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United States v. Nickels

decided: September 12, 1974.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CHARLES G. NICKELS, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 CR 400. RICHARD B. AUSTIN, Judge.

Clark, Associate Justice,*fn1 Cummings, Circuit Judge, and Beamer, Chief District Judge.*fn2

Author: Cummings

CUMMINGS, Circuit Judge.

Defendant, a Chicago police officer, was convicted by a jury for making a false declaration before a grand jury in violation of 18 U.S.C. ยง 1623. He received an 18-month sentence.

According to the one-count indictment, defendant told the grand jury in substance that while in the performance of his duties as a Chicago police officer, he had never received any money from any persons, whereas in truth he had received money from Joseph Dawson and John Cello between January 1965 and May 1966 while in the performance of such duties.

In 1964, defendant was assigned to the 18th Chicago Police District Vice Squad to conduct wire surveillance. He remained there until the spring of 1966. At the trial, a former Chicago policeman, Joseph Dawson, and suspended policeman John Cello testified that defendant was given a share of monthly payoffs given to Dawson and Cello by gambling interests and tavern keepers. The division of the payoffs took place in secrecy in defendant's presence at the Olympic Hotel in Chicago on several occasions. The "package" was divided among the sixteen members of the Vice Squad. Martin B. Brody, keeper of the Olympic Hotel, testified that he gave a police officer $75 in the defendant's presence "to keep the vice squad away." He also testified that he gave defendant $75 on another occasion.

I

Defendant first argues that his grand jury testimony should have been suppressed because it was given under the duress of Rule 51 of the Chicago Police Department prohibiting officers from failing to give evidence before a grand jury. On the basis of prior Supreme Court decisions, we held Rule 51 constitutionally invalid because it denied police officers the privilege against self-incrimination where criminal prosecution may have followed. Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir. 1973). Subsequently, we held that even in the face of such a rule a public employee is not privileged to lie before a grand jury, stating:

"We find no reason or justification for extending this umbrella of [Fifth Amendment] protection to shield a witness against prosecution for knowingly giving false testimony." United States v. Devitt, 499 F.2d 135, 142 (7th Cir. 974),

To the same effect, see United States v. Pacente, 503 F.2d 543, 548-549 (7th Cir. 1974), United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 306 (2d Cir. 1971); cf. United States v. Knox, 396 U.S. 77, 24 L. Ed. 2d 275, 90 S. Ct. 363; United States v. Cooper, 493 F.2d 473, 474 (5th Cir. 1974).

Defendant complains that no agent of the federal government interviewed him prior to the time he appeared before the grand jury. There is no such requirement.

Defendant urges that the Government was not entitled to propound questions to the defendant before the grand jury concerning events prior to the five-year statute of limitations. The point is without merit because the grand jury's scope of inquiry is not limited to events which may result in criminal prosecution. Devitt, supra, slip op. 7; United States v. Cohn, 452 F.2d 881, 883 (2d Cir. 1971), certiorari denied, 405 U.S. 975, 31 L. Ed. 2d 249, 92 S. Ct. 1196.

Defendant next contends that before he testified, the prosecutor wrongly advised him that anything he said could be used against him in subsequent criminal proceedings. Although it reflects badly on the government, such an over-warning is no defense to a perjury charge. Compare the erroneously required waiver in United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 306 (2d Cir. 1971). The incorrect warning simply restated one horn of the dilemma which Rule 51 would have created if valid. While it probably made that apparent dilemma more salient to the witness, it does not change the nature of the witness' dilemma. Accordingly, the warning does not distinguish this case from Devitt and Pacente.

Although defendant states that the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, with respect to right to appointed counsel were inadequate, the transcript of the colloquy between the defendant and prosecutor before the ...


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