Opposition Brief — Leggett v. United States

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Supreme Court, U.S.

FILED

No. QD. - tf =

In the Supreme Court of the Unites Se

VANESSA LEGGETT, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

DEMETRA LAMBROS

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

‘Be

QUESTION PRESENTED

Whether an order holding petitioner in contempt and

incarcerating her for refusing to testify before a federal

grand jury violated her First or Fifth Amendment

rights or presents a live controversy now that peti-

tioner has been released from custody.

(1)

TABLE OF CONTENTS

Page

Opinion below 1

Jurisdiction n 1

LIST Ft ae LO er ee a ee a TN 1

Argument 5

SPU IIIIIIIIT cictecshersesindinieiesniielipaallbanstetinesadtiheptaneateapsdecabutnmenivecinenabereneegs 14

TABLE OF AUTHORITIES

Cases:

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) 5

Branzburg v. Hayes, 408 U.S. 665 (1972)... 4,6, 7,8,9, 11,12

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ............. 7

Deakins v. Monaghan, 484 U.S. 193 (1988) 5

Grand Jury Proceedings, In re:

785 F.2d 629 (8th Cir. 1986) 6

810 F.2d 580 (6th Cir. 1987) 9

863 F.2d 667 (9th Cir. 1988) 6

5 F.3d 397 (9th Cir. 1993), cert. denied,

510 US. 1041 (1994) 9,10

Hoffman v. United States, 341 U.S. 479 (1951) ..........0000 12

Lewis v. Continental Bank Corp., 494 U.S. 472

(1990) 6

Marchetti v. United States, 390 U.S. 39 (1968) ................ 12

Ohio v. Reiner, 532 U.S. 17 (2001) 12

Possible Violations of 18 U.S.C. 371, 641, 1508, In re,

564 F.2d 567 (D.C. Cir. 1977) 9

Preiser v. Newkirk, 422 U.S. 395 (1975) 5

Roe v. Wade, 410 U.S. 113 (1973) 6

Shain, In re, 978 F.2d 850 (4th Cir. 1992)

Spencer v. Kemna, 523 U.S. 1 (1998)

United States v. Burke, 700 F.2d 70 (2d Cir.),

cert. denied, 464 U.S. 816 (1983) -10

(IIT)

Cases—Continued: Page

United States v. Cuthbertson, 630 F.2d 139 (3d

Cir. 1980), cert. denied, 449 U.S. 1126 (1981) .............s0000 10-11

United States v. Cutler, 6 F.3d 67 (2d Cir. 1993) ............ 10

United States v. Johnston, 268 U.S. 220 (1925) ...........s000 13

United States v. LaRouche Campaign, _

OG Fe BK I sitticsceietctitiinineriennseriitcmninnaness 10

United States v. Smith, 135 F.3d 963

(5th Cir. 1998) ww’ £ep

University of Pennsylvania v. EEOC, 493 U.S. 182

(1990) 7

Weinstein v. Bradford, 423 U.S. 147 (1975) .......ssceesserees 6

Williams, In re, 963 F.2d 567 (3d Cir. 1992) 11

Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993) 12

Constitution and statutes:

US. Const.:

Amend. I .... 3, 5, 6, 8, 10

Amend. V 3, 4, 5, 12, 13

18 U.S.C. 6001 (1994 & Supp. V 1999) 13

28 U.S.C. 1826 6

28 U.S.C. 1826(a) , 3

Jn the Supreme Court of the Gnited States

No. 01-983

VANESSA LEGGETT, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-9) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 17, 2001. A petition for rehearing was denied

on November 13, 2001 (Pet. App. 13). The petition for a

wric of certiorari was filed on December 31, 2001. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. In late 2000, a federal grand jury sitting in the

Southern District of Texas convened an investigation

into possible illegal activities of wealthy Houstonian

(1)

Robert Angleton. Among other things, Angleton was

suspected of hiring his brother, Roger, to kill his wife,

Doris. Pet. App. 2. Roger Angleton, the alleged

triggerman, committed suicide while in custody at the

Harris County jail. Jbid.

