United States v. Soto

• Decision Date: 16 November 1983
• Docket Number: Civ. Misc. No. H-83-113.
• Citation: 574 F. Supp. 986
• Parties: UNITED STATES of America v. Ana Elizabeth SOTO.
• Court: U.S. District Court — District of Connecticut

574 F. Supp. 986

UNITED STATES of America v. Ana Elizabeth SOTO.

Civ. Misc. No. H-83-113.

United States District Court, D. Connecticut.

November 16, 1983.

Alan H. Nevas, U.S. Atty., Carmen Espinosa Van Kirk, Asst. U.S. Atty., Hartford, Conn., for plaintiff.

Michael Graham, Graham, Murphy & Rubin, Hartford, Conn., for defendant.

RULING ON APPLICATION OF THE UNITED STATES FOR AN ORDER DIRECTING WITNESS NOT TO DEPART GRAND JURY ROOM

CLARIE, Senior District Judge.

The petitioner United States of America ("Government") has requested the Court to issue an order directing the respondent witness, Ana Elizabeth Soto ("witness"), who has been granted use immunity, not to depart from the Grand Jury room to consult with her attorney before answering each question posed to her. The Government prosecutor claims this practice is "an abuse to the consultation privilege, and an attempt to obstruct the Grand Jury's investigation." Counsel for the witness argues that Fifth and Sixth Amendment considerations require that the witness be permitted to consult with her attorney after each question. As an alternative procedure, counsel for the witness suggests that the Grand Jury pose several successive questions to the witness at one time, so that the consultation with counsel could be speeded up. It has been a common practice to allow non-immunized Grand Jury witnesses who could be targets of the investigation to consult with counsel after each question during the Grand Jury proceedings. By contrast, the Court finds that no such constitutional right exists where the witness has been immunized and is not a target of the investigation. However, in exercising supervisory power over Grand Jury proceedings, the Court must strike a balance between the investigatory functions of the Grand Jury and the witness' need to consult with counsel. Therefore, the Court finds that the witness shall be allowed to confer with her attorney after each twenty (20) minutes of questioning for a period of no longer than ten (10) minutes, and that the witness shall not be allowed to write down each question and/or answer during the interrogation.

Facts

On September 12, 1983, a $7,000,000 "inside" robbery took place at the Wells Fargo Armored Service Corporation Depot in West Hartford, Connecticut. An arrest warrant in the case was issued for a Wells Fargo employee, Victor Gerena, on September 13, 1983. To date, the whereabouts of Gerena remains a mystery. A federal Grand Jury was convened to investigate possible violations of federal criminal statutes, including, but not limited to, 18 U.S.C. §§ 659 (theft from an interstate shipment) and 2113(a) and (d) (theft of money belonging to a member bank of the Federal Reserve System) and to unearth any possible clues to Gerena's whereabouts. To achieve this end, the Grand Jury subpoenaed Miss Ana Elizabeth Soto, Gerena's fiancee. Miss Soto admittedly had lived with Gerena for three years and had taken out a marriage license preparatory to a planned marriage on September 16, 1983, four days after the robbery. She was clearly an intelligent witness who could understand the English language and who had completed 11 years of education in the United States.

Motions by Miss Soto's attorney to quash the subpoena and for a hearing regarding a claimed breach of Grand Jury secrecy were denied by this Court as frivolous and unwarranted. The Court's ruling on these motions is currently on appeal before the Second Circuit. Miss Soto actually appeared before the Grand Jury on October 31, 1983.

At that time, Miss Soto articulated concerns regarding self-incrimination by reading a prepared statement. Her counsel argued that she had been arrested on September 14, 1983 by state officials on a charge of "hindering prosecution" and making "false statements to police." These charges were voluntarily dismissed by the Prosecutor in the state court on October 19, 1983. Counsel for the witness claimed that the state charges were groundless, while the Government counsel represented that the state charges were dismissed so that she could be summoned before the federal Grand Jury to testify, without the defense that there were state criminal charges pending. Counsel for the witness has expressed concern that a similar arrest will follow at the federal level if the answers that Miss Soto gives to the Grand Jury unintentionally vary from the answers she gave to state and federal investigators immediately after the robbery; i.e., Id., at ¶ 20-21.¹

To eliminate any such concern and in furtherance of the investigatory purposes of the Grand Jury, the Government applied for an Order Conferring Immunity on Miss Soto. On November 1, 1983, after a full hearing in the presence of counsel, the Court granted Miss Soto "use" immunity under 18 U.S.C. §§ 6002, 6003. The Court denied Miss Soto's claims of spousal privilege and ordered her to testify concerning all matters related to this robbery under pain of contempt. The Court further explained to her that she must tell the truth under oath and if she did not and wilfully lied to the Grand Jury in a material matter, she could be prosecuted. It was further explained that the penalty for perjury may be imprisonment for not more than five years.

