Petitioners Reply Brief — Kastigar v. United States

- Supreme Court of the United States

Supreme Court, U.S.

October Term, 1971 FILED

No. 70-117 JAN 9 1972

E, ROBERT SEAVER, CLERK

CHARLES JOSEPH KASTIGAR and MICHAEL GOREAN

STEWART,

Petitioners,

vS.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United State: Court of Appeals

for the Ninth Circuit.

REPLY BRIEF FOR PETITIONERS.

HOGH R. MANES,

6331 Hollywood Boulevard,

Suite 1112,

Hollywood, Calif. 90028,

Attorney for Petitioner Kastigar.

MARGOLIS, McTERNAN, SMITH,

SCOPE & HERRING,

3325 Wilshire Boulevard,

Suite 901,

Los Angeles, Calif. 90010,

Attorneys for Petitioner Stewart.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

——— aaa ema arama mena eR

SUBJECT INDEX

Page

L

The Policy of the Fifth Amendment Forbids Use-

acne cae, SE ERO ETA a SOL OTE 1

Il.

Counselman’s Injunction Against Use-Immunity Is

Not Dictum; and in Fact Has Become a Part of

Our Constitutional Fabric 222.2 4

Il.

Neither Murphy vs. Waterfront Commission, or Any

Decision of This Court Since, Has Authorized or

Approved Use-Immunity as Constitutionally Per-

IE Faced det nwimctcmoci 8

IV.

The Statute at Bar Was Enacted Without Benefit of

Accurate Analysis of This Court’s Opinions Rela-

tive to the Scope of the Fifth Amendment; and in

Any Event, Congress May Not Repeal a Consti-

ee IN ec 12

V.

Judicial Supervision of. 18 U.S.C. Civil Section 6002 —

Is Impeded by the Provisions of Section 6003, .

and Moreover, Would Not Supply the Constitu-

tional Deficiencies Inherent in Use-Immunity .... 14

eee 25

TABLE OF AUTHORITIES CITED

Cases Page

Adams v. Maryland, 347 U.S. 179 ..0...-..c..c0:ce+-05--.

Sich casi ateataee ical ainlgiladap seid snaigeaaehacits 7, 3, 2% 21

Albertson. v. Sabveraive Activities Control Board,

SET Ae So ae 8, 10, 11, 13, 20

Blau v. United States, 340 U.S. 332 .....000. eee. 2

Blue v. United States, 384 U.S. 252 .......-.-.2--s0--eccon 13

Boyd v. United States, 116 U.S. 616 -....0002. 2... 20

Brown v. Walker, 161 U.S. 591. .....-.:cc-cssscccesssseeeee

siilaedace ohpuianbeaieeniwncomsainas centanivaly 34 Oe Uy Ata Bt

Cafritz v. Koslow, 167 F.2d 749 2000... eeecseereoeee 2

Communist Party v. Subversive Activities Control

ane Eig ET SABES, CATES. 17

Counselman v. Hitchcock, 142 U.S. 585 ................

NE PSE AB REY s, 3, & i, , 9, 10, 11, 12,13, 23

Ellis v. United States, 416 F.2d 791 .......0000020....... 18

Emery’s Case, 107 Mass. 172 ...........-..-c-cesecsseeoe- 5

Feldman v. United States, 322 U.S. 487 .......... 1,508

Flynn v. United States, 130 F. Supp. 412 ................ 17

Gardner v. Broderick, 392 U.S. 273 .................. 10, 13

Garrity v. New Jersey, 385 U.S. 493 ............ lik 2

Groshart v. United States, 392 F.2d 172 ................ 23

BO, PI re, BI SS creer rtcipeererremrenin 6

Heike v. United States, 227 U.S. 131 .................... 6

Hoffman v. United States, 341 U.S. 479 .................. 22

Jack ¥. Kame, 199 U8.372 ~..................... 9, 21

Jencks v. United States, 353 U.S. 657 .................... 21

Katz v. United States, 389 U.S. 347 ....00000.... 2

Page

Kinoy Joanne In Re Grand Jury Testimony, 326

TE. iipientinisidieianindenaeinewucss jethibaaviies 11

Kuapp v. Schweitzer, 357 U.S. 371 o0...eceeeeeeceeeeee 9, 18

Korman, Jack, et al., Matter of, 449 F.2d 32 ......

Si dik eases cancbaneiaboticeviesscb demarlnesence cs Tackocetcnissecheavacely WE

Lawn v. United States, 355 U.S. 399 0.0... 23, 24

ee Se Os BE I Ease acct cs 22

em J CHO, SGT UG, GAS ncn ccpcepeecnesece 2

Mesarosh v. United States, 352 U.S. 1 .................... 17

McAuliffe v. Mayor cof New Redterd, 155 Mass.

EE OE Sl ET NA BO EONS OE 1

McCarthy v. Arndstein, 266 U.S. 34 =....,............. 6527

Murphy v. Waterfront Commission, etc., 378 USS.

- Sean ee eRe EEE Se OT 8, 9,-11,: 12, 16, 22

Neff, In Re, 206 F.2d 149 oo... ececcescsscnsneensesees 18

Olmstead v. United States, 227 USS. 438 igliledisiiies 24

People v. Ditson, 57 Cal.2d 415, 20 Cal. Rptr. 165 . ~ 3

People vy. Kelly, 24 N.Y. 74 .0......-ccsceceoese iencevonted me 2

Piccirillo v. New York, 400 U.S. 549 ............ 9, 11,19

Reina v. United States, 364 U.S. 507 ..........7, 8, 20

Rogers v. Richmond, 365 U.S. 534 .................. 2, 24

Shapiro v. United States, 335 U.S..1 ..2.igeece 1

Smith v. United States, 337 U.S. 137 .................. 20

Speisser v. Randall, 357 U.S. 513 ................:... Sa er

Spevaok v. Klein; 385 U.S. 511 o.oo. ececccccecceecco. 11, 13

Stevens v. Marks, 383 U.S. 234 .............. 13

Ullman v. United States, 350 U.S. 422 dy 15 Sp ty 48

United States v. Coffey, 198 F.2d 438 .........>.- 22

United States v. Murdock, 284 U.S. 141 .......= 9

ein ste t a

Si ae ae 5 ole ak Melia hi

ae moll faye oy oa Pir. > “

Page

United‘States ex rel. Catena v. Elias. 449 F.2d 40 ....

atenuepenceecensensnasneancnnsnenecbesseneensnaneneenseecescupecesestantt 11, 19

Wayne v. United States, 318° F.2d 205 —..0000.. 3

Miscellaneous

Los Angeles Times, Dec. 15, 1971, Part I, p. 5,

Te cence esac cate eden sissies 15

RE, SIMI: stb sicciesac echcdataicase anegh cagleontabsebeseikdanonnysentenavihassnnns 15

Report of the Committee on the Judiciary, U.S.

