text:
Ira S. Siegler, Washington, D. C. (appointed by this court) was on the brief for appellant.
Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry, Thomas C. Green and John O'Brien Clarke, Jr., Asst. U. S. Attys., were on the brief for appellee.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges, sitting en banc.
The only issue before the court en banc in this appeal from a conviction of armed robbery (22 D.C.Code Sec. 2901) is whether the District Court erred in its conclusion that, on the evidence before it, the Government had sustained its burden of establishing a knowing waiver by appellant of his right to independent legal assistance after his arrest. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).
When the case was first before a panel of this court, a majority thought that a circumstance appearing in the prosecution's evidence at trial raised a doubt about the state of appellant's mind in making the seeming waiver, which warranted a remand for a supplementary inquiry. Frazier v. United States, 136 U. S.App.D.C. 180, 419 F.2d 1161 (1969), Circuit Judge (now Chief Justice) Burger, dissenting. On remand, an evidentiary hearing was held at which the Government presented testimony with respect to appellant's capacity to understand the proper warning concededly given him; and the District Court made findings of fact from which it concluded that such capacity existed. Although none of these findings were rejected by the panel on its second consideration of the case, a majority reversed the conviction in an opinion issued February 24, 1971, from which Judge Nichols of the United States Court of Claims, sitting by designation, dissented. We granted rehearing en banc because the sharp and persisting differences within the panel suggested that the case, although something of a sport on its facts, might have important implications with respect to judicial definition of the responsibilities of law enforcement officers in the administration of the Miranda rule. On the record made on remand, we sustain the District Court and affirm the conviction.
"I asked him if he knew that anything he said to us could be or would be used against him in court. And he stated that he did. He said, 'I know my rights.' "
Thereafter he signed the P.D. 54 consent form at 5:30 P.M.
A. I started to write. The defendant Frazier said, "No, don't put anything down." He said, "Don't write anything."
Q. How strenuous an objection was that, in your opinion?
A. Well, it wasn't-to me, it didn't seem like an objection. He just said, "Don't write." So, I didn't press it at that time.
A. Well, he was admitting these hold-ups and I didn't want to start arguing with him as long as he was talking about hold-ups. And he was apparently being very truthful, because he was telling me things about the hold-ups that I didn't know. I didn't want to stop him.
So, as soon as he said, "Don't write," I stopped writing and pushed the pad and pencil away.
Q. Lt. Keahon, during the noon recess did you have an opportunity to read from certain portions of the original trial transcript in this regard?
Q. And has that refreshed your recollection as to the events which took place in the afternoon of September 6, 1966?
Q. September 7, excuse me.
Going back to those events, sir, will you tell us at what point in your interview with the defendant, Mr. Frazier, did he request that you not write anything down?
A. It was when he started mentioning the High Store hold-up, after he was advised of his rights and after I had read him the arrest warrant about the robbery-hold-up that he was charged with under the warrant of Mike's Carry-Out Shop.
Q. Well, after you read to him P.D. Form 47 and after he had executed the Form 54, what was the first topic of conversation?
A. Well, I started talking to him about the Mike's Carry-Out Shop hold-up.
Q. At that point had you reached for a pad and pencil?
A. No, not at that time.
Q. Had the defendant said anything to you about refraining from taking notes at that time?
Q. Tell us, then, just what happened?
A. Well, it was after that. I don't know the exact conversation, but I was talking to him about Mike's Carry-Out.
He did mention something about that afternoon. And then he started saying, "Well, I don't care," something to that effect, and he started into the High's Store hold-up, where he said Teddy was involved and Teddy didn't shoot the woman; "I shot the woman."
At that time was when I did reach for the pad and started to take notes.
At that time he stated he didn't want any notes taken. He said, "Don't write anything down," something to that effect.
THE COURT: Was this before he mentioned anything about the Meridian Market?
THE WITNESS: Yes, I believe it was.
Detective Keahon testified that, in all, appellant told of several hold-ups and of one occasion on which he had shot his roommate. The woman who had been shot in the High's Store robbery was brought down to the office, and appellant reenacted the incident in such a way that he convinced her that he was her assailant and not one Teddy Moore who was being held for that robbery. A victim of one of the other robberies recounted by appellant also identified him, aided by appellant's volunteered recital of the events of that robbery.
Keahon was present the next morning when appellant was taken before the United States Commissioner on the Mike's Carry-Out charge. Keahon testified-and the record of that proceeding recites-that, after full advice as to his rights, appellant "stated that he wanted a hearing now-that he wanted to get it over with and that he did not want a lawyer-of own choice or Legal Aid." Commissioner Wertleb testified that his notes of that appearance showed that appellant "stated affirmatively that he did not want any lawyer."
A third police witness presented by the Government was Officer Durkey. He testified that on March 23, 1966, he had arrested appellant on a charge of assault with a gun, and that he had then both read to appellant a P.D. 47 card and given him a copy of it to keep. Aside from saying that he had not been in possession of the gun, appellant made no further response to the giving of these warnings.
The Government's first witness at the remand hearing was Dr. Stammeyer, a clinical psychologist on the staff of St. Elizabeths. Testifying from the records compiled by St. Elizabeths at the time appellant was committed for a mental examination on December 8, 1966, in the Mike's Carry-Out case, Dr. Stammeyer testified that appellant was "a man of at least low average native abilities," or "possibly even somewhat higher." He said that there was "no indication of any significant impairment that would significantly interfere with his perception;" and no evidence was found of "any organic brain pathology or any acute emotional problems at that time, that would significantly interfere with his intellectual functioning." The warnings in P.D. 47 were read to the witness, and he stated his opinion to be that appellant unquestionably "could understand and appreciate and comprehend" their meaning.
On cross-examination, Dr. Stammeyer reported that, although he had agreed with the St. Elizabeths finding that appellant was competent to stand trial, he personally had not shared the view that appellant was without mental disorder. He characterized that disorder as a passive aggressive personality, contributed to by an unsatisfactory life pattern, perhaps due in some part to recurrent medical problems, including sickle cell anemia. Although pressed closely by defense counsel in the light of these disclosures to modify his earlier opinion as to appellant's ability to understand the warnings given him, Dr. Stammeyer's final conclusion was that "on the basis of what I know about this man, my reviewing the psychological examination and going over the record and having participated in the staff conference, I see no reason to believe that he could not fully comprehend, did not have the capability and competency to fully comprehend that statement read to him."
The defense offered no evidence at the remand hearing. Appellant's counsel stated on the record that he would place appellant on the stand if the inquiry could be limited to "what his mental attitude was at the time of the alleged confession and not go into the elements of the confession or the elements of the crime." The court indicated its doubt that such matters would be relevant in any event, but, even if they came out, the court represented its understanding of the law to be that such testimony could never be used against appellant in a trial of guilt or innocence. Although defense counsel appeared to accept this representation, after consulting with his client he reported that appellant did not desire to testify.
The District Court found as facts that appellant had adequately and repeatedly been exposed to the requisite Miranda warnings; he was not under the influence of alcohol or narcotics at the time of his arrest; the noise level in the Robbery Squad room was not such as to interfere with his capacity to hear; the warnings unmistakably gave notice that what one says, as distinct from what one writes or signs, can and will be used in court; appellant's mental abilities were such as to enable him to comprehend this meaning; and appellant was in no way subjected to involuntary or forced extraction of evidence.
The court characterized appellant's admissions as having "gushed out . . . after numerous warnings, apparently starting with an effort by [appellant] to clear a friend of his from a crime that . . . he committed and his friend had not, and then continued to these other crimes, which he, apparently, decided that once he had started, he might as well make a clean breast of." Under these circumstances, concluded the court, there could be no question of the knowing and intentional nature of appellant's purpose to forego rights available to him.
The burden which the Government had to carry on remand was, however, one that was placed upon it by the Supreme Court in Miranda, and not by this court. As the Supreme Court put it, an arrested person must be adequately apprised that "anything said can and will be used against the individual in court." 384 U.S. at 469, 86 S.Ct. at 1625, 16 L.Ed.2d 694. And the Government's burden of proof includes, in addition to the fact of such a warning a showing-if the issue is raised-that the person warned was capable of understanding it.
There was no question in this case as to the fact of warning. The concern which prompted the panel to remand was capacity-the state of appellant's mind and understanding with respect to the terms of the warning. Its opinion indicated that there should be further evidence taken which would shed light on this question; and we, unlike appellant, do not read that opinion as saying that, unless Detective Keahon testified that he had elaborated on the language of the formal warnings by putting a legal gloss upon it, the Government must fail no matter what other evidence was forthcoming.
At the remand hearing, the Government addressed itself to this task. Its principal witness in this regard was Dr. Stammeyer, who testified as an expert witness on the precise question of whether appellant had the capacity to understand the meaning of the warnings as given. That testimony was unrebutted, and the District Court surely committed no error in finding from it that appellant possessed such capacity. But even where capacity exists, it is sometimes true that understanding can be faulty or mistaken. Although fully able to understand the plain words of the warning, it may have been that appellant, through some quirk of misinformation or otherwise, did not take them at their face value.
On this issue, of course, there was only one witness who could be useful-and this was appellant himself. It seems most unlikely that any member of the remanding panel thought other than that appellant would be a critically important witness on the remand hearing. In its opinion the panel majority was at some pains to remark that "[A]ppellant, of course, may wish to testify at that hearing," adding citations of Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Bailey v. United States, 128 U.S. App.D.C. 354, 389 F.2d 305 (1967), for the obvious purpose of reassuring appellant that nothing he said in that testimony could be used against him to prove the commission of criminal offenses.
". . . [Appellant] produced no witnesses putting in question his apparent intellectual endowments. Moreover, it is noteworthy that at no stage in the proceedings has the appellant ever denied that he understood the warnings given him, and while a defendant does not have the obligation to testify himself or to offer testimony, a court cannot supply evidence that is lacking . . ."
So here, appellant has never asserted that he misunderstood or misinterpreted the words of warning.6 When given the opportunity to do so, under the protections of the remand hearing, he failed to take it. Contrarily, the evidence that was before the District Court supported a finding of his capacity to understand, as well as an absence of any coercive or confusing influences in his communications with the police. Under these circumstances, we do not see how the District Court can be faulted for its conclusion that the Government has sustained its burden of establishing a knowing and voluntary waiver.
