Opposition Brief — Nakamura v. United States

No. 94-1401

In the Supreme Court of the Gnited States

OcTOBER TERM. 1994

L., PETITIONERS

MERICA

FOR A WRIT OF CERTIORARI

ITED STATES COURT OF APPEALS

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

REW S. Days, III

tor General

\L.L. PATRICK

\ttorne if (re hie ral

NSAY SILVER

‘OSS

ent of Justice

tton, D.C. 205.0

2217

QUESTION PRESENTED

Whether the court of appeals erred in declining to

invoke its supervisory power to require a hearing prior

to the disclosure of certain subpoenaed material to a

grand jury.

(I)

TABLE OF CONTENTS

Page

Opinions below

l

Jurisdiction.................. eb unedebdib uaa Nen uth tdbcatanes tied ndéxdineccckscecic.. |

j

7

TABLE OF AUTHORITIES

Cases:

Church of Scientology v. United States, 113 S. Ct. 447

1 SOOT SRL RUASS Ret cess eC senneciii 4,6

Dove v. United State 8, 423 U.S. 325 (1976) ...................... 7

Federal Grand Jury Proceedings, 89-10 (MIA). In re,

938 F.2d 1578 (11th Cir. 1991) occceccccccccssccccecocoeeeesc..... 7

Gardner v. Broderick, 392 US. 273 ere &

Garrity v. New Jersey, 385 U.S. 493 (1967)... 2

Grand Jury Proceedings, In re, 45 F.3d 343 (9th Cir.

Se iia tAIM kine ta eihoinoscer.canboscosssvsiecoineaevese ceases... i)

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

SEES DE ae 6

Grand Jury Proceedings (Larson), In re.

I 6.7

Kastigar v. United States 406 ip 2) >) 5, 9

Lefkowitz v. Turley, 414 U.S. 70 ( 1973) edeteavilpibanbeadanccns &

Murphy v. Waterfront Comm ‘n, 378 U.S. 52 (1964) ......... i)

Nebraska Press Ass'n vy. Stua rt, 427 U.S. 539 (1976) ..... 7

Perlman v. United States, 247 U.S. 7 (1918) ...................

Preiser v. Newkirk, 422 U.S a, Ee ee eae 6

‘esedlians Pacific pee a Co. v. ICC, 219 U.S. 498

I MiNi dinld cake dontnspiisteniictedéaccsboneesesseeaon, os... 7

United States v. Koon, 34 F. 3d 1416 (9th Cir, 1994).

petitions for cert. pending, Nos. 94-1664 & 94-8842 g

(III)

Cases—Continued: Page

United States v. Sells Engineering, Inc., 463 U.S. 418

CIEE skicasioiss Ukiah netaldin cunccikdenticecdlacneivsanadcwentias eats ubtucs canbe adeeb 6

Velsicol Chemical Corp. v. United States, cert. denied,

I hin ie de a et s

Weinstein v. Bradford, ee Eo BEE CRIS cvcridcccsccccessesss 7

Constitution and rules:

Oe gaa U.S an 4,5, 7,8, 9

Fed. R. Crim. P.:

a ee 3, 4

I A a 3

Miscellaneous:

Robert L. Stern et al., Supreme Court Practice

eR ARR: RR RRR Ee ee OH RR PRE Age NSA aE ER s

13A Charles Alan Wright et al., Federal Practice and

Procedure (2d ed. 1984 & Supp. 1994)

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Jn the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1401

STEVE NAKAMURA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-21) is

reported at 40 F.3d 1096. The opinion of the district

court (Pet. App. 22-26) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

November 21, 1994. The petition for a writ of certiorari

was filed on February 17, 1995. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. This matter arose out of a federal grand jury

investigation into the fatal shooting of Peter Klunck

by Albuquerque police officers on January 27, 1989.

(1)

»)

~

Following the shooting, the Internal Affairs Unit (LAU)

of the Albuquerque Police Department (the Department)

conducted an investigation in which it interviewed

officers present during the attempt to apprehend Mr.

Klunck, including petitioners. Department regulations

require officers, as a condition of continuing employ-

ment, to answer truthfully all questions relating to

matters under IAU investigation. Pet. App. 2-3. The

regulations further provide that an officer’s answers to

such questions “shall [not] be the basis for an individ-

ual waiving his Fifth Amendment rights under the

Constitution or law of the United States of America or

the State of New Mexico.” bid.

