United States v. Robert Kennedy, Jr.

Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a dissenting opinion.

WILKINSON, Circuit Judge:

Appellant Robert Kennedy, Jr. was convicted in August 2001 of drug trafficking in Virginia, and he was sentenced to 420 months’ imprisonment. While his conviction was pending appeal, Kennedy was brought to testify on two separate occasions before a grand jury that was investigating drug and money laundering activities in the Danville, Virginia area. He was subsequently indicted for perjury based upon his testimony. He filed a pre-trial motion to suppress his perjurious statements, claiming that they were obtained in violation of his Fifth and Sixth Amendment rights and were the result of prose-cutorial misconduct. The district court rejected his claims, and a jury convicted Kennedy of four counts of perjury.

On appeal, Kennedy contends primarily that the district court erred in denying his constitutional claims for suppression. We hold that his remedy for any Fifth or Sixth Amendment violations does not encompass exclusion of his false testimony from his perjury trial. Courts cannot condone perjury as a self-help remedy against constitutional violations. See United States v. Mandujano, 425 U.S. 564, 576-77, 582-83, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (plurality opinion). In addition, there was insufficient evidence here of prosecutorial misconduct amounting to a deprivation of due process. Kennedy’s testimony was therefore admissible at his prosecution for perjury, and we accordingly affirm the district court’s judgment.

I.

A Virginia jury convicted Kennedy of two counts of distributing cocaine base, and one count of conspiring to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base. Kennedy filed a notice of appeal from his conviction on January 23, 2002.1

While his appeal was pending, on February 19, 2002, Assistant United States Attorney Joseph Mott had Kennedy brought before a grand jury sitting in Roanoke, Virginia. The focus of the grand jury investigation, according to the United States, was to probe drug trafficking and money laundering offenses in the Danville, Virginia area. The specific purpose of Kennedy’s appearance was to elicit information about other individuals dealing drugs in Danville, and about certain land transactions in which Kennedy was involved. According to the United States, *689Kennedy was not a target of the investigation. Mott claims that he notified Kennedy’s trial attorney, Christopher Kowalczuk, that Kennedy would appear before a grand jury on February 19. Kowalczuk did not show up for the proceeding, however, and Kennedy disputes whether Mott ever notified Kowalczuk of the grand jury appearance.

Before appearing in front of the grand jury on February 19, Kennedy was first interviewed in the U.S. Marshal’s Office in the Roanoke federal building. Mott, Detective Thomas Merricks of the Danville Police Department, and Sergeant T.L. Nicholson of the Pittsylvania County Sheriffs Office were present for the interview. Mott began by advising Kennedy that “since he had been convicted of the drug charges, ... he did not have a right not to testify about those charges” before the grand jury. However, Mott informed Kennedy that he could refuse to discuss other matters for which he had not been convicted. Mott also advised Kennedy that he could consult with his attorney outside the presence of the grand jury before answering any questions, but that his attorney could not enter the grand jury room with him. Mott told Kennedy about the grand jury proceeding and about the oath, and he made clear that any material false statements under oath constituted the crime of perjury. Upon completing these instructions, Mott left the room.

After Mott’s departure, Kennedy told the remaining officers that he “would never talk about [his connections] before the grand jury and that he would just pull his 35 years.” The officers did not give Kennedy any Miranda warnings, but continued to question him about who “he dealt with.” During the course of further interrogation, Kennedy identified a number of individuals from whom he had bought drugs, to whom he had sold drugs, or with whom he had conducted land deals. Throughout the discussion, according to Merricks, Kennedy repeated several times that “he didn’t want to talk” before the grand jury and that he would just serve his time.

When Kennedy appeared before the grand jury, Mott addressed him once again. Mott stated that “now that you’ve been convicted and sentenced, do you understand that you don’t have the right to refuse to answer any question about the events that you’ve already been convicted of?” Mott clarified that “because you’ve been tried and convicted ... in the drug case, on the indictment [,] ... I’m telling you that you’ve lost your Fifth Amendment right not to testify about those events charged in the indictment.” Mott stated, however, that “if there were other offenses, anything you say could be used against you.” Mott again told Kennedy that although his attorney could not be present in the grand jury room, Kennedy could consult with him outside the room before answering any question. Finally, Mott reminded Kennedy that he was under oath, and he made clear that “any material false statement under oath constitutes the crime of perjury.” Kennedy acknowledged that he understood these rights.

