Petition — Doe v. United States

IN THE | JUN 97 19ST?

Supreme Court of the United ales RODAK, JR, CLERK |

October Term, 1976

No. 76-1862

In re Grand Jury Witness,

JoHN Dog,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals, Ninth Judicial Circuit.

ROBERT N. HARRIS,

LAPPEN, ABELSON AND HARRIS,

A Professional Corporation,

361 North Canon Drive,

Beverly Hills, Calif. 90210,

(213) 273-6022,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

—

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TOPICAL INDEX

Page

Request to Use Fictitious Names ........................ Preface

TR eT er esceenee I

EE eR 2

IIE CUR RO SR OS 2

Constitutional Provision Involved .............. sesatnmetiine 3

ERE a DO a 3

Reasons for Granting the Writ ...........0..00.00.000.000000.. 8

I

The Burden of Proof Rests With the Government

to Show the Non-Existence of an Understand-

ing of Confidentiality When the Witness Has

Acted in Detrimental Reliance ................0....... &

II

The District Court Used an Erroneous Test in

Determining Whether an Understanding of

0 ea 13

Ill

Due Process Required That Petitioner Receive

LEE Se ODA 16

IV

There Was Insufficient Evidence to Find Peti-

tioner in Contempt of Court ........000000000000000000.. 22

Vv

The Threat of Death Is Relevant in a Determina-

tion of “Just Cause” Under 28 U.S.C. §1826

ii.

VI Page

If the Government Can Obtain an Indictment

and Conviction Without the Testimony of the

Witness, Petitioner Should Not Be Held in

RESETS: ARTO 25

Vil

The Court Improperly Delegated the Designation

of a Suitable Place of Confinement to the

United States Marshal ...................0c:ccccceecceeeee 27

VITl

The Circuit Court of Appeals Is Required to Ad-

dress All Issues Raised on Appeal .................. 28

RRR ACS UEY SOR TOF ARM Sr eee 29

INDEX TO APPENDICES

Appendix A. Memorandum ...................... App. p. 1

SRE MIE ‘ciueintentesendinisnevincddibimeeniamateiane 2

Appendix C, Order Staying Issuance of Mandate 3

Appendix D. Amendment V ...................0.::c0:ccc00e- 4

ee

ee -

iii,

TABLE OF AUTHORITIES CITED

Cases Page

Buonacoure, In re, 412 F.Supp. 904 (E.D. Pa,

i a a seiuneliniieniationten 26

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

EE a I cndsstecrccsaniniecnisdinedadenseuiis 11

Dupuy v. United States, 518 F.2d 1295 (9th Cir.

a RS Sa eR ae 7, 24, 25

Grand Jury Proceedings, In re, 534 F.2d 41 (Sth

Bg CEE 27

John Doe, In the Matter of, 410 F.Supp. 1163

(E.D. Mich. 1976) .................. 8, 19, 20, 21, 22, 24

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019

8 SY ES Se a 18

Leahy v. United States, 272 F.2d 487 (9th Cir.

RC AUER sa SS 28

Millon, In re, 529 F.2d 770 (2d Cir. 1976) ............ 12

Piemonte v. United States, 367 U.S. 559, 6 L.

Ed.2d 1028, 81 S.Ct. 1720 (1961) ....000.. 26

Santobello v. New York, 404 U.S. 257, 92 S.Ct.

Gay FO Bee SEF CIDE) cccccccccvccevccessesseseses 8

Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.

Ed.2d 854, 93 S.Ct. 2041 (1973) ....00. 11

United States v. Carter, 454 F.2d 426 (4th Cir.

ES URES Ca AOR AEE Rie eo A oe 8, 19

United States v. Cohen, 358 F.Supp. 112 (S.D.

RESET ETE SS ae a ee 10, 15

United States v. Huss, 482 F.2d 38 (2d Cir. 1973)

iv.

Page

United States v. Paiva, 294 F.Supp. 742 (D.D.C,

BGT) ceccrcenscusnscnsnsnntinnanntannsensmaiaiiaaaanaananne 8

Statutes

United States Code, Title 18, Sec. 3504 ............ Bs, i

United States Code, Title 18, Sec. 3504(b) .......... 12

United States Code, Title 28, Sec. 1254(1) .......... 2

United States Code, Title 28, Sec. 1826 ......00000.....

ccnseouecsusnennsasssiatnianseaieaae ne 2, 24, 26, 27

United States Code, Title 28, Sec. 1826(a) ........ 3, 27

United States Code, Title 28, Sec. 1826(b) .......... 28

United States Constitution, Fifth Amendment ........ 16

mre rere ne

a Oo - ~

Ser er ee ee. 2:

REQUEST TO USE FICTITIOUS NAMES.

Petitioner brings this Petition using the name “John

Doe.” Petitioner’s life would be placed in extreme dan-

ger if the facts of this case became public.

With the approval of the Government, all proceed-

ings in the District Court were held in camera and

the transcripts and all exhibits were ordered sealed.

Further, the record on appeal was ordered to be trans-

mitted sealed to that court.

The Court of Appeals sealed the record on appeal

including all briefs. In rendering its decision, the Court

of Appeals referred to the Petitioner as “John Doe”

and ordered its opinion to be unpublished.

Petitioner, understanding that records of this Court

cannot be sealed, has, with the approval of the Clerk

of the Court, changed petitioner’s name throughout

the Petition to “John Doe.” The F.B.I. agent primarily

involved has been designated as “Agent Smith” and

his superior as “Agent Jones.” These changes were

made solely to protect the identity of the petitioner

from those who may wish to do him harm. Petitioner

further requests that the record below and the transcripts

and all exhibits be sealed and made unavailable for

public inspection.

