Petitioners Brief — United States v. Jacobs

we, no 1 “Mrs. wan,

* —

— *

2 . vum oF e e THE UNITRD STATES COURT

ce ae ere FOR THE enn CIRCUIT

Page

2 ů —— ——— — 1

Jurisdiction „ 1

ä reer 2

Statute and rule involved —— 2

Statement 6— EE ˙ V x —— 3

Introduction and summary of argument 9

Argument :

I. The court of appeals had no supervisory power to

suppress respondent’s grand jury testimony.... 14

A. Exclusion of respondent's grand jury testi-

mony was contrary to Rule 402 of the

Federal Rules of Evidence 14

B. Respondent's grand jury testimony was a

“self-incriminating statement” and was

therefore admissible under 18 U.S.C

K ——P———————— 17

II. If the court of appeals has supervisory power to

suppress evidence such as respondent’s testimony,

it abused its discretion in exercising it in this

—— — 23

rr 36

CITATIONS

Cases:

Ballard v. United States, 329 U.S. 1877 11

Bryson v. United States, 396 U.S. 6444 25

City of Milwaukee v. Sawbe, 456 F. 2d 668 27

Communist Party v. Subversive Activities Control

eee... 10

Cupp v. Naughten, 414 US. 141—— 88

Elkins v. United States, 364 U.S. 206 10, 12, 15, 24

Frisbie v. Collins, 342 U.S. 519_____- — 32

Funk v. United States, 200 U.S. 71 10, 12, 15, 24

Gordon v. United States, 344 U.S. 414 10, 12

0

244 302—77—— 1

~~

Cases—Continued Page

Grunewald v. United States, 353 U.S. 391 3

Hampton v. United States, 425 U.S. 48. * 29

Jencks v. United States, 353 U.S. 657 10

II Buy v. Howes Leather Co., 352 U.S. 249 33

Lego v. Twomey, 404 U.S. 477 25

Lopez v. United States, 373 U.S, 427 12, 18, 23, 28

Mallory v. United States, 353 U.S. 449 18

Marshall v. United States, 360 U.S. 310 ae

Massiah v. United States, 377 U.S. 201 20

McNabb v. United States, 318 U.S. 382 9, 12, 18, 29

Mesarosh v. United States, 352 U.S. 1 11

Miranda v. Arizona, 384 U.S. 436 18, 19

Mortensen v. United States, 322 U.S. 369 11

Newman v. United States, 382 F 2d 479 27

Niwon v. Administrator of General Services, No. 75

1605, decided June 28, 1977 26

Offutt v. United States, 348 U.S. 11 li

Oyler v. Boles, 368 U.S. 448 27

Palermo y. United States, 360 U.S. 343 12, 15

Persico, In re Subpoena of , 522 F. 2d 41 31

Rea v. United States, 350 U.S. 214. 10, 29

Saldana v. United States, 365 U.S. 646. 11

Sulliwan v. United States, 348 U.S. 170. 30

Thiel v. Southern Pacific Co., 328 U.S. 217 11

United States v. Anderson, 352 F. Supp. 33, affirmed,

490 F.2d 785____ peat 22

United States v. Brown, 481 F. 2d 1035 27

United States v. Caceres, 545 F.2d 1182, pending on

petition for a writ of certiorari (No. 76-1804) — 30

United States v. Cowan, 524 F.2d 504, certiorari denied,

425 U.S. 971. 27

United States v. Cow, 342 F. 2d 167, certiorari denied,

381 U.S. 988. 26

United States v. Crook, 502 F. ad 1378, certiorari denied,

419 U.S. 1123. 20

United States v. D’ Angiolillo, 340 F. 2d 458, certiorari

denied, 380 U.S. 955 82

United States v. DiGilio, 588 F. ad 972, certiorari de-

nied, 429 U.S. 1038. 22

United States v. Dooling, 406 F. ad 192 33-34

m

Cases—Continued Page

United States v. Estepa, 471 F 2a 1182__--..-------- 32, 38

United States v. Grimes, 438 F 2d 391, certiorari denied,

402 U.S. 989 3 ——— ——— 24

United States v. Halbert, 436 F.2d 1226 3 —— 18

United States v. Heffner, 420 F.2d 800 —— 30

United States v. Jones, 527 F. 2d 817 ————— 25

United States v. Jones, 488 F. 2d 4611 27

United States v. Jones, 483 F. 2d 1176, certiorari denied,

CIF ——— 24

United States v. Kahan, 415 U.S. 239_....----.------ 20

United States v. Leahey, 484 F 24 7 30, 31

United States v. Leonard, 524 F.2d 1076, certiorari de-

ly ae IE ce I AS 30

U0 States v. Lomprez, 472 F.2d 860, certiorari de-

aled, 483 DG, 00..!1!1!1ñ.ñ„14. . 20

United States v. Lovasco, No. 75-1844, decided June 9,

69 ————————— 29

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

1. ͤ ͤß—Q—Af 6, 13, 25, 29

United States v. Mann, 517 F.2d 259, certiorari denied

117 1— K U 27

United States v. Marrero, 450 F. 2d 387 —— 18

United States v. Merrill, 484 F. 2d 168, certiorari denied,

1 — . — 20

United States v. Mitchell, 322 U.S. 65 ..

United States v. Niwon, 418 U.S. 683_.............-. 24, 26

United States v. Parness, 508 F 2d 430, certiorari de-

nied, 419 U.S. 1108. W 20

United States v. Quarles, 387 F.2d 551, certiorari de-

e 24

United States v. Raven, 500 F.2d 728, certiorari de-

e —ͤ 27

United States v. Russell, 411 U.S. 423 29

United States v. Shotwell Manufacturing Co., 865 US.

233 Wa e 11

United States v. Sourapas, 515 F. | ee 30

United States v. Swanson, 500 F. 2d 12056_..........- 27

United States v. Tager, 481 F. 2d 97, certiorari denied,

11 — 20

United States v. Thomas, 449 F. 2d 1177__.......-.-.- 33

IV

Miscellaneous Continued

Cases Continued Page Note, Evidence—Confessions—V oluntary Confessions

United States v. Tania 500 F. 2d 967 32 of Defendants While in [egal Custody Held Inad-

United States v. Washington, 828 A. 2d 98, reversed, missible, 56 Harv. L. Rev. 1008 (1048)

No. 74-1106, decided May 23, 1977. 6, 26 Note, The Judge-Made Supervisory Power of the Fed-

United States v. Wong, n eral Courts, 88 Geo. L. Rev. 1050 (1966)

1977 — 18, 25 8. Rep. No. 1097, 90th Cong., 2d Sess. (1568)

Upshaw v. United States, 335 U. S. 410 - 10, 12 Webster’s Third New International Dictionary (1961) -

Weisberg v. Department of Justice, 40 ¥. 2a 1196, 2 Wright, Federal Practice and Procedure § 401

certiorari denied, 416 U.S. 993. 26 i a A a ee

Wilson v. United States, 162 U.S. 613 20 Wright and Graham, Federal Practice and Procedure ;

Wolfle v. United States, 201 U.S. 7. — 12 Evidence $§ 5001-5007 (177)

Constitution, statutes, and rules:

