Case Information
*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 10/9/2015 2:42:33 PM PAM ESTES Clerk
*1 ACCEPTED 12-15-00216-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 10/9/2015 2:42:33 PM Pam Estes CLERK NO. 12-15-00216-CV IN THE COURT OF APPEALS FOR THE TWELFTY DISTRICT OF TEXAS IN RE THOMAS LYTLE AND ELLEN LYTLE, REALTORS, V. THE HONORABLE TERESA DRUM, JUDGE PRESIDING 29 TH JUDICIAL DISTRICT COURT OF VAN ZANDT COUNTY, TEXAS RESPONDENT, Real Parties in Interest: DAVID C. PETRUSKA SANDRA L. PETRUSKA
HELMUTH K. GUTZKE AND ZACKIANN GUTZKE, DEFENDANTS. REAL PARTIES IN INTEREST DAVID C. PETRUSKA’S AND SANDRA L. PETRUSKA’S APPENDIX TO RESPONSE TO PETITION FOR WRIT OF
MANDAMUS Michael F. Pezzulli State Bar No. 15881900 michael@courtroom.com 14911 Quorum Drive, Suite 340 Dallas, Texas 75254 Ph: 469-916-7700 Fax: 469-916-7705
JOHN F. WARREN
*2 Dallas County Clerk George Allen Sr. Court Bldg. 600 Commerce St, Ste 101 Dallas, Texas 75202-3551
STATE OF TEXAS COUNTY OF DALLAS
I, Jolm F. Warren, Clerk of the County Court of Dallas County Court at Law No. 2, Dallas County, Texas do hereby certify that the foregoing is a true and correct copy of document in Cause No. CC-14-03303-B.
THOMAS LYTLE,
PLAINTIFF (S) vs
DAVID C. PETRUSKA,
DEFENDANT (S) PLAINTIFF'S ORIGINAL PETITION filed on 8th day of July, 2014 REGISTER OF ACTIONS filed on gth day of July, 2014 in the Dallas County Court at Law No. 2, Dallas County, Texas. WITNESS MY HAND AND SEAL of said Court this 6th day of October, 2015.
*3 FILED 7/8/2014 1 :21 :56 PM JOHN F. WARREN COUNTY CLERK
DALLAS COUNTY CAUSE No.CC-14-03303-B § THOMAS LYTLE IN THE COUNTY COURT § v. § COUNTY COURT AT LAW NO. § § DA YID C. PETRUSKA DALLAS COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Thomas Lytle, hereinafter called Plaintiff, complaining of and about David C. Petruska, hereinafter called Defendant, and for cause of action show the Court the following:
DISCOVERY CONTROL PLAN LEVEL
1. Plaintiffs intend that discovery be conducted under Discovery Level 2.
PARTIES AND SERVICE
2. Plaintiff, Thomas Lytle, is an individual whose address is 1603 Van Zandt County Road 2319, Canton, Texas 75103. 3. Defendant David C. Petruska, an individual who is a resident of Dallas, Texas, may be served with process at his residence 11264 Russwood Circle, Dallas, Texas 75229 or at his place of business at 5944 Luther Lane, Suite 450, Dallas, Texas 75225. Service of said Defendant as described above can be effected by personal delivery.
JURISDICTION AND VENUE
4. The damages sought are within the jurisdictional limits of this Court. 5. Plaintiff seeks monetary relief of over $200,000 but not more than $1,000,000.00. 6. This court has personal jurisdiction herein because Defendant is a Texas resident.
~ TRUE AND CORRECT PLAINTIFF'S ORIGINAL PETITION Page 1 (~(~~; COPY OF ORIGINAL
\\Bdnt-fsl \wpprolaw\3191.003\259143.docx
~-·~·~· FILED IN DALLAS ~m ~ COUNTY Cl ER K'S OFf'tCE
*4 7. Venue in Dallas County is proper in this cause under Section 15 .002( a)(2) of the Texas Civil Practice and Remedies Code because Defendant resides in this county.
FACTS
8. Plaintiff and his wife are the owners of certain real property in Van Zandt County. Part of the property is a private driveway from their home entering onto Van Zandt County Road 2319.
9. Unknown to Plaintiff, Defendant Petruska and his wife had fraudulently filed documents in the real property records of Van Zandt County claiming an easement to use Plaintiffs driveway. No such easement existed.
10. On or about February 14, 2014, Defendant Petruska was informed that Plaintiff would be erecting a barrier along the driveway which would preclude any access from Defendant's property to the driveway. On or about February 15, 2014, Plaintiff was on his tractor transporting supplies for fencing on the driveway when he was met on the driveway by Defendant Petruska.
11. Defendant Petruska began arguing with Plaintiff about an alleged right to use the driveway which Plaintiff explicitly stated did not exist. Defendant Petruska then returned to his vehicle to get a weapon, what to Plaintiff appeared to be an ARI 5 assault weapon. Defendant Petruska walked onto Plaintiffs property and pointed the weapon directly at Plaintiff who was only about ten (10) feet away, declaring he had a right to use Plaintiffs driveway. Defendant Petruska went on to tell Plaintiff that he was a Veteran of the war in Vietnam and suffered from Post Traumatic Stress Disorder. Defendant stated, while pointing the weapon at Plaintiff, "I've killed a lot of men and you have not killed any and I am going to kill you." Plaintiff, in fear for his life, put his arms in the air and told Defendant Petruska he was calling law enforcement on Page 2 PLAINTIFF'S ORIGINAL PETITION \\Bdnt-fsl \wpprolaw\3191.003\259143.docx *5 his mobile phone. In response, Defendant Petruska walked across the property line to his property, still holding his weapon, and dared Plaintiff to call the Sheriff. Plaintiff quickly got on the tractor and drove back to his house and called the Sheriff.
THREAT OF BODILY INJURY
12. Defendant intentionally and knowingly threatened Plaintiff with imminent bodily injury. Defendant pointed an assault rifle at Plaintiff from less than 10 feet away, and threatened Plaintiff with imminent bodily injury, expressing his intent shoot and to kill Plaintiff. Defendant stated to Plaintiff that Defendant had killed people in the past and that he suffered from a mental disorder, Post-Traumatic Stress Disorder. Plaintiff was in fear that he would be shot.
13. Defendant's threat directly and proximately caused injury to Plaintiff. Plaintiff continues to suffer from apprehension that Defendant will cause him injury. When Defendant visits the property Plaintiff feels forced to stay out of sight and to avoid any contact with Defendant. This fear and apprehension has caused Plaintiff to suffer from nightmares and insomnia, fear of leaving his home and inability to focus on anything other than the incident and safety of his home and his wife at the times Defendant is at his home. Plaintiff now feels the need to sleep with a weapon nearby. This severe apprehension and fear has caused damage including past and future pain and suffering, past and future mental anguish, loss of income, physical impairment, past and future medical expenses and loss of consortium.
EXEMPLARY DAMAGES
14. Plaintiff would further show that Plaintiffs injuries resulted from Defendant's malice. Defendant acted with the specific intent to cause substantial injury and/or harm to Plaintiff and to intimidate Plaintiff in granting Defendant a right to use Plaintiffs property. It was Defendant's intent to intimidate Plaintiff into believing that an easement existed by utilizing PLAINTIFF'S ORIGINAL PETITION Page 3 \\Bdnt-fsl \wpprolaw\3191.003\259143.docx *6 a deadly weapon to instill fear in Plaintiff, thus causing harm to Plaintiff. Plaintiff seeks recovery from Defendant for exemplary damages as provided by Section 41.003(a) of the Texas Civil Practice and Remedies Code. As Defendant's conduct is described by the Texas Penal Code § 22.02 as an aggravated assault, the limitation of damages in Texas Civil Practice and Remedies Code § 41.008 does not apply.
JURY DEMAND
15. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
REQUEST FOR DISCLOSURE
17. Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose, within 50 days of the service of this request, the information or material described in Rule 194.2.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Thomas Lytle, respectfully prays that the Defendant be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiff against Defendant for the actual damages requested hereinabove in an amount in excess of the minimum jurisdictional limits of the Court, together with exemplary damages, prejudgment and post-judgment interest at the maximum rate allowed by law, costs of court, and such other and further relief to which the Plaintiff may be entitled at law or in equity, whether pled or unpled. PLAINTIFF'S ORIGINAL PETITION Page 4 \\Bdnt-fsl \wpprolaw\3191.003\259143.docx
*7 Respectfully submitted, BELLINGER & SUBERG, L.L.P. By:
BARBARA
L. EMERSON Texas State Bar No. 06599400 10,000 N. Central Expy, Suite 900 Dallas, Texas 75231 Telephone: 214/954-9540 Facsimile: 214/954-9541 bemerson@bd-law.com
ATTORNEY FOR PLAINTIFF THOMAS LYTLE
&-:,.,~ TRUE AND CORRECT ~{f!X::;~ COPY OF ORIGINAL
PLAINTIFF'S ORIGINAL PETITION Page 5 [1] ._;;,/l(~~/ FILED IN DALLAS
\\Bdnt-fsl \wpprolaw\3191.003\259143.docx
·rf.if:fjl COUNTY CLERK'S OFFICE *8 Page 1of1 Skip to Main Content Loqout Mv Account Search Menu New Countv Courts at Law Search Refine Locati on : All County Courts at Law Civil Images Helo Search Back
REGISTER OF ACTIONS
CASIC No. CC-14-03303-B THOMAS LYTLE vs.DAVID C PETRUSKA § Case Type: DAMAGES (NON COLLISION) § Subtype: NEGLIGENCE § Date Filed: [0710812014] § Location: County Court at Law No. 2 §
PARTY INFORMATION
Lead Attorneys
DEFENDANT PETRUSKA, DAVID C
MICHAEL F PEZZULLI Retained 469-916-7700 x104(W)
PLAINTIFF
LYTLE, THOMAS BARBARA L EMERSON Retained
214-954-9540(W)
E VENTS & 0RD£RS Of' TH E C OURT
OTHER EVENTS AND HEARINGS
[0710812014] NEW CASE FILED (OCA) 07108/2014 ORIGINAL PETITION
Plaintiff's Original Petition 0710,812014 ISSUE CITATION 07108/2014 JURY TRIAL DEMAND [0710812014] CIVIL CASE INFORMATION SHEET CITATION (SERVICE) 0 710912014
PLACED IN ATTY PU BOX 719114
PETRUSKA, DAVID C Served [0710912014]
Returned [0711412014] [0711412014] RETURN OF SERVICE
CITATION SERVED 719114@ 6:20PM
[0810112014] QBlglNAL ANSl/'i~B - gENERAL DEN18L. [0912912014] ORDER - MEDIATION [1011012014] CANCELED DISMISSAL HEARINg (9:00 AM) (Judicial Officer FIFER, KING)
BY COURT ADMINISTRATOR
[0512012015] MQTION - QUASH
DEPOSITION NOTICES OF DAVID PETRUSKA AND SANDRA PETRUSKA
[0512012015] NOTICE - HEARING [0610112015] STIPULATION
AND RULE 11 AGREEMENT
[0611012015] STIPULATIQN
AND RULE 11 AGREEMENT JOINT
06/15/2015 CANCELED MOTION • QUASH (9:00 AM) ()
REQUESTED BY ATTORNEY/PRO
SE 0611612015 Reset by Court to 0611512015 [0612912015] CORRESPONDENCE
NO SETTLEMENT
[0711612015] MQTIQN - STAY
ALL PROCEEDINGS WI LEGAL AUTHORITIES IN SUPPORT
07128/2015 MOTION· STAY
PROCEEDINGS WITH LEGAL AUTHORITIES IN SUPPORT
[0810312015] ORDER-STAY
PROCEEDINGS; AGREED
08/13/2015 NOTICE • CHANg!; QF ADDRESS [0811812015] CANCELED JURY TRIAL (9:00 AM) (Judicial Officer FIFER, KING)
BY COURT ADMINISTRATOR
0811712015 Reset by Court to 0811812015
FINANC IA L INFORMAT ION PLAINTIFF LYTLE, THOMAS Total Financial Assessment 294.00 Total Payments and Credits 294.00 Balance Due as of 10/0612015 0.00 [0710812014] Transaction Assessment 294.00 [0710812014] CREDIT CARD - TEXFILE Receipt# CV 2014_08618
LYTLE, THOMAS (294.00) (CC) - ~\ TRUE AND CORRECT (~' J 1~/ COPY DF ORIGINAL \1~ . ·~.Y FILED IN DALLAS
.. ~ot- .Y COUNTY CteR 0
RPI 0007
http://courts.dallascounty.org/CaseDetail.aspx?CaseID=49 l 6719 10/6/2015 *9 944 Tex. 794 SOUTH WESTERN REPORTER, 2d SERIES has no basis in law upon the admitted fact.a and Massachusett.s federal court, was not presented to us. See Downw v. Aquama abuse of discretion. rine Operators, Inc., 701 S.W.2d 288, 241-
Affirmed. 42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); see also Johnson v. Fourth Court of Appeals,
1. Abatement and Revival ._12 700 S.W.2d 916, 917 (Tex.1985) (to establish Mere pendeney of action in federal abuse of discretion relator must show that court involving same parties and issues is fact.a and law permit trial court to make not reason for abating subsequent stat.a only one decision). court proceeding. 2. Action *'"88
Appeal and Error 11=1949 Motion to stay court proceeding is di· rected to discretion of court, and court's deciaion will not be reversed absent abuse of discretion. 3. Abatement and Revival 41=113
Courts c=it611 Mere pendency of action in one state is not grounds for abating suit in second state involving same parties and same sub· ject matter; however, as matter of comity,
SPACE
MASTER INTERNATIONAL, it is custom for court in which later action INC., Appellant, is instituted to stay proceedings therein until prior action is determined or, at least, v. for a reasonable time.
PORTA-KAMP MANUFACTURING
COMPANY, INC., Appellee. 4. Declaratory Judgment e->262 Action for declaratory judgment is nei No. 01-90-00020-CV. ther legal nor equitable, but is sui generis. Court of Appeals of Texas, 5. Declaratory Judgment ¢=>5 Houston (1st Dist.). Entry of declaratory judgment rests Aug. 16, 1990. within sound discretion of trial court. 6. Declaratory Judgment ci=>S It is within discretion of trial court to Declaratory judgment action was refuse to enter declaratory judgment or brought t.o determine whether contracts decree if jurlgment or decree would not could be enforced, or whether enforcement terminate Uni:ertainty or controversy giv should be denied on ground that oontractu· ing rise to proceeding. al interest' rates were allegedly usurious. The 125th District Court, Harris County, 7. Declaratory Judgment ¢=>8 Don E. Wittig, J., granted defendant's mo Declaratory Judgments Act was not tion t.o dismiss, but denied plea in abate·
intended to provide for piecemeal litigation ment, and appeal was taken. The Court of of Jawsuits. V.T.C.A., Civil Practice and Appeals, Bissett, J. (Retired), held that or
Remedies Code § 87 .003. der dismissing suit for declaratory judg 8. Declaratory Judgment P381 ment, on ground that breach of contract actions involving same parties and issues Consideration in determining whether were pending in New Jersey state court trial court properly dismissed suit for de-
*10 SPACE MASTER INTERN. v. PORTA-KAMP MFG. Tex. 945 . Clfe u 794 S.W.2d 944 (Tex.App.-Houtton [111 Diii.) 1990) claratory judgment is whether trial court's of modular classroom units in Mnssachu· exercise of jurisdiction in suit for declarato setts, the other for the construction of ry judgment woul~ deprive plaintiff of abil modular classroom units in New Jersey. ity to select appropriate for um to hear suit. Porta-Kamp, a Texas corporation with its
principal place of business in Houston, Tex· 9. Declaratory Judgment P362 as, sued Space Master for breach of con Order dismissing contract debtor's suit tract and sought money damages, in both for declaratory judgment, that contracts at the New Jersey state court and the Massa issue should not be enforced because other chusetts state court. The latter suit was removed to a federal court in Massachu party had attempted to charge it usurious interest, was not abuse of discretion, where setts. Space Master answered both com breach of contract actions involving same plaints, asserting by affirmative clefenBes parties and issues were pending in New and a counterclaim that Porta-Kamp had Jersey state court and in Massachusetts violated the Texas usury statute. federal court.
While the suits in Massachusetts federal court and New Jersey state court were 10. Declaratory Judgment 4=>45 pending, Space Master filed suit for declar Parties should not be allowed to use atory judgment in Texas, alleging the con declaratory relief as forum-shopping de tracts at issue should not be enforced be vice. cause Porta-Kamp had attempted to charge Space Master usurious interest rates. Porta-Kamp filed a motioll to dis
JoAnn Storey, Houston, for appellant. miss and a plea in abatement, urging the Texas court to either decline to exercise its G. Wesley Urquhart, Houston, for appel jurisdiction or abate the cause of action, in lee. order to avoid interference with litigation involving the same parties and issues in
Before SAM BASS, COHEN and Massachusetts federal court. BISSET!' 1, JJ. Space Master responded to Porta Kamp's motions to dismiss in the Texas
OPINION
court by asserting the trial judge of the Massachusetts federal court had indicated
BISSET!', Justice (Retired). he was unwilling to apply Texas usury law, This is an appeal from the trial court's and attached a portion of the· transcript order nunc pro tune dismissing Space Mas from the proceedings in Massachusetts, ter's suit for declaratory judgment without sworn to by Space Master's attorney as prejudice. Space Master International Inc., accure.tely reflecting the exchange between ("Space Master"), in three points of error, counsel and the court. When counsel in contends the trial court erred in dismissing formed the court that Porta-Kam.p could its suit, because the mere pendency of two forfeit the principal as well as the interest other actions, in Massachusetts federal under Texas la,w, because it had charged an court and New Jersey state court, was not 18 percent interest rate, the trial judge a sufficient basis for dismissal. We affinn. replied: · A dispute arose concerning two contracts I mean, it's ludicrous. . . . I don't see entered into between Space Master and any judge any place applying that Jaw Porta-Kamp Manufacturing Company, Inc. because it's-it's absolutely inherently ("Porta-Kamp"): one for the construction ludicrous . . . . [T)o say that they could 1. The Honorable Gerald T. Bissett, Justice, re Texas at Corpus Christi, sitting by assignment.
tired, Court of Appeals, Thirteenth District of *11 946 Tex. 794 SOUTH WESTERN REPORTER, 2d SERIES v. Tucker, 615 S.W.2d 881, 885-86 (Tex.Civ. forfeit three quarters of a minion dollars App.-Dallas 1981, writ ref'd n.r.e.); because they charged you interest which Byrnes v. University of Ho'U8ton, 507 you haven't paid is just-I mean, you don't even have to be a Cardoza [sic] to S.W.2d 815, 816 (Tex.Civ.App.-Houston know that it's inherently foolish. (14th Dist.] 1974, writ ref'd n.r.e.). How
ever, a motion to stay is directed to the Based on this exchange and the assertion discretion of the court and the granting or by Space Master that the Massachusetts denying of such a motion will only be re court might not be able to enforce the viewed for abuse of discretion. William usury statute because it was considered son, 615 S.W.2d at 886 (trial court did not punitive, Space Master urged that the Tex abuse discretion in refusing to stay state as court retain jurisdiction over the suit for court proceeding, filed after pending feder declaratory judgment. al court proceeding, especially because fed In its supplemental response in the Texas eral action involved numerous parties that action, Space Master alleged the New Jer- were not parties to state court action, and . sey court would not rule on Porta-Kamp's federal case was instituted by defendant in motion for summary judgment on Space federal court several years before plaintiff Master's usury defense and counterclaim, instituted subsequent state court proceed until the Texas court had construed the ing); Alpine Gulf, Inc. v. Valentino, 563 Texas usury statute. S.W.2d 358, 359 (Tex.App.-Houston [14th By order and order nunc pro tune, the Dist.] 1978, writ ref'd n.r.e.) (trial court abused discretion when it refused to stay trial court granted Porta-Kamp's motion to dismiss, but denied the plea in abatement. suit for temporary injunction filed in Texas, The court denied Space Master's motion for when suit between same parties for same rehearing, or in the alternative, motion for ultimate relief had been filed five days new trial, and this appeal followed. earlier in United States district court in
New York; trial court should have, as a In essence, Space Master, in its points of matter of comity, stayed the action). error, contends first that the mere penden cy of this action in federal court involving
[3] It is equally well settled that the the same parties and issues was not a valid mere pendency of an action in one state reason to abate the instant proceeding. will not be grounds for abating a suit in Second, it urges that the mere pendency of another state between the same parties and this suit in another state did not deprive involving the same subject matter. Bad the trial court in this case of jurisdiction to gett v. Erspan, 476 S.W.2d 381, 382 (Tex. hear the suit for declaratory judgment. Fi Civ.App.-Fort Worth 1972, no writ); Mills nally, it asserts that the trial court errone v. Howard, 228 S.W.2d 906, 908 (Tex.Civ. ously relied upon Texas Liquor Control App.-Amarillo 1950, no writ); see also Board v. Canyon Creek Land Corp., 456 Safeco Ins. Co. of Am. v. J.L. Henson, S.W.2d 891 (Tex.1970), as authority to dis Inc., 601 S.W.2d 183, 185 (Tex.Civ.App. miss the suit. As a practical matter, all Dallas 1980, writ ref'd n.r.e.) (citing Drake points challenge the authority of the trial v. Brander, 8 Tex. 351, 857 (1852)). As a court to dismiss a suit for declaratory judg matter of comity, however, it is the custom ment, filed while proceedings involving the for the court in which the later action is same parties and issues are pending in instituted t.o stay proceedings therein until another state court and federal court. the prior action is determined or, at least, (1, 21 It is well settled that the mere for a reasonable time, and the custom has practically grown into a general rule which pendency of an action in federal court in strongly urges the duty upon the court in volving the same parties and the same is which the subsequent action is instituted to sues is not a reason for abating the subse quent state court proceeding. Williamson do so. Mills v. Howard, 228 S.W.2d at 908;
*12 Tex. 947 SPACE MASTER INTERN. v. PORTA-KAMP MFG. Cite u 794 S.W.2d 944 (Tex.App.-Houtton [lit DJat.] 1990) Evans v. Evans, 186 S.W.2d 277, 279 (Tex. same parties and in which may be adjudi- Civ.App.-San Antonio 1945, no writ). cated the issues involved in the declarato-
ry action. [ 41 Space Master's points of error do 456 S.W.2d at 895 (citing Pickens v. Hidal not recognize that a declaraoory judgment go County Weiter Control & Improvement proceeding is unique. An action for declar Dist. No. 16, 284 S.W.2d 784, 'T84, 786 atory judgment is neither legal uor eq (Tex.Civ.App.--San Antonio 1955, no writ) uitable, but is sui generis, i.e. the only one (suit for declaratory judgment should have of its kind, peculiar. Canyon Creek, 456 been dismissEid where there existed prior S.W.2d at 895; Cobb v. Ha1·rington, 144 condemnation proceeding pending in county Tex. 360, 367, 190 S.W.2d 709, 713 (1945)j court at law)); see also Hawkins v. Te.'tas see also Black's Law Dictionary 1286 (5th Oil and Ga$ Corp., 724 S.W.2d 8"/8, 891 Ed.1979). (Tex.App.-Waco 1987, writ ref'd n.r.e.) (a court should :refuse to entertain a declara
[5-71 Section 37.003 of the Texas Civil tory judgment action if another uction or Practice and Remedies Code authorizes proceeding Is pending involving the same courts of record, acting within their juris parties and in which may be adjudicated diction, to grant declaratory relief, where a
the same issues involved in the action for judgment or decree will terminate the con declaratory judgment). troversy or remove an uncertainty. TEX. CIV.PRAC. & REM.CODE ANN. § 37.008
When the plaintiffs in Canyon Creek {Vernon 1986). The entry of a declaratory filed suit for declaratory judgment, there judgment rests within the sound discretion were already pending license suspension of the trial court. Uvalde County v. Bar proceedings before the Texas Liquor Con rier, 710 S.W.2d 740, 745 (Tex.App.-San trol Board, the outcome of which could Antonio 1986, no writ); K.M.S. Research tum on the issue that the plaintiffs had Laboratories, Inc. v. Willingham, 629 raised in the declaratory judgment action. S.W.2d 178, 174 (Tex.App.-Dallas 1982, no 456 S.W.2d at 898-94. The supreme court writ); Southern Nat'l Bank of Houston v. held that it was improper for the ttial court City of Austin, 582 S. W.2d 229, 287 (Tex. to hear the declaratory judgment proceed Civ.App.-Tyler 1979, writ r cf'd n.r.e.). It ings in that case: is further within the discretion of the trial Jn so far as plaintiffs are seeking a de court to refuse to enter a declaratory judg cJaratory judgment for the purpose of ment or decree if the judgment or decree overturnin1~ the administrative interpre would not terminate the uncertainty or con· tation of the statute so that no further troversy giving rise to tb e proceeding. proceedings will be instituted against Crawford v. City of Housto n, 600 S.W.2d them, we hold that the facts of these 891, 894 (Tex.Civ.App.-Hou1,ton [1st Dist.) cases do Mt warrant an exercise of juris 1980, writ ref'd n.r.e.); TEX.CIV.PRAC. & diction by a civil court. REM.CODE ANN.§ 37.008 (Vernon 1986). The Declaratory Judgments Act was never
Id. at 896. intended to provide for the piecemeal litiga Space Mast.er attempts to distinguish tion of lawsuits. Unite~ Serv. :Lil~ Ins. Canyon . Creek on the ground that it in· Co. v. Delaney, 396 S.W.2d 855, :8.58 (Tex. valved the construction of a penal statute 1965). . . and a previously filed administrative action In Canyon Creek, the ~ ·exas Supreme by the Texas Liquor Control Board. While Court stated: Space Master is correct that the statute to be construed in Canyon Creek was penal
As a general rule, an action for declara in nature, the court merely stated that the tory judgment will not be entertained if there is pending, at the time it is filed, general rule was even more applicable another action or proceeding between the where the construction of a penal statute *13 794 SOUTH WESTERN REPORTER, 2d SERIES
948 Tex. ing a suit for declarat.ory judgment, where was at issue, and a privilege, rather than a there existed a prior proceeding in federal personal or property right was at stake in
court involving the same parties and issues: the pending administrative proceeding. Although separate suits including the 456 S.W.2d at 895. The court noted that
same parties and issues may be main· the considerations that lead courts of equi tained in state and federal courts simul ty to deny injunctive relief apply with equal
taneously, the applicable declaratory force to an action for a declaratory judg· judgment law supports the judicial dis ment construing a penal statute. Canyon cretion of the trial court to refuse to Creek, 456 S.W.2d at 896. One of those entertain jurisdiction of this declaratory considerations is that a court of equity will action. not interfere with the attempted enforce See also Kenny v. Starnes, 265 S.W.2d ment of a criminal statute unless the stat 639, 640 (Tex.Civ.App.-El Paso 1954, writ ute is unconstitutional and its enforcement ref'd n.r.e.). will result in irreparable injury to vested property rights. Id. at 894, 896; see also
[9, 10) Space Master, in the case at bar, Dub Shaw Ford, Inc. v. Comptroller of conceded that the suit for declaratory judg Pub. Accounts, 479 S.W.2d 403, 406 (Tex. ment involved the same parties and issues Civ.App.-Austin 1972, no writ) (suit prop as the proceedings pending in the New erly dismissed where there existed pending Jersey state court and in the Massachu· administrative proceedings between the setts federal court. Space Master should same parties, that might adjudicate the is not be allowed t.o use declarat.ory relief as
a forum-shopping device. Based on consid sues involved in the declaratory judgment). The rule announced in Canyon Creek ap erations of comity, the unique nature of
declaratory judgments, and the authorities plies whether the proceeding is administra above-cited, we conclude that the trial court tive or legal. See Hawkins, 724 S.W.2d at
did not abuse its discretion in dismissing 891. Space Master's suit for declaratory judg ment. [8] Another consideration in determin ing whether the trial court properly dis The judgment of the trial court is af missed a suit for declaratory judgment is firmed. whether the trial court's exercise of juris diction in the suit for declaratory judgment would deprive the plaintiff of the ability to select the appropriate forum to hear a suit. In Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985), the court stated that the trial court should have declined to exercise juris
Peter Durwin WILL, Appellant, diction over a declaratory judgment filed by a potential defendant in a tort action,
v. seeking a declaration of nonliability. The The STATE of Texas, Appellee. court declined to grant mandamus relief, No. 01-89-00393-CR. but encouraged the trial court to decline to hear the action, because the defendant in Court of Appeals of Texas, effect had chosen "the time and forum for Houston (let Dist.). trial by beating the potential plaintiff to
Aug. 23, 1990. the courthouse and filing suit seeking a Discretionary Review Refused declaration of non-liability." Id. at 565, Oct. 24, 1990. 567. In Byrnes v. University of Houston, 507 S.W.2d at 817, the court held that the trial Defendant was convicted by jury of court did not abuse its discretion in dismiss- driving while intoxicated (DWI), enhanced *14 BAXTER v. PALMIGIANO 425 U.S. SOS
ClteullS.Q.1511 (lt71) Mr. Justice STEVENS took no part in the and the Court of Appeals, 487 F.?.d 1280, consideration or decision of this case. reversed. On remand by the Supreme Court, 418 U.S. 908, 94 S.Ct. 8200, 41 Mr. Justice MARSHALL, with whom Mr. L.Ed.?.d 1155, the Court of Appeals, 510 Justice BRENNAN and Mr. Justice F.2d 534, affirmed prior decision but modi WHITE join, concurring. fied opinion, and the Supreme Court grant I dissented in Milliken v. Bradley, 418 ed certiorari in both actions. The Supreme U.S. 717, 94 S.Cl 8112, 41 L.Ed.2.d 1069 Court, Mr. Justice White, held that prison ...I.!.°' _Jf1974), and I continue to believe that the inmates do not have right to either retained Court's decision in that case unduly limited or appointed counsel in disciplinary hear the federal courts' broad equitable power to ings; that permitting adverse inference to provide effective remedies for official seg be drawn from inmate's silence at his disci regation. In this case the Court distin plinary proceeding is not, on its face, invalid guishes Mmiken and paves the way for a practice; that mandating confrontation and remedial decree directing the Department cross-examination of witnesses at prison of Housing and Urban Development to uti disciplinary proceedings effectively lize its full statutory power to foster hous preempts area that has been left to sound ing projects in white areas of the greater discretion of prison officials; and that Chicago metropolitan area. I join the where there was no evidence that prison Court's opinion except insofar as it appears inmates in one action were subject to "less to reaffirm the decision in Milliken. er penalty" of loss of privileges, but rather it appeared that all were charged with "se rious misconduct," requiring procedures such as notice and opportunity to respond even when inmate is faced with temporary suspension of privileges was premature.
Judgments of Courts of Appeals re versed. 425 U.S. 308, 47 L.Ed.2d 810 Mr. Justice Brennan filed opinion con Joseph BAXTER et al., Petitioners, curring in part and dissenting in part in v. which Mr. Justice Marshall joined. Nicholu A. PALMIGIANO. Jerry J. ENOMOTO et al., Petitioners, 1. Federal Civil Procedure ti=> 161 Without certification of action as class v. action and identification of class, action is John Wesley CLUTCHETTE et al. not properly a class action. Fed.Rules Civ. Nos. 74-1187 and 74-1194. Proc. rule 23(c)(l, 3), 28 U.S.C.A. 2. Constitutional Law ~42.2(1, 2) Argued Dec. 15, 1975. Although one of named plaintiffs in Decided April 20, 1976. action by state prison inmates alleging that procedures used in disciplinary proceedings
Actions were brought by state prison at prison violated their rights to due process inmates alleging that procedures used in and equal protection had been paroled and other had died, where parties stipulated to prison disciplinary proceedings violated their constitutional rights. In one action, intervention of another inmate as named the District Court, 328 F.Supp. 767, granted party plaintiff and further stipulated that substantial relief, and the Court of Appeals, such inmate had been brought before disci 497 F.2.d 809, 510 F.?.d 613, affirmed. In plinary committee for infraction that could the other, the district court denied relief have also lead to state criminal proceedings,
96 SUPREME COURT REPORTER
*15 425 U.S. 308 that he asked for and was denied attorney, 7. Prisons *==> 13 and that he was assigned to "segregation" Where no criminal proceedings were for unspecified number of days for infrac
pending against state inmate, state did not tion, such inmate had standing to raise is insist or ask that inmate waive his Fifth sues involved in action before Supreme Amendment privilege against self-incrimi Court. U .S.C.A.Const. Amend. 14.
nation but notified him that he was privi leged to remain silent if he cho~, although
3. Courta ~ 101.5(4), 383(1) his silence could be used against him, and Where state adult correction authority his silence in and of itself was insufficient regulations, although concededly state law, to support adverse decision by disciplinary did not even mention right to counsel when board, permitting adverse inference to be charges brought were also crimes under drawn from his silence was not invalid prac state law and did not suggest whether in tice. U.S.C.A.Const. Amends. 5, 14. mate's silence might be used against him in proceeding itself, complaint by prison in 8. Prisons ~ 13 mate claiming that disciplinary hearing vio
Disciplinary proceedings in state pris lated his due process rights did not mention ons involve correctional process and impor or challenge any rule or regulation of au tant state interests other than conviction thority but asked that disciplinary decision for crime. be declared invalid and its enforcement en 9. Constitutional Law ca=266.l(l) joined, statute requiring convening of three Aside from privilege against compelled judge court did not appear to be applicable self-incrimination, in proper circumstances and thus Supreme Court was not deprived
silence in face of accusation is relevant fact of jurisdiction on ground that case involved not barred from evidence by the due proc issues that should have been heard by
ess clause. U.S.C.A.Const. Amends. 5, 14. three-judge court subject to review on di rect appeal. 28 U.S.C.A. § 2281.
10. Prisons cS:::o 13 4. Prisons *==> 13 Permitting adverse inference to be drawn from prison inmate's silence at disci Prison inmates do not have right to plinary proceeding is not, on its face, invalid either retained or appointed counsel in dis practice. ciplinary hearings. 5. Prison& ~ 13 11. Prisons 18:::> 13
State authorities were not in error in Mandating confrontation and cross-ex failing to advise prison inmate that he was amination of witnesses at prison discipli nary proceedings, except where prison offi entitled to counsel at disciplinary hearing and that state would furnish counsel if he cials could justify their denial of such privi did not have one of his own since inmates leges on grounds that would satisfy court of law, effectively preempted area that had do not have right to either retained or appointed counsel in disciplinary hearings. been left to sound discretion of prison offi
cials. 6. Prisons cS:o:> 13 12. Prisons '8:::> 13 Prison disciplinary hearings are not criminal proceedings, but if inmates are Since there is no general right to con compelled in such proceedings to ·furnish front and cross-examine adverse witnesses testimonial evidence that might incriminate at prison disciplinary proceedings, and since them in later criminal proceedings, they due to particular environme.nt of prison set,.. must be offered whatever immunity is re ting it may be that certain facts relevant t.-0 quired to supplant privilege and may not be disciplinary determination may not come to required to waive such immunity. U.S.C.A. light until after formal hearing, such facts Const. Amend. 5. need not be excluded from consideration; *16 425 U.S. 309 BAXTER v. PALMIGIANO
Cite 111196 S.Ct. 1551 (1978) however, allowing consideration of such discipline for a violation that might also be facts in no way diminishes requirement that punishable in state criminal proceedings has there be written statement by fact finder a righL lo counsel (not j ust cout1sel-substi as to evidence relied upon and reason for tut.e) at the prison henring. Respondent state prison inmate in No. 74-1187, upon disciplinary action. 13. Prisons ~13 being cha rged with inciling a pr ison distur
bance, was summoned before prison a uthor Record in action by state prison in ities and informed that he might be prose mates alleging that procedures used in pris cuted for a violation of state law, that he on disciplinary proceedings violated their should consult an attorney (although the rights to due process and equal protection attorney would not be permitted to be contained no evidence of abuse of discretion present during the disciplinary hearing), by state prison officials in connection with and that he had a right to remain silent confrontation and cross-examination of wit· during the hearing but that if he did so his nesses at disciplinary proceedings. U.S.C. silence would be held against him. On the A.Const. Amend. 14. basis of the hearing, at which respondent 14. Prisons 41= 13 remained silent, he waa placed in "punitive segregation" for 30 days. He then filed an Where there was no evidence that action for damages and injunctive relief, named state prison inmates, who alleged claiming that the disciplinary hearing vio that procedures used in prison disciplinary lated the Due Process Clause of the Four· proceed ings violated their rights to due process and equal protection, were subject teenth Amendment. The District Court de· to " lesser penalty" of loss of privileges but nied relief, bu t t he Court of Appeals re versed, holding that an inmate at a prison rather were charged with "serious miscon lisciplinary proceeding must be advised of duct," Court of Appeals acted prematurely his right to remain silent , that he must not to extent it required procedures such as be questioned further once he exercise t hat notice and opportunity to respond even right, that such silence may not be used when inmate is faced with temporary sus
against him at thal t ime r in fut ure pro pension of privileges. U.S.C.A.Const. ceedings, and t hnt where cri minal charges Amend. 14.
~ re a realistic possibili ty prison authorities ...uu Syllabus• should consider whether defense counsel, if requested, should be perm itted at the pro Respondent state prison inmates in No. ceeding. Held: The proced ures required by 74-1194 filed an action for declaratory and t he respective Courts of Appeals are either injunctive relief alleging that procedures inconsistent with the " reasonable accommo used in prison disciplinary proceedings vio· dation" reached in Wolff v. McDonnell, 418 lated their rights to due process and equal U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, protection of the laws under the Fourteenth between institutional needs and objectives Amendment. The District Court granted and the constitut ional provisions of general relief, and the Court of Appeals affirmed, application, 0 1· are premat ure on the basis holding t hat minimum notice and a right to of the case records. Pp. 1556-1561. respond ure d ue an inmate faced even with (a) Prison inmates do not "have a right a temporary suspension of privileges, that to either retained or appointed counsel in an inmate at a disciplinary hearing who is
disciplinary hearings." Wolff, supra, at denied the privilege of confronting and 570, 94 S.Ct. at 2981, 41 L.Ed.2d at 959. P. crossooexamining witnesses must receive 1556. written reasons or the denial will be deemed prim a f acie evidence of abuse of (b) Permitting an adverse inference to discretion, and that an inmate facing prison be drawn from an inmate's silence at his •The syllabus constitutes no part of the opinion the reader. See United States v. Detroit Tim
of the Court but has been prepared by the ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. Reporter of Decisions for the convenience of 282, 287, 50 L.Ed. 499, 505.
