# Petitioners Brief — United States v. Wong > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2130%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1977 - **Citation:** 431 U.S. 174 ## Text | 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 ~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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2130%3A5. Public record. Not legal advice.