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United States v. Digiovanni

June 10, 1968


Schnackenberg and Hastings, Circuit Judges, and Knoch, Senior Circuit Judge.

Author: Hastings

HASTINGS, Circuit Judge.

Carl DiGiovanni appeals from a judgment of conviction entered May 2, 1967 following a jury trial. The single-count indictment charged that appellant, duly sworn as a witness, willfully and falsely "testified in substance [before a federal grand jury on March 29, 1966] that he did not give a statement to a court reporter and an investigator of Allstate Insurance Company on February 21, 1963, or any other time concerning his automobile accident on January 16, 1963, in Chicago, Illinois." Appellant was committed to the custody of the Attorney General for one year. He is currently at liberty on bond.

Most of the facts are undisputed. On January 16, 1963, appellant was involved in a traffic accident in Chicago with an insured of Allstate Insurance Company. Shortly thereafter, Allstate and its insured received letters from a firm of attorneys purporting to represent appellant in a claim for property damage and personal injuries sustained in the accident. In late February, Allstate received a form, entitled "Statement of Property Damage," signed by appellant. An answer on the form indicated that appellant had not been injured in the accident.

There is a dispute concerning the events of February 20 and 21, 1963. An investigator for Allstate testified that he called appellant on February 20 and appellant told him he was not injured in the accident. The investigator further testified that on February 21 he, with a court reporter, visited appellant at the barber shop where the latter was employed. He questioned appellant while the latter was cutting hair, and the court reporter recorded the conversation. The substance of the conversation, as related by the investigator and shown by the transcript of the s, was that appellant suffered no injuries in the accident, that he only wished to be compensated for the property damage to his car, and that his attorneys wanted to make a "big deal" out of it. The investigator's testimony was corroborated in part.

Appellant testified at trial that on February 21, 1963 two men who did not identify themselves and were unknown to him came into the barber shop where he worked. His version of the conversation with the men was that they asked him whether he was injured and that he told them he was working and would talk to them if they came back later.

Appellant was subpoenaed by the March, 1966 federal grand jury for the Northern District of Illinois, which was investigating mail fraud by claimants, doctors and lawyers in presenting automobile insurance claims. Appellant appeared on March 29, 1966. He was accompanied by his attorney, who waited outside the jury room. He was questioned concerning his traffic accident, his injuries and his consultations with a doctor and his lawyers. He then denied that he gave a statement to the Allstate investigator. The indictment charging him with perjury was returned June 2, 1966.

Appellant urges that the trial court erred in denying his motion to dismiss the indictment. The ground for the motion was that appellant was called before the grand jury as a "putative defendant" but was not effectively warned of his right to remain silent. This, he says, required the striking of the alleged perjurous statements on which the indictment rested.

We reject this contention. It is well established that the Government's failure to give Miranda*fn1 -type warnings to a grand jury witness, even one as to whom the proceedings have become accusatory, does not bar a perjury prosecution for false testimony before the grand jury. See Cargill v. United States, 10 Cir., 381 F.2d 849 (1967), cert. denied, 389 U.S. 1041, 88 S. Ct. 781, 19 L. Ed. 2d 831 (1968); United States v. DiMichele, 3 Cir., 375 F.2d 959, cert. denied, 389 U.S. 838, 88 S. Ct. 54, 19 L. Ed. 2d 100 (1967); United States v. Rosen, 2 Cir., 353 F.2d 523 (1965), cert. denied, 383 U.S. 908, 86 S. Ct. 889, 15 L. Ed. 2d 663 (1966); United States v. Winter, 2 Cir., 348 F.2d 204, cert. denied, 382 U.S. 955, 86 S. Ct. 429, 15 L. Ed. 2d 360 (1965); United States v. Parker, 7 Cir., 244 F.2d 943, cert. denied, 355 U.S. 836, 78 S. Ct. 61, 2 L. Ed. 2d 48 (1957). This case does not present the situation where an actual or potential defendant is called before a grand jury and, in the absence of the warnings, makes incriminating admissions.*fn2 We are therefore not called upon to determine the application of Escobedo v. Illinois*fn3 and Miranda v. Arizona*fn4 to admissions made by grand jury witnesses.*fn5 In the instant case there was no admission, and appellant was a "putative defendant," if at all, only in the sense that the Government anticipated he would perjure himself if called to testify.

The transcript of appellant's testimony before the grand jury shows that he was effectively warned of his rights. He was told that he had a right to legal counsel to consult with in answering any questions before the grand jury and that anything he might say could be used against him later in a criminal proceeding. The following exchange then occurred:

"Q. You understand you are waiving your right to testify before this Grand Jury?

"A. Repeat that.

"Q. Based on the fact that you understand that anything you say may be used against you at a later date, do you waive your right to testify before this Grand Jury? You have a right to take what is commonly ...

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