Senate, 91st Cong., 1st Sess., S. Report No. 91-

OE Fy EE <BR, TI Bi BB ances nicsisinversncnincconnane 12, 13

Report of the Committee on the Judiciary, House

of Representatives, 91st Cong., 2nd Sess., 1.R.

Report No. 91-1188, June 15, 1970, p. 11 ........ 13

Statutes

Organized Crime Control Act, Sec. 227(a) .......... 14

Public Law 90-351, Title III, Sec. 802, June 19,

SE <icicininsshiaiiniiiaanitecninn aresaleistasasanenimaninianeiestt 14

Public Law 91-452; Title I, Sec. 102, Oct. 15,

RE idiitinse ERs Lich neenadinn naaaccnpenntesclomtin 19

Public Law 91-452, See. 2GQ ...0s...cssescecsseseesisscesss 14

82 Statutes at Large, pp. 216-217 ....... be caeittustcant® 14

OS Dinmaites at Lares, p. G26 «....2.c...--.0ccccccsccisccess. 19

84 Statutes at Large, p. 930 ...........cceceeseeeeeeeeee ee |

Oe I ET OIG ceisiiiiticiicdstiic s

United States Code, Title 18, Sec. 2514 .......0.2....... 14

United States Code, Title 18, Sec. 2516 ................ 14

United States Code, Title 18, Secs. 2516-2517 ...... 14

' United States Code, Title 18, Sec. 3500(e) (3) -cl9, oe

a

United States Code, Title 18, Sec. 6002 .......0.......... 14

United States Code, Title 18,*Sec. 6003 ............ 14, 17

United States Code, Title 18, Sec. 6003(b) ............ 17

United States Constitution Fourth Amendment ....2, 24

United States Constitution, Fifth Amendment ...... 1.

2, 3, 5, 6, 7, 8, 9, 12, 14, 16, 18, 21, 22, 24, 25

a

Supreme Court of the United States

October Term, 1971

No. 70-117

CHARLES JOSEPH KASTIGAR and MICHAEL GOREAN

STEWART,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit.

REPLY BRIEF FOR PETITIONERS.

I

The Policy of the Fifth Amendment Forbids

Use-Immunity.

The Government seeks to justify use-immunity on

the theory that “the public has the right to every man’s

evidence” (Gov't Br. pp. 7, 11, 13).

This is one of those pithy over-statements that excites

the viscera, rather than reason.’ There is a good deal

of evidence that the public is not entitled to hear—

‘Cf. Garrity v. New Jersey, 385 U.S. 493, at p. 499 (1967)

where a majority of this Court rejected the Holmesian dictum

that “the petitioner may have a constitutional right to talk pol-

itics, but he has no constitutional right to be a policeman.” Mc-

Auliffe v. Mayor of New Bedford, 155 Mass..216, 220.

A

FU eee

owe

even though true—because forbidden by the Constitu-

tion, public policy, statute or judicial rule.’

Most particularly, the public has no right to self-

incriminating evidence extorted from a witness, for

the Fifth Amendment expressly states that: “No person

. . . Shall be compelled . . . to be a witness against

himself . . .”. It follows that a witness is under “no

duty to disclose” information or “aid in the enforce-

ment of the iaw” against himself (Gov't. Br. p. 13).

The Government’s Brief concedes (pp. 13, 20) that

immunity is not co-extensive with the Fifth Amendment

Privilege where testimony compelled thereunder may

aid Government directly or indirectly. (Brown y,

_. Walker, 161 U.S. 591, 597 (1896)). This is be

/ cause the right to remain silent, guaranteed by the

Fifth Amendment, assures a witness that his testimony

will not aid Government in securing a conviction

against him. Transactional immunity serves substantial-

ly the same end, for as long as a witness is immunized

from prosecution for any offense which is the subject

of his testimony, he is receiving essentially the same

protection afforded him by the Privilege.

Use-immunity, however, can offer no such protection.

On the contrary, whenever a person is compelled to im-

2See: Mupp v. Ohio, 367 U.S. €43 (1961) holding that the

Fourth Amendment requires exclusion of illegally seized evi-

dence; Katz v. United States, 389 U.S. 347, 359 (1967) Exclu-

sion of illegal eavesdropping evidence held required by Fourth

Amendment; Rogers v. Richmond, 365 U.S. 534, 543-544 (1961)

requiring suppression of a coerced confession irrespective of its

probable truth or falsity; Blau v. United States, 340 U.S. 332

(1951), communication between husband and wife deemed priv-

ileged; Cafritz v. Koslow, 167 F.2d 749, 751 (C.A.D.C., 1948)

“|. . the [client-attorney} privilege is an exception to the general

liability of every person to give testimony upon all facts inquired

of in a court of justice.” (Emphasis supplied).

snciliisin

plicate himself in a crime for which he remains

prosecutable, he is furnishing evidence which can aid

Government in obtaining his conviction, whether or

not such evidence, or its fruits, are actually used at

trial. For example, the prosecution can cross-examine

a witness at trial based on information gained from

him in the Grand Jury room. Critical information ob-

tained from a use-immunized witness may furnish leads

to witnesses or to evidence whose source is impossible

to prove, or though proven, is deemed admissible on

the theory that it would have been obtained eventual-

ly by independent means (See: People v. Ditson, 57

Cal.2d 415, 20 Cal.Rptr. 165 (1962) (cert. denied);

cf.: Wayne v. United States, 318 F.2d 205, 209

(C.A. 4th, 1963)). Or, tainted evidence may be im-

parted by investigators to a key witness in such a way

as to emerge at trial as independently acquired.

