United States v. Patrick J. Scully , 225 F.2d 113 ( 1955 )

MEDINA, Circuit Judge.

The evidence disclosed a well-implemented scheme, in continuous operation for many months, to defraud the government in the purchase of stationery supplies and printing for use in connection with the construction of North African air bases. Scully was purchasing agent for a joint venture of two engineering firms, Skidmore, Owings & Merrill, and Porter-Urquhart, which held a cost-plus-fixed fee contract with the government, and one Waldman, the other principal co-conspirator, was a stationery and printing supplier. The methods employed by these two, with the cooperation of several others, to circumvent the competitive bidding and other procedures designed to protect the government were many and various, including the giving of secret information enabling Waldman to put in the lowest bids, collusive bids, the use of “phony telephone bids” and numerous forgeries. There was also proof of substantial cash payments by Waldman to Scully over a considerable period of time.

Some of the rulings on matters of evidence are assigned as errors and it is claimed that the trial judge in his ■charge “twists the evidence” and that some of his remarks during the trial constituted “a method of evasion” to give the jury wrong impressions. The evidence points are of trivial consequence and we find no basis whatever for the charges levelled against the trial judge. But the appeal also brings up for review an order of Judge Goddard denying appellant’s motion to quash the indictment on the alleged ground that appellant had been subpoenaed to testify before the Grand Jury, that he did so testify and that although the “authorities had already marked the defendant for prosecution, intended to indict him and were engaged in bringing his indictment about,” he was nevertheless not “advised of his constitutional right against self-incrimination.” It would be a sufficient answer to this contention to state that it is far from clear on this record that appellant was marked for prosecution, or that the prosecution was aimed at him or that he was, at the time he testified, in any sense accused of the crime subsequently charged against him.¹ Nor does it appear that he was unaware of his rights or that, had he been warned, he would not have testified as he did. Indeed, he testified without demur, consulted a lawyer and then voluntarily gave further testimony before the Grand Jury.

The question, however, is an interesting and important one, on which there appears to have been no definitive ruling by this court, and Judge Goddard’s decision, 119 F.Supp. 225, following a line of eases decided by District Judges in this Circuit, and others, was based upon a distinction between the rights of a party, on the one hand, and those of a witness on the other. In other words, it has been held by various District Judges in this Circuit that until a formal charge is openly made against the accused, either by indictment presented or information filed in court or by complaint before a magistrate, there is no violation of constitutional right by eliciting testimony from a person called before a Grand Jury and not previously warned or advised that he has a constitutional right to refuse to answer questions, the answers to which may incriminate him. United States v. Klein, D.C.S.D.N.Y.1954, 124 F.Supp. 476; United States v. Kimball, C.C.S.D.N.Y. 1902, 117 F. 156; cf. United States v. Lawn, D.C.S.D.N.Y.1953, 115 F.Supp. 674. See also United States v. Miller, D.C.E.D.Pa.1948, 80 F.Supp. 979; United States v. Wilson, D.C.Del.1942, 42 F.Supp. 721; United States v. Benjamin, 2 Cir., 1941, 120 F.2d 521; Mulloney v. United States, 1 Cir., 1935, 79 F.2d 566; United States v. Wetmore, D.C.W.D.Pa. 1914, 218 F. 227.

We think this distinction may be artificial and unsound. It apparently stems from an effort to analogize the rights of witnesses and parties appearing before a Grand Jury to those of witnesses and parties at a criminal trial. The reasoning appears to be: Since upon a trial, a defendant, as distinguished from a witness, may not be called by the prosecution, and takes the stand only if he chooses to do so, similarly, before a Grand Jury, a person already indicted or against whom a criminal information or complaint has previously been filed should not be called and asked any questions, unless he evinces a willingness to be a witness and to waive his right to refuse to give self-incriminating testimony. It is concluded that there can be no effective waiver unless such a “defendant” has been informed of his rights and hence understands what he is doing, United States v. Lawn, supra, cf. Mul-loney v. United States, supra, whereas, a mere witness, who may be called upon to testify at a trial without regard to his wish in the matter, may similarly be called to testify before a Grand Jury, and need not be formally warned but must assert his Fifth Amendment privilege, if he chooses to avail himself of its protection, just as he would at a trial, by asserting it as the basis for his refusal to answer specific questions.

