On May 2, 1973, appellee Mandujano appeared as a witness before the DALE (Drug Abuse Law Enforcement) Grand Jury, pursuant to a subpoena. The following warnings were given Mandujano:
“Q: Now you are required to answer all the questions that I ask you except for the ones that you feel would tend to incriminate you. Do you understand that ?
A: Do I answer all the questions you ask.
Q: You have to answer all the questions except for those you think will incriminate you in the commission of a crime. Is that clear?
A: Yes, sir.
Q: You don’t have to answer questions which would incriminate you. All other questions you have to answer openly and truthfully. And, of course, if you do not answer those truthfully, in other words, if you lie about certain questions, you could possibly be charged with perjury?”
Mandujano was further advised that he could have an attorney outside the grand jury room; however, he was not told that he had a right to have appointed counsel outside the grand jury room, that what he said could be used against him in later proceedings, and that he had a right to remain silent. 1
A federal narcotics agent had reported that in March, 1973, he offered Mandujano money for the purchаse of heroin and gave him $650 for the attempted purchase. The government attorney who questioned Mandujano before the grand jury testified at the motion to suppress that he had discussed with the agent the circumstances of this attempted buy in preparation for Mandujano’s appearance before the grand jury. Evidence taken on the motion to suppress also showed that the government attorney requested suggestions for witnesses to be supoenaed before the grand jury from the agent who had dealt with Mandujano and thе agent recommended calling Mandujano and then reported to the attorney how the actual attempt had occurred.
Mandujano was asked the following questions, inter alia, by the government attorney before the grand jury: .
“Q: Have you ever talked with anybody about selling it? Has anybody tried to buy heroin from you? Have you tried to get heroin for them in order to sell to them ?
A: No, sir.
Q: Are you sure of that ?
A: Yes, sir.
Q: In other words, no one has ever come up to you and wanted to buy heroin ?
A: No, sir.
*1052 Q: And you have never told anybody that you would try to get heroin to sell to them ?
A: No, sir.
Q: Now, you can say here today that you have not discussed the sale of heroin with anybody in the last year ?
A: I don’t understand you, sir.
Q: Have you talkеd to anybody about selling heroin to them during the last year?
A: No, sir.
Q: Are you sure about that ?
A: I just, you know, I discuss it, you know, when we buy it, you know, to fix it just, you know.
Q: Has anyone ever asked you if they could buy an ounce of heroin or more from you ?
A: No, sir.
Q: Let me ask you once again Mr. Mandujano, have you ever talked to anybody about selling them heroin in the last year?
A: No, sir.
Q: No one has ever given you any money—
A: No.
Q: —to go buy them heroin ?
A: No, sir.
Q: In other words, if you had $650 right now—
A: Yes, sir.
Q: —Do you think you would be able to purchase an ounce of heroin? . . .”
This interrogation tracked the exact facts of the actual contact between the federal narcotics agent and Mandujano.
The appellеe was subsequently indicted in count 1 under 21 U.S.C.A. § 846 for attempt to distribute one ounce of heroin on or about the 29th of March, 1973, and in count -2 under 18 U.S.C.A. § 1623 for making false representations. The perjury count was based on Mandujano’s denial before the grand jury of any attempt to obtain or sell heroin or any solicitation to do so.
The district court granted appellee’s motion to suppress his testimony before the grand jury, finding that appellee was a virtual or putative defendant in custody under the
Miranda
2
decision, and therefore should have been given all
Miranda
warnings. United States v. Mandujano,
I. “PUTATIVE OR VIRTUAL” DEFENDANT
Given the nature of the investigation and the questions tendered by the government attorney, the district court held, and this Court agrees, that full Miranda warnings should have been accorded Mandujano who was in the position of a virtual or putative defendant. The district court aptly portrayed the circumstances warranting the fact finding that Mandujano was a virtual or putative defendant during his appearance before the grand jury:
“The government maintains that neither case was considered for presentation to the grand jury prior to 'the testimony of the defendants before that body, and that both files had been closed following the contact between the defendants and the law enforcement officers; nevertheless, the facts of the case belie the government’s protestations of innocent intent with respect to the possibility of future prosecutions. The special attornеy who had conducted the questioning testified that he was well aware of the previous contact with the defendants in attempts to buy from them, as well as the exact circumstances involved in each attempted *1053 buy. The transcript of the grand jury proceedings reveals deliberate and careful attention to questions which specifically delved into the facts concerning these contacts between the defendant and government agents. The special attorney was aware that no case had been made, and thоugh this Court does not presume any improper motives on the part of the government agents or the special attorney, it strains credulity to suggest that the special attorney did not have one eye on a possible prosecution of the defendants. The government had in fact already attempted to make a case against each defendant. Note too that each defendant, immediately after denying any contact about an attempted sale, was asked in the very next question about the validity of that answer . . . Considering the totality of the circumstances in this case, the questioning of the defendants before the grand