United States v. Ponti
Citation | 257 F. Supp. 925 |
Decision Date | 12 August 1966 |
Docket Number | Crim. No. 22460. |
Parties | UNITED STATES of America v. Joseph PONTI. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Drew J. T. O'Keefe, U. S. Atty., Joseph Reiter, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Lester J. Schaffer, Philadelphia, Pa., for defendant.
Defendant has been indicted for perjury before a Grand Jury, 18 U.S.C. § 1621, and has moved to dismiss. The indictment charges that the Grand Jury was investigating suspected violations of Title 18 U.S.C. § 1952, relating to interstate travel and transportation in aid of racketeering and that it was material for the Grand Jury to be informed whether a crap game was being conducted on September 3, 1965 at 1237 S. 7th Street, Philadelphia. Ponti was subpoenaed as a witness and testified, in effect, that he was on the premises, but did not shoot crap and saw no crap game going on. He further denied saying to the F.B.I. agents "All I have been getting all day were threes and nines" or anything to that effect. This testimony is the basis of the two count perjury indictment.
Defendant's motion is based on three grounds: (1) that he was not apprised on the nature of the investigation, nor of his right to counsel and his privilege against self-incrimination; (2) that the allegedly perjurious testimony was not relevant or material to the Grand Jury's inquiry; and (3) that the only purpose of calling him as a witness was to secure a perjury indictment against him. Defendant, however, has briefed and argued only the effect of the failure to warn of his privilege and to advise of his right to counsel. We deny the motion.
There is no doubt that as a witness before the Grand Jury, defendant was enveloped with the protections of the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). But the scope of that Amendment extends only to past acts, not to those that are or may be committed in the future. United States v. Kahriger, 345 U.S. 22, 32, 73 S.Ct. 510, 97 L.Ed. 754 (1952). In Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911), the Court said that "* * * the immunity afforded by the constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury." See also Kronick v. United States, 343 F.2d 436, 441 (C.A. 9, 1965); United States v. Orta, 253 F.2d 312 (C. A. 5, 1958), cert. denied, 357 U.S. 905, 78 S.Ct. 1149, 2 L.Ed.2d 1156 (1958); United States v. Kelley, 254 F.Supp. 9, 13 (S.D.N.Y., 1966). When Ponti appeared before the Grand Jury, he had not yet committed the crime for which he is now indicted. His "* * * criminal liability concurred with the words he first uttered to the * * * Grand Jury." United States v. Parker, 244 F.2d 943, 947 (C.A. 7, 1957), cert. denied, 355 U.S. 836, 78 S.Ct. 61, 2 L. Ed.2d 48 (1957). It is perfectly obvious that this indictment is not based upon evidence of past acts obtained from the mouth of the defendant in violation of Fifth Amendment rights. Instead, it is based on a crime whose very commission, rather than evidence of commission, was the defendant's testimony. We hold that the failure to warn defendant of rights against self-incrimination furnishes no insulation to defendant against a charge of perjury. We are not alone in so holding.
In United States v. Orta, 253 F.2d 312, at page 314 (C.A. 5, 1958), cert. denied, 357 U.S. 905, 78 S.Ct. 1149 (1958), the court said:
* * *"
In United States v. Parker, 244 F.2d 943, at page 949 (C.A. 7, 1957), cert. denied, 355 U.S. 836, 78 S.Ct. 61 (1957), it was said:
* * *"
Cf. United States v. Scully, 225 F.2d 113, 116 (C.A. 2, 1955), cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955); United States ex rel. Rohrlich v. Wallack, 251 F.Supp. 1009, 1011 ft.nt. 1 (S.D.N.Y., 1966).
Defendant seeks to avoid the impact of these decisions with the argument that since they were decided,1 there is a "doctrinal trend" see United States v. Grunewald, 233 F.2d 556, 576 (C.A. 2, 1956) (Frank, J., dissenting), rev'd, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) in Supreme Court decisions which should induce us to disregard their authority. We do not agree. Both Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and its successor, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were concerned with the admissibility of evidence. They hold only that evidence which has been illegally (unconstitutionally) obtained may not be used as a basis for conviction. They do not compel, or even suggest, the conclusion that perjury is now a permissible crime where constitutional rights may have been violated. In United States v. Winter, 348 F.2d 204 (C.A. 2, 1965), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965), the defendant argued that he had not been advised of his right to consult with counsel before testifying before a Grand Jury. In affirming the conviction for perjury, the Court said, 348 F.2d at pages 208-209:
* * *"
"When one undertakes to cheat the Government or to...
To continue reading
Request your trial-
United States v. Wolfson
...United States v. DiMichele, 375 F.2d 959 (C.A. 3, 1967) cert. den. 389 U.S. 838, 88 S.Ct. 54, 19 L.Ed.2d 100; United States v. Ponti, 257 F.Supp. 925 (E.D. Pa., 1966); United States v. Miller, 80 F.Supp. 979 (E.D.Pa., 1948), and this appears to be the majority view. United States v. Orta, 2......
-
People v. Brooks
...(People v. Shapiro, 50 N.Y.2d 747, 759-760, 431 N.Y.S.2d 422, 409 N.E.2d 897; United States v. Partin, 552 F.2d 621, 632; United States v. Ponti, 257 F.Supp. 925; see, also, Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d The question therefore arises whether the Assistant Distri......
-
In re Baldinger
...the Constitution afforded him protection from prosecution for that crime. . . ." 253 F.2d at 314. The court in United States v. Ponti, 257 F.Supp. 925, 926 (E.D. Pa. 1966), observed "there is no doubt that as a witness before the Grand Jury, defendant was enveloped with the protections of t......
-
People v. Robinson
...1149, 2 L.Ed.2d 1156; United States v. Parker, 7 Cir., 244 F.2d 943, cert. den. 355 U.S. 836, 78 S.Ct. 61, 2 L.Ed.2d 48; United States v. Ponti, D.C., 257 F.Supp. 925.) The defendant's motion to suppress his Grand Jury testimony is based on the argument that the absence of the warnings viol......