96 S.Ct.--34 *17 96 SUPREME COURT REPORTER 425 U.S. 309 ~tephen J. Fortunato, Jr., Pawtucket, R. .J!io disciplinary proceedings is not, on its face, an invalid practice, and there is no basis in I., for respondent. the record for invalidating it as applied to respondent in No. 74-1187. Pp. 155&-1559.
Mr. Justice WHITE delivered the opinion (c) Mandating that inmates should of the Court. have the privilege of confrontation and These cases present questions as to proce cross-examination of witnesses at prison dures required at prison disciplinary hear disciplinary proceedings, except where pris ings and as to the reach of our recent on officials can justify their denial of such decision in .Wolff v. McDonnell, 418 U.S. privilege on grounds that would satisfy a 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). court of law, effectively pre-empts the area that Wolff, supra, left to the sound discre tion of prison officials, and there is no evi
I
dence of abuse of such discretion by the A. No. 74-1194 prison officials in No. 74-1194. Pp. 1559- 1560.
[1, 2) Respondents are inmates of the (d) Where there was no evidence that California penal institution at San Quentin. any of the respondents in No. 74-1194 were They filed an action under 42 U.S.C. § 1983 subject to the "lesser penalty" of loss of seeking declaratory and injunctive relief privileges, but rather it appeared that all and alleging that the procedures used in were charged with "serious misconduct,"
disciplinary proceedings at San Quentin vio- the Court of Appeals acted prematurely to lated their rights to due process and equal the extent it required procedures such as protection of the laws under the Fourteenth notice and an opportunity to respond even Amendment of the Constitution.I After an when an inmate is faced with a temporary evJ.l!.entiary hearing, the District Court ...1!11 suspension of privileges. Pp. 1560-1561. granted substantial relief. Clut;chette v."
Procunier, 328 F.Supp. 767 (N.D.Cal.1971). No. 74-1187, 510 F.2d 534; No. 74-- The Court of Appeals for the Ninth Circuit, 1194, 510 F.2d 613, reversed. with one judge dissenting, affirmed, 497 F.2d 809 (1974), holding that an inmate
Ronald A. Dwight, Providence, R. I., for facing a disciplinary proceeding at San petitioners. Quentin was entitled to notice of the spondents conceded that the case is moot as to l. Respondents John Wesley Clutchette and
George L. Jackson brought suit "on their own him. Tr. of Oral Arg. (No. 74--1194), p. 34. We behalf, and, pursuant to Rule 23(b)(l) and Rule were further advised that respondent Jackson 23(b)(2) of the Federal Rules of Civil Proce died after the suit was flied. However, the dure, on behalf of all other inmates of San parties stipulated on June 21, 1972, to the inter Quentin State Prison subject to defendants' jur vention of Alejandro R. Ferrel as a named par isdiction and affected by the policies, practices ty plaintiff in the suit. 3 Record 285 (No. or acts of defendants complained of herein." 74--1194). The parties further stipulated the Plaintiffs' Amended Complaint, 1 Record 33 facts that, like Clutchette and Jackson, Ferrel (No. 74--1194). The District Court treated the was an inmate at San Quentin who was suit as a class action, Clutchette v. Procunier, brought before a disciplinary conunittee for an 328 F.Supp. 767, 769-770 (N.D.Cal.1971), but infraction that could have also led to state did not certify the action as a class action criminal proceedings, that he asked for and within the contemplation of Fed.Rules Clv. was denied an attorney at the hearing, and that Proc. 23(c)(l) and 23(c)(3). Without such cer
he was assigned to "segregation" for an un tification and identification of the class, the specified number of days for the infraction. action is not properly a class action. Indianap Ferrel, we were told at oral argument, is still olis School Comm'rs v. Jacobs, 420 U.S. 128, 95 incarcerated at San Quentin. Tr. of Oral Arg. S.Ct. 848, 43 L.Ed.2d 74 (1975). We were ad 34 (No. 74--1194). He thus has standing as a vised at oral argument In No. 74--1194 that named plaintiff to raise the issues before us in respondent Clutchette was paroled in 1972, two No. 74--1194. years after the suit was filed; counsel for re- *18 425 U.S. 314 BAXTER v. PALMIGIANO ClteuNS.Ct.1151 (1179) charges against him, to be heard and to 421 U.S. 1010, 95 S.Ct. 2414, 44 L.Ed.2d 678 present witnesses, to confront and cross-ex- (1975). amine witnesses, to face a neutral and de- tached hearing body, and to receive a deci- B. No. 74--1187 sion baaed solely on evidence presented at Respondent Palmigiano is an inmate of the hearing. The court also held that an the Rhode Island Adult Correction Institu inmate must be provided with counsel or a tlon serving a life sentence for murder. He counsel-substitute when the consequences was charged by correctional officers with
.J!.u .J9f the disciplinary action are "serious," "inciting a disturbance and disrupt[ion] of such as prolonged periods of "isolation." (prison] operations, which might have re- Id., at 821. The panel of the Court of suited in a riot." App. 197 (No. 74-1187). Appeals, after granting rehearing to recon- He was summoned before the prison Disci sider its conclusions in light of our interven- plinary Board and informed that he might ing decision in Wolff, supra, reaffirmed its be prosecuted for a violation of state law, initial judgment-again with one judge dis- that he should consult his attorney (al senting-but modified its prior opinion in though his attorney was not permitted by several respects. 510 F.2d 613 (1975). The the Board to be present during the hear Court of Appeals held that minimum notice ing), that he had a right to remain silent and a right to respond are due an inmate during the hearing but that if he remained faced even with a temporary suspension of silent his silence would be held against him. privileges, that an inmate at a disciplinary Respondent availed himself of the counsel hearing who is denied the privilege of con- substitute provided for by prison rules and r!m)ained silent during the hearing. The .J!.U fronting and cross-examining witnesses must receive written reasons for such denial Disciplinary Board's decision was that re- or the denial "will be deemed prima facie spondent be placed in "punitive segrega evidence of abuse of discretion," id., at 616, tion" for 30 days and that his classification status be downgraded thereafter. and-reaffirming its initial view-that an inmate facing prison discipline for a viola- (3] Respondent filed an action under 42 tion that might also be punishable in state U.S.C. § 1983 for damages and injunctive criminal proceedings has a right to counsel relief, claiming that the disciplinary hearing (not just counsel-substitute) at the prison violated the Due Process Clause of the hearing. We granted certiorari and set the Fourteenth Amendment of the Constitu-
tion.2 The Di.§t.rict Court held an evidentia- .J!.14 case for oral argument with No. 74-1187. z. The United States as amicus curiae suggests
an Inmate's silence may be used against him in that No. 74-1187 is not properly before the rhc proceeding Itself. Palmiglano's complaint Court because the case involves the constitu did not mention or challenge any nrle or regula tionality of regulations· of the Rhode Island tion of the Authority; nor did il seek an injunc· Lion against the enforcement of any identified Adult Corrections Authority and hence should have been heard by a three-judge court, subject rule. Whal It asked was that the Board's discl· to review here on direct appeal. The applica pllnary decision be declared invalid and Its en· ble regulations of the Authority when this case forcemcnl enjoined. Neither Palmlgln.no nor was brought had been promulgated as the re the State asked or uggested that a tl\ree·judge sult of a negoUated selllemenl of litigation in court be convened. It would not appear I.hat the District Court for the District of Rhode the District Court considered the validity or Jsland. Morris v. Travisono, 3JO F.Supp. 857 any of the Authority's rules to be at stake. (1970). It is conceded that they have become That court T\lled Pnlmlglano was not entl!Jed to state law, and It would appear that they are of be represented by counsel, not because the statewide effect. The rules on their face, how applicable n1les forbade it but because It con ever, although regulating in some detail the sidered the controlling rul under lhc relevant procedures required in prison disciplinary hear .. cases was to th is effocl. The Court of Appeals, lngs, do not expressly grant or deny, or even although quite aware that constitutional al· mention, the right to counsel where charges tacks on the Rhode island prison rules might brought are also a crime under state law. Nor necessitate a three-judge court, see Souza v. do they suggest. one way or the other, whether Travisono, 498 f.2d 1120, 1121- 1122 _(CAI
96 SUPREME COURT REPORTER
*19 425 U.S. 314 ry hearing and denied relief. The Court of cast and tend to reduce their utility as a Appeals for the First Circuit, with one means to further correctional goals. judge dissenting, reversed, holding that re There would also be delay and very prae spondent "was denied due process in the tical problems in providing counsel in suf disciplinary hearing only insofar as he was ficient numbers at the time and place not provided with use immunity for state where hearings are to be held. At this ments he might have made within the disci stage of the development of these proce plinary hearing, and because he was denied dures we are not prepared to hold that access to retained counsel within the hear inmates have a right to either retained or ing." 487 F.2d 1280, 1292 (1973). We appointed counsel in disciplinary proceed granted certiorari, vacated the judgment of ings." 418 U.S., at 570, 94 S.Ct., at 2981, the Court of Appeals, and remanded to that 41 L.Ed.2d, at 959. court for further consideration in light of
Relying on Miranda v. Arizona, 384 U.S. Wolff v. McDonnell, supra, decided in the 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), interim, 418 U.S. 908, 94 S.Ct. 3200, 41 and Mathis v. United States, 391 U.S. l, 88 L.Ed.2d 1155 (1974). On remand, the Court S.Ct. 1503, 20 L.Ed.2d 381 (1968), both of Appeals affirmed its prior decision but Courts of Appeals in these cases held that modified its opinion. 510 F.2d 534 (1974). prison inmates are entitled to representa The Court of Appeals held that an inmate tion at prison disciplinary hearings where at a prison disciplinary proceeding must be the charges involve conduct punishable as a advised of his right to remain silent, that he crime under state law, not because of the must not be questioned further once he services that counsel might render in con exercises that right, and that such silence nection with the disciplinary proceedings may not be used against him at that time or themselves, but because statements inmates in future proceedings. With respect to might make at the hearings would perhaps counsel, the Court of Appeals held: be used in later state-court prosecutions for "[l]n cases where criminal charges are a the same conduct. realistic possibility, prison authorities Neither Miranda, supra, nor Mathis, su should consider whether defense counsel, pra, has any substantial bearing on the if requested, should not be let into the question whether counsel must. be provided disciplinary proceeding, not because at "(p]rison disciplinary hearings [which] Wolff requires it in that proceeding, but are not part of a crimin al prosecution." because Miranda [v. Arizona, 384 U.S. Wolff v. McDonnell, supra, 418 U.S., at 556, 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] 94 S.Ct., at 2979, 41 L.Ed.2d, at 956. The requires it in light of future criminal Court has never held, and we decline to do prosecution." Id., at 537.
so now, that the requirements of those We granted certiorari and heard the case cases must be met to render pretrial state with No. 74-1194. 421 U.S. 1010, 95 S.Ct. ments admissible in other than criminal 2414, 44 L.Ed.2d 678 (1975). cases.
II
(4, 5] We see no reason to alter our con In Wolff v. McDonnell, supra, drawing clusion so recently made in Wolff that in comparisons to Gagnon v. Scarpelli, 411 mates do not "have a right to either re U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 tained or appointed counsel in disciplinary (1973), we said: hearings." 418 U.S., at 570, 94 S.Ct., at
"The insertion of counsel into the [pris 2981, 41 L.Ed.2d, at 959. Plainly, therefore, on] disciplinary process would inevitably state authorities were not in error in failing to advise Palmigiano to the contrary, i. e., -1?.ts give the proceedings_a more adversary 1974), evidently did not doubt its jurisdiction in sions of 28 U.S.C. § 2281 with respect to three· this case. On the record before us, the provi- judge courts would not appear to be appllcable. *20 BAXTER v. PALMIGIANO 425 U.S. 318
ClleuMS.Ct.1551 (1878) that he was entitled to counsel at the hear- statements in criminal prosecutions; and, upon refusal to waive, automaticall!.l_termi- J!" ing and that the State would furnish coon- sel if he did not have one of his own. nated employment or eligibility to contract
with the State. Holding that the State ....llll ..l!. [11] could not constitutionally seek to compel Palmigiano was advised that he was not testimony that had not been immunized by required to testify at his disciplinary hear- threats of serious economic reprisal, we in ing and that he could remain silent but that validated the challenged statutes. his silence could be used against him. The The Court has also plainly ruled that it is Court of Appeals for the First Circuit held constitutional error under the Fifth Amend that the self-incrimination privilege of the ment to instruct a jury in a criminal case Fifth Amendment, made applicable to the that it may draw an inference of guilt from States by reason of the Fourteenth Amend- a defendant's failure to testify about facts relevant to his case. Griffin v. California, ment, for bids drawing adverse inferences against an inmate from his failure to testi- 380 U.S. 609, 85 S.Ot. 1229, 14 L.Ed.2d 106 fy. The State challenges this determina- (1965). This holding paralleled the existing lion, and we sustain the challenge. statutory policy of the United States, id., at
[6] As the Court has often held, the 612, 85 S.Ct., at 1282, 14 L.Ed.2d, at 108, Fifth Amendment "not only protects the and the governing statutory or constitution individual against being involuntarily called al rule in the overwhelming majority of the as a witness against himself in a criminal States. 8 J. Wigmore, Evidence 421>-439 prosecution but also privileges him not to (McNaughton rev. 1961). answer official questions put to him in any (7] The Rhode Island prison rules do not other proceeding, civil or criminal, formal transgress the foregoing principles. No or informal, where the answers might in- criminal proceedings are or were pending criminate him in future criminal proceed- against Palmigiano. The State has not, ings." Lefkowitz v. Turley, 414 U.S. 70, 77, contrary to Griffin, sought to make eviden- 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973). tiary use of his silence at the disciplinary Prison disciplinary hearings are not crimi- hearing in any criminal prOOeecijng. Nei- nal proceedings; but if inmates are com- ther has Rhode Island insisted or asked that pelled in those proceedings to furnish testi- Palmigiano waive his Fifth Amendment monial evidence that.. might incriminate privilege. He was notified that he was them in later criminal proceedings, they privileged to remain silent if he chose. He must be offered "whatever immunity is re- was also advised that his silence could be quired to supplant the privilege" and may used against him, but a prison inmate in not be required to "waive such immunity." Rhode Island electing to remain silent dur- Id., at 85, 94 S.Ct., at 326, 38 L.Ed.2d, at ing his disciplinary hearing, as respondent 286; Garrity v. New Jersey, 385 U.S. 493, Palmigiano did here, is not in consequence 87 S.Ct. 616, 17 L.Ed.2d 662 (1967); Gard- of his silence automatically found guilty of ner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, the infraction with which he has been 20 L.Ed.2d 1082 (1968); Sanitation Men v. charged. Under Rhode Island law, discipli Sanitation Comm'r, 392 U.S. 280, 88 S.Ct. nary decisions "must be based on substan- 1917, 20 L.Ed.2d 1089 (1968). In this line of tial evidence manifested in the record of cases from Garrity to Lefkowitz, the States, the disciplinary proceeding." Morris v. Tra pursuant to statute, sought to interrogate visono, 310 F.Supp. 857, 873 (R.I.1970). It is individuals about their job performance or thus undisputed that an inmate's silence in about their contractual relations with the and of itself is insufficient to support an State; insisted upon waiver of the Fifth adverse decision by the Disciplinary Board.
ltU!his respect, this case is very different .J!.11 Amendment privilege not to respond or to object to later use of the incriminating from the circumstances before the Court in
*21 96 SUPREME COURT REPORTER 425 U.S. 318 the Garrity-Lefkowitz decisions, where re the judge and prosecutor from suggesting fusal to submit to interrogation and to to the jury that it may treat the def end waive the Fifth Amendment privilege, ant's silence as substantive evidence of standing alone and without regard to the guilt. Disciplinary proceedings in state other evidence, resulted in loss of employ prisons, however, involve the correctional ment or opportunity to contract with the process and important state interests other State. There, failure to respond to interro than conviction for crime. We deeline to gation was treated as a final admission of extend the Griffin rule to this context. guilt. Here, Palmigiano remained silent at
[9] It is important to note here that the the hearing in the face or evidence that position adopted by the C.ourt of Appeals is incriminated him; and, as far as this record rooted in the Fifth Amendment and the reveals, his silence was given no more evi policies which it serves. It has little to do dentiary value than was warranted by the with a fair trial and derogates rather than facts surrounding his case. This does not improves the chances for accurate decisions. smack of an invalid attempt by the State to Thus, aside from the privilege against com compel testimony without granting immu pelled self-incrimination, the Court has con nity or to penalize the exercise of the privi sistently recogni:zed that in proper circum lege. The advice given inmates by the deci stances silence in the face of accusation is a sionmakers is merely a realistic reflection of relevant fact not barred from evidence by the evidentiary significance of the choice to the Due Process Clause. Adamson v. Cali remain silent. fornia, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. Had the State desired Palmigiano's testi 1903 (1947); United States ex rel. Bilokum mony over his Fifth Amendment objection, sky v. Tod. 263 U.S. 149, 15~154, 44 S.Ct. we can but assume that it would have ex 54, 56, 68 L.Ed. 221, 223 (1928); Raffe/ v. tended whatever use immunity is required United States, 271 U.S. 494, 46 S.Ct. 566, 70 by the Federal Constitution. Had this oc L.Ed.2d 1064 (1926); Twining v. New Jer curred and had Palmigiano nevertheless re sey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 f used to answer, it surely would not have (1908). See also United States v. Hale, 422 violated the Fifth Amendment to draw U.S. 171, 176-177, 95 S.Ct. 2133, 2136, 45 whatever inference from his silence that L.Ed.2d 99, 104 (1975); Gastelum-Quinones the circumstances warranted. Insofar as v. Kennedy, 374 U.S. 469, 479, 83 S.Ct. 1819, the privilege is concerned, the situation is 1824, 10 L.Ed.2d 1018, 1020 {1963); Grune little different where the State advises the wald v. United St.ates, 353 U.S. 391, 41S- inmate of his right to silence but also plain 424, 77 S.Ct. 963, 981-984, 1 L.Ed.2d 931, ly notifies him that his silence will be Indeed, as Mr. Justice 950-954 (1957). weighed in the balance. Brandeis declared, speaking for a unani [8] Our conclusion is consistent with the mous court in the Tod case, supra, which prevailing rule that the Fifth Amendment involved a deportation: "Silence is often does not forbid adverse inferences against evidence of the most persuasive character." parties to civil actions when they refuse to 263 U.S., at 15~154, 44 S.Ct., at 56, 68 testify in response to probative evidence L.Ed., at 224. And just last Term in Hale, supra, the Court recognized that "[f)ailure offered against them: the Amendment "does not preclude the inference where the to contest an assertion is con privilege is claimed by a party to a civil sidered evidence of acquiescence . cause." 8 J. Wigmore, Evidence 439 if it would have been natural under the (McNaughton rev. 1961). In criminal cases, circumstances to object to the assertion in
.J.!.n where the stakes arlil!iigher and the State's question." 422 U.S., at 176, 95 S.Ct., at sole interest is to convict, Griffin prohibits 2136, 45 L.Ed.2.d, at 104.' 3. The Court based its statement on 3A J. Wig "Silence, omissions, or negative statements, as
more, Evidence § 1042 (Chadbourn rev. 1970), Inconsistent: ( l) Silence, etc., as constituting the impeaching statement. A failure to assert which reads as follows:
*22 425 U.S. 322 BAXTER v. PALMIGIANO Clteu96S.Ct. IMI (1978) ..J.!.ao .JflO] The short of it is that permitting an L.Ed.2.d, at 950. Within the reasonable lim· adverse inference to be drawn from an in- itations necessary in the prison disciplinary mate's silence at his disciplinary proceed- context, we suggested, but did not require, ings is not, on its face, an invalid practice; that the disciplinary committee "state its reason for refosing to call a witness, wheth and there is no basis in the record for invalidating it as here applied to Palmigi- er it be for irrele\lance, luck o! necessity, or
the hazards presented in individual cruies." ano.~ Id., ut 566, 94 S.Ct., at 2980, 41 L.Ed.2d, at IV 956. We were careful to distinguish between In Wolff v. McDonnell, we held that "the this limited right to call witnesses and other inmate facing disciplinary proceedings due process rights at disciplinary hearings . ..J.!.21 should be allowed to callLwitnesses and We noted expressly that, in comparison to present documentary evidence in his de the right to call witnesses, "[c]onfronlnt.ion fense when permitting him to do so will not and cross-cxami1rnlion present greater haz. be unduly hazardous to institutional safety ards to institutional interests." Id., at 567, or correctional goals." 418 U.S., at 566, 94 94 S.Ct., at 2980, 41 L.Ed.2d, at 957. We S.Ct., at 2979, 41 L.Ed.2d, at 956. We noted said: that "[o]rdinarily, the right to present evi "If confrontation and cross-examination dence is basic to a fair hearing; but the of those furnishing evidence against the unrestricted right to call witnesses from the inmate were to be allowed as a matter of prison population carries obvious potential course, as in criminal trials, there would for disruption and for interference with the be considerable potential for havoc inside swift punishment that in individual cases the prison walls. Proceedings would in may be essential to carrying out the correc
evitably be longer and tend to unmanage tional program of the institution." Ibid. ability." Ibid. The right to call witnesses, like other due We therefore concluded that "[t]he better process rights delineated in Wolff, is thus course at this time, in a period where prison circumscribed by the necessary "mutual ac pract.iCCS arc diverse anruomewhat experi· .J!U commodation between institutional needs menlal, is to I ave these matters to the and objectives and the provisions of the sound discretion o! the officials of state prisons." Id., at 569, 94 S.Ct., at 2981, 41 Constitution that are of general applica Id., at 556, 94 S.Ct., at 2975, 41 tion." L.Ed.2d, at 958.
a facl, when IL would have been natural to person to make the assertion In question?" assert It, amounts In effect to an assci.rtion of (Emphasis in original.) (Footnotes omitted.) lhe non-existence of the fact. This ls conceded
4. The record in No. 74-1187 shows that Palmi as a general principle of evidence ( 1071 ill· glano was provided with copies or the Inmate fro). There may be ex1>lnnations, indicating Disciplinary Report and the superior's invest!· that the person had in truth no belief of that gallon report. containing the charges and pri tenor; but the conduct is 'prima facie' an In· mary evidence aga.lnsl him, on lhe day before consistency. the dlscipllnary hearing. Al the hearing, Cnp· "There are several common classes of cases: "(I) Omissions in legal proceedings to assert lain Baxter read the charge to Palmiglnno and summarized the two reports. In the face of the
what would naturally have been asserted under lhe circumstances. reports, which he had seen, Palmlglano elected
' '(2) Omissions to assert anything, or to to remain silent. The Disciplinary Board's de speak with such detail or positiveness, when cision was based on these two reports. Palmigi· formerly narrnting, on lhe stand or elsewhere, nno's decision at lhe hearing not to speak to the matter now dealt with. them. anti supplementary reports made by the
"(3) Failure to take the stand at all, when It officials filing lhe initial reports. All of the would have been natural to do so. documents were introduced In evidence at the "In all of these much depends on the lndivid· hearing before Lhe District Court in this case. ua\ circumstances, and in all of them the under· App. 197- 202 (No. 74-1187). lying test i.s, would It have been natural for the
96 SUPREME COURT REPORTER
*23 425 U.S. 322 v
Although acknowledging the strictures of
Wolff with respect to confrontation and (14) Finally, the Court of Appeals for cross-examination, the Court of Appeals for the Ninth Circuit in No. 74-1194 held that the Ninth Circuit, on rehearing in No. 74- minimum due process-such as notice, op 1194, went on to require prison authorities portunity for response, and statement of to provide reasons in writing to inmates reasons for action by prison officials-was denied the privilege to cross-examine or necessary where inmates were deprived of confront witnesses against them in discipli privileges. 510 F.2d, at 615. We did not nary proceedings; absent explanation, fail reach the issue in Wolff; indeed, we said: ure to set forth reasons related to the pre "We do not suggest, however, that the pro vention of one or more of the four concerns cedures required by today's decision for the expressly mentioned in Wolff would be deprivation of good time would also be re deemed prima facie abuse of discretion. quired for the imposition of lesser penalties such as the Joss of privileges." 418 U.S., at
[11-13] This conclusion is inconsistent 572 n. 19, 94 S.Ct., at 2982, 41 L.Ed.2d, at with Wolff. We characterized as "useful," 960. Nor do we find it necessary to reach but did not require, written reasons for the issue now in light of the record before denying inmates the limited right to call us. None of the named plaintiffs in No. witnesses in their defense. We made no 74-1194 was subject solely to Joss of privi such suggestion with respect to confronta leges; all were brought before prison disci tion and cross-examination which, as was plinary hearings for allegations of the type there pointed out, stand on a different foot of "serious misconduct," 418 U.S., at 558, 94 ing because of their inherent danger and S.Ct., at 2975, 41 L.Ed.2d, at 952, that we the availability of adequate bases of deci held in Wolff to trigger procedures therein sion without them. See 418 U.S., at 567- outlined. See n. 1, supra. Without such a 568, 94 S.Ct., at 2980-2981, 41 L.Ed.2d, at record, we are unable to consider the degree 957-958. Mandating confrontation and of "liberty" at stake in loss of privileges cross-examination, except where prison of and thus whether some sort of procedural ficials can justify their denial on one or safeguards are due when only such "lesser more grounds that appeal to judges, effec penalties" are at stake. To the extent that tively preempts the area that Wolff left to the Court of Appeals for the Ninth Circuit the sound discretion of prison officials. 5 required any procedures in such circum
..J!.n We add that on the record before uU!here stances, the Court of Al!&?.eals acted prema- ..1!24 is no evidence of the abuse of discretion by tureJy, and its decision on the issue cannot the state prison officials. stand.• asmuch as they may provide valuable lnfonna· 5. The Court of Appeals also held, in its initial
opinion (unmodified in rehearing with respect lion with respect to the incident in question to this point), that "the disciplinary committee and may assist prison officials in tailoring pen must be required to make its fact finding deter· alties to enhance correctional goals. In so stat ing, however, we in no way dimi nish our hold· minatlons based solely upon the evidence ing in Wolff that " there must be [11] 'written presented at the hearing" In order "[f]or the statement by the factfi ndcrs a to the evidence right to confront and cross-examine adverse witnesses to be meaningful." 497 F.2d, at 820. relied on and reasons' for the d1sclplinary ac· Because we have held that there Is no general tion." 418 U.S .. at 564, 94 S.Ct., at 2979, 41 L.Ed.2d, at 955. right to confront and cross-examine adverse witnesses, it follows that the Court of Appeals' holding on this point must fall with its rejected 6. Petitioners in No. 74-1194 have not chal· premise. Due to the peculiar environment of lenged the holdings of the Court of Appeals for the prison setting, it l'l'\ay be that certain facts the Ninth Circuit with respect to notice, 497 relevant to the disci plinary determination do F.2d, at 818, or to the right to be heard by a not come to light until after the fonnal hearing. "neutral and detached" hearing body, Id., at It would be unduly restrictive to require that 820. Cf. 418 U.S., at 57(}.-571, 94 S.Ct., at such facts be excluded from consideration, In- 2981-2982, 41 L.Ed.2d, at 959-960. Because
*24 425 u.s. 328 1561 BAXTER v. PALMIGIANO Cite u 96 S.Ct.1551 (1976) We said in Wolff v. McDonnell: "As the (1974). I continue to believe that Wolff nature of the prison disciplinary process approved procedural safeguards short of changes in future years, circumstances may the minimum requirements 'of the Due then exist which will require further consid- Process Clause, and I dissent from Parts II eration and reflection of this Court. It is and IV for the reasons stated by my Broth our view, however, that the procedures we er Marshall, 418 U.S., at 580, 94 S.Ct., at have now required in prison disciplinary 2986, 41 L.Ed.2d, at 964. proceedings represent a reasonable accom- Part III of the Court's opinion, however, modation between the interests of the in- confronts an issue not present in Wolff [1] mates and the needs of the institution." and in my view reaches an erroneous con- 418 U.S., at 572, 94 S.Ct., at 2982, 41 clusion. The Court acknowledges that in L.Ed.2d, at 960. We do not retreat from mates have the right to invoke the privilege that view. However, the procedures re- against compulsory self-incrimination in quired by the Courts of Appeals in Nos. prison disciplinary proceedings, ante, at 74-1187 and 74-1194 are either inconsistent 1556, but nevertheless holds that "permit ting an adverse inference to be drawn from with the "reasonable accommodation" reached in Wolff, or premature on the bases an inmate's silence at his disciplinary pro of the records before us. The judgments in ceedings is not, on its face, an invalid prac Nos. 74-1187 and 74-1194 accordin.gly are tice," ante, at 1558, and was proper in the Reversed. circumstances of this case. This conclusion
Judgments reversed. cannot be reconciled with the numerous cases holding that the government is barred Mr. Justice STEVENS took no part in the from penalizing an individual for exercising consideration or decision of these cases. the privilege; precedents require the hold ing that if government officials ask ques- tions of an in<lj~idual to elicit incriminating .J!n
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in information, as happened here, the imposi- part and dissenting in part. tion of any substantial sanction on that
I agree that consideration of the proce- individual for remaining silent violates the dural safeguards necessary where an in- Fifth Amendment. That principle prohibits mate is deprived only of privileges is pre- reliance on any inference of guilt from the mature on this record, and thus I join Part exercise of the privilege in the context of a V of the Court's opinion, which leaves open prison disciplinary hearing. whether an inmate may be deprived of priv- ileges in the absence of due process safe- I guards. As we have frequently and consistently
-1!.ZS J.Parts II and IV of the Court's opinion recognized: simply reaffirm Wolff v. McDonnell, 418 "The constitutional privilege against U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 self-incrimination has two primary in-
these holdings are no longer in issue, it is such formal certification "the action is not unnecessary for us to consider them. properly a class action." Ante, at 1554 n. 1.
Jacobs applies only to the determination of l. l agree that No. 74-1194 Is not moot, since mootness, and did not deal with whether, for the intervening plaintiff (Ferrell) has a personal example, a court of appeals may treat an action stai{e in the outcome of this litigation. But the as a class action in the absence of fonnal certi citation of Jndlanapolis School Comm'rs v. Ja fication by the district court. Moreover, the cobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 propriety of the certification need not be ad (1975), is inapposlte. We held that case moot dressed, since there ls a plaintiff with a person because the named plaintiffs no longer had a a! Interest in the outcome. Youaklm v. Miller, personal stake \n the outcome, and the action 425 U.S. 231, at 236-237 n. 2, 96 S.Ct. 1399, at had not been formally certified as a class ac 1402, 47 L.Ed.2d 701, at 706-707. tion. Id., at 129, 95 S.Ct., at 849, 43 L.Ed.2d, at 77. We did not, however, hold that without
*25 96 SUPREME COURT REPORTER 425 U.S. 326 terrelated facets: The Government may Thus, the Fifth Amendment not only ex not use compulsion to elicit self-incrimi
cludes from use in criminal proceedings any nating statements, see, e. g., Counselman evidence obtained from the defendant in v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195 violation of the privilege, but also is opera [85 L.Ed. 1110), and the Government may tive before criminal proceedings are insti not permit the use in a criminal trial of tuted: it bars the government from using self-incriminating statements elicited by compulsion to obtain incriminating informa compulsion. See, e. g., Haynes v. Wash tion from any person. Moreover, the pro ington, 873 U.S. 503, 83 S.Ct. 1336, 10 tected information "does not merely encom L.Ed.2d 513." Murphy v. Waterfront pass evidence which may lead to criminal Comm'n, 378 U.S. 52, 57 n. 6, 84 S.Ct. conviction, but includes information which 1594, 1598, 12 L.Ed.2d 678, 683 (1964). would furnish a link in the chain of evi Indeed, only weeks ago we said that "the dence that could lead to prosecution. . privilege protects against the use of com Hoffman v. United States, 341 U.S. 479, pelled statements as well as guarantees the 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 right to remain silent absent immunity." (1951)." Maness v. Meyers, supra, at 461, Garner v. United States, 424 U.S. 648, at 95 S.Ct., at 592, 42 L.Ed.2d, at 585. And it 653, 96 S.Ct. 1178, at 1182, 47 L.Ed.2d 870, is not necessary that a person be guilty of at 376 (1976) (emphasis supplied). Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d criminal misconduct to invoke the privilege; 653 (1964), held that the Fifth Amend an innocent person, perhaps fearing that ment-the "essential mainstay" of our revelation of information would tend to "American system of criminal prosecution,"
connect him with a crime he did not com id., at 7, 84 S.Ct., at 1498, 12 L.Ed.2d, at mit, also has its protection. " 'The privilege 659-protects "the right of a person to re serves to protect the innocent who other main silent unless he chooses to speak in the wise might be ensnared by ambiguous cir unfettered exercise of his own will, and to cumstances.' " Grunewald v. United suffer no penalty for such si States, 353 U.S. 391, 421, 77 S.Ct. 963, 982, 1 lence." Id., at 8, 84 S.Ct., at 1493, 12 L.Ed.2d 931, 953 (1957), quoting Slochower L.Ed.2d, at 659. See Spevack v. Klein, 385 v. Board of Education, 350 U.S. 551, 557- U.S. 511, 514, 87 S.Ct. 625, 17 L.Ed.2d 574 558, 76 S.Ct. 637, 641, 100 L.Ed. 692, 699 (1967). As The Chief Justice noted last (1956). See E. Griswold, The Fifth Amend Term; "This Court has always broadly con ment Today 10-22 (1955); Ratner, Conse strued [the Fifth Amendment] protection to quences of Exercising the Privilege Against assure that an individual is not compelled to Self-Incrimination, 24 U.Chi.L.Rev. 472 produce evidence which later may be used (1957). against him as an accused in a criminal action." Maness v. Meyers, 419 U.S. 449,
Accordingly, the fact that no criminal 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574, 585 proceedings were pending against Palmigi- .l.!n .J.(1975). Further, "a witness protected by ano, ante, at 1557, does not answer the the privilege may rightfully refuse to an crucial question posed by this case. The swer unless and until he is protected at evidentiar~se of his statements in a crim- ..J!.U least against the use of his compelled an inal proceeding lurked in the background, swers and evidence derived therefrom in but the significant element for this case is any subsequent criminal case in which he is that the Fifth Amendment also prohibits a defendant. Kastigar v. United States, the government from compelling an individ- 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 ual to disclose information that might tend (1972)." Lefkowitz v. Turley, 414 U.S. 70, to connect him with a crime. Maness v. 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 282 Meyers, supra, pointed up this distinction in (1973). See Maness v. Meyers, supra, 419 U.S., at 473, 95 S.Ct., at 597, 42 L.Ed.2d, at its recognition that availability of motions 592 (White, J., concurring in result). to suppress compelled testimonial evidence *26 425 U.S. 330 BAXTER v. PALMIGIANO
Cite u 96 S.CL ISSI (1978) do not remedy the Fifth Amendment viola Hogan, supra, 378 U.S., at 8, 84 S.Ct., at tion. 419 U.S., at 460, 463, 95 S.Ct., at 592, 1493, 12 L.Ed.2d, at 659, Spevack held that 42 L.Ed.2d, at 584. the privilege protects individuals against
any penalty for their silence and that its
II
protection bars "the imposition of any sanc It was this aspect of the privilege that we tion which makes assertion of the Fifth relied on in a line of cases beginning with Amendment privilege 'costly.' " 385 U.S., Garrity v. New Jersey, 385 U.S. 493, 87 at 515, 87 S.Ct., at 629, 17 L.Ed.2d, at 577. [2] S.Ct. 616, 17 L.Ed.2d 562 (1967), and leading See Griffin v. California, 380 U.S. 609, 614, up to Lefkowitz v. Turley, supra. The
85 S.Ct. 1229, 1232, 14 L.Ed.2d 106, 109 Court says today that "this case is very (1965). Spevack expressly stated that different," ante, at 1557, but in my view the "[t]he threat of disbarment and the Joss of Garrity-Lefkowitz cases are compelling au professional standing, professional reputa thority that drawing an adverse inference tion, and of livelihood are powerful forms from an inmate's exercise of the privilege of compulsion," 385 U.S., at 516, 87 S.Ct., at to convict him of a disciplinary offense vio 628, 17 L.Ed.2d, at 578, and therefore held lates the Fifth Amendment. that by inferring professional misconduct, In" Garrity policemen were summoned to and penalizing that misconduct, solely on testify in the course of an investigation of the basis of an invocation of the privilege, police corruption. They were told that they the State had violated the Fifth Amend could claim the privilege, but would be dis ment. charged if they did. Garrity held that im Gardner v. Broderick, 892 U.S. 273, 88 position of the choice betweim self-incrimi S.Ct. 1913, 20 L.Ed.2d 1082 (1968), involved nation and job forfeiture denied the consti a policeman called to testify before a grand tutionally required "free cholce to admit, to jury investigating police corruption. He deny, or to refuse to answer." Lisenba v.
was warned of his constitutional right to California, 314 U.S. 219, 241, 62 S.Ct. 280, refuse to give any incriminating informa 292, 86 L.Ed. 166, 182 (1947). Subsequent tion, but was also asked to waive immunity, criminal convictions were therefore set and told that if he refused to do so, a state aside on the ground that the unconstitution ally compelled testimony should not have statute required that he be discharged. He been admitted in evidence at trial. refused to waive immunity and was dis
charged. Gardner invalidated the state In Spevack v. Klein, supra, 385 U.S. 511, statute on the ground that the Fifth 87 S.Ct. 625, 17 L.Ed.2d 574, decided the Amendment does not permit the govern same day as Garrity, an attorney refused to
ment to use its power to discharge employ honor a subpoena r.alling for production of ees to coerce disclosure of incriminating certain financial records; the sole basis for evidence. Id., at 279, 88 S.Ct., at 1916, 20 the refusal was the privilege against self-in L.Ed.2d, at 1087. Sanitation Men v. Sanita- crimination. He was disbarred for exercis-
...1!,2• ing the privilege, an<!.llhe disbarment was tion Comm'r, 39WJ.S. 280, 88 S.Ct. 1917, 20 ..l!.30 challenged in this Court as infringing the L.Ed.2d 1089 (1968), decided the same day, Fifth Amendment. Relying on Malloy v. turned on the same ground. [3] 2. Although this quotation is from the plurality because Spevack-like Palmigiano-was not a
opinion of four Justices, Mr. Justice Fortes, state employee. Ibid. See Gardner v. Broder who concurred in the judgment, "agree(d] that ick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d Spevack could not be disbarred for asserting 1082 (1968). his privilege against self-incrimination," 385 U.S., it 520, 87 S.Ct., at 631, 17 L.Ed.2d, at 581, 3. In Sanitation Men 15 sanitation employees thus providing a majority for that proposition. called before the Sanitation Commissioner in He wrote separately because he was of the vestigating alleged i.mproprieties were told that view that state employees enjoyed a lesser pro a claim of the privilege as a basis for refusing tection. He agreed with the result, however, to answer questions concerning their official
*27 96 SUPREME COURT REPORTER 425 U.S. 330 Lefkowitz v. Turley, supra, 414 U.S. 70, by Spevack, Gardner, Sanitation Men, and 94 S.Ct. 316, 38 L.Ed.2d 274, the most Lefkowitz. recent decision involving noncriminal penal
The Court's attempted distinction of ties for exercising the privilege, concerned those cases plainly will not wash. To be two architects summoned to testify before a sure, refusal to waive the privilege resulted grand jury investigating charges of corrup in automatic imposition of some sanction in tion relating to state contracts. They re all of those cases. The Court reasons that fused to waive the privilege, and a state because disciplinary decisions must be based statute provided that such a refusal would on substantial record evidence, Morris v. result in cancellation of existing state con Travisono, 310 F.Supp. 857, 873 (RI 1970), [5] tracts and ineligibility for future contracts and Palmigiano's silence "at the hearing in for five years. The architects brought suit, the face of evidence that incriminated him claiming that the statute violated the privi was given no more evidentiary lege against compulsory self-incrimination. value than was warranted by the facts sur The Court held that in the absence of a rounding his case," ante, at 1557, no auto grant of immunity the government may not matic imposition of a sanction results, and compel an individual to give incriminating therefore the use of such silence "does not answers. 414 U.S., at 79, 94 S.Ct., at 323, smack of an invalid attempt by the State to 38 L.Ed.2d, at 282.• A "substantial econom compel testimony without granting immu ic sanction" in the form of loss of contracts
nity or to penalize the exercise of the privi was held sufficient to constitute compulsion lege," ibid. within the meaning of the Fifth Amend But the premise of the Garrity-Lefkowitz Id., at 82, 94 S.Ct., at 324, 38 ment. line was not that compulsion resulted from L.Ed.2d, at 284. The penalty, again im the automatic nature of the sanction, but posed in a noncriminal context, was held to that a sanction was imposed that made infringe the Fifth Amendment. costly the exercise of the privilege. Plainly It follows that settled jurisprudence until the penalty imposed on Palmigiano-30 today has been that it is constitutionally days in punitive segregation and a down impermissible for the government to impose graded classification- made costly the exer- noncriminal penalties as a means of compel cise of the privilege no Jess than loss of govern111ent contracts or discharge from a .J!.32 ling individuals to forgo the privilege. The Court therefore begs the question by "de- state job. Even accepting the Court's as
.J!.3t clin[ing) to extend thtiYriffin rule" to pris sertion that a disciplinary conviction does on disciplinary proceedings, ante, at 1558. not automatically follow from an inmate's Af firmance of the Court of Appeals' hold silence, in sanctioning reliance on silence as ing that reliance on an inmate's silence is probative of guilt of the disciplinary of- barred by the Fifth Amendment is required fense charged, the Court allows prison offi-
duties would result in their discharge. Three in disciplinary proceedings, nothing in that employees answered and denied the charges, case supports the Court's assumption that an but when later called before grand juries refus inmate's silence alone would not meet this evi ed to waive immunity and were discharged for dentiary standard. Ante, at 1557; cf. ante, at doing so. The Court held that to put the em 1555 n. 2. But if silence alone provides an ployees to a choice between their constitutional evidentiary premise sufficient for discipline, the rights and their jobs was compulsion that vio
Court's distinction of the Garrity-Lefkowitz lated the privilege. 392 U.S., at 284, 88 S.Ct., cases crumbles. I therefore read the Court's at 1919, 20 L.Ed.2d, at 1092. opinion to imply that the Fifth Amendment bars conviction of a disciplinary violation based
4. "[11he State Intended to accomplish what solely on an inmate's silence. In No. 74-1187, Garrity has specifically prohibited-to compel petitioners concede that an inmate's silence, testimony that had nol been Immunized." 414 without more, would not be substantial evi U.S. at 82, 94 S.Cl. at 325, 38 L.Ed.2d at 284. dence. 5. Although Morris imposes a substantial-evi dence standard for appellate review of findings *28 BAXTER v. PALMIGIANO 425 U.S. 334 Cite u 96 S.Ct. 1581 (1978) its " 'inducement of any sort.' " Bram v. cials to make costly the exercise of the United States, 168 U.S. 582, 548, 18 S.Ct. privilege, something Garrity-Lefkowitz con 183, 189, 42 L.Ed. 668, 575 (1897). "We demned as prohibited by the Fifth Amend ment. For it cannot he denied that the have held inadmissible even a confession disciplinary penalty was imposed to some secured by so mild a whip as the refusal, extent, if not solely, [8] as a sanction for exer under certain circumstances, to allow a sus cising the constitutional privilege. See pect to call his wife until he confessed." Griffin v. California, supra, 380 U.S. 609, 85 Malloy v. Hogan, 378 U.S., at 7, 84 S.Ct., at S.Ct. 1229, 14 L.Ed.2d 106; United States v.