In the event the United States Supreme Court will

not process this Petition in the manner thus requested,

then petitioner abandons this Petition for Writ of Cer-

tiorari.

IN THE

Supreme Court of the United States

October Term, 1976

No. 76-1862

In re Grand Jury Witness,

JOHN DoE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals, Ninth Judicial Circuit.

The petitioner, John Doe, respectfully prays that

a writ of certiorari issue to review the memorandum

opinion of the Court of Appeals for the Ninth Circuit,

filed May 10, 1977, which affirmed the order of the

District Court for the Central District of California,

holding petitioner in civil contempt.

Opinion Below.

The Ninth Circuit Court of Appeals, in a memo-

randum opinion, affirmed the order of the District

Court.* The Ninth Circuit entered an order, denying

the petition for rehearing.*

*See copies of orders at Appendices “A”, “B”, and “C”

respectively.

—

Jurisdiction.

The order of the Ninth Circuit denying the petition

for rehearing was filed on May 26, 1977. This petition

for certiorari was filed within the time prescribed by

the Ninth Circuit Court of Appeals in its Order Staying

Issuance of Mandate.* This Court’s jurisdiction is in-

voked under 28 U.S.C. §1254(1).

Questions Presented.

1. Who has the burden of proof, the witness or

the government, to show the non-existence of an under-

standing of confidentiality when the witness has acted

in detrimental reliance?

2. What test should be used—subjective or objec-

tive, or reasonable man standard—in determining

whether an understanding of confidentiality exists?

3. Whether an admonition is required for due proc-

ess purposes in order to assure a knowing and intelli-

gent choice by a potential witness who objectively

manifests a misunderstanding as to whether an under-

standing of confidentiality exists.

4. Whether there was sufficient evidence to find

petitioner in contempt.

5. Whether threat of death at the hands of the

target suspects, together with other facts can be relevant

in a determination of “just cause” under 28 U.S.C.

§1826.

6. Whether the witness can be adjudged in contempt

pursuant to 28 U.S.C. §1826 if the government can

obtain an indictment and conviction without the testi-

mon” of the witness.

—_—

7. Whether the designation of a “suitable place”

of confinement of a recalcitrant witness (§1826(a) )

is delegable to the United States Marshals.

8. Whether the Ninth Circuit Court of Appeals

was required to address the seven issues raised on

appeal rather than merely one issue.

Constitutional Provision Involved.

The pertinent provision of the Fifth Amendment

to the Constitution is set forth in Appendix “D.”

Statement of Facts.

Petitioner John Doe met with Agent Smith of the

F.B.I. on April 12, 1976 to enlist the Bureau’s help

for a friend who had been threatened. (R.T. 9-10.}’

Prior to that date, Agent Smith had been to petitioner’s

office several times, but petitioner had never supplied

the agent with any information. (R.T. 8-9.)

At the April 12 meeting, petitioner opened Agent

Smith’s jacket looking for a transmitter. Petitioner also

asked Agent Smith if he had a microphone or a wire

on his person. (R.T. 10-11.) Petitioner explained to

Agent Smith that he would speak to him only if given

the assurance that he would not be “burned” (i.e.,

his cooperation would be kept secret). Agent Smith

replied “you’re talking to me,” which petitioner under-

stood to mean that the conversation would be secret

(R.T. 11), i.e., a promise of confidentiality. (R.T.

31:8-10.)

1The record on appeal contains transcripts of hearings held

on March 15, 1977, March 17, 1977 and April 15, 1977.

Unless otherwise indicated, references in this Petition to “R.T.”

will refer to the Reporter’s Transcript of the March 17, 1977

hearing.

nite

Petitioner offered his assistance in a current F.B.I.

investigation where petitioner’s friend had been a vic-

tim. He asked for nothing in return, save that Agent

Smith would immediately pick up petitioner’s child

at school if petitioner’s cooperation ever became

known. Agent Smith said that he understood the danger

which petitioner feared if their conversation became

public. (R.T. 12.)

At their next meeting on April 15, 1976, petitioner

repeatedly told Smith that he did not want to be

“burnt with this information” for fear of danger to

himself and his family. (R.T. 14.) Petitioner gave

the information because he understood the cooperation

would be secret and he would never be called as

a witness. (R.T. 15.)

Petitioner informed Agent Smith about a forthcom-

ing meeting that he would attend with the suspects

of the F.B.I.’s investigation. Petitioner asked Agent

Smith to have the meeting surveilled. Petitioner under-

stood that no one else would know that petitioner

had provided this information. (R.T. 16.)

At all times during his cooperation, petitioner had

complete trust in Agent Smith and understood that

the agent would not disclose petitioner’s role. (R.T.

19, 25.) He relied on Smith’s word as an F.B.I. agent

that his information would not be made public. (R.T.

23.)

Although asked by Smith many times if he would

even consider being a witness, petitioner always replied

“no,” (R.T. $4, 20) because of fear for his own

life and the lives of his wife and child. (R.T. 25.)

Several days after the F.B.I. surveilled the meeting

between petitioner and the suspects, Agent Smith told

~~ = 2 eee

a

petitioner for the first time that he “may have to

be a witness.” (R.T. 17.) Petitioner was surprised

and extremely upset. Agent Smith tried to placate him

by saying it was out of his hands, and that he had

to turn the matter over to his superiors. (R.T. 17.)

Agent Smith then arranged a meeting between petition-

er and Smith’s superior, Agent Jones. (R.T. 21.) Peti-

tioner met with Agent Jones, but to no avail.

Agent Smith testified that he believes some of the

suspects in question to be physically dangerous people. |

(R.T. 55.)

