Petition — United States v. Mandujano

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DEC 16 1974

MICHAEL RODAK

No. 4-754 i

Iu the Supreme Court of the United States

OcroBerR TERM, 1974

UniTeD STATES OF AMERICA, PETITIONER

Roy MANDUJANO

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROBERT H. BORE,

Solicitor Gencral,

HENRY E. PETERSEN,

Assistant Attorney General,

ROBERT B. REICH,

Aassietant to the Soliciter General,

PETER M. SHANNON, Jr.,

JAMES HUNOLT,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

ee ee, a a l

pe a ea Ny Se 1

Questions presented. ______- ST ee ee 2

Constitutional provision and statute involved__________- 2

Pt, cntidetlitase chen seadedanebibebantnmenia 3

Reasons for granting the writ___............---------- 6

I ans. cnsencinslbubedinierhtretandeiiedupiindubendaiaed 20

Cases:

Blair v. United States, 250 U.S. 273_______________- 12

Bryson v. United States, 396 U.S. 64__...--.---.---- 18,19

Commonwealth of Pennsylvania v. Columbia Investment

SS | ene s

Cargill v. United States, 381 F. 2d 849, certiorari

denied, 389 U.S. 1041...........--..---------.- 18

Counselman v. Hitchcock, 142 U.S. 547_..__.________ 9

Escobedo v. Illinois, 378 U.S. 478__.___-..----- 2 ee 14

Glickstein v. United States, 222 U.S. 139___________- 18

Harris v. New York, 401 U.S. 222._.____.--.- eee 18

Kastigar v. United States, 406 U.S. 441_---_--._---- 13

Kirby v. Illinois, 406 U.S. 682.-_....-...--------2. 13

Michigan v. Tucker, No. 73-482, decided June 10,

ae ne ee ee 10, 13

Miranda v. Arizona, 384 U.S. 436_.....---.----.--. 10,12

Orozco v. Teras, 394 U.S. 324___...-_----.--- eee 10

Schneckloth v. Bustamonte, 412 U.S. 218_-...._-_____- 9

Sherman v. United States, 356 U.S. 369... ---_-_-__- 20

Sorrells v. United States, 287 U.S. 435_.-..-.--.--_- 20

Stanley v. United States, 245 F. 2d 427__-_.__..____- 8

United States v. Calandra, 414 U.S. 338____- adiedaiel 7. 13, 20

United States v. Corallo, 413 F. 2d 1306, certiorari

denied, 396 U.S. 958_............-------------- g

United States v. Cross, 170 F. Supp. 303_.--....-._- 19

United States v. DiGiovanni, 397 F. 2d 409, certiorari

Gee We Se ee cessudedconscaddmonenads 18

565-354—74——1

Cases—Continued

United States v. DiMichele, 375 F. 2d 959, certiorari Page

I SN a dd. aa ceckeidaen 8

United States v. Dionisio, 410 U.S. 1-0-2 eee 10

United States v. Fruchtmar, 282 F. Supp. 537_..... — 16, 19

United States v. Knor, 396 U.S. 177... eee 18

United States v. Monia, 317 U.S. 424... 22 ee 9,13

United States v. Nickels, | & |: See 18

United States v. Parker, 244 F. 2d 943 certiorari de nied

gS SR re ees eee oe a 18

United States v. Pommerening, 500 F. 2d 92 petition

for a writ of certiorari pending, No. 72-229_______ 18

United States v. Rangel, 365 F. Supp. 155 -_-------- 5

United States v. Russell, 411 U.S. 423_-._--_---- 20

United States v. Scully, 225 F. 2d 113, certiorari denied,

NR oe S

United States v. Thayer, 214 A 5 eee 19

United States v. Washington, No. 7609, decided Novem-

ber 6, 1974 (D.C. Ct. App).........-...-...._--. 8

United States v. Winter, 348 F. 2d 204, certiorari

denied, 382 U.S. 955_____- RSC ee ten KR ey 18

United States v. Wong, C.A. 9 No. 74-1636, decided

September 24, 1974, petition for a writ of certiorari

pending, No. 74-635._...._._....._....__..__.__.. 6,8,9,12

United States ex rel. Vajtaver v. Commissioner 273 v.s..

A eae ae a a So oS Dee) 13

Constitution and statutes:

United States Constitution:

Fifth Amendment._______...___. _____.____.. 2

Sixth Amendment___________. SP 5 ee 14

fe ee ee ae 2

Criminal Justice Act, 18 U.S.C. 3006A(a)____..____- 13

a ee ek Le EES 4,5

Iu the Supreme Gourt of the United States

OcroBer Term, 1974

No.

UNITED STATES OF AMERICA, PETITIONER

Roy MANDUJANO

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

p. 1A-20A) is reported at 496 F. 2d 1050, The opinion

of the district court (App. D, trfra, pp. 25A-42.A) is

reported at 365 F. Supp. 155.

JURISDICTION

The judgment of the court of appeals (App. 3B,

infra, pp. 21A-22A) was entered on June 28, 1974. A

petition for rehearing was denied on October 16, 1974

(1)

(App. C, infra, pp, 23A-24A). On November 12, 1974,

Mr. Justice Powell extended the time to petition for a

writ of certiorari to and ineluding December 15, 1974

(a Sunday). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether a “putative defendant” called as a grand

jury witness is entitled to be warned, prior to testi-

fying, of his Fifth Amendment privilege.

2. Whether such a “putative defendant’’ is entitled

prior to testifying to complete Miranda warnings.

3. Whether every grand jury witness against whom

the government has incriminating evidence at the time

he is called to testify is a “putative defendant.”

4. Whether, if a warning of some sort is required,

the government’s failure to give adequate warning to

a “putative defendant” should result in the suppres-

sion of his testimony in a subsequent prosecution for

perjury.

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person * * * shall be compelled in any

criminal case to be a witness against him-

—.

2. 18 U.S.C. 1623 provides in pertinent part:

(a) Whoever under oath in any proceeding

before or ancillary to any court or grand jury

of the United States knowingly makes any false

material declaration * * * shall be fined not

more than $10,000 or imprisoned not more than

five years, or both.

* * ~ ha *

STATEMENT

On or before March 29, 1973, a government agent

assigned to the Office of Drug Abuse Law Enforce-

ment, received information that respondent was deal-

ing in narcoties (Tr. 24).’ The agent met respondent

on that date, discussed the purchase of one ounce of

heroin, and gave respondent $650 (Tr. 24, 26). Re-

spondent thereupon made several telephone calls in

order to procure the heroin, When respondent’s at-

tempts to procure heroin were unsuccessful, respon-

dent returned the money to the agent (Tr. 26-27).

The agent subsequently informed the goverment

prosecutor, who was seeking witnesses who had pos-

sible knowledge of local narcotics traffic to testify he-

fore a special drug grand jury then in session, that

respondent would be an appropriate grand jury wit-

ness (Tr. 29). The prosecutor was informed of the

aborted heroin transaction, but he later informed

the district court, he did not at that time consider

the transaction to have been an indictabie offense

(Tr. 19).

Respondent was called before the grand jury on

May 2, 1973, to determine the identities of his poten-

'“Tr.” refers to the one volume transcript of the suppres-

sion hearing held on August 28, 1975, “8/24 Tr.” refers to the

one volume transcript of the suppression hearing held on Au-

gust 24, 1973. “G. Tr.” refers to the transcript of respondent's

grand jury testimony, a copy of which has been lodged with

the Clerk of this Court.

tial sources of heroin (Tr. 20). The prosecutor testi-

fiel that he did not intend to seek an indictment

against respondent at that time (Tr. 15-16). At the

outset of respondent’s appearance, the following eol-

loquy took place (G,. Tr. 3-4):

Q. * * * Now you are required to answer all

the questions that 1 ask you except for the ones

that you feel would tend to incriminate you. Do

you understand that ?

A. Do I answer all the questions you ask ?

Q. You have to answer all the questions ex-

cept for those you think will incriminate you in

the commission of a crime. Is that clear?

A. Yes, sir.

Q. You don’t have to answer questions which

would incriminate you. All other questions you

have to answer openly and truthfully. And, of

course, if you do not answer those truthfully,

in other words, if you lie about certain ques-

tions, you could possibly be charged with per-

jury. Do you understand that ?

A. Yes, sir.

In order to lay the foundation for broader ques-

tions designed to elicit the names of drug traffickers

(Tr. 21-22), the prosecutor then asked respondent if

during the past year he had talked to anyone about

selling heroin, had promised to obtain and sel! heroin

to anyone, or had accepted money to buy heroin for

anyone (G. Tr. 19-20). Respondent denied involve-

ment in any such events or activities.

Respondent was indicted on June 13, 1973, for at-

tempt to distribute heroin, in violation of 21 U.S.C.

846, and for making false declarations before the

grand jury, in violation of 18 U.S.C. 1625.

Respondent subsequently moved to suppress his tes-

timony before the grand jury. The district court, after

an evidentiary hearing, granted the motion on the

cround that respondent was a “putative” or virtual

defendant when called before the grand jury and was

therefore entitled to full Miranda warnings (App. D,

infra, pp. 37A-38A).’ Because the warnings he re-

ceived were not full Miranda warnings, the district

court suppressed respondent’s testimony.’

The court of appeals affirmed, adopting the district

court’s finding that respondent was a ‘‘virtual or pu-

tative defendant’? when called before the grand jury,

and agreeing with the district court that such a **pu-

tative defendant” is entitled to full Miranda warnings

* Respondent's motion to suppress was considered jointly with,

a motion raised under similar circumstances and granted by

the district court in United States v. Rangel, affirmed, 496 F.

2d 1059 (CLA. 5). In Rangel, however, the warning given the

witness prior to testifying involved a double negative, which

mace it confusing and ambiguous, and contained an implicit

threat that the witness would be held in contempt if he wrongly

refused to answer. Because these factual circumstances raise a

question whether Rangel may not in fact have been compelled

in some significant way to testify by the form of his warning

or deterred by it from invoking his privilege, Rangel’s case

does not squarely present the issue we are raising, and we are

not petitioning in his case.

*The government, without the use of respondent's grand jury

testimony, proceeded to trial against respondent on the attempt

to sell heroin count. Respondent's conviction on the attempt

count was affirmed by the court of appeals in an opinion sep-

arate from the opinion in the present case. ['nited States v.

Mandujano, 499 F. 2d 370, Respondent's petition for a writ of

certiorari is present!y pending before this Court, No. 74-5441.

(App. A, infra, p. 12A). The court likewise found

the warnings given respondent inadequate and rea-

soned that the prosecutor’s conduct, which “smacked

of entrapment,” was therefore ‘unfair’? (App. A,

infra, p. 15A). The court concluded that the en-

tire proceedings violated respondent’s due process

rights under the Fifth Amendment (App. A, infra, p.

19A), and therefore agreed with the district court that

respondent's perjurious testimony should be sup-

pressed.

REASON FOR GRANTING THE WRIT

This case presents the same two related and impor-

tant questions concerning procedures for questioning

grand jury witnesses and remedies for the govern-

ment’s failure to follow required procedures that

we have presented in our pending petition for a writ

of certiorari to review the decision of the Ninth Cir-

cenit in United States v. Rose W ong, No. 74-635, and

over which the cirenits are in conflict: first, whether

a grand jury witness suspected of participating in the

substantive offense must, prior to testifying, be ad-

vised of his Fifth Amendment privilege against self-

incrimination; and second, assuming that some such

advice is constitutionally required, whether the gov-

ernmment’s failure to give an adequate warning should

result in suppression of a “putative defendant's”

testimony in a subsequent prosecution for perjury.

