author: Justice Blackmun

text:
    HUFFMAN et al. v. WESTERN NUCLEAR, INC., et al.
    No. 87-645.
    Argued April 27, 1988
    Decided June 15, 1988
    Blackmun, J., delivered the opinion for a unanimous Court.

      Deputy Solicitor General Merrill argued the cause for petitioners. With him on the briefs were Solicitor General

      Fried, Acting Assistant Attorney General Spears, John Harrison, Leonard Schaitman, Richard A. Olderman, Eric J. Fygi, Marc Johnston, and Acting Solicitor General Wallace.

      Peter J. Nickles argued the cause for respondents. With him on the brief were William H. Allen, Elliott Schulder, Alan A. Pemberton, Harley W. Shaver, and John H. Licht.

      Briefs of amici curiae urging reversal were filed for the Government of Australia by Mark R. Joelson and Joseph P. Griffin; for the Government of Canada by Douglas E. Rosenthal; for Eldorado Nuclear Limited et al. by Robert E. Herzstein; and for Electric Utility Companies by Harry H. Voigt and Paul H. Falon.

      Briefs of amici curiae urging affirmance were filed for United States Senators Jeff Bingaman et al. by Senator Pete V. Domenici; and for the State of Arizona et al. by Joseph B. Meyer, Attorney General of Wyoming, and Mary B. Guthrie, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Duane Woodard of Colorado, Hal Stratton of New Mexico, Brian McKay of Nevada, and David L. Wilkerson of Utah.

        Charles H. Montange filed a brief for the Nátional Taxpayers Union as amicus curiae.

   Justice Blackmun

delivered the opinion of the Court.

Section 161(v) of the Atomic Energy Act of 1954, as amended, 78 Stat. 606, 42 U. S. C. §2201(v), provides that the Department of Energy (DOE) shall restrict its enrichment of foreign-source uranium intended for use in domestic facilities “to the extent necessary to assure the maintenance of a viable domestic uranium industry.” DOE has determined that the domestic uranium industry has not been “viable” since 1983, and that the imposition of restrictions on the enrichment of foreign uranium would not assure viability. In this case we consider whether § 161(v) requires DOE to restrict the enrichment of foreign uranium, irrespective of whether such restriction would make the domestic industry viable. We conclude that it does not.

I — I

In 1964, as part of its efforts to move the nuclear-power industry into the private sector, Congress enacted the Private Ownership of Special Nuclear Materials Act (Act), Pub. L. 88-489, 78 Stat. 602, which amended the Atomic Energy Act of 1954 to permit privately owned utilities operating nuclear reactors also to own, for the first time, the uranium used for fuel in their reactors. At the time of the statute’s enactment, DOE’s predecessor, the Atomic Energy Commission (AEC), was the only entity in the world with the facilities to convert natural uranium into the enriched uranium used for fuel in commercial reactors. In § 161(v), Congress accounted for this defacto monopoly by authorizing the AEC to offer “toll enrichment” services whereby utilities could obtain unenriched uranium on the open market and have it enriched by the AEC for a fee. It ’was to protect the uranium mining and milling industry from foreign, competition during the period of transition from a Government-controlled market to an open one, that Congress included in § 161(v) the requirement that the AEC, in written “criteria,” restrict its enrichment of foreign-source uranium for domestic use “to the extent necessary to assure the maintenance of a viable domestic uranium industry.”

The criteria initially established by the AEC provided that it would enrich no foreign-source uranium for domestic use. See 31 Fed. Reg. 16479 (1966). In 1974, expecting an increase in the demand for uranium to match the anticipated expansion in the commercial use of nuclear power, the AEC amended the criteria and provided for the gradual elimination by the end of 1983 of restrictions on its enrichment of foreign-source uranium for domestic use. See 39 Fed. Reg. 38016 (1974). The phase-out took place according to schedule, and DOE, which has replaced AEC for these purposes, has not reimposed restrictions on the enrichment of foreign uranium.

The early optimistic forecast for the commercial use of nuclear power turned gloomy in the late 1970’s and early 1980’s, and the economic condition of the domestic uranium industry deteriorated. Cancellations and delays in the construction of nuclear reactors led to a drop in the demand for uranium, which, in turn, brought about a precipitous decline in the price of uranium ore. The decline of the domestic uranium industry has also been attributed to other developments in the national and international markets. DOE lost its enrichment monopoly when two European consortia and the Soviet Union began to supply enriched uranium produced from foreign-source ore. See 51 Fed. Reg. 3625 (1986). This allowed foreign uranium suppliers, who offered lower prices, to compete successfully with domestic suppliers for the business of the domestic utilities.' Another competitive alternative was the emergence of a secondary market in which domestic utilities, bound by long-term contracts to purchase enrichment services in excess of their needs, sold their enriched uranium to other utilities at substantial discounts. Ibid.

In 1983, § 170B was added to the Atomic Energy Act of 1954 to improve Congress’ ability to monitor the domestic uranium industry’s condition. 96 Stat. 2081, 42 U. S. C. § 2210b. This new provision required the Secretary of Energy to promulgate criteria for assessing the viability of the industry and to report to the President and the Congress annually on the industry’s viability. DOE accordingly issued criteria, still in effect, see 10 CFR pt. 761 (1988), which define viability largely in terms of “the extent to which the domestic mining and milling uranium industry will be capable, at any particular time, of supplying the needs of the domestic nuclear power industry under a variety of hypothetical conditions.” 48 Fed. Reg. 45747 (1983). Applying these criteria, DOE reported that the industry was viable in 1983, but that one year later it was no longer viable. See S. Rep. No. 100-214, p. 9 (1987) (noting no change in viability in 1985 and no change in prospect for industry’s viability in 1986).

