Reply Brief — Leggett v. United States

In The

Supreme Court of the United States

*.

VANESSA LEGGETT,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

REPLY BY PETITIONER TO GOVERNMENT'S

BRIEF IN OPPOSITION

¢

GEORGE MICHAEL DeGEvuRIN

ForEMAN, DeGeurin, NuGent &

GERGER

300 Main Street

Houston, Texas 77002

(713) 655-9000 Telephone

(713) 655-1812 Facsimile

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR. CALL COLLECT (402) 342-2831

Ae

QUESTION PRESENTED

Whether petitioner’s First and Fifth Amendment

challenges to a contempt order, incarcerating her for

refusing to testify and provide evidence before a federal

grand jury, are moot once petitioner has been released

from custody but remains under real threat of being re-

subpoenaed for the same evidence at trial.

li

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page

CasEs

Arizonans for Official English v. Arizona, 520 U.S.

Es 6 5h6 4684008 Ud e600 ce ehseeedeteernissenvers 2

Branzburg v. Hayes, 408 U.S. 665 (1972).............. 4

Deakins v. Monaghan, 484 U.S. 193 (1988)............ 2

First Nat’] Bank v. Bellotti, 435 U.S. 765 (1978)....... 3

Friends of the Earth, Inc. v. Laidlaw Environmen-

tal Services (TOC), Inc., 528 U.S. 167 (2000)........ 5

In re Grand Jury Proceedings (Doe), 863 F.2d 667

aes Sieh ee ves bees s 90 0450 os ck eetn ness 5

In re Grand Jury Proceedings (Larson), 785 F.2d

i ME bush sh eeu piv osessrbesiveesctesse 4

In re Grand Jury Proceedings Thursday Special

Grand Jury September Term, 22 F.3d 342 (4th

ee eee ce sae u bas eetheees¥eee 5

In re Grand Jury Subpoenas (Leggett), Slip. opin.

PEE CPUS ED, BOWED vec ccccvnvscccccevevevess 2, 4

Preiser v. Newkirk, 422 U.S. 395 (1975) .............. 2

Richmond Newspaper, Inc. v. Virginia, 448 U.S.

Cc cccchccseeed ber yerer eee le tewesevesse< 7

mee Te Wem Sie Uy 22D COTE). 2.6 oo vecccesecccvnss 3

United States v. Johnston, 268 U.S. 220 (1925)........ 7

United States v. Smith, 135 F.3d 963 (5th Cir. 1998) ...2, 4

Weinstein v. Bradford, 423 U.S. 147 (1975).......... 3, 4

iv

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND RULES

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CONSTITUTIONAL PROVISIONS

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ARGUMENT

On January 4, 2002, Vanessa Leggett, a freelance jour-

nalist and author,! was released from the Federal Deten-

tion Center in Houston, TX. She had been incarcerated for

168 days.?

Ms. Leggett’s confinement was terminated upon

motion of her counsel and was in conjunction with the

expiration of the 18 month term of the federal grand

jury investigating Robert Angleton. The government

responded to Ms. Leggett’s request for release by declar-

ing that:

The United States intends to renew its request of

LEGGETT to provide the previously requested

material and will pursue available procedures to

require LEGGETT’s cooperation, if necessary.

See January 3, 2002, United States’ Response to

Motion to Vacate Contempt Order and for Order

of Immediate Release (Lodged with the Clerk of

the United States Supreme Court).

The prosecutors’ resolve to appropriate, through sub-

poena, Ms. Leggett’s journalistic research (including her-

confidential sources and conversations) and her

anticipated assertion of privilege, makes a second

1 The government inaccurately states in its brief that Ms.

Leggett has only been published two times in her career as a

freelance writer. Ms. Leggett has been published four times

including Newsweek, Suddenly (a short story anthology) and now

in two separate publications by the Federal Bureau of

Investigations/Department of Justice in “The Diversity of

Homicide” and “The Varieties of Homicide”.

2 Prior to Ms. Leggett, the longest known incarceration of a

U.S. journalist was 46 days.

contempt hearing appear inevitable. There remains an

“actual, ongoing controversy.” Therefore, despite the ter-

mination of the underlying contempt order, this case

remains ripe for federal-court adjudication under Article

III of the U.S. Constitution. See U.S. CONST. art. III;

Deakins v. Monaghan, 484 U.S. 193, 199 (1988).

