United States Court of Appeals
For the First Circuit
No. 99-2089
UNITED STATES OF AMERICA,
Appellant,
v.
TOMAS MELENDEZ, A/K/A TOMAS MELENDEZ SANCHEZ,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Daniel S. Goodman, Appellate Section, Criminal Division,
United States Dep't of Justice, with whom Guillermo Gil, United
States Attorney, and Aixa Maldonado-Quinones, Assistant United
States Attorney, were on brief, for appellant.
Edgar R. Vega-Pabon, by appointment of the court, for
appellee.
September 29, 2000
SELYA, Circuit Judge. This appeal poses a single
question: Do the safeguards demanded by Miranda v. Arizona, 384
U.S. 436 (1966), apply to testimony given by a subpoenaed
witness in a criminal proceeding? The district court answered
this query in the affirmative and suppressed certain inculpatory
statements made by Tomás Meléndez Sánchez (Meléndez) on the
ground that Meléndez had not been informed of his Miranda rights
before he testified. See United States v. Sánchez, 59 F. Supp.
2d 348, 354 (D.P.R. 1999).1 Concluding, as we do, that Miranda
does not apply to in-court testimony, we reverse.
I. BACKGROUND
In December 1997, Meléndez appeared before a federal
grand jury and testified under oath as to the involvement of
several individuals in an armored car robbery. In response to
this evidence, the grand jury returned a superseding indictment
that re-charged the original suspects and added two new
defendants. Meléndez thereafter experienced a change of heart:
1
Due to a publisher's error, the lower court opinion has
been reported as "United States v. Sánchez" rather than "United
States v. Meléndez." To avoid further confusion, we cite to it
simply as "D. Ct. Op."
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in March 1998, he met with counsel for one of the individuals he
had implicated and retracted his allegations. The lawyer then
moved to dismiss the charges against his client.
The case was set for trial on May 19, 1998. Prior to
going forward, Judge Fusté held an evidentiary hearing to
consider the motion to dismiss. The defense called Meléndez
(who had been subpoenaed by the government to testify at the
trial) as its only witness. Meléndez appeared without counsel.
On direct examination by the moving defendant's attorney, he
asserted that an FBI agent had supplied him with, and coached
him on, the fabricated story that he had related to the grand
jury. 2 On examination by a lawyer for a different defendant,
Meléndez acknowledged dissembling to the grand jury. On cross-
examination by an Assistant United States Attorney (AUSA), he
reiterated and embellished upon these admissions.
Following an exchange with the AUSA in which Meléndez
conceded that he had lied "for money," Judge Fusté warned him
that anything he said could be used against him in a separate
prosecution and also advised him that he was entitled to a
lawyer then and there. Meléndez disclaimed any need for an
2
The persons charged with having perpetrated the armored car
robbery attempted to introduce Meléndez's tale at their trial.
The district court excluded the proffer, and we upheld that
ruling. See United States v. Mojica-Baez, ___ F.3d ___, ___
(1st Cir. 2000) [No. 98-2349, slip op. at 16-19].
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attorney and continued to testify. When he finished, the court
ordered his immediate arrest. An indictment for making false
declarations in the course of a judicial proceeding followed
apace. See 18 U.S.C. § 1623.
Transformed from a witness to a defendant, Meléndez
invoked Miranda, the watershed case in which the Supreme Court
held that a person undergoing custodial interrogation first must
be told that he has the right to remain silent; that any
statement he makes may be used as evidence against him; that he
has a right to an attorney; and that if he cannot afford an
attorney, one will be appointed for him. See 384 U.S. at 444.
Noting that his testimony at the May 19 hearing had not been
preceded by any warnings, Meléndez moved to bar the government
from using it in the case against him.
His argument fell on sympathetic ears. Reasoning that
the in-court questioning constituted custodial interrogation for
which Miranda warnings were required, the district court
suppressed all the statements that Meléndez had made prior to
Judge Fusté's admonition concerning self-incrimination and the
right to counsel. See D. Ct. Op., 59 F. Supp. 2d at 354. This
interlocutory appeal followed. We have jurisdiction pursuant to
18 U.S.C. § 3731. See United States v. Flemmi, ___ F.3d ___,
___ (1st Cir. 2000) [No. 99-2292, slip op. at 8-11] (describing
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scope and operation of statute allowing certain interlocutory
appeals by the government in criminal cases); United States v.
Brooks, 145 F.3d 446, 453-54 (1st Cir. 1998) (similar).
II. ANALYSIS
This appeal presents a pure question of law concerning
the district court's application of the Miranda rule.
Accordingly, we afford de novo review. See United States v.
Lewis, 40 F.3d 1325, 1332-33 (1st Cir. 1994).
Miranda established a bright-line rule making the
warnings, enumerated above, conditions precedent to the
admissibility of statements uttered by a suspect during the
course of custodial interrogation. See 384 U.S. at 444. That
rule is one of constitutional dimension. See Dickerson v.
United States, 120 S. Ct. 2326, 2333-34 (2000). Withal, it
applies only to custodial interrogations. See Berkemer v.
McCarty, 468 U.S. 420, 428-30 (1984); see also Dickerson, 120 S.
Ct. at 2331; Miranda, 384 U.S. at 467. This is as it should be:
in a custodial interrogation, the police have the capacity to
dominate the scene to such an extent that the risks of coercion
and intimidation are unreasonably high. The rule was devised to
protect against the extraordinary danger of compelled self-
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incrimination that is inherent in such situations. See Miranda,
384 U.S. at 455-56. Outside that narrow context, however,
Miranda has no force. See Minnesota v. Murphy, 465 U.S. 420,
430 (1984).
Viewed against this backdrop, the threshold question
here is whether the in-court questioning of Meléndez can be said
to constitute custodial interrogation. The court below thought
that it could. See D. Ct. Op., 59 F. Supp. 2d at 354. We do
not agree. We set out below four reasons why we consider in-
court testimony to be beyond Miranda's reach.
First and foremost, interrogation in a courtroom
setting simply does not present the dangers that the Miranda
Court sought to mitigate. The Court defined a custodial
interrogation as "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in a[] significant way."
Miranda, 384 U.S. at 444. In framing this definition, the Court
repeatedly emphasized that the safeguards it envisioned were
designed to apply to self-incriminating statements obtained
during "incommunicado interrogation of individuals in a police-
dominated atmosphere." Id. at 445. The Court took pains to
distinguish that sort of milieu from "courts or other official
investigations, where there are often impartial observers to
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guard against intimidation or trickery." Id. at 461. Although
this was dictum, the Court hardly could have sent a clearer
signal.
Moreover, the underlying distinction makes sense. The
dangers of coerced self-incrimination present in a police
interrogation — a unique potential for the exertion of pressure,
physical intimidation, psychological trickery, and prolonged
grilling with no outside contact — are largely absent in a
public courtroom. As written, the Miranda rule balances the
need to investigate and prosecute crimes against the imperatives
of the Fifth Amendment. See Michigan v. Tucker, 417 U.S. 433,
443 (1974). To apply the rule willy-nilly to so different a
situation would destroy this delicate balance. We decline
Meléndez's invitation to fish in such troubled waters. See
Berkemer, 468 U.S. at 437 ("Fidelity to the doctrine announced
in Miranda requires that it be enforced strictly, but only in
those types of situations in which the concerns that powered the
decision are implicated.").
Our second reason for holding Miranda inapposite has
its roots in this court's precedents. We previously indicated
that Miranda's safeguards do not extend to courtroom testimony.
In United States v. Byram, 145 F.3d 405 (1st Cir. 1998), we
rejected the suggestion that a witness must receive Miranda
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warnings prior to courtroom testimony to render that testimony
admissible against him in a subsequent prosecution. See id. at
409. We observed that "the testimony was given in open court
and involved none of the dangers of jail-cell interrogation that
prompted Miranda." Id. Although our comments in Byram
technically are dictum — we ultimately suppressed Byram's prior
testimony on the unrelated ground that it had been tainted by an
earlier statement obtained in violation of Miranda, see id. at
410 — they are considered dictum, and thus persuasive (even
though not binding).3
Third, the case law in the other courts of appeals
comports with our thinking. For example, in United States v.
Valdez, 16 F.3d 1324 (2d Cir. 1994), the court held a witness's
trial testimony admissible in a later perjury prosecution, even
though the presiding judge (who delayed the execution of a
warrant for the witness's arrest so that he could testify) had
not warned the witness of the possible consequences of his
testimony. See id. at 1330-32. Similarly, in United States v.
Kilgroe, 959 F.2d 802 (9th Cir. 1992), a witness testified under
subpoena, without Miranda warnings, and the government
3
The force of the Byram dictum is strengthened by our
earlier decision in Labbe v. Berman, 621 F.2d 26 (1st Cir.
1980), in which we upheld the admission of a witness's inquest
testimony at his subsequent trial, notwithstanding the absence
of Miranda warnings. See id. at 29.
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thereafter used the testimony against him in a subsequent
prosecution. See id. at 803. The Ninth Circuit sanctioned the
admissibility of the evidence, stating that "the courtroom . .
. is not the type of setting that would justify invoking
Miranda's prophylactic rule." Id. at 804 (footnote omitted).4
Last — but surely not least — the Supreme Court has
refused to require that a grand jury witness receive Miranda-
like warnings as a condition precedent to the use of his
testimony against him in a later perjury prosecution.5 See
United States v. Mandujano, 425 U.S. 564, 580 (1976) (plurality
opinion). In declining to require such warnings, the Court
noted the many differences between custodial interrogation and
other types of official investigations. See id. at 579-80. The
year after it decided Mandujano, the Court held that a
4
Interestingly, the Kilgroe court rejected an assertion that
the subpoena served upon the witness-turned-defendant created a
compulsion to give incriminating testimony, remarking that being
subpoenaed gave the witness the opportunity to obtain counsel
and left him free to refuse to answer questions that would
incriminate him. See 959 F.2d at 804-05. We endorse this
rationale, noting, inter alia, that the witness-turned-defendant
in Byram also was under subpoena when he gave his original
testimony. See 145 F.3d at 409.
5
We say " Miranda-like" because the precise warnings required
by Miranda are not fully transferable to the grand jury setting.
In that milieu, a witness does not have "the right to remain
silent," but can in fact be compelled to answer all but self-
incriminating questions. See United States v. Washington, 431
U.S. 181, 183 n.2 (1977).
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defendant's statements to a grand jury were admissible against
her in a later perjury prosecution even though she had not been
effectively warned of her Fifth Amendment right not to
incriminate herself. See United States v. Wong, 431 U.S. 174,
177-79 (1977). The Byram court thought that the analogy between
grand jury testimony and in-court testimony was compelling, see
145 F.3d at 409, and so do we.
In short, logic and an unbroken skein of authority —
our own case law, cogent opinions from sister circuits, and
analogous Supreme Court precedent — point unerringly to the
conclusion that self-incriminating statements made by witnesses
(whether or not subpoenaed) while testifying in judicial
proceedings are admissible against them in later prosecutions,
notwithstanding the absence of Miranda warnings. We so hold.6
6In making a contrary determination, the court below relied
on four factors that we have indicated should be taken into
account in determining whether particular police questioning is
custodial in nature. See D. Ct. Op., 59 F. Supp. 2d at 351-54
(citing, inter alia, United States v. Ventura, 85 F.3d 708, 711
(1st Cir. 1996)). These factors include the nature of the
surroundings in which the suspect is questioned; the number of
law enforcement officers present; the degree of physical
restraint placed upon the subject; and the duration and
character of the interrogation. See id. at 351-52. This put
the cart before the horse. Where, as here, questioning is done
by lawyers in an open courtroom, the Ventura mode of analysis
does not come into play. Outside the context of custodial
interrogation, the more relevant rule is that a witness must
seize the initiative in claiming the privilege against self-
inculpation — and this holds true even if he is confronted with
queries that the government reasonably may expect will elicit
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III. CONCLUSION
We need go no further. Because we are convinced that
the dangers that animated Miranda do not exist in situations
involving in-court testimony, we rule that Meléndez's
testimonial statements are admissible against him,
notwithstanding the fact that he was not warned of his
constitutional rights before he began to testify. We therefore
reverse the district court's contrary determination. We add,
however, that while Miranda warnings are not necessary to ensure
that statements made by witnesses testifying in open court may
be used against them in future prosecutions, it nonetheless may
be salutary in a particular case for a judge to issue warnings,
or even to appoint counsel, if a witness appears likely to
incriminate herself. Still, this practice entails certain
risks, see Valdez, 16 F.3d at 1331, and we leave its employment
to the sound discretion of the district courts.
Reversed.
incriminating answers. See Murphy, 465 U.S. at 429.
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