Petitioner is an English teacher and “aspiring free-

lance writer” who intends to write a book about the

murder. Pet. App. 2.’ She has conducted her own in-

vestigation of the crime, which has included interviews

with both Angleton brothers, Roger’s wife, and numer-

ous other people connected to the case. The interviews

were recorded on tapes and in written notes. bid.

On December 7, 2000, petitioner was subpoenaed to

appear before the grand jury investigating Robert

Angleton. She was assured that she was neither a tar-

get nor a subject of the proceedings. She testified be-

fore the grand jury without protest, and she did not

object to providing the grand jury with her notes,

tapes, and photographs. Pet. App. 2-3.

On June 18, 2001, the grand jury issued a subpoena to

petitioner, directing her to appear and to bring:

Any and all tape recorded conversations, originals

and copies, of conversations you had with any of

the following individuals [identifying 34 people by

name], or any other recorded conversations with

individuals associated with the prosecution of

ROBERT ANGLETON, either with or without their

consent, and all transcripts prepared from those

tape recordings.

1 In her career, petitioner has published one article in an FBI

publication (“Varieties of Homicide”) and one fictional short story.

Pet. App. 2 n.3. The court of appeals characterized her as a “vir-

tually unpublished freelance writer operating without an employer

or a contract for publication.” Jd. at 5.

Pet. App. 3. This time, petitioner moved to quash the

subpoena, invoking the so-called “journalist’s privilege”

under the First Amendment. The district court denied

the motion, and while her motion to reconsider was

pending, she was served on July 18 with a new but

virtually identical grand jury subpoena compelling her

to appear the next day. Ibid.

Petitioner appeared before the grand jury on July 19,

but refused to produce the tape recordings and notes,

claiming privileges under the First and Fifth Amend-

ments. As to the latter, defense counsel expressed con-

cern that because petitioner recorded certain conversa-

tions without the consent of the interviewees, she

might be subject to prosecution in certain States. See

7/6/01 Hearing 34; 7/19/01 Hearing 19-20. The govern-

ment offered petitioner a “proffer letter,” granting her

use and derivative use immunity for her grand jury

testimony, as well as for any statements made to

federal agents. Petitioner refused the offer. Pet. App.

3-4.

In a hearing that same day, the district court held

petitioner in contempt pursuant to 28 U.S.C. 1826(a)

and ordered her jailed. Pet. App. 4.7

2. After expedited briefing, the court of appeals

affirmed. It noted, first, that while a “qualified privi-

2 Section 1826(a) provides, in pertinent part:

Whenever a witness in any proceeding before or ancillary to

any court or grand jury of the United States refuses without

just cause shown to comply with an order of the court to

testify or provide other information * * * the court, upon

such refusal * * * may summarily order his confinement at a

suitable place until such time as the witness is willing to give

such testimony or provide such information. No period of such

confinement shall exceed the life of * * * the term of the

grand jury, including extensions.

lege protects journalists from divulging confidential

sources under limited circumstances,” the privilege is

weaker in criminal cases than in civil cases, and

“reach[es] its nadir in grand jury proceedings.” Pet.

App. 5. The court held that, even if petitioner could be

considered a “journalist” for purposes of the privilege,

“the journalist’s privilege is ineffectual against a grand

jury subpoena absent evidence of governmental harass-

ment or oppression.” Jd. at 5-6 (citing Branzburg v.

Hayes, 408 U.S. 665, 710 (1972) (Powell, J., concurring);

United States v. Smith, 135 F.3d 963, 971 (5th Cir.

1998)). The court further concluded that “[oJnly when

the grand jury investigation is not being conducted in

good faith is the journalists’ privilege valid.” Jd. at 6

(internal quotation marks omitted).

