Grand Jury Testimony: 5th Amendment and Right to Counsel

UNITED STATES v. Roy MANDUJANO.

425 U.S. 564 (1976)

[D]uring the course of a grand jury investigation into narcotics traffic in San Antonio, Tex., federal prosecutors assigned to the Drug Enforcement Administration Task Force learned of an undercover narcotics officer's encounter with respondent in March 1973. At that time, the agent had received information that respondent, who was employed as a bartender at a local tavern, was dealing in narcotics. The agent, accompanied by an informant, met respondent at the tavern and talked for several hours. During the meeting, respondent agreed to obtain heroin for the agent, and to that end placed several phone calls from the bar. He also requested and received $650 from the agent to make the purchase. Respondent left the tavern with the money so advanced to secure the heroin. However, an hour later respondent returned to the bar without the narcotics and returned the agent's money. Respondent instructed the agent to telephone him at the bar that evening to make arrangements for the transaction. The agent tried but was unable to contact respondent as directed. The record provides no explanation for respondent's failure to keep his appointment. No further action was taken by the agent, and the investigatory file on the matter was closed. The agent did, however, report the information to federal prosecutors. At that time, the Government was seeking information on local drug traffic to present to a special grand jury investigating illicit traffic in the area.

Respondent was subpoenaed to testify before the grand jury on May 2, 1973; this was approximately six weeks after the abortive narcotics transaction at the tavern where respondent was employed. When called into the grand jury room and after preliminary statements, the following colloquy occurred between the prosecutor and respondent:

During the questioning respondent admitted that he had previously been convicted of distributing drugs, that he had recently used heroin himself, and that he had purchased heroin as recently as five months previously. Despite this admitted experience with San Antonio's heroin traffic, respondent denied knowledge of the identity of any dealers, save for a streetcorner source named Juan. Respondent steadfastly denied either selling or attempting to sell heroin since the time of his conviction 15 years before.

Respondent specifically disclaimed having discussed the sale of heroin with anyone during the preceding year and stated that he would not even try to purchase an ounce of heroin for $650. Respondent refused to amplify on his testimony when directly confronted by the prosecutor:

Following this appearance, respondent was charged by a grand jury on June 13, 1973, in a two-count indictment with attempting to distribute heroin in violation of 21 U.S.C.  841(a)(1), 846, and for willfully and knowingly making a false material declaration to the grand jury in violation of 18 U.S.C. 1623.¹ The falsity of his statements was conceded; his sole claim was that the testimony before the grand jury should be suppressed because the Government failed to provide the warnings called for by Miranda. Following an evidentiary hearing, the District Court granted respondent's motion to suppress. The court held that respondent was a "putative" or "virtual" defendant when called before the grand jury; respondent had therefore been entitled to full Miranda warnings.

In so ruling, the court undertook to distinguish its own holding in United States v. Orta, 253 F.2d 312, in which Judge Rives, speaking for the court, stated:

The Court of Appeals concluded that the "totality of the circumstances" commanded suppression of all the testimony on which the charge of perjury rested.

We agree with the views expressed by Judge Rives in Orta and disagree with the Court of Appeals in the instant case; accordingly, we reverse.

The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. . . . [T]he grand jury's authority to compel testimony is not, of course, without limits. The same Amendment that establishes the grand jury also guarantees that "no person . . . shall be compelled in any criminal case to be a witness against himself . . . ." The duty to give evidence to a grand jury is therefore conditional; every person owes society his testimony, unless some recognized privilege is asserted.

Under settled principles, the Fifth Amendment does not confer an absolute right to decline to respond in a grand jury inquiry; the privilege does not negate the duty to testify but simply conditions that duty. The privilege cannot, for example, be asserted by a witness to protect others from possible criminal prosecution. Nor can it be invoked simply to protect the witness' interest in privacy. "Ordinarily, of course, a witness has no right of privacy before the grand jury." Calandra, 414 U.S., at 353.

The very availability of the Fifth Amendment privilege to grand jury witnesses, recognized by this Court in Counselman v. Hitchcock, 142 U.S. 547, suggests that occasions will often arise when potentially incriminating questions will be asked in the ordinary course of the jury's investigation. Probing questions to all types of witnesses is the stuff that grand jury investigations are made of; the grand jury's mission is, after all, to determine whether to make a presentment or return an indictment. "The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes." Costello v. United States, 350 U.S., at 362.

It is in keeping with the grand jury's historic function as a shield against arbitrary accusations to call before it persons suspected of criminal activity, so that the investigation can be complete. This is true whether the grand jury embarks upon an inquiry focused upon individuals suspected of wrongdoing, or is directed at persons suspected of no misconduct but who may be able to provide links in a chain of evidence relating to criminal conduct of others, or is centered upon broader problems of concern to society. It is entirely appropriate indeed imperative to summon individuals who may be able to illuminate the shadowy precincts of corruption and crime. Since the subject matter of the inquiry is crime, and often organized, systematic crime as is true with drug traffic it is unrealistic to assume that all of the witnesses capable of providing useful information will be pristine pillars of the community untainted by criminality. . . .

