Petition — United States v. Estelle Jacobs, AKA "Mrs. Kramer"

woe 5-1883

Iu the Supreme Court of the Uuited States

OCTOBER TERM, 1975

JUN 28 i816

UNITED STATES OF AMERICA, PETITIONER

Vv.

ESTELLE JACOBS, A/K/A “MRS. KRAMER”

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

WILLIAM F. SHEEHAN, III,

Assistant to the Solicitor General,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

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I hide iin ictiabatdlia ie lied ii 1

A A ER 2

Statement 2

Reasons for granting the writ 7

Conclusion ______ seniiihiaiateliehieiteataimiaads " 17

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NATED > Siidisciicnstbinieisiestanictatic ace ttiaclacladitadadeiaa 10a

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CITATIONS

Cases:

Bryson v. United States, 396 U.S. 64. 15-16

Funk v. United States, 290 U.S. 371__ 8

Gordon v. United States, 344 U.S. 414. 8

Hampton v. United States, No. 74-5822,

decided April 27, 1976 _.._.......__..____. 14

Massiah v. United States, 377 U.S. 201_-. 10

McNabb v. United States, 318 U.S. 332... 8

Oyler v. Boles, 368 U.S. 448

Palermo v. United States, 360 U.S. 343. 8

Sullivan v. United States, 348 U.S. 170_ 13

United States v. Cox, 342 F.2d 167, cer-

tiorari denied sub nom. Cox v. Hau-

§ Bk ea 12

United States v. Crook, 502 F.2d 1378,

certiorari denied, 419 U.S. 1123 _.__ 10

United States v. Heffner, 420 F.2d 809__ 13

Cases—Continued Page

United States v. Leahey, 434 F.2d 7 13

United States v. Leonard, 524 F.2d 1076. 13

United States v. Mandujano, 496 F.2d

1050, reversed, No. 74-754, May 19,

SUITED assciadicladinnaiensinilemisheoisihanatiahaianilial 5, 8, 14-15, 16

United States v. Nixon, 418 U.S. 683___ 12

United States v. Russell, 411 U.S. 423__ 14

United States v. Sourapas, 515 F.2d 295. 13

United States v. Washington, 328 A.2d

98, certiorari granted, No. 74-1106,

June 1, 1976 __.__ a SF

United States v. Wright, 489 F.2d 1181. 8

Washington v. United States, 401 F.2d

RRA eT a 12

Constitution and statutes:

United States Constitution:

Art. IT, See. 3 __ 12

Fourth Amendment _..-._— 14

Fifth Amendment ~~... 4,6, 15

Federal Rules of Evidence, Pub. L. 93-

BN Se CS SI oscticisiecenscitansincenninndoen )

BD I iin eeaeenemnminninel 9,10, 11

8 ne oe 4

= I a eominion 11

I sceeesuul 9,10

18 U.S.C. 3501(e) 9

I a elles ve)

EEE 6

Miscellaneous: Page

American Bar Association’s Code of Pro-

fessional Responsibility (Final Draft,

NaS aE 4, EE ae 10-11

H.R. Rep. No. 93-650, 93d Cong., 1st

tai 9

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

ESTELLE JACOBS, A/K/A “Mrs. KRAMER”

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND 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 Second Circuit in this case.

OPINIONS BELOW

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

pp. la-9a) is reported at 531 F.2d 87. The opinion

of the district court (App. D, infra, pp. 14a-21a)

is not reported.

JURISDICTION

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

infra, pp. 10a-lla) was entered on February 24,

(1)

2

1976. A petition for rehearing with a suggestion for

rehearing en banc was denied on April 29, 1976

(App. C, infra, pp. 12a-13a). On May 24, 1976, Mr.

Justice Marshall extended the time for filing a peti-

tion for a writ of certiorari to and including June

28, 1976. The jurisdiction of this Court is invoked

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

QUESTION PRESENTED

Whether a court of appeals possesses and should

exercise supervisory powers to suppress a defendant’s

allegedly perjurious grand jury testimony on the

ground that the prosecutor neglected to follow the

usual practice of other federal prosecutors in the

circuit of warning grand jury witnesses against

whom the government has incriminating evidence

that they are “putative defendants.” ;

STATEMENT

Respondent made dunning telephone calls as an

employee of a debt collection agency. In the course

of attempting to locate the whereabouts of a delin-

quent gambling debtor she made numerous calls to

various members of his family.’ Without her knowl-

edge the debtor’s brother tape-recorded a call during

1 See page D-27 of the Appendix to the government’s brief

in the court of appeals. Appendices D and E of that document

consist of the Grand Jury Minutes of respondent’s testimony.

Further reference to that testimony will be designated “Grand

Jury Minutes —.” We are lodging a copy of the Appendix

with the Clerk of this Court.

3

which she allegedly threatened the debtor with physi-

cal harm if he did not pay up (App. A, infra, p. 3a).

Some four months later, agents of the Federal Bu-

reau of Investigation, after giving respondent full

Miranda warnings and observing her sign a waiver

of rights form, questioned her about the call. They

did not tell her that it had been recorded, and she

denied making any threats (App. A, infra, p. 3a).

Subsequently the government subpoenaed respond-

ent to appear before a grand jury sitting in the East-

ern District of New York and there questioned her

about her employer’s business in general and the role

she played in it. Again she was not told about the

recording (App. A, infra, pp. 3a-4a). She denied

unequivocally having made certain statements that

were read to her by the government attorney from

a transcript of the recorded conversation,’ and the

* Respondent often identified herself over the telephone as

“Mrs. Kramer” (Grand Jury Minutes D-2). The pertinent

testimony was as follows (id. at D-39 to D-41):

Q I’m going to read some direct quotes to you, Mrs.

Jacobs, and I want to know whether or not you said

them?

“MRS. KRAMER: Well, you know what’s going

to happen to him one of these days.

BILL: Well, he’s going to die [“he” refers to

the debtor, who by then was known to be suffering

from leukemia] and now that’s besides the point.

MRS. KRAMER: Sooner than he expects.

BILL: No, I don’t.

MRS. KRAMER: Sooner than he expects. May-

be it’s going to be painful to be honest with you.”

4

grand jury indicted her for perjury * (App. A, infra,

p. 4a).

Prior to her grand jury testimony the government

had advised respondent of her Fifth Amendment

A I never said that.

Q Are you absolutely positive that you never said

that?

A Absolutely positive.

Q Now, you’re under oath—

A I never said that.

Q You never said to anyone these words, “Maybe

it’s going to be painful, to be honest with you.”

A_ I never said it. I know I’m under oath.

Q Now, did you know the statute of perjury?

A Yes. I never said that.

Q We'll continue.

“BILL: Well, you know it’s got nothing to do

with me.

MRS. KRAMER: I mean it’s really a shame,

but he’s gonna get his pretty soon, just a matter of

hours to be honest with you and as I told you, I’m

being honest with you. We didn’t like going to the

mother, but we will.

BILL: Well, you know.”

Q (continuing) Do you recognize those words?

A Not exactly.

Q You had some sort of conversation?

A By the way of saying I wish you could contact

your brother.

Q Did you say, “What he’s going to get his pretty

soon”?

A _ I did not.

Q You absolutely deny that statement?

A Yes. I deny it.

* Respondent was also indicted for transmitting in inter-

state commerce a threat to injure, in violation of 18 U.S.C.

875(c). That count is not involved here.

5

privilege against self-incrimination and told her that

she had a right to have a lawyer outside the grand

jury room and to consult with him at any time

(Grand Jury Minutes D-3 to D-4; App. D, infra,

pp. 15a-17a, n. 2). She had not been given the full

litany of Miranda warnings to which individuals

facing custodial interrogation are entitled,‘ nor had

she been told that she was a “putative defendant.”

She had been advised, however, that perjury was a

serious offense (ibid.), and before testifying she had

sworn that her testimony would be truthful (Grand

Jury Minutes D-2).

Before trial, respondent moved to suppress her

grand jury testimony on the ground that the gov-

ernment’s warnings to her had been inadequate. The

district court granted the motion, relying on United

States v. Mandujano, 496 F.2d 1050 (C.A. 5), re-

versed, No. 74-754, May 19, 1976, and United States

v. Washington, 328 A.2d 98 (D.C. C.A.), certiorari

granted, No. 74-1106, June 1, 1976. The court ruled

that the government’s questioning of respondent,

without first giving her full Miranda warnings and

advising her that she was a “putative defendant,”

*The government had not told respondent either that she

had a right to remain silent before the grand jury or that

counsel would be provided for her if she were unable to bear

the expense herself. Respondent was unrepresented at the

time of her testimony; she stated that she was not in need

of counsel (Grand Jury Minutes D-4; App.. D, infra, pp. 15a-

17a, n. 2), and she was advised that she could stop the grand

jury proceedings to consult with counsel whenever she wanted

(ibid.).

6

was “‘so offensive to the common and fundamental

ideas of fairness as to amount to a denial of due

process’” (App. D, infra, p. 20a). Without her

testimony the government was unable to prosecute

the perjury charge, and the district court accordingly

dismissed it (id. at 20a-21a).

The court of appeals affirmed, although for differ-

ent reasons. It expressly declined to reach the Fifth

Amendment self-incrimination and due process issues

that had been argued both in the district court and

on appeal (App. A, infra, pp. 8a-9a), and ruled in-

stead, “solely under [its] supervisory power” (id. at

9a), that suppression was necessary because of the

lack of “uniformity in criminal procedure within the

circuit” (ibid.) that had been created by the govern-

ment’s failure to apprise respondent that she was a

“putative defendant.”

Upon learning that the government attorney who

had questioned respondent before the grand jury—a

“Strike Force” attorney "—had not told her that she

was a “target” of the investigation, the court had

directed the clerk of the court to poll the six United

States Attorneys in the Second Circuit to learn their

practice in this regard. Each replied that they cus-

tomarily warn grand jury witnesses who are “puta-

tive defendants” of their status. This survey indi-

cated to the court that respondent would have been

warned that she was a “putative defendant” if she

5 As the court of appeals explained (App. A, infra, pp. 3a-

4a, n. 2), Strike Force attorneys operate under a commission

from the Attorney General issued pursuant to 28 U.S.C.

515(a).

7

had been subpoenaed by the United States Attorney,

yet “the Strike Force operating in the same district

failed to give her such warning” (App. A, infra, pp.

7a-8a). The lack of uniformity was, in court’s view,

intolerable. It said (id. 8a-9a):

In this posture ot conflicting conceptions of

prosecutorial fairness in the same district, we

need not consider whether there is a constitu-

tional due process claim as the court below held.

Uniform justice is not achieved in the face of

such disparity which, if not in actual violation

of the Constitution, is, at least, outside the

penumbra of fair play. * * *

In the interest of uniformity in criminal pro-

cedure within the circuit, which is a fundamental

of the administration of criminal justice, we

affirm the dismissal of [the perjury count] pur-

suant to our supervisory function.

REASONS FOR GRANTING THE WRIT

This case presents important questions concerning

the nature and scope of the federal courts’ super-

visory function. In our view the court of appeals in

this case has exercised powers that Congress in effect

has declared it does not possess. In so doing it has

rendered a decision that produces a result forbidden

by Congress and that conflicts with the decision of

another court of appeals.

Even absent controlling legislation, however, the

court’s exercise of its supervisory powers would have

been error, since the prosecutorial uniformity that

the court found lacking is not mandated by the Con-

8

stitution or by statute and did not violate any of

respondent’s rights. Moreover, in requiring the sup-

pression of allegedly perjurious testimony the deci-

sion below conflicts with the spirit if not the letter

of United States v. Mandujano, No. 74-754, decided

May 19, 1976.

1. The action of the court of appeals in the in-

stant case violates a fundamental tenet delimiting

the reach of the courts’ supervisory power—that the

power of the judiciary to formulate and apply rules

of evidence is subordinate to the paramount author-

ity of Congress, subject to constitutional limitations,

to declare what practices and procedures will govern

in the federal court system. E.g., Gordon v. United

States, 344 U.S. 414, 418; Funk v. United States,

290 U.S. 371, 382, 383. The principle was stated

expressly in Palermo v. United States, 360 U.S. 343,

353, n. 11: “The power of this Court to prescribe

rules of procedure and evidence for the federal courts

exists only in the absence of a relevant Act of Con-

gress.” See also McNabb v. United States, 318 U.S.