Soon after Ms. Leggett was released from jail, the

government convened a new grand jury and immediately

indicted Mr. Angleton. He is currently scheduled to begin

trial on June 3, 2002. The prosecution notified counsel for

Ms. Leggett that she is on the government’s witness list

for trial and will be resubpoenaed. See March 20, 2002,

Affidavit of Attorney George Michael DeGeurin (Lodged

with the Clerk of the U.S. Supreme Court). Ms. Leggett

faces a substantial threat of future incarceration based on

the Fifth Circuit’s analysis of both her First and Fifth

Amendment privileges.

Ms. Leggett’s situation merits review as it is “likely

to be redressed by a favorable judicial decision” by this

Court in the instant case. See Arizonans for Official English

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

kirk, 422 U.S. 395, 401 (1975)). Although Ms. Leggett’s

original order of contempt was based on a grand jury

subpoena, the Fifth Circuit’s analysis of a journalist's

First Amendment privilege does not differentiate

between grand jury and criminal trial subpoenas. See

United States v. Smith, 135 F.3d 963 (5th Cir. 1998); In re

Grand Jury Subpoenas (Leggett), Slip. opin. 01-20745 (Nov.

13, 2001). The same holds true for her Fifth Amendment

privilege. Ms. Leggett remains subject to the same action

occurring again and yet, due to the nature of the con-

tempt statute, her case is “capable of repetition but evad-

ing review.” Roe v. Wade, 410 U.S. 113, 125 (1973);

Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

This case fits the exception to the rule against moot-

ness which applies when two elements co-exist. First, the

challenged action must be of inherently short duration, a

period too brief for effective judicial review; second, the

party raising the challenge must have a reasonable expec-

tation that she will again be subjected to the same type of

action. Weinstein, 423 U.S. at 149. Both prongs are satis-

fied here. First, it is well recognized that a contempt

action is intrinsically limited in term, lasting no longer

than 18 months. See 18 U.S.C. § 1826. This Court has

previously held that 18 months was not enough time for

complete judicial review and certainly, the five months

afforded Ms. Leggett, before the termination of the grand

jury, was not sufficient to consummate such a task. See

First Nat’l Bank v. Bellotti, 435 U.S. 765, 774 (1978).

Secondly, the Fifth Circuit’s admittedly “narrow view of

the journalist’s privilege in criminal cases” provides a rea-

sonable basis to believe Ms. Leggett will be subjected to a

second contempt action after the government re-subpoenas

her either to the new grand jury or as a witness at Mr.

Angleton’s trial. Leggett, p. 6. Unlike other courts, the

Fifth Circuit has limited its application of a journalist’s quali-

fied First Amendment privilege to only protection against

harassment or oppression - both before the grand jury

and the criminal trial court. Smith, 135 F.3d at 971°;

Leggett, Slip. opin. 01-20745, p. 7. The same test will

assuredly result in an identical outcome for Ms. Leggett

in future contempt actions, unless she can successfully

avail herself of full appellate review.

Yet, the government urges the Court to find Ms.

Leggett’s case moot based solely on the termination of the

original grand jury. They rely on three cases in support of

that position and each will be addressed in turn below.

First, in Weinstein v. Bradford, supra, a challenge to parole

procedures was held to be moot where the plaintiff had

completed his sentence and there was no longer any

likelihood whatsoever that he would again be subjected

to the challenged parole procedures. Weinstein can be

distinguished on its facts from Ms. Leggett’s case because

here the government has already indicated that they will

be resubpoenaing Ms. Leggett for the same evidence in

their continuing prosecution of Robert Angleton. Distin-

guishable on the same grounds is In re Grand Jury Proceed-

ings (Larson), 785 F.2d 629 (8th Cir. 1986), where the court

held a civil contemnor’s appeal as moot after the grand

jury’s investigation resulted in both an indictment and a

guilty plea causing the witness to no longer have any

reasonable expectation that he would be resubpoenaed to

testify in the matter.

3 Although Smith dealt with the application of a journalist’s

First Amendment privilege against the disclosure of

nonconfidential materials before a criminal trial court, the court

went on to state that although it was not directly before the

court, a similar claim based on confidential materials had

already been rejected in Branzburg v. Hayes, 408 U.S. 665 (1972).

135 F.3d at 969.

Finally, in In re Grand Jury Proceedings (Doe), 863 F.2d

667 (9th Cir. 1988), the court held a contemnor’s appeal to

be moot upon termination of the grand jury, where the

witness was found to have access to an expedited review

by that same court if he faced a second grand jury sub-

poena/contempt action in the future. The Doe decision is

not controlling in this case because the circuit court did

not address the issue in question here —- whether a resub-

poenaed petitioner would also receive timely judicial

review by the U.S. Supreme Court where an expedited

appeal is not available.