In its consideration of the case after remand, a majority of the panel appeared to be of the view that, since Keahon failed to expand his testimony to include a statement that he had in fact explained to appellant that the legal rules governing the admissibility of evidence do not distinguish between oral and written confessions, there was, within the meaning of the remand opinion, no "additional evidence" relevant to waiver forthcoming. Further, the majority appears to have concluded that, absent such testimony, an element of coerciveness or at least unfair treatment by the police has entered the picture.
Neither do we think that this conviction should be reversed on any theory that appellant was so shabbily dealt with by the police that emanations from the Due Process Clause point towards that result. It appears clearly from the record that appellant had already confessed his most serious crime (the armed robbery of a High's Store in which he shot a female employee) before the note-taking episode occurred. From Detective Keahon's standpoint, the procession of admissions which began to follow were of primary interest as clearing the police records, but of secondary importance in terms of appellant's having voluntarily put himself in the toils of the law. Keahon's purpose in reaching for pencil and paper was, as he testified, simply to keep track of what was pouring from appellant's mouth on the heels of the High's Store confession. Had the interview been stopped when appellant objected to the note-taking, the utility of that confession would not have been affected. Thus, it does not seem to us that there can be any suggestion that Keahon was deliberately luring appellant into the deeper and more dangerous waters of criminal admissions. Appellant had already taken that plunge.
Moreover, we remind that one of the purposes of Miranda was to introduce into the post-arrest period more regularized procedures, eliminating the high degree of informality and variability which contributed heavily to the evils of stationhouse interrogation. Witness the care with which the Supreme Court spelled out the precise character of the words of warning to be given, and the wide extent to which law enforcement authorities have embodied such warnings in haec verba on printed cards to be used by arresting officers. We doubt that the warmest friends of Miranda wish to see a return to the days when such officers, although not lawyers themselves, were free with legal advice to their prisoners.
It was not for Keahon to place a legal interpretation on the language of Miranda warnings he was directed to give, and to continue or to suspend the interview in accordance with what that interpretation might be. He had given the warnings as required; appellant had signified his understanding and his wish to talk without a lawyer present; appellant had indeed already confessed a most serious crime before he objected to Keahon's starting to take notes. We cannot see how, under these circumstances, Keahon's allowing appellant to pursue his evident desire to keep on talking was either an unreasonable or deceptive tactic on Keahon's part, falling short of those concepts of ordered liberty which are at the core of the concept of due process.
Wise administration of the waiver of the Miranda rule is, of course, of central importance to the continued health of the rule itself, which was promulgated upon the explicit premise that it could be validly waived.8 When the police have, as here, faithfully followed the exact procedure prescribed by the Supreme Court, inferior courts should be slow to mandate, after the fact, enlarged responsibilities alien to the duties and the training of policemen. In any event, we see no basis in the record before us for overturning the District Court's resolution of the issue entrusted to it upon remand.
I dissent from the decision of the court today because it seems to me manifestly in error, but I am also concerned about the circumstances under which this decision has been rendered.
* At issue in this case is the admissibility of certain statements made by Frazier during the course of police interrogation. It is undisputed that Frazier was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to the onset of the interrogation. And it is also agreed that he signed a written statement waiving the protection of those rights. But as soon as the interrogating officer attempted to take written notes on Frazier's statements, Frazier refused to continue. However, when the officer ceased making contemporaneous notes, Frazier did make further statements. The confession at issue here was made during the latter period and involved a crime not discussed before the notetaking incident. The question in this case is whether, on the unusual facts presented, the government met its "heavy burden" of proving that the waiver was knowing and intelligent.
"I didn't want to start arguing with [appellant] as long as he was talking about hold-ups. . . . [H]e was telling me things about hold-ups that I didn't know. I didn't want to stop him. So, as soon as he said, 'Don't write,' I stopped writing and pushed the pad away."
Thus the interrogator, with commendable candor, made absolutely clear that because he was aware of the appellant's misunderstanding he elected not to risk any clarification for fear appellant would stop talking. Moreover, it is of critical importance that the trial court's findings did not indicate the court had even considered the significance of Frazier's ban on notetaking. Accordingly, when the case returned to this court for the second time, we held that the government had not met its burden of proving that Frazier's statements were the product of a knowing and intelligent waiver, and we held the statements inadmissible.1 It is that decision which has now been overturned by the court en banc.
The purpose of the Miranda warnings is to convey information to the suspect. Plainly, one who is told something he does not understand is no better off than one who is told nothing at all. Without full understanding, the warnings are simply a "preliminary ritual."2 The majority today concedes that Frazier may not have understood the warnings before he made his confession. But the court finds, nonetheless, that the government can meet its burden-and has met it here-by offering proof that the warnings have been given and by making "a showing-if the issue is raised-that the person warned was capable of understanding" the warnings. Majority opinion at 896 supra.
That is not to say, however, that Miranda requires an inquiry in every case into the special capacity to understand the warnings. If that were the case, the government could validly contend that the panel decision "forces the police to become mind-readers and then blames them if they guess wrong." In fact, the government's contention rests on a complete misunderstanding of the panel opinion.
