to give testimony under oath consistent with what was known to be demonstrably false." Stipulation para. 15. It is also agreed that the prosecutor would testify that he supplied the reports to avoid responding to defendants' questions in advance of their appearance and to reduce the chance that defendants would assert their Fifth Amendment privilege before the grand jury. Id.
We note that this case differs markedly from the only case the parties and the Court could find which dismissed an indictment because a witness was subpoenaed for the sole or primary purpose of extracting perjured testimony. People v. Tyler, supra. In that case, the prosecutor questioned the witness extensively about irrelevant details of prior conversations. Answers to those questions could not have led to information which would have been relevant to a crime which the grand jury was investigating. See People v. Tyler, 46 N.Y.2d at 256-58, 385 N.E.2d at 1227-28, 413 N.Y.S.2d at 297-98. In the present situation, the prosecutor's questioning of defendants could have led to information relevant to the investigation of public corruption.
Defendants argue that the Court should exercise its supervisory power to dismiss the indictment because defendants were not notified of their target status. Although the Constitution does not require that target witnesses be warned of their target status,
the Justice Department ". . . will continue the long-standing internal practice . . . to advise witnesses who are targets of the investigation . . . that their conduct is being investigated for possible violation of federal criminal law." United States Attorney's Manual, § 9-11.260 (1984). We have been cited to no authority establishing that a Court may dismiss an indictment or exclude evidence because of a violation of Department of Justice internal guidelines.
Defendants also argue that the Court should exercise its power because of an admonition in United States v. Crocker, 568 F.2d at 1055-56. As program director and disc jockey of a radio station, Crocker selected the records to be played by the station. He appeared twice before a grand jury investigating whether illicit cash payments had been made to program directors and announcers to influence their selection of records. Before his first appearance, his attorney, a civil litigator, asked the prosecutor whether Crocker was a target; the attorney explained that if Crocker were a target he would advise him to retain a criminal lawyer. The prosecutor stated that Crocker was not a target. A year later, Crocker was again subpoenaed to appear; his attorney again asked whether he was a target and was told that Crocker's status had not changed. Thereafter, Crocker was indicted for perjury for denying that he had received cash payments from certain companies to promote their records.
Crocker argued that he was a target during his second appearance before the grand jury because the government knew that his statements during his first appearance were false. Citing United States v. Jacobs, 547 F.2d 772 (2d Cir. 1976), he asserted that testimony given during his second appearance should be suppressed because he had been misled about his target status. In Jacobs, the Court of Appeals for the Second Circuit affirmed an order suppressing grand jury testimony and dismissing a perjury indictment because a Strike Force attorney had not followed the long-established, uniform practice among United States Attorneys in the Second Circuit of warning target defendants that they were the subjects of a grand jury investigation. The Crocker Court agreed that Crocker was a target, but did not suppress his testimony. It declined to follow Jacobs because there was no established practice in the Third Circuit of giving target warnings. The Court stated, however:
". . . in the future, United States Attorneys in the Third Circuit should not be surprised if, pursuant to our supervisory powers over the manner of conducting grand jury proceedings, we were to follow United States v. Jacobs, supra, especially where, as here, specific inquiry is made on the defendant's behalf."
568 F.2d at 1056.
Defendants argue that the future is now. The government responds that Crocker is not pertinent because defendants were not targets and that, even if they were, the prosecutor did not mislead defendants into thinking that they were not targets.
The Manual defines a target as "a person as to whom the prosecutor or the grand jury has substantial evidence linking him/her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant," § 9-11.260. According to Crocker, "the test is not whether he 'necessarily' will be indicted, but whether according to an objective standard he could be indicted." 568 F.2d at 1054.
The government asserts that defendants could not be considered putative defendants with respect to their involvement in criminal activity relating to bribery and similar offenses: the government would not seek an indictment for these crimes because the evidence against them consisted only of their own assertions that they engineered bribes. See Stipulation para. 4; see also Government's response to defendant Caputo's omnibus pretrial motion, at 30. This argument misses the mark because it fails to recognize that defendants could have been considered targets of an investigation for conspiracy to commit perjury, to suborn perjury and to obstruct justice in violation of 18 U.S.C. § 371, obstruction of justice in violation of 18 U.S.C. § 1503, and making false statements in violation of 18 U.S.C. § 1001. The government possessed evidence of these offenses prior to defendants' appearances before the grand jury. Accordingly, we conclude that defendants were targets, who, pursuant to the Manual, should have received target warnings.
Nevertheless, we will not suppress defendants' grand jury testimony or dismiss the indictment for failure to give the warnings. First, Crocker is distinguishable from this case. In Crocker, the prosecutor stated that defendant was not a target; here the prosecutor was non-responsive to defendants' queries. Moreover, the prosecutor's misleading statement to Crocker's attorney was particularly harmful because it effectively denied Crocker experienced criminal counsel.
Second, in Crocker, a more serious case, the Court of Appeals did not exercise its supervisory power, nor did it announce with certainty that a prophylactic rule would be applied in future cases in which the target was not warned.
Third, the Court is not persuaded that defendants were prejudiced by the lack of a warning. Defendants are lawyers and swore to tell the truth; they knew or should have known that they could be prosecuted for perjury if they made false statements before the grand jury. As the Chief Justice stated in United States v. Washington, 431 U.S. at 189:
". . . we do not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights."