Opinion
Criminal Action No. 01-348, Section "N"
May 24, 2002
ORDER AND REASONS
Before the Court is the Motion to Dismiss the Indictment or, Alternatively, to Suppress Statements Made to the Grand Jury filed on behalf of the defendant, Elizabeth Boyett Smith ("Smith"). The defendant contends that the Government's failure to advise her that she was a "target" of the arson investigation, together "with the lack of any meaningful warnings" with respect to the right not to incriminate herself, warrants dismissal of the indictment. See Smith's Motion and Incorporated Memorandum in Support of Motion to Dismiss, at pp. 7-8. Essentially, Smith's position is that prosecutorial misconduct in connection with her grand jury appearance, and more particularly the failure to conform with Department of Justice policy set forth the United States Attorneys' Manual ("USAM") § 9-11.150, warrants the relief requested ( i.e., dismissal of the indictment and/or suppression). The Government filed formal opposition. The matter was noticed for hearing on May 29, 2002. The Court has determined that there is no necessity for either an evidentiary hearing or oral argument, and thus deems the matter submitted for decision. For the following reasons, the defendant's motion to dismiss, and alternatively to suppress substantive grand jury testimony, is DENIED.
BACKGROUND
On January 24, 2001, a set fire damaged the Rusty Pelican Motel in Grand Isle, Louisiana, which establishment was owned by the defendant Smith and her husband, Spencer Smith. On February 1, 2001, special agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") first interviewed Smith. On February 7, 2001, an ATF confidential informant (CI) met with Smith in the parking lot of the Tinsel Town Movie Theater in Baton Rouge, Louisiana. Special Agent Greg Fields, with consent of the CI, successfully recorded the meeting on both audio and videotape. The ATF activity report describing the February 7, 2001 meeting indicates that Smith denied direct involvement in setting the fire, but stated that an individual named Josh Booty ("Booty") set the fire without her knowledge, and that Booty acted on his own, misunderstanding earlier conversations he had with Smith regarding the Rusty Pelican Motel. See Defendant's Exhibit "A". Smith further instructed the CI that, if questioned regarding the use of his truck by Booty, he should not tell anyone about loaning his truck to Booty.
On March 29, 2001, Booty met with Smith at the Kristenwood Reception Hall in Baton Rouge, Louisiana, where they discussed the arson fire at the Rusty Pelican Motel. That meeting was also monitored and recorded. During the March 29, 2001 meeting, Smith instructed Booty to deny setting the fire at the Rusty Pelican Motel if questioned by the ATF. See Defendant's Exhibit "B" in globo. Another meeting between the two occurred on March 30, 2001, this time at Smith's residence at 1923 Hunters Way Drive in Baton Rouge. This third meeting was also the subject of surveillance conducted by Special Agents Wade Vittitow, Daniel Hebert, and Greg Fields. Discussions continued regarding their concern with the possibility that Anthony Turnley may be cooperating in the ATF investigation of the fire at the Rusty Pelican Motel. Smith allegedly further instructed Booty regarding handling possible questions the ATF might ask him. Id.
Smith was not subpoenaed to appear before the federal grand jury sitting in the Eastern District of Louisiana, however, on May 31, 2001, Smith appeared before the grand jury voluntarily, having been given the opportunity to do so by the Government. At some point prior to her voluntary appearance before the grand jury, Smith contends she asked one of the ATF agents if she was a "target" of the investigation, and was then told that she was not. After being sworn before the grand jury to tell the truth and acknowledging on the record that appearance was voluntary, inter alia, Smith testified that she and her husband owned the Rusty Pelican Motel, and proceeded to tell her version of the events leading up to the January 24, 2001 fire. See Transcript of the May 31, 2001 Grand Jury Proceeding, at p. 3 [Defendant's Exhibit "C"].
Prior to such testimony and after she was sworn before the grand jury to tell the truth, Smith was advised by the Assistant United States Attorney as follows:
I'm going to tell you some things that we tell all witnesses that come through here. You know that you are here voluntarily. And if you don't want to answer a question, you don't have to answer questions for me or for the Grand Jury. And you can answer some questions and not others. It's up to you.
* * *
And if you want to have a lawyer here today, I know you didn't bring one, but if you wanted to have one, you could bring a lawyer. The lawyer would have to wait outside, but you could have one to consult with if you wanted.Id. Thereafter, Smith was introduced to the members of the grand jury and proceeded to tell them her version of the events leading up to the January 24, 2001 fire at the Rusty Pelican Motel. Id.
