Reply Brief — United States v. Ward

FOR ARGUMENT

.

Supreme Court, U.S.

fe Se et

FEB 22 1980

No. 79-394

TTI. JR, CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

Vv.

L. O. WARD d/b/a L. O. WarpD OIL AND

GAS OPERATIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

WADE H. MCCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 205306

INDEX

CITATIONS

Cases: Page

Andresen v. Maryland, 427 U.S. 4638........ 4,13

Boteler v. Allington, 3 Atkyn 458 ............ 6,13

Boyd v. United States, 116 U.S. 616....12, 13, 14,

16

Brown v. Walker, 161 U.S. 591 ................ 4,16

Bryan v. State, 40 Ga. 688 ......................-- 12

Counselman v. Hitchcock, 142 U.S. 547.... 16

East India Co. v. Campbell, 1 Vesey Sr.

RR MN ret AD Se Rarer et Corea eer MORONS 5

Fisher v. United States, 425 U.S. 391...... 6, 13

Geyger’s Lessee v. Geyger, 2 U.S. (2 Dall.)

RIOR ROS TON NTR RN TON NTO ae 11

Harrison v. Southcote, 1 Atkyn 527 ........ 5, 6

C. J. Hendry Co. v. Moore, 318 U.S. 133.. 9

Kastigar v. United States, 406 U.S. 441.. 17

Lees v. United States, 150 U.S. 476 ........ 15

McCarthy v. Arndstein, 266 U.S. 34........ 3

Michigan v. Tucker, 417 U.S. 488 ............ 4

One Lot Emerald Cut Stones v. United

Ae th SS. . eae 15, 16

One 1958 Plymouth Sedan v. Pennsyl-

ge ea ER 15-16

Poindexter v. Davis, 6 Grat. 481 _............. 12

Smith v. Read, 1 Atkyn 526 —..0000000000000.. 5, 6

The Trial of Sir Jonathan Freind, XIII

RI dine shehiatiocalsetirmcsnassociosacesomies 5

Ullmann v. United States, 350 U.S. 422... 4,16

United States v. United States Coin &

Currency, 401 U.S. 715 ..0.......... ORV EL 15

II Ill

1 Elliot, Debates on the Federal Constitu-

WO EE oiiicrcce teu een oe? 11

3 Elliot, Debates on the Federal Constitu-

WN SE ae on eee 11

a P

re — eeiaase — Miscellaneous—Continued Page

ae ee Canaan: H.R. Rep. No. 2606, 83d Cong., 2d Sess.

Fifth Amendment ............................... passim (| TREES a aS ne ee 17

Self-Incrimination Clause ......... 2,11, 18 L. Levy, Origins of the Fifth Amendment

: OU sie ier 2, 3, 4, 7, 8, 9, 10, 11

Sixth Amendment .........-----.--------------- 11 Morgan, The Privilege Against Self-In-

Act of February 25, 1868, ch. 13, 15 Stat. crimination, 34 Minn. L. Rev.1 (1949). 5

BT wneneovennnsncneeennesencesnpesesnesenneecnetnnsssenuetoneees 16, 17 II National Commission on Reform of

Act of F ebruary Ay 1893, ch. 83, 27 Stat. Federal Criminal Laws, Working Pa-

hideutapemmeerare sveriseteeeeeeenecneneeeeneeees 16, 17 gore (1070) 18

Federal Water Pollution Control Act, Sec- Note, Applicability of Privilege Against

yee 311 (b) (6), 33 U.S.C. 1821 (b) (6).. } Self-Incrimination to Legislative Inves-

Judiciary Act of 1789, ch. 20, Section 15, tigations, 49 Colum. L. Rev. 87 (1949)... 4,11

1 Stat. ee 3, 11, 12, 14 Pittman, The Colonial and Constitutional

Immunity Act of 1954, ch. 769, 68 Stat. History of the Privilege Against Self-

TAD weeccnneenceeeenneneenccetnneeettnceetnneettanee - Incrimination in America, 21 Va. L.