Mott then questioned Kennedy about his involvement with drugs, specifically probing Kennedy’s sales of cocaine powder. Kennedy admitted selling cocaine to various people, including Ruth Guy, Wayne Huffman, and Bobbi Brandon. When asked about the sources of his drugs, Kennedy requested to speak with counsel. Mott passed over that subject and inquired instead about Kennedy’s involvement with certain land transactions. After extensive questioning on this topic, Kennedy again requested to speak with counsel. Mott therefore excused Kennedy from the hearing, saying that he would continue Kenne*690dy’s appearance until next month and that he would “make arrangements for” Kennedy’s attorney to be there.

One month later, on March 19, 2002, Mott again had Kennedy brought before the grand jury in Roanoke. Officers again began by questioning Kennedy in the U.S. Marshal’s Office. Mott, Merrieks, Nicholson, Special Agent Montie Blakey, and Special Agent Rick Elgin of the state police were present. Once again, Mott advised Kennedy that he had no Fifth Amendment privilege as to the events for which he had already been convicted, and at no time was Kennedy read Miranda warnings. When questioned by the investigators, Kennedy reiterated his desire not to talk to the grand jury, and he claimed not to remember anything about his February 19 testimony. According to the notes prepared by Blakey, Kennedy asserted that “he did not know anything and just wanted to do his time.... [Wjhen asked about information he gave at an earlier interview, [Kennedy] advised he didn’t remember.” Kennedy’s new attorney, Randy Cargill, who had become counsel on March 14, 2002, was not present. According to Cargill, neither he nor Kennedy’s former counsel, Kowalczuk, was ever notified of the March 19 grand jury appearance, and neither was present for it.

Once before the grand jury, Mott informed Kennedy that he had lost “the right not to incriminate [him]self as to those matters of which [he’d] been convicted,” but he clarified that Kennedy could refuse to testify about “new crimes or other matters ... than the events charged in [the] indictment.” Kennedy acknowledged that he had met with his former attorney, Kowalczuk, since his last appearance on February 19. Mott then reminded Kennedy that he still had the right “to consult with an attorney [outside the presence of the grand jury] prior to answering any question.” Finally, Mott told Kennedy again that he was under oath, and “the legal significance of that is that any material false statement under oath constitutes the crime of perjury.”

Mott then began questioning Kennedy. He asked whether Kennedy had sold drugs to the individuals whom Kennedy had named in his February 19 appearance, but Kennedy stated that he did not remember selling to any of them. Indeed, Kennedy claimed that he could not remember ever buying or selling drugs in Danville. During this exchange, Mott reminded Kennedy about his oath and the consequences of making false statements, which included a “false claim of no memory,” and he clarified that Kennedy had no condition that would affect his memory. Mott then inquired extensively about the land transactions to which Kennedy had previously testified. Mott concluded the proceeding by reminding Kennedy again about the consequences of giving false testimony, and he gave Kennedy a last chance to change his testimony. Kennedy refused, however, and Mott excused him.

On May 21, 2002, Kennedy was indicted on four counts of perjury before the grand jury on March 19, and one count of perjury before the grand jury on February 19. Count 1 was based on allegedly false statements Kennedy made on March 19 that related to his general drug activities, but the district court dismissed this count due to a lack of evidence of falsity. Counts 2, 3, and 4 stemmed from alleged inconsistencies between Kennedy’s testimony on February 19 and his testimony on March 19. Specifically, Kennedy admitted on February 19 that he had sold drugs to Ruth Guy, Wayne Huffman, and Bobbi Brandon, but he stated on March 19 that he could not remember selling drugs to any of them. Count 5 involved Kennedy’s February 19 testimony relating to a land deal, which *691the government claimed was false on its own terms.

Before trial, Kennedy moved to suppress the statements he made prior to and during the grand jury hearing. He argued that they were obtained in violation of his Fifth and Sixth Amendments rights, and that Mott had engaged in prosecutorial misconduct. On September 26, 2002, the district court denied Kennedy’s motion. It held that although Mott had wrongly advised Kennedy that he had no right to remain silent about subjects relating to his drug conviction, this violation did not require suppression of Kennedy’s statements at the perjury trial. The court also rejected Kennedy’s claims that his right to counsel was violated during the grand jury proceeding, or that Mott had committed prosecutorial misconduct.

