprehended them and then extended to them the courtesy of securing their own their clothes. In this case, there was an entry made into the apartment the first time. That time the authority of the officer was present and it was, demanded up to defendant and say, produce proof of your citizenship. He complied, a certain production was made at that time. Thereafter they left. When they left they arrested another one on the street, another alien as they determined because this man now had a forged card. The other had none. With this knowledge the agents most candidly stated for the record that I now thought that the other man when he entered the apartment had a forged card. He had that knowledge. He then, going back into the apartment, entered the apartment again for the alleged purpose of securing clothes of their prisoner. But it is our contention of course, and it is stated in the brief that this one is beyond the legitimate ambit of their entry into the apartment and then interrogated this defendant with the express design of producing that which would incriminate. The Court of Appeals felt that this was the equivalent of making a man produce varied evidence of his guilt which in fact was not clearly demonstrated in this case. These are the circumstances that was trigger, if at all, the application of the Fifth Amendment privilege. It is our contention that the required records document as really initiated and formulated in Shapiro deals with the quite different situation. In that case, there was business record. In this case we have a personal card belonging to the individual. The Shapiro case was further refined in the language of Justice Harlan in Marchetti and he sets out certain requirements. The third one is the key requirement and that is the requirements dealing with the Albertson Rule and that is to say, when it focuses in on certain suspect class. Our contention is not even a class, it is an individual, one defendant and when that class cannot be penalized, and here the penalty is most obvious. In Miranda, the man only gave a statement of complicity. In Miranda he did give evidence of his guilt or his statement leading to evidence. In this case it was the whole act was the admission of guilt. If there is some relationship in the intensity that would require for the interplay of the Fifth Amendment especially when here the status of the agent is greatly enhanced. For example, if they were suspecting of him some ordinary criminal offense, he could not so interrogate him. With this case they cannot ask if he has the the citizenship. They can ask anyone and it is a more a possibly a danger when you have a man who is from a foreign land, does not speak our language, would not necessarily be in the likeness to our laws or as to his right to resist if at all.
Thurgood Marshall: Is there anything in the record that shows what he was arrested for? Was he arrested for illegal entry or arrested by having a forged card?
John J. Cleary: Your Honor, you are touching upon a matter that was just briefly hit upon on the record and since I served as defense counsel at trial, I have done my utmost to secure a deportation order for the defendant and in the nature of plea bargaining had foreclosed the charge with the court in presence of the US Attorney and almost literally begged for a misdemeanor violation under 8 U.S.C. 1325. The immigration was adamant. Their general contention was yet fooled in IFS and as agent on the first time, by the first go around and hence they would import what I felt was draconian penalty.
Thurgood Marshall: (Voice Overlap) when he was arrested?
John J. Cleary: He was arrested for a forged card. However --
Thurgood Marshall: Does that appear in the record?
John J. Cleary: Yes, it appears in the characterization of Judge Lynch, where Judge Lynch said at the time you arrested him, you did have him for the forged card, was the violation of Title XVIII and their contention was, the immigration contention was, well, we had him for that, but really we do not have to do anything with the Minor Rule 5 of the Federal Rules of criminal procedure because we have him administratively and we do not need to bring him before a magistrate. Judge Lynch discounted that and said no, when you have him for a federal crime you must comply the Rule 5 and bring him before a magistrate. He was not brought before a magistrate but was held a month until counsel was appointed and one of the arguments we have laid before in the Trial Court and Court of Appeals and again before this Court, is the delay in the appointment of counsel. The nature of the interrogation here was unique. It was in the man’s home. The status of the investigator has been clearly demonstrated by the counsel for the -- Solicitor General has indicated that they stated their purpose while they were in there. They readily had apprehended two of his roommates and it demonstrated their power to seize and apprehend persons. The critical point that we try to raise is that trying to understand what the Fifth Amendment was trying to do and that is the spirit. Here, we have light years of different between an alien from a different country, on foreign soil, unfamiliar with the laws, unfamiliar with the language dealing with the federal investigator’s experience bi-lingual, knowledgeable on his own home ground. There was no place that was safe from this immigration examination or question. And somewhere along the line, the Fifth Amendment protects this type of conduct. We contend that the circumstances here are far more coercive and far more detrimental than those existing in Miranda. If anything, we would try to draw upon the analogy in Orozco versus Texas indicates that the Fifth Amendment should be applied not in terms of a geographical study but in terms of a right or privacy of the individual. If there is some zone or right of the individual to be protected and that right to be protected against self incrimination should not depend upon whether he is in a jail house or in his flat. But a fortiori that being in his own flat, he was entitled to some deference by the immigration agents.