18 U.S.C. 6002 Peewee wwe ewe cw eee w cw ene ccc ec cccccccecnscees 17 Rev. 763 (1935) SOR Ee re Rte Cea 2

ae ne S. a 153, 83d Cong., Ist Sess. -

1 Annals of Congress (Aug. 17, 1789): Warren, New Light on the History of the

th RP to ce 8 a 9 Federal Judiciary Act of 1789, 37 Harv.

ett RCS LMS ee A 34 L. Rev. 49 (1923) A6eCtsteeseeiOnetetnendasscusensn 14

8 J. Wigmore, Evidence (McNaughton

57 Cong. Globe 429 (1862) 0. 17 rev. 1961):

78 Cong. Globe (1868) :

EE ina ae 4

ae NEAREST RCE TE 17 SEAS see eee 13

SCR IAL ire een Cr OE AU AD ee ete 17 eee 5

23 Cong. Rec. 6332-6333 (1892) _........... 17 2 L. Wroth and H. Zobel, Legal Papers

24 Cong. Rec. 335, 503, 708-709 (1898). 17 of John Adams (1965)... 9,10

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-394

UNITED STATES OF AMERICA, PETITIONER

Vv.

L. O. WARD d/b/a L. O. WARD OL AND

GAS OPERATIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

Respondent, invoking the Fifth Amendment privi-

lege against compulsory self-incrimination, argues

that he could not be compelled to be a witness against

himself in the instant proceedings to assess and re-

cover a “civil penalty” under Section 311(b) (6) of

the Federal Water Pollution Control Act. So saying,

he must of course overcome the plain language of the

Fifth Amendment, providing that “No person * * *

shall be compelled in any criminal case to be a wit-

(1)

2

ness against himself, * * *” (emphasis added). In an

effort to demonstrate that the Fifth Amendment does

not mean what it says, respondent has advanced an

elaborate historical argument, presented for the first

time in this Court, which he suggests shows that

suits by the government to recover forfeitures and

penalties—apparently all forfeitures and penalties—

are within the sweep of the privilege. We address

that new contention here.

1. a. The most conspicuous defect in respondent’s

argument based on English and Colonial materials

is that all of these predate consideration and ratifi-

cation of the Fifth Amendment. The Self-Incrimina-

tion Clause of that Amendment was, as respondent

acknowledges (Resp. Br. 24-26), deliberately limited

in its application to “criminal cases.” When James

Madison first proposed amendments to the Constitu-

tion, the privilege was stated in broad terms: “no

person * * * shall be compelled to be a witness against

himself.” 1 Annals of Congress 434 (June 8,

1789). Conceivably, this language would have been

broad enough to permit a defendant in a civil penalty

proceeding (or, indeed, in any civil case) to decline

to testify, although it is unlikely the provision was

intended to have this reach.’ But, however that may

'The corresponding provision in the Virginia Declaration

of Human Rights, though written in similarly broad terms,

was contained in Section 8 of the Declaration, which other-

wise dealt with rights obtaining in criminal cases. L. Levy,

Origins of the Fifth Amendment 405-407 (1968); Pittman,

The Colonial and Constitutional History of the Privilege

Against Self-Incrimination in America, 21 Va. L. Rev. 7638,

3

be, when the special committee appointed to consider

Madison’s proposed amendments recommended that

the same language be used in describing the privilege,

Rep. Lawrence of New York stated that he “thought

it ought to be confined to criminal cases, and moved

an amendment for that purpose; which amendment

being adopted, the clause as amended was unani-

mously agreed to * * *.”? 1 Annals of Congress 753

787 (1935). The Virginia Declaration of Human Rights has

long been recognized as a model for the Bill of Rights.

