Held: The District Court properly considered, as one
factor in imposing consecutive sentences on petitioner who had
pleaded guilty to two counts of using a telephone to facilitate the
distribution of heroin, petitioner's refusal to cooperate with
Government officials investigating a related criminal conspiracy to
distribute heroin in which he was a confessed participant. Pp.
445 U. S.
556-562.
(a) No misinformation of constitutional magnitude was present in
this case; petitioner rebuffed repeated requests for his
cooperation over a period of three years, and concedes that
cooperation with the authorities is a "laudable endeavor" that
bears a "rational connection to a defendant's willingness to shape
up and change his behavior." By declining to cooperate, petitioner
rejected an obligation of community life that should be recognized
before rehabilitation can begin, and protected his former partners
in crime, thereby preserving his ability to resume criminal
activities upon release. Pp.
445 U. S.
556-558.
(b) Nor can petitioner's failure to cooperate be justified on
the basis of fears of physical retaliation and self-incrimination,
or on the ground that the District Court punished him for
exercising his Fifth Amendment privilege against
self-incrimination. These arguments were raised for the first time
in petitioner's appellate brief, neither petitioner nor his lawyer
having offered any explanation to the sentencing court, even though
it was known that petitioner's intransigency would be used against
him. Although the requirement of
Miranda v. Arizona,
384 U. S. 436, of
specific warnings creates a limited exception to the rule that the
privilege against self-incrimination is not self-executing, and
must be claimed, the exception does not apply outside the context
of the inherently coercive custodial interrogation for which it was
designed, and here there was no custodial interrogation. Petitioner
volunteered his confession at his first interview with
investigators, after
Miranda warnings had been given and
at a time when he was free to leave. For the next three years,
until the time when he received the sentence he now challenges,
neither he nor his counsel -- who were both fully apprised that the
extent of petitioner's cooperation could be expected to affect his
sentence -- ever claimed that petitioner's unwillingness to
cooperate
Page 445 U. S. 553
was based upon the right to remain silent or the fear of
self-incrimination. Pp.
445 U. S.
559-562.
195 U.S.App.D.C. 1, 600 F.2d 815, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, REHNQUIST, and
STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion,
post, p.
445 U. S. 562.
MARSHALL, J., filed a dissenting opinion,
post, p.
445 U. S.
563.
MR JUSTICE POWELL delivered the opinion of the Court.
The question is whether the District Court properly considered,
as one factor in imposing sentence, the petitioner's refusal to
cooperate with officials investigating a criminal conspiracy in
which he was a confessed participant.
I
Petitioner Winfield Roberts accompanied Cecilia Payne to the
office of the United States Attorney for the District of Columbia
one day in June, 1975. Government surveillance previously had
revealed that a green Jaguar owned by Payne was used to transport
heroin within the District. Payne told investigators that she
occasionally lent the Jaguar to petitioner, who was waiting outside
in the hall. At Payne's suggestion, the investigators asked
petitioner if he would answer some questions. Although petitioner
was present voluntarily, the investigators gave him the warnings
required by
Miranda v. Arizona, 384 U.
S. 436 (1966). They also told him that he
Page 445 U. S. 554
was free to leave. When petitioner indicated that he would stay,
the investigators asked whether he knew "Boo" Thornton, then the
principal target of the heroin investigation. Petitioner admitted
that he had delivered heroin to Thornton on several occasions.
Confessing also that he had discussed drug transactions with
Thornton in certain intercepted telephone conversations, petitioner
explained the meaning of code words used in the conversations. When
asked to name suppliers, however, petitioner gave evasive answers.
Although the investigators warned petitioner that the extent of his
cooperation would bear on the charges brought against him, he
provided no further information.
Petitioner was indicted on one count of conspiring to distribute
heroin, 21 U.S.C. § § 841, 846, and four counts of using a
telephone to facilitate the distribution of heroin, 21 U.S.C. §
843(b). [
Footnote 1] He
retained a lawyer, who rejected the Government's continued efforts
to enlist petitioner's assistance. In March, 1976, petitioner
entered a plea of guilty to the conspiracy count and received a
sentence of 4 to 15 years' imprisonment, 3 years' special parole,
and a $5,000 fine. The Court of Appeals vacated the conviction on
the ground that the terms of the plea agreement were inadequately
disclosed to the District Court.
United States v. Roberts,
187 U.S.App.D.C. 90, 570 F.2d 999 (1977).
On remand, petitioner pleaded guilty to two counts of telephone
misuse under an agreement that permitted the Government to seek a
substantial sentence. The Government filed a memorandum
recommending two consecutive sentences of 16 to 48 months each and
a $5,000 fine. [
Footnote 2] The
memorandum cited petitioner's previous conviction for 10 counts of
bank robbery, his voluntary confession, and his subsequent
Page 445 U. S. 555
refusal to name suppliers. The memorandum also emphasized the
tragic social consequences of the heroin trade. Since petitioner
was not himself an addict and had no familial responsibilities, the
Government theorized that he sold heroin to support his extravagant
lifestyle while unemployed and on parole. The Government concluded
that stern sentences were necessary to deter those who would
traffic in deadly drugs for personal profit.
