U.S. v. Kilgroe, 90-50542

• Decision Date: 03 March 1992
• Docket Number: No. 90-50542,90-50542
• Citation: 959 F.2d 802
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John F. KILGROE, Defendant-Appellant, and Jesse Ridings, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 802

959 F.2d 802

UNITED STATES of America, Plaintiff-Appellee, v. John F. KILGROE, Defendant-Appellant and Jesse Ridings, Defendant.

No. 90-50542.

United States Court of Appeals Ninth Circuit.

Submitted March 3, 1992. ^*

Decided March 24, 1992.

Errol H. Stambler, Los Angeles, Cal., for defendant-appellant.

Steven J. Katzman, Special Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.

KOZINSKI, Circuit Judge.

Appellant Kilgroe was subpoenaed to testify for the defense in a criminal trial. During the course of cross-examination he made several self-incriminating statements that were later used by the government to convict Kilgroe of fraud. The question presented is whether Kilgroe was entitled to have the court or the prosecutor read him Miranda warnings before he took the stand for the defense.

Facts

Kilgroe, in-house counsel for National Business Printers, was subpoenaed to testify for the defense in the criminal mail fraud prosecution of Albert Clark, another employee of National. Kilgroe testified that in his capacity as National's counsel he had repeatedly advised defendant Clark that his telemarketing program was neither fraudulent nor illegal. On cross-examination, the Assistant United States Attorney sought to impeach Kilgroe by getting him to admit that he was a participant in the mail fraud scheme, not just a disinterested attorney giving legal advice to Clark. Sure enough, Kilgroe made several incriminating statements disclosing his in-depth involvement in the mail fraud scheme. Defendant Clark was convicted.

Not long thereafter, events turned from bad to worse: Relying on Kilgroe's incriminating testimony in the Clark trial, the United States Attorney charged him with mail fraud. At trial, the district court admitted, over defense objection, a redacted version of Kilgroe's testimony in the Clark case. The jury convicted Kilgroe for mail fraud and he was sentenced to thirty months' imprisonment.

Kilgroe's only contention is that before he testified in the Clark trial, either the prosecutor or the court was required, in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to inform him of his right against compelled self-incrimination and warn him that anything he said could be used to convict him. ¹ He relies heavily on the fact that he was forced to testify under the weight of a subpoena and on his surmise that the prosecutor considered him a putative defendant at the time of the Clark trial. ²

Discussion

"Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated." Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317 (1984). Although "those types of situations" may vary, they all share two essential elements: "custody and official interrogation." Illinois v. Perkins, 496 U.S. 292, 296-97, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990) (emphasis added); see also McNeil v. Wisconsin, --- U.S. ----, ----, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991) ("Miranda ... established a number of prophylactic rights designed to counteract the 'inherently compelling pressures' of custodial interrogation"). ³ Thus, the scope of Miranda is not, and never has been, coextensive with the scope of the right against compelled self-incrimination. See Murphy, 465 U.S. at 429-34, 104 S.Ct. at 1143-46. Miranda only comes into play when government-generated coercion risks "undermin[ing] the individual's will to resist," thereby leading him to disclose information he would otherwise not voluntarily reveal. Perkins, 110 S.Ct. at 2397 (quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624).

Although the courtroom is the paradigmatic setting for invoking the right against compelled self-incrimination, ⁴ it is not the type of setting that would justify invoking Miranda's prophylactic rule. The Miranda Court itself recognized that "the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery." Miranda, 384 U.S. at 461, 86 S.Ct. at 1621. Nor does the "obligation to appear and testify truthfully" created by a subpoena "constitute compulsion to give incriminating testimony" of the sort that implicates Miranda's policies. United States v. Jenkins, 785 F.2d 1387, 1393 (9th Cir.1986). Unlike custodial interrogation--which usually takes place without warning and, therefore, without the chance for reflection or legal advice--the subpoena gives the witness the opportunity in advance to obtain whatever counsel he deems appropriate and carefully contemplate his testimony. He remains free, of course, to refuse to answer questions that would incriminate him.

Kilgroe's claim that he required special protection because he was a putative defendant subjected to high pressure cross-examination is without merit. Cross-examination by a prosecutor, conducted in public and in the presence of both judge and jury, is hardly tantamount to custodial questioning by the police. While it is no doubt a powerful tool, cross-examination lacks the elements of isolation and intimidation associated with custodial police interrogation. That Kilgroe may have been a putative defendant when he testified is beside the point: The internal knowledge of a government agent that a witness may have been involved in criminal activity generates no external coercion on the witness. See Anfield, 539 F.2d at 676-77 & n. 3; see also United States v. Mandujano, 425 U.S. 564, 579-80, 583, 96 S.Ct. 1768, 1778, 1779-80, 48 L.Ed.2d 212 (1976).

It is easy to think of Miranda as an expansive shelter against a citizen's ignorance of his constitutional...