UNITED STATES v. MANDUJANO

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Argument of Frey

Chief Justice Warren E. Burger: We will hear arguments first this morning in number 74-754 United States against Mandujano.

Mr. Frey you may proceed when you are ready.

Mr. Frey: Mr. Chief Justice and may it please the Court.

This case is here on petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit which affirmed that judgment of the United States District Court suppressing for Use in evidence in respondent’s perjury prosecution, the testimony that he gave before a grand jury.

In March of 1973, Officer Cavalier, a San Antonio Policeman who was assigned to undercover narcotics duty heard that respondent was involved in heroine transactions.

And on the afternoon of March 29, he went to the bar at which respondent was employed and attempted to purchase heroine from respondent.

Respondent made several phone calls to try to locate some heroine apparently unsuccessfully and then suggested that the officer give him $650.00 and he would go out and attempt to procure an ounce of heroine.

About an hour later, respondent returned to the bar and said he had been unable to procure the heroine and returned the money.

But said that his regular connection would be by later in the day and if that the officer called back that evening, he would be able to get some heroine.

The officer did call that evening but respondent was out.

He was unable to reach him and he thereupon dropped the matter at that time.

During the month of April, a grand jury was being planned to investigate into narcotics traffic in the San Antonio area.

And in connection with the planning for the grand jury, Officer Cavalier was asked for any suggestions for witnesses who might be called before the grand jury.

Cavalier told the prosecutor about his aborted heroine transaction with the respondent.

Noted that he believed respondent had a regular source for heroine and that respondent was apparently aware of several other sources whom he had attempted to call.

Accordingly, the prosecutor determined that respondent might be able to provide the grand jury with valuable information about local narcotics traffic.

As the prosecutor later testified without contradiction at the hearing in the District Court, he had no intention whatsoever at that time of indicting respondent for any narcotics offenses, at least in part, because he did not realize that respondent had committed any offenses. Respondent was subpoenaed and appeared before the grand jury on May 2nd, 1973.

At the outset of his appearance there was a colloquy between the prosecutor who was conducting the grand jury and respondent.

During the course of which respondent was three times advised that he was not required to answer questions that would tend to incriminate him.

Page 6 of the appendix for example, the prosecutor said “You do not have to answer questions which would incriminate you.

All other questions you have to answer openly and truthfully.

And of course if you do not answer those truthfully, in other words if you lie about certain questions, you could possibly be charged with perjury.

Do you understand that?”

And respondent said, “He did understand.”

Then the subject of the lawyer came up and that matter was summarized by the prosecutor to respondent essentially as follows.

“If you would like to have a lawyer, this is again on page 6 of the appendix.

He cannot be inside this room.

He can only be outside.

You would be free to consult with him if you so chose.

Now if during the course of this investigation, the questions that we asked you if you feel you would like to have a lawyer outside to talk to, let me know.”

“Yes sir,” said the respondent.

“Is that clear?” And respondent nodded affirmatively.

Now, in order to lay a foundation for broader questions designed to illicit the names of drug traffickers in the San Antonio area with whom respondent may have had dealings and to gauge the truthfulness of subsequent responses to those questions.

The prosecutor asked a number of questions covering in part ground already known, including the incident with Officer Cavalier.

Respondent while admitting some use of heroine, denied knowing the names of any local heroin traffickers except someone whose first name he could supply.

Unknown Speaker: Excuse me, Mr. Frey you mentioned that he had been advised of his privilege on more than one occasion?

Mr. Frey: Yes, it is on bottom of page 5, top of page 6.

Unknown Speaker: I wish then to ask, I gather in Court of Appeals though at page 1190 the warnings that were given were not adequate in advisory although even though the appellees Fifth Amendment rights against self-incrimination?

Mr. Frey: Well, that of course is a matter of debate.

I can only for purposes of the statement I read to you what was said.

Unknown Speaker: Yes, I see but do we have an issue whether they were or were not adequate?

Mr. Frey: Well, it is a subsidiary issue if you get pass the question of whether any warning is required then there would be question as the adequacy of the warnings that were given.

Unknown Speaker: Mr. Frey, is there any question that he did not understand what was asked and what he answered?

Mr. Frey: Well, it is --

Justice Harry A. Blackmun: As I read the testimony, he sounds perfectly capable of speaking English and he did have a Tenth grade education.

Mr. Frey: Well, Mr. Justice Blackmun, when he was first told that you are required to answer all the questions, I ask you accept for the ones that you feel would tend to incriminate you, do you understand that?

He said, do I answer all the questions you ask?

The prosecutor said you have to answer all the questions except for those you think will incriminate you in the commission of a crime.

I think there is no basis for concluding that he did not understand, although it is a matter of speculation what exactly he thought that meant since he himself did not say it back to the prosecutor what he understood it to mean.

Justice Harry A. Blackmun: But I take it he –- Well, am I correct in my impression that he had no struggle with the English language despite his Spanish surname?

Mr. Frey: I think that the appendix does not reveal any substantial difficulty in understanding.

Although, of course under our argument, even if he did not understand that would not be critical to the voluntariness of the testimony that he gave.