At the sentencing hearing, defense counsel noted that petitioner
had been incarcerated for two years pending appeal and that
codefendant Thornton had been sentenced to probation. Counsel
argued that petitioner should receive concurrent sentences that
would result in his immediate release. He directed the court's
attention to petitioner's voluntary confession, explaining that
petitioner had refused to identify other members of the conspiracy
because he "wasn't that involved in it." App. 30. The prosecutor
responded that the request for probation was "ironic" in light of
petitioner's refusal to cooperate in the investigation over the
course of "many, many years, knowing what he faces."
Id.
at 36. Thus, the Government could not ask the court "to take into
account some extenuating and mitigating circumstances, that the
defendant has cooperated. . . ."
Ibid. Stressing the
seriousness of the offense and the absence of excuse or mitigation,
the Government recommended a substantial prison term.
The District Court imposed consecutive sentences of one to four
years on each count and a special parole term of three years, but
it declined to impose a fine. The court explained that these
sentences were appropriate because petitioner was on parole from a
bank robbery conviction at the time of the offenses, and because he
was a dealer who had refused to cooperate with the Government.
[
Footnote 3] Petitioner again
appealed,
Page 445 U. S. 556
contending for the first time that the sentencing court should
not have considered his failure to cooperate. The Court of Appeals
for the District of Columbia Circuit vacated the special parole
term, but otherwise affirmed the judgment. 195 U.S.App.D.C. 1, 600
F.2d 815 (1979). We granted certiorari, 444 U.S. 822 (1979), and we
now affirm.
II
The principles governing criminal sentencing in the United
States district courts require no extensive elaboration. Congress
has directed that
"[n]o limitation shall be placed on the information concerning
the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence."
18 U.S.C. § 3577.
See also 21 U.S.C. § 850. This Court
has reviewed in detail the history and philosophy of the modern
conception that "the punishment should fit the offender, and not
merely the crime."
Williams v. New York, 337 U.
S. 241,
337 U. S. 247
(1949);
see United States v. Grayson, 438 U. S.
41,
438 U. S. 45-50
(1978). Two Terms ago, we reaffirmed the "fundamental sentencing
principle" that
"'a judge may appropriately conduct an inquiry broad in scope,
largely unlimited either as to the kind of information he may
consider or the source from which it may come.'"
Id. at
438 U. S. 50,
quoting
United States v. Tucker, 404 U.
S. 443,
404 U. S. 446
(1972).
See also Pennsylvania v. Ashe, 302 U. S.
51,
302 U. S. 55
(1937). We have, however, sustained due process objections to
sentences imposed on the basis of "misinformation of constitutional
magnitude."
United States v. Tucker, supra at
404 U. S. 447;
see Townsend v. Burke, 334 U. S. 736,
334 U. S.
740-741 (1948).
Page 445 U. S. 557
No such misinformation was present in this case. The sentencing
court relied upon essentially undisputed facts. There is no
question that petitioner rebuffed repeated requests for his
cooperation over a period of three years. Nor does petitioner
contend that he was unable to provide the requested assistance.
Indeed, petitioner concedes that cooperation with the authorities
is a "laudable endeavor" that bears a "rational connection to a
defendant's willingness to shape up and change his behavior. . . ."
Brief for Petitioner 17. [
Footnote
4] Unless a different explanation is provided, a defendant's
refusal to assist in the investigation of ongoing crimes gives rise
to an inference that these laudable attitudes are lacking.
It hardly could be otherwise. Concealment of crime has been
condemned throughout our history. The citizen's duty to "raise the
hue and cry' and report felonies to the authorities,"
Branzburg v. Hayes, 408 U. S. 665,
408 U. S. 696
(1972), was an established tenet of Anglo-Saxon law at least as
early as the 13th century. 2 W. Holdsworth, History of English Law
101-102 (3d ed.1927); 4 id. at 521-522; see
Statute of Westminster First, 3 Edw. 1, ch. 9, p 43
(1275);
Page 445 U. S. 558
Statute of Westminster Second, 13 Edw. 1, chs. 1, 4, and 6, pp.
112-115 (1285). The first Congress of the United States enacted a
statute imposing criminal penalties upon anyone who,
"having knowledge of the actual commission of [certain
felonies,] shall conceal, and not as soon as may be disclose and
make known the same to [the appropriate] authority. . . ."
Act of Apr. 30, 1790, § 6, 1 Stat. 113. [
Footnote 5] Although the term "misprision of felony"
now has an archaic ring, gross indifference to the duty to report
known criminal behavior remains a badge of irresponsible
citizenship.
This deeply rooted social obligation is not diminished when the
witness to crime is involved in illicit activities himself. Unless
his silence is protected by the privilege against
self-incrimination,
see 445 U. S.
infra, the criminal defendant, no less than any other
citizen, is obliged to assist the authorities. The petitioner, for
example, was asked to expose the purveyors of heroin in his own
community in exchange for a favorable disposition of his case. By
declining to cooperate, petitioner rejected an "obligatio[n] of
community life" that should be recognized before rehabilitation can
begin.