jury smacks of entrapment. Moreover, given the fact that the investigatory files involving the attempts to buy from both defendants had been closed, the questions posed presented a high likelihood that the answers provided by the defendants would furnish material for further action on the part of the government. If the defendants admitted that they had offer to buy heroin for the undercover agent who approached them, the government cоuld possibly have used such an admission in its case-in-chief in connection with the attempted sale. See United States v. Leighton,265 F.Supp. 27 (S.D.N.Y.1967), cert. denied,390 U.S. 1025 ,88 S.Ct. 1412 ,20 L.Ed.2d 282 (1968); United States v. Montos,421 F.2d 215 (5th Cir.), cert. denied,397 U.S. 1022 ,90 S.Ct. 1262 ,25 L.Ed.2d 532 (1970). The denial by defendants that they had conversations about procuring heroin for the officers left them open to the consequent indictments for perjury. Actually, therefore, their only safe harbor would have been to remain silent, and this option was, in effect, denied to them.” United States v. Mandujano,365 F.Supp. at 158-159 (W.D. Tex.1973). 3
We construe the foregoing statements by the trial court to be findings that the government had focused upon Mandujano аs someone whom the government had knowledge of having committed a crime, as a person whom the government had planned to indict as it had one eye on prosecution, and against whom it was gathering incriminating evidence. Also the discussion indicates that the trial court found that when Mandujano was brought into the grand jury room, the government then knew that an affirmative answer to questions put to him would amount to a confession of guilt of trafficking in heroin.
Although this Court has recently pretermitted the question of the scope of
Miranda
in the context of а putative defendant before a grand jury investigation, United States v. Morado,
In United States v. Morado, supra at 173, we have already recognized the force of the argument that if an investigation has passed beyond the stage of a general inquiry and has focused upon the defendant, then the defendant would be in the position of a virtual defendant:
“Without intimating whether this circuit will agree with this ‘virtual defendant’ perspective, we note that its emphasis is upon the same factor we have considered to be of prime importance in determining whether or not a man is ‘in custody’ as that term is used in Miranda: ‘has the focus of the investigation centered upon him?’ United States v. Phelps,443 F.2d 246 (5th Cir. 1971); United States v. Akin,435 F.2d 1011 (5th Cir. 1970); United States v. Montos,421 F.2d 215 (5th Cir. 1970); Bendelow v. United States,418 F.2d 42 (5th Cir. 1969); Windsor v. United States,389 F.2d 530 (5th Cir. 1968). If the investigation in the case at bar had passed beyond the stage оf being a general inquiry into an unsolved crime of a suspected conspiracy, and had focused upon Solis as a defendant whom the government planned to indict and against whom it was gathering incriminating evidence, we would face the necessity of embracing or rejecting this rule.”
The language in Morado is particularly applicable in the case at bar because this investigation clearly had passed beyond the stage of general inquiry into an unsolved crime, and had focused upon the defendant as someone whom the government had plannеd to indict as it had one eye on prosecution, against whom it was gathering incriminating evidence, and against whom indictments were actually returned. 6 The fact that the questioning attorney immediately pounced upon Mandujano’s denial that he had been contacted about the sale of heroin, indicated a clear and direct focus upon Mandujano as a future defendant. Moreover, the government attorney even mentioned the precise figure — $650— which had purportedly been given to Mandujano by the federal narcotics agent, plainly demonstrating that the previous transaction was clearly in the attorney’s mind.
Also there was no basis for the perjury count of the indictment until after Mandujano’s grand jury appearance. *1055 When the government attorney, aware of the alleged prior transaction, asked Mandujano about any previous heroin solicitation or sale, he knew that any truthful answer by Mandujano would be incriminating and therefore protected by the Fifth Amendment which Mandujano was entitled to plead. Thus, if the attorney proceeded to quеstion actually anticipating an answer, he must have known that the response would require Mandujano to confess to a crime or commit perjury. The likelihood of Mandujano confessing a crime before the grand jury was certainly de minimis. The inference is easily drawn that the attorney’s questioning was primarily baiting Mandujano to commit perjury. As perceived by the district court this case “smacks” of entrapping Mandujano to incriminate himself or commit perjury. His only “safe harbor” was to remain silent — a right of which the government failed to inform him.
The gоvernment asserts that since Mandujano negotiated for a heroin sale with the federal narcotics agent which did not result in a distribution due to appellee’s being unable to procure heroin from his sources, therefore the government agents concluded that appellee must have had knowledge of a source for heroin. Consequently he was called before the grand jury only to obtain intelligence regarding known heroin sources, consistent with the purposes of the grand jury, and not in an attempt to obtain incriminating or pеrjurous statements from him. Nevertheless, as concluded by the district court, “the facts of the case belie the government’s protestations of innocent intent with respect to the possibility of future prosecution.” Moreover, the questions tendered by the government attorney simply could have inquired whether Mandujano knew any heroin dealers rather than focusing on whether anyone had ever solicited heroin from him.