This case also poses two additional, related issues

with which the court of appeals’ opinion in Rose

Wong, C.A. 9, No. 74-1636, decided September 23,

1974, and our petition in that case, did noi directly

deal (in connection with which it also is assumed that

some warning is constitutionally required): (1)

whether the “putative defendant” concept is to be de-

fined by reference to subjective criteria reflecting the

prosecutive intent of government attorneys, or objec-

tive criteria that consider whether the government

possesses incriminating evidence against the witness

at the time he is called to testify; and (2) whether

complete Miranda warnings are constitutionally re-

quired, including a statement of a right to remain

completely silent and notice of a right to appointed

counsel to be present outside the grand jury room.

In requiring that complete Miranda warnings be

given prior to the grand jury testimony of a “putative

defendant” (defined solely by reference to the fact

that the prosecutor has incriminating evidence against

him) and suppressing the perjured testimony of

a “putative defendant” who had not received such

warnings, the court of appeals in the instant case

significantly and unjustifiably impeded the in-

vestigative power of grand juries, which ‘‘must be

broad if its public responsibility is adequately to be

discharged.” United States v. Calandra, 414 U.S. 338,

344. It also adopted an unduly expansive notion of

the content of the self-inerimination provision of the

Fifth Amendment, which does not require the

giving of a warning appropriate to police interroga-

tion in the grand jury context and does not in any

event permit a witness who receives an inadequate

warning to lie to the grand jury with impunity.

1. In holding that the Due Process Clause of the

Fifth Amendment requires that a so-called **putative

defendant”’ be given, prior to grand jury questioning

full Miranda warnings, the court of appeals in the

instant ease, as did the Ninth Circuit in Rose Wong,

supra, carved out an unwarranted exception to the

well-established rule that grand jury witnesses need

not be given any warnings prior to testifying even

when their responses might tend to incriminate them.’

rhe court distinguished a “putative defendant’—

“someone whom the government had knowledge of

having committed a crime, * * * whom the govern-

ment had planned to indict * * * and against whom

it was gathering incriminating evidence” (App. A

infra, p. 7A4)—from an ordinary grand jury wthanes,

holding that the former is entitled to Miranda a

ings hefore testifying.’ We submit, as we did in our

‘See, OGs lnited States vy. Seully, 225 F. 2d 113. 116 (CLA

2). certiorari denied, 350 TS, 897; United States vy. C levalile,

och oa 1306 ( C.A. 2). certiorari denied, 396 U.S, 958; United

é 7 ea v. Di Michele, 375 ¥F. 2d 959 (CLA, 3), certiorari denied

389 U.S. 838; see also Commonwealth of Pennsylv +"

Columbia Inve stment Cor pr. et al. 525 A. 2d 289 (Pa ‘Sen. © .

™ Phe Sixth Circuit has suggested that it would sbenrie te

, hes 74 — for purposes of requiring warnings. Nee

: we | ates \ Lurenberg, STAB, 2d 241, 246; Stanley vy United

Ntates, 245 F. 2d 427, 434. In no case, however, has the Sixth Cir

euit intimated that any blanket “right to remain silent” ould

apply toa “putative defendant” before the grand jury

Phe District of Columbia Court of Appeals has recent) y held

that a “putative defendant” must be given Miranda me oa

before appearing in the grand jury room for questioni aan

must also be informed that he is considered to be a me or

defendant.” United States vy. Washi

-—sr . = . ® ashin to a, D. » s ’ >

(609, decided November 6, 1974, slip = 4 ~ po

should

petition for a writ of certiorari in Rose Wong (a copy

of which we are sending to counsel for respondent),

that this distinction is warranted by neither precedent

nor logic, and that no grand jury witness is entitled,

prior to testifying, to any warning of his Fifth

Amendment rights, let alone complete Miranda

warnings.

The Fifth Amendment speaks of compulsion, “It

does not preclude a [grand jury] witness from testi-

fying voluntarily in matters which may incriminate

him.” United States v. Monia, 317 U.S, 424, 427. Nor

does failure to advise of rights make subsequent testi-

mony any less voluntary. See Schneckloth v. Busta-

monte, 412 U.S, 218, 226. Although a witness who

testifies before a grand jury may invoke the Fifth

Amendment privilege if he has reasonable grounds

for believing that truthful responses will tend to he

incriminating, Counselman v. Hitchcock, 142 U.S, 547,

‘he must claim [the privilege] or he will not be con-

sidered to have been ‘compelled’ within the meaning of

the Amendment,” United States v. Monia, supra, 31%

U.S. at 427, even if not specifically informed of the

right to invoke the privilege.’

A respondent’s answers before a grand jury are no

less voluntary because he is suspected of involvement

in the criminal enterprise under investigation than are

the responses of any other witness, He may, like any

other witness, claim the Fifth Amendment privilege

as an alternative to self-incrimination, The greater

likelihood that one suspected of having taken part in

® See cases cited at n. 4, supra.

the offenses that the grand jury is investigating will

give responses that may be incriminating does not

affect the voluntariness of the responses. Nor is such

a grand jury witness more likely to be ignorant of his

Fifth Amendment privilege than an ordinary witness

who, like “virtually every schoolboy[,] is familiar with

the concept, if not the language, of the provision that

reads: ‘No person * * * shall be compelled in any

criminal case to be a witness against himself * * *°”

Michigan vy. Tucker, No. T3482, decided June 10, 1974,

Sup). Op. ».

Nor is the position of a so-called “‘putative defend-

ait” hefore a grand jury analogous to the situation

of an accused during custodial police interrogation,

where explicit warnings are constitutionally required

in order to minimize the compulsion inherent in

solitary custodial settings difficult to supervise by

neutral authority. The eritical concern of the Court

in Mirenda was the dangers inherent in “ineommuni-

cado”’ interrogation. Miranda v. Arizona, 384 U.S.

436, 445. By contrast, no warning Is needed in a grand

jury setting, where questioning takes place before 25

private citizens under the supervision of a presiding

judge and where, if the time scheduled for a witness's

appearance is Inconvenient, it can generally be altered.

See United States v. Dionisio, 410 US. 1; Miranda

Vv. Arizona, supra, 384 U.S. at 461; Orozco v. Teras,

394 U.S. 324.

Nor, finally, can it be assumed that the govern-

ments primary motive in summening a potential de-

fendant before a grand jury is, as the court below

suggested, to “bait” the witness into incriminating

himself or committing perjury (App. A, infra, p.

15A). On the contrary, a witness such as respondent,

suspected of having taken part in a substantive of-

fenses of the kind into which the grand jury is in-

quiring, is likely to represent one of the best sources

of information critical to the grand jury’s inquiry as

to whether a crime has been committed and, if so,

the identity of others, who may he involved, In the

instant ease, for example, since respondent offered

to procure heroin from his sources for sale to the

federal agent, it was reasonable lo conclude that re-

spondent could supply the grand jury with the names

of his sources for heroin and thereby help the grand

jury determine who was involved in heroin trafficking

in the district. Alternatively, such a witness may wish

to confess his part in the offense (the Constitution

reflects no policy against voluntary confessions) or

may be able to exculpate himself to the satisfaction

of the grand jury.

In any event, the Fifth Amendment is directed to

the prevention of compulsory self-incrimination, not

to the suppression of what may be construed as im-

proper prosecutorial motive. Contrary to the conclu-

sion of the court of appeals, we fail to see what is

unfair to the witness in governmental efforts to elicit

relevant information in the possession of the witness

by normal grand jury questioning, provided that there

has been no improper compulsion of testimony.

The court of appeals’ blanket requirement that

every ‘‘putative defendant” be given Miranda warn-

ings prior to testifying would tend to discourage the

cooperation that is necessary for the grand jury to

determine whether criminal proceedings should be in-

stituted against any person. It could place an unwar-

ranted stumbling block in the way of the grand jury’s

livestigation, predicated upon difficult forecasts about

who is apt to be indicted. As this Court stated in

Blair vy. United States, 250 U.S. 273, 282, “the scope

of [the grand jury’s] inquiries is not to be linsited

narrowly by questions of propriety or forecasts of the

probable result of the investigation.”

2. Even assuming that a so-called “putative de-

fendant” is entitled to some Fifth Amendment warn-

ing prior to testifying before a grand jury, the

warning respondent received, informing him that

“[y]ou don’t have to answer questions which would

incriminate you,”’ adequately apprised him of his

Fifth Amendment rights. Contrary to the assertion of

the court of appeals, we find no j stification in logic

or history for claiming that a putative defendant is

constitutionally entitled, in testifying before a grand

jury, to invoke a “right to renain silent” or to have

appointed counsel available for consultation outside

the grand jury room. Such rights and Warhings, while

perhaps appropriate to mitigate compulsion poten-

tially inherent in police custodial interrogation, were

never intended by this Court to “create a Constitu-

tional straightjacket” (Miranda y. Arizona, supra

384 U.S. at 467) to be applied across-the-hoard Me

every form of official questioning.’

the Ninth Cirenit in Rose Wong required only that the

“putative defendant” be apprised of his “rieht to remain silen*.”

No witness appearing before a grand jury has a

“right to remain silent’’ per se. Rather, he may claim

his Fifth Amendment privilege with respect to re-

sponses that he has reasonable grounds for believing

may tend to incriminate him. See United States vy.

Monia, supra, 317 U.S. at 427; United States ex rel.

Vajtauer Vv. Commissioner of Immigration, 273 U.S.

103, 113; United States v. Kordel, 397 U.S. 1, 10. How-

ever, he may be compelled to provide even these re-

sponses, under penalty of contempt, if he invokes his

privilege and the court grants him immunity coexten-

sive with the privilege. Kastigar v. United States, 406

U.S. 441. An entitlement to “remain silent” during

grand jury questioning, akin to permissible silence

during police interrogation, utterly fails to recognize

the difference in functions and powers between the

police and the grand jury. The court of appeals’ equa-

tion of the grand jury with the police in this context

materially undermines the grand jury’s legitimate

power of investigation and gives certain witnesses

such as respondent, whe possess information crucial

to the grand jury’s determinations, the power effec-

tively to block or impede the grand jury’s inquiry.

“The duty to testify may on occasion be burdensome

and even embarrassing. It may cause injury to a wit-

ness’ social and economic status,” United States v.

Calandra, supra, 414 U.S. at 345, yet the public’s

overriding interest in full disclosure before grand

juries may not be overborne except by a valid Fifth

Amendment claim (or other recognized testimonial]

privilege).

In addition to holding that a “putative defendant”

must be advised that he may remain silent in the face

of grand jury questioning, the court of appeals fur-

ther ruled that such a witness must be apprised of a

right to have counsel appointed if he cannot afford

retained counsel. It stated this conclusion without

analysis of the source of this right, and the ruling, if

allowed to stand, has potentially significant ami-

fications.

We believe that the government has no duty to

inform grand jury witnesses who are not actual de-

fendants of a right to appointed counsel, even if a

right to procure appointment of counsel on request

exists, which is itself a dubious proposition.’ While

this Court initially embarked on a course that might

ultimately have led to recognition of a Sixth Amend-

ment right to counsel for “putative defendants” (see

Escobo V. Illinois, 378 U.S. 478), it quickly aban-

doned that analysis in Miranda itself and has recently

held that the Sixth Amendment right to counsel does

not attach prior to “[t]he initiation of judicial erim-

inal proceedings.” Kirby v. Illinois, 406 U.S. 682, 689;

see also Michigan v. Tucker, No. 73-482, decided June

10, 1974, slip op. 4.