Smith was not advised on the record of the proceedings that she was a "target" of the arson investigation. Ten days after her appearance before the Grand Jury on May 31, 2001, Special Agents of the ATF contacted Smith, advising her for the first time that the Government suspected that she was personally involved with the fire set at the Rusty Pelican Motel. See June 11, 2001 Interview of Beth Smith [Defendant's Exhibit "D"].
On December 19, 2001, the federal grand jury returned an Indictment charging Smith with conspiracy and the substantive offenses of mail fraud and arson. See Indictment [Rec. Doc. No. 1]. More recently on May 16, 2002, the Government filed a Superceding Indictment reiterating Counts One through Three of the original Indictment and adding four counts. Count 4 of the Superceding Indictment charges Smith with the crime of knowingly using fire to commit a federal felony, in violation of Title 18, United States Code, Sections 844(h) and (2). Counts 5, 6, and 7 of the Superceding Indictment each charge Smith with separate violations of Title 18, United States Code, Section 1512(b)(3) ( i.e., witness tampering), alleging that on February 7, 2001 (Count 5), March 29, 2001 (Count 6), and March 30, 2001 (Count 7), she knowingly, intentionally, and corruptly persuaded and attempted to persuade co-defendant Josh Booty to alter his testimony, by instructing him to lie to Special Agents of the ATF about the aforesaid hotel fire in Grand Isle, with the intent to hinder, delay and prevent the communication of information relating to the commission of a federal offense or potential federal offense ( i.e., arson). See Superceding Indictment for Conspiracy, Arson, Mail Fraud, Use of Fire to Commit a Federal Felony and Witness Tampering [Rec. Doc. No. 23].
EVIDENTIARY HEARING
As a preliminary matter, the Court must determine whether the defendant's motion requires an evidentiary hearing. In United States v. Harrelson, 705 F.2d 733 (5th Cir. 1983), the Fifth Circuit described the necessary showing that the defendant must make to be entitled to an evidentiary hearing on a motion to suppress. Factual allegations set forth in the defendant's motion, including the affidavits and supporting documents, must be of a sufficiently definite and specific tenor, replete with details, so as to enable the court to conclude that a substantial issue has been presented. See id. at 737.
The defendant's motion sets forth specific facts. However, assuming arguendo that the allegations are true ( i.e., a best case scenario in favor of the defendant), the Court concludes that a substantial claim has not been presented. Smith alleges only that the Government elicited her grand jury testimony without warnings of her "target" status and without effective Miranda-type warnings, allegedly in violation of certain provisions set forth in the United States Attorneys' Manual ("USAM"). Smith gives no good reason for suppressing statements made to the Grand Jury, which Smith contends were truthful. Moreover, the defendant's allegations do not begin to meet the heavy burden necessary to challenge the indictment. See Bank of Nova Scotia v. United States, 487 U.S. 250, 252, 108 S.Ct. 2369 (1988).
In considering the request and need for an evidentiary hearing, the Court is mindful that even an indictment based in part on evidence obtained in violation of the Fifth Amendment is not subject to dismissal. See United States v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735, (1992); United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613 (1974); United States v. Blue, 355 U.S. 339, 350, 78 S.Ct. 311 (1966); and Lawn v. United States, 355 U.S. 339, 350, 78 S.Ct. 311 (1958). The remedy of suppression upon making the appropriate showing does not bar prosecution altogether. See Williams, 504 U.S. at 36; and Blue, 384 U.S. at 255 n. 3.
In Bank of Nova Scotia, supra, the Supreme Court held that a federal court may not invoke its supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury investigation, where the misconduct does not prejudice a defendant, and distinguished two classes of cases in which indictments are dismissed, to wit: (1) a limited class consisting of cases in which the structural protections of the grand jury have been so fundamentally impaired as to render the proceedings fundamentally unfair ( i.e., racial and gender discrimination in the selection of the grand jury allow the presumption of prejudice); and (2) the second category which requires the district court to undertake the harmless error analysis. 487 U.S. at 256-257.
Bank of Nova Scotia involved violations of Federal Rule of Criminal Procedure 6, the witness immunity statute and constitutional provisions governing grand jury proceedings, in addition to matters of general practice which affected the quality and reliability of proceedings, none of which met the heavy burden warranting dismissal of the indictment. 487 U.S. at 257-262; see also Williams, 504 U.S. at 46, n. 6. The Court reiterated that facially valid indictments are not subject to challenges to the reliability and competence of the evidence presented to the grand jury. Bank of Nova Scotia, 487 U.S. at 261 (citing Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406 (1956)).
