Petition — United States v. Wong

= ’ -_ =.

SU" me Court, UF.

| rr

NOV 22 1974

MICHAEL RODAK, JR., Ci ERK

No. 74-635

Gn the Supreme Gourt of the Wuited States

OcToBER TERM, 1974

Unrtep States oF AMERICA, PETITIONER

v.

Rose Wone

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

ROBERT B. REICH,

Assistant to the Solicitor General.

PETER M. SHANNON, Jr.,

LAUREN 8S. KAHN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Page

ER. OR ELIE TEE 1

i a i 1

ON EEL LEO 2

Constitutional provision and statute involved. - -- 2

Ge a ae Ue ES Can em 2

Reasons for granting the writ____........------ 6

he EE A RR SR I 14

PT IE FELL LNA EEO L la

I ins eich EE aeredanenennane 6a

CITATIONS

Cases: .

Blair v. United States, 250 U.S. 273___._---- ll

Brown v. United States, 245 F. 2d 549__..:..° 13

Bryson v. United States, 396 U.S. 64... ---- 11,12

Cargill v. United States, 381 F. 2d 849, certi-

orari denied, 389 U.S. 1041__ --_.--._---- 11-12

Commonwealth of Pennsylvania v. Columbia In-

vestment Corp., et al., No. 162, decided

September 5, 1974 (Sup. Ct., Pa.)....._..-- 7

Counselman vy. Hitchcock, 142 U.S. 547_-...-- 8

Glickstein v. United States, 222 U.S. 139___ _- ll

Harris v. New York, 401 U.S. 222_.._.._..-- 11,12

Miranda v. Arizona, 384 U.S. 436_..._--- 7, 8, 9, 15

Robinson v. United States, 401 F. 2d 248__-__- . 7

Schneckloth v. Bustamonte, 412 U.S. 218____--- 8,13

Sherman v. United States, 356 U.S. 369__..-- -- 13

Sorrells v. United States, 287 U.S, 435__...~--- 13

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

United States v. Andrews, 370 F. Supp. 365... 12

United States v. Calandra, 414 U.S. 338... -- 6, 14

(I)

563-703—74———-1

~

Cases—Continued

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

- certiorari denied, 350 U.S. 897__________- 7

United States v. Cross, 170 F. Supp. 303. _ __- 13

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

certiorari denied, 393 U.S. 924.__________- 11

United States v. Dionisio, 410 U.S. 1... --__. - 9

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

certiorari denied, 389 U.S. 838___._..____- 7

United States v. Fruchtman, 282 F. Supp. 534- 13

United States v. Icardi, 140 F. Supp. 383____- 13

United States v. Knox, 396 U.S. 77_____-_--. 11,12

United States v. Luxenberg, 374 F. 2d 241___- 8

United States v. Mandujano, 496 F.2d 1050___ 5,7, 12

United States v. Monia, 317 U.S. 424... ____ 7,8

United States v. Nickels, No. 74-1153,

decided September 12, 1974 (C.A. 7) __--- 1l

United States v. Parker, 244 F.2d 943________- 11

United States v. Pommerening, 500 F.2d 92. __- 12

United States v. Rangel, 496 F.2d 1059_____ 5, 7

United States v. Russell, 411 U.S. 423... ___- 13

United States v. Scully, 225 F.2d 113, certio-

rari denied, 350°U.S. 897.._............-- 7

United States v. Thayer, 214 F. Supp. 929_. _ _ - 13

United States v. Washington, No. 7609,

decided November 6, 1974 (D.C. Ct. App.) 8

United States v. Winter, 348 F.2d 204, certio-

rari denied, 382 U.S. 955.__.....________- 11

Constitution and statutes:

United States Constitution:

Fourth Amendment.-__________...__--- 13

Fifth Amendment._._________- 2, 4, 5, 6,7, 8,9

BD Wes IS dais cela sdedsc ued wut eed 2

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Gn the Supreme Gourt of the United States

OcTroBerR TERM, 1974

No.

