United States v. Fruchtman, CR 67-79.

• Decision Date: 27 March 1968
• Docket Number: No. CR 67-79.,CR 67-79.
• Citation: 282 F. Supp. 534
• Parties: UNITED STATES of America, Plaintiff, v. Irwin FRUCHTMAN et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

282 F. Supp. 534

UNITED STATES of America, Plaintiff, v. Irwin FRUCHTMAN et al., Defendants.

No. CR 67-79.

United States District Court N. D. Ohio, W. D.

March 27, 1968.

John G. Mattimoe, Asst. U. S. Atty., Toledo, Ohio; Edward Joyce, Dept. of Justice, Washington, D. C., for plaintiff.

Marshall, Melhorn, Belt & Bloch, Toledo, Ohio, for defendant.

MEMORANDUM RE DEFENDANT DEVENOW'S MOTION FOR SUPPRESSION OF EVIDENCE

DON J. YOUNG, District Judge:

Defendant in this criminal case has moved for an order suppressing for use as evidence his testimony given before the Grand Jury which indicted him, for the reason that such testimony was secured unlawfully and in violation of his rights under the United States Constitution. The facts concerning this testimony are as follows: On August 23, 1967, defendant Leonard Devenow appeared as a witness before the Grand Jury pursuant to subpoena. The Grand Jury was investigating for various violations of Title 18 of the United States Code and the Federal Communications Act. An affidavit filed by defendant states that he did not know the scope of the investigation when he was called as a witness, nor had he consulted counsel. It appears from the record that certain attorneys now representing other defendants were in the Court House on August 23rd and that this defendant had talked with at least one of them. However, it does not appear that they discussed defendant's rights with him nor that they had any particular reason to be concerned about defendant's rights.

An affidavit filed by the Government attorney conducting the investigation says that he was left with the impression that defendant was represented by one of the attorneys in the building on that day, and that although he had read certain investigative reports which indicated that this defendant had destroyed certain records of the Donovan Wire and Iron Company, he did not consider Devenow to be a potential defendant in a criminal case until after he had been interrogated. The Grand Jury subsequently indicted defendant for conspiring to obstruct a Federal Trade Commission proceeding by destroying certain invoices of the Donovan Wire and Iron Company.

Defendant urges that the testimony in question was obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. He was not advised as to the nature of the investigation at the outset of his testimony, nor was he advised either of his privilege not to incriminate himself or of his right to consult with counsel. The questioning proceeded immediately to the question of whether he destroyed the invoices, which he freely admitted. There followed about thirty pages of questioning concerning the circumstances of this destruction. Then the Government attorney asked defendant if he was aware that if he had maliciously destroyed the records in question he was guilty of a felony, to which defendant replied in the negative. Pursuant to further questioning defendant testified that he had not discussed his testimony with an attorney, and that he would like to have time to consult counsel before continuing. Defendant was then excused from the Grand Jury room.

When defendant returned on August 25, 1967, he stated that he had consulted an attorney, who had explained to him his rights, and then he proceeded to testify, in effect re-affirming most of his prior testimony.

The above facts have previously been submitted to this Court in connection with defendant's motion to dismiss the indictment. The motion was overruled because "no ground exists which requires a dismissal of the indictment." The Government has now apprised the Court that it will seek a superseding indictment for reasons not here relevant, and defendant fears that his previous Grand Jury testimony will be used at this proceeding. Thus, the defendant's motion is ripe for decision, the question being the same as if the Government were seeking to use said testimony at the trial.

The general rule in this Circuit is that a witness in a Grand Jury proceeding who is not in the custody of the Government, and against whom the Government is not seeking an indictment, need not be advised of his Fifth and Sixth Amendment rights before testifying, but he does retain the right to refuse to answer incriminating questions as they are asked. United States v. Luxenberg, 374 F.2d 241 (6th Cir. 1967); Stanley v. United States, 245 F.2d 427 (6th Cir. 1957). However, in both the above cited cases the court went on to say that a person who is "virtually in the position of a defendant" must be advised of his right to refuse to answer on the ground of self-incrimination.

While it is true that the statements of the court were dictum in that in both cases the court refused...