At trial, the jury was presented with transcripts of Kennedy’s grand jury testimony on February 19 and March 19, 2002, as well as testimonial evidence from Detective Merricks and Special Agent Blakey, among others. On October 1, 2002, the jury convicted Kennedy of four counts of perjury, and the district court later sentenced him to 30 months’ imprisonment.

II.

Kennedy’s primary contention on appeal is that his perjurious testimony should have been suppressed because it was obtained in violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel. Alternatively, Kennedy argues that these violations constituted prosecutorial misconduct amounting to a denial of due process. We address Kennedy’s arguments in turn.

Kennedy first asserts infringements of his Fifth and Sixth Amendment rights. Kennedy argues that while his drug conviction was pending appeal, he retained his privilege against self-incrimination and his right to counsel as to those events forming the basis of his conviction. Since he was both interrogated by detectives and questioned before the grand jury about his drug conviction in the absence of counsel, he asserts that the resulting statements should be inadmissible for any purpose.

As an initial matter, we note that the United States has not attempted to use any of Kennedy’s statements from the pregrand jury interviews. Nor could the United States have used these statements in Kennedy’s trial for perjury, since Kennedy was not under oath during the interviews. Consequently, the violations alleged to have occurred during these pregrand jury interviews are irrelevant to Kennedy’s claims that the grand jury transcripts should be suppressed under the Fifth and Sixth Amendments. We therefore focus here only upon the alleged constitutional breaches during the grand jury appearances.2

A.

First, we agree with Kennedy that the government violated his Fifth Amendment right against self-inerimination during the grand jury proceeding. We have held in no uncertain terms that a defendant’s right to invoke the Fifth Amendment as to events for which he has been convicted extends to the period during which the conviction is pending appeal. See Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984); accord United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991); Frank v. United States, 347 F.2d 486, 491 (D.C.Cir.1965). Because any post-conviction evidence could be used against a defendant if his conviction were to be overturned, the *692risk of coerced self-incrimination remains until the conviction has been affirmed on appeal. See Taylor, 746 F.2d at 222. By-misadvising Kennedy that he had no right to refuse to answer questions relating to his drug conviction before the grand jury, Mott thus violated Kennedy’s Fifth Amendment rights.

Kennedy also alleges violations of his Sixth Amendment right to counsel. The Sixth Amendment prohibits the government from deliberately eliciting incriminating evidence from an accused “after he ha[s] been indicted and in the absence of his counsel.” Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). This right to counsel attaches upon the “initiation of adversary judicial criminal proceedings- — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). And the right to appointed counsel “extends to the first appeal of right.” Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). However, the right to counsel is offense specific. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Thus, “incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” Maine v. Moulton, 474 U.S.’ 159, 180 n. 16, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

It is clear, as the district court found, that Kennedy had no right to counsel for his perjury charges at the time he committed perjury, since no formal proceedings had been initiated against him for those charges. But it is equally clear that Kennedy had invoked his right to counsel for his drug conviction at the time he testified before the grand jury. Because Mott questioned Kennedy about the substance of his drug conviction in the grand jury hearing, outside the presence of counsel, it is at least arguable that he breached Kennedy’s Sixth Amendment right to counsel. See, e.g., Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (“[0]nee adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.”).

However, it is relevant that Kennedy was questioned before a grand jury. The Supreme Court has stated that a grand jury witness “cannot insist, as a matter of constitutional right, on being represented by his counsel,” even where the witness is a target of the investigation. In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957); see also United States v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). Indeed, some courts have held that a grand jury witness who has an appeal pending from a prior criminal conviction has no absolute Sixth Amendment right to have counsel present inside the grand jury room. See In re Grand Jury Subpoena (United States v. McDougal), 97 F.3d 1090, 1093 (8th Cir.1996); United States v. Schwimmer, 882 F.2d 22, 27 (2d Cir.1989). According to these courts, it is sufficient that a witness is allowed to have an attorney present outside the grand jury room and to consult with the attorney before answering any question. See McDougal, 97 F.3d at 1092-93; Schwimmer, 882 F.2d at 27. Here, Mott abided by this procedure and advised Kennedy that he could consult with his attorney outside the room before answering any question. And when Kennedy invoked his right to speak with counsel during the hearing, Mott appropriately respected it by stopping his line of questioning and ultimately continuing Kennedy’s appearance for a month.