Applying that standard, the court found that peti-

tioner had failed to show that the grand jury investi-

gation was not proceeding in good faith, or that she was

harassed or oppressed by the proceedings:

While perhaps not as narrowly tailored as would be

ideal, the subpoena directing [petitioner] to produce

her tape recordings and interview notes is not so

overly broad as to be oppressive. Indeed, the

subpoena clearly seeks material that is closely re-

lated to the subject of the grand jury investigation.

Pet. App. 6.

The court found petitioner’s attempt to invoke her

Fifth Amendment privilege against self-incrimination

“equally unavailing”:

She has been repeatedly advised that she is neither

a target nor a subject of the grand jury investi-

gation. She has made no meaningful argument that

the disclosure of her tape recordings and interview

notes could be used against her in some future

criminal prosecution. [Her] vague and speculative

effort to invoke the Fifth Amendment is further

undermined by the government’s proffer of a writ-

ten non-prosecution agreement.

Pet. App. 8. Because petitioner did not show “‘reason-

able cause to apprehend danger from a direct answer,’

and because her answers would not ‘furnish a link in the

chain of evidence needed for a prosecution,’” the court

found that she could not invoke the privilege against

self-incrimination. Ibid.

3. On January 4, 2002, the grand jury’s term ex-

pired. That day, petitioner was released from prison.

On January 24, 2002, Robert Angleton was indicted on

federal murder charges.

ARGUMENT

Petitioner renews her claim (Pet. 7-26) that she had a

First Amendment privilege to refuse to answer the

grand jury’s questions. She also contends that, in

refusing to testify, she validly invoked her Fifth

Amendment privilege against self-incrimination. Pet.

26-30. Because petitioner has been released from cus-

tody, however, this case is moot. In any event, her

claims do not warrant further review.

1. “Article III of the Constitution limits federal

courts to the adjudication of actual, ongoing contro-

versies between litigants.” Deakins v. Monaghan, 484

U.S. 193, 199 (1988). “To qualify as a case fit for

federal-court adjudication, ‘an actual controversy must

be extant at all stages of review, not merely at the time

the complaint is filed.’” Arizonans for Official English

v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v.

Newkirk, 422 U.S. 395, 401 (1975)). In other words, a

litigant must continue to “suffer[], or be threatened

with, an actual injury * * * likely to be redressed by a

favorable judicial decision.” Spencer v. Kemna, 523

U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank

Corp., 494 U.S. 472, 477 (1990)).

Petitioner seeks relief from the district court’s order

incarcerating her for refusing to testify before the

grand jury. Under 28 U.S.C. 1826, petitioner’s term of

confinement was commensurate with the life of the

grand jury. When the grand jury was terminated on

January 4, petitioner was released from prison. She is

thus no longer aggrieved by the district court’s order,

and the case is moot. See Weinstein v. Bradford, 423

U.S. 147, 148 (1975) (per curiam) (prisoner’s challenge

to parole board procedures mooted by his release from

supervision); see also In re Grand Jury Proceedings,

863 F.2d 667, 668-669 (9th Cir. 1988) (case moot where

contempt order for refusing to testify before grand jury

expired with termination of grand jury); In re Grand

Jury Proceedings, 785 F.2d 629, 630-631 (8th Cir. 1986)

(same).

This is not a case that presents an issue “capable of

repetition, yet evading review.” Roe v. Wade, 410 U.S.

113, 125 (1973). That exception to the mootness doc-

trine applies only where “there [is] a reasonable ex-

pectation that the same complaining party would be

subjected to the same action again.” Weinstein, 423

U.S. at 149. Here, the grand jury completed its investi-

gation, indicted Robert Angleton, and was terminated.

The government has no intention (or reason) to

reconvene the grand jury in connection with the case.

Petitioner, thus, has no reasonable expectation that she

will again be incarcerated for failure to answer the

grand jury’s questions.

