Petition for Writ of Certiorari — Roe v. United States

re =

No: SEP 4 1987

in the a.

Supreme Court

of the

Anited States

October Term, 1987

RICHARD ROE,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

JOHN F. EVANS, ESQ.

KENNETH R. PIERCE, ESQ.

HOLLY R. SKOLNICK, ESQ.

G. RICHARD STRAFER, ESQ.

ZUCKERMAN, SPAEDER, TAYLOR

& EVANS

2100 Ponce de Leon Blvd.

Suite 1100

Coral Gables, FL 33134

(305) 444-1911

ad

Questions Presented for Review

Li Is there a "real and substantial"

fear of self-incrimination where: (A) the

compelled testimony of a witness will vio-

late the laws of a specific foreign

country; (B) the attorney general of the

foreign country has stated that he will

prosecute individuals for such violations;

and (C) while extradition is now not

possible, the witness has substantial ties

to the foreign country, travels frequently

to the foreign country, has relatives in

the foreign country, and owns a home in the

foreign country, so that compelling the

witness to testify will effectively force

the witness to forfeit important liberty

and property rights?

Las Does the Fifth Amendment privilege

against self-incrimination extend to the

"real" and "substantial" fear of

prosecution by a foreign country?

TABLE OF CONTENTS

Questions Presented for Review............ i

EE ee ii

SS a ‘ iv

CTL Cec Ce cchaeteseesseweeasees® 1

eek ee eeeeeebeeeneeees 1

Relevant Constitutional and

BEMGCUCOLY FPFOVISLONG. «ccc ccccce i<aawe

menue GP Dee CASE... cc tcc ccc 2

ee eae 2

The Decision of the District Court

Por tne District of Columbia........ 7

The Decision of the United States

Court of Appeals for the

Discreet Of Columbia Circuit........ M4

REASONS FOR GRANTING THE WRIT.....11

Ba THE WRIT SHOULD BE GRANTED TO

RESOLVE CONFLICTS AND CONFUSION

AMONG THE FEDERAL COURTS

REGARDING WHAT CONSTITUTES A

"REAL AND SUBSTANTIAL" FEAR OF

PROSECUTION BY A FOREIGN COUNTRY...11

A. The Federal Circuits have

Developed Conflicting "Special

Factors" and Different "Tests"