The parties have pointed us to no case from either the Supreme Court or this *693circuit deciding the exact dimensions of a defendant’s right to counsel (once attached) when appearing before a grand jury. We need not define precisely the nature or extent of Kennedy’s right to counsel here, however. It is clear that Kennedy’s Fifth Amendment rights were violated. We are willing to assume, purely for purposes of argument, that his Sixth Amendment right to counsel was also violated during the grand jury hearing, either by Mott’s alleged failure to notify Kennedy’s counsel of the proceedings or by the simple fact that Kennedy was subject to questioning about his drug conviction pending appeal outside the presence of his counsel. See Massiah, 377 U.S. at 206, 84 S.Ct. 1199.

B.

The principal question we must answer, then, is whether these asserted violations of Kennedy’s Fifth and Sixth Amendment rights require exclusion of his false statements before the grand jury. That Kennedy’s rights were violated does not necessarily mean that his remedy includes suppression of these statements from his perjury trial. The distinction between rights and remedies, a classic feature of our legal system, is particularly important in the context of the procedural rights afforded to criminal defendants. The sweep of exclusionary rules is far from absolute, as courts have found illegally obtained evidence to be admissible for some purposes. See United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (“As with any remedial device, the application of the [exclusionary] rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.”). Therefore, though Kennedy’s rights were violated, we still must determine the nature of the remedy to which he is entitled, and specifically whether it includes prohibiting the government from using his testimony for the purpose of establishing perjury.

We would not hesitate to find that Kennedy’s statements would be inadmissible at any subsequent proceeding relating to his drug conviction. Mott and the detectives legitimately sought to investigate drug and money laundering activities in Danville, and they reasonably believed that Kennedy possessed information that was relevant to this investigation. But they were not entitled to ignore Kennedy’s constitutional rights in the process. See Maine v. Moulton, 474 U.S. 159, 179-80, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

If it is plain that Kennedy’s statements would be inadmissible in proceedings relating to his drug conviction, we are not prepared to accept Kennedy’s more adventurous claim that his false statements should be excluded from his prosecution for perjury. It is well established that a defendant cannot immunize acts of perjury through suppression of false statements that were taken in violation of the defendant’s constitutional rights. See United States v. Mandujano, 425 U.S. 564, 576-78, 582-84, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (plurality opinion); United States v. Wong, 431 U.S. 174, 178-79, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). In Mandujano, a grand jury witness claimed that his false statements before a grand jury should have been suppressed from his perjury trial because he was never read his full Miranda rights. See 425 U.S. at 569, 96 S.Ct. 1768. Although the Court was divided as to the exact nature of Mandujano’s constitutional rights before the grand jury, the Court was unanimous that violation of those rights — whatever their nature — would not require exclusion of his false statements at his perjury trial. See id. at 576-77, 582-84, 96 S.Ct. 1768 (plurality opinion); id. at 584-85, 607-08, 96 S.Ct. 1768 (Brennan, J., concurring); id. at 609, *69496 S.Ct. 1768 (Stewart, J., concurring). Chief Justice Burger declared for a plurality that “perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings.” Id. at 576, 96 S.Ct. 1768. As such, he observed that the Court’s cases “have consistently — indeed without exception — allowed sanctions for false statements or perjury,” even “where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry.” Id. at 577, 96 S.Ct. 1768.

Just one year later, in United States v. Wong, the Court reaffirmed this signal principle. There, Wong was being prosecuted for perjury based on her testimony before a grand jury, and she claimed that her allegedly false statements should have been suppressed because she effectively had not been warned of her Fifth Amendment privilege. See 431 U.S. at 175-77, 97 S.Ct. 1823. The Court, invoking the rule that “the Fifth Amendment privilege does not condone perjury,” held that the statements were admissible at her perjury trial. Id. at 178-79, 97 S.Ct. 1823. The Court explained that although defendants may find themselves in situations where they must choose between incriminating themselves with the truth or lying, perjury is simply not an option. See id. at 178-80, 97 S.Ct. 1823. “If the citizen answers the question, the answer must be truthful.” Id. at 180, 97 S.Ct. 1823.

