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United States v. Semkiw

July 20, 1983



Adams and Weis, Circuit Judges, and Debevoise, District Judge.*fn*

Author: Weis


WEIS, Circuit Judge.

The defendant in this case was granted use immunity and compelled to testify before a grand jury about a crime for which he was later indicted. He contends that the Assistant United States Attorney who tried the case used the grand jury testimony as a "discovery deposition" and thus violated the fifth amendment privilege against self-incrimination. Because the record is inadequate to evaluate the validity of the defendant's contention, we remand for further proceedings.

Defendant Zeno Semkiw was indicted for violating the anti-kickback statute, 41 U.S.C. ยงยง 51 and 54.*fn1 The government charged that defendant, who was a purchasing agent for Amtrak, had accepted a new automobile as a gift from a subcontractor doing business with the railroad. A jury found him guilty.

Prior to the indictment, an FBI agent interviewed Semkiw about his receipt of the automobile and took a statement from him. The government later compelled Semkiw to testify about the transaction before a grand jury by granting him use immunity. Defendant filed pretrial motions to suppress the statement and dismiss the indictment. The district court denied both.

The evidence at the suppression hearing established that an FBI agent interviewed defendant in a vacant office at Semkiw's place of employment. The interview took place in the presence of the defendant's superior, who had summoned him to the office, and a member of the Amtrak security force. The FBI agent informed defendant of the purpose of the interview, told him that he was not under arrest, and advised him that he did not have to talk.

Defendant was not told that he had a right to a lawyer, and at the hearing he contended that this omission violated Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The district judge found that the challenged statement "was not given while the defendant was in custody or such compulsive circumstances" as to invoke Miranda. The judge therefore denied the motion to suppress and permitted the FBI agent to testify about the interview at trial.

The denial of the suppression motion does not warrant elaborate consideration. Under controlling law, Miranda warnings are required only when a person has been deprived of his freedom of action in some significant way. See Beckwith v. United States, 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976); Steigler v. Anderson, 496 F.2d 793 (3d Cir.), cert. denied, 419 U.S. 1002, 42 L. Ed. 2d 277, 95 S. Ct. 320 (1974). The record here fully supports the finding of a lack of compulsive circumstances. Because defendant failed to establish the predicate for application of the Miranda rule, the district court's ruling on this issue was correct.

We are troubled, however, by the defendant's contention that the government violated his use immunity by giving the prosecutor access to the grand jury testimony.

In his memorandum in support of the motion to dismiss, defendant asserted that the government already possessed all the evidence necessary to indict him when he appeared before the grand jury. By compelling him to testify under these circumstances, Semkiw argued, the government had in effect taken a pretrial deposition and discovered his defense to the charges. Defendant sought dismissal on the ground that disclosure of his testimony to the prosecuting attorney would give the government an unfair advantage in trial preparation and plea bargaining.

The government did not deny that the prosecuting attorney was familiar with the defendant's grand jury testimony. Instead, it belittled Semkiw's contention that the prosecution's knowledge of his defense put him at a disadvantage as being the "type of claim [that] could be made in any case in which a defendant has previously given immunized testimony." According to the government, dismissal would effectively transform the use immunity granted to defendant into transactional immunity.

At the hearing on the motion, defendant asserted that the government's designated trial counsel had actually reviewed his grand jury testimony. Defendant, however, did not specifically request dismissal as the remedy. Rather, he asked the court to impose "a prophylactic barrier" between the grand jury and the Assistant United States Attorney, so that the compelled testimony could "not be ...

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