The opinion of the court was delivered by: STANTON
Defendant Raffi Nakashian was indicted in five counts on October 30, 1985 for conspiring to import hashish in violation of 21 U.S.C. § 963, to distribute hashish in violation of 21 U.S.C. § 846, and to defraud the United States by making false statements regarding amounts of currency being brought into the country in violation of 18 U.S.C. § 371; and for making false and fraudulent statements to government agents regarding his participation in the alleged conspiracies in violation of 18 U.S.C. § 1001. A superseding indictment was filed on February 26, 1986, dropping the counts for making false statements to government agents and adding four counts of perjury in violation of 18 U.S.C. § 1623. Defendant moves pursuant to (a) Fed. R. Crim. P. 12 for an order dismissing the indictment for prosecutorial misconduct or, in the alternative, dismissing the conspiracy counts for multiplicity; (b) Fed. R. Crim. P. 6(e)(3)(c)(ii) for an order directing the government to produce for defendant's inspection the minutes of the grand jury proceedings containing the colloquies between the prosecutor and the grand jury; (c) Fed. R. Crim. P. 16 and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), for discovery; and (d) Fed. R. Crim. P. 7(f) for a bill of particulars.
Motion to Dismiss the Indictment
A. Prosecutorial Misconduct
The parties agree on the basic sequence of events which preceded the defendant's indictment. On July 3, 1985 two government agents personally served on the defendant at his auto parts store a grand jury subpoena duces tecum with a return date of July 9, 1985. (Aff. of Raffi Nakashian, PP5, 6; Aff. of Jess T. Fardella, P4.) Appended to the subpoena was an "advice of rights," which informed the defendant that he could refuse to answer any question which might incriminate him, that anything he did say might be used against him, and that his attorney, if any, could remain outside the grand jury room for consultation during his examination. (Fardella Aff., Exh. A.) After receiving the subpoena the defendant agreed to be driven by the agents to the office of Assistant United States Attorney Jess T. Fardella (the "AUSA") to discuss the investigation. (Nakashian Aff., P7; Fardella Aff., P4.) At his office the AUSA explained that the government was investigating currency transactions at the Republic National Bank and their possible connection with illegal drug dealing. (Nakashian Aff., P8; Fardella Aff., P5.)
On July 9, 1985 the defendant appeared before the grand jury pursuant to the subpoena. (Nakashian Aff., PP11, 12; Fardella Aff., P7.) The AUSA outlined to him the nature of the proceedings and the subject matter of the government's investigation, and informed the defendant that he was a subject of the investigation and could be named as a defendant. (Tr. I at 2-3.)
The defendant was informed of his Fifth Amendment rights and was warned that if he lied under oath to the grand jury he could be charged with a crime. (Tr. I at 3-6.) At the end of the first session the defendant was directed to return two days later to continue his examination. (Tr. I at 56.)
The defendant appeared before the grand jury again on July 11, 1985. During that session the AUSA did not repeat his previous warning that the defendant was a subject of the investigation, nor did he again inform the defendant of his Fifth Amendment rights. The defendant was reminded that if he lied to the grand jury he could be prosecuted for perjury. (Tr. II at 41-43.)
On August 22, 1985 the government requested that the defendant meet with the AUSA. He agreed and was driven to the AUSA's office by a government agent. (Nakashian Aff., P18; Fardella Aff., P10.) They discussed the government investigation, and sometime during their meeting the AUSA urged the defendant to retain an attorney. (Nakashian Aff., P20; Fardella Aff., P10.)
On October 16, 1985 a government agent delivered a letter from the AUSA to the defendant which invited him, but did not require him, to appear before a grand jury on October 21, 1985. Subsequently the AUSA agreed to have the defendant appear on October 23, 1985. (Nakashian Aff., PP22, 23 and Exh. A; Fardella Aff., P11.)
The defendant appeared before a second grand jury on October 23, 1985 after a conversation with the AUSA in his office. (Nakashian Aff., P26; Fardella Aff., P13.) During the grand jury examination the AUSA again described the subject matter of the government investigation (Tr. III at 2-4), and the defendant was again informed of his Fifth Amendment rights (Tr. III at 6-9, 38, 77-79, 117; Tr. IV at 3), and told that if he lied under oath he was subject to prosecution for perjury (Tr. III at 8-9; Tr. IV at 82-84). In addition the defendant was forcefully warned at the beginning of the morning session that he was a target of the government investigation and would likely be indicted by the grand jury. (Tr. III at 4-6.) The defendant's original indictment was handed down on October 30, 1985.