The Supreme Court has in a variety of contexts upheld this principle, applied in Mandujano and Wong, that a defendant may not have his act of perjury excused, through suppression of evidence, because of constitutional violations. See, e.g., Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.”); Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969) (“[I]t cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government’s right to ask questions— lying is not one of them.”).

No less unwavering has been this circuit’s commitment to the general principle that perjury is an unacceptable response to asserted constitutional violations. For example, we stated that a defendant accused of committing perjury, though he could have invoked his Fifth Amendment privilege, “had no right to provide false testimony under oath. It is a stalwart principle of American jurisprudence that testifying witnesses have two permissible choices. They can provide truthful testimony or they can invoke the protections of the Fifth Amendment. False testimony is not a permissible option.” United States v. Sarihifard, 155 F.3d 301, 308 (4th Cir.1998) (citation omitted); see also United States v. Shuck, 895 F.2d 962, 965 (4th Cir.1990) (“[The defendant’s] insistence that the prosecutor improperly questioned him affords no justification for his falsehoods.”).

Other circuits have invoked this principle specifically to deny motions to suppress statements from a perjury prosecution that were obtained in violation of a defendant’s constitutional rights. See, e.g., United States v. Bova, 350 F.3d 224, 227-28 (1st Cir.2003) (denying a motion to suppress testimony from a perjury prosecution over a Sixth Amendment right to counsel objection, asserting that “defects in the steps that may bring witnesses to the stand are not adequate reason for tolerating the lies and foregoing punishment”); United States v. Olmeda, 839 F.2d 1433, 1434-37 (11th Cir.1988) (denying a *695motion to suppress grand jury testimony from a perjury prosecution because, even assuming that the witness’s right to have counsel present was violated before the grand jury, “the failure of the government to provide an attorney for her does not excuse perjury on her part”); United States v. Babb, 807 F.2d 272, 277 (1st Cir.1986) (denying a motion to suppress grand jury testimony from a perjury trial over a Fifth Amendment challenge, stating that “the commission of perjury does not fall within the protection afforded compelled self-incriminating statements”).

It is true, as Kennedy argues, that the actual holdings in Mandujano and Wong were limited to the Fifth Amendment. We see no reason to treat violations of the Sixth Amendment right to counsel any differently in this context, however. Lying under oath is no more of an acceptable response to a violation of one’s right to counsel than it is to a breach of one’s right to remain silent. In both instances, the defendant’s remedy does not include the ability to immunize his false testimony from a prosecution for perjury. This is especially true because, as it has in the Fifth Amendment context, the Court has narrowed the remedial scope of asserted Sixth Amendment violations. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (holding that the right to counsel is offense specific); Moulton, 474 U.S. at 180 n. 16, 106 S.Ct. 477 (holding that “incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses”). The use of a defendant’s false statements in a trial for the separate offense of perjury is consistent with the offense-specific nature of the Sixth Amendment.

Indeed, although the Court has not expressly applied the principle of Manduja-no and Wong to an asserted Sixth Amendment violation, Justice Brennan stated in his concurrence in Mandujano that it was unnecessary “to define the exact dimensions of [Mandujano’s] right to counsel since the testimony obtained by the grand jury interrogation was not introduced as evidence at [Mandujano’s] trial on the charge concerning which he was questioned.” 425 U.S. at 607-08, 96 S.Ct. 1768. Thus, he suggested that statements obtained in violation of the Sixth Amendment could be used to establish perjury, just as he concluded in the case of the Fifth Amendment. Moreover, the First Circuit has recently applied the principle of Man-dujano and Wong to reject a suppression motion based on an asserted Sixth Amendment violation. See Bova, 350 F.3d at 227-28.