, United States Constitution, Article II, Section 3..... 26

Omnibus Crime Control and Safe Streets Act of *

82 Stat. 210 — 17

Pub. L. 98-595, 88 Stat. 1026 ———— . 15

Tr 6

1 DBO n..1„ł„ 6

20. Bio ctitinindouttindion 15

18 U.S.C. 3501 2 12, 18, 19, 20, 21, 22, 28

3 ˙ 2, 9, 17

L dnc scwsteousthniatiindiiceninls 23

18 U.S.C. 3801 (e) ——k—:. . — 28,17

2 A ee 22

98 UBL, n.... 15

18 U.S.C. 3772 * a 15

28 U.S.C, 515(2).....-.-..-....... * * 31

28 U.S.C, 2072.....-... 15

28 U.S.C, 2075_....---.-- weet

Federal Rules of Criminal Procedure 26 (former) 10, 15, 16

Federal Rules of Evidence 402 8, 9, 12, 14, 16, 23

Miscellaneous :

i Committee Note to former Rule 26, 8A

Moore’s Federal Practice | 26.02[2] (1976) 10

American Bar Association’s Code of Professional Re-

sponsibility, D.R. 7-104( A) (1) ee

1969) 21

120 Cong. Rec. 1418-1414 (1974) * 17

H.R. Rep. No. 93d Cong, Ist Sess. (1973) 16

Note, The Supervisory Power of the Federal Courts,

76 Harv. L. Rev. 1656 (1963) 2 ——7— 11

Octoser Term, 1977

No. 76-1193

Untrep States or AMERICA, PETITIONER

v.

Eer IIA JAcons, 4/K/a “Mrs. Kramer”

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

The opinion of the court of appeals on remand

(Pet. App. A, pp. 1A-14A) is reported at 547 F. 2d

772. The first opinion of the court of appeals (Pet.

App. B, pp. 15A-22A) is reported at 531 F. 2d 87. The

opinion of the district court (Pet. App. E, pp. 26A-

32A) is not reported.

The judgment of the court of appeals was entered

on December 30, 1976. On January 21, 1977, Mr. Jus-

tice Marshall extended the time within which to file a

(1)

petition for a writ of certiorari to and including

February 28, 1977. The petition was filed on that date

and was granted on May 31, 1977 (A. 85). The juris-

diction of this Court rests upon 28 U.S.C. 1254(1).

Whether a court of appeals possesses and should ex-

ercise supervisory power to suppress a defendant's al-

legedly perjurious grand jury testimony for the sole

reason that the prosecutor neglected to follow the

usual practice of other federal prosecutors in the cir-

cuit of giving target warnings to grand jury wit-

nesses against whom the government has incrimi-

nating evidence.

STATUTE AND RULE INVOLVED

18 U.S.C. 3501 provides in pertinent part:

(a) In any criminal prosecution brought by

the United States or by the District of Colum-

bia, a confession, as defined in subsection (e)

hereof, shall be admissible in evidence if it is

voluntarily given. Before such confession is re-

ceived in evidence, the trial judge shall, out of

the presence of the jury, determine any issue

as to voluntariness. If the trial judge determines

that the confession was voluntarily made it

shall be admitted in evidence and the trial

judge shall permit the jury to hear relevant evi-

dence on the issue of voluntariness and shall

instruct the jury to give such weight to the con-

fession as the jury feels it deserves under all

the circumstances.

3

(e) As used in this section, the term “confes-

sion“ means any confession of guilt of any

criminal offense or any self-incri ing state-

ment made or riven orally or in writing.

Rule 402 of the Federal Rules of Evidence 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 author-

tiy. Evidence which is not relevant is not

admissible.

STATEMENT

1. During May 1973, in the course of her employ-

ment by a debt collection agency, respondent made nu-

merous telephone calls to relatives of a delinquent

gambling debtor she was attempting to locate (A. 5,

16-17, 60). Without her knowledge, the debtor’s

brother tape-recorded a call during which she alleged-

ly threatened the debtor with physical harm if he did

not pay up (Pet. App. 16A). On September 13, 1973,

agents of the Federal Bureau of Investigation, after

giving respondent full Miranda warnings and observ-

ing her sign a waiver of rights form (id. at 16A-

17A), questioned her about the call. They did not tell

her that it had been recorded, and she denied mak-

ing any threats (id. at 17A).

On June 10, 1974, respondent appeared pursuant to

subpoena before a grand jury in the Eastern District

of New York. She was not given the complete Mi-

244-302—17-_-2

4

interrogation are entitled,’ nor was she told that she

was a “target” of the grand jury investigation and

subjeet to indictment. The government attorney did,

however, advise respondent of her Fifth Amendment

privilege against self-incrimination and told her that

she had a right to have counsel of her choice outside

the grand jury room and to consult with him or her

at any time.“ She was also cautioned that perjury

is a serious offense (A. 4), and before testifying she

swore that her testimony would be truthful (A. 2).

The government did not tell respondent either that she had an

absolute right to remain silent before the grand jury or that coun-

sel would be provided for her if she were unable to bear the ex-

pense herself.

The relevant colloquy was as follows (A. 3-4) :

“Q. Mrs. Kramer [a name respondent often used when making

telephone calls in the course of her employment], I want to ex-

plain to you your various Constitutional rights that you have as a

witness who appears before a Federal Grand Jury. I want to te!l

you that this is a Federal Grand Jury inquiring into the possibil-

ity 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 understand what your rights are under the Fifth Amend-

ment ?

“A. Yes.

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

incriminate you, you will not be obliged to answer those questions ;

do you understand that

“A. Yes, I do.

“Q. And now, do you understand that the Fifth Amendment

privileges against self-incrimination, that that privilege is ex-

tended to you and not to any information or to any other indi-

vidual that might be incriminated ; do you understand that right

“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 out-

side of the Grand Jury room to assist you with any questions that

you may have a question with. You may have a question about

Government counsel then questioned respondent

about her employer’s business in general and the role

she played in it (A. 7-18). Again she was not told

about the recording. She denied unequivocally having

made certain statements that the government attor-

ney read to her from a transcript of the recorded

conversation,’ and the grand jury indicted her for

the proceduves or any specific questions, that 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.

. 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.

. And now, at any time you feel like stepping outside the

Grand Jury room to call an attorney or consult with an attorney,

you let us know and we'll give you that opportunity.

“A. Fine.“

»The pertinent testimony was as follows (A. 23)

Im 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.

Bu. 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.

Bu. No. I don’t.

Mrs. Kramer. Sooner than he expects. Maybe it's going to be

painful to be honest with you.’

“A. I never said that.

. 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.

7 6

perjury, in violation of 18 U.S.0. 1623 (A. 60-62).*

2. Before trial, respondent moved to suppress: her

grand jury testimony on the ground that the govern-

ment s warnings to her had been inadequate. After an

evidentiary hearing (A. 63-82), the district court

granted the motion, relying on United States v.

Mandujano, 496 F. 2d 1050 (C. A. 5), subsequently

reversed, 425 U.S. 564, and United States v. Wash-

ington, 328 A. 2d 98 (C.A. D.C.), also subsequently

reversed, No. 74-1106, decided May 23, 1977. The

court ruled that the government’s questioning of

respondent, without first giving her full Miranda

“Q. Now, did you know the statute of perjury ¢

“A. Les. I never said that.

“Q. We'll continue.

Bu. 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.

Bui. Well, you know.’

“Q. (continuing) Do you recognize those words?

“A. Not exactly.

Lou had some sort of conversation ?