The defendant argues that prosecutorial misconduct which led to his indictment requires its dismissal. The misconduct alleged includes: (1) the AUSA's failure properly to inform the defendant of his Fifth Amendment rights, of his right to refuse to attend or answer any questions before the grand jury when he was attending voluntarily, and of his status as a target of the government investigation, especially in view of the defendant's difficulty with the English language; (2) efforts by the AUSA and government agents to persuade the defendant that he was merely helping with the investigation and that he was not in danger of prosecution; (3) badgering of the defendant during his grand jury examination by the AUSA; and (4) improper use of the defendant's appearance before a second grand jury for no other purpose but the government's discovery.
The Fifth Amendment privilege against compelled self-incrimination protects grand jury witnesses from being forced to give testimony which later may be used against them in a criminal proceeding. Lefkowitz v. Cunningham, 431 U.S. 801, 804-805, 53 L. Ed. 2d 1, 97 S. Ct. 2132 (1977). There is no constitutional requirement, however, that a grand jury witness be specifically informed of his Fifth Amendment rights before his examination in order that his testimony may be used to support a criminal indictment. United States v. Washington, 431 U.S. 181, 187-188, 52 L. Ed. 2d 238, 97 S. Ct. 1814 (1977); Moynahan v. Manson, 419 F. Supp. 1139, 1150 (D. Conn. 1976), aff'd mem., 559 F.2d 1204 (2d Cir.), cert. denied. 434 U.S. 939, 98 S. Ct. 430, 54 L. Ed. 2d 299 (1977). Nor is there any constitutional requirement that a target of an investigation be informed of his status before he testifies before a grand jury. Washington, 431 at 188-89; United States v. D'Auria, 672 F.2d 1085, 1093 (2d Cir. 1982); United States v. Horowitz, 452 F. Supp. 415, 420 (S.D.N.Y. 1978).
It is true, as defendant points out, that in United States v. Jacobs, 547 F.2d 772 (2d Cir. 1976), cert. granted, 431 U.S. 937, 97 S. Ct. 2647, 53 L. Ed. 2d 254 (1977), cert. dismissed as improvidently granted, 436 U.S. 31, 98 S. Ct. 1873, 56 L. Ed. 2d 53 (1978), the court affirmed the suppression of a defendant's grand jury testimony because she had not received a target warning before testifying. However, in that case the Second Circuit merely held, in the exercise of its supervisory power, that in the interest of uniform justice the Organized Crime Strike Force, when investigating crimes within the circuit, should be obliged to follow the long-standing procedure of the United States Attorneys in the circuit pursuant to which a target of an investigation was customarily informed of that status before testifying before a grand jury. The court's ruling was not grounded on any constitutional right to a target warning. Jacobs, 547 F.2d at 775-776. Indeed, the court sought only to enforce a consistent procedure and noted that a uniform practice of omitting target warnings would be equally acceptable. Id. at 778; see also United States v. DePalma, 461 F. Supp. 778, 792-793 (S.D.N.Y. 1978).
The defendant further argues that the AUSA's failure to warn the defendant before his July, 1985 grand jury appearance that he was a target of the investigation justifies dismissal of the indictment, since the United States Attorneys' Manual ("USAM") requires such a warning.
See USAM, § 9-11.260 at 38. Even assuming that the defendant qualified as a target of the grand jury's investigation in July, the provisions of the USAM afford a party no substantive rights, and their violation does not support the dismissal of an indictment. United States v. Catino, 735 F.2d 718, 725 (2d Cir.), cert. denied, 469 U.S. 855, 105 S. Ct. 180, 83 L. Ed. 2d 114 (1984); United States v Loften, 518 F. Supp. 839, 857 (S.D.N.Y. 1981).
In any event, the defendant was repeatedly informed of the subject matter and nature of the grand jury's proceedings, his Fifth Amendment rights, his right to refuse to attend or answer questions when he was before the grand jury voluntarily, and his status as a subject,
and later as a target, of the investigation. Considering that the defendant has been living in the United States for the last twelve years (Tr. I at 10; Tr. II at 51), that he studied biology and economics for four years at an American college (Tr. I at 10-11; Tr. III at 31), that he worked at three auto parts stores in this country in the space of three years and has operated his own such store here for the last two years (Tr. I at 9, Tr. III at 35-36), that he fielded almost eight hours of questioning by the AUSA before the grand jury with little or no indication that he failed to understand the proceedings or questions, and that the defendant agreed that he speaks English perfectly well (Tr. II at 28; Tr. III at 2, 13), the defendant's claim that he did not understand the AUSA's repeated warnings and explanations during his examination is not credible. Cf. United States v. Satterfield, 644 F.2d 1092, 1097 (5th Cir. 1981) (finding comprehension of Miranda warnings and intelligent waiver of Fifth Amendment rights where defendant had an 11th grade education and operated his own business); United States v. Yong Bing-Gong, 594 F. Supp. 248, 257 (N.D.N.Y. 1984) (same, where Asian defendant had no difficulty responding to police questioning and did not ask for an interpreter).