Moreover, the warnings that were given were not adequate advisement even of the appellee’s Fifth Amendment rights agаinst self-incrimination. As pointed out by the trial court, the questioning attorney “stressed not the right to remain silent, but the requirement that the defendant answer all the questions put to him, with limited exceptions. He did not stress the alternative of the defendant remaining silent in the face of a potentially [here certainly] damaging question.”
Under the circumstances of this case, this Court agrees that Mandujano was a putative defendant in custody and was entitled to Miranda warnings.
II. REMEDY FOR FAILURE TO GIVE MIRANDA WARNINGS
The more difficult issue here is whether the usual remedy for failure to give constitutional warnings, i. e., suppressiоn of the testimony, can ever be employed in a situation where the testimony itself amounted to perjury.
Appellant relies heavily on United States v. Orta,
“It is clear that the protection of the Fifth Amendment relates to crimes alleged to have been committed before the time when the testimony is sought. A witness, ignorant and uninformed of his constitutional rights, would not intelligently waive them if he testifies, thinking that he was compelled to do so. He might answer truthfully and thereafter assert the constitutional guaranty. Under no circumstances, however, could he commit perjury and successfully claim that the Constitution afforded him protection from prosecution for that crime. As said in Glickstein v. United States, 1911,222 U.S. 139 , 142,32 S. Ct. 71 , 73,56 L.Ed. 128 ; * * *1056 the immunity afforded by the constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury.’
“The only debatable question is one of the supervision of the conduct of Government representatives in the interest of fairness. In United States v. Scully, 2 Cir., 1955,225 F.2d 113 , 116, the Court of Appeals for the Second Circuit held:
‘ * * * the mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a Grand Jury.’
“That holding is applicable to the present record. There is no showing that the Grand Jury before which Orta testified was seeking to indict him or any other person already identified.” (Emphasis supplied).
Although clearly holding that a mere “witness” uninformed of his rights before the grand jury, even one concerning whom there is a “mere possibility” of indictment, may not commit perjury with impunity, the Orta court sounded the important caveat that the question of supervision of the conduct of government representatives in the interest of fairness may be debatable in some circumstances. The language in the Orta opinion, supra at 314,
“There is no showing that the Grand Jury before which Orta testified was seeking to indict him or any other person already identified,”
highlights the important distinction between Orta and this case, demonstrating the wisdom of the caveat concerning the court’s duty of supervision “in the interest of fairness.” The instant case does not' involve a mere “witness,” but a рutative, and subsequently actual, defendant. The facts showed that there was a mere possibility that a witness may later be indicted, but that the government deliberately subpoenaed a putative defendant before the grand jury primarily for the purpose of obtaining incriminating or perjurous statements against him and mainly in order to elicit evidence helpful in indicting him. Several decisions of this Court, such as Orta, Daniels, Glaseo, Stassi and Wilcox, 7 have involved perjurous testimony and the adequacy of the instruction as to constitutional rights; however, the precise issue of a putative defendant who was primarily called before the grand jury for the purpose of obtaining incriminating or perjurous statements and mainly in order to elicit evidence helpful in indicting him has not been presented to this Court. Although there are factually overlapping features of the cases to be discussed, we have concluded that the totality of circumstances in the case at bar calls clearly for this Court to affirm the district court’s suppression of Mandujano’s testimony before the grand jury.
As heinous as the crime of perjury is under our law, and аs correct as the Orta principle is, that a witness uninformed of his constitutional rights generally should not be afforded a license to commit perjury, under our law, we simply cannot ignore the unfairness in baiting this defendant before the grand jury and overlook the principle that the Fifth Amendment must always be as broad as the mischief against which it seeks to guard. In order to deter the prosecuting officers from bringing a putative or virtual defendant before the grand jury, for the purpose of obtaining incriminating or perjurous testimony, the accused must be adequatеly apprised of his rights, or all of his testimony, incriminating and perjurous, will be suppressed. In order to combat these methods the Fifth Amend *1057 ment privilege must be fully honored in this situation. This end entails only slight erosion of the general principle announced in Orta. This deviation in the situation of a putative defendant uninformed of his Miranda rights and called for the purpose of obtaining incriminating or perjurous testimony is necessary to counteract the fundamental unfairness of allowing a defendant to be faced by such a Hobson’s choice.