which Have Led to Disarray and

EMGOMOLSEGNE DECISIONS... cccccccves 12

At =

B. The Decision by the Court of

Appeals, As Well As Other

Circuits, Have Failed To Follow

Supreme Court Precedents........... 17

C. The Decision By the Court of

Appeals Impermissibly Requires

the Witness to Forgo Important

Com@Ci tutional RIsNEGs..cseavesoece 23

Il. THE WRIT SHOULD BE GRANTED TO

RESOLVE THE CONFLICT AMONG THE

FEDERAL COURTS WHETHER THE RIGHT

AGAINST SELF-INCRIMINATION EXTENDS

TO THE FEAR OF» PROSECUTION BY A

WORT CUNNING i555 5k coed dencacesds 26

CONCEABTIN sunny ca weve es ei eae eee 29

CERTIFICATE OF GEIWIKE 2 insscssc cs csca 30

- iii -

TABLE OF AUTHORITIES

Cases

Application of President's Commission

on Organized Crime (Scaduto),

763 F.2d 1191-

CRUG Gals Pee bes ececceses 13-14, 21-22

Califano v. Aznavorian,

DIP Gels UFG CIPIE) 6 cecesccenseces 23-24

Chaffin v. Stynchcombe,

BUS Gals TF CUPIS) seecccesesseceseace 25

Haig v. Agee,

BOS Voss 200 CI9ST) ccccccccccccces 23-24

Hoffman v. United States,

341 U.S. 479 (1957) cc cccccccccccs 13s @e

In re Baird,

668 F.2d 432 (8th Cir. 1982),

cert. denied, 456 U.S. 982 (1982)....14

In re Campbell,

628 F.2d 1260 (9th Cir. 1980)........ 15

In re Cardassi,

351 F. Supp. 1080

Cie Sms 1972) cecvicccecss 1S, 6, 20, 26

In re Federal Grand Jury Witness (Lemieux),

597 F.2d 1166

ho Wo a P,P re Ee ee 15

In re Flanagan,

691 F.2d 116

(2d Cir. 1982) ..ccccsccses 12-14, 17, 21

In re Gilboe,

OFF Fete Ft CZ6 CEs TOES) oc ccncesese a

» iy «

In re Grand Jury Proceedings (Chevrier) ,

FOR Bske FOO COO GLEs FERORadcesceaes 13

In re Grand Jury Proceeding (Nigro),

705 F.2d 1224 (10th Cir. 1982),

cert. denied, 461 U.S. 927 (1983)....15

In re Grand Jury Proceedings (Postal),

559 F.2d 234 (5th Cir. 1977),

cert. denied, 434 U.S. 1062 (1978)...14

In re Maskutaitis,

800 F.2d 159 (7th Cir. 1986)..... 13, 14

In re Parker,

411 F.2d 1067 (10th Cir. 1969),

vacated as moot sub nom,

Parker v. United States,

a FR Bee. eer ree 12>, 20

In re Tierney,

465 F.2d 806 (5th Cir. 1972),

cert. denied, 410 U.S. 914 (1973)....14

In re Weir,

495 F.2d 879 (9th Cir. 1974),

cert. denied, 419 U.S. 1038 (1975)...15

Jenkins v. Andeson,

GEF Use £23 CISEO) cccccccvecssvcssene Fe

Kastigar v. United States,

Me Ustse O81 CIF Ed cccccresccscecesus 20

Kent v. Dulles,

(SR & Pb Se. |.) sar 24

Malloy v. Hogan,

BEm Mabe © CVGGR) cccwececdeessc slgecns 19

Marchetti v. United States,

FIO Usde FF (UFOS) ccaccsccevcaccecese 19

McGautha v. California,

+ i Pie: swe o> gb Pe oe ee 25

Mishima v. United States,

507 F. Supp. 131

CU Ma Pel ls sere des acadeass 16, 26

Murphy v. Waterfront Commission,

STS Unde FE CIFOR) cc cicccvacraiscesdsss 25

Phoenix Assurance Co. v. Runck,

317 N.W. 2d 402 (N.D.),

cert. denied, 459 U.S. 862 (1982)....27

Pillsbury Company v. Conboy,

GIF Usde £240 (IFES) ceccscaccoveses 19-22

Simmons v. United States,

390 UsS. B77 (19OG) cc ccwclecccccccccne 25

Spevack v. Klein,

SOP Vita Dit CVGGT) ccc cvsesscveevavas 18

United States v. Armstrong,

OFG Saae Sta Laem wate THT) cacvauves 14

United States v. Trucis,

SF FemeUs SFt CBc0. Pa. 1981) cc ccnives 26

United States v. (Under Seal),

794 F.2d 920 (4th Cir. 1986),

cert. denied,

107 SCE. ‘Sat €1986)..13, 15, 20-21, 26

Zicarelli v. New Jersey State

Commission of Investigation,

SOG UsBs GFE CISFZ) 600s 9-12, 16-18, 22

- yi -

Statutes and Rules

16 OUibsha Oh Bese oa ee ee eee eh e a eo eee es 7

ak ae Sf err CT ToT eee CCE TERT T eT 7

Ae ee Oe ee a ee 1

Rule 6(¢e), Fed. BR. Crim. Fiscccas 2, 8°39, 15

Buse Sites Pee ee es Tans Kee ec eee aaes 1

Constitutional Provisions

Ae SP BR ye a es a oa 2

Miscellaneous

Comment, Criminal Law -- Self-

Incrimination -- The Fifth

Amendment Protects a Witness

Who Refuses to Testify for Fear

of Self-Incrimination Under

the Laws of a Foreign Jurisdiction,

eee he a * ae. Pf) rr 27

Comment, Fear of Foreign Prosecution

and the Fifth Amendment,

- eo ee eee | a eh Vk 5 27

Note, The Reach of the Fifth

Amendment Privilege When

Domestically Compelled Testimony

May Be Used In a Foreign

Country's Court,

a es UP CPUS) 4 oc ase se se cees 27

Note, Testimony Incriminating Under

the Laws of a Foreign Country --

Is There a Right to Remain Silent?,

1) Maka@e Ga SRG hes

a See COPE 6 eG ak 6 i ences 6600 ease 27

- V1ii -

Opinions Below

The decision for which review is

sought is the opinion by the United States

Court of Appeals for the District of

Columbia Circuit in In re: Sealed Case,

No. 87-5208, slip. op. (D.C. Cir. August 7,

1987), and attached as Appendix A.!

Jurisdiction

The opinion and judgment of the United

States Court of Appeals for the District of

Columbia Circuit was entered on August 7,

1987. This petition is filed within sixty

(60) days of that ruling. Jurisdiction is

invoked under 28 U.S.C. § 1254. On August

7, 1987, the Court of Appeals also issued

an order pursuant to Fed.R.App.P. 41(b),

The memorandum and order issued January 21,

1987 by the United States District Court for the

District of Columbia, the district court's March

12, 1987, modification of that order, and the Jime

5, 1987, order granting the government's motion to

compel, are under seal and have not been attached

hereto.

staying the issuance of a mandate for a

period of thirty days to enable petitioner

to file a petition for writ of certiorari.

This petition is filed within thirty (30)

days of that ruling.

Relevant Constitutional Provisions

Amendment V to the United States

Constitution provides, in pertinent part:

No person ... 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....

STATEMENT OF THE CASE

Factual Background

The petitioner is a citizen of foreign

Country X who is employed by a major finan-

cial institution wholly-owned by Country

X.2 Before March, 1983, petitioner was the

2 The grand jury investigation in which the

petitioner has been called as a witness has not

been completed, and the records in the district and

appellate courts have been sealed. In order to

maintain secrecy under Rule 6(e), Fed. R. Crim. P.,

the parties and relevant foreign countries have not

(Footnote Continued)

Deputy General Manager of the financial

institution's branch office in Country Y.

Petitioner is currently the General Manager

of the financial institution's agency in a

city in the United States ("the agency").

On September 29, 1986, petitioner was

served with two subpoenas, one addressed to

him personally and the other addressed to

him in his capacity as General Manager of

the agency. The subpoenas required him to

appear and to testify before a grand jury

in the District of Columbia Circuit and to

produce documents for the period of 1979 to

the present relating to certain named

entities and individuals. 3

been identified in the appellate court opinion.

Herein, petitioner will be referred to as "the wit-

ness,"’ or as "petitioner,'"' his country of citizen-

ship will be ‘Country X," and the country where his

testimony would expose the witness to criminal

liability will be referred to as "Country Y."

3 The petitioner was neither a target nor a

subject of the grand jury's investigation. More-

over, the Court of Appeals has overstated peti-

tioner's relationship with grand jury "targets."

(Footnote Continued)

None of the requested documents is

located in the agency. Any documents that

relate to the named individuals and

entities are in the financial institution's

branch office in Country Y. However,

Country Y's commercial, banking and crim-

inal statutes provide for strict confiden-

tiality of bank account and bank customer

information. The financial institution's

branch in Country Y thus did not provide

the petitioner with any documents’ for

submission to the grand jury.

The petitioner appeared before the

grand jury on December 11, 1986, but

declined on Fifth Amendment grounds’ to

answer questions about accounts and records

The record shows that petitioner's contacts were

with three individuals whom he believed were

respected p.icfessionals. He met infrequently with

them on a social basis two or three times a year

over a fourteen year period. He also had limited

contact concerning a business matter in which he

had no financial interest with the son of one of

the individuals.

ee Gr

maintained by the financial institution's

branches in Country Y. Thereafter, the

government filed a motion to compel the

petitioner's testimony. In response, the

petitioner provided further evidence that

his fear of foreign prosecution was real

and substantial. The relevant’ penal

statutes and regulations of Country Y whicn

proscribe the disclosure of bank informa-

tion were provided to the district court.

In addition, an attorney with the office of

petitioner's counsel met with the Attorney

General of Country Y, legal counsel to

Country Y's National Banking Commission, a

former prosecutor with Country Y's Attorney

General's Office, and with a number of

practicing attorneys in Country Y. The

attorney learned the following and outlined

his findings in an affidavit submitted to

the district court: Bank secrecy laws are

taken very seriously in Country Y and are

strictly enforced; violations are punish-

able by fines and incarceration for up to

two years. The Attorney General of Country

Y confirmed that he would open an investi-

gation and would prosecute any violation of

Country Y's bank secrecy laws even if the

actual disclosure took place in the United

States and even if the disclosure were com-

pelled by a court order. The legal counsel

to the National Banking Commission stated

that the Commission regularly advises banks

and their employees that if they improperly

disclose banking information they will be

prosecuted,

In a separate affidavit submitted to

the district court, the petitioner

explained that his fears of prosecution are

even more substantial as a result of his

strong ties to Country Y. The petitioner

had lived in Country Y for over fourteen

years. His wife and two children are

citizens of Country Y, and he owns a home

in that country. His wife's parents live

in Country Y, and petitioner and his family

frequently travel there. The government

offered no evidence in rebuttal to any of

these points.

