United States v. Kraus

414 F. Supp. 513
CourtDistrict Court, E.D. New York
DecidedJune 8, 1976
DocketNos. 76 CR 24, 76 CR 25
StatusPublished

This text of 414 F. Supp. 513 (United States v. Kraus) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kraus, 414 F. Supp. 513 (E.D.N.Y. 1976).

Opinion

OPINION AND ORDER

PLATT, District Judge.

PRELIMINARY STATEMENT

Defendants are named in separate indictments charging them under 18 U.S.C. § 1623 with committing perjury before a grand jury. Both were employed at LaGuardia Airport, and with other employees they were subpoenaed by a grand jury that sat in this District to investigate various thefts and baggage pilferages at LaGuardia Airport. Each defendant here complains that his rights were violated in the grand jury proceedings, and each asks that the charges against him be dismissed. Since the issues raised by the defendants are virtually identical, we will consider their claims together in this opinion.

FACTS

When defendant Richard Bosco appeared before the grand jury pursuant to subpoena on March 25, 1975, he was advised by an Assistant United States Attorney as follows:

Q Mr. Bosco, this Grand Jury is investigating thefts and pilferages at LaGuardia Airport. I want to advise you of a few rights first.
Anything you say before this Grand Jury could be used against you at a later proceeding.
You need not testify as to matters which may tend to incriminate you. That is to say that you cannot be compelled to testify against yourself as provided by the Fifth Amendment of the United States Constitution. Of course, you have a right to consult an attorney concerning your appearance here today and if you can’t afford one, the court will appoint you one.
Now, you are employed at LaGuardia Airport; is that correct?
A Yes, sir.
Q Therefore you, as well as anyone so employed, is a potential subject of this investigation; do you understand that?
A Yes, sir.

Before defendant Ronald Kraus testified to the grand jury on August 12, 1975, also pursuant to subpoena, he was told by the Assistant United States Attorney:

Q Now, Mr. Kraus, I want to advise you of a few things before I ask you any further questions and that is that this Grand Jury sitting here is investigating thefts and pilferages of baggage at LaGuardia Airport and anything that you might say to this Grand Jury could be used against you in a later proceeding. And you need not testify as to those matters which might tend to incriminate you, that is to say, you cannot be compelled to testify against yourself as is provided by the Fifth Amendment of the U. S. Constitution.
And of course you have the right to consult with an attorney concerning your appearance here today and if you couldn’t afford an attorney, one would be appointed for you.
Now, you stated to this Grand Jury that you are an employee at American Airlines at LaGuardia Airport and that being the case, you as well as any of your fellow employees are potential subjects of this Grand Jury investigation.
Do you understand that?
A Yes.

After these warnings the defendants proceeded to testify, and their statements later formed the basis for the perjury indictments against them.

DISCUSSION

Defendants suggest that for several reasons the use of their statements as the [515]*515foundation for the perjury indictments violates their rights. They maintain, first, that they were not warned that they were targets of the grand jury investigation; second, that they were not fully informed of their rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and third, that in the absence of acknowledgment that they understood their rights, defendants cannot be deemed to have waived them.

I

The first ground need not detain us long. It is true that the Second Circuit exercised its supervisory power in United States v. Jacobs, 531 F.2d 87 (2d Cir. 1976), to require that potential defendants be informed of their status as subjects or targets of investigation before they testify before grand juries. The defendants object that here they were only informed that they were “potential subjects,” and thus not properly put on their guard as fairness requires. We believe that the argument is without merit, and reject it. Not only does common sense dictate that one word or phrase that serves to make the necessary point should suffice for these purposes as well as another; but also the Court of Appeals indicated in the Jacobs opinion at page 89, note 4, in a discussion of United States v. Winter, 348 F.2d 204 (2d Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965), that warnings with modifying adjectives like “potential” fulfill the fairness requirement.

II

Defendants’ second argument, that the indictments against them should be dismissed because they were not given full Miranda warnings, has just been rejected by the United States Supreme Court in United States v. Mandujano,-U.S.-, 96 S.Ct. 1768, 48 L.Ed.2d 212, 44 U.S.L.W. 4629 (May 19, 1976). At least four Justices, those who joined in the plurality opinion written by the Chief Justice, take the position that the Constitution does not require that Miranda warnings be given to grand jury witnesses. All eight of the Justices who considered the case agree that the Fifth Amendment does not require the suppression in a perjury prosecution of testimony given by an unwarned grand jury witness absent such prosecutorial misconduct as amounts to a denial of due process. See United States v. Winter, 348 F.2d 204 (2d Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965); United States v. Bonacorsa, 73 CR 1069 (E.D.N.Y. June 25, 1975), aff’d 528 F.2d 1218 (2d Cir. 1976). See also United States v. Corallo, 413 F.2d 1306 (2d Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422 (1969).

In applying the Mandujano ruling to this case, we note first that it is a perjury indictment which each defendant asks us to dismiss. That each defendant supposedly was not given adequate warnings by the Assistant United States Attorney is “no defense to a charge that he thereafter perjured himself in the grand jury room,” United States v. Winter, 348 F.2d 204, 208 (2d Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965).

We note as well that nothing even vaguely akin to a denial of due process took place here.

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
United States v. Mandujano
425 U.S. 564 (Supreme Court, 1976)
United States v. Hyman Winter
348 F.2d 204 (Second Circuit, 1965)
United States v. Robert Anthony Lamia
429 F.2d 373 (Second Circuit, 1970)
United States v. Joseph Bonacorsa
528 F.2d 1218 (Second Circuit, 1976)
United States v. Pepe
367 F. Supp. 1365 (D. Connecticut, 1973)
Clancy v. First National Bank of Colorado Springs
396 U.S. 958 (Supreme Court, 1969)

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Bluebook (online)
414 F. Supp. 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kraus-nyed-1976.