The policy of the Privilege is not limited to exclusion

of tainted evidence from trial, but bars any use of it

which foreseeably would benefit the prosecution,

though beyond the reach of a motion to suppress

(See: Brown v. Walker, 161 U.S. 591, at pp. 595, 597

(1896) ).™

As the Government’s Brief concedes (p. 14), the

witness must be placed “in the same position with

respect to a criminal prosecution after his testimony, as

he was before”. It is evident that under the use-

immunity statute at bar, he cannot be. Therefore, the

statute offends the Fifth Amendment because its pro-

tection is inadequate.

za“. . If an accused person be asked to explain his ap-

parent connection with a crime under investigation, the ease with

which the question is put to him may assume an inquisitorial

(This footnote is continued on next page)

woe hd

Il.

-Counselman’s Injunction Against Use-Immunity Is Not

Dictum; and in Fact Has Become a Part of Our

\ Constitutional Fabric.

‘ In Counselman v. Hiichcock, 142 U.S. at p. 585. -

| 586, this Court unanimously held that—

x “No statute which leaves the party or witness

subject to prosecution after he «answers the in-

criminating question put to him can have the ef-

fect of supplanting the Privilege conferred by the

Constitution of the United States. [Use-] im-

munity does not supply a complete protection

from . all the perils against which the Constitution-

al prohibition was designed to guard, and is not a

| full substitute for that provision. In view of the

Constitutional provision, a statutory enactment to

be valid must afford absolute immunity against

future prosecution for the offense to which it re-

lates.” (Emphasis supplied).

ictum which furnishes only “illusory support” for the

ile it announces, and need not be followed by this

Court (Gov't. Br. p. 14).

Hom the Seventh Circuit observes in Matter of Jack

fet Government argues that this language is mere

r

orman, et al., 449 F.2d 32, at p. 37:

“It is illogical, in light of the decision cited,

to argue that the [Supreme] Court has never

‘held’ that transactional immunity is the minimal

requirement and that the assertions to that effect

are mere dicta.”

chpracter, the temptation to press the witness unduly, to brow-

bekt him if he be timid or reluctant, to push him into a corner,

ani to entrap him into fatal contradictions, which is so painfully

evident in many of the early state trials . . . made the system so

ous as to give rise to a demand for its total abolition.”

—5—

The fact is that the centrui issue presented, argued

and decided in Counselman was whether use-immunity

as such satisfied the demands of the Fifth Amendment.

The Government contended in Counselman (142 U.S.

at p. 557), as it does here, that the Fifth Amendment

guarantees only that a witness’s testimony would not

be used against him. In support of its position, the

Government cited People v. Kelly, 24 N.Y. 74, and like

cases, upholding State use-immunity statutes which, un-

' like that in Counselman, prohibited even derivative use.

The Goverriment sought to distinguish Emery’s Case,

107 Mass. 172, and others which held use-immunity

inadequate under State Constitutions which the Gov-

ernment contended contained different phraseology

than the Fifth Amendment. :

After a careful analysis of People v. Kelly, and the

line of cases following thai rationale, this Court unan-

imously rejected the view that the Fifth Amendment

protected only against the use of compelled testimony,

stating:

“In view of the Constitutional provision, a statu-

tory enactment, to be valid, must afford absolute

immunity against future prosecution for the of-

fense to which it relates. In this respect, we give

our assent rather to the doctrine of Emery’s Case,

in Massachusetts, than to that of People v. Kelly,

in New York; and we consider the ruling of this

Court in Boyd v. United States, supra, supports

the view we take.” (142 U.S. at p. 586).

As Mr. Justice Frankfurter was later to summarize

for a majority of the Court in Ullman v. United States,

350 U.S. 422, at pp. 436-437:

“Four years previously, in Counselman v. Hitch-

cock, 142 U.S. 547, a unanimous court had

a

found constitutionally inadequate the predecessor

to the 1893 statute because the immunity granted

was incomplete in that it merely forbade the use

of the ‘testimony given and failed to protect a wit.

ness from further prosecution based on knowledge

and sources of information obtained from the

compelled testimony.”

While only transactional immunity was presented in

Brown v. Walker, 161 U.S. 591, the majority opinion

in no way departed from the view expressed in Coun-

selman that the Fifth Amendment required absolute

immunity from prosecution. Indeed, the Brown major-

ity, rejecting the contention of the four dissenting jus-

tices that no immunity could constitutionally displace

the Privilege, chose to read that provision as satisfied

by— |

“secur[ing] the witness against a criminal prose-

cution, which might be aided directly or indirectly

by his disclosure.” (161 U.S. at p. 595).

Thus, thought the Brown majority, if a statute per-

mitted a witness’s testimony to—

“ . Operate as a complete pardon for the

offense to which it relates—a statute absolutely

securing to him such immunity from prosecution

would satisfy the demands of the clause in ques-

tion.” (161 U.S. at p. 595) (Emphasis supplied).

The Counselman doctrine that nothing less than im-

munity from prosecution could effectively supplant the

Fifth Amendment Privilege became thereafter and has

remained a viable principle of constitutional law.’ So

8Hale v. Henkel, 201 U.S. 43, 67 (1906); Heike v. United

States, 227 U.S. 131, 142 (1913); McCarthy v. Arndstein, 266

—, a

_ much so, that Mr. Justice Frankfurter was prompted

to observe that the transactional immunity conferred

by— rf

“the 1893 statute has become part of our constitu-

tional fabric . * (Ullman v. United States,

supra, 350 US. at p. 438).

The Government Brief contends (p. 21) that Jus-

tice Frankfurter did not mean what he said because

“shortly after that language he intimated that an im-

munity statute would be valid if it gave ‘complete am-

nesty’ or prohibited the use of ‘compelled testimony’ ”.