See Hart, The Aims of the Criminal Law, 23 Law
& Contemp.Prob. 401, 437 (1958). Moreover, petitioner's refusal
to cooperate protected his former partners in crime, thereby
preserving his ability to resume criminal activities upon release.
Few facts available to a sentencing judge are more relevant to
"'the likelihood that [a defendant] will transgress no more, the
hope that he may respond to rehabilitative efforts to assist with a
lawful future career, [and] the degree to which he does or does not
deem himself at war with his society.'"
United States v. Grayson, supra at
438 U. S. 51,
quoting
United States v. Hendrix, 505 F.2d 1233, 1236 (CA2
1974).
Page 445 U. S. 559
III
Petitioner does not seriously contend that disregard for the
obligation to assist in a criminal investigation is irrelevant to
the determination of an appropriate sentence. He rather contends
that his failure to cooperate was justified by legitimate fears of
physical retaliation and self-incrimination. In view of these
concerns, petitioner asserts that his refusal to act as an informer
has no bearing on his prospects for rehabilitation. He also
believes that the District Court punished him for exercising his
Fifth Amendment privilege against self-incrimination.
These arguments would have merited serious consideration if they
had been presented properly to the sentencing judge. But the mere
possibility of unarticulated explanations or excuses for antisocial
conduct does not make that conduct irrelevant to the sentencing
decision. The District Court had no opportunity to consider the
theories that petitioner now advances, for each was raised for the
first time in petitioner's appellate brief. Although petitioner
knew that his intransigency would be used against him, neither he
nor his lawyer offered any explanation to the sentencing court.
Even after the prosecutor observed that the failure to cooperate
could be viewed as evidence of continuing criminal intent,
petitioner remained silent.
Petitioner insists that he had a constitutional right to remain
silent, and that no adverse inferences can be drawn from the
exercise of that right. We find this argument singularly
unpersuasive. The Fifth Amendment privilege against compelled
self-incrimination is not self-executing. At least where the
Government has no substantial reason to believe that the requested
disclosures are likely to be incriminating, the privilege may not
be relied upon unless it is invoked in a timely fashion.
Garner
v. United States, 424 U. S. 648,
424 U. S.
653-655 (1976);
United States v. Kordel,
397 U. S. 1,
397 U. S. 7-10
(1970);
see United States v. Mandujano, 425 U.
S. 564,
425 U. S.
574-575 (1976)
Page 445 U. S. 560
(opinion of BURGER, C.J.);
id. at
425 U. S.
591-594 (BRENNAN, J., concurring in judgment). [
Footnote 6]
In this case, as in
Vajtauer v. Commissioner of
Immigration, 273 U. S. 103,
273 U. S. 113
(1927), petitioner
"did not assert his privilege or in any manner suggest that he
withheld his testimony because there was any ground for fear of
self-incrimination. His assertion of it here is evidently an
afterthought."
The Court added in
Vajtauer that the privilege "must be
deemed waived if not in some manner fairly brought to the attention
of the tribunal which must pass upon it."
Ibid. Thus, if
petitioner believed that his failure to cooperate was privileged,
he should have said so at a time when the sentencing court could
have determined whether his claim was legitimate. [
Footnote 7]
Petitioner would avoid the force of this elementary rule by
arguing that
Miranda warnings supplied additional
protection for his right to remain silent. But the right to silence
described in those warnings derives from the Fifth Amendment, and
adds nothing to it. Although
Miranda's requirement of
specific warnings creates a limited exception to the rule that the
privilege must be claimed, the exception does not apply outside the
context of the inherently coercive custodial interrogations for
which it was designed. The warnings protect persons who, exposed to
such interrogation without the assistance of counsel, otherwise
might be unable
Page 445 U. S. 561
to make a free and informed choice to remain silent.
Miranda
v. Arizona, 384 U.S. at
384 U. S.
475-476;
see Garner v. United States, supra at
424 U. S. 657.
[
Footnote 8]
There was no custodial interrogation in this case. Petitioner
volunteered his confession at his first interview with
investigators in 1975, after
Miranda warnings had been
given and at a time when he was free to leave. He does not claim
that he was coerced. [
Footnote
9] Thereafter, petitioner was represented by counsel who was
fully apprised -- as was petitioner -- that the extent of
petitioner's cooperation could be expected to affect his sentence.
Petitioner did not receive the sentence he now challenges until
1978. During this entire period, neither petitioner nor his lawyer
ever claimed that petitioner's unwillingness to provide information
vital to law enforcement was based upon the right to remain silent
or the fear of self-incrimination.
Petitioner has identified nothing that might have impaired his
"
free choice to admit, to deny, or to refuse to answer.'"
Garner v. United States, supra at 424 U. S. 657,
quoting Lisenba v. California, 314 U.
S. 219, 314 U. S. 241
(1941). His conduct bears no resemblance to the "insolubly
ambiguous" post-arrest silence that may be induced by the
assurances contained in Miranda warnings. Cf. Doyle v.