2. In 1992, the Federal Bureau of Investigation began

an investigation into the shooting of Mr. Klunck to

determine whether the shooting violated Mr. Klunck’s

federal civil rights. As part of its investigation, the FBI

requested the Department’s IAU investigation file from

Department Chief Bob Stover. Chief Stover refused to

provide the file, asserting that the officers’ compelled

statements were not subject to disclosure. C.A. App. 15;

Pet. App. 4.

3. On December 7, 1993, a federal grand jury in

Albuquerque investigating the shooting of Mr. Klunck

served on Chief Stover a subpoena duces tecum

requesting a copy of the IAU report. Pet. App. 4. On

December 27, 1993, Chief Stover filed a motion to quash

or modify the subpoena, arguing that, because the

officers’ statements were compelled under threat of

termination, this Court’s decision in Garrity v. New

Jersey, 385 U.S. 493 (1967), precluded their use in a

subsequent criminal proceeding. Gov’t C.A. Br. 3; Pet.

App. 4.

4. On January 7, 1994, after viewing the IAU report

in camera, the district court denied Chief Stover’s

3

motion to quash the subpoena and ordered that the

subpoenaed material be turned over to the Assistant

United States Attorney with directions that the

documents not be disclosed except to those persons

authorized to receive grand jury material under Federal

Rule of Criminal Procedure 6.' Pet. App. 4. Chief Stover

filed a motion to stay the order. Jbid.

5. On January 11, 1994, petitioner Steve Nakamura,

one of the police officers who gave statements to the IAU

investigators, moved to intervene and for a stay and

reconsideration of the court’s January 7, 1994, order.

The same day, five unnamed members of the Department

who had given IAU statements, also petitioners here,

separately filed a “Motion for Intervention, Stay of

Order and Reconsideration.” Pet. App. 3-5.

6. The district court denied Chief Stover’s motion for

a stay and, on January 12, 1994, denied petitioners’

consolidated motions. Pet. App. 22-26. The district court

rejected the contention that Garrity precluded dis-

closure of the [AU report to the grand jury. The court

found that the officers “are immunized insofar as the use

of the compelled statements,” and that “[t]here are

sufficient protections under Garrity and its progeny

* * * to preclude the use of compelled statements

against the declarant.” Jd. at 24. The court dismissed as

unsupported petitioners’ contention that the material

might be used in future civil litigation, and noted that,

' Federal Rule of Criminal Procedure 6(e)(3)(A) allows

disclosure of matters occurring before the grand jury to

government attorneys for use in the performance of their duties,

and “such government personnel * * * as are deemed necessary

by an attorney for the government to assist an attorney for the

government in the performance of such attorney’s duty to enforce

federal criminal law.”

4

pursuant to Federal Rule of Criminal Procedure 6, “the

Court is sufficiently empowered to punish those vio-

lating the confidentiality of grand jury proceedings and

to protect the constitutional rights of those wronged.”

Pet. App. 25.

7. The court of appeals affirmed the district court’s

refusal to quash the subpoena.” Pet. App. 1-21. The court

first determined that, although the denial of a motion to

quash a subpoena is interlocutory in nature, the district

court’s order was immediately appealable under

Perlman v. United States, 247 U.S. 7 (1918), because

Chief Stover had informed petitioners that he intended to

turn the internal affairs file over to the grand jury

rather than await a contempt citation. Pet. App. 7-8.

The court rejected the government’s contention that

the case had become moot because the IAU file had in

fact been turned over to the grand jury. Relying on this

Court’s decision in Church of Scientology v. United

States, 113 S. Ct. 447 (1992), the court of appeals deter-

mined that it could still afford petitioners the relief they

sought by ordering that the IAU report be returned to

the Department or destroyed. Pet. App. 8-9.

Turning to the merits, the court of appeals rejected

petitioners’ contention that mere disclosure of the [AU

file to the grand jury violated their Fifth Amendment

right against self-incrimination. The court noted that

no officer was required to waive his Fifth Amendment

privilege in responding to the IAU investigators’

inquiries, and that the grand jury had not yet returned

an indictment against any officer whose compelled

* Observing that persons in petitioners’ position “generally have

the right to intervene in a pending criminal matter” (Pet. App. 5

n.1), the court of appeals proceeded to “consider the substantive

bases of the [district] court’s denial of [petitioners’] motions.” Ibid.