This assertion is palpably incorrect ‘as the context re-

veals. Justice Frankfurter was simply noting the exist-

ence of such immunity statutes at a time when the

Fifth Amendment had not yet been deemed applicable

to the States.*

In no way did Justice Frankfurter express or imply

that use-immunity was co-extensive with the Fifth. On

the contrary, in his dissent in United States v. Monia,

317 US. at-p. 438, he noted that—

“For more than seventeen years thereafter it

was unquestioned that Congress had given no

more than the Constitution required—freedom

from prosecution for evidence that could not other-

wise be obtained .. .”.

In any event, the Government’s insistence that

Counselman’s prohibition against use-immunity is mere

U.S. 34, 42 (1924); United States v. Monia, 317 U.S. 424; 428

(1943); Reina v. United States, 364 U.S. 507, 514 (1960)

(holding that testimony compelled under a Federal transaction

immunity statute safeguarded the witness from either Federal or

State prosecution. See also: Adams v. Maryland, 347 U.S. 179,

182 (1954).

‘See: Feldman v. United States, 322 U.S. 487 (1944).

CLES A SRS RIAL ROLE IIE RISA EE I. READE

_—

dicta cannot stand exposure to Albertson v. Subversive

Activities Control Board, 382 U.S. 70, which the Goy-

ernment’s Brief (p. 25) inexplicably brushes aside as

inapposite.

In Albertson, the Court, noting the afore-quoted

language of Counselman (142 U.S. at pp. 585-586),

unanimously® found that when “measured by these

standards”, the use-immunity granted by the statute at

bar was “not complete”. (382 U.S. at p. 80) (empha-

sis added ).°

The significance of Albertson is not only that it re-

affirmed Counselman in the context of a use-immunity

statute, but that it did so one year after this Court's

decision in Murphy v. Waterfront Commission, etc.,

378 U.S. 52 (1964), which the Government—and Con-

gress—assume reversed Counselman sub silencio.

That view is not justified in light of Albertson; nor,

as we shal! now see, is it warranted by Murphy, either.

I.

Neither Murphy vs. Waterfront Commission, nor Any

Decision of This Court Since, Has Authorized or

Approved Use-Immunity as Constitutionally Per-

missible.

The Government’s analysis of decisions of this court

lead it to conclude that Murphy and_ post-Murphy

opinions have viewed the Fifth Amendment Privilege

as barring only the use of incriminating testimony

5Mr. Justice White did not participate; but Mr. Justice Stew-

art, who concurred with Mr. Justice White’s Opinion in Murphy,

did.

®See also: Reina v. United States, 364 U.S. 507, holding a

transactional immunity statute barred prosecution in either a

State or Federal court, based on testimony given thereunder.

oe

(Govt Br. pp. 24-26). Support for this contention

leans heavily, if not exclusively, upon the concurring

opinion of Mr. Justice White, whose iearned views on

the subject were carefully avoided by the majority,’

and therefore cannot be read as an extension of the

prevailing opinion of that court.

For one thing, the statute before the court in

Murphy conferred transactional, not use, immunity.

Therefore, it was unnecessary for the Murphy court

to consider whether use-immunity was co-extensive with

the Fifth Amendment Privilege, and it did not attempt

to do so.

More importantly, the Murphy majority, far from

undermining Counselman, expanded the scope of the

Privilege by extending its reach to the States. This it

did by overturning a doctrine which, since Brown v.

Walker, 161 U.S. at p. 606, had been deposited on the

misconception that English case law held that immunity

granted by one jurisdiction was not binding upon

another.* But the court, acutely sensitive to the

delicacy of Federal-State relations, steered the new

rule along a constitutional course which permitted each

jurisdiction to utilize immunity as it deemed appro-

7It must surely come as a surprise to Messrs. Justices Douglas

and Brennan that the majority opinion in which they joined in

Murphy is now to be construed as upholding use-immunity, in

view of Mr. Justice Douglas’ dissent with the late Justice Black,

in Ullman v. United States, supra, 350 U.S. at pp. 507 ef seq.,

and with the dissent of both Justices in Piccirillo v. New York,

400 U.S. at pp. 549, 552; and in further light of Albertson,

supra, which was written, of course, by Mr. Justice Brennan and

joined in by Mr. Justice Douglas.

8Jack v. Kansas, 199 U.S. 372 (1905); United States vy.

Murdock, 284 U.S. 141, 149 (1961). Cf. Feldman v. United

States, supra, 322 U.S. 487 and Knapp v. Schweitzer, 357 U.S.

371 (1958), which reached the same conclusion via a different

theory.

TELE AIL LS AED SG MTOR

Vieni a Pgs

LOLS ETE SEL EASE TOE IN ORNS RINSE FI SIM BO HNO EY BAIN SY ENG IN Png

-

nes. ie

priate to the enforcement of its laws, while avoiding

a rationale which would -¢.low so-called “immunity

baths” to be conferred by the first jurisdiction to grant

a witness immunity. For the latter alternative would

surely have been the consequence of a ruling which

permitted transactional immunity conferred by one ju-

risdiction to bar prosecution for the subject offense in

the other.

It was with these pragmatic considerations in mind

that Mr. Justice Goldberg, writing for the majority,

held—

“ce

. the constitutional rule to be that a State

witness may not be compelled to give testimony

witch may be incriminating under Federal law,

unless the compelled testimony and its fruits

cannot be used in any manner by Federal officials

in connection with a criminal prosec:1tion against

him.” (378 USS. at p. 79).

If the majority had believed that use-immunity, as

such, could constitutionally “accommodate the interests

of the State and Federal Governmenits in investigating

and prosecuting crime”, they would surely have said

so. That they did not suggest that the majority adhered

to the holding of Counselman, a view which is con-

sistent with, and expository of Albertson, decided a

year later.

The Government likewise sees implicit approval of

use-immunity in Gardner v. Broderick, 392 U.S. 273,

276 (Govt Br., p. 26). But it is apparent from the

opinion that the language -cited in the Government's

|

Brief is simply descriptive of the ho'dings in Counsel-

man and Murphy, and in no way is intended to en-

dorse use-immunity. Indeed, the citation of Covunsel-

man by the court was to that passage which held use-

immunity constitutionally inadequate.

In Spevack v. Klein, 385 U.S. 5i1, 519-520, Mr.