Ohio, 426 U. S. 610,
426 U. S.
617-618 (1976). We conclude that the District Court
committed no constitutional error. If we were to invalidate
petitioner's sentence on the record before us, we would sanction an
unwarranted interference with a function traditionally vested in
the trial courts. See Dorszynski v. United States,
418 U. S. 424,
418 U. S.
440-441
Page 445 U. S. 562
(1974). [
Footnote 10]
Accordingly, the judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
Petitioner's intercepted conversations with Thornton apparently
could have provided the basis for 13 counts of unlawful use of a
telephone. App. 36.
[
Footnote 2]
The maximum sentence on each count was four years' imprisonment
and a $30,000 fine. 21 U.S.C. § 843(c).
[
Footnote 3]
Before imposing sentence, the court explained:
"Mr. Roberts, we have considered your case very carefully. We
have noted again you were on parole from a bank robbery conviction,
which you have had prior involvement with the law. In this case,
you were clearly a dealer, but you had an opportunity, and failed
to cooperate with the Government."
App. 40.
[
Footnote 4]
See, e.g., ABA Project on Standards for Criminal
Justice, Pleas of Guilty § 1.8(a)(v) (App. Draft 1968);
id. at 48-49; Lumbard, Sentencing and Law Enforcement, 40
F.R.D. 406, 413-414 (1966);
cf. R. Cross, The English
Sentencing System 170 (2d ed.1975).
We doubt that a principled distinction may be drawn between
"enhancing" the punishment imposed upon the petitioner and denying
him the "leniency" he claims would be appropriate if he had
cooperated. The question for decision is simply whether
petitioner's failure to cooperate is relevant to the currently
understood goals of sentencing. We do note, however, that Judge
MacKinnon, author of the opinion reversing petitioner's first
conviction, observed on the basis of his "complete familiarity with
the facts of this entire case" that the petitioner's current
sentence is a "very light" one. 195 U.S.App.D.C. 1, 9, 600 F.2d
815, 823 (1979) (separate statement on denial of rehearing en
banc). The sentence of two to eight years' imprisonment certainly
was not a severe penalty for a "substantial drug distributor,"
ibid., who plied his trade while on parole from a prior
conviction for bank robbery.
[
Footnote 5]
The statute, as amended, is still in effect. 18 U.S.C. § 4. It
has been construed to require "both knowledge of a crime and some
affirmative act of concealment or participation."
See Branzburg
v. Hayes, 408 U. S. 665,
408 U. S. 696,
n. 36 (1972).
[
Footnote 6]
The Court recognized in
Garner v. United States, 424
U.S. at
424 U. S.
656-657, that this rule is subject to exception when
some coercive factor prevents an individual from claiming the
privilege or impairs his choice to remain silent. No such factor
has been identified in this case.
See infra at
445 U. S.
561.
[
Footnote 7]
See Garner v. United States, supra at
424 U. S. 658,
n. 11;
Hoffman v. United States, 341 U.
S. 479,
341 U. S. 486
(1951);
Mason v. United States, 244 U.
S. 362,
244 U. S.
364-366 (1917);
United States v. Vermeulen, 436
F.2d 72, 76-77 (CA2 1970),
cert. denied, 402 U.S. 911
(1971). It is the duty of a court to determine the legitimacy of a
witness' reliance upon the Fifth Amendment.
Rogers v. United
States, 340 U. S. 367,
340 U. S.
374-375 (1951). A witness may not employ the privilege
to avoid giving testimony that he simply would prefer not to
give.
[
Footnote 8]
In
United States v. Washington, 431 U.
S. 181,
431 U. S. 187,
n. 5 (1977), the Court explained that
"[a]ll
Miranda's safeguards, which are designed to
avoid the coercive atmosphere, rest on the overbearing compulsion
which the Court thought was caused by isolation of a suspect in
police custody."
[
Footnote 9]
The District Court found that petitioner freely waived his
Miranda rights when he first confessed his involvement in
the conspiracy. Tr. 40 (Oct. 17, 1975);
see App. 16, n.
4.
[
Footnote 10]
The dissenting opinion asserts that the record reflects an
"improper involvement of the judicial office in the prosecutorial
function."
Post at
445 U. S. 567.
We find no basis for this contention. The District Court did not
participate in the plea-bargaining process; it merely undertook a
retrospective review of petitioner's character, record, and
criminal conduct in accordance with applicable law. 18 U.S.C. §
3577; Fed.Rule Crim.Proc. 32(c). And a defendant who failed even to
raise the possibility of self-incrimination or retaliation over a
course of three years is hardly in a position to complain that he
was "put to an unfair choice."
Post at
445 U. S.
568.
MR. JUSTICE BRENNAN, concurring.
I join the Court's opinion.
The principal divisive issue in this case is whether
petitioner's silence should have been understood to imply continued
solicitude for his former criminal enterprise, rather than
assertion of the Fifth Amendment right against self-incrimination
or fear of retaliation. I agree with the Court that the trial judge
cannot be faulted for drawing a negative inference from
petitioner's noncooperation when petitioner failed to suggest that
other, neutral, inferences were available. And because the
Government questioning to which he failed to respond was not
directed at incriminating him, petitioner may not stand upon a
Fifth Amendment privilege that he never invoked at the time of his
silence.
