Opinion
20-3704
04-08-2022
UNITED STATES OF AMERICA, Appellee, v. SHANNA SMITH, Defendant-Appellant.
FOR APPELLEE: KATHERINE A. GREGORY, Assistant U.S. Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY. FOR DEFENDANT-APPELLANT: MICHAEL J. STACHOWSKI, Michael J. Stachowski, P.C., Buffalo, NY.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of April, two thousand twenty-two.
Appeal from a judgment of the United States District Court for the Western District of New York (Vilardo, J.).
FOR APPELLEE: KATHERINE A. GREGORY, Assistant U.S. Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.
FOR DEFENDANT-APPELLANT: MICHAEL J. STACHOWSKI, Michael J. Stachowski, P.C., Buffalo, NY.
PRESENT: MICHAEL H. PARK, STEVEN J. MENASHI, MYRNA PÉREZ, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
On July 11, 2019, Defendant Shanna Smith was indicted for knowingly making false declarations before a federal grand jury in violation of 18 U.S.C. § 1623(a) and obstructing justice under 18 U.S.C. § 1512(c)(2). The charges stemmed from Smith's false statements to a grand jury on July 31, 2018 in response to questions concerning the shooting and killing of Xavier Wimes on or about January 1, 2017 in Buffalo, New York. Smith moved to dismiss the indictment, arguing that the government's conduct leading up to her testimony violated her constitutional rights or, in the alternative, warranted dismissal as a sanction under the court's supervisory authority over grand jury proceedings. The district court rejected Smith's motion on April 23, 2020. Smith pleaded guilty to the indictment on June 8, 2020, and the district court sentenced her to 48 months' imprisonment. Smith filed a timely notice of appeal, claiming that the district court erred in denying her motion to dismiss the indictment. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.
"In analyzing the denial of [Smith]'s motion to dismiss the indictment, we review the District Court's conclusions of law de novo and its factual findings for clear error." United States v. Bout, 731 F.3d 233, 237-38 (2d Cir. 2013).
Smith argues that the perjury charges against her must be dismissed because: (1) the government's actions were misleading, improper, and constituted prosecutorial misconduct that violated her due process rights; (2) the government did not inform Smith of her Fifth Amendment right against self-incrimination and Sixth Amendment right to assistance of counsel before she testified in front of the grand jury; and (3) the government set a "perjury trap" for Smith at the grand jury proceedings. Appellant's Br. at 31. None of these arguments has merit.
I. Prosecutorial Misconduct
This Court may dismiss an indictment for prosecutorial misconduct as "an extraordinary remedy . . . pursuant to [its] supervisory power . . . if the grand jury was misled or misinformed, or possibly if there is a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process." United States v. Percoco, 13 F.4th 158, 179 (2d Cir. 2021) (citations omitted). The Supreme Court has otherwise cautioned that the supervisory power of the federal courts over grand jury proceedings "is a very limited one, not remotely comparable to the power they maintain over their own proceedings," and cannot amount to "judicial reshaping of the grand jury institution." United States v. Williams, 504 U.S. 36, 50 (1992). Smith claims that dismissal of her indictment is warranted because she was misled by the government when it did not inform Smith, prior to her testimony, that she was a "target" or "subject" of the federal grand jury investigation. We disagree.
The Justice Manual (previously known as the United States Attorneys' Manual) defines the terms "subject" and "target" and provides that "[i]t is the policy of the Department of Justice to advise a grand jury witness of his or her rights" if the witness is either "a 'target' or 'subject' of a grand jury investigation." U.S. Dep't of Just., Just. Manual § 9-11.151 (2020). "A 'target' is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." Id. Meanwhile, a "'subject' of an investigation is a person whose conduct is within the scope of the grand jury's investigation." Id.
First, the district court properly concluded that Smith was not a "target" or "subject" of the investigation when she testified before the grand jury. In 2017, the government initiated a comprehensive investigation into gang activity in Buffalo, New York. This investigation encompassed the possible involvement of Smith's cousin, Dalvon Curry, in two unresolved homicide cases: the December 2015 murder of Jaquan Sullivan and the January 2017 murder of Xavier Wimes. The grand jury subpoenaed Smith because she possessed relevant information concerning Curry's whereabouts and actions on the days of those killings. Smith fails to provide any facts that would support her assertion that the government was investigating crimes committed by her, rather than by Curry. The government therefore properly did not inform Smith that she was a "target" or "subject" of the grand jury investigation.
In 2015-during the initial investigation of the Sullivan murder-Smith provided an alibi for Curry by telling law enforcement that he was with her at home when Sullivan was murdered. On July 11, 2018, during an interview with local and federal law enforcement, Smith also stated that she was present at the party where Wimes was killed on January 1, 2017.
Second, even if Smith had been a "target" or "subject" of the investigation, the government's conduct would not have warranted dismissal of Smith's indictment for perjury. Smith "does not have a constitutional right to a warning that [s]he is a target," nor does the lack of such a warning confer on Smith the right to lie in front of a grand jury. Percoco, 13 F.4th at 179 (citing United States v. Washington, 431 U.S. 181, 189 (1977)). When Smith arrived to testify before the grand jury, the government explained that she would be questioned about the 2015 and 2017 murders and Curry's whereabouts on the days of the killings. Smith was also advised that she could face legal consequences if she lied to the grand jury. Smith nonetheless proceeded knowingly to make false statements to the grand jury. Under these circumstances, we decline to immunize Smith from a prosecution for perjury.
