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July 21, 1958

Richard A. CLEARY et al., Defendants

The opinion of the court was delivered by: BRYAN

Defendant Cleary is charged, in three counts of a five-count indictment against him and others, with stealing from the United States mails in violation of 18 U.S.C. § 1708 and conspiracy so to do. He pleaded not guilty. He now moves to dismiss the indictment as against him upon the ground that it was secured in violation of his rights under the Fifth Amendment to the Constitution. In essence, he claims that he was compelled against his will to testify against himself before the Grand Jury which indicted him after he had been arrested, arraigned and was out on bail on a criminal complaint making the same charges embodied in the indictment. He contends that the indictment against him was therefore based on testimony obtained in violation of his constitutional rights and must be dismissed.

The facts as adduced at a hearing held before me on defendant's request are as follows:

 On April 2, 1952 Cleary, then employed by the Pennsylvania Railroad Company as a baggageman loading and unloading mail cars in the Pennsylvania Station, was arrested on a warrant issued upon a complaint filed with the United States Commissioner in this district the previous day charging him with conspiracy to steal packages from the mails in violation of 18 U.S.C. 1708. Shortly before other Pennsylvania Railroad employees charged with the same conspiracy has also been arrested.

 Cleary was arraigned before a United States Commission. Bail was fixed at $ 5,000 and he was remanded to the Federal House of Detention in default of bail. On April 9, 1952 his bail was reduced to $ 3,500, apparently without his appearance or specific request, and he was released on bail in that amount. He was not represented by counsel at any time from his arrest until shortly after the indictment was returned on June 12, 1952.

 After his arrest, and prior to arraignment, Cleary was interrogated by the arresting Postal Inspector but refused to sign a statement which the Inspector had prepared based on the interrogation.

 On April 8, 1952, the day before his release on bail, he was taken from jail to the office of the United States Attorney in this district, apparently at the request of that office. After a warning by Assistant United States Attorney Greenberg in charge of the case that Cleary had a constitutional right to refuse to answer questions, and that in the event he did so any statement could be used against him in a criminal proceeding, he was questioned before a stenographer. In substance he denied having anything to do with the alleged theft from the mails.

 A few days after his release on bail he went to see Robert A. Mitchell, Esq., a member of the bar of this court. Mitchell already represented three of the other defendants who had been arrested. Cleary discussed the question of retainer with Mitchell and told him he would let him know about the fee. A few days later Cleary called Mitchell's office and advised that he could not meet his terms.

 Mitchell was not retained as Cleary's attorney or counsel at any time and never represented him. Nor did Mitchell at any time discuss with Cleary his constitutional or other rights. In fact, Mitchell felt, after discussing the case with Cleary, that he could not in good conscience represent him because of possible conflicts with the interests of the defendants who had already retained him.

 After Cleary's release on bail the Postal Inspector who had arrested him kept in touch with him. On three or four occasions Cleary came to the United States Attorney's office and talked to Assistant United States Attorney Greenberg who was in charge of the case, at Greenberg's request. Apparently Greenberg formed the impression he was willing to cooperate with the Government. However, on none of these occasions were any written statements taken from Cleary and there is nothing to show that he gave any information of value to the Government.

 On May 8, 1952 a Grand Jury subpoena, returnable May 12, 1952, was issued for the appearance of Cleary before the Grand Jury. Postal Inspector Deutsch served the subpoena by leaving it with Cleary's mother at his home. On May 12 Cleary came to Greenberg's office in the United States Court House in response to the subpoena, showed Greenberg the subpoena and was told to return the following day. He appeared the next day as directed. He had no attorney with him and was not represented by counsel. At that time Greenberg took a question and answer statement from him before a stenographer in the presence of a Postal Inspector and two other Postoffice employees. The purpose of the statement was to 'freeze' Cleary's testimony before the Grand Jury.

 According to the transcript of the statement the following occurred at the outset:

 'Q. At the very outset, I want to advise you that you have a constitutional right to remain silent and not to answer any question -- in other words, to say nothing, but in the event you say anything or answer any questions, whatever you say can be used against you in a criminal proceeding; do you understand your rights? A. I do.

 'Q. You are willing to make a statement, is that right? A. Yes.

 'Q. You are appearing here voluntarily? A. No. (Witness shows subpoena.)

 'Q. You are appearing here in my office voluntarily? A. Yes.

 'Q. You have discussed this matter with your attorney, have you not? A. Yes.

 'Q. What is his name? A. He isn't retaining me yet.

 'Q. You have not retained him? A. No, not yet.

 'Q. You did consult with an attorney prior to the time you came here to make your statement? A. Mr. Mitchell.

 'Q. Mr. Robert Mitchell? A. Robert Mitchell.'

 Cleary was then questioned at some length concerning the subject matter of the charges pending against him and gave answers deeply incriminating him.

 Cleary was not taken before the Grand Jury on that day but was directed by Greenberg to reappear the following day, May 14. He was then taken before the Grand Jury and sworn. The following then occurred:

 'Q. Mr. Cleary, I want to advise you that you are an accused person, and you have a constitutional right to remain silent or not to answer any questions, or any particular question, the answer to which may tend to incriminate or degrade you. But if you do answer any questions, or make any statements, these statements can be used against you in a criminal proceeding. Do you understand that? A. I understand.

 'Q. And your appearance before the Grand Jury, to give this testimony is voluntary on your part, is it not? A. That's right.

 'Q. And have any promises been made to you? A. ...

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