See United States v. Mandujano, 425 U.
S. 564,
425 U. S.
589-94 (1976) (BRENNAN, J., concurring in judgment);
Garner v. United States, 424 U. S. 648,
424 U. S.
655-661 (1976);
Vajtauer v. Commissioner of
Immigration, 273 U. S. 103,
273 U. S. 113
(1927).
*
Page 445 U. S. 563
Nevertheless, the problem of drawing inferences from an
ambiguous silence is troubling. As a matter of due process, an
offender may not be sentenced on the basis of mistaken facts or
unfounded assumptions.
Townsend v. Burke, 334 U.
S. 736,
334 U. S.
740-741 (1948);
see United States v. Grayson,
438 U. S. 41,
438 U. S. 55
(1978) (STEWART, J., dissenting) (collateral inquiry may be
required before sentence is enhanced because of trial judge's
unreviewable impression that defendant perjured himself at trial).
It is of comparable importance to assure that a defendant is not
penalized on the basis of groundless inferences. At the least,
sentencing judges should conduct an inquiry into the circumstances
of silence where a defendant indicates before sentencing that his
refusal to cooperate is prompted by constitutionally protected, or
morally defensible, motives. Furthermore, especially where
conviction is based upon a guilty plea, it may be advisable for
trial judges to raise the question of motive themselves when
presented with a prosecutorial recommendation for severity due to
an offender's noncooperation. During the Rule 32 allocution before
sentencing, Fed.Rule Crim. Proc. 32(a)(1), the defendant could be
asked on the record whether he has a reasonable explanation for his
silence; if a justification were proffered, the judge would then
proceed to determine its veracity and reasonableness. Such an
allocution procedure would reduce the danger of erroneous inference
and provide a record to support sentencing against subsequent
challenge.
Cf. McCarthy v. United States, 394 U.
S. 459,
394 U. S.
466-467 (1969) (Fed.Rule Crim.Proc. 11 allocution
procedure).
* When the Government actually seeks to incriminate the subject
of questioning, failure to invoke the Fifth Amendment privilege is
reviewed under the stringent "knowing and completely voluntary
waiver" standard.
United States v. Mandujano, 425 U.S. at
425 U. S. 593
(BRENNAN, J., concurring in judgment). But when it is only the
subject who is reasonably aware of the incriminating tendency of
the questions, it is his responsibility to put the Government on
notice by formally availing himself of the privilege.
Id.
at
425 U. S.
589-594;
Garner v. United States, 424 U.S. at
424 U. S. 655.
At that point, the Government may either cease questioning or
continue under a grant of immunity.
MR. JUSTICE MARSHALL, dissenting.
The Court today permits a term of imprisonment to be increased
because of a defendant's refusal to identify others
Page 445 U. S. 564
involved in criminal activities -- a refusal that was not
unlawful and that may have been motivated by a desire to avoid
self-incrimination or by a reasonable fear of reprisal. I do not
believe that a defendant's failure to inform on others may properly
be used to aggravate a sentence of imprisonment, and accordingly, I
dissent.
The majority does not dispute that a failure to disclose the
identity of others involved in criminal activity may often stem
from a desire to avoid self-incrimination. This case is an
excellent illustration of that possibility. The prosecutor asked
petitioner
"to identify the person or persons from whom he was getting the
drugs, and the location, and to lay out the conspiracy and identify
other coconspirators who were involved with them."
App. 36. Disclosure of this information might well have exposed
petitioner to prosecution on additional charges. [
Footnote 2/1] He was never offered immunity from
such prosecution. Petitioner's right to refuse to incriminate
himself on additional charges was not, of course, extinguished by
his guilty plea.
There can be no doubt that a judge would be barred from
increasing the length of a jail sentence because of a defendant's
refusal to cooperate based on the constitutional privilege against
self-incrimination. In such a case, the threat of a longer sentence
of imprisonment would plainly be compulsion within the meaning of
the Fifth Amendment.
Cf. McGautha v. California,
402 U. S. 183
(1971). Such an aggravation of sentence would amount to an
impermissible penalty imposed solely because of the defendant's
assertion of the Fifth Amendment privilege.
Page 445 U. S. 565
I also believe that it would be an abuse of discretion for a
judge to use a defendant's refusal to become an informer to
increase the length of a sentence when the refusal was motivated by
a fear of retaliation. [
Footnote
2/2] In such a case, the failure to identify other participants
in the crime is irrelevant to the defendant's prospects for
rehabilitation,
see ante at
445 U. S. 558,
and bears no relation to any of the legitimate purposes of
sentencing.
See United States v. Grayson, 438 U. S.
41 (1978);
United States v. Tucker,
404 U. S. 443
(1972).
In this case, then, petitioner's refusal to provide the
requested information was lawful, [
Footnote 2/3] and may have been motivated by the
possibility of self-incrimination or a reasonable fear of reprisal.
The majority acknowledges that these claims "would have merited
serious consideration if they had been presented properly to the
sentencing judge."
