Opposition Brief — Cozzi v. United States

C ay

“a (Y

No. 10-508

Jn the Supreme Court of the Cnited States

WILLIAM COZZI, PETITIONER

Vv).

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

THOMAS E. PEREZ

Assistant Attcrney General

JESSICA DUNSAY SILVER

THOMAS E. CHANDLER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether petitioner’s Fifth Amendment right against

compelled self-incrimination was violated when the fed-

eral investigation leading to his indictment began after

a third party, who had read petitioner's immunized

statements, asked federal investigators whether they

had initiated an investigation but did not disclose any

thing from the statements.

(1)

TABLE OF CONTENTS

Page

Opinions below ]

Jurisdiction .

statement .......

Argument . 5

Conclusion . - Pe 14

TABLE OF AUTHORITIES

Cases:

Garrity v. New Jersey, 385 U.S. 493 (1967) ... .. 4,6

Kastigar v. United States, 406 U.S. 441 (1972) 1G; 7, 2

United States v. Bolton, 977 F.2d 1196 (7th Cir

(+ RR ea, An ieee es, MR eat ae esa ee

United States v. Byrd, 765 F.2d 1524 (11th Cir.

| RRS RS Rea Aarne a feet ae 8, 10

U/nited States v. First W. State Bank, 491 F.2d 780

(8th Cir.), cert. denied, 419 U.S. 825 (1974) ... . 7,10

United States v. Hubbell, 530 U.S. 27 (2000) ........ 11,12

l/nited States v. Mariani, 851 F.2d 595 (2d Cir. 1988),

cert. denied, 490 U.S. 1011 (1989) .......... 1s Oy au

l/nited States v. McDaniel, 482 F.2d 305 (&th Cir.

(| ea aa err eee: as

U/nited States v. McGuire, 45 F.3d 1177, cert. denied,

515 U.S. 1182 (1995) ...... ccc ee +o 7

United States v. Pantone, 634 I.2d 716 (8d Cir

rar aera eee eke eee eae At

United States v. Schmidgall, 25 F.3d 15238 (11th Cir

ULC eee neh oe saan ewe es me ics ah aU

United States v. Semkiw, 712 F.2d 891 (3d Cir

SE Gas eee eae ea es aykaes neg) 7, 10

Continued

l/nate d State SV Se rraLi.o, si kK’ 2d | \

[inited States v. Velaseo, 953 F.2d

1992)

‘onstitution and

[| S (Con

Amend. V

Amend. XIV

IS U.S.C. 242

18 U.S.C. 6002

VMiscellaneou:

Jack Lewis et al., The Gun Digest boo

Weapons (7th ed. 2007)

In the Supreme Court of the Gnited States

- oo

No. 10-508

WILLIAM COZZ|, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR]

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCU/T

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

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

is reported at 613 F.3d 725. The opinion of the district

court (Pet. App. 33-46) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 30, 2010. The petition for a writ of certiorari was

filed on October 13, 2010. The jurisdiction of this Court

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

STATEMENT

Petitioner entered a conditional guilty plea to one

count of violating 18 U.S.C. 242, deprivation of right:

under color of law. He was sentenced to 40 months of

imprisonment. The court of appeals affirmed. Pet. App

1-2]

l. In August 2005, petitioner, a Chicago police offi

cer, repeatedly struck an arrestee in the head and face

with a “sap” after petitioner had handcuffed the ar

restee to a wheelchair in a hospital emergency room. A

hospital security camera taped the incident, and the ho:

pital contacted the Chicago Police Department’s Office

of Professional Standards (OPS) to report it. Pet. App

1-3, 34-35.

OPS promptly investigated. Within a month, OPS

investigators interviewed the victim and several wit

nesses and obtained a copy of the video and 911 call

related to the incident. Pet. App. 34-35. Subsequently,

on September 14, 20, and 21, 2005, OPS interviewed pe

titioner. Petitioner “was first given administrative

rights, which compelled him to make a statement or lose

his job, but which also guaranteed that his statement

could not be used against him in any future criminal pro

ceedings.” /d. at 38. In October 2005, OPS released a

report recommending that petitioner be terminated. /d

at 3. 3d.

The Cook County State’s Attorney's office also inve:

tigated the incident. In December 2005, petitioner was

charged with aggravated felony battery and official mis

conduct. In May 2007, petitioner pleaded guilty to one

count of misdemeanor battery and was sentenced to 1&8

months of probation. Pet. App. 3, 35.