Shortly after the Secretary first reported that the industry was not viable, he initiated a rulemaking to consider revising the criteria governing DOE’s restriction of enrichment services. 51 Fed. Reg. 3624-3632 (1986). In his notice of proposed rulemaking, the Secretary specifically stated that, despite the depressed condition of the domestic industry, he proposed not to restrict the enrichment of foreign uranium because “[ijmport restrictions on foreign uranium would not assure the viability of the.domestic mining and milling industry.” Id., at 3627.

After receiving extensive comments, the Secretary adopted final revised criteria that again did not include any restrictions on enrichment. See 10 CFR pt. 762 (1988). In response to critical comments from the domestic uranium industry, the Secretary explained: “The plain language of the statute makes clear that restrictions are not to be imposed automatically if the domestic industry is non-viable, but only if they are needed to, and in fact, will assure the. maintenance of a viable domestic uranium industry.” 51 Fed. Reg. 27134 (1986). Finding that the domestic industry’s problems were due to “[structural weaknesses,” particularly the collapse in demand and the consequent inability of the market to sustain a price for uranium that enabled the industry to recover its cost of production, the Secretary concluded that restrictions on enrichment would do nothing to cure those ills. Id., at 27135. Moreover, the Secretary found that, because DOE had no market power with respect to the provision of enrichment services, it could not force its enrichment customers to use domestic uranium. Id., at 27138. The ‘Secretary repeated his earlier conclusion that restrictions on enrichment services “would not assure the viability of the domestic mining and milling industry,” id., at 27135, and, if anything, would be “counterproductive,” because such restrictions would send some customers away, requiring DOE to impose heavier costs on the remaining domestic suppliers. Id., at 27136.

Before the Secretary had concluded that the industry was not viable, and before he had initiated this latest rulemaking, respondents, three domestic uranium mining and milling companies, filed suit in the United States District Court for the District of Colorado against DOE and some of its officers and employees, petitioners here. Respondents alleged, among other things, that DOE’s failure to impose restrictions on the enrichment of foreign uranium for use in domestic facilities constituted a violation of §161(v). App. 10-15. Respondents moved for summary judgment based on this claim, arguing that two facts — that the domestic industry was not viable and that DOE imposed no restrictions on enrichment of foreign uranium — sufficed'.to establish their entitlement to judgment as a matter of law under § 161(v). App. 27-28. Accepting respondents’ two facts, DOE submitted a cross-motion for summary judgment, arguing that § 161(v) did not require restrictions when those restrictions would not serve the statutory goal of assuring the maintenance of a viable domestic industry. App. 39.

The District Court entered summary judgment for respondents. App. to Pet. for Cert. 22a. According to the court, the statute gave DOE no discretion to determine not to impose restrictions if the domestic industry was not viable. In view of its determination that immediate injunctive relief was necessary to remedy DOE’s “continuing refusal to recognize its obligations under 42 U. S. C. §2201(v),” id., at 22a-23a, the District Court entered an order requiring DOE to limit its enrichment of foreign uranium for domestic use to 25% of all material enriched between June 6 and December 31, 1986; imposing a total ban on enrichment of foreign uranium beginning January 1, 1987, and “continuing until the viability of the domestic uranium industry is assured”; and calling for a rulemaking to be commenced to determine whether “criteria less restrictive than those imposed by this order would assure the maintenance of a viable domestic uranium industry.” Id., at 23a.

DOE appealed to the United States Court of Appeals for the Tenth Circuit. That court affirmed the District Court’s judgment in relevant part. 825 F. 2d 1430 (1987). The Court of Appeals found the language of § 161(v) unambiguous: The term “shall” indicated that the restrictions were mandatory, and the phrase “to the extent necessary to assure the maintenance of a viable domestic uranium industry” indicated that DOE had discretion to “determine how much restriction is required to assure viability, but it cannot decide not to impose restrictions when the industry is not viable.” 825 F. 2d, at 1439. According to the Court of Appeals, the statute clearly instructs that

“when domestic nonviability is determined, restrictions on enrichment of foreign-source uranium must be imposed and must become increasingly aggressive, to the point of 100% restriction, until the domestic industry is rejuvenated and becomes viable.” Ibid.

At DOE’s request, the Court of Appeals stayed its mandate pending this Court’s final disposition of DOE’s petition for certiorari. App. 4. We granted the writ. 484 U. S. 1003 (1988).

II

We begin by emphasizing that the question presented here is a narrow one which comes to us as a challenge to the entry of summary judgment. That judgment rests on a legal conclusion drawn from two uncontested facts: that the domestic uranium industry was not viable, and that DOE was imposing no restrictions on the enrichment of foreign-source uranium for use in domestic facilities. On the basis of these facts alone, the courts below determined that DOE was violating the law, for they read § 161 (v) “to require the DOE to restrict enrichment of foreign uranium whenever the domestic industry is not viable — whether or not such restriction would result in successful resuscitation of the uranium industry.” 825 F. 2d, at 1437. Therefore, neither DOE’s underlying assessment that the industry was not viable, nor its assessment that no amount of restriction would assure the industry’s viability, nor, indeed, what it means to “assure the maintenance of a viable . . . industry” are before us at this time for review. The only question presented is whether, regardless of the effects restrictions would have on the viability of the domestic industry, DOE must impose restrictions on the enrichment of foreign-source uranium whenever the domestic industry is determined not to be viable.

