United States v. Kennedy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4917
ROBERT KENNEDY, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-02-56)
Argued: January 21, 2004
Decided: June 24, 2004
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the majority
opinion, in which Judge Shedd joined. Judge Michael wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Randy Virlin Cargill, MAGEE, FOSTER, GOLDSTEIN
& SAYERS, P.C., Roanoke, Virginia, for Appellant. Joseph William
Hooge Mott, Assistant United States Attorney, Roanoke, Virginia, for
Appellee. ON BRIEF: John L. Brownlee, United States Attorney,
Brian Samuels, Third Year Law Intern, Roanoke, Virginia, for Appel-
lee.
2 UNITED STATES v. KENNEDY
OPINION
WILKINSON, Circuit Judge:
Appellant Robert Kennedy, Jr. was convicted in August 2001 of
drug trafficking in Virginia, and he was sentenced to 420 months’
imprisonment. While his conviction was pending appeal, Kennedy
was brought to testify on two separate occasions before a grand jury
that was investigating drug and money laundering activities in the
Danville, Virginia area. He was subsequently indicted for perjury
based upon his testimony. He filed a pre-trial motion to suppress his
perjurious statements, claiming that they were obtained in violation of
his Fifth and Sixth Amendment rights and were the result of prosecu-
torial misconduct. The district court rejected his claims, and a jury
convicted Kennedy of four counts of perjury.
On appeal, Kennedy contends primarily that the district court erred
in denying his constitutional claims for suppression. We hold that his
remedy for any Fifth or Sixth Amendment violations does not encom-
pass exclusion of his false testimony from his perjury trial. Courts
cannot condone perjury as a self-help remedy against constitutional
violations. See United States v. Mandujano, 425 U.S. 564, 576-77,
582-83 (1976) (plurality opinion). In addition, there was insufficient
evidence here of prosecutorial misconduct amounting to a deprivation
of due process. Kennedy’s testimony was therefore admissible at his
prosecution for perjury, and we accordingly affirm the district court’s
judgment.
I.
A Virginia jury convicted Kennedy of two counts of distributing
cocaine base, and one count of conspiring to distribute five kilograms
or more of cocaine and fifty grams or more of cocaine base. Kennedy
filed a notice of appeal from his conviction on January 23, 2002.1
1
A panel of this Court later affirmed Kennedy’s drug conviction and
sentence on September 23, 2002. See United States v. Robert Kennedy,
Jr., No. 02-4072 (4th Cir. Sept. 23, 2002).
UNITED STATES v. KENNEDY 3
While his appeal was pending, on February 19, 2002, Assistant
United States Attorney Joseph Mott had Kennedy brought before a
grand jury sitting in Roanoke, Virginia. The focus of the grand jury
investigation, according to the United States, was to probe drug traf-
ficking and money laundering offenses in the Danville, Virginia area.
The specific purpose of Kennedy’s appearance was to elicit informa-
tion about other individuals dealing drugs in Danville, and about cer-
tain land transactions in which Kennedy was involved. According to
the United States, Kennedy was not a target of the investigation. Mott
claims that he notified Kennedy’s trial attorney, Christopher Kowal-
czuk, that Kennedy would appear before a grand jury on February 19.
Kowalczuk did not show up for the proceeding, however, and Ken-
nedy disputes whether Mott ever notified Kowalczuk of the grand
jury appearance.
Before appearing in front of the grand jury on February 19, Ken-
nedy was first interviewed in the U.S. Marshal’s Office in the Roa-
noke federal building. Mott, Detective Thomas Merricks of the
Danville Police Department, and Sergeant T.L. Nicholson of the Pitt-
sylvania County Sheriff’s Office were present for the interview. Mott
began by advising Kennedy that "since he had been convicted of the
drug charges, . . . he did not have a right not to testify about those
charges" before the grand jury. However, Mott informed Kennedy
that he could refuse to discuss other matters for which he had not
been convicted. Mott also advised Kennedy that he could consult with
his attorney outside the presence of the grand jury before answering
any questions, but that his attorney could not enter the grand jury
room with him. Mott told Kennedy about the grand jury proceeding
and about the oath, and he made clear that any material false state-
ments under oath constituted the crime of perjury. Upon completing
these instructions, Mott left the room.
After Mott’s departure, Kennedy told the remaining officers that he
"would never talk about [his connections] before the grand jury and
that he would just pull his 35 years." The officers did not give Ken-
nedy any Miranda warnings, but continued to question him about
who "he dealt with." During the course of further interrogation, Ken-
nedy identified a number of individuals from whom he had bought
drugs, to whom he had sold drugs, or with whom he had conducted
land deals. Throughout the discussion, according to Merricks, Ken-
4 UNITED STATES v. KENNEDY
nedy repeated several times that "he didn’t want to talk" before the
grand jury and that he would just serve his time.
When Kennedy appeared before the grand jury, Mott addressed
him once again. Mott stated that "now that you’ve been convicted and
sentenced, do you understand that you don’t have the right to refuse
to answer any question about the events that you’ve already been con-
victed of?" Mott clarified that "because you’ve been tried and con-
victed . . . in the drug case, on the indictment[,] . . . I’m telling you
that you’ve lost your Fifth Amendment right not to testify about those
events charged in the indictment." Mott stated, however, that "if there
were other offenses, anything you say could be used against you."
Mott again told Kennedy that although his attorney could not be pres-
ent in the grand jury room, Kennedy could consult with him outside
the room before answering any question. Finally, Mott reminded Ken-
nedy that he was under oath, and he made clear that "any material
false statement under oath constitutes the crime of perjury." Kennedy
acknowledged that he understood these rights.
Mott then questioned Kennedy about his involvement with drugs,
specifically probing Kennedy’s sales of cocaine powder. Kennedy
admitted selling cocaine to various people, including Ruth Guy,
Wayne Huffman, and Bobbi Brandon. When asked about the sources
of his drugs, Kennedy requested to speak with counsel. Mott passed
over that subject and inquired instead about Kennedy’s involvement
with certain land transactions. After extensive questioning on this
topic, Kennedy again requested to speak with counsel. Mott therefore
excused Kennedy from the hearing, saying that he would continue
Kennedy’s appearance until next month and that he would "make
arrangements for" Kennedy’s attorney to be there.
One month later, on March 19, 2002, Mott again had Kennedy
brought before the grand jury in Roanoke. Officers again began by
questioning Kennedy in the U.S. Marshal’s Office. Mott, Merricks,
Nicholson, Special Agent Montie Blakey, and Special Agent Rick
Elgin of the state police were present. Once again, Mott advised Ken-
nedy that he had no Fifth Amendment privilege as to the events for
which he had already been convicted, and at no time was Kennedy
read Miranda warnings. When questioned by the investigators, Ken-
nedy reiterated his desire not to talk to the grand jury, and he claimed
UNITED STATES v. KENNEDY 5
not to remember anything about his February 19 testimony. Accord-
ing to the notes prepared by Blakey, Kennedy asserted that "he did
not know anything and just wanted to do his time. . . . [W]hen asked
about information he gave at an earlier interview, [Kennedy] advised
he didn’t remember." Kennedy’s new attorney, Randy Cargill, who
had become counsel on March 14, 2002, was not present. According
to Cargill, neither he nor Kennedy’s former counsel, Kowalczuk, was
ever notified of the March 19 grand jury appearance, and neither was
present for it.
