United States v. TIMONET

• Decision Date: 10 December 1974
• Docket Number: Crim. A. No. 74-379.
• Citation: 385 F. Supp. 1042
• Parties: UNITED STATES of America v. James TIMONET.
• Court: U.S. District Court — Eastern District of Louisiana

385 F. Supp. 1042

UNITED STATES of America v. James TIMONET.

Crim. A. No. 74-379.

United States District Court, E. D. Louisiana.

December 10, 1974.

Gerald J. Gallinghouse, U. S. Atty., Ronald A. Fonseca, Asst. U. S. Atty., New Orleans, La., for United States of America.

Guy Johnson, Louis A. DiRosa, DiRosa & DiRosa, New Orleans, La., for James Timonet.

HEEBE, Chief Judge:

On November 26, 1974, defendant James Timonet was brought to trial before a jury on a two-count indictment. The first count alleges that defendant knowingly made false statements before a grand jury in connection with its investigation of bribery of official ship inspectors at the New Orleans docks. The second count alleges that defendant knowingly issued a false certificate of inspection, in violation of 7 U.S.C. § 87b(b)(3).

At trial, it was discovered for the first time that defendant's statements before the grand jury, sought to be admitted into evidence, were not preceded by adequate Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Accordingly, the Court held these statements inadmissible under authority of United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974), and, because the government had no other evidence in support of the first count, directed a verdict of acquittal as to that count. Defendant subsequently withdrew his plea of not guilty to count two and entered a plea of nolo contendere. Because of the somewhat complicated legal issues involved, the Court feels it is appropriate to state written reasons to accompany its decision from the bench.

Two basic issues are presented by this case: (1) when Timonet testified before the grand jury, was he placed "virtually in the position of a defendant," as that term is used in United States v. Mandujano, supra, so as to require suppression of that testimony?; and (2) is the Court of Appeals' decision in Mandujano, supra, so as to require sup-anda warnings be given to grand jury witnesses in the position of a virtual defendant, to be applied in a case where trial occurred after the date of decision, although the grand jury questioning occurred before it. For reasons stated within, we answer both questions in the affirmative.

I. The holding of Mandujano

United States v. Mandujano, supra, was decided by the Court of Appeals for the Fifth Circuit on June 28, 1974. The court held for the first time that persons in the position of putative defendants before a grand jury are entitled to Miranda warnings:

"Where a totally unfair procedure is put in train — as when there is a factual determination that a person who is subpoenaed before the grand jury and questioned about an alleged crime, was already known to the satisfaction of the prosecuting agency prior to the grand jury appearance to be guilty of that precise crime — elemental fairness requires that such a person is under such compulsion as to require that he be given the Miranda warnings, and that failure to do so must require suppression of any incriminating testimony given by him even though he is being prosecuted for giving false testimony." United States v. Mandujano, supra, at 1058.

The court reiterated the general principle that a grand jury witness is not entitled to warnings of his right to appointed counsel and his right to remain silent. United States v. Morado, 454 F.2d 167, 173 (5th Cir. 1972).¹ However, it created an exception that when a person ceases to be merely a witness in a general investigation and the inquiry has focused upon him, he is virtually in the position of a defendant and entitled to the full warning of rights mandated by Miranda.²

In Mandujano a federal narcotics agent had reported that he had given the defendant $650.00 for an attempted purchase of heroin. Mandujano was then called before the grand jury and questioned about the sale. He denied any knowledge concerning such a sale, and was subsequently indicted for perjury. The Court of Appeals noted that the trial court had found:

"that the government had focused upon Mandujano 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 discussion indicates that the trial court found that when Mandujano 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." Supra, 496 F. 2d at 1053.

On these facts, the court held that Mandujano was a putative defendant in custody and was entitled to Miranda warnings. A consideration of the circumstances of the case before us demands a similar conclusion.

The federal grand jury was investigating public bribery of inspection officials at the New Orleans docks. The grand jury subsequently returned indictments against several individuals for improper payment or receipt of money, and all have pled guilty.