In considering this narrow question of statutory interpretation, we cannot agree with the Court of Appeals’ conclusion that the relevant language in § 161(v) is unambiguous. While respondents’ reading of the statute is not implausible, it is by no means the only reading the language can bear. The statute requires DOE to impose restrictions “to the extent necessary to assure the maintenance of a viable domestic uranium industry.” If some amount of restriction would assure a viable domestic industry, there can be no doubt that DOE is required to impose restrictions. The term “shall” makes clear that, in such circumstances, DOE has no discretion to decline to impose restrictions. But whether that mandate applies when restrictions would not assure viability is not directly addressed by the language of the statute. Indeed, we well might infer from the language that the particular issue presented by this case was not the focus of Congress’ concern at the time the relevant provision was enacted. We therefore look to Congress’ express purpose in imposing restriction requirements to determine whether they apply here.

The purpose of the relevant provision could not be articulated more clearly in the statutory language. See United States v. American Trucking Assns., Inc., 310 U. S. 534, 543 (1940) (“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes”). Congress imposed'restriction obligations on DOE to satisfy a single goal: “to assure the maintenance of a viable domestic uranium industry.”

Both parties agree that this is the clear purpose behind the provision, but they put it to different uses. Respondents contend that the statute reveals that Congress made a policy determination that imposing restrictions on the enrichment of foreign-source uranium could always assure the viability of the domestic industry and therefore commanded DOE to impose some restrictions whenever the industry’s viability was threatened or destroyed. Respondents suggest that DOE’s refusal to impose restrictions under the circumstances presented in this case simply reflects DOE’s disagreement with Congress’ policy judgment. See also 825 F. 2d, at 1439 (“DOE’s argument that this policy is not wise in the present uranium market should be made to Congress and not to the courts”).

DOE, in contrast, asserts that the clear congressional purpose defines the proper limit of DOE’s obligation: DOE is required to impose restrictions to the extent necessary to serve a particular goal, and if no extent will serve that goal, then DOE does not violate the statute by declining to impose restrictions. Indeed, DOE suggests, to impose restrictions it knew were incapable of serving the statutory goal would, in fact, be to act outside its authority.

DOE’s reading strikes us as the more natural one. While the parties, on remand, can argue over whether DOE properly determined that no amount of restriction would assure viability, and, indeed, what it means to assure viability, it seems strained to assert that, even if DOE properly determined that no amount of restriction would assure the viability of the industry, Congress nevertheless intended DOE to impose restrictions that were somehow calculated to serve that unattainable goal. Indeed, it is impossible to ascertain from the statute how DOE would calculate the extent of restriction to be imposed under respondents’ interpretation of the statute. The only guidepost DOE has is the amount necessary to assure the viability of the domestic industry. See 825 F. 2d, at 1438 (interpreting the phrase “to the extent necessary to assure the maintenance of a viable domestic industry” as “informing] the DOE of the amount of restriction required”) (emphasis in original). Where DOE determines that no such amount exists, it is without guidance in setting restrictions. The determination of the courts below that DOE was barred from enriching any foreign-source uranium rests on the assumption that the greater the restrictions, the more assured is the domestic industry’s viability. This assumption cannot be grounded in the statutory language and, indeed, for the purpose of this case’s summary judgment status, we must accept DOE’s assertion that the .assumption is false.

Ill

Because we conclude that Congress did not intend to force DOE to impose enrichment restrictions where such restrictions would not achieve the statutory goal they were intended to achieve, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       A purist might regard the word “viable” as misused in this context. It nevertheless appears in the statute and therefore, inescapably, it and its variants are used throughout this opinion. See H. Fowler, Modern English Usage 679 (2d ed. 1965); W. Follett, Modern American Usage 344-345 (1966).

       “Enrichment,” in this context, refers to the process whereby the proportion of the fissionable isotope U-235 is increased from approximately 1% to approximately 3%. Natural, unenriehed, uranium cannot be used to produce commercial electric power.

       The relevant portion of § 161(v) states that the AEC is authorized to offer toll enrichment services provided:
      “That the Commission, to the extent necessary to assure the maintenance of a viable domestic uranium industry, shall not offer such services for source or special nuclear materials of foreign origin intended for use in a utilization facility within or under the jurisdiction of the United States. The Commission shall establish criteria in writing setting forth the terms and conditions under which services provided under this subsection shall be made available including the extent to which such services will be made available for source or special nuclear material of foreign origin intended for use in a utilization facility within or under the jurisdiction of the United States: Provided, That before the Commission establishes such criteria, the proposed criteria shall be submitted to the Joint Committee [on Atomic Energy], and a period of forty-five days shall elapse while Congress is in session . . . unless the Joint Committee by resolution in writing waives the conditions of, or all or any portion of, such forty-five-day period.” 42 U. S. C. §2201(v).

       In 1974, Congress enacted the Energy Reorganization Act of 1974, 88 Stat. 1233, as amended, 42 U. S. C. §5801 et seq.,- which abolished the AEC. See § 5814(a). The functions of the AEC were divided between two regulatory bodies. Its “licensing and related regulatory functions” were transferred to the Nuclear Regulatory Commission. § 5841(f). All other functions, including the enrichment-services program, were transferred to the Energy and Research and Development Administration, § 5814(e), which later became DOE, see §§301 and 703 of Department of Energy Organization Act, 91 Stat. 577, 606, 42 U. S. C. §§ 7151(a) and 7293.

