Petitioners Brief — United States v. Wong

| Supreme Court, U. &

FILED

No. 74-635 AUG 13 1979

Iu the Supreme Court of the Buiter oats. =P CLR |

OCTOBER TERM, 1976

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROSE WONG

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney Genera’,

ANDREW L. FREY,

Deputy Solicitor General,

STEPHEN L. URBANCZYK,

Assistant to the Solicitor General,

MICHAEL E. MOORE,

Attorney,

Dexartment of Justice,

Washington, D.C. 20530.

ERO Bea OU et OS SEE

PIT css netcehincocinitndadneencieiindcidaimitmasieaaatiie

Question ESTER Per Ra ee EN

Statement

Summary « argument —

1

1

2

Constitutional provision and statute involved 2

*

9

Ee ae 11

A “putative defendant” calied as a grand

jury witness is not entitled to have her

grand jury testimony suppressed in a

perjury prosecution on the ground that

she did not understand the government’s

warning concerning her “right to remain

gE SE Re en ee 11

A. The privilege against compulsory

self-incrimination does not require

suppression of allegedly perjured

grand jury testimony _....___ 12

B. Prosecution for perjury under the

circumstances of this case does not

violate the Due Process Clause ____. 15

a 23

CITATIONS

Cases:

Beckwith v. United States, No. 74-1243,

decided April 21, 1976 _. 21

Brown v. United States, 245 F. 2d 549__ 20

Bryson v. United States, 396 U.S. 64 10, 13,

15,18

Cases—Continued Page si ieee | Page

Davis v. North Carolina, 384 U.S. 737.. 21 U caitiotia aren na 2d 204, me

Garner v. United States, No. 74-100, de- scenester -

cided March 23, 1976 13

Constitution and statutes:

Glickstein v. United States, 222 U.S. 139. 14, 15, '

18 United States Constitution, Fifth Amend-

Hampton v. United States, No. 74-5822, GNI ~<ctinsieennnnsisiertnipaceniasemnnpnicnnainmeieiisnanee 7, 14

decided April 27, 1976 22 Due Process Clause 2,8, 10, 11, 15-16,

Haynes v. Washington, 373 U.S. 503___. 21 17, 22

La Rocca v. United States, 337 F. 2d 39. =. 20 Self-Incrimination Clause 2, 10, 13, 14,

Lefkowitz v. Turley, 414 US. 70.02. = 18 | 15, 16, 17, 22

Masinia v. United States, 296 F. 2d 871. 20

Miranda v. Arizona, 384 U.S. 436 21, 22 oe ee 3

Schneckloth v. Bustamonte, 412 U.S. 218. 21 ae ae 2,6

Sherman v. United States, 356 U.S. 369. 22 a semeemeteretentie sae 3

Sorrells v. United States, 287 U.S. 435_. 22

Turner v. Pennsylvania, 338 U.S. 62... 21

United States v. Cross, 170 F. Supp. 303_ 20

United States v. Del Toro, 513 F. 2d 656,

certiorari denied, 423 U.S. 826... 18

United States v. Dowdy, 479 F. 2d 213,

certiorari denied, 414 U.S. 866 22

United States v. Icardi, 140 F. Supp.

REAR nre ion ence nie vee 20

United States v. Irali, 503 F. 2d 1295. 20

United States v. Knox, 396 U.S. 77. 10, 14,

15, 18

United States v. Lazaros, 480 F. 2d 174. 20, 22

United States v. Mandujano, 496 F. 2d

1050, reversed and remanded, No. 74-

154, May 19, 1976 _........._ passim

United States v. Orta, 253 F. 2d 312. 16

United States v. Rangel, 496 F. 2d 1059 8

United States v. Russell, 411 U.S. 423__ 22

United States v. Watson, 423 U.S. 411__ 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1976

No. 74-635

UNITED STATES OF AMERICA, PETITIONER

v.