In April 2006, the Chicago police superintendent

filed charges against petitioner with the Chicago Police

“Although the record does not contain a description of the actual

weapon that | petitioner | used, a sap is generally described as ‘a leather

covered flat or round piece of lead with a spring handle, although it

could contain lead shot rather than a solid piece of metal.’” Pet. App

1 n.l (quoting Jack Lewis et al., The Gun Digest Book of Assault

Weapons 42 (7th ed, 2007)

Board, seeking to have petitioner terminated. In Octo

ber 2007, the Police Board decided to suspend petitioner

for two years rather than terminate him. Pet. App. 3

2. In January 2008, former Federal Bureau of In

vestigation (F BI) agent Jodi Weis, who was scheduled to

become the new Chicago police superintendent on Feb

ruary 1, 2008, was asked by the press about petitioner

Weis responded that he was unhappy with the Chicago

Police Board’s decision and promised to review the case

Pet. App. 4, 36

Subsequently, in January 2008, Weis sent two email

to an agent in the F'BI’s Chicago field office. Weis asked

whether the FBI had investigated petitioner for a civ!

rights violation, noted that the former police superinter

dent had tried to fire petitioner, and stated that pet

tioner had “falsified his statement.” Weis also attached

a video clip of the incident that was recorded by the ho

pital security camera. Pet. App. 4, 36. The emails did

not disclose petitioner's protected tatements or

what part had been “falsified.” /d. at 14

After recelving Weis’s emails, the FBI begar anil

vestigation. The FBI obtained the files compiled by

OPS and the Cook County State’s Attorney’s office. Pet

tioner’s immunized statements, however, were redacted

from the files, so that none of the federal prosecutor

saw or reviewed petitioner’s protected statements. The

immunized statements were also removed from the OPS

files that were turned over to the grand jury. Pet. App

1, 36-37.

3. In April 2008, a federal grand jury indicted pet

tioner on one count of violating 18 U.S.C. 242, depriva

tion of rights under color of law. Petitioner filed a mo

tion to dismiss the indictment, arguing that the goverr

?

ment had improperly used his immunized statements 11

5

Kastigar’s prohibition on the evidentiary and noneviden-

tiary use of compelled statements to preclude “not only

the introduction of compelled testimony into evidence,

but also ‘assistance in focusing the investigation, decid-

ing to initiate prosecution, refusing to plea-bargain, in-

terpreting evidence, planning cross-examination, and

otherwise generally planning trial strategy.’” Pet. App.

7 (quoting United States v. McDaniel, 482 F.2d 305, 311

(8th Cir. 1973)). The court also observed that it has

joined other courts of appeals in concluding that in some

instances the “tangential influence” of compelled state-

ments on a prosecution does not run afoul of the Fifth

Amendment right articulated in Kastigar. Id. at. 7-8.

The court noted, however, that the difference be-

tween these approaches was not at issue in this case be

cause “|wlhen framed properly, it is clear that | peti-

tioner’s} statements could not have had even a tangen

tial influence on the federal prosecutors.” Pet. App. 14.

The court noted that Weis “did not tell his former col-

league at the FBI what [petitioner’s] statements con-

tained”; the “I°BI had to start its investigation into [pe

titioner| from seratch”; Weis’s emails were “devoid of

any details about {petitioner’s] protected statements”;

and the emails “provided federal authorities with no

evidentiary leads or other information that they could

use to focus their investigation.” /bid. For these rea-

sons, “Weis’s tip is at least one step too far removed

from the actual federal investigation and prosecution to

justify overturning [petitioner’s] conviction.” /d. at 16.

ARGUMENT

Petitioner reasserts his claim (Pet. 26-30) that he was

convicted in violation of his Fifth Amendment right

against self-incrimination because the federal investiga-

{)

tion began after a tip from a third party who had read

his immunized statements. The court of appeals cor-

rectly rejected this claim because no one on the prosecu-

tion team read petitioner’s statements or was told of

their content. For the same reason, this ease does not

implicate the circuit conflict petitioner describes be-

‘cause, unlike the nonevidentiary use decisions from

other courts of appeals on which petitioner relies, this

‘ase involves only third-party knowledge of immunized

statements, not knowledge of anyone on the prosecution

team. Further review is not warranted.