The Doe case also is in conflict with the Fourth Cir-

cuit’s opinion in In re Grand Jury Proceedings Thursday

Special Grand Jury September Term, 22 F.3d 342 (4th Cir.

1994), where an appeal from an order enforcing a grand

jury’s subpoenas was not found moot upon termination

of the grand jury. In that case the court found:

There is more than a reasonable expectation that

the complaining party . . . will be subjected to

the same action again. Additionally, as is appar-

ent from the present proceedings, the life of a

subpoena, measured by the duration of a grand

jury session, is too short to be fully litigated

prior to its expiration. Id. at 346-347.

Here, the government has not met the heavy burden that

lies with the party asserting mootness requiring it to

show that the challenged conduct cannot be expected to

re-occur. Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 528 U.S. 167 (2000). Similarly, they

have made no showing that this case will not escape full

appellate review.

The government’s mootness argument is unpersua-

sive and is additionally suspect due to its control over the

grand jury itself. Specifically, it is the prosecutor who

determines the date and order that witnesses will be

subpoenaed. Following the government’s theory, a pro-

secutor could thwart a contemnor’s ability to reach judi-

cial reveiw by the U.S. Supreme Court simply by subpoe-

naing the witness towards the middle or end of the grand

jury term. The contemnor would inevitably “run out of

time” before ever reaching full appellate review. This is

what occurred here. Even though the federal government

was fully aware of Ms. Leggett (and the evidence that she

is alleged to possess) at the inception of the grand jury,‘

they chose not to subpoena her until its near termination.

Despite her submission of an expedited appeal to the

Fifth Circuit, Ms. Leggett’s six month incarceration was

insufficient time for her to seek full review by this Court

before the grand jury terminated. Her situation only dem-

onstrates how the government’s theory on mootness

would arguably allow them to dictate whether or not Ms.

Leggett’s case and others ever receive full appellate

review.

Ms. Leggett would have similarly little control over

the time afforded her for judicial review if she were

subpoenaed and held in contempt before the trial court.

This Court has also recognized that due to the short

duration of criminal trials, there remains the possibility

that trial specific orders will evade review, or at least

* This is due to the state prosecution of Robert Angleton on

similar charges and the sharing of information between the state

and the federal government in their investigations.

plenary review, of the Supreme Court. Richmond News-

paper, Inc. v. Virginia, 448 U.S. 555, 563 (1980) (Challenge

by media to a court order that excluded public from a

trial was not mooted by acquittal of defendant due to the

short term nature of criminal trials). If Ms. Leggett’s

instant appeal were found moot under the government's

theory, she could potentially return to custody before and

during the criminal trial while trying to obtain full appel-

late review — only to have her case mooted again due to

the conclusion of the trial.

Ms. Leggett’s case is clearly one that fits the “capable

of repetition but evading review” exception to the moot-

ness doctrine. While the government makes an unpersua-

sive attempt to disregard her First Amendment claims, it

makes no attempt to claim mootness on her Fifth Amend-

ment privilege.5 Both issues deserve this court’s attention

and review.

*

5 Instead the government argues that Ms. Leggett’s Fifth

Amendment claim of privilege does not warrant this Court’s

review. In doing so, they cite United States v. Johnston, 268 U.S.

220, 226 (1925), a case that is factually inapposite and where

they direct the court’s attention to a page where the court

actually granted certiorari.

CONCLUSION

Wherefore the petitioner prays that this Court grant

the petition for writ of certiorari as to this cause.

Respectfully submitted, |

GrorGce MicHast DeGEurIN

FoREMAN, DeGEuRIN NuGENT &

GERGER

300 Main Street

Houston, Texas 77002

(713) 655-9000 Telephone

(713) 655-1812 Facsimile

Counsel of Record for Petitioner

|

|

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App. 1

No. 01-983

IN THE

SUPREME COURT OF THE UNITED STATES

VANESSA LEGGETT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

AFFDIAVIT

AFFIDAVIT

BEFORE ME the undersigned authority personally

appeared George Michael DeGeurin who after being duly

sworn deposed and said:

My name is George Michael DeGeurin. I am

the attorney of record for Vanessa Leggett. The

target of the grand jury investigation when Van-

essa Leggett was subpoenaed to testify before

the Grand Jury was Robert Angelton. When the

term of that Grand Jury expired Vanessa Leggett

was released from custody. Shortly after Vanessa

Leggett’s release from custody a new Grand

Jury indicted Mr. Robert Angelton. The assistant

U.S. attorney assigned the prosecution of Mr.