N or, for the reasons already discussed in connection

with the supposed ‘‘right to remain silent,’ does the

‘ationale of Miranda itself support a requirement to

advise grand jury witnesses of a right to counsel.

* While not conclusive of the constitutional question, we note

that, unless a Sixth Amendment right to counsel has eitadl d

a grand jury witness who is not under arrest and hes not bee

formally charged has no right to appointed counsel ode Ge

Criminal Justice Act. See 18 U.S.C. 30064 (a). | we

Access of an arrestee to the advice of counsel prior to

custodial interrogation was considered necessary as

an antidote to the special hazards of compulsion,

detailed in the Miranda opinion, that were found to

be ubiquitous in that context. With those fears absent

in the grand jury context, gone too is the need for

the special medicine prescribed by Miranda.

3. The “putative defendant”’ approach of the court

of appeals in this case is, we believe, pregnant with

numerous and varied problems for both prosecutors

and courts because, among other things, of the diffi-

culties of identifying who is within this category. If

the attorney managing the grand jury mistakes a

‘‘nutative defendant’? for an ordinary witness, the

sanctions for perjury evaporate. Conversely, the ordi-

nary witness given Miranda warnings because of the

fear that he may later be held by a court to have been

a ‘putative defendant’? may be discouraged from

providing useful or needed evidence for the grand

jury (it is, after all, the premise of the court’s decision

that the witness who has been warned will be less

likely to testify fully and freely).

If there must be such a concept as that of “ putative

defendant” in the grand jury contest, it should be

defined with considerable care. On the facts of the

instant case, we submit that—contrary to the finding

of the district court, wpon which the court of appeals

relied—respondent was not a “putative defendant”

when he was called before the grand jury. The gov-

ernment attorney who was presenting witnesses to the

erand jury testified that respondent’s case had not

heen considered for presentation to the grand jury

165-354—TA 3

prior to the time of respondent's testimony, that the

files on the case had been closed following the aborted

transaction between respondent and the federal agents,

and the prosecutor had ‘no idea [respondent] would

he indicted”? (Tr. 15). Indeed, the prosecutor stated

that he did not consider the transaction between

respondent and the federal agent to have been an

indictable offense (Tr. 19), and he only learned that

it was when later reviewing a possible perjury indict-

ment with another government attorney (8/24 ‘Tr.

6-57).

Nevertheless, despite these assurances, the district

court considered the prosecutor’s knowledge of the

transaction and the “high likelihood that the answers

provided by the [respondent] would furnish material

for further action on the part of the government”

sufficient to “belie the government’s protestations of

innocent intent with respect to the possibility of future

prosecutions” (App. D, infra, p. 30A, 31A). In disre-

garding the proseeutor’s denial, the district court

relied upon the reasoning of the district court for the

Northern District of Ohio in United States v. Frucht-

man, 282 F. Supp. 534 (N.D. Ohio), eetttoratdeniod

Fan sciinspningens, in which a similar denial by the govern-

nent that the witness had been a potential defendant

at the time of questioning was deemed irrelevant. (id.

at 536):

[I]t does not appear that the examination

would have been conducted any differently if

[the witness] had [been a potential defendant I.

** * [A] man’s rights do not depend on the

subjective intent of the prosecutor nor upon the

prosecutor's knowledge as to what acts, if com-

mitted, might constitute an offense under the law.

The test that the district court employed for deter-

mining whether respondent was a “putative defend.

ant”—looking to the incriminating evidence available

to the prosecutor prior to questioning—would in effect

bring every witness against whom the government has

some incriminating evidence within the protective

ambit of the *‘putative defendant” label. As to many

of these witnesses, however, the government has no in-

tention of seeking an indictment—because the witness

is more valuable as a source of evidence against others,

heeause the witness’s alleged offense is trivial relative

to the time and resources necessary to prosecute him,

or because evidence is inadequate to indict. Indeed,

the district court’s broad test would shield precisely

those witnesses whose knowledge of illegal activities 1s

crucial to a grand jury’s determination as to whether

a crime has been committed and, if so, who is in-

volved.” | |

The proper test for identifying a “putative defend-

ant.” we submit, should require that both the objective

and the subjective standard be satisfied that As,

there must be sufficient evidence to support an indict-

ment at the time the witness is called, and it must also

he established that the witness was in fact a target of

the grand jury’s investigations whom the prosecutor

expected to be indicted. In any event, the question of

———

‘While the matter is speculative, it seems likely that ss

Vandujano nor Rose Woug would have been prosecuted at al

p aL i ‘ ‘ . . -

hacl thi \ cooperated by testifying truthfully before the grand

bine , . . .

pury.

establishing a clear definition of the “putative defend-

ant’ concept is an important one that should be

undertaken by this Court if the concept is to be given

controling importance in the rules governing treat-

ment of grand jury witnesses.

4. In holding that testimony of a ““mitative defend-

ant” given without prior Miranda warnings is inad-

missible in a subsequent prosecution for perjury, the

court of appeals in the instant case created—as did

the Ninth Cireuit in Rose Wong, supra—an exception

to the well-established rule that “the immunity af-

forded by the constitutional guarantee [against com-

pulsory self-incrimination] relates to the past and

(loes not endow the person who testifies with a license

- commit perjury.” Glickstein v. United States 222

U.S. 139, 142; see also Harris v. New York, 401 U.S

S23, 225; Bryson vy. United States, 396 U.S. gs.

United States y. Knorr, 396 U.S. 77. In so doing the

court also brought itself into sharp conflict with deci-

none of the Second, Seventh, and Tenth Cirenits.””

Which have held that even if putative defendants a

entitled to some Miranda warnings, failure to give the

warnings does not license them to commit perjury

| Ifa witness Is Improperly compelled to inevieninate

himself, his incriminating statements mav be excluded

, : ° **

/ netod Nhiates A lV suler. B48 F. dd HN ic \ 2)

denied, 382 U.S. . certiorari

. . oo: / nited Nhutes v. Parke r. 244 FE 2] o49

(CLA. 7) certiorari denied 355 U.S SH: Ty , / R ae

> , . - e a % ° . 7 ; -_

DiGiovanni, 390 F.2d 409, 412 (CA. 7) npr pln

ype: Ray certiorari denied:

US. $24: Mnited States y. art denied, 39

Viekels Ww FLY -

; . , ‘ ‘ ’ Be 6 ps i. Yad ] ” m

Carg \. United States, 381 F 4 SHO (CA yee

slenped: BSd y os ; — = . dBc

y OES, 1041 : nited Stat SV, Pommere ng, CAM) |

j 1) Pe. - Me

a :

2 (CA. Be). petition for writ of certiorari pene

);

10). certiorari

ling, No. v4 DAY.

from use by the prosecution. But he may not avoid

the compulsion by committing perjury. “Our legal

system provides methods for challenging the Gov-

ernment’s right to ask questions—lying is not one of

them.” Bryson v. United States, supra, 396 U.S. at

72. The court of appeals in the instant case, how-

ever, found this broad principle inapplicable to a

‘putative defendant” who lies to a grand jury, since

the covernment’s conduct in bringing such a witness

before a grand jury without providing adequate warn-

ings is “unfair” (App. A, ivfra, p. 15A;). The court's

finding of ‘‘unfairness” was based upon an inference

that the government's primary purpose in asking a

‘‘nutative defendant” incriminating questions was to

“entrap” him into committing perjury. As we have

already indicated, however, the government has many

legitimate purposes for asking a witness, suspected

of taking part in the criminal activities, questions to

which truthful responses may tend to be incriminat-

ing. See. p. 10, supra.”

Moreover, a “putative defendant” who lies to a

erand jury rather than incriminate himself cannot

he considered to be “entrapped” into committing per-

"The grand jury's questioning of a witness suspected of

having taken part in a criminal offense is different from the

abuse of process resulting from repeated summoning of a wit-

ness before a tribunal, or summoning a witness even once

before a tribunal without jurisdiction to conduct the inquiry,

where such action is apparently designed to maximize the op-

portunity for perjury. See Brown v. United States, 245 F. 2d

49. 555 (CLA. 8): United States v. Thayer, 214 F. Supp. 929

(DD. Colo.) : United States v. Cross, 170 F. Supp. 303 (D.D.C.) :

lnited States v. Leardi, 140 F. Supp. 5835 (D.DC.): l nied

States v. Fruchtman, 282 F. Supp. 554 (N.D. Ohio).

jury, as the concept of entrapment has been articu-

lated by this Court. The government does not implant

the design to commit perjury in the mind of such

a witness, See [United States v. Russe 7, 411 U.S, 423.

$36. Nor does the government thwart whatever pre-

disposition to tell the truth the witness may have.

see Sorrells v. United States, 287 U.S. 435: Sherman

V. United States, 356 U.S. 369.

ven if such questioning without adequate warning

were “unfair,” however, it does not follow that the

resulting testimony should be inadmissible in a prose-

eution for perjury. The exclusionary rule is generally

“restricted to those areas where its remedial] objec

tives are thought most efficaciously served.’ United

States v. Calandra, supra, 414 U.S. at 248. Assuming

that some prior warning is required, it seems to us

unlikely as an empirical matter that prosecutors would

risk losing the use of confessions or other inerimi-

nating evidence for the sake of obtaining evidence of

perjury,

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that the petition for a writ of certiorari should

he granted.

Rosert H. Bork,

Solicitor General.

Henry E. Perersen,

Assistant Attorney General.

Rosert B. Reicu,

Assistant to the Solicitor General.

Perer M. SHANNON, Jr.,

James Hvnovr,

Attorneys.

DecemBer 1974.

_—

APPENDIX A

United States Court of Appeals,

for the Fifth Cirenit

UNITED STATES OF AMERICA, PLAINTIFPF-APPELLANT

Roy MANDUJANO, DEFENDANT-APPELLEE

[June 28, 1974]

Proceeding on motion of defendant to suppress his

testimony before special grand jury. The U nited

States District Comt for the Western District of

Texas, Adrian A. Spears, Chief Judge, 365 F.Supp.

155, granted the motion to suppress, and Government

appealed. The Court of Appeals, Tuttle, Cireuit Judge,

held that (1) although as a general rule a grand jury

witness is not entitled to warning of his rights to ap-

pointed counsel and to remain silent, the full Miranda

warnings should have been accorded defendant who,

in testifying before the grand jury, was in the position

of a virtual or putative defendant, where the Govern-

ment had focused upon defendant as having commut-

ted a crime, where it called him with one eye on

prosecution, and where the questioning smacked of en-

trapping defendant to either incriminate po eae

commit perjury, and (2) despite the general rule t on

witnesses uninformed of their constitutional rights

should not be allowed a license to comunit perjury he-

fore the grand jury, all the testimony, incrimimating

(la)

and perjurious, of a grand jury witness will be sup-

pressed, where the prosecuting officers bring a puta-

tive of virtual defendant before the grand jury for

the purpose of obtaining incriminating or perjurious

testimony.

Judgment affirmed.

see also, 5 Cir. 496 F. 2d 1057.

Appeal from the United States District Court for

the Western District of Texas.