“A. By the way of saying I wish you could contact your brother.

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 interstate

commerce a threat to injure, in violation of 18 U.S.C. 875(c). That

count is not involved here.

Respondent also appeared before the grand jury on November 4,

1974 (A. 27-59), at which time she was told she was a subject of the

investigation (A. 28). The perjury charged related only to her

testimony at her first appearance.

7

warnings and advising her that she was a “putative

defendant,” was “so ‘offensive to the common and

fundamental ideas of fairness’ as to amount to a denial

of due process” (Pet. App. 31A). Without her grand

jury testimony the government would be unable to

accordingly dismissed it (id. at 31A-32A).

The court of appeals affirmed, although for differ-

ent reasons. It expressly declined to reach the consti-

tutional issues that had been argued in the district

court and on appeal (Pet. App. 19A) and ruled in-

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

22A), that suppression was necessary because the gov-

ernment’s failure to give a “target” warning in this

case departed from prevailing, circuit-wide prosecu-

torial practice and created what the court believed to

be an intolerable lack of “uniformity in criminal pro-

cedure within the circuit” (ibid.).* In the court’s view,

the government's conduct in this case, “ii not in actual

violation of the Constitution, is, at least, outside the

penumbra of fair play” (id. at 21A).

Upon learning that the government attorney who had ques-

tioned respondent before the grand jury—a “Strike Force”

she was a “putative defendant” if she had been subpoenaed by the

United States Attorney, yet “the Strike Force operating in the

same district failed to give her such warning” (Pet. App. 21A).

3. This Court granted the government’s petition for

a writ of certiorari (No. 75-1883, 429 U.S. 909), va-

eated the judgment of the court of appeals, and re-

manded for reeonsideration in light of the intervening

decision in United States v. Mandujano, supra (hold-

pression, in a perjury prosecution, of allegedly per-

jurious grand jury testimony of a witness who was

not given full Miranda warnings).

On remand, the court of appeals adhered to its de-

cision. It said (Pet. App. 3A-4A) that it had antici-

pated (and that it agreed with) this Court’s ruling

in Mandujano, but that its own ruling had not been

based on constitutional grounds but on its conception

of its “duty to avoid uneven justice in the cireuit, re-

sulting from [the government’s] mere negligence or

inattention to established practice and guidelines” (id.

at 6A). The court acknowledged (ibid.) that the gov-

ernment could equally well achieve uniformity by

adopting a practice of never giving “target’’ warnings

in any case. It held that, since “the policy of the var-

ious prosecutors should be uniform,“ and since “{i)}t

is an important function of the administration of

criminal justice to let our citizens know that equal

justice is available to all” (ibid.), the “sanction of sup-

pression is salutary in the cireumstances” (id. at 8A).

r

p * eriminal law administration

through the presence in the same district of a two-

headed prosecution branch operating on conflicting

procedures” (id. at 12A). The sanction was especially

appropriate, in the court’s view (id. at 7A), because

respondent remained subject to prosecution for the

substantive offense (see note 4, supra); in these cir-

cumstances the government “was [not] entitled to the

luxury of a perjury count” (id. at 7A).

In addition, the court of appeals rejected the gov-

ernment’s arguments that its exercise of supervisory

powers to suppress respondent’s testimony was barred

by both 18 U.S.C. 3501 (a), which provides that vol-

untary confessions ‘‘shall be admissible,” and by Rule

402 of the Federal Rules of Evidence, which provides

that [a Ill relevant evidence is admissible” except

when exclusion is required by the Constitution, a fed-

eral statute, or a rule promulgated by this Court

pursuant to statutory authority. It ruled that respond-

ent’s denials in the grand jury were not “self-in-

criminating” statements for purposes of Section 3501

(a) (Pet. App 11A) and that the Federal Rules of

Evidence are not concerned! with the super-

visory powers of the federal courts” (ibid.).

INTRODUCTION AND SUMMARY OF ARGUMENT

In McNabb v. United States, 318 U.S. 332, this

diciary’s ‘‘supervisory” power over the administration

of justice in the federal courts. There it was suggested

that the power derived from the Court’s authority

to formulate common law rules of evidence for use

10

in federal criminal trials (id. at 341),* an authority

that was firmly established in Funk v. United States,

290 U.S. 371, and sanctioned by Congress in former

Rule 26 of the Federal Rules of Criminal Procedure.’

In many cases the Court’s use of the “supervisory”

power has been so limited.“

In other cases, however, the supervisory power has

assumed a broader role. The Court has invoked it,

for example, to enjoin a federal officer from testifying

at a state criminal trial about evidence he seized

unlawfully (Rea v. United States, 350 U.S. 214); to

require an administrative agency to reopen proceed-

ings to consider whether the testimony of certain

witnesses had been perjured (Communist Party v.

Subversive Activities Control Board, 351 U.S. 115);

and to reverse a defendant’s convictions on several

counts where the circumstances, which included ‘‘one

judge’s clearly expressed intention to impose a five-

year sentence” and “another judge’s imposition of

* See also United States v. Mitchell, 322 U.S. 65, 66 (“Prac-

tically the whole body of the law of evidence governing criminal

trials in the federal courts has been judge-made. * * * The

McNabb decision was merely another expression of this historic

tradition, whereby rules of evidence for criminal trials in the

federal courts are made a part of living law and not treated as a

mere collection of wooden rules in a game.“); Note, Evidence

Confession Voluntary Confessions of Defendants While in

Inegal Custody Held Inadmissible, 56 Harv. L. Rev. 1008, 1009

(1943).

See 2 Wright, Federal Practice and Procedure § 401, pp. 60-62

(1969).

* See, e. g., Elkins v. United States, 364 U.S. 206 ; Jencks v. United

States, 353 U.S. 657, 668; Grunewald v. United States, 353 U.S.

391; Gordon v. United States, 344 U.S. 414; Upshaw v. United

States, 335 U.S. 410.

— — _ 1 ——

ll

a twenty-year sentence,” were not “consistent with

that regularity and fairness which should characterize

the administration of criminal justice in the federal

courts” (Saldana v. United States, 365 U.S. 646,

647). T

Whatever the ultimate source and precise scope of

the judicial supervisory power,” this Court’s decisions

clearly establish two limitations on its exercise. First,

* In addition, the Court has used the power to con-

N re

script not officially part of the record (Mortensen v. United States,

322 U.S. 369) ; to reverse judgments without inquiring into actual

prejudice to the parties where daily wage earners (Thiel v. South-

ern Pacifie Co., 328 US. 217, 225) or women (Ballard v. United

States, 329 U.S. 187, 192-193) were systematically excluded from

jury lists; to order a new trial where the government questioned

the credibility of one of its witnesses (Mesarosh V. United States,

852 U.S. 1; cf. United States v. Shotwell Manufacturing Co., 355

U.S. 283); to reverse u contempt conviction and to remand for

further before a different district court judge (Offutt

v. United States, 348 U.S. 11, 13); and to reverse a conviction

where jurors had seen prejudicial newspaper accounts of the de-

— mtedesl copies (tarda 9. United States, 360

US. 310, 313).

