Seattle Times Co. v. United States District Court for the Western District of Washington

REINHARDT, Circuit Judge,

concurring:

I concur in Judge Wiggins’ excellent opinion for the court. I join without reservation in the discussion regarding the first amendment. However, I believe the discussion of the fifth amendment issue, in particular the second paragraph of that discussion, at 1519, requires further comment.

The Supreme Court has held that, for purposes of the fifth amendment, when an accused is required to provide testimony in order to exercise a constitutional right the testimony has been “compelled”. See Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968); see also United States v. Kahan, 415 U.S. 239 , 94 S.Ct. 1179 , 39 L.Ed.2d 297 (1974) (per curiam). In Simmons , the Court held that when a defendant testifies in support of a motion to suppress evidence on fourth amendment grounds, his testimony is covered by a form of “use immunity”, and may not be used against him at trial on the issue of guilt. Simmons, 390 U.S. at 394 , 88 S.Ct. at 976 ; see United States v. Salvucci, 448 U.S. 83, 93-94 , 100 S.Ct. 2547, 2553-54 , 65 L.Ed.2d 619 (1980). In Kahan , the Court considered, but did not decide, the issue of whether similar “use immunity” extends to statements a defendant makes with respect to his financial affairs in order to obtain court-appointed counsel.

If a defendant seeking a court-appointed attorney refuses to file a financial affidavit and claims the protection of the fifth amendment, we will have to decide the question left open in Kahan . At that time, as Justice Marshall noted, a choice will be required:

The first alternative is to permit the defendant seeking counsel as an indigent to lie about his financial situation wherever the truth might be incriminating. As a second alternative, we could require the defendant seeking appointment of counsel to tell the truth at the indigency hearing, and subject him to sanctions for his willful and knowing failure to do so, but bar use of any incriminating information so revealed.

Kahan, 415 U.S. at 247 , 94 S.Ct. at 1183 (Marshall, J., dissenting). If we follow the rationale of Simmons and adopt the second alternative, we will hold that defendants who incriminate themselves when executing financial affidavits enjoy use immunity.

I agree with Judge Wiggins that it is not necessary for us now to decide any question relating to Nickell’s fifth amendment rights. In the case before us the appropriate time for considering the fifth amendment issue is, as Judge Wiggins states, if *1520 and when the government seeks to use any material contained in the affidavit supplied by Nickell. I would add that, in my view, Nickell’s financial disclosures were innocuous and, at most, they are highly unlikely to be incriminatory. In any event, the only conceivably incriminatory information would inevitably be discovered by the government, if it has not already done so.

The opinion should not be understood as holding that the only appropriate time to consider the fifth amendment issue is when the government seeks to use the testimony in question. At least until the question left open by the Court in Kahan is decided, it is appropriate for a defendant to raise a fifth amendment objection at the time he is required to submit the financial information necessary to obtain court-appointed counsel.