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.
1Due 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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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:
2The 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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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 crossexamination 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
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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 incourt 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 policedominated 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
3The 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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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
4Interestingly, 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.

5We 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 selfincriminating questions. See United States v. Washington, 431

U.S. 181, 183 n.2 (1977).

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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 Mirandalike 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
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 selfinculpation — and this holds true even if he is confronted with

queries that the government reasonably may expect will elicit

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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
incriminating answers. See Murphy, 465 U.S. at 429.

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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.