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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0374%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 909

## Text

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
III iiss sscisnsninnitebilihstbcastcniiiinihinndiiiteldpinitiion 1
I hide iin ictiabatdlia ie lied ii 1
A A ER 2
Statement 2
Reasons for granting the writ 7
Conclusion ______ seniiihiaiateliehieiteataimiaads " 17
I OR 9 ao isch cicdacidigtadehincinc ein afcaalslahicsioneleniahas la
NATED > Siidisciicnstbinieisiestanictatic ace ttiaclacladitadadeiaa 10a
PII OU sdstciesiut eccitssmrnsced Meche bitsettegnieiinhecaecetactail 12a
gE aS ee gt an ris oom ool open l4a

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” ( ase) ™ ar : ; : ; ; anes i mean il) aks Loh it) 7 ; ; be veld Weal LACE AL!
ee HOD Sepetine tien

it gale + 4 a Our hd Gee ead ’ ar : “ a 4 : } : = : al
Dora hr im-asde oT ape a
Shr i be PPIPtrilic 2 Pitre
EORPTIPER RSS GeorsES
CUD Ge FID IGID EYE

9966600808 = = ®,
_ FHO6F09G2 010 FETE EE
Orit ePrice

Jeveversrarenmers ener Me58
Ser Seri eerie attr
it behets: ee 4
o Fe: +oreraeneaeD atGs
: Ee 4RtOh 4h eee ha Ge te
' it Puievavevmmmerera: ’ Tih

Pr sl ace LaPeer Te |

LE aiDeDeps 14 sRIDIDISe 4
tore eb

eer +0 or aor fernere oad eREDEDHDID DID HOTT en -_ th erika ine reagan p Nan = crraprare
dae CH 0% PD STs MEMONRI DIRE DADADEDER ALOR ; > : at ee : ie

5 i rune Dear sh bjabn eg.
WATE Tg ERO eB AeeO Ce ee Fee : Hb Chet Soyer ee ee oe ea : : : I oe 9 4
ie ae LS ie ae |

Lane ot cc

a |

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0374%3A1. Public record. Not legal advice.