# Petition — United States v. Mandujano > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0254%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 564 ## Text 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 v. 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. ee 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 Ww 565-354—74——1 II 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 v. Roy MANDUJANO c 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) 2 (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 3 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. 4 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. 5 846, 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. 6 (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 7 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. 8 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 9 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. 10 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 11 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 12 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*.” 13 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). 14 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 15 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 16 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- 7 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. 18 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. 19 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). 20 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) 2A 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 3A 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. 4A 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. T 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. DA 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). 6A 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 7A 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- 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 7 ‘ - : { 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 « : : j i v a a : 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 v. Ray MANDUJANO, DEFENDANT-APPELLEE Unirep StaTEs OF AMERICA, PLAINTIFF-APPELLEE v. 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 v. Pavut GonzaLes RANGEL Unitrep STATES OF AMERICA v. 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. (). — 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0254%3A1. Public record. Not legal advice.