UNITED States OF AMERICA, PETITIONER

v.

Rose Wona

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_ The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari

to review the judgment of the United States Court

of Appeals for the Ninth Circuit in this case.

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

p. la) is not yet reported.

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

infra, p. 6a) was entered on September 23, 1974. On

Octoher 23, 1974, Mr. Justice Douglas extended the

time to petition for a writ of certiorari to and inelud-

ing November 22, 1974. The jurisdiction of this Cotrt

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

(1)

2

QUESTIONS PRESENTED

1. Whether a “putative defendant’’ called as a

grand jury witness is entitled to be warned prior to

testifying of her “right to remain silent.”

2. Whether the government’s failure to give an ade-

quate warning to a prospective defendant should

result in the suppression of her testimony in a sub-

sequent 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 crimi-

nal case to be a witness against himself * * *.

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

(a) Whoever under oath in any proceeding be-

fore 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.

STATEMENT

On September 7, 1973, respondent testified before a

grand jury for the Northern District of California.

Her testimony was part of an investigation to dis-

cover violations of 18 U.S.C. 1955 (illegai -ambling

businesses) and 18 U.S.C, 1511 (obstruction ft state

and local law enforcement). Prior to testifying, re-

spondent was warned by the prosecutor (R. 51-54) :’

*“R.” designates the record on appeal in the Ninth Circuit.

“Tr.” desi the transcript of the hearings on respondent's

motion pom Dace jury testimony. .

3

You * * * need not answer any question which

you feel may incriminate you. * * * [Y]ou

[have] the right to refuse to answer any ques-

tion which you feel might incriminate vou.

* * * [T]f you do give an answer, that answer

may be used against you in a subsequent

criminal prosecution, if in fact the Government

should decide to prosecute you for any

crime. * * * You also have the right to consult

with an attorney prior to answering any ques-

tion here today. * * * [I]f you cannot afford

an attorney, * * * we would see that an

attorney is afforded [sic] to represent you. * * *

[Ijf you do answer any questions and should

you knowingly give any false testimony, or

false answers to any questions, you would be

subject to prosecution for the crime of perjury

under the Federal Laws.

Respondent indicated that she understood each of

these warnings. The prosecutor then carefully ex-

plained to her the meaning of perjury (R. 53-54) :

Q. * * * [I]n essence, perjury means telling

a lie under oath. Do you understand what that

is?

A. Yes.

Q. Do you understand the difference between

lying and telling the truth?

A. Yes.

Q. Under oath?

A. Uh buh.

* 7 . * *

Q. With respect to perjury, as we have dis-

cussed it, let me advise you that the Federal

crime of perjury, before a Grand Jury, carries

a penalty of “five years imprisonment. That is

* a maximum penalty and/or $10,000 fine.

4

Following these warnings, respondent was asked

if she had ever given money or gifts to any police

officers and if she had ever met with police officers to

discuss gambling. She denied that she had engaged in

any such activities. (R. 63-64). At the time she was

asked these questions, the govenment had evidence that

she had paid bribes to certain police officers, who had

turned the money over to the Federal Bureau of

Investigation. The questioning was designed to elicit

names of any officers who had not cooperated with the

government, and who would therefore be indictable

(T:. 97).

On November 29, 1973, respondent was indicted for

perjury, in violation of 18 U.S.C. 1623, on the basis

of her September 7, 1973, denials to the grand jury

that she had ever given money or gifts to any police

officers or discussed gambling with them (R. 63-64).

On January 22, 1974, respondent filed a motion to

dismiss the indictment, in which she alleged, inter alia,

that the indictment was invalid because the testimony

on which it was based was obtained without her having

heen effectively advised of her Fifth Amendment

rights. On February 8, 1974, following an evideutiary

hearing on her motion, the district court ruled that,

although she had been given ‘‘a full, complete and

adequate warning’? of her privilege against self-

incrimination prior to testifying, her grand jury

testimony must be suppressed because her lack of

proficiency in the English language prevented her

from understanding the warning (Tr. 110). This rul-

ing was issued from the bench, and the court made no

written findings of fact. It stated, however, that

5

respondent had understood what perjury meant (Tr.

