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UNITED STATES v. HUBBARD

June 1, 1979

United States of America
v.
Mary sue Hubbard et al.



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

On April 25, 1979, this Court issued an opinion resolving numerous pretrial motions and providing some background to this case in which eleven defendants are named in an indictment charging two conspiracies, obstruction of justice, illegal electronic eavesdropping, several burglaries, and thefts of government documents, and false declarations before a grand jury. United States v. Hubbard, 474 F. Supp. 64 (D.D.C. 1979). At this time, the Court will rule on a series of motions filed by the defendant Gerald Bennett Wolfe.

 I. BACKGROUND.

 In the current indictment, Wolfe is named in seventeen counts. In Counts Three through Eight, Wolfe and others are charged with burglarizing the offices of various federal officials. In Counts Nine through Thirteen, Wolfe and others are charged with stealing government documents from these offices. In Count Twenty-three, Wolfe and others are charged with conspiring to obstruct justice. In Count Twenty-four, Wolfe and others are charged with obstructing the due administration of justice. In Counts Twenty-five through Twenty-eight, Wolfe alone is charged with knowingly making false material declarations to the Grand Jury investigating the charges brought in this indictment.

 II. WOLFE'S MOTION TO DISMISS ALL COUNTS IS WITHOUT MERIT.

 Wolfe has moved to dismiss all counts of the indictment in which he is named on the grounds that (1) the charges violate his plea agreement with the government; (2) the government has violated his fifth amendment rights; (3) the government has equitably immunized him from prosecution; (4) the government has entrapped him into giving false testimony before the Grand Jury; and (5) the government has improperly subjected him to multiple prosecution and punishment.

 A. The Indictment Does Not Violate the Plea Agreement.

 On June 30, 1976, the defendant Wolfe was arrested and charged with violating section 499 of Title 18 of the U.S.C. for using a falsely made identification card to enter the United States Courthouse in Washington, D.C. The government offered to settle the matter if Wolfe would plead to a misdemeanor and cooperate with the government's continuing investigation. Rather than cooperate, Wolfe rejected the offer and pleaded guilty to a felony the misuse of a government seal in violation of section 1017 of Title 18 U.S.C. In exchange for his plea to the felony, the government "agreed not to charge Mr. Wolf (Sic ) with any other possible violations arising out of three separate entries into this courthouse with another man in May and June of last year using a false and fraudulently obtained Internal Revenue I.D. card." Plea Transcript at 2; See id. at 12.

 The defendant contends that Counts Three through Thirteen and Twenty-three and Twenty-four of the current indictment violate his plea agreement. Count Three charges Wolfe and others with violations of the District of Columbia burglary statute, 22 D.C.Code § 1801(b), in the office of the Internal Revenue Service (hereinafter, "IRS") Exempt Organization Division in January of 1976. Count Nine charges Wolfe and others with the theft of federal property in violation of 18 U.S.C. § 641 in the same office as Count Three in June of 1975. Counts Four and Ten charge Wolfe and others with burglary of and theft from the office of the IRS Exempt Organization Division in March of 1976. Counts Five and Eleven charge Wolfe and others with burglary of and theft from another office of the IRS Exempt Organization Division later in March of 1976. Count Six charges Wolfe and others with the burglary of the IRS Identification Room in March of 1976. Counts Seven and Twelve charge Wolfe and others with burglary of and theft from the Office of the Associate Deputy Attorney General of the United States Department of Justice in April of 1976. Counts Eight and Thirteen charge Wolfe and others with the burglary of and theft from the IRS Office of International Operations in April of 1976. Count Twenty-three charges Wolfe and others with entering into a conspiracy to obstruct the investigation of the burglaries and thefts. County Twenty-four charges Wolfe and others with obstructing justice in violation of section 1503 of Title 18.

 Each of these charges concerns offenses which did not occur in the courthouse, did not occur in the months of May or June of 1976, and are completely distinct from the offenses encompassed in the agreement entered into between the government and the defendant. The defendant's contention that there was a mutual understanding that he would be immune from further prosecution for all such offenses is not supported by the record. Before Judge Flannery the defendant indicated that the only promises made to induce his plea were immunity for the three courthouse incidents in May or June of 1976. Plea Transcript at 12. Accordingly, the present indictment does not violate the agreement between the government and Wolfe.

 B. The Indictment Should Not Be Dismissed For Fifth Amendment Violations.

 Wolfe's second contention in support of his motion to dismiss all counts of the indictment is that the government violated his fifth amendment rights before the Grand Jury. In support of this contention, the defendant relies heavily on a remark of the Assistant United States Attorney which is significant only when quoted out of context. However, in the context in which the statement was made, it is clear that the assistant was simply telling the defendant that he no longer had a fifth amendment right with respect to the three incidents involved in the plea agreement. Before the Grand Jury Wolfe was told that: "You are here to give your truthful responses to our questions involving a matter that this grand jury is investigating. And as a citizen of the United States and having entered your plea of guilty to one of these instances and having the government bargain away in the plea agreement, it's (Sic ) right to charge you with everything it could charge you with as far (Sic ) those instances are concerned. You no longer have a Fifth Amendment privilege; do you understand that?" Grand Jury Transcript at 17. *fn1"

 Throughout his appearance before the Grand Jury, Wolfe had ready access to his attorney who was immediately outside the room in which his testimony was being taken. He was warned that he could be charged with perjury if he answered falsely. Grand Jury Transcript at 10-11. He was instructed that if he had any questions concerning his rights he could consult with his attorney. Grand Jury Transcript at 13. In fact, at one point, Wolfe halted the proceedings to confer with his counsel and returned and proceeded to answer a question. Grand Jury Transcript at 220-21. At no time did Wolfe invoke the fifth amendment and refuse to answer a question during his appearance before the first Grand Jury. *fn2" Accordingly, the Court finds that, based on the totality of the circumstances, the will of the ...


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