Miranda was designed as a prophylactic rule for the precise purpose of avoiding the morass into which the courts had previously slipped by attempting to judge, after the fact,-and from the inevitable swearing contest between the police and the accused as to what transpired6-the precise subjective state of mind of every defendant whose confession was challenged as involuntary. In the usual case a written waiver obtained without coercion after a full and accurate explanation of the meaning of the rights and the consequences of waiving them is sufficient to meet the government's burden regardless of any subsequent claim that the suspect did not understand what he was told. But where, at the time of the interrogation, the suspect says or does something sufficient to put a reasonable man on notice that the warnings may not have been understood even though a waiver was signed, the interrogation must stop until the matter has been clarified or all statements elicited thereafter will be inadmissible. The panel concluded that a reasonable police officer would have determined on the basis of Frazier's objective behavior that he may not have grasped the meaning of the warnings. Far from requiring the police officer to read Frazier's mind, our earlier decision required only that the officer clear up a possible misunderstanding that would have been apparent to any reasonable observer-as it was to the police interrogator here.
That the court should today carve out a highly damaging exception to a fundamental principle of Miranda is disquieting enough. But the court's en banc decision here is disturbing in another regard. The panel decision in this case occasioned substantial, hostile comment in the news media. Plainly, widespread criticism of a decision is neither a cause for alarm nor a reason to insulate the decision from re-examination. What makes this case exceptional is that the nation's highest law enforcement officer, the then Attorney General, saw fit to lash out publicly at the panel decision while the government's petition for rehearing en banc was pending before the court.7 In a speech delivered to the National District Attorneys Association, the Attorney General singled it out as "Case No. 1" in his explanation of what he unfortunately sees as the "public's los[§ of] confidence in the ability of the courts to dispense justice." I had understood that the Department of Justice's professed policy was, wisely, to refrain from comment on pending cases and to make its argument in court.8 The Attorney General's deviation from that sensible rule clearly endangers the integrity of the judicial process.
If the prosecutor in this case had felt hampered by some of the rulings of the trial judge, and had assailed the judge for such rulings at a mass meeting, and a conviction had followed, . . . is it thinkable that this Court would have found that such conduct by the prosecutor was a constitutionally protected exercise of his freedom of speech, or, indeed, would have allowed the conviction to stand?
Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III, concur in Part I of this dissent and in the panel's majority opinion attached hereto as an appendix.
Before BAZELON, Chief Judge, and ROBINSON, Circuit Judge, and NICHOLS,* Judge, United States Court of Claims.
The sole question before us is the admissibility of certain statements made by appellant Frazier to a police interrogator.1 In an earlier appeal,2 we found strong indications in the record that appellant did not "knowingly and intelligently" waive his constitutional privilege against self-incrimination, and consequently that his statements were inadmissible under Miranda v. Arizona.3 Appellant had initially agreed to speak to the police interrogator, but he refused to continue if the officer took written notes. This refusal, we said, "inveighs against intelligent waiver," but we remanded for a hearing specifically to afford the Government an opportunity to present evidence that the waiver was valid. On remand, the District Judge found a valid waiver, but we disagree. We think it plain that the Government did not discharge the "heavy burden" imposed by Miranda of establishing that appellant knowingly and intelligently waived his fifth Amendment rights.
* At the remand hearing the Government introduced evidence showing the following facts.4 Appellant was arrested about 4:15 on the afternoon of September 7, 1966, on a warrant for the robbery of Mike's Carry Out. Appellant was advised of his rights,5 and taken to the Robbery Squad office, arriving, after processing, at about 5:20 p. m.
Detective Sergeant Keahon read the Miranda warnings to appellant6 and gave him a copy of the warnings, which he read. The Sergeant then read to appellant a "Consent to Speak" form,7 which appellant read and signed at 5:30 p. m. Appellant, a man of at least low average mentality, told the officer that he understood his rights and that he did not want a lawyer. He was not distracted in any way while being given the warnings.
Sergeant Keahon then started to ask appellant about the Mike's Carry Out robbery, but appellant interrupted him to admit a robbery and shooting at High's Market. According to the Sergeant, appellant said he was admitting this crime in order to clear another person who had already been charged with it. The officer reached for a pad and pencil to transcribe the confession. Appellant, however, said: "Don't write anything down. I will tell you about this but I don't want you to write anything down." Sergeant Keahon put down the pad and said nothing. Appellant continued his description of the High's Market episode, touched briefly on another crime, and then, about five minutes after he had barred transcription of his statements, admitted the Meridian Market robbery, the crime which underlies this conviction. A little while later appellant re-enacted the High's Market robbery for the benefit of several witnesses who were unable to identify him by sight. The questioning ended at about 7:30 p. m. when appellant said: "That's it; that's all I know and that's all I am going to tell you." Sergeant Keahon then asked appellant to write out a statement himself or to sign a typewritten summary of his confession. Appellant refused, saying: "No, I'm not going to sign anything." He was then taken to his cell. Throughout the entire investigation appellant cooperated with the police and was treated with courtesy by them.