See generally Note, The Supervisory Power of the Federal

Courts, 76 Harv. L. Rev. 1656 (1963). By and large, the super-

visory power has been recognized and exercised in the context of

review of events occurring in or directly affecting the trial or

administrative under review in the appellate court. See

Note, The Judge-Made Supervisory Power of the Federal Courts,

53 Geo. L. Rev. 1050, 1056 (1965). The McNabb-Mallory line of

cases and Rea are the only ones we know of in which the supervi-

sion was directed at conduct of government officials outside the

trial context, with a judicial remedy being forged in response to

official violations of constitutional or statutory rights. The court of

appeals in the present case, however, has asserted the power to

conduct of executive officials that neither occurred within

the confines of respondent’s trial nor violated any of her constitu-

tional or statutory rights.

244-302—1T-—-8

the supervisory power is subordinate to the para-

mount authority of Congress to declare, within con-

stitutional limitations, what practices and procedures

will govern trials in the federal courts. This limita-

tion was adverted to in McNabb (318 U.S. at 341,

n. 6) and expressly declared 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 Congress.”

Second, even when hot precluded by an Act of Con-

gress, the’¢ourts’ use of supervisory powers to exclude

material evidence must be ‘‘sparingly exercised,” and

then only when ‘overriding ¢onsiderations” justify

it. Lopes v. United States, 373 U.S. 427, 440. “[A]ny

apparent limitation upon the process of discovering

truth im a federal trial ought to be imposed only upon

the basis of considerations which outweigh the general

need for untrammeled disclosure of competent and

relevant evidence in a ‘court of justice.” Hiking v.

United States, 364 U.S. 206, 216.

The court below disregarded both of these limita-

tions. We ‘show in Part I, infra, that two Acts of

Congress—Rule 402 of the Fedéral Rules of Evidence

and 18 U.S.C, 3501—prohibited the court’s exercise

© Agcord, Senden , United. States, eupra, 344 U.S. at 418;

Upshaw v. United States, supra, 335 U.S. at 414-415 (dissent) ;

Wolfe v. United States, 201 U.S. Dum Fund v. United States,

anne

1

—

4 —

of any supervisory power it might otherwise have to

suppress respondent’s relevant and voluntary self-

testimony. Then in Part II, infra, we

show that, even assuming that those two Acts are

not controlling bere, the court abused its discretion in

invoking its #:vervisory power to exclude respond-

There was ao manifestly improper conduct by fed-

eral officials” ‘Lopez v. United States, supra, 373 U.S.

at 440) in this case, and suppression of respondent’s

allegedly perjurious testimony would have been an in-

appropriate remedy even if the warnings procedure

followed by the government had violated her constitu-

tional privilege against self-inerimination (United

States v. Wong, No. 74-635, decided May 23, 1977;

United States v. Mandujano, 425 U.S. 564). The court

acknowledged that the lack of uniformity occasioned

by the Strike Force attorney's failure to give re-

spondent a “target” warning violated none of respond-

ent’s rights, and in these circumstances the court’s

use of supervisory power in effect to immunize her

from trial on criminal charges was improper. More-

over, the court’s decision to punish the government

because one of its attorneys, unwittingly and without

bad faith, violated a practice of the United States

Attorney’s office will be more likely to discourage

prosecutors from voluntarily adopting policies that

confer benefits on suspects or defendants in criminal

cases than it will be to enforce uniform prosecutorial

practices.

nh? svat n tare * Ad es Aad | + eee

‘tee lhnen bee * a

Gel 5 en asd e

. ——

TRARY TO RUL® 402 OF rf

Rufe 402 of the Pederal Rules of Eeidenes provides:

by

by

— —

Respondent’s grand jury testimony was relevant to

both the charge of perjury and the charge of trans-

mitting a threat in interstate commerce. The court of

appeals did not rule that the Constitution, any Act of

Congress, any other Rule of Evidence, or any rule

promulgated by this Court pursuant to statutory

authority requited the exclusion of that testimony.

Her testimony therefore was admissible, and in our

view’ the court of apptals had no ‘power to-cuppress

it.

The court’s contrary ruling was based on its

erroneous belief that the enactment of the Federal

Rules of Evidence had no impact on the jtidiciary’s

stipetvisoty powers (Pet. App. 11A). Prior to the

enactment of those Rules, questions of admissibility

of evidence in criminal trials in the federal courts

were governed by Congress’ codification, in former

Rule 26 of the Federal Rules of Criminal Procedure,

— CRN PES SUNS CN, S8

U.S. 371." That Rule provided;

D

competency and of witnesses shall

be governed, except when an act of Congress or

these rules otherwise provide, by the principles

of the common law as they may be interpreted

by the courts of the United States in the light

of reason and experience.

To the extent that the federal courts’ super isory

power has been equated to the power to declare com-

mon law rules of evidence (e, Elkins v. United

States, supra, 364 U.S. at 216)—a power that exists

only in the absence of a relevant Act of Congress”

(Palermo v. United States, supra, 360 U.S. at 353, n.

11)—the new federal rules abrogated it entirely. The

purpose of the legislation was “to provide a uniform

code of evidence for use in Federal courts, and to

The Rules were initially promulgated by this Court pursuant

to its ing power under the Rules Enabling Acts (18 U.S.C.

8771, 3772, ; 28 U.S.C. 2072, 2075). They were enacted into

law as an Act of Congress (Pub. L. 93-595, 88 Stat. 1926) and

became effective on July 1, 1975. For a review of the background

of the see Wright and Graham, Federal Practice and Pro-

— N 5001-5007, pp. 1-118 (1977).

- _‘~a“mmu

2 520 0112] (1976).

make conforming amendments to * * the Federal

Rules of Criminal Procedure.” H.R. Rep. Ne. 93-650,

93d Cong., Ist Sess. 1 (1973). One of those conform-

ing amendments was the deletion of the above-quoted

sentence from Rule 26. In short, with the pasage of

the Rules of Evidence, the federal courts’ supervisory

power to elucidate the common law of evidence in

the light of reason and experience” came to an end.

It is true that the scope of the judieiary's super-

visory power has not been strictly limited to formulat-

ing common law rules of evidence (see pp. 10~11 and

n. 9, supra). Contrary to the court of appeals’ implicit

conclusion, however, it does not follow that, unless

Congress clearly manifests an intent to restrict or

nullify particular judicial supervisory powers, any

statute that it passes to govern practice in the federal

courts can be disregarded in favor of an inconsistent

exereise of such powers. ,

Congress chose the language of Rule 402 with care:

relevant evidence is to be excluded solely in those cases

where exclusion is mandated “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 added).

Having strictly limited this Court’s ability to fashion

Ibo language “pursuant to statutory authority” did not appear

in Rule 402 when it was first submitted to Congress. It was added

to make it clear that Congress henceforth considered itself the sole

source of authority for or amendment of uni form

rules of evidence for the federal courts. See H.R. Rep. No. 93-650,

supra, at 7.

17

rules excluding otherwise relevant evidence, Congress

plainly could not have intended to allow the courts

of appeals an unfettered “supervisory power” to ex-

clude evidence that the statute declares is admissible.”

n. RESPONDENT'S GRAND JURY TESTIMONY Was A “SELF-INCRIMINAT-

ING STATEMENT” AND WAS THEREFORE ADMISSIBLE UNDER 18

.. 3601

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

criminal prosecution in the federal courts a confes-

sion, which is defined to include “any self-incrim-

inating statement (Section 3501(e)), “shall be ad-

missible in evidence if it is voluntarily given” (em-

phasis added). Congress passed that statute as part

of the Omnibus Crime Control and Safe Streets Act

of 1968, 32 Stat. 210, principally in order to counter-

act what it perceived to be the deleterious impact on

“A colloquy between Congressmen Smith and Hutchinson

during the floor debates on the Rules clearly makes the point (120

Cong. Rec. 1413-1414 (1974)) :

“Mr. Hurcurmson. But so far as the codification itself is con-

cerned it would not be possible legally for a judge in any court to

provide a rule of evidence at variance with this modification. So

far as the codification reaches, it will be uniform throughout the

country. .