110) and had clearly understood the substantive ques-

tions asked of her (Tr. 98-99).°

The court of appeals affirmed, reasoning that ‘‘ [t]he

perjurious answers were induced by an unfair proce-

dure violative of the [Due Process Clause of the Fifth

Amendment]” (App. A, infra, p. 2a). The unfairness

stemmed, according to the court, from the govern-

ment’s failure effectively to warn a witness whom the

government knew to be a prospective defendant of

her ‘‘right to remain silent,’’ thereby creating a ‘‘sub-

stantial danger’’ that she would feel compelled to

choose between self-incrimination and perjury. The

court acknowledged that the government had provided

respondent with all the warning to which she was

entitled and stressed that it had found no “‘bad faith”’

on the part of the government. ‘Nevertheless, the

government having employed a procedure calculated

to exploit her lack of understanding, it runs the risk

of a subsequent determination that its curative proce-

dures were inadequate and the due process violation

undissipated’’ (App. A, infra, p. 5a, n. 4). The court

agreed with the ruling of the district court that

respondent’s testimony was therefore inadmissible in

a subsequent perjury prosecution.’

* The district court made no ruling on respondent's motion

to dismiss the indictment.

* The court relied upon U’nited States v. Mandujano, 496 F. 2d

1050 (C.A. 5), and its companion case, United States v. Rangel,

496 F. 2d 1059 (C.A. 5). On October 16, 1974, the Fifth Circuit

denied the government’s motion for a rehearing en bane in those

two cases. On\ November 12,1977, Mfr-—Fastice. Powell extended

the time for the-Gni tenes Ai States -to~pet ition for-a writ of cer-

tiorari in those cases to and/including wy 5, 1974.

LS enn

6

REASONS FOR GRANTING THE WRIT

This ease presents two important and related ques-

tions concerning procedures for questioning grand

jury witnesses and remedies for the government’s

failure to follow any procedures that may be held to

be required. The first question, over which the cir-

cuits are in conflict, is whether a grand jury witness

suspected of participating in the substantive offense

must, prior to testifying, be given an effective warn-

ing of her “right to remain silent.”” The second

question, in connection with which it is assumed that

some warning is constitutionally required, and over

which the opinion of the court below is in conflict

with decisions of several circuits and with decisions

of this Court, is whether the government’s failure to

give an adequate warning should result in the sup-

pression of a “putative defendant’s” testimony in a

subsequent prosecution for perjury.

In giving affirmative answers to these two questions,

the court of appeals in the instant case needlessly

impeded the investigative power of the grand jury,

which ‘‘must be broad if its public responsibility is

adequately to be discharged.’”’ United States v. Cal-

andra, 414 U.S. 338, 344. It also adopted an unduly

expansive notion of the content of the due process and

self-incrimination provisions of the Fifth Amendment,

which do not tequire the giving of a warning appro-

priate to police interrogation in the grand jury con-

text and do not in any event permit a witness who

receives an inadequate warning to lie to the grand

jury with impunity.