The trial court concluded that the Government carried its "heavy burden" of establishing that appellant validly waived his privilege against self-incrimination. Since that conclusion was based on the uncontroverted facts in the record, and not on an assessment of the credibility of witnesses, it is settled that we are in as good a position as the District Judge to determine the effect of that evidence.8 It is highly significant in this connection that the District Judge gave no express consideration to the effect of appellant's refusal to permit his statements to be reduced to writing, despite our emphasis on the point in our prior opinion. In our view, the evidence introduced by the Government cannot support the conclusion that appellant knowingly and intelligently waived his Fifth Amendment rights.
Absent some additional evidence, comparable in quality, of understanding waiver, however, his confession cannot stand.
I didn't want to start arguing with [appellant] as long as he was talking about hold-ups. . . . [H]e was telling me things about hold-ups that I didn't know. I didn't want to stop him. So, as soon as he said, "Don't write," I stopped writing and pushed the pad away.
The Government says that it discharged its "heavy burden" by evidence that appellant was not interrogated in an oppressive manner nor subjected to physical or psychological coercion; and that he was given the warnings several times, said he understood them, and had sufficient mental capacity to understand them. Absent appellant's ban on notetaking "[t]here [would indeed be] nothing in the surrounding circumstances peculiarly susceptible to the interpretation that appellant misapprehended what the officers said he was told."18 But appellant attached a peculiar condition to his consent to speak, a condition that should have alerted the officers to the possibility of a misunderstanding. He may well have thought that the Government could make no use of an oral statement in court, and there is no evidence that he was otherwise informed by the officers, by prior experience,19 by education, or otherwise.
The plain rule of Miranda requires us to reverse this conviction. The Supreme Court has often stated that a waiver of the right against self-incrimination is ineffective if there is any doubt that it was made with full understanding of the consequences.23 Since there is ample reason to doubt appellant's understanding here, it was improper for the police officers to receive his statement, and error for the trial court to admit it.
It is not our role to question the plain teaching of Miranda. But were we to do so, we would be compelled to conclude that the Miranda rule reflects a principle fundamental to a democratic society. The Fifth Amendment protects all persons; it ensures that no individual need incriminate himself "unless he chooses to speak in the unfettered exercise of his own will."24 Miranda is designed to make that protection meaningful for the man who has neither the education, the experience, nor the counsel that would enable him to make an informed decision. Far from being a mere technicality, it touches the heart of a system of justice that purports to treat all of its citizens equally under the law.
If we were to uphold this confession, then Miranda would indeed become "a preliminary ritual."25 For the forms of Miranda were satisfied here: the officer read the warnings, and the suspect purported to waive his rights. But Miranda requires more of the interrogating officers. It requires them not only to recite the warnings, but also to be certain before questioning the accused that he understands his rights, realizes the consequences of speaking, and intelligently and voluntarily waives his privilege of silence.26 Where the police officers are dealing with ill-educated and uncounselled suspects, they have a special obligation to be alert for signs of misunderstanding or confusion. Here the officers had ample reason to doubt that the accused understood the warnings. Yet they took no further steps-such as admonishing appellant that even an oral confession would be used against him in court, or halting the questioning until a lawyer could be obtained-to bring the warnings home to him in terms he could clearly comprehend.
We recognize that we are vulnerable to the old criticism that criminals should not go free for the constable's blunder.27 But the error involved in this case is no ordinary blunder. It is an egregious failure to observe a basic constitutional requirement. When we are ready to overlook errors of this type, we will have abandoned once and for all the effort to extend the same quality of justice to all persons, the ignorant as well as the educated, the poor as well as the rich.
And I asked Mr. Frazier: Where did this money come from? From the holdup this morning? He looked at me and said, "You are not going to believe this, but I didn't hold that lady up." He said, "I was in that store." He said that when the guy held them up and he ran out, he said, "I ran out after him." He said, "He got away." I asked him, I said, "Did you go back and see the lady, to see if she got hurt?
And he said, "No, he got away, so I didn't bother going back."
"You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions.
"Anything you say can be used against you in court.
"You have the right to talk to a lawyer for advice before we question you and have him with you during questioning.
"If you cannot afford a lawyer and want one, a lawyer will be provided for you."
Q. Did you make a second effort to prepare the written statement about these events?
A. After he had finished and told us in the Robbery Squad Office, he finished and said, "That's it; that's all I know and that's all I'm going to tell you."
I asked him, I said, "Will you give us a statement in your own handwriting, or will you repeat what you have told me and I will put it in the form of a statement, in a typewritten statement, and would you sign it?"
He said, "No." He said, "I'm not going to sign anything."
Then I said, "Well, from what you have told me, I am going to write it up. Will you read it and sign it?"
And he said, "No, I'm not going to sign anything at all."
Q. Did he ever indicate that he did not want to tell you everything, though?
Q. Now, did there come a time that you reduced the substance of this conversation to writing?
A. Well, I reduced some of it into writing that night before I went home. I was working the 8:00 A.M. to 4:00 tour of duty. I reduced it briefly into writing for the benefit of my superior, Inspector Sullivan, so that he would have a brief summary of what took place on his desk when he came into work in the morning.
THE COURT: You surely interpose the defense of being unable to comprehend or understand?
THE COURT: If you do not, the Court of Appeals did.
MR. O'MALLEY: I would object to the introduction of this testimony.
THE COURT: I will admit it.