Before Turrie, Coneman and AINswortu, Circuit

Judges,

Turtie, CJ,

On May 2, 1973, appellee Mandujano appeared as a

witness hefore the DALE (Druge Abuse Law En-

forcement ) Grand Jury, pursuant to a subpoena. The

following warnings were given Mandujano:

Q: Now you are required to answer all the

ene tat [ ask you except for the ones

that you feel would tend to incriminate you. Do

you understand that ?

A: Do I answer all the questions you ask ?

Q): You have to answer all the questions ex-

cept for those you think will incriminate you

in the commission of a crime, Is that clear?’

A: Yes, sir.

‘ , ’

| Q: You don’t have to answer questions which

— incriminate you. All other questions you

ave to answer openly and truthfully. And, of

aaa, if you do not answer those truthfully, in

ot er words, if you lie about certain questions,

you could possibly be charged with perjury ?

Mandujano was further advised that he could have an

attorney outside the grand jury room; however. he

- . . ’

was not told that he had a right to have appointed

counsel outside the grand jury room, that what he

OTTO ee

said could be used against him in later proceedings,

and that he had a right to remain silent.’

A federal narcotics agent had reported that in

March, 1973, he offered Mandujano money for the

purchase of heroin and gave him $650 for the at-

tempted purchase. The government attorney who ques-

tioned Mandujano before the grand jury testified at

the motion to suppress that he had discussed with

the agent the ciremmstances of this attempted buy in

preparation for Mandujano’s appearance before the

grand jury. Evidence taken on the motion to suppress

also showed that the government attorney requested

suggestions for witnesses to be subpoenaed before the

grand jury from the agent who had dealt with Man-

dujano and the agent recommended calling Mandu-

‘Actually Mandujano told the goves.ment attorney that he

didn't have the money to get a Jawyer. the following conver-

sution transpired between them:

“(): Have you discussed your presence here with anybody ?

“A: My wife.

“(: Have you contacted a lawyer in this matter?

“A: No, sir, I haven't,

“(): I take that to mean then that you do not wish the serv-

ices of a lawyer here today /

“A: I don’t have one. I don't have the money to get one.

“(Q): Well, if you would like to have a lawyer, he cannot be

inside this room. He can only be outside. You would be free to

consult with him if you so chose, Now, if during the course

of this investigation, the questions that we ask you, if you feel

like you would like to have a lawyer outside to talk to, let

me know,

“A. Yes, sir.

“(): Is that clear?

“A: (Nod affirmative).”

At no time was Mandujano told that an attorney would be

furnished him free of charge if he were financially unable to

employ one.

jano and then reported to the attorney how the actual

attempt had occurred.

Mandujano was asked the following questions, ‘ater

alia, by the government attorney before the grand

jury:

Q: Have vou ever talked with anvbody about

selling it? Has anybody tried to buy heroin

from vou? Have yon tried to get heroin for

them in order to sell to them ?

A: No, sir.

Q: Are vou sure of that?

A: Yes, sir.

Q: In other words, no one has ever come up

to you and wanted to buy heroin?

A: No, sir.

Q: And you have never told anybody that

you would try to get heroin to sell to them?

A: No, sir.

Q: Now, you can say here today that you

have not discussed the sale of heroin with any-

hody in the last vear?

A:T don’t understand von, sir.

Q: Have you talked to anybody about sell-

ing heroin to them during the last vear?

A: No, sir.

Q: Are you sure ahout that ?

A: I just, you know, T discuss it, you know,

when we buy it, you know, to fix it just, you

know. eer

| Q: Has anyone ever asked you if they could

my an ounce of heroin or more from you ?

A: No, sir.

Q: Let me ask you once again, Mr. Manduiano,

have you ever talked to anvbody about selling

them heroin in the last vear?

A: No, sir.

Q: No one has ev er given you any money—

A: No.

Q: —to go buy them heroin ?

A: No, sir.

Q: In other words, if you had $650 right

now—

A: Yes, sir.

Q: —Do you think you would be able to pur-

chase an ounce of heroin? .. .”

This interrogation tracked the exact facts of the

actual contact between the federal narcotics agent and

Mandujano.

The appellee was subsequently indicted in count

1 under 21 U.S.C.A. § 846 for attempt to distribute

one ounce of heroin on or about the 29th of March,

1973, and in count 2 under 18 U.S.C.A. 9 1625 for

making false representations. The perjury count was

based on Mandujano’s denial before the grand jury

of any attempt to obtain or sell heroin or any solicl-

tation to do so.

The district court granted appellee’s motion to

suppress his testimony before the grand jury, finding

that appellee was a virtual or putative defendant in

custody under the Miranda*® decision, and therefore

should have been given all Miranda warnings. United

States v. Mandujano, 365 F.Supp. 155 (W.D.Tex.

1973). The district court determined that the warn-

ings given were inadequate and that appellee could

not be deemed to have voluntarily waived his Fifth

Amendment right to remain silent. Appellee was con-

victed under count 1 for attempt to distribute heroin,

without use of his grand jury testimony.

I. “Purative on VirTuAL’’ DEFENDANT

Given the nature of the investigation and the

questions tendered by the government attorney, the

district court held, and this Court agrees, that full

2Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1965).

Miranda warnings should have been accorded Man-

dujano who was in the position of a virtual or puta-

tive defendant. The district court aptly portrayed

the circumstances warranting the fact finding that

Mandujano was a virtual or putative defendant dur-

ing his appearance before the grand jury:

“The government maintains that neither case

was considered for presentation to the grand

Jury prior to the testimony of the defendants

before that body, and that both files had been

closed following the contact between the defend-

ants and the law enforcement officers: never-

theless, the facts of the case belie the govern-

ment’s protestations of innocent intent with

respect to the possibility of future prosecutions.

The special attorney who had conducted the

questioning testified that he was well aware

of the previous contact with the defendants

in attempts to buy from them, as well as the

exact circumstances involved in each attempted

buy. The transcript of the grand jury pro-

ceedings reveals deliberate and careful atten-

tion to questions which specifically delved into

the facts concerning these contacts between the

defendant and government agents. The special

attorney was aware that no case had been made

and though this Court does not presume any

improper motives on the part of the govern-

ment agents or the special attorney, it strains

credulity to suggest that the special attorney

did not have one eve on a possible prosecution

of the defendants. The government had in fact

already attempted to make a case against each

defendant. Note too that each defendant, im-

mediately after denying any contact about an

attempted sale, was asked in the very next

question about the validity of that answer

Considering the totality of the circumstances

in this case, the questioning of the defendants

before the grand jury smacks of entrapment.

ee ee

Moreover, given the fact that the investigatory

files involving the attempts to buy from both

defendants had been closed, the questions posed

presented a high likelihood that the answers

provided by the defendants would furnish mate-

rial for further action on the part of the

government. If the defendants admitted that

they had offered to buy heroin for the under-

cover agent who approached them, the govern-

ment could possibly have used such an admis-

sion in its case-in-chief in connection with the

attempted sale. See United States v. Leighton,

265 F.Supp. 27 (S.D.N.Y. 1967), cert. denied,

390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282

(1968); United States v. Montos, 421 F.2d 215

(5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct.

1262, 25 L.Ed.2d 532 (1970). The denial by

defendants that they had conversations about

procuring heroin for the officers left them open

to the consequent indictments for perjury.

Actually, therefore, their only safe harbor

would have been to remain silent, and this

option was, in effect, denied to them.’’ United

States y. Mandujano, 365 F.Supp. at 158-199

(W.D.Tex.1973).’

We construe the foregoing statements by the trial

court to be findings that the government had focused

upon Mandujano as someone whom the government

had knowledge of having committed a crime, as a per-

<on whom the government had planned to indict as it

had one eye on prosecution, and against whom it was

gathering incriminating evidence. Also the discussion

indicates that the trial court found that when Mandu-

* The reference to “defendants” is made in the plural because

the district court issued a joint opinion for this case and United

States v. Rangel. 365 F. Supp. 155 (W.D. Tex. 1973), because

‘+ found that the two cases, though not consolidated and not

involving the same transaction, embodied a virtually identical

set of circumstances.

jano was brought into the grand jury room, the gov-

ernment then knew that an affirmative answer to

questions put to him would amount to a confession

of guilt of trafficking in heroin.

Although this Court has recently pretermitted the

question of the scope of Miranda in the context of a

putative defendant before a grand jury investigation,

United States v. Morado, 454 F.2d 167 (5th Cir. 1972)

and Mattox v. Carson, 424 F.2d 202 (5th Cir. 1970),

cert. denied, 400 U.S. 822, 91 S.Ct. 48, 27 L.Ed.2d 51

(1971), we have recognized that as a general rule a

grand jury witness is not entitled to warnings of his

right to appointed counsel and his right to remain

silent." The Court of Appeals for the Sixth Circuit,

however, has carved out the exception that when a

person ceases to be merely a witness in a general in-

vestigation and becomes placed ‘‘virtually in the posi-

tion of a defendant,’ then the full panoply of rights

under Miranda due a person in custody must be

afforded. See United States v. Luxenberg, 374 F.2d

241 (6th Cir. 1967); United States v. Fruchtman, 282

F.Supp. 534 (N.D. Ohio 1968), cert. denied, 400 U.S.

849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970); Stanley v.

United States, 245 F.2d 427 (6th Cir. 1957).

‘ Morado, supra at 175. Robinson vy. United States, 401 F.2d

248 (9th Cir. 1968); United States v. DiMichele, 375 F.2d 959

(3rd Cir. 1967); United States v. Winter, 348 F.2d 204 (2d

Cir. 1965); United States v. Parker, 244 F.2d 943 (7th Cir.

1957); United States v. Seully, 225 F.2d 113, 116 (2d Cir.

1955).

*In United States v. Fruchtman, supra, in circumstances

similar to the instant case, the court found the witness to be

a virtual defendant. There the government attorney submitted

an affidavit denying that the witness was a potential defend-

ant at the time of questioning; yet, the court noted that this

attorney had also read investigative reports detailing the cir-

cumstances about which the witness was questioned before the

In United States v. Morado, supra at 173, we have

already recognized the force of the argument that if

an investigation has passed beyond the stage of a gen-

eral inquiry and has focused upon the defendant, then

the defendant would be in the position of a virtual

defendant:

Without intimating whether this circuit will

agree with this ‘virtual defendant’ perspective,

we note that its emphasis is upon the same

factor we have considered to be of prime im-

portance in determining whether or not a man

is ‘in custody’ as that term is used in Miranda:

‘has the focus of the investigation centered

upon him?’ United States v. Phelps, 443 F.2d

246 (5th Cir. 1971); United States v. Akin, 435

F.2d 1011 (5th Cir. 1970); United States v.

Montos, 421 F.2d 215 (5th Cir. 1970); Bende-

iow v. United States, 418 F.2d 42 (5th Cir.

1969) ; Windsor v. United States, 389 F.2d 530

(5th Cir. 1968). If the investigation in the case

at bar had passed beyond the stage of being a

general inquiry into an unsolved crime of a sus-

pected conspiracy, and had focused upon Solis

as a defendant whom the government planned

to indict and against whom it was gathering

incriminating evidence, we would face the ne-

cessity of embracing or rejecting this rule.

The language in Morado is particularly applicable

in the case at bar because this investigation clearly

had p: ssed beyond the stage of general inquiry into

an unsolved crime, and had focused upon the defend-

ant as someone whom the government had planned to

grand jury. These facts are similar to those here, where the

special government attorney read the narcotics agent’s report

prior to the grand jury session.