In any event, respondent admitted some past Use of heroine but he denied having discussed with anyone during the past year, the procurement of heroine or having taken any money for the purpose of attempting to procure some.

Unknown Speaker: Did Cavalier had his name appear before this grand jury?

Mr. Frey: I believe he had not at that point.

Unknown Speaker: What did you say the purpose was of asking him questions, the answers to which prosecutor already knew?

Mr. Frey: Well, the prosecutor explained that.

That is at page 45 of the appendix.

He was asked why he did that and his answer at the bottom of page 45.

I do not believe we subpoenaed any witness but we did not have an existing body of knowledge about.

And then virtually every case, we would ask questions about the facts that we did have.

That was number one, a method to gauge the truthfulness of the person’s testimony and number two, was in the nature of a natural progression to result in answers to the ultimate question.

A simple example of that might be if a person is a heroine addict, he obviously has to have a source of supply and you would say are you an addict and his answer might be yes, the natural question to follow that would be who do you purchase heroine from?

It seems to me quite logical to establish a foundation for the grand jury’s crediting his testimony to cover the background and show the nature of his contacts and his dealings in the transaction.

And of course, we think it is clear that he would not have been indicted although one may say that that is specular have he cooperated with the grand jury because the grand jury was looking at major traffickers, the people who were his connections, his sources.

In any event, he denied both having talked about the procurement of heroine and having taken any money for the purpose of attempting to get heroine.

And the prosecutor warned him that according to the information the prosecutor had, he could tell the grand jury more than he was telling them.

Respondent denied having any further knowledge in this area.

Prosecutor then was preparing a perjury indictment against respondent and in the course of that he was unclear whether according to his testimony again whether it should be returned in one count or three since they were three false answers.

He discussed that with another attorney in the United States Attorney’s Office who pointed out to him that respondent’s actions might also constitute an attempt under the narcotics statute and the prosecutor decided at that time according to his testimony, to add the attempt charged to the indictment and that was done.

The District Court granted respondent’s motion to suppress his grand jury testimony.

He found that respondent had been a putative defendant at the time he was called to appear before the grand jury and that as such his questioning before the grand jury must be deemed custodial interrogation.

Therefore, the District Court concluded he was entitled to full Miranda Warnings.

Since he did not receive the full warnings the questioning was improper and his answer should be suppressed from any Use including as here from forming the basis of a perjury charge.

The Court of Appeals affirmed.

He adapted the finding of the District Court.

The respondent was a putative defendant that therefore his interrogation was custodial and he was entitled to full Miranda Warnings.

The opinion of the Court of Appeals reflects what we view as a rather disturbing approach toward the function of the grand jury and one that we think is quite inconsistent with the views expressed on numerous occasions by this court.

While the requirement imposed that simply the giving of Miranda Warnings, the opinion reflects a basic hostility to the practice of calling as a grand jury witness persons who according to information on the government’s possession have some involvement in the activities under investigation.

For instance, if you look at the appendix at page 15(a), the Court says this is toward the top to the certiorari petition that is correct, I am sorry.

In order to deter the prosecuting officers from bringing a putative or virtual defendant before the grand jury for the purpose of obtaining incriminating and perjurious testimony, the accused must be adequately apprised of his rights for all of his testimony incriminating and perjurious will be suppressed and at page 19(a) the entire proceedings which led up to Mandujano’s indictment for perjury where as we have noted repeatedly beyond the pale of permissible prosecutorial conduct.

We conclude that the entire proceeding was a violation of Mandujano’s due process rights under the Fifth Amendment.

The same theme is echoed in United States against Wang which is the Ninth Circuit decision in which there is a pending certiorari petition.

Now, ostensibly the Court of Appeals is talking about cases in which a witness is called for the purpose of getting him to incriminate himself or perjury himself but the application of its strong language, the facts of this case reflect how far its holding really goes in practical application.

Now, we submit that the approach of the Court of Appeals strikes at the heart of the effective functioning of the investigator grand jury.

That body is in that capacity attempting to ferried out secret crime.

How can they do this without obtaining the cooperation of those persons who have at least some peripheral involvement in the criminal activity under investigation?

In the San Francisco investigation of Police Corruption, a person such as Rose Wang who was apparently involved in gambling activities and thought to have made payoffs to police, is the very kind of person whose cooperation is absolutely essential to the grand jury.

Here a person like Mandujano who is tied into major heroin dealings in the San Antonio areas, a person whose cooperation is vital to the success of the grand jury’s undertaking.

We should be encouraging rather than discouraging the voluntary cooperation of witnesses such as these.

We advance in this case what are in effect five independent grounds for reversal of the judgment of the Court of Appeals.

The resolution of anyone of these in our favor and we believe we are clearly correct on all five necessitates a reversal.

Unknown Speaker: On what grounds?

Mr. Frey: These grounds briefly summarize as follows.

First we say, the constitution is not violated by eliciting voluntary grand jury testimony of any person, ordinary witness or putative defendant without warnings of any kind.

Second, we say if some kind of warning is required, respondent received an adequate warning in this case.