The District Court's Decisions

On January 9, 1987, the district court

granted the petitioner immunity pursuant to

18 U.S.C. §$ 6002, 6003. In a Memorandum

and Order dated January 21, 1987, the

district court also granted the govern-

ment's motion to compel and ordered the

petitioner to comply with the subpoenas.

The court declined to decide directly

whether the Fifth Amendment'_ privilege

against self-incrimination applied to the

threat of foreign prosecution. Relying

solely upon the secrecy afforded grand jury

proceedings by Rule 6(e) of the Federal

Rules of Criminal Procedure, the district

court found that petitioner's fear of

incrimination was insubstantial and specu-

lative. The court reasoned that’ the

"strict" secrecy requirements of Rule 6(e)

would prevent the disclosure of testimony

to those outside the grand jury process and

that "any evidence obtained will be

unavailable to ... officials [of Country Y]

without an Order of this Court." Id.

The petitioner again appeared before

the grand jury on April 9, 1987, as

required. As to those matters which impli-

cated Country Y's bank secrecy laws, he

invoked his Fifth Amendment _ privilege

against seif-incrimination.

On June 5, 1987, the district court

found petitioner in contempt and ordered

him committed to the custody of the Attor-

ney General for the life of the grand jury

or until such time as he purged himself of

contempt. However, the court acknowledged

that the issues raised were of such signif-

icance that guidance was needed by the

appellate court and, accordingly, stayed

its contempt order.

The Court of Appeals' Decision

On August 7, 1987, the United States

Court of Appeals for the District of

Columbia Circuit affirmed the district

court with respect to petitioner.4 The

Court of Appeals agreed with the district

court's determination that the petitioner's

fear of foreign prosecution was not "real,"

as required by Zicarelli v. New Jersey

State Commission of Investigation, 406 U.S.

472 (1972), but disagreed with the district

court's reliance upon Rule 6(e). Instead,

the Court of Appeals fovnd that peti-

tioner's fear of prosecution by Country Y

4 The Court reversed the district court's

decision holding the financial institution in

contempt, relying on principles of comity and

international law.

was not "real" because the petitioner could

only be prosecuted by Country Y as a result

of his own voluntary act -- returning to

Country Y. The court "added" to the rule

in Zicarelli a new principle that the Fifth

Amendment "does not protect against dangers

voluntarily assumed." Thus, despite peti-

tioner's close ties to Country Y, his rela-

tives in Country Y, and his home and pro-

perty in Country Y, the court did not con-

sider petitioner's fear of prosecution by

Country Y to be sufficiently "real" because

petitioner could not be extradited from the

United States to Country Y for violating

its bank secrecy laws. The appellate court

stayed the issuance of a mandate for thirty

(30) days to enable petitioner to file a

petition for writ of certiorari.

REASONS FOR GRANTING THE WRIT

I. THE WRIT SHOULD BE GRANTED TO RESOLVE

CONFLICTS AND CONFUSION AMONG '- THE

FEDERAL COURTS REGARDING WHAT CONSTI-

TUTES A "REAL AND SUBSTANTIAL" FEAR OF

PROSECUTION BY A FOREIGN COUNTRY

Zicarelli v. New Jersey State Commis-

sion of Investigation, 406 U.S. 472 (1972),

is the only case in which this Court has

considered the assertion of the Fifth

Amendment privilege by a witness who fears

prosecution by a foreign country. The

Court did not reach the constitutional

issue in Zicarelli because it found that

the witness was "never in real danger of

being compelled to disclose information

that might incriminate him under foreign

law." Id. at 480. However, in holding

that the Fifth Amendment "protects against

real dangers, and not remote and specula-

tive possibilities," id. at 479, the Court

reaffirmed well-established principles.

The Court did not announce a new rule

regarding the threshold of danger required

where the threat of foreign prosecution is

involved, as distinct from prosecution by

the federal or a state government. See id.

at 479, n.12.

A. The Federal Circuits Have

Deve Loped Conflicting "Special

Factors" and Different "Tests"

Which Have Led to Disarray and

Inconsistent Decisions

Since Zicarelli was decided, the

federal courts have developed’ several

conflicting tests to determine whether the

threat of foreign prosecution is "real and

substantial." The United States Court of

Appeals for the Second Circuit has led the

way. In In re Flanagan, 691 F.2d 116, 121

(2d Cir. 1982), the court enumerated five

factors which must be corsidered when a

witness claims to fear foreign prosecution:

"[1] Whether there is an existing or poten-

tial foreign prosecution of him; [2] what

foreign charges could be filed against hin;

[3] whether prosecution of him would be

initiated or furthered by his testimony;

[4] whether any such charges would entitle

the foreign jurisdiction to have him extra-

dited from the Unitec States; and [5]

whether there is a likelihood that his

testimony given here would be disclosed to

the foreign government." Id. at 121 (nun-

bers added) .° The Flanagan factors have

been cited with approval and have _ been

adopted by the United States Courts of

Appeals for the Fourth,® Seventh,’ and

Eleventh8 Circuits.

> See also In re Gilboe, 699 F.2d 71 (2d Cir.

1983); In re Grand Jury Proceedings (Chevrier),

748 F.2d 100 (2d Cir. 1984).

6 United States v. (Under Seal), 794 F.2d 920

(4th Cir.), cert. denied, 107 S.Ct. 331 (1986).

7 In re Maskutaitis, 800 F.2d 159 (7th Cir.

1986).

8 Application of President's Commission on Organ-

ized Crime (Scaduto), 763 F.2d 1191 (11th Cir.

1985).

Flanagan itself gave no guidance as to

whether all five factors must be met,

whether one was sufficient, or whether some

were more important than others’~ thus

requiring a “balancing” test analysis. Not

surprisingly, the courts have applied these

factors inconsistently. While in the

Second Circuit all five factors must be

met, the Eleventh Circuit in Scaduto and

the Seventh Circuit in Maskutaitis focus on

the last factor, the likelihood that the

witness' testimony would be disclosed to a

foreign government.