332, 341, n. 6; United States v. Wright, 489 F.2d

1181, 1190-1191 (C.A.D.C.).

At least two Acts of Congress stand in the way

of the court of appeals’ exercise of its supervisory

power * to suppress respondent’s testimony in this

case:

‘The supervisory powers possessed by the lower federal

courts can surely be no broader than the rulemaking authority

of this Court, and no less subject to congressional limitation.

9

a. Section 3501(a) of Title 18 provides that in

any criminal prosecution a confession, which is de-

fined to include “any self-incriminating statement”

(Section 3501(e)), “shall be admissible in evidence

if it is voluntarily given” (emphasis added). Absent

a finding that respondent’s grand jury testimony was

not voluntarily given, the court of appeals had no

power—supervisory or otherwise—to suppress it.

b. Rule 402 of the Federal Rules of Evidence even

more broadly restricts the supervisory power to ex-

clude relevant evidence.’ That rule provides:

All relevant evidence is admissible, except as

otherwise provided by the Constitution of the

United States, by Act of Congress, by these

rules, or by other rules prescribed by the Su-

preme Court pursuant to statutory authority.

Evidence which is not relevant is not admissible.

The legislative history of this provision shows that

Congress chose its language with care: relevant evi-

dence is to be excluded solely in those cases where

exclusion is required “by the Constitution of the

United States, by Act of Congress, by these rules,

or by other rules prescribed by the Supreme Court

pursuant to statutory authority” (emphasis sup-

plied). See H.R. Rep. No. 93-650, 93d Cong., 1st

Sess. (1973). Given the strict limits imposed on this

Court’s ability to fashion rules excluding otherwise

"The Federal Rules of Evidence are an Act of Congress.

Pub. L. 93-595, 88 Stat. 1926.

* For example, under 18 U.S.C. 3771-3772, empowering this

Court-to promulgate the Federal Rules of Criminal] Procedure.

10

relevant evidence, Congress plainly could not have in-

tended to allow the courts of appeals an unfettered

supervisory power to achieve the same result.

In short, Section 3501(a) and Rule 402 strictly

limit the circumstances wnder which relevant, volun-

tary statements made by a defendant (or anyone

else) may be suppressed, leaving no room whatever

for the exercise of inconsistent supervisory powers

by the federal courts. In suppressing respondent’s

grand jury testimony without first finding a viola-

tion of the Constitution, an Act of Congress, or a

rule formulated by this Court in the exercise of its

rulemaking authority, the court of appeals has acted

pursuant to supervisory powers that it does not pos-

sess. The propriety of that action merits review by

this Court.

2. Moreover, by invoking the court’s supervisory

powers and ignoring the directive contained in 18

U.S.C. 3501(a), the decision below conflicts with

United States v. Crook, 502 F.2d 1378 (C.A. 3),

certiorari denied, 419 U.S. 1123. There the court

held that a defendant’s voluntary waiver of counsel

prior to questioning by federal agents who knew he

was represented by counsel on pending, unrelated

charges did not contravene Massiah v. United States,

377 U.S. 201. The court then considered and re-

jected the possible exercise of its supervisory powers

to create a rule that would adopt the prohibition

against interrogating a defendant in the absence of

his counsel contained in the American Bar Associa-

tion’s Code of Professional Responsibility (DR 7-104

11

(A)(1) (Final Draft, 1969) ). The court noted (502

F.2d at 1380) that the Code provisions were enforce-

able “only under our supervisory powers,” which are

“subject to the control of Congress.” Since Congress

had decreed that voluntary confessions shall be ad-

mitted, the court recognized its lack of authority to

formulate an inconsistent evidentiary rule. “We can-

not,” said the court (id. at 1381), “in exercising

merely supervisory powers, disregard the congres-

sional mandate of 18 U.S.C. § 3501(a).”°

3. Even had Congress not spoken on the eviden-

tiary issue, grave questions would attend the court

of appeals’ exercise of its supervisory powers in this

case to immunize a defendant from liability for acts

made criminal by statute. The court expressly de-

clined to consider whether the government’s failure

to warn respondent that she was a “putative defend-

ant” violated her constitutional rights (App. A,

infra, p. 8a). Nor did it consider whether any other

of respondent’s rights, statutory or court-announced,

were violated. Rather, the court ruled that the sim-

ple lack of uniformity in prosecutorial practice re-

*Perhaps because the present case was decided by the

court of appeals on grounds not briefed or argued by the

parties, the opinion does not attempt to reconcile the action

of the court with the commands of Section 3501 and of Rule

402. Nor does it acknowledge or distinguish the Third Cir-

cuit’s decision in Crook. These authorities were specifically

called to the attention of the court in the government’s peti-

tion for rehearing, which was denied without comment (App.

C, infra, pp. 12a-13a).

12

vealed by the Special Attorney’s failure to warn

respondent of her status required dismissal of the

indictment. “[S]uch disparity,” said the court, is

“outside the penumbra of fair play” (<bid.).

But nonuniformity in prosecutorial practice—pro-

vided it offends no statutory or constitutional pro-

scription—has never, tc our knowledge, been held a

sufficient cause to terminate a crimina: prosecution.

The Executive Branch has broad discretion to carry

out its constitutional mandate to “take Care that the

Laws be faithfully executed” (United States Consti-

tution, Art. II, Sec. 3). See United States v. Nixon,

418 U.S. 683, 693; United States v. Cox, 342 F.2d

167, 171 (C.A. 5), certiorari denied sub nom. Cox v.

Hauberg, 381 U.S. 935. Even a disparity as great

as that resulting from the selective enforcement of

the criminal laws has been held to fall within this

discretion, so long as the prosecutor’s decisionmaking

is not based upon impermissible standards “such as

race, religion, or other arbitrary classification.”

Oyler v. Boles, 368 U.S. 448, 456; see also Washing-

ton v. United States, 401 F.2d 915, 924-925 (C.A.

D.C.). Put simply and in contrast to the court of

appeals’ view, uniformity in prosecutorial procedure

is not generally “a fundamental of the administra-

tion of criminal justice’ (App. A, infra, p. 9a), es-

pecially when its absence results in no prejudice to

the rights of the defendant.

It makes no difference that the nonuniformity

here was caused by the Strike Force attorney’s fail-

13

ure to follow a general policy already in existence.”

The nonobservance of a discernible governmental

standard that is intended tc govern prosecutorial de-

cisionmaking at any of the numerous stages of the

criminal process where discretion must be exercised .

does not warrant dismissal of a prosecution if none

of the defendant’s rights have been violated. See

Sullivan v. United States, 348 U.S. 170, 173-174;

United States v. Leonard, 524 F.2d 1076, 1088-1089

(C.A. 2).”

There is no suggestion in this case that the prose-

cutor’s decision not to warn respondent that she was

a “putative defendant” resulted from a discrimina-

tory or other impermissible motive. The court of ap-

peals did not find that any of respondent’s rights had

been abridged by her failure to receive such a warn-

ing, and an abstract interest in uniformity of crimi-

nal procedure is an insufficient justification for the

court’s exercise of supervisory powers in a manner

necessitating dismissal of the indictment against re-

1° Although each of the United States Attorneys in the Sec-

ond Circuit appears to follow a practice of warning “putative

defendants” of their status, and although in most cases most

United States Attorneys apparently give such warnings, no

governing Department of Justice policy exists and apparently

the practice varies even within some United States Attorneys’

offices.

" The contrary result reached by the decision below is not,

however, without support. See United States v. Leahey, 434

F.2d 7 (C.A. 1); United States v. Heffner, 420 F.2d 809

(C.A. 4); United States v. Sourapas, 515 F.2d 295 (C.A.

9).

14

spondent. The decision below excuses a violation of

the criminal law because of the court’s displeasure

with certain governmental conduct, and in so doing

ignores this Court’s twice-repeated caution, given in

the context of entrapment cases but no less applica-

ble here, that the federal judiciary does not sit to

exercise “a ‘chancellor’s foot’ veto over law enforce-

ment practices of which it d[oes] not approve”

(Hampton v. United States, No. 74-5822, decided

April 27, 1976 (plurality op. 6), quoting from

United States v. Russell, 411 U.S. 423, 435).”

4. Suppression of respondent’s testimony and dis-

missal of the indictment is especially inappropriate

in this case because it involves a prosecution for

perjury.” In United States v. Mandujano, No. 74-

12 There is no obvious answer to the question whether, as a

matter of policy, “putative defendants” should be warned

that they are targets of the grand jury’s inquiry. To some

extent considerations of fairness do support such a course,

even though such warnings might discourage full and frenk

cooperation by the witness with the grand juyy’s inquiry.

But the imposition of judicial sanctions for departures from

any such policy seems to us a most unsatisfactory way to

treat the matter. In comparison with the effect of the Fourth

Amendment exclusionary rule, decisions such as that rendered

below actually deter governmental adoption of desirable but

not constitutionally mandatory policies. Such a result is espe-

cially likely here, given the difficulty in determining whether

a particular grand jury witness is in fact a “putative de-

fendant.” (The problems inherent in administering rules

based upon the “putative defendant” concept are discussed at

some length in our brief in United States v. Mandujano,

supra (pp. 44-47), and will not be further detailed here.)

13 Thus the present case is distinguished from United States

v. Washington, No. 74-1106, certiorari granted, June 1, 1976,

15

754, decided May 19, 1976, this Court held that the

constitutional privilege against compulsory self-

incrimination confers no protection for the commis-

sion of such an offense. In that case the court of ap-

peals, relying on both the due process and self-incrim-

ination clauses of the Fifth Amendment, had af-

firmed the suppression of the defendant’s allegedly

perjurious grand jury testimony on the ground that,

although he had been a “putative defendant” at the

time of his testimony, the government had neglected

to give him full Miranda warnings. Without decid-

ing what, if any, warnings are required to be given

“putative defendants” in general (plurality op. 17,

n. 7), this Court reversed; all eight Justices who

voted in the case agreed that the government’s con-

duct did not deny the defendant due process and that

the absence of warnings was immaterial in a perjury

prosecution because “‘[o]jur legal system provides

methods for challenging the Government’s right to

ask questions—lying is not one of them’” (plurality

where the court of appeals affirmed suppression of the de-

fendant’s grand jury testimony relating to prosecution for the

theft that was the subject of the grand jury investigation.

Accordingly, even were this Court to reverse in Washington,

the decision here would not necessarily be disturbed.

This case is also different from Washington because here

the court of appeals affirmed the dismissal of the indictment

against respondent “[i]n the interest of uniformity in crimi-

nal procedure within the circuit” (App. A, infra, p. 9a),

whereas in Washington the court ruled that “putative defend-

ant” warnings are required by the self-incrimination clause

of the Fifth Amendment. For this reason also the disposition

of Washington will not necessarily govern this case.

16

op. 12; concurring op. of Mr. Justice Brennan, p. 1;

concurring op. of Mr. Justice Stewart; quoting from

Bryson v. United States, 396 U.S. 64, 72).

In direct conflict with the principles underlying

Mandujano, the court of appeals in the present case

has ignored the irrelevancy of warnings to subse-

quent perjury prosecutions. Since the complete ab-

sence of “putative defendant” warnings would not

defeat a perjury prosecution even if it had violated

the defendant’s constitutional rights, a different re-

sult can hardly be justified simply because the neg-

lect of the warnings in a particular case contrasts

with the normal policy of the prosecutor’s office.”

5. Prosecutorial uniformity was not an issue in

Mandujano and therefore that case does not, strictly

speaking, control this one. But the perjury iss’

decided in Mandujano is so closely related to the is-

sues presented here that it would be appropriate, we

submit, for this Court to vacate the judgment below

and remand for reconsideration in light of that deci-

sion. In this manner the court below would have the

opportunity to correct its decision if in fact it rested

on a misconception of the governing principles in

perjury cases, or to clarify its opinion if indeed it

deemed the lack of prosecutorial uniformity so seri-

We note also that even if the court of appeals’ concern

for the lack of uniformity in prosecutorial practice were

well founded, the adoption of an exclusionary rule to suppress

the testimony here and to compel future uniformity would

nonetheless be unwarranted for the reasons stated in our

brief in Mandujano (pp. 56-57).

