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UNITED STATES v. KAHAN

decided: February 25, 1974.

UNITED STATES
v.
KAHAN



ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Author: Per Curiam

[ 415 U.S. Page 239]

Respondent, a former Immigration inspector, was convicted by a jury in the District Court of numerous counts under a multiple-count indictment; the conviction covered 20 counts of improperly receiving gratuities for official acts, in violation of 18 U. S. C. § 201 (g), and one of perjury before the grand jury, in violation of 18 U. S. C.

[ 415 U.S. Page 240]

     § 1623, arising out of a scheme to defraud nonresident aliens and the Immigration and Naturalization Service. The Court of Appeals reversed respondent's conviction and remanded the case for retrial. 479 F.2d 290 (CA2 1973). Respondent's motion to proceed in forma pauperis in this Court, and the petition for a writ of certiorari, are granted. The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for reinstatement of the judgment of conviction.

At respondent's arraignment, counsel was appointed under the Criminal Justice Act of 1964, 18 U. S. C. § 3006A (b), to represent him after he requested the appointment and stated that he was without funds. In response to a direct question as to whether he had funds to employ an attorney, he failed to disclose that he had access to and control of four savings accounts in which he had deposited approximately $27,000 during 1970 and 1971,*fn1

[ 415 U.S. Page 241]

     and from which he made frequent withdrawals immediately subsequent to the arraignment. The accounts were apparently established by respondent in so-called "Totten trusts" for his children as the intended donees; under New York law these trusts were revocable at respondent's will. In re Totten, 179 N. Y. 112, 71 N. E. 748 (1904). The deposits to these undisclosed accounts aggregated more than the $25,000 which respondent reported as his total legitimate income on his tax returns for 1970 and 1971, and evidence of the deposits was admitted at trial as supporting the inference that he improperly received the gratuities as was charged. As part of the Government's case in chief the District Court admitted evidence of respondent's statements to the court as to his lack of funds.*fn2 The statements were admitted as false exculpatory statements evincing respondent's consciousness that the bank deposits were incriminating, and as evidence of willfulness in making statements before the grand jury with knowledge of their falsity.

 The Court of Appeals held that the admission of respondent's false statements violated his Fifth Amendment privilege against compulsory self-incrimination and

[ 415 U.S. Page 242]

     his Sixth Amendment right to counsel because in its view the "ultimate truth of the matter asserted in the pretrial request for appointed counsel is of no moment. See Simmons v. United States, 390 U.S. 377." 479 F.2d, at 292. The Court of Appeals cited United States v. Branker, 418 F.2d 378 (CA2 1969), for its application of Simmons v. United States, 390 U.S. 377 (1968), to the assertion of the Sixth Amendment right. The Court of Appeals' reliance on Simmons misconceives the thrust of that holding.

In Simmons one of the defendants, in an attempt to establish standing to move for suppression of a suitcase containing incriminating evidence seized by the police, testified at the pretrial suppression hearing that the suitcase was similar to one he owned. The motion to suppress was denied, and the Government used the defendant's testimony against him in its case in chief. Viewing the testimony as an "integral part" of the claim for exclusion, the Court held its use impermissible because it conditioned the exercise of what the defendant "believed . . . to be a valid Fourth Amendment claim" on a waiver of the constitutional privilege against compulsory self-incrimination. Id., at 391, 394.

To establish standing to move for suppression of evidence assertedly illegally seized, the claimant must show the kind of interest in that evidence set forth in Brown v. United States, 411 U.S. 223, 229-230 (1973), which would necessarily be incriminating should the motion fail and the defendant's interest therein be introduced. The need to choose between waiving the Fifth Amendment privilege and asserting an incriminating interest in evidence sought to be suppressed, or invoking the privilege but thereby forsaking the claim for exclusion, creates what ...


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