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UNITED STATES v. PHILLIPS

November 24, 1987

United States of America
v.
Harry Phillips



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 Defendant Harry Phillips is charged in a superceding indictment with 5 counts of false declaration before the grand jury on December 12, 1984, in violation of 18 U.S.C. § 1623. *fn1"

 Defendant filed an omnibus pretrial motion. An evidentiary hearing was held August 17, 1987 on two portions of that motion: the motion to suppress identification testimony and the motion to dismiss the indictment or, in the alternative, to suppress the defendant's grand jury testimony. At this hearing, defendant asserted a new theory with regard to the motion to dismiss. Accordingly, the Court allowed the government to submit a supplemental memorandum, to which the defendant responded. The issues having been fully briefed, and the Court having carefully reviewed the grand jury transcripts, this memorandum constitutes my findings of fact and conclusions of law.

 I. The Motion to Suppress Identification Testimony

 On December 6, 1984, government witnesses Francis Matherly and Benedict LaCorte accompanied FBI Agent David Richter to the auto salvage yard operated by the Phillips brothers. Matherly and LaCorte are cooperating with the government pursuant to plea agreements. Both witnesses claim to have sold stolen goods to the defendant in the 1970's.

 Mr. LaCorte directed Agent Richter to the salvage yard. The witnesses were at the salvage yard when the defendant drove into the parking lot. Mr. LaCorte recognized defendant as Harry Phillips, and told Agent Richter "That's Harry." Mr. Matherly also testified that he recognized the defendant as Harry PHillips when he pulled into the parking lot. Matherly and LaCorte both testified that they had met the defendant on a number of prior occasions. Both witnesses were able to identify the defendant in open court.

 The grand jury subpoenas which had been prepared by Agent Richter on or about December 6, 1984 bore the names of Sam Phillips and David Phillips, two brothers of the defendant. When he spoke to the defendant on December 6, 1984, Agent Richter learned that David Phillips had died some years before. Agent Richter testified that the decision to go to the Phillips' salvage yard had been a hurried one, and he had been uncertain as to which of the Phillips brothers he would find there. There is no evidence that either LaCorte or Matherly had suggested that the subpoena be issued in the name of David Phillips. The error on the subpoena in no way undermines the reliability of the witnesses' identification of the defendant.

 Because I find no reason to doubt the reliability of the identifications, I will deny the motion to suppress. *fn2"

 II. Motion to Dismiss The Indictment

 A. " Perjury Trap "

 The "perjury trap" theory asserts that prosecutorial conduct designed to trap a witness into perjuring himself before a grand jury is misconduct so severe as to constitute a violation of the witness' due process rights. This theory has received some judicial support. See United States v. Caputo, 633 F. Supp. 1479 (E.D. Pa. 1986), rev'd on other grounds sub. nom. United States v. Martino, 825 F.2d 754 (3d Cir. 1987); United States v. Simone, 627 F. Supp. 1264 (D.N.J. 1986); United States v. Crisconi, 520 F. Supp. 915 (D. Del. 1981). However, an indictment will be dismissed only in the most egregious circumstances. See United States v. Twigg, 588 F.2d 373 (3d Cir. 1978).

 In the present case, defendant was fully advised of the right to counsel, the right to remain silent, and the nature of the investigation. The record simply does not establish the type of outrageous conduct which must be shown before a due process violation will be found. Therefore, assuming without deciding that a "perjury trap" laid by the government could ...


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