ROSE WONG

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1la-

5a) is not yet reported. The order of the district

court (App. 15) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

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

23, 1974, Mr. Justice Douglas extended the time

(1)

2

within which to file a petition for a writ of certiorari

to and including November 22, 1974. The petition

was filed on November 22, 1974, and was granted on

June 1, 1976. The jurisdiction of this Court is in-

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

QUESTION PRESENTED

Whether a “putative defendant” called as a grand

jury witness is entitled to have her perjurious state-

ments suppressed on the ground that she did not un-

derstand the government’s warning concerning her

“right to remain silent.”

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

No person * * * shall be compelled in any

criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without

due process of law * * *.

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

(a) Whoever under oath in any proceeding

before or ancillary to any court or grand jury of

the United States knowingly makes any false

material declaration * * * shall be fined not more

than $10,000 or imprisoned not more than five

years, or both.

3

STATEMENT

On September 7, 1973, respondent Rose Wong tes-

tified before a grand jury in the Northern District of

California. Her testimony was elicited in connection

with a general investigation to discover violations of

18 U.S.C. 1955 (illegal gambling businesses) and 18

U.S.C. 1511 (obstruction of state and local enforce-

ment). At the time of respondent’s appearance before

the grand jury, the government had evidence that she

had paid bribes to certain local police officers, who had

turned the money over to the Federal Bureau of

Investigation. The government prosecutor sought her

testimony in order to learn the names of other officers

who might be receiving bribes, but who had not co-

operated with the government (Tr. 96-97).’

Prior to testifying and after the grand jury fore-

man had administered the oath (App. 2), respondent

was informed of the nature and purpose of the pro-

ceedings and was warned of her rights by the prose-

cutor (App. 2-4):

Q. Mrs. Wong, my name is Robert B. Ward

and this is Mr. Hinckeley. Both of us are attor-

neys for the Justice Department.

This Grand Jury is investigating certain al-

leged violations of Federal Law, including the

gambling laws, within the Chinatown area.

You have been subpoenaed to testify here be-

cause the Grand Jury feels that you have infor-

1“Tr.” refers to the transcript of the hearing in the district

court on respondent’s motion to dismiss the indictment.

4

mation which may be helpful in their investiga-

tion.

Prior to my asking certain questions, let me

advise you of certain rights [to] which you are

entitled as a witness here.

You, of course, need not answer any question

which you feel may tend to incriminate you.

A. Uh huh.

Q. The Fifth Amendment of the United States

Constitution gives you the right to refuse to

answer any question which you feel might in-

criminate you.

Do you understand that, mam [sic]?

A. Yes.

Q. Further, if 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.

Any statements you make here may be used

against you.

Do you understand that?

A. Yes.

Q. You also have the right to consult ‘ith an

attorney prior to answering any question here

today. Do you understand that?

A. Yes.

Q. Have you consulted with an attorney?

A. No.

Q. Please be advised that should the occasion

arise in which you do not want to proceed with-

out talking to an attorney, that you have the

right to notify us, and we will stop the proceed-

ing and you may consult with an attorney prior

to continuing with the questioning.

5.

Do you understand that, mam [sic]?

A. Yes.

Q. Further, if you cannot afford an attorney,

that we would see that an attorney is afforded

to represent you.

Do you understand that?

A. Yes.

In addition, the prosecutor carefully explained to

respondent the meaning of perjury and «he penalties

to which she might be subjected if she perjured her-

self (App. 4):

Q. Having sworn to tell the truth, Mrs.

Wong, it is incumbent upon you to tell the truth,

if 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.

Do you understand that?

A. Yes.

Q. Do you know what perjury is?

A. Not very well.

Q. Well, in essence perjury means telling a

lie under oath.

Do you understand what that is?

A. Yes.

Q. Do you know the difference between lieing

[sic] and telling the truth?

A. Yes.

Q. Under oath?

A. Uh huh.

THE FOREMAN: Mr. Ward, you might ad-

vise Mrs. Wong that the stenographer needs her

answers.

6

MR. WARD: Q. Mrs. Wong, the Foreman

points out that you must answer each question.

