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    United States v. Estelle Jacobs A/K/A 'Mrs. Kramer,', 531 F.2d 87, 2d Cir. (1976)

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    The United States appeals the dismissal of Count Two of an indictment against Estelle Jacobs. Count Two charged her with making false statements before a grand jury. The district court dismissed Count Two because Jacobs was not warned that she was a potential defendant when she testified before the grand jury, in violation of due process. The Second Circuit affirms the dismissal under its supervisory powers, noting conflicting practices between the U.S. Attorney's office and organized crime strike force in warning potential defendants, and seeks to promote uniformity in criminal procedures.

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    United States v. Estelle Jacobs A/K/A 'Mrs. Kramer,', 531 F.2d 87, 2d Cir. (1976)

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    The United States appeals the dismissal of Count Two of an indictment against Estelle Jacobs. Count Two charged her with making false statements before a grand jury. The district court dismissed Count Two because Jacobs was not warned that she was a potential defendant when she testified before the grand jury, in violation of due process. The Second Circuit affirms the dismissal under its supervisory powers, noting conflicting practices between the U.S. Attorney's office and organized crime strike force in warning potential defendants, and seeks to promote uniformity in criminal procedures.

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    Filed: 1976-02-24 Precedential Status: Precedential Citations: 531 F.2d 87 Docket: 443

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    The United States appeals the dismissal of Count Two of an indictment against Estelle Jacobs. Count Two charged her with making false statements before a grand jury. The district court dismissed Count Two because Jacobs was not warned that she was a potential defendant when she testified before the grand jury, in violation of due process. The Second Circuit affirms the dismissal under its supervisory powers, noting conflicting practices between the U.S. Attorney's office and organized crime strike force in warning potential defendants, and seeks to promote uniformity in criminal procedures.

    Copyright:

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    41 views6 pages

    United States v. Estelle Jacobs A/K/A 'Mrs. Kramer,', 531 F.2d 87, 2d Cir. (1976)

    Uploaded by

    Scribd Government Docs
    The United States appeals the dismissal of Count Two of an indictment against Estelle Jacobs. Count Two charged her with making false statements before a grand jury. The district court dismissed Count Two because Jacobs was not warned that she was a potential defendant when she testified before the grand jury, in violation of due process. The Second Circuit affirms the dismissal under its supervisory powers, noting conflicting practices between the U.S. Attorney's office and organized crime strike force in warning potential defendants, and seeks to promote uniformity in criminal procedures.

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    of 6

    531 F.

    2d 87

    UNITED STATES of America, Appellant,


    v.
    Estelle JACOBS a/k/a 'Mrs. Kramer,' Defendant-Appellee.
    No. 443, Docket 75--1319.

    United States Court of Appeals,


    Second Circuit.
    Argued Nov. 13, 1975.
    Decided Feb. 24, 1976.

    Edward C. Weiner, Special Atty., U.S. Dept. of Justice (David G. Trager,


    U.S. Atty., E.D.N.Y., of counsel), for appellant.
    Irving P. Seidman, New York City (Rubin, Seidman & Dochter, New
    York City, of counsel), for defendant-appellee.
    Before FEINBERG, GURFEIN and VAN GRAAFEILAND, Circuit
    Judges.
    GURFEIN, Circuit Judge:

    The United States appeals from an order of the United States District Court for
    the Eastern District of New York (Hon. Edward R. Neaher, Judge), granting a
    motion to suppress the Grand Jury testimony of defendant-appellee Estelle
    Jacobs and dismissing Count Two of the indictment against her.1 The defendant
    had moved for an evidentiary hearing and an order to dismiss the indictment on
    the ground, inter alia, that she was a subject of the investigation but had not
    been informed that she was a subject when she was subpoenaed to testify
    before the Grand Jury. Judge Neaher granted the motion to dismiss Count Two
    of the indictment which charged the making of false statements before the
    Grand Jury in violation of 18 U.S.C. 1623, but denied the motion to dismiss
    Count One. The government appeals the dismissal of Count Two pursuant to 18
    U.S.C. 3731.

    The facts are not in dispute with regard to the procedure followed. The
    defendant is a housewife who was employed at various times in a collection

    agency. During March 1973 Harry W. Stonesifer, Jr. ('Harry'), using the name
    of his brother, William D. Stonesifer ('William'), incurred a gambling debt of
    $5,060 on a junket to Puerto Rico. During May 1973 defendant serviced this
    collection account for her employer. She made several telephone calls in that
    connection, and on May 22, 1973 she allegedly made a telephone call to
    William, recorded on tape by him, which contained a threat to injure the person
    of Harry. William notified the Federal Bureau of Investigation ('FBI'). On
    September 13, 1973 the defendant was interviewed by the FBI who advised her
    of her Miranda rights, including the right to remain silent and the right to
    appointed counsel. She signed an 'Advice of Rights' form. The agents
    questioned her about the Stonesifer account and the fact that she had used the
    name 'Mrs. Kramer' in making telephone calls on the Stonesifer account. She
    denied that she had harassed William on the telephone. She was not told that
    her conversation had been recorded.
    3