       Between 1979 and 1986, the market price of uranium dropped from $43.25 per pound to $17.00 per pound, which an industry report suggests is well below the conventional United States producers’ average cost of production. See Status of the Domestic Uranium Mining and Milling Industry: The Effects of Imports, Hearing before the Subcommittee on Energy Research and Development of the Senate Committee on Energy and Natural Resources, 97th Cong., 1st Sess., 148 (1981) (statement of Edison Electric Institute reporting drop from 1979 to 1981); 51 Fed. Reg. 27136, n. 12 (1986) (reporting 1986 price). Apparently the market price has remained low. See Weekly Metals Prices, Financial Times, June 8,1988, p. 34, col. 1 (London ed.) (reporting price of $15.75 per pound).

       Petitioners are John S. Herrington, the Secretary of Energy; F. Clark Huffman, Sherry E. Peske, Philip G. Sewell, James W. Vaughn, and Joseph F. Salgado, officers or employees of DOE sued in their official capacities; and DOE itself. For convenience, petitioners are referred to collectively as DOE.

       In this motion, respondents also sought summary judgment on their claim that the criteria that DOE promulgated pursuant to § 170B to assess viability were “fatally flawed.” App. 27. Respondents later sought leave to withdraw this portion of their motion without prejudice. This request was granted by the District Court. App. to Pet. for Cert. 24a.

       While the appeal was pending, Congress adopted a joint resolution for continuing appropriations to provide funding for DOE and other agencies. 100 Stat. 1783. Section 305 of the resolution expressly authorizes DOE to enrich foreign uranium until the present litigation is brought to final judgment. 100 Stat. 1783-210.

       In addition to arguing that its interpretation of § 161(v) is more reasonable, DOE maintains that, even if the two interpretations are equally reasonable, its interpretation is entitled to deference as a “permissible construction” of a statute by the agency charged with the statute’s administration. See Young v. Community Nutrition Institute, 476 U. S. 974, 980 (1986), quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). Although respondents contend that DOE’s interpretation of § 161(v) has not been consistent over the years and is therefore not entitled to deference, see Brief for Respondents 34, it is unclear whether DOE articulated, in advance of this litigation, any interpretation of the statute’s application to the facts presented here. On July 29, 1986, more than one month after the District Court had issued its order granting summary judgment, DOE issued a final rulemaking, stating that it would continue to refuse to impose enrichment restrictions “in order [in part] to formally record DOE’s interpretation of section 161(v).” 51 Fed. Reg. 27134, n. 4 (1986). Because we agree that DOE’s reading of § 161(v) is the more plausible one, we need not consider whether the manner in which DOE has articulated its interpretation should affect the degree of deference it warrants. Cf. Securities Industry Assn. v. Board of Governors, FRS, 468 U. S. 137, 143-144 (1984) (Board counsel’s post hoc rationalizations for agency action entitled to little deference).

       Of course, DOE would be in a different position if Congress expressly had required that restrictions be imposed whenever the industry was not viable without tying the extent of restrictions to be imposed to the achievement of a stated purpose. Were DOE governed by such a statute, its disagreement with the wisdom of the requirement would not give DOE the discretion to ignore it.

       While DOE styled its response to respondents’ motion for summary judgment as a cross-motion for summary judgment as well as a memorandum in opposition, see App. 39, DOE’s successful opposition to respondents’ motion is insufficient to establish that it is entitled to summary judgment in its favor. All we have resolved here is that the industry’s nonviability does not necessarily trigger an obligation to impose enrichment restrictions. Whether DOE, in fact, has violated § 161(v) by failing to impose restrictions is a question to be addressed, in the first instance, on remand after an opportunity for presentation of further evidence and further briefing.


source: Caselaw Access Project

author: Justice Stevens Justice Kennedy,

license: Public Domain

text:
    ARIZONA v. ROBERSON
    No. 87-354.
    Argued March 29, 1988
    Decided June 15, 1988

      Stevens, J., delivered the opinion of the Court,, in which BRENNAN, White, Marshall, Blackmun, and Scalia, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 688. O’CONNOR, J., took no part in the consideration or decision of the case.

      Bruce M. Ferg, Assistant Attorney General of Arizona, argued the cause for petitioner. With him on the briefs were
      Robert K. Corbin, Attorney General, and William J. Schafer III.

      Paul J. Larkin, Jr., argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Fried, Assistant Attorney General Weld, Deputy Solicitor General Bryson, Harriet S. Shapiro, and Joel M. Gershowitz.

      Robert L. Barrasso, by appointment of the Court, 484 U. S. 1024, argued the cause and filed a brief for respondent.

       Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Linley E. Pearson, Attorney General of Indiana, and William E. Daily and Michael Gene Worden, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Duane Woodard of Colorado, Jim Smith of Florida, Jim Jones of Idaho, Frederick J. Cowan of Kentucky, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Mike Greely of Montana, Lacy H. Thornburg of North Carolina, Roger Tellinghuisen of South Dakota, Mary Sue Terry of Virginia, Charlie Brown of West Virginia, and Archie G. McClintock of Wyoming; and for Americans for Effective Law Enforcement, Inc., et al. by David Crump, CouHney A. Evans, Bernard J. Farber, Daniel B. Hales, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak.

   Justice Stevens

delivered the opinion of the Court.

In Edwards v. Arizona, 451 U. S. 477, 484-485 (1981), we held that a suspect who has “expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” In this case Arizona asks us to craft an exception to that rule for cases in which the police want to interrogate a suspect about an offense that is unrelated to the subject of their initial interrogation. Several years ago the Arizona Supreme Court considered, and rejected, a similar argument, stating:

“The only difference between Edwards and the appellant is that Edwards was questioned about the same offense after a request for counsel while the appellant was reinterrogated about an unrelated offense. We do not believe that this factual distinction holds any legal significance for fifth amendment purposes. ” State v. Routhier, 137 Ariz. 90, 97, 669 P. 2d 68, 75 (1983), cert. denied, 464 U. S. 1073 (1984).