Levy, supra, at 409. Respondent’s reliance (Resp. Br. 24) on

comparably broad language in the Declarations of Rights of

Maryland and Delaware (the only two state provisions in

which the right was not included in a section dealing ex-

pressly with rights obtaining in criminal cases, Levy, supra,

at 423), is therefore misplaced. Moreover, respondent cites no

authority, and we have found none, for his bald assertion that

the drafters of the Maryland and Delaware Declarations in-

tended “‘to make clear that the privilege applied in cases such

as penalties and forfeitures, regardless of their designation as

criminal or civil” (Resp. Br. 24). We would have no quarrel

with this statement, of course, if respondent meant only that

a defendant or a witness in a civil penalty or forfeiture action

or other civil case could have asserted a privilege if his testi-

mony would reasonably expose him to prosecution for a crim-

inal offense. The Fifth Amendment itself protects testimony in

civil cases to this extent. See, e.g., McCarthy v. Arndstein, 266

U.S. 34, 40 (1924).

* As respondent points out (Resp. Br. 25), several commen-

tators have suggested that the Fifth Amendment privilege

was confined to “criminal cases” in order to avoid any possi-

bility of conflict with Section 15 of the Judiciary Act of 1789,

ch. 20, 1 Stat. 82, which provided for courts of the

United States to order discovery where consistent with then-

4

(Aug. 17, 1789). Thus, it is clear that Congress de-

liberately limited the scope of the clause to “crimi-

nal cases.”

b. In any event, the historical materials relied

upon by respondent do not support his position. The

English precedent cited by respondent (Resp. Br. 12-

16) is largely irrelevant. It is now well established

that the Fifth Amendment privilege was adopted in

response to inquisitorial procedures of the Star Cham-

ber and ecclesiastical courts, “which placed a premium

on compelling subjects of the investigation to admit

guilt from their own lips.” Andresen v. Maryland,

427 U.S. 468, 470 (1976), quoting Michigan v.

Tucker, 417 U.S. 438, 440 (1974). See also Ullmann

v. United States, 350 U.S. 422, 428 (1956); Brown

v. Walker, 161 U.S. 591, 596 (1896); L. Levy,

Origins of the Fifth Amendment (1968) (herein-

after Levy); 8 J. Wigmore, Evidence § 2250 (Mc- .

Naughton rev. 1961) (hereinafter Wigmore).

prevailing rules of chancery concerning bills of discovery. See

Levy, note 1, supra, at 425-426; Note, Applicability of Privi-

lege Against Self-Incrimination to Legislative Investigations,

49 Colum. L. Rev. 87, 90-94 (1949). This suggestion is based

on the statement by Rep. Lawrence, in proposing the limita-

tion, that the language originally offered by Madison and

reported by the Committee “contained a general declaration,

in some degree contrary to laws passed.” 1 Annals of Con-

gress 753 (Aug. 17, 1789). The Judiciary Act had been

approved by the Senate prior to the House’s consideration of

the Bill of Rights, although it had not actually “passed” the

House or the Congress at that time.

Sad

5

In contrast, the English cases upon which respond-

ent relies, with one exception,’ all involved bills in

equity in which a party to a private action at law

sought to compel discovery of evidence pertaining to

the lawsuit. In each, the court declined to compel

discovery on the ground that the individual from

whom the evidence was sought could have been re-

quired to admit facts that would have exposed him

to a forfeiture or penalty. But except where the re-

sponse would have clearly implicated the defendant

in the commission of a crime (see Hast India Co. v.

Campbell, 1 Vesey Sr. 245 (1749); Resp. Br. 16),

these cases do not involve a privilege analogous to

that of the accused in a criminal proceeding; they

were instead based on the traditional maxim that

equity will not aid a forfeiture. 8 Wigmore, supra,

at § 2256; cf. Morgan, The Privilege Against Self-

Incrimination, 34 Minn. L. Rev. 1, 11 (1949). They

therefore shed no light on the present question.

For example, the plaintiff in Smith v. Read, 1

Atkyn 526 (1736), and Harrison v. Southcote, 1

Atkyn 527 (1751) (see Resp. Br. 13-14), contested

the defendant’s title to land on the ground that the

defendant had acquired land by purchase or devise

8’ The one exception cited by respondent, The Trial of Sir

Jonathan Freind, XIII State Trials 1 (1696), recognized the

right of a witness in a prosecution for high treason to refuse

to answer whether he was a Catholic or a Protestant. But

in the passage quoted by respondent (Resp. Br. 13), it appears

that the answer may have implicated the witness in a crime.