Once before the grand jury, Mott informed Kennedy that he had
lost "the right not to incriminate [him]self as to those matters of
which [he’d] been convicted," but he clarified that Kennedy could
refuse to testify about "new crimes or other matters . . . than the
events charged in [the] indictment." Kennedy acknowledged that he
had met with his former attorney, Kowalczuk, since his last appear-
ance on February 19. Mott then reminded Kennedy that he still had
the right "to consult with an attorney [outside the presence of the
grand jury] prior to answering any question." Finally, Mott told Ken-
nedy again that he was under oath, and "the legal significance of that
is that any material false statement under oath constitutes the crime
of perjury."
Mott then began questioning Kennedy. He asked whether Kennedy
had sold drugs to the individuals whom Kennedy had named in his
February 19 appearance, but Kennedy stated that he did not remember
selling to any of them. Indeed, Kennedy claimed that he could not
remember ever buying or selling drugs in Danville. During this
exchange, Mott reminded Kennedy about his oath and the conse-
quences of making false statements, which included a "false claim of
no memory," and he clarified that Kennedy had no condition that
would affect his memory. Mott then inquired extensively about the
land transactions to which Kennedy had previously testified. Mott
concluded the proceeding by reminding Kennedy again about the con-
sequences of giving false testimony, and he gave Kennedy a last
chance to change his testimony. Kennedy refused, however, and Mott
excused him.
On May 21, 2002, Kennedy was indicted on four counts of perjury
before the grand jury on March 19, and one count of perjury before
6 UNITED STATES v. KENNEDY
the grand jury on February 19. Count 1 was based on allegedly false
statements Kennedy made on March 19 that related to his general
drug activities, but the district court dismissed this count due to a lack
of evidence of falsity. Counts 2, 3, and 4 stemmed from alleged
inconsistencies between Kennedy’s testimony on February 19 and his
testimony on March 19. Specifically, Kennedy admitted on February
19 that he had sold drugs to Ruth Guy, Wayne Huffman, and Bobbi
Brandon, but he stated on March 19 that he could not remember sell-
ing drugs to any of them. Count 5 involved Kennedy’s February 19
testimony relating to a land deal, which the government claimed was
false on its own terms.
Before trial, Kennedy moved to suppress the statements he made
prior to and during the grand jury hearing. He argued that they were
obtained in violation of his Fifth and Sixth Amendments rights, and
that Mott had engaged in prosecutorial misconduct. On September 26,
2002, the district court denied Kennedy’s motion. It held that
although Mott had wrongly advised Kennedy that he had no right to
remain silent about subjects relating to his drug conviction, this viola-
tion did not require suppression of Kennedy’s statements at the per-
jury trial. The court also rejected Kennedy’s claims that his right to
counsel was violated during the grand jury proceeding, or that Mott
had committed prosecutorial misconduct.
At trial, the jury was presented with transcripts of Kennedy’s grand
jury testimony on February 19 and March 19, 2002, as well as testi-
monial evidence from Detective Merricks and Special Agent Blakey,
among others. On October 1, 2002, the jury convicted Kennedy of
four counts of perjury, and the district court later sentenced him to 30
months’ imprisonment.
II.
Kennedy’s primary contention on appeal is that his perjurious testi-
mony should have been suppressed because it was obtained in viola-
tion of his Fifth Amendment right against self-incrimination and his
Sixth Amendment right to counsel. Alternatively, Kennedy argues
that these violations constituted prosecutorial misconduct amounting
to a denial of due process. We address Kennedy’s arguments in turn.
UNITED STATES v. KENNEDY 7
Kennedy first asserts infringements of his Fifth and Sixth Amend-
ment rights. Kennedy argues that while his drug conviction was pend-
ing appeal, he retained his privilege against self-incrimination and his
right to counsel as to those events forming the basis of his conviction.
Since he was both interrogated by detectives and questioned before
the grand jury about his drug conviction in the absence of counsel, he
asserts that the resulting statements should be inadmissible for any
purpose.
As an initial matter, we note that the United States has not
attempted to use any of Kennedy’s statements from the pre-grand jury
interviews. Nor could the United States have used these statements in
Kennedy’s trial for perjury, since Kennedy was not under oath during
the interviews. Consequently, the violations alleged to have occurred
during these pre-grand jury interviews are irrelevant to Kennedy’s
claims that the grand jury transcripts should be suppressed under the
Fifth and Sixth Amendments. We therefore focus here only upon the
alleged constitutional breaches during the grand jury appearances.2
A.
First, we agree with Kennedy that the government violated his
Fifth Amendment right against self-incrimination during the grand
jury proceeding. We have held in no uncertain terms that a defen-
dant’s right to invoke the Fifth Amendment as to events for which he
has been convicted extends to the period during which the conviction
is pending appeal. See Taylor v. Best, 746 F.2d 220, 222 (4th Cir.
1984); accord United States v. Duchi, 944 F.2d 391, 394 (8th Cir.
1991); Frank v. United States, 347 F.2d 486, 491 (D.C. Cir. 1965).
Because any post-conviction evidence could be used against a defen-
dant if his conviction were to be overturned, the risk of coerced self-
incrimination remains until the conviction has been affirmed on
appeal. See Taylor, 746 F.2d at 222. By misadvising Kennedy that he
had no right to refuse to answer questions relating to his drug convic-
tion before the grand jury, Mott thus violated Kennedy’s Fifth
Amendment rights.
2
The asserted violations of Kennedy’s constitutional rights during the
pre-grand jury interviews are relevant, however, for his due process
claim based on prosecutorial misconduct. See infra pp. 13-16.
8 UNITED STATES v. KENNEDY
Kennedy also alleges violations of his Sixth Amendment right to
counsel. The Sixth Amendment prohibits the government from delib-
erately eliciting incriminating evidence from an accused "after he
ha[s] been indicted and in the absence of his counsel." Massiah v.
United States, 377 U.S. 201, 206 (1964). This right to counsel
attaches upon the "initiation of adversary judicial criminal proceed-
ings — whether by way of formal charge, preliminary hearing, indict-
ment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682,
689 (1972). And the right to appointed counsel "extends to the first
appeal of right." Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
However, the right to counsel is offense specific. See McNeil v. Wis-
consin, 501 U.S. 171, 175 (1991). Thus, "incriminating statements
pertaining to other crimes, as to which the Sixth Amendment right has
not yet attached, are, of course, admissible at a trial of those
offenses." Maine v. Moulton, 474 U.S. 159, 180 n.16 (1985).
It is clear, as the district court found, that Kennedy had no right to
counsel for his perjury charges at the time he committed perjury,
since no formal proceedings had been initiated against him for those
charges. But it is equally clear that Kennedy had invoked his right to
counsel for his drug conviction at the time he testified before the
grand jury. Because Mott questioned Kennedy about the substance of
his drug conviction in the grand jury hearing, outside the presence of
counsel, it is at least arguable that he breached Kennedy’s Sixth
Amendment right to counsel. See, e.g., Brewer v. Williams, 430 U.S.
387, 401 (1977) ("[O]nce adversary proceedings have commenced
against an individual, he has a right to legal representation when the
government interrogates him.").