We agree with the Arizona Supreme Court’s conclusion.

PH

On April 16, 1985, respondent was arrested at the scene of a just-completed burglary. The arresting officer advised him that he had a constitutional right to remain silent and also the right to have an attorney present during any interrogation. See Miranda v. Arizona, 384 U. S. 436, 467-479 (1966). Respondent replied that he “wanted a lawyer before answering any questions.” This fact was duly recorded in the officer’s written report of the incident. In due course, respondent was convicted of the April 16, 1985, burglary.

On April 19, 1985, while respondent was still in custody pursuant to the arrest three days earlier, a different officer interrogated him about a different burglary that had occurred on April 15. That officer was not aware of the fact that respondent had requested the assistance of counsel three days earlier. After advising respondent of his rights, the officer obtained an incriminating statement concerning the April 15 burglary. In the prosecution for that offense, the trial court suppressed that statement. In explaining his ruling, the trial judge relied squarely on the Arizona Supreme Court’s opinion in State v. Routhier, 137 Ariz., at 97, 669 P. 2d, at 75, characterizing the rule of the Edwards case as “clear and unequivocal.”

The Arizona Court of Appeals affirmed the suppression order in a brief opinion, stating:

“In Routhier, as in the instant case, the accused was continuously in police custody from the time of asserting his Fifth Amendment right through the time of the impermissible questioning. The coercive environment never dissipated.” App. to Pet. for Cert. 24.

The Arizona Supreme Court denied a petition for review. Id., at 25. We granted certiorari to resolve a conflict with certain other state court decisions. 484 U. S. 975 (1987). We now affirm.

hH HH

A major purpose of the Court’s opinion in Miranda v. Arizona, 384 U. S., at 441-442, was “to give concrete constitutional guidelines for law enforcement agencies and courts to follow.” “As we have stressed on numerous occasions, ‘[o]ne of the principal advantages’ of Miranda is the ease and clarity of its application. Berkemer v. McCarty, 468 U. S. 420, 430 (1984); see also New York v. Quarles, [467 U. S. 649, 662-664 (1984)] (concurring opinion); Fare v. Michael C., 442 U. S. [707, 718 (1979)].” Moran v. Burbine, 475 U. S. 412, 425 (1986).

The rule of the Edwards case came as a corollary to Miranda's, admonition that “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U. S., at 474. In such an instance, we had concluded in Miranda, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., at 475. In Edwards, we “reconfirmed] these views and, to lend them substance, emphasize[d] that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterro-gate an accused in custody if he has clearly asserted his right to counsel.” 451 U. S., at 485. We concluded that re-interrogation may only occur if “the accused himself initiates farther communication, exchanges, or conversations with the police.” Ibid. Thus, the prophylactic protections that the Miranda warnings provide to counteract the “inherently compelling pressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination,” 384 U. S., at 467, are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the “inherently compelling pressures” and not the purely voluntary choice of the suspect. As Justice White has explained, “the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.” Michigan v. Mosley, 423 U. S. 96, 110, n. 2 (1975) (concurring in result).

We have repeatedly emphasized the virtues of a bright-line rule in cases following Edwards as well as Miranda. See Michigan v. Jackson, 475 U. S. 625, 634 (1986); Smith v. Illinois, 469 U. S. 91, 98 (1984) (per curiam); Solem v. Stumes, 465 U. S. 638, 646 (1984); see also Shea v. Louisiana, 470 U. S. 51 (1985); Oregon v. Bradshaw, 462 U. S. 1039, 1044 (1983) (plurality opinion) (Rehnquist, J.). In Fare v. Michael C., 442 U. S. 707, 718 (1979), we explained that the “relatively rigid requirement that interrogation must cease upon the accused’s request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the de-cisión in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” The Edwards rule thus serves the purpose of providing “clear and unequivocal” guidelines to the law enforcement profession. Surely there is nothing ambiguous about the requirement that after a person in custody has expressed his desire to deal with the police only through counsel, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 U. S., at 484-485.

I » — I HH

Petitioner contends that the bright-line, prophylactic Edwards rule should not apply when the police-initiated interrogation following a suspect’s request for counsel occurs in the context of a separate investigation. According to petitioner, both our cases and the nature of the factual setting compel this distinction. We are unpersuaded.

Petitioner points to our holding in Michigan v. Mosley, 423 U. S., at 103-104 (quoting Miranda v. Arizona, 384 U. S., at 479), that when a suspect asserts his right to cut off questioning, the police may “ ‘scrupulously honor’ ” that right by “immediately ceas[ing] the interrogation, resum[ing] questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restrict[ing] the second interrogation to a crime that had not been a subject of the earlier interrogation.” 423 U. S., at 106. The police in this case followed precisely that course, claims the State. However, as Mosley made clear, a suspect’s decision to cut off questioning, unlike his request for counsel, does not raise the presumption that he is unable to proceed without a lawyer’s advice. See id., at 101, n. 7; id., at 110, n. 2 (White, J., concurring in result), quoted supra, at 681.

Petitioner points as well to Connecticut v. Barrett, 479 U. S. 523, 525 (1987), which concerned a suspect who had “told the officers that he would not give a written statement unless his attorney was present but had ‘no problem’ talking about the incident.” We held that this was a limited request for counsel, that Barrett himself had drawn a distinction between oral and written statements and thus that the officers could continue to question him. Petitioner argues that Roberson’s request for counsel was similarly limited, this time to the investigation pursuant to which the request was made. This argument is flawed both factually and legally. As a matter of fact, according to the initial police report, respondent stated that “he wanted a lawyer before answering any questions.” As a matter of law, the presumption raised by a suspect’s request for counsel — that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance — does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.