Justice Fortas concurred with the majvurity that, as in

Garrity v. New Jersey, supra, 385 U.S. 493, testimony

of a public employee or State licensee compelled under

threat of disciplinary sanctions cannot be used in a

subsequent criminal proceeding. His opinion is concerned

essentially with the soundness and applicability of

the public records doctrine first enunciated. in Shapiro

v. United States, 335 U.S. 1, (1948). Nowhere does his

concurring opinion mention, let alone endorse, use-im-

munity. In this respect, it is not insignificant that Mr.

Justice White joined with the majority in both Spevack

and Garrity.

Equally inapplicable are the other authorities cited

by the Government’s Brief (p. 26) as allegedly demon-

strative of judicial approval of use-immunity. Accord-

ingly, the holdings of Counselman and Albertson de-

claring use-immunity constitutionaily insufficient re-

mains as viable | tecedent (See: In the Matter of Jack

Korman, et al., etc., supra, 449 F.2d 32 (Cert. pend-

ing); United States ex rel. Gatena v. Elias, 449 F.2d

40 (C.A. 3 (1971); In Re Grand Jury Testimony of

Joanne Kinoy, 326 F.Supp. 407 (D.C.S.D.N.Y.,

1971); See also: Piccirillo v. New York, 400 U.S. 548.

(1971) (Dissenting Opinion) ).

GREE FIORE BE

LONI RORY SB ED CRE. NY, AON EN ETD

_

_— |

IV.

The Statute at Bar Was Enacted Without Benefit of

Accurate Analysis of This Court’s Opinions Rela-

tive to the Scope of the Fifth Amendment; and in

Any Event, Congress May Not —— a Consti-

tutional Provision.

The Government’s Brief, pp. 26-27, suggest that Con-

gressional enactment embodied in the statute at bar is

entitled to “great weight”. So it is, where Congress is

constitutionally empowered to act.

The Conggess is without power to amend the Con-

stitution by statute, no matter how laudable its objec-

tive or reflective its judgment (Counselman v. Hitch-

cock, supra, 142 U.S. at p. 565).

“Nothing new can be put into the Constitu-

tion except through amendatory processes. Nothing

old can be taken out without-the same processes.”

Ullman v. United States, supra, 350 U.S. ak p. 428.

The United States contends that the statute at bar is

bottomed on Congressional judgment that transactional

immunity “was no longer—if it had ever been—a con-

stitutional requirement” (Gov't. Br. p. 26); that it re-

flects a “Congressional judgment that complete transac-

tional immunity exceeds the requirements of the Fifth

Amendment” (Gov't. Br. p. 31).

Regrettably, Congressional judgment seems tc rest

upon substantially the same analysis of Murphy as that

advanced by the Government in its Reply Brief. The

Reports of the Judiciary Committees of the House and

Senate,” which appear to be similar, if not identical,

assert—

*Compare: Report of the Committee on the Judiciary, U.S.

Senate, 91st Cong., ist Sess., S. Report No. 91-617, Dec. 18,

—_

“The Court found [in Murphy] that the Con-

stitutional Privilege was adequately displaced if

the witness was protected against direct or deriva-

tive use of his compelled testimony. Contrary to the

Counselman decision, the court seemed to think

that this was possible through the use of the ‘fruit

of the poisonous tree’ process of derivative sup-

pression...

“If the underlying premise of Counselman that

there is no way to protect the witness from the

derivative use of his compelled testimony has been

rejected, it seems that granting immunity from

_ prosecution rather than use of testimony is no

longer constitutionally compelled on any level,

State or Federal. It is not necessary to give trans-

action immunity against State prosecution to give a

valid grant of Federal immunity.”’° (Emphasis

added. )

It is apparent from petitioner’s discussion of Murphy

that the Committees’ Reports misapprehend that De-

cision, an impression which gains momentum from the

fact that neither Committee Report mentions Albertson

at all, nor Adams v. Maryland, 347 U.S. 179, 182

(1954), holding the Congressional use-immunity stat-

ute there in question “does not provide ‘complete’ im-

999

munity ‘as required by Counselman’ ”.

1969, at p. 53, and Report of the Committee on the Judiciary,

House of Representatives, 91st Cong., 2nd Sess., H.R. Report No.

91-1188, June 15, 1970, at p. 11.

The Reports (i.d.) cite for support of this thesis: Garrity v.

New Jersey, supra, 385 U.S. 493; Spevack v. New York, supra,

385 U.S. 511, Gardner v. Broderick, supra, 392 U.S. 273; Stev-

ens v. Marks, 383 U.S. 234 (1966), in which this Court expressly

declined to consider whether use-immunity afforded the absolute

protection required by Counselman and Albertson (383 US. at

pp. 244-245); and Blue v. United States, 384 U.S. 252 (1966),

in which a unanimous court again expressly failed to pass on the

constitutionality of use-immunity.

=) a

In enacting the statute at bar, Congress thus ap

pears to have been denied a complete and accurate

appraisal by its judiciary committees of prevailing Fifth

Amendment standards goverring use-immunity. The

value of Congressional judgment, therefore, is substan-

tially weakened by its dependence upon an incorrect

analysis by the statute’s authors.”

V.

Judicial Supervision of 18 U.S.C. Civil Section 6002 Is

Impeded by the Provisions of Section 6003, and

Moreover, Would Not Supply the Constitutional

Deficiencies Inherent in Use-Immunity.

~ The Government defends §6002 by arguing that, for

practical reasons, there will be no prosecutions of use-

immunized witnesses “in the great majority” of cases,

citing as evidence the self-serving testimony and guide

lines of Justice Departinent officials (Gov't. Br. pp. .

32, 34). |

The promise of non-abuse of extraordinary power is

of little comfort to its victims, nor a deterrent to a des-

pot. Already we are told that similar assurances given

in support of the wire-tap statute enacted in 1968”

11Significaniy, Congress, perhaps skeptical of its Committees’

analysis, hedged on complete acceptance of use-immunity, for

Section 227(a) of the Organized Crime Control Act, P.L. 91-452,

Section 260; 84 Stat. 930, 931, Oct. 15, 1970, postponed the re-

peal of transactional immunity conferred by 18 U.S.C. §2514

until 1974. Consequently, transactional immunity “before any

Grand Jury or court of the United States” remains available for

numerous offenses described by 18 U.S.C. §2514 and by refer-

ence, §2516, including espionage, sabotage, murder, kidnap-

ping, bribery, racketeering, extortion and other serious crimes.

