Dunn v. United States

RESPONDENT: United States
LOCATION: Collision between Mr. Montrym’s car and motorcycle

DOCKET NO.: 77-6949
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 442 US 100 (1979)
ARGUED: Mar 28, 1979
DECIDED: Jun 04, 1979

Mr. Andrew L. Frey - for respondent
Daniel J. Sears - for petitioner

Facts of the case


Media for Dunn v. United States

Audio Transcription for Oral Argument - March 28, 1979 in Dunn v. United States

Warren E. Burger:

Case is submitted.

We'll hear arguments next in Dunn against the United States.

Mr. Sears, I think you may proceed whenever you're ready, if you don't mind the absence of an audience.

Daniel J. Sears:

Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

Petitioners before the Court today to present three primary questions: Whether a sworn statement taken in a private attorneys office may be deemed a proceeding ancillary to U.S. Court or grand jury in violation of 18 U.S.C. Section 1623?

Can immunized testimony be used against the witness to establish the corpus delicti of an inconsistent declarations prosecution without proof that the witness testified falsely under immunity?

And did the appellate court in this case adopt a proper theory in sustaining the conviction of Mr. Dunn?

Your Honor, petitioner submits that all three issues must be resolved against him before the conviction can stand.

The underlying case proceeded as follows.

Mr. Dunn appeared before federal grand jury in Denver, Colorado on June 16, 1976.

He claimed his right to remain silent and subsequently was ordered to appear before United States District Judge whereupon he was granted use immunity under 18 United States Code Section 6002.

He thereafter reappeared and testified the certain drug activities at the Colorado State Penitentiary implicating one Phillip Musgrave and several other co-defendants.

As a result, an indictment was returned against Musgrave and three other co-defendants.

On September 30, 1976, he appeared in the office of Musgrave's attorney, Michael Canges and proceeded to recant his grand jury testimony.

Present was a notary public who administered the oath and recorded Mr. Dunn's statement by virtue of a tape-recording.

It was subsequently reduced to writing and tendered to the U.S.District Court --

William H. Rehnquist:

I take it he just didn't wander into the attorney's office that day?

Daniel J. Sears:

Your Honor, although the record is silent as to this, I believe the evidence would indicate that Mr. Dunn met Mr. Musgrave and then proceeded to strike a deal with him.

Subsequently, wound up in his attorney's office, Mr. Musgrave's attorney's office and recanted what he had told to -- what he had told to the grand jury.

The statement was reduced to writing and tendered to the Court as an exhibit in support of a motion to dismiss the indictment against Musgrave.

On October 21, 1976, a hearing on that motion was held in the United States District Court.

Dunn was called as a witness and once again reaffirmed the affidavit even though he'd indicated he had not totally reviewed it.

The charges against Musgrave were subsequently reduced.

Warren E. Burger:

Well, when he reaffirmed the affidavit, will you enlarge on that, he was under oath before a grand jury then?

Daniel J. Sears:

He was under oath before U.S. District Judge, Your Honor.

Warren E. Burger:

District Judge?

Daniel J. Sears:


Your Honor --

Warren E. Burger:

And did he simply say he reaffirmed it in a conclusory way or did he restate the same facts?