That a suspect’s request for counsel should apply to any questions the police wish to pose follows, we think, not only from Edwards and Miranda, but also from a case decided the same day as Barrett. In Colorado v. Spring, 479 U. S. 564, 577 (1987), we held that “a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.” In the face of the warning'that anything he said could be used as evidence against him, Spring’s willingness to answer questions, without limiting such a waiver, see Connecticut v. Barrett, supra, indicated that he felt comfortable enough with the pressures of custodial interrogation both to answer questions and to do so without an attorney. Since there is “no qualification of [the] broad and explicit warning” that “anything [a suspect] says may be used against him,” 479 U. S., at 577 (emphasis in original), Spring’s decision to talk was properly considered to be equally unqualified. Conversely, Roberson’s unwillingness to answer any questions without the advice of counsel, without limiting his request for counsel, indicated that he did not feel sufficiently comfortable with the pressures of custodial interrogation to answer questions without an attorney. This discomfort is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further conversation about the investigation; unless he otherwise states, see Connecticut v. Barrett, supra, there is no reason to assume that a suspect’s state of mind is in any' way investigation-specific, see Colorado v. Spring, supra.

Finally, petitioner raises the case of Maine v. Moulton, 474 U. S. 159, 161 (1985), which held that Moulton’s “Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by him to his codefendant, a secret government informant, after indictment and at a meeting of the two to plan defense strategy for the upcoming trial.” That case did not involve any Miranda issue because Moulton was not in custody. In our opinion, we rejected an argument that the statements should be admissible because the police were seeking information regarding both the crime for which Moulton had already been indicted, and a separate, inchoate scheme. Following Massiah v. United States, 377 U. S. 201, 207 (1964), we recognized, though, that the continuing investigation of uncharged offenses did not violate the defendant’s Sixth Amendment right to the assistance of counsel. Our recognition of that fact, however, surely lends no support to petitioner’s argument that in the Fifth Amendment context, “statements about different offenses, developed at different times, by different investigators, in the course of two wholly independent investigations, should not be treated the same.” Brief for Petitioner 32. This argument overlooks the difference between the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination. The former arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him. The latter is protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges.

In sum, our cases do not support petitioner’s position.

> HH

Petitioner’s attempts at distinguishing the factual setting here from that in Edwards are equally unavailing. Petitioner first relies on the plurality opinion in Oregon v. Bradshaw, 462 U. S., at 1044 (Rehnquist, J.), which stated that Edwards laid down “a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Ed wards was.” Petitioner reasons that “the chances that an accused will be questioned so repeatedly and in such quick succession that it will ‘undermine the will’ of the person questioned, or will constitute ‘badger[ing],’ are so minute as not to warrant consideration, if the officers are truly pursuing separate investigations.” Brief for Petitioner 16. It is by no means clear, though, that police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody. Further, to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling. Thus, we also disagree with petitioner’s contention that fresh sets of Miranda warnings will “reassure” a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled. See ibid. Especially in a case such as this, in which a period of three days elapsed between the unsatisfied request for counsel and the interrogation about a second offense, there is a serious risk that the mere repetition of the Miranda warnings would not overcome the presumption of coercion that is created by prolonged police custody.

The United States, as amicus curiae supporting petitioner, suggests that a suspect in custody might have “good reasons for wanting to speak with the police about the offenses involved in the new investigation, or at least to learn from the police what the new investigation is about so that he can decide whether it is in his interest to make a statement about that matter without the assistance of counsel.” Brief for United States as Amicus Curiae 11. The simple answer is that the suspect, having requested counsel, can determine how to deal with the separate investigations with counsel’s advice. Further, even if the police have decided temporarily not to provide counsel, see n. 6, supra, they are free to inform the suspect of the facts of the second investigation as long as such communication does not constitute interrogation, see Rhode Island v. Innis, 446 U. S. 291 (1980). As we have made clear, any “further communication, exchanges, or conversations with the police” that the suspect himself initiates, Edwards v. Arizona, 451 U. S., at 485, are perfectly valid.

Finally, we attach no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel. In addition to the fact that Edwards focuses on the state of mind of the suspect and not of the police, custodial interrogation must be conducted pursuant to established procedures, and those procedures in turn must enable an officer who proposes to initiate an interrogation to determine whether the suspect has previously requested counsel. In this case respondent’s request had been properly memorialized in a written report but the officer who conducted the interrogation simply failed to examine that report. Whether a contemplated reinterrogation concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists. The police department’s failure to honor that request cannot be justified by the lack of diligence of a particular officer. Cf. Giglio v. United States, 405 U. S. 150, 154 (1972).

The judgment of the Arizona Court of Appeals is

Affirmed.

Justice O’Connor took no part in the consideration or decision of this case.

Justice Kennedy,

with whom The Chief Justice joins, dissenting.

The majority frames the case as one in which we are asked to “craft an exception” to Edwards v. Arizona, 451 U. S. 477 (1981). Ante, at 677. The implication from this, it would seem, is that the burden of proof falls on those who say no constitutional or preventative purpose is served by prohibiting the police from asking a suspect, once he has requested counsel, if he chooses to waive that right in a new and independent investigation of a different crime. . But the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its' expansion. Our justification must be consistent with the practical realities of suspects’ rights and police investigations. With all respect, I suggest the majority does not have a convincing case. The majority’s rule is not necessary to protect the rights of suspects, and it will in many instances deprive our nationwide law enforcement network of a legitimate investigative technique now routinely used to resolve major crimes.

When a suspect is in custody for even the most minor offense, his name and fingerprints are checked against master files. It is a frequent occurrence that the suspect is wanted for questioning with respect to crimes unrelated to the one for which he has been apprehended. The rule announced today will bar law enforcement officials, even those from some other city or other jurisdiction, from questioning a suspect about an unrelated matter if he is in custody and has requested counsel to assist in answering questions put to him about the crime for which he was arrested.

This is the first case in which we are asked to apply Edwards to separate and independent investigations. The statements deemed inadmissible in Edwards and in our later cases applying its doctrine were statements relating to the same investigation in which the right to counsel was invoked. See Connecticut v. Barrett, 479 U. S. 523 (1987); Smith v. Illinois, 469 U. S. 91 (1984); Solem v. Stumes, 465 U. S. 638 (1984); Oregon v. Bradshaw, 462 U. S. 1039 (1983); Wyrick v. Fields, 459 U. S. 42 (1982). The majority’s extension of the Edwards rule to separate and independent investigations is unwarranted.

The petitioner in Edwards, arrested on serious charges, first submitted to interrogation but then requested an attorney. Questions ceased for a while, but when two detectives came to the jail the next morning, a guard advised him that he must talk with them. The petitioner in Edwards waived his right to silence and implicated himself in the crime. We reversed the conviction, holding that an accused who expresses his desire to face further questioning with counsel present will not be subject to further interrogation until counsel is made available, unless the accused initiates the exchange himself.

Our ultimate concern in Edwards, and in the cases which follow it, is whether the suspect knows and understands his rights and is willing to waive them, and whether courts can be assured that coercion did not induce the waiver. That concern does not dictate the result reached by the Court today, for the dangers present in Edwards and later cases are insubstantial here.

The rule in Edwards “was in effect a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was.” Oregon v. Bradshaw, supra, at 1044 (plurality opinion). Where the subsequent questioning is confined to an entirely independent investigation, there is little risk that the suspect will be badgered into submission.

The Court reasons that it is “by no means clear” that “police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody.” Ante, at 686. That misses the point. Unless there are so many separate investigations that fresh teams of police are regularly turning up to question the suspect, the danger of badgering is minimal, and insufficient to justify a rigid per se rule. Whatever their eagerness, the police in a separate investigation may not commence any questioning unless the suspect is readvised of his Miranda rights and consents to the interrogation, and they are required by Edwards to cease questioning him if he invokes his right, to counsel. Consequently, the legitimate interest of the suspect in not being subjected to coercive badgering is already protected. The reason for the Edwards rule is not that confessions are disfavored but that coercion is feared. The rule announced today, however, prohibits the police from resuming questions, after a second Miranda warning, when there is no more likelihood of coercion than when the first interrogation began.

The Court suggests that the suspect may believe his rights are fictitious if he must assert them a second time, but the support for this suggestion is weak. The suspéct, having observed that his earlier invocation of rights was effective in terminating questioning and having been advised that further questioning may not relate to that crime, would understand that he may invoke his rights again with respect to the new investigation, and so terminate questioning regarding that investigation as well. Indeed, the new warnings and explanations will reinforce his comprehension of a suspect’s rights.

I note that the conduct of the police in this case was hardly exemplary; they reinitiated questioning of respondent regarding the first investigation after he had asserted his right to counsel in that investigation. The statements he gave in response, however, properly were excluded at trial-for all purposes except impeachment. Any sense of coercion generated by this violation which carried over into the questioning on the second offense would of course be taken into account by a court reviewing whether the waiver of Miranda rights in the second investigation was voluntary, and the per se rule announced today is therefore not necessary to respond to such misconduct.

Allowing authorities who conduct a separate investigation to read the suspect his Miranda rights and ask him whether he wishes to invoke them strikes an appropriate balance, which protects the suspect’s freedom from coercion without unnecessarily disrupting legitimate law enforcement efforts. Balance is essential when the Court fashions rules which are preventative and do not themselves stem from violations of a constitutional right. Michigan v. Tucker, 417 U. S. 433, 444 (1974). By contrast with the Fourth Amendment exclusionary rule, for instance, the rule here operates even absent constitutional violation, see Oregon v. Elstad, 470 U. S. 298, 306-307 (1985), and we should be cautious in extending it. The Court expresses a preference for bright lines, but the line it draws here is far more restrictive than necessary to protect the interests at stake.

By prohibiting the police from questioning the suspect regarding a separate investigation, the Court chooses to presume that a suspect has made the decision that he does not wish to talk about that investigation without counsel present, although that decision was made when the suspect was unaware of even the existence of a separate investigation. The underlying premise seems to be that there are two types of people: those who never talk without a lawyer and those who always talk without a lawyer. The more realistic view of human nature suggests that a suspect will want the opportunity, when he learns of the separate investigations, to decide whether he wishes to speak to the authorities in a particular investigation with or without representation.

In other contexts, we have taken a more realistic approach to separate and independent investigations. In Maine v. Moulton, 474 U. S. 159 (1985), we held that the Sixth Amendment right to counsel barred admission of statements elicited from a criminal defendant by a government informant when the statements related , to the charge on which the defendant had been indicted. We were careful to note, however, that the rule would have been otherwise had the statements related to a different charge. “[T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities.” Id., at 180. Similarly, we held in Michigan v. Mosley, 423 U. S. 96 (1975), that a suspect who had been arrested on charges of committing robbery and who had invoked his right to silence could be questioned later about an unrelated murder, if first read his Miranda rights. The Court correctly points out that neither of these cases necessarily control the one before us; Moulton involved the Sixth Amendment right to counsel and Mosley involved the Fifth Amendment right to silence, while this case involves the Fifth Amendment right to counsel. Moulton and Mosley nevertheless reflected an understanding that the invocation of a criminal suspect’s constitutional rights could be respected, and the opportunities for unfair coercion restricted, without the establishmént of a broad-brush rule by which the assertion of a right in one investigation is automatically applied to a separate and independent one.