At their April 12, 1976 meeting, Mr. Doe looked

inside Agent Smith’s jacket and asked if he was carry-

ing a recorder. From the outset, petitioner asked for

confidentiality. (R.T. 58.) (Agent Smith understood

the term “burn” to mean exposing someone who is

supplying information confidentially. (R.T. 66:8.) )

Agent Smith testified that he informed petitioner

that there was an ongoing investigation by the F.B.I.

of the target individuals, that ultimately the matter

could conceivably go before a federal grand jury, and

that it was not inconceivable that he might be sub-

poenaed and could even be granted immunity. (R.T.

59:5-9.) None of the above admonitions was included

in the agent’s report which indicates that the only

thing stated was that no promises of confidentiality

could be made. (R.T. 60:2-11.)

Agent Smith acknowledged that when John Doe

expr. ed concern that the information that he was

giving might be made public, he probably responded

with the words “you're talking to me.” (R.T. 61.)

At the April 20, 1976 meeting, John Doe again

checked Smith for a recorder and said he would incur

—

contempt rather than testify. Smith told him that he

could conceivably be subpoenaed and even be granted

immunity. (R.T. 61-62.)

At each of their next five meetings, John Doe stated

that he was in fear of his life and would not be

a witness even if he was held in contempt. Agent

Smith made written reports of each of these five meet-

ings which reflect John Doe’s views. Those reports,

however, do not include any statement that John Doe

was advised at those meetings that no promises of

confidentiality could be made. (R.T. 64.)

When asked if petitioner said “what the fuck are

you doing to me?” after being told he might be used

as a witness, Smith replied, “he might have.” (R.T.

75-76.)

At the hearing on the Order to Show Cause re

Contempt, the transcript of the earlier hearing on peti-

tioner’s motion to estop was received into evidence.

(R.T., April 15, 6.) In addition t& this transcript,

appellant sought to introduce evidence of the danger

to petitioner’s life. As part of an offer of proof requested

by the District Court, petitioner marked Exhibits A

and B, articles from the Los Angeles Times and Time

Magazine concerning the murders of informants over

the past two years. (R.T., April 15, 7:16-23; 14:

20-25; 19:17-24.) Further, petitioner made the fol-

lowing offer of proof as to the testimony of F.B.I.

Agent Jones.

“I would expect Agent [Jones] to testify that

those facts present in particularly the Time maga-

zine article are basically true and that there has

been during the last two-year period a pattern

of the killing of witnesses who are in fact not

a

merely victims, but informants, by organized crime,

by the Mafia, and that the people involved in

this case, and specifically the person that the

Government wishes Mr. [Doe] to talk about, is

in fact a member of organized crime, is a dan-

gerous person, is the same person that is named

in this article as a suspect in the Bompensiera

murder, and that in Agent [Jones’| view, if Mr.

[Doe] did testify, he would certainly fall into

the same category as many of the twenty people

that have been killed during the last year.” (R.T.,

April 15, 8:15-9:2.)

Following this offer, the court refused to admit this

evidence, relying on Dupuy v. United States, 518 F.2d

1295 (9th Cir. 1975). (R.T. 25:16-17.)

Further, petitioner sought a statement from the gov-

ernment that petitioner's testimony was necessary to

secure an indictment and a conviction of the suspects.

The government refused to state whether petitioner

was a necessary or essential witness (R.T., April 15,

23-24), and the District Court ruled that the govern-

ment need not divulge this information. (R.T., April

15, 25.)

REASONS FOR GRANTING THE WRIT.

I

The Burden of Proof Rests With the Government to

Show the Non-Existence of an Understanding of

Confidentiality When the Witness Has Acted in

Detrimental Reliance.

A person may enforce an informal agreement with

the government

4g . if, after having utilized its discretion

to strike bargains with potential defendants, the

Government seeks to avoid those arrangements by

using the courts, its decision so to do will come

under scrutiny. If it further appears that the de-

fendant, to his prejudice, performed his part of

the agreement while the Government did not, the

indictment may be dismissed.” United States v.

Paiva, 294 F.Supp. 742, 747 (D.D.C. 1969).

“. . . We conclude that if the promise was

made to defendant as alleged and defendant relied

upon it. . . the government should be held to

abide by its terms.” United States v. Carter, 454

F.2d 426 (4th Cir. 1972).

And, see Santobello v. New York, 404 U.S. 257,

92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

An agreement not to call an individual as a witness

would obviously be enforceable under the same rationale

and would constitute just cause for failure to answer

questions before the grand jury. See, In the Matter

of John Doe, 410 F.Supp. 1163 (E.D.Mich. 1976).

In determining whether such an agreement existed,

petitioner respectfully submits that at his hearing to

estop the government from granting the application

=

for immunity, and at the Order to Show Cause re

Contempt, the District Court erroneously concluded

that petitioner had the burden of proof to show that

promises of confidentiality had been made.

The essential confusion on the court’s part resulted

from its failure to differentiate between the burden

to go forward (burden of producing evidence), and

the ultimate burden of proof.

Defense counsel’s statements at the March 17, 1977

hearing are perfectly consistent with acknowledgement

that the former burden was his:

“[DEFENSE ATTORNEY |: Well, your Honor,

[the prosecuting attorney| and I have discussed

this question, and since I am the moving party,

I suppose, I think it is incumbent upon me to

present evidence.

THE COURT: I will not quarrel with that.”

(R.T. 5:6-9.)

At the time argument was called for, the court

was unspecific as to which burden it referred to:

“THE COURT: All right. You do have the

burden in this matter, [Mr. Defense Attorney],

and you may proceed.” (R.T. 95:21-22.)

In stating its findings, however, the court utilized

language which makes it patently clear that the burden

of proof had been assigned to petitioner, and further,

that the weighing of the evidence adduced at the hearing

was inextricably connected to the delegation of the

burden of proof.