In view of this authority, we conclude that Kennedy’s false statements are admissible to prove that he committed perjury, even if they were obtained in violation of the Fifth and Sixth Amendments. There is no question that Kennedy was entitled to protest the infringement of his rights. His remedy, however, was not to perjure himself and expect immunity from prosecution. The act of perjury strikes at the core of our system of justice: it pollutes the judicial process, and it breeds disrespect for the sanctity of the oath and the imposition of punishment. See Mandujano, 425 U.S. at 576-78, 96 S.Ct. 1768. It is simply incompatible with the values underlying our criminal justice system that a defendant can lie under oath in order to remedy perceived abuses of his rights.

III.

Kennedy alternatively claims that the breaches of his Fifth and Sixth Amendment rights constituted a violation of due process. The Supreme Court recognized in Mandujano and Wong that a perjury conviction should be overturned *696where the false statements were induced by prosecutorial misconduct so unfair as to amount to a denial of due process. See Mandujano, 425 U.S. at 583, 96 S.Ct. 1768 (plurality opinion); id. at 585, 96 S.Ct. 1768 (Brennan, J., concurring); id. at 609, 96 S.Ct. 1768 (Stewart, J., concurring); Wong, 431 U.S. at 179-80, 97 S.Ct. 1823; see also United States v. Shuck, 895 F.2d 962, 966 (4th Cir.1990).

The basis for Kennedy’s due process claim is his assertion that Mott and the detectives committed prosecutorial misconduct. In order to establish prosecutorial misconduct, Kennedy must demonstrate that Mott’s conduct was improper, and that this misconduct prejudicially affected his substantial rights. See United States v. Derrick, 163 F.3d 799, 807-08 (4th Cir.1998). We review the district court’s factual findings for clear error and its legal conclusions de novo. See United States v. Ellis, 121 F.3d 908, 927 (4th Cir.1997).

There can be little question that Mott’s conduct was improper. As we have held, Mott violated Kennedy’s Fifth Amendment privilege by instructing him that he could not refuse to testify about a drug conviction that was on direct appeal. Moreover, while we have assumed for purposes of argument that Mott violated Kennedy’s Sixth Amendment rights in the grand jury proceeding, it is clear that his right to counsel in the pre-grand jury interview was breached by questions about his drug conviction outside the presence of his attorney. See Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

In Kennedy’s view, these breaches severely prejudiced him. To support this claim, Kennedy points to United States v. Doss, 563 F.2d 265, 278-79 (6th Cir.1977), in which the Sixth Circuit suppressed a defendant’s grand jury testimony because it was found to be the result of prosecuto-rial misconduct amounting to a denial of due process. Like the defendant in Doss, Kennedy asserts, he would not have testified before the grand jury but for the violations of his rights, and therefore he would not have perjured himself. Thus, Kennedy argues that his false statements should be suppressed.

We disagree. First, Doss is distinguishable from the present case. In Doss, the grand jury witness had already been indicted for a substantive offense by the grand jury in front of which he was testifying, but the prosecution concealed that fact from him. See 563 F.2d at 267. The prosecutor then proceeded to question the witness about the substance of his offense. See id. at 271. The Sixth Circuit found that “the government deliberately and purposefully employed the grand jury in questioning an already indicted defendant about the crime for which he was soon to be tried.” Id. The Doss court’s holding rested upon its view that the prosecutor abused the grand jury process by using it as a mere discovery tool for obtaining evidence against the defendant. See id. at 276-77.

Here, by contrast, there is no evidence that Mott questioned Kennedy simply to further the government’s prosecution of Kennedy. The government reasonably believed that Kennedy had information that would be helpful to the grand jury’s investigation of other individuals and crimes. See Shuck, 895 F.2d at 966. And Kennedy was not even a target of the investigation. Thus, Doss provides no help to Kennedy’s due process claim. See United States v. Schwimmer, 882 F.2d 22, 26 (2d Cir.1989) (“Unlike Doss, we cannot conclude that the government’s actions were taken for the impermissible purpose of gathering evidence against the appellant-witness.”).

Notably, in rejecting Kennedy’s claim, the district court found that “there is no *697indication of trickery or deception on the part of the government.” It observed that although Mott failed to abide by all of Kennedy’s constitutional rights, he properly advised Kennedy about his right to speak with counsel outside of the grand jury room. And Mott appropriately respected Kennedy’s invocation of counsel by passing over questions and ultimately by continuing Kennedy’s appearance. The district court therefore concluded that Kennedy could not establish prosecutorial misconduct — a finding that the dissent neglects even to mention.

