United States v. Parker, 11823.

• Decision Date: 08 July 1957
• Docket Number: No. 11823.,11823.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

244 F.2d 943 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Harold PARKER, Defendant-Appellant.

No. 11823.

United States Court of Appeals Seventh Circuit.

May 27, 1957.

Rehearing Denied July 8, 1957.

Loring B. Moore, Chicago, Ill., William R. Ming, Jr., George N. Leighton, Chauncey Eskridge, Chicago, Ill., for defendant-appellant, Moore, Ming & Leighton, Chicago, Ill., of counsel.

Robert Tieken, U. S. Atty., Mitchell S. Rieger, Asst. U. S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel.

Before MAJOR, FINNEGAN, and LINDLEY, Circuit Judges.

FINNEGAN, Circuit Judge.

Parker, defendant, was convicted by a jury on the first and second counts of an indictment grounded in 18 U.S.C. § 1621 which provides in relevant part that: "Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose * * * or that any written testimony, declaration, deposition * * * is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both." Counts Three and Five of the indictment were dismissed on the government's motion and defendant was found not guilty on the fourth count. After arguments his motion for a new trial was denied and Parker was sentenced to serve three years on the first and second counts, respectively, and fined $1000 and costs on each count, sentences to run concurrently and fines cumulative.

In obedience to a subpoena, Parker appeared and testified under oath on January 20, 1955 before the January, 1955 Federal Grand Jury. Subsequently he was accused by the August Grand Jury, on the two counts under which he now stands convicted, with having allegedly untruthfully testified before the January grand jurors, in substance that: (1) "he had not been in New York, N. Y. since 1945 when he was discharged there" and, (2) "he had never met Claude Murphy, but saw him for the first time in 1953 in Luther Rawlings' Tavern, and thereafter only spoke with him casually in said tavern or passed him on the street * * *" While the other three counts are also charges of perjury before the January, 1955 Grand Jury their disposition, already noted, make it unnecessary to further describe them.

Relying upon the interdiction of the Fifth Amendment that no person shall "* * * be compelled in any criminal case to be a witness against himself * * *." Parker mounts an attack aimed at the evidentiary basis of his perjury conviction. He attempts to cut ground from under the evidence lying behind the petit jury's verdict with a theory that the several critical counts based upon his own testimony given before the January, 1955 Federal Grand Jury are tainted by an absence of any previous warning to him of his constitutional privilege against self-incrimination. Stated still another way, Parker argues that since the United States Attorney failed to apprise him of his constitutional right, the evidence upon which the indictment is bottomed, having been "illegally" obtained, cannot support the charges regardless of the truth or falsity of Parker's utterances to the January grand jurors. We disagree. While there are a number of other defense points tendered by this appeal we think the Fifth Amendment issue significant enough for attention at the outset.

Blair v. United States, 1919, 250 U.S. 273, 281-282, 39 S.Ct. 468, 471, 63 L.Ed. 979, contains Mr. Justice Pitney's neat capsuled version of some background material:

"* * * it is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being properly summoned * * *. The duty, so onerous at times, yet so necessary to the administration of justice according to the forms and modes established in our system of government citing is subject to mitigation in exceptional circumstances; there is a constitutional exemption from being compelled in any criminal case to be a witness against oneself, entitling the witness to be excused from answering anything that will tend to incriminate him citing; some confidential matters are shielded from considerations of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows.

"But, aside from exceptions and qualifications * * * the witness is bound not only to attend but to tell what he knows in answer to questions framed for the purpose of bringing out the truth of the matter under inquiry. * * *

"He is not entitled to set limits to the investigation that the grand jury may conduct. The Fifth Amendment and the statutes relative to the organization of grand juries recognize such a jury as being possessed of the same powers that pertained to its British prototype, and in our system examination of witnesses by a grand jury need not be preceded by a formal charge against a particular individual. Hale v. Henkel, 201 U.S. 43, 65, 26 S.Ct. 370, 50 L.Ed. 652. It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury\'s labors, not at the beginning. Hendricks v. United States, 223 U.S. 178, 184, 32 S.Ct. 313, 56 L.Ed. 394."

Several key points, revelant here, have already been seized by prior decisions and admit little room for controversy. The investigation embarked upon by the January 1955, Grand Jury is a criminal case within the meaning and reach of the Fifth Amendment. United States v. Monia, 1943, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376, Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. That body was conducting an investigation of possible tax evasion under the Internal Revenue Codes of 1939 and 1954 "in the so-called policy games and other types of gambling." The grand jury subpoena under which Parker testified, comes within the sweep of the constitutional word "compelled." To avail himself of the privilege against self-incrimination a witness is usually required to assert it. Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344. And the privilege will be "deemed waived unless invoked." United States v. Murdock, 1931, 284 U.S. 141, 52 S.Ct. 63, 64, 76 L.Ed. 210. But Parker would avoid the impact of Rogers and Murdock on the grounds that he was the target of the January investigation and should have been forewarned by the prosecutor and advised along the lines of the Fifth Amendment. Any vitality for a requirement that a grand jury witness must be advised of his constitutional rights must flow from notions of fair play and various others attending those circumstances where the prosecutor intends to seek an indictment against the subpoenaed witness. As always the hypothetical academic situation can be simply stated, for example, where the government deliberately subpoenas a witness in order to elicit evidence helpful in indicting him. But one realistic problem arises where the United States Attorney is unable to foresee the vulnerability of a witness. The Second Circuit, when reviewing and refusing to overturn a trial judge's order denying the defense motion to quash an indictment because of testimony obtained before a grand jury from the defendant without warning him of his constitutional privilege against self-incrimination, held in United States v. Scully, 2 Cir., 1955, 225 F.2d 113, 116, that:

"* * * the mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a Grand Jury."

Curiously enough, Scully was already under indictment when he was called before the grand jury. In his concurring opinion Judge Frank observed "that the policy embodied in the privilege against self-incrimination has greater force when a man, already indicted, is called by the prosecutor to testify before a grand jury." 225 F.2d 113, 116.

"The maxim, `nemo tenetur seipsum accusare,'" we are taught by Brown v. Walker, 1896, 161 U.S. 591, 596, 16 S.Ct. 644, 646, 40 L.Ed. 819, "had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. * * * So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." See also: Emery's case, 1871, 107 Mass. 172, 181, for a discussion of the maxim; 8 Wigmore, Evidence § 2250 (3rd ed. 1940) and compare the historical views in Maffie v. United States, 1 Cir., 1954, 209 F.2d 225, 227. But the privilege is aimed at inquiries made to lay bare criminating facts, usually of past matters. Parker's perjury was previously uncommited and his criminal liability concurred with the words he first uttered to...