2. Even if petitioner’s First Amendment claim were

not moot, it would be foreclosed by this Court’s decision

in Branzburg v. Hayes, 408 U.S. 665 (1972). In Branz-

burg, the Court held that journalists, like other citizens,

must “respond to relevant questions put to them in the

course of a valid grand jury investigation.” Jd. at 690-

691; see Cohen v. Cowles Media Co., 501 U.S. 663, 669

(1991) (“(T]he First Amendment [does not] relieve a

newspaper reporter of the obligation shared by all

citizens to respond to a grand jury subpoena and

answer questions relevant to a criminal investigation,

even though the reporter might be required to reveal a

confidential source.”); University of Pennsylvania v.

EEOC, 493 U.S. 182, 201 (1990) (Branzburg “rejected

the notion that under the First Amendment a reporter

could not be required to appear or to testify as to

information obtained in confidence without a special

showing that the reporter’s testimony was necessary.”).

a. In Branzburg, the Court rejected the suggestion

that courts should conduct a case-by-case balancing of

interests each time a journalist is subpoenaed by a

grand jury. Instead, the Court struck a one-time

balance and announced a categorical rule: the state’s

interest in “law enforcement and in ensuring effective

grand jury proceedings” justifies the “burden on First

Amendment rights” when “reporters [are required] to

give testimony in the manner and for the reasons that

other citizens are called.” 408 U.S. at 690, 700.

3 The Court was also mindful of the practical problems posed

by a case-by-case approach. See 408 U:S. at 702 n.39 (explaining

that, under the “case-by-case method of developing rules, it will be

difficult for potential informants and reporters to predict whether

testimony will be compelled since the decision will turn on the

judge’s ad hoc assessment in different fact settings of ‘importance’

or ‘relevance’ in relation to the free press interest”); id. at 705 (“In

each instance where a reporter is subpoenaed to testify, the courts

would also be embroiled in preliminary factual and legal deter-

minations with respect to whether the proper predicate had been

The Court acknowledged that “news gathering is not

without its First Amendment protections” and noted

that “grand jury investigations if instituted or con-

ducted other than in good faith, would pose wholly

different issues for resolution under the First Amend-

ment.” 408 U.S. at 707. The Court stated that

“(official harassment of the press undertaken not for

purposes of law enforcement but to disrupt a reporter’s

relationship with his news sources would have no

justification.” Jd. at 707-708. Justice Powell under-

scored that point in a separate concurrence, in which he

noted his view that news gatherers would be entitled to

First Amendment protection where a grand jury’s

investigation “is not being conducted in good faith’—

such as where the information sought “bear[s] only a

remote and tenuous relationship to the subject of the

investigation,” or where there is “some other reason to

believe that [the] testimony implicates confidential

source relationships without a legitimate need of law

enforcement.” Jd. at 710 (Powell, J., concurring).

Justice Powell, however, joined the opinion of the

Court, and his separate concurrence accordingly cannot

be read to alter the holding of the case that, at least

absent bad faith or an intent to harass, there is no

laid for the reporter’s appearance: * * * Is it likely that the

reporter has useful information gained in confidence? Could the

grand jury obtain the information elsewhere? Is the official in-

terest sufficient to outweigh the claimed privilege? Thus, in the

end, by considering whether enforcement of a particular law

served a ‘compelling’ governmental interest, the courts would be

inextricably involved in distinguishing between the value of en-

forcing different criminal laws.”).

journalist’s privilege to refuse to comply with a grand

jury subpoena.‘

Petitioner does not claim that the government con-

ducted the grand jury investigation in bad faith or that

the grand jury’s subpoena was meant to harass her.”