1493, 12 L.Ed.2d, at 659. Palmigiano was Jackson, 390 U.S. 570, 581-582, 88 S.Ct. forced to choose between self-incrimination 1209, 1216, 20 L.Ed.2d 138, 146 (1968). That
and punitive segregation or some similar plainly violates the Fifth Amendment. penalty. Since the Court does not overrule the Garrity-Lefkowitz group of decisions,
It is inconsequential that the State is free those precedents compel the conclusion that to determine the probative weight to be this constituted impermissible compulsion. attached to silence. Garrity-Lefkowitz did not consider probative value, and other
III
precedents deny the State power to attach any probative weight whatever to an indi The Court also draws support from the vidual's exercise of the privilege, as I devel "prevailing rule that the Fifth Amendment op more fully in Part IV. does not forbid adverse inferences against
..J!.n .J1he compulsion upon Palmigiano is as ob parties to civil actions when they rwse to _l!.st testify in response to probative evidence vious as the compulsion upon the individu offered against them." Ante, at 1568. als in Garrity-Lefkowitz. He was told that That rule may prevail, but it did not have criminal charges might be brought against the approval of this Court until today. him. He was also told that anything he Some commentators have suggested that said in the disciplinary hearing could be used against him in a criminal proceeding. 7 permitting an adverse inference in some civil cases violates the Fifth Amendment. Thus, the possibility of self-incrimination Comment, Penalizing the Civil Litigant was just as real and the threat of a penalty Who Invokes the Privilege Against Self-In just as coercive. Moreover, the Fifth Amendment does not distinguish among crimination, 24 U.Fla.L.Rev. 541, 546 (1972); types or degrees of compulsion. It prohib- Comment, 1968, U.Ill.L.F. 75; Note, Use of gation, with a possible downgrade in his classi 6. As the Court notes, the only evidence, other
than Palmigiano's silence, before the Discipli fication. nary Board consisted of written reports made by the prison officials who filed the initial 7. In this respect it is not clear that all of the charges against Palmiglano. On the whole, the Morris requirements were observed in Palmigi record inspires little confidence that his silence ano's disciplinary hearing. Under the prison's was not the sole basis for his disciplinary con rules, each inmate must be advised that "state viction. At the hearing a prison official read ments he makes In his defense at a disciplinary the disciplinary charges to Palmigiano and then hearing are probably not admissible for affirm asked him: "What happened here, Nick?" Pal ative use by the prosecution at a trial." Brief miglano's response was again to request the for Petitioners in No. 74--1187, pp. 4--5. Palmi presence of counsel, which had previously been giano, however, was told that anything he said denied. When the renewed request was de could be used against him at a criminal trial. nied, Palmigiano stated that he would remain ln any event. the uncertain warning required silent on the advice of counsel. The official by the prison ndes would hardly satisfy consti thereafter asked: "Do you intend to answer tutional requirements. See n. 8, lnfro. In this any questions for the board?" Consistent with respect, the Court's holding that the prisoner his earlier statement, Palmigiano replied that has no right to counsel exacerbates the difficul he did not. The Board excused him from the ty, for surely the advice of counsel is essential hearing room; he was called back within five in this complex area. See Maness v. Meyers, minutes and informed that he had been found 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 guilty and sentenced to 30 days' punitive segre- .(1975).
*29 96 SUPREME COURT REPORTER 425 U.S. 334 the Privilege Against Self-Incrimination in al provisions." Ratner, Consequences of Civil Litigation, 52 Va.L.Rev. 322 (1966). I Exercising the Privilege Against Self-In would have difficulty holding such an infer crimination, 24 U.Chi.L.Rev. 472, 484 ence impermissible in civil cases involving
(1957) (footnote omitted). only private parties. But I would hold that In a civil suit involving only private par compulsion violating the privilege is present ties, no party brings to the battle the awe in any proceeding, criminal or civil, where a some powers of the government, and there government official puts questions to an fore to permit an adverse inference to be individual with the knowledge that the an drawn from exercise of the privilege does swers might tend to incriminate him. See not implicate the policy considerations un Garner v. United States, 424 U.S. at 653, 96 derlying the privilege. But where the S.Ct. at 1181, 47 L.Ed.2d at 376; Sanitation government "deliberately seeks" the an Men v. Sanitation Comm'r, 392 U.S., at 284, swers to incriminatory questions, allowing 88 S.Ct., at 1919, 20 L.Ed.2d, at 1092. it to benefit from the exercise of the privi Such a distinction is mandated by one of lege aids, indeed encourages, governmental the fundamental purposes of the Fifth circumvention of our adversary system. In Amendment: to preserve our adversary contrast, an affirmance of the judgment in system of criminal justice by preventing the Palmigiano's case would further obedience government from circumventing that sys of the government to the commands of the tem by abusing its powers. Garner v. Unit Fifth Amendment. Cf. United States v. ed States, supra, 424 U.S. at 653, 96 S.Ct. at Karathanos, 531 F.2d 26, 35 (CA2 1976) 1182, 47 L.Ed.2d at 376. Only a few weeks (Oakes, J., concurring); Amsterdam, Per ago, we SP.id "That system is undermined spectives on the Fourth Amendment, 58 when a government deliberately seeks to Minn.L.Rev. 349 (1974). avoid the burdens of independent investiga tion by compelling self-incriminating disclo Nothing in this record suggests that the sures." Ibid. State does not use the disciplinary proce
"One of the most important functions dure as a means to gather evidence for of the privilege is to protect all persons, criminal prosecutions. On the contrary, whether suspected of crime or not, from Palmigiano was told that he might be pros abuse by the government of its powers of ecuted, which indicates that criminal pro investigation, arrest, trial and punish ceedings are brought in some instances. ment. It was not solicitude for persons And if the State does not intend to initiate accused of crime but the desire to main criminal proceedings, the Fifth Amendment tain the proper balance between govern- problem can be readily avoided simply by
.J!U ment and the persons governed thaurave granting immunity for any testimony given rise to the adoption of these constitution- at disciplinary hearings.8 8. Although my vie'w is that only transactional munity if he answers in response to the [judge's] order and under threat of contempt." immunity can remove the self-incrimination Maness v. Meyers, 419 U.S., at 474, 95 S.Ct., at problem, Piccirillo v. New York, 400 U.S. 548, 599, 42 L.Ed.2d, at 592 (concurring In result). 562, 91 S.Ct. 520, 527, 27 L.Ed.2d 596, 605 See Fowler v. Vincent, 366 F.Supp. 1224, 1228 (1971) (Brennan, J., dissenting), that view is
(S.D.N.Y.1973); Sands v. Wainwright, 357 not presently the law. See, e. g., Lefkowitz v. F.Supp. 1062, 1093 (M.D.Fla.1973). Although Turley, 414 U.S. 70, 84, 94 S.Ct. 316, 325, 38 an inmate would not be testifying in response L.Ed.2d 274, 285 (1973); Kastigar v. United to a court order, his answers in response to States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d questions of prison officials are nevertheless 212 (1972). compelled within the meaning of the Fifth Although Rhode Island prison officials are Amendment. Thus, there would be immunity not authorized by statute to grant immunity, for any statements given. The inmate must, my Brother White has suggested that a witness however, be informed of the existence of the who fails to persuade a judge that a prospec Immunity. As my Brother White said, "a wit tive answer is incriminatory "is nevertheless ness may not be required to answer a question protected by a constitutionally imposed use im- If there is some rational basis for believing that *30 BAXTER v. PALMIGIANO 425 U.S. 338 Cite u 96 S.Ct. 15111 ( 1971)
.J!.H
.JlV cence only if it would have been natural I would therefore affirm the judgment of under the circumstances to object to the the Court of Appeals in No. 74-1187 insofar assertion in question." Ibid. (emphasis as that court held that an inmate's silence supplied). That was not the case since may not be used against him in a prison Hale's silence was in response to notice that disciplinary proceeding. This would make he had a right to remain silent, and that unnecessary addressing the question wheth- any statements he made would be used er exercise of the privilege may be treated against him in court. These excerpts from as probative evidence of quilt. Since the Hale require the conclusion that Palmigi Court, however, indicates that invocation of ano's silence also had no probative force. the privilege is probative in these circum- Palmigiano was also advised that he had a stances, ante, at 1558-1559, I express my right to remain silent, that he might be disagreement. For we have repeatedly em- prosecuted, and that anything he said could phasized that such an inference has no be used against him in court. foundation. Indeed, the very cases relied Finally, Grunewald v. United States, 353 upon by the Court expose its error and U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), support the conclusion that Palmigiano's si- is particularly persuasive authority that lence could not be treated as probative. Palmigiano's silence is not probative. We
United States ex re/. Bilokumsky v. Tod, there considered whether one Halperin's ex- 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 ercise of the privilege was probative of (1923), quoted ante, at 1558, involved a de- guilt, and we concluded that his silence, in portation proceeding in which the deportee the circumstances, was "wholly consistent failed to deny that he was an alien. But he with innocence." Id., at 421, 77 S.Ct., at also failed to claim or attempt to prove that 982, 1 L.Ed.2d, at 952. "Halperin repeated he was a citizen. Alienage was not an ly insisted . . that he was innocent element of any crime, and his silence was and that he pleaded his Fifth Amendment
.J!n held probative of hiU,§.lienage. The infer- privilege solely on the advice of counsel." ence was plainly permissible since the de- Id., at 422, 77 S.Ct., at 983, 1 L.Ed.2d, at portee faced no possibility of incrimination, 953. Similarly, Palmigiano here maintained and there was therefore no implication of that he was innocent and that he claimed
the privilege on..J!he advice of counsel . .J.!u the privilege. But Palmigiano's predica- ment was that answers to the questions put Grunewald was a situation where "the to him by the prison officials could connect Fifth Amendment claim was made before a him with a crime. grand jury where Halperin was a com-
The Court also quotes part of a sentence pelled, and not a voluntary, witness; where from United States v. Hale, 422 U.S. 171, 95 he was not represented by counsel; where S.Ct. 2133, 45 L.Ed.2d 99 (1975). We said in he could summon no witnesses; and where Hale that "[i]n most circumstances silence is he had no opportunity to cross-examine wit so ambiguous that it is of little probative nesses testifying against him." Ibid. That force." Id., 419 U.S. at 176, 95 S.Ct. at was similar to Palmigiano's situation; in- 2136, 45 L.Ed.2d at 104. We also noted that mates have only a very limited right to call its probative force increases where a person witnesses, and an even more limited right "would be more likely than not to dispute of cross-examination, ante, at 1559. Grune an untrue accusation." Ibid. We empha- wald is thus most persuasive authority that sized that "[f]ailure to contest an assertion, Palmigiano's silence was not probative. however, is considered evidence of acquies- See Flint v. Mullen, 499 F.2d 100, 103
supra, 419 u.s .. at 473, 95 S.Ct., at 598, 42 it will incriminate him, at least without al that time being assured that neither it nor its fruits L.Ed.2d, at 592. (emphasis in original). may be used against him." Maness v. Meyers,
*31 96 SUPREME COURT REPORTER 425 U.S. 338 (CAl), cert. denied, 419 U.S. 1026, 95 S.Ct. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court said, People 505, 42 L.Ed.2d 301 (1974). [9]
v. Disbrow, 16 Cal.3d 101, 113-115, 127 Cal. To accord silence probative force in these Rptr. 360, 368, 545 P.2d 272, 280 (1976): cases overlooks the horn book teaching "that declare that Harris is not "We one of the basic functions of the privilege is persuasive authority in any state prosecu to protect innocent men." Grunewald v. tion in California. We pause United States, supra, 353 U.S. at 421, 77 . . . to reaffirm the independent nature S.Ct. at 982, 1 L.Ed.2d at 952 (emphasis in of the California Constitution and our re original). If this Court's insensitivity to the sponsibility to separately define and protect .J!.n Fiftti.lJ.mendment violation present in this the rights of California citizens despite con case portends still more erosion of the privi flicting decisions of the United States Su lege, state courts and legislatures will re preme Court interpreting the federal Con member that they remain free to afford stitution." [10] protections of our basic liberties as a matter of state 'Jaw. See Michigan t. Mosley, 423 .J1he fact that Palmigiano is a prison in- ..l!.40 U.S. 96, 120-121, 96 S.Ct. 321, 332, 46 mate cannot, of course, distinguish this case from the cases in the Garrity-Lefkowitz L.Ed.2d 313, 334· (1975) (Brennan, J., dis senting). Contrary to this Court's interpre line, since "a prisoner does not shed his tation of the Federal Constitution's privi basic constitutional rights at the prison gate." Wolff v. McDonnell, 418 U.S., at lege against compulsory self-incrimination in Harris v. New York, 401 U.S. 222, 91 581, 94 S.Ct. 2963, at 2987, 41 L.Ed.2d 935, at 965 (Marshall, J., dissenting); see Jack- S.Ct. 643, 28 L.Ed.2d 1 (1971), the California Supreme Court recently construed Califor son v. Bishop, 404 F.2d 571, 576 (CA8 1968) nia's constitutional prohibition to forbid use (Blackmun, J .). I must therefore view to- of an accused's inculpatory statement day's decision as another regrettable disre- obtained in violation of custodial interroga gard of Mr. Justice Frankfurter's admoni- tion safeguards announced in Miranda v. tion that our interpretation of the privilege 9. The other cases cited by the Court likewise L.Ed. 1054 (1926), remains law is subject to
do not support a holding that Palmigiano's si much doubt. See United States v. Hale, 422 lence should have probative force. No self-in U.S. 171, 175 n. 4, 95 S.Ct. 2133, 2136, 45 crimination problem was presented in Gaste L.Ed.2d 99, 104 (1975); United States v. Grune lum-Quinones v. Kennedy, 374 U.S. 469, 83 wald, 233 F.2d 556, 575 (CA2 1956}, (Frank, J., S.Ct. 1819, 10 L.Ed.2d 1013 (1963}. That case dissenting), rev'd, 353 U.S. 391, 77 S.Ct. 963, 1 involved a deportation proceeding, and the sub
L.Ed.2d 931 (1957). ject of that proceeding remained silent, but not for Fifth Amendment reasons. Moreover, the
10. Other state courts have also rejected Harris Court held that "deportation is a drastic sanc as a matter of state constitutional law. Com tion" and "must therefore be premised upon monwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 evidence more directly probative (1975); State v. Santiago, 53 Haw. 254, 492 than a mere inference based upon the alien's P.2d 657 (1971}. In addition, admission of in silence." Id., at 479, 83 S.Ct., at 1824, 10 criminating statements for impeachment pur L.Ed.2d, at 1020. We held that particular de poses can be prohibited by statute notwith portation order not based on substantial evi standing the decision in Harris. Butler v. dence. Id.. at 480, 83 S.Ct., at 1825, JO State, 493 S.W.2d 190 (Tex.Cr.App.1973}. See L.Ed.2d, at 1020. Similarly, the Court did not United States v. Jordan, 20 U.S.C.M.A. 614, 44 address any self-incrimination issue relevant to C.M.R. 44 (1971). Finally, it should be noted the instant case in Adamson v. California, 332 that there need not be a state constitutional U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947), counterpart to the Fi~h Amendment or a spe and Twining v. New Jersey, 211 U.S. 78, 29 cific statutory prohibition to reach this result; S.Ct. 14, 53 L.Ed. 97 (1908). Those cases were use of incriminating statements can be prohib based on the premise, overruled in Malloy v. ited by a state court as a matter of public Hogan, 378 U.S. l, 84 S.Ct. 1489, 12 L.Ed.2d policy in that State. See In re Pillo, 11 N.J. 8, 653 (1964), that the Fifth Amendment protec 93 A.2d 176 (1952); State v. Miller, 67 N.J. 229, tion against self-incrimination was not applica 245 n. I, 337 A.2d 36, 45 n. 1 (1975) (Clifford, ble to the States. Finally, whether Raffel v. J., concurring in part and dissenting in part). United States, 271 U.S. 494, 46 S.Ct. 566, 70 *32 425 U.S. 391 FISHER v. UNITED STATES Cite u 86 S.Ct. 1889 (1978) is not faithful to the Founding Fathers' session of taxpayers' attorneys. In one purpose when it does not reflect the teach- case, the United States District Court for ing of history: the Northern District of Texas granted en-
"This command of the Fifth Amendment forcement and the Court of Appeals for the . registers an important advance Fifth Circuit reversed the enforcement or ih the development of our liberty-'one der, 499 F.2d 444. In a second case, the of the great landmarks in man's struggle District Court for the Eastern District of to make himself civilized.' Time has not Pennsylvania granted enforcement, 352 shown that protection from the evils F.Supp. 731, and the Court of Appeals for against which this safeguard was directed the Third Circuit affirmed, 500 F.2d 683. is needless or unwarranted. This consti- Certiorari was granted to resolve the eon tutional protection must not be interpret- flict created. The Supreme Court, Mr. Jus ed in a hostile or niggardly spirit. Too tice White, held that taxpayers' Fifth many, even those who should be better Amendment privilege was not violated by advised, view this privilege as a shelter enforcement of documentary summons di for wrongdoers. They too readily assume reeted toward their attorneys, for produc that those who invoke it are either guilty tion of accountants' documents which had of crime or commit perjury in claiming been transferred to attorneys in connection the privilege. Such a view does scant with an Internal Revenue Service investiga honor to the patriots who sponsored the tion, whether or not the Amendment would Bill of Rights as a condition to acceptance have barred a subpoena directing taxpayers of the Constitution by the ratifying to produce documents while they were in States.'' Ullmann v. United States, 350 taxpayers' hands, and fact that attorneys U.S. 422, 426-427, 76 S.Ct. 497, 500, 100 were agents of taxpayers did not change L.Ed. 511, 518 (1956) (footnotes omitted). result; and that compliance with a sum-
mons directing taxpayers to produce ac countants' documents, which were not tax payers' "private papers," would involve no incriminating testimony within protection of Fifth Amendment, and thus such docu- ments were not, under theory of attorney client privilege, immune from production in hands of taxpayers' attorneys to whom they
425 U.S. 391, 48 L.Ed.2d 39 had been transferred in connection with Solomon FISHER et al., Petitioners, Internal Revenue Service investigation. v. Judgment of Court of Appeals for Fifth Circuit in No. 7~11 reversed; judg UNITED STATES et al. ment of Court of Appeals for Third Circuit UNITED STATES et al., Petitioners, in No. 74--18 affirmed. v. Mr. Justice Brennan concurred in the judgment and filed an opinion. C. D. KASMIR and Jerry A. Candy. Mr. Justice Marshall concurred in the Nos. 74-18, 74-611. judgment and filed an opinion. Argued Nov. 3, 1975. Decided April 21, 1976.
1. Witnesses ct=> 298 Enforcement of a summons to produce In two eases, enforcement actions were documents against a taxpayer's lawyer commenced by Government to compel pro would not "compel" taxpayer to do any thing and would not compel him to be a duction of accountants' documents in pos- *33 890 v.s. 377
BDDIOKS y, UNITED S'l'ATBS 967 Clte aa 88 B.Ct.1187 (11188) L <Jrbnlnal Law 41=889 should Improper employment of photo "°" include reasonable counsel fees as graphs by police may sometimes cause part of the costs to be assessed against witnesses to err in identifying criminals the respondents. As so modified, the
in that witness may have obtained only judgment of the Court of Appeals is brief glimpse of criminal or may have seen him under poor conditions; even if Affirmed. police subsequently follow most correct photographic identification procedures
Mr. Justice MARSHALL took no part and show witness pictures of number of in the consideration or decision of this individuals without indicating whom case. they suspect, there is some danger that
witness may make an incorrect identifi cation and this danger will be increased if police display to witness only picture of individual who generally resembles person he saw. 2. Criminal Law 41=339
The danger that initial identifica tion by photograph may result in con 880 .... rrt victions based on misidentification may Thomas Earl SDDIONS et al., Pe&ltlonen, be substantially lessened by course of Y. cross-examination at trial which exposes to jury the method's potential for error. UNITED STATES. No. SS. 8. Criminal Law €:::>889 Argued Jan. 15, 1968. The· Supreme Court is unwilling to Decided March 18, 1968. prohibit employment of method of initial identification by photograph, either in exercise of court's supervisory power or
The defendants were convicted of as a matter of constitutional require ment; instead, each case must be con armed robbery of federally insured sav ings and loan association. The United sidered on its own facts, and convictions States District Court for the Northern based on eyewitness identification at District of Illinois, Eastern Division, trial following pretrial identification by rendered judgment and they appealed. photograph will be set aside 'On that The United States Court of Appeals for ground only if photographic identifica the Seventh Circuit, 871 F.2d 296, af tion procedure was so impermissibly sug firmed in part and reversed in part, and gestive as to give rise to very substan tial likelihood of irreparable misidentifi certiorari was granted. The Supreme
cation. Court, Mr. Justice Harlan, held that tes timony given by defendant to meet
4. Constitutional Law ¢;::)2f18 standing requirements to raise objection Criminal Law 41=1189(1) that evidence is fruit of unlawful search Defendant's pretrial identification and seizure should not be admissible by means of photographs was not so un against him at trial on question of guilt necessarily suggestive and conducive to or innocence.
misidentification as to deny him due process or to require reversal of his con
Affirmed in part and reversed and viction, where serious felony had been remanded in parl committed, perpetrators were still at Mr. Justice Black and Mr. Justice large, inconclusive clues led to defendant, White dissented in part. it was essential for FBI agents swiftly *34 88 SUPREME OOURT REPORTER 890 17.S. 877 to determine whether they were on the of eyewitness identifications of defend right track, and there was little chance ant rendered it highly unlikely that non that the procedure utilized led to mis production of photographs caused him identification of defendant. any prejudice. Fed.Rules Crim.Proc.
rule 16, 18 U.S.C.A.; 18 U.S.C.A. § 8500. G. Criminal Law e-441 "Statement" in Jencks Act provid 9. Crlmlnal Law <P408(4), 1189(12) Where defendant moved to suppress ing that after witness has testified for as evidence, on ground of illegal search government in federal criminal prosecu and seizure, a suitcase containing in tion the government ·must, on request of defense, produce any statement of wit criminating evidence and, to establish his standing to so move, he admitted ness in possession of United States which relates to subject matter as to which ownership of suitcase, it waa reversible error to use this testimony against de witness has testified means a written fendant on issue of his guilt. U.S.C.A. statement made by the witness and signed or otherwise adopted or approved Const. Amend. 4. by him. 18 U .S.C.A. § 3500.
10. CrlmJnal Law €=>894.6(1) See publication Wordt1 nml PhrnRca In order to effectuate Fourth for other jucJiclnl con11tructione nnd Amendment's guarantee of freedom from tloflnition11. unreasonable searches and seizures, de fendants in federal prosecutions have the
6. Criminal Law e=:>62'U(2) right, upon motion and proof, to have The Jencks Act requires photo excluded from trial evidence secured by graphs to be produced if they constitute means of unlawful search and seizure. a part of a written statement. 18 U.S.
U.S.C.A.Const. Amend. 4. C.A. § 8500. 11. Criminal Lsw €=>89U(l) '1. Crbnlnal Law <P827.6(2) The rule excluding evidence secured Photographs were not part of state by means of unlawful search and seizure ments which were approved by witnesses is essential part of both Fourth and and therefore were not producible under Fourteenth Amendments. U .S.C.A. Jencks Act where the statements were Const. Amends. 4, 14. made on the day of the robbery and at time the FBI and police had no photo
12. Criminal Law €=>894.5(2) graphs of defendants and the first pic Rights assured by Fourth Amend tures were not acquired and shown to ment are personal rights, and may be witnesses until morning of following enforced by exclusion of evidence se day. 18 U.S.C.A. § 3500. cured by means of unlawful search and
seizure only at instance of one whose 8. Criminal Law ¢=>'41 own protection was infringed by search Refusal of district court to order and seizure. U.S.C.A.Const. Amend. 4. production of photograph of defendant was not abuse of discretion wher.e de 13. Criminal Law l'PS94JS(2) fense knew that photographs had played When possession of seized evidence role in identification process and there is itself an essential element of offense was no attempt to have pictures pro with which defendant is charged, gov ernment is precluded from denying that duced prior to trial under discovery and defendant has requisite possessory inter inspection rule, and when production of est to challenge admission of evidence as pictures was sought at trial the defense did not explain why they were needed having been secured by means of unlaw but simply argued that production was ful search and seizure. U.S.C.A.Const. required under Jencks Act, and strength Amend. 4. *35 SDDIONS v. UNITED STATES 390 U.S. 881
Cite a1 88 a.ct. 007 (1968) H. Criminal Law ~3HJS(2) covered that it belonged to a Mrs. Rey, Defendant need have no possessory sister-in-law of petitioner Simmons. interest in searched premises in order to She told the police that she had loaned have standing to object that evidence is the car for the afternoon to her brother, inadmissible as having been secured by William Andrews. means of unlawful search and seizure;
At about 5 :15 p. m. the same day, two it is sufficient that he be legitimately on FBI agents came to the house of Mrs. the premises when the search occurs. Mahon, Andrews' mother, about half a U.S.C.A.Const. Amend. 4. block from the place where the car was then parked.1 The agents had no war llS. Criminal Law ~408(4) Testimony given by defendant to rant, and at trial it was disputed wheth meet standing requirements to raise ob· er Mrs. Mahon gave them permission to jection that evidence is fruit of unlaw search the house. They did search, and in the basement they found two suit ful search an'd seizure should not be ad missible against him at trial on question cases, of which Mrs. Mahon disclaimed of guilt or innocence. U.S.C.A.Const. any knowledge. One suitcase contained, Amends. 4, 5. among other items, a gun holster, a sack
similar to the one used in the robbery, and several coin cards and bill wrappers from the bank which had been robbed.
379 Raymond J. Smith for petitioners. The following morning the FBI ob tained from another of Andrews' sisters Sol. Gen. Erwin N. Griswold, for re some snapshots of Andrews and of pe spondent. titioner Simmons, who was said by the Mr. Justice HARLAN delivered the sister to have been with Andrews the opinion of the Court. previous afternoon. These snapshot.a This case presents issues arising out were shown to the five bank employees of the petitioners' trial and conviction who had witnessed the robbery. Each in the United States District Court for witness identified pictures of Simmons the Northern District of Illinois for the as representing one of the robbers. A armed robbery of a federally insured week or two later, three of these em savings and loan association. ployees identified photographs 381 The evidence at trial showed that at of peti- about 1 :45 p. m. tioner Garrett as depicting the other rob 380 ber, the other two witnesses stating that on February 27, 1964, they did not have a clear view of the sec two men entered a Chicago savings and ond robber. loan association. One of them pointed a gun at a teller and ordered her to put The petitioners, together with Wil money into a sack which the gunman liam Andrews, subsequently were in supplied. The men remained in the bank dicted and tried for the robbery, as in about five minutes. After they left, .a dicated. Just prior to the trial, Garrett bank employee rushed to the street and moved to suppress the Government's ex saw one of the men sitting on the pas hibit consisting of the suitcase co:qtain senger side of a departing white 1960 ing the incriminating items. In order Thunderbird automobile with a large to establish his standing so to move, scrape on the right door. Within an Garrett testified that. although he could hour police located in the vicinity a car not identify the suitcase with certainty, matching this description. They dis- it was similar to one he had owned, and I. Mrs. Mahon also testified that at about her houae. However, these men were
8:80 p. m. the samo dny si:ic men with never identifiell, and they apparentl;r took runs :forced their way into and ransacked nothing. *36 890 v.s. 881
88 SuPR.EIO OOUB.T BEPOB'J.'BB. that he was the owner of clothing found I. inside the suitcase. The District Court
The facts as to the identification claim denied the motion to suppress. Garrett's are these. As has been noted previousJy, testimony at the "suppression" bearing FBI agents on the day following the rob was admitted against him at trial. bery obtained from Andrews' sister a number of snapshots of Andrews and
During the trial, aH five bank em Simmons. There seem to have been at ployee witnesses identified Simmons as least six of these pictures, consisting one of the robbers. Three of them iden mostly of group photographs of Andrews, tified Garrett as the second robber, the Simmons, and others. Later the same other two testifying that they did not get day, these were shown to the five bank a good look at the second robber. The employees who had witnessed the robbery District Court denied the petitioners' re at their place of work, the photographs quest under 18 U.S.C. § 8500 (the so being exhibited to each employee sepa called Jencks Act) for production of the rately. Each of the five employees iden photographs which had been shown to tified Simmons from the photographs. the witnesses before trial. At later dates, some of these witnesses The jury found Simmons and Garrett, were again interviewed by the FBI and as well as Andrews, guilty as charged. shown indeterminate numbers of pic On appeal, the Court of Appeals for the tures. Again, all identified Simmons. Seventh Circuit affirmed as to Sim· At trial, the Government did not intro duce any of the photographs, but relied mons and Garrett, but reversed the con viction of Andrews on the &"round that upon in-court identification by the five there was iµsufficient evidence to con eyewitnesses, each of whom swore that nect him with the robbery. 371 F.2d Simmons was one of the robbers. 296.
In support of his argument, Simmons Jooke to last Term's "lineup" decisions- We granted certiorari as to Simmons and Garrett, 388 U.S. 906, 87 S.Ct. 2108, United States v. Wade, 388 U.S. 218, 87 18 L.Ed.2d 1345, to consider the follow S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert ing claims. First, Simmons asserts that v. State of California, 888 U.S. 263, 87 his pretrial identification (by means of S.Ct. 1951, 18 L.Ed.2d 1178-in which photographs was in the circumstances so this Court first departed from the rule unnecessarily suggestive and conducive to that the manner of an extra-judicial iden· misidentification as to deny him due tification affects only the weight, not the process of law, or at least to require re admissibility, of identification testimony versal of his conviction in the exercise at trial. The rationale of those cases was that an of our supervisory power
383
3U
over the lower accused is entitled to counsel at federal courts. Second, both petitioners any "critical stage of the prosecution," and that a post-indictment lineup is such contend that the District Court erred in a "critical stage." See SSS U.S., at 286- refusing defense requests for production
237, 87 S.Ct., at 1987-1938. Simmons, under 18 U.S.C. § 3500 of the pictures of however, does not contend that he was the petitioners which were shown to eye entitled to counsel at the time the pic witnesses prior to trial. Third, Garrett tures were shown to the witnesses. urges that his constitutional rights were Rather, he asserts simply that in the cir violated when testimony given by him in cumstances the identification procedure support of his "suppression" motion was was so unduly prejudicial as fatally to admitted against him at trial. For rea taint his conviction. This is a claim sons which follow, we affirm the judg which must be evaluated in light of the ment of the Court of Appeals as to Sim· totality of surrounding circumstances. mons, but reverse as to Garrett. See Stovall v. Denno, 388 U.S. 298, at 802, *37 390 v.s. 885 971
SIM140NS v. UNITED STATES cue aa 88 e.ct. 967 (l ll68) 87 S.Ct. 1967, at 1972, 18 L.Ed.2d 1199; convictions based on misidentification Palmer v. Peyton, 4 Cir., 369 F.2d 199. may be substantially lessened by a course Viewed in that context, we find the claim of cross-examination at trial which ex
poses to the jury the method's potential untenabl~. for error. We are unwilling to prohibit [l] It must be recognized that im its employment, either in the exercise of proper employment of photographs by our supervisory power or, still lees, as a police may sometimes cause witnesses to matter of constitutional requirement. err in identifying criminals. A witness Instead, we hold that each case must be may have obtained only a brief glimpse considered on its own facts, and that con of a criminal, or may have seen him un victions based on eyewitness identifica der poor conditions. Even if the police tion at trial following a pretrial identifi subsequently follow the moat correct cation by photograph will be set aside on photographic identification procedures that ground only if the photographic and show him the pictures of a number identification procedure was so irnper of individuals without indicating whom miesibly suggestive as to give rise to a they suspect, there is some dar..ger that very substantial likelihood of irreparable the witness may make an incorrect iden misidentification. This standard accords tification. This danger will be increased with our resolution of a similar issue in if the police display to the witness only Stovall v. Denno, 388 U.S. 293, 801-302, the picture of a single individual who 87 S.Ct. 1967, 1972-1978, and with deci generally resembles the person he saw, sions of other courts on the question of or if they show him the pictures of sev identification by photograph. [11] eral persons among which the photograph of a single such individual recurs or is in
[ 4) Applying the standard to this some way emphasized. [2] The chance of case, we conclude that petitioner Sim misidentification is also heightened if the mons' claim on this score must fail. In police indicate to the witness that they the first place, it is not suggested that have other evidence that one of the !)er it was unnecessary for the FBI to resort sons pictured committed the crime. [3] Re to photographic identification in this in gardless of how the initial misidentifica stance. A serious felony had been com tion comes about, the witness thereafter mitted. The perpetrators were still at is apt to retain in his memory the image large. The inconclusive clues which law of the photograph rather than of the per enforcement officials possessed led to son actually 385 3IK Andrews and Simmons. It was essential seen, reducing the trust for the FBI agents swiftly to determine worthiness of subsequent lineup or court whether they were on the right track, so room identification.' that they could properly deploy their forces in Chicago and, if necessary, alert
(2, 3] Despite the hazards of initial officials in other cities. The justifica identification by photograph, this pro tion for this method of procedure was cedure has been used widely and effec hardly less compelling than that which we tively in criminal law enforcement, from found to justify the "one-man lineup" in the standpoint both of apprehending of Stovall v. Denno, supra. fenders and of sparing innocent suspects the ignominy of arrest by allowing eye In the second place, there was in the witnesses to exonerate them through circumstances of this case little chance scrutiny of photographs. The danger that the procedure utilized led to misiden that use of the technique may result in tification of Simmons. The robbery took 2. See P. Wall, Eye-Wltneee Identification 4. See id., at 68-70.
in Criminal CQBe& '14-77 (l!Km). s. See, e. g., People v. Evnne, 89 Cal.2cl 3. See id., at 82-88. 242, 246 p .2d 636. *38 88 SUPREME OOUBT BEPOBTEB 890 tJ';S, 885 place in the afternoon in a well-lighted such as to deny Simmons due process of bank. The robbers wore no masks. Five Jaw or to call for reversal under our su· bank employees had been able to see the pervisory authority. robber later identified as Simmons for periods ranging up to five minutes.