Ante at
445 U. S. 559.
Because petitioner did not expressly state these grounds to
Page 445 U. S. 566
the sentencing judge, however, the Court indulges the assumption
that petitioner's refusal was motivated by a desire to "preserv[e]
his ability to resume criminal activities upon release."
Ante at
445 U. S. 558.
I am at a loss to discern any evidentiary basis for this
assumption. [
Footnote 2/4] And I
reject the Court's harsh and rigid approach to the issue of waiver,
especially in a context in which it was hardly clear that reasons
for petitioner's failure to cooperate had to be identified before
the sentencing judge. [
Footnote
2/5]
Page 445 U. S. 567
Furthermore, the bare failure to cooperate in an investigation
of others cannot, without further inquiry, justify a conclusive
negative inference about "the meaning of that conduct with respect
to [the defendant's] prospects for rehabilitation and restoration
to a useful place in society."
United States v. Grayson,
supra at
438 U. S. 55. A
fear of reprisal against one's self or one's family or a desire to
avoid further self-incrimination are equally plausible explanations
for such conduct. Even the desire to "do his own time" without
becoming a police informer might explain petitioner's behavior
without necessarily indicating that he intended to "resume criminal
activities upon [his] release."
Ante at
445 U. S. 558.
The inference that petitioner was a poor candidate for
rehabilitation could not be justified without additional
information. [
Footnote 2/6]
The enhancement of petitioner's sentence, then, was
impermissible because it may have burdened petitioner's exercise of
his constitutional rights or been based on a factor unrelated to
the permissible goals of sentencing. In addition, it represented an
improper involvement of the judicial office in the prosecutorial
function that should be corrected through our supervisory power
over the federal courts. [
Footnote
2/7]
Page 445 U. S. 568
The usual method for obtaining testimony which may be
self-incriminatory is through a grant of immunity from prosecution.
See 18 U.S.C. § 6001
et seq. (1976 ed. and Supp.
II). Prosecutors would have little incentive to offer defendants
immunity for their testimony if they could achieve the same result
without giving up the option to prosecute. There is no suggestion
here that an offer of immunity was ever extended to petitioner. If
a defendant knows his silence may be used against him to enhance
his sentence, he may be put to an unfair choice. He must either
give incriminating information, with no assurance that he will not
be prosecuted on the basis of that information, or face the
possibility of an increased sentence because of his noncooperation.
Since a prosecutor may overcome a Fifth Amendment claim through an
offer of immunity, I see no reason to put defendants to such a
choice.
A second method available to the prosecutor for obtaining a
defendant's testimony against others is the plea bargaining
process. The Court has upheld that process on the theory that the
relative equality of bargaining power between the prosecutor and
the defendant prevents the process from being fundamentally unfair.
Santobello v. New York, 404 U. S. 257,
404 U. S. 261
(1971). But if the judge can be counted on to increase the
defendant's sentence if he fails to cooperate, the balance of
bargaining power is tipped in favor of the prosecution. Not only is
the prosecutor able to offer less in exchange for cooperation, but
a defendant may agree for fear of incurring the displeasure of the
sentencing judge. To insure that defendants will not be so
intimidated into accepting plea bargains,
Page 445 U. S. 569
federal judges are forbidden from participating in the
bargaining process.
See Fed.Rule Crim. Proc 11(e)(1); ABA
Project on Standards for Criminal Justice, Pleas of Guilty § 3.3(a)
(App. Draft 1968). As Judge Bazelon observed below:
"The trial judge, whose impartiality is a cornerstone of our
criminal justice system, may be tempted, under the guise of
exercising discretion in sentencing[,] to join forces with the
prosecutor in securing the defendant's cooperation."
195 U.S.App.D.C. 1, 3, 60 F.2d 815, 817 (1979). I do not believe
that we should allow that possibility.
I find disturbing the majority's willingness to brush aside
these serious objections to the propriety of petitioner's sentence
on the strength of "the duty to report known criminal behavior,"
ante at
445 U. S. 558.
According to the Court, petitioner's refusal to become an informer
was a rejection of a "deeply rooted social obligation,"
ibid. All citizens apparently are "obliged to assist the
authorities" in this way, and petitioner's failure to do so was not
only "a badge of irresponsible citizenship," but constituted
"antisocial conduct" as well.
Ante at
445 U. S. 558,
445 U. S.
559.
The Court supports its stern conclusions about petitioner's
civic duty only by reference to the concepts of "hue and cry" and
"misprision of felony." Those concepts were developed in an era in
which enforcement of the criminal law was entrusted to the general
citizenry, rather than to an organized police force. [
Footnote 2/8] But it is unnecessary to
discuss in detail the historical context of such concepts, so
different from our present-day society, in order to reject the
Court's analysis. American society has always approved those who
own up to their wrongdoing and vow to do better, just as it has
admired those who come to the aid of the victims of criminal
conduct. But our admiration of those who inform on others
Page 445 U. S. 570
has never been as unambiguous as the majority suggests. The
countervailing social values of loyalty and personal privacy have
prevented us from imposing on the citizenry at large a duty to join
in the business of crime detection. If the Court's view of social
mores were accurate, it would be hard to understand how terms such
as "stool pigeon," "snitch," "squealer," and "tattletale" have come
to be the common description of those who engage in such
behavior.