You can’t nod your head or mumble. She has to

take down an answer.

Do you understand that?

A. Oh, I see that.

Q. She is writing down all the questions and

answers.

A. Isee.

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.

Following these warnings, the prosecutor ques-

tioned respondent regarding her knowledge of gam-

bling activities at specific locations in Chinatown and

of the identities of local police officers who frequented

those locations (R. 49-69).* During the course of the

examination, respondent was asked if she had given

money or gifts to any police officers and if she had

ever met with any police officers to discuss gambling

activities. She denied that she had engaged in any

such activities (App. 4-5).

On November 29, 1973, respondent was indicted in

the United States District Court for the Northern

District of California for perjury, in violation of 18

U.S.C. 1623, on the basis of those denials before the

grand jury (App. 5-6). On January 22, 1974, re-

spondent filed a motion to dismiss the indictment on

2“R.” refers to the record on appeal in the Ninth Circuit.

T

the ground, inter alia, that the testimony on which

the indictment was based had been obtained without

effective prior warnings of her Fifth Amendment

rights (App. 7-8). At an evidentiary hearing on the

motion to dismiss, held on January 29, 1974, and

February 8, 1974, respondent sought to show that she

was only minimally competent in the use of the Eng-

lish language and that she had not understood the

warnings administered by the prosecutor in the grand

jury room (Tr. 73-87; R. 29-32). In response, the

government offered affidavits from the grand jury

foreman and from the stenographer who had recorded

respondent’s grand jury testimony, both of which

stated that “[respondert] had no difficulty whatso-

ever in understanding the questions asked of her”

(R. 71) and that “[s]he answered the questions

clearly and without undue hesitation, speaking in the

English language” (R. 72). In addition, the govern-

ment attorney who had managed the grand jury in-

vestigation stated in his own affidavit that with other

witnesses called to testify during the investigation

he had used an interpreter and that he would simi-

larly have used an interpreter with respondent “had

[there] been even the slightest indication of a lan-

guage problem” (R. 73).

At the conclusion of the hearing the district court

orally ruled that respondent’s grand jury testimony

should be suppressed.* The court found that although

* Although respondent’s motion initially was for dismissal

of the indictment, it was subsequently treated by the court, at

respondent’s request, as a motion to suppress her grand jury

testimony (App. 11).

8

respondent had been given “a full, complete and ade-

quate warning” of her privilege against self-incrim-

ination prior to testifying, her lack of proficiency in

the English language prevented her from understand-

ing the warning (App. 14). Although the district

court issued no written findings of fact, it stated

during the course of the hearing that respondent had

fully comprehended both the prosecutor’s explanation

of the concept of perjury and her obligation to testify

truthfully (App. 13, 14-15). The court said respond-

ent also had understood the substantive questions

asked of her and “[had given] the answers she wanted

to give” (App. 12). In addition, the court noted that

the prosecutor had done “just about everything * * *

[he] could reasonably be expected to do” to inform

respondent of her rights before the grand jury (App.

10; see also App. 14).

On the government’s appeal, the court of appeals

affirmed. Relying in large part upon the opinions of

the Court of Appeals for the Fifth Circuit in United

States v. Mandujano, 496 F. 2d 1050, reversed and

remanded, No. 74-754, May 19, 1976, and United

States v. Rangel, 496 F. 2d 1059, which it termed

“the only precedents directly in point” (Pet. App. 4a,

n. 3), the court of appeals reasoned that “[t]he per-

juricus answers were induced by an unfair procedure

violative of the [Due Process Clause of the Fifth

Amendment]” (Pet. App. 2a). The procedure the

court found unfair was the practice of issuing grand

jury subpoenas to individuals known by the govern-

ment to be involved in the matter under investigation

9

and questioning those individuals concerning that

involvement. The unfairness stemmed, according to

the court “from the threat * * * pose[d] [by this

practice] to the values protected by the privilege

{against self-incrimination]” (Pet. App. 2a). To

remedy the perceived unfairness, the court held that

questioning of grand jury witnesses known by the

government “to be virtually in the position of a de-

fendant” must be “accompanied by warnings which

in fact apprise the witness of the right to remain

silent * * *” (Pet. App. 3a).