II.
Those witnesses were shown the photo graphs only a day later, while their mem [5] It is next contended, by both pe ories were still fresh. At least six photo titioners, that in any event the District graphs were displayed to each witness. Court erred in refusing a defense Apparently, these consisted primarily of request that the photographs shown to group photographs, with Simmons and the witnesses prior to trial be turned over Andrews each appearing several times to the defense for purposes of cross-exam in the series. Each witness was alone ination. This claim to production is when he or she saw the photographs. based on 18 U.S.C. § 3600, the so-called There is no evidence to indicate that the Jencks Act. That Act, passed in response witnesses were told anything about the to this Court's decision in Jencks v. progress of the investigation, or that the United States, 863 U.S. 657, 77 S.Ct. FBI agents in any other way suggested 1007, 1 L.Ed.2d 1103, provides that after which persons in the pictures were under a witness has testified for the Govern suspicion. ment in a federal criminal prosecution
the Government must, on request of the Under these conditions, all five eyewit defense, produce any "statement * * * nes.ses identified Simmons as one of the of the witness in the possession of the robbers. None identified Andrews, who United States which relates to the sub apparently was as prominent in the pho ject matter as to which the witness has tographs as Simmons. These initial iden testified." For the Act's purposes, as tifications were confirmed by all five wit they relate to this case, a "statement" is nesses in subsequent viewings of photo defined as "a written statement made by graphs and at trial, where each witness said witness and signed or otherwise identified Simmons in person. Notwith adopted or approved by him * * * ." standing cross-examination, none of the
387 witnesses displayed any doubt about their Written statements of this kind were respective identifications of Simmons. taken from all five eyewitnesses by the Taken together, these circumstances FBI on the day of the robbery. Appar leave little room for doubt that the iden ently none were taken thereafter. When tification of Simmons was correct, even these statements were produced by the though the identification procedure em Government at trial pursuant to § 3500, ployed may have in some the defense also claimed the right to look 388 at the photographs "under 3500." The respects fallen District Judge denied these requests. short of the ideate We hold that in the factual surroundings of this case the (6, 7] The petitioners' theory seems identification procedure used was not to be that the photographs were incor- 6. The reliability of the ldentlficntlon pro lnnl Cll888 83 (1961!) ; Williams, Iden·
cedurG could hnve boen increa11ed by al tlficntion Pnrndes, [19MJ Crim.L.Rev. lowing only ono or two of th11 five eye 525, ()31. Aleo, it probably would hove w:ltne1111ea to view the picturc11 of Sim been preferable for the witneaBe.B to hove mons. If thus Jdentlfled, Simmons could been shown more th11n six ennpahots, for Inter hnve been displ11yed to the other those snnpshota to hnve pictured n gront oyewitneseee in n lineup, thus 11ermittlng er number of indlvldunle, nnd for there the photographic ldentificotlon to be sup to b11ve been proportlon11lly fewer p·c plemented by n corporeal Identification, turee of Simmons. See Wnll, euprn, nt which ls normolly more nccurnte. See P. 74--82; Williams, suprn, nt tsSO. Wall, Eye· WitncSB ldentificotion In Crim-
*39 890 U.S. 889 SIMMONS v. tJNI'l'ED STATES Cite as 88 S.Ct. 967 (1968) porated in the written statements of the witnesses. However, he indicated that witnesses, and that they therefore had to the Government was wiUing to furnish be produced under § 3500. The legisla all of the pictures, if they could be found. tive history of the Jencks Act does con The District Court, referring to the fact firm that photographs must be produced that production of the photographs was if they constitute a part of a written not required under § 8500, stated that statement. [1] However, the record in this it would not stop the trial in order to case does not bear out the petitioners' have the pictures made available. claim that the pictures involved here
Although the pictures might have been were part of the statements which were of some assistance to the defense, and approved by the witnesses and, therefore, although it doubtless would have been producible under § 8500. It appears that preferable for the Government to have all such statements were made on the day labeled the pictures shown to each wit of the robbery. At that time, the FBI ness and kept them available for trial,s and police had no pictures of the peti we hold that in the circumstances the tioners. The first pictures were not ac refusal of the District Court to order quired and shown to the witnesses until their production did not amount to an the morning of the following day. abuse of discretion, at least as to peti Hence, they could not possibly have been tioner Simmons.& The defense surely a part of the statements made and ap knew that photographs had played a role proved by the witnesses the day of the in the identification process. Yet there robbery. was no attempt to have the pictures pro [8] The petitioners seem also to sug duced prior to trial pursuant to Fed. gest that, quite apart from § 3500, the Rule Crim.Proc. 16. When production District Court's refusal of their request of the pictures was sought at trial, the for the photographs amounted to an defense did not explain why they were abuse of discretion. The photographs
3119 needed, but simply argued that produc were not referred to by the Government tion was required under § 3500. More in its ease-in~hief. They were first ask over, the strength of the eyewitness ed for by the defense after the direct examination of the first eyewitness, identifications of Simmons renders it
3118 highly unlikely that nonproduction of the on photographs caused him any prejudice. the second day of the trial. When the defense requested the pictures, counsel
III.
for the Government noted that there were a "multitude" of pictures and stat
[9-11] Finally, it is contended that ed that it might be difficult to identify it was reversible error to allow the Gov ernment to use against Garrett on the those which were shown to particuJ.ar 7. In the discussion of the bill on the floor 9. Gnrrott woe oleo initially identified from
of the Senate, Senntor O'Mnhoney, spon· photographs, but nt n Inter dnte thon sor of the bill in the Senate, stnted thnt Simmona. He was ident'fied by fewer photographs per [86] were not requlre1l to witneaees tbnn was Simmollll, ond even those witnesses hod less opportunity to be produced under the blll, but thnt "[i]f 1ee him during the robbery tbon they did the pictures I1nve anything to do with the Simmons. The record ta opaque na to etntemont of the wltneaa • • • of tho number nnd type of pbotogrnphe of c:mrse thnt would be port of it • • •." Garrett which were shown to these wit· 103 Cong.Rec. 16489.
uesses, and QB to the clrcometancos of the ahowlnga. However, it ie unnecea· 8. See P. Wnll, Eye-Witness ldentlficntion 1dr7 to decide whether Garrett w111 prej in Orlmtnnl Ooee11 84 (196G) ; Willlnms, udiced by the District Court's faUure to Identificntion Parnde1 [1] [19M] Crim.L.
order production of the pictures at trial, Rev.~~. ~30. elnce we ore reversing Garrett's convic tion on other grounds. *40 390 U.S. 889 88 SUPREME COURT REPORTER searched premises.11 In part to avoid
issue of guilt the testimony given by him upon his unsuccessful motion to sup having to resolve the issue presented by press as evidence the suitcase seized this case, we relaxed those etanding re quirements in two alternative ways in from Mrs. Mahon's basement and its contents. That testimony established Jones v. United States, supra. First, that Garrett was the owner of the suit we held that when, as in Jones, posses case.H sion of the seized evidence is itself an
essential element of the offense with In order to effectuate the Fourth which the defendant is charged, the Gov Amendment's guarantee of freedom from ernment is precluded from denying that unreasonable searches and seizures, this the defendant hae the requisite posses Court long ago conferred upon defend sory interest to challenge the admission ants in federal prosecutions the right, of the evidence. Second, we held alterna upon motion and proof, to have excluded tively that the defendant need have no from trial evidence which had been se possessory interest in the searched prem cured by means of an unlawful search ises in order to have standing; it is and seizure. Weeks v. United States, sufficient that he be legitimately on 232 U.S. 883, 34 S.Ct. 341, 58 L.Ed. 652. those premises when the search occurs. More recently, this Court has held that Throughout thie case, petitioner Garrett "the exclusionary rule is an essential has justifiably, and without challenge part of both the Fourth and Fourteenth from the Government, proceeded on the Amendments * * *." Mapp v. Ohio, assumption that the standing require 367 U.$. 643, 657, 81 S.Ct. 1684, 1693, ments must be satisfied. [12] On that 6 L.Ed.2d 1081. premise, he contends that testimony giv en by a defendant to meet such require
[12-15] However, we have also held ments should not be admissible against that rights assured by the Fourth him at trial on the question of guilt or Amendment are personal rights, and that innocence. We agree. they may be enforced by exclusion of evidence only at the instance of one Under the standing rules set out in whose own protection was infringed by Jones, there will be occasions, even in the search and seizure. See, e. g., Jones prosecutions for nonpossessory offenses, v. United States, 362 U.S. 257, 260-261, when a defendant's testimony will be 80 S.Ct. 725, 731, 4 L.Ed.2d 697. At needed to establish standing. This case one time a defendant who wished to as serves as an example. sert a Fourth Amendment objection was 391
Garrett evidently required to show that he was the owner was not in Mrs. Mahon's house at the or possessor of time his suitcase was seized from her 390 the seized property or basement. The only, or at least the most that he had a possessory interest in the natural, way in which he could found 10. Although petitioner Simmons objected 12. It hoe been suggested that the adoption
at trial to the admission of Garrett's tes of [11] "police-deterrent" rationale for the timony, the claim wae not pressed on hte exclusionary rule, see Llnklettor v. Walk behalf here. Garrett did not mention er, 381 U.S. 618, 85 S.Ct. 1781, 14 L.Ed. Simmons in his testimony, and the Dis 2d 601, Jogicolly dictates that a defend trict Court instructed tho jury to consid ant should be nblo to object to the admis er the testimony only with reforence to sion ngninet him of any unconstitution Garrett. ally seized evidence. Seo Comment,
Standing to Object t.o an Unreasonable 11. See, e. g., Jones v. United States, 362 Search and Seizure, 34 U.Chi.L.Rev. 342 U.S. 2157, at 262, 80 S.Ct. 7215, at 731; (1967) ; Note, Standing to Object to an Edwards, Standing t.o Supprc1111 Unrea Unlawful Sel\rch and Seizure, 196G Wuh. sonably Seized Evidence, 47 Nw.U.L.Rev. U.L.Q. 488. However, that argument Is 471 (1~2). not advanced in this case, and we do not
consider lt. *41 890 U.S. 393 SIMMONS v. UNITED STATES 975 Cite ae 88 B.Ct. 967 (1968) standing to object to the admission of possessory crimes, like Garrett, are en the suitcase was to testify that he was titled to be relieved its owner.u Thus, his testimony is to [3911] be regarded as an integral part of his of their dilemma Fourth Amendment exclusion cJaim. entirely,llS The lower courts which have Under the rule laid down by the courts considered the matter, both before and below, he could give that testimony only after JoneB, have with two exceptions by assuming the risk that the testimony agreed with the holdings of the courts would later be admitted against him at below that the defendant's testimony trial. Testimony of this kind, which may be admitted when, as here, the mo links a defendant to evidence which the tion to suppress has failed. [16] The rea Government considers important enough soning of some of these courts would to seize and to seek to have admitted at seem to suggest that the testimony trial, must often be highly prejudicial would be admissible even if the motion to a defendant. This case again serves to suppress had succeeded, [17] but the only as an example, for Garrett's admitted court which has actually decided that ownership of a suitcase which only a few question held that when the motion to hours after the robbery was found to suppress succeeds the testimony given contain money wrappers taken from the in support if it is excludable as a "fruit" victimized bank was undoubtedly a of the unlawful search. [18] The rationale strong piece of evidence against him. for admitting the testimony when the Without his testimony, the Government motion fails has been that the testimony might have found it hard to prove that is voluntarily given and relevant, and he was the owner of the suitcase.1' that it is therefore entitled to admission
on the same basis as any other prior The dilemma faced by defendants like testimony or admission of a party.19 Garrett is most extreme in prosecutions It seems obvious that a defendant who for possessory crimes, for then the tes knows that his testimony may be admis timony required for standing itself sible against him at trial will sometimes proves an element of the offense. We be deterred from presenting the testi eliminated that Robson's choice in Jones monial proof of standing necessary to v. United States, supra, by relaxing the assert a Fourth Amendment standing requirements. This Court has [393] never considered squarely the question claim. The whether defendants charged with non- likelihood of inhibition is greatest when 13. The record shows tbot Mrs. Mnhon, the Cir., 60 F.2d 410; Fowler v. United Stntes, 10 Cir., 239 F.2d 93: Monroe v.
owner of the premises from wh!ch the United Stntee, 5 Cir., 320 F.211 277; suitcase woe taken, dieclnimed oil know!· edge of its presence there ond of its own· United States v. Tnylor, 4 Cir., 326 F.211 ership. 277 ; U ni tcfl Stutes v. Alrclo, 7 Cir., 380
F .211 108: Unl tctl Stn tcs v. Ll ntlsly, D .O., 14. The Government concedes that there 7 F .211 247, rcv'd on othe r grounds , 12 F . were no identifying morks on the outside 211 771. Cont rn. see B nll oy v. Uni ted of the suitcase. See Brief for the United Stntce, 128 U.S.App.D.C. 354, 889 F.2d States at 33. 305; U nited States v. Lewie, D.C., 270 15. In .Jones, the only reference to the F.Supp. 807, 810, n. 1 (dictum). subject wns a etntement thnt "[The de.· 17. See, e. g., Heller v. United Stntee, 7 fen<lont] l1ll.ll been faced • • • with Cir., 1')7 F.2d 627: Monroe v. United the chance thot tbe allegotiona made on Stntee, 5 Cir., 320 F.2d 277. the motion to suppreBfl mny be use<l against him ot the trial, although thnt 18. Sao Snfa rlk v. United Stnte!I, 8 Cir., 62 they may Is by no means on inevitable Jl'.2cl 892, rehonring tleniecJ, 68 F .2c1 369. Acconl, Fowl er v. Unit ed Stnte11, 10 Cir., holding • • •." 362 U.S., ot 262, 80 239 F .21! 03 (<llctum) ; cf. F nbrl v. Unit S.Ot., ot 781.
ed States, 9 Cir., 24 F.211 185. 18. See Heller v. United States, 7 Oir., ll7 F.2d 627; Kaiser v. United Statoe, 8 19. Soe cneee cited in n. 16, eupro. *42 890 v.s. 398 976 88 SUPREME OOUltT REPORTER the sense that if he ... refrains from testi the testimony is known to be admissible regardless of the outcome of the motion to suppress. But even in jurisdictions
fying he will have to fore10 a benefit, where the admissibility of the testimony and testimony is not always involuntary depends upon the outcome of the motion, as a matter of law simply because it is there will be a deterrent effect in those given to obtain a benefit.II However, marginal cases in which it cannot be es the assumption which underlies this rea timated with confidence whether the rr.o sonin1 is that the defendant has a tion will succeed. Since search-and-seiz choice: he may refuse to testify and ure claims depend heavily upon their in give up the benefit." When this as dividual facts, 110 and since the law of sumption is applied to a situation in search and seizure is in a state of flux,21 which the "benefit" to be gained is that the incidence of such marginal cases can afforded by another provision of the not be said to be negligible. In such Bill of Rights, an undeniable tension is circumstances, a defendant with a sub created. Thus, in this case Garrett was stantial claim for the exclusion of evi obliged either to give up what he be dence may conclude that the admission of lieved, with advice of counsel, to be a the evidence, together with the Govern valid Fourth Amendment claim or, in ment's proof linking it to him, is pref legal effect, to waive his Fifth Amend erable to risking the admission of hie ment privilege . against self-incrimina own testimony connecting himself with tion. In these circumstances, we find it the seized evidence. intolerable that one constitutional right The rule adopted by the courts below should have to be surrendered in order does not merely impose upon a defend to assert another. We therefore hold ant a condition which may deter him that when a defendant testifies in sup port of a motion to suppress evidence on from asserting a Fourth Amendment ob jection-it imposes a condition of a kind Fourth Amendment grounds, his testi mony may not thereafter be admitted to which this Court has always been against him at trial on the issue of guilt peculiarly sensitive. For a defendant who wishes to establish standing must unless he makes no objection. do so at the risk that the words which For the foregoing reasons, we affirm he utters may later be used to incrim the judgment of the Court of Appeals so far as it relates to petitioner Sim inate him. Those courts which have al mons. We reverse the judgment with re lowed the admission of testimony given spect to petitioner Garrett, and as to to establish standing have reasoned that
him remand the case to the Court of there is no violation of the Fifth Amend Appeals for further proceedings consis ment's Self-Incrimination Clause because tent with this opinion. the testimony was voluntary.21 As an It is so ordered. abstract matter, this may well be true. A defendant is "compelled" to testify in Affirmed in part and reversed and support of a motion to suppress only in remanded in part. 20. See, e. g., United States v. Rnbinowiu, of Maryland, 859 U.S. 360, 79 S.Ct. 804,
889 U.S. ~. 63, 70 S.Ct. 430, 484, 94 L. 3 L.Ed.2d 877. Ed. 658.
22. See, e. g., Heller v. United States, 7 Cir., ft7 F.2d 627. 21. E. g., compare Warden, Md. Peniten· 23. For eHmple, testimony civen for his tJory v. Hayden, 887 U.S. 294, 87 S.Ct. own benefit by a plaintiff in a civil suit 1642, 18 L.Ed.2<l 782 w:lth Gouled v. is admissible agnlnst him in a subsequent Unlte<l States, 2155 U.S. 298, 41 S.Ct. criminal prosecution. See 4 Wlgmore, 261, 6IS L.E<J. 647; compare Camara v. Evidence § 1066 (3d ed. 1940) ; 8 id., I Municipal Court of City and County of 2276 (HcNa111hton rev. 1961). Son Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 93:>, with Fronk v. State 24. Ibid.
*43 SIMMONS v. UNITED STATES 890 U.S. 396 977 Cite as 88 8.Ct. 967 (1068) Mr. Justice MARSHALL took no part sion vests this Court with any such wide in the consideration or decision of this ranging, uncontrollable power. A trial case. according to due process of law is a trial
according to the "law of the land"-the 395 law as enacted by the Constitution or the Mr. Justice BLACK, concurring in part Legislative Branch of Government, and and dissenting in part. not "laws" formulated by the courts ac cording to
I concur in affirmance of the convic 398 tion of Simmons but dissent from re the "totality of the circum versal of Garrett's conviction. I shall stances." Simmons' due process claim first discuss Simmons' case. here should be denied because it is frivo lous.* For these reasons I vote to affirm
1. Simmons' chief claim is that his Simmons' conviction. [1] 'pretrial identification [was] so unnec 2. I agree with the Court, in part for essarily suggestive and conducive to ir reasons it assigns, that the District Court reparable mistaken identification, that he did not commit error in declining to per was denied due process of law." The mit the photographs used to be turned Court rejects this contention. I agree over to the defense for purposes of cross with the Court but for quite different examination. reasons. The Court's opinion rests on a lengthy discussion of inferences that the 3. The Court makes new law in re jury could have drawn from the evidence versing Garrett's conviction on the of identifying witnesses. A mere sum ground that it was error to allow the Gov ernment to use against him testimony he mary reading of the evidence as outlined by this Court shows that its discussion had given upon his unsuccessful motion is concerned with the weight of the testi to suppress evidence allegedly seized in mony given by the identifying witnesses. violation of the Fourth Amendment. The The weight of the evidence, however, is testimony used was Garrett's statement in the suppression hearing that he was not a question for the Court but for the jury, and does not raise a due process the owner of a suitcase which contained issue. The due process question raised money wrappers taken from the bank by Simmons is, and should be held to that was robbed. The Court is certainly be, frivolous. The identifying witnesses guilty of no overstatement in saying that were all present in the bank when it was this "was undoubtedly a strong piece of evidence against [Garrett]." Ante, at robbed and all saw the robbers. The due 975. In fact, one might go further and process contention revolves around the say that this testimony, along with the circumstances under which these wit nesses identified pictures of the robbers statements of the eyewitnesses against shown to them, and these circumstances him, showed beyond all question that are relevant only to the weight the Garrett was one of the bank robbers. The identification was entitled to be giv question then is whether the Government en. The Court, however, considers is barred from offering a truthful state Simmons' contention on the premise ment made by a defendant at a suppres that a denial of due process could sion hearing in order to prevent the de fendant from winning an acquittal on be found in the "totality of circum the false premiEe that he is not the owner stances" of the picture identification. I do not believe the Due Process of the property he has already sworn that Clause or any other constitutional provi- he owns.. My answer to this question is • Although Simmons' "question presented" look to the Constitution in v11in, I think, to find n "supervisory power" In this
rniee no each contention, the Court de clines to use Its "supervisory power" to Court to reverse cases like this on such hold Simmons' rights were violated by n ground. the identification methods. One must *44 88 SUPREME COURT REPORTER 890 11.S. 896
"No." The Court's answer is "Yes" on involuntary. See, Shotwell the premise that "a defendant who knows
898 Mfg. Co. v. that his testimony may be admissible United States, 871 U.S. 841, 367, 83 S.Ct. against him at trial will sometimes 448, 463, 9 L.Ed.2d 857 (1968) (dissent 397 be de ing opinion). The reason why the Fifth terred from presenting the testimonial Amendment poses no bar to acceptance of proof of standing necessary to assert a Garrett's testimony is not, therefore, that Fourth Amendment claim." Ante, at a promise of' benefit is not generally fa 975. tal. Rather, the answer is that the priv
ilege against self-incrimination has al For the Court, though not for me, the ways been considered a privilege that can question seems to be whether the disad be waived, and the validity of the waiver vantages associated with deterring a de is, of course, not undermined by the in fendant from testifying on a motion to evitable fact that by testifying, a defend suppress are significant enough to off ant can obtain the "benefit" of a chance set the advantages of permitting the Gov to help his own case by the testimony he ernment to use such testimony when rele gives. When Garrett took the stand at vant and probative to help convict the the suppression hearing, he validly sur defendant of a crime. The Court itself rendered his privilege with respect to the concedes, however, that the deterrent ef statements he actually made at that time, fect on which it relies comes into play, at and since these statements were therefore most, only in "marginal cases" in which not "compelled," they could be used the defendant cannot estimate whether against him for any subsequent purpose. the motion to suppress will succeed. Ante, at 976. The value of permitting The consequence of the Court's hold the Government to use such testimony is, ing, it seems to me, is that defendants are of course, so obvious that it is usually encouraged to come into court, either in left unstated, but it should not for that person or through other witnesses, and reason be ignored. The standard of swear falsely that they do not own prop proof necessary to convict in a criminal erty, knowing at the very moment they case is high, and quite properly so, but do so that they have already sworn pre for this reason highly probative evidence cisely the opposite in a prior court pro such as that involved here should not ceeding. This is but to permit lawless lightly be held inadmissible. For me the people to play ducks and drakes with the importance of bringing guilty criminals basic principles of the administration of to book is a far more crucial considera criminal law. tion than the desirability of giving de
There is certainly no language in the fendants every possible assistance in Fourth Amendment which gives support their attempts to invoke an evidentiary to any such device to hobble law enforce rule which itself can result in the exclu ment in this country. While our Consti sion of highly relevant evidence. tution does provide procedural safe This leaves for me only the possible guards to protect defendants from arbi contention that Garrett's testimony was trary convictions, that governmental inadmissible under the Fifth Amendment charter holds out no promises to stultify because it was compelled. Of course, I
justice by erecting barriers to the admis could never accept the Court's statement sibility of relevant evidence voluntarily that "testimony is not always involuntary given in a court of justice. Under the as a matter of law simply because it is first principles of ethics and morality a given to obtain a benefit." Ante, at 976. defendant who secures a court order by No matter what Professor Wigmore may telling the truth should not be allowed to have thought about the subject, it has seek a court advantage later based on a always been clear to me that any threat premise of harm or promise of benefit is suffi
399 cient to render a defendant's statement directly opposite to his prior *45 BIGGERS v. STATE or TENNESSEE 890 'U.S. 405 979 Clt.e aa 88 s.ct. 979 (1968) solemn judicial oath. This Court should used at time of rape, and who was there not lend the prestige of its high name to after identified by complaining witness such a justice-defeating stratagem. I based upon his size, voice, skin texture would affirm Garrett's conviction. and hair was affirmed by an equally
divided court. Mr. Justice WHITE, concurring in part and dissenting in part. I concur in Parts I and II of the Michael Meltsner, New York City, for Court's opinion but dissent from the petitioner. reversal of Garrett's conviction substan Thomas E. Fox, Nashville, Tenn., for tially for the reasons given by Mr. Jus respondent. tice BLACK in hie separate opinion.
PER CURIAM.
The judgment below is affirmed by an
equally divided Court. Mr. Justice MARSHALL took no part 890 v.s. 40I in the consideration or decision of this Archie Nathaniel BIGGEBS, Petitioner, case. v. STATE OF TENNESSEE. Mr. Justice DOUGLAS, dissenting.t No. 28'1. Petitioner was indicted for a rape com Argued Jan. 15, 1968. mitted when he was 16 years old, was Decided March 18, 1968. convicted, and after a trial by a jury sen tenced to 20 years, first to a juvenile Rehearing Denied April 22, 1968. facility and later to prison. The Su See 390 U.S. 1037, 88 S.Ct. 1401. preme Court of Tennessee affirmed ">5 the Defendant was convicted in the judgment of conviction. Biggers v. Criminal Court of Davidson County, Ten St.ate, 219 Tenn. 663, 411 S.W.2d 696. nessee, of rape, and he appealed. The On the night of January 22, 1965, Mrs. Tennessee Supreme Court, 219 Tenn.
Beamer was at home sewing, when an 553, 411 S.W.2d 696, affirmed the con intruder with a butcher knife in his hand viction, and certiorari was granted. The grabbed her from the rear. Her screams United States Supreme Court affirmed brought her 13-year-old daughter, who, the conviction by an equally divided arriving at the scene, also started to court.
scream. The intruder said to Mrs. Judgment affirmed. Beamer, "You tell her to shut up, or I'll Mr. Justice Douglas filed a dissent kill you both." Mrs. Beamer ordered her ing opinion. daughter to a bedroom, and the intruder took Mrs. Beamer out of the house to a
Criminal I.aw ¢=S9S(l) spot two blocks away and raped her. Rape conviction of defendant, who, while at police headquarters, was re During the next seven months the police showed Mrs. Beamer numerous quested in presence of complaining wit police photographs one of which, she ness to repeat words which he allegedly L.Ed. 1328; In re lssermnn, 845 U.S. I. As respects the practice of Justices
setting forth their views in [11] cnse where 286, 73 S.Ct. 676, 97 L.Ed. 1013 ; 348 the judirment is affirmed by nn equnlly U.S. 1, 7fS S.Ct. 6, DD L.Ed. B; Rnley v. divided Court, see American Communica Stnte of Oblo, 360 U.S. 428, 440, 79 S.Ct. tions Assn. C. J. 0., v. Douds, 88D U.S. 1257, 1267, B L.Ed.2d 1344; Ohio ex ss2, 412-415, 422, 10 s.Ct. 674, 69o-
rel. E11ton v. Price, 864 U.S. 268, 264, 6D2, 691S, 94 L.Ed. 925; Osman v. Douds, BO S.Ct. 1468, 1464, 4 L.Ed.2d 1708. 339 U.S. 846, 847, 70 S.Ct. 901, 902, 94
*46 860 SOUTH WESTERN :&BPOB'I'ER. 84 sums 518 Ta. ----i,, their witness, and once his competency u specific and certain and official misconduct an expert is established, they have no right must be willful or, in other words, with to shore up his credibility until he is im evil intent or without reasonable grounds peached or his credibility is attacked. to believe act JawfuL Vernon's Ann.Civ. St. arts. 5973, 5971. Western Union Telegraph Co. v. Tweed, Tex.Civ.App., 138 S.W. 1155, 1157, af
2. Ceuntlee C=87 firmed, 107 Tex. 247, 166 S.W. 696; In ternational & G. N. R. Co. v. Lane, Tex.
Statutes providing for removal of Civ.App., 127 S.W. 1066, 1067, no writ county officials denominate action as civil history; 45 Tex.Jar. 40-43, Witnesses, §§ proceeding triable in a civil court from 202, 203. And a decision not to cal1 as a
which an appeal lies to Court of Civil Ap witness one employed to investigate and peals with right in prosecution to appeal evaluate facts and repdrt an expert opinion from. an adverse judgment. Vernon•• Ann. is not a suppression of evidence. Civ.St. arts. 5970, 5973, 5976 et seq., 5977,
5981; Vemcin's Ann.St.Const. art. 15. § 7. 3. Counttea C=87
Degree of proof necessary for finding a verdict of guilty or judgment of removal of county official is by preponderance of evi dence rather than beyond a reasonable doubt. Vernon's Ann.Civ.SL arts. 5970,
Ctaarlea H. MEYER, Relator, 5973, 5976 et seq., 5977, 5981; Vernon's •• Ann.St.Const. art. 15, § 7. Tile HoHrallle Bert TUNKl It al. R11po11denh. 4. Criminal L1w 11=163 No. A-914S. No question of former jeopardy is in volved in action under statute respecting re Supreme Oourt ot Tes:aa. moval of county official for incompetency Oct. 3, 1962. or official misconduct, and officer may be prosecuted criminally on same charges ei ther before or after removal proceeding1.
OriginaJ petition for mandamus to re Vernon's Ann.Civ.St. arts. 5970, 5973, 5976 quire the district judge to revoke his order et seq., 5977, 5981; Vernon's Ann.St.ConsL overruling the motion of the petitioner to art. 15, § ·7. quash the State's application and notice to take the petitioner's oral deposition in a
15. Co11nt111 18=67 suit for removal of the petitioner from the Object of proceeding under statute fo~ office of sheriff. The Supreme Court, Cul removal of county officials is not to punish ver, J., held that the State was entitled officer for his derelictfons or for violation to take the deposition of the petitioner and ·of criminal statute, but to protect public in· tlie refusal to stay the same while criminal removing from office by speedy and adequate indicttnent, involving same subject matter, means those who have been faithless and was pending was not an abuse of discre corrupt and who have violated their trost. tion. I. Vernon's Ann.Civ.St. art. 5976 et seq. Mandamus denied. 8. O lllcera ¢::177_ Officer's .property right. in 6ftice merely I. 0.fll~ra ¢:D68, 72(1) .applies to privilege of. auerting :his . right to . To justify removal of . public official ,gain . an~ hold. office in election·. cont(!8t and . . in · similar political affairs. · · · · · : from . office allegations of petition mu.st be *47 Tu. 519·
KEYE& Y. TUlrKS Cite u 880 8.W .24 618
7. Dl1cov1ry e=4S . CUl VER, Justice. [0] Party again.st whom was!pending a suit In Jefferson County there is now pendinr,
•
to reo1ovc him from office ' of sheriff on a suit brought by the State of Texas on re ground of official misconduct could be re-' latic<11 o} certain citiiens for the removal of quired to subject himself to oral d~position. Charles H . Meyer from the office of Sheriff before ·trial subject to right lof refusing to of that county: The District Judge in that ~sc overruled the motion filed. in behalf of answer on ground of scl!~incrimin at ion .. Vernon's Ann.C;C.P. art. :3; Vernon's Ann.'
tlie defendant, Meyer, to quash the State's St.Const. art. 1, § 10;. Verhon's Ann.Ci't'.' application and notice to take the defend-. St. art. 5976 et seq. ·:
ant's oral deposition, witho.ut. prejudice to:
his right to assert his constitutional priv
a. Wltn .... i ~292 ileg•~ against answering any question which Constitutional prohibitioh 'against com mig~Jt tend to incriminate him. pelling defendant in criminal case to. give evidence againlt himself aff~rds protection This is an original petition for mandamus
to require the l)jstrict Judge to revoke his not against propounding of question but protection against being compelled to an ordc~r o~crruling that motion. swer if he claims that privifcge. v cmon's
The grounds alleged in· the petition for Ann.St.Const. art~ 1, §' 10; U.S.C.A.Const. the removal of this officer are: (1) that he Amend. s·; •Vernon's Ann.C.C.P. art. 710. accc!pted the sum of $200.00 on two separate occasions from the same person with the
9. App11.I and Error ·~961 understanding that he would permit that DllODVlry ~33
I
per11on to operate gaming devices: (2) that Where indictment is pending against Meyer was guilty of official misconduct in defendant in civil action which involves sa:nc subject matter as that complained of i~
res11ect. to the use of and duties assigned to prisoners entrusted to his care, appropri
criminal case, trial judge has judicial dis-.· ating their labor to private use, and permit cretion to stay taking:·of deposition of pe ting others to be at large and to escape; (3) fendalit in civil action, and b~fore his ruling that he knowingly permitted t he open and .ma)t'be:St:' a~id~ th~~~.must oc s!lown a clear· nob>rious operation of public houses of abuae of discreti.on. Rulea of Civil ·Proce p~:1titution and places to whi"ch people cqm- , dure, rule 186b. m91~ly resort for the purpose of P;mbling. At all times pertinent herein Meyer has been
10. Discovery c:;.33 under five indictments, the first two charg Refusal t~ stay taklng Of oral deposi ing brlbery and the last three charging false tion of defendant in an action to remove. statements made in his report· of. election him from office of sheriff, while there was. campaign expenses and contributions. pending a criminal indict~ent which in volved the same · matters, was not an ·abuse
Relator first c0ntend1 that the notice of . of discretion. .Vemon's Ann.Civ.St. art. intc:ntion io take bis oral deposition 1hould 5976 et seq. j Rules of Civil Procedure, rule
bC. c)Ua~hed· bec,.use it violates bis rights un- · d,er Arf:. ·3, Vernon's Ann.Code of Criminal 186~. : Procedure, and Art. 1, § 10 of the State . Constitution, Vernon's Ann.St. in that it i1 ~tamount to reQ.uiring ·him .~o .take the .
Gilbert T. Adams, Beaumont, for.relatQr, stand and testify in a criminal action against, W. c. Lindsey, bist. Atty., W .. G. Wa·ll~y,
hi1n ·since this removal action charges him , Jr., .Beaumont,. wu.1 Wilson, At~ .. G~: .. ~d ~itti . the . wiJiful commiu.io11 o~ penal of fenses; . Furth.er Ile reprtsents that the at No~n V. Suarez, Asst., Austin, for re- tempt .to. take hia. deposition is in bad faith apondents. , . " ·
*48 520 Tex. 860 BOVTH WBSTD.N :&BPOBTBB, .Bd BUIES ~ ture has thus in effect denominated the ac and for the purpose of . obtaining evidence to be used in the criminal cases now pend tion as a civil proceeding. It is one triable in a civil court. An appeal lies_ to the .Court_ ing against him.
of Civil Appeals. The prosecution has the right to appeal from an adverse judgment.
[1] He relies heavily on State .ex rel. T. The degree of proof necessary for a finding Alcorn, 78 Tex. 387, 14 S.W. 663, 665, which of a verdict of guilty or judgment of re terms the removal statute as penal in char moval is by the preponderance of the. evi acter "and must be construed as though it dence rather than "beyond a reasonable. were one defining a crime and prescr_ibing doubt". No question of former jeopardy. ita punishment." We quoted that statement is involved. The officer may be prosecuted with approval in State ex rel. Edwards v. criminally on the same charges either. before Reyna, 160 Tex. 404, 333 S.W.2d 832, 835. or after the removal proceedings, Aside from any implications that might ... be drawn from this statement the court is •aying only that to justify removal from [5, 6] While the removal petition will office the allegations of the. petition shall be. ordinarily charge the officer with the viola-· specific and certain and the official miscon tion of a criminal statute, yet the character duct must be willful or in other words with of the action is to be determined by; the ob evil intent or without · reasonable grounds ject sought to be accomplished and the na-. to · believe the act lawful. But all of this ture of the judgment to be entered. It rea is no more than is required by Arta. 5973 aonably appears from the constitutional and ' and 5977, Vernon's Civil Statutes. statutory provisions authorizing this pro
\, . ceeding that the object is not to punish the [2--4] County officials may· be removed officer for his derelictions or for the viola from office for incompetency or for official tion of a criminal statute but to protect the public in r~moving from office by, specd.r'
misconduct or for becoming intoxicated. and adequate means those who have been Art. 5970: The State Constitution stipulates faithless and corrupt and have violated th.cir that: "The Legislature shall provide by law t,rust. The law imposes no other penalty. for ·the trial and removal from office of all It baa been said that an officer has & prop officers of this State, the modes for whlch erty right in the office but that applies mere-· have not been provided in this Constitution." ty to the privilege of asserting his right to Art. 15; § 7. County officials fall into this gain and hold the office in an election con category. Accordingly the Legislature hu test and in similar political affairs~ The ~nactcd the rules governing the trial and re o~ce belpnga to the ,people and is gjven to moval of those officials.I The action may be him temporarily in trust. Even so an .action brought by an individual citizen and must to deprive hiln of this or any other property be conducted in the name of "The State of right would be essentia~ly a civil action. Texas", upon the relation of that person. The verified petition is to be filed in the dis
· In McDaniel v. State, (1928) Tex.Civ. trict ·court and shall set forth plainly the App., 9 S.W.2d 478, 481, wr. ref., the ·c0urt," grounds of removal. The defendant is · in pointing out that a removal action is es guaranteed the right of trial ·by jury. Ap sentially a civil suit although the result may peals are given precedence over the ordin have a punitive effect, says: ary business of the court. Art. 5981 pr0: vidcs that "the· trial and all proceedings con· " • • • Its determination consti- . ·tutes no bar to the subsequent indict nected therewith [removal actions] shall be ment and prosecution of the defendant conducted as far as it is possible in accord for any criminal offense he may have ance with the ·rules and practice of the
committed in·" the · iJiiii~conduct with court in other civil cases." The Legisla- •. • . j i.\ ;1 • • ·~\'. I. See Art.. CS976 et HQ., Vernon'• Ann.Civ.StatL *49 . Tu. ··521
' .:
• I • with; a criminal offense to a jury trial i1 . basic .in au JUrisdictions.