Thus, this case is fully consistent with the accepted scope of

the Fifth Amendment privilege.

6

from a person who had purchased it from plain-

tiff’s ancestor in violation of an Act of Parliament

prohibiting Catholics from acquiring land. The plain-

tiff in each case had brought a bill in equity to dis-

cover whether the person through whom defendant

claimed was a “papist” at the time of purchase. The

court held that the defendant was not bound. to an-

swer because “he [would be required] to discover a

disability in himself; and there is no difference be-

tween a forfeiture of a thing vested, and a disability

to take, inflicted as a penalty * * *.” Smith v. Read,

supra, 1 Atkyn at 527; see also Harrison v. Southcote,

supra, 1 Atkyn at 538-539. The Fifth Amendment

would not stand as a comparable barrier to dis-

covery or testimony in a civil suit merely because it

might expose a defect in a party’s or witness’s title

to property.*

Likewise, in Boteler v. Allington, 3 Atkyn 453

(1746) (Resp. Br. 15), the defendant resisted dis-

covery because to answer might have revealed that

he was in violation of a law prohibiting a member

of the clergy from accepting a second ecclesiastical

living. The penalty for accepting a second living was

to “forfeit” the first living, and the court held that the

defendant could not be compelled to give responses

that might result in such a forfeiture. Jd. at 456.

The opinion appears to rely on little more than the

fact that adverse consequences would result if the

*It is also clear that one person cannot assert the Fifth

Amendment privilege of another. Fisher v. United States, 425

U.S. 391, 396-401 (1976).

7

individual responded—a privilege far beyond that

embodied in the Fifth Amendment.

The English cases involving bills in equity to com-

pel discovery therefore have little relevance to the

proper construction of the constitutional privilege,

which, as noted above, sprang from quite different

origins in reaction to proceedings in the Star Chamber

and ecclesiastical courts.

ec. The American Colonial history relied upon by

respondent (Resp. Br. 19-26) is no more helpful to

his cause. Respondent first discusses (id. at 19-20)

the public opposition in New York to a requirement

that all persons suspected of violating a law pro-

hibiting fur trading between Albany and Quebec

take an oath that they had not engaged in such

trading. Refusal to take the oath automatically con-

victed the individual of the crime of illicit trading

and subjected him to a fine of $100. Levy, supra, at

381. This episode therefore has no bearing on the

application of the privilege in cases involving a non-

criminal monetary penalty.

Respondent also errs in relying (Resp. Br. 21-22)

on circumstances surrounding consideration of a Mas-

sachusetts law enacted in 1754 requiring purchasers

of liquor to report to the tax collector the amount

spent on liquor each year. If anything, the episode

reflects an understanding that the privilege was lim-

ited to criminal cases. It is not clear that the pur-

chaser would have exposed himself to a fine or penalty

of any nature merely by subscribing to the oath ac-

knowledging liquor purchases, although the oath may

8

have disclosed some purchases on which taxes were

not paid. Samuel Cooper, an opponent of the oath,

referred to the privilege and noted that a require-

ment that a person clear himself of “innocent” be-

havior—.e., purchasing liquor—was equally perni-

cious. Cooper characterized the privilege as holding

that “no Man is held to convict himself in any Affair

whereof he is accus’d” (emphasis added), suggesting

that only compulsory self-accusation of a criminal

offense was protected, and said that a supporter of

the practice “could a fortiori prove, that this practice

is defensible in ‘Criminal Cases’” (emphasis added).

Levy, supra, at 386.

Finally, respondent relies on two celebrated in-

stances of forfeiture of vessels or money in the Courts

of Vice Admiralty. Using writs of assistance, cus-

toms officials were authorized in the mid-eighteenth

century to search for contraband on vessels in Amer-

ican ports in violation of revenue or trade laws. The

customs officials were then empowered to bring an

action for penalties or forfeitures in the Courts of

Vice Admiralty, which followed civil, not common

law. The cases were initiated by accusation or infor-

mation, not indictment; there was no right to a jury

trial, as there was in common law courts; and ex-

amination of witnesses could be conducted in secret.