Warren E. Burger: It carries a right of privacy so far as (Inaudible) to the same constitution or require an alien, carry an alien card?
John J. Cleary: No sir. That --
Warren E. Burger: What is the purpose of the card then if no one can look at it?
John J. Cleary: The purpose of the card, Your Honor is that, it is a form of identification in several respects. It can --
Warren E. Burger: For his benefit?
John J. Cleary: I would have to say that it is for a mutual benefit that of the Government and that of the individual. For example, if the man was an alien, and asked to produce some evidence, they only show may be a passport or birth certificate, that is not legitimate authority to have it here in the United State lawfully. So hence, he would have to maybe check with the INS or something like this. The card would give him that advantage. The benefit of the Government of course is to regulate the aliens which was the very basis of the act when it was passed, I believe in 1941.
Warren E. Burger: Is that their primary purpose?
John J. Cleary: Primary purpose is to really identify and provide a means of authority. The contention of the defendant would be that Congress have to fulcrum on his head and the question is the card is there, that Congress felt that it was appropriate for them to produce the card and I think it should have made a legislation to that effect. There is no such legislation. In fact in the same way that the man could have produced other evidence, I am sure that would have been satisfactory, but this is a convenient form to show a person’s legitimate data. I think the point made by Justice Douglas and that is considered by the defendant such is upon the matters that when the inquiry went into the second time what it was dealing with was a legitimate alien registration receipt card. It was dealing with a piece of, for lack for a better term, contraband or evidence that would be able to prove guilt. At that time, this assignment was required to produce that evidence. And it was no longer using which we go along with and we did argue with the Court of Appeals, now we assert in this Court that the Government could not make general interrogation. Sullivan versus the United States attacked the right to make general neutral inquiry. I think it is totally permissible, and I think that is wholly within -- inconsistent with the Fifth Amendment but to focus in on this type of defendant, I think it transcends that and the Government should not be able to do as a bootstrap, statutory right to make interrogations in justifying the constitution.
Harry A. Blackmun: You have given a great emphasis to the fact that at both times in the alien's home, do I detect from that that you would not be here had this all taken place at the manufacturing establishment where he was working?
John J. Cleary: Your Honor, that I cannot -- that argument was not reached in the Court of Appeals. The contention was duel. We had made the contention that interrogation had gone beyond the legitimate scope of the entry, that is one of the additional argument in support of our position and my contention is that the basic inquiry, even conducted out in the street, given these circumstances, the agent walking up, thinking that the man has a forged card and then he asked him to produce it under the semblance of his authority, I still feel would violate the Fifth Amendment. However, it is our contention that this circumstance is greatly aggravated by the fact that it took place within the man’s own apartment.
Warren E. Burger: That is very -- suppose instead of in his own apartment, he was questioned for exhibiting his the second time and saying, well, the agent had said, can you produce your card to the immigration office tomorrow morning at 10 o’clock, here is the address, here is my card. So at 10 o’clock the following morning this gentleman came in and the first request was do you have your card with you? Yes. Can we see it? Then all the events transpired as it has here, what would you say about that?
John J. Cleary: That most difficult situation be --
Warren E. Burger: Well, if he is in a much more, he is on a custodial atmosphere as compared to being in his hometown, at home, and try to (Inaudible).
John J. Cleary: The -- I think one has to look at the nature of the intrusion if --
Warren E. Burger: Intrusion, which is the intrusion?
John J. Cleary: The intrusion is into his apartment concerning the way he gave --
Warren E. Burger: No, (Voice Overlap) No, it was downtown in the immigration office?
John J. Cleary: One would --
Warren E. Burger: Asking for a routine check on his card?
John J. Cleary: The -- no matter how one might try characterize a, so to speak little chat with the immigration officer, I would dare say that it would be somewhat coercive, the only case I can think of is California Supreme Court decision, where a woman was asked to come down and speak to a friendly DA about the case and the Court held that that was coercive.
Warren E. Burger: Yes, but the DA is apparently a prosecutor, the immigration officer, what is the category, they are required to report there from time to time, are they not?
John J. Cleary: Well, Your Honor I would dare say that my experience of the immigration, I find them to be more of the most fiercest and enthusiastic enforcement of the law (Voice Overlap)
Warren E. Burger: Your testimony on that is not relevant Mr. Cleary. What about this gentleman in the immigration office routinely exhibiting his card. Do you think that is a violation of the Fifth Amendment?
John J. Cleary: Your Honor, I would have to say yes in the absence of a statute that requires compulsory production. I think the answer lies here very simply that the agents thought that they had probable cause that he had a bad card, they could have seized him having probable cause for a valid arrest and then taken the card from him and then they would have had him. On the other ground, even in the office I feel that absent a statute or absent some regulatory scheme to require a production that the Fifth Amendment would protect him from the situation.
Thurgood Marshall: Your real argument is that anybody with a forged one has protection that a guy with a legitimate one does not have, is that not your argument?
John J. Cleary: No, Your Honor. The man with the legitimate card has the same exact right because there is no statute. However, if he was interrogated, as the Chief Justice pointed as a matter of convenience, he might wish to show the card and thereby end the interrogation as authorized under the statute.
Thurgood Marshall: Well, if he had a forgery (Inaudible)
John J. Cleary: Well, that is something that we do not know, but that in some circumstances, if it was a voluntary situation, if it was one where a man could be shown that he had, so to speak, knowingly and understandingly try to perpetrate some type of fraud on the Government agent then I think we might run into some probable waiver of Fifth Amendment. No such evidence is present in this record. All we have is a demand of the agent and a demand for the card.
Thurgood Marshall: What is the purpose of the card?
John J. Cleary: The purpose of the card is to identify those in the United States who are aliens, lawfully admitted as immigrants, that is to say on a more public relations (Voice Overlap).
Thurgood Marshall: What is the reason to identify this (Inaudible)
John J. Cleary: The reasons where it got far --
Thurgood Marshall: Because if they are not legal aliens, resident aliens, they are illegal aliens, is that not the reason?
John J. Cleary: There is also other reasons. I would have to say that there are cases where a man might not even have an alien registration receipt card, but might have some lawful status within the United States.
Thurgood Marshall: Is it not the real reason to be sure that he can at all raise and establish the fact that he is a legitimate alien?
John J. Cleary: In that respect (Voice Overlap).
Thurgood Marshall: It creates benefit, is it not?
John J. Cleary: Well, I think it is also for the Government’s benefit.
Thurgood Marshall: But it is his benefit do?
John J. Cleary: Yes sir.
Thurgood Marshall: What -- witness says okay, so when he shows the forged one when the guys left?
John J. Cleary: Yes sir.
Thurgood Marshall: That was his benefit and he does not have to show it unless he wants to?
John J. Cleary: He does have to show it unless he wants to.
Byron R. White: (Inaudible)
John J. Cleary: The required record, yes, that there will no Fifth Amendment claim. I believe Justice Frankfurter covered the point far more adequately than I thought in his dissenting opinion and also one comment thereby another one of the dissenting Judge, I think it was in Wilson, which I cited in my brief which pointed out that, I think it was --
Speaker: Inaudible)
John J. Cleary: No sir. I am just saying that there was a concurring or dissenting opinion in Shapiro where the Judge said that this case now applies to business records. However, it can be put to its extreme in our experience that given the type of opportunities on statutes. It can be pushed to its limits. What I am saying in this case is it has been pushed to the limit that it is far beyond the business record designed to be ensure --
William J. Brennan, Jr.: Well, I thought that you have taken the position anyway, are you not, that because it was forged, it cannot fall within the required record statute?
John J. Cleary: Well, I would take yes, definitely, that difference, I think I have made a statement earlier that this is not the regular inquiry for a card. That we are dealing with a contraband item in that --
Speaker: (Voice Overlap) It was not a public record so there was not a kind of (Inaudible) the law that requires to proceed?
John J. Cleary: What is that --?
Speaker: That the law does require him to keep forged card?