Robert Angleton notified me that Vanessa Leg-

gett would be subpoenaed again, this time as a

witness for the trial of Robert Angelton. I was

further informed that Vanessa Leggett is

included in the government’s witness list for

trial that will be provided to Robert Angleton’s

defense attorney.

App. 2

/s/ George Michael DeGeurin

George Michael DeGeurin

SUBSCRIBED TO before me, the undersigned author-

ity on this the 20th day of March, 2002.

[SEAL] BLANCA LUJAN

MY COMMISSION EXPIRES

July 24, 2002

/s/ Blanca Lujan

Notary Public for the

State of Texas

App. 3

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE GRAND JURY §

SUBPOENA TO § MISCELLANEOUS

VANESSA LEGGETT § NO. 01-179

8

UNITED STATES’ RESPONSE TO MOTION

TO VACATE CONTEMPT ORDER AND

FOR ORDER OF IMMEDIATE RELEASE

The United States of America, through Michael T.

Shelby, United States Attorney for the Southern District

of Texas, responds to VANESSA LEGGETT’s Motion to

Vacate Contempt Order and for Order of Immediate

Release, as follows:

1. On July 19, 2001, VANESSA LEGGETT appeared

before Federal Grand Jury 00-01 and refused to comply

with a grand jury subpoena requiring her to turn over

tapes of interviews she admitted that she conducted with

others in the investigation of Robert Angleton. Speci-

fically, LEGGETT refused to respond to questions relating

to her creation and or possession of tape recorded conver-

sations, both video and audio, of 34 named individuals.

2. The district court conducted a hearing and LEG-

GETT again refused to comply with the grand jury sub-

poena citing her Journalist’s privilege under the First

Amendment. The district court cited LEGGETT for con-

tempt under Title 28, United States Code, Section 1826(a).

The court denied her motion for rehearing. On July 20,

App. 4

2001, LEGGETT surrendered to the custody of the United

States Marshal.

3. On August 17, 2001, the United States Court of

Appeals for the Fifth Circuit recognized that no circuit

court in this country has recognized a qualified testi-

monial privilege in the context of a federal criminal grand

jury. The Fifth Circuit affirmed the district court finding

that the court did not abuse its discretion in ordering

LEGGETT incarcerated for contempt. The Fifth Circuit

concluded that in criminal grand jury matters the public’s

interest in effective law enforcement virtually always out-

weighs the press’s privilege against disclosing confiden-

tial sources or information.

4. Subsequently, LEGGETT exhausted her right of

appeal before the Fifth Circuit when her motions for bond

and rehearing en banc were denied.

5. As a matter of law, Rule 6(g) Federal Rules of

Criminal Procedure, Grand Jury 00-01 cannot be extended

beyond January 4, 2002. Therefore, VANESSA LEGGETT

must be released by the court on that date and the court

need not act on LEGGETT’s motion for this to occur.

6. No citizen has the right to withhold evidence

from a criminal grand jury. She continues to refuse to

comply with the grand jury subpoena and with the order

of the district court.

7. The United States intends to renew its request of

LEGGETT to provide the previously requested material

and will pursue available procedures to require LEG-

GETT’s cooperation, if necessary.

App. 5

Respectfully submitted,

MICHAEL T. SHELBY

United States Attorney

TERRY CLARK

EDWARD F. GALLAGHER III

Assistant United States Attorneys

CERTIFICATE OF SERVICE

I certify that a copy of United States’ Response to

Vanessa Leggett’s Motion to Vacate Contempt Order and

for Order of Immediate Release was sent to her counsel,

Mike DeGuerin, by facsmile [sic] on January 3, 2002.

TERRY CLARK

Assistant United States Attorney

App. 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE GRAND JURY §

SUBPOENA TO § MISCELLANEOUS

VANESSA LEGGETT § _ NO. 01-179

8

ORDER

Based upon the termination of service for Grand Jury

00-01, effective January 4, 2002, this Court has no choice

but to order the Federal Detention Center in Houston to

release VANESSA LEGGETT on January 4, 2002, no later

than a.m./p.m.

Signed January __, 2002.

MELINDA HARMON

United States District Judge