Third we say, respondent was not in fact a putative defendant and the Court of Appeals and the District Court applied an erroneous standard which would be very damaging, if the putative defendant notion were allowed to enter the law of this area.

Fourth, we say, even if the questioning was improper, respondent could not answer with perjuriously and it therefore has not remedy on a perjury prosecution.

And fifth, a related contention, this is in any event not inappropriate occasion for application of an exclusionary rule.

There is no demonstrated basis for believing that if the Court announces a standard for prosecutors in this area, those standards would not be followed in virtually every case.

Because these points cover a great deal of ground and because very little time is available for me to cover them all, I invite the Court to feel free to interrupt at anytime with questions about any aspect of the case that may be of particular interest or concern.

If there are not any questions at this point, I will begin with the –-

Unknown Speaker: Three, I was not attending to you.

Mr. Frey: The other two points relate to the perjury aspect of the case in our contention that even if the testimony might be suppressible for Use in a substantive prosecution that is perjurious nature means that he is not entitled to any remedy under the Knox case and Bryson and so on.

Unknown Speaker: Yes, that is number four.

Mr. Frey: And number five, is that because any rule that the Court announces would likely be followed by prosecutors because we do not have the danger of persistent prevalent abuses in this area.

There is no occasion to apply an exclusionary rule in this instance where what was done if wrong had never yet been declared wrong by any appellate Court prior to the interrogation of respondent before the grand jury.

Unknown Speaker: Mr. Frey, as long as you are inviting questions let me ask you one.

In your brief on page 19, you say it is common practice for government attorneys to consider such warnings to grand jury witnesses who are suspected of involvement in the criminal activity.

If this Court would require then, a simple warning, I take it would not disrupt governmental practice today?

Mr. Frey: No, I do not believe it would disrupt it and my argument here is that this is Supreme Court and your duty is to apply the constitution and that is not clear to me as to the extent of your power to require such a warning under the Fifth Amendment privilege.

Congress could certainly do it and I do not think if it wore done that it would seriously disrupt grand jury functioning.

Unknown Speaker: But the government does it not because it feels compelled by any judicial decision or constitutional rule but just as a matter of committee or --

Mr. Frey: Either that or out of an abundance of caution for fear that if they failed to do it, there might be some adverse consequences such as here occurred.

Unknown Speaker: Is there any rule as to when such a warning is omitted?

Mr. Frey: I am not aware of.

I do not believe there is any consistent practice and it is varies from district to district depending on the United States Attorney’s office involve, some give target warnings, some with tele-target that he is a target of the grand jury.

Of course that kind of thing would not do any good in the case like this because we were not aware that until the Court of District Court and Court of Appeals told us that Mr. Mandujano was a target or a putative --.

Unknown Speaker: The warning of which you speak is not a Miranda Warning?

Mr. Frey: Well, that is a point that I would come to.

We think a Miranda Warning would be incorrect?

Unknown Speaker: My question is a factual one.

The warning of which you speak that is often given or sometimes given as a warning that he may refuse to answer questions if he thinks they may incriminate?

Mr. Frey: Well, I think that is normally the case.

But in the Gregory-Washington case in which there is a pending petition before the Court.

Apparently full Miranda Warnings were given.

The Court still found unsatisfactory because he was not told --

Unknown Speaker: Including the right to have a lawyer present at his side during the interrogation because that is contrary?

Mr. Frey: Well, but the Miranda does not say has a right to have a lawyer at his side.

The Miranda Warning does not say he has a right to have a lawyer at his side during the interrogation.

It simply says you have a right to consult with the lawyer before answering questions.

Chief Justice Warren E. Burger: A combination of Escobedo and Miranda would mean that if he had a lawyer in a Miranda situation, does that not imply that it is a right to have him by his side during the interrogation?

Mr. Frey: Well --

Chief Justice Warren E. Burger: It would not fit to any grand jury as Justice Stewart suggested?

Mr. Frey: Well, I believe Mr. Chief Justice that the practice is not to have attorneys in the grand jury.

I might think that is a fairly uniform practice.

The practice is when someone has an attorney to allow him outside and to allow them to do consult him.

Chief Justice Warren E. Burger: Absolutely uniform practice?

Mr. Frey: As far as I know although there has been some law review articles that have suggested people should have their attorneys in with them in the grand jury.

There are problems of grand jury secrecy and there are problems under the rules of criminal procedure about allowing them.

Now, I think the main constitutional point in this case is that the proposition that any grand jury witness whether or not he is a putative defendant is not entitled to any advisive rights under the constitution and he is certainly not entitled to full Miranda Warnings which would we say entail a significant misstatement of his rights.

The opinion of the Court of Appeals is hazy as to whether its contrary conclusion is rooted under the self-incrimination provision or the due process clause of the Fifth Amendment.

Or because of the substantial congruity of its approach with Miranda, it seems most useful here to treat it as resting principally on self-incrimination as far as the need for warnings themselves is concerned.

In determining whether what transpired in this case, in fringe respondent’s self–incrimination rights, it seems to me useful to begin with something the Court of Appeals overlooked, the language of the constitutional provision itself.

No person shall be compelled in any criminal case to be a witness against themselves.

