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United States v. Fish

December 18, 2006


The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court



The defendant, Shawna Fish, is charged in a one-count indictment with unlawfully, willfully and knowingly making false material declarations to the grand jury, in violation of 18 U.S.C. § 1623. Fish filed a motion seeking dismissal of the indictment and suppression of her May 3, 2005 grand jury testimony. The matter was referred to Magistrate Judge Schroeder pursuant to 28 U.S.C. § 636(b)(1). On May 2, 2006, Magistrate Judge Schroeder issued a report and recommendation, recommending that defendant's motion to dismiss be denied, but that her motion to suppress be granted.

Both parties filed objections to the report and recommendation. Fish objected to the Magistrate Judge's recommendation that her motion to dismiss the indictment be denied, and the government objected to the Magistrate Judge's recommendation that Fish's May 3rd grand jury testimony be suppressed. Upon review of the objections, this Court determined that an evidentiary hearing was required. A hearing was held on August 29 and 30, 2006. Following the hearing, the parties provided supplemental submissions and the Court heard oral argument on November 14, 2006. For the reasons stated, the Court hereby denies the motion to dismiss and to suppress in its entirety.


Pursuant to a grand jury investigation of potential crimes committed by an individual named David Cain, Jr. ("Cain"), numerous individuals were subpoenaed to testify before the grand jury, including an individual named Larry Kropp, the defendant's boyfriend. Kropp was subpoenaed to testify on December 7, 2004, but did not actually testify that day. Instead, he testified before the grand jury on January 4, 2005.

During Kropp's January 4, 2005 grand jury testimony, he was asked whether he had ever discussed the issue of his grand jury appearance with Cain, and Kropp answered "no". That question was posed to Kropp in part because the grand jury was investigating, inter alia, whether Cain had corruptly influenced or attempted to corruptly influence the testimony of grand jury witnesses.

Following Kropp's appearance, the Assistant United States Attorney ("AUSA") in charge of the investigation, Anthony Bruce, asked Niagara County Police Investigator Patrick Weidel to check the prison logs for the Niagara County Jail (where Cain was being detained) to determine whether Kropp had visited Cain. The prison logs indicated that both Kropp and Fish had visited Cain on December 7, 2004, the same date that Kropp was initially subpoenaed to testify.

Shortly thereafter, the grand jury subpoenaed Fish to testify on February 1, 2005. Fish appeared pursuant to the subpoena and was advised by AUSA Bruce as follows:

Ms. Fish, you're not a target or a subject in this Grand Jury's investigation but I will warn you based upon prior discussions with you, you came in this room and you gave an oath to tell the truth to the Grand Jury and you know I think from our prior discussions that should you make a false statement to this Grand Jury you could be prosecuted for perjury?

See Tr. of Feb. 1 2005 Grand Jury proceedings, at 2. Fish responded affirmatively. She was then asked whether she drove Kropp to his grand jury appearance in December 2005. She admitted that she had, and that on that same date, she and Kropp drove to the Niagara County Jail to meet with Cain for approximately one hour before Kropp's grand jury appearance.

The AUSA then asked Fish whether Cain and Kropp discussed the issue of Kropp's grand jury testimony. Fish testified that the subject of Kropp's grand jury testimony "never came up" and that she was sitting close enough to hear the entire conversation. Id.

Nothing further occurred with regard to this aspect of the investigation until April 21, 2005, when Investigator Weidel re-interviewed Kropp.*fn1 Kropp had been arrested on an unrelated driving while intoxicated charge and wanted to cooperate with authorities to reduce that charge. During the re-interview, Kropp admitted to Wiedel and ATF Special Agent Jason Bernhard (who was also present) that he had lied during his initial grand jury testimony and that he had in fact discussed the issue of his grand jury testimony with Cain. Kropp also admitted that Cain had told him not to tell the grand jury anything. See Tr. of April 2006 hearing, at 11.

Four days later, on April 25, 2005, Investigator Weidel received a telephone message from Fish. When Weidel returned her call, Fish requested an opportunity to meet with him. Tr. of April 2006 hearing, at 13. Fish did not mention what she wanted to discuss, but Weidel suspected that it related to Kropp's confession. Tr. of April 2006 hearing, at 18. Fish voluntarily appeared at Weidel's office later that morning. Special Agent Bernhard was also present for that meeting.

When Fish arrived, Weidel and Bernhard initiated the conversation*fn2 and explained that Kropp had admitted lying to the grand jury about his December 2004 conversation with Cain at the Niagara County Jail. They told her that they believed that she had also been untruthful and that if she wanted to correct that, she should do so. Tr. of April 2006 hearing, at 19. Fish readily admitted to lying to the grand jury. They advised her that she would have to appear before the grand jury to correct her testimony. She readily agreed to do that. Tr. of April 2006 hearing, at 21. There was no discussion or suggestion that Fish was potentially facing any perjury charges. Weidel testified that, since Fish had requested the meeting, had appeared voluntarily and was free to leave at any time, she was not given any Miranda warnings*fn3 at any time during that meeting.

Weidel contacted AUSA Bruce and advised him of Fish's perjury confession. AUSA Bruce immediately faxed over a grand jury subpoena commanding her to appear before the grand jury on May 3, 2005. Weidel served the subpoena on Fish before she left the meeting. Tr. of April 2006 hearing, at 23-27. Contrary to Department of Justice policy, the subpoena did not contain the "advice of rights" warning that ordinarily accompanies a grand jury subpoena issued to a target witness.*fn4

Tr. of April 2006 hearing, at 97.

On May 3, 2005, upon arriving to testify again before the grand jury, Fish was brought into a small interview room and was asked by Weidel to identify the specific portions of her February 1st grand jury testimony that were false. Tr. of April 2006 hearing, at 27-30. Weidel testified that Fish was "amicable" and voluntarily identified the false statements. Tr. of April 2006 hearing, at 29. AUSA Bruce entered the room and joined in the discussion. He advised Fish that she would likely be charged with perjury, at which point she became visibly "agitated." Tr. of April 2006 hearing, at 30, 33. According to AUSA Bruce:

I told her that I wanted to put her in the grand jury, that I wanted to get everything straightened out in front of the grand jury. I told her that she had problems that -- that the chances are that she would be charged. And I told her that we would take steps to get her in front of the magistrate so that she could get a lawyer to handle whatever was going to happen.

Tr. of April 2006 hearing, at 61. Fish never requested to speak with an attorney. Fish was never advised of her Miranda rights or told that she could have counsel appointed before testifying despite AUSA Bruce's awareness that she could not afford an attorney.*fn5 Tr. at 29, 35, 62-69.

After the pre-testimony interview ended, the defendant was brought before the grand jury whereupon the following exchange took place:

Q: And Ms. Fish, just for the record, I placed a transcript on the witness stand in front of you. It appears to be your transcript in an appearance that you made before this grand jury on February 1st of 2005?

A: Uh-huh, yes.

Q: And you had a chance to review that before coming in here today?

A: Yes.

Q: And the person who testified on February 1st is Shawna Fish that is sitting in the witness stand right now?

A: Yes.

Q: I want to go through some things with you. First of all, you're aware, are you not, that you have become a target ...

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