However, it is relevant that Kennedy was questioned before a
grand jury. The Supreme Court has stated that a grand jury witness
"cannot insist, as a matter of constitutional right, on being represented
by his counsel," even where the witness is a target of the investiga-
tion. In re Groban, 352 U.S. 330, 333 (1957); see also United States
v. Williams, 504 U.S. 36, 49 (1992). Indeed, some courts have held
that a grand jury witness who has an appeal pending from a prior
criminal conviction has no absolute Sixth Amendment right to have
counsel present inside the grand jury room. See In re Grand Jury Sub-
poena (United States v. McDougal), 97 F.3d 1090, 1093 (8th Cir.
1996); United States v. Schwimmer, 882 F.2d 22, 27 (2d Cir. 1989).
UNITED STATES v. KENNEDY 9
According to these courts, it is sufficient that a witness is allowed to
have an attorney present outside the grand jury room and to consult
with the attorney before answering any question. See McDougal, 97
F.3d at 1092-93; Schwimmer, 882 F.2d at 27. Here, Mott abided by
this procedure and advised Kennedy that he could consult with his
attorney outside the room before answering any question. And when
Kennedy invoked his right to speak with counsel during the hearing,
Mott appropriately respected it by stopping his line of questioning and
ultimately continuing Kennedy’s appearance for a month.
The parties have pointed us to no case from either the Supreme
Court or this circuit deciding the exact dimensions of a defendant’s
right to counsel (once attached) when appearing before a grand jury.
We need not define precisely the nature or extent of Kennedy’s right
to counsel here, however. It is clear that Kennedy’s Fifth Amendment
rights were violated. We are willing to assume, purely for purposes
of argument, that his Sixth Amendment right to counsel was also vio-
lated during the grand jury hearing, either by Mott’s alleged failure
to notify Kennedy’s counsel of the proceedings or by the simple fact
that Kennedy was subject to questioning about his drug conviction
pending appeal outside the presence of his counsel. See Massiah, 377
U.S. at 206.
B.
The principal question we must answer, then, is whether these
asserted violations of Kennedy’s Fifth and Sixth Amendment rights
require exclusion of his false statements before the grand jury. That
Kennedy’s rights were violated does not necessarily mean that his
remedy includes suppression of these statements from his perjury
trial. The distinction between rights and remedies, a classic feature of
our legal system, is particularly important in the context of the proce-
dural rights afforded to criminal defendants. The sweep of exclusion-
ary rules is far from absolute, as courts have found illegally obtained
evidence to be admissible for some purposes. See United States v.
Calandra, 414 U.S. 338, 348 (1974) ("As with any remedial device,
the application of the [exclusionary] rule has been restricted to those
areas where its remedial objectives are thought most efficaciously
served."). Therefore, though Kennedy’s rights were violated, we still
must determine the nature of the remedy to which he is entitled, and
10 UNITED STATES v. KENNEDY
specifically whether it includes prohibiting the government from
using his testimony for the purpose of establishing perjury.
We would not hesitate to find that Kennedy’s statements would be
inadmissible at any subsequent proceeding relating to his drug con-
viction. Mott and the detectives legitimately sought to investigate
drug and money laundering activities in Danville, and they reasonably
believed that Kennedy possessed information that was relevant to this
investigation. But they were not entitled to ignore Kennedy’s consti-
tutional rights in the process. See Maine v. Moulton, 474 U.S. 159,
179-80 (1985).
If it is plain that Kennedy’s statements would be inadmissible in
proceedings relating to his drug conviction, we are not prepared to
accept Kennedy’s more adventurous claim that his false statements
should be excluded from his prosecution for perjury. It is well estab-
lished that a defendant cannot immunize acts of perjury through sup-
pression of false statements that were taken in violation of the
defendant’s constitutional rights. See United States v. Mandujano,
425 U.S. 564, 576-78, 582-84 (1976) (plurality opinion); United
States v. Wong, 431 U.S. 174, 178-79 (1977). In Mandujano, a grand
jury witness claimed that his false statements before a grand jury
should have been suppressed from his perjury trial because he was
never read his full Miranda rights. See 425 U.S. at 569. Although the
Court was divided as to the exact nature of Mandujano’s constitu-
tional rights before the grand jury, the Court was unanimous that vio-
lation of those rights — whatever their nature — would not require
exclusion of his false statements at his perjury trial. See id. at 576-77,
582-84 (plurality opinion); id. at 584-85, 607-08 (Brennan, J., concur-
ring); id. at 609 (Stewart, J., concurring). Chief Justice Burger
declared for a plurality that "perjured testimony is an obvious and fla-
grant affront to the basic concepts of judicial proceedings." Id. at 576.
As such, he observed that the Court’s cases "have consistently —
indeed without exception — allowed sanctions for false statements or
perjury," even "where the perjurer complained that the Government
exceeded its constitutional powers in making the inquiry." Id. at 577.
Just one year later, in United States v. Wong, the Court reaffirmed
this signal principle. There, Wong was being prosecuted for perjury
based on her testimony before a grand jury, and she claimed that her
UNITED STATES v. KENNEDY 11
allegedly false statements should have been suppressed because she
effectively had not been warned of her Fifth Amendment privilege.
See 431 U.S. at 175-77. The Court, invoking the rule that "the Fifth
Amendment privilege does not condone perjury," held that the state-
ments were admissible at her perjury trial. Id. at 178-79. The Court
explained that although defendants may find themselves in situations
where they must choose between incriminating themselves with the
truth or lying, perjury is simply not an option. See id. at 178-80. "If
the citizen answers the question, the answer must be truthful." Id. at
180.
The Supreme Court has in a variety of contexts upheld this princi-
ple, applied in Mandujano and Wong, that a defendant may not have
his act of perjury excused, through suppression of evidence, because
of constitutional violations. See, e.g., Harris v. New York, 401 U.S.
222, 225 (1971) ("Every criminal defendant is privileged to testify in
his own defense, or to refuse to do so. But that privilege cannot be
construed to include the right to commit perjury."); Bryson v. United
States, 396 U.S. 64, 72 (1969) ("[I]t cannot be thought that as a gen-
eral principle of our law a citizen has a privilege to answer fraudu-
lently a question that the Government should not have asked. Our
legal system provides methods for challenging the Government’s
right to ask questions — lying is not one of them.").
No less unwavering has been this circuit’s commitment to the gen-
eral principle that perjury is an unacceptable response to asserted con-
stitutional violations. For example, we stated that a defendant accused
of committing perjury, though he could have invoked his Fifth
Amendment privilege, "had no right to provide false testimony under
oath. It is a stalwart principle of American jurisprudence that testify-
ing witnesses have two permissible choices. They can provide truthful
testimony or they can invoke the protections of the Fifth Amendment.
False testimony is not a permissible option." United States v. Sarihi-
fard, 155 F.3d 301, 308 (4th Cir. 1998) (citation omitted); see also
United States v. Shuck, 895 F.2d 962, 965 (4th Cir. 1990) ("[The
defendant’s] insistence that the prosecutor improperly questioned him
affords no justification for his falsehoods.").