Instead, she contends (Pet. 8) that Branzburg mandates

a “case-by-case balancing test” every time a journalist

is subpoenaed to appear before the grand jury. That

contention is mistaken. As explained above, the Court

explicitly rejected such a case-by-case approach, opting

instead for a bright line rule: journalists must answer

to the grand jury just like other citizens. See Branz-

burg, 408 U.S. at 708 (“If there is no First Amendment

privilege to refuse to answer the relevant and material

questions asked during a good-faith grand jury investi-

4 See In re Grand Jury Proceedings, 5 F.3d 397, 401 (9th Cir.

1998) (Justice Powell’s concurrence in Branzburg must be read to

comport with majority opinion that he joined; “(t]he balancing of

interests suggested by Justice Powell is in the limited circum-

stances he mentioned, where there is in effect, an abuse of the

grand jury function.”), cert. denied, 510 U.S. 1041 (1994); accord

Smith, 135 F.3d at 968-969; In re Shain, 978 F.2d 850, 852 (4th Cir.

1992) (“[A]bsent evidence of governmental harassment or bad

faith, the reporters have no privilege different from that of any

other citizen not to testify about knowledge relevant to a criminal

prosecution.”); In re Grand Jury Proceedings, 810 F.2d 580, 585

(6th Cir. 1987) (“Justice Powell’s concurring opinion * * * neither

limits nor expands upon [the majority’s] holding.”); In re Possible

Violations of 18 U.S.C. $71, 641, 1508, 564 F.2d 567, 571 (D.C. Cir.

1977) (“A newsman can claim no general immunity, qualified or

otherwise, from grand jury questioning. On the contrary, like all

other witnesses, he must appear and normally must answer. If the

grand jury’s questions are put in bad faith for the purpose of

harassment, he can call on the courts for protection.”).

5 The district court found that the government did not harass

petitioner. See 7/09/01 Sealed Order 3 (Record Excerpts No. 3);

7/19/01 Hearing 46-47.

gation, then * * * there is no privilege to refuse to

appear before such a grand jury until the Government

demonstrates some ‘compelling need’ for a newsman’s

testimony.”); Smith, 1385 F.3d at 968 (Branzburg “in-

structed that the needs of the press are not to be

weighed against the needs of the government in con-

sidering grand jury subpoenas.”); In re Grand Jury

Proceedings, 5 F.3d 397, 400 (9th Cir. 1993) (Branzburg

conducted a “one-time-only balancing of the conflicting

interests.”), cert. denied, 510 U.S. 1041 (1994).

b. Petitioner errs in contending (Pet. 12-21) that the

decision below conflicts with cases from other courts of

appeals requiring some form of case-specific balancing

when a journalist is called upon to divulge information.

Each of the cases cited by petitioner as requiring such

case-specific balancing concerns a trial subpoena, not a

grand jury subpoena such as those in this case and in

Branzburg. For example, although petitioner cites

(Pet. 14) the First Circuit’s decision in United States v.

LaRouche Campaign, 841 F.2d 1176, 1182 (1988), that

case concerned a defendant’s trial subpoena to a tele-

vision network, and the court ultimately affirmed the

district court’s refusal to quash the subpoena on First

Amendment grounds. Petitioner also cites (Pet. 14)

United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert.

denied, 464 U.S. 816 (1983), but that case too involved a

defendant’s trial subpoena to a journalist, not a grand

jury subpoena. Moreover, even as applied to trial

subpoenas, the Second Circuit has since explained that

“Burke’s articulation of a general test applicable to all

phases of a criminal trial was not necessary to the

resolution of that case” and concluded that “Burke

should accordingly be considered as limited to its facts.”

United States v. Cutler, 6 F.3d 67, 73 (2d Cir. 1993).

The Third Circuit in United States v. Cuthbertson, 630

F.2d 139, 146-147 (1980), cert. denied, 449 U.S. 1126

(1981), similarly addressed a trial subpoena by the

government to a television network; the only Third Cir-

cuit decision to address the question of a journalist’s

privilege in the grand jury context resulted in an

affirmance by an equally divided en banc court, and it

therefore has no precedential effect. See In re

Williams, 963 F.2d 567 (3d Cir. 1992).