' In addition to· California, Idaho and . Montana ate eaid to .take the view that a removal action is criminal. in nature while. oth1!r Western states, namely, Nevada, New
: Me:clco, North Dakota, Oklahoma and Utah . con:sider the matter as a civil action. See
81 A.LR. 1089 .
. · In Skeen v: Craig (1906) 31 Utah 20, 86 P. 487, the court aligns itself with :· wfu.t it terms the great weight of authority and the better reasoned cases in expressly holding that iuch actions are civil. Stale'·
[7} In &O far as the terminology a(>plied v. JJorst.ad (19l4) 27 N.D. 533, 147 N.Vf .. · to th.is character of proceeding is c:oncem.ed, 380, held that th~ triat tC>u'rt did not err irr ·-the courts of other jurisdictions· are not in harmony, some classifying it as a civil ac· per1nitting the examination of the defend. tion; others, as quui eriminal, · and stilt ant as an · adverse party upo~ the trial~ · others, as criminal. ;'..·.:Actually the termi· · sub,iect of course to his right of refusing tu · nology is not illtOge~v· important or con· answer on the ground of self incrimination. trolliRg for the rcsulfs [1] reached in ruling on • In ::•forth Dakota the statute provides just 'the various questions are more uniform than
as in this jurisdiction that the trial shall · the terminology used would seem to in be conducted in the same manner as a trial by jury in a civil action. Also in that $tate dicate. California in Thttrston v. Clark, 107 CaJ. 285, 40 P. 435, viewed the matter as : in civil acti~ns. generally .~ defendant may equivalent to a ·criminal prosecution. In be compell~ to testify. · that case the removal action was said to be [8] The gist of Art. 1, § 10 of the State of ·such a criminal nature that the defendant Constitution is the same as that of the ofticer was to be shielded from becoming an enforCcd witneS's against himself by reason . Fifth Amendment to the United States Con-
1titt1tion, nimely. that the · defendant ·-in a of oonstitUtiona1 provisions ~th national criminal case shall not be compelled to and state. On the other hand in Cline v. Superior Court. 184 Cal. 331, 193 P. 929, : give evidence against himself. The protec· the same court determined that in such cases tion thus afforded i~ n~ against the pr~ the constitutional safeguards do not .forbid powlding of the question but is the right to refuse to answer if he claims that privilege. tile denial of • . jucy trial to th~ officer and that pronouncement .. is expressly made 1e·
Article 710, Vernon's Ann.Code of Crim gardless of the holding in Thurston v. Clark inal Procedure, does provide that the fail· and.in other earlier Ca.es that the proceed ure of a defendant to testify shall not be ing is in effect a criminal prc>secution. In considered against him nor shall that failure fact the general rule seems to be that a pub· be commented on by opposinr counsel, lie official hat 'no constitUtional right to a Meyer ~ot avail himself of the prote!=· · jury trial in i. proceeding to remove him tion afforded by this article because the from ..office. See Gay v. District Court.· •t ; Leg.i_sJature has plainly provided that this Nev. 330, 171 P. 156, 3 A:LR. 224 a0:d case is to be tried under the Rules of Civil other CaSeS UIDOtated in 3 A.LR. 1089. Procedure rather than of the COde of Crim With that premise in snind it is hardly togi inal .Procedure . . cal · to c:orttend that f n a removal action the ' defendant oBicer cannot be catled to the wit Since this removal cause is. a civil action ness chair since the· right of one charged and ls to be · conducted according to the
m s.w.u-.snt *50 860 soum WESTBB.N UPOBTE:&, id SEBIES 522 Ta. . ·. Rules of Civil Procedure we ace no reason rights guaranteed by the Fifth Amend- 1nent. to make an exception or to say that a11 the ruJcs wiJJ control except that the dcf endant
In National "Discount Corporation "'· cannot be called as a witness. We there HoJzbaugh, D.C., l"3 F.R.D. 236, the court fore hold that Art. 3 of the Vernon's Ann. held that where the fabric of the fraud Code of Criminal Procedure doee not appJy sued upon in the civil proceeding is identical in this case nor does I 10, Art. 1 of the with the fraud embraced in the pending · State Constitution exempt this officer from criminal proceedinr, to require the defend~ · being examined as an adverse witness, ant to 1ubmit to oral cnmination in the ' though he may cl&im the protection afford- ch·il case would be oppressive and consti· ed to him by this constitu~onal provi ttite an indirect invasion of his constitution· sion. Should he later be prosecuted crim al rights. inaUy under the indictments now pendinc . or under any · that may be subsequently
In the third case, United States v. returned he has the protection that the ' Bridges, D.C., 86 F.Supp. 931, the facts Constitution and Statutes of the State give . were somewhat in reverse. Bridges was to a. defendant in a. criminal case. under indictment in a denaturalization pro . . ceeding against ·him based upon .-substantial- Secondly, Meyer contends that· the order . ly identical facta to those forming the crim of the court in refusing to quash the notice inal indictmc:nt, Bridges sought under Ruic to take his deposition is in violation of 33, Federal Rule11 o"f Civil Procedure. · to Rule 186b of our Rules of Civil Procedure take the deposition of ·the Attorney -General and thus constitutes a clear abuse of dis ,·of the United States and of the Chief of cretion on the part of the trial judge. Rule the Federal Bureau ~f Investigation. ·The 186b effective September 1, 1957, is sub court stayed all proceedings in the denatu· stantially the same as Federal Rule 30(b), ralization case until the final disposition of 28 U.S.C.A. Petitioner maintains there criminal proceedings on the following fore that we arc bo~d by the construction ground: placed upon that rule by the federal courts. That construction, so it is claimed, is to the "Ap'art from the assertion by Gov · effect that while an indictment is pending ' ernment cowiseJ that the defendant. against one who is a defendant in a civil Bridges, is attempting, through the action which involves the sam~ subject ~edium ,of the civil proceedings, to matter complained of in the criminal case, explore and otherwise canvass matters the defendant's deposition may not be taken that would not be obtainable in the by the adverse party. criminal proceeding, it is manifest from
a general outline of the Discovery The decisions relied on all issue from a sought that most, if not all, of the United States District Court. So far as ·we can ascertain the point has not been test· material requested is beyond the scope
of rule 33. Federal Rules of Civil ed on ;i.ppcat. Procedure." In Paul Harrigan &: Sons, Inc. v. Enter [9] Actua11y the only authoritative con prise Animal Oil Co., Inc. (D.C., 1953) struction. we think, given .,Y the Federal 14 F.R.D. 333, a conspiracy prosecution courts to Rule 30(b) is that the trial judge · under the Sherman Anti· Trust Act was ' pending against persons who were named is vested with judicial discretion in a~ting upon a t11otion to stay-- the taking of the defendants in a civil actfon under such Act, based upon the same alleged conspiracy. deposition of a party and before. hia ruling
may he set aside there must bC ahoym a The court stayed the taking of the deposi tions of those persons in the civil action on clear abuse of discretion. Whether we are t . the i'f'Ound that the same would contravene bound by this construction or not is imma-
*51 Tu. 523
, ·KEYD. '·
TUNKS Cite .. aao s. w .2tl &18 terial since that Is exactly the way we cd the stay in Harrigan v. Enterprise and construe our Rule 186b. · National Discount Corporation v: ·Hotz
bau1ch, the Federal appellate courts would In National Bondholders Corporation v. hav•! held that the failure to do so ·would · McCJintic, 1938, 99 F 2d 595, the Court amount to abuse of discretion. Moreover, said: -· in die case here the factual situation differs. r .. • • • the determination of the As pointed out above among the various .existence of the sufficiency of the cause gro1mds on ·'which removal of the 1beriff against taking the depositions in thi1 is sought only on one, namely, bribery, has case was for the district judire. in hit . -.:,,_ . he been indicted and Rule 30(b) even as judicial discretion. On this application applied by the Federal Distnct Courts for mandamus to reverse his ruling on would have no application to the remaining an interlocutory matter, we cannot pro chal'lfes. , . , , . l ; ; perly substitute our judgment for hi1
Our Ruic 186b u well as the Federal as to the determination of what consti Rul-e 30(b) gives to the trial court broad tuted good cause for the order even powen and discretion to control the time; though if and when the case should ul place and manner of taking the deposition timately be here on appeal, the court and also the scope of the examination. The riiay be of a different opinion." movant did not seek in the trial court any In Landy v. United States (1960), 283 limitation or restriction upon the scope of F.2d 303, the judgment of the trial court the examination but ra~er took the posi tion that he must not be examined upon any requiring Landy to respond to the adminis trative subpoena of the Internal R~vepue . of t.hc matters or charges specified in the. ,,
!.:.J
Service was affirmed. We quote the hold removal action. ing in that case which we thlnk is quite
.W c cannot assume that the attempt too material to the situation we have before us: take Meyer's deposition is in bad faith and! "We bold that the trial·court correct for the purpose of obtaining evidence to b~ ly decided · that it could not quash the used in the criminal casea now pending'. · . 4") subpoena on the general allegation that against him. .-·, ,it ~at intended for purposes other than
Complaint is made of the fact that at- those ff>r which it purported to iuue tached to the petition for removal is a copy and tb~t it ~rbt result in questions of the indictment chargi.ng the defendant . which the 9ubpoenacd witness could with. false statements in his report of elec constitutionally refuse to answer.· The tion contn'butions and expenses. This. ex~ privilege of the Fifth Amendment must hib:it relates only t~ some alleged statement be exercised in connection with precise made by Meyer concerning the judge and questions and not at a general excuse the members of the grand jury. It forms for refusing to appear in response to no ground for removal. The triat judge subpoena. Rogers v. United States, will rule on its admissibility when the case 340 U.S. 367. 71 S.Ct. 438, 95 LEd. comes on for trial. We see no prejudice in 344." thin that would result so far as the matter at Since the question of whether the taking issue here is concerned; of a deposition be stayed or not ties within , [10] We hold that the Trial Judge did the judicial discretion of the trial judge, . not abuse bis discretion. Mandamus ia it cannot be said with any degree of cer- , tainty that, if the trial judge had not grant-. denied.
*52 Tex. 327
GEBHARDT~GALLARDO
Cite as 891 S.W.2d 327 (Tex.App.-San Antonio 1995) cause to venireperson Weaver. Appellant's clear abuse of discretion or violf~ted duty fourth point of error is overruled. imposed by law, and that party has no ade-
We affirm the trial court's judgment find- quate remedy on appeal. ing appellant guilty of capital murder and 2. Mandamus e=28 sentencing him to life in prison.
Although appellate court rar.~ly inter- feres with trial court's exercise of discretion, clear abuse of discretion w111Tants ~orrection by mandamus when court issue~ decision without basis or guiding principks of law. 3. Witnesses e:>293*
Party does not lose Fifth Amendment right against self-incrimination in civil suit, Shay GEBHARDT, Relator, whether or not criminal indictment is pend v. ing. U.S.C.A. Const.Amend. 5; Vernon's Ann.Texas Const. Art. 1, § 10. Hon. Juan GALLARDO, Respondent. 4. Witnesses ®=>305(1), 307 No. 04-94-00690-CV. Each assertion of privilege against self Court of Appeals of Texas, incrimination rests on its own circ11mstances San Antonio. and must be raised in response to each spe cific inquiry or it is waived; blan.i<et asser
Jan. 9, 1995. tions of the privilege are not )ermitted. U.S.C.A. Const.Amend. 5; Vernon's Ann.Texas Const. Art. 1, § 10.
Republican candidate brought negli gence and civil conspiracy claims against 5. Abatement and Revival e=S(2) Democratic party officials and members con Action €:=>60 cerning filing of Democratic candidate's nom Assertion of privilege against self-in inating petition. The 150tb District Court, crimination alone did not present : egal basis Bexar County, Juan Gallardo, J., severed and for severance and abatement of negligence abated negligence claim pending possibility claim against defendant while criminal inves of or pursuance of criminal changes against tigation of defendant arising out of same any of the defendants, and plaintiff sought facts was pending, even though, if defendant reviEiw by mandamus. The Court of Appeals, asserted privilege at trial, plaintiff might re Blair Reeves, C.J. (Retfred), held that: (1) quest instruction on res ipsa loquitur; abate defendants' assertion of privilege against ment would be akin to impermissible blanket self-incrimination alone did not present legal assertion of the privilege. U.S.C.A. Const. basis for severance and abatement of negli Amend. 5; Vernon's Ann.Texas Const. Art. l, gence claim; (2) negligence claim was im §' 10. properly severed from civil conspiracy claim since the two claims were based upon same
6. Abatement and Revival €:=>8(m facts and circumstances; and (3) where term Pendency of criminal investigation, in of abatement of negligence claim was indefi dictment or other proceeding doeE not affect nite, Republican candidate had no adequate contemporaneous civil proceeding based on remedy at law for purposes of determining same facts or parties. whether mandamus should issue. 7. Witnesses e=>309 Writ of mandamus conditionally granted. Although it is constitutional error under Fifth Amendment to instruct jury in criminal 1. Mandamus €::=>4(1), 26, 28 case that it :may draw inference of guilt from Party seeking mandamus relief must defendant's failure to testify about facts rele demonstrate that trial court has committed vant to his case, Fifth Amendment does not *53 328 Tex. 891 SOUTH WESTERN REPORTER, 2d SERIES forbid adverse inferences against parties to 15. Mandamus e=>32 civil actions when they refuse to testify in
Abated negligence claim was vitiated, for response to probative evidence offered purposes of determining whether mandamus against them. U.S.C.A. Const.Amend. 5. should issue as to abatement order, where 8. Action ®=60 claimant was prohibited from preserving de fendants' testimony through oral deposition Claim is properly severable only if con on negligence issues while abatement order troversy involves more than one cause of was in effect, so that evidence might become action, severed claim is one that would be unavailable. proper subject of lawsuit if independently asserted, and severed claim is not so inter 16. Abatement and Revival e=>8(2) woven with remaining action that they in volve same facts and issues. Vernon's
Abatement of negligence claim by Re Ann.Texas Rules Civ.Proc., Rule 41. publican candidate against Democratic party officials and members concerning Democratic
9. Action e=>60 candidate's filing of nominating petition, Trial court is afforded broad discretion pending possibility of or pursuance of crimi in matter of severance. Vernon's Ann.Texas nal changes against any of the defendants, Rules Civ.Proc., Rule 41. was improper because term of abatement 10. Action e=>60 was indefinite due to impossibility of deter Controlling reasons for severance are to mining which statutes of limitation might do justice, avoid prejudice and further conve apply and when they might expire. Vernon's nience. Vernon's Ann.Texas Rules Civ.Proc., Ann.Texas Const. Art. 1, § 13; Vernon's Rule 41. Ann.Texas C.C.P. art. 12.05. 11. Action e=>60 17. Mandamus e=>32 Negligence claim by Republican candi Revision of statute concerning authority date against Democratic party officials and of courts of appeal to issue writs of manda members concerning filing of Democratic candidate's nominating petition was improp mus ordering trial judges to go to trial erly severed from Republican candidate's civ placed abatement under general principles of il conspiracy claim against same parties, law applicable to mandamus. V.T.C.A., Gov since the two claims were based upon same ernment Code § 22.221. facts and circumstances, and the concerns 18. Mandamus e=>3(3) advanced by Democratic party officials in support of imposing restrictions on proceed
Indefiniteness of abatement of Republi ing with negligence claim while grand jury can candidate's negligence action against investigation was pending would in large Democratic party officials and members con measure also be present in conspiracy trial. cerning filing of Democratic candidate's nom Vernon's Ann.Texas Rules Civ.Proc., Rule 41. inating petition rendered remedy at law inad 12. Mandamus e=>32 equate, so that mandamus was appropriate. V.T.C.A., Government Code § 22.221. Abatement is generally incidental ruling not susceptible to mandamus relief. 13. Pretrial Procedure e=>534 John E. Clark, Goode, Casseb & Jones,
Trial courts generally have discretion in San Antonio, for appellant. abatement decisions. 14. Mandamus e=>4(4) Steven P. Price, Enrique G. Serna Mar tinez, The Law Offices of Steven P. Price,
Appeal is not appropriate remedy, for purposes of determining whether mandamus Randall C. Jackson, Jr., Speiser, Krause, Ma dole & Mendelsohn, Dwight P. Mosher, Rob should issue, where ability to present viable claim was vitiated by pretrial order. ert A. Valdez, San Antonio, for appellee. *54 'lex. 329
GEBHARDTv.GALLARDO Clteas891 S.W.2d 327 (Tex.App.-SanAntonlo 1995) Before JAMES F. ONION, Judge, (Ret.), severed and abated petitioner's negligence CARLOS C. CADENA and BLAIR claim on gTounds it was an abuse of discre- REEVES, C.JJ. (Ret.). tion. Real party argues that his foderal and
state constitutional rights will be violated if OPINION plaintiff is allowed to explore matt.Hrs in this civil action which are also subject to a grand BLAIR REEVES, Chief Just.ice, (ret.). [1] jury Investigation. Neither the transcript Shay Gebhardt seeks review by mandamus nor the statement of facts reveals my source of an order entered by the Hon. Juan Gallar for the court's finding. We are unable to do, visiting district judge, which severed and find any legal basis for this ruling. We hold abauid her negligence claim from an alterna that the order of severance and abatement tive claim of civil conspiracy. [2] constitutes a clear abuse of discretion for which relator has no adequate r·~medy on Relator, the Hon. Shay Gebhardt, the Re appeal. Writ of mandamus is conditionally publican candidate for judge of County granted for the reasons set forth below. Court-at-Law No. 3 of Bexar County, sued real party, John Reynolds, and three other Democratic party officials or members. The
MANDAMUS AND THE ABUSE lawsuit alleges civil conspiracy and, in the
OF DISCRETION
alternative, negligence in promoting and cer [1) A party seeking mandamus relief tifying the filing of the nominating petition must demonstrate that the trial court has fol' the Democratic candidate and seeks actu committed a clear abuse of discret(on or vio al and exemplary damages. Relator alleged lated a duty imposed by law. Johnson v. that the Democratic candidate did not meet Fourth Court of Appeals, 700 S. W.2d 916, minimum filing standards because a number 917 (Tex.1985). The Supreme Cout empha of the required 250 signatures on his petition sizes that the petitioner must also show that were forgeries and/or had been added to the she has no adequate remedy en appeal. petition after the deadline had expired. Walker v. Packer, 827 S.W.2d 833, 842 (Tex. The trial court severed and abated the 1992); Staw v. Walke1~ 679 S.W.2d 484, 485 negligence claim pending the possibility of or (Tex.1984). pu1·suance of criminal charges ngainst any of the defendant • . 3 Relatol' seeks a wri1. of [2] An appellate court rarely interferes mandamus to ord.er Visiting District Judge with a trial court's exercise of discretion. Juan Gallardo to rescind the order which However, a clear abuse of discMtion war- 1. Judge Onion, Justice Cadena and Justice Thc plaintiff hnving ndviscd the co nn that she
Reeves were assigned to this case by the Chief elect not to amend her pleadings to exclude the Justice of the Supreme Court of Texas pursuant clnim for negligence comprising parograph IV o r to TEX. GOl,.T CoI>E ANN. § 74.003(b) (Vernon her origina l petition. ii i ORDEREll 1hat all of 1988). the allegations of pa ragntph IV f plaimlCC's 01·ig·
in(ll pctit on, and 1111 nllcgn1ioni: of dam11sc by 2. The original lawsu it is styled and numbered reason of ncgligmce in pa1·agraph V or plnin ti rrs Slwy (;eblu1rd1 v. Leo G. P{lcheco, John W. Reyn o riginal petlt on be, and the same arc h rcby, olds. Dwigli1 Mosl1 ar, and Ramon G. Flores, Sr., SEVERE.P from th is cause of 11c1ion and as No. 9'1 -Cl- 05455. in the lSOth District Court of signed separate docket number 94-·'.':!-14910. Bexar County, Texas. It is FURTHER ORDERED that after sever ance, the severed cause number S4-C l- 14910 3. 1be order, dated October 4, 1994, states in s hall be, and It i hereby, AllATEO ponding lhe pc ~ t incn t part: inal d i posi tioo of any ..:rimlnai churgcs 1h111 Aft er considering the evidence . 1he argumcnlS of m11y be brought n3r.i ns1 any of the clcfonclanis cou nsel, nd !he post·hc11rlng briefs filed by the ba ·cd on lhc alicg31 ions r fo t con tained in the panics, the court finds th11t the plaimlff. a llcgn· severed paragraph IV of p lai n1 1rrs <·rlghml pct i· tions could be read ns a cloim that the candi tion, or until the exp iration of th: statuh; of dntc's pe tit ion was a ltered while in the cKc lu sivc
limilntion for any crlmi nnl offense with which possession of some of the defendant!:, a nd th at nny of th e dofc1idnn rs could be c har~cd [011] 1hc suc.:h allegations ral c the possibili1y thm the p loimiff rnny re ly upon and niny s ck an instruc basi of the a llegat ion ~ contained In the seve red tion Oil lhc doctrine or res ipSOI i()quilur; the re· parngraph IV of the pla intiff's originol pcthion. fore, the cou11 c111cr~ the followlna order: whi chever occurs Inst.
*55 330 Tex. 891 SOUTH WESTERN REPORTER, 2d SERIES rants coITection by mandamus w~en a court cial, investigatory or adjudicatory); Ex parte Butler, 522 S.W.2d 196, 198 (Tex.1975) (Tex issues a decision which is without basis or guiding principles of law. See Johnson v. as Constitution Art. I, sec. 10, guarantees Fou11,h Court of Appeals, 700 S.W.2d at 917; privilege against self-incrimination, "fact that Professional Microfilming, Inc. v. Houston, the inquiry is made in the course of a civil 661 S.W.2d 767, 769 (Tex.App.-Fort Worth proceeding does not interdict the witness's 1983, orig. proceeding). For example, a trial privilege"); Burlon v. Wes~ 749 S.W.2d 505, judge has no discretion in determining what 507 (Tex.App.-Houston [1st Dist.) 1988, the law is or in applying the law to the facts. orig. proceeding) (defendant in drug pro Walker v. Packer, 827 S.W.2d at 840. On the ceeds forfeiture case permitted to assert contrary, if a judge, by placing a particular Fifth Amendment to discovery); Smith v. construction on the law, deprives a citizen of White, 695 S.W.2d 296, 297 (Tex.App. an unquestioned legal right, and there is no Houston [1st Dist.] 1986, orig. proceeding) other adequate remedy, mandamus will lie to (defendants under indictment entitled to as review his judgment or decision on the ques sert Fifth Amendment rights in civil custody tion. Womack v. Berry, 156 Tex. 44, 291 dispute). S.W.2d 677, 683 (1956); State Farm v. Wil
[4-6] The assert.ion of the privilege b01-n, 835 S.W.2d 260, 261 (Tex.App.-Hous against self-inc1imination must be raised in ton [14th Dist.] 1992, orig. proceeding); see response to each specific inquiry or it is also Joachim v. Chambers, 815 S.W.2d 234, waived. Each assertion of the privilege rests 240 (Tex.1991) (trial court abused discretion on its own circumstances. Blanket asser by misinterpreting the Code of Judicial Con tions of the privilege are not permitted. See duct); NCNB Texas Nat'l Bank v. Coker, United States v. White, 589 F.2d 1283, 1286- 765 S.W.2d 398, 400 (Tex.1989) (trial court 87 (6th Cir.1979); Meye1· v. Tunks, 360 abused discretion by failing to apply proper S.W.2d 518, 523 (Tex.1962). The abatement legal standard to motion to disqualify coun of the negligence claim while the grand jury sel); Eanes lndep. Sch. Dist. v. Logue, 712 investigates potential criminal charges is akin S.W.2d 741, 742 (Tex.1986) (trial court to a blanket assertion of the Fifth Amend abused discretion by elToneously finding con ment privilege. The rationale for reversals stitutional violation). in White and Meyer v. Tunks would militate against severance and abatement on a vague
THE FIFTH AMENDMENT
assertion of constitutional privilege regarding
PRIVILEGE
res ipsa loquitur. The pendency of a crimi Defendant, John W. Reynolds, sought nal investigation, indictment, or other pro abatement of the lawsuit on the ground that ceeding does not affect a contemporaneous he was a target of a grand jury investigation, civil proceeding based on the same facts or that he had asserted his Fifth Amendment parties. See Mcinnis, v. State, 618 S.W.2d right against self-incrimination in this suit 389, 393 (Tex.App.-Beaumont 1981, writ and its predecessor bill of discovery, and, refd n.r.e.) (disbarment suit may proceed according to his attorney, Reynolds did not while indictment pending against attorney on want to be subjected to the intense light of same grounds for same offense); see also civil discovery while the criminal investiga Meyer v. Tunks, 360 S.W.2d at 523 (no pre tion was pending. sumption that attempt to take defendant's [3] A party does not lose his Fifth deposition in civil case is impermissible at Amendment right against self-incrimination tempt to develop evidence in concuITent in a civil suit. Whether or not an indictment criminal proceeding). The Fifth Circuit has is pending, a witness is entitled to assert this held that putting a defendant to trial in a civil case while criminal charges arising out fundamental constitutional right. See Ma ness v. Meyers, 419 U.S. 449, 464, 95 S.Ct. of the same conduct were pending did not unconstitutionally force him to choose be 584, 594, 42 L.Ed.2d 574, 587 (1975) (Fifth Amendment may be asserted in any proceed tween preserving his Fifth Amendment privi lege and losing his civil suit where there was ing, civil or criminal, administrative or judi-
*56 GEBHARDTv.GALLARDO T·~X. 331 ClteB1891 S.W.2d 327 (Tex.App.-SanAntonlo 1995) no indication that invocation of the Fifth abatement of the negligence clairr. while a Amendment would necessarily result in an criminal investigation proceeds. adverse civil judgment. See United States v. WhitE) 589 F.2d 1283, 1286-87 (5th Cir.1979)
SEVERANCE
(decision on whether to testify in civil case is matter of trial strategy). The Mc!nnis court [8-11] The severed negligence daim and stated: "We find no constitutional or statuto the civil conspiracy claim are based upon the ry provisions granting this appellant the same factual allegations. A claim iE properly right to choose the case, either criminal or
severable only if civil, which he desires to first proceed to (1) the controversy involves more than one trial." Mclnnis v. State, 618 S.W.2d at 393. cause of action, (2) the severed claim is one [7] In this case, the court severed and that would be the proper sub~iect of a abated the negligence claim on the ground lawsuit if independently asserted, and (3) that plaintiffs pleadings may be construed to the severed claim is not so interwoven with support a theory of res ipsa loquitur. 4 One the remaining action that they involve the is left, at this early stage in the proceedings, same facts and issues. to asnume that if the defendant exercises his Guaranty Fed. Sav. Bank v. H01·s11shoe Op right to silence under the Fifth Amendment,
erating Co., 793 S.W.2d 652, 658 (Tex.1990) the plaintiff may, as a trial strategy, request (citing Saxer v. Nash Phillips-Copus Co. an instruction on res ipsa loquitur on the negligence theory. Be that as it may, the Real Estate, 678 S.W.2d 736, 739 (Tax.App. United States Supreme Court distinguishes Tyler 1984, writ ret'd n.r.e.)); 1~Ex.R.C!v. Paoc. 41. Rule 41 affords the t::-ial court between a criminal and a civil case as to whether an inference of guilt may be drawn broad discretion in the matter of E everance. from a defendant's silence. It is clearly con "The controlling reasons for a severance are stitutional error under the Fifth Amendment to do justice, avoid prejudice an.:J further to instruct a jury in a criminal case that it convenience." (}uaranty Fed. Sl~v. Bank, may draw an inference of guilt from a defen supra. In this case, the third prong of the dant's failure to testify about facts relevant severance test is clearly missing. Relator to his case. Griffin v. California, 380 U.S. has pied alternative theories of recovery. 609, 1)15, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106,
The severed claim is based upon the same 110 (1965). However, "the Fifth Amendment facts and circumstances as the :t·emaining does not forbid adverse inferences against claim. The parties are identical. While the parties to civil actions when they refuse to
elements of each claim are necessa1ily differ testify in response to probative evidence of ent, the proof required is all to be drawn fered against them." Baxter v. Palmigiano, from the same events. The severance order 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 is interlocutory and nonappealable while the L.Ed.2d 810, 821 (1976). The Amendment abatement is in effect. "does not preclude the inference where the Moreover, it is observed that the trial privilege is claimed by a party to a civil
court's order leaves the relator free to try cause." 8 J. WIGMORE, EVIDENGE 439 her civil conspiracy claim based on the same (McNaughton rev. 1961) (emphasis in origi factual allegations without the r·~strictions nal). The Baxter opinion lists a long line of
the trial court has placed on the severed and caseE: which recognize "that in proper circum abated negligence claim. The concerns ad stances silence in the face of ac.cusation is a
vanced by the respondent to the ·;rial court relevant fact not barred from evidence by the would in large measure also be preaent in the Due Process Clause." Baxter, 425 U.S. at conspiracy trial. Severing claims into sepa 319, 96 S.Ct. at 1558, 47 L.Ed.2d at 822. rate lawsuits without valid and sustaining Therefore, the assertion of the privilege reasons is not in the interest of judicial econ against self-incrimination alone does not present a legal basis for severance and omy. theory is alleged by the plaintiff below. 4. The record before us docs not reflect that this
*57 332 Tex .. 891 SOUTH WESTERN REPORTER, 2d SERIES ABATEMENT repeatedly refused to vacate his order of abatement. Id. at 427. The issue at the The trial court ordered the negligence mandamus proceeding was whether the state claim abated pending final disposition of any court had a legal basis to abate the state criminal charges that may be brought against cause in order to encourage all parties to any of the defendants or until the statutes of settle their controversy in federal court. limitation expire. The appellate court held that the state court [12, 13] Abatement is generally an inci abatement denied the parties their right to a dental ruling not susceptible to mandamus forum under the "open courts" clause of 'the relief. E.g., Abar v. Black, 695 S.W.2d 564, Texas Constitution. Id. at 429. 567 (Tex.1985) (citing Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex.1969), cert. denied, 397 The opinion noted that article I, section 13 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 of the constitution is generally not violated (1970)). Further, trial courts generally have by abatement issued in deference to a pend ing suit in another court because the plaintiff discretion in abatement decisions. E.g., Do lenz v. Continental Nat'l Bank of Fort may still pursue her remedy in the second court. Id. In Trapnel~ both forums had Worth, 620 S.W.2d 572, 575 (Tex.1981).
been indefinitely foreclosed to the plaintiffs (14, 15] The trial court should consider by court orders. "When the trial court sus what effect, if any, the abatement of the t.ains a plea in abatement, . . . the plaintiff is negligence claim will have on the plaintiff's effectively denied any other method of chal ability to prosecute the remaining conspiracy lenging the court's action for an indefinite claim. Walker v. Packer, 827 S.W.2d 833, period of time during which the cause of 843 (Tex.1992) recognizes that appeal is not action remains in a suspended state . . . . A an appropriate remedy where the ability to trial judge may not arbitrarily halt trial pro present a viable claim was vitiated by a Id., citing Cleveland v. Ward, ceedings." pretrial order. The negligence claim in this 116 Tex. l, 285 S.W. 1063, 1068 (1926); case is vitiated because relator is prohibited Greenberg, Benson, Fisk and Fielder v. from preserving defendants' testimony Howel~ 685 S.W.2d 694, 695 (Tex.App.-Dal through oral deposition on the negligence las 1984, orig. proceeding) (citing the open issues while the abatement order is in effect, courts provision of TEX. CONST. art. I, § 19). As time goes on, memories will likely dim and evidence become unavailable.
(17] The Texas Supreme Court has also (16] Abating a case indefinitely, more reasoned that mandamus would issue to force over, has been found to violate the open a trial judge to go to trial because there was no remedy by appeal. Cleveland v. Ward, courts provisions of the Texas Constitution. See Trapnell v. Hu,nter, 785 S.W.2d 426, 429 285 S.W. at 1068. At that time a statute (Tex.App.-Corpus Christi 1990, orig. pro authorized courts of appeal to issue writs of mandamus ordering trial judges to go to ceeding). In Trapnel~ survivors had filed a wrongful death suit against manufacturers of trial. Article 1824 was amended in 1984 to sulfite and foods containing it on a theory of eliminate the specific authority to order a products liability. Several months later they trial judge to proceed to trial before it was filed a second suit in federal court against codified into the current statute providing the Navy under the Federal Tort Claims Act our general mandamus jurisdiction. This re on theories of negligent food preparation and vision places the abatement under the gener failure to warn. The federal case was stayed al principles of law applicable to mandamus. See TEX. Gov'T CODE § 22.221 (Vernon 1988). against the Navy pending completion of the products liability state case. However, the However, the Howell case cited above, con manufacturer defendants obtained an order strues this change to expand an appellate abating the state case so they could seek court's power to order a judge to proceed to intervention in the federal case. The federal trial in a pending case. G1·eenberg, Benson, district court denied their motion to inter Fisk and Fielder v. Howel~ 685 S.W.2d at vene, nevertheless the state district court 695.
*58 TEX. BD. OF MED. EXAM. v. BIRENBAUM 'Iex. 333 Cite as 891 S.W.2d 333 (Tex.App.-Auslln 1995) (181 The term of abatement in the pres that oncologist overcharged patiems, but (2) ent case is indefinite. Statutes of limitations substantial evidence did not support finding vary. The defendant testified that he did not that oncologist persistently and flagrantly know how long the abatement, if granted, overcharged patients. would last. He did not furnish the trial
Affirmed. judge with any information as to what crimes might be charged, so it is impossible to tell what statutes of limitations might apply.
1. Physicians and Surgeons <i?l:l Moreover, statutes of limitations are tolled Physician and patient are free to con while an accused is abse·nt from the state and tract for physician's services on my terms tolled during the pendency of an indictment. they choose. TEX.CRIM.PROC.C<;>DE ANN. art. 12.05 (Vernon 1979). It is, therefore, impossible to deter
2. Physicians and Surgeons e=>Ja mine when the abatement will end. The Physician and patfont are free to con indefiniteness of the abatement leads us to tract as they see fit, as long as their agree the conclusion that the relator has no ade ment does not contravene public policy. quate remedy at law. For these reasons we have concluded that 3. Administrative Law and Procedure e:>791 relator is entitled to a writ of mandamus to direct the trial court to rescind its order of
Physicians and Surgeons e:>ll.3(5) severance and abatement. The wiit will is In reviewing decision of State Board of sue only in the event the trial court fails to Medical Examiners, Court of Appeals uses act accordingly. substantial evidence :;tandard defined under the Administrative Procedure Act (APA). V.T.C.A., Governmer:t Code § 2001.174(2)(E). 4. Administrative Law and Procedure
~793 Court of Appeals is not permitted to substitute its judgment for that of agency as
TEXAS STATE BOARD OF MEDICAL
to weight of the evidence. V.T.C.A., Govern EXAMINERS, Appellant, ment Code § 2001.174(2)(E). v. 5. Administrative Law and Procedure Dennis H. BIRENBAUM, M.D., Appellee. 0;>7 49, 750 No. 3-93-664-CV. Decisions of administrative agency are presumed to be supported by substantial evi Court of Appeals of Texas, dence, and burden is on contestant to prove Austin. otherwise. V.T.C.A., Govermmmt Code § 2001.l 74(2)(E). Jan. 11, 1995. Rehearing Overruled Feb. 22, 1995. 6. Administrative Law and Procedure €=>790 Physicians and Surgeons e=>ll.3(5) State Board of Medical Examiners ap pealnd from order· of the 250th Judicial Dis Court of Appeals must uphold actions of trict Court, Travis County, Jerry Dellana, J., State Board of Medical Examim!rs if evi reversing Board's revocation of oncologist's dence is such that reasonable minds could medical license for persistent and flagrant have reached conclusion that Board must overi::harging of patients. The Court of Ap have reached in order to j'1stify its pealn, Kidd, J., held that: (1) substantial action. V.T.C.A., Governmeut Code § 2001.174(2)(E). evidence supported Board's determination
*59 611 FEDERAL REPORTER, 2cl SERIES clearly intended Service records such as the In summary, we hold here that the rec Moorefield file to be exempt under the orig ords of ongoing, active Secret Service inves inal FOIA. Freedom of Information Act tigations, carried out punuant to the Ser Source Book, Sen.Doc. 93--82, Subcomm. on vice's protective function, may be exempted Administrative Practice & Procedure, Sen
from FOIA disclosure under section 7(A) ate Judiciary Comm., 93d Cong., 2d Sess. without the individualized scrutiny normal 107 (1974); see id. at 82, 98. Congress could ly given purportedly exempt documents; not have wanted to open Service files to the that such investigations are enforcement public, which includes potential assassins, proceedings; and that disclosure of the type merely because they contain protective of records contained in such an investiga rather than prosecutorial investigative ma tive file would interfere with such proceed terials. "[T]he release of information in ings. Accordingly, the judgment of the dis investigatory files prior to the completion trict court is AFFIRMED. of an actual, contemplated enforcement proceeding was precisely the kind of inter ference that Congress continued to want to protect against." 437 U.S. at 232, 98 S.Ct. at 2322. In light of our reading of Robbins Tire and the legislative history of exemp tion 7(A), we conclude that the Service's activities in investigating and observing persons who present threats to Service pro tectees are enforcement proceedings for the
Carl D. WEHLING and Geraldine D. purposes of the FOIA. Wehling, Plaintiff1-AppellanU, [7] The remaining question is whether v. an FOIA disclosure of the Moorefield file COLUMBIA BROADCASTING SYSTEM, would "interfere" with an enforcement pro Defendant-Appellee. ceeding. We conclude that it would. The materials in this file are sensitive; all con
No. 77-2840. stitute investigative matter that assists the Service in its efforts to keep track of
United States Court of Appeals, Moorefield and preclude his harming a Ser Fifth Circuit. vice protectee. As the Service affidavit pointed out, disclosure of these materials Feb. 14, 1980. could tend generally to inform targets of Service investigations of the means the Ser vice employs to keep abreast of them, and,
In a libel action, plaintiff refused to specifically, to enable Moorefield to elude answer certain questions posed by defend the scrutiny of the Service, with potentially ant during the oral deposition and then disastrous results. In our view, disclosure asserted his Fifth Amendment privilege here would constitute an interference much against compelled self-incrimination in re like the one found by the Court in Robbins sponse to an order to comply with defend Tire, where it concluded that, on balance, ant's discovery request. The United States disclosure of the NLRB witness statements District Court for the Western District of would upset the conduct of enforcement Texas, John H. Wood, Jr., J., dismissed the proceedings. 487 U.S. at 236-242, 98 S.Ct. action, and plaintiff appealed. The Court at 2324-27. The risk of presidential assassi of Appeals, 608 F.2d 1084, revened and nation presented by the forced disclosure of
remanded. Defendant petitioned for the sort of Service records involved here is rehearing, and the Court of Appeals held at least as great as that of the mere witness that: (1) the prior opinion of the Court of intimidation considered in Robbins Tire. See id. at 289-241, 98 S.Ct. at 2325-26; Appeals did not reflect an intent to restrict 1974 Attorney General's Memorandum at 8. discovery of information that was not privi-
*60 WEHLING v. COLUMBIA BROADCASTING SYSTEM Clteulll F.2d 1021 (IMO) leged under the applicable rule; (2) nothing ing brought this appeal he sought to stay in the prior opinion precluded defendant only that discovery which exposed him to a from abandoning its questions to plaintiff risk of self-incrimination. A more expan and to proceeding to an early trial without sive stay is neither needed nor requested in full discovery; and (3) it was premature to this case, and we disavow any intent to determine whether the stay of discovery restrict discovery of information "not privi should be extended pending resolution of a leged" under Fed.R.Civ.P. 26(b). related criminal case.