Other circuits have invoked this principle specifically to deny
motions to suppress statements from a perjury prosecution that were
12 UNITED STATES v. KENNEDY
obtained in violation of a defendant’s constitutional rights. See, e.g.,
United States v. Bova, 350 F.3d 224, 227-28 (1st Cir. 2003) (denying
a motion to suppress testimony from a perjury prosecution over a
Sixth Amendment right to counsel objection, asserting that "defects
in the steps that may bring witnesses to the stand are not adequate rea-
son for tolerating the lies and foregoing punishment"); United States
v. Olmeda, 839 F.2d 1433, 1434-37 (11th Cir. 1988) (denying a
motion to suppress grand jury testimony from a perjury prosecution
because, even assuming that the witness’s right to have counsel pres-
ent was violated before the grand jury, "the failure of the government
to provide an attorney for her does not excuse perjury on her part");
United States v. Babb, 807 F.2d 272, 277 (1st Cir. 1986) (denying a
motion to suppress grand jury testimony from a perjury trial over a
Fifth Amendment challenge, stating that "the commission of perjury
does not fall within the protection afforded compelled self-
incriminating statements").
It is true, as Kennedy argues, that the actual holdings in Mandujano
and Wong were limited to the Fifth Amendment. We see no reason
to treat violations of the Sixth Amendment right to counsel any differ-
ently in this context, however. Lying under oath is no more of an
acceptable response to a violation of one’s right to counsel than it is
to a breach of one’s right to remain silent. In both instances, the
defendant’s remedy does not include the ability to immunize his false
testimony from a prosecution for perjury. This is especially true
because, as it has in the Fifth Amendment context, the Court has nar-
rowed the remedial scope of asserted Sixth Amendment violations.
See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (holding that the
right to counsel is offense specific); Moulton, 474 U.S. at 180 n.16
(holding that "incriminating statements pertaining to other crimes, as
to which the Sixth Amendment right has not yet attached, are, of
course, admissible at a trial of those offenses"). The use of a defen-
dant’s false statements in a trial for the separate offense of perjury is
consistent with the offense-specific nature of the Sixth Amendment.
Indeed, although the Court has not expressly applied the principle
of Mandujano and Wong to an asserted Sixth Amendment violation,
Justice Brennan stated in his concurrence in Mandujano that it was
unnecessary "to define the exact dimensions of [Mandujano’s] right
to counsel since the testimony obtained by the grand jury interroga-
UNITED STATES v. KENNEDY 13
tion was not introduced as evidence at [Mandujano’s] trial on the
charge concerning which he was questioned." 425 U.S. at 607-08.
Thus, he suggested that statements obtained in violation of the Sixth
Amendment could be used to establish perjury, just as he concluded
in the case of the Fifth Amendment. Moreover, the First Circuit has
recently applied the principle of Mandujano and Wong to reject a sup-
pression motion based on an asserted Sixth Amendment violation. See
Bova, 350 F.3d at 227-28.
In view of this authority, we conclude that Kennedy’s false state-
ments are admissible to prove that he committed perjury, even if they
were obtained in violation of the Fifth and Sixth Amendments. There
is no question that Kennedy was entitled to protest the infringement
of his rights. His remedy, however, was not to perjure himself and
expect immunity from prosecution. The act of perjury strikes at the
core of our system of justice: it pollutes the judicial process, and it
breeds disrespect for the sanctity of the oath and the imposition of
punishment. See Mandujano, 425 U.S. at 576-78. It is simply incom-
patible with the values underlying our criminal justice system that a
defendant can lie under oath in order to remedy perceived abuses of
his rights.
III.
Kennedy alternatively claims that the breaches of his Fifth and
Sixth Amendment rights constituted a violation of due process. The
Supreme Court recognized in Mandujano and Wong that a perjury
conviction should be overturned where the false statements were
induced by prosecutorial misconduct so unfair as to amount to a
denial of due process. See Mandujano, 425 U.S. at 583 (plurality
opinion); id. at 585 (Brennan, J., concurring); id. at 609 (Stewart, J.,
concurring); Wong, 431 U.S. at 179-80; see also United States v.
Shuck, 895 F.2d 962, 966 (4th Cir. 1990).
The basis for Kennedy’s due process claim is his assertion that
Mott and the detectives committed prosecutorial misconduct. In order
to establish prosecutorial misconduct, Kennedy must demonstrate that
Mott’s conduct was improper, and that this misconduct prejudicially
affected his substantial rights. See United States v. Derrick, 163 F.3d
799, 807-08 (4th Cir. 1998). We review the district court’s factual
14 UNITED STATES v. KENNEDY
findings for clear error and its legal conclusions de novo. See United
States v. Ellis, 121 F.3d 908, 927 (4th Cir. 1997).
There can be little question that Mott’s conduct was improper. As
we have held, Mott violated Kennedy’s Fifth Amendment privilege
by instructing him that he could not refuse to testify about a drug con-
viction that was on direct appeal. Moreover, while we have assumed
for purposes of argument that Mott violated Kennedy’s Sixth Amend-
ment rights in the grand jury proceeding, it is clear that his right to
counsel in the pre-grand jury interview was breached by questions
about his drug conviction outside the presence of his attorney. See
Massiah v. United States, 377 U.S. 201, 206 (1964).
In Kennedy’s view, these breaches severely prejudiced him. To
support this claim, Kennedy points to United States v. Doss, 563 F.2d
265, 278-79 (6th Cir. 1977), in which the Sixth Circuit suppressed a
defendant’s grand jury testimony because it was found to be the result
of prosecutorial misconduct amounting to a denial of due process.
Like the defendant in Doss, Kennedy asserts, he would not have testi-
fied before the grand jury but for the violations of his rights, and
therefore he would not have perjured himself. Thus, Kennedy argues
that his false statements should be suppressed.
We disagree. First, Doss is distinguishable from the present case.
In Doss, the grand jury witness had already been indicted for a sub-
stantive offense by the grand jury in front of which he was testifying,
but the prosecution concealed that fact from him. See 563 F.2d at 267.
The prosecutor then proceeded to question the witness about the sub-
stance of his offense. See id. at 271. The Sixth Circuit found that "the
government deliberately and purposefully employed the grand jury in
questioning an already indicted defendant about the crime for which
he was soon to be tried." Id. The Doss court’s holding rested upon its
view that the prosecutor abused the grand jury process by using it as
a mere discovery tool for obtaining evidence against the defendant.
See id. at 276-77.
Here, by contrast, there is no evidence that Mott questioned Ken-
nedy simply to further the government’s prosecution of Kennedy. The
government reasonably believed that Kennedy had information that
would be helpful to the grand jury’s investigation of other individuals
UNITED STATES v. KENNEDY 15
and crimes. See Shuck, 895 F.2d at 966. And Kennedy was not even
a target of the investigation. Thus, Doss provides no help to Kenne-
dy’s due process claim. See United States v. Schwimmer, 882 F.2d 22,
26 (2d Cir. 1989) ("Unlike Doss, we cannot conclude that the govern-
ment’s actions were taken for the impermissible purpose of gathering
evidence against the appellant-witness.").
Notably, in rejecting Kennedy’s claim, the district court found that
"there is no indication of trickery or deception on the part of the gov-
ernment." It observed that although Mott failed to abide by all of Ken-
nedy’s constitutional rights, he properly advised Kennedy about his
right to speak with counsel outside of the grand jury room. And Mott
appropriately respected Kennedy’s invocation of counsel by passing
over questions and ultimately by continuing Kennedy’s appearance.