To extend the reasoning of the trial subpoena cases

to the grand jury context, as petitioner urges, would

conflict with the holding in Branzburg. See 408 U.S. at

682 (“The sole issue before us is the obligation of re-

porters to respond to grand jury subpoenas as other

citizens do and to answer questions relevant to an

investigation into the commission of crime.”). Indeed,

in refusing to recognize a reporter’s privilege, the

Branzburg Court repeatedly underscored the histori-

cally unique and important role of the grand jury. See,

e.g., 408 U.S. at 685 (noting that “[a]t common law,

courts consistently refused to recognize the existence of

any privilege authorizing a newsman to refuse to reveal

confidential information to a grand jury”); id. at 688

(noting that “the grand jury’s authority to subpoena

witnesses is not only historic, but essential to its task”

and that “the longstanding principle that ‘the public

. . . has aright to every man’s evidence, * * * is

particularly applicable to grand jury proceedings”)

(citations omitted); id. at 701 (“A grand jury investi-

gation is not fully carried out until every available clue

has been run down and all witnesses examined in every

proper way to find if a crime has been committed.”)

(internal quotation marks omitted).

As the court below noted, no court of appeals has

recognized a qualified testimonial privilege in the

context of a criminal grand jury. Pet. App. 7. There is

thus no conflict between this case and any decision of

any other court of appeals, and further review is not

warranted.° |

3. Petitioner also claims (Pet. 26-30) that the court of

appeals erred in finding that she did not have a basis for

invoking her Fifth Amendment privilege against com-

pelled self-incrimination. Even if that claim were not

moot, it would not warrant this Court’s review.

A witness may invoke the privilege against self-

incrimination only when there is reasonable cause to

believe that a direct answer would support a conviction

or provide a link in the chain of evidence leading to a

conviction. Hoffman v. United States, 341 U.S. 479, 486

(1951). To be self-incriminating, the compelled answers

must pose a “substantial and ‘real,’ and not merely [a]

trifling or imaginary, hazard[]}’ of criminal prosecution.

Marchetti v. United States, 390 U.S. 39, 53 (1968);

see Ohio v. Reiner, 5382 U.S. 17, 20-21 (2001) (per

curiam). The court of appeals found that petitioner

made only a “vague and speculative” argument that

compliance with the grand jury subpoena could incri-

minate her. Pet. App. 8; see ibid. (noting that peti-

tioner “has made no meaningful argument that the

disclosure of her tape recordings and interview notes

6 Petitioner separately contends that the grand jury subpoena

amounted to an unlawful “prior restraint” on the publication of her

book. Pet. 22-24. Because that issue was neither presented to, nor

decided by, the court of appeals, it is not properly before this

Court. See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1,

8 (1993) (“Where issues are neither raised before nor considered by

the Court of Appeals, this Court will not ordinarily consider

them.”). Furthermore, the Court in Branzburg specifically noted

that requring journalists to comply with grand jury subpoenas

does not amount to a “prior restraint or restriction on what the

press may publish.” 408 U.S. at 681.

could be used against her in some future criminal pro-

secution”). That factbound determination does not war-

rant this Court’s review. See United States v.

Johnston, 268 U.S. 220, 226 (1925). Furthermore, as the

court also noted (Pet. App. 8), the government provided

petitioner with a written non-prosecution agreement

that bound the government to the full extent of 18

U.S.C. 6001 (1994 & Supp. V 1999).” It also represented

that it would seek immunity from any state

prosecution, if necessary. See 7/19/01 Hearing 35-36.

The court of appeals correctly found that petitioner’s

refusal to testify was not justified under the Fifth

Amendment.

7 The letter provided:

Any information you provide in response to questions posed by

law enforcement agents or a subsequent grand jury shall re-

ceive protections co-extensive with and limited by those

conferred for testimony given pursuant to a compulsion order

issued under the provisions of 18 U.S.C. § 6001 et seq. That is,

such information shall not be used directly or indirectly against

you in any criminal case, except that such information may be

used against you in any prosecution for perjury, giving a false

statement to a federal official in a matter within that official’s

jurisdiction, and/or obstruction of justice.

7/19/01 Letter (Record Excerpts No. 7).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.