U.S. v. Gillespie, 91-2593

• Citation: 974 F.2d 796
• Decision Date: 28 September 1992
• Docket Number: No. 91-2593,91-2593
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. GILLESPIE, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 796

974 F.2d 796

UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. GILLESPIE, Jr., Defendant-Appellant.

No. 91-2593.

United States Court of Appeals Seventh Circuit.

Argued April 7, 1992.

Decided Aug. 20, 1992.

As Amended Sept. 28, 1992.

Patrick Hansen, Andrew B. Baker, Jr. (argued), Asst. U.S. Attys., Office of the U.S. Atty., Dyer, Ind., for U.S.

Joseph S. Van Bokkelen, Debra L. Dubovich (argued), Goodman, Ball & Van Bokkelen, Highland, Ind., Robert L. Lewis Gary, Ind., for Gillespie.

Before FLAUM and MANION, Circuit Judges, and SHADUR, District Judge. ^*

FLAUM, Circuit Judge.

In October 1988, Tom P. Gillespie, Jr., honored a government subpoena by testifying before and presenting documents to a federal grand jury investigating improprieties surrounding certain contracts entered into by the City of Gary, Indiana. The inquiry focused primarily on the city's relationship with Inner City Leasing and Trucking Company and Gillespie's business, Gillespie Ford, Incorporated. Sometime during Gillespie's testimony, the government began to suspect that he had obtained unreported taxable income through his performance of municipal contracts on behalf of Inner City and, as a result, he became a potential defendant, or "target." The grand jury subsequently returned an indictment against Gillespie, charging him with one count of obstruction of justice for lying to the grand jury in violation of 18 U.S.C. § 1503, and two counts of filing false income tax statements in violation of 26 U.S.C. § 7206(1).

A jury ultimately found Gillespie innocent on the obstruction count but guilty on the two tax counts. He was sentenced to three years probation, on the conditions that he reside for six months in a residential facility on work release, pay the cost of his confinement and prosecution, satisfy his federal tax liabilities, and perform 300 hours of community service. Gillespie appeals his conviction, challenging the admission of his grand jury testimony and the sufficiency of the evidence. His sentence was stayed pending the outcome of this appeal. We affirm.

I.

The United States Department of Justice, as a matter of internal policy, attaches to the subpoenas of grand jury targets ¹ and subjects ² a written warning, called an "Advice of Rights" form, which states as follows:

A. The grand jury is conducting an investigation of possible violations of federal criminal law involving: (State here the general subject matter of inquiry, e.g., the conducting of an illegal gambling business in violation of 18 U.S.C. § 1955).

B. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.

C. Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.

D. If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you do so desire.

U.S. Dep't of Justice, United States Attorneys' Manual, Title 9, Ch. 11, p 9-11.150, at 10. According to the Manual, "[n]otwithstanding the lack of a clear constitutional imperative," these warnings are appended to target or subject subpoenas in all circumstances except those--not present here--in which notice might jeopardize the investigation. Id. The Manual further provides that the prosecutor should orally deliver these warnings on the record before the grand jury, and should seek confirmation that the witness understands them. Id. The Manual also specifies that the government is to provide targets with special warnings--appropriately termed "target warnings"--notifying them of their status as potential defendants. Id. The target warnings are to be administered on the record when the target witness receives the oral Advice of Rights. Id.

In contravention of this policy, the government failed to warn Gillespie orally of his right against self-incrimination when he appeared before the grand jury. Nor was Gillespie orally warned that he had become a target. The parties dispute whether Gillespie received the Advice of Rights form normally attached to subpoenas; the government maintains that he did, while Gillespie argues he did not. The district court resolved this issue in Gillespie's favor--a determination with which, as discussed more fully below, we disagree--and found that the government had not effectively warned him of his rights. Despite that omission, however, the court concluded that no constitutional right to warnings against self-incrimination exists in the grand jury context, and refused to dismiss the tax charges against Gillespie or to suppress his grand jury testimony.

On appeal, Gillespie urges us to exercise our supervisory powers to suppress his grand jury testimony because the prosecutor overlooked the Department of Justice's internal guidelines in failing to provide him a target warning. Alternatively, Gillespie argues that as a grand jury witness he was constitutionally entitled to some sort of warning against self-incrimination, and that the government's failure to provide any such warning mandates suppression of his grand jury testimony.

