365 F.Supp. 155 (W.D.Tex. 1973), Crim. SA 73 CR 164, United States v. Rangel

Docket Nº:Crim. SA 73 CR 164
Citation:365 F.Supp. 155
Party Name:United States v. Rangel
Case Date:October 12, 1973
Court:United States District Courts, 5th Circuit, Southern District of Texas

Page 155

365 F.Supp. 155 (W.D.Tex. 1973)



Paul Gonzales RANGEL.




Crim. Nos. SA 73 CR 164, SA 73 CR 163.

United States District Court, W.D. Texas, San Antonio Division.

Oct. 12, 1973

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William S. Sessions, U. S. Atty., John M. Pinckney, III, Asst. U. S. Atty., San Antonio, Tex., for plaintiff.

Stewart Alexander, San Antonio, Tex., for defendant Paul Gonzales Rangel.

Ruben Sandoval, San Antonio, Tex., for defendant Roy Mandujano.

SPEARS, Chief Judge.

This matter involves the defendants' separate motions to suppress their testimony

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before the special grand jury which was convened on May 2, 1973. The two cases before the Court, though not consolidated, and not involving the same transaction, embody virtually identical sets of circumstances. Each defendant is charged in a two count indictment with an attempt to distribute heroin in the first count, and with perjury before the grand jury in the second count. The indictment for perjury in each case (count two) is based upon each defendant's denial before the grand jury of any attempt to sell heroin, or any solicitation to do so, while count one alleges that each defendant did in fact make just such an attempt to sell to drug enforcement officials. Both alleged attempts took place prior to the defendants' grand jury appearances.

As to defendant Rangel, the indictment alleges that he attempted to distribute three ounces of heroin on or about the 8th day of December, 1972. The record reflects that a federal narcotics agent in December of 1972, attempted to purchase three ounces of heroin from him, and discussions about money for the supposed drugs took place, though no money ever changed hands.

With respect to the defendant Mandujano, the indictment alleges that he attempted to distribute one ounce of heroin on or about the 29th of March, 1973. A different federal narcotics agent testified that in March of 1973, he made contact with Mandujano, and offered him money for the purchase of heroin, giving him $650 for the alleged attempted purchase.

Defendants maintain that the interrogation by the special attorney for the Drug Enforcement Administration before the grand jury intentionally tracked the exact facts of the actual contacts between federal narcotics agents and the defendants, and that the questions were asked as a continuing part of an investigation of the narcotics activities of the defendants. 1 The agents involved,

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and the government attorney who appeared before the grand jury, testified that they had discussed the circumstances of the attempted buys in preparation for the appearance of Rangel and Mandujano before the grand jury. Given the nature of the investigation and the questions asked before the grand jury, the defendants maintain, and this Court agrees, that full Miranda warnings should have been given to the two individuals who were in a position of "putative" or "virtual" defendants.

The government maintains that neither case was considered for presentation to the grand jury prior to the testimony of the defendants before that body, and that both files had been closed following the contact between the defendants and the law enforcement officers; nevertheless, the facts of the case belie the government's protestations of innocent intent with respect to the possibility of future prosecutions. The special attorney who had conducted the questioning testified that he was well aware of the previous contacts with the defendants in attempts to buy from them, as well as the exact circumstances involved in each attempted buy. The transcript of the grand jury proceedings reveals deliberate and careful attention to questions which specifically delved into the facts concerning these contacts between the defendants and government agents. The special attorney was aware that no case had been made, and though this Court does not presume any improper motives on the part of the government agents or the special attorney, it strains credulity to suggest that the special attorney did not have one eye on a possible prosecution of the defendants. 2 The government had in fact already attempted to make a case against each defendant. Note too that each defendant, immediately after denying any contact about an attempted sale, was asked in the very next question about the validity of that answer, and defendant Rangel was promptly cautioned again about the penalty for perjury. Considering the totality of the circumstances in this case, the questioning of the defendants before the grand jury smacks of entrapment. Moreover, given the fact that the investigatory files involving the attempts to buy from

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both defendants had been closed, the questions posed presented a high likelihood that the answers provided by the defendants would furnish material for further action on the part of the government. If the defendants had admitted that they had offered to buy heroin for the undercover agent who approached them, the government could possibly have used such an admission in its case-in-chief in connection with the attempted sale. See United States v. Leighton, 265 F.Supp. 27 (S.D.N.Y.1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968); United States v. Montos, 421 F.2d 215 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). The denial by defendants that they had conversations about procuring heroin for the officers left them open to the consequent indictments for perjury. Actually, therefore, their only safe harbor would have been to remain silent, and this option was, in effect, denied to them.

The fact that defendants may have subjected themselves to serious risk of prosecution for perjury, or for the substantive attempt to sell heroin, would not necessarily have barred further use of their testimony. Certainly, if they had received full Miranda warnings during the initial phase of their appearance before the grand jury, but had continued to willingly testify, then their testimony would very likely have constituted a voluntary waiver of the right to remain silent. The Fifth Circuit has recently restated the well recognized rule that "a potential defendant may be subpoenaed to appear before a grand jury and be subsequently indicted without violating the self-incrimination proscription, if he testifies voluntarily." United States v. Morado, 454 F.2d 167, 172 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972).

This Court finds that neither defendant made a complete, knowing, and intelligent waiver of the right to remain silent, nor was either defendant properly apprised of that right, or of his right to appointed counsel outside the grand jury room. As to defendant Rangel, the statement of the right to remain silent was so garbled as to be highly suspect, especially in the context of the following complete excerpt from the transcript:

"Now anytime I ask you a question and you feel the answer would tend to incriminate you, you have a right to refuse to answer that question, but you can't refuse to answer a question if it is not-if the answer would not tend to incriminate you. In other words, you would be in contempt of court. Do you understand what I mean by incriminate you?"

Besides the convolution of the double negative in the foregoing language, that warning, as administered to defendant Rangel, contains an implicit threat which all but...

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