US v. Gillespie

• Citation: 773 F. Supp. 1154
• Decision Date: 25 April 1991
• Docket Number: No. HCR 90-89.,HCR 90-89.
• Parties: UNITED STATES of America v. Thomas P. GILLESPIE, Jr.
• Court: U.S. District Court — Northern District of Indiana

773 F. Supp. 1154

UNITED STATES of America v. Thomas P. GILLESPIE, Jr.

No. HCR 90-89.

United States District Court, N.D. Indiana, Hammond Division.

April 25, 1991.

Patrick Hansen, Asst. U.S. Atty., Dyer, Ind., for plaintiff.

Robert L. Lewis and Hilbert Bradley, Gary, Ind., for defendant.

OPINION OF THE COURT

MOODY, District Judge.

This matter is before the court on the defendant's (1) "Joint Motion to Dismiss Indictment,"¹ filed December 24, 1990, and (2) "Motion to Suppress and Reject Evidence," filed April 5, 1991. On April 16, 1991, the court entered a summary order denying both motions and deferring its opinion so that trial might proceed as scheduled on April 18, 1991. The court now addresses the merits of the defendant's motions in detail.

I. BACKGROUND

On October 14, 1988, the defendant honored a government subpoena by appearing to testify and present documents to a federal grand jury. The grand jury was investigating certain contracts involving the City of Gary, Indiana. The investigation focused especially on the municipality's relationship with Inner City Leasing and Trucking Company through the defendant's business, Gillespie Ford, Incorporated. At some time during the defendant's testimony to the grand jury, the government came to suspect that he had derived unreported taxable income from his participation in municipal contracts on behalf of Inner City. Thus, during the defendant's testimony, he became a likely defendant (a "target") in the government's eyes.

When the defendant appeared before the grand jury, he was not orally warned of his constitutional right against self-incrimination. Nor was the defendant advised at any time that he had become a target of the grand jury.

The government has asserted, however, that the defendant did receive an effective written warning of his rights, which was attached to the grand jury subpoena. The court devoted its evidentiary hearing of April 15, 1991, to the factual question of whether the defendant was effectively advised of his rights in writing. The evidence at the hearing was inconclusive.²

The defendant now stands charged with two counts of underreporting income on his federal tax return, 26 U.S.C. § 7206(1), and one count of obstructing justice by misleading the grand jury about his income, 18 U.S.C. § 1503. The motions before the court seek dismissal of the two tax counts and suppression of the defendant's October 14, 1988, testimony before the grand jury.

II. ANALYSIS

The defendant relies on a constitutional theory. Specifically, the defendant claims that he had a constitutional right to receive both a Miranda-type advice of rights and a warning that he was a target of the grand jury's investigation.³ The defendant's Miranda argument is rooted in the fifth amendment, and the defendant does not claim that the government violated his sixth amendment rights.

Initially, the court must settle the factual record. As the court has previously noted, it is a venerable principle of constitutional law that a court should not pass on an unsettled constitutional issue unless absolutely necessary in the case before it. E.g. Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 245, 49 L.Ed. 482 (1905) ("It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.") In this case, the court need not pass on the defendant's Miranda theory if the government actually provided the advice of rights he propounds. However, if the advice of rights was not given, then the court has no alternative but to rule on the constitutional issue.

As noted above, the evidence at the court's hearing was inconclusive on the factual issue of whether the government provided an effective advice of rights. The court reasons that if there is a constitutional right to Miranda warnings in the grand jury context, then the government would bear the burden of showing that it gave the warnings. See United States v. Yong Bing-Gong, 594 F.Supp. 248, 256 (N.D.N.Y.1984), aff'd 788 F.2d 4 (2d Cir. 1986), cert. denied 479 U.S. 818, 107 S.Ct. 78, 93 L.Ed.2d 33 (1986). On this record, the government has not carried its hypothetical burden. The court FINDS, for present purposes, that the defendant was not effectively warned of his rights. Accordingly, the court must reach the issue of Miranda warnings in the grand jury context.