As opposed to the more complex

Flanagan factors, the Fifth,? Eighth, |9

Ninth!! and Tenth!2 Circuits have opted for

9 In re Tierney, 465 F.2d 806 (5th Cir. 1972),

cert. denied, 410 U.S. 914 (1973); In re Grand

Jury Proceedings (Postal), 559 F.2d 234 (5th Cir.

1977), cert. denied, 434 U.S. 1062 (1978); United

States v. Armstrong, 476 F.2d 313 (5th Cir. 1973).

'0 In re Baird, 668 F.2d 432 (8th Cir.), cert.

denied, 456 U.S. 982 (1982).

(Footnote Continued)

th

a blanket rule that the secrecy of grand

jury proceedings under Fed. R. Crim. P.

6(e) sufficiently protects witnesses who

fear foreign prosecution. Several other

federal courts, however, have specifically

rejected any rule relying solely on grand

jury secrecy.!3

In the instant case, the Court of

Appeals has isolated its own "special"

factor. The court only considered whether

the witness could be extradited to Country

Y. Moreover, in applying this newly enun-

11 In re Weir, 495 F.2d 879 (9th Cir. 1974),

cert. denied, 419 U.S. 1038 (1975); In re

Campbell, 628 F.2d 1260 (9th Cir. 1980); In re

Federal Grand Jury Witness (Lemieux), 597 F.2d 1166

(9th Cir. 1979).

12 In re Grand Jury Proceeding (Nigro), 705 F.2d

1224 (10th Cir. 1982), cert. denied, 461 U.S. 927

(1983); In re Parker, 411 F.2d 1067 (10th Cir.

1969), vacated as moot sub nom. Parker v. United

States 397 U.S. 96 (1970).

'3 United States v. (Under Seal), 794 F.2d 920

(4th Cir.), cert. denied, 107 S.Ct. 331 (1986); In

re Cardassi, 351 F. Supp. 1080 (D. Conn. 1972).

n See

ciated test, the Court discounted the wit-

ness' substantial ties to Country Y -- ties

which he would necessarily be forced to

sever if he were to "voluntarily" refrain

from venturing there: (1) His wife and

children are citizens of that country; (2)

he visits relatives there frequently; and

(3) he owns a home and other property in

the country.

Finally, a few federal district courts

have adhered to the basic principles enun-

ciated in Zicarelli and have upheld wit-

nesses’ invocation of the Fifth Amendment

privilege when their answers could incrim-

inate them under foreign law. see, €.2.,

In re Cardassi, 351 F. Supp. 1080 (D. Conn.

1972); Mishima v. United States, 507 F.

Supp. 131 (D. Alaska 1981).

The Court should grant the writ to

resolve these conflicts among the federal

courts.

B. The Decision by the Court of

Appeals, As Well As Other Cir-

cuits, Have Failed to Follow

Supreme Court Precedents

A witness who fears that his testimony

will incriminate him under foreign law has

significantly less protection than if he

fears domestic prosecution. This is so

whether the witness finds himself: (1) In

the Second, Seventh or Eleventh Circuits

attempting to meet the strict Flanagan

factors; (2) in the Fifth, Eighth, Ninth

or Tenth Circuits and forced to rely on the

"secrecy" of grand jury proceedings; or

(3) in the District of Columbia Circuit

where he would be protected only if travel

to the foreign country were "involuntary."

None of these tests comports with well

established precedent in this Court,

In Zicarelli, the risk of self-

incrimination was insubstantial because the

witness was not posed a question which

required a response implicating a foreign

a +

law or jurisdiction. The Court in

Zicarelli gave no indication whatsoever

that the issue was to be treated any

differently or involve "special factors"

because a foreign, as distinct from

domestic, prosecution was allegedly

threatened. 14 In reaffirming that’ the

privilege only protects against "real

dangers," this Court cited to a line of

cases involving the threat of domestic

prosecution. Id. at 479, n.12.

Before Zicarelli, the Court had

explained that the privilege was to be

liberally construed, Spevack v. Klein, 385

U.S. 511, 516 (1967), and could be asserted

when a witness reasonably apprehended a

risk of self-incrimination although no

14 Indeed, the Court indicated just the opposite:

"Should the Commission inquire into matters that

might incriminate him under foreign law and pose a

substantial risk of foreign prosecution ... then a

constitutional question will be squarely pre-

sented."" Zicarelli, 406 U.S. at 482.

=: a

criminal charges are pending against him.

Marchetti v. United States, 390 U.S. 39, 53

(1968). The risk of incrimination must be

more than “insubstantial" or "trifling" and

the privilege must be sustained where the

compelled response "might be dangerous

because injurious disclosure could

result." Hoffman v. United States, 341

U.S. 479, 488 (1951). Accord Malloy v.

Hogan, 378 U.S. 1, 11 (1964).

These principles were reaffirmed in

Pillsbury Company v. Conboy, 459 U.S. 248

(1983). In Conboy, this Court upheld the

invocation of the Fitth Amendment by a wit-

ness in a civil deposition who had pre-

viously been given immunity for answering

the identical questions in a federal grand

jury. The witness had never been prose-

cuted and was free, in any event, to con-

test the legality of any future charges as

violating his immunity agreement. See

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

(1972). Nonetheless, this Court held that

he could not be compelled to testify simply

because of a court's "predictive judgment"

of what could occur in future proceedings.

Conboy, 459 U.S. at 261.

The rule in effect in the Fifth,

Eighth, Ninth and Tenth Circuits relying on

grand jury secrecy violates these prece-

dents and is in direct conflict with

Conboy. While it may not be often that law

enforcement officials fail to honor the

grand jury secrecy rule, "the constitu-

tional protection of the witness must rest

on more than faith," In re Cardassi, 351]

F., Supp. 10890, 1082 (D. Conn. 1972). A

witness with a real tear of self-incrimina-

tion should not be deprived of constitu-

tional protection because of a court's

"predictive judgment." Moreover, as_ the

Fourth Circuit explained in Under Seal, the

basic flaw in relying upon grand jury sec-

recy is that if an inadvertent disclosure

is made "the courts of the United States

are powerless to restore secrecy once it is

lost." Under Seal, 794 F.2d at 925.

