541 F.2d 490 (5th Cir. 1976), 75-1810, United States v. Doe

Docket Nº:75-1810.
Citation:541 F.2d 490
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. John DOE et al. (Grand Jury Investigation), Defendants-Appellees.
Case Date:October 29, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 490

541 F.2d 490 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellant,

v.

John DOE et al. (Grand Jury Investigation), Defendants-Appellees.

No. 75-1810.

United States Court of Appeals, Fifth Circuit

October 29, 1976

Page 491

John E. Clark, U.S. Atty., W. Ray Jahn, James W. Kerr, Jr., Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellant.

Oscar Gonzalez, San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, Chief Judge, and TUTTLE and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This is a fall-out from Mandujano 1 decided since the District Court considered and we considered the appeal. In connection with an investigation of illegal gambling activities in Las Vegas, Nevada and San Antonio, Texas, a subpoena was issued on February 24, 1975, commanding William Weilbacher (Witness), a sergeant on the San Antonio Police Department, to appear on February 26, 1975, before a properly convened federal grand jury sitting in San Antonio, Texas. Upon service of the subpoena on February 25, 1975, Witness promptly filed a motion to quash alleging that the sole purpose of the subpoena was to embarrass Witness by, intimidate Witness with, and implicate Witness in the illegal gambling activities being examined. 2 A hearing on the motion was held on February

Page 492

26, 1975, by the District Court. After receiving the testimony of Witness, the San Antonio Chief of Police, and an Assistant United States Attorney, Mr. Wayne Speck, and immediately subsequent to direct questioning of Mr. Speck by the Court, 3 the subpoena was quashed. Contending the Court's action was based entirely on Witness's status as a potential defendant, the Government appeals. We reverse.

Since no findings of fact were made by the District Court and none were requested by counsel for either party, the validity of the District Court's ruling must be predicated on the record extant in light of the applicable and intervening law. It is apparent from the colloquy set forth above that the District Court was aware of Mandujano which had previously come before that court and was affirmed by this Circuit. 4 Any question regarding the necessity of giving full Miranda warnings to one who is a target of a grand jury investigation or using the potential defendant status as the basis for quashing a subpoena to appear and testify before a grand jury has been eliminated. As the Supreme Court emphasized in United States v. Mandujano, simply because one is or may be a target of an inquiry is not sufficient to justify quashing a subpoena mandating attendance before a grand jury for testimony purposes. Mandujano, supra, --- U.S. at ----, 96 S.Ct. at 1775, 48 L.Ed.2d at 220-21; see United States v. Dionisio, 1973, 410 U.S. 1, 10 n. 8, 93 S.Ct. 764, 35 L.Ed.2d 67; United States v. Calandra, 1974,414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561; United States v. Morado, 5 Cir., 1972, 454 F.2d 167, 172.

Examination of the record before this Court indicates no challenge has been asserted against the grand jury. In fact, during oral argument before this Court, Witness through his counsel stated his willingness to appear before the grand jury if Wayne Speck would be removed from the investigation not just from assisting the grand jury during Witness's appearance. Thus, no criticism exists about the...

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