See generally Levy, supra, at 395. Indeed, these ac-

tions were often brought in the Courts of Vice Ad-

miralty, rather than in the common law courts having

concurrent jurisdiction over them, in order “to have

access to a forum not controlled by the obstinate re-

sistance of American juries” to the Navigation Acts.

9

See C. J. Hendry Co. v. Moore, 318 U.S. 183, 141

(1948).

In one of the incidents upon which respondent re-

lies, a ship belonging to Henry Laurens of South

Carolina was seized for technical violations of the

law. As part of the proceedings, the court required

the searcher of the port to take an oath of calumny

that he was not maliciously motivated in seizing the —

ship, thereby insulating the searcher from liability to

Laurens in any damage action for seizing the vessel

without probable cause. In publicly denouncing pro-

ceedings in the Court of Vice Admiralty, Laurens and

his supporters appeared to confuse the oath of cal-

umny with compelled self-incrimination. In any event,

the presiding judge in the Vice Admiralty Court re-

plied to Laurens’ charges that the procedure was in

violation of the privilege by noting that the privilege

in question applied where a person must “accuse him-

self criminally,” and this was not, the judge said, a

criminal case. Levy, supra, at 395-397.

Similarly, John Hancock’s vessel Liberty was

seized, condemned, and forfeited, and an action, Se-

wall v. Hancock, was brought in personam against

Hancock in the Court of Vice Admiralty in Boston

for forfeiture of money in three times the amount of

goods forfeited. John Adams argued that suits for

penalties and forfeitures in such courts violated the

English constitution because these cases should be ©

tried in open court before juries with open examina-

tion of all concerned. See generally 2 L. Wroth and

H. Zobel, Legal Papers of John Adams 172-210

(1965). There was, as respondent points out (Resp,

=

10

Br. 23), published opposition to the “Star Chamber

Proceedings” of the Vice Admiralty Court because of

the inquisitorial method of examining citizens in pri-

vate in hopes that evidence supporting the charges

could be found. Levy, supra, at 397-398. But there

is no indication in Sewall v. Hancock, as there was

none in the Laurens case, that any witness was forced

to testify in a manner that would have exposed him

to forfeiture. Jd. at 398. Thus, while the episodes

reflect a decided opposition to the secret procedures

utilized in forfeiture proceedings in the Courts of

Vice Admiralty (which proceedings were perceived

as highly penal in character, Wroth and Zobel, supra,

at 188 n.62, 197-198), they shed little light on the

scope of the privilege later incorporated in the Fifth

Amendment.

d. It is against this background that the Congress

expressly limited the Fifth Amendment privilege to

“criminal cases.” Because the history cited by re-

spondent prior to ratification does not reflect an ac-

cepted recognition of the privilege (as opposed to

equitable rules of discovery) going beyond a right

to refuse to testify where the result would be to ex-

pose the individual to criminal liability, there is

simply no basis for respondent’s unsupported asser-

tion that “by leaving the wording ‘criminal’ in the

self-incrimination clause, * * * the protection would

still extend to fines and forfeitures, regardless of

their characterization by the legislature” (Resp. Br.

25-26). To the contrary, the inference can only be

that Congress meant what it said. It did, after all,

use the term “criminal prosecution” in describing the

11

cases in which an accused is entitled to the various

procedural protections afforded by the Sixth Amend-

ment, and there is no reason to believe that Congress

intended the word “criminal” to have different mean-

ings in the two amendments.°

It is particularly instructive in this regard that

Congress separately addressed the very concerns re-

flected in the English discovery cases cited by re-

spondent when it enacted the Judiciary Act of 1789.