“THE COURT:

I find Mr. [Smith] to be a credible witness

and I find that the burden of the moving party,

— =

Mr. [Doe], which is to establish that promises

of confidentiality and immunization against im-

munity, again, has not been met in this matter.

I find that no promises were made to Mr. [Doe]

in terms of that immunity, and I deny the motion

to estop. That will be the findings of the Court

in this matter.” (R.T. 115:14-20.) (Emphasis

added. )

Research discloses no case authority allocating the

burden of proof with respect to understandings of con-

fidentiality. Another case set in the same context of

resistance to a contempt order by a witness asserting

a prior agreement that he would not be called to

testify is United States v. Cohen, 358 F.Supp. 112

(S.D.N.Y. 1973), reversed in part and affirmed in

part sub nom, United States v. Huss, 482 F.2d 38

(2d Cir. 1973). However, neither the District Court

nor the Second Circuit Court of Appeals discussed

this critical and fundamental issue of burden of proof.

In the absence of authority, it is appropriate to

analogize petitioner’s case to other issues of criminal

procedure wherein the citizen is alleged to have know-

ingly waived a fundamental right.

The government through Agent Smith apparently

concedes that petitioner initially demanded confidential-

ity as a condition for his cooperation. To cooperate

without confidentiality would jeopardize his right to

life and liberty. The government’s contention. is that

petitioner knowingly waived that right and agreed to

cooperate without confidentiality.

In demonstrating any waiver, the burden of proof

rests indisputably with the government. A prosecutor

who seeks to rely upon consent to justify the lawful-

=

ness of a search has the burden of proving, by a

preponderance of the evidence, that the consent was,

in fact, freely and voluntarily given. Schneckloth v.

Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct.

2041 (1973). Further, on appeal, the burden is on

the government to prove beyond a reasonable doubt

that an error involving a violation of a constitutional

right (no intelligent waiver) was harmless. Chapman

v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d

705 (1967).

An analogy may be drawn with the burden of proof

established by 18 U.S.C. §3504:

“$3504. Litigation concerning sources of evi-

dence.

(a) In any trial, hearing or other proceeding

in or before any court, grand jury, department,

officer, agency, regulatory body, or other author-

ity of the United States—

(1) upon a claim by a party aggrieved that

evidence is inadmissible because it is the primary

product of an unlawful act or because it was

obtained by the exploitation of an unlawful

act, the opponent of the claim shall affirm

or deny the occurrence of the alleged unlaw-

ful act;

(2) disclosure of information for a determi-

nation if evidence is inadmissible because it

is the primary product of an unlawful act occur-

ring prior to June 19, 1968, or because it

was obtained by the exploitation of an unlawful

act occurring prior to June 19, 1968, shall

not be required unless such information may

—

be relevant to a pending claim of such inad-

missibility; and

(3) no claim shall be considered that evi-

dence of an event is inadmissible on the ground

that such evidence was obtained by the exploita-

tion of an unlawful act occurring prior to June

19, 1968, if such event occurred more than

five years after such allegedly unlawful act.

(b) As used in this section ‘unlawful act’ means

any act the use of any electronic, mechanical

or other device (as defined in section 2510(5)

of this title) in violation of the Constitution or

laws of the United States or any regulation or

standard promulgated pursuant thereto.”

Although the application of §3504 has thus far been

confined to wiretap cases, petitioner contends that the

government’s disavowal of a promise of confidentiality

is an “unlawful act” within the meaning of “any act”

as set forth in §3504(b). Support for this position

is found in the decision of the Court of Appeals

for the Second Circuit in /n re Millon, 529 F.2d

770, 773 (2d Cir. 1976). In construing §3504, the

Court held that the section concerned the “fruit of

an illegal act such as wiretap.” Millon at 773 (em-

phasis added). Section 3504 apparently places the bur-

den of proof on the government once a prima ¢ie

case is made. United States v. Huss, 482 F.2d 38

(2d Cir. 1973).

Irrespective of whether §3504 applies to the fact

situation at bar, by analogy when a prima facie show-

ing of a promise is made, the government should have

the burden of proof to show no promise was made.

— =

It is clear that the allocation of the burden of

proof was of critical significance at the hearing. The

court found that (1) Agent Smith was a credible

witness and (2) that “Mr. [Doe] believes, unilaterally

and subjectively that he is entitled to be immunized

from immunity.” (R.T. 115.) Based on the state of

the evidence, the allocation of the burden of proof

was critical to the court’s finding:

“THE COURT: Well, gentlemen, this is a diffi-

cult decision to be made. .. .” (R.T. 114:19-

20.)

Petitioner respectfully requests that this Court find

that the burden of proof rests with the government

and remand the case for further proceedings.

II

The District Court Used an Erroneous Test in De-

termining Whether an Understanding of Confiden-

tiality Existed.

At the March 15, 1977 hearing on petitioner’s motion

to estop the government, defense counsel proposed the

correct test to be applied in evaluating petitioner’s

claim.

“THE COURT: Well, I know your position: that

the subjective state of mind of the prospective

witness should control. Is that not your position,

or one of your positions?

[DEFENSE ATTORNEY |: One of my positions,

yes, your Honor, would be that the state of mind

of Mr. [Doe], as long as it was reasonable—I

think that has to be added to it—should control,

and as long as there is reliance upon the Govern-

ment, aithough the Government may not have

—

meant what Mr. [Doe] believed that it had said,

yes, your Honor. But I think you need two ele-

ments. I think you need some action on behalf

of the Government that would lead a reasonable

man to believe that this was the disposition. And

so merely ‘subjective’ I think would be going too

far, because I think that would allow a psychotic

personality to come into court who really did

believe something and somehow estop the Govern-

ment from proceeding, and I think that would

be an incorrect ruling, and that is not the position

that I wish to take.” (R.T., March 15, 23:9-

25.)

