# Petition — Adams Extract Co. v. Franey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0792%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1102 ## Text 77° 3e8 | 1 NQ¥ 19 1960 MICHAEL RODAK, JR. CLERK | Supreme Court of the United States OCTOBER TERM, 1980 In re Corrugated Container Antitrust Litigation M.D.L. 310, ADAMS EXTRACT COMPANY, ET AL., Petitioners, vs. CHARLES J. FRANEY AND ALEX HOPKINS, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STEPHEN/D. SUSMAN LOWELL E. SACHNOFF MANDEL & WRIGHT ANDREW M. SCHATZ 806 Main Street, 21st Floor Barry S. ROSEN Houston, Texas 77002 SACHNOFF SCHRAGER JONES WEAVER & RUBENSTEIN, LTD. One IBM Plaza, Suite 4700 Chicago Illinois 60611 (312) 644-2400 (713) 228-1521 Pandick Press Midwest, Inc., Chicago © 454-7600 Questions Presented 1. Whether a court has authority to determine that testimony will be “derived from” previously immunized testi- mony pursuant to the federal immunity statute, 18 U.S.C. § 6002, in the context of a motion to compel testimony over a claim of Fifth Amendment privilege? 2. Whether a witness may be ordered to testify over a claim of privilege against self-incrimination where it is deter- mined that his testimony will be “derived from” previously immunized testimony and thus unavailable for use in future criminal prosecutions? 3. Whether deposition testimony is “derived from” pre- viously immunized testimony under the federal immunity stat- ute, 18 U.S.C. § 6002, where a transcript of the immunized testimony is used by duposing counsel to formulate the depo- - sition questions? il Parties To The Proceeding Below Plaintiffs: Accurate Metal Weatherstrip Company, Inc. Adams Extract Company After Six, Inc. Al Barker Publishing Co. The Amberley Greeting Card Co. Andre-Boudin Bakeries, Inc. Arcadia Furniture Corp. Atlas Container Co., Inc. Austin Products Co. Bateman Canning Co. The Beaumont Co. Bert Paley, Ltd. Bodines, Inc. Bookout & Mitchell Supply, Inc. Bowman Dairy Company, Inc. Burger King Corp. Cantrell & Cochrane, Inc. Carron Manufacturing Co., Inc. Continental Nut Co. Cook Distributing Co. Cook Produce, Inc. Co-Ordinated Industries, Inc. Covington Fabrics Corp. Dean Foods Co. Dean Foods Products Company Dean Milk Company Inc. Denver Meat Co. District Hotel Supply, Inc. Doranne of California d/b/a Embassy Giftwares Douglas Furniture Corp. Draper Canning Co., Inc. Draper-King Cole, Inc. Dulaney Foods, Inc. li Erie Seating Co. Falstaff Brewing Company Fox Deluxe Pizza Co. Furniture Plastics, Inc. Gandy’s Dairies, Inc. Gateway Farms, Inc. General Brewing Co. Golden Quality Ice Cream Co. Grace Brewing Co. Great Northern Packaging Corp. Green Bay Foods Griffin & Brand Sales Agency, Inc. Grist Mill Co. Haeger Potteries, Inc. Huron Packaging Corp. Shell-Tex Fisheries, Ltd. Sky View Cooling Co. Snyder-Craft Co., Inc. Speas Co. Steak and Ale Restaurants of America Sunmark, Inc. Tierra Royal Potteries, Inc. Town House Furniture Ltd. Trappe Frozen Foods Corp. United Farmers Cooperative, Inc. United Food Services, Inc. United Foods, Inc. Universal Cooperatives, Inc. Valley Avocado Sales, Inc. Valley Farms, Inc. Valley Plastics Inc. Walters Brewing Company West Publishing Co. Westside Paper Co. Williams Manufacturing Co. Winona Industries Winter Garden, Inc. Wittek Gold Supply Co., Inc. iv Non-Party Deponent-Appellants: Charles: Jerome Franey Philip Fleischacker Alex Hopkins Non-Settling Defendant In Jn re Corrugated Container Anti- trust Civil Litigation, M.D.L. 310: The Mead Corporation Other Defendants In Jn re Corrugated Container Antitrust Civil Litigation, M.D.L. 310: Alton Box Board Company Boise Cascade Corporation Champion International, Inc. The Chesapeake Corporation of Virginia Consolidated Packaging Corporation Container Corporation of America The Continental Group, Inc. Corco, Inc. Crown Zellerbach Corporation Diamond International Corporation Dura-Containers, Inc. Fibre Box Association Fibreboard Corporation Georgia-Pacific Corporation Green Bay Packaging, Inc. Hoerner Waldorf Corporation Inland Container Corporation International Paper Company Interstate Container Corporation Longview Fibre Company MacMillan Bloedel, Inc. MacMillan Bloedel Containers Inc. Menasha Corporation Olinkraft, Inc. Owens-Illinois, Inc. Packaging Corporation of America Potlatch Corporation St. Joe Paper Company St. Regis Paper Company Southwest Forest Industries, Inc. Stone Container Corporation Union Camp Corporation U.S. Corrugated Fibre-Box Company Western Kraft East, Inc. Westvaco Corporation Weyerhaeuser Company Willamette Industries vi TABLE OF CONTENTS Page RNIB 5, 2.5.8 £s cchcnapins oimpebionibvedancaonsncabsvacorich i Parties to the Proceeding Below.............ccccccccsscsssceccescseeees li IO wishes itecihaotuntiiedasttasceecislimbovedins sane, eoivecskca l HUE RTA NMDSN rE, NODE 2 Constitutional and Statutory Provisions Involved............ 