The court acknowledged that respondent in this

case had received all the warnings to which she was

entitled under the court’s holding and stressed that it

found no “bad faith” on the part of the government

(Pet. App. 5a, n. 4). Indeed, the court found that “the

government’s attorney carefully informed appellee of

her rights and believed she understood them” (ibid.).

The court nevertheless held that the “unfairness” had

not been remedied by the prosecutor’s efforts, since

respondent in fact had not understood the explanation

of her rigiits (Pet. App. 5a).

SUMMARY OF ARGUMENT

1. All three opinions in United States v. Mandu-

jano, No. 74-754, decided May 19, 1976, concur un-

reservedly in the proposition that, whether or not the

prosecutor is obliged by the privilege against com-

pelled self-incrimination to give some form of warn-

ings to grand jury witnesses who are “putative” or

“potential” defendants, such a witness may not com-

10

mit perjury and thereafter claim that the Constitu-

tion affords protection from prosecution for that

crime. That conclusion was the outgrowth of a con-

sistent line of decisions of this Court stretching back

over 50 years.

There is no basis for reaching a different result in

this case. The only arguable distinction in the facts

of the two cases arises from the finding in this case

that the respondent did not understand the advice

of rights that she received prior to testifying before

the grand jury. At most, however, that places her in

the position of one who has received no warnings at

all. But even if, arguendo, such a witness might be

said to have been “compelled” to give testimony, the

absence of warnings in no way compels the witness to

answer falsely. Cases such as Bryson v. United States,

396 U.S. 64, and United States v. Knox, 396 U.S. 77,

in which the defendants’ false statements were the

product of much more direct and palpable coercion,

dispose of any argument that the Self-Incrimination

Clause supports a differeat result in this case from

that reached in Mandujano.

2. Nor is the result different when the case is

analyzed in terms of the Due Process Clause. The

practice of calling “potential defendants” before the

grand jury ordinarily implicates only those interests

with which the Self-Incrimination Clause is con-

cerned; absent some extraordinary circumstance not

here present, the Due Process Clause brings no sig-

nificant additional constitutional policies to bear upon

the question whether a “potential defendant” may

11

testify falsely without fear of subsequent prosecution.

Thus, if the testimonial privilege is not violated by

what happened in this case, talismanic invocation of

the Due Process Clause does not justify affording a

defendant relief. Indeed, all opinions in Mandujano

were in agreement that the facts of thet case pre-

sented no due process problem; the facts of the instant

case are identical in all material respects. As indi-

cated, the only difference in the two cases concerns

the defendants’ subjective understanding of the ad-

vice of rights given prior to questioning; whatever

arguable relevance such a distinction may have to

the self-incrimination analysis, it is wholly unrelated

to the fairness of the governmental conduct involved,

which is the touchstone of due process analysis.

ARGUMENT

A “Putative Defendant” Called As A Grand Jury Wit-

ness Is Not Entitled To Have Her Grand Jury Testimony

Suppressed In A Perjury Prosecution On The Ground

That She Did Not Understand The Government’s Warn-

ing Concerning Her “Right To Remain Silent”

In our brief in United States v. Mandujano, No.

74-754, October Term, 1974, decided May 19, 1976,

and in our brief this Term in United States v.

Washington, No. 74-1106, we have discussed at

some length the propriety of calling “potential de-

fendants” before grand juries and the nature of the

obligation, if any, to provide warnings to such in-

dividuals prior to questioning them before the grand

jury.‘ These issues have been examined in light of

*Copies of the government’s briefs in Mandujano and

Washington are being furnished to respondent’s counsel.-

12

both the privilege against compelled self-incrimina-

tion and the government’s obligation to afford due

process of law, and we have argued on the basis of

that examination that there is no valid constitutional

objection to calling “potential defendants” before the

grand jury and no constitutional duty on the prosecu-

tor to warn such witnesses of their rights. Because

Mandujano produced no opinion for a majority of the

Court, those questions remain unsettled in non-

perjury cases; it may be anticipated that they will, to

some extent at least, be resolved in Washington.