17

ous a governmental transgression as to warrant sup-

pression notwithstanding that this is a perjury case.

This Court might thereby avoid unnecessarily pass-

ing on important and potentially difficult issues re-

garding the source and scope of the federal courts’

supervisory powers; furthermore, the Court’s con-

sideration of such issues, should they still arise after

remand, stands to be facilitated by the lower court’s

elucidation of the principles it deems controlling.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

RICHARD L, THORNBURGH,

Assistant Attorney General.

WILLIAM F. SHEEHAN, III,

Assistant to the Solicitor General.

JUNE 1976.

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la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 443—SEPTEMBER TERM, 1975

(Argued November 13, 1975

Decided February 24, 1976)

Docket No. 75-1319

UNITED STATES OF AMERICA, APPELLANT

—against—

ESTELLE JACOBS, a/k/a “Mrs. Kramer,”

DEFENDANT-APPELLEE

Before:

FEINBERG, GURFEIN and VAN GRAAFEILAND,

Circuit Judges.

Appeal from an order of the United States District

Court for the Eastern District of New York, Edward

R. Neaher, Judge, which granted defendant-appellee’s

motion to suppress her Grand Jury testimony and to

dismiss Count Two of the indictment against her.

Affirmed.

2a

EDWARD C. WEINER, Special Attorney, United

States Department of Justice (David G.

Trager, United States Attorney, Eastern

District of New York), for Appellant.

IRVING P. SEIDMAN, New York, N.Y. (Rubin,

Seidman & Dochter, New York, N.Y., of

counsel), for Defendant-Appellee.

GURFEIN, Circuit Judge:

The United States appeals from an order of the

United States District Court for the Eastern Dis-

trict of New York (Hon. Edward R. Neaher, Judge),

granting a motion to suppress the Grand Jury testi-

mony of defendant-appellee Estelle Jacobs and dis-

missing Count Two of the indictment against her.’

The defendant had moved for an evidentiary hear-

ing and an order to dismiss the indictment on the

ground, inter alia, that she was a subject of the in-

vestigation but had not been informed that she was

a subject when she was subpoenaed to testify before

the Grand Jury. Judge Neaher granted the motion

to dismiss Count Two of the indictment which

charged the making of false statements before the

Grand Jury in violation of 18 U.S.C. § 1623, but

denied the motion to dismiss Count One. The gov-

1 The indictment, filed on November 11, 1974, contains two

counts: Count One charged a violation of 18 U.S.C. § 875(e)

—transmitting in interstate commerce a threat to kidnap or

injure another. Count Two was the perjury count which was

dismissed and which is the subject of this appeal.

3a

ernment appeals the dismissal of Count Two pur-

suant to 18 U.S.C. § 3731.

The facts are not in dispute with regard to the

procedure followed. The defendant is a housewife

who was employed at various times in a collection

agency. During March 1973 Harry W. Stonesifer,

Jr. (“Harry”), using the name of his brother, Wil-

liam D. Stonesifer (“William”), incurred a gambling

debt of $5,060 on a junket to Puerto Rico. During

May 1973 defendant serviced this collection account

for her employer. She made several telephone calls

in that connection, and on May 22, 1973 she allegedly

made a telephone call to William, recorded on tape

by him, which contained a threat to injure the per-

son of Harry. William notified the Federal Bureau

of Investigation (“FBI”). On September 13, 1973

the defendant was interviewed by the FBI who ad-

vised her of her Miranda rights including the right

to remain silent and the right to appointed counsel.

She signed an “Advice of Rights” form. The agents

questioned her about the Stonesifer account and the

fact that she had used the name “Mrs. Kramer’ in

making telephone calls on the Stonesifer account.

She denied that she had harassed William on the

telephone. She was not told that her conversation

had been recorded.

On June 10, 1974, about nine months later, she

was called before the Grand Jury by a subpoena is-

sued by the Organized Crime Strike Force.’ She ap-

2 The Strike Force attorneys operate under a commission

from the Attorney General pursuant to 28 U.S.C. § 515(a)

4a

peared without counsel at that first session; she was

warned by the Strike Force Attorney that under the

Fifth Amendment she could “refuse to answer any

question that you feel might tend to incriminate you.”

She was also told that under the Sixth Amendment

she had a right to counsel of her choice who could

be outside the Grand Jury room to assist her “about

the procedures on any specific questions.” Asked

whether she felt the need of an attorney, she re-

sponded, “I do not.” She was also informed that

perjury is a “very serious offense.” Appellee was

asked to affirm or deny her conversations with Wil-

liam which had been recorded, though the fact of

recording was not disclosed to her. Her denials were

the basis for Count Two of the indictment.

The Strike Force attorney at her first appearance

before the Grand Jury had in his possession the re-

cording of her conversation with William, and, as

Judge Neaher ivund, “[t]he government admits that

when she was called to testify before the grand jury

the defendant was not just another witness, but was

in fact a ‘putative defendant,’ in that the government

had incriminating evidence against her.’”’ Neverthe-

less, she was not warned at the time of her first

appearance that she was a subject of the investiga-

tion or that she had an absolute right to remain

silent.

and under guidelines promulgated by the Attorney General.

See Office of the Attorney General, Order No. 431-70, Estab-

lishing Guidelines Governing Interrelationships Between

Strike Forces and United States Attorneys’ Offices, reprinted

in In re Persico, 522 F.2d 41, 68 (2 Cir. 1975) (appendix).

5a

The District Court concluded that, under the cir-

cumstances, the defendant was entitled to “full”

Miranda warnings including the advice that she had

an absolute right to remain silent. It noted that

“simply with the possession of the wiretap tape, the

government undoubtedly felt it had all but the iden-

tity evidence for probable cause to be found by the

grand jury that Jacobs violated 18 U.S.C. § 875(c).”

He also noted that the Grand Jury had been pre-

sented with “sufficient independent identity evi-

dence.” The court ruled, accordingly, that “[u]nder

the circumstances, asking her if she made the state-

ments the government already had recorded, without

fair warning of the trap she was being led into is

not permissible prosecutorial conduct,” since “the

questions which led to the alleged perjurious re-

sponses served no other function than to give the

government an additional prop on which to base its

case against defendant” (emphasis in original).