The court will address the defendant's constitutional theory in two stages corresponding to the relief requested by the two motions. The court first addresses the motion for dismissal of the tax counts of the indictment. Here the court assumes, arguendo, that the defendant was constitutionally entitled to warnings, but concludes that dismissal is not necessary even under that assumption. The court then addresses the motion for suppression of evidence, examining the government's conduct under the fifth amendment, and concluding that there is no constitutional right to Miranda warnings in the grand jury context.

A. Motion to Dismiss Indictment

The defendant's motion to dismiss has requested only that the court dismiss the tax counts of his indictment. The well settled point of law controlling such motions states: "An indictment returned by a legally constituted and unbiased grand jury, like an information by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956) (holding that an indictment may properly arise from hearsay evidence alone). As a corollary to Costello, the Supreme Court has made it clear that even illegally obtained evidence may support an indictment and call for a trial on the merits. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (grand jury may consider testimonial fruit of unconstitutional search).

Applying Costello, which neither the defendant nor the government briefed or argued, the court cannot grant the requested relief. The indictment is plainly valid on its face. Further, this is not a case such as that presented in Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), where a convicted black murderer contested the exclusion of blacks from the grand jury that indicted him. The Supreme Court overturned Hillery's murder conviction because of this illegal flaw in the state grand jury's composition. Nothing in the current defendant's motion, supporting brief, or oral argument, however, supports any inference that his grand jury was illegally constituted or biased in this manner.

Calandra also dooms the defendant's motion to dismiss the indictment. The defendant apparently argues that the government obtained his testimony to the grand jury in violation of the Constitution, thus tainting the grand jury's indictment decision. Under Calandra, however, the grand jury may consider illegally obtained evidence in its investigation. Accordingly, even if the government violated the defendant's fifth amendment rights, on this record the government would remain entitled to a trial on the merits. See also United States v. Burke, 781 F.2d 1234, 1245 (7th Cir.1985) (Easterbrook, J.) ("Warnings have nothing to do with the validity of indictments.").

Nevertheless, the court is aware of one reported case in this circuit that ignored Costello to grant a very similar defense motion. In United States v. Kreps, 349 F.Supp. 1049 (W.D.Wis.1972) (Doyle, J.), which neither the government nor the defendant has briefed or discussed, three defendants moved to dismiss the indictment against them. Reasoning under Miranda, the Kreps court held that grand jury targets are constitutionally entitled to warnings of their rights and their status as targets. The court then dismissed the indictment of one defendant because he had testified without warnings before a grand jury that had targeted him for indictment.

The Kreps holding was a rational and considered approach to grand jury and fifth amendment procedure.⁴ However, this court is constrained to disagree with the Kreps decision. Even assuming there is a constitutional right to warnings, Costello and Calandra show it would be unnecessary to dismiss an indictment even where those rights are violated and the fruits of the violations are presented to the grand jury.

Thus, the court denies the defendant's "Joint Motion to Dismiss Indictment." Costello and Calandra, however, are cases about the grand jury and the indictment process. They do not apply to the trial process and the admissibility of evidence before the petit jury. The court now turns to the issue of what evidence the petit jury may properly hear, given the propriety of a trial on the indictment.

B. Motion to Suppress Evidence

In addressing the defendant's motion to dismiss, the court assumed that there is a constitutional right to an advice of rights and to target warnings in the grand jury context. In turning to the defendant's motion to suppress his grand jury testimony, however, that assumption is withdrawn. The court finds itself squarely confronted with the issue of whether Miranda or target warnings are required.

The question of target warnings need not detain the court. It is well settled that target warnings are not constitutionally required. In United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977), the Supreme Court held that a target had no right to a warning of his status: "Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of fifth amendment rights." Id. at 189, 97 S.Ct. at 1820. See also Burke, 781 F.2d at 1245 (no target warnings required). The court is at a loss to understand why the defendant has pressed an argument that target warnings are constitutionally significant.

The Washington Court, however, did not pass on the...