7

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,

an effective warning of her “right to remain silent.’’*

the court of appeals carved out an unwarranted ex-

ception to the well-established rule that grand jury

witnesses need not be given Miranda warnings prior

to testifying, even when their responses might tend

to incriminate them.’ The court relied upon the rea-

soning of the Fifth Circuit in the companion cases

of United States v. Mandujcno, supra, and United

States v. Rangel, supra, both of which distinguished

a ‘‘putative defendant” from an ordinary grand jury

witness an‘/ held that the former is entitled to Miranda

*The court of *ppeals’ allusion to a “right to remain silent,”

possibly based on analogy to Miranda, is an inaccurate state-

ment of the Fifth Amendment privilege of a witness appearing

before a grand jury, who has no “right to remain silent” per se,

but only a right to claim his Fifth Amendment privilege with

respect to responses which he has reasonable grounds for believ-

ing may tend to incriminate him. See United Stutes vy. Monia,

317 U.S. 424, 427. We assume, however, that the decision below did

not turn upon any distinction between an absolute right of silence

and the more limited privilege against self-incrimination granted

by the Fifth Amendment, and that the court of appeals would have

found no unfairness had it been established that respondent under-

stood the Fifth Amendment privilege.

*See e.g., United States v. Scully, 225 F. 2d 118, 116 (C.A.

2), certiorari denied, 350 U.S. 897; United States v. Corallo,

413 F. 2d 1306 (C.A. 2), certiorari denied, 396 U.S. 958; United

States v. Di Michele, 375 F. 2d 959 (C.A. 3), certiorari denied,

389 U.S. 838; Robinson v. United States, 401 F. 2d 248, 250 (C.A.

9). See also Commonwealth of Pennsylvania v. Columbia Invest-

ment Corp., et al., No. 162, decided September 5, 1974 (Pa. Sup.

8

warnings before testifying.” We submit that this dis-

tinction is warranted by neither precedent nor logic,

and that no grand jury witness—including “one on

whom the grand jury investigation has focused”—is

entitled, prior to testifying, to a warning of a right to

remain silent.

The Fifth Amendment speaks of compulsion. “It

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

fying voluntarily in matters which may incriminate

lum.” United States vy. Moniu, 317 U.S. 424, 427.

Voluntariness is, of course, an elusive concept for

which no single formula or factor, such as failure to

advise of rights, is determinative. See Schneckloth v.

Bustamonte, 412 U.S. 218, 226, 234. A witness who

testifies before a grand jury may invoke the Fifth

Amendment privilege if the witness has reasonable

grounds for believing that truthful responses will tend

to be incriminating. Counselman v. Hitchcock, 142

U.S. 547. However, ‘‘he must claim [the privilege]

or he will not be considered to have been ‘compelled’

within the meaning of the Amendment,” United States

v. Monia, supra, 317 U.S. at 427, even if the witness

®*The Sixth Circuit has suggested that it would subscribe to

the same distinction for purposes of requiring warnings. See

United States v. Luwenberg, 374 F. 2d 241, 246 (C.A. 6) ; Stanley

v. United States, 245 F. 2d 427, 434 (C.A. 6). In no case, however,

has the Sixth Circuit intimated that any blanket “right to remain

silent” should apply to a “putative defendant” before the grand

jury. See n. 4, supra.

The District of Columbia Court of Appeals has recently held

that a “putative defendant” must be given Miranda warnings

before appearing in the grand jury room for questioning and

must also be informed that he is considered to be a “putative

defendant.” United States v. Washington, No. 7609, decided

November 6, 1974, slip op. at 1-4. (D.C. Ct. App.).

was not specifically informed of the right to invoke the

privilege.’

We perceive no reason in logic or experience for

assuming that respondent’s answers before the grand

jury were less voluntary b>cause she was suspected of

involvement in the criminal enterprise under in-

vestigation than would have been the responses of

any other witness. A so-called “putative defendant”’

may, like any other witness, claim the Fifth Aynend-

ment privilege as an alternative to self-incrimination.

The greater likelihood that one suspected of having

taken part in the offenses that the grand jury is in-

vestigating will give responses that may be incriminat-

ing does not affect the voluntariness of the responses.