We were accused by one of the amicus briefs of ignoring Johnson against Zerbst Standard of knowing in deliberate waiver and addressing ourselves to compulsion only.

It is they however not we who have put the Court before the constitutional horse.

For if there is no compulsion.

There can be no violation of the privilege.

This Court has spoken on several occasions a background jury testimony and compulsion.

For instance in the Monia case in 317 U.S., it said a grand jury witness must claim the privilege or he will not be considered to what has been compelled within the meaning of the amendment.

And there are a number of other cases to that effect.

We submit that this proposition does not alter simply because the witness is a putative defendant.

Indeed in the Dionisio case, this Court recognized that the obligations to appear before the grand jury which is the one element of compulsion to which respondent was subject is no different for a purpose who may be himself be the subject of the grand jury’s inquiry than for any other witness.

The Court of Appeals analogy to Miranda is an error.

You cannot equate incommunicado custodial police interrogation with grand jury question.

I hardly need to rehearse the litany of concerns expressed in Miranda that are simply inapplicable to grand jury questioning before 23 fellow citizens who whatever else they may be are surely not so compliant to the prosecutors wishes that they would countenance the kinds of interrogative practices cataloged in Miranda as means of overcoming the arrested individual’s will and extracting a statement from them.

Moreover, because you have these citizen witnesses to what transpired and because in many cases including this you have a transcript of proceedings, you do not have the problem of reconstructing what happened, the problem of being unable to establish the kinds of improper techniques that may have been used.

Moreover, the putative defendant notion is not useful in making the critical constitutional inquiry into compulsion.

The presence or absence of impermissible compulsion is a determination that turns on the state of mind of the individual upon the question whether in the circumstances; it is likely that his will was overborne.

The grand jury questioning is to be equated with incommunicado police interrogation as inherently coercive.

It is difficult to see why it is more coercive of putative defendants than of other witnesses.

Indeed the putative defendant concept really has no application in Miranda either certainly if you were arrested and taken down to the back room of the station house even if the police had no reason whatsoever for doing it or simple harassment and were not planning to charge us.

We would be entitled to Miranda Warnings.

Now, let suppose for a minute that some kind of warning is deemed appropriate.

Should it be full Miranda Warnings?

We think certainly not.

Our most substantial objection to the Miranda Warnings in the area where we feel it most significantly misstates what the witnesses rights are is the absolute right to silence which is suggested in Miranda.

Now, analytically it is not clear whether right to silence comes from.

It is clear however that the police have no power to compel anyone to speak.

They are not the people in our legal system who are vested with that power and therefore in a correlative sense, the arrested person has an absolute right to speak since there is no lawful or an absolute right to remain silent.

Excuse me, since there is no lawful power to compel them to speak.

Unknown Speaker: Suppose in (Inaudible) terms which you know kind of out of date, there would be a privilege of silence rather than a right, would it not?

Mr. Frey: Well, I suppose --

Unknown Speaker: A privilege of silence which would correlatively be no right on the part of the interrogating police officer –-

Mr. Frey: I think that is right.

But I think the Court’s concern in Miranda in stating that there was a right to silence was a more practical concern which was to tell the arrested person in clear and unequivocal terms that he could understand --

Unknown Speaker: He can understand questions.

Mr. Frey: -- that he did not have to answer.

Unknown Speaker: He need not answer the questions.

Mr. Frey: Now that is not the case with the grand jury and Branzburg, Calandra, and many cases of this Court clearly indicate that you do have an obligation to answer questions before a grand jury.

It is the grand jury which is the instrument in our legal system for securing information regarding the commission of crimes.

Now, of course you have your privilege.

We are not suggesting that you do not have it.

We are not taking it away from anyone in this case.

It has not been taken away from respondent.

Therefore if anything is to be required.

It would be in explanation and here was given I think in clear terms that you need not answer questions where the answers may tend to incriminate you.

Unknown Speaker: Would you have the same position if with respect to a person who had been arrested and was in jail or out on bail and he was called before the grand jury?

Mr. Frey: Well, that poses an interesting question and there are some.

I think I would have the same position, yes.

I mean let us take an example, supposed that a person who has been arrested for some offense also happened to be in a bank when a robbery took place having nothing to do with his offense.

Such a person has no right of silence before the grand jury --

Unknown Speaker: In that case --

Mr. Frey: Well --

Unknown Speaker: Say you just wanted to say you arrested him for bank robbery and you had to get him indicted but you did not want to indict the wrong fellow either so you called them before the grand jury just to ask him whether he might talk to you.

You want to be fair to him and you found --

Mr. Frey: Well I think it would not be as irrational to make a distinction in that area as it is to make the distinction in the Court of Appeals made on the basis of a putative defendant.

After all, Kirby for instance recognizes that the right to counsel as attached for an actual defendant.

But I think our position would be that he is not compelled and he does not have to be given the Miranda Warnings because the Miranda Warnings were designed to neutralize a particular concern in a particular environment.

Unknown Speaker: What do you think the explanation for the rule and at the trial that you may not call the defendant to the stand at all?

Mr. Frey: Well I think there are several explanations.

