United States v. Rangel, 73-3356.
| Decision Date | 16 October 1974 |
| Docket Number | No. 73-3356.,73-3356. |
| Citation | 496 F.2d 1059 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Paul Gonzales RANGEL, Defendant-Appellee. |
William Sessions, U. S. Atty., John Pinckney, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellant.
Stewart J. Alexander, San Antonio, Tex. (Court-appointed), for defendant-appellee.
Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
Rehearing and Rehearing En Banc Denied October 16, 1974.
This is a companion case to United States v. Mandujano, 5th Cir., 496 F.2d 1050. The cases were combined for decision by the trial court on a motion to suppress grand jury testimony.
On May 2, 1973, appellee Rangel appeared as a witness before the DALE (Drug Abuse Law Enforcement) Grand Jury, pursuant to a subpoena. The following warnings were given Rangel:
Rangel was further advised that he could have an attorney outside the grand jury room; however, he was not told that he had a right to have appointed counsel outside the grand jury room, that what he said could be used against him in later proceedings, and that he had a right to remain silent.1
A federal narcotics agent had reported that in December, 1972, he attempted to purchase three ounces of heroin from Rangl, and that discussions about money for the drugs took place although no money ever changed hands. The government attorney who questioned Rangel before the grand jury testified on the motion to suppress that he had discussed the circumstances of this attempted buy with the agent in preparation for Rangel's appearance before the grand jury. The evidence taken on the motion to suppress showed that the government attorney requested suggestions for witnesses to be subpoenaed before the grand jury from the agent who had dealt with Rangel and the agent recommended calling Rangel and recited to the government attorney how the actual attempt had occurred.
Rangel was asked the following questions, inter alia, by the government attorney before the grand jury:
A member of the grand jury then inquired:
The agent in charge of Rangel's case testified that the file on Rangel was closed following the prosecution and conviction of his brother David Rangel, which took place between December, 1972, and the grand jury appearance in May, 1973.
The appellee was subsequently indicted in count 1 under 21 U.S.C.A. § 846 for an attempt to distribute three ounces of heroin on or about December, 1972, and in count 2 under 18 U.S.C.A. § 1623 for making false representations. The perjury count was based on Rangel's denial before the grand jury of any attempt to obtain or sell heroin or any solicitation to do so.
The appellee moved for an order suppressing his testimony before the grand jury on the perjury count. The district court granted appellee's motion to suppress his testimony before the grand jury, finding that the appellee was a virtual or putative defendant, and thus was in custody under the Miranda decision,2 and therefore should have been given all Miranda warnings. United States v. Rangel, 365 F.Supp. 155 (W.D.Tex. 1973). The district court determined that the warnings given were inadequate and that the appellee could not be deemed to have voluntarily waived his Fifth Amendment right to remain silent. The government ultimately dismissed the attempt count against Rangel.
As noted in United States v. Mandujano, supra at n. 3, the district court issued a joint opinion in this case and the Mandujano case because it found that the two cases embodied a virtually identical set of circumstances. The remarks and findings of fact by the district court quoted extensively in the Mandujano opinion apply with equal force to the circumstances of appellee Rangel's interrogation. As in Mandujano, we construe the discussion by the trial court to be a finding that the government had focused upon Rangel as someone whom the government had knowledge of having committed a crime, as a person whom the government had planned to indict as it had one eye on prosecution, and against whom it was gathering incriminating evidence. Also, the district court found that when Rangel was brought into the grand jury room, the government then knew that an affirmative answer to questions put to him would amount to a confession of guilt of trafficking in heroin.
Consequently, for the reasons stated in our Mandujano decision, we agree with the finding by the district court that this appellee was a virtual or putative defendant, was in custody under the Miranda decision, and therefore should have been given all Miranda warnings.
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