The ratings indicated that 15 per cent of the 85 "post-Miranda defendants" failed to understand the right to silence warning, 18 per cent failed to understand the warning of the right to presence of counsel, and 24 per cent failed to understand the warnings of the right to appointed counsel.
Medalie, Zeitz & Alexander, Custodial Interrogation in Our Nation's Capital: The Attempt to Implement Miranda, 66 Mich.L.Rev. 1347, 1375 (1969). The authors also considered the possibility of methodological bias in their study. Their conclusion was that "if anything, our results underestimate the defendants' rate of misunderstanding of the warnings." Id. at 1374 n. 101. In another article based on the same data, different methods of analysis led to the same conclusion. Zeitz, Medalie & Alexander, Anomie, Powerlessness and Police Interrogation, 60 J.Crim.L.C. & P.S. 314 (1969); see Note, Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519 (1967).
[u]nder the pressures and tensions of interrogation, it is not uncommon for the most earnest of witnesses to give answers which are not entirely responsive. Sometimes a witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. Bronston v. United States, 410 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).
. . . the examiner's awareness of unresponsiveness should lead him to press another question or reframe his initial question with greater precision. Id.
The juxtaposition of that decision with this one might cause some confusion about the meaning of the principle "Equal justice under law". If the courts recognize the "pressures and tensions" on a prominent and prosperous professional man who is undergoing interrogation, they should be at least as solicitous when the person under interrogation is a poorly educated and downtrodden individual such as Frazier. If courts are going to require interrogators to display precision and caution in questioning Samuel Bronston, as a predicate to a perjury conviction, we should be at least as demanding of those questioning Eugene Frazier, as a precondition to a waiver of his constitutional rights.
I recognize that the danger of misunderstanding arises in different contexts in the two cases. But just as Miranda prohibits a judge from speculating about the validity of a waiver, so Bronston prohibits a jury from "conjecture". The central concern of both is the heavy responsibility imposed on the government when it seeks to use self-incriminatory information solicited from a defendant. The concern for the individual reflected in the Bronston opinion should be dispositive in this case as well.
If we could limit the inquiry to what his mental condition was at the time of the alleged confession and not go into the elements of the confession or elements of the crime, I would place the defendant on the stand.
The court then gave its view of the probable scope of examination, concluding that even "if something does come out about [criminal activity], [it] would not be admissible in other cases anyway." Defense counsel replied: "I am not prepared to accept that." The colloquy continued and then, after conferring with appellant several times, defense counsel announced: "Your Honor, I have counseled with the defendant and he at this time does not desire to take the stand."
The circumstances surrounding incustody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensible to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights.

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The Complainant is Sanofi of Paris, France, represented by Armfelt (a.a.r.p.i), France.
The Respondent is Malevitch Viatcheslav of Misnkaia Oblast, Belarus.
The disputed domain name <plavixfreeviagra.com> is registered with Dynadot, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2011. On October 24, 2011, the Center transmitted by email to Dynadot, LLC a request for registrar verification in connection with the disputed domain name. On October 25, 2011, Dynadot, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 4, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 24, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 28, 2011.
The Center appointed Fabrizio La Spada as the sole panelist in this matter on December 5, 2011. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is a multinational pharmaceutical group based in France, formed as the result of a merger between two French companies, Aventis SA and Sanofi-Synthelabo. The Complainant has presence in more than 100 countries worldwide. It is one of the leading pharmaceutical groups in the world.
The Complainant manufactures and sells Plavix, a medicine indicated for the prevention of atherothrombosis-related cardiovascular events. According to evidence produced by the Complainant, Plavix is one of the world's leading medicines, available in more than 115 countries.
- PLAVIX Belarus trademark No. 613041 registered on December 27, 1993.
The Complainant also registered numerous domain names, including in particular <plavix.com> and <plavix.net>.
The disputed domain name was registered on September 19, 2010. It resolves to a website where pharmaceutical products are sold. The products sold on this website include the Complainant’s Plavix drug, as well as products sold by the Complainant’s competitors.
Concerning the first test under the Policy, the Complainant contends that the disputed domain name is confusingly similar to its PLAVIX trademark. It points out that the disputed domain name consists of the Complainant’s trademark, with the addition of the descriptive word “free” and of the trademark VIAGRA, which is owned by one of its competitors. According to the Complainant, these additions are insufficient to avoid confusing similarity.
Concerning the second test under the Policy, the Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. It states that there is no license, consent or other right by which the Respondent would have been entitled to register or use the disputed domain name. In addition, the Complainant contends that the Respondent’s use of the disputed domain name does not satisfy the test for bona fide use under the Policy. In particular, according to the Complainant, the website to which the disputed domain name resolves is merely a portal for the website of a third party, where products (including products of the Complainant’s competitors) are sold. Moreover, the Complainant stresses that there is no disclaimer on this website setting out that such website has no relationship with the Complainant and is not the, or an official site of the Complainant.
Finally, concerning the third test under the Policy, the Complainant submits that the disputed domain name has been registered and is being used in bad faith. In particular, the Complainant contends that the Respondent was aware of the Complainant’s trademark when it registered the disputed domain name and has been using it to divert Internet users and attract them to an online pharmacy, for commercial gain. In addition, the Complainant points out that the use of the disputed domain name by the Respondent may lead Internet users to believe that the PLAVIX drug is available to sale in all countries without any medical control, whereas this medicine can only be obtained by medical prescription.
