UNITED STATES v. KAHAN
No. 73-428.
Decided February 25, 1974
Per Curiam.
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. § 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 pau-peris in this Court, and the petition for a writ of certi-orari, 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/ 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. 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 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 the Court characterized as an “intolerable” need to surrender one constitutional right in order to assert another. Simmons, 390 U. S., at 394.
Even assuming that the Simmons principle was appropriately extended to Sixth Amendment claims for appointed counsel by the Branker holding, a question which we do not now decide, cf. McGautha v. California, 402 U. S. 183, 210-213 (1971), that principle cannot be applied to protect respondent here. Simmons barred the use of pretrial testimony at trial to prove its incriminating content. Here, by contrast, the incriminating component of respondent’s pretrial statements derives not from their content, but from respondent’s knowledge of their falsity. The truth of the matter was that respondent was not indigent, and did not have a right to appointment of counsel under the Sixth Amendment. We are not dealing, as was the Court in Simmons, with what was “believed” by the claimant to be a “valid” constitutional claim, see n. 2, supra. Respondent was not, therefore, faced with the type of intolerable choice Simmons sought to relieve. The protective shield of Simmons is not to be converted into a license for false representations on the issue of indigency free from the risk that the claimant will be held accountable for his falsehood. Cf. Harris v. New York, 401 U. S. 222, 226 (1971).
Reversed and remanded.
The transcript of the colloquy at arraignment reads in part as follows:
“The Court: Your name, sir?
“The Defendant: I am Norbert Kahan, sir.
“The Court: Have you an attorney?
“The Defendant: No, sir.
“The Court: Have you any money to hire an attorney?
“The Defendant: I do, sir, but it’s blocked by my wife from whom
I am divorced.
“The Court: Do you want a week to try and straighten that out?
“The Defendant: There is a suit coming up sometime early next year.
“The Court: We can’t wait until next year.
“The Defendant: Then if it pleases the Court I would like to have the Court assign me an attorney.
“The Court: You have no current funds?
“The Defendant: I beg your pardon?
“The Court: You have no current funds at all?
“The Defendant: No, sir.
“The Court: Are you working?
“The Defendant: No, sir.
“The Court: I’m going to assign Mr. Jesse Berman at this point.” At trial it was determined that respondent never made these aver-ments under oath, either orally or by presentment of written affidavit.
Respondent contended at trial that he understood himself to be merely the custodian of the four “Totten trusts,” which he said belonged to his children. The trial judge ruled, out of the jury’s presence, that there was sufficient proof of falsity to warrant the admission of his statements, that the false statements were relevant to issues on trial, and that the prejudicial effect of the statements did not outweigh their probative value. The jury was ultimately instructed that it should consider respondent’s false statements only for the limited purposes, as set forth in text, for which they were introduced.
The grounds for admitting respondent's false statements, supra, at 241, make it clear by necessary implication that the trial judge— who alone decides the question of relevancy — thought respondent had willfully made false representations. Respondent’s withdrawals from the aforementioned accounts shortly after he denied having current funds lend support to that view.
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