This was, of course, during the First Congress, when

the Bill of Rights was considered and proposed to

the States. Section 15 of the Judiciary Act, ch. 20,

1 Stat. 82, provided that all courts of the United

States shall have the power in the trial of actions

at law “to require the parties to produce books or

writings in their possession or power, which contain

evidence pertinent to the issue, in cases and under

circumstances where they might be compelled to pro-

duce the same by the ordinary rules of proceeding in

chancery; * * *” (emphasis added). The purpose of

this provision was to avoid the necessity for a party

in a civil suit to file a separate bill in equity to com-

pel discovery. Geyger’s Lessee v. Geyger, 2 U.S. (2

Dall.) 3382, 383 (Cir. Ct. Pa. 1795). The emphasized

5’ The various state conventions assembled to ratify the

Constitution that recommended adoption of an amendment

similar to that later included in the Self-Incrimination Clause

all expressly limited their concern to persons accused or sus-

pected of a crime. See, e.g., 1 Elliot, Debates on the Federal

Constitution 328 (New York) (2d ed. 1836) ; 3 Elliot, Debates

on the Federal Constitution 447-448, 481-482, 658 (Virginia)

(1886) ; see Levy, supra, at 420-421; Note, note 2, supra, 49

Colum. L. Rev. at 90-91.

12

phrase in Section 15 incorporated the various rules

of chancery pertaining to bills of discovery, presum-

ably including that denying compelled discovery which

might tend to convict a party or forfeit his property.

Boyd v. United States, 116 U.S. 616, 631 (1886).

There is no reason to believe, however, that when

Congress proposed the Fifth Amendment to the Con-

stitution in response to fears of quite different origin

regarding the criminal process, it swb silentio consti-

tutionalized the rules of chancery existing at the time

of ratification in civil disputes between private

parties.

2. Respondent has not demonstrated on the basis

of post-ratification precedent that the Fifth Amend-

ment was intended to embody all aspects of the

maxim that equity will not aid a forfeiture or pen-

alty. He does cite (Resp. Br. 26-31) a number of

state cases in which witnesses were excused from

testifying on the ground that their testimony might

subject them to a “penalty” or “forfeiture” in addi-

tion to possible criminal liability. But these cases

were based on non-constitutional rules of evidence

derived from the equitable maxim just stated (see,

e.g., Poindexter v. Davis, 6 Grat. 481, 490 (Va. 1850)

(Resp. Br. 28) ; Bryan v. State, 40 Ga. 688, 689 (Ga.

1870) (Resp. Br. 29)); none relied on the privilege

against self-incrimination contained in the Fifth

Amendment or comparable provisions in the respec-

tive state constitutions.

Moreover, Wigmore notes that, prior to 1868, the

privilege had been mentioned in only 15 reported

federal cases, and in none was the Constitution re-

13

ferred to. 8 Wigmore, supra, § 2252, at 325. Wig-

more suggests that the absence of litigation on the

scope of the constitutional privilege probably re-

sulted from the fact that until the end of the nine-

teenth century, a criminal defendant was not per-

mitted to testify because of his interest in the case

and the “question of the application of the narrow

constitutional clause [therefore] never arose. The

broader protection—of witnesses, and in civil cases—

was given during the first years of this nation solely

on the basis of well-established common law, without

reference to constitutions” (id. at 324-325).

Thus, when the Court considered the scope of the

Fifth Amendment privilege in Boyd v. United States,

supra, the case upon which respondent principally re-

lies (Resp. Br. 32-34), it wrote on a relatively clean

slate. The decision in Boyd is written in sweeping

language, and “[s]everal of Boyd’s express or implicit

declarations have not stood the test of time.” Fisher

v. United States, supra, 425 U.S. at 407. See gen-

erally, id. at 407-414; Andresen v. Maryland, supra,

427 U.S. at 471-473. But despite the broad language

of the opinion generally, the precise holding of the

Court on the question whether the Fifth Amendment

privilege applied in the particular forfeiture pro-

ceeding before it was that “proceedings instituted for

the purpose of declaring the forfeiture of a man’s

property, by reason of offences committed by him,

though they may be civil in form, are in their nature

criminal” for purposes of the Fifth Amendment

privilege. 116 U.S. at 634 (emphasis added). The

Court was careful to point out that the forfeiture

14

was, like the provision for imprisonment or fine for

violation of the statute, one of the “penalties affixed

to the criminal acts.” 116 U.S. at 634. Thus, al-

though there may be some question whether the

Court in Boyd correctly extended the Fifth Amend-

ment privilege to a forfeiture proceeding that was

not actually a “criminal case,” the Court’s decision is

nonetheless rooted in that deliberately limiting phrase

of the Amendment because the opinion stresses that

liability for a forfeiture under the statute involved

was dependent on the commission of an underlying

criminal offense.