We do not here reiterate our general arguments. To

the extent the Court may find it necessary to consider

these issues, we rely on the arguments being made

contemporaneously in Washington. In our view, the

broad issues of governmental responsibilities toward

grand jury witnesses need not be reached in the in-

stant case, because this case turns, as did Mandujano,

on the fact that this is a perjury prosecution. Ac-

cordingly, we address here the question whether there

is any reason, in light of either self-incrimination or

due process considerations, why this Court should

depart in this case from its unanimous holding in

Mandujano.

A. The privilege against compulsory self-incrimination

does not require suppression of allegedly perjured

grand jury testimony

While no opinion in United States v. Mandujano,

No. 74-754, decided May 19, 1976, commanded a ma-

jority of this Court, all three opinions agreed that

“(t]he Fifth Amendment privilege against compul-

sory self-incrimination provides no protection for the

13

commission of perjury” (Stewart, J., concurring; see

plurality op. 11-13; Brennan, J., concurring op. 1).

The Court recognized that “[p]erjured testimony s

an obvious and flagrant affront to the basic concepts

of judicial proceedings,” which “simply has no place

whatever” “Ji]n th[e] constitutional process of secur-

ing a witness’ testimony * * *” (plurality op. 11).

Effective restraints against the commission of per-

jury were seen as particularly necessary in the con-

text of the grand jury, whose historic office has in-

cluded the conduct of thoroughgoing investigations to

ascertain whether crime has been committed (and by

whom) and the provision of “a shield against arbi-

trary or oppressive action” by government prosecutors

(plurality op. 6; see also id. at 6-13).

Mandujano is dispositive of any claim by respond-

ent that her indictment for perjury is barred by the

Fifth Amendment privilege against compulsory self-

incrimination. The privilege entitles a witness to re-

sist efforts to compel potentially incriminatory state-

ments, and, if the witness’s resistance is overcome,

the compelled self-incriminating statements wil! be

excluded from future substantive use by the prcse-

cution. See Garner v. United States, No. 74-100, de-

cided March 23, 1976, slip op. 5-6; Lefkowitz v.

Turley, 414 U.S. 70, 78. But the witness may not

avoid compulsion by committing perjury. See Bryson

v. United States, 396 U.S. 64, 72. Indeed, in making

the statements that are the subject of the indictment

in this case, respondent has not been compelled to

incriminate herself regarding a past crime; she has,

14

instead, committed a new crime for which the Fifth

Amendment privilege affords no protection. See

United States v. Knox, 396 U.S. 77, 82. “{T]he im-

munity afforded by the constitutional guarantee

[against compulsory self-incrimination] relates to the

past and does not endow the person who testifies with

a license to commit perjury.” Glickstein v. United

States, 222 U.S. 139, 142.

This much is common ground for all the Justices

who participated in Mandujano, and, » © submit, it

applies four-square to the facts of this cuse, which

are virtually identical in all material respects. The

only arguable distinction between the cases is that in

Mandujano there was no finding that the defendant

had not understood the advice of rights that he re-

ceived. Here, respondent received the same advice of

rights (indeed, a slightly broader one, since she was

explicitly offered appointed counsel), but the court

found that she had not understood it. This is a dis-

tinction without a difference for purposes of the self-

incrimination analysis. At most, the district court’s

finding here would justify treating respondent’s case

as one in which no warnings at all had been admin-

istered, in contrast to Mandujano’s case in which the

court of appeals found that the warnings given had

been insufficient. But it is plain, under the Self-

Incrimination Clause, that a failure to warn would

no more excuse perjury than administration of an

insufficient warning.

