In re Kelly

• Decision Date: 06 November 1972
• Docket Number: No. LR-72-C-192.,LR-72-C-192.
• Citation: 350 F. Supp. 1198
• Parties: In the Matter of Paul E. KELLY.
• Court: U.S. District Court — Eastern District of Arkansas

350 F. Supp. 1198

In the Matter of Paul E. KELLY.

No. LR-72-C-192.

United States District Court, E. D. Arkansas, W. D.

November 6, 1972.

Gilbert H. Deitch, Atlanta, Ga., John Fincher, Hale, Hale & Fincher, Little Rock, Ark., for plaintiff.

W. H. Dillahunty, U. S. Atty., O. H. Storey, III, Asst. U. S. Atty., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

EISELE, District Judge.

Paul E. Kelly was subpoenaed by and appeared before the Federal Grand Jury for the Eastern District of Arkansas on September 14, 1972. Mr. Kelly answered two questions propounded by the Assistant United States Attorney and, invoking the Fifth Amendment, refused to answer additional questions. He gave his name and stated that he was "manager of the Sooner State News Agency". Defendant was brought before this Court and was instructed to answer the questions until such time that the Assistant U. S. Attorney advised him that he should consider himself one against whom a charge might be filed.

After returning to the grand jury room the witness again declined to answer the questions of the Assistant U. S. Attorney. He was brought before this Court in a contempt proceeding and held in civil contempt pursuant to 28 U. S.C. § 1826.

Although the Court found, on the witness' first appearance here, that the answers to certain of the questions would not incriminate him, that was not the basis of the Court's contempt ruling. The Court would not have adjudged defendant in contempt on that finding. The Court's ruling is based upon two legal principles which flow from the circumstances of this case. The first is that where the government has informed the witness and the Court that such witness will not be prosecuted on the basis of any testimony given before the grand jury, neither that testimony nor the fruits of that testimony may subsequently be used against him.¹ He receives, in effect, use immunity from prosecution.

Although this Court bases its ruling primarily on the second principle to be discussed below, it is convinced that because of the representations of the U. S. Attorney, neither Mr. Kelly's testimony, nor evidence derived therefrom, would be admissible against him in a subsequent prosecution. Upon a finding by the court that this promise has been made by the U. S. Attorney, the witness is in no danger of prosecution as a result of his compelled testimony and he has in effect been immunized.² This immunity derives from inherent prosecutorial discretion as exercized daily. No court could permit the U. S. Attorney or the Justice Department to renege on such a promise (even if not specifically authorized by act of Congress or his supervisors in the Justice Department) without running afoul of Constitutional principles.

The second principle is that a witness before the grand jury, and especially an employee of a company or corporation under investigation by the grand jury, must be warned that he might be prosecuted and that his testimony might be used against him and that he has the right not to incriminate himself. If he is not so warned, that testimony and its fruits may not be used against him. This protection, or "immunity" if one prefers, is based upon Constitutional, not statutory, considerations.

In this case, Mr. Kelly and the Court were assured by the office of the U. S Attorney that he would not be prosecuted as a result of any testimony that might be elicited, and the Assistant U. S. Attorney questioning Mr. Kelly at no point informed him that he might be prosecuted. The U. S. Attorney in this District has followed the practice of not prosecuting any witness not so warned.

The Eighth Circuit has not ruled on the question of warnings to a witness before the grand jury, and other circuits have not adopted the position taken by this Court. Judge Clark in United States v. Morado, 454 F.2d 167 (5th Cir. 1972) summarizes the positions of some of the circuits.

"Though this circuit has recently pretermitted the question of the scope of Miranda in the context of grand jury investigations, . . ., the general rule is that a grand jury witness is not entitled to warnings of his right to counsel, and his right to remain silent. Robinson v. United States, 401 F.2d 248 (9th Cir. 1968); United States v. DiMichele, 375 F.2d 959 (3rd Cir. 1967); United States v. Winter, 348 F.2d 204 (2nd Cir. 1965); United States v. Parker, 244 F.2d 943 (7th Cir. 1957); United States v. Sculley, 225 F.2d 113, 116 (2nd Cir. 1955). The Sixth Circuit, however, has recognized that when a man ceases to be merely a witness in a general investigation, but has been placed `virtually in the position of a defendant,' then he must be afforded the fully (sic) panoply of rights due a defendant in custody. United States v. Luxenberg, 374 F.2d 241 (6th Cir. 1967); Stanley v. United States, 245 F.2d 427 (6th Cir. 1957)."

