# Opposition Brief — Cozzi v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2618%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1216 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2618%3A2. Public record. Not legal advice.