Accepting for purposes of this analysis the view

expressed in Mr. Justice Brennan’s concurring opinion

15

in Mandujano that questioning of a “putative” de-

fendant may be considered coercive in the absence of

a knowing and intelligent waiver of the testimonial

privilege, and that such a waiver depends upon an

effective advice of rights, that view simply puts re-

spondent in the position of one who has (in this some-

what special sense) been “forced” to testify. But re-

spondent was not in any meaningful sense forced to

testify falsely. In Bryson, the defendant was obli-

gated to file a “non-Communist” affidavit with the

National Labor Relations Board if he wished to re-

tain his union office (see 396 U.S. at 67), and in

Knox, the defendant faced criminal penalties unless

he filed the wagering tax return in which he allegedly

made false statements (id. at 81). The defendants in

both cases surely were confronted with greater coer-

cion than was respondent in the instant case, yet both

were held accountable for the falsity of their state-

ments. As Mr. Justice Harlan stated in Know (396

U.S. at 82): “[W]hen Knox responded to the pres-

sure under which he found himself by communicating

false information, this was simply not testimonial

compulsion.”

B. Prosecution for perjury under the circumstances of

this case does not violate the Due Process Clause.

Recognizing that, under the Knox-Bryson-Glickstein

line of authority, suppression of false testimony can-

not be justified by reference to the self-incrimination

provision of the Fifth Amendment (Pet. App. 2a-3a),

the court of appesis here, like the court of appeals in

Mandujano, explicitly rested its holding on the Due

16

Process Clause (id. at 2a). And in Mandujano, Mr.

Justice Brennan suggested that the only relevant in-

quiry in considering whether a “putative defendant”

who commits perjury before a grand jury may be

prosecuted is whether the “false answers were * * *

induced by governmental tactics or procedures so in-

herently unfair under all the circumstances as to

constitute * * * a violation of the Due Process Clause

of the Fifth Amendment” (concurring op. 1; see also

plurality op. 5 (quoting from United States v. Orta,

253 F. 2d 312, 314 (C.A. 5)); Stewart, J., concur-

ring).

Barring the presence of truly extraordinary facts,

however, we have difficulty understanding how the

due process inquiry can aid the analysis. The in-

terests implicated by grand jury questioning of po-

tential defendants, to the extent they reflect any con-

stitutional values, appear to us to involve almost

exclusively the policies of the Fifth Amendment’s

protection against compelled self-incrimination. When

those policies are not offended, as they plainly are

not here (see pp. 12-15, supra), there can ordinarily

be no basis for relief on due process grounds.’ Surely

°>The court of appeals justified its reliance on the Due

Process Clause in part as a means of further insulating the

values protected by the privilege against self-incrimination

(Pet. App. 2a, 3a-4a). But as we have explained (pp. 12-15,

supra), and as this Court held in Mandujano, the testimonial

privilege is not implicated when a witness is prosecuted for

perjury. Indeed, the court of appeals in this case acknowledged

that this was the case (Pet. App. 3a). The court of appeals’

due process rationale thus must rest on some other consti-

tutional value.

17

the vague and seemingly talismanic invocation of

due process by the court of appeals here does not

suffice to explain how the Due Process Clause could

justify the result reached by the court when the Self-

Incrimination Clause concededly does not. In any

event, whatever the general validity of an independ-

ent due process analysis in cases such as this, what

transpired here involved no improper government

conduct, and certainly no misconduct so fundamen-

tally unfair that respondent can properly be said to

have been denied due process of law.

1. The court of appeals was critical of the gov-

ernment’s practice of calling as grand jury witnesses

individuals known or suspected by the government

to have some involvement in the kind of criminal

activity under investigation (see Pet. App. 4a-5a).

But this practice is vitally important to the grand

jury process. Such individuals are appropriate and

often necessary sources of information. United

States v. Mandujano, supra, plurality op. 8-9, 19, ni.

9. In the instant case, for example, respondent’s

testimony could have been critically important to

the grand jury in determining who, if anyone, was

involved in illegal gambling and police bribery. More-

over, a witness who is a “potential defendant” may

wish to confess his or her part in the offense (the

Constitution reflects no policy against voluntary con-

fessions), or may be able to exculpate himself or

herself to the satisfaction-of the grand jury. See

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

18

certiorari denied, 382 U.S. 955; Mandujano, supra,

plurality op. 19, n. 9.