The stringent "factors" employed in

the Second, Seventh and Eleventh Circuits

similarly depart from the principles

developed by this Court. In the domestic

context the witness need not rely on the

"predictive judgment" of the court where he

reasonably apprehends’ self-incrimination,

Conboy, 459 U.S. at 250-251, and need not

make a showing under a multi-factored and

structured test. Moreover, even where the

witness makes a showing with respect to the

Flanagan factors, at least one circuit has

refused to hold that there is a "real and

substantial" fear. See Scaduto, 763 F.2d

1191 (11th Cir. 1985). While there might

be a "strong possibility" of each respec-

tive factor occurring, the court in Scaduto

reasoned that the chances were much lower

that all five would occur’ together.

Clearly, the heightened requirement of

meeting five separate, special factors is a

far cry from the minimal requirements of

Zicarelli, Hoffman and Conboy.

Finally, although Zicarelli makes no

mention of extradition as a factor, the

Court of Appeals in this case isolated the

"yvoluntariness" of the witness’ return to

Country Y as the basis for its determina-

tion that the witness' fear of foreign

prosecution was neither real nor substan-

EiAL, As discussed above, this Court in

Conboy found that such "predictive judg-

ments" were inappropriate, so long as the

witness reasonably apprehends self-incrim-

ination.

The Court should grant the writ to

ensure that the Court of Appeals in this

case, and in other circuits, follow well-

established Fifth Amendment jurisprudence.

C. The Decision by the Court of

Appeals Impermissibly Requires the

Witness to Forgo Important

Constitutional Rights

In focusing on the fact that’ the

witness would likely not be extradited to

Country Y, the Court of Appeals overlooked

the issue that the failure to uphold the

witness’ right against self-incrimination

in this case would force him to forgo other

important constitutional rights.

First, the decision effectively forces

the witness to forgo his right to travel to

Country Y as he would face prosecution upon

touching its soil. It is true that this

Court has distinguished the freedom to

travel outside the United States from the

right to travel within the United States.

Haig v. Agee, 453 U.S. 280, 307 (1981);

Califano v. Aznavorian, 439 U.S. 170, 176

(1978). However, the right of inter-

a

national travel is firmly grounded in the

"liberty" interest protected by the Due

Process Clause of the Fifth Amendment and

can only be regulated within the bounds of

due process of law. Haig, 453 U.S. at 307;

Califeiro, at 1/76; Kent v. Dulles, 35/7

U.S. 116, 126-127 (1958).

The Court of Appeals has effectively

deprived the witness of his "liberty" right

to travel to Country Y. The deprivation of

the witness' right to travel to Country Y

is a serious curtailment of his "liberty"

since the witness has longstanding and

substantial ties to Country Y.

Second, the decision effectively

forces the witness to forgo his right to

hold and enjoy his property in Country Y.

Under the rationale adopted by the Court of

Appeals, the witness' fear of foreign pro-

secution is only speculative if he "volun-

tarily" abandons these property rights.

This Court has found that it is

"intolerable that one constitutional right

should have to be surrendered in order to

assert another." Simmons v. United States,

390 U.S. 377, 394 (1968). The rationale of

the Court of Appeals forces precisely such

a "Hobson's choice" upon the witness in

this case. See id., 390 U.S. at 391. The

Court of Appeals did not consider nor even

balance the competing constitutional rights

at stake herein.!9 The writ should be

granted to ensure that the values protected

15 To be sure, the Constitution does not forbid

"every governmment-imposed choice in the criminal

process that has the effect of discouraging the

exercise of constitutional rights." Chaffin v.

Stynchcombe, 412 U.S. 17, 30 (1973). In deter-

mining which such "choices" are permissible, "'the

threshold question is whether compelling the elec-

tion impairs to an appreciable extent any of the

policies behind the rights involved.'" Chaffin, 412

U.S. at 32, quoting McGautha v. California, 402

U.S. 183, 213 (1971). Accord Jenkins v. Anderson,

447 U.S. 231, 236 (1980). As the Court explained

in Murphy v. Waterfront Commission, 378 U.S. 52

(1964), the policies underlying the Fifth Amendment

would be defeated if not recognized in different

jurisdictions. 378 U.S. at 55-56.

=.

by the Fifth Amendment are not compromised

by this judicially imposed "Hobson's

choice."

Il. THE WRIT SHOULD BE GRANTED TO RESOLVE

THE CONFLICT AMONG THE FEDERAL COURTS

WHETHER THE RIGHT AGAINST SELF-

INCRIMINATION EXTENDS TO THE FEAR OF

PROSECUTION BY A FOREIGN COUNTRY

Although the constitutional issue has

arisen repeatedly, most courts have

resolved the matter with the’ threshold

determination that the risk of foreign

prosecution failed to meet the variety of

"real and substantial" factors and tests.

Where the constitutional issue has been

reached, however, the federal and state

courts have clearly been divided.'® This

16 Compare Mishima v. United States, 507 F. Supp.

13i (D. Alaska 1981) (recognizing the applicability

oz the privilege where there is a real and substan-

tial risk of foreign prosecution), United States v.

Trucis, 89 F.R.D. 671 (E.D. Pa. 1981) (same); In re

Cardassi, 351 F. Supp. 1080 (D. Conn. 1972) (same),

with United States v. (Under Seal), 794 F.2d 920

(4th Cir. 1986) (rejecting Fifth Amendment privil-

ege despite showing of real and substantial risk of

foreign prosecution); In Re Parker, 411 F.2d 1067

(Footnote Continued)

— =

conflict is also reflected in the academic

analyses of the issue.'/ The issue would

be squarely presented here if the Court

reverses the appellate court's conclusion

that the petitioner's fear of prosecution

by Country Y is "unreal."

As is apparent from a review of the

numerous foreign prosecution cases which

have considered the threshold and the con-

stitutional issues, the law is in a state

of disarray. Yet, the issue has recurred

(10th Cir. 1969) (same), vacated as moot sub non.

Parker v. United States, 397 U.S. 96 (19/70);

Phoenix Assurance Co. v. Runck, 317 N.W.2d 402

(N.D.) (same), cert denied, 459 U.S. 862 (1982).

'7 Compare Note, Testimony Incriminating Under the

Laws ot a Foreign Country -- Is There a Right to

Remain Silent?, 1] N.Y.U. J. Int'l L. & Pol. 359

(1978); Comment, Fear of Foreign Prosecution and

the Fifth Amendment, 58 Iowa L.Rev. 1304 (1973);

Comment, Criminal Law -- Self-Incrimination -- The

Fifth Amendment Protects a Witness Who Refuses to

Testify for Fear of Self-Incrimination Under the

Laws of a Foreign Jurisdiction, 5 Rut.-Cam.L.Rev.

