U.S. v. Wong, 74-1636

• Decision Date: 23 September 1974
• Docket Number: No. 74-1636,74-1636
• Citation: 553 F.2d 576
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Rose WONG, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 576

553 F.2d 576

UNITED STATES of America, Plaintiff-Appellant, v. Rose WONG, Defendant-Appellee.

No. 74-1636.

United States Court of Appeals, Ninth Circuit.

Sept. 23, 1974.

Certiorari Granted June 1, 1976.

See 96 S.Ct. 2224.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellant.

Allan Brotsky, Garry, Dreyfus, McTernan & Brotsky, San Francisco, Cal., for defendant-appellee.

Before KOELSCH and SNEED, Circuit Judges, and FIRTH, ^* District Judge.

OPINION

KOELSCH, Circuit Judge:

Appellee was subpoenaed to testify before the Grand Jury investigating illegal gambling and police payoffs in the Chinatown area of San Francisco. At that time the government already possessed incriminating evidence against her; she was a target of the Grand Jury's investigation and likely to be indicted. ¹ Immediately before questioning appellee, the district attorney informed her of her privilege against self-incrimination, and of the possible consequences of testifying falsely. He then asked questions, tailored by his previously obtained knowledge of appellee's criminal involvement, true answers to which would have been incriminating. Appellee's false answers formed the basis for a subsequent perjury indictment. 18 U.S.C. § 1623.

Following her arraignment on the charge, appellee moved to suppress her answers. The district court determined, based on extensive evidence adduced by affidavit and at a heaing, that appellee, who was born in China and uses English only as a second language, had not understood that portion of the prosecutor's questioning designed to inform her of her right to remain silent. ² Consequently the district court, relying on United States v. Rangel, 365 F.Supp. 155 (W.D.Tex.1973), and the implications of statements in our decision in Robinson v. United States, 401 F.2d 248 (9th Cir. 1968), ordered the testimony suppressed. The government has appealed. We affirm.

We emphasize at the outset that affirmance is rested not on the self-incrimination clause, but rather on the due process clause of the Fifth Amendment. The perjurious answers were induced by an unfair procedure violative of the latter clause. That unfairness stems from the threat the procedure poses to the values protected by the privilege.

The government correctly points out that the privilege against self-incrimination does not afford a defense to a witness under compulsion who, rather than refusing to answer (or, if improperly compelled to answer, giving incriminating answers), gives false testimony. E. g., United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911); Robinson v. United States, supra; United States v. Orta, 253 F.2d 312 (5th Cir. 1958); United States v. Parker, 244 F.2d 943 (7th Cir. 1957). The reason is fundamental: "(T)he immunity afforded by the constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury." Glickstein, supra, 222 U.S. at 142, 32 S.Ct. at 73. Because the judicial system is committed to interpreting the privilege against self-incrimination generously obviating totally the danger of oppressive governmental conduct both to those who remain silent and to those who unwillingly incriminate themselves becase of improper governmental compulsion, the legal system reciprocally need not and cannot tolerate perjury. If a witness is improperly compelled to incriminate himself, he may do so and later be protected, but he may not avoid the object of the compulsion by perjury and be protected by the privilege (United States v. Knox, supra, 396 U.S. at 82, 90 S.Ct. 363) the judicial system cannot properly operate if it countenances the breach of trust implicit in that course. See United States v. Orta, supra, 253 F.2d at 314-315.

But that principle is inapplicable to this matter. We cannot ignore the fact that the procedure employed by the government was fraught with the danger, if indeed not intended, of placing appellee in the position of either perjuring or incriminating herself. We agree with the Fifth Circuit that the government's use of such a procedure against a witness it knows to be virtually in the position of a defendant is unfair, unless accompanied by warnings which in fact apprise the witness of the right to remain silent and which thoroughly obviate the substantial danger created of involuntary self-incrimination or perjury, and that the induced perjured testimony must be suppressed. United States v. Rangel, 496 F.2d 1059 (5th Cir. 1974); United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974). See United States v. Kreps, 349 F.Supp. 1049 (W.D.Wis.1972); United States v. Fruchtman, 282 F.Supp. 534 (N.D.Ohio 1968); United States v. Thayer, 214 F.Supp. 929 (D.Colo.1963).

Unlike the situation with an ordinary witness, ³ the government knows in advance that when it subpoenas someone in appellee's position, a so-called "putative defendant," and asks directly incriminating questions, it is thereby placing the witness in a dangerous dilemma. The imposing ex parte nature of grand jury inquisitions,...