2 cg LE Al SR Lae ALICE 2 Reasons for Granting the WFit.............ccccccccsccsscesceecceeceeees 6 I. The Writ Should Be Granted to Resolve A Direct Conflict Between The Courts of Appeals................ 6 II. The Writ Should Be Granted To Correct The Court of Appeals’ Erroneous Determination That A Witness Cannot Be Compelled To Testify Where His Testimony Would Be Derived From His Previously Immunized Testimony..................-. 8 III. The Writ Should Be Granted To Resolve Impor- tant Questions Concerning Administration Of The Judicial System And To Prevent Unwarranted STEN WOUNDED «s.iccsnecsscscetbiecscccassacesbobacsissiubicabs ll GRE ER, SERRE TMNT Sa NTE ee 14 Vii TABLE OF AUTHORITIES Cases Page Appeal of Starkey, 600 F.2d 1043 (8th Cir. 1979)... 4, 6,9 Ellis vy. United States, 416 F.2d 791 (D.C. Cir. PURI TG, M.D.L. No. 310 FRANKLIN CONTAINER CO., ET AL., CIVIL ACTION NO. H-78-671 J PRETRIAL ORDER NO. 40 ORDER ADJUDGING CHARLES JEROME FRANEY TO BE IN CIVIL CONTEMPT OF COURT Class plaintiffs have made oral application pursuant to Title 28, § 1826, United States Code, for an order adjudging one CHARLES JEROME FRANEY to be held in civil con- tempt of this court for his refusal, without lawful cause or excuse, tO answer certain questions posed to him during the course of his oral deposition duly noticed and taken during the course of the above entitled litigation. Mr. Franey, on advice of counsel, has consistently refused to answer deposition questions as to his possible participation in an alleged price-fixing con- spiracy in the corrugated container industry on the grounds that such answers might tend to incriminate him. He is an employee of Mead, a defendant in this litigation, in their corrugated division. Mr. Franey has twice testified under grants of immunity as to the subject matter of this litigation. In August of 1977, he submitted to an interview by the Department of Justice in connection with a grand jury investigation of this industry. That testimony was given subject to a letter grant of immunity. He subsequently testified at the trial of several of the entities indicted by the grand jury, under an additional grant of immunity pursuant to 18 U.S.C. § 6002. Clearly, Mr. Franey cannot be prosecuted in either state or federal courts using the testimony thus elicited. Kastigar v. United States, 406 U.S. 441 (1972); Murphy v. Waterfront Commission, 378 U.S. 52 (1964). The immunized testimony cannot be used against him either directly or derivatively, as is made clear both by the Statute itself and by the case law. Kastigar at 560. The question at issue at this time is whether that use immunity will be nullified if the witness now repeats his testimony at depo- sition. Case law on this narrow point is quite scanty, only two reported cases having dealt with it. Jn re Order of Civil Contempt against Carlos Lee Starkey, 600 F.2d 1043 (8th Cir. 1979); In re Folding Carton Antitrust Litigation, 465 F. Supp. 618 (N.D. Ill. 1979), rev'd on other grounds, 609 F.2d 867 (7th Cir. 1979). In Starkey, the court found there was no possibility of a prosecutor’s using such deposition testimony, since it was clearly and thoroughly derived from the immunized testimony previously given. In Folding Carton, although ruling on other grounds that the witness had no substantial fear of prosecution, the court stated in dicta that it was not willing to make a prospective determination as to whether such deposition testi- mony was so derived from the immunized testimony as to make it unusable by some hypothetical later prosecutor. It is the opinion of this court that it must make that determination. During the course of the lengthy investigation into the corrugated container industry and of a three-and a half month trial in the criminal cases, hundreds of employees in the industry testified to matters which would possibly be in- criminating to them if they had not been granted immunity. There have been blanket invocations of the fifth amendment by 3b many, many of these same witnesses when called for deposition in these civil cases. It is essential to the discovery in this case and to the orderly preparation of the case for trial that the court make some determination as to the validity of these invocations of their fifth amendment rights. The court is in no way extending the previous immunity grants; merely it is determin- ing the validity