The Williams Court further restricted the court's supervisory power to dismiss an indictment only upon a finding of prejudice, and declared "as a general matter at least, no such `supervisory' judicial authority exists." 504 U.S. at 46-47. The Supreme Court in Williams noted that its decision in Bank of Nova Scotia "makes clear that the supervisory power of the courts can be used to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts to a violation of one of those few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury's functions." Williams, 504 U.S. at 46 (citations and inner quotation marks omitted). Suffice it to say, Williams seems to require a showing of a violation of either the Federal Rules of Criminal Procedure, some statute or the Constitution, at a minimum to require a court to review an indictment to determine possible prejudice in the grand jury proceedings. This case does not involve any fundamental errors that would undermine the structural protections of the grand jury. Because the defendant's contentions are no more than allegations of errors which would impact the quality and reliability of evidence considered by the grand jury, they are beyond this Court's authority to review. See Williams, 504 U.S. at 54. An evidentiary hearing thus is of no assistance to the Court in that regard, either.
Moreover, in United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814 (1977), the Supreme Court could not divine any constitutional disadvantage from the failure to give a target witness warning to that effect prior to his appearance as a grand jury witness. 97 S.Ct. at 1820. Regarding whether or not a suspect was on notice of his potential defendant status, the Court observed:
[A]ll of this is largely irrelevant, since we do not understand what constitutional disadvantage the failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to the protection of Fifth Amendment rights.Id. The Government's alleged failure to advise Smith of her status as a target defendant is the lynchpin of her argument. Washington quite clearly stands for the proposition that target witness status is irrelevant and adds nothing of value to the protection afforded by the Fifth Amendment. Id.
In sum, the defendant bears the burden of demonstrating disputed material facts sufficient to merit an evidentiary hearing. Assuming without deciding that the defendant's allegations regarding prosecutorial misconduct in violation of the United States Attorneys' Manual with respect to advising grand jury witnesses as to their target status were true, such falls far short of that required to entitle Smith to an evidentiary hearing. The defendant does not describe any facts and circumstances suggesting that her testimony before the grand jury was anything less than freely given and voluntary. There are no facts alleged, which even if assumed to be true, would warrant a dismissal of the indictment or suppression of the defendant's statements. Smith's argument erroneously assumes that with respect to witnesses testifying before the grand jury, both Miranda warnings and warnings as to "target" status are constitutionally required. Considering the totality of the circumstances and the defendant's sworn testimony that her appearance before the grand jury was voluntary, an evidentiary hearing would merely secure the opportunity to cross-examine potential witnesses in advance of trial, and discovery of what would otherwise be secret grand jury proceedings to which she is not entitled, or perhaps some other tactical advantage. In summary, defendant's submissions raise no genuine issues of material fact regarding whether her constitutional rights were violated, such that an evidentiary hearing might be warranted, for the reasons stated herein.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966) (focused on what was seen by the Court as police "coercion," and recognized that many official investigations, such as grand jury questioning, take place in a setting wholly different from custodial police interrogation).
ANALYSIS
It is beyond cavil that the validity of the indictment returned by a properly constituted grand jury is not subject to challenge on the ground that it was based on unconstitutionally obtained evidence. See Washington, supra, at 1818 n. 3. Smith does not allege that the grand jury was not properly constituted. The entire thrust of the defendant's Motion to Dismiss is that evidence upon which the indictment was returned was obtained via "prosecutorial misconduct" in allegedly failing to follow its policies and procedures set forth in the United States Attorneys' Manual ( i.e., failing to warn of grand jury witness of target status).
Both sub judice and on its facts, the case at bar is not significantly different from that considered by the Supreme Court in United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814 (1977). If anything, the instant case is stronger because the respondent in Washington was subpoenaed to testify before the grand jury, whereas in the case at bar it is not disputed that Smith appeared voluntarily.
The Washington case focused on the respondent, who was implicated along with others in the theft of a motorcycle. Though the respondent was the subject of a subpoena to testify before the grand jury, the prosecutor did not advise him before his grand jury appearance that he might be indicted on a criminal charge in connection with the theft under investigation. After being advised that he had a right to remain silent ( i.e., not to say anything), respondent nevertheless testified, and was subsequently indicted for the theft. Washington, 97 S.Ct. at 1816.