Accordingly, the witness, though possibly engaged in some criminal enterprise, can be required to answer before a grand jury, so long as there is no compulsion to answer questions that are self-incriminating; the witness can, of course, stand on the privilege, assured that its protection "is as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, 142 U.S., at 562. The witness must invoke the privilege, however, as the "Constitution does not forbid the asking of criminative questions." United States v. Monia, 317 U.S., at 433 (Frankfurter, J., dissenting).

Absent a claim of the privilege, the duty to give testimony remains absolute.

The stage is therefore set when the question is asked. If the witness interposes his privilege, the grand jury has two choices. If the desired testimony is of marginal value, the grand jury can pursue other avenues of inquiry; if the testimony is thought sufficiently important, the grand jury can seek a judicial determination as to the bona fides of the witness' Fifth Amendment claim, Malloy v. Hogan, 378 U.S. 1, in which case the witness must satisfy the presiding judge that the claim of privilege is not a subterfuge. If in fact "'there is reasonable ground to apprehend danger to the witness from his being compelled to answer,'" Brown v. Walker, 161 U.S., at 599, the prosecutor must then determine whether the answer is of such overriding importance as to justify a grant of immunity to the witness. . . . [I]f immunity is sought by the prosecutor and granted by the presiding judge, the witness can then be compelled to answer, on pain of contempt, even though the testimony would implicate the witness in criminal activity. . . .

[O]ur cases have consistently indeed without exception allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry.

In Bryson v. United States, 396 U.S. 64, a union officer was required by federal labor law to file an affidavit averring that he was not a Communist. The affidavit was false in material statements. In a collateral attack on his conviction, Bryson argued that since the statute required him either to incriminate himself or lie, he could not lawfully be imprisoned for failure to comply. This Court rejected the contention: "(I)t cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions lying is not one of them."

Even where a statutory scheme granted blanket immunity from further use of testimony, the Court has found perjured statements to fall outside the grant. In Glickstein v. United States, 222 U.S. 139, a bankrupt was indicted for perjury committed in the course of a bankruptcy proceeding. The Bankruptcy Act expressly conferred broad immunity on a bankrupt: "(N)o testimony given by him shall be offered in evidence against him in any criminal proceeding." The Court rejected the bankrupt's literalistic interpretation of the statute as conferring immunity from prosecution for perjury:

In this case, the Court of Appeals required the suppression of perjured testimony given by respondent, as a witness under oath, lawfully summoned before an investigative grand jury and questioned about matters directly related to the grand jury's inquiry. The court reached this result because the prosecutor failed to give Miranda warnings at the outset of Mandujano's interrogation. Those warnings were required, in the Court of Appeals' view, because Mandujano was a "virtual" or "putative" defendant that is, the prosecutor had specific information concerning Mandujano's participation in an attempted sale of heroin and the focus of the grand jury interrogation, as evidenced by the prosecutor's questions, centered on Mandujano's involvement in narcotics traffic. The fundamental error of the prosecutor, in the court's view, was to treat respondent in such a way as to "'smack' of entrapment"; as a consequence, the court concluded that "elemental fairness" required the perjured testimony to be suppressed.

The court's analysis, premised upon the prosecutor's failure to give Miranda warnings, erroneously applied the standards fashioned by this Court in Miranda. Those warnings were aimed at the evils seen by the Court as endemic to police interrogation of a person in custody. Miranda addressed extrajudicial confessions or admissions procured in a hostile, unfamiliar environment which lacked procedural safeguards. The decision expressly rested on the privilege against compulsory self-incrimination; the prescribed warnings sought to negate the "compulsion" thought to be inherent in police station interrogation. But the Miranda Court simply did not perceive judicial inquiries and custodial interrogation as equivalents: "(T)he compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery."

The Court thus recognized that many official investigations, such as grand jury questioning, take place in a setting wholly different from custodial police interrogation. Indeed, the Court's opinion in Miranda reveals a focus on what was seen by the Court as police "coercion" derived from "factual studies (relating to) police violence and the 'third degree' . . . physical brutality beating, hanging, whipping and to sustained and protracted questioning incommunicado in order to extort confessions. . . ." To extend these concepts to questioning before a grand jury inquiring into criminal activity under the guidance of a judge is an extravagant expansion never remotely contemplated by this Court in Miranda; the dynamics of constitutional interpretation do not compel constant extension of every doctrine announced by the Court.