One, that seems to me most obvious is that the prosecution as an adversary to the defense could have not purpose in calling the defendant to the stand other than to incriminate him.

So that its purpose is inherently incriminatory when it calls them.

But beyond that there is the problem that the jury sitting there is the finder of fact in the criminal trial, the one that would pass on guilt or innocence.

Unknown Speaker: But Mr. Frey suppose, you have someone actually the subject of a former criminal compliant.

A formal criminal complaint and he has brought before the grand jury and questions are put to him about the specific charges made in that not complaint without giving him any advance warning of self-incrimination or otherwise.

Mr. Frey: Well such an individual would have an attorney at that point.

Unknown Speaker: At the grand jury?

Mr. Frey: Well, he would have had an attorney appointed for him.

People are subpoenaed before the grand jury.

They are not pulled out of their houses in the middle of the night or brought unexpectedly to the grand jury so I would not be very concerned in that context either.

Unknown Speaker: Because you mean as a practical matter having an attorney, he would have been advised if he has a privilege and no one else would advise and he would assert it?

Is that it?

Mr. Frey: He might assert it or he might not assert it.

That of course would depend on the individual case.

But actually my argument does not depend on that.

The prohibition is against compelling him to speak.

Now, unless some other provision and the self-incrimination provision comes into play, perhaps the due process provision and that gets into an area where it is harder to engage in a kind of rigorous analysis that you can with self-incrimination.

I do not see any self-incrimination objection to calling him before the grand jury and asking him in a polite and straight forward manner.

Unknown Speaker: Without giving him any warning?

Mr. Frey: Without giving him any warning.

Unknown Speaker: Even though it is about the very charge.

He is questioned about the very charge which is already --

Mr. Frey: As far as the self-incrimination provision is concerned that he is only right under the constitution is not to be compelled to incriminate himself if he is not being compelled then our position would be as a itself matter, self-incrimination analysis, that that questioning is permissible.

Chief Justice Warren E. Burger: Is it possible that in this situation that Justice Brennan has hypothesized to you that they might be inquiring of him about other potential code assignments.

Others who were involved in the --

Mr. Frey: Well there might be and that is very likely in so far as the questioning concerns the crime and others that he would have available his privilege but I do not see that our system should be offended by the idea that if that man comes in and is asked in a perfectly straight forward way questions that would yield information about his or others involvement in criminal activity.

I do not think our system should recoil in any way that practice or using the results of such questioning.

Unknown Speaker: Are you suggesting there is no compulsion if he is someone to appear before the grand jury?

Mr. Frey: He is compelled to appear.

But not critical compulsion for purposes of this analysis would be the compulsion to answer and he is not compelled --

Justice Mr. Justice Marshall : Tell me, if he does not answer he is going to be held in contempt?

Mr. Frey: Well, now that would pose a different problem.

If they said to him, if you do not answer this question about where you were on the evening of June 10, you are going to be held in contempt.

Then arguably his answer would be compelled in those circumstances.

But if they say nothing to him except where were you on the evening of June 10?

Justice Mr. Justice Marshall : But for the average citizen that is called into a grand jury, he may feel a compulsion to answer?

Mr. Frey: Well, he may feel an inner compulsion to answer.

Indeed, the average person who if the prosecutor called them on the telephone, said I would like to know --

Justice Mr. Justice Marshall : But that is not the compulsion you are talking about?

Mr. Frey: No, that is not the constitutional compulsion.

I would like to save if I have a minute or two for balance of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Peters.

Argument of Michael Allen Peters

Mr. Michael Allen Peters: Mr. Chief Justice and members of the Supreme Court.

I would just like to first of all direct the Court’s attention to the question raised by the Fifth Amendment due process and that is the compulsion whether or not in this case, Roy Mandujano can be a witness against himself.

In this case, I feel that he was.

The question that under rides the whole issue before the Court is whether or not a grand jury is inherently coercive.

And if we look at the facts of this case, we will find that Roy Mandujano was subpoenaed compelled against his will to appear before the grand jury to ask to answer specific questions about that which the government already had enough information on which the basis to base an indictment.

Number two, when Mr. Mandujano appeared before the grand jury, the special prosecutor informed Mr. Mandujano that this was a special grand jury and the attention that the grand jury was covering was limited to narcotics traffic, IRS evasions, and violations of the gun law.

And if the Court will note the appendix, before they even approach the subject matter of the gun or IRS violations, they have pretty well ran Mr. Mandujano through the gamut of questionings through some 15 pages prior to even going into the information upon which they already had enough evidence to indict Mr. Mandujano.

Mr. Mandujano indeed when he appeared clearly, the Escobedo Rule which is incorporated in the Miranda, the whole focus of the investigation was upon Mr. Mandujano and the warnings that are recorded in the appendix clearly are insufficient in any way shape or form as Miranda applies and I would even urge that in addition to the regular Miranda Warnings that Mr. Mandujano should have been informed that he was indeed himself the focus of a specific investigation and on which they already have sufficient evidence to indict him.

Justice William H. Rehnquist: What provision of the constitution do you think requires that?