12Pyb. L. 90-351, title III, §802. June 19, 1968, 82 Stat. 216-

217, 18 U.S.C. §§2516-2517.

a

have been transgressed by misuse and lawless evasion."

How many immunized witnesses will remain exposed

to prosecution under the Government’s “savings clause”

is entrusted to the exclusive discretion of future At-

torneys-General, and their subordinates, whose devia-

tions from this commitment will be made, if at all,

long after the promise is forgotten.

But, even if it is true that the Government intends

to prosecute such witnesses in relatively few cases,

surely the accommodation of so rare and ignoble an

exception afforis no compelling justification for this

Court to overturn 80 years of judicial precedent, and

now hold that a witness may be prosecuted for an of-

fense after he has been forced, on pain of imprison-

ment, to incriminate himself with respect thereto.

The purpose of use-immunity, it is argued (Gov't.

Br. p. 31) is to prevent “immunity baths” resulting

from mistake or corruption. “Immunity baths” occur,

however, not because of the Privilege, but out of legis-

See: Los Angeles Times, December 19, 1971, Section B, p.

2, Cols. 1-4, quoting the Chairman of the Senate Sub-Committee

on Administrative Practice and Procedure as informing his Com-

mittee that: “The number of Federal wire-tapping and bugging

devices installed without court authorizatiun is substantially

greater than the Executive Branch has led the public to believe.”

On the basis of official information, the Chairman is said to have

concluded that “warrantless national security taps were left run-

ning much longer than court authorized devices in criminal

cases”; and that “ ‘warrantless devices [in 1969 and 1970] ac-

counted for an average of 78 to 209 days of listening per device,

as compared with a 13-day per device average’ for court ordered

taps.”

See also: Los Angeles Times, December 15, 1971, Part I,

p. 5, Cols. 1-4, quoting extensively from a recent Report of the

American Civil Libertics Union on the pervasiveness of wire-tap

and electronic surveillance, and alleged official concealment there-

of through publication of purportedly misleading data.

—_16—

ive efforts to repeal it. Immunity is not just per-

itted by the statute; it is imposed. Therefore, the de-

cts of immunity should be cured by reforming im-

munity, not by destroying or undermining the Priv-

ilege.

One form of “immunity bath” would be obviated by

repeal of statutes granting immunity automatically and

requiring the Privilege to be claimed as a condition for

repeiving immunity (See: United States v. Moniz, 317

UIS. 424 (1943)). This would permit the conferring

jufisdiction to decide whether, in balance, the informa-

tign sought justified a grant of immunity in lieu of prose-

cuttion.

n, the other hand, immunity baths, so-called, are

obviated by Murphy, even though transactional im-

munity is retained as the standard. It is therefore ap-

parent that “immunity baths” can be avoided by logi-

cal application of existing principles, as was done in

Murphy, without displacing the Fifth Amendment Priv-

ilege itself. |

‘A practical reason for refraining from prosecution

of] a witness asserted by the Government’s Brief (p.

34), is to assure “the continued and unimpeded flow

of |nformation concerning criminal activities.”

But this objective is not diminished by prosecution,

for] the immunized witness has no alternative; he faces

jai] for criminal contempt if he refuses to provide in-

*tEarlier, the Government described the statute as an effort to

ensire the flow of information “without granting a reward to those

wh@ would use the Fifth Amendment as a sword rather than a

shi¢ld” (Gov’t. Br. p. 9). On the other hand, the Act tears away

the|shield by compelling disclosure, thereby furnishing the Pros-

ecutor with irformation which he may use as a sword against the

witness at the latter’s trial.

ae, (, Same

formation, and he risks prosecution and imprisonment

if he does. |

What the fear of prosecution does insure, however,

as Petitioners noted in their Opening Brief, p. 32, is

that the witness is more likely to say what he thinks

the Government wants to hear, for fear that anything

less may siibject him to prosecution. Such has been the

American experience under less compelling stress.

(See: Communist Party v. Subversive Activities Control

Board, 351 U.S. 115 (1956); Mesarosh v. United

States, 352 U.S. 1 (1956); Flynn v. United States,

130 F.Supp. 412 (S.D.N.Y., 1955) ).

The truth is that the Government’s professed policy

of prosecuting use-immunized witnesses only in excep-

tional cases is illusory, not only because the mere

threat of prosecution, coupled with the alternative

threat of jail for non-cooperation, serves whatever ends

the Attorney General or his subordinates deem approp-

riate; but also because in the so-called exceptional case,

18 U.S.C. §6003 deprives the District Court of the

power to surveill those ends, or indeed, the inquisitorial

methods employed in the Grand Jury room to achieve

them.”°

The Government’s Brief states, p. 34, that there are

“some circumstances” in which prosecution of a use-

*

“Under §6003(b), Title 18 U.S.C., an immunity Order

may be sought by the United States Attorney, subject to the ap-

proval of the Attorney General or his subordinates; but, as

noted in Petitioners’ Brief, p. 35, the District Court is required to

issue the Order upon the mere representation that 1) the witness’

testimony is necessary to the putlic interest and 2) such in-

dividual has refused to testify or is likely to (see: App’x. pp.

54-61, 38-42). The legislative history of this provision, as dis-

closed by the Report of the House Judiciary Committee (see:

Petitioners’ Opening Brief, p. 36) evidences a congressional intent

to vest exclusive control over the administration and exercise of

use-immunity in the Justice Department.