The district court therefore concluded that Kennedy could not estab-
lish prosecutorial misconduct — a finding that the dissent neglects
even to mention.
Two additional factors are important here. First, Mott repeatedly
warned Kennedy that he was under oath and that lying would consti-
tute perjury. Mott even gave Kennedy the opportunity to correct his
testimony at the end of his March 19 appearance. It is abundantly
clear in light of all these warnings that Mott was not trying to trick
Kennedy into perjuring himself. See Shuck, 895 F.2d at 966. Second,
the fact that Kennedy consulted his attorney before his second grand
jury appearance — and prior to perjuring himself — further undercuts
his claim. Inherent in Kennedy’s due process argument is the notion
that the Fifth and Sixth Amendment violations were so pervasive that
they led him to perjure himself. This alleged "but-for causation,"
however, is difficult to maintain in light of the fact that Kennedy con-
sulted with his attorney prior to perjuring himself. See id. at 966-67.
In view of these facts, we agree with the district court’s finding that
there was no prejudicial prosecutorial misconduct. In Shuck, we held
that no such misconduct was present where the prosecutor responded
to a defendant’s invocation of his Fifth Amendment privilege in a
grand jury proceeding by badgering the witness with repeated ques-
tions about the subject matter for which the privilege was invoked.
See 895 F.2d at 966-67. The present case is less difficult to decide,
because Mott and the detectives, despite their incorrect assessments
16 UNITED STATES v. KENNEDY
of Kennedy’s rights, never badgered Kennedy or coerced him into
testifying. Suppression of false statements from a perjury trial under
a due process rationale — an exception to the general principle estab-
lished in Mandujano and Wong — should be a rare occurrence. Other-
wise, we risk subverting the sensible limiting principle to the
exclusionary rule by treating all violations of the Fifth and Sixth
Amendments as violations of due process. See United States v. Bova,
350 F.3d 224, 229 (1st Cir. 2003) ("Perhaps in some extreme situation
a prosecutor’s interference with the right to counsel might seem so
egregious and functionally related to the perjury as to provide an
arguable case for . . . a sanction [of exclusion]. . . . The naked perjury
in this case provides no encouragement to plough new ground."). In
short, Kennedy’s due process claim must fail.
IV.
Kennedy next argues that there was insufficient evidence for the
jury to find that his statements were material to the grand jury’s inves-
tigation. Although Kennedy’s drug distribution was not the focus of
the grand jury’s investigation, the fact that his statements bore on the
drug activities of three potential targets — and affected the grand
jury’s revelation of other parties involved in drug dealing in Danville
— made them material. His statements, in short, had the potential to
"impede the grand jury’s capacity to attain an accurate and prompt
resolution of the matter under consideration." United States v. Sarihi-
fard, 155 F.3d 301, 307 (4th Cir. 1998). We accordingly reject Ken-
nedy’s claim that there was insufficient evidence to establish
materiality.
V.
Kennedy’s final contention is that the district court erred in failing
to give a requested jury instruction on the defense of perjury entrap-
ment. We review a district court’s decision whether to give a jury
instruction for abuse of discretion. See United States v. Russell, 971
F.2d 1098, 1107 (4th Cir. 1992).
Kennedy attempted to assert a perjury entrapment defense, and he
requested a jury instruction to that effect. The defense of entrapment
applies where the government induces a person to commit a crime
UNITED STATES v. KENNEDY 17
and that person had no predisposition to engage in the criminal act.
See Mathews v. United States, 485 U.S. 58, 62-63 (1988). To estab-
lish inducement, a defendant must show that the "government acted
in an excessive manner that would prompt a reasonably firm person
to commit a crime." Sarihifand, 155 F.3d at 308. In the context of a
perjury charge, "entrapment occurs when a government agent coaxes
a defendant to testify under oath for the sole purpose of eliciting per-
jury." Id.
The district court rejected Kennedy’s request for a jury instruction
on perjury entrapment. It found that Mott had a legitimate purpose in
bringing Kennedy before the grand jury. It also noted that Mott made
every effort in the March 19 proceeding to get Kennedy to tell the
truth and that he repeatedly warned Kennedy throughout both appear-
ances of the consequences of perjury. Accordingly, the district court
concluded that there was no "evidence from [Kennedy] on which to
predicate an entrapment instruction." We find no reason to disturb this
ruling.
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
MICHAEL, Circuit Judge, dissenting:
Robert Kennedy, Jr.’s drug trafficking conviction was on appeal
when an Assistant United States Attorney (AUSA) forced him to tes-
tify before a grand jury about what he had done. Though it seems
incredible, the AUSA actually told Kennedy that he did not have a
Fifth Amendment right to refuse to testify in the grand jury about his
pending case. The AUSA then questioned Kennedy, who was still an
accused, in blatant violation of his Sixth Amendment right to counsel.
In all of this, the AUSA misused the grand jury because it had no
authority to interrogate Kennedy about his crimes while his case was
still pending. After Kennedy testified falsely in his second forced
grand jury appearance, he was prosecuted and convicted for perjury.
In the events leading up to the perjury prosecution, the AUSA flouted
18 UNITED STATES v. KENNEDY
Kennedy’s rights and abused the grand jury power to such a degree
that Kennedy was denied due process. I therefore respectfully dissent
from the majority’s refusal to order the suppression of Kennedy’s
grand jury testimony.
I.
The facts relating to the many violations of Kennedy’s constitu-
tional rights are worth repeating. Kennedy, who is now fifty-eight
years old, was subpoenaed to give post-conviction testimony before
the grand jury in February and March 2002; he had just been sen-
tenced to thirty-five years in prison on two counts of distributing
crack cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of
conspiracy to distribute more than five kilograms of cocaine and more
than fifty grams of crack in violation of 21 U.S.C. § 846. Kennedy
was being held in the Roanoke, Virginia, city jail, awaiting transfer
to federal prison. His appeal was pending, and he was represented by
counsel. Meanwhile, the investigation into the drug ring that Kennedy
had been a part of was continuing, and the government was interested
in learning more about the activities of his confederates. The AUSA,
who was in charge of the ongoing investigation and who had prose-
cuted Kennedy on the drug charges, knew that Kennedy’s conviction
was on direct appeal and that he was represented by counsel.