I do not, of course, suggest that those who have engaged in
criminal activity should refuse to cooperate with the authorities.
The informer plays a vital role in the struggle to check crime,
especially the narcotics trade. We could not do without him. In
recognition of this role, it is fully appropriate to encourage such
behavior by offering leniency in exchange for "cooperation."
[
Footnote 2/9] Cooperation of that
sort may
Page 445 U. S. 571
be a sign of repentance and the beginning of rehabilitation.
[
Footnote 2/10] But our
Government has allowed its citizens to decide for themselves
whether to enlist in the enterprise of enforcing the criminal laws;
it has never imposed a duty to do so, as the Court's opinion
suggests. I find no justification for creating such a duty in this
case and applying it only to persons about to be sentenced for a
crime.
In fact, the notion that citizens may be compelled to become
informers is contrary to my understanding of the fundamental nature
of our criminal law. Some legal systems have been premised on the
obligation of an accused to answer all questions put to him. In
other societies, law-abiding behavior is encouraged by penalizing
citizens who fail to spy on their neighbors or report infractions.
Our country, thankfully, has never chosen that path. As highly as
we value the directives
Page 445 U. S. 572
of our criminal laws, we place their enforcement in the hands of
public officers, and we do not give those officers the authority to
impress the citizenry into the prosecutorial enterprise. By today's
decision, the Court ignores this precept, and it does so in a
setting that both threatens Fifth Amendment rights and encourages
arbitrary and irrational sentencing.
[
Footnote 2/1]
The prosecutor stated at the sentencing hearing that the
Government's initial offer of leniency in exchange for petitioner's
cooperation was made on the assumption that he was a relatively
minor figure in the conspiracy. The Government argued for lengthy
consecutive sentences, however, because "we were shown to be wrong"
about that assumption. It seems plain that, if petitioner had
provided the information requested, he would have incriminated
himself on additional charges.
[
Footnote 2/2]
In determining whether a refusal to cooperate can be taken into
consideration when based on a fear of reprisal, the relevant
inquiry, of course, is whether the defendant in fact has a
subjective fear, not whether the fear is objectively reasonable. It
is when the defendant is actually afraid of reprisal that his
failure to cooperate has no relevance to the legitimate purpose of
sentencing.
[
Footnote 2/3]
The Court refers to the ancient offense of misprision of felony,
ante at
445 U. S.
557-558, but, as its own discussion shows, petitioner
could not have been punished under 18 U.S.C. § 4.
See ante
at
445 U. S. 558,
n. 5. The Government has never contended that petitioner's behavior
was other than lawful. A discussion of the continued vitality of
laws making it a crime to fail to report criminal behavior is
unnecessary to this case; I observe only that such laws have fallen
into virtually complete disuse, a development that reflects a
deeply rooted social perception that the general citizenry should
not be forced to participate in the enterprise of crime detection.
See Note, 27 Hastings L.J. 175, 181-187 (1975); Note, 23
Emory L.J. 1095 (1974),
Cf. Glazebrook, Misprision of
Felony -- Shadow or Phantom?, 8 Am.J.Legal Hist. 189, 283 (1964).
As Mr. Chief Justice Marshall stated:
"It may be the duty of a citizen to accuse every offender, and
to proclaim every offense which comes to his knowledge; but the law
which would punish him in every case for not performing this duty
is too harsh for man."
Marbury v
Brooks, 7 Wheat. 556,
20 U. S.
575-576 (1822) .
[
Footnote 2/4]
Indeed, the record hardly supports the Court's characterization
of petitioner's behavior as "intransigency."
Ante at
445 U. S. 559.
Except for his refusal to identify additional participants,
petitioner was quite helpful. He voluntarily accompanied Ms. Payne
to the office of the United States Attorney. At that time, as the
Government conceded at the sentencing hearing, "we had no idea of
the identity of who it was who was using that green Jaguar
automobile to ferry narcotics about the city." App. 35. Ms. Payne
said she lent the car to petitioner, and he agreed to be
interviewed. At that initial interview, he confessed, implicated a
coconspirator, and voluntarily explained the meaning of code words
used in the conspiracy.
The Court also relies on Judge MacKinnon's assertion that the
sentence was "very light" for a "substantial drug distributor."
Ante at
445 U. S. 557,
n. 4. Of course, petitioner did not plead guilty to conspiracy or
to distribution of heroin, but to two counts of unlawful use of a
telephone to facilitate the distribution of heroin. Each count was
punishable by a maximum of four years' imprisonment and a $30,000
fine, and petitioner was sentenced to consecutive 1- to 4-year
terms. At the sentencing hearing, petitioner's counsel stated that
he had been unable to find a single case "in which any federal
judge has ever given consecutive sentences for two or more phone
counts." App. 28. The Government has never challenged this
assertion.