Mr. Michael Allen Peters: Well, Mr. Justice Rehnquist, I believe that the Fifth Amendment against the compulsion, against testifying against oneself incorporates that aspect --

Justice William H. Rehnquist: What will you do with our Monia case where we say that if you want to claim the Fifth Amendment, you have to do it before the grand jury that if you voluntarily answer, it is not compelled?

Mr. Michael Allen Peters: Well, I would say that Monia applies to the normal grand jury witness whereas here we have a special creature, the period of defendant concept.

Justice William H. Rehnquist: Why is that different for purposes of the Fifth Amendment?

Mr. Michael Allen Peters: Well, here a normal ordinary grand jury witness when he subpoenaed to appear, and I would say that even a defendant who is subpoenaed to appear is not entitled to any kind of pre-warnings until the special prosecutor or the grand jury specifically go into the actual evidence which they have on that individual.

And at that time, in this case, Mr. Mandujano was removed from the ordinary grand jury witness role and placed in a special category and Monia directs itself to the ordinary grand jury witness and in this case, Mr. Mandujano as the appendix point out and I attempted to clarify in my brief.

He did not know exactly what his rights were.

He did not understand that he had an obvious language problem.

Justice William H. Rehnquist: Is there any indication in Monia that the witness there was warned or that he had a particularly clear understanding.

Mr. Michael Allen Peters: I really do not recall the facts of Monia that clearly Justice Rehnquist.

Unknown Speaker: But you just made a statement that he had an obvious language problem.

Can you explain that one to me?

How does the appendix show that?

He had been in trouble with the law, a number of times.

He had a tenth grade education as in understand it?

Mr. Michael Allen Peters: Yes Your Honor.

Justice Harry A. Blackmun: And that means through the second year or end of high school, he should be able to read and write.

Go ahead, you tell me.

Mr. Michael Allen Peters: Well, based on Mr. Mandujano’s -- the school systems these days, Justice Blackmun are lack a lot to be desired.

However, I think it is clear from somebody excerpts which I have quoted on page 18 of respondent’s brief, in addition to which the warnings in his apparent lack of understanding indicate that he obviously had a problem with understanding the spoken and I would assume the written English language from page 18 through page 20 of my brief.

I point out that --

Unknown Speaker: Well, he certainly speaks very well.

He does not speak faultingly.

He does not misuse words, does he?

Mr. Michael Allen Peters: Well, it is not the misuse of the word.

I think it is the apparent lack of understanding as I have attempted to point out to this Court.

Chief Justice Warren E. Burger: If you look at the middle of appendix 15 where they were cross-examining or examining him about whether he bought heroine and he answered, “No Sir, I used to shoplift all the time.”

Having denied that he bought or sold heroine ever, that certainly suggests a pretty good understanding of what was going on does it not?

Mr. Michael Allen Peters: Well let us say that the --

Chief Justice Warren E. Burger: Just below mid-page.

“No Sir, I used to shoplift all the time.”

And then, when was the last time you sold heroin?

“I have not sold any since I got caught.”

Are we talking about the same man now?

Mr. Michael Allen Peters: Indeed, we are Mr. Chief Justice but I would point out that here he may have a partial understanding of some of the questions and some of the words association but indeed, when he is asked a simple thing like what is the address that he is living.

He said 2217 and the special Prosecutor retorted 2270 and my client answered yes.

And the whole testimony even though there are some that obviously that he had to understand some use of the English language but I would say his total awareness and understanding meets a tenth grade educated Latin American and sure his association I would say with the use of the English language is probably very limited and that his understanding of some words indeed are apparent from the --

Justice Mr. Justice Marshall : Have you ever been in San Antonio?

Mr. Michael Allen Peters: I have been there on a couple occasions Justice.

Justice Mr. Justice Marshall : They have a very good school system.

It is one of the best in Texas.

Mr. Michael Allen Peters: Well, I would just make a presumption that --

Justice Mr. Justice Marshall : And the presumption is that if a person with a tenth grade education understands English.

Now, how you went up to that presumption?

By taking a word here and a word there?

How are you going to get over it?

Mr. Michael Allen Peters: Well Mr. Justice Marshall, I would say that my limited experience of understanding the school system, my wife being a school teacher herself.

Sometimes they are put in a position where they pass an individual just to get them out of their personal classroom and just advancing him even if he does not grasp or have an understanding of such as English language.

Justice Mr. Justice Marshall : Well are you a better judge of a person’s reading ability than the school officials?

Mr. Michael Allen Peters: Possibly not.

Justice Mr. Justice Marshall : Possibly?

Yes or No?

Mr. Michael Allen Peters: No, Justice Marshall.

Justice Mr. Justice Marshall : Well, they say he has got (Inaudibe) by saying that in your opinion he has not got a tenth grade education?

Mr. Michael Allen Peters: Yes, Justice Marshall.

Now, when Mr. Mandujano was compelled to appear before the grand jury, based upon all the previous, the Special Prosecutor put Mandujano in a Murphy v. Waterfront trilemma of either invoking his Fifth Amendment right which he clearly was not informed of and listed from the appendix, it is clear that he did not understand any of the warnings.

Unknown Speaker: Mr. Peters --

Mr. Michael Allen Peters: Yes, Justice.