Despite this knowledge the AUSA twice brought Kennedy from
the Roanoke city jail to the federal building to be interrogated and to
testify before the grand jury about the very same conduct that led to
his conviction and pending appeal. Kennedy’s lawyer was not there
to assist him on either occasion. Right before each of Kennedy’s
grand jury appearances, drug task force officers — at the direction of
the AUSA — interrogated Kennedy in the U.S. Marshal’s office
about his offense conduct. Kennedy was not informed of his Miranda
rights on either occasion. Again, his lawyer was not present, even
though the officers also knew he was represented. Each pre-grand
jury interrogation session began with the AUSA giving Kennedy
wrong or misleading information about his constitutional rights. First,
the AUSA instructed Kennedy that he did not have a Fifth Amend-
ment right to refuse to testify about the conduct underlying his con-
victions that were on appeal. As the majority recognizes, this advice
was completely wrong and violated Kennedy’s Fifth Amendment
UNITED STATES v. KENNEDY 19
right against self-incrimination. See ante at 7. Second, the AUSA
gave Kennedy advice that was misleading and deceptive in the cir-
cumstances: the AUSA told Kennedy that he had a right to consult
with his lawyer outside the grand jury room. This advice would have
been correct only if Kennedy’s appeal had been concluded and his
conviction affirmed. Because Kennedy’s conviction was not yet final,
the AUSA should have told him that he had the right not to be put
before the grand jury to testify about his pending case unless he first
waived his right to counsel. During the interrogation sessions that pre-
ceded both of his grand jury appearances, Kennedy made it plain to
the officers that he did not want to talk. He said repeatedly that he did
"not want[ ] to testify before the grand jury" and that "he would just
pull his 35 years." J.A. 21, 23. Nevertheless, in the first interview the
officers were able to get quite a bit of information from Kennedy
about his drug dealing. Although the AUSA did not remain in the
room during the pre-grand jury interrogations, he knew that the offi-
cers would be questioning Kennedy about his offense conduct. And
the AUSA had access to the information gathered by the officers to
guide his questions of Kennedy in the grand jury.
At the start of each of Kennedy’s grand jury appearances, the
AUSA gave Kennedy the same erroneous and misleading advice he
was given prior to the sessions in the Marshal’s office. Kennedy was
told that he did not have the right to refuse to answer questions about
the offenses for which he had been convicted and that he only had a
right to consult his lawyer outside the grand jury room. The AUSA
then asked, and Kennedy answered, many questions about what he
had done to be convicted. The AUSA suspended the questioning in
Kennedy’s first appearance after Kennedy asked a second time to
speak to his lawyer. The AUSA said he would "make arrangements"
for Kennedy’s lawyer to be there for his next grand jury appearance.
J.A. 314. No such arrangements were ever made, however. Kennedy
did talk with his lawyer after his first appearance, but the record
reveals nothing about the substance of that conversation.
At his first grand jury appearance, Kennedy testified about the
cocaine transactions that led to his pending conviction, and he named
persons to whom he had sold drugs. When Kennedy was asked about
these transactions at his second grand jury appearance, he claimed
that he could not remember anything. This led to Kennedy’s indict-
20 UNITED STATES v. KENNEDY
ment on five counts of perjury (one count was dismissed). The district
court denied Kennedy’s motion, made on Fifth and Sixth Amendment
grounds, to suppress his grand jury testimony. Kennedy was then con-
victed of perjury and sentenced to an additional thirty months impris-
onment, to be served consecutively to his existing 420-month (thirty-
five year) sentence on the drug charges. Kennedy’s perjury conviction
is bottomed on nearly a dozen separate violations of his Fifth and
Sixth Amendment rights that occurred during the pre-grand jury and
grand jury interrogations. Specifically, Kennedy’s Sixth Amendment
right to counsel was violated each of the four times (two grand jury
appearances and two pre-appearance sessions) he was questioned out-
side the presence of his counsel about the conduct underlying his con-
victions. His Fifth Amendment right to be free of compelled self-
incrimination was violated each of the four times the AUSA incor-
rectly informed him that he had no right to refuse to testify about his
convictions. Kennedy’s Fifth Amendment rights were also violated
when he was not given Miranda warnings before each of his pre-
grand jury interrogation sessions. Finally, when the AUSA’s oppres-
sive acts, including his abuse of the grand jury process, are all put
together, they violate Kennedy’s right to due process under the Fifth
Amendment.
II.
A.
I will first discuss the significance of the Sixth Amendment viola-
tions, which the majority fails to recognize fully. If Kennedy’s Sixth
Amendment rights had been honored, he would not have been
brought before the grand jury in the first place. "The Sixth Amend-
ment guarantees the accused . . . the right to rely on counsel as a
‘medium’ between him and the [government]." Maine v. Moulton,
474 U.S. 159, 176 (1985). The right to counsel attaches at the begin-
ning of a criminal prosecution and continues through the first appeal
as of right. Massiah v. United States, 377 U.S. 201, 206 (1964); Penn-
sylvania v. Finley, 481 U.S. 551, 555 (1987); see also Taylor v. Best,
746 F.2d 220, 222 (4th Cir. 1984). An indictment, for example, trig-
gers the right to counsel, Michigan v. Jackson, 475 U.S. 625, 632
(1986), and thereafter the defendant must have "legal representation
when the government interrogates him," Brewer v. Williams, 430 U.S.
UNITED STATES v. KENNEDY 21
387, 401 (1977). Because the right to legal representation after indict-
ment is so basic, the government has an "affirmative obligation" not
to interrogate the accused unless his lawyer is present. Moulton, 474
U.S. at 176; see also Jackson, 475 U.S. at 631-32. The government’s
violation of this obligation "contravenes the basic dictates of fairness
in the conduct of criminal causes and the fundamental rights of per-
sons charged with crime." Massiah, 377 U.S. at 205 (internal quota-
tion marks and citation omitted). The Sixth Amendment right to
counsel has certain limits. For instance, the right may be waived,
Brewer, 430 U.S. at 404, and it only attaches to the offense charged,
Texas v. Cobb, 532 U.S. 162, 167-68 (2001). None of the limitations
applies here, however.
Kennedy’s Sixth Amendment right to counsel was violated a num-
ber of times, by the officers in the interrogation sessions and by the
AUSA before the grand jury. Because Kennedy had been formally
charged with the very drug offenses he was being questioned about,
and his conviction for those offenses was on appeal, Kennedy
remained an accused. See Massiah, 377 U.S. at 206; Taylor, 746 F.2d
at 222 (holding that a defendant with an appeal pending retains his
Fifth Amendment privilege because compelled statements might be
used against him in subsequent proceedings). The AUSA and the offi-
cers, therefore, could not question Kennedy about those offenses
without his lawyer present, unless he waived his Sixth Amendment
right. See Brewer, 430 U.S. at 401, 404. Moreover, because Kenne-
dy’s lawyer could not have accompanied Kennedy inside the grand
jury room, see Fed. R. Crim. P. 6(d), the AUSA had an affirmative
obligation not to bring Kennedy before the grand jury at all for ques-
tioning about his unaffirmed convictions. See Moulton, 474 U.S. at
171. Instead of respecting Kennedy’s Sixth Amendment rights, the
AUSA "knowingly circumvent[ed] [Kennedy’s] right to the assistance
of counsel." Id. at 180. The offense specific nature of the right to
counsel does not negate Kennedy’s right because he was questioned
about the offenses involved in his pending drug case; he was not
questioned about any perjury offense. See Cobb, 532 U.S. at 167. In
sum, Kennedy’s Sixth Amendment right was violated every time the
officers or the AUSA questioned him, either in the pre-grand jury ses-
sions or before the grand jury itself.
The majority is wrong to suggest that it might have been permissi-
ble for the government to bring Kennedy before the grand jury in
22 UNITED STATES v. KENNEDY
these circumstances because the AUSA told him he could consult
with his lawyer outside the grand jury room. Ante at 8. The cases
cited by the majority for this proposition are short of the mark
because they deal with unindicted targets of grand jury investigations,
who are not yet accused within the meaning of the Sixth Amendment.