Judge Neaher relied on United States v. Mandu-

jano, 496 F.2d 1050 (5 Cir. 1974), cert. granted,

420 U.S. 989 (1975). He concluded, as had the Fifth

Circuit, that the prosecutorial conduct involved was

“so ‘offensive to the common and fundamental ideas

of fairness’ as to amount to a denial of due process.”

496 F.2d at 1059.° His decision to dismiss the false

*In Mandujano, as here, a Special Attorney was involved.

As the court noted, “[s]omewhere within this chain of com-

mand and information” between him end the United States

Attorney a decision was made to subpoena Mandujano as a

witness, 496 F.2d at 1058 n.8.

6a

statement count was predicated on the “‘due process”

clause of the Fifth Amendment rather than on its

“self-incrimination” provision.

We do not reach either the claimed “self-incrimi-

nation” violation or the claimed “due process” vio-

lation under the Fifth Amendment. We have held

that a prospective defendant may be questioned be-

fore a Grand Jury about statements he made in a

recording in the possession of the government, with-

out being told of the existence of the recording.

United States v. Del Toro, 513 F.2d 656, 664 (2 Cir.

1975), cert. denied, 44 U.S.L.W. 3201 (U.S. Oct. 6,

1975). But we noted that the defendants had been

advised not only of their constitutional rights but

also that each “was a target of the investigation.”

513 F.2d at 660. That was not done here.

It appeared to us that prosecutors in this circuit

generally had been following Section 3.6(d) of the

ABA Project on Standards for Criminal Justice,

Standards Relating to the Prosecution Function (Ap-

proved Draft 1971).° Section 3.6(d) provides:

* So, too, in United States v. Winter, 348 F.2d 204, 205 (2

Cir.), cert. denied, 382 U.S. 955 (1965), also a perjury prose-

cution, the defendant was advised that he was “a prospective

defendant,” and we left aside the question whether a potential

defendant must be advised of his status since that question

was not presented on the facts of the case. 348 F.2d at 208.

* See, e.g., United States v. Bonacorsa, slip op. 1451, 1460

(2 Cir. Jan. 9, 1976) ; United States v. Del Toro, supra, 513

F.2d at 660; United States v. Corallo, 413 F.2d 1306, 1328,

1329 n.6 (2 Cir.), cert. denied, 396 U.S. 958 (1969); United

States Vv. Irwin, 354 F.2d 192, 199 (2 Cir. 1965), cert. denied,

7a

“If the prosecutor believes that a witness is

a potential defendant he should not seek to com-

pel his testimony before the grand jury without

informing him that he may be charged and that

he should seek independent legal advice concern-

ing his rights.”

See United States v. Washington, 328 A.2d 98, 100

(D.C. App. 1974).

We did not wish simply to assume, however, that

all prosecutors in the circuit now adhere to this

standard. We accordingly directed the clerk of our

court to make written inquiry of the United States

Attorneys for each district in the circuit concerning

their practice in this regard.

The United States Attorneys have replied with

unanimity that where a person called before the

Grand Jury is known to be a potential defendant he

is warned that he is a “target of the investigation”

or a “subject of the investigation.” More particu-

larly, the United States Attorney for the Eastern

District of New York, where the Grand Jury which

heard this defendant sat, replied that “our practice

is to advise the potential defendant . . . that he is

a target of the investigation.”

We thus have a situation in the Eastern District

where if Estelle Jacobs had appeared before the

Grand Jury on a subpoena issued by the United

States Attorney she would have been warned that

383 U.S. 967 (1966) ; United States v. Winter, supra, 348 F.2d

at 205; cf. United States v. Scully, 225 F.2d 113, 116 (2 Cir.),

cert. denied, 350 U.S. 897 (1955).

8a

she was a target, while the Strike Force operating

in the same district failed to give her such warning.

In this posture of conflicting conceptions of prose-

cutorial fairness in the same district, we need not

consider whether there is a constitutional due proc-

ess claim as the court below held. Uniform justice

is not achieved in the face of such disparity which,

if not in actual violation of the Constitution, is, at

least, outside the penumbra of fair play. In In re

Persico, 522 F.2d 41 (2 Cir. 1975), we upheld the

right of Strike Force attorneys to appear before the

Grand Jury partly because they were under the su-

pervision of the United States Attorneys. We are

sorry to learn that this may not always be the fact.

We suggest that Strike Force attorneys should be

instructed on and should adhere to the practices of

the United States Attorney.°

* Reviewing the guidelines set out in Appendix A to the

Persico opinion, supra, we note that there appears to be an

omission with regard to the matter here at issue. It is pro-

vided, inter alia, that “[t]he Chief of the Strike Force and

the United States Attorney ... shall have the responsibility

of keeping each other fully advised of all organized criminal

matters in progress.” 522 R.2d at 68. “Fully” is perhaps too

ambiguous and requires clarification. It is also provided:

“When a specific investigation has progressed to the

point where there is to be a presentation for an indict-

ment, the Chief of the Strike Force shall then for this

purpose operate under the direction of the United States

Attorney who shall oversee the judicial phase of the de-

velopment of the case.”

Id. at 69. What is lacking is a statement that when the inves-

tigation has progressed to the point where witnesses are called

to testify before the Grand Jury, the Strike Force shall op-

9a

In the interest of uniformity in criminal proce-

dure within the circuit, which is a fundamental of

the administration of criminal justice, we affirm the

dismissal of Count Two pursuant to our supervisory

function.

We do not mean to imply that a potential defend-

ant has a constitutional right not to be called before

the Grand Jury at all. See United States v. Dionisio,

410 U.S. 1, 10 n.8 (1973) ; United States v. Doe, 457

F.2d 895, 898 (2 Cir. 1972), cert. denied, 410 U.S.

941 (1973); United States v. Winter, 348 F.2d 204,

207-08 (2 Cir.), cert. denied, 382 U.S. 955 (1965).