John J. Cleary: That is right. Again the logical extreme. If I could comment briefly on the contentions we made concerning an equal important point, but a jurisdictional point, touched upon by Justice Stewart and that is the application of 18 U.S.C. 1546 to an alien’s registration receipt card. The card here serves as some type of entry document, but the document is a re-entry document. On the card there was a back portion where aliens living the country and re-enter with the alien registration receipt card. The contention made here is that the statute does not cover this particular card. The first one is that entry is distinguishable from re-entry and to the Court we cite the precedent of this Court in (Inaudible) case as interpreted by the McFarland, a Second Circuit’s opinion. Second point that we make is the regulatory characterization of the card by the immigration authority. There was a two categorization, registration card and evidence of registration. This card is secured within 30 days after entry into the United States, not at entry. That is our contention that the ambit and scope of 1546 was directed at those who would put forward some type of legal documentation to indicate lawful status in the United States. That is to say, false birth certificates or other items to give him the aura of legitimacy within the United States that this was not the intent of Congress. Further it can be easily reviewed by taking a look at the regulatory scheme, as Justice Marshall first defined it early and that is that there is a scheme of removal of those unlawfully in the United States who misconstrue the, so to speak, poem on the Statute of Liberty, who look for a better land as in this case, this defendant. And that at first is a voluntary return, no deportation necessary, a person can be returned with Government funds or without Government funds to Mexico. Two, deportation, three, unlawful entry under 8 U.S.C. 1325, first offense, $500.00, six months, second offense, two years, $1,000.00, next step will be 9 1326. The person who has been deported unlawfully returns, two years, $2,000.00. Then moving on, to the more serious ones, 1546 and we have the five years and then 1306 (c) and that is the one who counterfeits the alien registration receipt card. The further point is that within the statute we have a patent in consideration and that is that in the second paragraph of 1546, there are set forth a statute to deal with the counterfeiting of documents required, for instance, in 1306 of Title VIII (d), there is also a like provision dealing with counterfeiting but this time specifically dealing with alien registration receipt card. This counterfeiting provision does not meet our situation where we have only possession, but it is submitted by the defendant that if a specific statute deals with alien registration receipt card as others in the document required for entry and that both of this statutes were enacted as part of the same package legislation, Immigration Nationality Act, therefore, given affect for both statutory sections there is an inconsistency. Applying the principle of legacy , I think the only answer is that that this type of violation and it is treated that way in most ordinary cases even aggravated cases is no more than a misdemeanor under 8 U.S.C. 1325. The other arguments contended by respondent in this case dealt with the cert and that was the aggravating statute upon the entry into the premise under the excerpts of the United States, the Fourth Amendment protection is not complete. And that here, there can be no showing that the defendant who consented to this type of interrogation even though the agent might have the right to conduct that interrogation on the street or at their office, their going into his own home, there is no showing of that. They gained access by the use of the other of his other prisoners to pick your clothing that did not give him, the agent the right to conduct this type of criminal inquiry. The hearsay rule was a statement of Ms. Diana Varga. We do not take, so to speak, opposition to the public record exception which the Solicitor General wishes to contend. We contend that if the statement by the selective service file or other public documents made by the public official, they can come in as a traditional exception for the hearsay rule. However, what we do take exception with is, when there is a statement of a witness which is made and then becomes a part of the file and then the file is introduced, not much the whole file, but that statement is introduced and there is no showing of unavailability of the witness, we contend that that denies the right of confrontation. Further, the question of defense counsel, we were -- I was appointed in this case, I think approximately four days after the two witnesses, the last as to which has been deported back to Mexico beyond the reach of any type of subpoena. In my motion to dismiss the indictment, I alleged this prejudicial delay because here counsel was unable to effectively prepare this case by interrogating two key witnesses who would have very definite information as to the circumstances surrounding their consent to the INS agents to enter the apartment. The Government cite, U.S. versus Coleman in the reply brief which I reviewed on the Tuesday, but in reading that case, one can see that it is totally distinguishable because counsel in that case was appointed or re-countered his appearance in August, the man was not deported until the following January. In this case, my appointment followed the deportation. Two, in the Coleman case their was no showing that the prosecution was aware of the transportation. Here, the prosecutor was present in Court when the Court ordered remanded Linda Mendez for the INS for deportation. But I say that in this case, it was prejudicial, it was not speculative because it deals as one of the essential issues here in a sense.
Potter Stewart: You were appointed because this man was indigent. I am a little curious why should not an Illinois District Court appoint a man from San Diego, California?
John J. Cleary: Your Honor, I served as a member of the Federal Defendant Panel in Chicago. I was then the Deputy Director of Federal Defenders Project. I am now Director of the Federal Defenders, San Diego and this Court was kind enough to allow me continue to any point. (Voice Overlap)
Potter Stewart: MI know.
Warren E. Burger: This very -- has been moved in the interim, Mr. Cleary as you have, (Inaudible) you were appointed by the Court. You came here at our request and we thank you for your assistance to the Court and your assistance of course to the man you represent. Mr. Solicitor General, we will not ask you to decide your argument between Thursday and next Monday so we will let you begin afresh next Monday morning.