Unknown Speaker: Would your position be the same if the respondent had been a Ph.D.?

Mr. Michael Allen Peters: I would say, yes my position would be the same in that here they as in the instance of the Ph.D.

If they asked the Ph.D. specific questions about a specific involvement in a crime whether or not a Miranda addresses itself is. Whether or not you have the Ph.D. or tenth grade education before proceeding on with the questioning, they must administer Warnings, Miranda Warnings and must understand and knowingly and understandably waive those warnings if he so desires.

Justice Lewis F. Powell: So, your argument about the tenth grade education and the possible limitations of respondent’s capacity to understand English are peripheral to your central position here?

Mr. Michael Allen Peters: I would say Mr. Justice Powell that that is true but the overall argument and the final result of the Fifth Circuit’s decision show and intend to show that his whole atmosphere before the grand jury on Mr. Mandujano was overwhelming and his tenth grade education was just one aspect of his whole presence and understanding.

Justice Lewis F. Powell: Would your position require us to examine the facts in each case to determine whether or not the atmosphere was coercive?

Mr. Michael Allen Peters: Mr. Justice Powell, I would say that it would not be on a basis of a case to case examination of the individual facts.

I would submit that can make it a requirement under the Fifth Amendment that a prosecutor who intends to ask specific questions about specific crime in which they could have easily have been diagnosed for Mandujano as well as they did making him appear under compulsion of the subpoena and answer those questions, I would say that under those circumstances in which they are going to ask any witness questions of the crime itself that at that point in time he no longer is an ordinary grand jury witness and must be afforded the Fifth Amendment Right.

Justice Byron R. White: Does only the perjury count here?

I mean this case concerns only the suppression with respect to the perjury count.

Mr. Michael Allen Peters: Mr. Justice White I am not certain I understand your question.

Unknown Speaker: Well, the case that he was indicted on two counts, was he?

Mr. Michael Allen Peters: Yes was one for the count of attempt to distribution of one ounce of heroin.

Unknown Speaker: Now he has been convicted on that, has he not?

Mr. Michael Allen Peters: Yes, he has Your Honor.

Unknown Speaker: Without the benefit of – Without this evidence.

Mr. Michael Allen Peters: That is correct Your Honor.

Justice Byron R. White: And so if we were to decide that even if Miranda Warnings should have been given and were not nevertheless, his answers were admissible in a perjury prosecution.

We do not need to deal with these other questions?

Mr. Michael Allen Peters: I would say that --

Justice Byron R. White: Is that right or not?

Mr. Michael Allen Peters: Mr. Justice White I would say no.

That each one of these elements, the coerciveness of appearing before the grand jury, the fact that Mr. Mandujano was not an ordinary grand jury witness --

Justice Byron R. White: That is what Court of Appeals said normally answers -- even if you should have not been asked a question; you are not supposed to lie in the answer in many ways.

That is the usual rule.

Mr. Michael Allen Peters: Yes, Mr. Justice White.

Justice Byron R. White: And the Court of Appeals says we will make a slight in role on that rule in this case.

Now let us suppose we reverse them on that slight in role and say there should not be a slight in role?

Mr. Michael Allen Peters: I apparently, I did not understand you question Mr. Justice White.

I think that yes --

Justice Byron R. White: That would finish the case, would it not?

That would finish this case, would it not?

If you talk about whether warnings or anything else would we?

Mr. Michael Allen Peters: That is correct.

But the end result of the Fifth Circuit’s holding Mr. Justice White is based upon the prior concepts of having this individual who is in the class of a quasi-defendant and --

Unknown Speaker: No doubt about that but --

At least to the extending perjury of itself.

That is all immaterial.

Mr. Michael Allen Peters: That is correct.

Justice William J. Brennan: We would have said that.

Then we would reverse and we would not have to reach any of the rest of the questions?

Mr. Michael Allen Peters: Yes Mr. Justice Brennan.

But as the Fifth Circuit pointed out, the totality of all the circumstances showed that Mr. Mandujano was definitely, he was just so totally unfair, the whole procedure that Mr. Mandujano was involved in that the Fifth Circuit as well as the District Court felt that the Fifth Amendment should apply and there should be this one exception to that rule and if this Court and I feel that this Court should consider affirming the Lower Court's decision that the incidence in putting individuals in a position of Mr. Mandujano that there should be some sort of restraint upon the government and their use and in this case I feel was a blatant misuse of a proceeding, just another device in which they can put an individual in an unfair and certainly a very uncertain position.

Justice William H. Rehnquist: But even if you are right about the warnings that it is unfair the government to call someone whom as you described in the Fifth Circuit describes a putative defendant, that does not give the man called a license to perjure himself, does it?

Mr. Michael Allen Peters: Well, that would apply in all other cases except before the case before the bar and as the Lower Courts have held that there must be some exception consider the analogy of Miranda if there is a fair to give Miranda Warnings at the time for risk, statements would be suppressed and we are asking for the same remedy to compensate and counter this totally unfair proceeding in which my client was participated in.

Justice William H. Rehnquist: Well, but suppose you suppress statements where he might have claimed the Fifth Amendment but did not, because you say he did not get a warning.