7 a

—18—

immunized witness is justified. One example offered js

a witness who testifies before the Grand Jury and in-

vokes his Privilege at trial. But this is simply a waiver

problem which is soluble by judicial determination ir-

respective of immunity, It is obvious from a reading of

In Re Neff, 206 F.2d 149 (C.A. 3, 1953) and Ellis y,

United States, 416 F.2d 791 (C.A. D.C., 1969) that

transactional immunity had nothing whatever to do

with the dichotomous results reached by those cases,

The statute at bar seems rooted in the notion that

the guilty—or at least those who under the compulsion

of use-immunity reveal their complicity in serious

crimes—should not go free. Such, at least, is the type

of exceptional case which the Government’s Brief

would reserve for prosecution (pp. 35, 36).

Yet, it appears inconsonant with logic or ordered

liberty that the availability of so “deeply valuable” a

right as the Fifth Amendment Privilege against self-

incrimination should be made dependent upon the discre-

tion of a witness’s prosecutor.

“No doubt the Constitutional Privilege may, on

occasion, save a guilty man from his just desert

[sic]. [The Privilege] was aimed at a more far-

reaching evil—a recurrence of the Inquisition and

the Star Chamber, even if not in their stark bru-

tality. Prevention of the greater evil was deemed

of more importance than occurrence of the lesser

evil. Having had too much experience with a tend-

ency in human nature to abuse power, the Found-

ers sought to close the doors against future abuses

by law enforcement agencies.” Ullman v. United

States, supra, 350 U.S. at p. 427.

1¢Harlan, J., concurring, Knapp v. Schweitzer, supra, 357

U.S. at p. 380.

-——19—

The dangers of abuse inherent from use-immunity,

and from the inefficiency of the tainted evidence rules

necessary for its enforcement, have been detailed in

Petitioners’ Opening Brief, pp. 34-42; and elsewhere.”

But the Government urges that the “ ‘uncertainties’ of

the fact-finding process are not a reason for rejecting

use-immunity” because the burden of proof rests upon

the prosecution (Gov't Br. pp. 36-37). The Govern-

ment’s answer is unconvincing because, as shown in

Petitioners’ Opening Brief, pp. 37-42, its burden is

illusory. The Government seeks to soften this by sug-

gesting that the witness will be protected by counsel

(Gov't Br. pp. 37, 38). This contention is specious.

As the Government well knows, the accused is not

permitted counsel before the Grand Jury, where the

real damage to his client’s interests occurs. Nor is coun-

sel in any better position than his client to perceive

what evidence is independently acquired. Indeed, Con-

gress has made that even more difficult by amend-

ing the Jencks Act to preclude discovery of Grand

Jury testimony until time of trial.’

It is not entirely accurate to assert, as the Govern-

ment’s Brief does at p. 37, that “the mere possibility

of error in the fact-finding process has never been ac-

cepted by this court as a sufficient basis to require tota’

immunity from prosecution.” (See: Brown v. Walker,

supra, 161 U.S. at p. 597). It was surely implicit in

*? See: in ihe Matter of Jack Korman et al., supra, 449 F.2d

at pp. 34-35, n. 5; the concurring Opinion of Chief Judge Seitz in

U.S. ex rel. Catena v. Elias, supra, 449 F.2d at p. 45; and the

Opinion cf Mr. Justice Brennan, dissenting in Piccirillo v. New

York, 400 F.2d 548 at p. 552; and in the Amicus Brief of the

Center for Constitutional Rights, pp. 25-31.

18 U.S.C. §3500(e) (3); Pub. L. 91-452, Title I, §102, Oct.

15, 1970, 84 Stat. 926.

RG EL BS EEA APTI ARG OO

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—20—

Counselman vy. Hitchcock, 142 U.S. at pp. 581-582

(quoting Boyd v. United States, 116 U.S. 616, 633)

and in Albertson v. Subversive Activities Control Board,

supra, 382 U.S. at p. 80, that the possibility of error

in the fact-finding process, however remote, was one

reason why use-immunity could never satisfy the Priy-

ilege. There is no fact-finding process when the Privi-

lege is invoked, as there is none under transactional

immunity. In the latter instance, the sole question is

one of law, namely, whether the witness testified con-

cerning the subject for which he is subsequently prose-

cuted. (See: Adams v. Maryland, supra, 347 U.S. 179;

Reina v. United States, supra, 364 U.S. 507; Smith

v. United States, 337 U.S. 137 (1949) ).

And this question may generally be resolved simply

by reviewing the Grand Jury minutes or transcript.

But with the Government in exclusive control of all

the information relevant to the fact-finding process,

and with the discovery thereof severely limited by stat-

ute and court rule, a use-immunized defendant is de-

nied effective means of disproving the Governmenis

claim that evidence was independently acquired.

Moreover, the issue of whether evidence has been

independently acquired will frequently turn on the Trial

Court’s determination of the credibility of witnesses,

the outcome of which is predictable if the accused is

without means or evidence to dispute the claim, or pits

the testimony of the accused and his witnesses against

that of law enforcement officers or other more “re-

spectable” sources.”

1%*There is always in litigation a margin of error, representing

error in fact finding, which both parties must take into account.”

Speisser v. Randall, 357 U.S. 513, 529 (1958).

it

a, ;

In any event, the Government’s knowledge of a use-

immunized witness’s defense is itself an important and

useful aid in obtaining his conviction, (Compare: Jencks

v. United States, 353 U.S. 657, 667 (1957); see:

Brown v. Walker, supra, n. 22, supra), and, without

more, demonstrates the incompleteness of use-immunity

protection.

The Government does not seriously deny these and

other dangers cited by petitioners and others;”° but

contends they are remote and speculative possibilities

which are beyond the purview of the Fifth Amend-

ment.

It is easy to dispose of a difficult claim by labeling it

as remote or speculative; but the label begs the ques-

tion and demeans the constitutional right involved.

Moreover, such a retort sometimes proves wrong.

In Brown v. Walker, supra, 161 U.S. at p. 591, the

majority, in upholding the constitutionality of transac-

tional immunity, dismissed the argument that federally

compelled testimony thereuncer would be used by State

prosecutors as “so improbable that no reasonable man

would suffer it to influence his conduct” (p. 606). But

this “improbability” became a reality in Adams v. Mary-

land, supra, 347 U.S. 179.