Respondent also errs in relying (Resp. Br. 33-34)

on the Boyd Court’s discussion of Section 15 of the

Judiciary Act of 1789, which permitted courts of the

United States to compel discovery under circum-

stances where discovery might be compelled under

ordinary rules of proceedings in chancery. See 116

U.S. at 630-682; pages 11-12, supra. The Court

reasoned that the views of the first Congress on the

question of compelling a person to produce evidence

against himself could be “inferred” from what the

Court termed this “remarkable” Section 15. 116 U.S.

at 630-631. But there was nothing in the least re-

markable about Section 15 or its incorporation of

rules of chancery. Cf. Warren, New Light on the His-

tory of the Federal Judiciary Act of 1789, 37 Harv.

L. Rev. 49, 95-96 (1923). Congress simply mandated

that established discovery procedures be followed, but

without the necessity of filing a separate bill in

equity. Thus, although Section 15 certainly does re-

15

flect the views of the first Congress with respect to

the production of documents in civil law suits, we

must conclude that the Court was mistaken if it

meant to suggest that a congressional intent to con-

stitutionalize all aspects of the rules of chancery

pertaining to penalties and forfeitures could likewise

be “inferred” from Section 15. Indeed as noted above

(see note 2, supra), several commentators have

stated that the proposed privilege was amended on

the House floor to restrict it to “criminal cases” for

the very purpose of preventing any overlap with

Section 15 of the Judiciary Act.

Subsequent decisions by this Court, relied upon by

respondent (Resp. Br. 34-39, 48-45), have confined

the holding in Boyd to forfeiture or penalty proceed-

ings that were dependent on the commission of an

underlying criminal offense. In Lees v. United States,

150 U.S. 476, 479-480 (1893), the Court noted that

the statutory penalty involved could have been re-

covered in either a criminal or civil action and

stressed that it was intended as punishment, thereby

underscoring a nexus to a criminal offense. In

United States v. United States Coin & Currency, 401

U.S. 715, 721-722 (1971), the Court stressed that the

particular forfeiture under the internal revenue laws

before the Court could be imposed “only upon those

who are significantly involved in a criminal enter-

prise.” The Court reiterated this reading of Boyd, as

limited to situations in which the forfeiture is de-

pendent on commission of a criminal offense, in One

16

Lot Emerald Cut Stones v. United States, 409 U.S.

232, 236, n.6 (1972).° See generally Pet. Br. 47-52.

There is, accordingly, no occasion to import respond-

ent’s novel construction of the phrase “criminal case”

into the Fifth Amendment at this late date.’

® One Lot Emerald Cut Stones also demonstrates the error

in respondent’s reliance on One 1958 Plymouth Sedan v. Penn-

sylvania, 380 U.S. 693 (1965), for the proposition that the

holding of the Court in Boyd regarding the application of the

Fourth Amendment extends to all forfeiture proceedings. As

the Court pointed out in One Lot Emerald Cut Stones, the

Court’s decision in One 1958 Plymouth Sedan “dealt with a

forfeiture that could not be had without a ‘determination that

the criminal law has been violated’” (409 U.S. at 236 n.6,

quoting 380 U.S. at 701).

7A number of immunity statutes considered by the Court

over the years provided that evidence produced by a party

pursuant to court order could not be used against him in any

criminal prosecution or for imposition of a penalty or forfei-

ture. See, ¢.g., Boyd v. United States, supra, 116 U.S. at 632

(Act of February 25, 1868, ch. 13, 15 Stat. 37); Brown V.

Walker, 161 U.S. 591, 593-594 (1896) (Act of February 11,

1893, ch. 83, 27 Stat. 443) ; Counselman v. Hitchcock, 142 U.S.

547, 560 (1892) (Act of February 25, 1868); Ullmann Vv.