In distinguishing Orta, we distinguish the other cases, cited above rendered after the date of Miranda, which reaffirmed the Orta principle (pre-Miranda), as none of these decisions concerned the situation of a putative defendant entitled to, but unadvised of, his Miranda warnings. The problem here is the problem adverted to in the dictum in Orta, and not the problem adjudicated by the Orta holding or by any other decisions of this Court. As previously indicated, the grand jury was not seeking to indict Orta and Orta was not a putative defendant entitled to Miranda warnings. Orta was an ordinary witness entitled to a general Fifth Amendment warning.
The district court apparently determined that in view of the subsequent holding in
Miranda,
there was now an essential difference between a
prosecution
for perjury when there have been no
Miranda
warnings and the
suppression of testimony
under the exclusionary rule, when such warnings have not been given, i. e., that although the indictment could not have been dismissed, the testimony could nonetheless have been suppressed. This distinction would be a facile solution to the difficult question here, were it not for the language in United States v. Glasco,
Furthermore, the two cases cited in Glaseo, Wilcox and Stassi, also involved factual circumstances so dissimilar from those of the instant case that they need not be discussed. Both cases quoted from the Orta opinion.
One final case, United States v. Daniels,
We reiterate that the Orta principle that witnesses uninformed of their constitutional rights should not be allowed a license to commit perjury continues with full force. We only make a slight inroad that where a totally unfair procedure is put in train — as when there is a factual determination that a person who is subpoenaed before the grand jury and questioned about an alleged crime, was already known to the satisfaction of the prosecuting agency prior to the grand jury appearance to be guilty of that precise crime — , elemental fairness requires that such a person is under such compulsion as to require that he be given the Miranda warnings, and that failure to do so must require suppression of any inсriminating testimony given by him even though he is being prosecuted for giving false testimony.
The remaining question arises from the principle that the Fifth Amendment protection against self-incrimination extends only to past acts, not to those that are or may be commit-fed in the future. As stated in Glickstein v. United States,
Once again, we must point to the distinguishing characteristics in the facts and the proceedings in this case. The entire proceedings here which led up to Mandujano’s indictment for perjury were, as we have noted repeatedly, beyond the pale of permissible prosecutorial conduct. 8 We conclude that the entire proceeding was a violation of Mandujano’s due process rights under the Fifth Amendment.
We, of course, do not attempt an axiomatic definition of due process, but note the well known language from Betts v. Brady,
“ ‘Asserted denial [of due process] is to be tested by an appraisal' of the to *1059 tality оf facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.’ ”
Although the application of the standard set in Betts v. Brady,
supra,
was overruled in Gideon v. Wainwright,
supra,
it is clear that the test remains the same. Was the conduct (refusal to appoint counsel) so “offensive to the common and fundamental ideas of fairness” as to amount to a denial of due process.
We conclude simply that the proceedings here complained of met that standard.
We believe this not to be inconsistent with any prior decision of this Court, all of which dealt only with the specific rights guaranteed by the self-incrimination clause of the Fifth Amendment.
The judgment is affirmed.
Notes
. Actually Mandujano told the government attorney that he didn’t have the money to get a lawyer. The following conversation transpired between them:
“Q: Have you discussed your presence here with anybody?
A: My wife.
Q: Have you contacted a lawyer in this matter?
A: No, sir, I haven’t.
Q: I take that to mean then that you do not wish the services of a lawyer here today?
A: I don’t have one. I don’t have the money to get one.
Q: Well, if you would like to have a lawyer, he cannot be inside this room. He can only be outside. Yоu would be free to consult with him if you so chose. Now, if during the course of this investigation, the questions that we ask you, if you feel like you would like to have a lawyer outside to talk to, let me know.
A: Yes, sir.
Q : Is that clear?
A: (Nod affirmative).”
At no time was Mandujano told that an attorney would be furnished him free of charge if he were financially unable to employ one.
. Miranda v. Arizona,
. The reference to “defendants” is made in the plural because the district court issued a joint opinion for this case and United States v. Rangel,
.
Morado, supra
at 173. Robinson v. United States,
. In United States v. Fruchtman, supra, in circumstances similar to the instant case, the court found the witness to be a virtual defendant. There the government attorney submitted an affidavit denying that the witness was a potential defendant at the time of questioning; yet, the court noted that this attorney had also read investigative reports detailing the circumstances about which the witness was questioned before the grand jury. These facts are similar to those here, where the special government attorney read the narcotics agent’s report prior to the grand jury session.
. This Court in Brown v. Beto,
. United States v. Orta,
. As did the trial court, we refrain from placing blame on any one official for what turned out to he conduct “smacking” of entrapment. We recognize the fact that involved here were an agent who reported to his superior, and then a special attorney having designated duties in the field of narcotics investigation and prosecution, and finally the United States Attorney and his staff. Somewhere within this chain of command and information, a decision was made to subpoena as a witness a man to whom the original agent testified he had given $650 for a “score,” and to ask this witness about this specific transaction.