Upon closer examination, however, it becomes apparent that the principle which underlies the rule that the defendant in a criminal trial may refrain even from being sworn as a witness, has no application to proceedings before a Grand Jury. See United States v. Benjamin, supra, 120 F.2d at page 522.

As many of us learned for the first time when reading Dickens’ Pickwick Papers, parties, including a defendant in a criminal case, were not competent to testify at common law, although in treason cases, and perhaps others, a defendant was sometimes permitted to make an unsworn statement. To trace the general statutory pattern in the various states which marks the jettison of this ancient folly would be a mere display of learning, and of little assistance in the solution of the problem before us. Suffice it to say that the present federal statute provides that “the person charged shall, at his own request, be a competent witness”, 18 U.S.C.A. § 3481; and this continues in force earlier enactments which removed a defendant’s incapacity to testify in his own defense in a criminal case, but left the choice to him. See Brown v. United States, 9 Cir., 1932, 56 F.2d 997. As is commonly the case, there was a reason for the particular wording of this enabling act, and this reason is to be found in the Fifth Amendment. “The purpose of the law was to make defendants competent witnesses, but at the same time preserve to them the right to remain silent without prejudice.” Wolfson v. United States, 5 Cir., 1900, 101 F. 430, 436, certiorari denied, 1901, 180 U.S. 637, 21 S.Ct. 919, 45 L.Ed. 710. This led to the rule that a defendant may not be called as a witness by the prosecution, for if he were sworn and thus forced in open court to refuse to answer questions on the ground that the answers might incriminate him, the “option of refusal,” to which Professor Wigmore alludes,² would be diluted. It would be difficult thereafter to take effective steps to prevent a jury, charged with the responsibility of determining the guilt or innocence of the accused, from inferring guilt from the assertion of the constitutional privilege. The result thus arrived at avoids, as it should, any encroachment upon the rights guaranteed by the Fifth Amendment. See Wolfson v. United States, supra.

These considerations do not apply to the inquisitorial proceedings of a Grand Jury. Such a body is not charged with the duty of deciding innocence or guilt and, for this reason, its proceedings have never been conducted with the assiduous regard for the preservation of procedural safeguards which normally attends the ultimate trial of the issues. Thus, in such proceedings, there is no right to counsel, no right of confrontation, no right to cross-examine or to introduce evidence in rebuttal and ordinarily no requirement that the evidence introduced be only such as would be admissible upon a trial. See United States v. Costello, 2 Cir., 1955, 221 F.2d 668.

If, as and when the question, whether the bundle of rights in the Fifth Amendment includes that of a defendant, already charged as by indictment, to a warning when subsequently called to testify before a Grand Jury, is squarely before us, it seems not unlikely that reasons other than the distinction between parties and mere witnesses, above referred to, may convince us that, under certain circumstances or absolutely, a warning is required. We do not now say that it is not, but only that this court has not ruled on the point.

It is at least clear that a prudent prosecutor, to forestall the possibility of error, will in such cases give a warning. Indeed, one would suppose that, as a matter of ethics or fair play or policy, a prosecutor would in all cases refrain from calling as a witness before a Grand Jury any person who is de jure or de facto an accused. The absence of appeals to this court involving the problem under discussion would seem to indicate that some such rule or practice is observed in the prosecutors’ offices in this circuit.

And so we now hold that the mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a Grand Jury. We shall decide other cases as they arise.

Affirmed.

1 . In his affidavit submitted in support of the motion to quash the indictment defendant asserted that in the course of his interrogation before the Grand Jury he was asked what he would say if he were told that it had been testified before the Grand Jury that on at least twenty occasions he had ordered bids to be rigged, and that he was also asked to explain deposits in bis bank account of $4000 more than be bad earned. Whether or not these questions were answered does not appear. But both at the time of his first appearance and again later, after he had consulted a lawyer, defendant asserted his complete innocence of any wrongdoing.

2 . Wigmore, Evidence, § 2268 (3rd Ed. 1940).