Compare Massiah, 377 U.S. at 206, with United States v. Williams,
504 U.S. 36, 49 (1992), and In re Groban, 352 U.S. 330, 333 (1957).
Kennedy, as an accused, had the Sixth Amendment right not to be
brought before the grand jury to testify about his offenses of convic-
tion that were pending on appeal. See Moulton, 474 U.S. at 176. Sim-
ply put, the government could not confront Kennedy in any situation
where his lawyer was not or could not be present. Id. Justice Brennan
made this same point, relying on the Fifth Amendment, in his opinion
concurring in the judgment in United States v. Mandujano, 425 U.S.
564, 594 (1976): "[i]t is clear that the government may not in the
absence of an intentional and knowing waiver call an indicted defen-
dant before a grand jury and there interrogate him concerning the sub-
ject matter of a crime for which he already stands formally charged."
The cases from other circuits cited by the majority are easily distin-
guishable from Kennedy’s situation. See ante at 8. Both In re Grand
Jury Subpoena (United States v. McDougal), 97 F.3d 1090, 1092-93
(8th Cir. 1996), and United States v. Schwimmer, 882 F.2d 22, 27 (2d
Cir. 1989), relied on the government’s grant of use immunity to hold
that an indicted grand jury witness could be questioned outside the
presence of counsel without violating the Constitution. Here, Ken-
nedy was not granted use immunity, nor did he waive his Sixth
Amendment right to counsel. He therefore had a constitutional right
to have his lawyer sitting next to him any time the government ques-
tioned him about the offenses he was being prosecuted for, even if the
government’s purpose was to seek information about others involved
in his drug dealing. See Moulton, 474 U.S. at 179-80. The AUSA’s
misleading advice to Kennedy — that he had the right to consult his
(absent) lawyer outside the grand jury room — does not excuse the
blatant Sixth Amendment violations. See id. at 176.
The majority, in arguing that any Sixth Amendment violations here
are not a bar to Kennedy’s perjury prosecution, relies on Mandujano,
425 U.S. 564, and United States v. Wong, 431 U.S. 174 (1977), cases
where grand jury testimony obtained in violation of the Fifth Amend-
UNITED STATES v. KENNEDY 23
ment was used to establish perjury. Ante at 10. In relying on these
Fifth Amendment cases, the majority ignores important differences
between the Fifth Amendment privilege against self-incrimination
and the Sixth Amendment right to counsel. As long as the government
honors Fifth Amendment safeguards (such as giving Miranda warn-
ings when required), it may ask questions of an individual that could
lead to incriminating answers; it is up to the individual to assert his
Fifth Amendment privilege. E.g., Minnesota v. Murphy, 465 U.S. 420,
427-28 (1984). This procedure "reflect[s] an appropriate accommoda-
tion of the Fifth Amendment privilege and the generally applicable
principle that governments have the right to everyone’s testimony."
Garner v. United States, 424 U.S. 648, 655 (1976). In contrast, the
Sixth Amendment forbids the government from questioning an
accused about charged offenses outside the presence of his lawyer.
Moulton, 474 U.S. at 176. Moreover, once the Sixth Amendment right
to counsel has attached, the accused does not have to assert his right
every time the government seeks to question him. Brewer, 430 U.S.
at 404. The government has an affirmative obligation to refrain from
questioning an accused without his lawyer present, and that obligation
is fundamental to "our whole system of adversary criminal justice."
Kirby v. Illinois, 406 U.S. 682, 689 (1972). These differences between
the Fifth and Sixth Amendments mean that the grand juries in Mandu-
jano and Wong, where the witnesses were not yet accused or indicted,
could ask the questions that led to perjurous answers that were not
suppressed. An indicted individual, however, cannot be brought into
the grand jury to testify about his charged conduct, for that violates
his right to have counsel at his side. See Moulton, 474 U.S. at 176.
In this case, therefore, where criminal proceedings were still pending
against Kennedy, the grand jury was constitutionally forbidden from
asking the questions that led to his false answers. See Mandujano, 425
U.S. at 581; Wong, 431 U.S. at 179-80; Brown v. United States, 245
F.2d 549, 554-55 (8th Cir. 1957) (reversing a perjury conviction
because the grand jury was investigating crimes in another jurisdic-
tion and the purpose of the questioning was to lay a foundation for
a perjury indictment).
In sum, the grand jury in this case was never entitled to Kennedy’s
testimony, truthful or otherwise, because the grand jury (through the
AUSA) violated Kennedy’s Sixth Amendment right to have his law-
yer present at all interrogations from indictment through appeal. It is
24 UNITED STATES v. KENNEDY
not necessary to decide, however, whether the Sixth Amendment vio-
lations alone require the suppression of Kennedy’s grand jury testi-
mony at his perjury trial. As I explain next, the testimony must be
suppressed because Kennedy’s rights were trampled to the point that
he was denied due process.
B.
The AUSA’s abusive tactics and procedures violated Kennedy’s
Fifth Amendment due process rights. After misusing the govern-
ment’s subpoena power to bring Kennedy to the courthouse while his
appeal was pending, the AUSA proceeded to commit or orchestrate
Fifth and Sixth Amendment violations in the process of requiring
Kennedy to answer questions about his offenses. What is more, the
AUSA misused the grand jury, which had no authority to question
Kennedy about his case while it was still on appeal. These overbear-
ing tactics were pervasive and shocking, and they must be recognized
for what they amount to — a violation of the Due Process Clause of
the Fifth Amendment.
Kennedy was not given the required Miranda warnings at either of
the pre-grand jury interrogations. Yet at both sessions, Kennedy made
it clear that he did not want to testify about or discuss his offenses;
he said repeatedly that he "just wanted to do his time." J.A. 24. Even
though Kennedy made his wishes plain in laymen’s language, the
AUSA put him into the grand jury and misadvised him that he did not
have a Fifth Amendment right to refuse to testify about the conduct
that led to his convictions then pending on appeal. The AUSA then
proceeded to ask him questions about that very conduct, compound-
ing the Fifth Amendment violations. No perjury case cited by the
majority involves Fifth Amendment violations by a prosecutor that
approach this level of abuse. For example, in Mandujano the Supreme
Court held that a grand jury witness, who was a suspect, could be
prosecuted for perjury even though he was not given full Miranda
warnings. 425 U.S. at 578-79. Likewise, in Wong the untruthful grand
jury witness, who was under investigation, was subject to a perjury
prosecution even though she did not — because of language barriers
— understand the prosecutor’s warning that she had a Fifth Amend-
ment right not to answer incriminating questions. 431 U.S. at 177.
Here, in contrast, the AUSA told Kennedy that he did not have a Fifth
UNITED STATES v. KENNEDY 25
Amendment right to refuse to testify. That was dead wrong and inde-
fensible. The AUSA simply rode roughshod over Kennedy, forcing
him to testify against himself.
Kennedy’s case is also different from Mandujano and Wong
because the grand juries in those cases were exercising their lawful
investigative authority to gather evidence from witnesses who were
suspected of criminal activity. See Mandujano, 425 U.S. at 573, 578;
Wong, 431 U.S. at 179-80. Here, the grand jury’s role in Kennedy’s
pending case terminated when he was indicted. After his indictment
the grand jury had no authority to call Kennedy before it to testify
about his pending case. The AUSA, by putting Kennedy before the
grand jury to question him about his ongoing case, forced the grand
jury to act beyond its authority. This amounted to an abuse of process
in violation of the Fifth Amendment. United States v. Doss, 563 F.2d
265, 276-77 (6th Cir. 1977); Brown, 245 F.2d at 554-55; see also
Mandujano, 425 U.S. at 583; id. at 594 (Brennan, J., concurring in the
judgment).