1. The Fifth Amendment privilege against com

pelled self-incrimination, applicable to the states

through the Fourteenth Amendment, provides that a

person cannot be compelled to testify if his testimony

would incriminate him. In Garrity v. New Jersey, 385

U.S. 498 (1967), the Court held that this protection

“against coerced statements prohibits use in subsequent

criminal proceedings of statements obtained under

threat of removal from office.” /d. at 500. Subsequent-

ly, in Kastigar v. United States, 406 U.S. 441 (1972), the

Court held that the immunity from the use of compelled

testimony includes both “use” and “derivative use” im-

munity, z.e., it “prohibits the prosecutorial authorities

from using the compelled testimony in any respect, and

it therefore insures that the testimony cannot lead to the

infliction of criminal penalties on the witness.” /d. at

458 (addressing immunity granted under 18 U.S.C. 6002,

which is coextensive with the immunity granted by the

hifth Amendment).

The Court in Kastigar explained, however, that the

immunity afforded compelled statements is not trans

actional immunity and therefore is not a bar to prosecu

tion for the offense to which the compelled statements

7

relate. 406 U.S. at 460-462. Once the defendant has

demonstrated that he has given immunized statements,

the government has the burden of showing that it had a

legitimate source for its evidence, “independent of the

compelled testimony.” /d. at 460.

2. a. The courts of appeals have evaluated nonevi-

dentiary use of immunized statements by prosecutors

and investigators in somewhat different ways. ‘The

Kighth Circuit has suppgested that all such noneviden

tiary use violates the Fifth Amendment, a reading the

Third Circuit has cited with approval. See United States

v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973) (where

the United States Attorney read three volumes of immu

nized state grand jury testimony, government could not

meet its burden of showing that it did not make direct or

indirect use of the testimony; immunized testimony may

have been used in “focusing the investigation, deciding:

to initiate prosecution, refusing to plea-bargain, inter-

preting evidence, planning cross-examination, and oth-

erwise generally planning trial strategy”);' United

States v. First W. State Bank, 491 F°.2d 780 (8th Cir.),

eert. denied, 419 U.S. 825 (1974); United States v.

Semkiw, 712 F.2d 891 (38d Cir. 1983) (following

McDaniel); United States v. Pantone, 684 F.2d 716, 720-

721 (3d Cir. 1980).

By contrast, the court of appeals below has Joined

others in adopting “a more measured approach,” permit-

ting the use of immunized statements that have a mere

* The Kighth Circuit has subsequently explained that “McDaniel is

a case limited to its ‘unusual circumstances,” and “[t]he determination

of a McDaniel violation necessarily turns on the facts of each case and

* * * whether the immunized testimony was used by the prosecutor

exposed to it.” United States v. McGuire, 45 F.3d 1177, 1183 (citation

omitted), cert. denied, 515 U.S. 1182 (1995).

$s

“tangential influence” on the federal investigation and

prosecution, such as the prosecutor’s thought process in

preparing for trial. Pet. App. 7; see United States v.

Schmidgall, 25 F.3d 1523, 1 529 (11th Cir. 1994) (adopt

ace

ing an “‘evidentiary’ interpretation of Kastigar,” focus

ing “on the direct and indirect evidentiary uses of immu

nized testimony, rather [than] on [nonevidentiary | mat

ters such as the exercise of prosecutorial discretion”);

United States v. Bolton, 977 F.2d 1196 (7th Cir. 1992);

United States v. Velasco, 958 F.2d 1467, 1474 (7th Cir.

1992) (“[T]he mere tangential influence that privileged

information may have on the prosecutor’s thought pro-

cess in preparing for trial is not an impermissible ‘use’

of that information.”); United States v. Serrano, 870

F.2d 1, 17 (Ist Cir. 1989) (rejecting notion “that all

nonevidentiary use necessarily violates the ite Amend-

ment”); United States v. Mariani, 851 F.2d 595, 600 (2d

Cir. 1988) (declining to follow McDaniel to the extent it

bars prosecution based on tangential influence that priv-

ileged information may have had on the prosecutor's

thought process), cert. denied, 490 U.S. LOLL (1989);

U/nited States v. Byrd, 765 F.2d 1524, 1580 (Lith Cir.