That still does not go to the questions of whether it was not a question if he is a refusing a claim of the Fifth Amendment, it is the question is if he is lying.

Mr. Michael Allen Peters: Well, he was put in a position where in the government rarely concedes that in a companion case arising out of the Western District of Texas in Rangel(ph), they felt that indeed warnings were to be given and they did not petition this Court to consider that question because they felt that Mr. Rangel because of the implications of the so called warning given that he was compelled and given the Murphy Waterfront --

Justice William H. Rehnquist: Was he convicted of perjury too?

Mr. Michael Allen Peters: They did proceed in neither the substantive nor the perjury count in Mr. Rangel’s case.

I would say further that addressing the Court’s attention to committing a perjury with impunity concept that a grand jury as in this case cannot use the fruits of only illegalities and as the Fifth Circuit says the bringing and asking of these questions upon which they already knew the answers to just asked for too much on the part of credible people to believe and I would point out that the grand jury testimony indicates that throughout the first fifteen questions, they had sufficient evidence and they had sufficient background knowledge to gauge the truthfulness of Mr. Mandujano’s answers.

But they knew what they were bringing therefore, they had sufficient evidence to indict them and as I pointed out earlier that it does not occur until page 15 where they even begin to and this is after they have exhausted all the normal questions that a prosecutor normally questions any grand jury when it is to establish whether or not he is telling the truth and the special prosecutor himself indicated in the grand jury or in the appendix that the reason he asks these questions was to gauge the truthfulness and that in itself shows you that they had some sort of it is not entrapment per se but is certainly smacks of it as the Fifth Circuit indicated in the District Court.

I would say further that since the focus of the investigation was on Mr. Mandujano and as Miranda should apply under the Due Process Clause of the Fifth Amendment that Mr. Mandujano certainly did not knowingly and understandingly waive any of his rights and – -

Justice Harry A. Blackmun: Mr. Peters let me interrupt you.

I just want to be sure as a matter of terminology, you make constant references to the Miranda Warnings and that Miranda should apply.

Do I understand you think the four aspects of the Miranda Rule should apply here or just something comparable to it?

Laundered so to speak at this situation?

Mr. Michael Allen Peters: Oh Mr. Justice Blackmun I think that indeed the Miranda Warnings as they have been established by this Court should apply but I think also that --

Unknown Speaker: Including the right to counsel?

Mr. Michael Allen Peters: Including right to counsel.

Unknown Speaker: Where would he be in the grand jury room?

Mr. Michael Allen Peters: I would say that if he were not in the grand jury room and I know this is not the practice in the Federal Courts but if you were not in the grand jury room, the grand jury itself might think that every departure confer with this counsel with obviously indicate --

Unknown Speaker: Who on that approach appoints as in indigent, if the witness is an indigent and has no counsel?

He cannot afford to hire one.

Who appoints counsel for him?

Mr. Michael Allen Peters: It would be the presiding judge of the grand jury.

Unknown Speaker: You mention about the federal grand jury, under Texas State procedure, is the counsel allowed in the grand jury room?

Mr. Michael Allen Peters: No Your Honor but I would point out that in reading the post this morning that Illinois has adapted a state proceeding wherein they have incorporated the basis of the respondent’s position in this case including having the presence of counsel seated in the grand jury room with his client during the entire proceeding and they have incorporated this under Illinois Law.

Chief Justice Warren E. Burger: Of course the state may do anything at once within federal constitutional limits or its own State Constitution?

Mr. Michael Allen Peters: Yes, Mr. Chief Justice.

And I would say that Mr. Mandujano as a putative defendant who is not given his Miranda Warnings which he is entitled to that in this limited case, due to the fundamental unfairness of the entire proceedings can commit perjury with impunity and this Court is not sanctioning perjury and I am not asking it to sanction perjury.

But I am asking this Court to affirm the Court’s opinions below based upon the limited instance where the proceeding is so totally unfair and the focus of the whole investigation is upon that individual that they have more than qualified whether or not he was indeed telling the truth or not but yet go beyond that and ask him specific questions about the crime itself in which they knew they had complete evidence sufficient enough to indict him.

I would just point out to the Court that if they had not gone beyond the specific aspect of going into the crime itself then Mr. Mandujano if committed perjury as to the general information then I would say that he would then be in the status of the ordinary grand jury witness who is not entitled to a specific Miranda Warnings --

Justice William H. Rehnquist: But when they asked him about the crime itself, he may not only claim the Fifth Amendment but he may perjure himself according to your submission?

Mr. Michael Allen Peters: Yes, Mr. Justice Rehnquist that is my position.

Unknown Speaker: And with the impunity.

Mr. Michael Allen Peters: And with impunity in this limited instance, it is a counter measure of fundamentally unfair proceeding and I would ask this Court to adapt the Betts versus Brady decision in which the Fifth Circuit relies on and that is totally fundamentally unfair that the individual in this limited instance, the statements must be suppressed and I would ask this Court to suppress and affirm the Court decisions below.

Thank You.

Chief Justice Warren E. Burger: Thank you gentlemen.

Your time has expired Mr. Frey.