372 F.3d 686 (4th Cir. 2004), 02-4917, United States v. Kennedy

Docket Nº:02-4917.
Citation:372 F.3d 686
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert KENNEDY, Jr., Defendant-Appellant.
Case Date:June 24, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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372 F.3d 686 (4th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Robert KENNEDY, Jr., Defendant-Appellant.

No. 02-4917.

United States Court of Appeals, Fourth Circuit

June 24, 2004

Argued: Jan. 21, 2004.

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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.


John L. Brownlee, United States Attorney, Brian Samuels, Third Year Law Intern, Roanoke, Virginia, for Appellee.

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 dissenting 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 prosecutorial 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 encompass 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, 96 S.Ct. 1768, 48 L.Ed.2d 212 (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.


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

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 trafficking and money laundering offenses in the Danville, Virginia area. The specific purpose of Kennedy's appearance was to elicit information about other individuals dealing drugs in Danville, and about certain land transactions in which Kennedy was involved. According to the United States,

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Kennedy was not a target of the investigation. Mott claims that he notified Kennedy's trial attorney, Christopher Kowalczuk, that Kennedy would appear before a grand jury on February 19. Kowalczuk did not show up for the proceeding, however, and Kennedy disputes whether Mott ever notified Kowalczuk of the grand jury appearance.

Before appearing in front of the grand jury on February 19, Kennedy was first interviewed in the U.S. Marshal's Office in the Roanoke federal building. Mott, Detective Thomas Merricks of the Danville Police Department, and Sergeant T.L. Nicholson of the Pittsylvania 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 statements 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 Kennedy any Miranda warnings, but continued to question him about who "he dealt with." During the course of further interrogation, Kennedy 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, Kennedy 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 convicted of?" Mott clarified that "because you've been tried and convicted ... 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 present in the grand jury room, Kennedy could consult with him outside the room before answering any question. Finally, Mott reminded Kennedy 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

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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 Kennedy 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, Kennedy reiterated his desire not to talk to the grand jury, and he claimed not to remember anything about his February 19 testimony. According 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 appearance 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 Kennedy 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 consequences 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 consequences 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 the grand jury on February 19. Count 1 was based on allegedly false...

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