the prosecutor's questions, but now moves to suppress his grand jury statements, pursuant to Fed.R.Crim.P. 12(b)(3), and for the discharge of the perjury counts.
Yannessa argues that his inability to consult with counsel, contrary to his request, during the grand jury examination resulted in the denial of his right to due process, his right against self-incrimination, and his right to counsel, as protected by the Fifth and Sixth Amendments to the United States Constitution. In addition to the constitutional grounds, Yannessa urges the Court to exercise its supervisory powers over the grand jury by suppressing Yannessa's testimony because he was not effectively informed by counsel that his Fifth Amendment right against self-incrimination is not waived once some questions have been answered. In response, the Government argues that the warnings given to Yannessa were not deficient because there is no constitutional requirement to warn a grand jury witness. The Government contends that, because Yannessa never asserted his right against self-incrimination, and because Yannessa never indicated any desire to cease answering all questions before consulting with an attorney, there was no deprivation of Yannessa's Fifth and Sixth Amendment rights. Finally, the Government argues that Yannessa's motion should be denied because Yannessa's reluctance to answer the questions occurred at a time in the examination after that testimony which is the subject matter of the perjury counts of the indictment.
With respect to Yannessa's constitutional argument, the United States Supreme Court held in United States v. Mandujano, 425 U.S. 564, 48 L. Ed. 2d 212, 96 S. Ct. 1768 (1976), that the warnings required during custodial interrogation under Miranda v. Arizona, supra, need not be given to a grand jury witness called to testify about criminal activities in which he may have been involved. Failure to give the Miranda warnings to a putative defendant who appears before a grand jury is no basis for suppressing the declarant's testimony in a subsequent prosecution of the witness for perjury based on such statements. United States v. Mandujano, supra, 425 U.S. at 579-580. The warnings volunteered by the Assistant United States Attorney to Yannessa were more than sufficient to inform him of his rights and responsibilities before the grand jury. Id., at 580, 582 n.7.
A witness appearing before a grand jury "cannot insist, as a matter of constitutional right, on being represented by his counsel," Id., at 581, citing In re Groban, 352 U.S. 330, 333, 1 L. Ed. 2d 376, 77 S. Ct. 510 (1957), because the Sixth Amendment right to counsel does not attach until criminal proceedings have been instituted against the witness. See Kirby v. Illinois, 406 U.S. 682, 688, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972). Further, a grand jury witness who has retained counsel may not insist upon the presence of his attorney in the grand jury room. United States v. Mandujano, supra, 425 U.S. at 581; Fed.R.Crim.P. 6(d). Yannessa, who was not represented by an attorney at the time of his grand jury appearance, cannot insist, as a matter of constitutional right, on being represented by counsel during his testimony. We find, therefore, no violation of the Sixth Amendment right to counsel.
With respect to Yannessa's alternative argument that the Court exercise its supervisory powers over the grand jury proceedings, we decline to hold that his grand jury testimony should be suppressed. A grand jury witness has an absolute duty to answer all questions, subject only to the exercise of his Fifth Amendment right against self-incrimination. United States v. Mandujano, supra, 425 U.S. at 581. The prosecutor may continue the examination by pursuing other lines of inquiry, even when the grand jury witness asserts his Fifth Amendment right. Id., at 581. In this case, the Assistant United States Attorney examining Yannessa before the grand jury pursued a different line of questioning after Yannessa indicated his reluctance to answer some questions without the assistance of counsel. The record is clear, in view of the warnings actually given and Yannessa's knowledge of the subject of the grand jury's general investigation, that Yannessa was aware of the penalties for perjury before the grand jury. See United States v. Crocker, 568 F.2d 1049, slip op. at 11-13 (3d Cir. 1977). Therefore, we will not suppress Yannessa's testimony or discharge counts fourteen and fifteen in the exercise of our supervisory powers on the ground that Yannessa was denied his Fifth and Sixth Amendment rights. Yannessa's motion to suppress his grand jury testimony of September 15, 1977, pursuant to Fed.R.Crim.P. 12(b)(3), will be denied.