10a

indict as it had one eye on prosecution, against whom

it was gathering incriminating evidence, and against

whom indictments were actually returned.’ The fact

that the questioning attorney immediately pounced

upon Mandujano’s denial that he had been contacted

about the sale of heroin, indicated a clear and direct

focus upon Mandujano as a future defendant. More-

over, the government attorney even mentioned the

precise figure-—$650—which had purportedly been

given to Mandujano by the federal narcoties agent,

plainly demonstrating that the previous transaction

was clearly in the attorney’s mind.

Also there was no basis for the perjury count of the

indictment until after Mandujano’s grand jury ap-

pearance, When the government attorney, aware of

the alleged prior transaction, asked Mandujano about

any previous heroin solicitation or sale, he knew that

any truthful answer by Mandujano would be inerimi-

nating and therefore protected by the Fifth Amend-

*This Court in Brown v. Beto, 468 F.2d 1284. 1986 (Sth Cir,

1972), diseussed at length the application of Mirando.

“Before law enforcement officers can subject a citizen to ens-

todial interrogation, he must first have been given the Miranda

warnings. In Miranda ‘custodial interrogation’ was defined as

‘questioning initiated by law enforcement officers a fter a person

has been taken into custody or otherwise deprived of his free-

dom of action in any significant way.’* This court has yet to

formulate a general rule for distinguishing custodial from non.

custodial interrogation but instead has preferred to take a case-

by-case approach? .. . In making the distinction between ens-

todial and non-custodial interrogation this court has singled

out certain criteria as having special significance: these inchle

probable cause to arrest, subjective intent of the police, sub-

jective belief of the defendant, and focus of the investigation.’

Although none of these factors is alone determinative, we have

recently indicated that the most compelling is whether or not

the focus of the investigation has finall

fendant.*”

stating:

Vv centered on the de-

din

oo ek ee

— te ee ee ie ee Te

lla

ment which Mandujano was entitled to plead. Thus,

if the attorney proceeded to question actually antic-

ipating an answer, he must have known that Se oe

sponse would require Mandujano to confess to a erime

or commit perjury. The likelihood of Mandujano con-

fessing a crime before the grand jury was certainly de

minimis. The inference is easily drawn that the attor-

ney’s questioning was primarily baiting Mandujano

to commit perjury. As perceived by the district court

this case “smacks’’ of entrapping Mandujano to in-

criminate himself or commit perjury. His only “safe

harbor’? was to remain silent—a right of which the

government failed to inform him. | |

The government asserts that since Mandujano nego-

tiated for a heroin sale with the federal narcotics

agent which did not result in a distribution due to ap-

pellee’s being unable to procure heroin from his

sources, therefore the government agents concluded

that appellee must have had knowledge of a source for

heroin. Consequently he was called hefore the grand

jury only to obtain intelligence regarding known

heroin sources, consistent with the purposes of the

grand jury, and not in an attempt to obtain incrimi-

nating or perjurous statements from him. ——

less, as concluded by the district court, “the facts oO

the case belie the government’s protestations of inno-

cent intent with respect to the possibility of future

prosecution.”” Moreover, the questions tendered hy the

government attorney simply could have inquired

whether Mandujano knew any heroin dealers rather

than focusing on whether anyone had ever solicited

heroin from him. .

Moreover, the warnings that were given were not

adequate advisement even of the appellee 8 Fifth

Amendment i zhts against self-incrimination. As

565-354 74 :

12,

pointed out by the trial court, the questioning attor-

nev “stressed not the right to remain silent, but the

requirement that the defendant answer all the ques-

tions put to him, with limited exceptions. He did not

stress the alternative of the defendant remaining silent

in the face of a potentially [here certainly] damaging

question.”

Under the circumstances of this case, this Court

agrees that Mandujano was a putative defendant in

custody and was entitled to Miranda warnings.

Il. Remepy ror Far.vre To Give Mrranpa Warwviyas

The more difficult issue here is whether the usual

remedy for failure to give constitutional warnings,

i.e., suppression of the testimony, can ever be em-

ployed in a situation where the testimony itself

amounted to perjury.

Appellant relies heavily on United States v. Orta,

253 F. 2d 312 (5th Cir. 1958), to convince us that

“[uJjnder no circumstances’? can a grand jury “wit-

ness” commit perjury and then successfully claim that

the Constitution affords him protection from prosecu-

tion for that crime. Witness Orta was charged with

having committed perjury at a grand jury investiga-

tion. The district court suppressed Orta’s grand jury

testimony, but this Court reversed, broadly stating,

supra at 314:

It is clear that the protection of the Fifth

Amendment relates to crimes alleged to have

heen committed before the time when the testi-

mony is sought. A witness, ignorant and unin-

formed of his constitutional rights, would not

intelligently waive them if he testifies, thinking

that he was compelled to do so. He might an-

swer truthfully and thereafter assert the con-

stitutional guaranty. Under no circumstances,

ISA

however, could he commit perjery and SUCCESS-

fully claim that the Constitution afforded him

protection from prosecution for that erime, As

said in Glickstein v. United States, 1911, 222

U.S. 139, 142, 32 S. Ct. 71, 73, 56 L. Ed. 128;

‘* * * the immunity afforded by the constitu-

tional guaranty relates to the past, and does

not endow the person who testifies with a li-

cense to commit perjury.

The only debatable question is one of the

supervision of the conduct of Government rep-

resentatives in the interest of fairness. In

United States v. Seully, 2 Cir., 1955, 225 FP. 2d

113, 116, the Court of Appeals for the Second

Circuit held:

‘* * * the mere possibility that the witness may

later be indicted furnishes no basis for requir-

ing that he be advised of his rights under the

Fifth Amendment, when summoned to give

testimonv before a Grand Jury.’

That holding is applicable to the present

record. There is no showing that the Grand

Jury before which Orta testified was seeking

to indict him or any other person already

identified. (Emphasis supplied).

Although clearly holding that a mere “witness”

uninformed of his rights before the grand jury, even

one concerning whom there is a “mere possibility”’

of indictment, may not commit perjury with impunity,

the Orta court sounded the important caveat that the

question of supervision of the conduct of government

representatives in the interest of fairness may be

debatable in some circumstances. The language in

the Orta opinion, supra at 314,

“There is no showing that the Grand Jury

before which Orta testified was seeking to

indict him or any other person already identi-

fied,”

144

highlights the important distinction between Ovta

and this case, demonstrating the wisdom of the caveat

concerning the court’s duty of supervision ‘in the

interest of fairness.”’ The instant case does not involve

a mere “witness,” but a putative, and subsequently

actual, defendant. The facts showed that there was

a mere possibility that a witness may later be indicted

but that the government deliberately subpoenaed .

putative defendant before the erand jury primarily

for the purpose of obtaining incriminating or per-

jurous statements against him and mainly in order

to elicit evidence helpful in indicting him. Several

decisions of this Court, such as Orta, Danicls, Glasco

Stassi and Wilcor,’ have involved perjurous testimony

and the adequacy of the instruction as to constitu-

tional rights: however, the precise issue of a putative

defendant who was primarily called before the grand

jury for the purpose of obtaining ineriminating or

perjurous statements and mainly in order to elicit

evidence helpful in indicting him has not been pre-

“«nted to this Court. Although there are factually

overlapping features of the eases to be discussed, we

have concluded that the totality of circumstances in

the case at bar calls clearly for this Court to affirm

the district court’s suppression of Mandujano’s testi-

mony before the grand jury. . _

[2] As heinous as the crime of perjury is under

our law, and as correct as the Orta principle is, that a

witness uninformed of his constitutional rights gen-

erally should not be afforded a license to commit per-

. ’Tnited States v. Orta, 253 ¥F, 2d 312 (Sth Cir. 1958): Tnited

— v. Daniels, 461 F. 2d 1076 (Sth Cir. 1972): United States y

: or ¥ “ > 1068 (Sth Cir. 1974) : Stassi v. United States 401

. 24 259 (Sth Cir. 1968): United States vy. Wileor > 90 11:

(sth Cir. 1971). on

a &

ete ee ee ee ee ee

LOA

jury, under our law, we simply cannot ignore the un-

fairness in baiting this defendant before the grand

jury and overlook the principle that the Fifth Amend-

ment must always be as broad as the mischief against

which it seeks to guard. In order to deter the prose-

cuting officers from bringing a putative or virtual

defendant before the grand jury, for the purpose of

obtaining incriminating or perjurous testimony, the

accused must be adequately apprised of his rights, or

all of his testimony, incriminating and perjurous, will

be suppressed. In order to combat these methods the

Fifth Amendment privilege must be fully honored in

this situation. This end entails only slight erosion of

the general principle announced in Orta. This devi-

ation in the situation of a putative defendant unin-

formed of his Miranda rights and called for the

purpose of obtaining incriminating or perjurous testi-

mony is necessary to counteract the fundamental un-

fairness of allowing a defendant to be faced by such a

Hobson’s choice.

In distinguishing Orta, we distinguish the other

cases, cited above rendered after the date of Miranda,

which reaffirmed the Orta principle (pre-Miranda), as

none of these decisions concerned the situation of a

putative defendant entitled to, but unadvised of, his

Miranda warnings. The problem here 1s the problem

adverted to in the dictum in Orta, and not the problem

adjudicated by the Orta holding or by any other deci-

sions of this Court. As previously indicated, the grand

jury was not seeking to indict Orta and Orta was not

a putative defendant, entitled to Miranda warnings.

Orta was an ordinary witness entitled to a general

Fifth Amendment warning.

The district court apparently determined that in

view of the subsequent holding in Miranda, there was

16A

now an essential difference between a prosceution for

perjury when there have been no Miranda warnings

and the suppression of testimony under the exclusion-

ary ride, when such warnings have not been given, i.e

that although the indictment could not have been dis-

tnissed, the testimony could nonetheless have been sup-

pressed. This distinction would be a facile solution to

the difficult question here, were it not for the language

in United States v. Glasco, 488 F.2d 1068 (5th Cir

1974 , intervening between the district court’s purty

sion in the case at bar and the instant appeal, indi-

cating that Orta had “post-Miranda vitality.” In

Glasco the defendant witness, Who was in custody for

another crime, had perjured himself when testifying

in the trial of another defendant and the court held

that a motion to suppress was properly denied. Again

however, Glasco concerned entirely different facts and

an entirely different procedure, Glaseo was not mit up

as a witness to give evidence incriminating himself

He had already pleaded guilty to the same offense,

Here, the agent reported that he believed Mandujano

had committed the narcoties offense charged in count

I, and the government proceeded to subpoena Mandu-

jano before the grand jury and asked him the precise

questions dealing with a transaction that led to his

heing indicted by this same grand jury. Moreover

since Glaseo appeared at a trial as a defense witness,

he apparently appeared voluntarily and not by the

compulsion of a subpoena issued ‘on behalf of the

government,

Furthermore, the two cases cited in Glasco. Wileor

and Stassi, also involved factual circumstances SO dis.

similar from those of the instant case that they seal

no he lj ‘ll ec| |

f f . ~f a Pie . aot h hPa | ss quoted f 0 { { Jirta

. . — l m 1 ’ GO ‘

¢:

a ne lee i ae ell Neth ap ee

‘

{

17A

One final case, United States v. Daniels, 461 FP. 2d

1076 (5th Cir. 1972), which was noted hy the district

court, discusses the applicability of Orta to persons

who commit perjury before a evand jury. Grand jury

witness Daniels signed a “Waiver of Privilege

Against Self-Incrimination” which advised that a

witness could consult with an attorney outside the

erand jury room but contained no statement with

respect to the appointment of counsel for indigent

witnesses, and proceeded to give perjurious testimony

to the grand jury. Daniels conceded that generally

there is no right to counsel for ordinary witnesses

appearing before the grand jury, but argued that

when an indigent witness who is advised that he may

have an attorney present, must also be advised that

if he is unable to provide his own counsel, one will

be appointed for him free of cost. Finding that

Daniels was “only a witness’? and “was not under

indictment when he appeared,” the court held that

he was not entitled to appointed counsel, The impor-

tant distinguishing factors are that Daniels did not

argue that he was entitled to Miranda warnings, but

only contended that since a witness could have re-

tained counsel, he should have been advised that indi-

vent witnesses may have appointed counsel free of

cost. Furthermore, the court clearly delineated that

Daniels was only a witness and not a putative de-

fendant. Therefore, the latter portion of the decision

which concludes that Daniels, even if entitled to coun-

sel and deemed not to have waived his riguts, would

still have no license to perjury is a reaffirmation of

the general principle announced in Orta and is to

he distinguished completely from the situation of a

putative defendant entitled to Miranda warnings who

is called before the grand jury for the purpose of

obtaining incriminating or perjurous testimony.