The AUSA’s conduct here was far different from that of the prose-
cutors in Mandujano and Wong for still another reason: the AUSA
repeatedly violated Kennedy’s Sixth Amendment right to counsel.
This debacle could have been prevented if the AUSA had honored
Kennedy’s Sixth Amendment right and allowed his lawyer to be pres-
ent at the interrogations that preceded each grand jury appearance. If
the lawyer had been there, he could have put force behind Kennedy’s
wishes and assisted him in asserting his Fifth Amendment rights
before any interrogation began. In addition, the lawyer could have
reminded the AUSA that a defendant whose case is on appeal must
not be subjected to questioning before a grand jury about the offenses
involved. By the time Kennedy’s case had reached the post-trial stage,
he had established a pattern of not talking to the authorities and of not
testifying. He did not cooperate with the authorities before his trial,
he did not testify at trial, and he said repeatedly in the post-trial inter-
rogation sessions that he did not want to talk to the authorities or tes-
tify in the grand jury. If his lawyer had been with him when he was
confronted by the authorities after his conviction, it is likely that Ken-
nedy’s continuing wish to remain silent would have been honored. It
is not enough to say that Kennedy talked with his lawyer about some-
thing between his grand jury appearances, see ante at 15, because that
26 UNITED STATES v. KENNEDY
is no substitute for his constitutionally guaranteed right to have his
counsel with him during every interrogation "as a ‘medium’ between
him and the [authorities]." Moulton, 474 U.S. at 176. In short, this
case is a perfect illustration of why the interrogation of a defendant
without his lawyer while his case is still pending "contravenes the
basic dictates of fairness in the conduct of criminal causes and the
fundamental rights of persons charged with crime." Massiah, 377
U.S. at 205 (internal quotation marks and citation omitted).
The majority recognizes six violations of Kennedy’s constitutional
rights and assumes that two others occurred. Yet it concludes that
there was no due process violation, in part because the AUSA says
he was not aiming to gather evidence against Kennedy. Ante at 14-15.
The AUSA asserts that he was investigating others involved in drug
dealing; that, of course, was an appropriate prosecutorial mission.
Nevertheless, as the majority recognizes elsewhere in its opinion, the
AUSA and the officers "were not entitled to ignore Kennedy’s consti-
tutional rights in the process" of this investigation. Ante at 10 (citing
Moulton, 474 U.S. at 179-80). The majority also relies on the facts
that the AUSA did not trick Kennedy into lying, that he paid lip ser-
vice to Kennedy’s right to consult with his lawyer outside the grand
jury room, that he warned Kennedy of the consequences of lying
under oath, and that he gave Kennedy an opportunity to change his
testimony. Ante at 15. Although the majority may be correct that the
AUSA’s constitutional violations did not force Kennedy to testify
falsely, they did force him to testify in "contraven[tion of] the basic
dictates of fairness in the conduct of criminal causes and [Kennedy’s]
fundamental rights." Massiah, 377 U.S. at 205 (internal quotation
marks and citation omitted). The unfairness here was the very act of
calling Kennedy to testify before the grand jury. See Wong, 431 U.S.
at 179. In any event, the AUSA’s repeated and wrong instructions
about Kennedy’s Fifth Amendment rights almost certainly led him to
incriminate himself during his first grand jury appearance and to
answer questions falsely when he should have remained silent during
his second appearance.
Kennedy was still an accused with Fifth and Sixth Amendment
rights when the AUSA twice arranged for his interrogation by officers
and twice questioned him before the grand jury. The AUSA’s actions
— from arranging for Kennedy to be interrogated without counsel, to
UNITED STATES v. KENNEDY 27
telling him that he had no Fifth Amendment rights, to ignoring his
express wishes that he not be questioned, to questioning him before
grand jury in violation of his Sixth Amendment rights, to misusing the
grand jury at a time when it had no authority over Kennedy’s pending
case — amount to shocking misconduct. This misconduct corrupted
the investigative and grand jury process to a degree that it denied
Kennedy his due process rights. See Mandujano, 425 U.S. at 583; id.
at 585 (Brennan, J., concurring in the judgment).
C.
This case presents a real dilemma. There is no solution that offers
complete justice because both sides have engaged in reprehensible
conduct. The AUSA repeatedly violated Kennedy’s most basic rights
as an accused in a criminal case, and that must be condemned. Ken-
nedy committed perjury, and that must also be condemned. If we
leave things as they are, Kennedy stands convicted of perjury, and the
AUSA stands excused. That result, I believe, does not take sufficient
account of the prosecutorial abuse.
The government had lawful ways to obtain Kennedy’s testimony
before his appeal was concluded. The AUSA could have contacted
Kennedy’s lawyer and requested that he waive his rights and testify
voluntarily. If that failed, the government could have given Kennedy
use immunity. Immunity was a reasonable option, especially since the
government had no intention of pursuing Kennedy any further for
drug crimes. Rather than taking a common sense approach, the AUSA
plunged recklessly ahead, jerking Kennedy into interrogation sessions
and grand jury proceedings and committing a slew of constitutional
violations along the way.
During this entire interrogation and grand jury process, Kennedy
did not know what his rights were. The AUSA used his dominant
position to mislead Kennedy about his rights, and he forced Kennedy
to testify against himself. The majority suggests that Kennedy’s rem-
edy is "to protest the infringement of his rights." Ante at 13. But pro-
test is an inadequate remedy in this instance. Protest, for example,
cannot undo the tangible detriment to Kennedy that stems from the
AUSA’s misconduct: a two and one-half year sentence for perjury
28 UNITED STATES v. KENNEDY
added to a thoroughly deserved thirty-five year sentence for drug
dealing, all to be served by a man who is nearly sixty years old.
I believe that Kennedy’s false testimony to the grand jury must be
suppressed in light of the magnitude of the violations of his rights. I
recognize, of course, that "[p]erjured testimony is an obvious and fla-
grant affront to the basic concepts of judicial proceedings," and per-
jury "has no place" in an ordered system of justice. Mandujano, 425
U.S. at 576. The rule that perjury cannot be excused is not quite abso-
lute, however, because the Supreme Court has recognized that entrap-
ment or abuse of the grand jury process may require the dismissal of
perjury charges. Mandujano, 425 U.S. at 583. As one Justice who
concurred in the Mandujano judgment explained: when false answers
before a grand jury are "induced by governmental tactics or proce-
dures so inherently unfair under all the circumstances . . . a prosecu-
tion for perjury [may constitute] a violation of the Due Process Clause
of the Fifth Amendment." Id. at 585 (Brennan, J., concurring in the
judgment). See also id. at 609 (Stewart, J., concurring in the judg-
ment) (noting that a perjury prosecution may be barred when there is
"prosecutorial conduct amounting to a denial of due process"). The
prosecutor’s tactics here, especially his misuse of the grand jury, were
so abusive and unfair that Kennedy was denied due process. His per-
jured testimony should therefore be suppressed.