U.S. v. Chevoor, 75--1144

• Decision Date: 19 April 1976
• Docket Number: No. 75--1144,75--1144
• Citation: 526 F.2d 178
• Parties: UNITED STATES of America, Appellant, v. Robert CHEVOOR, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 178

526 F.2d 178

UNITED STATES of America, Appellant, v. Robert CHEVOOR, Defendant-Appellee.

No. 75--1144.

United States Court of Appeals, First Circuit.

Argued Sept. 4, 1975.

Decided Dec. 3, 1975.

Certiorari Denied April 19, 1976.

See 96 S.Ct. 1665.

James A. Hunolt, Atty., U.S. Dept. of Justice, with whom James N. Gabriel, U.S. Atty., Martin D. Boudreau, Sp. Atty., U.S. Dept. of Justice, and Shirley Baccus-Lobel, Atty., U.S. Dept. of Justice, were on brief, for appellant.

Jeffrey M. Smith, Boston, Mass., with whom Paul T. Smith and Harvey R. Peters, Boston, Mass., were on brief, for defendant-appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and THOMSEN, ^* Senior District Judge.

COFFIN, Chief Judge.

Robert Chevoor was indicted under 18 U.S.C. § 1623 for knowingly making false declarations to a federal grand jury. The district court, finding fundamental unfairness in the totality of the circumstances surrounding Chevoor's grand jury appearance, suppressed the grand jury transcript and dismissed the indictment. 392 F.Supp. 436 (D.Mass.1975).

In January, 1973, an intensive government investigation was launched into alleged gambling and loansharking by one Michael Pellicci, activities for which he was subsequently indicted. This effort involved the use of undercover agents and of court-authorized interceptions of wire and oral communications. From these sources, the government obtained evidence which indicated that Chevoor was a victim of Pellicci's loansharking, owed Pellicci $7,000, was being pressed to do political favors for Pellicci, and also was involved in the repayment by a third party of a larger loan to Pellicci. Particularly damning in the government's view was an intercepted December 9, 1973 conversation between Pellicci and Chevoor in which 'payments' by the alleged third party were discussed.

On the evening of January 8, 1974, two F.B.I. agents went to Chevoor's house to serve upon him a subpoena calling for his appearance before the grand jury on January 9. Prior to serving the subpoena, agent Vaules told Chevoor that he was not a grand jury target, but that the grand jury was investigating Pellicci, and he asked Chevoor a number of questions about his association with Pellicci, including whether Chevoor owed Pellicci money or knew about others who did. Chevoor answered these questions in the negative. The district court subsequently found that his responses were clearly inconsistent with the transcript of the December 9 intercepted conversation. The district court also found that during the course of this meeting, the F.B.I. agent told Chevoor that he 'had to testify', or at least 'had to appear', before the grand jury.

The subpoena (and the agent) directed Chevoor to report the next morning to Strike Force attorney Friedman in connection with his grand jury appearance. Friedman told Chevoor that the grand jury was investigating Pellicci's loansharking, and that Chevoor was not a target, but that he could expect to be prosecuted if he gave false testimony before the grand jury. Then, with a transcript of the December 9 conversation before him (not identified as such to Chevoor), Friedman questioned Chevoor about whether he had ever borrowed money from Pellicci, whether he owed money to Pellicci, whether he knew others who did, and whether he had ever discussed with Pellicci repayments of such loans. Chevoor again responded negatively. Friedman said he knew Chevoor was not cooperating and not telling the truth; Chevoor asked in what respects this was so. Vaules (who was there throughout this interview) interrupted: 'We are not going to tell you what we have on you.' Despite this pressure, Chevoor did not change his story. The district court found that on the way to the grand jury room, Friedman told Chevoor that he 'just got six or seven guys like you for perjury' in New York or New Jersey.

Before the grand jury, the same questions, among others, were asked, and the same negative responses given by Chevoor. His later indictments were for material false statements with respect to whether Chevoor had ever owed money to Pellicci; whether he had ever discussed with Pellicci payments due to the latter; and whether he had ever discussed with Pellicci the fact that other individuals owed Pellicci money.