The marked contrasts between a grand jury investigation and custodial interrogation have been commented on by the Court from time to time. Mr. Justice Marshall observed that the broad coercive powers of a grand jury are justified, because "in contrast to the police it is not likely that (the grand jury) will abuse those powers." United States v. Mara, 410 U.S. 19 (dissenting opinion).

The warnings volunteered by the prosecutor to respondent in this case were more than sufficient to inform him of his rights and his responsibilities and particularly of the consequences of perjury. To extend the concepts of Miranda, as contemplated by the Court of Appeals, would require that the witness be told that there was an absolute right to silence, and obviously any such warning would be incorrect, for there is no such right before a grand jury. Under Miranda, a person in police custody has, of course, an absolute right to decline to answer any question, incriminating or innocuous, whereas a grand jury witness, on the contrary, has an absolute duty to answer all questions, subject only to a valid Fifth Amendment claim. And even when the grand jury witness asserts the privilege, questioning need not cease, except as to the particular subject to which the privilege has been addressed. Other lines of inquiry may properly be pursued.

Respondent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play. Kirby v. Illinois, 406 U.S. 682. A witness "before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel . . .." In re Groban, 352 U.S., at 333. Under settled principles the witness may not insist upon the presence of his attorney in the grand jury room. Fed.Rule Crim.Proc. 6(d).

Respondent, by way of further explanation, was also warned that he could be prosecuted for perjury if he testified falsely. Since respondent was already under oath to testify truthfully, this explanation was redundant; it served simply to emphasize the obligation already imposed by the oath. "Once a witness swears to give truthful answers, There is no requirement to 'warn him not to commit perjury or, conversely to direct him to tell the truth.' It would render the sanctity of the oath quite meaningless to require admonition to adhere to it." United States v. Winter, 348 F.2d 204.

Similarly, a witness subpoenaed to testify before a petit jury and placed under oath has never been entitled to a warning that, if he violates the solemn oath to "tell the truth," he may be subject to a prosecution for perjury, for the oath itself is the warning. Nor has any case been cited to us holding that the absence of such warnings before a petit jury provides a shield against use of false testimony in a subsequent prosecution for perjury or in contempt proceedings.⁷

In any event, a witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury, any more than would be the case with false testimony before a petit jury or other duly constituted tribunal.⁸

In another context, this Court has refused to permit a witness to protect perjured testimony by proving a Miranda violation. In Harris v. New York, the Court held that notwithstanding a Miranda violation: "(The Fifth Amendment) privilege cannot be construed to include the right to commit perjury."

More recently, the Court reaffirmed this salutary principle: "(T)he shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances." Oregon v. Hass, 420 U.S. 714.

The fact that here the grand jury interrogation had focused on some of respondent's specific activities does not require that these important principles be jettisoned; nothing remotely akin to "entrapment" or abuse of process is suggested by what occurred here. Assuming Arguendo, that respondent, was indeed a "putative defendant," that fact would have no bearing on the validity of a conviction for testifying falsely.

The grand jury was appropriately concerned about the sources of narcotics in the San Antonio area. The attempted heroin sale by respondent provided ample reason to believe that he had knowledge about local heroin suppliers. It was, therefore, entirely proper to question him with respect to his knowledge of narcotics trafficking.⁹ Respondent was free at every stage to interpose his constitutional privilege against self-incrimination, but perjury was not a permissible option. As the Tenth Circuit has held, the law provides "other methods for challenging the government's right to ask questions." United States v. Pommerening, 500 F.2d 92.

The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in the judgment.

I concur in the judgment of the Court, for "even when the privilege against self- incrimination permits an individual to refuse to answer questions asked by the Government, if false answers are given the individual may be prosecuted for making false statements." Mackey v. United States, 401 U.S. 667 (Brennan, J., concurring in judgment). . . . [H]owever, two aspects of the plurality opinion suggests a denigration of the privilege against self-incrimination and the right to the assistance of counsel with which I do not agree.

The plurality opinion mechanically quotes United States v. Monia for the proposition:

. . .In my view, the conception of the Fifth Amendment privilege expressed in the Monia dictum is explainable only by reference to the facts and circumstances of the only case cited in support by Monia -- United States ex rel. Vajtauer v. Commissioner of Immigration. That case involved questions concerning the Fifth Amendment privilege in a deportation proceeding. In holding that the prospective deportee's privilege against compulsory self-incrimination had not been violated in the circumstances, the Court rested on the failure to assert any claim of privilege in the proceeding. . . . [I]t is only in a context where this "lack of notice on the part of the government" rationale has significance that we can possibly justify the Monia dictum that a witness testifying under judicial compulsion that classic form of compulsion to which the Fifth Amendment is centrally addressed must claim the privilege or else, without any further analysis, "he will not be considered to have been 'compelled' within the meaning of the Amendment." 317 U.S., at 427. . . .