1985).

b. Although petitioner asserts (Pet. 17-25) that the

Court should grant his petition to resolve that conflict,

it is not presented here. The court of appeals did not

rely on its prior cases holding that “the mere tangential

influence that privileged information may have on the

prosecutor’s thought process in preparing for trial is not

an impermissible ‘use’ of that information.” Pet. App. 7

(quoting Velasco, 953 F.2d at 1474). Instead, the court

concluded that petitioner’s statements “could not lave

had even a tangential influence on the federal prosecu

tors.” /d. at 14. This was so, the court explained, be-

9

cause Weis never told federal investigators or prosecu-

tors “what [| petitioner’s] statements contained,” so those

statements could not have influenced their thought pro

cess. bid.’ “[T]he chain of evidence was cut off be-

tween Weis and federal investigators beeause Weis did

not communicate any of the contents of the statements

in his email.” /d. at 15-16. Moreover, “[{nJone of the fed-

eral prosecutors saw or reviewed [petitioner’s] immu-

nized statements, and his protected statements were

removed from the OPS files that were turned over to the

federal grand jury.” /d. at 4; see zd. at 16-17 (“[Tlhere

isa meaningful difference between Weis telling the FBI

that it ought to consider investigating [petitioner] and

Weis telling the FBI the substance of [petitioner’s] pro-

teeted statements.”).

By contrast, in McDaniel the United States Attorney

admittedly read the defendant’s state grand jury testi-

mony, in which the defendant “fully confessed his mis

deeds,” prior to the indictment. 482 F.2d at 311. There-

fore, that case addressed whether a prosecutor’s expo-

sure to immunized testimony created an “insurmount

able task” for the government in meeting its burden of

proof under Kastigar. /bid. Although the United States

Attorney asserted that he did not use the immunized

testimony in any form, the court could not. “escape the

conclusion that the testimony could not be wholly oblit-

erated from the prosecutor’s mind in his preparation

and trial of the case.” /d. at 3812. Therefore, the court

found that, under the “unusual circumstances” of the

* Weis did say that. petitioner had “falsified” his statements, but. this

characterization of petitioner’s statements “by itself,” without diseclos

ing their contents, is not “enough to impute improver use of the state-

ment to prosecutorial authorities.” Pet. App. 14.

10

case, the government could not meet its burden of estab-

lishing that it did not use the immunized statements to

convict the defendant. Jbid. Other court of appeals de-

cisions cited by petitioner—both those barring the non-

evidentiary use of immunized statements, and those per-

mitting such use in certain circumstances—similarly in

volve federal investigators or prosecutors who were ex

posed, or may have been exposed, to the compelled

statements.”

Petitioner’s novel claim, which involves “use” of an

immunized statement by someone not part of the investi-

gative or prosecution team, stands apart from all of

those discussed by the courts of appeals. Indeed, before

the court of appeals, petitioner failed to bring “to [the

court’s| attention a single case where a non-prosecutor’s

use of a compelled statement, by itself, was held to be a

’ See, e.g., Furst W. State Bank, 491 F.2d at. 787-788 (remanding: for

a determination whether any information used in prosecution derived

from immunized statements); Semkiw, 712 F.2d at. 898 (addressing,

significance of lead government counsel’s access to immunized testi-

mony); Pantone, 684 F.2d at 718 (defendant moved to disqualify United

States Attorney who conducted grand jury proceeding at which de-

fendant testified under grant of immunity); Velasco, 958 I°.2d at 1474

(addressing argument that prosecutor used immunized proffer to shape

trial strategy); Bolton, 977 F.2d at 1199 (indictment not tainted by prior

compelled testimony where new prosecutors handled the case);

Mariani, 851 F.2d at 601 (government established that its evidence

came from legitimate independent sources, and alleged non evidentiary

uses of immunized testimony were not impermissible); Schamidgall, 25

I .3d at. 1527-1528 (federal investigator reviewed notes of defendant’s

immunized interview); Byrd, 765 F.2d at 1526 (transcripts of immunized

testimony piven to lead FBI agent on case and United States Attor-

ney’s Office); Serrano, 870 F.2d at. 13-17 (although BI agent viewed

immunized testimony on television, and transcript was given to prose-

cutor, government established that the indictment was not. based on im

munized testimony or its fruits).

1]

violation of the defendant’s Fifth Amendment privilege.”

Pet. App. 12; see zbid. (likewise noting that “the govern-

ment has not cited any cases where a nonprosecutor’s

use of a compelled statement was held not to be a viola-

tion of the defendant’s Fifth Amendment privilege”).

3. Petitioner also errs in contending that the deci-

sion below is inconsistent with this Court’s decision in

United States v. Hubbell, 530 U.S. 27 (2000). Pet. 11-12.

In Hubbell, the government served a subpoena duces

tecum on the defendant calling for the production of 11

categories of documents. The defendant objected, as

serting his Fifth Amendment privilege, and the govern-

ment granted him immunity “to the extent allowed by

law.” 530 U.S. at 31. The contents of the documents he

produced led to the defendant’s prosecution and convic-

tion. This Court affirmed the dismissal of the indict-

ment, concluding that the government made impermissi-

ble derivative use of the immunized act. of producing the

documents. The Court stated that “it is undeniable that

providing a catalog of existing documents fitting within

[the subpoena request] could provide a proseeutor with

a lead to incriminating evidence, or a link in the chain of

evidence needed to prosecute.” /d. at 42 (internal quo-

tation marks omitted). The Court found that the gov-

ernment could not show that it had prior knowledge “of

either the existence or the whereabouts of the 13,120

pages of documents,” or that the evidence used to obtain

the indictment was derived from sources “wholly inde-

pendent of the testimonial aspect of [the defendant’s |

immunized conduct in assembling and producing the

documents.” /d. at 45 (internal quotation marks omit-

ted).

In Hubbell, therefore, unlike the instant ease, federal

prosecutors obtained and reviewed evidence derived

12

from the testimonial act of production and used that evi

dence to indict. Although the Court noted that the pro-

duction of these documents was “the first step in a chain

of evidence that led to th{e] prosecution,” 5380 U.S. at 42,

the government also made “substantial use” of the in-

criminating documents “in the investigation that led to

the indictment.” /d. at 45 (internal quotation marks and

citation omitted). By contrast, in the instant case the

FBI received a tip that led to an investigation of a highly

publicized incident, and the investigation started “from

scratch.” Pet. App. 14. The federal investigation and

subsequent prosecution made no use—direct or tan-

gential—of the prior Garrity statements.

4. Petitioner also contends that this case raises an

important question of law about the scope of the Fifth

Amendment privilege and the nonevidentiary use of im-

munized statements. Pet. 26-30. Petitioner argues that

because the decision to prosecute “is directly traceable

to Weis'[s] use of [pletitioner’s immunized statements,”

there was “derivative use” of the statements even if the

prosecutors—who had no knowledge of the substance of

the statements—were not influenced by them. Pet. 26-

27. Petitioner further argues that the decision below

effectively permits state officials to use defendants’ im-

munized statements to hand the defendants to federal

officials for prosecution. Pet. 28-29.

Petitioner’s contentions again overlook Weis’s failure

to impart to the FBI the contents of petitioner’s state-

ment, and the fact that federal investigators and prose-

cutors were never made aware of any information con-

tained in or derived from petitioner’s compelled state-

ments. Weis simply asked the FBI if it was going to

investigate an incident of excessive force that was pub-

licly known and subject to media attention. As the court

13

of appeals found, even assuming Weis’s review of the

immunized statements prompted him to email the FBI,

“Weis’s tip is at least one step too far removed from the

actual federal investigation and prosecution” to impli-

‘ate petitioner’s Fifth Amendment rights. Pet. App.

16a. In these circumstances, petitioner’s argument, if

accepted, would come perilously close to granting

transactional immunity for the protected statements, a

result expressly rejected by this Court in Kastigar. 406

U.S. at 453.

5. Finally, this petition makes a poor vehicle for re-

view of the self-inecrimination question it claims to pres-

ent. The record does not include petitioner’s immunized

statements themselves, nor any statement by Weis that

he read them. The court of appeals merely “assume|d]

for purposes of this appeal that Weis read the protected

statements” and “even assume|d] that he was motivated

to email his colleagues at the FBI because of what the

protected statements contained.” Pet. App. 10. The

case thus comes to the Court bereft of factual context

that could provide a meaningful backdrop to the Court’s

consideration of the legal issues.

Moreover, even assuming the statements “moti-

vated” Weis to contact the FBI, Pet. App. 10, there is no

suggestion that Weis suggested any investigatory leads

to the agents, much less leads derived from the state-

ments. Instead, he merely referred them to a case

whose factual contours were already available from the

video and from witness observations that were unques-

tionably distinct from petitioner’s statements. Cf. id. at

41 (“[Petitioner’s] compelled statements could not have

been prosecutors’ sole basis for seeking to indict him,

especially given the abundance of evidence obtained be-

fore [petitioner’s] compelled statements, not the least of

14

which is the security camera recording of the entire inci-

dent.”). The alleged “use” of the statements here as a

mere motivator by a third-party tipster is an atypical

fact pattern that does not merit this Court’s review.

CONCLUSION

‘he petition for a writ of certiorari should be denied.

Respectfuily submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

THOMAS FB. PEREZ

Assistant Attorney General

JESSICA DUNSAY SILVER

THOMAS FF. CHANDLER

Attorneys

JANUARY 2011