The district court found as a fact that during the January 9 office conversation, neither Friedman nor Vaules informed Chevoor that the December 9 conversation had been intercepted, ¹ that the questioning was based on that conversation, or that the answers given both on the 8th and the 9th conflicted specifically with it. The district court also found that on January 9, Chevoor was not given Miranda warnings or told of any of his rights under the Fifth and Sixth Amendments. At the time of his appearance, Chevoor was a 40 year old school teacher and real estate broker, and a member of the Watertown Redevelopment Authority. He had a B.A. in business administration and had recently received a Master's degree in Education. He was not accompanied by a lawyer.

The district court's assessment of this case relied heavily upon the existence of 18 U.S.C. § 1001, which makes it a crime to make false statements in matters within the jurisdiction of federal departments or agencies. ² The court felt that Chevoor's responses prior to entering the grand jury room, first on January 8 to the F.B.I. agents, then on January 9 to Vaules and Friedman, had violated this statute. ³ These violations, in the opinion of the district court, made government assurances to Chevoor that 'he was not a target' at least misleading. 'Both (Friedman) and Vaules knew, or should have known, that the defendant was subject to possible indictment for having made false statements to a federal officer.' 392 F.Supp. at 440.

The district court, moreover, found that Chevoor was a target in another sense. '(I)t would have been unrealistic for Vaules and Friedman to assume that defendant would do anything but give the same, apparently untruthful, answers before the grand jury.' Id. Although Pellicci was their primary interest and the subpoena originally was issued to Chevoor as a witness in the investigation of Pellicci, the 'prime purpose of putting him on the (grand jury) stand', in light of the intervening denials, was, in the view of the district court, to obtain a perjury indictment. Id. at 442.

Putting these two factors together, the district court saw Chevoor as being on the horns of a dilemma. The government had put him into a situation where his choices were to tell the truth, which would provide evidence against him under a subsequent § 1001 indictment, or to lie, which would open him up to an indictment for perjury. In this connection, the agent's indication the night before that Chevoor 'had to testify', coupled with the absence of warnings as to his rights, foreclosed to Chevoor his third option, the one which should have been afforded to him explicitly: his right to take the Fifth Amendment.

The court found that the totality of the circumstances made Chevoor a 'potential, if not probable' and a 'likely, if not inevitable' grand jury target. As such, the court reasoned, Chevoor should have been told of his right to remain silent. While recognizing that the failure to give such a warning is ordinarily no license for perjury, the court cited 'unique and compelling circumstances' which in this case warranted such a result: (1) the unknown interception; (2) the two statements inconsistent with that conversation; (3) the government assurances that Chevoor was not a target; and (4) the summons without warnings for the purpose of asking the same questions. ⁴ These factors added up to a situation where the government 'turned the screw too tightly' and violated Chevoor's right not to be 'ensnared'; the resulting fundamental unfairness justified suppression of grand jury testimony under the due process clause of the Fifth Amendment and the court's supervisory powers; and the indictment was dismissed because without the grand jury testimony there was no evidence of perjury. Were we to accept all of the premises assumed by the district court--i.e., the government's placing of a witness in a situation where criminal prosecution would follow whether he lied or told the truth--we might well be of the same mind. Our difference stems from our non-acceptance of one of the premises.

The district court saw Chevoor in the position of a grand jury witness whose testimony was so likely to be incriminating that the jury could be said to have the objective of using him as a target for ultimate prosecution rather than as an instrument for investigating the criminality of another. The general rule, of course, is that a prospective witness such as was Chevoor when he was subpoenaed ⁵ is entitled to no warnings of constitutional rights. United States v. DiMichele, 375 F.2d 959 (3d Cir.), cert. denied, 389 U.S. 838, 88 S.Ct. 54, 19 L.Ed.2d 100 (1967). Even if the prosecution and the grand jury fully expect that the witness will perjure himself, there is no obligation to give protective warnings. ⁶ Absent other pressures, a witness is expected to tell the truth. The privilege against self-incrimination bars compelled testimony as to past crimes; it does not shelter new perjury. ⁷

When a grand jury witness is knowingly put in the position, if he testifies at all, of either perjuring himself or incriminating himself, a number of courts have recently held that he should be given Miranda warnings or at least the advice that he may remain silent as to incriminating matters--the position taken by the district court. ⁸ We have considerable sympathy with this approach. While there is not the isolated and unobservable station house custody which underlies the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the conjunction of an assembled grand jury, a vigorous prosecutor, and ex parte proceedings...