In argument at the March 17 Order to Show Cause

hearing, defense counsel expressed the opinion that,

based upon the evidence, an understanding of confiden-

tiality existed under any test, i.e., reasonable man stand-

ard (R.T. 101), objective and subjective. (R.T. 103.)

The government proposed an ambiguous hybrid test:

“. . . the standard which must be applied here

is whether or not the Government made any actual

promises or whether or not it did anything which

could create a reasonable reliance by Mr. [Doe]

upon any action by the Government that would

suggest his information would be held in confi-

dence.” (R.T. 107:3-8.)

The court framed the issue as follows:

“[W|hether or not, measured by an objective

standard, Mr. | Doe] can place reasonable reliance

upon comments of Agent [Smith] and believed

that he was, as stated by |the defense attorney |

immunized from immunity in this matter.” (R.T.

114:19-25.)

— =

As that standard would dictate, the court, appropri-

ately, next summarized the evidence as to petitioner’s

State of mind with respect to the understanding of

confidentiality.

“I think that clearly there has been a misunder-

standing. Mr. [Doe] believes, unilaterally and sub-

jectively, that he is entitled to be immunized from

immunity.” (R.T. 115:1-3.)

However, the court ignored its own determination

that “reasonable reliance” was the issue and that peti-

tioner had a subjective, although mistaken belief. In-

Stead, the court denied the motion to estop based

on the finding that “no promises were made to Mr.

[Dve] in terms of that immunity.” (R.T. 115:18-19.)

(Emphasis added.) Thus, ultimately, the witness’ sub-

jective belief that an understanding of the confiden-

tiality existed was found to be immaterial.

The United States District Court for the Southern

District of New York was faced with a similar problem

of determining the correct test in United States v.

Cohen, 358 F.Supp. 112 (S.D.N.Y. 1973). In deter-

mining whether or not the promise of confidentiality

had been made, the Court first applied an objective

test as to whether the potential witness had been given

an unqualified assurance that he would not be called

to testify. In Cohen, however, unlike the case at bar,

the Court went on to evaluate whether the potential

witness was reasonably entitled to his subjective opinion

(at"124-125).

Petitioner was entitled to the same determination

of whether his subjective reliance was reasonable and

the case should be remanded to the District Court

for further proceedings in this regard.

enliven

II

Due Process Required That Petitioner Receive

Certain Admonitions.

Even if the court employed the correct test and

if it could be said that petitioner’s subjectively held

belief was unreasonable, petitioner should nevertheless

not be held in contempt. It was Agent Smith’s duty

to right the misunderstanding which was objectively

manifested.

The record is replete with accounts of petitioner’s

repeated insistence upon confidentiality. The District

Court recognized that petitioner believed that such

confidentiality was, indeed, agreed upon. Obviously,

whatever indicia of misunderstanding the court was

able to perceive in petitioner, were also then apparent

to Agent Smith.

“Q. Okay. And each of those times Mr. | Doe]

told you, did he not, that he would incur contempt

rather than to testify?

A. [Agent Smith] Yes.

Q. Did he also further explain at subsequent

meetings that he felt he was in danger if it ever

did become public?

A. Oh, yes.

Q. Many times?

A. Well, sure.” (R.T. 64-65.)

The Fifth Amendment guarantee that no person shall

be deprived of life or liberty without due process of

law has clear application to petitioner’s case.

Petitioner repeatedly and vehemently stressed that

he would go to jail before he would testify. Agent

Smith knew of the importance of the ongoing investiga-

— =

tion. Further, Agent Smith understood the manner in

which the Grand Jury and United States Attorney's

Office proceed. He was therefore well aware that Mr.

Doe’s liberty was in jeopardy. Indeed, the agent also

knew the risks to petitioner’s life, believing as he does

that the target subjects are dangerous. (R.T. 55.)

Under these circumstances it was incumbent upon

the agent to adequately admonish petitioner with respect

to the extremely perilous position in which Smith placed

him. Where a citizen is considering acting as a govern-

ment agent and objectively manifests a misunderstand-

ing as to whether an understanding of confidentiality

exists, it becomes incumbent upon the government to

disabuse the citizen of such misunderstanding. Without

such action by the government, the citizen’s efforts

and assistance have been unlawfully appropriated. Due

process requires that the citizen knowingly waive his

demand for confidentiality.

Smith clearly had ample opportunity to correct the

misunderstanding as to what petitioner might expect.

A particularly appropriate time to correct what was

allegedly an unfounded reliance on confidentiality oc-

curred at the April 15, 1976 meeting.

“Q. .. . [A]ecording to your report, Mr.

[Doe] then mentioned that if his name was men-

tioned as a source of activity, he would cease

and desist giving any information whatsoever. Did

you advise him again after that that you might

have to make it public and that may happen?

A. No. That had been gone over sufficiently.”

(R.T. 63:5-11.)

However, according to his testimony, Agent Smith

had already relayed the information to his superiors.

—

(R.T. 66:21-25.) There is no indication in the reports

or in Smith’s testimony that petitioner was informed

that disclosure of his name was already a fait accompli.

In fact, as evidenced by reports of their next five

meetings, from that time forth, Smith discontinued ad-

vising Doe that no promises of confidentiality could

be made. (R.T. 64:8-18.)

At the hearing on immunity, defense counsel contrast-

ed the negligence exhibited in this case to the care

taken to insure a knowing waiver in other contexts,

i.e., Miranda warnings and the entry of a plea in

federal court. (R.T. 110-111.)