II. The Fifth and Sixth Amendments
The district court also properly declined to dismiss Smith's indictment based on the government's alleged violation of Smith's Fifth and Sixth Amendment rights. Smith argues that her perjury charges must be dismissed because the government did not warn her of her Fifth Amendment right against self-incrimination and her Sixth Amendment right to counsel. This argument fails because even assuming a violation occurred, it does not entitle Smith to a dismissal of her indictment for perjury. See Wheel v. Robinson, 34 F.3d 60, 67 (2d Cir. 1994) ("[I]t is well settled that even constitutional deficiencies in the underlying proceeding do not prevent prosecution for perjury.").
This appeal does not require us to reach the issue of whether the government was required to provide Miranda-like warnings to Smith. We note, however, that a plurality of the Supreme Court has explained that grand jury proceedings do not pose the "evils seen . . . as endemic to police interrogation of a person in custody" that animated the Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966). United States v. Mandujano, 425 U.S. 564, 579 (1976). Other Circuits have similarly found that such warnings are not required in the context of grand jury proceedings. See United States v. Williston, 862 F.3d 1023, 1032 (10th Cir. 2017) ("[A] fullMiranda-warning requirement would run counter to the Supreme Court's direction that grand-jury witnesses are not in custody while testifying, and that grand-jury questioning is not interrogation."); United States v. Gomez, 237 F.3d 238, 241 (3d Cir. 2000) (stating that the government "did not have a constitutionally mandated obligation to advise [a defendant] that he could remain silent" in front of a grand jury).
Smith claims that the government should have informed her of her Sixth Amendment right to the assistance of counsel outside the presence of the grand jury. As an initial matter, Smith's right to assistance of counsel was not implicated by the grand jury proceedings. This right "attaches only at the initiation of adversary criminal proceedings." Davis v. United States, 512 U.S. 452, 456 (1994). Here, the grand jury did not constitute a "criminal proceeding" initiated against Smith. See Williams, 504 U.S. at 49; United States v. Mandujano, 425 U.S. 564, 581 (1976). Nor did the government bring any adversarial action against Smith before she testified. Moreover, even if Smith was "entitled . . . to be advised that [s]he could consult with counsel prior to testifying before the grand jury, omission so to advise [her] is no defense to a charge that [s]he thereafter perjured h[erself] in the grand jury room." United States v. Winter, 348 F.2d 204, 208 (2d Cir. 1965); United States v. Kennedy, 372 F.3d 686, 695 (4th Cir. 2004) (explaining that "[l]ying under oath is" not "an acceptable response to a violation of one's right to counsel" because "[i]t is simply incompatible with the values underlying our criminal justice system that a defendant can lie under oath in order to remedy perceived abuses of his rights").
Similarly, Smith's assertion of a violation of her Fifth Amendment right does not immunize her from prosecution for perjury. It is well settled that a witness who testifies before a grand jury and is later indicted for perjury may not have her false testimony suppressed on the ground that no effective warning of the Fifth Amendment privilege to remain silent was issued. See United States v. Wong, 431 U.S. 174, 178-79 (1977). Thus, even assuming that the government was required to warn Smith of her Fifth Amendment right, this violation would not entitle her to dismissal of the indictment. See United States v. Weiss, 752 F.2d 777, 786 (2d Cir. 1985) ("It is now well settled that a witness before a grand jury may not dismiss an indictment for perjury because he was the target of an investigation . . . or because he was not advised of his Miranda rights . . . or because no effective warning of the Fifth Amendment privilege to remain silent was given."); Kennedy, 372 F.3d at 693 (collecting cases for the "well established" principle "that a defendant cannot immunize acts of perjury through suppression of false statements that were taken in violation of the defendant's constitutional rights").
III. The "Perjury Trap" Doctrine
Lastly, the district court correctly rejected Smith's invocation of the "perjury trap" doctrine. Although this Court "has discussed but has never adopted the 'perjury trap' doctrine," United States v. Balkany, 468 Fed.Appx. 49, 53 (2d Cir. 2012), we need not decide whether this defense is available because "the facts" of this case "render the perjury trap defense inapplicable in any event," Wheel, 34 F.3d at 67 (citation omitted). Smith fails to show that the government's "primary purpose of obtaining testimony from [her]" was to "prosecute [her] later for perjury." Id. (citation omitted). As mentioned above, see supra at 3-4, the grand jury was convened to investigate gang-related activity in Buffalo, New York, and the government had reason to suspect that Smith possessed relevant information concerning two murders. The government thus had a legitimate basis for questioning Smith about these occurrences entirely unrelated to eliciting testimony that could be used to prosecute her for perjury.
The district court properly denied Smith's motion to dismiss the indictment. We have considered the remainder of Smith's arguments and find them to be without merit. For the foregoing reasons, we affirm the judgment of the district court.