Nor do we deal with perjury committed by a pros-

pective defendant after adequate warning of his

status. We are satisfied that we should affirm in

this case solely under our supervisory power.’

erate under the direction of the United States Attorney. We

think this should have been assumed by the Strike Force

since, under the guidelines, even preliminaries, such as arrest

warrants and search warrants are, where practicable, to be

sought with the concurrence of the United States Attorney.

Id.

7 Since the suppression of the Grand Jury testimony wipes

out the entire predicate for the perjury count in this case,

Judge Neaher also properly dismissed Count Two of the in-

dictment before trial.

10a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

twenty-fourth day of February one thousand nine

hundred and seventy-six.

Present: HON. WILFRED FEINBERG

HON. MuRRAY I. GURFEIN

HON. ELLSWORTH VAN GRAAFEILAND

Circuit Judges

[Filed Feb. 24, 1976, A. Daniel Fusaro, Clerk]

75-1319

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

ESTELLE JACOBS, a/k/a “Mrs. Kramer”,

DEFENDANT-APPELLEE

lla

Appeal from the United States District Court

for the Eastern District of New York

This cause came on to be heard on the transcript

of record from the United States District Court for

the Eastern District of New York, and was argued

by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the order

of said District Court be and it hereby is affirmed

in accordance with the opinion of this court.

A. DANIEL FUSARO

Clerk

by /s/ Vincent A. Carlin

VINCENT A. CARLIN

Chief Deputy Clerk

12a

APPENDIX C

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the twenty-ninth day of April, one thousand nine

hundred and seventy-six.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

ESTELLE JACOBS, a/k/a “Mrs. Kramer’,

DEFENDANT-APPELLEE

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the appellant, United States

of America, and no active judge or judge who was

a member of the panel having requested that a vote

be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

DENIED.

/s/ Irving R. Kaufman

IRVING R. KAUFMAN

Chief Judge

13a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the twenty-ninth day of April, one thousand nine

hundred and seventy-six.

Present: HON. WILFRED FEINBERG

Hon. MurRAyY I. GURFEIN

HoN. ELLSWORTH VAN GRAAFEILAND

Circuit Judges

75-1319

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

ESTELLE JACOBS, a/k/a “Mrs. Kramer’,

DEFENDANT-APPELLEE

A petition for a rehearing having been filed herein

by counsel for the appellant, United States of Amer-

ica

Upon consideration thereof, it is

Ordered that said petition be and hereby is DE-

NIED.

A. DANIEL FUSARO

Clerk

l4a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

74 CR 703

UNITED STATES OF AMERICA

—against—

ESTELLE JACOBS, a/k/a “Mrs. KRAMER”, DEFENDANT

APPEARANCES:

DAVID G. TRAGER, Esq.

United States Attorney,

Eastern District of New York

By EDWARD C. WEINER, Esq.

Special Attorney, United

States Department of Justice

RUBIN, SEIDMAN & DOoCHTER, EsQs.

Attorneys for Defendant

By IRVING P. SEIDMAN, Esq.

MEMORANDUM AND ORDER

NEAHER, District Judge.

The defendant moves to dismiss the indictment on

the ground, inter alia, that when called before the

grand jury to testify, she was not warned that she

was a subject of the investigation.

15a

The facts are not in dispute. The defendant is a

housewife who was employed at various times in a

credit collection agency. She appeared when sum-

moned, without counsel, before a federal grand jury

on June 10, 1974 and on November 4, 1974. The

government admits that when she was called to tes-

tify before the grand jury the defendant was not

just another witness, but was in fact a “putative

defendant,” in that the government had incriminat-

ing evidence against her.’

The warnings given her on each occasion are set

forth in the margin.* She was not warned at the

1 The grand jury transcript of November 4, 1974 (at p. 4)

makes it clear that the defendant was a “subject” of the

grand jury investigation, and government counsel who con-

ducted the grand jury investigation, Edward C. Weiner, Esq.,

admitted this in open court and in his brief (at p. 15). More-

over, an internal Department of Justice memorandum, Feb-

ruary 15, 1974, disclosed to the court in connection with de-

fendant’s argument that Mr. Weiner lacked proper authoriza-

tion to appear before the grand jury, reveals that the defend-

ant was indeed a target of the grand jury investigation.

2 June 10, 1974:

“Q. Mrs. Kramer, I want to explain to you your

various Constitutional rights that you have as a witness

who appears before a Federal Grand Jury. I want to tell

you that this is a Federal Grand Jury inquiring into

the possibility of a violation of the Federal Criminal

Law, and the first right you have is the right under the

Fifth Amendment to refuse to answer any question that

you feel might tend to incriminate you; do you under-

stand what your rights are under the Fifth Amendment?

“A. Yes.

“Q. At any time you feel the questions I am asking

16a

may tend to incriminate you, you will not be obliged to

answer those questions; do you understand that?

“A. Yes, I do.

* * ” * *

“Q. Now, the next right you have under the Sixth

Amendment, is the right to counsel; you can have a

lawyer of your choice outside of the Grand Jury room

to assist you with any questions that you may have a

question with ... you may have an opportunity to leave

the Grand Jury room and consult with your attorney,

do you understand that right?

“A. Yes, I do.

“Q. Do you have an attorney with you today?

“A. No, I do not.

“Q. Now, do you feel the need of one?

“A. I do not.”

Transcript at 2-3.

November 4, 1974:

“Q. I believe you appeared before this Grand Jury on

June 10, 1974, is that correct?

“A. That’s correct.

“Q. At that time, Mrs. Jacobs, I explained to you

your various Constitutional rights.

Do you have any questions now about those rights?

“A. No.

[Government counsel] then repeated substantially the

Fifth Amendment privilege and right to counsel warn-

ings as above set forth.]

“Q. If at any time you would like to interrupt the

proceedings and call an attorney, let me know and you

will be given the opportunity.

“A. There is one question as to Mr. Weiner—

“Q. Yes.

“A. I’m here and you are asking me if I feel—I

don’t know why I’m here, Mr. Weiner, to be very honest

with you. You are implying do I feel, do I need an at-

torney. I have asked you repeatedly why am I here.

[Footnote continued on page 17a}

a

17a

time of her first appearance that she was the sub-

ject of the investigation. Shortiy after her second

appearance she was indicted for communicating a

threat over the telephone, 18 U.S.C. § 875(c), and

for perjury before the grand jury, 18 U.S.C. § 1623,

when she denied the alleged threatening statements.