When she re-appeared before the Grand Jury, Miss Soto again refused to testify. She restated her fears of self-incrimination and unintentional perjury. Despite governmental assurances that Miss Soto was not the target of the Grand Jury's investigation, she explained that she did not trust either the Grand Jury or the prosecutors. The Government thereupon applied for an Order of Contempt under 28 U.S.C. § 1826. On November 3, 1983, after an open court hearing and while accompanied by counsel, Miss Soto agreed to testify rather than be held in contempt.

Upon appearing once again before the Grand Jury, she requested certain conditions for her interrogation. She insisted that the questioners speak slowly, so that she could write down the questions, depart from the Grand Jury and consult with her attorney before answering. Although her attorney suggested that the Government pose several questions at one time to hasten the process, the Grand Jury and the United States Attorneys gave her one question at a time. After receiving each question, she would then leave the Grand Jury room, confer with her attorney and return with a prepared written answer, which she would read to the Grand Jurors. This process consumed nearly two and one-half (2½) hours in disposing of nineteen (19) questions.

The Grand Jurors became frustrated with the progress of the Grand Jury proceeding, claiming that the consultation process was merely an "attempt to obstruct the Grand Jury's investigation." The Government then moved for this Order, restraining the witness from leaving the Grand Jury room after each question to consult with her attorney. The Government represents that no constitutional right to counsel attaches to an "immunized, non-target witness" at the Grand Jury level; and that the situation here is an "abuse of the consultation privilege" traditionally granted to nonimmunized Grand Jury witnesses.

Miss Soto's counsel claims an absolute right to counsel arising from the "custodial" type of "interrogation" attendant upon the questioning of such an immunized witness. He claims that the "use" immunity granted to her does not insulate her from perjury and that the consultation process will aid her to "avoid saying false things or not testifying fully and unintentionally." He claims further that the "interaction of the attorney and the witness" will jog Miss Soto's memory, alleviate her nervousness, prevent her from "blurting out that fast answer," and thus assist "the grand jury in receiving full and total answers."

Discussion of Law

A constitutional right to counsel for Grand Jury witnesses could normally arise from either the Sixth Amendment, United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 1778, 48 L.Ed.2d 212 (1976) (Burger, C.J., plurality opinion) ("Mandujano plurality"), or the Fifth Amendment's Privilege against self-incrimination. Id., at 602-03, 606-09, 96 S.Ct. at 1789-90, 1791-92 (Brennan, J., concurring opinion) ("Mandujano concur"). It would appear that no Sixth Amendment constitutional right to counsel attaches for the benefit of such a witness at the Grand Jury level. "No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play." Mandujano plurality, at 581. In accord is United States v. Vasquez, 675 F.2d 16 (2d Cir.1982).

"While the government's investigation of Vasquez may have commenced when he was called before the grand jury for the first time, the fact that a person is the subject of an investigation is not enough to trigger his Sixth Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); other cites omitted. For a Sixth Amendment right to counsel to attach, adversarial proceedings must have commenced against an individual, `whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). Vasquez's argument is that adversarial proceedings against him commenced when he was called as a witness before a grand jury in September of 1978. That he was subpoenaed to testify as a grand jury witness, however, did not subject him to adversarial proceedings." Id. at 17.

See also In Re Special September, 1978 Grand Jury, 640 F.2d 49, 64 (7th Cir.1980), ("the Sixth Amendment right to effective assistance of counsel does not apply to a grand jury investigation."), and United States v. Cohen, 444 F.Supp. 1314, 1319 (D.Pa.1978). Therefore, the witness Soto enjoys no Sixth Amendment right to counsel.

Neither does she enjoy a Fifth Amendment right arising from Miranda -type facts. The plurality opinion of Mandujano states...