United States, 350 U.S. 422, 423-424 (1956) (Immunity Act

of 1954, ch. 769, 68 Stat. 745). Aside from the opinion in

Boyd, which held that the immunity provision in the Act of

February 25, 1868, had been superseded with respect to the

case before it by a statute that did not provide immunity from

use of evidence to enforce a penalty or forfeiture (116 U.S.

at 632-633), the other decisions did not directly discuss the

constitutional significance of this immunity from penalties

and forfeitures. But cf. Cownselman v. Hitchcock, supra, 142

U.S. at 564 (suggesting that immunity need extend in actions

against a person or his property only “in a criminal proceed-

ing’).

However, it does not appear that the original extension of

immunity to enforcement of penalties or forfeitures in these

17

3. Respondent’s argument (Resp. Br. 40-43, 46-70)

that the “civil penalty” in the present case is in fact

statutes necessarily stemmed from constitutional concerns. It

might be expected, for example, that Congress would import

into these immunity statutes an immunity as broad as neces-

sary to meet the usual rule that discovery would not be com-

pelled where a forfeiture or penalty might result. Indeed, the

common law principle derived from the rules of chancery was

invoked during the debates in support of the Act of February

25, 1868, and no reference was made to the constitutional

privilege. See 78 Cong. Globe 950-951, 1834 (1868). The brief

debates on the Act of February 11, 1893, contain no discus-

sion of the forfeiture and penalty language. 23 Cory. Rec.

6332-6333 (1892); 24 Cong. Rec. 335, 503, 708-709 (1893).

The reports on the Immunity Act of 1954 are also unillumi-

nating. S. Rep. No. 153, 88d Cong., Ist Sess. (1953); H.R.

Rep. No. 2606, 83d Cong., 2d Sess. (1954). It is also of note

that Congress soon narrowed the scope of the first immunity

statute, Act of February 5, 1857, ch. 19, 11 Stat. 156, provid-

ing immunity for witnesses before congressional committees

from criminal prosecution or penalties or forfeitures, to pro-

vide immunity only from the use of evidence in criminal

proceedings. Act of January 24, 1862, ch. 11, 12 Stat. 333.

This was intended to correspond to the constitutional privi-

lege. 57 Cong. Globe 429 (1862) (remarks of Rep. Sumner).

The general immunity statute enacted in 1970, 18 U.S.C.

6002, does not contain an immunity for enforcement of penal-

ties and forfeitures. This provision was based on “a compre-

hensive study of immunity and the relevant decisions of this

Court, prepared for the Commission by Prof. Robert G. Dixon,

Jr., * * * and transmitted to the President with the recom-

mendations of the [National Commission on Reform of Fed-

eral Criminal Laws].” Kastigar v. United States, 406 U.S.

441, 452 n.36 (1972). Prof. Dixon noted that the phrase

“penalty or forfeiture” does not appear in the Fifth Amend-

ment and that its derivation in immunity statutes was unclear.

He recommended deleting it from immunity statutes, and in-

cluding merely the constitutional language “criminal case,”

leaving to case-by-case adjudication whether a particular for-

iammamaca ceca acca aa i ee

18

“criminal” for purposes of the Self-Incrimination

Clause, even if all forfeitures and penalties are not

embraced by that Clause, is fully discussed in our

opening brief, and will not be separately addressed

here.

For the foregoing reasons, and for the reasons

stated in our opening brief, the judgment of the

court of appeals should be reversed.

WADE H. MCCREE, JR.

Solicitor General

FEBRUARY 1980

feiture or penalty was within the ambit of Fifth Amendment

protection. However, if broader language was thought neces-

sary, he suggested the statute provide that a person granted

immunity shall not be “prosecuted or subjected to any criminal

penalty or criminal forfeiture.” II National Commission on

Reform of Federal Criminal Laws, Working Papers 1414-

1416, 1482-1433 (1970) (emphasis added). The latter formu-

lation was not adopted, but it reflects a reading of Boyd that

is fully consistent with our position herein.

Wl ou. 8. GOVERNMENT PRINTING OFFICE; 1980 314126 234