United States v. Kreps, 71-CR-8.

• Decision Date: 12 October 1972
• Docket Number: No. 71-CR-8.,71-CR-8.
• Citation: 349 F. Supp. 1049
• Parties: UNITED STATES of America, Plaintiff, v. Dannie E. KREPS, also known as Maynard Kreps, et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

349 F. Supp. 1049

UNITED STATES of America, Plaintiff, v. Dannie E. KREPS, also known as Maynard Kreps, et al., Defendants.

No. 71-CR-8.

United States District Court, W. D. Wisconsin.

October 12, 1972.

John O. Olson, U. S. Atty., Madison, Wis., for plaintiff.

Melvin F. Greenberg, Madison, Wis., Henry M. di Suvero, New York City, Leonard I. Weinglass, Newark, N. J., for defendants.

OPINION AND ORDER ON MOTION BY DEFENDANTS REGARDING ALLEGED FAILURE TO ADVISE DEFENDANT KREPS OF RIGHTS BEFORE GRAND JURY

JAMES E. DOYLE, District Judge.

The defendants have moved for an order quashing the indictment as to all of them on the ground that testimony was improperly elicited from defendant Kreps when he appeared before a grand jury in this district. The parties have stipulated to the truth of those facts appearing immediately hereinafter under the heading "Stipulated Facts", and I find them as facts.

STIPULATED FACTS

On July 29, 1970, Kreps was interviewed by agents of the Federal Bureau of Investigation. He was advised of his constitutional rights against self-incrimination, and he signed a statement entitled "Waiver of Rights." At that time, no mention was made of any grand jury investigation. By August 7, 1970, the United States Attorney knew that Kreps had been confined to Camp McCoy by military authorities, who were then investigating his role in certain bombings that had occurred at the Camp on July 26, 1970; and that agents of the F.B.I., in applying for warrants to search the bus belonging to Thomas Chase, had averred that Kreps had spoken to several people, expressing an intention to bomb some buildings at Camp McCoy, and had requested one of these people to make him a bomb. By November 3, 1970, the United States Attorney was aware that the search of the Chase bus had turned up no incriminating evidence against Kreps. On December 3, 1970, Kreps appeared before the grand jury, accompanied by counsel. The counsel accompanying Kreps on that date knew that Kreps had been confined to Camp McCoy by military authorities, in connection with his alleged role in the bombings of July 26, 1970, and had represented Kreps in a habeas corpus action in Federal Court, brought to challenge the legality of that confinement. At the time of his appearance before the grand jury, Kreps had not been charged with the commission of any crime. Prior to Krepps' testimony, the United States Attorney asked Kreps if his attorney had advised him regarding his appearance and testimony before the grand jury. At no time, either prior to or during the course of his testimony, was Kreps told that he was a subject of the grand jury investigation, nor was he advised of his right to remain silent, nor requested to sign a waiver of immunity. The transcript attached to "defendant's reply to government's response in opposition to defendants' motion to dismiss indictment on fifth amendment grounds" covers the entire appearance of Kreps before the grand jury.¹

From the transcript of the grand jury proceedings and from the court records, I also find as facts those facts appearing hereinafter under the heading "Additional Facts."

ADDITIONAL FACTS

On or about August 7, 1970, affidavits by two government investigators were submitted to a United States Commissioner in support of an application for a warrant to search a Volkswagen bus belonging to now defendant Chase. These affidavits are briefly referred to in the stipulated facts, above. The affidavits related to the explosions at Camp McCoy on July 26, 1970, indicating that the explosions occurred at about 3:30 a. m. The affidavits summarized information obtained from informants to the effect that Kreps had said he was going to bomb some buildings at Camp McCoy; that Kreps had engaged in a conversation with Chase and Geden, thought to relate to bombing plans; that the Chase Volkswagen had been seen at certain places and times thought to be significant in connection with the bombing; that Kreps had spoken of a theft of dynamite from a quarry; that on the morning of July 26, Kreps had asked for and obtained the use of a vacuum cleaner near a place where the Chase Volkswagen was parked; that some time prior to July 26, Kreps had said to a specified person "make me a bomb" or words to that effect; that in the company of Chase, Geden, and another specified person, there had been discussion on about July 6, 1970, to the effect that it would be a good idea to blow something up at Camp McCoy, and on July 24, 1970, that there had been conversation about explosives and a rock quarry.

Prior to coming to the grand jury room on December 3, 1970, Kreps had consulted with the counsel who accompanied him on that day, and counsel had advised him regarding his appearance before the grand jury. During the morning of December 3, 1970, before the grand jury, under oath, commencing at 10:40 a. m., Kreps was questioned extensively about his associations at Camp McCoy and in the nearby city of LaCrosse, particularly with Chase and Geden. Kreps was questioned about whether he had ever discussed blowing up facilities at Camp McCoy, whether he had ever made inquiries about any one building a bomb, whether he had ever made inquiries about where he could get dynamite, whether he had mentioned to a certain person a theft of dynamite, and whether he and Chase and Geden had ever discussed the necessity of getting something going before the National Guard left Camp McCoy, and he gave answers to those questions. At about 11:05 a. m., the United States Attorney inquired of Kreps whether he wished to talk with his lawyer, Kreps agreed, and a recess was taken for this purpose. Thereafter, Kreps was questioned in detail about his movements and those of Chase on the evening of July 25, the early morning of July 26, and the later morning of July 26, including questions about the movements of the Volkswagen bus and about vacuuming the Volkswagen bus, and he answered. Shortly before 11:30 a. m., when asked whether anyone had ever told him that they had information about the explosions, he declined for the first time to answer a question, stating that his answer might incriminate him. He declined to answer several similar questions, on the same ground. When the session resumed at 1:30 p. m., after recessing at 11:30 a. m., Kreps again invoked his privilege against self-incrimination several times, and then resumed giving answers to further detailed questions concerning his movements and those of defendant Chase on the night and morning in question. Kreps was excused by the grand jury at 1:50 p. m.

On February 11, 1971, the grand jury returned the present indictment against him, Chase, and Geden.

OPINION

In United States v. Cefalu, 338 F.2d 582, 584 (7th Cir. 1964), it was held that it is permissible to compel even a "probable defendant" to appear before a grand jury and to submit to questioning: ". . . The privilege accorded one called before a grand jury is the election to refuse to give testimony which might tend to show he had committed a crime."

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided in 1966. In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), the Miranda rule was applied to an interrogation by a federal revenue investigator, because the interrogation occurred in a state prison in which the subject was incarcerated for reasons unrelated to the federal tax matters.

In United States v. DiGiovanni, 397 F.2d 409, 412 (7th Cir. 1968), cert. den., 393 U.S. 924, 89 S.Ct. 256, 21 L.Ed.2d 260 (1968), it was...