United States v. Scully

• Decision Date: 05 March 1954
• Citation: 119 F. Supp. 225
• Parties: UNITED STATES v. SCULLY et al.
• Court: U.S. District Court — Southern District of New York

119 F. Supp. 225

UNITED STATES v. SCULLY et al.

United States District Court, S. D. New York.

March 5, 1954.

J. Edward Lumbard, U. S. Atty., Washington, D. C., James B. Kilsheimer, III, Asst. U. S. Atty., New York City, of counsel.

James S. Regan, Jr., New York City, for defendant Patrick J. Scully.

GODDARD, District Judge.

Motion to dismiss the indictment against the defendant, Scully, for failure to warn him of his constitutional rights under the Fifth Amendment when he appeared before the grand jury.

On or about December 14, 1953, the defendant, Scully, was served with a subpoena to appear before the grand jury on December 17, 1953. Pursuant to the subpoena, he appeared and testified without claim of privilege. He says that he had not consulted an attorney at the time, and that he was not advised of his constitutional privilege of refraining from incriminating himself.

At the time he appeared on December 17, 1953, the case was conducted as a John Doe proceeding to determine (a) whether a crime had been committed and (b) if so, who was responsible for it. Scully was not in custody, nor was any criminal charge pending against him at the time.

After his testimony of December 17, 1953, through an attorney, he requested an opportunity to reappear before the grand jury and give further testimony. This was granted and he reappeared on December 29, 1953 and testified.

An indictment was filed against him by the grand jury on January 19, 1954, charging Scully, with others, of conspiracy to defraud the United States.

It is well-settled that the appearance of a witness before the grand jury in response to a subpoena does not constitute a violation of his constitutional rights against self-incrimination even though the witness is later indicted by the same grand jury. United States v. Wilson, D.C., 42 F.Supp. 721; Kaplan v. United States, 2 Cir., 1925, 7 F.2d 594, at page 597; United States v. Pleva, 2 Cir., 1933, 66 F.2d 529.

Defendant seeks to rely upon my recent decision in United States v. Lawn, D.C., 115 F.Supp. 674. But that case is to be distinguished. In that case, the defendants were already named in criminal informations outstanding against them when they were compelled to testify before the grand jury about that very matter with which they were charged. In this case, there was no charge pending against Scully. Although he claims that he was a suspect, criminal proceedings against a particular individual cannot be said to be instituted until a formal charge is openly made against the accused, either by indictment presented or information filed in court, or, at least, by complaint before a magistrate. Mulloney v. United States, 1 Cir., 1935, 79 F.2d 566, at page 579. Therefore, Scully must rest his claim of privilege on the rights of a witness, not a party. United States v. Price, C.C., 163 F. 904, 906.

As a witness, he was subject to call and only had the right of any witness to decline to give answers which might tend to incriminate him. United States v. Benjamin, 2 Cir., 1941, 120 F.2d 521. The claim that it was a violation of constitutional rights to call a witness before the grand jury because its...