of a refusal to answer questions, which refusal is based on an asserted fear of future prosecution. Zicarelli v. New Jersey Investigation Commission, 406 U.S. 472 (1972); United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976). The Court has therefore listened to the questions put to Mr. Franey, has studied the transcripts of his trial testimony and his interview with the government, and has ruled that all such questions may be answered without subjecting Mr. Franey to any possibility of future prosecution. This is because all the questions are either taken verbatim from the transcripts of his immunized testimony or are so closely related in subject matter and so clearly derived from the immunized testimony as to be thoroughly tainted and inadmissible against him in any con- ceivable future prosecution. In the extremely unlikely event that Mr. Franey is ever prosecuted by any sovereignty for matters raised by his answers to these questions, the prosecutor will have the heavy burden of proving that his case was derived wholly from independent evidence, and that burden could not be met as to this deposition testimony. Here there is no question as to whether the attorney conducting the deposition had access to the immunized testimony, a point which clearly troubled the court in Folding Carton; this court has read the relevant pages of the immunized testimony and ascertained that the questions asked were either taken verbatim from it or were very closely related to it. There is no question either as to whether Mr. Franey has somehow waived his immunity, as was done in United States v. Kuehn, 462 F.2d 427 (7th Cir. 1977). Mr. Franey has asserted his fifth amendment right and refused => 4b to answer, and he will only answer under this court’s order compelling him to do so. Finally, this order does not, as has been argued by two witnesses similarly situated, convert the use immunity granted Mr. Franey into transactional immunity. Mr. Franey remains hypothetically liable to prosecution for any crimes he may reveal in his testimony; merely he cannot be incriminated as to them by any evidence taken from his testimony or derived from it, however remotely. This use immunity, which the Supreme Court has held to be coextensive with the fifth amendment privilege, is all Mr. Franey is entitled to receive under 18 U.S.C. § 6002, and this order neither enlarges nor diminishes the scope of that immunity. THEREFORE, the said CHARLES JEROME FRANEY having knowingly and wilfully refused to obey said order which was made in the presence of said CHARLES JEROME FRANEY and his counsel in open court on March 5, 1980, as more fully appears in the record of these proceedings, and good cause appearing therefor, IT IS HEREBY ORDERED, ADJUDGED, AND DE- CREED that said CHARLES JEROME FRANEY shall be and hereby is found and determined to be in civil contempt of this court, under and pursuant to the provisions of Title 28, § 1826, United States Code, and the Federal Rules of Civil Procedure, and that said CHARLES JEROME FRANEY shall be and hereby is ordered to be remanded forthwith to the custody of the Attorney General of the United States to be confined at a suitable place for a period of 60 days, or until such time that said CHARLES JEROME FRANEY is willing to testify and answer the questions which this court has ordered him to answer, whichever period may be shorter; provided, however, that the period of such confinement of the said CHARLES JEROME FRANEY shall not exceed the life of the above- entitled litigation. Sb IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that said CHARLES JEROME FRANEY shall be and hereby is fined $5,000.00, which amount shall be paid at the time this order becomes final, unless said CHARLES JEROME FRANEY is then willing to testify and answer the questions which this court has ordered him to answer. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that this order shall be stayed until 5:00 p.m. CST, March 6, 1980, and shall expire at that time unless said CHARLES JEROME FRANEY shall have theretofore filed a notice of appeal from this order to the United States Court of Appeals for the Fifth Circuit, and shall expeditiously pursue it to completion, and in the event such notice of appeal is so filed this stay shall be continued pending such appeal to the date that said court of appeals files its order or judgment respecting such appeal, at which time this stay shall expire. DONE at Houston, Texas, this 6th day of March, 1980 JOHN V. SINGLETON, Jr. UNITED STATES DISTRICT JUDGE 6b IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION * IN RE CORRUGATED