184

We reiterate that the Orta principle that wit-

nesses uninformed of their constitutional rights

should not be allowed a license to commit perjury

continues with full force. We only make a slight in-

road that where a totally unfair procedure is put in

train—as when there is a factual determination that

a person who is subpoenaed before the grand jury

and questioned about an alleged crime, was already

known to the satisfaction of the prosecuting agency

prior to the grand jury appearance to be guilty of

that precise crime—, elemental fairness requires that

such a person is under such compulsion as to require

that he he given the Miranda warnings, and that fail-

ure to do so must require suppression of any inerim-

inating testimony given by him even though he is

being prosecuted for giving false testimony.

The remaining question arises from the prin-

ciple that the Fifth Amendment protection against

self-inerimination extends only to past acts, not to

those that are or may be committed in the future.

As stated in Glickstein v. United States, 222 U.S.

139, 32S. Ct. 71, 56 L. Ed. 128 (1952), [quoted by

the Orta court, as stated infra], ‘‘* * * the immu-

nity afforded by the constitutional guaranty relates

to the past, and does not endow the person who

testifies with a license to commit perjury.” The appel-

lant urges that when the defendant Mandujano ap-

peared before the grand jury, he had not committed

the perjury and that his criminal liability coneurred

with his utterance before the grand jury. Therefore,

the perjury indictment was not premis: 1 upon evi-

dence of past acts obtained from the mouth of the

defendant, but was based on a erime whose very

commission, rather than evidence of commission, was

the defendant’s testimony. Glickstein vy. United States,

2} ace a er

it OE EA he te ta Rr ww OEE WHE -

194

supra, concerned a bankrupt who was indicted for

perjury for having falsely sworn in a bankruptey

proceeding while under examination before a referee.

Once again, we must point to the distinguishing

characteristics in the facts and the proceedings in this

case. The entire proceedings here which led up to

Mandujano’s indictment for perjury were, as We have

noted repeatedly, beyond the pale of permissible pros-

ecutorial conduct... We conclude that the entire pro-

ceeding was a violation of Mandujano’s due process

rights under the Fifth Amendment. . . .

We, of course, do not attempt an axiomatic defini-

tion of due process, but note the well known language

from Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252,

1256, 86 L.Ed. 1595 (1941), overruled - aon

grounds, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799 (1962) :

Asserted denial [of due process] is to be

tested by an appraisal of the totality of facts in

a given case. That which may, In one setting,

constitute a denial of fundamental fairness,

shocking to the universal sense of Justice, may,

in other circumstances, and in the light of other

considerations, fall short of such denial.

Although the application of the standard set in Betts

v. Brady, supra, was overruled in Gideon v. Wain-

®As did the trial court, we refrain from placing blame on

any one official for what turned out to be conduct “smacking

of entrapment. We recognize the fact that involved here me

an agent who reported to his superior, and then a apoctes

attorney having designated duties in the field of narcotics

investigation and prosecution, and finally the United States

Attorney and his staff. Somewhere within this chain of com-

mand and information, a decision was made to subpoena as

a witness a man to whom the original agent testified he had

given $650 for a “score,” and to ask this witness about this

specific transaction.

20A

wright, supra, it is clear that the test remains the

same. W as the conduct (refusal to appoint counsel) so

oe to the common and fundamental ideas of

alrness” as to amount to a denial of due process. 316

U.S. at 473. .

W e conclude simply that the proceedings here com-

plained of met that standard. |

W e believe this not to be inconsistent with any

prior decis: m of this Court, all of which dealt only

with the specific rights guaranteed by the self-incrimi-

nation clause of the Fifth Amendment

The judgment is affirmed.

a. ee

vet « :

APPENDIX B

United States Court of Appeals

for the Fifth Circuit

October Term, 1973

(No. 73-3353)

D.C. Docket No. CR SA 73 CR 163

Uxirep STaTes OF AMERICA, PLAINTIFF-APPELLANT

Vv.

Roy MaNbDUJANO, DEFENDANT-APPELLEE

Appeal from the United States District Court for the

Western District of Texas

Before TuTTLeE, CoLeEMAN, and AINSWORTH, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

the Western District of Texas, and was argued by

counsel ;

OX CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the order of the Dis-

trict Court appealed from, in this cause be, and the

same is hereby, affirmed.

JuNE 28, 1974.

21a

22a

Issued as mandate: October 24, 1974.

A true copy:

Test: Ewarp W. Wapswortn,

Clerk, U.S. Court of Appeals, Fifth Circuit.

By Crare F. Sacus,

New Orleans, Louisiana

Deputy.

Court having requeste

rehearing en bane (Rule 39,

APPENDIX C

United States Court of Appeals

for the Fifth Circuit

October Term, 1973

(No. 73-3353, 73-3356 )

D.C. Docket No. CR SA 73 CR 163

Unirep STATES OF AMERICA, PLAINTIFF-APPELLANT

Ray MANDUJANO, DEFENDANT-APPELLEE

Unirep StaTEs OF AMERICA, PLAINTIFF-APPELLEE

Pau. GonzaLes RANGEL, DEFENDANT-APPELLEE

Appeal from the United States District Court for the

Western District of Texas

Before TuTrie, CoLeMaN, and AINSWORTH, Circuit

Judges.

ORDER

The petition for rehearing is denied, and no member

of the panel nor Judge in regular active service on the

d that the Court be polled on

Federal Rules of Ap-

23a

24A

pellate Procedure; Local Fifth Circuit Rule 12) the

petition for rehearing en bane is denied.

Issued as mandate: October 16, 1974.

A true copy:

Test :

Epwarp W. Wabsworth,

Clerk, U.S. Court of Appeals, Fifth Circuit.

By Criare F. Sacus,

Deputy.

New Orleans, Louisiana.

US. GOVERNMENT PRINTING OFFICE tere

APPENDIX D

United States District Court

Western District of Texas

San Antonio Division

[Filed September 21, 1973]

Criminal No. SA73CR164, SATSCR163

UnNIrep STATES OF AMERICA

Pavut GonzaLes RANGEL

Unitrep STATES OF AMERICA

Roy MANDUJANO

OPINION

This matter involves the defendants’ separate mo-

tions to suppress their testimony before the special

grand jury which was convened on May 2, 1973. The

two cases before the Court, though not consolidated,

and not involving the same transaction, embody vir-

tually identical sets of circumstances. Each defendant

is charged in a two count indictment with an attempt

to distribute heroin in the first count, and with per-

jury before the grand jury in the second count. The

indictment for perjury in each case (count two) is

based upon each defendant’s denial before the grand

jury of any attempt to sell heroin, or any solicitation

to do so, while count one alleges that each defendant

did in fact make just such an attempt to sell to drug

(25a)

264

enforcement officials. Both alleged attempts took place

prior to the defendants’ grand jury appearances.

As to defendant Rangel, the indictment alleges that

he attempted to distribute three ounces of heroin on

or about the 8th day of December, 1972. The record

reflects that a federal narcotic agent in December

of 1972 attempted to purchase three ounces of heroin

from him, and discussions about money for the sup-

posed drugs took place, though no money ever changed

hands.

With respect to the defendant, Mandujano, the in-

dictment alleges that he attempted to distribute one

ounce of heroin on or about the 29th of March, 1973.

A different federal narcotic agent testified that im

March of 1973 he made contact with Mandujano, and

offered him money for the purchase of heroin, giving

him $650 for the alleged attempted purchase.

Defendants maintain that the above interrogration

by the special attorney for the Drug Enforcement

Administration before the grand jury intentionally

tracked the exact facts of the actual contact between

federal narcotic agents and the defendants, and that

the questions were asked as a continuing part of an

investigation of the narcotics activities of the defend-

ants.’ The agents involved, and the government at-

* When the special attorney for the Drug Enforcement Ad-

ministration questioned Rangel before the special grand jury,

the following exchange took place :

Q. Have you ever offered to sell heroin, get heroin for

someone /

A. No, sir.

Q. Let me ask you specifically have you at any time within

the last four months, five months, since December 1st last year,

the month Christmas was in, have you since then at any time

sold any heroin to anyone

A. No, sir, T haven't.

————

274A

torney who appeared before the grand jury, testified

that they had discussed the circumstances of the

Q. For money? Have you offered to sell heroin to anyone

during that period ?

A. (Nod negative.)

Q. Have you talked with anyone since December 1, 1972,

about getting them some heroin——

A. No, sir.

(). Or selling some heroin ‘

A. (Nod negative.)

Q. I want to make this clear to you. I think—in fact I know

I told you at the the outset that we will ask you certain ques-

tions and if you make a statement, you are wider oath and

Mr. Tarbutton, the foreman of the grand jury, who asked you

to raise your right hand tell the truth, the whole truth and

nothing but the truth—We have asked you questions and if

you have lied to us, in other words if you have made a false

answer, false statement in response to some of these questions

I have asked you, particularly those I have just asked you

about heroin, having heroin, selling heroin or trying to get

heroin to sell for somebody, if you made a false statement and

we prove it is false, you have committed a felony, a federal

felony. Do you understand that ‘

A. Yes, sir, I do.

Q. With that in mind do you still make the same answer

to the questions I have asked you about the sale ¢

Ss ¢ er

A member of the grand jury then asked :

Q. Let’s go back just a little bit there, Mr. Rangel, back

in December, four months ago, five months ago, December of

1972

A. Yes, sir.

Q. Before Christmas a couple of weeks, Did you at any

time offer to obtain some heroin for someone that came to

see you?

No, sir.

Your nickname is Payo?

Yes, sir.

Are you sure about that ‘

Yes, sir,

rere

(Continued)

28A

attempted buys in preparation for the appearance of

Rangel and Mandujano before the grand jury. Given

(Continued }

Phe defendant Mandujano was asked the following ques-

tions, among others: |

QQ. Have you ever talked with anybody about selling it?

Ifas anybody tried to buy heroin from you? Have you tried to

get heroin for them in order to sell to them?

A. No, sir.

(). Are you sure of that?

A. Yes, sir.

(2. In other words, no one has ever come up to you and

wanted to buy heroin ?

A. No, sir.

(). And you have never told anybody that you would try

to get heroin to sell to them?