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

ant’”’ before the grand jury analogous to the

situation of an accused during custodial police inter-

rogation. The Miranda warnings were designed to

assure that the right not to be subjected to compelled

self-incrimination was protected in custodial settings,

which are essentially solitary, and which the Court

found to be inherently coercive and difficult to super-

vise by neutrai authority. The critical concern of the

Court was with the dangers inherent in “incommu-

nicado” interrogation. Miranda vy. Arizona, 384

U.S. 436, 445. The warnings were never intended to

“ereate a constitutional straightjacket’’ (td. at 467)

to be applied across-the-board to every form

of official interrogation. They are inappropriate to a

grand jury setting, where questioning takes place

before 23 private citizens, under the supervision of a

* See cases cited at n. 5, supra.

10

presiding judge, and where, if the time scheduled for

a witness’s appearance is inconvenient, it can gen-

erally be altered. See United States v. Dionisio, 410

US. 1.

Nor, finally, can it be assumed that the government’s

primary motive in summoning a potential defendant

before a grand jury is, as the court below suggested,

to gain unfair advantage over the witness arising from

‘the wholly predictable fact that the witness will be

ignorant of or not understand the right to remain

silent, and be compelled by answering to subject him-

self to criminal liability’’ for the substantive offense

or for perjury (App. A, infra, p. 5a). On the contrary,

a witness who is suspected of having taken part in the

substantive offenses into which the grand jury is

inquiring is likely to represent one of the best sources

of information critical to the grad jury’s inquiry as

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

identity of others who may be involved. In the instant

case, for example, respondent could have been helpful

to the grand jury in determining who, if anyone, was

involved in illegal gambling and police bribery. Alter-

natively, such a witness may wish to confess his or

her part in the offense (the Constitution reflects no

policy against voluntary confessions), or may be able

to exculpete himseif ‘or herself to the satisfaction of

the grand jury. Contrary to the conclusion of the

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

witness in governmental efforts to elicit relevant infor-

mation in the possession of the witness by normal

grand jury questioning, provided that there has been

no improper compulsion of testimony.

ll

The court of appeals’ blanket requirement that

every witness likely to be indicted by a grand jury be

warned of the “right to remain slient’’ prior to testi-

fying would tend to discourage the cooperation that is

necessary for the grand jury to determine whether

criminal proceedings should be instituted against any

person. It could place an unwarranted stumbling block

in the way of the grand jury’s investigation, predi-

eated upon difficult forecasts about who is apt to be

indicted. As this Court stated in Blair v. United

States, 250 U.S. 273, 282, “the scope of [the grand

jury’s] inquiries is not to be limited narrowly by

questions of propriety or forecasts of the probable

result of the investigation.”’

2. In holding that testimony of a “putative de-

fendant” given without prior effective warning of

the right to remain silent is inadmissible in a subse-

quent prosecution for perjury, the court of appeals

created un exception to the well-established rule that

“the immunity afforded by the constitutional guar-

antee [against compulsory self-incrimination] relates

to the past and does not endow the person who testi-

fies with a license to commit perjury.”’ Glickstein Vv.

United States, 222 U.S. 139, 142; see also Harris v.

New York, 401 U.S. 222, 225; Bryson v. United States,

396 U.S. 64: United States v. Knox, 396 U.S. 77. In so

doing, the court also brought itself into sharp conflict

with decisions of the Second, Seventh, and Tenth

Circuits," which have held that even if putative de-

* United States v. Winter, 348 F. 2d 204 (C.A. 2), certiorari

denied, 382 U.S. 955; United States v. Parker, 244 F. 2d 943

(C.A. 7); United States vy. DiGiovanni, 397 F. 2d 409, 412

(C.A. 7), certiorari denied, 393 U.S. 924; United States v.

Nickels, No. 74-1153, decided September 12, 1974 (C.A. 7) ; Cargill

12

fendants are entitled to some Miranda warnings, fail-

ure to give the warnings does not license them to

commit perjury.

