The opinion of the court was delivered by: DAWSON
This is a motion made pursuant to Rule 34 of the Rules of Criminal Procedure, 18 U.S.C. for an arrest of judgment on the ground that the Court was without jurisdiction of the offense charged.
On October 18, 1957, defendant was convicted, after a trial by court and jury, on two counts of an indictment which charged possession of heroin in violation of §§ 173 and 174 of Title 21, and §§ 4724(c) and 7237(a) of Title 26 United States Code. The third count of the indictment, which charged conspiracy to violate §§ 173 and 174 of Title 21 United States Code, was dismissed during the course of trial for insufficiency of proof.
In the course of the trial the Government offered in evidence a transcript of certain testimony given by the defendant before a grand jury, and this was objected to by the defendant. Testimony was then presented to the Court that the defendant had been told that she had 'to appear before the grand jury' and that if she did not she would be subpoenaed and compelled to appear. The Court sustained defendant's objection to the introduction of her grand jury testimony on the ground that any evidence obtained from the defendant in this manner would violate that provision of the Fifth Amendment of the United States Constitution which provides that no person 'shall be compelled in any criminal case to be a witness against himself.' After judgment the defense brought on the present motion for an order arresting the judgment and vacating the conviction and quashing the indictment on the ground that the indictment was procured by testimony given by the defendant involuntarily and through violation of her rights under the Fifth Amendment.
The facts show that on June 1, 1957 the defendant was arrested, together with George Wilson, Frank Gayles and Norman Becknell, for violation of the Federal Narcotics Law. She was not arraigned, however, and was released the following day. After her release she cooperated with the Bureau of Narcotics in their apprehension of her source of narcotics, one Anthony Gregory.
On June 13, 1957, Agent Bailey of the Bureau of Narcotics told her that she had to appear the next day before the grand jury and testify, and if she did not appear voluntarily a United States Marshal would be sent up to get her and she would be subpoenaed to testify before the grand jury. She appeared before the grand jury on June 14, 1957. Before she testified she was advised by the Assistant United States Attorney in the following language and gave the following answers:
'Q. But I want to warn you, before you do testify, that your position is as I have described it to you the other day, that you are involved in this transaction and that you could be indicted by the grand jury, if you do testify. Do you understand that? A. Yes, sir.
'Q. Do you understand that you don't have to testify? A. Yes, sir.
'Q. Do you understand that? A. Yes, sir.
'Q. And are you willing to testify? A. Yes, sir.'
At that time Mrs. Garnes was not under arrest and no charges were pending against her. As a result of the testimony presented before the grand jury on that day, an indictment was returned against George Wilson, Frank Gayles, Norman Becknell, Anthony Gregory and Billy Terrell. No indictment was returned against Mrs. Garnes; nor did the grand jury which heard this testimony ever return an indictment against her.
However, on July 30, 1957, evidence was presented before another grand jury relating to Mrs. Garnes. This testimony was given by an agent of the Bureau of Narcotics. In addition, there was presented to this grand jury, through a court reporter, the testimony which mrs. Garnes had given before the other grand jury on June 14, 1957. This grand jury indicted Mrs. Garnes on the two substantive counts and on the one conspiracy count, on which she has now been tried. She was found guilty on the two substantive counts.
The issue presented by this motion is whether the presentation of Mrs. Garnes' testimony before the prior grand jury to the grand jury that indicted her invalidated the indictment and rendered this Court without jurisdiction to try her on the indictment. It is urged that the indictment was procured by testimony given by the defendant involuntarily and against her will, in violation of her rights under the Fifth Amendment. The Court will assume, for the purposes of this motion, that the testimony given by Mrs. Garnes on June 14, 1957, and which was read before the grand jury on July 30, 1957, was given involuntarily, despite the statement to the contrary appearing in the transcript of the grand jury minutes. We have here the case of a rather ignorant woman, who had been arrested and held in custody for a short period of time and then released, who was thereafter told that she had to testify before the grand jury. She had no lawyer at that time. It is doubtful whether this woman under the circumstances would understand when called before the grand jury that she could refuse to testify, in view of the entire background of events which had preceded her appearance before the grand jury. Does this mean, however, that any indictment which eventuated would be a nullity? The testimony which she gave before the grand jury was not used against her at the trial, for the Court sustained the objection to its use.
The defendant relies upon the decision in United States v. Lawn, D.C.S.D.N.Y.1953, 115 F.Supp. 674, wherein Judge Goddard dismissed indictments on the ground that the defendants (against whom criminal informations had theretofore been filed) were called by the prosecution as witnesses before a grand jury to obtain evidence tending to sustain the indictments subsequently brought against them. The defendants were given no warning of their constitutional privilege against self-incrimination. That case differs from the instant case in that there the defendants were already subject to criminal charges alleged in the information, while in the present case the defendant, at the time she appeared before the grand jury, was not accused of any crime, nor had an indictment or information been issued gainst her. The defendant appeared as a witness and gave certain testimony which apparently resulted in an indictment brought against other persons, not herself. When the second grand jury convened they heard the testimony of a Narcotics Agent which related to activities of the defendant as well as the testimony which she had given to the previous grand jury.
It has been held by the Court of Appeals for this Circuit that the mere possibility that a witness may later be indicted does not require that the witness be advised of his rights as to the giving of testimony before a grand jury. United States v. Scully, 2 Cir., 1955, 225 F.2d 113, 116, certiorari denied 350 U.S. 897, 76 S. Ct. 156, 100 L. Ed. 788. In that case a witness subpoenaed to appear before a Federal Grand Jury gave incriminating testimony without being advised of his right to refrain from answering such questions. The grand jury later ...