The opinion of the court was delivered by: LUONGO
This is a motion to suppress grand jury testimony given by the defendant Walter P. Matthews, Jr., allegedly in violation of his Fifth Amendment privilege against self-incrimination.
Matthews was indicted on April 24, 1975, on charges of interference with commerce by extortion, and conspiracy, in violation of 18 U.S.C. §§ 1951 and 371, for actions which allegedly occurred on or about January 28, 1972. Matthews was twice called before state grand juries, on December 4, 1972 and September 7, 1973. He seeks to suppress the testimony he gave on those occasions because of alleged deficiencies in the warnings given to him before he testified.
The basis for the defendant's motion appears to be that "on the first occasion, the defendant was not informed of his right against self-incrimination, and was told by the prosecutor handling the questioning that since he was not a defendant about to be indicted, he had to answer the questions of the prosecutor," (Memorandum of Law, page 1), and that on the second occasion, although Matthews was given Miranda warnings [ Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)], the prosecutor misled him into believing he was compelled to answer all questions because he was an "informational" witness.
At the hearing on the motion, the transcripts of the proceedings before the grand juries on December 4, 1972, and September 7, 1973, were offered. The government was not then aware of the existence of a transcript of the swearing in proceedings before the state court judge on December 4, 1972. Shortly after the hearing, the government learned that there was such a record and a copy was furnished to the court and to Matthews' counsel. Matthews presented no evidence at the hearing on the motion to suppress and has not requested the opportunity to present any following the government's filing of the transcript of the swearing in proceedings.
Matthews first appeared before the grand jury at 1:30 p.m. on December 2, 1972. At 9:30 a.m. of that day, he and four others appeared before the Honorable Harry A. Takiff to be sworn as witnesses. The transcript reveals that Judge Takiff afforded the defendant the following warnings prior to administration of the oath:
THE COURT: . . . I am Judge Takiff. I have been assigned by the President Judge to supervise the Special Investigating Grand Jury which has subpoenaed you to appear before it as witnesses. You have been subpoenaed as informational witnesses because the Jury has reason to believe that you have in your possession knowledge and information which is relevant to the matters under inquiry by the Grand Jury.
You have certain right (sic) and duties, which I will now explain to you. First, you have the right to the advice and assistance of counsel. You have the right to consult with an attorney concerning your appearance before the Grand Jury and all matters pertaining to that appearance. You have the right to discuss with your attorney all matters that transpire during the course of your appearance before the Grand Jury, including the questions and answers which are elicited during the course of your appearance. You may consult with the attorney before you testify, after you testify, and during any recesses in the course of your appearance. However, the attorney is not permitted to accompany you inside the Grand Jury room while you are actually being questioned.
Do you each understand this right?
THE COURT: Mr. Matthews, . . . have you consulted with counsel?
THE COURT: With whom have you consulted, Mr. Matthews?
MR. MATTHEWS: Attorney Esther F. Clark of Chester.
THE COURT: Has your attorney advised you of your rights and responsibilities in connection with your appearance?
THE COURT: Do you require any further opportunity to consult with your ...