Thus, contrary to the court of appeals, we submit

that there is nothing inherently unfair about normal

grand jury questioning of individuals whom the

grand jury or the prosecutor suspects of being in-

volved in the criminal matter under investigation. As

the court said in United States v. Del Toro, 513 F.

2d 656, 664 (C.A. 2), certiorari denied, 423 U.S.

826: “It is not an unfair dilemma to put upon a

prospective defendant to require him to claim privi-

lege or to tell the truth.” So long as the witness’s

will has not been overcome by threats, trickery or

force, the questioning of a “putative defendant,” even

without the giving of warnings, accords with due

process, and the witness’s choice to commit perjury

should not be attributed, in the due process inquiry,

to any action the government took or failed to take.

The government’s conduct in this case was mate-

rially the same as that which the Court in Mandu-

jano found not to violate applicable due process

standards.* In both cases, the witness was called to

‘Thus, Mr. Justice Brennan observed in his concurring

opinion that he was satisfied (on a record essentially the same

as that in the instant case) that there were no “governmental

tactics or procedures so inherently unfair under all the cir-

cumstances as to constitute a prosecution for perjury a viola-

tion of the Due Process Clause of the Fifth Amendment”

(slip op. 1). And Mr. Justice Stewart, also relying on the

Bryson-Knoz-Glickstein line of cases for the proposition that

the impropriety of questioning is ordinarily no defense to a

perjury charge, stated, in words fully applicable to this case,

19

testify before a grand jury investigating criminal

activity of a kind with which he or she was known

to have some involvement. Mandujano was sub-

poenaed to testify before the grand jury because of

his known connection with heroin distribution activi-

ties (plurality op. 19); respondent was called be-

cause of her known attempts at bribery of police

officers and the belief that she would possess infor-

mation about police corruption in Chinatown (Tr.

97). In both cases, the questions to which allegedly

perjurious answers were given focused upon the wit-

nesses’ participation in unlawful activities about

which the prosecutor already possessed specific in-

formation. Moreover, before questioning the witness ,

in each case, the prosecutor issued detailed warnings

of the right not to answer incriminating questions

and the right to consult with counsel before answer-

ing any question. He also explained the concept of

perjury and the significance of the oath to testify

truthfully. Finally, as in Mandujano, none of the

substantive questions asked of respondent concerned

that he joined in reversal because “this is not a case where

it could plausibly be argued that the perjury prosecution must

be barred because of prosecutorial conduct amounting to a

denial of due process” (concurring op.).

If anything, the government’s position is somewhat stronger

in the instant case because of the court of appeals’ explicit

recognition that there was no actual bad faith on the part of

the government in its conduct of the grand jury proceedings

(Pet. App. 5a, n. 4). The court of appeals in fact found that

the government believed respondent understood her rights

(ibid.).

20

matters outside the scope of the grand jury’s legiti-

mate investigative purposes. Compare Brown v.

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

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

States v. Icardi, 140 F. Supp. 383 (D. D.C.); La

Rocca v. United States, 337 F. 2d 39, 43 (C.A. 8);

Masinia v. United States, 296 F. 2d 871, 877 (C.A.

8). See United States v. Irali, 503 F. 2d 1295, 1301-

1302 (C.A. 7); United States v. Lazaros, 480 F. 2d

174, 176-178 (C.A. 6).

2. The court of appeals, however, thought it nec-

essary to suppress respondent’s testimony, not be-

cause of any prosecutorial misconduct, but because

the district court had found that, unbeknownst to

the government, respondent’s lack of proficiency in

the English language prevented her from fully un-

derstanding the prosecutor’s explanation of her

rights. As we have argued above (pp. 12-15, supra),

although this finding is the only arguably relevant

factual distinction we can perceive between this case

and Mandujano, this difference does not support a

different result on a self-incrimination analysis. Since

the difference is unrelated to the conduct of the gov-

ernment, but depends solely upon subjective factors

peculiar to the witness, it follows a fortiori that it

cannot justify a different result from Mandujano on

due process grounds.