A. No, sir,

(). Now, you can say here today that you have not dis-

cussed the sale of heroin with anybody in the last year.

A. I don’t understand you, sir. ,

Q. Have you talked to anybody about selling heroin to them

during the last year?

A. No, sir.

(). You are sure about that?

_ A. T just, you know, I discuss it, you know, when we buy

it, vou know, to fix it just, you know.

(). Has anyone ever asked you if they could buy an ounce

of heroin or more from you?

A. No, sir,

(). Let me ask you once again, Mr. Mandujano, have you

ever talked to anybody about selling them heroin in the last

vear ¢ |

A. No, sir.

(). No one has ever given You any money——

A. No, \ ,

Q. —to go buy them heroin’

A. No, sir. .'. \

(). In other words, if you ad $650 right now-—

\. Yes. sir.

(). —<lo you think you would\ be able to purchase Aan ounce

of heroin? /

29a

the nature of the investigation and the questions

asked before the grand jury, the defendants main-

tain, and this Court agrees, that full Miranda warn-

ings should have been given to the two individuals

who were in the position of “putative’’ or “virtual”

defendants.

The government maintains that neither case was

considered for presentation to the grand jury prior

to the testimony of the defendants before that hody,

and that both files had been closed following the con-

tact between the defendants and the law enforcement

officers; nevertheless, the facts of the case belie the

government’s protestations of innocent intent with

respect to the possibility of future prosecutions. The

special attorney who had conducted the questioning

testified that he was well aware of the previous con-

tact with the defendants in attempts to buy from

them, as well as the exact circumstances involved in

each attempted buy. The transcript of the grand jury

proceedings reveals deliberate and careful attention

to questions which specifically delved into the facts

concerning these contacts between the defendant(s)

and government agents. The special attorney was

aware that no case had been made, and though this

Court does not presume any improper motives on the

part of the government agents or the special attorney,

it strains credulity to suggest that the special attorney

did not have one eye on a possible prosecution of the

defendants.2 The government had in fact already at-

tempted to make a case against each defendant. Note

?It seems more than coincidence that when the special at-

torney questioned defendant Mandujano about buying one ounce

of heroin, he offhandedly mentioned the exact amount of

money offered Mandujano by the special agent when that agent

attempted to buy from Mandujano,

304

too that each defendant, immediately after denying

any contact about an attempted sale, was asked in

the very next question about the validity of that an-

swer, and defendant Rangel was promptly cautioned

again about the penalty for perjury. Considering the

totality of the circumstances in this case, the question-

ing of the defendants before the grand jury smacks

of entrapment, Moreover, given the fact that the in-

vestigatory files involving the attempts to buy from

hoth defendants had been closed, the questions posed

presented a high likelihood that the answers provided

by the defendants would furnish material for further

action on the part of the government. If the defend-

ants admitted that they had offered to buy heroin for

the undercover agent who approached them. the gov-

ernment could possibly have used such an admission

In its case-in-chief in connection with the attempted

sale. See United States v. Leighton, 265 F. Supp. 27

(S.D. N.Y. 1967), cert. denied, 390 U.S. 1025 (1968) ;

{nited States v. Montos, 421 F. 2d 215 (5th Cir.) cort.

denied, 397 U.S. 1072 (1970). The denial by defend-

ants that they had conversations about procuring

heroin for the officers left them open to the consequent

indictments for perjury. Actually, therefore, their

only safe harbor would have been to remain silent

and this option was, in effect, denied to them. )

The fact that defendants may have subjected them-

selves to serious risk of prosecution for perjury or for

the substantive attempt to sell heroin does not neces-

sarily har further use of their testimony. Certainly

if they had received full Miranda warnings during

the initial phase of their appearance before the grand

Jury, but had continued to willingly — testify

then their testimony would very likely have oom

stituted a voluntary waiver of the right to remain

silent. The Fifth Circuit has recently restated the well

31A

recognized rule that “a potential defendant may be

subpoenaed to appear before a grand jury and be

subsequently indicted without violating the self in-

crimination proscription, if he testifies voluntarily.”

United States v. Morado, 454 F. 2d 167, 172 (Sth Cir.),

cert. denied, 406 US. 917 (1972).

This Court finds that neither defendant made a

complete, knowing, and intelligent waiver of the right

to remain silent, nor was either defendant properly

apprised of that right, or of his right to appointed

counsel outside the grand jury room, As to defend-

ant Rangel, the statement of the right to remain silent

was so garbled as to be highly suspect, especially in

the context of the following complete excerpt from the

transcript:

Now anytime I ask you a question and you

fee] the answer would tend to incriminate you,

you have a right to refuse to answer that ques-

tion, but you can’t refuse to answer a question

if it is not—if the answer would not tend to

incriminate you. In other words, you would be

in contempt of court. Do you understand what

I mean by incriminate you ¢

Besides the convolution of the double negative in

the foregoing language, that warning, as administered

to defendant Rangel, contains an implicit threat which

all but negates the warning of the right to remain si-

lent. The special attorney examining the defendant did

not suggest to Rangel that he could be held in con-

tempt, if he wrongly refused to answer. Instead he

told the defendant that he would be held in contempt,

if he made the wrong guess as to the incriminating

nature of an answer. The explanation by the special

attorney thus carried a strong implication that any

doubt as to the incriminating nature of a response

should be resolved by the defendant in favor of an-

324

swering, instead of in favor of silence. Judgments

about the actual incriminating nature of a statement

present great difficulties even for attorneys well versed

in the law, so, as a general rule, they advise clients to

opt for silence whenever any doubt exists. It is cer-

tainly unrealistic, as well as unfair, to require a puta-

tive defendant, who is not learned in the law, to choose

between “incriminating” and ‘“‘non-incriminating”’ an-

swers, especially in the somewhat imposing environ-

ment of the grand jury room, unless he has been fully,

completely and unambiguously advised of his right to

remain silent, and voluntarily waives that right.

This Court has equal difficulties with the warning

given defendant Mandujano:

Q. “Now you are required to answer all the

questions that I ask you except for the ones

that you feel would tend to incriminate you. Do

you understand that ?

A. Do I answer all the questions you ask?

Q. You have to answer all the questions ex-

cept for those you think will incriminate you

in the commission of a crime. Is that clear?

A. Yes, sir.

Q. You don’t have to answer questions which

would incriminate you. All other questions you

have to answer openly and truthfully. And, of

course, if you do not answer those truthfully,

in other words if you lie about certain ques-

tions, you could possibly be charged with

perjury.

Here the questioning attorney stressed not the right

to remain silent, but the requirement that the defend-

ant answer all of the questions put to him, with lim-

ited exceptions. He did not stress the alternative of

the defendant remaining silent in the face of a poten-

tially damaging question, but instead stressed the

penalty for perjury. As the Supreme Court said in

33A

Johnson v. Zerbst, 304 U.S. 458, 464 ( 1938), “ ‘Courts

indulge every reasonable presumption against waiver

of fundamental constitutional rights.”’ "

The government has argued strenuously that wit-

nesses before the grand jury are entitled to no

Miranda warning whatsoever, United States v. Di-

Michele, 375 F. 2d 959 (3rd Cir.), cert. denied, en

U.S. 838 (1967) ; United States v. Orta, 253 F. ad 312

(Sth Cir.), cert. denied, 357 U.S. 905 (1958) ; [ utes

States v. Scully, 225 F. 2d 113, 116 (2nd Cir.), cert.

denied, 350 U.S. 897 (1955); United States v. Wolf-

son, 294 F. Supp. 267 (D. Del. 1968), but the dofene-

ants in the instant case were not ordinary “witnesses

‘hen they entered the grand jury room. a

“sc significant that in many cases aoeasagr -

dictments brought subsequent to appearances pee

erand juries, the defendants were clearly warne bh

their right to remain silent and their right to ——

L'nited States v. DiMichele, supra, held only that -

randa warnings were not required in the grand 7 4

room itself, especially in light of the fact = oo

defendant had already been “fully advised 0 . -

right to remain silent and to counsel.” * Most _—

where grand jury testimony has been ——, 7

violative of witnesses’ Fifth and Sixth Amen nen

rights have involved clear and complete vr >

ings on the part of the government es

In United States v. Corallo, 413 F.2d 1306, 1329 ( sn

Cir.), cert. denied, 396 U.S. 958 ( 1969), the warns

civen stressed the right to refuse to “answer pd

questions the grand jury may ask you teday, 1e

answers to which you feel . . . tend to rgcemermeed ee

personally.”? This is unlike the present case In po -

the warning stressed instead the compulsion to testify.

2375 F. 2d at 960.

TAA

In addition, the witness in Corallo was cautioned that

if the questions were answered, they might be used

against him in a court of law. In all fairness, this

Court believes that such a warning would have been

not only instructive, but highly appropriate in the

circumstances of this case. In United States y. Potash,

332 F. Supp. 730 (S.D. N.Y. 1971), the witness was

warned that he had an absolute right under the Fifth

Amendment to refuse to answer incriminating ques-

tions, and ‘‘if you cannot afford an attorney, you have

the right to have an attorney appointed free of

charge, to remain outside the grand jury room and

you may consult with him prior to answering any of

my questions.” *

The Sixth Circuit has clearly held that when a wit-

ness before a grand jury is “virtually in the position

of a defendant’’, then he must be advised of his right

to refuse to answer incriminating questions, and that

anything he says may be used against him. United

States v. Luxenberg, 374 F. 2d 241 (6th Cir. 1967). In

United States v. Fruchtman, 282 F. Supp. 534 (N.D.

Ohio 1968), cert. denied, 400 U.S. 849 (1970), the

Court explored the meaning of the “virtual defend-

ant” language, and, in circumstances very similar to

the instant case, found the witness to be a virtual de-

fendant. In Fruchtman the government attorney sub-

mitted an affidavit denying that the witness was a

potential defendant at the time of questioning. Yet

the Court noted that the same attorney had read in-

vestigative reports detailing the circumstances about

Which the witness was questioned before the grand

jury. These facts are very similar to those in the in-

‘332 F. Supp. at 733 n.3 (1971). Nee also United Niates v.

Trin, 354 F.2d 192, 199 (2nd Cir. 1965). cert. denied. 383 tS.

MT (1966): United States vo DiGiovanni, 397 F.2d 409 (7th

Cir.). cert. denied, 393 U.S. 924 (1968).

35A

stant case, where the special government attorney

read the narcotics agents’ reports prior to the grand

jury session.’

Although the Fifth Circuit has not expressly dealt

with the full scope of Miranda in the context of grand

jury investigations, Mattox v. Carson, 424 F. 2d 202

(5th Cir.), cert. denied, 400 U.S. 822 (1970), it did

examine the problem to some extent In United States

v. Morado, 454 F. 2d 167 (5th Cir.), cert. denied, 406

U.S. 917 (1972), where, without indicating whether it

would agree with the “virtual defendant’’ concept,

noted the Sixth Circuit’s emphasis upon “the same

factor we have considered to be of prime importance

in determining whether or not a man is ‘in custody’,

as that term is used in Miranda: has the ‘focus’ of the

investigation centered upon him?”’* The Court then

indicated its sympathy with the idea that if the in-

vestigation had passed beyond the stage of a general

inquiry into an unsolved crime or a suspected con-

spiracy, and had focused upon the defendant as some-

one whom the government planned to indict, and

against whom it was gathering incriminating evl-

dence, then the defendant would be in the position of

the “virtual defendant’. This Court finds the lan-

‘Although the Government contends that it did not at the

outset intend to obtain an indictment against defendant as a

result of his testimony, it does not appear that the ares"

tion would have been conducted any (lifferently if it had

fA] man’s rights do not depend on the subjective intent of te

prosecutor, nor upon the prosecutor's knowledge as to what

acts. if committed, might constitute an offense under the law.