146 (1973), with Note, The Reach of the Fifth

Amendment Privilege When Domestically Compelled

Testimony May Be Used In a Foreign Country's Court,

69 Va.L.Rev. 8/5 (1983).

with increasing frequency as grand juries

and other investigations probe foreign cur-

rency transactions and other matters which

have international implications. Under the

current state of the law, witnesses are

faced with a double-layer of uncertain-

ties. A witness is first faced with the

uncertainty whether his fears of self-

incrimination will rise to the level of

legitimacy under the particular "test" or

"factors" in effect in the jurisdiction in

which he happens to find himself, and,

second, in any event, whether the Fifth

Amendment even applies at all.

The Court should grant the writ in

order to eliminate the uncertainty and

costly litigation in this area.

CONCLUS [ON

For the foregoing reasons, the

petitioner requests that the Court issue a

writ of certiorari to review the opinion of

the United States Court of Appeals for the

District of Columbia Circuit.

Respectfully submitted,

MO ee

John)F. Evans, Esq.

Kentreth R. Pierce, Esq.

Holly R. Skolnick, Esq.

G. Richard Strafer, Esq.

ZUCKERMAN, SPAEDER, TAYLOR

& EVANS

Gables Corporate Plaza

2100 Ponce d2 Leon Boulevard

Suite 1100

Coral Gables, Florida 33134

Telephone: (305) 444-1911

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing was mailed

this 5 day of September, 1987 to The

Solicitor General, Department of Justice,

Washington, D.C. 20530; and J. Michael

Hannon, Assistant ade Attorney, U.S

Attorney's Office for the District of

Columbia, 555 4th Street (Fifth Floor),

Washington, D.C. 20001.

aon Evans

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-5208

IN RE: SEALED CASE

No. 87-5209

IN RE: SEALED CASE

Appeals from the

United States District Court

for the District of Columbia

(Mise. No. 87-00003)

Argued July 2, 1987

Decided August 7, 1987

Before: WALD, ~.Chief Judge, MIKVA and

BORK, Circuit Judges

Opinion Per Curiam.

|

PER CURIAM: These consolidated

appeals are taken from orders in a

miscellaneous proceeding below collateral

to a grand jury’ investigation. The

government sought and obtained orders in

the district court compelling appellants, a

bank and an individual, to respond to a

grand jury subpoena by producing documents

and giving testimony. When appellants

continued to refuse to respond to the grand

jury's demands, the court found appellants

in contempt. The grand jury investigation

has not been completed, and the records in

the district court and this court have been

sealed. In order to maintain this secrecy,

we do not identify the parties in this

Opinion. See Fed.R.Crim.P. 6(e).

I.

There are two appellants in these

appeals. Appellant in Number 87-5209 is a

bank owned by the government of Country

» De

. a The bank does business in = many

countries around the world, including the

United States and Country Y. Country Y is

a foreign nation with banking secrecy laws

that make it a criminal offense for a bank

or a person to reveal to anyone other than

the customer, information about banking

transactions or bank documents created in

Country Y that relate to the customer and

his transactions.

Appellant in Number 87-5208 is an

individual who is currently employed as the

manager of the bank's agency in a city in

the United States. The manager is a

citizen of Country xX, though he_ has

significant family and property connections

to Country Y. For several years in the

early 1980s the manager was the assistant

manager of the bank's branch in Country Y.

In the course of a- grand = jury

investigation into an alleged scheme by a

5s

number of American citizens and business

entities to launder money in violation of

te Ueeeue se oft cteee) and 31 U.S.C. § 5322

(1982), the United States Attorney for the

District of Columbia issued a_ subpoena

duces tecum to the manager and the bank.

The subpoena sought bank documents created

and held in the bank's branch office in

Country Y which are believed to contain

information concerning the illegal

financial transactions. Many of the

transactions documented by the subpoenaed

papers were created while the manager was

assistant manager of the branch in Country

Y. In addition, he is a personal friend

and has been a business’ associate of

several of the targets of the grand jury

investigation. The subpoena also sought,

therefore, the manager's testimony about

bank transactions and other matters of

which he has personal knowledge. Neither

i

the bank nor the manager is a target of the

investigation or suspected of any

wrongdoing.

From the beginning, the manager and

the bank have cooperated to a certain

extent with the investigation. The manager

has come to Washington several times to

meet with the prosecutors and testify

before the grand jury about his knowledge

of the targets and their activities that he

learned in his personal capacity (not

through bank operations). Except for

information concerning three customers from

whom they obtained releases, however, the

manager and the bank refused to testify

before the grand jury about the targets'

banking activities or produce documents on

the ground that to do so would violate

Country Y's banking secrecy laws-~ and

subject the manager and the bank to

criminal prosecution in Country Y.

“Ss

The bank has taken the position that

the government should use other means to

attempt to obtain the documents’ from

Country Y, a course that the government

believes is inappropriate and would be

ineffective. The manager based his refusal

to testify on fifth amendment’ grounds,

claiming that the act of testifying would

subject him to criminal sanctions in

Country Y. The government secured use

immunity for the manager but he continues

to decline to answer on the ground that a

United States court could not immunize him

from criminal prosecution in Country Y.

Since the act of testifying would violate

the laws of Country Y, he contends that to

require him to testify would violate his

fifth amendment protection against self-

incrimination.

The government filed a motion in the

district court seeking an order compelling

~~ e

both the bank to surrender the records and

the manager to testify. The court

conducted a hearing and issued an order on

January 21, 1987, granting the government's

motion. Through an inadvertence, neither

the government nor appellants learned of

the order until the time for compliance had

passed. The court issued an amended order

on March 12, 1987, setting a new date by

which compliance must take place. Before

the time to comply expired, the manager and

the bank notified the prosecutor that they

would not comply for the previously stated

reasons.

The manager was called before the

grand jury again on April 9, 1987, at which

time he again read a statement declining to

respond on fifth amendment and _ comity

grounds - that to answer would violate the

laws of Country Y and subject him and the

bank to criminal prosecution there. The

Be

ee a a Re” eet i Pe

Bi

government then moved the district court to

hold the bank and the manager in civil

contempt. The court issued a show cause

order on May 13, 1987. In an attempt to

block further proceedings, Country xX

delivered a note verbale to the United

States Department of State requesting that

"no compelling means" be ordered against

its bank.

