United States v. Chevoor

• Decision Date: 21 March 1975
• Docket Number: Crim. No. 74-72-T.
• Citation: 392 F. Supp. 436
• Parties: UNITED STATES of America v. Robert CHEVOOR.
• Court: U.S. District Court — District of Massachusetts

392 F. Supp. 436

UNITED STATES of America v. Robert CHEVOOR.

Crim. No. 74-72-T.

United States District Court, D. Massachusetts.

March 21, 1975.

Joel M. Friedman, Sp.Asst.Atty., Boston, Mass., for United States.

Paul T. Smith, Jeffrey M. Smith, Boston, Mass., for defendant.

OPINION AND ORDER

TAURO, District Judge.

The defendant, Robert Chevoor, a school teacher in the Watertown High School, has been charged in a three count indictment with knowingly making false statements to a federal grand jury, in violation of 18 U.S.C. § 1623.¹ He has moved to suppress his grand jury testimony and to dismiss this indictment because of the Government's failure to inform him of his Fifth Amendment rights.²

FINDINGS OF FACT

In January 1973, the Government commenced an intensive investigation into alleged loan sharking activities of one Michael Pellicci (Pellicci). As part of this investigation, the Government applied for and received a court order, under the provisions of 18 U.S.C. § 2518, authorizing the interception of telephone and oral communications from Pellicci's office in Watertown and from his home telephone in Waltham.

The order was issued on November 27, 1973, and interception of calls from Pellicci's home telephone commenced on November 29, 1973. Due to technical difficulties, listening devices for oral conversations, and telephone taps for both office telephones, were not installed until December 5, 1973.

Telephone conversations between the defendant and Pellicci's wife and between the defendant and Pellicci were intercepted on December 7, 1973. These related to setting up a meeting between the defendant and Pellicci. On Sunday, December 9, 1973, a twenty-seven minute converstation between the defendant and Pellicci in Pellicci's office was intercepted, recorded and transcribed. Part of this conversation related to financial transactions between Pellicci and other individuals.

On the evening of January 8, 1974, FBI agent James Vaules (Vaules), along with another agent, went to defendant's home. Vaules' purpose in doing so was to serve a subpoena calling for the defendant to testify the following day before the grand jury with respect to the Pellicci investigation. Prior to serving the subpoena or telling the defendant he would have to appear before the grand jury, Vaules told the defendant he was not a grand jury target, but that it was investigating Pellicci's loan sharking activities. Vaules asked the defendant a number of questions concerning Pellicci, including whether he owed him any money, or knew others that did. The defendant's reply to both queries was negative, and clearly inconsistent with the transcript of his intercepted December 9, 1973 conversation with Pellicci. After talking with the defendant for about fifteen minutes, Vaules told him to report to the office of Strike Force Attorney Joel Friedman (Friedman) prior to his appearance the next day before the grand jury. This instruction also appeared on the face of the subpoena.

The following day, January 9, 1974, the defendant reported as instructed to Friedman's office. Friedman, in the presence of Vaules, told the defendant that he was not a grand jury target, but that Pellicci was under investigation for alleged loan sharking activities. Friedman warned the defendant that he would be prosecuted for perjury if he gave false testimony to the grand jury.

With the transcript of the December 9, 1973, interception before him, Friedman then asked the defendant whether he owed money to Pellicci, whether he knew others that owed money to Pellicci, and whether he had ever discussed with Pellicci the repayment of loans that Pellicci had made to others. The defendant denied owing Pellicci any money and disclaimed all knowledge of his money lending activities.

Friedman then told the defendant that he was not cooperating and that he was not telling the truth. The defendant asked Friedman how and in what way was he not cooperating or telling the truth. At this point, Vaules replied, "We are not going to tell you what we have on you." Hearing Transcript, July 9, 1974, at 30.