“Mr. Surrn of New York. I would say to the gentleman that is

correct. In many of the rules that we have proposed, the judges

have a certain amount of discretion as to whether to allow evidence

in or out depending upon the cases as outlined in the codified rule.

“It would be my answer that a judge would not be able to hold

adversely to the codified rules of evidence and that the only way

those could be changed would be through further legislation. In

the event that some rule turns out in practice to be one that reason-

able people would agree ought to be changed, it would be subject

to further legislation for amendment.”

law enforcement of this Court’s exclusion of confessions

in McNabb v. United States, 318 U.S. 332, Mallory v.

United States, 354 U.S. 449, and Miranda v. Arizona,

384 U.S. 436. See S. Rep. No. 1097, 90th Cong., 2d

Sess, 37-51 (1968) ; * United States v. Marrero, 450 F.

2d 373 (C.A. 2); United States v. Halbert, 436 F. 2d

1226 (C. A. 9). Noting that I vjolunthry confessions

have been admissible in evidence since the early days

of our Republic“ and that t Ihese inculpatory state-

ments have long been recognized as strong and con-

vineing evidence—often called the best evidence of

guilt” (S. Rep, No. 1097, supra, at 38), Congress in-

tended Section 3501 to assure It Ihe traditional right

of the people to have their prosecuting attorneys place

in evidence before juries the voluntary confessions

and incriminating statements made by defendants

„„ (id. at 37).

The court of appeals ruled that Section 3501 is in-

applicable to this ease because, in its view (Pet. App.

10A-11A ), respondent’s allegedly perjurious denial of

the threatening telephone call was neither a “confes-

sion” nor a “self-incriminating statement. We con-

cede that respondent’s testimony was not a confession

in the commonly understood sense of an advertent,

public deelaration to the authorities by the accused of

his or her own wrongdoing, The expression “self-in-

* Since McNabb was decided by the Court in the exercise of its

supervisory powers (see 318 U.S. at 341-842), Congress was con-

fident of its authority to override that decision. See S. Rep. No.

1097, supra, at 40. Congress was less certain of its ability to over-

ride Miranda. See id. at 46-47, 50-51.

statement, nabe beste M düngüer

meaning than a “confession,” " For example, m

contrast to confessions, “self-ineriminating state-

ments are not limited to those that the speaker rec-

ognizes to be incriminating at the time they are made.

Respondent's false denials were in our view plainly

“incriminatory,” and they do not escape the reach of

Section 3501 simply because they also happened to

constitute the corpus delicti of her allegéd perjury.

Indeed, it is difficult to conceive of a statement more

self-incriminating than a lie told under oath to an

official who knows the truth of the matter.

The broad construction of “self-incriminating state-

ment” that we urge is in keeping with Congress’

intent in enacting Section 3501. As we noted above,

that statute was passed in response to this Court's

decision in Miranda v. Arizona, supra, which held

that, absent effective warnings regarding the Fifth

Amendment privilege against compelled self-incrim-

ination, any statements made by an accused during

eustodial interrogation would be inadmissible at trial.

The Court there refused to draw any distinction be-

tween inculpatory statements and statements alleged

to be merely ‘exculpatory’” (384 U.S. at 477), for it

was of the view that relevant statements made by the

i? Webster's Third New International Dictionary (1961) defines

“self-incrimination” te mean “the giving of evidence or answering

r ’‚FZf:. .

men

accused that the government would use to discharge

its burden of proving guilt “are incriminating in any

meaningful sense of the word” (ibid.). Congress’ use

of the term “self-incriminating’’ in Section 3501

should be given a meaning as broad as the term

was given in Miranda; there is no reason why a state-

ment should be considered “self-incriminating’’ for

purposes of Miranda’s exclusionary rule but not “self-

incriminating” for purposes of Section 3501's rule of

{missibility."

The Third Circuit has recognized that the courts

have no supervisory power to suppress voluntary con-

fessions in light of Section 3501. In United States v.

Crook, 502 F. 2d 1378 (C.A. 3), certiorari denied, 419

U.S. 1123, the court held that a defendant’s voluntary

waiver of counsel prior to questioning by federal

agents who knew he was yepresented by counsel on

pending, unrelated charges did not contravene Mas-

siah v. United States, 377 U.S. 201. The court then

“ Respondent's denials of guilt not only were perjurious but

also were evidence of her guilt on the charge against her of trans-

mitting in interstate commerce a threat to injure (see note 4,

supra), since false exculpatory statements are

evidence of guilty consciousness. See, e. g., United States v. Kahan,

415 U.S. 239; Wilson v. United States, 162 U.S, 613, 620-621;

United States v. Parness, 503 F. 2d 430, 488 (C.A. 2), certiorari

denied, 419 U.S. 1105; United States v. Merrill, 484 F. 2d 168, 170

(C. A. 8), certiorari denied, 414 U.S. 1077; United States v. Tager,

481 F. 2d 97, 100 (C. A. 10), certiorari denied, 415 U.S. 914;

United States v. Lompres, 472 F. 2d 860, 863 (C. A. 7), certiorari

denied, 411 U.S. 965. At the very least, then, the court of appeals

erred in ordering respondent’s grand jury testimony suppressed as

to this count.

21

considered and rejected the possibility of exercising

supervisory powers to create a rule adopting the pro-

hibition contained in the American Bar Association’s

Code of Professional Responsibility“ against inter-

rogation of a defendant in the absence of his or her

counsel. The court noted (502 F.2d at 1380) that the

Code provisions were enforceable ‘‘only under our

supervisory powers,” which are subject to the con-

trol of Congress.” Since Congress had decreed that

voluntary confessions shall be admitted, the court

recognized its lack of authority to formulate a con-

flieting evidentiary rule. We cannot,” said the court

(id. at 1381), in exercising merely supervisory

powers, disregard the congressional mandate of 18

U.S. C. § 3501 (a).“

The court below attempted to distinguish Crook on

the asserted ground that the Third Cireuit's holding

that the defendant’s constitutional rights had not been

violated made the subsequent discussion of Section

3501 and its limitation on the exercise of judicial

supervisory power mere dictum (Pet. App. 11A-12A).

But the eourt’s description of Crook only highlights

its resemblance to this case, where the court also

found that respondent’s statements were secured with-

out violation of any of her constitutional rights. The

court below further attempted to distinguish Crook

as involving “a real ‘confession’” (id. at 12A), but,

as we have shown, the distinction between inculpatory

„DK 7-104(A) (1) (Final Draft, July 1, 1969).

and facially exculpatory incriminating statements

is not material for purposes of Section 3501.