The court conducted a hearing on the

show cause order on June 5, 1987, and

immediately issued an order holding

appellants in civil contempt. To coerce

compliance with its order, the court

ordered that the bank be fined $50,000.00

per day and the manager be confined until

they purged their contempt. The court

entered a second order staying the

sanctions pending appeal. Appellants noted

their appeals from the orders compelling

responses and the contempt order on June 8,

sin

1987.!

| This court entered an order setting an

expedited briefing and argument schedule based on

the requirement that "[a]ny appeal from an order of

confinement under [the recalcitrant witness]

section shall be disposed of as soon as practical,

but not later than thirty days from the filing of

such appeal." 28 U.S.C. § 1826(b) (1982). Counsel

for the bank has sent a letter to the Clerk citing

case law from other circuits holding or stating

that when the order of confinement is stayed, the

thirty day time limit is inapplicable. In re Grand

Jury Proceedings re: Larson, 785 F.2d 629, 631, n.4

(8th Cir. 1986); In re Witness Before Special

Qctober 1981 Grand Jury, 722 F.2d 349, 353 (7th

Cir. 1983); In re Kitchen, 706 F.2d 1266, 1271 n.2

(2d Cir. 1983); In re Weiss, 703 F.2d 653, 660 n.6

(2d Cir. 1983). Counsel also cites In re Sealed

Case, 794 F.2d 749, 750-51 (D.C. Cir. 1986), in

which this court held that the thirty day time

limit is not jurisdictional and that if the court

takes more than thirty days, the witness need not

be released from custody.

We held argument in this case on July 2, 1987,

six days before the thirty day time limit was

scheduled to expire. The issues in this case are

ones of first impression and have required close

scrutiny. Rather than "rush to judgment ," we have

taken more than thirty days to decide this

appeal. At this time, however, we decline to rule

that when a § 1826 confinement order is stayed

pending appeal, the thirty day time limit does not

apply. We recognize, however, that appeals from

any orders under the recalcitrant witness statute

must be given expedited treatment. 28 U.S.C. §

1657(a) (1982).

~ -

ii.

The manager's fifth amendment claim is

based on his assertion that Country Y could

convict him of a crime solely for revealing

information protected by Country Y's

banking secrecy law. He does not claim

that the substance of his testimony would

incriminate him for any crime that he has

committed, under either the laws of the

United States, of Country X, or of Country

Fa The manager argues that, despite the

district court's grant of immunity, his

real and substantial fear of prosecution in

Country Y cloaks his refusal to testify

with fifth amendment'_ protection. We

disagree.

In Malloy v. Hogan, 378 U.S. 1 (1964),

the Supreme Court held that the tifth

amendment privilege against self-

incrimination must be deemed fully

applicable to the States through the

=

.

fourteenth amendment. In Murphy v.

Waterfront Comm'n, 378 U.S. 52 (1964),

decided the same day, the Court held that a

state witness granted use immunity may not

be compelled to testify unless the

testimony and its fruits cannot be used

against him in a federal prosecution.

The Supreme Court has not yet

determined whether fear of prosecution by a

foreign country is sufficient to invoke the

fifth amendment. In Zicarelli v. New

Jersey Investigation Comm'n, 406 U.S. 472

(1972), the Court noted probable

jurisdiction to consider this issue, but

found it unnecessary to reach the

constitutional question. The manager

recognizes that Murphy did not expressly

extend to foreign prosecutions, but argues

that the Court expressly gave the privilege

the same construction as the English courts

did. See 378 U.S. at 77. "The [English]

ee

rule did ‘protect witnesses against

disclosing offenses in violation of the

laws of another country.' United States of

Ametica v. Meese, {L.k., 3 Ch. App. 79

(1667) 1.” te, - BE: 72, Lower courts have

been divided on this question. Compare

United States v. (Under Seal), 794 F.2d 920

(4th Cir.) (tifth amendment only applicable

if foreign jurisdiction has similar

privilege), cert. denied, 107 S.Ct. 331

(1986) with In re Cardassi, 351 F. Supp.

1080 (D. Conn. 1972) (values expressed by

fitth amendment bar compulsion of testimony

that could be used in any foreign

prosecution). We find it unnecessary to

resolve the issue in this case.

The district court concluded that even

if the fifth amendment does apply to a

situation in which the witness asserts the

threat of foreign prosecution, it "[was]

not convinced that the fear of prosecution

ote

in this case is ‘'real' as required by

Zicarelli Vs New Jersey Comm'n of

Investigation, 406 U.S. 472, [478-81]

(29 75)." In re Grand Jury Investigation,

Misc. No. 87-0003, mem. op. at 4 (D.D.C.

Jan 21, 1987). It based this finding on

the strict secrecy provisions of Fed. R.

Crim. PF. 6(e).

We agree that the manager's fear of

prosecution is not real, but for a

different reason. The manager could only

be prosecuted by Country Y as a result of

his own voluntary act - returning to

Country Y. We recognize his substantial

connections to Country Y, but he no longer

lives or works there. He is not himself a

citizen of that country and his immediate

family is with him in this country. As the

manager concedes, the offense with which he

could be charged by Country Y for his

testimony here is not an offense for which

Pe.

he could be extradited. He could only be

punished for this offense if he were to

return voluntarily. eg & is well

established that the [fifth amendment]

privilege protects against real dangers,

not remote and _= speculative possibili-

cies.” Zicarelli, 406 U.S. at 478. We,

only add that it does not protect against

dangers voluntarily assumed. We therefore,

affirm the order of the district court

holding the manager in contempt for refus-

ing to testify before the grand jury.

IIL.

The bank argues that the district

court erred in entering a civil contempt

order that compels it to act in violation

of the laws of Country Y. The tederal

courts have disagreed about whether a court

may order a person to take specific actions

on the soil of a foreign sovereign in

violation of its laws and about’ what

a

sanctions the court may levy against a

person who refuses to comply with such an

order. A line of older Second Circuit

cases takes the position that a court

should not order violations of foreign law

on foreign territory. See United States v.