Rigid due process guarantees have been afforded

to an increasingly broad spectrum of contexts including

parole and probation, administrative hearings, civil com-

mitment, etc. The basic tenet remains that in order

to relinquish a privilege or right there must be a

knowing and intelligent waiver. Johnson v. Zerbst, 304

U.S. 458, 58 S.Ct. 1019 (1937). Further, the govern-

ment bears the burden of showing such a waiver by

a preponderance of the evidence. (See Argument I,

supra. )

Petitioner’s situation most definitely represented a

relinquishing of constitutional rights to life and liberty

and warranted a careful explanation and determination

that the waiver was knowing and intelligent.

Clearly, the agent’s alleged disclaimer that no promise

of confidentiality could be made is woefully inadequate

to satisfy the government’s burden. Any message to

be derived from that statement was vitiated at the

outset of the series of communications by Smith’s state-

ment “you're talking to me.”

anit

The government, through its agent, has placed peti-

tioner in an unconscionable position. The manipulation

seen in this case demonstrates a situation wherein due

process was blatantly ignored.

The issues herein raised have implications far beyond

this case. This Court will surely consider the sound

reasons of public policy which militate against holding

petitioner in contempt. For unless confidentiality, once

assured, is preserved, sources of information indispen-

sable to law enforcement will vanish if the ordinary

citizen realizes he has been deceived by the government.

Lawlessness in law enforcement is clearly no more

tolerable than in the citizenry.

The crux of this case was precisely phrased in United

States v. Carter, supra, at 428:

“There is more at stake than just the liberty

of this defendant. At stake is the honor of the

government public confidence in the fair adminis-

tration of justice, and the efficient administration

of justice in a federal scheme of government.”

A strikingly similar situation was presented in In

the Matter of John Doe, 410 F.Supp. 1163 (E.D.

Mich. 1976). The analysis made by the District Judge

is particularly enlightening.

“This action presents the limited issue whether

the court must grant immunity to a prospective

Grand Jury witness who has earlier relied upon

the promise of a governmental agent that he would

not be the subject of questioning . . .

“Doe moves to vacate the immunity order on

the ground that for the Grand Jury to question

SS

him in violation of his agreement with federal

agents would violate due process. Doe asserts that

[Special Agent of the F.B.I.] Wicklund’s promise

is binding upon the United States Attorney and

invokes the court’s discretionary and supervisory

powers over the Grand Jury to protect his interest

in the tair administration of justice. The govern-

ment urges thaty before Doe may lay claim to

a violation of his right to due process for the

government's broken promise, he must demonstrate

some prejudicial reliance upon it. For the reasons

which follow, the court holds that judicial integrity

and the interests of justice dictate vacation of

the immunity order.

“Apart from the immunity statute, the court

plays a general supervisory role in the fair adminis-

tration of justice. United States v. Rodman, 519

F.2d 1058, 1060 (Sth Cir. 1975); cf. Mallory

v. United States, 354 U.S. 449, 77 S.Ct. 1356,

1 L.Ed.2d 1479 (1959); McNabb v, United

States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed.

819 (1943). Moreover, the court has a residuum

of supervisory power over the Grand Jury and

a responsibility to curb its improper use. United

States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764,

769, 35 L.Ed.2d 67, 76 (1973); Branzburg v.

Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660,

33 L.Ed.2d 626, 643 (1972).

“. . , judicial integrity and ‘the interests of

justice’, both themes of Santobello, would be of-

fended if the court ratified the government’s broken

promise to Doe by reaffirming the immunity order.

= =

For whatever reason, Doe agreed to surrender

contraband in return for immunity from question-

ing. Federal agents agreed and accepted the co-

caine. The government may not now breach this

promise with the court’s aid by substituting immu-

nity from prosecution for immunity from question-

ing.

“Neither may the government insist that Doe

demonstrate some prejudice before claiming a vio-

lation of his rights in the government’s broken

promise. No prejudice, apart from that suffered

by the administration of justice, was apparent

in Santobello. Moreover, Doe has alleged that

his testimony on the subject in dispute will en-

danger his life. Although fear of harm does not

excuse a witness from testifying before the Grand

Jury, potential harm to the witness may be rele-

vant where, as here, the witness and the govern-

ment bargain beforehand to be excused from giving

testimony. Compare DuPuy (sic) v. United States,

518 F.2d 1295 (9th Cir. 1975).

“In this limited context the government may

not rely upon distinctions between express, implied,

and apparent authority among its agents in avoid-

ing the effect of its promise. These distinctions

have meaning for the legal technician, not for

the layman dealing with the ‘government’ in his

negotiations. The solution to agents who bargain

away the government's rights is tighter administra-

tive control within the executive branch. See

United States v. Carter, supra, at 428: United

States v. Barrett, at 1024-25,

“For the foregoing reasons, the court holds that

to immunize a prospective Grand Jury witness

ee

—22—

who has earlier relied upon the promise of a

government agent that he would not be the subject

of questioning does violence to both judicial in-

tegrity and the interests of justice.” at 1164-66.

IV

There Was Insufficient Evidence to Find Petitioner

in Contempt of Court.

Even assuming, arguendo, that the District Court

(1) properly placed the burden of proof upon petitioner

to show the existence of an understanding of con-

fidentiality and (2) employed the correct test in deter-

mining whether such an understanding existed, the evi-

dence does not support the findings of the court that

“just cause” did not exist.

Evidence of acts of both Agent Smith and petitioner

support petitioner’s claim that he reasonably believed

that an understanding existed.

(1) Both parties testified that at their first of eight

meetings, petitioner looked inside Agent Smith’s jacket

and asked if he was carrying a recorder. Such an

act clearly manifested petitioner's concern for confi-

dentiality.

(2) Each and every report prepared by Agent Smith

includes a notation that petitioner advised Smith that

he would incur a contempt citation rather than testify.

Indeed, this explanation constituted the prelude to their

initial meeting. The understanding of confidentiality

was logically a condition precedent to any further com-

munications between the two men.

Petitioner received Smith’s assurance when the latter

responded “you're talking to me.” While Agent Smith

concedes that he probably used those words, his prof-

=— =

fered explanation of their significance is simplistic and

ludicrous: “Obviously, he was talking to me;” (R.T.

61:19.) “Well, he knew who he was dealing with;

he was dealing with me.” (R.T. 85:15-16.)

Counsel for the government has attempted to assign

another interpretation to the phrase:

“Q. All right. And did you mean by that

to convey that you’re a person who would be

careful and protect him if possible?

A. Yes, indeed.

Q. And have you attempted to do so?

A. Yes, indeed.” (R.T. 85:17-21.)

It is indisputable that petitioner sought assurances

of protection in the sense of confidentiality, rather

than physical protection, in a literal sense. This after-

the-fact attempt to semantically rob the statement of

its obvious import must fail.

(3) A warning that no promise of confidentiality

could be made was allegedly given at only the first

two meetings in mid-April, 1976. At the subsequent

five meetings commencing some two weeks later, May

3, 1976, and continuing through June 10, 1976, despite

Doe’s continuing demand of confidentiality and his

insistence that he would never testify, he was never

warned again.

“Q. .. . Did you advise him again after

that that you might have to make it public and

that may happen?

A. [Agent Smith] No. That had been gone

over sufficiently.” (R.T. 63:9-11.)

Further, the F.B.I. reports themselves (received into

evidence as Government Exhibit #1 at R.T. 85) dis-

close petitioner's reiteration of the agreement of con-

Se es a

_

fidentiality at the later meetings. Warnings by Agent

Smith that confidentiality was not promised are con-

spicuously absent from the reports of these later meet-

ings. rm

(4) Mr. Doe’s complete trust in Agent Smith was

amply supported by petitioner’s actions. (R.T. 24:6-

7; 23:11-14.) Petitioner discontinued checking the agent

for microphones (R.T. 24:3-4; 31:22-24), and even

called Agent Smith at the F.B.I. offices.

In conclusion, petitioner satisfied the requirement

of showing “just cause” to comply with the court’s

order to testify. There was insufficient evidence to

hold him in contempt as a recalcitrant witness pursuant

to 28 U.S.C. §1826.

Vv

The Threat of Death Is Relevant in a Determination

of “Just Cause” Under 28 U.S.C. §1826.

In ruling upon petitioner’s offer of proof as to the

danger to his life should he testify, the District Court

relied upon the authority of Dupuy v. United States,

518 F.2d 1295 (9th Cir. 1975) for the proposition

that even a reasonable fear of retaliation is not a

sufficient defense to a civil contempt proceeding. (R.T.,

April 15, 21:19-23.)

In light of this Court’s opinion in Dupuy, supra,

it is true that fear of harm alone cannot constitute

just cause. It is, however, a factor to consider where

there is a pre-existing bargain between the witness

and the government to excuse the witness from giving

testimony. In the Matter of John Doe, 410 F.Supp.

1163, 1166 (E.D. Mich. 1976).

— =

A determination of whether just cause exists requires

a balancing of equities and, surely, in this context,

the potential death of the witness demands some con-

sideration.

It is of pivotal importance that petitioner was not

in the position of an innocent bystander who, by happen-

stance, witnessed an offense. Instead, petitioner actively

became a government agent. The danger to ‘petitioner

does not flow from the fact that he was a mere witness,

but from the fact that he was an agent. For this

additional reason, petitioner’s case is readily distinguish-

able from Dupuy, supra. Accordingly, petitioner re-

quests that the case be remanded to allow petitioner

to present evidence of harm should he testify.

VI

If the Goverrment Can Obtain an Indictment and Con-

viction Without the Testimony of the Witness,

Petitioner Should Not Be Held in Civil Contempt.

At the Order to Show Cause hearing, defense counsel

attempted to elicit from counsel for the government

whether the government could indict and convict the

target subjects without the testimony of petitioner. Peti-

tioner urged that if that were the case, it would be

wrong to hold petitioner in contempt as the equities

suggested by “good cause shown” were clearly in peti-

tioner’s favor. (R.T., April 15, 20-22.)

The government asked for a ruling from the court

as to the necessity for divulging such information.

(R.T., April 15, 23-24.)

The court ruled that there was no legal requirement

for the government to reveal whether there were other

—-

witnesses who could provide the needed testimony.

(R.T., April 15, 25:2-12.)

Under the unusual circumstances of this case, i.e.,

some evidence of an agreement of confidentiality, the

court should properly have required the government

to state its good faith belief that the testimony is

essential.

“Federal law, 28 U.S.C. §1826, plainly contem-

plates a relatively broad latitude in which a district

judge may exercise his discretion in deciding wheth-

er to incarcerate a recalcitrant witness.” In re

Buonacoure, 412 F.Supp. 904 (E.D. Pa. 1976).

Given such discretion afforded by §1826 (“may”),

the court was called upon to perform a balancing of

the equities.

It is indisputably in petitioner's favor that he has

already sacrificed a great deal in voluntarily providing

invaluable assistance to the F.B.I. His life would un-

questionably be in danger were he to testify because

his testimony would eventually disclose his complicity

with the government. The reason that fear of retaliation

alone is not enough to excuse a refusal to testify

is based on society’s need for information.

“Every citizen of course owes to his society the

duty of giving testimony to aid in the enforcement

of the law... ‘[T]he public has a right to

every man’s evidence.’ ” Piemonte v. United States,

367 U.S. 559, 6 L.Ed.2d 1028, 1031, fn. 2,

81 S.Ct. 1720 (1961).

However, the underlying assumption must be that

such evidence is essential. Yet, in petitioner’s case,

the importance of his testimony is unknown. When

— =

balancing petitioner’s extreme interest against the un-

known importance of his testimony, petitioner’s interests

should prevail.

Vil

The Court Improperly Delegated the Designation of a

Suitable Place of Confinement to the United States

Marshal.

28 U.S.C. §1826(a) provides for a summary order

of confinement at a suitable place. This section has

been construed as giving wide discretion to the trial

court. When a witness was confined pursuant to $1826

and was directed to the custody of the Attorney General,

the Court of Appeals held as follows:

“Presumably the District Judge intended to exer-

cise his 28 U.S.C. §1826(a) privilege to select

_@ suitable place of confinement for Thurmond,

and we think it likely that the direction that

Thurmond be committed to the custody of the

Attorney General was an inadvertence arising from

the usual procedures for sentencing.” Jn re Grand

Jury Proceedings 534 F.2d 41, 43 (Sth Cir.

1976).

In the case at bar, although willing to make a

recommendation as to the place of confinement, the

court held that the discretion rested with the Federal

Marshal and not with the court. (R.T., April 15,

31-32.)

Accordingly, this matter should be remanded to the

District Court with instruction to exercise its discretion.

nbn

Vill

The Circuit Court of Appeals Is Required to

Address All Issues Raised on Appeal.

The Ninth Circuit Court of Appeals has ignored

its own pronouncement that an appeal in a criminal

case imposes on the appellate court the duty of deter-

mining all questions properly raised by petitioner. Leahy

v. United States, 272 F.2d 487 (9th Cir. 1959).

Petitioner raised seven issues of substantial impor-

tance on appeal. In its Memorandum Opinion, the

Court of Appeals addressed but one issue, the sufficien-

cy of the evidence. Even that contention was summarily

disposed of in two sentences. In its obvious haste

to reach a decision within the thirty day rule of 28

U.S.C. §1826(b), the Court of Appeals overlooked

or ignored valid appellate issues. Issues as critical as

due process, burden of proof, and propriety of test

utilized by the District Court, brought before the Court

of Appeals by petitioner were ignored.

Petitioner is entitled to have all these issues decided

in order to provide the precursor for review by this

Court. The Ninth Circuit’s brief order under the cir-

cumstances of this appeal—in camera, and thus unpub-

lished, and expedited—gives the appearance that peti-

tioner deserves less attention than other appellants in

different circumstances. The kind of terse opinion issued

is more appropriate to a non-meritorious writ than

an appeal. When an appeal is undertaken, each issue

raised is entitled to determination. From the Court

of Appeals’ opinion in petitioner’s case, it appears

that the majority of the issues were not even consid-

ered.

anion

Conclusion.

For the foregoing reasons, petitioner respectfully sub-

mits that the Writ of Certiorari should be granted

as prayed for.

Respectfully submitted,

LAPPEN, ABELSON AND HARRIS,

A Professional Corporation,

By RoBERT N. Harris,

Attorneys for Petitioner.

APPENDIX “A”.

Memorandum.

United States Court of Appeals, for the Ninth Cir-

cuit.

‘In re Grand Jury Witness, “JOHN DOE,” Appellant,

v. United States of America, Appellee. No. 77-1913.

Filed: May 10, 1977.

Appeal from the United States District Court for

the Central District of California.

Before: ELY, HUFSTEDLER and CHOY, Circuit

Judges.

The appellant challenges his obligation to answer

questions put to him by a regularly constituted Grand

Jury. He alleges that when he previously spoke to

a government investigator in respect to the subject,

the investigator made the positive representation that

all revelations made by the appellant would remain

confidential, disclosed to none save the investigator.

After conducting a hearing, the district court found

that the investigator had made no such representation.

This finding, supported by substantial evidence, is fatal

to the appellant’s asserted right to recalcitrance.

AFFIRMED.

/s/ Walter Ely

/s/ Shirley Hufstedler

/s/ Hubert Y. C. Choy

UNITED STATES CIRCUIT JUDGES

— oe

APPENDIX “B”.

Order.

United States Court of Appeals, for the Ninth Circuit.

In re Grand Jury Witness, “JOHN DOE”, Appellant,

v. United States of America, Appellee. No. 77-1913.

Filed: May 26, 1977.

On Petition For Rehearing

Before: ELY, HUFSTEDLER, and CHOY, Circuit

Judges.

The Petition for Rehearing is denied.

/s/ WALTER ELY

oibbins

APPENDIX “C”,

Order Staying Issuance of Mandate.

In re Grand Jury Witness John Doe, Appellant,

vs. United States of America, Appellee. No. 77-1913,

DC # Misc. 5853.

Filed: June 16, 1977.

Upon application of Elliot J. Abelson, Esq. counsel

for the Appellant, and good cause appearing, IT IS

ORDERED that the issuance, under Rule 41(a) of

the Federal Rules of Appellate Procedure, of the certi-

fied copy of the judgment of this Court in the above

cause be and hereby is stayed pending the filing, con-

sideration and disposition by the Supreme Court of

the United States of a petition for writ of certiorari

to be made by the Appellant herein, provided such

petition is filed in the Clerk’s Office of the Supreme

Court of the United States on or before June 27,

1977.

In the event the petition for writ of certiorari is

granted, then this stay is to continue pending the

final disposition of the case by the Supreme Court

of the United States.

/s/ Walter Ely

WALTER ELY

United States Circuit Judge.

DATED: Maui, Hawaii

June 13, 1977

aunties

APPENDIX “D”.

Amendment V.

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when

in actual service in time of war or public danger;

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use without just compensa-

tion.