Roberts v. United States

Mb. 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 *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).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.2 The memorandum cited petitioner’s previous conviction for 10 counts of bank robbery, his voluntary confession, and his subsequent *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.3 Petitioner again appealed, *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 cer-tiorari, 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, 247 (1949); see United States v. Grayson, 438 U. S. 41, 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 50, quoting United States v. Tucker, 404 U. S. 443, 446 (1972). See also Pennsylvania v. Ashe, 302 U. S. 51, 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 447; see Townsend v. Burke, 334 U. S. 736, 740-741 (1948).

*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 17.4 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, 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); *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. 113.5 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 Part III, 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 51, quoting United States v. Hendrix, 505 F. 2d 1233, 1236 (CA2 1974).

*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 intransi-gency 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, 653-655 (1976); United States v. Kordel, 397 U. S. 1, 7-10 (1970) ; see United States v. Mandujano, 425 U. S. 564, 574-575 (1976) *560 (opinion of Burgee, C. J.); id., at 591-594 (Brennan, J., concurring in judgment).6

In this case, as in Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 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.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 *561 to make a free and informed choice to remain silent. Miranda v. Arizona, 384 U. S., at 475-476; see Garner v. United States, supra, at 657.8

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.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 657, quoting Lisenba v. California, 314 U. S. 219, 241 (1941). His conduct bears no resemblance to the “insolubly ambiguous” postarrest silence that may be induced by the assurances contained in Miranda warnings. Cf. Doyle v. Ohio, 426 U. S. 610, 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, 440-441 *562 (1974).10 Accordingly, the judgment of the Court of Appeals is

Affirmed.

Petitioner’s intercepted conversations with Thornton apparently could have provided the basis for 13 counts of unlawful use of a telephone. App. 36.

The maximum sentence on each count was four years’ imprisonment and a $30,000 fine. 21 U. S. C. § 843 (c). *556 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.

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

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.

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, 696, n. 36 (1972).

The Court recognized in Gamer v. United States, 424 U. S., at 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 561.

See Gamer v. United States, supra, at 658, n. 11; Hoffman v. United States, 341 V. S. 479, 486 (1951); Mason v. United States, 244 U. S. 362, 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, 374-375 (1951). A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give.

In United States v. Washington, 431 U. S. 181, 187, n. 5 (1977), the Court explained that “[a] 11 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.”

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.

The dissenting opinion asserts that the record reflects an “improper involvement of the judicial office in the prosecutorial function.” Post, at 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 568.