    On June 10, 1974, about nine months later, she was called before the Grand
    Jury by a subpoena issued by the Organized Crime Strike Force.2 She appeared
    without counsel at that first session; she was warned by the Strike Force
    Attorney that under the Fifth Amendment she could 'refuse to answer any
    question that you feel might tend to incriminate you.' She was also told that
    under the Sixth Amendment she had a right to counsel of her choice who could
    be outside the Grand Jury choice who could be outside the Grand Jury any
    specific questions.' Asked whether she felt the need of an attorney, she
    responded, 'I do not.' She was also informed that perjury is a 'very serious
    offense.' Appellee was asked to affirm or deny her conversations with William
    which had been recorded, though the fact of recording was not disclosed to her.
    Her denials were the basis for Count Two of the indictment.

    The Strike Force attorney at her first appearance before the Grand Jury had in
    his possession the recording of her conversation with William, and, as Judge
    Neaher found, '(t)he government admits that when she was called to testify
    before the grand jury the defendant was not just another witness, but was in fact
    a 'putative defendant,' in that the government had incriminating evidence
    against her.' Nevertheless she was not warned at the time of her first appearance
    that she was a subject of the investigation or that she had an absolute right to
    remain silent.

    The District Court concluded that, under the circumstances, the defendant was
    entitled to 'full' Miranda warnings including the advice that she had an absolute
    right to remain silent. It noted that 'simply with the possession of the wiretap
    tape, the government undoubtedly felt it had all but the identity evidence for
    probable cause to be found by the grand jury that Jacobs violated 18 U.S.C.

    875(c).' He also noted that the Grand Jury had been presented with 'sufficient
    independent identity evidence.' The court ruled, accordingly, that '(u)nder the
    circumstances, asking her if she made the statements the government already
    had recorded, without fair warning of the trap she was being led into is not
    permissible prosecutorial conduct,' since 'the questions which led to the alleged
    perjurious responses served no other function than to give the government an
    additional prop on which to base its case against defendant' (emphasis in
    original).
    6

    Judge Neaher relied on United States v. Mandujano, 496 F.2d 1050 (5 Cir.
    1974), cert. granted, 420 U.S. 989, 95 S.Ct. 1422, 43 L.Ed.2d 669 (1975). He
    concluded, as had the Fifth Circuit, that the prosecutorial conduct involved was
    'so 'offensive to the common and fundamental ideas of fairness' as to amount to
    a denial of due process.' 496 F.2d at 1059.3 His decision to dismiss the false
    statement count was predicated on the 'due process' clause of the Fifth
    Amendment rather than on its 'self-incrimination' provision.

    We do not reach either the claimed 'selfincrimination' violation or the claimed


    'due process' violation under the Fifth Amendment. We have held that a
    prospective defendant may be questioned before a Grand Jury about statements
    he made in a recording in the possession of the government, without being told
    of the existence of the recording. United States v. Del Toro, 513 F.2d 656, 664
    (2 Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). But we
    noted that the defendants had been advised not only of their constitutional rights
    but also that each 'was a target of the investigation.' 513 F.2d at 660.4 That was
    not done here.

    It appeared to us that prosecutors in this circuit generally had been following


    Section 3.6(d) of the ABA Project on Standards for Criminal Justice, Standards
    Relating to the Prosecution Function (Approved Draft 1971).5 Section 3.6(d)
    provides:

    9 the prosecutor believes that a witness is a potential defendant he should not seek
    'If
    to compel his testimony before the grand jury without informing him that he may be
    charged and that he should seek independent legal advice concerning his rights.'
    10

    See United States v. Washington, 328 A.2d 98, 100 (D.C.App.1974).

    11

    We did not wish simply to assume, however, that all prosecutors in the circuit
    now adhere to this standard. We accordingly directed the clerk of our court to
    make written inquiry of the United States Attorneys for each district in the

    circuit concerning their practice in this regard.


    12

    The United States Attorneys have replied with unanimity that where a person
    called before the Grand Jury is known to be a potential defendant he is warned
    that he is a 'target of the investigation' or a 'subject' of the investigation.' More
    particularly, the United States Attorney for the Eastern District of New York,
    where the Grand Jury which heard this defendant sat, replied that 'our practice
    is to advise the potential defendant . . . that he is a target of the investigation.'

    13

    We thus have a situation in the Eastern District where if Estelle Jacobs had
    appeared before the Grand Jury on a subpoena issued by the United States
    Attorney she would have been warned that she was a target, while the Strike
    Force operating in the same district failed to give her such warning.

