U.S. v. Doss, 75-1463
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Citation | 563 F.2d 265 |
| Docket Number | No. 75-1463,75-1463 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Vincent Moran DOSS, Defendant-Appellant. |
| Decision Date | 23 September 1977 |
Robert W. Andrews, Erich W. Merrill, Memphis, Tenn., for defendant-appellant.
Thomas F. Turley, U. S. Atty., W. Hickman Ewing, Jr., Memphis, Tenn., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, and WEICK, EDWARDS, CELEBREZZE, PECK, LIVELY and ENGEL, Circuit Judges, sitting en banc.
On November 18, 1976, a panel of this court 1 released an opinion reversing two perjury convictions of appellant Doss and remanding them to the District Court for dismissal of the perjury indictments, 545 F.2d 548. The panel opinion held that the facts in the case showed
The holding of the case was set forth as follows:
Where a substantial purpose of calling an indicted defendant before a grand jury is to question him secretly and without counsel present without his being informed of the nature and cause of the accusation about a crime for which he stands already indicted, the proceeding is an abuse of process which violates both the Sixth Amendment and the due process clause of the Fifth Amendment. Indictments for perjurious answers given in such a proceeding must be quashed because the proceeding itself is void.
A footnote pertaining to this holding was appended which read as follows:
We make no comment upon what result would flow from calling a defendant indicted for one crime to appear and give evidence before a grand jury upon a wholly different and separable offense, since no such facts are before us.
Subsequent to the issuance of the panel opinion, the United States Attorney filed a petition for rehearing and a suggestion for rehearing en banc. A majority of the active judges of the court having voted in favor of rehearing en banc, and all issues previously submitted having been reconsidered by the court as a whole, the views previously expressed in the panel opinion are reiterated as set forth hereafter, except for the footnote referred to above. For the advice of the United States Attorneys in the four states of our Circuit, we also consider the question left open by the footnote in the panel opinion and express the view that where a defendant is indicted for a particular crime, that fact does not prevent his being called before a grand jury to give evidence upon a wholly different and separable offense so long as he is not questioned about the offense for which he stands indicted.
The facts in this case, due largely to appellant Doss' extensive criminal activity, are complex ones. After Doss had been convicted in three separate jury trials on a variety of felony charges resulting in cumulative sentences totaling 15 years, he was also tried on an indictment consisting of four counts of perjury based on his testimony before a federal grand jury. Count I
was dismissed by the District Judge. At jury trial appellant was found not guilty on Count II, but was found guilty on Counts III and IV. The District Judge sentenced him on Counts III and IV to three years in the penitentiary to be served concurrently with each other and with other longer sentences. (See Appendix A for indictments.)The principal problem in this appeal arises from the fact that appellant's testimony before the grand jury took place after he had been the subject of two sealed indictments.
One indictment alleged:
On or about the 26th day of January 1972, in the Western District of Tennessee, Western Division,
did cause Paul Patterson to keep and conceal in his possession, and to transport through the Western District of Tennessee fifty (50) counterfeit Twenty ($20.00) Dollar Federal Reserve Notes, Serial No. F29392932A, Series 1969, bearing the seal of the Federal Reserve Bank of Atlanta, Georgia, of a purported face value of approximately One Thousand ($1,000.00) Dollars, made after the similitude of obligations issued under the authority of the United States, in violation of Title 18, United States Code, § 472.
The other secret indictment read:
On or about the 5th day of November 1971, in the Western District of Tennessee, Western Division,
did knowingly cause Nolan Ray Williamson and Paul Patterson to possess with intent to distribute approximately twenty thousand (20,000) capsules made up of a substance containing amphetamines, a controlled substance listed in Schedule II, § 812, Title 21, United States Code, in violation of Title 21, United States Code § 841(a).
When Doss was called before the grand jury, the Assistant United States Attorney informed him that he was "a target" of criminal investigations and had a constitutional right to remain silent. Doss was given full Miranda -type warnings and was allowed to consult with his lawyer who was present outside the grand jury room. He was not, however, advised that he was already under two indictments by that same grand jury. And, of course, he was not allowed to have counsel present with him in the grand jury room.
