United States v. Miranti

• Decision Date: 03 March 1958
• Docket Number: 135,Dockets 24718,No. 134,24719.,134
• Citation: United States v. Miranti, 253 F.2d 135 (2nd Cir. 1958)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gondolfo MIRANTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Domenico BANDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

253 F.2d 135 (1958)

UNITED STATES of America, Plaintiff-Appellee, v.Gondolfo MIRANTI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.Domenico BANDO, Defendant-Appellant.

Nos. 134, 135, Dockets 24718, 24719.

United States Court of Appeals Second Circuit.

Argued December 4, 5, 1957.

Decided March 3, 1958.

Daniel H. Greenberg, New York City(Matthew H. Brandenburg, New York City, on the brief for Gondolfo Miranti), for defendants-appellants.

Arthur H. Christy, Chief Asst. U. S. Atty., S.D.N.Y., New York City(Paul W. Williams, U. S. Atty., and Robert Kirtland, Fioravante G. Perrotta, and Herbert F. Roth, Asst. U. S. Attys., New York City, on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.

CLARK, Chief Judge.

Defendants appeal from convictions of contempt of court, 18 U.S.C. § 401, for refusing to comply with district court orders to answer certain questions before a grand jury.They persisted in their refusal before the district court, which sentenced them each to five years in prison after summary proceedings under Fed.Rules Crim.Proc., rule 42(a).Both defendants invoked the privilege against self-incrimination to justify their silence, but the trial judge found that the answers would not be incriminatory and that the defendants actually sought to protect others by their silence.

Bando and Miranti, together with six others, had been indicted for conspiring to obstruct justice by injuring Victor Riesel, a prospective witness before a grand jury investigating racketeering, and conspiring to remove one Abe Telvi, a fugitive felon who allegedly threw acid on Riesel, from New York State to avoid prosecution for the maiming.Bando made a detailed statement to the FBI disclosing the operations of the conspirators, and Miranti made a like statement before the grand jury which indicted them.On the basis of these statements and other evidence Bando and Miranti, together with one other conspirator, were tried separately and convicted of conspiring to remove a fugitive felon from New York State.The government announced just prior to presenting its proof at that trial that it would not try to prove conspiracy to obstruct justice.The convictions were affirmed, United States v. Bando, 2 Cir., 244 F.2d 833, certiorari deniedBando v. United States, 355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53.Bando and Miranti were sentenced to five years' imprisonment, and they are currently serving these sentences.Subsequently they were indicted in the New York state court for conspiracy and maiming in connection with the attack on Riesel, and both received sentences on pleas of guilty.

Prior to the federal trial of the other alleged conspirators, Bando and Miranti were removed from the federal penitentiary and brought to New York ostensibly to testify on behalf of the government.Apparently they indicated that they were unwilling to testify, for trial was adjourned on the government's motion and the grand jury which had returned the original indictments was reconvened to investigate the alleged intimidation of witnesses.Both Bando and Miranti were then brought before this grand jury and asked to acknowledge their previous statements made to the FBI and the grand jury respectively concerning the conspiracy and the actions of the various conspirators.But they refused to make such acknowledgments and invoked the privilege against self-incrimination.¹The trial court determined that the requested answers could not be incriminatory because the defendants already had been indicted and tried for conspiring to commit the crimes; and upon their continued refusal to make any statements, it summarily convicted them of contempt.In vivid phrase directed specifically to Bando it said that this was "not a case of constitutional silence," but was "a case of underworld lockjaw."

Defendants urge a number of points on this appeal which we need not reach.For it is apparent that they properly invoked their privilege against self-incrimination, and hence the contempt convictions must be reversed.When they appeared before the grand jury neither defendant previously had been placed in jeopardy for the substantive crimes of obstructing justice by participating in injuring a prospective grand jury witness, 18 U.S.C. § 1503, or aiding a fugitive felon to escape across state lines, 18 U.S.C. § 1073, nor had the applicable statutes of limitation run on these crimes.Although the grand jury had been convened for the purpose of investigating intimidation of witnesses, it was possible for them to return such indictments against these defendants, or for another grand jury, convened in the future, to return such indictments based on the specific acknowledgments, plus other information not previously disclosed which might have been elicited had the questioning continued.Moreover, the acknowledgments, together with any such additional information, could be used as evidence against the defendants in a trial for commission of the substantive crimes.Even though the prior statements also would be admissible at such a trial, the requested acknowledgments would add to their credibility and could have led to additional admissions in this grand jury proceeding exacted through the waiver route, seeRogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344, 19 A.L.R.2d 378, rehearing denied341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348, andUnited States v. St. Pierre, 2 Cir., 132 F.2d 837, 147 A.L.R. 240, dismissedSt. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199, which also would be admissible at a possible trial for the substantive crimes.

The government urges that as a practical matter the acknowledgments and possible further answers could not incriminate the defendants of these substantive crimes.It argues that once Bando and Miranti had been put in jeopardy for conspiracy to commit the crimes, they could have no reasonable fear of being prosecuted for the substantive offenses themselves.It is true that this court looks with displeasure on such "double" prosecutions if conviction is accompanied by consecutive sentences, seeUnited States v. Chiarella, 2 Cir., 184 F.2d 903, modified2 Cir., 187 F.2d 12, vacatedChiarella v. United States, 341 U.S. 946, 71 S.Ct. 1004, 95 L.Ed. 1370;cf.United States v. Chiarella, 2 Cir., 214 F.2d 838, certiorari deniedChiarella v. United States, 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708.Thus it is unlikely that a second prosecution would be commenced.But the government admits, as it must, that a second prosecution is not absolutely barred and that a conviction could support a consecutive sentence.Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489;United States v. Pagano, 2 Cir., 224 F.2d 682, certiorari deniedPagano v. United States, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 779.

We are thus faced with the novel question whether or not a witness can invoke his privilege against self-incrimination where practically there is only a slight possibility of prosecution.The government urges that three cases support its position; but even if dicta in those cases can be construed favorably for the government, the cases are totally inapposite on their facts and do not deal with situations where lack of fear of incrimination is based on the improbability of prosecution.²We find no justification for limiting the historic protections of the Fifth Amendment by creating an exception to the general rule which would nullify the privilege whenever it appears that the government would not undertake to prosecute.³Such a rule would require the trial court, in each case, to assess the practical possibility that prosecution would result from incriminatory answers.Such assessment is impossible to make because it depends on the discretion exercised by a United States Attorney or his successor.The only solution, if one is necessary, is to broaden the Immunity Act of 1954, 18 U.S.C. § 3486, to encompass cases other than ones involving national security, in order to allow the prosecutor to bind the government not to prosecute and thereby fully protect the witness' rights in such situations.

The government does not contend that the statements previously made by Bando to the FBI constitute a waiver of the privilege against self-incrimination to deprive him of the right to invoke the privilege in this grand jury hearing.Such contention would be frivolous because it is well established that a waiver of the privilege in one proceeding does not affect the rights of a witness or the accused in another independent proceeding.In re Neff, 3 Cir., 206 F.2d 149, 36 A.L.R.2d 1398;Poretto v. United States, 5 Cir., 196 F.2d 392;United States v. Field, 2 Cir., 193 F.2d 109.See8 Wigmore on Evidence § 2276(3d Ed. 1940).This disclosure of information to the FBI (here in the nature of a confession), while admissible as evidence in a subsequent trial of the witness, if voluntarily made, does not constitute a waiver of the witness' privilege against self-incrimination even in response to the same questions before a grand jury.It can be argued that reiteration of the prior voluntary statement is not incriminating because that statement would be admissible against the witness at trial.But reiteration adds to the credibility of the statement, United States v. Malone, D.C.N.D.Cal., 111 F.Supp. 37, 39, and if construed as a waiver could lead to additional questions requiring answers which further implicate the witness.

Miranti's case is different, however, for he had made his prior statements to the same grand jury before which he now refuses to testify.Thus the government argues that Miranti's prior disclosure constituted a waiver which was still effective.A necessary corollary to the government's argument is that the instant proceeding was not separate from or independent of the prior proceeding before the same grand...