The distinctions drawn by the courts among various classes of witnesses are actually more subtle than Judge Clark indicates. In this Court's view those distinctions form an inadequate and deceptive premise upon which to predicate nice differentials in treatment.

"Some courts distinguish between actual defendants called to testify before a grand jury (sometimes called de jure defendants), witnesses marked for probable prosecution but not formally indicted (sometimes called de facto defendants), witnesses marked for possible prosecution, and those witnesses not considered for prosecution. The courts which make these distinctions reason that the process of subpoenaing the witness amounts to compelling his testimony. The more the government has focused upon the witness, the more likely it is that his testimony will be used in a subsequent criminal proceeding against him. If the witness is the accused, most courts require that a caution or warning of the fifth amendment privilege be given. Some courts have extended this protection to `probable defendants'. Thus where the witness is not warned, even though he does not affirmatively object at the time of questioning, the indictment will be quashed.

"Some jurisdictions require that witnesses formally charged with a crime affirmatively waive fifth amendment protection when appearing before the grand jury, or the indictment is quashed. These rulings give the witness with the `status' of an actual defendant the right not to be questioned before a grand jury. In a small minority of cases this protection is also extended to include those marked for prosecution.

"The prosecutor can take advantage of the differences in rights afforded witnesses with different status by merely deferring the formal charges until after the grand jury questioning. The rights of a particular witness can turn on the time at which the prosecutor prefers charges. Where distinctions are made between probable and possible defendants, the witness' rights depend on the prosecutor's subjective intent. Additionally, the time at which a witness' status shifts from that of a possible defendant to a probable defendant, as the grand jury questioning advances, can create administrative difficulty. The court is required to view the record to determine what the intent of the prosecutor was. This results in a collateral proceeding outside the grand jury room to determine the witness' status and it exposes the grand jury's secret record.

"For these reasons, most jurisdictions reject the use of a witness' status as the criterion for determining what protection is needed. It is asserted that the fifth amendment privilege is sufficient protection in the grand jury investigation, and being compelled to appear does not constitute being compelled to answer. Thus, the notion that a subpoena constitutes compulsion per se is generally rejected.

"The problem of defining a duty to caution the witness of his privilege is more difficult. Certainly those who have had the advice of counsel before entering the grand jury room are aware of the privilege. This would seem to encompass most of the witnesses involved in organized crime and the more sophisticated law breakers. Rather than relying on the presumption that everyone knows the law in his favor, a uniform duty to notify the witness of his fifth amendment privilege against self-incrimination would not only be in the interests of uniformity and convenience of administration but in the interest of fairness to those few without counsel sitting outside the grand jury room as well." Comment, The Grand Jury Witness' Privilege Against Self-Incrimination, 62 Nw.U.L.Rev. 207, 222-225 (1967). See also comment, Constitutional Law—Privilege Against Self-Incrimination—Requirement of Warning To Witness Testifying Before Grand Jury, 1956 Wash.U.L.Q. 373, 376.

A witness who has not been accused or is not the focus of an investigation is more likely to be uninformed of the privilege. An unknowing waiver of the privilege based upon the U. S. Attorney's subjective classification of the witness places an undue burden on the government and places the witness in one of the most precarious of positions imaginable.

Some courts have reasoned that because of the investigative function and inquisitorial nature of the grand jury, it cannot be burdened with affording a witness the full panoply of procedural safeguards. It is because in a grand jury proceeding there is no right to other procedural safeguards that a witness should be told of his right to remain silent.

Again, although this Court subscribes to the broad principle requiring warnings to all witnesses appearing before the grand jury, the witness here, Mr. Kelly, as an employee of the corporation under investigation, was in an even more dangerous situation than the normal witness.

It is of no consequence that a witness, as here, has consulted with an attorney before facing the grand jury. It is the duty of the government to warn the witness before questioning him. If it does not, he automatically gets immunity. If it warns him and he refuses to testify, the government...