Mitchell v U.S.

Citation143 L.Ed.2d 424,526 U.S. 314,119 S.Ct. 1307
Decision Date05 April 1999
Docket Number977541
CourtUnited States Supreme Court

Justice Kennedy delivered the opinion of the Court.

Two questions relating to a criminal defendant's Fifth Amendment privilege against self-incrimination are presented to us. The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered. We hold the plea is not a waiver of the privilege at sentencing. The second question is whether, in determining facts about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant's silence. We hold a sentencing court may not draw the adverse inference.


Petitioner Amanda Mitchell and 22 other defendants were indicted for offenses arising from a conspiracy to distribute cocaine in Allentown, Pennsylvania, from 1989 to 1994. According to the indictment, the leader of the conspiracy, Harry Riddick, obtained large quantities of cocaine and resold the drug through couriers and street sellers, including petitioner. Petitioner was charged with one count of conspiring to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846 and with three counts of distributing cocaine within 1,000 feet of a school or playground, in violation of §860(a). In 1995, without any plea agreement, petitioner pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count, and the District Court advised her the drug quantity would be determined at her sentencing hearing.

Before accepting the plea, the District Court made the inquiries required by Rule 11 of the Federal Rules of Criminal Procedure. Informing petitioner of the penalties for her offenses, the District Judge advised her, "the range of punishment here is very complex because we don't know how much cocaine the Government's going to be able to show you were involved in." App. 39. The judge told petitioner she faced a mandatory minimum of one year in prison under §860 for distributing cocaine near a school or playground. She also faced "serious punishment depending on the quantity involved" for the conspiracy, with a mandatory minimum of 10 years in prison under §841 if she could be held responsible for at least 5 kilograms but less than 15 kilograms of cocaine. Id., at 42. By pleading guilty, the District Court explained, petitioner would waive various rights, including "the right at trial to remain silent under the Fifth Amendment." Id., at 45.

After the Government explained the factual basis for the charges, the judge, having put petitioner under oath, asked her, "Did you do that?" Petitioner answered, "Some of it." Id., at 47. She indicated that, although present for one of the transactions charged as a substantive cocaine distribution count, she had not herself delivered the cocaine to the customer. The Government maintained she was liable nevertheless as an aider and abettor of the delivery by another courier. After discussion with her counsel, petitioner reaffirmed her intention to plead guilty to all the charges. The District Court noted she might have a defense to one count on the theory that she was present but did not aid or abet the transaction. Petitioner again confirmed her intention to plead guilty, and the District Court accepted the plea.

In 1996, nine of petitioner's original 22 codefendants went to trial. Three other co-defendants had pleaded guilty and agreed to cooperate with the Government. They testified petitioner was a regular seller for ringleader Riddick. At petitioner's sentencing hearing, the three adopted their trial testimony, and one of them furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling 1 to 2 ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. On cross-examination, the codefendant conceded he had not seen petitioner on a regular basis during the relevant period.

Both petitioner and the Government referred to trial testimony by one Alvitta Mack, who had made a series of drug buys under the supervision of law enforcement agents, including three purchases from petitioner totaling two ounces of cocaine in 1992. Petitioner put on no evidence at sentencing, nor did she testify to rebut the Government's evidence about drug quantity. Her counsel argued, however, that the three documented sales to Mack constituted the only evidence of sufficient reliability to be credited in determining the quantity of cocaine attributable to her for sentencing purposes.

After this testimony at the sentencing hearing the District Court ruled that, as a consequence of her guilty plea, petitioner had no right to remain silent with respect to the details of her crimes. The court found credible the testimony indicating petitioner had been a drug courier on a regular basis. Sales of 1 to 2 ounces twice a week for a year and a half put her over the 5-kilogram threshold, thus mandating a minimum sentence of 10 years. "One of the things" persuading the court to rely on the testimony of the codefendants was petitioner's "not testifying to the contrary." App. 95.

The District Judge told petitioner:

" 'I held it against you that you didn't come forward today and tell me that you really only did this a couple of times . I'm taking the position that you should come forward and explain your side of this issue.

" 'Your counsel's taking the position that you have a Fifth Amendment right not to . If he's if it's determined by a higher Court that he's right in that regard, I would be willing to bring you back for resentencing. And if you if and then I might take a closer look at the [codefendants'] testimony.' " Id., at 98 99.

The District Court sentenced petitioner to the statutory minimum of 10 years of imprisonment, 6 years of supervised release, and a special assessment of $200.

The Court of Appeals for the Third Circuit affirmed the sentence. 122 F.3d 185 (1997). According to the Court of Appeals, "By voluntarily and knowingly pleading guilty to the offense Mitchell waived her Fifth Amendment privilege." Id., at 189. The court acknowledged other Circuits have held a witness can "claim the Fifth Amendment privilege if his or her testimony might be used to enhance his or her sentence," id., at 190 (citing United States v. Garcia, 78 F.3d 1457, 1463, and n. 8 (CA10), cert. denied, 517 U.S. 1239 (1996)), but it said this rule "does not withstand analysis," 122 F.3d, at 191. The court thought it would be illogical to "fragment the sentencing process," retaining the privilege against self-incrimination as to one or more components of the crime while waiving it as to others. Ibid. Petitioner's reservation of the right to contest the amount of drugs attributable to her did not change the court's analysis. In the Court of Appeals' view:

"Mitchell opened herself up to the full range of possible sentences when she was told during her plea colloquy that the penalty for conspiring to distribute cocaine had a maximum of life imprisonment. While her reservation may have put the government to its proof as to the amount of drugs, her declination to testify on that issue could properly be held against her." Ibid.

The court acknowledged a defendant may plead guilty and retain the privilege with respect to other crimes, but it observed: "Mitchell does not claim that she could be implicated in other crimes by testifying at her sentencing hearing, nor could she be retried by the state for the same offense." Ibid. (citing 18 Pa. Cons. Stat. §111 (1998), a statute that bars, with certain exceptions, a state prosecution following a federal conviction based on the same conduct).

Judge Michel concurred, reasoning that any error by the District Court in drawing an adverse factual inference from petitioner's silence was harmless because "the evidence amply supported [the judge's] finding on quantity" even without consideration of petitioner's failure to testify. 122 F.3d 185, at 192.

Other Circuits to have confronted the issue have held that a defendant retains the privilege at sentencing. See, e.g., United States v. Kuku, 129 F.3d 1435, 1437 1438 (CA11 1997); United States v. Garcia, 78 F.3d 1457, 1463 (CA10 1996); United States v. De La Cruz, 996 F.2d 1307, 1312 1313 (CA1 1993); United States v. Hernandez, 962 F.2d 1152, 1161 (CA5 1992); Bank One of Cleveland, N. A. v. Abbe, 916 F.2d 1067, 1075 1076 (CA6 1990); United States v. Lugg, 892 F.2d 101, 102 103 (CADC 1989); United States v. Paris, 827 F.2d 395, 398 399 (CA9 1987). We granted certiorari to resolve the apparent circuit conflict created by the Court of Appeals' decision, 524 U.S. __ (1998), and we now reverse.


The Government maintains that petitioner's guilty plea was a waiver of the privilege against compelled self-incrimination with respect to all the crimes comprehended in the plea. We hold otherwise and rule that petitioner retained the privilege at her sentencing hearing.


It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the...

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