Based on these contentions, the Complainant requests that the disputed domain name be cancelled.
As regards the first issue, the Complainant has provided documentary evidence that it is the owner of numerous PLAVIX trademarks, registered throughout the world.
Concerning the second issue, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s PLAVIX trademark. The disputed domain name incorporates the entirety of the Complainant’s trademark, with two additions: the word “free” and the word “viagra”. As already ruled by numerous WIPO UDRP Panels, the mere addition of generic or descriptive words is insufficient in itself to avoid a finding of confusing similarity (see Nintendo of America Inc. v. Fernando Sascha Gutierrez, WIPO Case No. D2009-0434 and UDRP cases cited therein). The addition of a competitor’s trademark is equally insufficient to avoid a finding of confusing similarity (see Hoffmann-La Roche Inc. v. Charlie Kalopungi, WIPO Case No. D2010-1826 and UDRP cases cited therein).
In view of the foregoing, the Panel finds that the disputed domain name is confusingly similar to the trademark in which the Complainant has rights.
First, the Panel finds that the Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services. The disputed domain name is used in connection with an online pharmacy website, where the PLAVIX product is sold without the Complainant’s authorization. In addition, other products, including products manufactured and sold by the Complainant’s competitors, are offered on this website. Moreover, the website contains no indication that it is not operated by, or with the consent of, the Complainant. Such use cannot be considered to be a bona fide use of the disputed domain name (see Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Lilly ICOS LLC v. Cybernet Marketing/Antoine Tardif, WIPO Case No. D2006-1123).
Second, there is no evidence that the Respondent has been commonly known by the disputed domain name.
Third, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain. On the contrary, the evidence on record shows that the Respondent’s use of the disputed domain name is for commercial gain, as the website to which such domain name resolves is a commercial venture.
First, the Panel finds that the Respondent must have been aware of the Complainant’s rights in the well-known PLAVIX trademark when it registered the disputed domain name, as is evidenced by the fact that such domain name also incorporates another well-known trademark, VIAGRA, which corresponds to a medical product manufactured and sold by one of the Complainant’s competitors.
Second, the use that is being made of the disputed domain name, i.e. to redirect Internet users to an online pharmacy where the Complainant’s products are sold, alongside other products manufactured by the Complainant’s competitors, is evidence that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark (see Sanofi-Aventis v. Private Whois Service, WIPO Case No. D2011-0888 and UDRP cases cited therein).
A further indication of bad faith registration and use on the part of the Respondent is the fact that the disputed domain name directs Internet users to an online pharmacy, which sells pharmaceutical products without prescription or proof of recommendation by a physician (see Lilly ICOS LLC v. Tudor Burden, Burden Marketing, WIPO Case No. D2004-0794).
For these reasons, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <plavixfreeviagra.com> be cancelled.

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Rodney E. SLATER, Secretary of Transportation, Charles A.
International Affairs, Federal Aviation Administration, U.S.
ValuJet Airlines, Inc., and AirTran Airways, Inc., Respondents.
William A. Walker, New York City (Jeffrey D. Friedlander, Acting Corporation Counsel of the City of New York, Michael D. Hess, Corporation Counsel of the City of New York, Susan E. Amron, New York City, of counsel, on the brief), for Petitioner.
Stanley N. Alpert, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Deborah B. Zwany, Assistant United States Attorney, Brooklyn, NY, on the brief), for Respondents Slater, Hunnicutt, Federal Aviation Administration, and United States Department of Transportation.
Edward P. Faberman, Washington, DC (Paul A. Olsen, Ungaretti & Harris, Washington, DC, on the brief), for Respondent Frontier Airlines, Inc.
Before: VAN GRAAFEILAND, KEARSE, and JACOBS, Circuit Judges.
Petitioner City of New York (the "City") petitions for review of a final order of Secretary of Transportation Rodney E. Slater (the "Secretary") dated October 24, 1997 (the "Order"), granting exemptions under an exceptional-circumstances provision of the Federal Aviation Administration Authorization Act of 1994 (the "Act"), see 49 U.S.C. § 41714(c) (1994), in order to award takeoff and landing "slots" to respondents Frontier Airlines, Inc., ValuJet Airlines, Inc., and AirTran Airways, Inc., at LaGuardia Airport in excess of those permitted under the Administration's High Density Rule ("HDR"), see 14 C.F.R. Part 93, Subparts K and S (1998), which regulates the number of slots at that airport. The Secretary granted the exemptions in order to permit those airlines to provide nonstop service to Denver, Atlanta, and Knoxville, Tennessee, cities to which at most a single carrier then provided nonstop service from LaGuardia. In its petition for review, the City contends principally (1) that the Secretary's authority to grant exemptions had expired, (2) that the interpretation of the exceptional-circumstances criterion relied on in granting the exemptions was erroneous, and (3) that the Secretary's failure to issue an environmental impact statement in connection with the Order violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1994) ("NEPA"). Because we conclude that the first contention is not properly before us and that the second and third lack merit, we deny the petition for review.