If a witness is improperly compelled to incriminate

himself, his incriminating statements may be ex-

cluded from use by the prosecution. But he may not

avoid the compulsion by committing perjury. ‘‘Our

legal system provides methods for challenging the

Government’s right to ask questions—lying is not one

of them.”’ Bryson v. United States, 396 U.S. 64, 72. The

court of appeals in the instant case, however, again

relying upon the reasoning of the Fifth Cireuit in

United States v. Mandujano, supra, found this broad

principle inapplicable to a “putative defendant” who

hes to a grand jury, since “the government’s use of

such a procedure against a witness it knows to be

virtually in the position of a defendant is unfair”

(App. A, infra, p. 3a).

In Mandujano, which did not allude to the Knoz-

Bryson-Harris line of authority, the court’s finding

of *‘unfairness” was based upon an inference that the

government’s primary purpose for asking a “putative

defendant” incriminating questions was to ‘‘entrap”’

him into committing perjury. As we have already

indicated, however, the government has many legiti-

mate purposes for asking a witness, suspected of tak-

ing part in the criminal activities, questions to which

v. United States, 381 F. 2d (C.A. 10), certiorari denied, 389 U.S.

1041; United States v. Pommerening, 500 F, 2d 92 (C.A. 10). See

also United States v. Andrews, 370 F. Supp. 365, 371 (D. Conn.).

13

truthful responses may tend to be incriminating. See

p. 10, supra.”

Moreover, a “putative defendant’’ who lies to a

grand jury rather than incriminate himself cannot

be considered to be ‘‘entrapped” into committing per-

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. Russell, 411 U.S.

423, 436. Nor does the government thwart whatever

predisposition 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.

Even if such questioning without adequate warning

were ‘‘unfair,”’* however, it does not follow that the

resulting testimony should be inadmissible in a prose-

cution for perjury. The exclusionary rule is generally

“restricted to those areas where its remedial objectives

*The government's questioning of a witness suspected of hav-

ing taken part in a criminal offense is different from the abuse

of process resulting from repeated summoning of a witness 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 opportunity for perjury.

See Brown v. United States, 245 F. 2d 549, 555 (C.A. 8);

United States v. Thayer, 214 F. Supp. 929 (D. Colo.) ; United

States vy. Cross, 170 F. Supp. 303 (D.D.C.); United States v.

lcordi, 140 F. Supp. 383 (D.D.C.); United States v. Frucht-

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

**°Of course, if the court of appeals’ somewhat unusual ap-

plication of due process notions in this case were correct, then

the failure to apprise the subject of a proposed consent search

of the Fourth Amendment right to refuse consent would

similarly be unfair, the use of evidence obtained pursuant to

such a search impermissible under due process notions, and this

Court’s decision in Schneckloth vy. Bustamonte, supra, erroneous.

14

are thought most efficaciously served.” United States

v. Calandra, supra, 414 U.S. at 348. 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 in-

criminating evidence for the sake of obtaining

evidence of perjury.

Indeed, in the instant case the government provided

respondent with all the warnings to which the court

held she was entitled. The court of appeals found no

indication that the government had acted in bad faith.

Respondent’s testimony was suppressed because of a

factor over which the government had no control—her

lack of understanding of the English language, which

made the warnings ineffective. Under these cireum-

stances in particular, when there is no showing of bad

faith on the part of the government, suppression of

the testimony from a subsequent prosecution for per-

jury serves no deterrent purpose whatsoever.

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

Rosert H. Bork,

Solicitor General.

Henry E. PETERSEN,

Assistant Attorney General.

Rosert B. Reicn,

Assistant to the Solicitor General.

Perer M. SHaANnNon, Jr.,

LavurReN 8. Kaun,

NOVEMBER 1974. Attorneys.

US. GOVERNMENT PRINTING OFFICE: 1974

APPENDIX A

United States Court of Appeals for the Ninth Cireuit

No. 74-1636

Unitep States OF AMERICA, PLAINTIFF-APPELLANT

v.

Rose WONG, DEFENDANT-APPELLEE

September 23, 1974

Appeal from the United States District Court for the

Northern District of California

OPINION

Before: Kortscn and Syeep, Circuct Judges, and

Frtu,* District Judge.