Again, in Jack v. Kansas, supra, 199 U.S. 372, at

p. 380, the court, rejecting an attack made on the im-

munity statute there at bar, expressed doubt that a

prosecution for the same act “would be instituted”

for violation of a State and Federzl law. But this

court refused to follow those “cautionary words” in

Feldman v. United States, 322 U.S. 487, 493-494,

involving precisely such a bi-jurisdictional prosecution.

See n. 17, supra.

—— ~—

Nt SES 0 LY STATE BRN IPN ans

Moreover, the lack of adequate standards in the re.

moteness argument as used by the Government’s Brief

—and in Mr. Justice White’s concurring opinion in

Murphy, supra, pp. 102-103—renders ii an_ inap.

propriate response to a constitutional claim rooted in

the Privilege.

The Fifth may be invoked by a witness who per-

ceives that an answer may incriminate him. The court,

of course, is the final arbiter of whether the w‘tness's

apprehension is justified. But, as stated in United States

v. Coffey, 198 F.2d 438, at pp. 440-441 (C.A. 3,

1952)-*

“[{I]n determining whether the witness really

apprehends danger in answering a question, the

judge cannot permit himself to be skeptical; rather

must he be acutely aware that in the devious-

ness of crime and its detection, incrimination may

be approached by obscure and unlikely lines of

inquiry.”

The appropriate standard, said this court in Hoffman

v. United States, 341 U.S. 479, at p. 489, quoted with

approval in Malloy v. Hogan, 378 U.S. 1, 11-12 (1964)

is whether it appears:

“. . . ‘perfectly clear, from a careful considera:

tion of ail the circumstances in the case, that the

witness is mistaken, and that the answer[s] cannot

possibly have such tendency’ to incriminate”.

(Emphasis supplied ).

The court stressed in Hoffman and Malloy, supra,

that—

“To sustain the Privilege, it need only be evi-

dent from the implications of the question, and the

21Cjted with approval in Malloy v. sti a 3780 S1,15; 2%:

9 (1964).

=

setting in which it is asked, that a responsive answer

to the question, or an explanation of why it cannot

be answered might be dangerous because inju-

rious disclosures could result.” (Emphasis supplied).

Guided by these standards, it is “perfectly clear”

that answers given by a use-immunized witness might

possibly—or even are resonably likely to—aid the Gov- .

ernment in securing his conviction.

The fact is that some of the dangers dismissed by the

Government as remote or speculative have in fact ma-

terialized into reality. The possibility, for example,

that a prosecutor might use the Grand Jury room to

gain information from a use-immunized witness for im-

peachment purposes was recalled from history in

Brown v. Walker, supra, 161 U.S. *97 [see n. 2a,

supra|; (compare: Groshart v. United States, 392 F.

2d 172, 180 (C.A. 9, 1968)).

The procedural obstacles encountered by a use-im-

munized witness seeking to disprove that evidence is

tainted is insured by the Jencks Act, Title 18 U.S.C.

§3500(e)(3), and illustrated by Lawn v. United States,

355 U.S. 399 (1958), which upheld convictions based

on tainted Grand“Ggry evidence, which the Govern-

ment, despite unequivocai assurances to the contrary,

“inadvertently used”. The Court there affirmed denials

by the District Court of motions ‘to inspect the Grand

Jury transcript (Petitioner’s testimony was not furnished

until the trial was well in progress), and a defense

request was for a hearing to determine whether the

prosecution evidence was independently acquired.

The likelihood that the qualifications and exceptions

imposed on exclusionary rules applied in other constitu-

tional areas will result in convictions based on evidence

PRL PAR EAR I en RONL RG Re aR

LO eT Pe IE TE ey Ree MNT Ritgas are At ee

forced from the mouth of a use-immunized witness is

also exemplified by Lawn v. United States, supra, and

by several cases discussed in Petitioners’ Opening Brief,

pp. 39-42.

The Government’s Brief concludes its defense of use-

immunity by proposing that it can be administered oy

the same fact-finding process applied to searches and

seizures and coerced confessions (Gov't. Br. pp. 38,

39).

The point is not apt because the interests and issues

involved at bar are not the same as those raised in

search and seizure and coerced confession cases.

The Fourth Amendment prohibits only unreason-

able searches and seizures. When the question of an il-

legal search reaches the court, the right has long

since been transgressed, if at all. ‘he exclusionary

tule, then, is a rule of deterrence; it suppresses only

the fruits of unrecsonable searches, and this, out of

deference to the court’s “regard for its own dignity as

an agency of justice and custodian of liberty .. .”

(Holmes, J. dissenting in Olmstead v. United States,

227 U.S. 438, 470 (1928)).

Similarly, the Fifth Amendment does not proscribe

police interrogations, or admissions adduced there-

from. What it forbids are forced confessions. The ex-

clusionary rule, while recognizing that a compelled

confession may be untrue, is essentially also a rule of

deterrence (Rogers v. Richmond. supra, 365 U.S. at

pp. 543-544).

As has been shown. the exclusionary rules are im-

perfect; but the right having been already lost, such im-

perfections are deemed to be tolerable in view of the

ultimate purpose they, serve, namely, to encourage com-

pliance with constitutional standards.

—25—

In no way, however, do the exclusionary rules en-

courage forced confessions or unreasonable searches

and seizures. Their function is simply the pragmatic

one of coping with constitutional rights that have been

abridged collateral to the crime committed.

But here, the Court is considering whether a statute

is co-extensive with the Fifth Amendment Privilege

where it authorizes forced confessions which by virtue of

imperfect rules and methods designed for deterrence,

might lead to convictions based thereon.

It seems clear that the Privilege against self-incrim-

ination would be irreparably and substantially di-

minished if its scope were to be entrusted to the imper-

fections of a fact-finding process.

Conclusion.

For the foregoing reasons, as well as those mentioned

in Petitioners’ Opening Brief, and in the briefs of

Amicus Curiae filed herein, it is respectfully submitted

that the judgments of the courts below should be re-

versed, and the statute at bar held unconstitutional as

violative of the Fifth Amendment Privilege.

Respectfully submitted,

HuGH R. MANES,

MARGOLIS, MCTERNAN, SMITH,

ScoPE & HERRING,

By HuGH R. MANEs,

Attorneys for Petitioners.