Moore and Anderson, Circuit Judges, and Weinfeld, District Judge.*fn*
WEINFELD, District Judge:
Hyman Winter appeals from a judgment of conviction entered upon the verdict of a jury which found him guilty of perjuring himself while testifying under oath before a Federal grand jury.*fn1 He was sentenced to ninety days imprisonment and placed on probation for a period of twenty-one months. He seeks reversal of the conviction and dismissal of the indictment on the grounds that: (1) his testimony before the grand jury, having been compelled under a subpoena when he was a subject of inquiry, was obtained in violation of his constitutional rights to counsel and against self-incrimination; (2) even if the Government's conduct in summoning him before the grand jury did not invade his constitutional rights, it was so unfair as to warrant invocation of this Court's supervisory power over the administration of criminal justice; and (3) the question which he was convicted of answering falsely was not material to the grand jury inquiry and hence furnished no basis for a perjury prosecution.
The appellant was a construction supervisor in the service of the Federal Housing Administration. In December 1962 a grand jury in the Eastern District began an extensive investigation into bribery, graft, extortion and other corrupt practices allegedly involving FHA employees and local builders. During the course of the inquiry approximately 100 witnesses, most of them builders and FHA personnel, had been called before the grand jury. Fifty of the builders testified they knew appellant and all but six denied they had ever given him money. These six witnesses granted that payments were made by them to Winter, although some said these were not to influence his official action, but were more in the nature of gratuities. It was after these witnesses had testified that appellant was subpoenaed.
Winter first appeared before the Assistant United States Attorney in charge of the inquiry, who informed him that he was a subject of the grand jury investigation, advised him of his right against self-incrimination, and presented him with a "waiver of immunity" which he acknowledged he understood and agreed to execute. When the Assistant asked whether he had accepted bribes from builders, Winter vehemently denied he had ever taken "a crooked penny in my life." He then went before the grand jury, as Winter himself testified, "to answer questions about myself and about bribes." The foreman advised him that he was the "subject of an investigation" into his "conduct" as an employee of the FHA and that:
"I wish to further advise you that you are a prospective defendant, and that anything that you might say before the Grand Jury could be used against you at a later proceeding or proceedings. * * * You need not testify as to those matters which may tend to incriminate you, that is to say, you cannot be compelled to testify against yourself, as provided in the Fifth Amendment to the United States Constitution. * * * That is not to say, however, that you cannot testify before the Federal Grand Jury if you desire to do so. * * * Nor is it to say that you can refuse to testify as to matters that would incriminate others than yourself. * * * But, as I have already stated to you, if the matters you would testify to would tend to incriminate yourself as well as others, you can refuse to testify and can assert your rights under the Fifth Amendment."
Indicating that he understood the foregoing advice and the nature of a "waiver of immunity" which he was again asked to execute, he signed the "waiver."
Appellant then testified, at no time asserting his privilege against self-incrimination. He was shown a list of the fifty builders who had testified they knew him, which included the six who swore they had given him money at various times. He was asked whether he knew what a "gratuity" was and responded it was "some sort of tip or gift * * * anything that has value," including money and liquor. He denied that he had ever accepted gratuities from anyone on the list or from any other builder. He also denied he had received money from a builder for the purpose of influencing his official decisions or actions. He was then questioned as to whether any builder on the list "did dislike you or have any grievance against you to the extent that he would bear false witness against you," or "would testify falsely against you or against any other Federal employee." He responded that, except for one Richard Wallen, who had previously complained to Winter's superiors about "shakedowns," no builder had such a motive and none had ever threatened to "fix him." Winter specifically denied receiving a case of twenty-five year old Scotch whisky or $100 per week from any builder, or borrowing from or lending to anyone in the industry. He asserted ignorance of any arrangement whereby FHA inspectors allegedly extorted a set fee for each stage of the inspection process.
Finally, he was asked the question which formed the basis for the fifth count, the only one submitted to the jury*fn2 -- "Is it your testimony, then, that you have never taken money at any time from any builder for any reason whatsoever?" Winter replied, "That is correct, sir."
Six weeks after Winter's testimony and nearly seven months after commencement of the inquiry, the grand jury returned bribery indictments against nine or ten FHA employees, including Winter, and perjury indictments against Winter and Richard Wallen, the builder who had once accused Winter, but then sought to retract the charge.*fn3 With respect to Winter the Government chose to proceed to trial on the perjury indictment, obtaining the conviction which forms the basis of this appeal.
It is beyond question that appellant was fully and adequately advised of his right against self-incrimination. But the record does not indicate that he was advised, either by the Assistant United States Attorney or by the grand jury, of a right to counsel. Appellant contends that inasmuch as he was already a "prospective" or "de facto" defendant*fn4 when he was subpoenaed to appear before the grand jury, his testimony was procured not only in violation of his Sixth Amendment right to counsel, but also in violation of his Fifth Amendment right against self-incrimination, notwithstanding that he was fully advised of the latter. Testimony so elicited, the argument runs, cannot be used as a predicate for a perjury indictment, even if the witness uttered perjurious statements.
Short shrift may be made of appellant's claim that the self-incrimination clause of the Fifth Amendment prohibits the Government from ever summoning before a grand jury one who has become a target of inquiry and is a "potential" defendant. Whatever may be the rule in the State of New York,*fn5 the Fifth Amendment does not proscribe the practice here inveighed against. Repeatedly this Court has so ruled,*fn6 declining to equate the position of a "potential" defendant called before a grand jury with that of one already on trial. Whether or not recent constitutional developments have drawn into question particular language or authorities cited in these decisions*fn7 their basic force remains unimpaired.
To suggest that once an individual is named by witnesses before a grand jury under circumstances which may lead to his indictment he thereby automatically gains immunity from subpoena would denude that ancient body*fn8 of a substantial right of inquiry. This grand jury was engaged in a broad investigation of alleged bribery and corruption of FHA officials. It had the right, and indeed the duty, to follow leads wherever they pointed, to determine whether bribery and other illegal practices had been engaged in and, if so, what builders and officials were involved and how far up the official ladder the alleged wrongdoing extended. It had a legitimate interest in summoning Winter before it. Moreover, it was not bound to accept at face value the testimony of the six builders and other previous witnesses, and the evidence indicates that when Winter was subpoenaed it had not yet decided to indict. As the foreman testified, the jurors wanted to "Let him [Winter] answer and find out whether it was true or not." Winter well might have persuaded the grand jury of his truthfulness or that the testimony of the six builders furnished an inadequate basis upon which to return a True ...