In general, a party is required to exhaust its administrative remedies before seeking judicial review of an agency decision, "in part because of concerns for separation of powers (i.e., the need to limit judicial interference in the agency process) and the need to conserve judicial resources." Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir.1996); see, e.g., Northwest Airlines, Inc. v. U.S. Dep't of Transportation, 15 F.3d 1112, 1120-21 (D.C.Cir.1994); USAir, Inc. v. Dep't of Transportation, 969 F.2d 1256, 1259-61 (D.C.Cir.1992) ("litigants must not be encouraged to 'sandbag' agencies by withholding legal arguments for tactical reasons until they reach the courts of appeal"). Consistent with this principle, the Act provides that "[i]n reviewing an order under this section, the court may consider an objection to an order of the Secretary ... only if the objection was made in the proceeding conducted by the Secretary...." 49 U.S.C. § 46110(d). In the administrative proceedings before the Secretary in the matter presently before us, the City did not argue that the Secretary's authority to grant exemptions had expired. The City having offered no persuasive excuse for that failure, we conclude that that contention has not been preserved for review.
In reviewing the City's contention that exemptions for the respondent airlines were not warranted by exceptional circumstances, we conclude that the Secretary's decision was neither barred by the Act nor arbitrary and capricious, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Act allows the Secretary to grant new entrants exemptions from the HDR "[i]f the Secretary finds it to be in the public interest and the circumstances to be exceptional." 49 U.S.C. § 41714(c)(2). The Secretary's interpretation of the provisions of the Act is entitled to deference, Chevron, 467 U.S. at 863-64, 104 S.Ct. 2778, even where it represents a change in agency policy, see, e.g., Rust v. Sullivan, 500 U.S. 173, 186-87, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ("An agency is not required to establish rules of conduct to last forever, ... but rather must be given ample latitude to adapt its rules and policies to the demands of changing circumstances." (internal quotation marks and brackets omitted)).
In granting the applications at issue here, the Secretary found exceptional circumstances in the facts that there was a "need for competitive service ... especially low fare competitive service" in the market for air travel between LaGuardia and the cities in question; that "[a]irlines operating as low-fare carriers provide substantial public benefits by making low fares available to many more travelers and thereby greatly increasing the size of the market"; and "that substantial benefits can be achieved through increasing competition at slot-controlled airports in situations where consumers would be able to obtain significantly lower fares in noncompetitive or underserved markets." Order at 3-4 (footnotes omitted). Although the City asserts that the circumstances at issue here were not exceptional because there are other cities to which only one carrier provides nonstop service from LaGuardia, the Secretary was not required to adopt so narrow a focus. In acting on the respondent airlines' applications, the Secretary considered several factors, including the market for travel between LaGuardia and the cities in question; cross-elasticity of demand and evidence of monopolistic pricing in the fares for travel between LaGuardia and those cities, as compared with the fares for travel between those cities and the two other major New York City-area airports; and the ability of the applicant airlines to provide sustained price competition. In light of the deference to be accorded to such agency determinations, we cannot conclude that the Secretary's decision to grant the exemptions was unreasonable.
Finally, although the City's contention that NEPA required the Secretary to issue an environmental impact statement before approving the slots in question was not made in the proceedings before the Secretary, and although it is possible that the City should have been aware, through the absence of the normal precursor proceedings leading to such a statement, that no such statement would be issued, we reach the merits of the City's challenge, and we reject it for the reasons that follow.
Federal agencies contemplating "major federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), are obligated to include in the recommendation or report on the anticipated action an environmental impact statement ("EIS"), as "evidence that an agency has considered the reasonably foreseeable environmental effects of a proposed major action before making a decision to take the action." Town of Orangetown v. Gorsuch, 718 F.2d 29, 34 (2d Cir.1983), cert. denied, 465 U.S. 1099, 104 S.Ct. 1592, 80 L.Ed.2d 124 (1984). Before deciding to prepare a full-blown EIS, however, an agency may conduct an environmental assessment, see 40 C.F.R. § 1501.4(b) (1997), in order to determine whether an EIS is necessary. Where the action in question is not "significant[ ]," no EIS is required. See 42 U.S.C. § 4332(2)(C); Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1556 (2d Cir.1992); Town of Orangetown v. Gorsuch, 718 F.2d at 34. In such cases, the agency issues a finding of no substantial impact, see 40 C.F.R. § 1501.4(e), documenting the reasons why an EIS is not being prepared. The decision not to prepare an EIS is "left to the informed discretion of the agency proposing the action or project." Town of Orangetown v. Gorsuch, 718 F.2d at 34.
Here, the Secretary issued a finding of no substantial impact resulting from granting the applications, supported by, inter alia, a finding that there would be no detrimental effect on air safety, an analysis showing that there would be only marginal increases in the noise level, and the imposition of a condition on the applicant airlines to use their quieter jet models on these new LaGuardia routes. We conclude that the record indicates that the Secretary gave the present applications the "hard look" that NEPA demands, Friends of the Ompompanoosuc v. FERC, 968 F.2d at 1556, and did not act arbitrarily or capriciously in deciding that an EIS was not required.
We have considered all of the City's contentions that are properly before us and have found them to be without merit. The petition for review is denied.