II.

We first address the district court's determination that Gillespie did not receive an Advice of Rights form with his subpoena, for this factual issue provides a critical backdrop to our analysis. In December 1990, Gillespie filed a motion to dismiss the two tax counts on the ground that he was not given a target warning during his appearance before the grand jury. Significantly, the motion admitted that Gillespie had received the Advice of Rights form. See Joint Motion to Dismiss Indictment at 1-2. The accompanying memorandum likewise admitted receipt of the written warnings. See Memorandum in Support of Motion to Dismiss at 1. Gillespie subsequently filed a motion to suppress his grand jury testimony, alleging it was taken in violation of his fifth amendment right against self-incrimination.

At an evidentiary hearing on Gillespie's motions, the Internal Revenue Service special agent who had served Gillespie with the subpoena testified that an Advice of Rights form was attached to the subpoena when it was served. I Tr. at 8-9. He further testified that when he served the subpoena he did not wait for Gillespie to read the form, and did not at that time provide oral warnings. The government offered into evidence a certified copy of the subpoena, bearing the date the subpoena was served on Gillespie and attached to which was a proper form. Id. at 8-10. Gillespie then took the stand and, contrary to his motion to dismiss and accompanying memorandum, testified that he did not receive an Advice of Rights form with the subpoena. Id. at 13-14. He further stated that he had made a copy of the subpoena, but had left it in his file at Gillespie Ford. Id. at 17. Gillespie also testified that he had shown a copy of the warning-deficient subpoena to his lawyer, Robert Lewis, but Lewis declined to take the witness stand. Id.

The district court found this evidence inconclusive. United States v. Gillespie, 773 F.Supp. 1154, 1156 (N.D.Ind.1991). Reasoning that if a constitutional right to Miranda warnings existed in the grand jury context the government would bear the burden of showing it gave such a warning, the court determined that the government had failed to carry its "hypothetical burden" here. Although the court observed that Gillespie's testimony was "[a] peculiar turn of events given [Gillespie's] reference to the form on the first page of his 'Joint Motion to Dismiss Indictment,' " id. at 1156 n. 2, it concluded that the government here had not effectively warned Gillespie of his rights. The court then proceeded to reach the constitutional issue of whether Miranda or similar warnings are required in the grand jury context, answering the question in the negative.

We respectfully disagree with the district court's analysis. The government offered the testimony of an IRS agent who stated that the warning form was attached to the subpoena, and placed into evidence a certified copy of the subpoena and attachment. Gillespie responded by denying receipt of the warning form despite his earlier admissions to the contrary, and provided neither tangible proof--i.e., his copy of the subpoena which, as noted, he claimed to have--nor the testimony of his attorney, who allegedly had viewed the subpoena sans warnings. After weighing this evidence, the district court nonetheless determined that the government failed to carry its burden of proof.

Even assuming--without deciding--that the government carries the burden in this context, cf. Medina v. California, --- U.S. ----, 112 S.Ct. 2572, 2581, 120 L.Ed.2d 353 (1992) (government generally bears burden of proof when it seeks to introduce inculpatory evidence obtained by virtue of a waiver of, or in violation of, a defendant's constitutional rights), as applied here, the "hypothetical burden" erected by the district court placed too great an onus on the government. Indeed, we question whether the government ever could satisfy its burden under the standard applied by the district court. In other contexts involving motions to suppress in which the government bears the burden of proof, the Supreme Court has held that a preponderance of the evidence standard applies. See, e.g. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986) (waiver of Miranda rights); Nix v. Williams, 467 U.S. 431, 444-45 n. 5, 104 S.Ct. 2501, 2509 n. 5, 81 L.Ed.2d 377 (1984) (inevitable discovery of evidence obtained by unlawful means); United States v. Matlock, 415 U.S. 164, 177-78 n. 14, 94 S.Ct. 988, 996 n. 14, 39 L.Ed.2d 242 (1974) (voluntariness of consent to search); Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972) (voluntariness of confession). As a general matter, "[t]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance...