United States v. Washington, 7609.

• Decision Date: 06 November 1974
• Docket Number: No. 7609.,7609.
• Citation: 328 A.2d 98
• Parties: UNITED STATES, Appellant, v. Gregory V. WASHINGTON, Appellee.
• Court: D.C. Court of Appeals

328 A.2d 98

UNITED STATES, Appellant, v. Gregory V. WASHINGTON, Appellee.

No. 7609.

District of Columbia Court of Appeals.

Argued April 8, 1974.

Decided November 6, 1974.

Harry R. Benner, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and Richard L. Beizer, Asst. U. S. Attys., were on the brief, for appellant.

Frederick H. Weisberg, Washington, D. C., for appellee.

Before KERN, NEBEKER and PAIR,^* Associate Judges.

NEBEKER, Associate Judge:

In this government appeal¹ from an order suppressing the accused's grand jury testimony and dismissing the indictment, we are asked to hold that a valid waiver of rights was made and, in any event, that the indictment should not have been dismissed. We sustain the suppression order insofar as it has operation at a future trial, which we make possible by reversing the order of dismissal.

Appellee was handed a subpoena to appear before the grand jury when he came to the office of the United States Attorney seeking a property release of his truck. The truck, described as a "van", had been impounded by police officers when it was found disabled on a street. At the time it was occupied by two other persons. The officers observed a motorcycle in the cargo area of the van. It was then learned that the motorcycle had recently been stolen. As a result, the occupants of the van were arrested and both vehicles were impounded. Ownership of the van was discovered to be in appellee. A few days later, after a message had been left at his home by an investigating officer, appellee went to the Metropolitan Police Department, Auto Theft Section, to recover his van. His explanation of how the motorcycle came to be in the van, and the van to be in the possession of its then-occupants, was that he had picked up a "hippy" who loaded the disabled cycle in the van. Later, when the van broke down and appellee went for help, the "hippy" left never to be heard from. The two who were arrested, according to appellee, were his friends who responded to his call for help. The police officers reasonably considered appellee's explanation to be so farfetched that he became a suspect. The van was not released to appellee by the Auto Theft Section, so he then went to the United States Attorney's office seeking a release. An Assistant United States Attorney likewise did not believe appellee's explanation, and, although he did release the van, he handed appellee the subpoena believing he would not otherwise return to testify. Appellee was considered to be a potential defendant.

At no time was appellee told that he was considered a potential defendant in a prosecution connected with the theft of the motorcycle. Indeed, he was only told that he was needed as a witness in prosecuting the two who were occupants of the van at the time of its impoundment. When appellee appeared pursuant to the subpoena, he was taken before the grand jury without being apprised of his rights including the fact that he was considered a potential defendant.

In the presence of the grand jury, appellee was advised of his rights in a manner correctly characterized by the trial court judge as inadequate. The deficiency in that advice arises from failure to maintain a scrupulous concern that waiver must be knowingly and intelligently made.² We are in agreement with the trial court judge that the most significant failing of the prosecutor was in not advising appellant that he was a potential defendant. Another shortcoming was in the prosecutor's waiting until after administering the oath in the cloister of the grand jury before undertaking to furnish what advice was given. This manner of proceeding is specifically condemned by Standard 3.6(d) of the ABA Project on Standards for Criminal Justice, The Prosecution Function, which states:

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

The order, insofar as it suppressed appellee's grand jury testimony as trial evidence, is therefore affirmed. Jones v. United States, 119 U.S.App.D.C. 284, 290-291, 342 F.2d 863, 869-870 (1964). See United States v. Luxenberg, 374 F.2d 241, 246 (6th Cir. 1967); cf. United States v. Scully, 225 F.2d 113 (2d Cir. 1955).

There remains the question whether the effect of the suppression order goes to the validity of the grand jury proceeding and the indictment. At the end of the hearing, the trial court judge stated that he was going to examine the grand jury testimony to "determine whether or not there is sufficient evidence . . . to sustain the indictment independent of this witness' testimony." In his subsequent order, the judge held that "in the absence of this defendant's testimony . . . no competent evidence exists upon which the grand jury could rely in properly returning the instant indictment. . . ." It is thus clear that the trial court viewed the effect of its suppression order as, in contemplation of law, expunging appellee's testimony from the grand jury transcript thereby leaving an inadequate predicate for the indictment. We hold this view of the suppression order to be error in light of United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 1419, 16 L.Ed.2d 510 (1966). There the Court held:

Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. While the general common-law practice is to admit evidence despite its illegal origins, this Court in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused's rights under the Constitution, federal statutes, or federal rules of procedure. . . . Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.³ [Footnote and citations omitted.]

Of more recent date this concept of grand jury function and independence has been even more solidified. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 619, 623, 38 L.Ed.2d 561 (1974); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L. Ed.2d 67 (1973). Calandra reinforces Blue in its holding that evidence suppressible at trial may, in any event, be presented to a grand jury without fatally infecting the indictment.

We recognize that in Blue the grand jury was not the site of the constitutional deprivation. This fact does not appear of legal significance, for the Court also addressed that issue by a pointed and significant comment respecting "tainted evidence . . . presented to the grand jury." It was said in Blue that in the event such taint be found in the grand jury proceeding,

our precedents indicate this would not be a basis for abating the prosecution pending a new indictment, let alone barring it altogether. See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; 8 Wigmore, Evidence § 2184a, at 40 (McNaughton rev. 1961). [Id. 384 U.S. 255 n. 3, 86 S.Ct. at 1419.]

Of course, appellee's testimony before the grand jury was tainted for it is the immediate product of constitutional violation.

Appellee argues that on these facts we should apply the usual review standard when considering discretionary action of the trial court, i. e., abusive exercise. He relies on two cases from this jurisdiction for the proposition that dismissal of an indictment for lack of evidentiary basis is permissible, Jones v. United States, supra, and discretionary, Carrado v. United States, 93 U.S.App.D.C. 183, 188, 210 F.2d 712, 717 (1953).⁴ We observe, first, that Carrado was decided in 1953 and since that time the Supreme Court has adopted in numerous cases "a very broad rule relating to the sufficiency of evidence supporting an indictment." Coppedge v. United States, 114 U.S.App.D.C. 79, 82, 311 F.2d 128, 131 (1962). As Judge (now Chief Justice) Burger observed in Coppedge, Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), stood for the often quoted principle that:

"[A]n indictment returned by a legally constituted nonbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits and satisfies the requirements of the Fifth Amendment." [Coppedge v. United States, supra, 114 U.S.App.D.C. at 82, 311 F.2d at 131.]

Numerous decisions of the Supreme Court before and after Lawn attest to the proposition that this principle is not intended to be confined to the particular facts of a given case. See United States v. Calandra, supra; United States v. Dionisio, supra; United States v. Blue, supra, 384 U.S. at 255 n. 3, 86 S.Ct. 1416; Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Holt v. United States, 218 U.S. 245, 248, 31 S.Ct. 2, 54 L. Ed. 1021 (1910). Indeed, Calandra holds that "the validity of an indictment is not affected by the character of the evidence considered." Id., 94 S.Ct. at 618. Respecting the power of a grand jury to act, it was observed in Dionisio that "jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge." 410 U.S. at 15, 93 S.Ct. at 772.⁵ Lawn and Costello, when read in light of United States v. Dionisio, supra at 17, 93 S.Ct. 764, also forbid "preliminary trial[s] to determine the competency and adequacy of the evidence before the grand jury." Lawn v....