[
Footnote 2/5]
The sentencing hearing took place on April 21, 1978. At that
time, there was no settled law on the question whether failure to
cooperate could be considered as an aggravating factor in
sentencing.
Compare United States v. Garcia, 544 F.2d 681,
684-686 (CA3 1976) (improper factor),
and United States v.
Rogers, 504 F.2d 1079 (CA5 1974) (same),
with United
Slates v. Chaidez-Castro, 430 F.2d 766 (CA7 1970) (proper
factor). Nor was there any rule that a defendant was required to
identify reasons for his failure to cooperate. For the Court to
hold in these circumstances that the defendant's silence amounted
to "an intentional relinquishment or abandonment of a known right
or privilege,"
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S. 464
(1938), seems to me extraordinarily stern in light of the Court's
traditional indulgence of "
every reasonable presumption against
waiver' of fundamental constitutional rights." Ibid.
(citation omitted).
[
Footnote 2/6]
In this respect, petitioner's conduct was quite different from
the deliberate perjury involved in
United States v.
Grayson, 438 U. S. 41
(1978). Perjury is itself a serious crime, a "
manipulative
defiance of the law,'" id. at 438 U. S. 51,
quoting United States v. Hendrix, 505 F.2d 1233, 1236 (CA2
1974), that corrupts the trial process.
[
Footnote 2/7]
As the Court notes, 18 U.S.C. § 3577 provides that
"[n]o limitation shall be placed on the information . . . which
a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence."
This statute, however, was merely a codification of the
sentencing standards set forth in
Williams v. New York,
337 U. S. 241
(1949). Nothing in the statute or its legislative history suggests
a congressional intention to overturn or limit this Court's
historic powers of supervision over the conduct of criminal cases
in the federal courts.
See Mesarosh v. United States,
352 U. S. 1,
352 U. S. 14
(1956). There is no warrant for the conclusion that 18 U.S.C. §
3577, which was designed to codify existing judicial practices,
operates as a bar to the use of those supervisory powers to
safeguard the Fifth Amendment privilege or to protect against
irrational sentencing.
[
Footnote 2/8]
Cf. F. Pollock & F. Maitland, The History of
English Law 582-583 (2d ed.1909).
[
Footnote 2/9]
The majority expresses
"doubt that a principled distinction may be drawn between
'enhancing' the punishment imposed upon the petitioner and denying
him the 'leniency' he claims would be appropriate if he
cooperated."
Ante at
445 U. S. 557,
n. 4. But as Judge Lumbard has stated:
"It is one thing to extend leniency to a defendant who is
willing to cooperate with the government; it is quite another thing
to administer additional punishment to a defendant who, by his
silence, has committed no additional offense."
United States v. Ramos, 572 F.2d 360, 363, n. 2 (CA2
1978) (concurring opinion). At the most, the distinction may be
difficult to administer; it is certainly a principled one,
appearing in similar form in several areas of the law. For example,
a distinction has been recognized between extending leniency to a
defendant who pleads guilty and augmenting the sentence of a
defendant who elects to stand trial.
See, e.g., United States
v. Araujo, 539 F.2d 287 (CA2 1976);
United States v.
Derrick, 519 F.2d 1 (CA6 1975);
United States v.
Stockwell, 472 F.2d 1186 (CA9 1973);
United States v.
Thompson, 476 F.2d 1196, 1201 (CA7 1973);
Scott v. United
States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969). Writing for
the Court, MR. JUSTICE POWELL relied in
Maher v. Roe,
432 U. S. 464,
432 U. S.
475-477 (1977), on a closely analogous distinction
"between direct state interference with a protected activity and
state encouragement of an alternative activity consonant with
legislative policy."
(In certain circumstances, of course, "state encouragement of an
alternative activity" may also be constitutionally impermissible.
See id. at
432 U. S.
482-490 (BRENNAN, J., dissenting);
id. at
432 U. S. 454-462
(MARSHALL, J., dissenting). In this case, however, it is agreed
that no constitutional objection would be raised by an offer of
leniency made to induce cooperation on the part of a
defendant.)
[
Footnote 2/10]
Petitioner agrees that the extent of a defendant's cooperation
with prosecuting authorities may be taken into account in granting
leniency. Cooperation, like confession, may be relevant to whether
the defendant has taken an initial step toward rehabilitation. The
corollary inference, however, that failure to inform on others
means that rehabilitation is unlikely, does not necessarily follow.
As the United States Court of Appeals for the Second Circuit has
explained in a similar setting:
"[W]hile it is true that a defendant's lack of desire for
rehabilitation may properly be considered in imposing sentence, to
permit the sentencing judge to infer such lack of desire from a
defendant's refusal to provide testimony would leave little force
to the rule that a defendant may not be punished for exercising his
right to remain silent. Moreover, we question how much a refusal to
testify indicates an absence of rehabilitative desire, given that
defendants often provide such testimony simply to get back at their
former associates or to obtain a better deal from the Government.
In any event, refusal to testify, particularly in narcotics cases,
is more likely to be the result of well founded fears of reprisal
to the witness or his family."
DiGiovanni v. United States, 596 F.2d 74, 75
(1979).