CBS also asserts that the opinion deprives Petition for rehearing denied. it of the option of proceeding to trial with out the benefit of the requested discovery. This argument is unfounded. Nothing in
Federal Courts e1=>744 our opinion precludes CBS from abandoning Defendant's petition for rehearing with its questions f;o Wehling and proceeding to respect to prior order staying· further dis an early trial without full discovery. Al covery against civil plaintiff who had as though Wehling could continue to assert his serted his Fifth Amendment privilege in Fifth Amendment rights at trial, it is clear response to discovery order was denied that bis invocation of the privilege would be where the arguments submitted by defend subject to the drawing of an adverse infer ant in support of its petition for rehearing ence by the trier of fact. Baxter v. Pa/mi were not based on a correct interpretation giano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 of the Court of Appeals' prfor opinion and L.Ed.2d 810 (1976). where nothing in the prior opinion preclud ed defendant from abandoning its questions Finally, CBS argues that requiring the to plaintiff and proceeding to an early trial trial court to stay discovery until the limita without full discovery. tions period has run presupposes that Wehl
ing will not be indicted and leaves the court with no guidance on bow to proceed if he is.
Joel W. Westbrook, Bruce L. Goldston, It is true that we did not specify what San Antonio, Tex., for plaintiffs-appellants. action the district court should take if an Thomas R. Phillips, Houston, Tex., for indictment against Wehling is returned. defendant-appellee. However, we did outline the proper analysis to be utilized in resolving such questions,
Appeal from the United States District and we remain convinced that the trial Court for the Western District of Texas. court can adequately deal with this problem when and if it arises. Furthermore, we
ON PETITION FOR REHEARING
believe that it would be premature to at (5 Cir., 1979, 608 F.2d 1084) tempt to formulate an answer without (1) Before MORGAN, RONEY and GARZA, knowledge of the precise nature of the Circuit Judges. criminal charges, (2) a familiarity with the trial court's criminal docket and the usual
PER CURIAM:
timetable for trying such cases, and (3) some projection as to when the criminal On petition for rehearing, CBS points out that our opinion could be interpreted as P.roceedings would likely terminate. Only ordering a stay of all discovery rather than when these facts are ascertained can the merely staying discovery in those areas trial judge determine whether the stay where plaintiff has invoked his Fifth should be extended pending resolution of Amendment right to silence. When Wehl- the criminal case.• • Our opinion must not be read as requiring that presume that a three-year stay would necessar
the discovery stay be extended until the termi ily prejudice CBS' efforts to defend against nation of all criminal proceedings, regardless of Wehllng's claim, we are aware that a point their duration. Although we have refused to may be reached where the likelihood of preju- *61 611 FEDERAL REPORTER, 2d SERIES that, as condition precedent to dealing in The other pointa raised by CBS lack mer
it. Consequently, the petition for rehearing automobiles, a bond be posted in favor of is DENIED. the state Motor Vehicle Commission for use
and benefit of third parties injured under conditions specified in the statute; (8) in view of fact that the Louisiana statute spe cifically provided for a bond to indemnify "anyone" who suffers 1088 as result of viola tion of "any" provision of the chapter, a civil remedy exists under Louisiana law for inducing purchase of motor vehicle by will
Richard BOUDREAUX, ful and knowing understatement of true Plaintiff-Appellant, mileage, notwithstanding criminal penalty provided; and (4) the complaint sufficiently v. alleged violation of the Louisiana Unfair Pat PUCKETT, d/b/a Pat Puckett Auto Trade Practice and Consumer Protection Salee et al., Defendants, Law. Ruling that bill of sale did not consti Western Surety Co., Defendant-Appellee. tute written contract reversed; holding No. 77-2913. that plaintiff had no civil right of action United States Court of Appeals, against surety under Louisiana law re Fifth Circuit. versed; case remanded for exercise of pen dent jurisdiction over state law claim Feb. 14, 1980. against surety. A civil action brought by a used car 1. Federal Courts *= 14 buyer against the surety on a dealer's bond Factors to be considered as to possibili posted pursuant to Louisiana statute was ty of pendent party jurisdiction are judicial dismissed by order of the United States economy and convenience, whether judicial District Court for the Eastern District of article of Federal Constitution permits such Louisiana, at New Orleans, Charles jurisdiction and whether Congress in stat Schwartz, Jr., J., 433 F.Supp. 650, and the ute conferring jurisdiction has expressly or used car buyer appealed. The Court of by implication negated existence of such Appeals, Thornberry, Circuit Judge, held pendent jurisdiction. LSA-R.S. 32:718, that: (1) factors to be considered as to subd. D; Motor Vehicle Information and possibility of pendent party jurisdiction are Cost Savings Act,§ 401, 15 U.S.C.A. § 1981; judicial economy and convenience, whether
28 U.S.C.A. §§ 1843(3), 1846; 42 U.S.C.A.
judicial article of Federal Constitution per § 1983; Labor Management Relations Act, mits such jurisdiction and whether Congress
1947, § 301, 29 U.S.C.A. § 185; U.S.C.A.
in statute conferring jurisdiction has ex Const. art. 3, § 1 et seq. pressly or by implication negated existence 2. Licenses *=" 26 of such pendent jurisdiction; (2) invoice and Invoice and bill of sale, though it bill of sale, though it showed no more than names of buyer and seller, price paid, de showed no more than names of buyer and scription of the automobile sold, and signa seller, price paid, description of the automo ture of only the seller, and purported mile bile sold, and signature of only the seller, and purported mileage of vehicle, constitut age of vehicle, constituted a "written con tract" within Louisiana statute requiring ed "written contract" within Louisiana stat- coordinates of this point cannot be determined
dice Is so great that the trial court would be until additional Information becomes available. justified In requiring plaintiff to either submit to discovery or forego his lawsuit. The precise *62 Librado v. M.S. Carriers, Inc. - WestlawNext
10/6/2015 Librado v. M.S. Carriers, Inc. SELECTED TOPICS United States District Court, N.D. Texas, Dallas Division. November 5, 2002 Not Reported in F.Supp.2d [2002] WL [31495988] (Approx. [3] pages) 2002 WL 31495988 Abatement and Revival Only the Westlaw citation is currently available. Abatement or Survival of Action United States District Court, Death of One of the Joint Tenants N.D. Texas, Dallas Division.
Secondary Sources Cirilia Perez LIBRADO, et al., Plaintiffs,
APPENDI
X I V GUIDANC E AND
TECHNICAL
ASSISTANC E MANUALS
v. ADA Compliance Guide Appendix IV M.S. CARRIERS, INC., Defendant. ...Under the Americans with Disabilities Act of [1990] (the “ADA”), an employer may ask
No. Civ.A. 3:02-CV-2095D. Nov. 5, 2002. disability-related questions and require medical examinations of an applicant only after the applicant has been given ...
MEMORANDUM
OPINION AND ORDER ¶870 DOJ' S TECHNICAL ASSISTANCE FITZWATER, J. MANUAL ON TITL E II ADA Compliance Guide ¶870 *1 Defendant M.S. Carriers, Inc. (“MSC”) move s the court to abate thi s action, or to abate ...Covering State and Local Government it in part, until the conclusion of a pending criminal case against Michael Keith Nichols Programs and Services This Technical Assistance Manual addresses the (“Nichols”). The court grant s the motion to the extent that it abate s the action in part. requirements of Title II of the Americans With Disabilities Act, which applies to the
I operations... Plaintiff s bring thi s action arising from a tragi c vehicular collision that too k the life of one ¶900 SAMPL E JOB CLASSIFICATION [1] person and seriousl y injured another. According to plaintiffs, Manuel Victor Perez
SPECIFICATIONS
(“Perez”) wa s killed and Juan Cipriano Marco s (“Marcos”) wa s seriousl y injured when an Public Employer's Guide to FLSA Emp. Class. MSC tractor-trailer rig being driven b y Nichol s ran a stop sign and collided with a car in ¶900 which Pere z and Marco s were passengers. A state grand jur y ha s indicted Nichol s for ...The job classification specifications (“class specs”) provided in this tab cover a wide criminall y negligent homicide. MSC move s the court to abate the action in it s entirely, or range of public employer positions. at least with respect to discover y a s it relate s to Nichols, until the criminal case against Classification specifications are not job descriptions ; they are broader docu... [2] him ha s been concluded. It maintain s that Nichol s i s subject to criminal prosecution, ha s separate counsel for the criminal case, and ha s the right to invoke hi s Fifth See More Secondary Sources Amendment privilege against self-incrimination. MSC argue s that plaintiffs' claim s against
Briefs it arise from an alleged agen cy relationship between it and Nichols, but that Nichol s is Appellants ' Revised Opening Brief unable to participate in discover y or in MSC' s defense, thereb y stymieing it s abilit y to defend itself. [2012] WL [831327]
Rukhsana CHAUDHRY, et al., Plaintiffs- Appellants, v. CITY OF LOS ANGELES, et al.,
Plaintiff s oppose a stay. The y argue that MSC la cks standing to see k abatement, that Defendants-Appellees. MSC' s motion effectivel y serve s a s an impermissible blanket assertion of the Fifth United States Court of Appeals, Ninth Circuit. March 05, [2012] Amendment privilege, and that total abatement i s unwarranted, since significant ...Former Los Angeles Police Department [3] discover y can be taken without Nichols' complete and/or limited participation. Officer Joseph Cruz alleged that on March 25, 2008, Mohammad Usman Chaudhry (“Usman”) attacked him with a knife,
II
prompting Cruz to shoot and kill Usman. “A s the Fifth Circuit ha s instructed, in ruling on request s for sta ys of the civil side of However, on... parallel civil/criminal proceedings, ‘Judicial discretion and procedural flexibilit y should be Appellants ' Revised Opening Brief utilized to harmonize the conflicting rule s and to prevent the rule s and policie s applicable [2012] WL [831325] to one suit from doing violence to those pertaining to the other. In some situation s it may Rukhsana CHAUDHRY, et al., Plaintiffs- be appropriate to sta y the civil proceeding. In other s it ma y be preferable for the civil suit Appellants, v. CITY OF LOS ANGELES, et al., Defendants-Appellees. to proceed-unstayed.” ’ United State s v. Gieger Transfer Serv., Inc., 174 F.R.D. 382, 385 United States Court of Appeals, Ninth Circuit. (S.D.Miss.1997) (quoting Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962) March 05, [2012] (citation omitted)). “Certainly, a district court ma y sta y a civil proceeding during the ...Former Los Angeles Police Department
Officer Joseph Cruz alleged that on March 25, penden cy of a parallel criminal proceeding. Such a sta y contemplate s ‘special 2008, Mohammad Usman Chaudhry (“Usman”) attacked him with a knife, circumstances' and the need to avoid ‘substantial and irreparable prejudice.” ’ United prompting Cruz to shoot and kill Usman. State s v. Little Al, 712 F.2d 133, 136 (5th Cir.1983) (citing SEC v. First Fin. Group of However, on... Tex., Inc., 659 F.2d 660, 668 (5th Cir. Oct. 1981)). Appellants ' Revised Opening Brief Court s from other jurisdiction s have outlined several factor s that should be considered in [2012] WL [831326] Rukhsana CHAUDHRY, et al., Plaintiffs- determining whether “special circumstances” warrant a stay, including: (1) the extent to Appellants, v. CITY OF LOS ANGELES, et al., which the issue s in the criminal case overlap with those presented in the civil case ; (2) Defendants-Appellees. United States Court of Appeals, Ninth Circuit. the statu s of the criminal case, including whether the defendant s have been indicted ; (3) March 05, [2012] the private interest s of the plaintiff s in proceeding expeditiously, weighed against the ...Former Los Angeles Police Department prejudice to plaintiff s caused b y the dela y; (4) the private interest s of and burden on the Officer Joseph Cruz alleged that on March 25, 2008, Mohammad Usman Chaudhry defendant s; (5) the interest s of the court s; and (6) the publi c interest. See, e.g., Trustees (“Usman”) attacked him with a knife, of Plumber s and Pipefitter s Nat'l Pension Fund v. Transworld Mech., In c ., 886 F.Supp. prompting Cruz to shoot and kill Usman. However, on... 1134, 1139 (S.D.N.Y.1995) (citing Parallel Civil and Criminal Proceedings, 129 F.R.D. 201, 201-3 (Pollack, J.) (“Parallel Proceedings” )) ; Volmar Distribs., Inc. v. The New York
See More Briefs
RPI 0061
https://a.next.westlaw.com/Document/I88e400f553ff11d9b17ee4cdc604a702/View/FullText.html?originationContext=typeAhead&transitionType=Default&context… 1/3 *63 Librado v. M.S. Carriers, Inc. - WestlawNext 10/6/2015
Post Co., 152 F.R.D. 36, 39 (S.D.N.Y.1993). Trial Cour t Documents Rev. Martin Fry v. Middletown Tp.
C
[2003] WL [26075058] 1 Rev. Martin Fry v. Middletown Tp. United States District Court, E.D. *2 The first question to be resolved i s the extent to which the issue s in Nichols' criminal Pennsylvania. case overlap with those in the present case, because self-incrimination i s more likel y if March 12, [2003] there i s significant overlap. See Volmar Distribs., 152 F.R.D. at 39 (quoting Parallel ...DATE: March 12, [2003] Now before me is
Defendants' Motion for Summary Judgment. Proceedings, 129 F.R.D. at 203) (“The most important factor at the threshold i s the For the reasons that follow, this motion will be granted in part and denied in part. In this case, degree to which the civil issue s overlap with the criminal issues.”). “If there i s no overlap, Reverend Martin Fry and... there would be no danger of self-incrimination and accordingl y no need for a stay.” In re Augusta Apartm ents , LLC Trustees, 886 F.Supp. at 1139 (citing Parallel Proceedings, 129 F.R.D. at 203). [2011] WL [6779594] The subject matter of the criminal charge s against Nichol s i s substantially, if not In re Augusta Apartments, LLC United States Bankruptcy Court, N.D. West
precisely, the subject matter of the instant civil suit. The criminal case and thi s suit both Virginia. arise from allegation s about Nichols' conduct related to the December 11, 2001 accident December 16, [2011] that too k Perez' s life and maimed Marcos. The court find s that thi s overlap of issues ...Chapter [11] THIS MATTER is before the Court on the TRUSTEE'S MOTION FOR between the civil and criminal action s weigh s in favor of a stay.
ORDER
AUTHORIZING THE SALE OF ASSETS PURSUANT TO [11] U.S.C. § 363(b), (f), AND (m) AND § 105(a) (the “Sale
2 Motion”), filed by Rober... The second factor to be considered i s the statu s of the criminal case. “A sta y of a civil case i s most appropriate where a part y to the civil case ha s alread y been indicted for the In re Augusta Apartm ents , LLC same conduct for two reasons: first, the likelihood that a defendant ma y make [2011] WL [6779589] incriminating statement s i s greatest after an indictment ha s issued, and second, the In re Augusta Apartments, LLC United States Bankruptcy Court, N.D. West prejudice to the plaintiff s in the civil case i s reduced since the criminal case will likel y be Virginia. December 16, [2011] quickl y resolved due to Speed y Trial Act considerations.” Trustees, 886 F.Supp. at 1139. ...THIS MATTER is before the Court on the Although Nichol s i s not a part y to the instant case, he i s a person whose testimon y is
TRUSTEE'S
MOTION FOR ORDER essential to it s fair adjudication, because it i s hi s alleged conduct that serve s a s the basis
AUTHORIZING
THE SALE OF ASSETS PURSUANT TO [11] U.S.C. § 363(b), (f), AND for plaintiffs' claims. Since Nichol s i s under indictment rather than merel y under (m) AND § 105(a) (the “Sale Motion”), filed by investigation, the court find s that the statu s of the criminal case weigh s in favor of a stay. Robert L. Johns,... See More Trial Court Documents
3 In ruling on a motion for stay, the court should also weigh the private interest s of the plaintiff s in proceeding expeditiousl y against the prejudice that will be caused b y the dela y that will result from the stay. Plaintiff s assert that the criminal case against Nichols i s proceeding slowl y and uncertainly, with no specifi c trial date. Nevertheless, Texa s law recognize s a right to a speed y trial. Therefore, the court conclude s that consideration of the burden to be placed on the plaintiff s doe s not weigh heavil y against a stay. The court recognize s that, even if convicted, Nichols' Fifth Amendment privilege may continue throughout the penden cy of hi s direct appeal. See, e.g., Fran k v. United States, 347 F.2d 486, 491 (D.C.Cir.1965). Because the issuance and duration of a sta y are committed to the court' s sound discretion, and because imposition of a sta y lasting throughout the duration of Nichols' direct appeal (if he i s convicted) would likel y be unduly burdensome to plaintiffs' interests, the court contemplate s that the sta y granted toda y will remain in effect onl y through sentencing. If he i s acquitted, the sta y will terminate upon the return of a not guilt y verdict.
4 *3 The court ha s also considered the private interest of MSC in securing the sta y and the burden on it that would result were the sta y denied. A s discussed above, absent a stay, Nichol s face s a conflict between asserting hi s Fifth Amendment right s and fulfilling his legal obligation s a s a witne ss in thi s civil action. Thi s conflict ma y be largely, if not completely, eliminated b y granting a sta y of appropriate scope. Moreover, the court discern s no substantial prejudice to plaintiff s from granting a partial stay. Therefore, the court find s that MSC' s private interest weigh s in favor of abatement in part.
5 Because the court conclude s that granting a sta y will not undul y interfere with the court's management of it s docket, it find s that the court' s interest s do not weigh against a stay. Additionally, the court hold s that the interest s of the publi c do not weigh against a stay.
6 MSC see ks abatement of the entire suit, contending that Nichol s i s unable to participate in discover y or in MSC' s defense, thereb y compromising it s abilit y to defend itself. The court i s not persuaded that all discover y must be halted. There would appear to be a great deal of discover y that both partie s could undertake, including that concerning the physical evidence from the accident, the extent, nature, and cost s of the medical
RPI 0062
https://a.next.westlaw.com/Document/I88e400f553ff11d9b17ee4cdc604a702/View/FullText.html?originationContext=typeAhead&transitionType=Default&context… 2/3 *64 Librado v. M.S. Carriers, Inc. - WestlawNext 10/6/2015
expense s rendered to Marcos, and the personal injurie s that plaintiff s suffered a s a result [4] of the death of Pere z and the injurie s to Marcos. Instead, the court abate s the case to the extent that plaintiff s are precluded from taking Nichols' deposition and from conducting an y discover y that MSC can show, b y motion, will or i s likel y to subject it to undue prejudice b y reason of Nichols' unavailabilit y a s a witne ss to MSC or to assist it in it s defense. Based on it s consideration of the above factors, and in the interest s of justice, the court grant s in part MSC' s motion to abate and, to the extent set forth above, abate s discovery in thi s case until such time a s a verdict of not guilt y ha s been returned or sentencing has been completed in the criminal action against Nichols.
SO
ORDERED. All Citations Not Reported in F.Supp.2d, 2002 WL 31495988 Footnotes Thi s case i s now pending in it s fourth forum. Plaintiff s filed it in state court in 1
Webb County, Texas, MSC removed it to the Southern District of Texas, that court transferred it to the Western District of Texa s (while suggesting that it probabl y should be transferred to the Northern District of Texa s but that the court wa s powerle ss to make such a transfer), and the Western District of Texa s granted an unopposed motion to transfer the case to the Northern District of Texas, Dalla s Division. The court i s not confident that the case should be pending in thi s division, because plaintiffs' connection to thi s court appear s to be the Fort Worth Division, not the Dalla s Division. Nevertheless, because, at some point, thi s case must come to rest, the court will not direct that it be transferred still again. MSC filed it s motion to abate on Jul y 16, 2002 in the Western District of
2 Texas, where the case wa s then pending. Plaintiff s filed their response on August 2, 2002. MSC did not file a repl y brief. On October 21, 2002 MSC filed in thi s court a request for ruling b y submission, in which it asked the court to decide the motion. On October 30, 2002 plaintiff s filed the response to MSC' s request. The y join the request that the court decide the motion. The court grant s the request for ruling, and decide s the motion today. The court will not organize it s analysi s based on plaintiffs' arguments,
3 because in some respect s the y misunderstand the apposite jurisprudence. For example, their contention that MSC la cks standing i s based erroneously on the personal nature of the Fifth Amendment privilege. While it i s true that MSC cannot invoked Nichols' right against self-incrimination, it can certainly rel y on the fact that he ha s that right to see k a sta y of discovery. Thi s i s intended a s an illustrative, nonexclusive list, not a catalogue of the
4 limit s of available discovery. End of Document © [2015] Thomson Reuters. No claim to original U.S. Government Works. WestlawNext. © [2015] Thomson Reuters Privacy Statement Accessibility Supplier Terms Contact Us 1-800-REF-ATTY (1-800-733-2889) Improve WestlawNext
RPI 0063
https://a.next.westlaw.com/Document/I88e400f553ff11d9b17ee4cdc604a702/View/FullText.html?originationContext=typeAhead&transitionType=Default&context… 3/3 *65 PAGE LEFT BLANK INTENTIONALLY RPI 0064 *66 659 FEDERAL REPORTER, 2d SERIES believing the judge's original charge re· onee federal grand jury began it.a criminal garding the requirements of the law was investigation of same transaetiona; (3) offi aupeneded, and there is no renaon to be cers had sufficient notice of possibility that lieve defendant was harmed in any way. default judgment would be entered against
them; and (4) officers' persistent refusal to Since defendant's claims do not constitute comply with court orderi throughout litiga reversible error, her conviction is tion justified finding of contempt.
AFFIRMED.
Affirmed. 1. Federal Civil Procedure ~ 1278 District courts have broad discretion in determining whether to impose a sanction under rule which apecificalJy empowers en try of judgment by default against diso
SECURITIF.S AND EXCHANGE COM·
bedient party for failure to obey discovery MISSION, Plalntlff·Appellee, ordere and, if so, what sanctions to impose. Fed.Rules Civ.Proc. Rule 37(b)(2)(C), 28 v. U.S.C.A. FIRST FINANCIAL GROUP OF TEXAS, INC., Defendant, 2. Federal Courts ~820 In reviewing district court's entry of Wllliaal H. Rowton, et al., discovery sanction, Court of Appeals' role is Defenclant.-Appellantl. limited to determination whether important No. 80-1895 historical findings made by the district Summary Calendar. court are clearly erroneous and whether district court abused its discretion in impos
Unit.ed States Court of Appeals, ing particular sanction. Fed.Rules Civ. Fifth Circuit. Proc. Rule 87, 28 U.S.C.A. Oct. 21, 1981. 3. Federal Court. *-792 On appeal from entry of default judg Action was brought by Securities and ment for failure to obey discovery orders, Exchange CommiBBion to enjoin corporation officers 'of corporation which engaged in which sold securities to the public and two selling ~uritiea to the public had burden of its officers from continuing to engage in of demonstrating that district court's factu fraudulent practices in connection with the al findings were clearly erroneous. Fed. sale of guaranteed student loans. The Rules Civ.Proc. Rule 52(a), 28 U.S.C.A. United States District Court for the So~th· ern District of Texas, at Houston, Rosa N. '· Securities Regulation ca::.177 Sterling, J., held officers in contempt and Record in action by Securities and Ex permanently enjoined them from further change CommiBBion to enjoin corporation violations of federal securities laws, and and two of its officers from continuing to they appealed. The Court of Appeals, Ains engage in fraudulent practices in connec worth, Circuit Judge, held that: (1) District tion with sale of guaranteed student Joana Court, baaed upon evidence disclosing offi supported district court's findings that SEC, cen' peraistent refusal to respond to dis magistrate, or district court itself suffi covery request.a made by SEC and to com ciently notified officen of their attendance ply with court orders, did not abuse it.a and production requirements before default discretion in entering default judgment judgment was entered against offieers for against officen; (2) District Court was not failure to comply with discovery orders. required to stay SEC's civil proceedings Fed.Rules Civ.Proc. Rule 37, 28 U.S.C.A.
*67 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. Clteut19F.2d ... (INI) 5. Federal Civil Procedure ..,.1568 dicate different interests promoted by dif- Corporate officers' contention that dis- ferent regulatory provisions even though it trict court did not find that they were in attempts to vindicate several interests ppaeeuion of records of corporation sought simultaneously in different forums. by Securitiea and Exchange Commiaeion 9. Abatement and Revival -.5 and that reoorda were turned over to tem
Securltie1 Resulatlon c=o85 porary receiver for corporation shortly after No per ee rule forbids Securities and October 10th did not justify their refusal to Exchange Commission and Justice Depart produce those records for SEC In response ment from pursuing simultaneous investi to its numerous diacovery requests prior to gations or lawsuits into same transactions October 10th when they admittedly did allegedly in violation of federal securities have poeaeaaion of records. Fed.Rules Civ. laws. Proc. Rule 87, ~ U.S.C.A. 10. Action *'>69(5) 6. Federal Courta *=>816 In special circumstances, a district In determining whether district court court should stay one of the proceedings abused its discretion in entering default pending completion of the other to prevent judgment for failure to comply with dis party from suffering substantial and irrepa covery orders, it was not Court of Appeals' rable prejudice as result of simultaneous reaponsibility to say whether it would have investigations or lawsuits by Securities and choaen more moderate aanction but, rather, Exchange CommiBBion and J uatice Depart it was its responsibility solely to decide ment into same traneactiona that allegedly whether district court could in its discretion violate federal securities laws. have determined that officers' conduct was 11. Witneuea ..,.308 eo flagrant as to justify entry of default judgment. Fed.Rules Civ.Proc. Rule 87, ~ Requiring a party to object with speci U.S.C.A. ficity to information sought from him per
mits district court to rule on validity of hie 7. Federal Civil Procedure e-1636 claim of privilege in connection with dis District court, which baaed its decision covery requests; party is not entitled to upon evidence of corporate officers' persist decide for himself whether he is protected ent refusal to respond to discovery requests by Fifth Amendment privilege and court made by Securities and Exchange Commis should decide after conducting particular sion and to comply with court orders, and ized inquiry whether privilege is well which offered officers every opportunity to f ounded. U.S.C.A.Const. Amend. 5. 1atiafy their obligatione, did not abuee its 12. Witnesses 11=tS07 diBcretion in entering default judgment againat officers in action brought by SEC to Even where party has legitimate claim enjoin corporation and officers from contin of privilege with respect to certain qu~ uing to engage in fraudulent practices in tione or lines of inquiry, that person may connection with sale of guaranteed Btudent not be entitled to invoke hie privilege to remain totally silent; it is only where court loans. Fed.Rules Civ.Proc. Rule 87, ~U.S. C.A. finds that he could legitimately refuse to
answer essentially all relevant questions be 8. Abatement and Revival e=& cause of threat of incrimination from any There is no general federal constitu relevant questioning that a person is totally tional, statutory, or common-law rule bar excused from responding to relevant inqui~ ring simultaneous proeecution of separate ies. U .S.C.A.Conat. Amend. 5. civil and criminal actions by different fed 13. Wltnel8ea *""30'1 eral ~nciea against same defendant in volving same transactions; simultaneous A blanket invocation of the Fifth prosecution is generally unobjectionable be Amendment privilege i~ insufficient to re cauee federal government is entitled to vin- lieve a civil litigant of responsibility to an-
659 FEDERAL REPORTER, 2d SERIES
*68 swer questions put to him during civil dis presumably by following prior ordens, con covery process and to claim privilege with tempt judgment was civil in nature and respect to each ·inquiry. U.S.C.A.Const. consequently validity of order underlying Amend. 5. contempt judgment had to be examined
since judgment of civil contempt could not H. Federal Court. .,..625, 640 stand if basis for judgment was erroneous. Failure of corporate officers, who nei ther sought protective order from district 18. Federal Civil Procedure *» 1640 court nor objected to specific information Corporate officers' persistent refusal to sought by Securities and Exchange Com comply with district court's discovery orders mission but instead simply refused to re throughout litigation, in which Securities spond at all to SEC's discovery requests, to and Exchange Commi88ion sought to enjoin properly raise their claim of privilege in officers and corporation from continuing to proceedings before the district court pre engage in fraudulent practices in connec vented them from relying on this conten tion with sale of guaranteed student loans, tion on appeal from entry of default judg justified district court's imposition of civil ment against them for failure to obey dis contempt sanction. covery orders. U.S.C.A.Const. Amend. 5. 19. Contempt *»28(2), 70 15. Federal Civil Procedure IP2419 Reliance upon advice of counsel may be Where Securities and Exchange Com considered in mitigation of contempt sanc miBSion filed motion for default judgment tion but does not constitute defense to con on March 10th and hand delivered copy of tempt of court. motion to counsel for corporate officers that day, where on March 14th, SEC filed application for entry of order of permanent
Rhett G. Campbell, Houston, Tex., for injunction by default and again served copy defendants-appellants. of its motion on counsel that day, and Michael K. Wolensky, Douglas J. Scheidt, where district court did not enter its order Linda D. Fienberg, Paul Gonson, Asst. Gen. of permanent injunction by default against Counsels, Securities & Exchange Comm., officers until March 20th, corporate officers Washington, D. C., for plaintiffs-appellees. had sufficient notice of possibility that de fault judgment would be entered against
Appeal from the United States District them in action by SEC seeking to enjoin Court for the Southern District of Texas. fraudulent practices in sale of guarant.eed student Joans. Fed.Rules Civ .Proc. Rule
Before AINSWORTH, REAVLEY and 55(b)(2), 28 U.S.C.A. RANDALL, Circuit Judges. 16. Contempt ..,.20 A party commits contempt when he AINSWORTH, Circuit Judge. violates a definite and specific order of the William H. Howton and Vining Tower court requiring him to perform or refrain Reynolds, Jr., officers of First Financial from performing a particular act or acts Group of Texas, Inc. (First Financial), a with knowledge of the court's order. Texas corporation engaged in the business 17. Federal Civil Procedure *'"1640 of offering and selling securities to the pub Where purpose of order was to compel lic, appeal from two separate judgments of corporate officers to comply with court's the United States District Court for the previous orders requiring them to submit to Southern District of Texas which held them in contempt of court and permaner1tly en discovery by Securities and Exchange Com· mission rather than to vindicate court's au joined them from further violations of the federal securities laws. The district court thority without regard for officers' future compliance, and where order itself stated entered these judgments in an action brought by the Securities and Exchange that officers could purge their contempt,
*69 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. Cltt u Ill P.2d llO (1181) Commi88ion (SEC) to enjoin Howton, Reyn- ments and the SEC subsequently brought olds, and First Financial from continuing to this suit against appellants and First Finan engage in fraudulent practices in connec- cial under the federal securities laws. [1] tion with the sale of guaranteed student loans. We agree with the district court's holdings and affirm.• B. Proceedings before the District Court
The SEC filed its complaint against First I. Statement of the Case Financial on August 24, 1979. District Judge Bue i88ued a temporary restraining A. Background to the District Court order against appellants and First Financial Proceedings that day restraining the alleged unlawful Beginning in May 1979, Howton and conduct, and set a hearing on the SEC's Reynolds, acting as representatives of First motion for a preliminary injunction for Au Financial, began to market packages of gust 81. On August Z'l, the SEC began guaranteed student loans and repurchase discovery proceedings by filing a motion agreements totalling approximately nine under Fed.R.Civ.P. SO(a) to depose appel million dollars to several institutional inves lants and other persons associated with tors.• As part of the agreements reached First Financial and to examine First Finan between First Financial and these investors, cial'& corporate and financial records. The First Financial agreed to deposit the loans SEC then served notice that it would depose with a third party, such as a bank, and also agreed to repurchase the loans from the Reynolds or any other authorized represent ative of First Financial on August 28 as investors either on a specified date or at the option of the investor. First Financial dis well as examine certain specified documents honored its obligations under these agree- of First Financial. The SEC also subpoe- 1. Prior to brlngln1 this lawsuit, the SEC beaan Department of Health, Education and Welfare
an Investigation of the events leadln1 to this of the United States Government. Packages of case. On Aprtl 18, 1979, the SEC l1Sued a GSL1 are grouping• of Individual student loans subpoena to First Financial requiring It to pro which vary In amount. The student loan1 com duce certain financial documents, and on June
prt1ln1 these packages are made by originating 18 the SEC applied to the dl1trtct court for the banks to students In Institutions of hlaher edu Southern Dlltrict of Teus for an order to com· cation or at certain vocational achool1. These pel First Financial to comply with the SEC'•
loan• provide the holder with a seven percent IUbpoena. SEC v. Flnt Financial Group of retum plu1 an additional lntere1t Increment de· Texas, Inc., No. H-79-1243 (S.D.Tex., ftled tennlned on a quarterly bails by abort-term June 18, 1979). That action was unresolved at United State• Treuury Bill rate1." SEC v. the time the SEC flied Its complaint In thli First Financial Group of Texas, Inc., No. H-79- case, but the SEC has stated In Its brtef that It 1772 slip op. at 2-3 (S.D.Tex., Sept. 28, 1979), voluntartly dl1mi11ed that action on Febrvary afl'd In part, appeal dl1mlsaed as moot In p11rt, Ill, 1980. In an earlier decl1lon by thil court 645 F.2d 429, 440 (15th Cir. 1981). lnvoMna matters lri thl1 case, we affirmed the dl1trtct court's entry of a preliminary lnJunc·
a. The SEC brought this ault ba1ed upon t l 7(a) lion a1aln1t First Financial as well a1 the di•· of the Securltle1 Act of 1933, 115 U.S.C. trtct court'• appointment of a temporary re I 77q(a), t IO(b) of the Securttlea Exchange Act ceiver for First Financial. We alao dlaml11ed of 193', 15 V.S.C. § 7BJ(b), and Rule IOb-5, 17 u moot Howton'• and Reynold•' appeal from C.F.R. 240.lOb-5, promulaated under the 1934 the dlatrtct court'• entry of a preliminary In· Act, which render unlawful the offer or sale of Junction apinll them on the around that the securities throuah fraudulent, manipulative, or dl1trtct court's entry of the permanent lnJunc· deceptive schemes or devices, lncludln1 the uae tlon Involved In thl1 appeal mooted Ill earlier of falae or misleading 1tatements of material order. SEC v. Flnt Financl-1 Group of TexH, fact. SE.C v. First Financial Group of Texas, Inc., 645 F.2d 429 (15th Cir. 1981).