The Third Circuit followed Crook in United States

v. DiGilio, 538 F. 2d 972 (C.A. 3), certiorari denied,

429 U.S. 1038. There the court ruled (538 F. 2d at

985) that the government had misused grand jury sub-

poenas to facilitate investigatory interrogation of de-

fendants outside the grand jury’s presence; neverthe-

less, it held that under Section 3501 it “lacked any

supervisory authority to suppress” the defendant's

statements unless they were given involuntarily. The

court below sought to distinguish DiGilio on the sole

ground (Pet. App. 12A, n. 12) that it “involved no

question whether defendants are treated differently by

the Strike Force than the normal practice would re-

quire.“ We fail to see how this factual difference be-

tween the two cases can make Section 3501 applicable

to one but not the other.” Absent a determination that

respondent’s grand jury testimony was not voluntarily

* See also United States v. Anderson, 352 F. Supp. 33, 37, n. 10

(D. D.C.), affirmed, 490 F. 2d 785 (C. A. D. C.), in which the district

court ruled that, where no constitutional violation had tainted a

lineup procedure, 18 U.S.C. 3502 precluded the use of the court’s

supervisory power to exclude identification testimony by an eye-

witness to the crime. That statute, which, like Section 3501, was

enacted as part of the Omnibus Crime Control aad Safe Streets

Act of 1968, provides :

“The testimony of a witness that he saw the accused commit or

participate in the commission of the crime for which the accused

is being tried shall be admissible in evidence in a criminal prosecu-

tion in any trial court ordained aud established under article III

of the Constitution of the United States.” [Emphasis added.]

given, Section 3501 governs, and the court below had

no power—supervisory or otherwise—to suppress it.”

II

IF THE COURT OF APPEALS HAS SUPERVISORY POWER TO

SUPPRESS EVIDENCE SUCH AS RESPONDENT'S TESTIMONY,

IT ABUSED ITS DISCRETION IN EXERCISING IT IN THIS

CASE

1. If, contrary to the foregoing arguments, Rule 402

and Section 3501 do not preclude the exercise by the

court of appeals of any supervisory power it may

previously have possessed to suppress respondent’s

grand jury testimony in this case, then the propriety

of the court’s exercise of that power must he tested

according to the standards enunciated in Lopez v.

United States, 373 U.S. 427 (decided prior to

enactment of both statutes discussed above). There

* The court of appeals noted (Pet. App. 11A) that Section

3501(b) instructs the district court in determining voluntariness to

consider all of the circumstances surrounding the giving of any

statement by the defendant, including whether the defendant at

the time “knew the nature of the offense with which he was

charged or * suspected.“ The court then said (ibid.): “There

is no evidence that Mrs. Jacobs had such knowledge.” We take this

remark to be something other than a ruling by the court that

respondent’s allegedly perjurious denial was involuntary. Whether

she knew the nature of the offenses of which she was suspected, and

what effect the state of her knowledge may have had on the volun-

tariness of her grand jury testimony, were factual issues that were

not raised before or passed upon by the district court and that the

court of appeals presumably was not attempting to resolve in the

first instance.

2h

the Court refused to suppress lawfully obtained re-

cordings of a defendant’s face-to-face conversations

with an Internal Revenue Service agent whom he had

attempted to bribe. The Court observed that a court’s

supervisory power “to refuse to receive material evi-

dence is a power that must be sparingly exercised”

(id. at 440). In that case—as in this one—there was

no manifestly improper conduct by federal officials,“

and the Court ruled that the exercise of its supervi-

sory powers to suppress the recordings “would be

wholly unwarranted” (ibid.). The Court continued

(ibid.):

The function of a criminal trial is to seek out

and determine the truth or falsity of the charges

brought against the defendant. Proper fulfill-

ment of this function requires that, constitu-

tional limitations aside, all relevant, competent

evidence be admissible, unless the manner in

which it has been obtained—for example, by

violating some statute or rule of procedure—

compels the formulation of a rule excluding its

introduction in a federal court.

See also United States v. Nixon, 418 U.S. 683, 709;

Elkins v. United States, supra, 364 U.S. at 216; id.

at 234 (Franfurter, J., dissenting); Funk v. United

States, supra, 290 U.S. at 381; United States v.

Grimes, 438 F. 2d 395 (C. A. 6), certiorari denied,

402 U.S. 989; United States v. Jones, 433 F. 2d 1176,

1181-1182 (C. A. D. C.), certiorari denied, 402 U.S. 950;

United States v. Quarles, 387 F. 2d 551, 555-556 (C. A.

4), certiorari denied, 391 U.S. 922.

To the cautionary principles of Lopez must be

added this Court’s decisions in United State v. Man-

dujano, 425 U.S. 564, and United States v. Wong, No.

74-635, decided May 23, 1977. These cases established

that, whatever warnings regarding the constitutional

privilege against self-incrimination might be required

to be given to “putative defendants“ in general, the

absence of warnings is immaterial in a perjury

prosecution because ‘[o]ur legal system provides

methods for challenging the Government’s right to

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

States v. Mandujano, supra, plurality opinion, 425

U.S. at 577; concurring opinion of Mr. Justice Bren-

nan, id. at 585; concurring opinion of Mr. Justice

Stewart, id. at 609; quoting from Bryson v. United

States, 396 U.S. 64, 72). If a possible violation of a

grand jury witness’ constitutional rights is insufficient

to justify suppression of allegedly perjurious testi-

mony, it would seem especially difficult to justify the .

use of supervisory powers to impose the same sanction

where none of the witness’ rights has been violated.

In acting as it did, the court below has overridden

both the principles of Lopez and the policies that

sustained the perjury prosecutions in Bryson, Man-

dujano, and Wong. Cf. Lego v. Twomey, 404 US.

477, 488, n. 16.

The court erroneously believed that its result was

justified by the lack of uniformity in prosecutorial

practice created by the Strike Force attorney’s failure

to advise respondent of her status as a potential de-

fendant.” The court did not rule that any bt respond-

ent’s rights had been violated (Pet. App. 4A), and it

acknowledged that the government could legitimately

achieve uniformity by adopting a practice of never

giving “target” warnings in any case (id. at 3A, 6A,

14A). It believed that suppression was nevertheless

appropriate “to let our citizens know that equal

justice is available to all” (id. at 6A).

We do not question the value of consistency in

prosecutorial decisionmaking. But nonuniformity in

prosecutorial practice—provided it offends no statu-

tory or constitutional proscription—has never, to our

knowledge, been considered a sufficient cause to termi-

nate a prosecution. The Executive Branch has broad

discretion to carry out its constitutional mandate to

“take Care that the Laws be faithfully executed.”

United States Constitution, Article II, Section 3. See

United States v. Vicon, 418 U.S. 683, 693; United

States v. Cox, 342 F. 2d 167, 171 (C. A. 5), certiorari

denied, 381 U.S. 935; see generally Nixon v. Admin-

istrator of General Services, No. 75-1605, decided

June 28, 1977, slip op. 13-15. This discretion, which,

“ordinarily at least, is not subject to judicial review“

(Weisberg v. Departmnt of Justice, 489 F. 2d 1195,

1201 (C.A. D.C.) (en banc), certiorari denied, 416

U.S. 993), embraces such vital matters as plea bar-

22 It is now settled that the Constitution does not require that

“target” warnings be given to potential defendants called to testify

before the grand jury. U/nited States v. Washington, No, 74-1106,

decided May 23, 1977.