Motion to Dismiss Counts 1, 2 and 3
Count one of the indictment alleges that Cohen and Yannessa became involved, starting January, 1971, in a pattern of racketeering activity, as evidenced by counts three through thirteen. Count two of the indictment alleges a racketeering conspiracy between Cohen and Yannessa beginning January, 1971, and cites numerous overt acts in furtherance of such conspiracy. Count three of the indictment charges Yannessa in his capacity as a School Board member with obstruction of commerce by extortion, based upon an extortionate demand made in July, 1971, and the resultant payments received between September, 1971, and June, 1973.
Duplicity is the joinder, in a single count of an indictment, of two or more separate and distinct offenses. United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). A count of an indictment is not duplicitous if the alleged acts therein were part of a transaction constituting a single continuing offense. United States v. Warner, 428 F.2d 730, 735 (8th Cir.), cert. denied, 400 U.S. 930, 27 L. Ed. 2d 191, 91 S. Ct. 194 (1970).
Yannessa argues that the first three counts of the indictment are duplicitous because they charge multiple incidents of receiving extortionate payments in the context of each count, thereby failing to provide Yannessa with notice of the charges which he must defend. In response, the Government contends that the entire transaction constitutes one continuous activity, conducted as part of a unified extortionate scheme.
We find the first three counts of the indictment are not duplicitous because the alleged acts and payments were part of a transaction constituting the single continuing offenses of racketeering, conspiracy and obstruction of commerce by extortion. None of these separate and distinct offenses were erroneously joined in a single count with another offense, thereby eliminating a finding of duplicity under Starks, supra. See United States v. Addonizio, 451 F.2d 49, 60 (3d Cir.), cert. denied, 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972).
In the alternative, Yannessa argues that the first three counts are duplicitous because the multiple incidents of receiving extortionate payments, in the context of each count, occurred before and after October 20, 1972, the cutoff date for the applicable, five-year statute of limitations. 18 U.S.C. § 3282.
Yannessa contends that a general verdict of guilty on any of the first three counts will deprive Yannessa of knowing whether the jury found him guilty of racketeering, conspiracy and extortion before, or after, the applicable statute of limitations. In response, the Government argues that no statute of limitation issue is involved because a portion of the extortionate plan continued into a time period within the five years of 18 U.S.C. § 3282.
We find the first three counts of the indictment are not duplicitous, even though certain alleged payments were received prior to the applicable statute of limitations. Payments received in violation of the Hobbs Act, 18 U.S.C. § 1951, which were the consummation of a single and unified extortionate scheme, present no pertinent issue regarding the limitation of the action if the payments continued into the five-year period. United States v. Provenzano, 334 F.2d 678, 684-685 (3d Cir.), cert. denied, 379 U.S. 947, 13 L. Ed. 2d 544, 85 S. Ct. 440 (1964). Because it is alleged that payments were received after October 20, 1972, no pertinent issue regarding the limitation of the action is raised.
In summary, the first three counts of the indictment are not duplicitous, because the separate and distinct offenses have not been joined in a single count, and because the alleged acts and payments were part of a transaction constituting the single continuing offense in each count. Further, there is no pertinent statute of limitations issue that warrants a finding of duplicity or a dismissal of the first three counts. Therefore, Yannessa's motion to dismiss the first three counts of the indictment will, accordingly, be denied.
An appropriate Order will be entered. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 444 F. Supp.]
AND NOW, TO WIT, this 10th day of February, 1978, IT IS ORDERED as follows:
1. Defendant Cohen's motion for a severance of counts fourteen through twenty of the indictment, pursuant to Fed.R.Crim.P. 12(b)(2) and 8(b), is hereby denied.
2.Defendant Cohen's motion for relief from prejudicial joinder by severing counts fourteen and fifteen of the indictment, pursuant to Fed.R.Cirm.P. 12(b)(5) and 14, is hereby denied.
3. Defendant Yannessa's motion to suppress his grand jury testimony of September 15, 1977, pursuant to Fed.R.Crim.P. 12(b)(3), is hereby denied.
4. Defendant Yannessa's motion to dismiss the first three counts of the indictment, pursuant to Fed.R.Crim.P. 12(b)(2), is hereby denied.
LOUIS C. BECHTLE, J.