First Nat'l City Bank, 396 F.2d 897, 901-02

(2d Cir. 1968); Inge v. Ferguson, 282 F.2d

149, 152 (2d Cir. 1960); First Nat'l City

Bank of N.Y. v. IRS, 271 F.2d 616, 619 (2d

Cir. 1959), cert. denied, 361 U.S. 948

(1960). Other cases distinguish between a

court's ability to order a person. to

produce documents in contravention of

foreign law, which is thought’ to _ be

acceptable, and its ability to impose

sanctions for disobedience to that order,

which is thought to be much~ more

problematic. See, e.g., In re Westinghouse

Elec. Corp. Uranium Contracts, 563 F.2d

992, 996-99 (10th Cir. 1977); Compagnie

ti

Francaise d'Assurance Pour le Commerce

Exterieur v. Phillips Petroleum Co., 105

F.R.D. 16, 26-36 (S.D.N.Y. 1984); cf.

Societe Internationale v. Rogers, 357 U.S.

197, 204-13 (1958). Two recent Eleventh

Circuit cases, however, indicate that

court's willingness to approve civil

contempt orders and accompanying sanctions

that seek to compel a person to violate

foreign secrecy laws by producing documents

that are located on foreign soil. See In

re Grand Jury Proceedings (the Bank of Nova

Scotia), 740 F.2d 817 (11th Cir. 19864),

cert. denied, 469 U.S. 1106 (1985); In re

Grand Jury Proceedings, 691 F.2d 1384 (11th

Cir. 1982), cert. denied, 462 U.S. 1119

(1983) ; cf. United States v. Vetco Inc.,

691 F.2d 1281 (9th Cir.), cert. denied, 454

U.S. 1098 (1981).

We do not here decide the general

issue of whether a court may ever order

a tie

action in violation of toreign laws,

although we should say that it causes us

considerable discomfort to think that a

court of law should order a violation of

law, particularly on the territory of the

sovereign whose law is in question. Be

that as it may, here we simply conclude

that even if a court has the power to issue

such contempt orders under certain

circumstances, on the peculiar facts of

this case the order should not have been

issued. Most important to our decision is

the fact that these sanctions represent an

attempt by an American court to compel a

foreign person to violate the laws of a

different foreign sovereign on that

sovereign's own territory. In addition,

the bank, against whom the order is

directed, is not itself the focus of the

criminal investigation in this case but is

a third party that has not been accused of

- 1] <-

any wrongdoing. Moreover, the bank is not

merely a private foreign entity, but is an

entity owned by the government of Country

X. We recognize that one who relies on

foreign law assumes the burden of showing

that such law prevents compliance with the

court's order, see, e.g., Ohio v. Arthur

Andersen & Co., 5/70 F.2d 1370, 1374 (10th

Cirt.), @Gere. Genesee, 439 U.S. 832 (1978),

but here the government concedes that it

would be impossible for the bank to comply

with the contempt order without violating

the laws of Country Y on Country Y's

soil. The district court specifically

found that the bank had acted in good faith

throughout these | proceedings. The

executive branch may be able to devise

alternative means oof addressing’ this

problem, but the bank cannot.

The two cases in which the Eleventh

Circuit has upheld civil contempt orders of

- 18 - |

this nature are distinguishable from the

situation before us. In the first case,

the contempt order was directed against an

American entity, and there was a

substantial dispute over whether’ that

entity in fact exercised complete control

over the documents that were being

sought. Thus, there was considerable room

for doubt whether enforcement of the order

would require violation of foreign laws on

foreign soil. See In re Grand Jury

Proceedings, 691 F.2d at 1386-87. In

addition, the trial court specifically

found that the contemner had not made a

good faith effort to comply with’ the

subpoena. Id. at 1389. In the second

case, the trial court also found that the

contemner had not acted in good faith, but

had undertaken an "extensive pattern of

delay" in the erroneous belief that foreign

law barred production of the documents in

2

question. See In re Grand Jury

Proceedings, 740 F.2d at 826. Even if the

power to enter a contempt order like the

one in this case is theoretically within a

court's province, we think that the facts

of this case do not warrant the exercise of

such a troublesome authority.

A decision whether to enter a contempt

order in cases like this one raises grave

difficulties for courts. We have little

doubt, for example, that our government and

our people would be affronted if a foreign

court tried to compel someone to violate

our laws within our borders. The legal

expression of this widespread sentiment is

found in basic principles of international

comity. But unless we are willing simply

to enter contempt orders in all such cases,

no matter how extreme, in utter disregard

of comity principles, we are obliged to

undertake the unseemly task of picking and

~ 2) «

choosing when to order parties to violate

foreign laws. It is conceivable that we

might even be forced to base our

determination in part on a_ subjective

evaluation of the content of those laws;

an American court might well find it wholly

inappropriate to defer to ae foreign

sovereign where the laws in question

promote, for example, torture or slavery or

terrorism.

These kinds of concerns bring us very

close to the act of state doctrine, which,

though it arises in a different context,

cautions courts not to "sit in judgment on

the acts of the government of another done

within its own territory." Underhill v

Hernandez, 168 U.S. 250, 252 (1897). Here,

as there, we see good reason for courts not

to act on their own, even at the urging of

the executive branch, when their actions

may hinder rather than further this

oa

|

country's pursuit of goals both for itself

and for the community of nations as a whole

in the international sphere." Banco

Nacional de Cuba v. Sabbatino, 376 U.S.

398, 423 (1964); see also International

Ass'n of Machinists and Aerospace Workers

v. OPEC, 649 F.2d 1354, 1358-59 (9th Cir.

1981), cert. denied, 454 U.S. 1163

(1982). We have no doubt that Congress

could empower courts to issue contempt

orders in any of these cases, or that the

executive branch could negotiate positive

agreements with other nations to the same

end. If we were asked to act in accord

with such a distinct and express grant of

power, it would be our duty to do so.

Indeed, any such measures would be a

welcome improvement over the difficulties

and uncertainties that now pervade this

area of the law.

ye

In sum, we emphasize again the limited

nature of our holding on this issue. If

any of the facts we rest on here were

different, our holding could well be

ditferent. And though we reverse the

district court's order holding the bank in

civil contempt on the facts of this case,

we of course intend no challenge to the

proposition that the vital role of grand

jury investigations in our criminal system

endows the grand jury with wide discretion

in seeking evidence. See, e.g., United

States v. Dionisio, 410 U.S. 1 (1973). It

is therefore also relevant to our

conclusion that the grand jury is not left

empty-handed by today's decision, The

manager will be available and able to

testify as to many of the facts that the

grand jury may wish to ascertain. The

government may find alternative means to

obtain additional information from or

.. 2

through the bank. Though we recognize that

the grand jury's investigation may

nonetheless be hampered, perhaps

significantly, we are unable to uphold the

contempt order against the bank.

Affirmed in part and reversed in part.

)