    14

    In this posture of conflicting conceptions of prosecutorial fairness in the same


    district, we need not consider whether there is a constitutional due process
    claim as the court below held. Uniform justice is not achieved in the face of
    such disparity which, if not in actual violation of the Constitution, is, at least,
    outside the penumbra of fair play. In In re Persico, 522 F.2d 41 (2 Cir. 1975),
    we upheld the right of Strike Force attorneys to appear before the Grand Jury
    partly because they were under the supervision of the United States Attorneys.
    We are sorry to learn that this may not always be the fact. We suggest that
    Strike Force Attorneys should be instructed on and should adhere to the
    practices of the United States Attorney.6

    15

    In the interest of uniformity in criminal procedure within the circuit, which is a


    fundamental of the administration of criminal justice, we affirm the dismissal
    of Count Two pursuant to our supervisory function.

    16

    We do not mean to imply that a potential defendant has a constitutional right


    not to be called before the Grand Jury at all. See United States v. Dionisio, 410
    U.S. 1, 10 n. 8, 93 S.Ct. 764, 769, 35 L.Ed.2d 67, 77 (1973); United States v.
    Doe, 457 F.2d 895, 898 (2 Cir. 1972), cert. denied, 410 U.S. 941, 93 S.Ct.
    1376, 35 L.Ed.2d 608 (1973); United States v. Winter, 348 F.2d 204, 207--08
    (2 Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965). Nor
    do we deal with perjury committed by a prospective defendant after adequate
    warning of his status. We are satisfied that we should affirm in this case solely
    under our supervisory power.7

    The indictment, filed on November 11, 1974, contains two counts: Count One

    charged a violation of 18 U.S.C. 875(c)--transmitting in interstate commerce


    a threat to kidnap or injure another. Count Two was the perjury count which
    was dismissed and which is the subject of this appeal
    2

    The Strike Force attorneys operate under a commission from the Attorney
    General pursuant to 28 U.S.C. 515(a) and under guidelines promulgated by
    the Attorney General. See Office of the Attorney General, Order No. 431--70,
    Establishing Guidelines Governing Interrelationships Between Strike Forces
    and United States Attorneys' Offices, reprinted in In re Persico, 522 F.2d 41, 68
    (2 Cir. 1975) (appendix)

    In Mandujano, as here, a Special Attorney was involved. As the court noted,


    '(s)omewhere within this chain of command and information' between him and
    the United States Attorney a decision was made to subpoena Mandujano as a
    witness. 496 F.2d at 1058 n. 8

    So, too, in United States v. Winter, 348 F.2d 204, 205 (2 Cir.), cert. denied, 382
    U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965), also a perjury prosecution, the
    defendant was advised that he was 'a prospective defendant,' and we left aside
    the question whether a potential defendant must be advised of his status since
    that question was not presented on the facts of the case. 348 F.2d at 208

    See, e.g., United States v. Bonacorsa, 528 F.2d 1218, 1223 (2 Cir. 1976);
    United States v. Del Toro, supra, 513 F.2d at 660; United States v. Corallo, 413
    F.2d 1306, 1328, 1329 n. 6 (2 Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24
    L.Ed.2d 422 (1969); United States v. Irwin, 354 F.2d 192, 199 (2 Cir. 1965),
    cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966); United States
    v. Winter, supra, 348 F.2d at 205; cf. United States v. Scully, 225 F.2d 113, 116
    (2 Cir.), cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955)

    Reviewing the guidelines set out in Appendix A to the Persico opinion, supra,
    we note that there appears to be an omission with regard to the matter here at
    issue. It is provided, inter alia, that '(t)he Chief of the Strike Force and the
    United States Attorney . . . shall have the responsibility of keeping each other
    fully advised of all organized criminal matters in progress.' 522 F.2d at 68.
    'Fully' is perhaps too ambiguous and requires clarification. It is also provided:
    'When a specific investigation has progressed to the point where there is to be a
    presentation for an indictment, the Chief of the Strick Force shall then for this
    purpose operate under the direction of the United States Attorney who shall
    oversee the judicial phase of the development of the case.'
    Id. at 69. What is lacking is a statement that when the investigation has
    progressed to the point where witnesses are called to testify before the Grand

    Jury, the Strike Force shall operate under the direction of the United States
    Attorney. We think this should have been assumed by the Strike Force since,
    under the guidelines, even preliminaries, such as arrest warrants and search
    warrants are, where practicable, to be sought with the concurrence of the
    United States Attorney. Id.
    7

    Since the suppression of the Grand Jury testimony wipes out the entire
    predicate for the perjury count in this case, Judge Neaher properly dismissed
    Count Two of the indictment before trial

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