Koetscnu, Circuit Judge:

Appellee was subpoenaed to testify before the Grand

Jury investigating illegal gambling and police payoffs

in the Chinatown area of San Francisco. At that time

the government already possessed incriminating evi-

dence against her; she was a target of the Grand

Jury’s investigation and likely to be indicted.’

*The Honorable Robert Firth, United States District Judge

for the Central District of California, sitting by designation.

‘ At the hearing the government's attorney acknowledged, and

the district court found, that before appellee was subpoenaed,

the government possessed testimony of two cooperating under-

cover San Francisco police officers that they had visited appellee

at her illegal gambling house, that she had paid them bribes,

and arranged for future payments; she was therefore a prospec-

tive defendant when called to testify.

(la)

Ya

Immediately before questioning appellee, the district

attorney informed her of her privilege against self-

incrimination, and of the possible consequences of

testifying falsely. He then asked questions, tailored

hy his previously obtained knowledge of appellee’s

criminal involvement, true answers to which would

have heen incriminating. Appellee’s false answers

formed the basis for a subsequent perjury indictment.

18 U.S.C. § 1623.

Following her arraignment on the charge, appellee

moved to suppress her answers. The district court

determined, based on extensive evidence adduced by

affidavit and al a hearing, that appellee, who was born

in China and uses English only as a second language,

had not understood that portion of the prosecutor’s

questioning designed to inform her of her right to

remain silent.* Consequently the district court, relying

on United States v. Rangel, 365 F. Supp. 155 (W.D.

Tex. 1973), and the implications of statements in our

decision in Robinson v. United States, 401 F. 2d 248

(9th Cir. 1968), ordered the testimony suppressed. The

government has appealed. We affirm.

We emphasize at the outset that affirmance is rested

not on the self-incrimination clause, but rather on the

due process clause of the Fifth Amendment. The

prejurious answers were induced by an unfair proce-

dure violative of the latter clause. That unfairness

stems from the threat the procedure poses to the values

protected by the privilege.

The government correctly points out that the privi-

lege against self-incrimination does not afford a

defense to a witness under compulsion who, rather

than refusing to answer (or, if improperly compelled

* The district court's resolution of the conflicting evidence is

not clearly erroneous, and we are bound by the determination

that she did not understand her rights.

3a

to answer, giving incriminating answers), gives faise

testimony. E.g., United States v. Knox, 396 U.S. 77

(1969); Glickstein v. United States, 222 U.S. 139

(1911); Robinson v. United States, supra; United

States v. Orta, 253 F. 2d 312 (5th Cir. 1958) ; United

States v. Parker, 244 F. 2d 943 (7th Cir. 1957). The

reason is fundamental: ‘‘The immunity afforded by

the Constitutional guaranty relates to the past, and

does not endow the person who testifies with a license

to commit perjury.’’ Glickstein, supra, at 142. Because

the judicial system is committed to interpreting the

privilege against self-incrimination generously obviat-

ing totally the danger of oppressive governmental

conduct both to those who remain silent and to those

who unwillingly incriminate themselves because of

improper governmental compulsion, the legal system

reciprocally need not and cannot tolerate perjury. If a

witness is improperly compelled to incriminate him-

self, he may do so and later be protected, but he may

not avoid the object of the compulsion by perjury and

he protected by the privilege (United States v. Knoz,

supra, at 82)—the judicial system cannot properly

operate if it countenances the breach of trust implicit

in that course. See United States v. Orta, supra, at

314-15.

But that principal is inapplicable to this matter.

We cannot ignore the fact that the procedure em-

ployed by the goverment was fraught with the danger,

if indeed not intended, of placing appellee in the posi-

tion of either perjuring or incriminating herself. We

agree with the Fifth Circuit that the government’s

use of such a procedure against a witness it knows to

be virtually in the position of a defendant is unfair,

unless accompanied by warnings which in fact apprise

the witness of the right to remain silent and which

thoroughly obviate the substantial danger created of

da

involuntary self-incrimination or perjury, and that

the induced perjured testimony must be suppressed.