At bottom, the court of appeals’ decision probably

rests upon the assumption that respondent’s inability

to understand the prosecutor’s warnings left her con-

21

fronted by an unfair “dilemma” between lying and

incriminating herself (Pet. App. 3a). But in deter-

mining that this was an “unfairness” violative of

due process rights, the court of appeals entirely over-

looked the long line of decisions of this Court prior

to Miranda evaluating the voluntariness and admis-

sibility of statements obtained by interrogation of

persons suspected of criminal offenses. See, ¢.g.,

Haynes v. Washington, 373 U.S. 503; Davis v. North

Carolina, 384 U.S. 737; Turner v. Pennsylvania, 338

U.S. 62. See also the government’s brief in Mandu-

jano, pp. 51-52. As the Court explained in Schnec-

kloth v. Bustamonte, 412 U.S. 218, 226-227, in none

of these cases

did the court rule that the Due Process Clause

required the prosecution to prove as part of its

initial burden that the defendant knew he had a

right to refuse to answer the questions that were

put. While the state of the accused’s mind, and

the failure of the police to advise the accused of

his rights, were certainly factors to be evaluated

* * * they were not in and of themselves deter-

minative.

See also Beckwith v. United States, No. 74-1243, de-

cided April 21, 1976;* United States v. Watson, 423

U.S. 411, 424-425.

™In Beckwith, the Court refused to suppress statements

made under non-compulsive circumstances, despite the fact

that the person being interrogated was a “potential defend-

ant” who was not fully warned of his rights. As Beckwith

makes plain, the requirements of a knowing waiver imposed

Here, where respondent resolved her “dilemma” by

lying to the grand jury, the Due Process Clause sim-

ilarly does not require suppression of her testimony

(which amounts to immunization from prosecution)

solely on the ground she may not have known of her

right to remain silent.* As we explained in our brief

in Mandujano (pp. 16-19, 26-27, 35-36), suppression

of perjurious testimony on the ground the govern-

ment did not adequately inform a “putative defend-

ant” witness of his or her rights would gain little

or no protection for constitutional values, at the ex-

pense of possibly great impairment of the grand jury

system. Respondent here knew the meaning and con-

by the Court in Miranda v. Arizona, 384 U.S. 436, in the

context of custodial interrogation, has no place in the non-

custodial situation.

* Nor can the court’s result be justified on an entrapment

rationale, for a “putative defendant” who lies to a grand

jury rather than incriminate himself cannot be considered

to be “entrapped” into committing perjury, as the concept

of entrapment has been articulated by this Court, even if his

false testimony is not the product of a knowing and intelligent

waiver of the Fifth Amendment testimonial privilege. See

United States v. Lazaros, supra, 480 F.2d at 178-179; United

States v. Dowdy, 479 F.2d 218, 230 (C.A. 4), certiorari denied,

414 U.S. 866. The government does not implant the de-

sign to commit perjury in the mind of such a witness. See

United States v. Russell, 411 U.S. 428, 486; Hampton v.

United States, No. 74-5822, decided April 27, 1976. Nor does

the government thwart whatever predisposition the witness

may have to tell the truth. See Sorrells v. United States, 287

U.S. 485; Sherman v. United States, 356 U.S. 369. As the

plurality said in Mandujano (slip op. 19) with respect to

similar facts, “nothing remotely akin to ‘entrapment’ * * * is

suggested by what occurred here.”

sequences of her having taken the oath. She was con-

stitutionally entitled to no more.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

RoBert H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

ANDREW L,. FREY,

Deputy Solicitor General.

STEPHEN L. URBANCZYK,

Assistant to the Solicitor General.

MICHAEL E. MOORE,

Attorney.

AucustT 1976.

D 6. &. soveenwent reimrime orrics; 1976 217828 «6292