United States v. Mandujano, 73-3353.

• Decision Date: 16 October 1974
• Docket Number: No. 73-3353.,73-3353.
• Citation: 496 F.2d 1050
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Roy MANDUJANO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 1050 (1974)

UNITED STATES of America, Plaintiff-Appellant, v. Roy MANDUJANO, Defendant-Appellee.

No. 73-3353.

United States Court of Appeals, Fifth Circuit.

June 28, 1974.

Rehearing and Rehearing Denied October 16, 1974.

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

Michael Allen Peters, Houston, Tex. (Court-appointed), for defendant-appellee.

Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.

Rehearing and Rehearing En Banc Denied October 16, 1974.

TUTTLE, Circuit Judge:

On May 2, 1973, appellee Mandujano appeared as a witness before the DALE (Drug Abuse Law Enforcement) Grand Jury, pursuant to a subpoena. The following warnings were given Mandujano:

"Q: Now you are required to answer all the questions that I ask you except for the ones that you feel would tend to incriminate you. Do you understand that?

A: Do I answer all the questions you ask.

Q: You have to answer all the questions except for those you think will incriminate you in the commission of a crime. Is that clear?

A: Yes, sir.

Q: You don\'t have to answer questions which would incriminate you. All other questions you have to answer openly and truthfully. And, of course, if you do not answer those truthfully, in other words, if you lie about certain questions, you could possibly be charged with perjury?"

Mandujano was further advised that he could have an attorney outside the grand jury room; however, he was not told that he had a right to have appointed counsel outside the grand jury room, that what he said could be used against him in later proceedings, and that he had a right to remain silent.¹

A federal narcotics agent had reported that in March, 1973, he offered Mandujano money for the purchase of heroin and gave him $650 for the attempted purchase. The government attorney who questioned Mandujano before the grand jury testified at the motion to suppress that he had discussed with the agent the circumstances of this attempted buy in preparation for Mandujano's appearance before the grand jury. Evidence taken on the motion to suppress also showed that the government attorney requested suggestions for witnesses to be supoenaed before the grand jury from the agent who had dealt with Mandujano and the agent recommended calling Mandujano and then reported to the attorney how the actual attempt had occurred.

Mandujano was asked the following questions, inter alia, by the government attorney before the grand jury:

Q: And you have never told anybody that you would try to get heroin to sell to them?

A: No, sir.

Q: Now, you can say here today that you have not discussed the sale of heroin with anybody in the last year?

A: I don\'t understand you, sir.

Q: Have you talked to anybody about selling heroin to them during the last year?

A: No, sir.

Q: Are you sure about that?

A: I just, you know, I discuss it, you know, when we buy it, you know, to fix it just, you know.

Q: Has anyone ever asked you if they could buy an ounce of heroin or more from you?

A: No, sir.

Q: Let me ask you once again Mr. Mandujano, have you ever talked to anybody about selling them heroin in the last year?

A: No, sir.

Q: No one has ever given you any money —

A: No.

Q: — to go buy them heroin?

A: No, sir.

Q: In other words, if you had $650 right now —

A: Yes, sir.

Q: — Do you think you would be able to purchase an ounce of heroin? . . ."

This interrogation tracked the exact facts of the actual contact between the federal narcotics agent and Mandujano.

The appellee was subsequently indicted in count 1 under 21 U.S.C.A. § 846 for attempt to distribute one ounce of heroin on or about the 29th of March, 1973, and in count 2 under 18 U.S.C.A. § 1623 for making false representations. The perjury count was based on Mandujano's denial before the grand jury of any attempt to obtain or sell heroin or any solicitation to do so.

The district court granted appellee's motion to suppress his testimony before the grand jury, finding that appellee was a virtual or putative defendant in custody under the Miranda² decision, and therefore should have been given all Miranda warnings. United States v. Mandujano, 365 F.Supp. 155 (W.D.Tex. 1973). The district court determined that the warnings given were inadequate and that appellee could not be deemed to have voluntarily waived his Fifth Amendment right to remain silent. Appellee was convicted under count 1 for attempt to distribute heroin, without use of his grand jury testimony.

I. "PUTATIVE OR VIRTUAL" DEFENDANT

Given the nature of the investigation and the questions tendered by the government attorney, the district court held, and this Court agrees, that full Miranda warnings should have been accorded Mandujano who was in the position of a virtual or putative defendant. The district court aptly portrayed the circumstances warranting the fact finding that Mandujano was a virtual or putative defendant during his appearance before the grand jury:

"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 contact 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 defendant 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. 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 . . . 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 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 admitted that they had offer 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." United States v. Mandujano, 365 F.Supp. at 158-159 (W.D. Tex.1973).³

We construe the foregoing statements by the trial court to be findings that the government had focused upon Mandujano as someone whom the government had knowledge of having committed a crime, as a person whom the government had planned to indict as it had one eye on prosecution, and against whom it was gathering incriminating evidence. Also the discussion indicates that the trial court found that when Mandujano was brought into the grand jury room, the government then knew that an affirmative answer to questions put to him would amount to a confession of guilt of trafficking in heroin.

Although this Court has recently pretermitted the question of the scope of Miranda in the context of a putative defendant before a grand jury investigation, United States v. Morado, 454 F.2d 167 (5th Cir. 1972) and Mattox v. Carson, 424 F.2d 202 (5th Cir. 1970), cert. denied, 400 U.S. 822, 91 S.Ct. 43, 27 L. Ed.2d 51 (1971), we have recognized that as a general rule a grand jury witness is not entitled to warnings of his right to appointed counsel and his right to remain silent.⁴ The Court of Appeals for the Sixth Circuit, however, has carved out the exception that when a person ceases to be merely a witness in a general investigation and becomes placed "virtually in the position of a defendant," then the full panoply of rights under Miranda due a person in custody must be afforded. See United States v. Luxenberg, 374 F.2d 241 (6th Cir. 1967); United States v. Fruchtman, 282 F.Supp. 534 (N.D.Ohio 1968), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed. 2d 86 (1970); Stanley v. United States, 245 F.2d 427 (6th Cir. 1957).⁵

In United States v. Morado, supra at 173, we have already recognized the force of the argument that if an investigation has passed beyond the stage of a general inquiry and has focused upon the defendant, then the defendant would be in the position of a virtual defendant:

"Without intimating whether this circuit will agree with this `virtual defendant\' perspective, we note that its emphasis is upon the same factor we have considered to be of prime importance in determining whether or not a man is `in custody\' as that term is used in Miranda: `has the focus of the investigation centered upon him?\' United States v. Phelps, 443 F.2d 246 (5th Cir. 1971); United States v. Akin, 435 F.2d 1011 (5th Cir. 19

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