The district court in Washington suppressed the respondent's statements to the grand jury. The District of Columbia Circuit Court of Appeals affirmed the lower court's suppression order, holding that the most significant failing of the prosecutor was (1) not advising the respondent that he was a potential defendant, and (2) waiting until after administering the oath in the cloister of the grand jury to furnish the advice that was given to the respondent. Id. at 1817-18. The Supreme Court disagreed, reversed and remanded, noting that:
With United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) and United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977), we have settled that grand jury witnesses, including those already targeted for indictment, may be convicted of perjury on the basis of their false grand jury testimony even though they were not first advised of their Fifth Amendment privilege against compelled self-incrimination.Id. at 1815 n. 1.
In Mandujano, the Court held that the right to counsel mandated by Miranda was fashioned to secure the suspect's Fifth Amendment privilege in a setting thought inherently coercive, and noted that under settled principles the grand jury witness may not insist on the presence of an attorney in the grand jury room. The Court further observed that a grand jury witness, who is already under oath to testify truthfully, need not also be warned to about a prosecution for perjury, since this explanation would be redundant and would simply serve to emphasize the obligation already imposed by the oath. 96 S.Ct. at 1779 n. 6. Summoning the target of an inquiry does not suggest anything remotely akin to "entrapment" or abuse of process, since it is entirely appropriate to give the target of the inquiry an opportunity to explain potentially damaging information before the grand jury decides whether the return an indictment. See id. at 1780 n. 9.
In Wong, the Court reiterated that the Fifth Amendment privilege does not condone perjury; it grants a privilege to remain silent without risking contempt, and the failure to provide a warning of the privilege, in addition to the oath to tell the truth, does not call for a different result, and thus would not justify perjury. 97 S.Ct. at 1825.
In Washington, the Supreme Court roundly rejected respondent's cross-petition seeking review of the portion of the appellate court's ruling refusing to dismiss the indictment. See id. at 18!8 n. 3 (citing United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974) for the proposition that an indictment returned by a properly constituted grand jury is not subject to challenge on the ground that it was based on unconstitutionally obtained evidence). The Washington court concluded summarily that "the validity of the indictment is not an issue." Id.
As to whether suppression is warranted, the Washington court observed:
Although it is well settled that the Fifth Amendment privilege extends to grand jury proceedings, it is also axiomatic that the Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials. It does not preclude a witness from testifying voluntarily in matters which may incriminate him, for those competent and free-willed to do so may give evidence against the whole world, themselves included. Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. In addition to guaranteeing the right to remain silent unless immunity is granted, the Fifth Amendment proscribes only self-incrimination obtained by a genuine compulsion of testimony. Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. Accordingly, unless the record reveals some compulsion, respondent's incriminating testimony cannot conflict with any constitutional guarantees of privilege.Id. at 1818-19 (citations and internal quotation marks omitted). It is clear that the constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony, and the test ( i.e., compulsion) considers the totality of the circumstances, and asks whether the free will of the witness was overborne. See id. at 1819.
In the case at bar, after being sworn before the grand jury to tell the truth and having acknowledged under oath twice that her appearance on May 31, 2001 was voluntary, Smith was advised that if she did not want to answer a question, she did not have to answer any question, whether the question was asked either by the Assistant United States Attorney or by the grand jury. Smith was further advised that she could "answer some questions and not others." See Transcript of Smith's May 31, 2001 Grand Jury Testimony, at p. 3. Smith was additionally advised of her right to counsel. She was specifically advised that although she did not have a lawyer with her, she could have one if she wanted. Assistant United States Attorney further explained that while her lawyer would not be allowed in the grand jury room, she could have an attorney available outside the grand jury room to consult with, if she so desired.
Considering similar warnings in a grand jury setting, the Washington court opined:
Indeed, it seems self-evident that one who is told he is free to refuse to answer the questions is in a curious posture to later complain that his answers were compelled. . . . Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not.Id. at 1819.
The Court here further observes the following facts: (1) within days and weeks following the subject arson, Smith was interviewed several times by Special Agents of the ATF; (2) the United States Attorney gave the defendant the opportunity to appear voluntarily before the grand jury; (3) she admittedly retained counsel to represent her; and (4) she was given the traditional warnings given witnesses appearing voluntarily before the grand jury. Hence, these facts quite reasonably support the obvious conclusion that Smith was sufficiently alerted to her own potential criminal liability, and that is even assuming that she was not advised that she was a potential defendant. Not unlike the respondent in the Washington case, Smith knew better than anyone else of her potential defendant status by the time she testified before the grand jury.