Yaz F. Supp. at 536 (1968). —

‘Many courts have found that grand jury investigations of

witnesses who later became defendants were not custodial inter-

rogations. See ¢.g.. United States v. Movado, ed F. 2d 167, 173

(sth Cir.), cert. denied, 406 U.S. 917 (1972); 1 nited States v.

McGinnis, 344 F. Supp. 89 (S.D. Tex. 1972).

364A

guage of the Fifth Cireuit in Morado especially ap-

plicable in the instant case, where there was no basis

(other than hope) for the perjury count of the indict-

ment until after the grand jury appearance. The fact

that the questioning attorney immediately pounced

upon each defendant’s denial that he had been con-

tacted about sales of heroin, indicated a clear and di-

rect focus upon Rangel and Mandujano as future

defendants.

Under the cireumstances of this case, this Court

finds that Rangel and Mandujano were putative

defendants as outlined in the “virtual defendant”

rule of the Sixth Circuit, and holds that both wit-

nesses had a right to be warned of their right to

remain silent in regard to any question which might

tend to incriminate them; that any testimony given

might be used against them in a court of law: and

that if either of them wanted an appointed attorney

he had a right to have one available to him for con-

sultation outside the grand jury room.’

* Actually, Mandujano told the special attorney that he

lidn't have the money to get a lawyer. The exchange during

the grand jury proceedings between Mr. Mandujano and the

questioning special attorney included the following:

Q. Have you discussed your presence here with anybody!

A. My wife. i

{). Have you contacted a lawyer in this matter?

A. No sir, I haven't.

(. I take that to mean then that you do not wish the

services of a lawyer here today ? ’

‘A. I don't have one, I don’t have the money to get one.

| Q. Well, if you would like to have a lawyer, he cannot be

inside this oom. He can only be outside. You would be free to

consult with him if you so chose. Now, if during the course

of this investigation, the questions that we ask you, if you

feel like yon would like to have a lawyer outside to talk to, let

me know,

A. Yes. sir.

374

This Court agrees with the argument that as a

matter of policy a de jure or de facto defendant should

never be called before a grand jury, unless, of course,

(). Is that clear?

A. (Nod affirmative).

Mr. Range! was asked the following questions:

Q. You are not under arrest.

A. I know, sir.

Q. You know that. As far as I know there are no warrants

out for your arrest. You have a right to an attorney if you

want one. Do you have an attorney ‘

A. He didn't tell me anything. They just gave me the

subpoena.

Q. No. I say, did you talk to an attorney after you got the

paper, the subpoena /

A. No, sir, I didn't.

Q. You have the right to an attorney if you want one. Ile

can't be in here with you. The rules wouldn't permit it, but he

could be outside and you could talk to him anytime you want

to.

At no time was either defendant told that an attorney would

be furnished him free of charge if he was financially unable

to employ one. This Court finds the words of the Fifth Circuit

in Irving v. Breazcale, 400 F.2d 231, 235 (1968) especially tell-

ing in this regard: “An aceused cannot be found to have waived

# right if he was not aware that he had it. Thus it is not suf-

ficient merely to ask an indigent defendant whether he wants a

lawyer. If he is unaware that counsel will be appointed whether

he can afford to pay or not, he will not likely say that he wants

a lawyer even if he thinks he needs one.”

It should be noted that a Criminal Justice Act Guideline

Approved by the Judicial Conference of the United States in

September 1973 provides:

“When a judge appoints counsel for a witness before a

grand jury under the terms of the Criminal Justice Act in

cases in which the witness faces loss of liberty, such ap-

pointment shal] be deemed to be an appointment under the

general terms of the Act rather than under the terms of

subsection (g) and that ordinarily such appointment

should be considered to be an appointment in a misde-

meanor case.”

38a

he volunteers to testify. But if a defandant or puta-

tive defendant is called to appear before the grand

jury, the very least thet should he accorded him is

a full and complete recitation of his constitutional

rights in order to make certain that if he does testify

his testimony will have been given knowingly, volun-

tarily and intelligently.

This Court does not suggest that every witness be-

fore a grand jury has a right to appointed counsel

present outside the grand jury room,’ but when an

indigent witness requests that counsel be appointed to

assist him, it may be a wise poliey to comply with

such request.” However, in the case of a virtual or

putative defendant, the exercise of proper judgment

as to the incriminating effect of any answers before

the grand jury becomes doubly important. In such a

case the right to counsel would be an empty one

indeed if those capable of retaining a private attorney

could consult with them outside the grand jury room,

but those unable to pay, but equally subject to the

penalties of the criminal law, could not.

Both incriminating testimony and testimony later

*“TIndeed, one would suppose that. as a matter of ethics

or fair play or policy, a prosecutor would in all cases refrain

from calling as a witness before a grand jury any person

who is de jure or de facto an accused. The absence of appeals

to this Court involving the problem under discussion would

seem to indicate that some such rule or practice is observed

in the prosecutors’ offices in this cireuit.” United States v.

Neully, 225 F.2d 113, 116 (2nd Cir.). cert. denied. 350 U.S. 897

(1955). See also United States v. Messitte, 324 F. Supp. 334,

338 (S.D.N.Y. 1971).

*See United States v. Daniels, 461 F. 2d 1076 (5th Cir.

1972); United States v. DeSapio, 229 F. Supp. 436, 440

(S.D.N.Y. 1969).

See generally Right to Counsel Before Grand Jury, 41

F.R.D. 189 (1966).

394

proved to be perjurous have been upheld as admissible

when a defendant has been fully advised of his con-

stitutional rights. United States v. Potash, 332 F.

Supp. 730, 732 (S.D.N.Y. 1971), United States v.

DiGiovanni, 397 F. 2d 409, 412 (7th Cir.), cert.

denied, 393 U.S. 924 (1968). There is no appreciable

difference between the suppression of ineriuin: tne

substantive evidence given before a grand Jury in the

absence of warnings, and the suppression of perju-

rious testgmony given under the same circumstances.

The Fifth Circuit, eight years before Miranda, stated

that “under no circumstances, however, could fa wit-

ness] commit perjury and successfully elim that the

Constitution afforded him protection from prosecu-

tion for that crime.”’ lnited States v. Orta, 253 FP.

2d 312, 314 (Sth Cir.), errt. denied, 357 U.S. 905

(1958), and United States v. Daniels, 461 F. 2d 107%,

1077 (5th Cir. 1972). But in view of the subsequent

holding in Miranda, there is an essential difference

now between a prosecution for perjury, when there

have heen no Miranda warnings, and the suppression

of testimony under the exclusionary rule, when such

warnings have not been given. This crucial difference

between the dismissal of an indictment and the sup-

pression of testimony, which otherwise might be

"In Orta the Court appeared to make a distinction between

the consequences of a witness (unwarned of his right to remain

silent) choosing to testify falsely rather than in a truthful

though incriminating manner. The Court held that the Fifth

Amendment would protect the witness from the truthful.

incriminating statement. but if the witness testified perjurously,

then the Fifth Amendment would offer no protection: “As

said in Glickstein v. United States, 1911, 222 U.S. 139, 142.

...** * * the immunity afforded by the constitutional guar-

anty relates to the past, and does not endow the person who

testifies with a license to commit perjury.’”

404

utilized in a prosecution, has been noted by the courts

in different contexts many times.” In short, the

proper remedy for testimony acquired in the absence

of Miranda warnings is the suppression of the testi-

mony and not the dismissal of the indictment.

One obvious purpose of Miranda was to avoid put-

tng a defendant te the Hobson’s choice of either

incriminating himself or lying. In the case of the

putative defendant who has not been properly warned

of his rights, the only choice available to him appar-

ently lies between incriminating himself or giving

false testimony. Miranda would be vitiated if the

goverpment, by failing to give the warnings, could

force the witness to guess as to which type of testi-

mony is properly protected under the Fifth Amend-

iment. In that event, an incorrect guess by such a

wityess would clearly constitute a situation in which

he would have been “compelled to be a witness against

himself.”

While this Court agrees that the issuance of a

subpoena to appear before a grand jury is not inher-

eitly coercive, United States v. Cleary, 265 F. 2d 459

(2ad Cir, 1959), it is quite obvious here that the

defendants may very well have perceived themselves

under an apparent compulsion to testify, a situation

which falls within the ambit of enustodial interrogation

by virtue of the investigation having foeused on

them,” thus depriving them of “freedom of action

in [a] significant way.’’ ™

* See. ¢.y.. United States v. Blue, 384 UWS. 251, 255 (1966) :

Mattox vy. Carson, 424 F. 2d 202 (5th Cir.), cert. denied, 400

U.S. 822 (1970): United States vy. Wolfson. 294 F. Supp. 267,

275 (1). Del, 1968).

" Escobedo v. Illinois, 378 U.S. 478, 485, 492 | 1964).

'' Miranda v. Arizona, 384 U.S. 436. 444 (1966)

41a

As was pointed out in the case of In Ie Kelly,

350 FL Supp. 1198 (B.D. Ark. 1972), courts cannot

legitimately and fairly distinguish the appearance of

some witnesses before the grand jury from the ap-

pearance of others based merely upon the expressed

subjective intent of government attorneys. Long after

presentment, and a grand jury vote upon an indict-

ment, it becomes extremeiy difficult for even the most

attentive attorney to recall exactly that moment when

his view toward an individual changed from the im-

partial questioning of a witness to the sharp inqtusi-

torial search directed toward a prospective defendant.

See also United States v. Kreps, 349 F. Supp. 1049

(WD. Wis. 1972).

If decisions as to the rights to be afforded an indi-

vidual turned strictly upon the exact time of indict-

ment, or presentment, of a case to a grand jury, or

commencement of an investigatory file, simple delay

of time of indictment would subvert Mirenda to the

point where it would be meaningless, When it is clear

that an individual is being questioned with an eye

to possible prosecution, and when an investigation

has narrowed to close inquiry concerning that indi-

vidual’s behavior, as distinguished from his knowledge

of activities performed by others, thea that individual

should be fully and carefully advised of his rights.

As a practical matter, this Court does not see that

any undue burden would be placed upon the fimetions

of the grand jury if every witness were fully advised

as to the Miranda rights. Many witnesses enter the

grand jury room already knowing the importance

and meaning of the right to remain silent. For them,

a Miranda warning does not impede the investigatory

process in the least. And those who enter the grand

jury room without such knowledge of their rights

have no less right to remain silent with respect to

42a

matters which might tend to incriminate them, or to

consult counsel than their more informed counter-

parts; and pursuant to the concept of “equal justice

under law”, the government has no valid right to ex-

pect, as a matter of course, to be allowed to take

advantage of the status of the less informed as an aid

in its investigation and prosecution.

Considering all of the facts surrounding the appear-

ance of Roy Mandujano and Paul Gonzales Rangel

before the May 1972 special grand jury, this Court

finds and ORDERS that their testimony before said

grand jury be and the same is hereby suppressed.

entered the 21st day of September, 1973.

ADRIAN A, SPEARS,

United States District Judge.

S GOVERNMENT PRINTING OFFICE: 1974

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