CONTAINER ANTITRUST LITIGATION THIS DOCUMENT RELATES | MDL. No. 310 TO ALL ACTIONS EXCEPT ams FRANKLIN CONTAINER CORP. ET AL., C. A. NO. H-78-671 4 PRE-TRIAL ORDER NO. 44 Plaintiffs’ motion to compel production of documents from the American Paper Institute having been presented to the court and the court having studied the document requests and the briefs on this matter, it is ORDERED that American Paper Institute shall produce within fifteen days all documents not previously produced, in its possession or control, which are responsive to paragraphs 4, 6-8, 11-14, 16-21 of the subpoena duces tecum addressed to and served upon the American Paper Institute and paragraphs 4, 6-8, 11-14 and 16-23 of the subpoena duces tecum addressed to the Fourdrinier Kraft Institute and served upon the American Paper Institute, except that the documents to be produced shall be limited to those which refer either to corrugated products or to linerboard, as that term is defined in the Schedule of Documents. Class plaintiffs shall reimburse the American Paper Institute for the reasonable costs of compliance with the subpoenas. 2. The motions to withdraw their requests for exclusion from the class of Sky View Cooling Company and Cook Producing, Inc. are GRANTED. Those two entities shall now be members of the class and subject to the provisions of Pretrial Order No. 35, paragraph 5(b) and (c). 7b 3. Alex Hopkins, a witness who gave immunized testi- mony in the grand jury investigation of the corrugated contain- er industry in Houston and also in the trial of H-78-11 and H- 78-12 in this court, and who has refused to answer on depo- sition in this civil cause verbatim questions from and questions derived from the same substantive matters as covered in his immunized testimony, in spite of this court’s ruling that such answers would be so clearly and thoroughly derived from the immunized testimony that they could never be used to prose- cute Mr. Hopkins and therefore that he has no legitimate fear of self-incrimination, it is hereby ORDERED, ADJUDGED, and DECREED that said Alex Hopkins shall be and hereby is found and determined to be in civil contempt of this court, under and pursuant to the provisions of Title 28, § 1826, United States Code, ard the Federal Rules of Civil Procedure, and that said Alex Hopkins shall be and hereby is ordered to be remanded forthwith to the custody of the Attorney General of the United States to be confined at a suitable place for a period of 60 days, or until such time that said Alex Hopkins is willing to testify and answer the questions which this court has ordered him to answer, whichever period may be shorter; provided, however, that the period of such confinement of the said Alex Hopkins shall not exceed the life of the above-entitled litiga- tion. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that said Alex Hopkins shall be and hereby is fined $5,000.00, which amount shall be paid at the time this order becomes final, unless said Alex Hopkins is then willing to testify and answer the questions which this court has ordered him to answer. 8b IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that this order shall be stayed until 5:00 p.m. EST, March 20, 1980, and shall expire at that time unless said Alex Hopkins shall have theretofore filed a notice of appeal from this order to the United States Court of Appeals for the Fifth Circuit and shall expeditiously pursue it to completion, and in the event such notice of appeal is so filed this stay shall be continued pending such appeal to the date that said court of appeals files its order or judgment respecting such appeal, at which time this stay shall expire. DONE at Houston, Texas, this 20th day of March 1980. JOHN V. SINGLETON, JR. UNITED STATES DISTRICT JUDGE APPENDIX C Ic UNITED STATES COURT OF APPEALS FIFTH CIRCUIT OFFICE OF THE CLERK August 14, 1980 TO ALL PARTIES LISTED BELOW: NO. 80-1284 —CORRUGATED CONTAINER ANTI 80-1307 TRUST LITIGATION, 80-1338 CHARLES J. FRANEY, ET AL. Dear Counsel: This is to advise that an order has this day been entered denying the petition(s) for rehearing, and no member of the panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the petition (__) for rehearing en banc has also been denied. See Rule 41, Federal Rules of Appellate Procedure for issuance and stay of the mandate. Very truly yours, GILBERT F. GANUCHEAU, Clerk By Deputy Clerk cc: Mr. Robert H. Singleton Mr. Harold C. Gaebe, Jr. Mr. Harold F. Baker Mr. Stephen D. Susman Mr. Barry T. McNamara Mr. Jerry G. Hill --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0792%3A1. Public record. Not legal advice.