United States v. Rangel, 496 F. 2d 1059 (5th Cir.

1974) ; United States v. Mandujano, 496 F. 2d 1050

(5th Cir. 1974). See United States v. Kreps, 349 F.

Supp. 1049 (W.D. Wise. 1972); United States v.

Fruchtman, 282 F. Supp. 534 (N.D. Ohio 1968);

United States v. Thayer, 214 F. Supp. 929 (D. Colo.

1963).

Unlike the situation with an ordinary witness,’ the

government knows in advance that when it subpoenas

someone in appellee’s position, a so-called ‘‘putative

defendant,’’ and asks directly incriminating questions,

it is thereby placing the witness in a dangerous

dilemma. The imposing ex parte nature of grand jury

inquisitions, coupled with the predictable ignorance of

many lay witnesses about the intricacies of the privi-

lege against self-incrimination, creates a foreseeable

probability that the witness will subject himself to

criminal liability. Subpoenaing and questioning a

witness under such circumstances is a form of govern-

mental compulsion seeking to incriminate a witness

out of his own mouth which threatens to circumvent

the independent prosecutorial model mandated by the

privilege. We cannot ignore the obvious fact that,

while a few witnesses placed in such a position might

honestly wish to confess, in the great majority of

cases asking incriminating questions of a putative

defendant, were the witness fully informed of his

rights, would be an idle task, as the witness would

‘While Lange! and Mandujano are the only precedents

directly in point, prior decisions refusing to suppress perjury

have intimated that the result reached would be different if the

questions had been asked of a putative defendant. See, e.g.,

Robinson, supra, at 250; Orta, supra, at 314; Parker, supra,

at 946-49.

5a

simply remain silent. The utility of the procedure to

the government, and its inherent unfairness and

danger, lies in the wholly predictable fact that the

witness will be ignorant of or not understand the right

to remain silent, and be compelled by answering to

subject himself to criminal liability. The government

should not engage in such a practice.

We do not hold that the government may not ques-

tion a putative defendant. Some witnesses may indeed

wish voluntarily to confess, and all may have non-

privileged information useful to the grand jury’s

task—witnesses have no privilege per se to refrain

from giving incriminatory information against others.

But before such information can be compelled, the

danger created by compelling answers to incrimina-

tory questions from a putative defendant must be

thoroughly obviated by an effective warning of the

right to remain silent. As the warning givon here was

not effective,‘ because not understood, the unfairness

of the procedure remained undissipated, and due

process requires the testimony be suppressed. t

The judgment is affirmed.

‘We do not intimate that the governmer.i acted in bad faith.

On the contrary, the government’s attorney carefully informed

appellee of her rights and believed she understood them. Never-

theless, the government having employed a procedure calculated

to exploit her lack of understanding, it runs the risk of a subse-

qu: 1t determination that its curative procedures were inadequate

anl the due process violation undissipated.

APPENDIX B

United States Court of Appeals for the Ninth Circuit

No. 74-1636—DC +73-0765

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

Rose WONG, DEFENDANT-APPELLEE

JUDGMENT

Appeal from the United States District Court for

the Northern District of California.

This cause came on to be heard on the Transcript

of the Record from the United States District Court

for the Northern District of California and was duly

submitted.

On Consideration Whereof, It is now here ordered

and adjudged by this Court that the judgment of the

said District Court in this Cause be, and hereby is

Affirmed.

Filed and entered September 23, 1974.

A True Copy Attest. November 7, 1974.

Emit E. MELFI, Jr.,

Clerk.

By M. Turley

Mary TURLEY,

Deputy.

(éa )

US GOVERNMENT PRINTING OFFICE 1974