The defendant's claim that the prosecution improperly misled him during the investigation fails on similar grounds. The defendant states that the government agents and the AUSA were always extremely pleasant to him and indicated that he was "on the same side" as the government, thus giving him the impression that he was helping them by agreeing to testify and that he was in no danger of being indicated. (Nakashian Aff., PP6-9, 14, 16, 17, 20-22, 31.) The AUSA disputes many of the defendant's descriptions of the events which led to his indictment. (Fardella Aff., PP4-6, 10-13.) However, even accepting defendant's allegations as true, neither the AUSA nor the government agents involved engaged in misconduct. In essence the defendant's claim is that he was not properly informed of his status as a putative defendant, and thus he was lulled into a false sense of security. As noted above, the defendant had no right to a target warning during the investigation. Further, it can hardly be said that the agents' alleged acts of courtesy and equivocal expressions of reassurance to the defendant amount to the sort of "truly extreme" official misconduct which justifies the dismissal of an indictment. See United States v. Thibadeau, 671 F.2d 75, 78 (2d Cir. 1982); United States v. Broward, 594 F.2d 345, 351 (2d Cir.), cert. denied, 442 U.S. 941, 61 L. Ed. 2d 310, 99 S. Ct. 2882 (1979); cf. United States v. Hogan, 712 F.2d 757, 762 (2d Cir. 1983) (dismissing indictment because of government's "flagrant and unconscionable" misconduct before grand jury).
The defendant complains that the AUSA repeatedly asked him about a man named Sami Skaff and generally intimidated him before the grand jury. There is no indication in the record that the defendant was intimidated by the AUSA's examination. (See Tr. IV at 36-37 ("Could you please just answer the question."); Tr. IV at 67 ("Mr. Nakashian, come on. Isn't it a fact that . . . ?").) The AUSA asked the defendant about Mr. Skaff only four times during the almost eight hours of his testimony. (Tr. II at 30; Tr. III at 63; Tr. IV at 12-16, 36-37.) "An indictment will be dismissed because of the actions of the prosecution only if there is a clear showing of serious misconduct." United States v. Greater Syracuse Board of Realtors, Inc., 449 F. Supp. 887, 900 (N.D.N.Y. 1978); see also United States v. Sugar, 606 F. Supp. 1134, 1146 (S.D.N.Y. 1985). The defendant has failed to show that any part of the AUSA's presentation before the grand jury was intended "to inflame or otherwise improperly influence the jurors against" the defendant. United States v. DiGrazia, 213 F. Supp. 232, 235 (N.D. Ill. 1963).
Finally, defendant argues that it was improper for the government to invite him to appear before a second grand jury because that appearance was being used by the AUSA for discovery. That argument is refuted by United States v. Lovasco, 431 U.S. 783, 790-797, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977), in which the Court held that there is no constitutional requirement that a defendant be indicated promptly upon the government's obtaining sufficient evidence to do so, when its investigation of the entire criminal transaction is not complete. See also United States v. Snyder, 668 F.2d 686, 689-690 (2d Cir.), cert. denied, 458 U.S. 1111, 73 L. Ed. 2d 1373, 102 S. Ct. 3494 (1982); United States v. Gregory, 611 F. Supp. 1033, 1041 (S.D.N.Y. 1985).
The defendant has failed to show prosecutorial misconduct with respect to his indictment, and his motion to dismiss the indictment on that ground is denied.
B. Multiplicity of the Conspiracy Counts
The defendant moves for dismissal of the three conspiracy counts because of their asserted multiplicity. Count One of the indictment charges the defendant with conspiring to violate 21 U.S.C. §§ 812, 952(a) and 960(b)(2), which forbid the importation of narcotic drugs, in violation of the specific companion conspiracy statute, 21 U.S.C. § 963. Count Two charges the defendant with conspiring to violate 21 U.S.C. §§ 841(a)(1) and 841(b)(6), which forbid the manufacturer, distribution or dispensing, or the possession with intent to manufacture, distribute or dispense, of controlled substances, in violation of the specific companion conspiracy statute, 21 U.S.C. § 846. Count Three charges the defendant with conspiring to violate 18 U.S.C. § 1001, which ...