The government was aware, when Timonet was called before the grand jury, that he had been offered $2,500.00 to certify a ship, the M/V VIRGO, which he was charged with inspecting. Assistant United States Attorney Cornelius R. Heusel, who questioned Timonet before the grand jury, testified at trial that he had information from a Mr. Scallan and a Mr. Claiborne that Timonet had been offered $2,500.00 to certify the M/V VIRGO and he had agreed to accept it. And the questioning before the grand jury was focused directly on this transaction:

"Q. Have you ever received any money at all other than your salary from the Delta Weighing? Have you received any money from any outside source other than Delta Weighing?

"A. No.

"Q. Have you ever received money from Delta Weighing that was not a direct — either a Christmas bonus or earned salary?

"A. No, only earned salary and Christmas bonuses is all.

"Q. Did you handle the ship, the Virgo?

"A. Yes.

"Q. Who was the boarding agent on that ship?

"A. Let me see, I really — I don't remember.

"Q. Do you recall who else went aboard with you on the Virgo?

"A. The Cargo Bureau man.

"Q. Do you remember who he was?

"A. Yeah, Warren.

"Q. Did you ever hear any discussion regarding payoffs on the Virgo?

"A. No.

"Q. Were you offered any money to pass the Virgo?

"A. No, the only thing I did on the Virgo — now, it is not exactly by regulations, but I passed it before I went on the ship. I wrote out the pass passing it, because there was an element of time involved. The ship had to be filed in Reserve, Louisiana before 12:00 o'clock, and I think it was about 10:00 o'clock or so when I was there in New Orleans here, so I wrote out the pass at the dock and gave it to the agent and —

"Q. Who did you give it to?

"A. Let me see, it was Scallan, if I remember."

The Court thus finds that the investigation had focused upon Timonet at the time of his questioning, and he was virtually in the position of a defendant. As such, under Mandujano, he was entitled to Miranda warnings.

It is equally clear that in the case before us, Timonet was not given the full panoply of warnings required by Miranda. He was informed that he had a right to a lawyer, and said that he did not want one; however, he was at no time told that he was entitled to an attorney free of charge if he were not financially able to retain one.³ This is the same infirmity underlying the suppression of defendant's statements in Mandujano, supra, 496 F.2d at 1051, n. 1.

The more serious question would be whether suppression of defendant's statements is an appropriate remedy for failure to give Miranda warnings where the statements made amount to perjury. But, after a thorough discussion that question has been answered in the affirmative by Mandujano, and we do not dwell on it at length here.

The problem is that in most cases where Miranda warnings are not given, what is suppressed is defendant's statement relating to the commission of a past crime. In a perjury indictment, however, the statement suppressed is not mere evidence of a past crime, but forms the very basis of the crime itself. Prior decisions of the Fifth Circuit have stated in dicta that where witnesses had committed perjury before a grand jury, they could not rely on the protection of the Fifth Amendment to prevent prosecution. United States v. Orta, 253 F.2d 312 (5th Cir. 1958).⁴ The basis for this decision is that the protection of the Fifth Amendment relates only to crimes alleged to have been committed prior to the time when the testimony is sought. United States v. Orta, supra, at 314.

The court distinguished Orta as not involving a putative defendant. It held that suppression of statements forming the basis of a perjury indictment must at times be suppressed:

"As heinous as the crime of perjury is under our law, and as correct as the Orta principle is, that a witness uninformed of his constitutional rights generally should not be afforded a license to commit perjury, under our law we simply cannot ignore the unfairness in baiting this defendant before the grand jury and overlook the principle that the Fifth Amendment must always be as broad as the mischief against which it seeks to guard. In order to deter the prosecuting officers from bringing a putative or virtual defendant before the grand jury, for the purpose of obtaining incriminating or perjurous testimony, the accused must be adequately apprised of his rights, or all of his testimony, incriminating and perjurous, will be suppressed. In order to combat these methods the Fifth Amendment privilege must be fully honored in this situation. This end entails only slight erosion of the general principle announced in Orta. This deviation in the situation of a putative defendant uninformed of his Miranda rights and called for the purpose of obtaining incriminating or perjurous testimony is necessary to counteract the fundamental unfairness of allowing a defendant to be faced by such a

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