Summary
denying defendant's motion to suppress statements that he made during a sentencing hearing when he was in custody on an unrelated matter
Summary of this case from United States v. NorrieOpinion
No. CR99-2019.
February 2, 2000.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to defendant's motion to suppress (docket number 15). This matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the defendant's motion be denied.
Background
On September 28, 1999, defendant Jerry Glen Weekly, Jr., was indicted by the grand jury on three counts:
Count 1 — possession of a sawed-off shotgun in violation of 26 U.S.C. § 5861(d);
Count 2 — possession of a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9); and
Count 3 — possession of a firearm after having been convicted of a crime punishable by more than one year in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).
The defendant is charged with knowingly and unlawfully receiving and possessing a shotgun, a Browning 2000 12-gauge, with a barrel length of approximately 13.5 inches and an overall length of less than 24.5 inches, serial no. 48035 in June of 1996, which was not registered to him. Court 2 was dismissed on the government's motion as 18 U.S.C. § 922(g)(9) was not effective at the time alleged in the indictment. Also, he had been convicted of the April 4, 1993, Operating While Intoxicated (3rd offense) in Linn County, Iowa, and because that offense is punishable by imprisonment for a term exceeding one year, the defendant was not permitted to possess a firearm.
The defendant appeared in United States District Court for the Eastern District of Tennessee October 26, 1999, on a warrant issued from the Northern District of Iowa. He was released on $10,000 unsecured bond, and appeared at an arraignment November 5, 1999, in the Northern District of Iowa.
Motion to Suppress
The defendant has filed a motion to suppress evidence of the Browning 2000 12-gauge shotgun because the indictment against him indicated that he had possession of the weapon "on or around June 1996." The defendant claims he was arrested in June 1996 and could not have been in possession of the firearm since police seized it. He does not explain why this fact, if true, should be grounds for suppression. While the dates in June 1996 are unclear, it will be up to the government to prove to the fact-finder that the defendant was in possession of the weapon on a date in June 1996 before police seized the shotgun.
It is well established that an indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial on the charges on the merits. Costello v. United States, 350 U.S. 359, 363 (1956). A defendant may not challenge an indictment on the ground that it is not supported by sufficient evidence. InUnited States v. Short, 671 F.2d 178, 183 (6th Cir. 1982), the court forcefully stated that "when a body of citizens, properly chosen and constituted as a grand jury, finds probable cause to believe that a crime has been committed within its jurisdiction, that finding is sufficient to require a trial." See United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974) (an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on inadequate or incompetent evidence).
Motion to Suppress Statements
The defendant claims that his testimony at the October 28, 1999, sentencing hearing in United States v. Rodney Albert Warren (CR97-0057) should be suppressed because the defendant did not knowingly and voluntarily waive his Fifth Amendment rights against self-incrimination. At that hearing, the defendant claims he was questioned under oath on matters unrelated to the sentencing of Rodney Albert Warren, and for the sole purpose of eliciting incriminating testimony which led to the indictment of the defendant. The defendant was in custody on an unrelated matter at the time he testified and was brought to court by writ of habeas corpus ad testificandum. He was called as a witness for defendant Warren in that proceeding. He was provided with the following warning by the court prior to his testimony:
THE COURT: Before you start, Mr. Herrera [counsel for defendant Warren], let me advise Mr. Weekly you're going to be asked some questions about the shotgun that's sitting right down there. Do you understand?
THE WITNESS: Yes.
THE COURT: I want to advise you before you begin testifying that you do have a Fifth Amendment right against self-incrimination and you do have a right to refuse to answer any questions that you believe are incriminating. Do you understand that?
THE WITNESS: Yes.
THE COURT: Are you willing to provide and answer the questions that Mr. Herrera is about to ask you?
THE WITNESS: Yeah.
THE COURT: Okay. And I understand you've talked to Mr. Herrera before so you generally know what he's going to be asking.
THE WITNESS: Yeah, briefly.
THE COURT: And is it my understanding that you are willing to answer those questions?
THE WITNESS: Yeah.
THE COURT: All right. Mr. Herrera?
The defendant claims he was not warned that anything he testified about during the hearing might be used against him in a criminal prosecution, nor was he advised of his right to have an attorney present during the questioning.
A prisoner may testify in court without a recitation of Miranda warnings. United States v. Gupta, 183 F.3d 615 (7th Cir. 1999). Although the courtroom setting is the paradigmatic setting for invoking the right against compelling self-incrimination, it is not the type of setting that would justify invoking Miranda's prophylactic rule. The Miranda Court itself recognized that "the 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." United States v. Kilgroe, 959 F.2d 802, 804 (9th Cir. 1992) (quoting Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602,1621, 16 L.Ed.2d 694 (1966). Nor does the "obligation to appear and testify truthfully" created by a subpoena "constitute compulsion to give incriminating testimony" of the sort that implicates Miranda's policies. Id.
The general rule that a grand jury witness is not entitled to warnings of his right to remain silent has been reaffirmed by the Supreme Court in United States v. Mandujano (1976), ___ U.S. ___, 96 S.Ct. 1768, 48 L.Ed.2d 212. It is now incumbent upon such a witness to invoke the Fifth Amendment should he desire to remain silent. The absence of a Miranda warning does not relieve him of this burden. A witness giving testimony in a trial in open court occupies no better position. United States v. Anfield, 539 F.2d 674, 677 (9th Cir. 1976).
In this case, the defendant was called to the witness stand in open court. He was called by the defendant, not the government. The transcript shows that the parties contemplated taking his testimony by telephone but the prosecutor was concerned about the defendant's Fifth Amendment rights (Tr. 12). The defendant answered all of Mr. Herrera's questions but invoked his Fifth Amendment right on the very first question asked by the prosecutor. The remainder of the prosecutor's questions were clearly within the scope of direct examination. Before he testified, the court reminded the defendant that he had the right to refuse to answer any questions that he believed would be incriminating, and he was asked twice if he understood. That reminder of the defendant's Miranda rights were not required by the court, but apparently given as an extra safeguard to alert the defendant to his rights. The defendant's motion to suppress his testimony should be denied.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's motion to suppress (docket number 15) be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).