Two additional factors are important here. First, Mott repeatedly warned Kennedy that he was under oath and that lying would constitute perjury. Mott even gave Kennedy the opportunity to correct his testimony at the end of his March 19 appearance. It is abundantly clear in light of all these warnings that Mott was not trying to trick Kennedy into perjuring himself. See Shuck, 895 F.2d at 966. Second, the fact that Kennedy consulted his attorney before his second grand jury appearance — and prior to perjuring himself — further undercuts his claim. Inherent in Kennedy’s due process argument is the notion that the Fifth and Sixth Amendment violations were so pervasive that they led him to perjure himself. This alleged “but-for causation,” however, is difficult to maintain in light of the fact that Kennedy consulted with his attorney prior to perjuring himself. See id. at 966-67.

In view of these facts, we agree with the district court’s finding that there was no prejudicial prosecutorial misconduct. In Shuck, we held that no such misconduct was present where the prosecutor responded to a defendant’s invocation of his Fifth Amendment privilege in a grand jury proceeding by badgering the witness with repeated questions about the subject matter for which the privilege was invoked. See 895 F.2d at 966-67. The present case is less difficult to decide, because Mott and the detectives, despite their incorrect assessments of Kennedy’s rights, never badgered Kennedy or coerced him into testifying. Suppression of false statements from a perjury trial under a due process rationale — an exception to the general principle established in Mandujano and Wong — should be a rare occurrence. Otherwise, we risk subverting the sensible limiting principle to the exclusionary rule by treating all violations of the Fifth and Sixth Amendments as violations of due process. See United States v. Bova, 350 F.3d 224, 229 (1st Cir.2003) (“Perhaps in some extreme situation a prosecutor’s interference with the right to counsel might seem so egregious and functionally related to the perjury as to provide an arguable case for ... a sanction [of exclusion].... The naked perjury in this case provides no encouragement to plough new ground.”). In short, Kennedy’s due process claim must fail.

IV.

Kennedy next argues that there was insufficient evidence for the jury to find that his statements were material to the grand jury’s investigation. Although Kennedy’s drug distribution was not the focus of the grand jury’s investigation, the fact that his statements bore on the drug activities of three potential targets — and affected the grand jury’s revelation of other parties involved in drug dealing in Danville — made them material. His statements, in short, had the potential to “impede the grand jury’s capacity to attain an accurate and prompt resolution of the matter under consideration.” United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir.1998). We accordingly reject Kennedy’s claim that there was insufficient evidence to establish materiality.

*698V.

Kennedy’s final contention is that the district court erred in failing to give a requested jury instruction on the defense of perjury entrapment. We review a district court’s decision whether to give a jury instruction for abuse of discretion. See United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.1992).

Kennedy attempted to assert a perjury entrapment defense, and he requested a jury instruction to that effect. The defense of entrapment applies where the government induces a person to commit a crime and that person had no predisposition to engage in the criminal act. See Mathews v. United States, 485 U.S. 58, 62-63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). To establish inducement, a defendant must show that the “government acted in an excessive manner that would prompt a reasonably firm person to commit a crime.” Sarihifard, 155 F.3d at 308. In the context of a perjury charge, “entrapment occurs when a government agent coaxes a defendant to testify under oath for the sole purpose of eliciting perjury.” Id.

The district court rejected Kennedy’s request for a jury instruction on perjury entrapment. It found that Mott had a legitimate purpose in bringing Kennedy before the grand jury. It also noted that Mott made every effort in the March 19 proceeding to get Kennedy to tell the truth and that he repeatedly warned Kennedy throughout both appearances of the consequences of perjury. Accordingly, the district court concluded that there was no “evidence from [Kennedy] on which to predicate an entrapment instruction.” We find no reason to disturb this ruling.

VI.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

. A panel of this Court later affirmed Kennedy’s drug conviction and sentence on September 23, 2002. See United States v. Robert Kennedy, Jr., No. 02-4072 (4th Cir. Sept. 23, 2002).

. The asserted violations of Kennedy's constitutional rights during the pre-grand jury interviews are relevant, however, for his due process claim based on prosecutorial misconduct. See infra pp. 695-96.