The opinion
BUSSEY, Judge
(dissenting).
I must respectfully disagree with the opinion rendered by Judge Brett insofar as he concludes:
(1) that the testimony of O’Neal, given before the grand jury, was coerced;
(2) that O’Neal was the target of the grand jury investigation; and
(3) that the failure to advise the defendant of his constitutional rights against self-incrimination prior to the taking of his testimony before the grand jury, bars the admission of his grand jury testimony on his subsequent trial for Perjury.
In the absence of some testimony supporting my colleagues conclusions, I believe it is as reasonable to assume 1 :
(1)that the testimony of the defendant given before the grand jury was freely and voluntarily given;
(2) that the grand jury investigation was a general investigation of the bail bonding business and the defendant was not the “target” of the investigation; and
(3) that the failure to give a witness appearing before the grand jury the Miranda warning does not ipso facto bar the admission of such testimony in a subsequent trial for Perjury.
The first two conclusions are conclusions of fact to be adduced from an examination of the record, but the third conclusion is a conclusion of law in which I rely on the decision rendered in Robinson v. United States, 9 Cir., 401 F.2d 248 , wherein the Court, speaking through the Honorable Judge Warren Madden had this to say:
“In the case of United States v. Scully, 225 F.2d 113, 116 , C.A.2 (1955) Judge Medina wrote:
‘ * * * the mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a grand jury.’
We agree with the quoted statement. It was cited with approval in United States v. Parker, 244 F.2d 943 , C.A. 7 (1957), cert. den. 355 U.S. 836 , 78 S.Ct. 61 , 2 L.Ed.2d 48 .
We do not agree with the defendant’s contention that a witness, in court pursuant to a subpoena, is under compulsion similar in all respects to the compulsion of being in the custody of police as a suspect upon whom the investigation has focused. True, there is an important dictum to the effect that in certain circumstances such as that of an illiterant or ignorant witness who gives self-incriminating testimony, that testimony may not later be used to convict him of the crime to which his self-incriminating *73 testimony related. See United States v. Orta, 253 F.2d 312 , C.A. 5 (1958) and see Rogers v. United States, 340 U.S. 367 , 71 S.Ct. 438 , 95 L.Ed. 344 (1951) for the usually applicable rule that the privilege of a witness not to incriminate himself is waived if not claimed.”
In the instant case the defendant was an intelligent man whose business partner in the bail bonding business had practiced extensively in the defense of criminal cases. I do not believe it is unreasonable to assume that Mr. O’Neal was thoroughly aware of his privilege against self-incrimination prior to his appearance before the grand jury.
I would affirm the conviction; moreover, I specifically dissent on the instructions directing the trial court to enter an order dismissing the case, for it is possible that evidence exists independent of the defendant’s grand jury testimony, which would independently support the charge of Perjury.
. Particularly is this true when the admissibility of the “confession” is not attacked in the trial court on the grounds that it was coerced or that the defendant was not advised of his constitutional rights