During their January 9, 1973 office interrogation of the defendant, neither Friedman nor Vaules informed him that his conversation with Pellicci on December 9, 1973, had been intercepted; that the questions asked that morning by Friedman had been based on the transcript of that conversation; or that his answers to Vaules on January 8 and to Friedman that morning conflicted with the transcript. Nor did Friedman or Vaules inform the defendant as to the consequences of giving false statements to a federal official.³

Shortly thereafter, Friedman escorted the defendant to the grand jury room and asked him essentially the same questions that he had asked in his office and that Vaules had asked on January 8, 1974. The defendant gave the same negative responses. At no time prior to his January 9 interrogation by Friedman, either in his office or before the grand jury, was the defendant given Miranda⁴ warnings or otherwise advised of his rights under the Fifth and Sixth Amendments. He was not accompanied by counsel, nor did he consult with counsel at any time prior to or during either interrogation.

The defendant's testimony before the grand jury was not completed on January 9 and he was told to return on January 23, 1974. Prior to that date, the defendant consulted with Attorney Paul T. Smith (Smith) who, thereafter, attempted unsuccessfully to secure a copy of his January 9 grand jury testimony. Smith then advised the defendant to assert his constitutional rights and refuse to testify when he appeared before the grand jury on January 23. The defendant followed this advice. On March 13, 1974, this indictment charging the defendant with perjury was returned by the same grand jury.

CONCLUSIONS OF LAW

I

There is no duty to inform a grand jury witness, as opposed to a grand jury target, of his constitutional rights, see, e. g., United States v. DiMichele, 375 F.2d 959 (3rd Cir. 1967). The totality of the circumstances preceding this defendant's grand jury testimony, however, made him a potential, if not probable, grand jury target. As such, he should have been advised, prior to his interrogation before the grand jury, of his right to remain silent. The Government's failure to do so requires dismissal of this indictment.

The transcript of the defendant's intercepted December 9, 1973 conversation with Pellicci formed the framework for the questions that were asked of him by Vaules on January 8 and by Friedman on January 9, both in Friedman's office and before the grand jury. Friedman and Vaules knew that defendant's answers to them were in conflict with the intercept transcript, and that the defendant did not know his conversation with Pellicci had been intercepted.⁵

Friedman's representation to the defendant, prior to his testimony on January 9, that he was not a grand jury target was at the least misleading. Both he and Vaules knew, or should have known, that the defendant was subject to possible indictment for having made false statements to a federal officer. 18 U.S.C. § 1001.⁶ Moreover, having twice questioned the defendant regarding the same material, and having twice received the same responses that were in clear conflict with the intercept transcript, it 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.

Pellicci was undoubtedly the Government's prime interest. But it should have been apparent to Friedman and Vaules that by calling the defendant before the grand jury, without warning him of his rights, they were making him a likely, if not inevitable, grand jury target, albeit for making false statements as opposed to loan sharking. By doing so, they put the defendant in a "no win" position, a classic Hobson's choice. A denial of his conversation with Pellicci would eventually, and in fact did, produce a perjury indictment. If, on the other hand, he changed his story and gave grand jury testimony consistent with the intercept transcript, he faced at least the possibility of being indicted for having given false statements to federal officers on two occasions.⁷

Not only was the defendant not warned of his potential danger, he was in a sense lulled, albeit unintentionally, by Vaules' and Friedman's separate assurances that he was not a target of the grand jury. Also misleading was Vaules' statement to the defendant that "he had to testify." While the subpoena required the defendant's appearance before the grand jury, it did not require substantive testimony from him, absent a grant of immunity.⁸

Defendant's situation here is quite similar to that addressed by the court in United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974), petition for cert. filed ___ U.S. ___, 95 S.Ct. 1422, 43 L. Ed.2d 669 (1974). In that case, the defendant was indicted for perjury and for attempted distribution of heroin following his grand jury testimony concerning a drug transaction between himself and a Government attorney. The special attorney who questioned Mandujano before the grand jury knew the details of the attempted heroin sale. The interrogation tracked these details. Rejecting the Government's claim that Mandujano was not a target of the grand jury, the district court held that he was a virtual or putative defendant in a custodial situation who was entitled to full Miranda warnings. The circuit court affirmed the district court order suppressing Mandujano's grand jury testimony.

Given the nature of the investigation and the questions tendered by the government attorney, the district court held, and the Court agrees, that full Miranda warnings should have been accorded Mandujano who was in the position of a virtual or putative defendant.

496 F.2d at 1052.

In discussing the remedy to be granted, the court noted the general rule that the Government's failure to...