In considering whether to extend the Edwards rule to this case, the choice is not between holding, as the Court does, that such statements will never be admissible, and holding that such statements will always be admissible. The choice is between the Court’s absolute rule establishing an irrebut-table presumption of coercion, and one which relies upon known and tested warnings, applied to each investigation as required by Edwards and Miranda v. Arizona, 384 U. S. 436 (1966), to insure that a waiver is voluntary. The problems to which Edwards was addressed are not present here in any substantial degree. Today’s rule will neither serve the interest of law enforcement nor give necessary protection to the rights of those suspected of crime. I respectfully dissent.

       Tr. 26 (Apr. 3, 1986).

       “Routhier was based on Edwards versus Arizona which held that once the defendant has invoked his right to counsel, he may not be re-interrogated unless counsel has been made available to him or he initiates the conversation.
      “The Routhier court states that whether the defendant is re-interrogated about the same offense or an unrelated offense makes no difference for Fifth Amendment purposes.
      “The Routhier court further stated that Edwards is clear and unequivocal, there is to be no further interrogation by authorities once the right to counsel is invoked. The Court in that ease finding that the assertion of the right to counsel is an assertion by the accused that he is not competent to deal with authorities without legal advice. And that the resumption of questioning by the police without the requested attorney being provided, strongly suggests to the accused that he has no choice but to answer.” App. to Pet. for Cert. 15-16.

       See State v. Dampier, 314 N. C. 292, 333 S. E. 2d 230 (1985) (Edwards inapplicable to interrogation by authorities from different State concerning unrelated matter); McFadden v. Commonwealth, 225 Va. 103, 300 S. E. 2d 924 (1983) (Edwards inapplicable when authorities from different county question suspect about different crime); see also Lofton v. State, 471 So. 2d 665 (Fla. App.) (no Edwards violation when suspect is represented by attorney in unrelated matter, then questioned without counsel present), review denied, 480 So. 2d 1294 (Fla. 1985); State v. Newton, 682 P. 2d 295 (Utah 1984) (same); State v. Cornethan, 38 Wash. App. 231, 684 P. 2d 1355 (1984) (alternative holding: Edwards inapplicable to interrogation in unrelated investigation; court also holds that representation by attorney in unrelated matter does not suffice as request for counsel for Edwards purposes); cf. State v. Harriman, 434 So. 2d 551 (La. App.) (adopts petitioner’s view here, but only after holding that suspect had initiated conversation regarding second investigation), writ denied, 440 So. 2d 729 (La. 1983); but see United States ex rel. Espinoza v. Fairman, 813 F. 2d 117, 124-126 (CA7) (same rule as Arizona), cert. denied, 483 U. S. 1010 (1987); Luman v. State, 447 So. 2d 428 (Fla. App. 1984). (same); Radovsky v. State, 296 Md. 386, 464 A. 2d 239 (1983) (same); see also Boles v. Foltz, 816 F. 2d 1132, 1137-1141 (CA6) (Gibson, J., dissenting) (same; majority does not reach issue), cert. denied, 484 U. S. 857 (1987); cf. United States v. Scalf, 708 F. 2d 1540, 1544 (CA10 1983) (knowledge of request for counsel “is imputed to all law enforcement officers who subsequently deal with the suspect”); State v. Arceneaux, 425 So. 2d 740 (La. 1983) (same).

       It is significant that our explanation of the basis for the “per se aspect of Miranda” in Fare v. Michael C., 442 U. S., at 719, applies to the application of the Edwards rule in a case such as this. As we stated in Fare:

      “The rule in Miranda . . . was based on this Court’s perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that ‘the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system’ established by the Court. [384 U. S.], at 469. Moreover, the lawyer’s presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence. Id., at 470.
      “The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country.” 442 U. S., at 719.

       Tr. 26 (Apr. 3, 1986) (emphasis added); see id., at 23; Tr. 12 (Oct. 17, 1985, a.m.).

       The United States, as amicus curiae supporting petitioner, suggests similarly that “respondent’s failure to reiterate his request for counsel to [the officer involved in the second investigation], even, after [that officer] gave respondent complete Miranda warnings, could not have been the result of any doubt on respondent’s part that the police would honor a request for counsel if one were made.” Brief for United States as Amicus Curiae 10. This conclusion is surprising, considering that respondent had not been provided with the attorney he had already requested, despite having been subjected to police-initiated interrogation with respect to the first investigation as well. See n. 7, infra. We reiterate here, though, that the “right” to counsel to protect the Fifth Amendment right against self-incrimination is not absolute; that is, “[i]f authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.” Miranda v. Arizona, 384 U. S. 436, 474 (1966).

       Indeed, the facts of this case indicate that different officers investigating the same offense are just as likely to bypass proper procedures as an officer investigating a different offense, inasmuch as the record discloses no less than five violations of the Edwards rule, four concerning the April 16 burglary and only one concerning the April 15 burglary. See Tr. 23-24, 49 (Apr. 3, 1986); Tr. 8-12 (Oct. 17, 1985, p.m.). It is only the last violation that is at issue in this case.