Notwithstanding the foregoing, the Washington court found advice as to "target" status largely irrelevant. The Supreme Court explained that witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent that as those who are targets. In sum, the Court held that "because target witness status neither enlarges nor diminishes the constitutional protection against self-incrimination, potential-defendant warnings add nothing of value to the protection of Fifth Amendment rights." Id. at 1820.
Contrary to Smith's argument, judicial decisions in this area leave no questions raised by the facts of the instant case regarding what, if any, warnings are required in the grand jury context. According to the United States Supreme Court's decision in Washington, supra, target status advice or warning of potential-defendant status is "largely irrelevant." Id.
The United States Attorneys' Manual specifically provides that it does not create any rights, substantive or procedural, enforceable at law by any party in any civil or criminal matter. Contrary to Smith's argument, it is clear to this Court that sections 9-11.150-151 of the Manual do not address the voluntary appearance of a witness before the grand jury. These sections rather prescribe the policy and procedures to be employed with respect to witnesses subpoenaed to testify before the grand jury. It provides in pertinent part: "Notwithstanding the lack of clear constitutional imperative, it is the policy of the Department that an `Advice of Rights' form be appended to all grand jury subpoenas to be served on any "target" or "subject" of an investigation." USAM § 9-11.151 [Defendant's Exhibit F]. Section 9-11.152 by its terms pertains to the voluntary testimony by a target and requires no warning that the witness's conduct is being investigated for possible violation of federal criminal law. Moreover, it requires no warning in advance of an appearance before the grand jury of any rights. With respect to voluntary testimony by a target or subject of investigation, the Manual simply requires waiver of the privilege against self-incrimination on the record before the grand jury, and that such witness either be represented by counsel or voluntarily and knowingly appear without counsel and consent to full examination under oath. Smith's May 31, 2001 grand jury testimony sufficiently demonstrates that her appearance before the grand jury was knowing and voluntary, having been advised of both her right to remain silent and her right to counsel on the record before the grand jury. Indeed, a fair reading of the defendant's motion admits no contention that the defendant's appearance and testimony before the grand jury were anything but voluntary and truthful.
Albeit somewhat difficult to follow, Smith's argument and conclusory allegation is that somehow the Government cast her truthful grand jury testimony in a bad light such that the grand jury perceived it as untrue, and thus indicted her in connection with the arson offense under investigation. In addition, Smith does not claim that any statements she made were the product of police, custodial, or compulsory interrogation. It is well-settled that Miranda rights do not attach to voluntary statements made to the grand jury. See Washington, 97 S.Ct. at 1815 n. 1. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by the United States Supreme Court's pronouncement in Miranda v. Arizona, 384 U.S. 436, 478 (1966). Smith's reference to the United States Attorneys' Manual does not suggest that the prosecutor's conduct was either coercive, legally prohibited, or otherwise morally reprehensible in any manner.
In conclusion, to the extent that Smith argues that the indictment should be dismissed because her testimony was procured in violation of her rights under the Fifth Amendment, that argument fails. See Williams, 504 U.S. at 49. Likewise, Smith's reliance on the USAM § 9-11.150, which provides that witnesses subpoenaed to testify before the grand jury should be advised of their target status, is unavailing. This statement of policy pertains only to witnesses subpoenaed to testify before the grand jury. More fundamentally, any violation of this regulation would not impact upon the integrity of the grand jury process itself, and thus is not the type of violation of positive law that gives rise to judicial review of an indictment. If the introduction of evidence taken contrary to Smith's constitutional rights under the Fifth Amendment does not support dismissing the indictment, then a fortiori, neither does a violation of any one or more of the provisions of the United States Attorneys' Manual. Consistent with Williams, 504 U.S. at 54-55, Bank of Nova Scotia, 487 U.S. at 261, and Costello, 350 U.S. at 364, Smith's challenge to the indictment may not be considered, and that is even assuming arguendo that the prosecutor violated the provisions of the USAM. The motion to suppress substantive grand jury testimony is also denied. The defense candidly concedes that the failure to issue a warning of target status does not rise to the level of a constitutional violation, and that Miranda is not implicated in the grand jury setting. Considering the totality of the circumstances, the only reasonable conclusion is that the defendant's grand jury testimony was voluntary, and thus suppression is not warranted.
Accordingly and for the reasons set forth above,
IT IS ORDERED that Elizabeth Boyett Smith's Motion to Dismiss Indictment or, Alternatively, to Suppress the Defendant's Statements Made to the Grand Jury, is DENIED.