27

gaining, sentencing recommendations, grants of

testimonial immunity, and even the selective

enforcement of criminal laws, so long as the

prosecutor’s decisionmaking is not based upon imper-

missible considerations “such as race, religion, or

other arbitrary classification.“ Oyler v. Boles, 368

U.S. 448, 456. While Oyler was a state case, and the

Court thus was not addressing itself to the issue in

the context of supervisory power, the principles it

enunciated have been consistently applied in federal

cases as well. See, ¢.g., City of Milwaukee v. Sarbe, 546

F. 2d 693, 706 (C.A. 7); United States v. Jones, 527

F. 2d 817, 820 (C.A.D.C.); United States v. Cowan,

524 F. 2d 504, 507-509 (C. A. 5), certiorari denied, 425

U.S. 971; United States v. Mann, 517 F. 2d 259, 271

(C.A. 5), certiorari denied, 423 U.S. 1087; United

States v. Swanson, 509 F. 2d 1205, 1208 (C. A. 8);

United States v. Raven, 500 F. 2d 728, 733, n. 14 (C. A.

e rtiorari denied, 419 U.S. 1124; United States

v. Brown, 481 F. 2d 1035, 1042-1043 (C. A. 8); United

States v. Jones, 438 F. 2d 461, 467-468 (C.A. 7).

In Newman v. United States, 382 F. 2d 479, 481-

482 (C.A. D.C.), Chief Justice (then Judge) Burger

stated the position we urge:

An attorney for the United States, as any

other attorney, however, appears in a dual role.

He is at once an officer of the court and the

agent and attorney for a client; in the first

capacity he is responsible to the Court for the

manner of his conduct of a case, i.¢., his de-

meanor, deportment and ethical conduct; but

a

in his second capacity, as agent and attorney

for the Executive, he is responsible to his

principal and the courts have no power over

the exercise of his discretion or his motives

as they relate to the execution of his duty

within the framework of his professional em-

ployment. * * *

To say that the United States Attorney must

literally treat every offense and every offender

alike is to delegate him an impossible task; of

It is assumed that the United States Attor-

ney will perform his duties and exercise his

powers consistent with his oaths; and while

this discretion is subject to abuse or misuse

just as is Judicial discretion, deviations from

4

2

5

;

3

8

Target“ warnings are not constitutional ly (or

statutorily) required (United States v. Washington,

supra), and therefore the determination whether or

not to give them falls within the discretionary prose-

eutorial function. There is no suggestion here that

the Strike Force Attorney’s decision not to warn

motives, nor even that he was aware that his actions

were contrary to any policy of the United States

Attorney. There has been “no manifestly improper

conduct by federal officials” (Lopez v. United States,

supra, 373 U.S. at 440) im this case, and none of

respondent’s rights has been abridged. Yet the court

of appeals in effect has pardoned petitioner,” acting

out of an abstract interest in uniformity of prosecu-

torial performance and in plain disregard of this

Court’s twice-repeated caution (given in the context

of entrapment cases but no less relevant here) that

the federal judiciary does not sit to exercise ‘‘a ‘chan-

cellor’s foot’ veto over law enforcement practices of

which it dſoes] not approve.” Hampton v. United

States, 425 U.S. 484, 490 (plurality opinion), quoting

from United States v. Russell, 411 U.S. 423, 435.“

2. It makes no difference that the lack of uniform-

ity here was caused by the Strike Foree Attorney's

failure to follow a general policy already in existence.

* The court of appeals’ attempt to support its ruling that the

government in this case is not “entitled to the luxury of a perjury

count” (Pet. App. 7A) by pointing out that respondent remains

subject to prosecution for transmitting a threat in interstate com-

merce (ibid., id. at 14A) is in our view unavailing. The respond-

ent may have committed and may be convicted and punished

for another crime does not mean that the court of appeals has

avoided “allawing a possibly guilty person to escape” (id. at

6A-7A) punishment for the crime of perjury. In United States v.

Mandujano, supra, the pendency of charges for crimes other than

perjury was irrelevant (see 425 U.S. at 569, n. 2) ; it should have

been equally irrelevant here.

* Cf. United States v. Lovasco, No. 75-1844, decided June 9,

1977, slip op. 7 (Judges are not free, in defining ‘due process,’ to

impose on law enforcement officials our ‘personal and private no-

tions of fairness and to ‘disregard the limits that bind judges in

their judicial function.’ Rochin v. California |, 342 US. 165,

173}”) ; McNabb v. United States, supra, 318 U.S. at 347; Rea

v. United States, 350 U.S. 214, 218 (Harlan, J, dissenting).

The nonobservance of a discernible standard that is

intended to govern prosecutorial decisionmaking at

any of the numerous stages of the criminal process

where discretion must be exercised does not, in our

view, 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. Leahey, 434 F. 2d 7 (C.A. 1),

and United States v. Heffner, 420 F. 2d 809 (C. A. 4),

cited by the court of appeals in support of its result

(Pet. App. 5A-6A), were in our view wrongly de-

cided, for the reasons suggested by Judge Friendly

in another decision of the Second Circuit not cited

by the court below. See United States v. Leonard, 524

F. 2d 1076, 1089, certiorari denied, 425 U.S. 958." It

is unnecessary, however, for the Court in this case

to pass upon the correctness of Leahey and Heffner,

for they are distinguishable. Those decisions over-

turned convictions because the government had intro-

duced into evidence self-incriminating statements

made by the defendants during noncustodial inter-

views with Internal Revenue Service Agents who,

contrary to a generally available statement of policy

published by the IRS, had failed to precede the inter-

view with Miranda warnings. In the present case, by

contrast, the informal practice of giving “target”

* Leahey and Heffner: were followed in United States v.

Sourapas, 515 F. 2d 295 (C.A. 9), and United States v. Caceres,

545 F. 2d 1182 (C.A. 9), pending on petition for a writ of certio-

rari (No. 76-1308). In our petition in Caceres we have outlined

our reasons for believing this line of decisions to be incorrect.

31

warnings was neither published nor generally avail-

able; indeed, it was discernible to the court of appeals

only upon a poll by the court of all of the United

States Attorneys in the circuit, each of whom was

free under Department of Justice policy to adopt

such practice in this regard (including a practice of

proceeding on a case-by-case basis) as he wished.”

Thus, even assuming that Leahey and Heffner cor-

rectly state the law, those decisions are not authority

for holding the government to an informal practice

that exists only by virtue of its coincidental adoption

by six United States Attorneys.”

*The “guidelines” to which the court of appeals referred (Pet.

App. 5A) are those promulgated by the Attorney General to

govern the relationship between Strike Force attorneys (who oper-

ate under a commission from the Attorney General pursuant to 28

U.S.C, 515(a)) and the United States Attorneys. Those guidelines

provide generally that in grand jury proceedings the former “shal!

* * * operate under the direction of” the latter. See Office of the

Attorney General, Order No. 431-70 (reprinted in In re Sub-

poem of Persico, 522 F. 2d 41, 68-71 (C.A. 2)). The guidelines do

not require (or even mention) “target” warnings. Indeed, while

the Department of Justice is considering a revision of the United

States Attorneys Manual to require that “target” warnings be

given as a matter of course, there is no currently governing De-

partment policy regarding such warnings, and although in most

cases most United States Attorneys apparently give them, the

practice appears to vary among and sometimes even within United

States Attorneys’ offices.