Indeed, it seems obvious that a de facto defendant's privilege is placed in much greater jeopardy than that of a de jure defendant, who has at least been informed of the charges against him and is more likely to have consulted with counsel and thereby have been made aware of his privilege.

Even more serious, the use by prosecutors of the tactic of calling a putative defendant before a grand jury and interrogating him regarding the transactions and events for which he is about to be indicted is, in the absence of an "intentional relinquishment or abandonment" of his "known" privilege against compulsory self-incrimination, a blatant subversion of the fundamental adversary principle that the State "establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation." Watts v. Indiana, 338 U.S., at 54. Where such prosecutorial tactics are employed, it borders on the absurd to say, as is said in justification of the Monia dictum, that the "government . . . may assume that its compulsory processes are not eliciting" incriminating information, Garner at 655. . . .

Thus, I would hold that, in the absence of an intentional and intelligent waiver by the individual of his known right to be free from compulsory self-incrimination, the Government may not call before a grand jury one whom it has probable cause as measured by an objective standard¹⁵ to suspect of committing a crime, and by use of judicial compulsion compel him to testify with regard to that crime. In the absence of such a waiver, the Fifth Amendment requires that any testimony obtained in this fashion be unavailable to the Government for use at trial. Such a waiver could readily be demonstrated by proof that the individual was warned prior to questioning that he is currently subject to possible criminal prosecution for the commission of a stated crime, that he has a constitutional right to refuse to answer any and all questions that may tend to incriminate him, and by record evidence that the individual understood the nature of his situation and privilege prior to giving testimony. . . .

A second and also disturbing facet of the plurality opinion today is its statement that "(n)o criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play." It will not do simply to cite, as does the plurality opinion, Kirby v. Illinois for this proposition. Kirby's premise, so fundamental that it was "note(d) at the outset," was that "the constitutional privilege against compulsory self-incrimination is in no way implicated here." Id., at 687. In sharp contrast, the privilege against compulsory self-incrimination is inextricably involved in this case since a putative defendant is called and interrogated before a grand jury. Clearly in such a case a defendant is "faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."

It is true that dictum in In re Groban denied there is any constitutional right of a witness to be represented by counsel when testifying before a grand jury. But neither Groban nor any other case in this Court has squarely presented the question.¹⁹ Moreover, more recent decisions, recognizing the "substantive affinity" and therefore the "coextensive(ness)" in certain circumstances of the right to counsel and the privilege against compulsory self-incrimination, have led many to question the continuing vitality of such older dicta. . . .

Given the inherent danger of subversion of the adversary system in the case of a putative defendant called to testify before a grand jury, and the peculiarly critical role of the Fifth Amendment privilege as the bulwark against such abuse, it is plainly obvious that some guidance by counsel is required. This conclusion entertains only the "realistic recognition of the obvious truth that the average (putative) defendant does not have the professional legal skill to protect himself when brought before a tribunal . . . wherein the prosecution is (represented) by experienced and learned counsel." Johnson v. Zerbst, 304 U.S., at 462-463. . . .

Under such conditions it "would indeed be strange were this Court" to hold that a putative defendant, called before a grand jury and interrogated concerning the substance of the crime for which he is in imminent danger of being criminally charged, is simply to be left to "fend for himself." Coleman v. Alabama (Harlan, J., concurring and dissenting).

It may be that a putative defendant's Fifth Amendment privilege will be adequately preserved by a procedure whereby, in addition to warnings, he is told that he has a right to consult with an attorney prior to questioning, that if he cannot afford an attorney one will be appointed for him, that during the questioning he may have that attorney wait outside the grand jury room, and that he may at any and all times during questioning consult with the attorney prior to answering any question posed.²² At least if such minimal protections were present, a putative defendant would be able to consult with counsel prior to answering any question that he might in any way suspect may incriminate him. Thereafter, if the privilege is invoked and contested, a hearing on the propriety of its invocation will take place in open court before an impartial judicial officer, and the putative defendant will there have his counsel present. If the invocation of the privilege is disallowed, the putative defendant will then have the opportunity to answer the question posed prior to the imposition of sanctions for contempt.

There is clearly no argument that a procedure allowing a putative defendant called to testify before a grand jury to consult at will with counsel outside the grand jury room prior to answering any given question would in any way impermissibly "delay and disrupt grand jury proceedings." United States v. Calandra. This is clearly manifested by the plethora of reported instances in which just such procedures have been followed. Nor would such a procedure damage the constitutional "role and functions of the grand jury," for the only effect on its investigative function is to secure a putative defendant's Fifth Amendment privilege and thereby avoid subversion of the adversary system. . . .