5

statement had been disclosed. Pet. App. 14-16. Con-

sequently, the court held, the officers’ staternents to the

IAU had not been obtained or used in violation of the

Constitution. Jbid.

Finding petitioners’ concerns of potential grand jury

abuse to be purely speculative, the court asserted that, if

and when the grand jury returned an indictment against

any of the petitioners, each indicted officer would be

entitled to challenge his indictment in a hearing of the

kind prescribed by this Court in Kastigar v. United

States, 406 U.S. 441 (1972). Pet. App. 17. The court of

appeals observed that in such a hearing, “the government

will be required to prove that its evidence derives

entirely from legitimate sources or that the grand jury’s

exposure to the officer’s statement was harmless.” Jbid.

The court concluded that the right to a Kastigar-style

hearing, along with the procedural protections employed

by the government, “provides an adequate safeguard

against violation of [petitioners’] Fifth Amendment

rights.” Jd. at 18-19.

Finally, the court rejected petitioners’ argument that,

even if disclosure of the IAU file to the grand jury was

not a per se violation of the Fifth Amendment, the court

was obliged to require a pre-disclosure hearing at which

the government would be required to demonstrate, inter

alia, a “compelling need” for the subpoenaed material.

Pet. App. 19-20. The court declined to add this “addition-

al layer of protection” requested by petitioners, in light

of its finding that existing protections were adequate.

Id. at 20-21.

8. In November, 1994, the Albuquerque grand jury’s

tenure expired. The grand jury did not issue any indict-

ments, and no subsequent grand jury investigation

regarding the Klunck shooting is likely. Petitioners

6

filed their petition for a writ of certiorari on February

17, 1995, after the expiration of the grand jury.

ARGUMENT

1. Petitioners seek review of the court of appeals’

refusal to impose additional conditions on the grand

jury’s use of the IAU file, and request that this Court

impose an elaborate pre-disclosure hearing requirement.

E..g., Pet. 16, 18, 27. However, the grand jury’s term has

expired and the jurors have been dismissed. This Court

cannot, therefore, grant the relief petitioners seek, and

the case is moot. Preiser v. Newkirk, 422 U.S. 395, 401-

402 (1975); see also In re Grand Jury Proceedings (Jane

Doe), 863 F.2d 667, 668 (9th Cir. 1988) (appeal of finding of

civil contempt for refusing to testify before grand jury

was moot where term of grand jury had lapsed); In re

Grand Jury Proceedings (Larson), 785 F.2d 629 (8th Cir.

1986) (same).”

°> Applying this Court’s decision in Church of Scientology v.

United States, 113 S. Ct. 447 (1992), the court of appeals concluded

that, although the IAU file had already been turned over to the

grand jury, the case was not then moot because the district court

could order the grand jury to return or destroy the IAU file. Pet.

App. 9. At present, however, the grand jury no longer exists and

the relief that petitioners sought below cannot be granted. Ad-

ditionally, the prophylactic procedural mechanism that petitioners

seek in this Court (Pet. 27) cannot be provided in the absence of an

ongoing grand jury investigation.

This outcome is consistent with United States v. Sells

Engineering, Inc., 463 U.S. 418 (1983). In Sells, the Court found a

live controversy to exist, despite prior disclosure of grand jury

materials to the government, where the government sought the

matorials “for use in preparing and conducting a possible civil suit

against respondents under the False Claims Act.” Jd. at 421-422 &

n.6. In the instant case, the IAU file was sought solely for use in

the grand jury’s now-terminated investigation.

7

This case does not fall within the exception to the

mootness doctrine afforded to disputes that are “capable

of repetition, yet evading review.” See, e.g., Nebraska

Press Ass’n v. Stuart, 427 U.S. 539, 546 (1976); Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

The grand jury at issue in this case has concluded its

investigation without issuing an indictment, and there

is no reasonable likelihood that a subsequent grand

jury will be called to investigate the Klunck shooting.

Thus, there is no “reasonable expectation that the

same complaining party [will] be subjected to the same

action again.” Weinstein v. Bradford, 423 U.S. 147, 149

(1975) (per curiam). See In re Federal Grand Jury

Proceedings, 89-10 (MIA), 938 F.2d 1578, 1580 (11th Cir.

1991) (speculation that issue might recur in a subse-

quent proceeding not sufficient to invoke exception to

mootness doctrine); In re Grand Jury Proceedings

(Larson), 785 F.2d at 631 (issue not “capable of repetition,

yet evading review” where no “reasonable expectation

exists that [the appellant] will again be subpoenaed to

testify about [the target of the investigation]”).

Both courts below concluded that disclosure of the

IAU file did not violate the Fifth Amendment. The court

of appeals also rejected petitioners’ contention that

additional procedural protections were necessary. As

we show below, those determinations would not warrant

this Court’s review in the absence of a suggestion of

mootness. In such circumstances, the fact that the

controversy has become moot does not provide a reason

for the Court to disturb the judgment of the court of

appeals. Dove v. United States, 423 U.S. 325 (1976) (per

curiam).*

4 We have consistently taken the position that the Court should

deny review of cases that have become moot while a petition for

8

2. Petitioners do not now appear to challenge the

court of appeals’ decision that disclosure of the IAU file

to the grand jury did not violate the Fifth Amendment

under Garrity and its progeny. Rather, they urge this

Court “to revisit Garrity and establish procedural

safeguards for use by district courts where a grand jury

subpoena requests full and unsupervised disclosure of

police officers’ Internal Affairs statements.” Pet. 12.°

certiorari is pending but has not yet been granted, when such cases

do not present any question that is independently worthy of this

Court’s review. See, e.g., U.S. Br. in Opp. at 5-8, Velsicol Chemical

Corp. v. United States, cert. denied, 435 U.S. 942 (1978) (No. 77-

900) (arguing that Court should deny certiorari in moot cases that

would not have warranted review on the merits); Robert L. Stern

et al., Supreme Court Practice § 18.5, at 724 n.29 (7th ed. 1993)

(discussing Velsicol doctrine and stating that the Court appears

to follow the argument advanced in the U.S. brief in that case);

but see 13A Charles Alan Wright et al., Federal Practice and

Procedure § 3533.10, at 432-435 (2d ed. 1984 & Supp. 1994)

(disapproving Velsicol doctrine and stating that vacatur under

Munsingwear is always appropriate when case becomes moot

before Court grants certiorari). Petitioners have been provided a

copy of the United States’ Briefs in Opposition in Velsicol.

° To the extent that this request encompasses a contention that

disclosure of the IAU file violated the Fifth Amendment, that

contention is without merit. The court of appeals correctly

determined (Pet. App. 16-17) that it is not the mere disclosure of

compelled statements that implicates the Fifth Amendment right

against self-incrimination, but the use of such statements to

prosecute a particular declarant. See, e.g., Gardner v. Broderick,

392 U.S. 273, 278 (1968) (Fifth Amendment would not be violated

where an officer is compelled to answer questions relating to his

duties but is not required to waive his immunity with respect to

the use of his answers); Lefkowitz v. Turley, 414 U.S. 70, 84 (1973)

(same). A contrary result would, for example, invalidate the use

of an internal affairs report to indict someone other than the

declarant, although no Fifth Amendment right would be impli-

cated by such use.

9

The court of appeals correctly held that existing

restrictions on the use of grand jury material are

adequate to safeguard officers’ Fifth Amendment rights.

The court of appeals found (Pet. App. 18-19) that

the availability of a post-indictment hearing of the

kind prescribed by this Court in Kastigar v. United

States, 406 U.S. 441 (i972), adequately protects the

Fifth Amendment right recognized in Garrity. Under

Kastigar, when a defendant is indicted after mak-

ing a compelled statement, the government has the

burden of demonstrating “an independent, legitimate

source for the disputed evidence.” /d. at 460 (quoting

Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 n.18

(1964)). Where, as here, the grand jury does not return

an indictment against the declarant, no Fifth Amend-

ment right is implicated and a hearing is unnecessary.

The courts have encountered no difficulty in applying

Kastigar’s hearing requirements to protect the rights

identified in Garrity. See, e.g., In re Grand Jury

Proceedings. 45 F.3d 343, 348 (9th Cir. 1995); United

States v. Koon, 34 F.3d 1416, 1431 (9th Cir. 1994),

petitions for cert. pending, Nos. 94-1664 (filed Apr. 10,

1995) & 94-8842 (filed Apr. 12, 1995). Petitioners have

identified no conflict in the courts of appeals on this

issue or any case in which protection through a Kastigar

hearing has been found to be inadequate.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted..

DREw S. Days, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

JESSICA DUNSAY SILVER

MARK L. GROSS

Attorneys

APRIL 1995

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