* Leahey is also distinguishable from the present case because

it was based on a finding that the defendant's due process rights

had been violated by the interrogation (see 434 F. 2d at 10-11),

whereas the court below specifically disavowed any const ifi

basis for its decision. Moreover, Leahey and like decisions did not

involve prosecutions for perjury.

22

3. The other cases relied upon by the court of

appeals also do not support its result. Indeed, United

States v. D’Angiolillo, 340 F. 2d 453 (C. A. 2), certio-

rari denied, 380 U.S. 955, favors our position. There,

flagrantly unlawful searches were made by federal

agents, but no evidence seized during those searches

was introduced at trial. The court, recognizing that

in the absence of a violation of any of the defendant’s

rights at trial the matter was principally one for the

Executive Branch, refused to exercise its supervisory

power to dismiss the indictment and instead directed

the United States Attorney to bring the unlawful

searches to the attention of the superiors of the agents

involved (id. at 456). In United States v. Toscanino,

500 F. 2d 267, 276 (C. A. 2), the court, refusing to

follow Frisbie v. Collins, 342 U.S. 519, stated that it

could, in the exercise of supervisory powers, direct

the district court to refuse to accept jurisdiction over

a defendant if it were shown that his presence was

secured by patently illegal conduct by federal agents.

In United States v. Estepa, 471 F. 2d 1132, 1136 (C. A.

2), the court exereised its supervisory powers to re-

verse a convietion and order an indietment dismissed

because the United States Attorney had failed to

heed numerous admonitions from the court regarding

the unnecessary reliance on hearsay evidence before

the grand jury and the desirability of apprising the

grand jury of the hearsay nature of the evidence

presented.

Without debating the propriety of the claim

of supervisory power in Toscanino or its exer-

cise in Este pa,“ it is enough to say that in the present

case the government neither broke the law nor dis-

regarded repeatedly announced judicial preferences.”

We disagree with the court of appeals that in this case it “did

not go as far as [it] did in” Este pa. The government was free to

reindict the defendants in Astepa upon presentation of direct evi-

dence to the grand jury. See 471 F. 2d at 1137. Here respondent

escapes prosecut ion for perjury. ’

The Allen charge — cited by the court below (Pet. App.

10A) represent exercises by the courts of appeals of supervisory

control over matters of judicial administration. See, ¢.g., United

States v. Thomas, 449 F.2d 1177, 1186-1187 (C. A. D.C.) (“We have

predicated our decision on the needs of judicial administration

„%, The traditionally broad supervisory powers of the courts

of appeals over the conduct of the district courts (see Cupp v.

Naughten, 414 U.S. 141, 146; La Buy v. Howes Leather Co., 352

U.S. 249, 259-260) - powers that we do not challenge—are largely

irrelevant to the question whether and under what circumstances

the courts of appeals possess and should exercise like powers over

conduct of the Executive Branch occurring outside the context of

a trial. ,

United States v. Dooling, 406 F. 2d 192 (C.A, 2), also cited by

the court below (Pet. App. 10A), is another example of court of

appeals control over the district court, That case, rather than sup-

porting the disruption of criminal prosecutions through the ex-

ercise of broad and vaguely defined supervisory powers over

prosecutorial conduct, reflects the limited nature of the judicial

power to interfere with criminal prosecutions. There the court of

appeals by mandamus directed the district court not to enter an or-

der dismissing an indictment after the jury had returned a verdict

of guilty. The court noted that the proposed dismissal was not

based upon any power conferred upon the district court by the

Federal Rules of Criminal Procedure (406 F. 2d at 196) or upon a

ing by the district court that any of the defendants’ rights had

l violated, but rather upon the district court’s “vague and un-

su tiated doubts” about the fairness of the trial (id. at 197).

In circumstances the court of appeals ruled that the pro-

posed dismissal “would interfere seriously with the proper prose-

cution of criminal cases in the federal courts” (id. at 198) and

exercised its supervisory power to prevent “gross disruption in the

However abstractly meritorious the court of appeals’

goal of “bring[ing] the Strike Force and the United

States Attorney to closer harmony” (Pet. App. 14A),

it did not justify the court’s use of its supervisory

power to place respondent beyond the reach of

prosecution for perjury simply because of an isolated

departure from an informal prosecutorial practice

not required by the Constitution, statute, or rule.

4. The premise of the court of appeals’ use of the

“didactic” sanction of suppression was that it would

foster uniformity of prosecutorial practice. In our

view, however, the court’s decision will tend less to

encourage uniform prosecutorial practice than to

discourage adoption by the Executive Branch

of formal policies or informal practices con-

ferring upon suspects or defendants benefits

not required by the Constitution or statute.” Occa-

administration of criminal justice” (ibid.). In the present case,

by contrast, the court of appeals itself has “interfere[{d] seriously

with the proper prosecution” of a criminal case.

There are many examples of such voluntarily adopted prac-

tices, some meant to be of uniform application, others meant

to be effected on a case-by-case basis: interrogations of

subjects of criminal tax investigations are preceded by advice

of the nature of the inquiry and by administration of modified

Miranda warnings, even though the questioning is noncustodial ;

except in special cases, individuals tried for state offenses are not

subjected to federal prosecution for offenses arising from the same

transaction, although there would be no double jeopardy bar to

such prosecutions; defense attorneys in criminal cases are often

permitted access to prosecutorial files, although there may be no

constitutional] or statutory obligation to disclose the materials, and

are supplied with Jencks Act material in advance of the time dis-

closure is required by statute; and grand jury witnesses are given

_ sional departures from such policies and practices are

virtually inevitable, given the number of prosecutors

employed by the government and the volume and

complexity of criminal litigation it is their duty

to conduct. The remedy for such departures

is in our view a matter for the Executive

Branch. When the judiciary imposes sanc-

tions that the executive believes to be excessively

harsh—as in this case—then the result must be to

prompt a reevaluation of the benefits and costs that

attach to the policy in question. We do not suggest

that the decision below will result in wholesale repudi-

gation of policies favorable to suspects that have here-

tofore been voluntarily adopted by the government,

but it will tend in some degree to encourage ad hoc

prosecutorial practices rather than implementation of

otherwise desirable across-the-board policies.

Moreover, the court of appeals’ expansive view of

its power to control what we consider to be discretion-

ary prosecutorial conduct may add significantly to

the burdens of the judiciary. Each of the many fed-

eral prosecutors is constantly called upon to make

discretionary decisions in the discharge of his or her

responsibilities. Charges of nonuniform practice will

be relatively easy to make, and, if they are cognizable,

advice of rights or “target” warnings even though such warnings

are not compulsory. :

Comparable practices exist in the civil context. For example,

prisoners facing possible transfer to another institution may be

afforded an opportunity for a hearing that due process does not

require; and government documents are disclosed even when not

required by the Freedom of Information Act.

then the courts are likely to become embroiled in diffi-

cult, time-consuming and, we submit, inappropriate

oversight of the day-to-day operations of the United

States Attorneys and the Department of Justice.

Tis Soltis e Gs the We ee ee

reversed.

Respectfully submitted.

Wane H. Mens, Jr.,

Solicitor General.

BEenJAMIN R. CrviLett!,

Assistant Attorney General.

Wurm F. SAN, III,

Assistant to the Solicitor General.

JEROME M. Fert,

KATHERINE WINFREE,

Attorneys.

Aveust 1977.

U.S. COVERNEERT PRINTING OFFICE, 1977

f°