Jacobs was therefore in much the same situation

as the “putative defendants” in United States v.

Mandujano, 496 F.2d 1050 (5 Cir. 1974), cert.

granted, 95 S.Ct. 1422 (1975), and in United States

v. Rangel, 496 F.2d 1059 (5 Cir. 1974). In those

eases, the court, underscoring that the questioning

proceeded without full Miranda warnings regarding

the defendants’ rights to remain silent and to ap-

pointed counsel, found the questioning concerning

criminal activity under the circumstances to be “be-

yond the pale of permissible prosecutorial conduct,”

United States v. Mandujano, supra, 495 F.2d at 1058

(emphasis in original), and a violation of Fifth

Amendment Due Process. Jd. The court reasoned

that grand jury questioning by the prosecutor in

such circumstances smacks of entrapment and the

baiting of the defendant to commit perjury. Since

the defendant in each case was not likely to confess

2 [Continued]

“Q. You are a subject of this investigation, Mrs.

Jacobs.

“A. I told you everything I know, Mr. Weiner.

“Q. I have some additional questions and that’s why

you’re here today.”

Transcript at 2-4.

18a

to a crime before the grand jury, “[h]is only ‘safe

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

government failed to inform him.” Jd. at 1055.

While a defendant could have asserted his Fifth

Amendment privilege against self-incrimination in

such circumstances, the court found the warnings

advising of such a right to be minimally adequate

at best in a situation where questions were asked

calculated to elicit answers that were either incrimi-

natory or perjurous. Under such circumstances, the

court held that a full Fifth Amendment warning

which includes the right to remain silent must be

given. Jd. at 1056-57.

In this case Jacobs, brought before the grand jury

the first time without being told she was a subject

of the investigation* or that she had the absolute

right to remain silent, was asked specific questions

concerning the making of allegedly threatening state-

ments. In framing the questions which are alleged

to have resulted in perjury, the prosecutor appar-

ently read from a transcript of the telephone conver-

sation during which the threats were allegedly made.

It is now clear that this was possible only because

the government had beforehand a tape recording of

the conversation allegedly involving the defendant,

derived from a phone wiretap. In short, before the

defendant made her first appearance before the

grand jury, the government prosecutor had undoubt-

* She was only told this at her second appearance, see n. 2,

supra, while the basis of the perjury count was her testimony

at her first appearance.

19a

edly made his own factual determination, to his sat-

isfaction, that Jacobs was guilty of the crime about

which she was questioned and later indicted. And,

simply with the possession of the wiretap tape, the

government undoubtedly felt it had all but the iden-

tity evidence for probable eause to be found by the

grand jury that Jacobs violated 18 U.S.C. § 875(c).*

Under the circumstances, asking her if she made

the statements the goverminent already had recorded,

without fair warning of the trap she was being led

into is not permissible prosecutorial conduct.’ Had

the questions served some useful investigatory func-

tion, the conclusion might be otherwise. But no sug-

gestion has been made to the court that such a pur-

pose lay behind the question, and the court must

agree with defense counsel’s assessment that the

questions which led to the alleged perjurous responses

served no other function than to give the government

an additional prop on which to base its case against

defendant.

‘Further, the government’s own brief (at 12) admits that

the grand jury was presented with sufficient independent

identity evidence.

5 See United States v. Washington, 328 A.2d 98, 100 (D.C.

C.A. 1974), which found the failure to advise the defendant

that he was a potential defendant contravened Standard 3.6

(d) of the ABA Project on Standards for Criminal Justice,

The Prosecution Function. That section provides:

“If the prosecutor believes that a witness is a poten-

tial defendant he should not seek to compel his testimony

before the grand jury without informing him that he

may be charged and that he should seek independent

legal advice concerning his rights.”

20a

The court therefore sees no reason why the result

reached in Mandujano should not control here. The

Mandujano court simply concluded that the prosecu-

torial conduct involved was “so ‘offensive to the com-

mon and fundamental ideas of fairness’ as to amount

to a denial of due process.” 496 F.2d at 1059. We

have reviewed the authorities cited by the govern-

ment which are said to suggest a contrary result.

None of the cases cited suggests either that no grand

jury questioning of a putative defendant can ever

amount to a deprivation of due process* or that due

process should not be tested in such cases by an ap-

praisal of all the relevant facts and circumstances.

On such an appraisal, the court concludes that the

entire grand jury proceeding was a violation of

Jacobs’ due process rights under the Fifth Amend-

ment. Consequently, all her grand jury testimony

®* See, e.g., United States v. Corrallo, 413 F.2d 1306 (2

Cir.), cert. denied, 396 U.S. 958 (1969), in which warnings

that the defendants were subjects of the investigation were

given. Id. at 1328 & 1329 n. 6. In United States v. Winter,

348 F.2d 204 (2 Cir.), cert. denied, 382 U.S. 955 (1965), the

court found a much clearer legitimate interest in the de-

fendant’s being summoned before the grand jury. 7d. at 208.

In United States v. Scully, 225 F.2d 113 (2 Cir.), cert. denied,

350 U.S. 897 (1955), it was far from clear that Scully was

“marked for prosecution.” Jd. at 114.

The government’s other cited authorities are either sim-

ilarly inapposite or support the conclusion reached here. F.g.,

United States v. Luxenberg, 374 F.2d 241, 246 (6 Cir. 1967),

citing Stanley v. United States, 245 F.2d 427, 434 (6 Cir.

1957), both cited by the government, states that

“a person who is virtually in the position of a defendant

must be accorded the same rights as a defendant.”

2la

must be suppressed and the perjury count, being

based solely upon such testimony, must be dismissed.

The defendant’s various motions to dismiss are

otherwise denied in accordance with the views ex-

pressed by the court at oral argument. Discussion

of any other outstanding matters is reserved for

September 18, 1975, at 10:00 a.m., at which time a

prompt date for trial of the indictment will be set.

SO ORDERED.

/s/ Edward A. Neaher

U.S. D. J.

Dated: Brooklyn, New York

July 21, 1975

TW ov. &. GOVERNMENT PRINTING OFFICE; 1976 213889 271