Inc., 645 F.2d 429, 431 & n.2 (5th Cir. 1981). 2. In ita order arantln1 the SEC'• motion for a Section 20(b) of the 1933 Act, 15 U.S.C. preliminary Injunction, the dl1trtct court de· 177t(b), and§ 21(d) of the 1934 Act, 15 U.S.C. scribed theae securities a1 follow1: "GSLll § 78u(d), authorize the SEC to seek permanent [guaranteed 1tudent loana] con1l1t of student
lnJunctlon1 to prevent violations of the lecurt loan• made by bank1, or other financial in1tltu· tlea law1. SEC v. Zale Corp., 650 F.2d 718, 720 Uona, that are guaranteed, If certain conditions (5th Cir. 1981). are met, by the Office of Education (OE) of the *70 669 FEDERAL REPORTER, 2cl SERIES naed Howton and Reynolds to be witnesses olds appeared at the March 8 deposition but at the hearing on the SEC's motion for a refused either to testify, produce the sub preliminary injunction on August 81. poenaed material, or assert any privilege to Reynolds appeared for the August 28 depo justify his noncompliance with the district sition on behalf of First Financial but re court's February 15 order. Howton did not fused either to testify or to produce any of appear or provide the SEC with any docu the subpoenaed documents. Howton and .ments. The magistrate orally directed ap Reynolds both failed either to appear or to pellants at the March 8 deposition to appear produce any of the subpoenaed material for before the district court on March 10 to the August 81 hearing. ahow cause why they should not be held in
contempt of the district court's February 15 At that hearing, District Judge Sterling order. Neither appellant appeared for the ordered appellants to make themselves March 10 hearing. The district court there available for discovery. The hearing was upon held appellants in contempt of court not completed that day and Judge Sterling
for "totally violat[ing] all of the aforesaid set the remainder of the hearing for Sep orders of the Court" and ordered appellants tember 7. The SEC then served notice
confined for ten days unless they purged upon 11.ppellants of its intent to depose them the contempt. as well as examine First Financial's records on September 5. Appellants again failed
The SEC subsequently filed a motion for either to appear for this deposition or to default judgment against appellants under produce the requested documents. The Fed.R.Civ.P. S7(b)(2) requesting a perma SEC repeated its procedure on September 5, nent injunction. Appellants did not oppose and issued subpoena's directing appellants this motion and on March 20 the district to appear for testimony and produce First court entered a default judgment against Financial's records at the September 7 con appellants, accompanied by findings of fact tinuation of the SEC's motion for a prelimi and conclusions of law, permanently enjoin nary injunction. Again, appellants failed ing appellants from engaging in certain either to appeal' or to produce the subpoe conduct in violation of the federal securities naed material. laws. Appellants subsequently moved for a new trial, requesting the district court to At the September 7 hearing, the District vacate its default judgment, and Reynolds Judge ordered appellants to appear for dep ositions and to produce the subpoenaed ma also requested a new trial on the district court's contempt order. The district court terial within the next two weeks. The SEC denied both motions and this appeal fol noticed a deposition for September 14 at which both appellants failed to appear or lowed. produce any documents. The SEC renot iced a deposition for September 20, which II. Default Judgment was continued until September 21 at the
[l, 2] Rule 87(b)(2)(C) of the Federal request of appellants' counsel. Reynolds Rules of Civil Procedure specifically em finally appeared for this deposition, but he powers a district court to enter "a judg refused to testily on any substantive matter ment by default against the disobedient or to produce any documents of First Fi party" for his failure "to obey an order to nancial. provide or permit discovery." See Roadway Express, Inc. v. Piper, 447 U.S. 752, 768, 100 On November 2, the SEC filed a motion S.Ct. 2455, 2462, 65 L.Ed.2d 488 (1980); Na seeking to have the district court compel appellants to submit to discovery before a tional Hockey League v. Metropolitan Hockey Club, 427 U.S. 689, 648, 96 S.Ct. magistrate. The district court granted this motion, without opposition, on February 15, 2778, 2781, 49 L.Ed.2d 747 (1976) (per cu 1980, and ordered appellants to testify be riam). District Courts have broad discre fore a maptrate on March S and produce tion in determining whether to impose a the records subpoenaed by the SEC. Reyn- sanction under Rule 87 and, if so, what
*71 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. ClteuU8F.2dllO (1811) sanction to impose. National Hockey un.succeBSful attempts to obtain testimony League v. Metropolitan Hockey Club, supra, from Howton and Reynolds as well as the 427 U.S. at 642, 96 S.Ct. at 2780; Marshall records of Firat Financial. Appellants do v. Segona, 621 F.2.d 768, 766 (6th Cir. 1980). not challenge the district court'.a findings In reviewing a district court's entry of a that they neither appeared, testified, nor Rule· 87 sanction our role is limited to a produced the subpoenaed records. Nor do determination of whether important histori appellants contend that they did not in fact cal findings made by the district court are have notice of their diacovery obligations clearly erroneous and whether the district under the various summonses iBSued by the court abused its ' discretion in imposing a SEC and orders issued by the district court. particular sanction. Marshall v. Segona, su Instead, appellants' primary argument is pra, 621 F.2.d at 766-67. See National that there is nothing in the record to sup Hockey League v. Metropolitan Hockey port the district court's findings that they Club, supra, 427 U.S. at 642, 96 S.Ct. at received notice of the different depositions 2780. and hearings that they were required to
attend. However, the record fully supports Appellants challenge the default judg the district court's findings that the SEC, ment on four grounds. First, appellants the magistrate, or the district court itself contend that the district court's factual sufficiently notified appellants of their at findings are clearly erroneous. Second, ap tendance and production requirements. pellants argue that the district court abused Appellants' arguments to the contrary are its discretion in entering a default judg either factually inaccurate or legally irrele ment. Third, appellants argue that the dis vant and are therefore rejected. trict court should have stayed this civil SEC proceeding pending the outcome of a grand
[5] Appellants also contend that the dis jury investigation into the same transac trict court did not find that appellants were tions at issue here. Finally, appellants ar in possession of the records of First Finan gue that the district court entered the de cial sought by the SEC. The ~rda, ac fault judgment without affording them ad cording to appellants' briefs, were turned equate notice of its intention to do so. over to the temporary receiver appointed by None of these contentions has merit. Judge Sterling for Fint Financial shortly after October 10. Appellants, however, dic;l
A. Factual Finding& by the District not discuss possession of these records until Court the March 3 deposition. But, even auum [3, 4] Appellants argue that the district ing appellants' tardy representation to be court's factual findings are "wholly inaccu true, it can not justify their refusal to pro rate and clearly erron~ous." Appellants duce these records for the SEC in response have correctly identified our standard of to its numerous requests prior to October 10 review on this claim which is "limited by when they admittedly did have po1188811ion the rule that 'findings of fact shall not be of the records. Moreover; the record dis set uide unleea clearly erroneous.' " SEC closes that the temporary receiver did not v. Blatt, 688 F ,2,(1 1825, 1828 (6th Cir. 19'78), obtain these records until late February, quoting Fed.R.Civ.P. 62(a). See McAllister 1980. v. United States, 848 U.S. 19; 20, 76 S.Ct. 6, 8, 99 L.Ed. 20 (1964); Stevens v. East-West Finally, appellants contend that the dis Towing Co., Inc., 6'9 F.2d 1104, 1106 (5th trict court's conclusion that they willfully Cir. 1981). Appellants bear the burden of failed to satisfy their discovery obligations finds no support in the record. Their argu demonstrating that the district court's fac tual findings are clearly erroneous. Gupta ment proceeds from the assumption, which v. East Texas State University, 654 F.2.d we have already rejected, that the district court's finding& of fact are erroneous. 411, 418 (5th Cir. 1981). The district court's Their conclusion falls with their premise. findings, diecuaaed above, detail the SEC'a *72 659 FEDERAL REPORTER, 2d SERIES
B. Abuse of Discretion the discovery requests made by the SEC and to comply with the orders of the dis Appellants contend that the district court trict court. The evidence demonstrates ap abused its discretion in entering a default pellants' willful bad faith and callous disre judgment. Both appellant.a contend that gard for the responsibilities of litigants, they did not believe that they were required contradicting any inference of accide.ntal to attend the March 10 hearing on the oversight or confusion on their part. The magistrate's order to show cause why they capstone of appellants' unrelenting and ab should not be held in contempt. In addi ject refusal to satisfy their obligations is tion, Reynolds argues on his own behalf their failure even to appear for the hearing that he did appear for depositions twice on the magistrate's order to show cause prior to the March 8 deposition and that he never intentionally failed to appear for any why they should not be held in contempt deposition or hearing. Therefore, appel because of their prior absences and refusals lants argue that the extreme sanction of a to comply with the SEC's discovery re default judgment was inappropriate. quests. "[W]hen a defendant demonstrates
flagrant bad faith and callous disregard of However, the magistrate's oral order di its responsibilities, the district court's choice rected to the parties and entered in the of the extreme sanction is not an abuse of presence of Reynolds and the attorney for diacretion." Emerick v. Fenick Industries, Reynolds and Howton was explicit in its Inc., supra, 539 F .2d at 1381. The district requirement that both appellants appear court offered appellants every opportunity before the district court on March 10 to to satisfy their obligations and accordingly show cause why they should not be held in did not abuse its discretion in entering a contempt. The magistrate also entered a default judgment. minute entry into the record requiring the appellant.a to appear for the show cause hearing. These orders clearly stated that
C. Stay of SEC Civil Proceedings appellant.a were required to appear before Appellants argtie that the district court the district court and appellants' argument erred by failing to stay the SEC's civil that the procedure followed by the magis proceedings once a federal grand jury be trate waa confusing is meritless. gan its criminal investigation of the same Reynolds' argument that he never inten transactions underlying the SEC'a suit. Ac tionally failed to appear for any deposition cording to appellants, "once there is a crimi is similarly contrary to the record. His nal proceeding regarding the same tranaac- repeated absences from noticed depositions tiona as are involved in a civil proceeding, is well documented by the record and we the civil discovery against the subject of the can not accept hie argument that these ab criminal proceeding should cease in the civil sences were not intentional. cue." Brief for Appellants at 14. Reyn [6, 7] In determining whether the dis olds also argues that the magistrate and trict court abused its discretion "[i]t is not district court both erred in overruling his · our responsibility as a reviewing court to objection to the SEC's diaeovery attempts say whether we would have choaen a more on the ground that the information aouiht moderate sanction. It is our reaponaibility was privileged. solely to decide whether the district court (8] There is no general federal constitu could, in its discretion, have determined the appellant's conduct to be ao flagrant as to tional, statutory, or common law rule bar justify [entering a default judgment.]" ring the simultaneous prosecution of sepa Emerick v. Fenick Industries, Inc., 689 F.2d rate civil and criminal actions by different 1879, 1381 (6th Cir. 1976). The district federal agencies against the same defend court ·baaed its decision upon the entire ant involving the same transactions. Paral lel civil and criminal proceedings instituted record of proceedinra which amply discloses appellants' peniatent refusal to respond to by different federal agencies are not un-
*73 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. ClteulllF.2dMO (11111) common occurrences because of the overlap- criminal actions to enforce the federal secu ping nature of federal civil and penal laws. rities laws could be as preSBing as the need The simultaneous prosecution of civil and to prosecute simultaneous actions to enforce criminal actions is generally unobjectiona- the antitrust or food and drug laws. SEC ble because the federal government is enti- v. Dresser Industries, Inc., 628 F.2.d 1868
,.,.. ~ ·-~ AA9 us (DC Cll'' ) ( ba ) tled to vindicate the different interests pro- . , en nc , ce~·· uemc:u, - . . . . moted by different regulatory provisions 993, 101 S.Ct. 629, 66 L.Ed.2.d 289 (1980). even though it attempts to vindicate several Protection of the efficient operation of the interests simultaneously in different fo- securities markets and the financial hold rums. The Supreme Court recognized that
inga of investors from fraudulent market- the federal government may pursue civil . ing practices may require prompt civil en and criminal actions either "simultaneously forcement which can not await the outcome or successively" in 1912 in Standard Sani of a criminal investigation. Id. at 1875. tar,y Manufacturing Co. v. United States, We agree with the reaaoning of the District 226 U.S. 20, 62, 83 S.Ct. 9, 16, 57 L.Ed. 107' of Columbia Court of Appeals and decline and reaffirmed this principle in 1970 in to create any per se rule forbidding the United States v. Kordel, 897 U.S. 1, 11, 90 SEC and Justice Departments from pursu S.Ct. 768, 769, 26 L.Ed.2.d 1. [1] In both cases, ing simultaneous investigation& or lawsuits the Supreme Court observed that prompt into the same transactions allegedly in vio in".eatigation and enforcement both civilly lation of the federal securities laws. and criminally were sometimes necessary in The Supreme Court's decision in United order to protect the public interest and that deferring or foregoing either civil or crimi States v. LaSalle National Bank, 487 U.S. nal prosecutions could jeopardize that inter 298, 98 S.Ct. 2857, 57 L.Ed.2.d 221 (1978), est. Accordingly, the Supreme Court de relied upon by appellants, does not require a clined to create a per se rule forbidding contrary result. In LaSalle National Bank simultaneous civil and criminal actions to and its precursor Donaldson v. United enforce the antitrust and food and drug States, 400 U.S. 617, 91 S.Ct. 584, Z1 laws at issue in Standard Sanitary Manu L.Ed.2.d 580 (1971) the Supreme Court held facturing Co. and Kordel.
that the Internal Revenue Service (IRS) may not uae ita authority to iuue aummons-· (9) Thia principle is fully applicable ea under 26 U .S.C. § '7602 (1976) solely for when the SEC and Justice Department each the purpose of gathering information for a seek to enforce the federal aecuritiea laws
criminal prosecution. See United States v. through separate civil and criminal actions. Davis, 636 F.2.d 1028, 1086 (5th Cir. 1981). The District of Columbia Court of Appeala recently held in a similar context that the But the rule set out in those cases was need to proeecute simultaneous civil and based upon limitations unique to the IRS I. "The public interest In protectlns con1umers 4. "The Sherman act providea for a criminal
proceeding to punish vlolaUons, and 1ult1 In throushout the Nation from misbranded drugs requires prompt action by the agency charged equity to restrain such vlolaUon1, and the 1utt1 may be brought simultaneously or 1ucce11lvely. with responsibility for admlnlst,rat.lon of the The order of their bringing must depend upon federal food and drug laws. But a ratl.onaJ decision whether to proceed criminally a11alnat the aovernment; the dependence of their trial• cannot be fixed by a hard-and-fa1t nile, or those responalble for the ml1brandlna may made imperatively to tum upon the character have to await consideration of a fuller record of the 1utt. Circumstance• may detennlne and than that before the a11ency at the time of the are for the con1lderatlon of the court. An civil aelzure of the offendlna product•. It Imperative rule that the civil suit must await would stultify enforcement of federal law. to the trial of the criminal action might result In require a governmental agency such as the ln,Juattce or take from the statute a great deal · FDA Invariably to chooae either to fe1rao rec of Its power. . . . It 11 manifest, therefor, that ommendation of a criminal prosecution once It the molt favoral)le view which can be taken of
1eek1 civil relief, or to deter civil proceedings the rtahta of defendant• In 1uch situation 11 pending the outcome of a criminal trial." that they depend upon the dlacretlon of the court In the particular ca1e." *74 859 FEDERAL REPORTER, 2d SERIES
resulting from the atatutory acheme of the SEC. Instead, appellants simply refused to lnt.ernal Revenue Code rather than upon respond at all to the SEC's discovery re any general principlea concerning the aimul quests. Howton never appeared for any taneoua and parallel pl'Olecution of civil and
deposition or hearing before the district criminal cues by different federal agencie1. court and never produced any records for See SEO v. Dresser Industries, Inc., supra, the SEC. Reynolds did appear for a few 628 F.2d at 1878-90 & n. 26. The SEC's depositions but sought to exercise a blanket authority to aubpoena material from appel privilege by refusing to respond to any lants under Fed.R.Civ.P. 26 is considerably questions of any type and also never pro broader than the IRS's authority to subpoe duced any records. "A blanket refusal to na material under § 7802, encompassing the answer questions at deposition on the right to diacover any non-privileged materi ground that they are privileged is an im al relevant to the aubject matter of the proper invocation of the fifth amendment, action. See Wehling v. Columbia Broad Irrespective of whether such a claim is casting System, 808 F.2d 1084, 1086 (5th made by a plain~iff, defendant, or a wit Cir. 1979). Accordingly, the limitations im neaa." Note, Plaintiff as Deponent: Invok posed upon the IRS by § 7602 recognized by ing the Fifth Amendment, 48 U.Chi.L.Rev. the Supreme Court in LaSalle National 158, 164 (1981); id. at 161. This Court bas Bank are not applicable to this civil suit by held that such a blanket assertion of the the SEC. Of. SEO v. Dresser Industries, privilege is insufficient to relieve a party of Inc., supra, 628 F.2d at 1877-84 (LaSalle the duty to respond to questions put to him, National Bank not applicable to SEC'a is stating that "even if the danger of self-in suance of summons). crimination is great, [the party's] remedy is (10-14] In "special circumstances," how not to voice a blanket refusal to produce his ever, a district court should stay one of the records or testify. Instead, he must present proceedings pending completion of the oth himself with his records for questioning, er to prevent a party from suffering sub and as to each question and .each record stantial and irreparable prejudice. See elect to raise or not to raise the defense." United States v. Kordel, supra. 397 U.S. at United States v. Roundtree, 420 F.2d 845, 11-18, 90 S.CL at 769-70, 25 L.Ed.2d l; 852 (6th Cir. 1969) (footnote omitted). See SEC v. Dresser Industries, Inc., supra, 628 United States v. Malnik, 489 F.2d 682, 685 F .2.d at 1877. For instance, in Wehling v. (6th Cir. 1974); Note, supra, 48 U.Chi.L. Columbia Broadcasting System, supra, 608 Rev. at 161. Requiring a party to object F.2d 108', we held that the district court with specificity to the information aought elTed by failing to stay a civil libel action from him permits the district court to rule pending the outcome of a related criminal on the validity of his claim of privilege. A investigation and potential proaecution or party is not entitled to decide for himself the running of the applicable statute of whether he is protected by the fifth amend limitations after the plaintiff had validly ment privilege. Rather, this question is for claimed hia f'afth amendment privilege in the court to decide after conducting "a par reaponse to the defendant's discovery re
ticularized inquiry, deciding, in connection quests and had sought a protective order staying the civil auiL See also The Black with each specific area that the questioning party seeks to explore, whether or not the Panther Party v. Smith, 661 F.2d 1243, privilege is well-founded." Uni~ States v. 127~1274 (D.C. Cir. 1981); United States Melchor Moreno, 686 F.2d 1042, 1049 (5th v. U. S. Currency, 626 F.2d 11, 14--16 (6th Cir. 1976). Even where a party has a legiti Cir. 1980); Campbell v. Gerrans, 592 F.2d 1054 (9th Cir. 1979); Thomaa v. United mate claim of privilege with respect to cer States, 581 F.2d 746 (6th Cir. 1976). But in tain questions or linea of inquiry, that per this case appellants neither sought a protec son may not be entil;led to invoke his privi tive order from the district court nor ob lege to remain totally silent. Only where jected to specific information sought by the the court finds that he could "legitimately
*75 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. Cite u Ill F.2d MO (1981) refuee to answer essentially all relevant not enter its order of permanent injunction questions," United States v. Gomez-Rojas, by default against appellants until March 607 F .2d 1218, 1200 (5th Cir. 1975), because 20. Rule 55(b)(2) does not require the dis of the threat of incrimination from any trict court to hold either an evidentiary relevant queationing is a person totally ex
hearing or oral argument on a motion for a cused from responding to relevant inquiries. default judgment. ThomBB v. United Otherwise, a person is entitled to invoke the States, 581 F.2d 746, 748 (5th Cir. 1976). privilege "[o]nly as to genuinely threaten Appellants had sufficient notice of the pos ing questions .... " United States v. Mel sibility that a default judgment would be chor Moreno, supra, 586 F.2d at 1049. See entered against them and their contention generally United States v. Goodwin, 625 is rejected. F.2d 698, 700-01 (5th Cir. 1980). Therefore, a blanket invocation of the fifth amend
III. Contempt Judgment ment privilege is insufficient to relieve a [16, 17] As the Supreme Court stated in civil litigant of the responsibility to answer
Gompers v. Buck's Stove & Range Co., 221 questions put to him during the civil dis U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.F.d. 797 covery process and to claim the privilege
(1911), "the power of courts to punish for with respect to each inquiry. See National contempts is a necessary and integral part Life Insurance Co. v. Hartford Accident & Indemnity Co., 615 F.2d 595, 598-600 (3d of the independence of the judiciary, and is absolutely essential to the performance of Cir. 1980); id. at 599 (cases cited); In re the duties imposed on them by law." See Folding Carton . Antitrust Litigation, 609 Roadway Express, Inc. v. pjper, supra, 447 F.2d 867, 878 (7th Cir. 1979) (per curiam); 8 C. Wright & A. Miller, Federal Practice and U.S. at 764, 100 S.Ct. at 2468. A party commits contempt when he violates a defi Procedure: Civil § 2018, at 142--48 (1970 & Supp.1981); Note, supra, 48 U.Chi.L.Rev. at nite and specific order of the court requir ing him to perform or refrain from per 161, 164. Appellants' failure properly to forming a particular act or acts with knowl raise their claim of privilege in the proceed ings before the district court prevents them edge of the court's order. See Jim Walter from relying on this contention on appeal. Resources, Inc. v. International Union,
UMW, 609 F.2d 165, 168 (5th Cir. 1980); In D. Notice of Default Judgment re Baum, 606 F.2d 592, 593 (5th Cir. 1980). In this case, the district court's judgment [15] Appellants' final challenge to the was an adjudication of civil contempt. The default judgment states that the district purpose of this order was to compel appel court entered the judgment without proper lants to comply with the court's previous notice to appellants. This argument is mer orders requiring them to submit to dis· itlesa. Rule 56(b)(2) of the federal rules of covery by the SEC rather than to vindicate civil procedure states that "[i]f the party the court's authority without regard for the against whom judgment by default is contemnor's future compliance with the sought has appeared in the action, he (or, if court's orders. See Smith v. Su11ivan, 611 appearing by representative, his representa F.2d 1050, 1058 (5th Cir. 1980). The order tive) s~all be served with written notice of itself stated that appellants could purge the application for judgment at least 8 days prior to the hearing on such application." their contempt, presumably by following the district court's prior orders, and we The SEC. filed a motion for default judg ment on March 10 and hand delivered a conclude that the contempt judgment en copy of the motion to counsel for appellants tered by the district court was civil in na that day. On March 14, the SEC filed an ture. Consequently, we must examine the application for the entry of an order of validity of the district court's order under permanent injunction by default and again lying its contempt judgment because a judgment of civil contempt can not stand if served a copy of its motion on counsel for appellants that day. The district court did the basis for the judgment is erroneous.
659 FEDERAL REPORTER, 2d SERIES
*76 17T Community Development Corp. v. Bar 80 F.2d 652, 656 (9th Cir. 1935); Spangler v. ton, 669 F.2d 1861, 1856 (5th Cir. 1978).
Pasadena City Board of Education, 884 F.Supp. 846, 849-50 (C.D.Cal.1974), vacated
Appellants contend that the district as moot, 687 F.2.d 1081 (9th Cir. 1976); id. oourt's contempt judgment should be re (cases cited); Theriault v. Carlson, 853 vened because the district court's factual F.Supp. 1061, 1066 n. 2 (N.D.Ga.1978), rev'd findings are clearly erroneous and the dis on other grounds, 495 F.2d 890 (5th Cir.), trict court abused ita discretion in holding cert. denied, 419 U.S. 1008, 96 S.Ct. 828, 42 them in contempt. Finally, appellants ar L.F.d.2d 279 (1974). gue that their refusal to submit to dis covery was based upon a valid claim of
The judgments of the district court are privilege and the advice of counsel. We can
AFFIRMED.
not accept these contentions. [18, 19) While the district court entered separate findings of fact in connection with its contempt judgment,• appellants' argu ment here is the aame aa that in regard to the default judgment-that there is noth ing in the record to support the finding that appelJants received notice of the different depositions and hearings they were required
Carole Hyman BURSTEIN, to attend. We have already rejected that Plaintlff-Appellant, argument in connection with our discusaion v. of the default judgment and, for the rea The STATE BAR OF CALIFORNIA, sons stated above, we also reject it here. Defendant-Appellee. The district court also did not abuse its di&Cl'etion. Appellants' penistent refusal to
No. 80-4017 comply with the district court's orders Summary Calendar. throughout this litigation justified the dis United States Court of Appeals, trict court's imposition of this sanction. Fifth Circuit. For the reaaona stat.eel above, we also reject appelJants' argument that they validly in
Oct. 21, 1981. voked their f'J.fth amendment privilege be fore the district court. Finally, we reject appellants' contention that reliance upon Suit was brought against the State Bar the advice of counsel constitutes an excuse of California alleging breach of contract for their refusal to obey a valid court order. and negligence, and deprivation of due Reliance upon advice of counsel may be procesa and equal protection in violation of considered in mitigation of the sanction but civil rights statute, in connection with grad doea not constitute a defense to contempt of ing of plaintiff's bar examination. The court. Unit.eel States v. Seavers, 472 F.2d United States District Court for the East 607, 611 (6th Cir. 1973); In re Door, 196 ern District of Louisiana, at New Orleans, F .2d 766, 770 & n. 6 (D.C. Cir. 1952); Unit.eel 508 F.Supp. 227, Charles Schwartz, Jr., J., States v. Goldfarb, 167 F.2d 785, 785 (2d dismissed for lack of peraonal jurisdiction, Cir. 1948) (per curiam); Eustace v. Lynch, and plaintiff appealed. The Court of Ap- I. The opinion entered by the dlatrtct court on tentlon, this opinion was not entered In connec
March 20 contained factual findlnas and legal tion with the district court's contempt order, conclullona In connection with the court's en lasued on March 12. The district court laaued a separatt! opinion In connection with that order. try of a pennanent injunction by default judg SEC v. FiTst Financial GToup of Texas, Inc., No. ment. SEC v. FITst Fln•nclal Group of Texas, No. H-~1772 slip op. at 3-G (S.D.Tex., March H-79--1772 (S.D.Tex., March 12, 1980). Record 20, 1980). Record on Appeal, Vol. JV at 550- on Appeal, Vol. IV, at 539-41. 52; kl. at G53--M. Contrary to appellants' con·
608 FEDERAL REPORTER, 2d SERIES
*77 believed might be used against him as ac Carl D. WEHLING and Geraldine D. cused in criminal prosecution. U.S.C.A. Wehlin1r, Plaintiff•-Appellanta, Const. Amend. 5; Fed.Rules Civ.Proc. Rule 26(b)(l), 28 U.S.C.A. v.
COLUMBIA BROADCASTING SYSTEM,
2. Witnesses *-297(1) Defendant-Appellee. If party reasonably apprehends risk of No. 77-2840. self-incrimination, he may claim Fifth Amendment privilege though no criminal United States Court of Appeals, charges are pending against him and even Fifth Circuit. if risk of prosecution is remote. U.S.C.A. Dec. 28, 1979. Const. Amend. 6. Rehearing Denied Feb. 14, 1980. 3. Witnesses .,..309 See 611 F .2d 1026. Plaintiff who retreats under cloak of In a libel action, the plaintiff refused to Fifth Amendment cannot hope to gain un answer certain questions posed by defend equal advantage against party he has cho ant during his oral deposition and then as sen to sue. U.S.C.A.Const. Amend. 5. serted his Fifth Amendment privilege against compelled self-incrimination in re
4. Federal Civil Procedure .,_ 1800 sponse to order to comply with defendant's Civil plaintiff's assertion of his Fifth discovery request. The United States Dis Amendment privilege during pretrial die trict Court for the Western District of Tex covery did not automatically require dis as at San Antonio, John H. Wood, Jr., J., miesal of his libel action. U.S.C.A.Const. then dismissed action, and plaintiff appeal Amend. 5; Fed.Rules Civ.Proc. Rule ed. The Court of Appeals, Lewis R. Mor 26(bXl), 28 U.S.C.A. gan, Circuit Judge, held that: (1) plaintiff's assertion of privilege during pretrial dis
5. Federal Civil Procedure -.1278 covery did not automatically require dis No provision in federal diecovery rules missal of his libel action; (2) when plain authorizes court to impose sanctions on par tiff's silence is constitutionally guaranteed, ty who resists discovery by asserting valid dismissal of civil action is appropriate only claim of privilege, and thus district court when other, less burdensome remedies had no authority to order civil plaintiff to would be ineffective means of preventing discloae privileged information and should unfairness to defendant, and (3) where not have imposed sanctione when civil plain staying discovery until applicable criminal
tiff declined to answer during pretrial dis statute of limitations ran would not impose covery on Fifth Amendment grounds, al undue hardship on defendant, trial court though district court was not precluded abused its discretion in denying plaintiff's from using dismissal [88] remedy to prevent motion for a protective order seeking such a stay. unfairness to defendant [88] last resort. U.S.
C.A.Const. Amend. 5; Fed.Rules Civ.Proc. Reversed and remanded. Rule 26(b)(l), 28 U.S.C.A. 1. Witneaae• *-293 [1] h 6. Federal Civil Procedure ...,.1741 Fact that Fifth Amendment privilege against self-incrimination is raised in civil Dismissing action by civil plaintiff, who in addition to Fifth Amendment right to proceeding rather than criminal prosecution does not deprive party of its protection, and silence has due process right to judicial thus under both federal discovery rules and determination of civil action, solely because the Constitution, civil plaintiff in libel ac he exercises his privilege against self-in tion was under no obligation to disclose to crimination is constitutionally impermissi defendant information that he reasonably ble. U.S.C.A.Const. Amend. 5.
*78 WEHLING v. COLUMBIA BROADCASTING SYSTEM Cite u I08 F.2d 1084 (1179) 7. Federal Civil Procedure e=>1741 his Fifth Amendment privilege against A civil plaintiff has no absolute right to CQmpelled self-incrimination in response to both his silence and his lawsuit but neither discovery order, district court was not pre does civil defendant have absolute right to eluded from dismissing action if circum· have action dismissed anytime plaintiff in· stances arose that required use of this dra.s vokes his constitutional privilege, and thus tic remedy and thus, should district court when plaintiff's silence is constitutionally determine that postponing discovery de guaranteed, dismissal is appropriate only prived defendant of crucial information where other, less burdensome remedies that otherwise would have been available would be ineffective means of preventing and that lack of such information compro unfairness to defendant. U.S.C.A.Const. mised defendant's ability to prove truth, Amend. 5. court would be free to fashion whatever
remedy was required to prevent prejudice 8. Witnesses *"'" 308 to defendant. U.S.C.A.Const. Amend. 5. After civil plaintiff in libel action re fused to answer certain questions posed by defendant during plaintiff's oral deposition
Joel W. Westbrook, Bruce L. Goldston, and 88Berted his Fifth Amendment privilege San Antonio, Tex., for plaintiffs-appellants. against self-incrimination in response to or der to comply with discovery request, dis
Thomas R. Phillips, Houston, Tex., for trict court should have measured relative defendant-appellee. weights of parties' competing interests with view towards accommodating those inter Appeal from the United States District ests, if possible, thus insuring that rights of
Court for the Western District of Texas. both parties were taken into consideration before deciding whose rights predominated.
Before MORGAN, RONEY and GARZA, U.S.C.A.Const. Amend. 5. Circuit Judges. 9. Federal Civil Procedure cS=:> 1271 Where civil plaintiff was threatened LEWIS R. MORGAN, Circuit Judge. with potential criminal prosecution until ap In this diversity case plaintiff [1] appeals proximately September 1, 1980, and where from the dismissal of his libel action under staying discovery would not impose undue Rule 37, Fed.R.Civ.P., for refusing to an hardship on defendant in libel action, per swer certain questions posed by CBS during mitting three-year hiatus in lawsuit was plaintiff's oral deposition. Wehling assert preferable to requiring plaintiff to choose ed his Fifth Amendment privilege against between his silence and his lawsuit, and compelled self-incrimination in response to thus further discovery should have been the district court's order to comply with stayed until applicable statute of limitations defendant's discovery request. The ques had run with respect to criminal prosecu tion presented is whether the court abused tion against plaintiff, who had asserted his its discretion in denying Wehling's motion Fifth Amendment privilege against com for a protective order and dismissing his pelled self-incrimination in response to dis complaint with prejudice. For reasons dis covery order. U.S.C.A.Const. Amend. 5. cussed below, we reverse the district court 10. Federal Civil Procedure ~1741 and remand so that the court might enter a Although dismissal of libel lawsuit was protective order temporarily staying fur premature following plaintiff's assertion of ther discovery in this action. I. Both Carl 0. Wehling and his wife, Geraldine Carl Wehling asserted his Fifth Amendment
D. Wehling were named as plaintiffs in the privilege during discovery, we will, for pur complaint filed against CBS, and both of the poses of convenience, refer to appellants as Wehlings are appellants here. Because only either "Wehling" or "plaintiff."
608 FEDERAL REPORTER, 2d SERIES
*79 I. been cooperating with the United States Attorney's office and the Attorney General Carl and Geraldine Wehling, the owners of a number of Texas proprietary and trade of Texas.' Accordingly, counsel advised schools, filed this libel action alleging that Wehling to invoke the Fifth Amendment 19 they had been defamed by a television news
times during the coune of the deposition in story appearing on the CBS Evening News response to questions which related to the on August 18, 1975, The broadcast stated subject matter of the pending grand jury that Wehling had defrauded both his own investigation. In refusing to answer any students and the federal government question regarding his operation of the through abuse of federal student loan and schools, Wehling deprived ·CBS of informa grant programs. When CBS sought pre tion concerning the accuracy of its broad trial discovery from plaintiff concerning the cast and thus thwarted discovery of issues details of the operation of these schools, at the heart of plaintiff's lawsuit. Wehling invoked his Fifth Amendment privilege against self-incrimination "as to all questions with respect to his operation of
II.
the schools." z [1] Under the federal discovery rules, The district court ordered Wehling t.o an any party to a civil action is entitled t.o all swer the questions posed to him at hia depo information relevant to the subject matter sition or suffer dismissal of his lawsuit for of the action before the court unless such failure to make discovery. Wehling then information is privileged. Fed.R.Civ.P. filed a motion for a protective order asking 26(b)(l). Even if the rules did not contain the court to fashion some type of relief [1] specific language exempting privileged in short of outright dismissal which would re spect the rights of both parties. The court formation, it is clear that the Fifth Amend denied plaintiff's Motion for Protective Or ment would serve as a shield to any party der and again ordered him to submit to who feared that complying with discovery discovery. Wehling informed CBS that he
would expose him to a riak of self-incrimi would continue to claim his Fifth Amend nation. The fact that the privilege is raised ment privilege, and on July 29, 1977, the in a civil proceeding rather than a criminal court dismissed plaintifrs action with prej prosecution does not deprive a party of its udice. protection. Lefkowitz v. Cunningham, 431 Prior to the broadcast, Wehling had been U.S. 801, 805, 97 S.Ct. 2182, 53 L.Ed.2d 1 subpoenaed to appear before a federal (1977); McCarthy v. Arndstein, 266 U.S. 34, grand jury investigating federally insured 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924). Thus, student Joan programs. In all five of his under both the Federal Rules of Civil Pro appearances before the grand jury, Wehling cedure and the Constitution, Wehling was a.aserted his Fifth Amendment privilege under no obligation to diaclose to CBS in against self-incrimination. On the date formation that he reasonably believed CBS took plaintiff's oral deposition, Wehl· might be used against him as an accused in ing's counsel stated that he had reason t.o a criminal prosecution. Maness v. Meyers, believe that the grand jury investigation was continuing, that Wehling was a target 419 U.S. 449, 461, 95 S.Ct. 584, 42 L.Ed.2d of that investigation, and that CBS had 574 {1975); Hoffman v. Unit.ed States, 341 2. Deposition of Carl D. Wehling, May 23. 1977. 4. The Attorney General of Texas was, at that
time, Involved In litigation against Carl Wehl 3. The Motion for Protective Order did not spec· ing under the Texas Consumer Protection Act lfy what relief the court should award plaintiff. concerning Wehllng's ownership and operation However, the accompanying Memorandum of proprietary schools. CBS haa admitted that Brief Indicated that plaintiff desired a stay of It interviewed a number of people at the United further discovery until all threat of criminal States Attorney's office, the state Attorney liability had terminated. General's office, and the Department of Health,
*80 WEHLING v. COLUMBIA BROADCASTING SYSTEM 1087 Cite H 808 F.2d 1084 (1179) U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 290 F.Supp. 141 (W.D.Wis.1968). Wehling, (1951). [5] however, has not claimed the right to pro
ceed to trial without answering the ques [2] The question here, however, is not tions posed by CBS during the deposition. whether Wehling had a right to invoke the Instead, Wehling asks only that discovery constitutional privilege against self-incrimi be stayed until all threat of criminal liabili nation, which he did, but what effect the ty has ended. We must decide whether, assertion of this privilege would have on his under the circumstances of this case, plain libel action against CBS. Wehling argues tiff should have been required to forego a that dismissing his lawsuit because he as valid cause of action in order to exercise his serted his self-incrimination privilege in ef constitutional right to avoid self-incrimina fect penalized him for exercising a funda
tion. mental constitutional right. He claims that the district court abused its discretion by
(4, 5] We hold that the district court making the invocation of the Fifth Amend erred in concluding that plaintiff's assertion ment privilege "costly." Malloy v. Hogan, of his self-incrimination privilege during 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 pretrial discovery automatically required (1964). CBS, on the other hand, argues the dismissal of his libel action. First, we that the district court properly respected find no provision in the federal discovery the rights of both parties when, though rules which authorizes a court to impose recognizing Wehling's right to assert the sanctions on a party who resists discovery self-incrimination privilege, it remedied the by asserting a valid claim of privilege. See resulting unfairness to CBS by dismissing 8 C. Wright & A. Miller, Federal Practice the action. Furthermore, CBS contends and Prooodure § 2018 (1970). Rule 26 limits that postponing discovery pending termina the scope of discovery to matter that is "not tion of the grand jury proceedings or expi privileged." Because CBS had no right to ration of the limitations period would preju information protected by the privilege dice its efforts to prepare a defense to against self-incrimination, Wehling did not Wehling's claim. violate the discovery rules when he declined [3] We do not dispute CBS's assertion to answer the questions posed at his deposi that it would be unfair to permit Wehling tion. In short, the district court had no to proceed with his lawsuit and, at the same authority to order Wehling to disclose privi time, deprive CBS of information needed to leged information and, consequently, should prepare its truth defense. The plaintiff not have imposed sanctions when Wehling who retreats under the cloak of the Fifth declined to answer. [8] Amendment cannot hope to gain an un [6] Second, we believe that dismissing a equal advantage against the party he has chosen to sue. To hold otherwise would, in plaintiff's action with prejudice solely be terms of the customary metaphor, enable cause he exercises his privilege against self plaintiff to use his Fifth Amendment shield incrimination is constitutionally impermissi as a sword. This he cannot do. See, e. g., ble. Wehling had, in addition to his Fifth Lyons v. Johnson, 415 F.2d 540 (9th Cir. Amendment right to silence, a due process 1969); Kisting v. Westchester Fire Ins. Co., right to a judicial determination of his civil 6. While dismissal is unavailable as a sancUon,
Education, and Welfare before formulating and broadcasting its news story. the district court is not precluded from using
dismissal as a remedy to prevent unfairness to 5. If a party reasonably apprehends a risk of the defendant. As we Indicate below, however, self-incrimination, he may claim the privilege dismissal may only be used as a remedy of last though no criminal charges are pending against resort where the plaintiff's refusal to submit to him, Savannah Sur. Associates, Inc. v. Master, discovery is based on his exercise of a constitu 240 Ga. 438, 439, 241 S.E.2d 192, 193 (1978), tional right. and even if the risk of prosecution is remote. In re Master Key Litigation, 507 F.2d 292, 293 (9th Cir. I 974) *81 608 FEDERAL REPORTER, 2d SERIES
action. When the district court ordered have no apparent interest in the criminal Wehling to answer CBS' questions or suffer prosecution, be placed at a disadvantage dismiMal, it forced plaintiff to choose be thereby." Jones v. B. C. Christopher & Co., tween his silence and his lawsuit. The Su 466 F.Supp. 213, 'lZ1 (D.Kan.1979). There preme court baa disapproved of procedures fore we emphasize that a civil plaintiff has which require a party to surrender one con
no absolute right to both his silence and his stitutional right in order to assert another. lawsuit. Neither, however, does the civil Simmo1JS v. Unit.ed States, 390 U.S. 377, defendant have an absolute right to have 394, 88 S.Ct. 967, 19 L.Ed . .2d 1247 (1968).