Appellant Doss refused on Fifth Amendment grounds to answer a number of questions. He did, however, answer many questions, four of which resulted in his indictment for perjury. One of these pertained to a statement the government alleged as a basis for Count I of the perjury indictment to the effect that he (Doss) had never had any business dealings with Paul E. Patterson, when in fact he purchased a controlled substance, 20,000 amphetamines, on or about November 6, 1971, from Paul E. Patterson. See Appendix A. The 20,000 amphetamines referred to in the first count of the perjury indictment were the same 20,000 capsules containing amphetamine which were the subject of the secret drug indictment against Doss. In the course of the grand jury proceedings, Doss was asked the following questions:
Q Now, do you know a person by the name of Larry Jamison?
A Yes, sir.
Q How do you know Larry Jamison?
A I really don't know. I met Larry Jamison many years ago, I'd say back in the fifties, but I don't know how I knew him.
Q Did you meet him here in Memphis?
A I don't think so. I met him in Cairo, Illinois, when I first met him.
Q Do you know that Larry Jamison has been convicted in federal court?
A No, no.
Q Do you have any business dealings with Larry Jamison?
A No, sir.
Q Do you know a person by the name of Paul E. Patterson?
Q Yes, sir. How do you know Mr. Patterson?
A I'm not sure. I met Mr. Patterson I don't know, I don't remember where I met him.
Q Do you have any business dealings with him, or is it a personal relationship?
A No.
A What did you say?
Q Do you have any business dealing with Mr. Patterson, or is it just a personal relationship?
A Could I speak to my attorney?
A Yes.
A Upon advice of my counsel, I have been instructed not to answer any questions which might tend to incriminate me. I invoke my privileges granted or guaranteed by the Fifth Amendment of the Constitution of the United States.
Q That has reference to the last question that I asked you, is that right?
A Yes.
Q Do you know a man named Nolan Ray Williamson?
A Yes.
Q How do you know Nolan Ray Williamson?
A Well, I met him, I guess, in about 1967 or 68 when he was in Cairo. At the time, he was looking for some kind of business, nightclub business or something, I don't know; I just was around the places that he was and got acquainted with him.
Q Do you have a friendly relationship with him?
A Yes.
Q Did you ever have any business dealings with him?
A Can I talk to my lawyer?
Q Yes.
A Upon advice of my counsel, I have been instructed not to answer any questions which might tend to incriminate me. I invoke my privilege granted or given or guaranteed by the Fifth Amendment of the Constitution of the United States.
Q So far as you know, have you always known Nolan Ray Williamson to be a truthful person?
Q To the extent that you know.
A I just wouldn't know, I don't know.
Q Did he ever, to your knowledge, lie to you?
A I just wouldn't know.
Q Do you think this grand jury should believe what he would tell this grand jury?
A I can't answer that, I can't say.
Q If, under oath, he were to tell the grand jury some things about yourself, do you think this grand jury should believe him?
A Well, it would depend on what it was. I don't know.
Q If it had anything to do with criminal dealings, should this grand jury believe him?
A Could I speak to my lawyer?
Q Yes.
A I do not know about him.
Q All right, the grand jury will have to do whatever the grand jury feels it is called upon to do, is that right?
A I'm sure.
The importance of these questions to the government's secret indictment of Doss on the amphetamine count is simply that the three men about whom he was questioned
above were the three principal figures in the illegal amphetamine transaction, all of whom were called by the government to testify against Doss at his trial on the amphetamine charge.2Larry Jamison's relationship is vividly portrayed by his testimony during the course of the Doss drug trial:
Q. Would you state your full name, please?
A. Larry Thomas Jamison.
Q. Mr. Jamison, where is your residence?
A. Tunica, Mississippi.
Q. Approximately how long have you been knowing Mr. Doss?
A. Well, off and on about ten years.
Q. You have been knowing him about ten years, and you met him in Cairo,...
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