the action dismissed anytime a plaintiff in Similarly, the Court has emphasized that a vokes his constitutional privilege. When party claiming the Fifth Amendment privi plaintiff's silence is constitutionally guaran lege should suffer no penalty for his silence: teed, dismissal is appropriate only where In this context "penalty" is not restricted other, less burdensome, remedies would be to fine or imprisonment. It means, as we an ineffective means of preventing unfair said in Griffin v. California, 380 U.S. 609, ness to defendant. 85 S.Ct. 1229, 14 L.Ed.2d 106, the imposi [8] The district court's task in this case tion of any sanction which makes asser was complicated by the presence of compet tion of the Fifth Amendment privilege ing constitutional and procedural rights. In "costly." focusing solely on CBS' right to the re Spevack v. Klein, 885 U.S. 511, 515, 87 S.Ct. quested information, the court failed to at 625, 628, 17 L.Ed.2d 574 (1967). We agree tribute any weight to Wehling's right to his with the Ninth Circuit's conclusion in day in court. Instead of arbitrarily adopt Campbell v. Gerrans, 592 F.2d 1054, 1058 ing a rule favoring CBS, the court should (9th Cir. 1979), that dismissing a party's have measured the relative weights of the action because he asserts his Fifth Amend parties' competing interests with a view ment privilege makes resort to that privi toward accommodating those interests, if lege "costly." [7] See 8 C. Wright & A. Mil possible. This balancing-of-interests ap ler, Federal Practice and Procedure, § 2018 proach ensures that the rights of both par at 148. ties are taken into consideration before the [7] We recognize, of course, that Wehl court decides whose rights predominate. [8] ing is not the only party to this action who has important rights that must be respect [9] We find that the balance in this case ed. As we have observed, CBS should not tips in favor of Wehling and against CBS. Wehling filed his suit against CBS on Au be required to defend against a party who refuses to reveal the very information gust 17, 1976, the last day before limitations which might absolve defendant of all liabili ran on any libel action arising out of the ty. "While it may be true that an individu August 18, 1975 broadcast. Wehling had al should suffer no penalty for the assertion disposed of his last interest in the trade of a constitutional right, neither should schools in August of 1975 and, under the third parties sued by that individual who applicable statute of limitations,• was 7. CBS distinguishes Campbell v. Gerrans on were the question of privilege squarely present
the basis that in that case plaintiffs refused to ed. answer only peripheral questions which de fendant had no right to have answered anyway. 8. See generally, Comment, Penallzing the Civil The court did note that the four unanswered Litigant Who Invokes the Privilege Against interrogatories "were of a highly questionable Self-Incrimination 24 U.F1a.L.Rev. 541, 547 nature." 592 F.2d at 1057. It is arguable, (1972); Note, Use of the Privilege Against Self· therefore, that the court reversed because the Incrimination in Civil Litigation, 52 Va.L.Rev. questions were irrelevant and not because
322, 335 (1966). plaintiffs asserted a constitutional privilege. While the court's discussion of privilege is per 9. Counsel informs the court that under 18 U.S. haps unnecessary to its decision, the court's C.A. § 3282 Wehling was subject to a five year views on this question are clear and there is statute of limitations for any criminal activity little doubt as to how the court would hold related to his operation of the schools. Al-
*82 UNITED STATES v. MILLER Cheu 188 F.U 1089 (11711) threatened with potential criminal prosecu- whatever remedy is required to prevent un tion until approximately September 1, 1980. fairness to defendant. However, prejudice Thus, when Wehling filed hie Motion for to defendant. must be established before Protective Order in July 1977, he in effect any remedies are appropriate. was asking the court to stay further dis
The dismissal of Wehling's lawsuit is re covery for approximately three years. Al versed and the case remanded so that the though a three-year hiatus in the lawsuit is court may enter a protective order staying undesirable from the standpoint of b-Oth the further diacovery until the applicable stat court and the defendant, permitting such ute oC limitations has run. inconvenience seems preferable at. this point REVERSED and REMANDED. to requiring plaintiff to choose between his silence and his lawsuit. Dienstag v. Bron- sen, 49 F.R.D. 327, 329 (S.D.N.Y.1970); Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil Co., 14 F.R.D. 333 (E.D.Pa.1953); Na tional Discount Corp. v. Holzbaugh, 13 (E.D.Mich.1952). [10] Because F.R.D. 236 staying discovery would not impose undue UNITED STATES of America. hardship on defendant and, therefore, Plaintiff-Appellant, would protect the party exercising a consti
v. tutional privilege from unnecessary adverse Clifford Jerome MILLER and Kathelyn consequences, we believe the court abused Vandraise Miller, Defendante-Appellees. its discretion in denying W ehling's Motion for a Protective Order and dismissing the
UNITED STATES of America, lawsuit. Plaintiff-Appellant, (10] Finally, we wish to emphasize that v. although dismissal of the lawsuit was pre Clifford Jerome MILLER, mature at this stage of the proceeding, the Defendant-Appellee. district court is not precluded from dismiss ing plaintiff's action if circumstances arise Nos. 7~2274, 7~1737, 7~1978 which require the use of this drastic reme and 7~1979. dy. It is possible that avenues of discovery
United States Court of Appeals, open to CBS in 1977 will be closed by the Fifth Circuit. time the stay is lifted in 1980. Should the district court determine that postponing Dec. 28, 1979. discovery has deprived CBS of crucial infor
Rehearing and Rehearing En Banc mation which otherwise would have been Denied Feb. 14, 1980. available and that the lack of such informa tion has compromised CBS' ability to prove The United States District Court for truth, the court would be free to fashion the Western District of Texas, at El Paso, nor v. Minor, 240 So.2d 301 (Fla.1970). we are
though the Motion for Protective Order did not refer to the date on which the limitations peri unwtlllng to join their ranks. It is true that, as od would expire, the court never suggested that a voluntary litigant, the civil plaintiff has creat· that information would be important in its con ed the situation which requires him to choose sideration of plaintiff's motion. between his silence and his lawsuit. In most
cases, however, a party "voluntarily" becomes lO. We recognize that in each of these cases the a plaintiff only because there is no other means self-incrimination privilege was claimed by a of protecting legal rights. As one cornmentator civil defendant. CBS suggests that such cases
has observed, although the plaintiff-defendant are inappllcable where it is a plaintiff who "distinction Is superficially appeallng, . invokes his constitutional right of silence. Al civil plaintiffs seldom voluntarily seek situa though the plaintiff-defendant distinction has tions requiring litigation." Comment, supra its advocates, see, e. g. Jones v. 8. C. Christo
note 8 at 545. pher & Co., 466 F.Supp. 213 (D.Kan.1979): Mi- *83 TE•X. 757 PUBLIC SAFETY OFFICERS ASS'N v. DENTON Clteas897 S.W.ld 757 (Tex. 1995) appeals erred in reversing the bial coui-t's refusal to comply with discovery, a:nd plain judgment. TEx.R.A.PP. P. 8l(b). tiff appealed. The Austin Court of Appeals,
Third Judicial District, 862 S.W.2d 785, Mack Lemond complains that he was entitled to Kidd, J., i·eversed and remanded, aricl associ an instruction on manufacturing defect, and ation applied for writ of error. The Supreme that distributors of natural gas should be Court, Enoch, J., held that: (1) plaintiff was held to a higher standard of care because of engaging in "offensive use" of the pdvilege the dangers that inhere in the product. The under three-pronged Republic I n1mrance court of appeals addressed these complaints test, and thus had exposed himself ·;o discov fully and, we believe, rejected them correctly. ery sanction by not waiving it; (2) before Accordingly, a majority of the Court, with dismissing civil action as discovery sanction out hearing oral argument, reverses the for a plaintiffs offensive use of Fifth Amend judgment of the court of appeals to the ex ment privilege against self-incrimination to tent that it reverses the judgment of the trial avoid discovery, trial court must be con court, affirms it in all other respects, and vinced that less burdensome remedies would renders judgment that Lemond take nothing. not be effective in preventing unfairness to TEx.R.APP.P. 170. defendant; and (3) trial court a·:msed its discretion in dismissing the instant action.
ENOCH, J., took no part in the Court of Appeals affirmed, and case re consideration or decision of this case. manded. Gonzalez, J., filed concurring opinion in which Gammage and Owen, JJ., joined. 1. Witnesses e=>297(4.1)
Civil plaintiff has tight to as13ert Fifth Amendment privilege against self-incrimina tion to avoid discovery if he reasonably fears
TEXAS DEPARTMENT 0 PUBLIC
the answers would tend to incriminate him.
SAFETY OFFICEHS ASSOCIATION,
U.S.C.A. Const.Amend. 5. Dilly Don Ivey, erry Moore, Charlie Adams, Mary Pat Becnel (Now Mary 2. Witnesses e:o>293~ Pat Holt), Jeff Heard, Jeff card & Co.,
Fifth Amendment can be anserted in Petitioners, both civil and criminal trials wherever the answer might tend to subject to criminal
v. responsibility him who gives it. U.S.C.A. Lane DENTON, Respondent. Const.Amend. 5. No. D-4557. 3. Witnesses e=>309 Supreme Court of Texas. Where plaintiff asserts Fifth .Amend ment piivilege against self-inciimination in Argued Sept. 22, 1994. civil proceeding, general rule agair1st penaliz Decided April 13, 1995. ing the assertion of the privileg<! does not prohibit t1;a1 court fl.'om taking 11cts to en sure that tlie pt·oceeding remainQ fair, such
Plaintiff, in his civil action ugainst public as barring plaintiff from fatroducirJg evidence safety officers association following his termi on the subject of the privilege. U.S.C.A. nation from the associatio11 under suspicion Const.Amend. 5; Vernon's Ann.Texas Rules of misappropliating funds, asserted Fifth
Civ.P1-oc., Rulea 215, 215, subd. 1, par. b. Amendment p1;vilege against self-!ncrimina. 4. Pretrial Procedure e:o>33, 44.J. tion to avoid discovery. The 200th District Court., Travis County, Joe B. Dibrell, JI'., J., Civil plaintiff who has valid privilege dismissed the su.it as sanction for plaintiff's against discovery will neverthel13ss be re-
*84 758 Tex. 897 SOUTH WESTERN REPORTER, 2d SERIES 7. Witnesses P309 quired, under "offensive use" doctrine enun ciated in Republic Insurance, to either waive In determining the appropriate remedy the privilege or risk discovery sanction, re when civil plaintiff has engaged in offensive gardless of whether such privilege is eviden use of Fifth Amendment privilege against tiary or constitutional in nature, where (1) self-incrimination to avoid discovery and has plaintiff is seeking affirmative relief, (2) elected to risk discovery sanction rather than plaintiff is using the privilege to protect out waive the privilege, trial court should consid come detenninative information, and (3) the er a number of factors before imposing a protected information is not otherwise avail sanction, including: the nature of both ques able to defendant. Vernon's Ann.Texas tions asked and privilege asserted; a weigh Rules Civ.Proc., Rules 216, 215, subd. 1, par. ing of the unfairness resulting to defendant if b.
trial were to proceed without the sought discovery, keeping in mind whether any rem
See publication Words and Phrases for other judicial constructions and def edies could be imposed during trial in the initions.
event plaintiff continued to assert the privi lege; a weighing of the option to delay civil
5. Witnesses e=>309 proceedings during pendency of criminal in Plaintiff, who was asserting Fifth vestigations or parallel criminal proceedings; Amendment privilege against self-incrimina and a recognition that it could impose reme tion to avoid disoovery in his civil action
dies in future if delay result.ed in unantic against public safety officers association fol ipat.ed or extraordinary hardships to defen lowing his termination from the association dant. U.S.C.A. Const.Amend. 5; Vernon's under suspicion of misappropriating funds, Ann.Texas Rules Civ.Proc., Rules 215, 215, was engaging in "offensive use" of the privi subd. 1, par. b. lege under three-pronged Republic Insur 8. Witnesses e=>309 ance t.est, and thus had exposed himself to Court can allow civil jury to make nega discovery sanction by not waiving the privi tive inference from assertion of Fifth Amend lege, where he was seeking damages and ment privilege against self-incrimination. thus was seeking affirmative relief; the dis U.S.C.A. Const.Amend. 5. covery questions to which he bad asserted the privilege were outcome det.erminative, as
9. Witnesses e=>309 they pertained only to his claims against the In imposing discovery sanction on civil association; and some, though not all, of the plaintiff who has engaged in offensive use of information sought could be obtained only Fifth Amendment privilege against self-in through him. U.S.C.A. Const.Amend. 5; crimination to avoid discovery and has elect Vernon's Ann.Texas Rules Civ.Proc., Rules ed to risk such sanction rather than waive 215, 215, subd. 1, par. b. the privilege, trial court must ensure that direct relationship exists between the offen
6. Pretrial Procedure e=>33, 44.1 sive conduct and the sanction imposed, that Civil plaintiff who is seeking damages is the sanction is not excessive, and that the seeking "affirmative relief," even if plaintiff sanction is no more severe than necessary to is also seeking abatement of the action, pend satisfy its legitimat.e purposes. U.S.C.A. ing completion of criminal proceedings, for Const.Amend. 5; Vernon's .Ann.Texas Rules purposes of the Republic Insurance test for Civ.Proc., Rules 215, 215, subd. 1, par. b. determining whether plaintiff's assertion of 10. Witnesses ~309 privilege in response to discovery requests is Before dismissing civil action, as discov offensive in nature and thus subjects plaintiff ery sanction for plaintiff's offensive use of to risk of discovery sanction in absence of Fifth .Amendment privilege against self-in waiver. Vernon's Ann.Texas Rules Civ. crimination to avoid discovery when plaintiff Proc., Rules 215, 215, subd. 1, par. b. has elected to risk such sanction rather than See publication Words and Phrases waive the privilege, trial court must be con for other judicial constructions and def vinced that less burdensome remedies would initions. *85 Tex. 759 PUBLIC SAFETY OFFICERS ASS'N v. DENTON Cite as 897 S.W.2d 757 (Tex. 1995) not be effective in preventing unfairness to 787. We affirm, but for different reasons. We conclude that a trial court can ultimately defendant. U.S.C.A. Const.Amend. 5; Ver dismiss a party's claims for failing t:o comply non's Ann.Texas Rules Civ.Proc., Rules 215, with an order for discovery, but c·nly after 215, subd. 1, par. b. first satisfying the procedures governing ll. Witnesses ~309 sanctions. In addition, before irr.posing a sanction, the trial court must consid·~r wheth Trial court abused its discretion in dis er remedial steps short of sanctions can al missing plaintiff's civil action against public leviate the problem. Then, assuming they safety officers association as discovery sanc
cannot, the trial court must detennine tion for his offensive use of Fif~h Amendment whether a 1e13ser sanction would satisfy the privilege against self-incrimination to avoid legitimate puirpose of the sanction before im discovery. U.S.C.A Const.Amend. 5; Ver posing a dea.th penalty sanction. Conse non's Ann.Texas Rules Civ.Proc., Rules 215, quently we re1mand the case to the trial court 215, 1mbd. 1, par. b. for a reconsideration of the motion ·~o dismiss in light of the factors announced today.
Ea1'1 L. Yeakel, III, Amanda Foote, Clark, I. Facts Thomas & Winters, Austin, for petitioners Lane Denton was terminated by the Texas Texas Dept. of Public Safety Officers Ass'n, Department of Public Safety Officers Associ Billy Don Ivey, Jerry Moore, Charlie Adams ation (the "Association") under suspicion of and Mary Pat Becnel. misappropriating Association funcs. Nine Robert C. May, Guy M. Hohmann, Nich teen months later, on the same day he was olas S. Bressi, Hohmann & Werner, Austin, subpoenaed to testify before a grar,d jury, he for petitioners Jeff Hea1·d and Jeff Heard & filed suit against the Association ~ind others on several tort and contract grounds. [1] -As Co.
discovery proceeded, Denton failed to appear Susan Dasher, Kim D. Brown and Paul D. for a scheduled deposition, and the trial court Keeper, Austin, for respondent. then ordered his appearance for deposition. Subsequently, Denton was indicted for mis
ENOCH, Justice, delivered the opinion of appropriation of Association prop13rty. [2] He the Court, in which PHILLIPS, Chief attempted to abate his civil case indefinitely Justice, and HIGHTOWER, HECHT, until after he was no longer at risk of self CORNYN and SPECTOR, Justices, join. incrimination, but the trial court denied his motion. Although Denton then appeared for
We are asked what can a trial court do his deposition, he refused to aru.wer ques when a civil plaintiff exercises his Fifth tions or produce documents. The trial court Amendment privilege against self-incrimina held another hearing to consider the Associa tion and thereupon refuses to comply with tion's motions to compel and for sanctions. I n answer ing this question, we discovery. After the trial court examined the deposition clarify that n trial cour t has the authority to transcript and Denton's answers, it ordered respond to an offensive use of an evidentiary Denton to answer onl:y those que1stions and privilege by imposing the sanctions autho produce only those documents that con rized by the rules of proeedm·e. T11;x. cerned his allegations against the Associa R.Civ.P. 215. The t.t·ial court di mi sed Lane tion. Denton answered some qm1stions, but Denton's cause of action when Denton assert refused again to answer others directly relat ed to his claim, and the trial court dismissed ed his Fifth Amendment privilege in re sponse to discovery requests. The court of the action. appeals revel'sed the tl'ial court and remand On appeal, Denton claimed that the trial ed for further proceedings. 862 S.W.2d 785, court erred because it failed to balance his 1. All defendants will be referred to collectively as that at the time of the discovery requests, Denton
the Association unless reference to individual was aware that the DPS was cond ·.1cting an in· parties is appropriate. vestigation against him that was broader in
scope than the specific indictment handed down. 2. At oral argument, Denton's attorney explained Denton is not aware of the nature of this sepa that the criminal case on the indictment entered rate investigation or whether it is still ongoing. against him was set for trial. He also explained *86 760 Tex. 897 SOUTH WEsrERN REPORTER, 2d SERIES right against self-incrimination against the fense. Republic Ins. Co. v. Davis, 856 hann the Association would suffer if the suit S.W.2d 158, 161 (Tex.1993). were abated during the pending criminal suit
[2, 3] The Fifth Amendment can be as~ and while the risk of self-incrimination serted in both civil and criminal trials ''wher loomed over him. He also claimed that the ever the answer might tend to subject to dismissal violated his due process rights be criminal responsibility him who gives it." cause his Fifth Amendment rights out McCarthy v. Amdstein, 266 U.S. 34, 40, 46 weighed any inconvenience that would result S.Ct. 16, 17, 69 L.Ed. 158 (1924); see Kasti from an abeyance. The court of appeals gar v. United States, 406 U.S. 441, 444, 92 reversed, holding that there was no offensive S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). use of a privilege and that Denton's due Generally, the exercise of the privilege process rights were violated by the dismissal, should not be penalized. Spevack v. Klein, and that the dismissal was an impermissible 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 discovery sanction. 862 S.W.2d at 791, 793. L.Ed.2d 674 (1967); Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653
II. Trial Court's Power to Dismiss (1964). A trial court has limited authority to dis The importance of the freedom from self miss a cause of action on its own initiative. incrimination notwithstanding, the role of the The power to dismiss implicated in the pres Fifth Amendment in civil cases when assert ent case is the trial court's power under Rule ed by a plaintiff presents certain problems 215. TEx.R.Crv.P. 215(1)(b). In TransA.mer not found when the privilege is asserted in a ican Natural Gas Corp. v. Powel4 811 criminal context. 3 Because of the difference S.W.2d 913, 917 (Tex.1991) (orig. proceeding), between the civil and criminal context, the we held that sanctions imposed by a trial United States Supreme Court has allowed court must be just, there must be a direct juries in civil cases to make negative infer relationship between the offensive conduct ences based upon the assertion of the privi and the sanction imposed, and the sanction lege. Baxter v. Palmigiano, 425 U.S. 308, must not be excessive. Id. 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 III. Denton's Fifth Amendment Claims (1976). Also, when a plaintiff invokes the privilege against self-incrimination, the trial [1] Denton had the right to assert his court can subsequently prohibit the plaintiff Fifth Amendment privilege to avoid civil dis from introducing evidence on the subject, covery if he reasonably feared the answers and such an act of judicial discretion does not would tend to incriminate him. See Wehling constitute penalizing the plaintiffs use of the v. Columbia Broadcasting Sys., 608 F.2d privilege. See Gutierrez-Rodriguez v. Cart 1084, 1086 (5th Cir.1979) ("Wehling was un agena, 882 F.2d 553, 676 (1st Cir.1989). The der no obligation to disclose to CBS informa rule against penalizing the use of the privi tion he reasonably believed might be used lege does not prohibit a trial court from against him as an accused in a criminal pros taking acts to ensure that the civil proceed ecution."). Nevertheless, the resulting use of ing remains fair. the privilege was an offensive use. Denton A plaintiff who uses the privilege to pro used a privilege to protect information that was privileged, but also essential to the de- tect relevant information from a defendant '3. Sc\•ernl com mentators lmvo oxpla!ued that the Civil Litigant Who lnvokes the Privilege Against
privilege may not have ns broad nn nppl ica tlon In Self-incrimination, 24 U.Fu.L.REv. 541, 546 civi l proceedings bcLwecn private, nongovern (1972) ("(W)here a lawsuit is between two pri men ta l parties as i does in c1imlnal prosccu·
vate parties, neither side possesses the broad Lions. See Heid t, J'ltc Co11}t1rer's Circlc-thll Fi(tlr investigatory power of the government. Thus, llm1mdmem Pdvi/egc in Civil Coses, 91 Y~ Lu L.J. since no possibility of abuse of governmental 1062, 1065 ("[11he policies behind the privilege power exists in civil cases, absolute interpreta do not apply with full force in civil cases and do tion of the self-incrimination appears not as nec not preclude allowing plaintiffs some remedies to essary as in criminal actions where the govern reduce the disadvantage they suffer when the ment is a party."). privilege is used against them."); Penalii.frtg the *87 Tex. 761 PUBLIC SAFETY OFFICERS ASS'N v. DENTON Clteaa897 S.W.2d 757 (Tex. 1995) "use[s] his Fifth Amendment shield BB a not otherwise available to the defendant. sword." Wehling, 608 F.2d at 1087. In oth- 856 S.W.2d at 161. These stepE identify er words: situations where it would be unfair to allow a
The plaintiff . . . obviously had the right to party to both seek relief and deny to the claim the privilege, but he i:annot. eat his defense essential evidence. Once an offen calce and have it too. The defendant also sive use is shown, alternative steps follow has certain rights, one of which is to de- which define the courses of action a trial fend this lawsuit and to develop an affir- court may then talce: Upon a finding of mative defense which may weU destroy the offensive use, the plaintiff either 1. waives plaintiff's right to maintain his action. the p1ivilege [1] [)r 2. risks sanction from the
Levi~ v. Bornstein, 13 Misc.2cl 161, 174 trial court. The parties agree that the Re N.Y.S.2d 574, 578 (N.Y.Sup.CU958), o/fd, 7 public lnstwance standard governs in deter A.D.2d 995, 183 N.Y.S.2d 868, affd. 6 N.Y.2d miniJ1g whether an offensive use oceurs when 892, 190 N.Y.S.2d 702, 160 N.E:.2d 921 (1959). a ci~J plainC!f assert? ~ ~~ Amendment Therefore, at this point we bc•lTow from the pri~lege agamst self-mcnmmation. The & offensive use line of cases to determine what soc1ation argues that the court C•f appeals type of conduct is susceptible to sanction. misapplied the Republic lnsuranc1i test and
therefore err1ed in finding that none of the IV. Offensive Use Doctrine prongs of the test were satisfied. We agree. [ 4] The offensive use line of cases are .A. Affirmative Relief subsets of sanctions cases. Even if a party (5, 6] The first prong of the Republic In has a valid reason to avoid discovery, such as
swrance test asks whether the party assert an evidentiary or co118titutional privilege, ing the privilege is seeking affirmative relief. that party, when .appropriately ordered by In Republic Insurance, the party exercising the trial court, must elect whether to main the privilege was seeking declaratory judg tain the privilege or risk suffering a sanction. ment which did not implicate any affinnative E.g., Repu.bUc /?'t$., 856 S.W.2cl at 161; Gins b131·g v. Fifth Court of Appeals, 686 S.W.2d relief. The court of appeals below, however, 105, 107 (Tex.1985) (orig. p1·oceeding); He?'lr attempted to reason by analogy that this
prong of the Republic lmuranc6 rest applied SO?t v. Citize?is Bank of frlfing, 549 S.W.2d to the facts in this case. 862 S.W .2d at 790. 446, 449 (Tex.App.-Eastland 1977, no writ); Ginsberg, 686 S.W.2d at. 107 (holding that a It held that by seeking an abatement, Denton court may force the party avoiding discovery was not seeking affirmative relief as contem plated by Republic ln.su:rance. SE·e Republic to choose between maintaining the privilege
Insurance, 856 S.W.2<1 at 163. We disagree. and risking a sanction 01· revealing the privi Denton was seeking damages as a part of his leged information) (approving HetUJrm., 549 S.W.2d at 449). claims. The first element is satisfied.
The theory underlying the offensive use B. Outcome Determinative line of cases is that a plaintiff who is seeking The second prong of the Republic Insur affinnative relief should not be permitted to
ance test requires that ._the privileged infor maintain the action, and at the same time maint.'lin evidentiary privileges that protect mation sought must be such that, if believed by the factfinder, in all probability it would from discovery out.come determinaU\le infor mation not otherwise available to the defen have been outcome detenninative of the cause of action asserted. . . . The confiden dant. This Court, in Re1mblic Insurance v. Davis, 856 S.W.2d 158 (Tex.1993), defined tial communication must go to the, very heart three elements necessal'y to conclude wheth of the ri.ffirmative relief sought" Id.. The er an· offensive use of an evidentiary privilege court of appeals reviewed tht! questions is occuning: A. a party must be seeking asked and the documents sought at the June affu:mative relief; B. the party is using a 11, 1992 deposition and detcr::nined that plivilege to protect outcome detenninative while some of the questions in :response to information; C. the protected information is which Denton asserted his pri·rilege were
*88 762 Tex. 897 SOUTH WESTERN REPORTER, 2d SERIES outcome determinative, others were not. 862 gave the Travis County District Attorney's S.W.2d at 790. The court of appeals re office? viewed the queiitions asked and the docu • What other employees of the Texas De ments sought at the June 11, 1992 deposition partment of Public Safety Officers Associa and determined that while some of the ques tion do you contend gave false and mis tions in response to which Denton asserted
leading infonnation to the Travis County his privilege were outcome determinative, District Attorney's office? others were not. 862 S.W.2d at 790. The
• What miscellaneous gossip . . . do you court then held that since all questions were contend (was used] to violate your right to not outcome determinative, the second prong privacy? of the Republic Insumnce test was not satis • What public humiliation and emotional fied. This conclusion is incorrect. distress do you contend that you suffered First, we note that at the discovery hear as a result of the defendants? * What business relations and contracts ing, the trial court narrowed the scope of the questions it ordered Denton to answer to did you contend were the subject of inter only those questions that pertained to the ference ... ? * Have you seen a physician with respect claims made by Denton against the Associa tion. It was thereafter that Denton, again,
to the emotional distress alleged by you asserted his Fifth Amendment privilege ... ? against self-incrimination. These questions * Are you aware of any such misinforma tracked the language used in Denton's peti
tion [disseminated to the Association]? tion. For example: • Describe . . . the lost business opportuni • What information do you allege that Billy ties as a lobbyist that you have suffered as Don Ivey gave the Travis County District
a result of defendants. Attorney's office? Several of these questions go directly to the * What misinformation or false statements heart of Denton's claims. They asked Den do you allege that [Jerry] Moore, a defen ton to specify either what tortious acts the dant in this action, disseminated about you defendants committed, or how he was in to members of the board of directors of the
jured. We hold that the second prong was [Association]? satisfied. Republic Insurance, 856 S.W.2d at 163. • What false and misleading information did Jerry Moore give the Travis County
C. Alternative Sources for District Attorney's office? Privileged Information • What false and misleading information Finally, the court of appeals also erred do you contend that defendant Charlie when it used an all-or-nothing approach in Adams gave the Travis County District considering the third prong. This prong of Attorney's office? the Republic Insurance test examines wheth • What false and misleading information er the information sought could be obtained do you contend that defendant Frank Hol without requiring the plaintiff to forgo his land gave the Travis County District At privilege: "[D]isclosure of the confidential torney's office? communication must be the only means by • What false and misleading information which the aggrieved party may obtain the do you contend that defendant Mary Pat evidence." Id. The court of appeals con Becnel gave the Travis County District cluded that because some of the privileged Attorney's office? information sought could be obtained from • What false and misleading information other sources, the third prong was not satis do you contend that defendant Jack Pate fied. 862 S.W.2d at 791. The court, howev gave the Travis County District Attorney's
er, also recognized that some of the request office? ed information sought could only be obtained • What false and misleading information through Denton. Id. This is enough to sat do you contend that defendant Bob Gorsky isfy the third prong. *89 Tux. 763
PUBLIC SAFETY OFFICERS ASS'N v. DENTON Cite as 897 S.W.2d 757 (Tex. 1995) V. The 'Remedy the event the plaintiff continued to assert the privilege. AB an example, the court. could (7] Because each prong of the offensive prohibit the plaintiff from introducing evi use test is satisfied, we hold that the defen dence on matters about which the plaintiff dants made the requisite showing of offensive asserted his privilege. In any e'le.nt, the use such that they could properly ask the court can allow a civil jw"Y to maim a nega trial court to put Denton to the election. tive inference from the assertion of the privi Denton, having chosen not to waive his Fifth
lege. Baxter v. Palmigiano, 425 U.S. 308, Amendment privilege, therefore exposed 318, 96 S.Ct. 1551, 1558, 47 L.E.d.2d 810 himself to remedial action by the court. The
(,1976). question remains, though, whether the sanc tion imposed by the trial court in this case
Thi.rd, the trial court should weigh options was nn appropriate one under the circwn for delaying civil proceedings durin1r the pen stances. dency of cilminal investigations or parallel Due process concerns are implicated when c.riminal proceedings. In doing so. the trial a court dismisses a party's cause of action on court could consider the statutes of limitation the basis of that party's use of the privilege for the crimes the plaintiff fears and consider against self-incrimination. In TransAmeri whether and the extent to which the delay can Natu1·a1 Ga.s, this Court set out guide would prejudice the defendant's ability to lines for trial courts to consider when impos prepare a defense. Wehling, 608 F.2d at ing discovery sanctions in general. The 1087. Fifth Circuit announced similar standards Finally, the trial court should recognize necessary to satisfy due process when a trial that it would have options to impose reme court is faced with a plaintiff asserting the dies in the future if any delay afforded the privilege against self-incrimination. See plaintiff resulted in unanticipated cir extraor Wehli , ~08 F.2d at 1084. Together these dinary har~ships. In other words, if after an cases provide a framework to determine extended abatement a defendant cannot pre what optiona are available and what options pare a defense, the trial court shculd deter are appropriate.
mine at that point whether a dismissal is In determining what remedies are avail appropriate as the only way to fairly balance able, the court should consider a number of the plaintiffs and defendant's rigl:.ts. Id. at factors. First, the trial cowt should consider 1089. the nature of both the questions asked and the privilege asserted. If the questions ask
(9, 10] These considerations a:~e not un for facially incriminating answers, such cir like those the court should consider before cumstances would cut against the imposition imposing any other sanction. That is to say, of a harsh i·e1nedy. Campbell v. Gerl'ans, a direct relationship must exist b1~tween the 592 F.2d 1064, 1057 (9th C.ir.1979). On the offensive conduct and the sanction imposed. other hand, the court can look at the ques TransAmerican, 811 S.W.2d at 917. Also, to tion.-; to determine whether more narrow be just, the sanction must not b·~ excessive questions could serve the defendant's discov and should be no more severe than necessary ery needs and allow the plaintiff to avoid the to satisfy its legitimate purposes. Id. Con self-incrimination dilemma. The court sequently, before dismissing a cause of ac should also consider whether the privilege is tion, the trial cowt must be convinced that being asserted in a bona fide fear of self less burdensome remedies would not be ef incrimination or merely to avoid discovery or fective in preventing unfairness to a defen to rreate delay. dant. Id.; Well.ling, 608 F.2d a:.; 1088. [SJ The aourt could weigh the resulting unfairness to a defendanL iJ trial were to VI. Conclusion proceed witihout the sought discovery. Wehb [111 On this record we conch;de that the i11g. 6 8 F.2d at 1087. Or. the court could proceed to trinl and conside1· whether any bial court exceeded its discretion by dismiss ing Denton's lawsuit. We remand the case remedies could be imposed during the tiial in
*90 764 Tex. 897 SOUTH WESTERN REPORTER, 2d SERIES to the trial judge for further consideration in dence). The trial court erred in automatical accordance with this opinion. ly dismissing Denton's claims upon finding
that his assertion of the privilege was an GONZALEZ, Justice, joined by offensive use. In my opinion, this Court GAMMAGE and OWEN, Justices similarly errs in subjecting Denton's asser concurring.
tion of a constitutional privilege to analysis I concur with the Court's order remanding as an offensive use and an abuse of discov this case to the trial court. Dismissing Den ery, and by concluding that Denton's conduct ton's suit violated his due process rights and was sanctionable. impermissibly sanctioned Denton. I dis The extended analysis of TranaAmerican agree that TranaAmerican Natural, Gas and Republic Insurance attempts but fails to Carp. v. Powel4 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding), and Republic Insur justify what the Court allows today-that ance Co. v. Davis, 856 S.W.2d 158 (Tex.1993) trial courts may affirmatively penalize a par (orig. proceeding), supply the standards by ty who asserts the Fifth Amendment privi lege so long as the assertion meets the defi which to rule in this case. Therefore, I decline to join the Court's opinion. Our case nition of an offensive use. Because Denton
was entitJed to resist discovery by asserting law regarding sanctions for resisting discov his constitutional freedom against self-in ery orders should not be applied to this case, in which Denton 888ert.ed his constitutional crirnination, he should not be sanctioned. privilege against self-incrimination. Also, I See Spevack v. Klein. 385 U.S. 511, 514-15, disagree that Denton attempted an "offensive 87 S.Ct. 625, 627-28, 17 L.Ed.2d 574 (1967) use" of his privilege against self-incrimina (stating that a court may not penalize a party tion as we defined it in Ginsberg v. Fifth who asserts the Fifth Amendment privilege). Court of Appeal8, 686 S.W.2d 105, 107 (Tex. A better course would be to adopt the bal 1986) (orig. proceeding). [1] For these reasons, ancing test the Fifth Circuit Court of Ap I would affirm the judgment of the court of peals developed in Wehling v. Columbia appeals. 862 S.W.2d 785. Broadcasting System, 608 F.2d 1084 (5th
Cir.1979). Under Wehling, a court balances The Court today assumes that the offen the hardships caused to the parties when one sive use doctrine applies to an assertion of of them asserts a constitutional privilege, but the privilege against self-incrimination, and does not threaten sanctions to compel the that an offensive use of a privilege is sanc party to waive his privilege. See id. at 1088. tionable as an abuse of discovery. 897 S.W.2d 757, 76~2. The offensive use doc The dangers of compelling Denton or any prospective criminal defendant to testify are ttine bars a plaintiff who seeks affirmative relief from asserting a privilege to avoid real. A prosecutor could use the discovery disclosing information pertinent to an action responses the trial court ordered Denton to or a defense to it. See Ginsbe'l'g, 686 S.W.2d make against him in a criminal proceeding. at 107. The doctrine applies to the rules of See United States v. Ballard., 779 F.2d 287, privilege created under state law which are 291 (5th Cir.) (citing FED.R.Evm. 801(d)(2)), subject to exceptions and to waiver. See, cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 e.g., TEx.R.Crv.Evm. 503(d), 504(d), 508(c), L.Ed.2d 916 (1986); Woods & Hair, Crimi 509(d)-(e), 510(d), 511. The offensive use nal Law Issues in Civil Litigation: Fifth doctrine does not apply to the privilege Amendment Considerations for tke Civil against self-incrimination, because the privi Practitione-r, Management of Paral,wl Pro lege does not have its source in the state ceedings and Piifalla of Money Laundering rules but in the state and federal constitu Statutes, l 7TH .ANNUAL ADVANCED CML TRIAL tions. See U.S. CONST. amend. V; TEX. COURSE U-1, U-1 (1994) (citing S.E.C. v. CONST. art. I, § 10; TE:x.R.CIV.EVID. 501 Dresser Industries, Inc., 628 F.2d 1868, 1876 (recognizing the constitutions as sources of (D.C.Cir.) (en bane), cert. denied, 449 U.S. privileges apart from the rules of civil evi- 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)). 1. I agree with the court of appeals "that Denton sword to thwart the discovery process or the civil
did not use the self-incrimination privilege as a proceeding as a whole." 862 S.W.2d 785, 790. *91 Tmc. 765 OWENS-ILLINOIS, INC. v. ESTATE OF BURT Clteaa 897 S.W.2d 765 (Ta. 1995) Danton's t:estimony might give a prosecutor a Denton to assert his privilege for a~ long as dress rehearsal of Denton's defense to crimi- he does so in good faith. When a c:lvil plain nal charges. See Woods & Hair, supra, at tiff asserts the Fifth Amendment privilege, a U-1. Also, the scope of discovery allowed in I.rial co1ut should steer wide of judicially a civil trial may exceed what a prosecutor compelling waivei· of the privilege. It should would be permitted in a criminal proceeding. not fol'ce him to choo e between giving up his Id. at U-4. Therefore, compelling Denton to constitutional right against self-incrimination waive his Fifth Amendment privilege against or forgoing his claims. self-incrimination could prejudice his right to
For these reasons, I join the Court's order a fair trial in a subsequent criminal case. remanding this case to the trial co·Jrt, but I See id. For this Court to ask the trial court would do so for the reasons set f01-th in the to second-guess Denton's fear of prosecution court of appeals' opinion. by "[a]ttempting to assess how state and federal prosecutors and their succe~ors will exercise theil' discretion" is a reque.st for it to engage in idle speculation. See Heidt, The Conjurer's Ci'rcle-The Fifth Amendment PriviJ,ege-in Civil Cases, 91 YALE L.J. 1062, 1092 (1982).
OWENS-ILLINOIS, INC., Fibreboard The trial court's dismissal of Denton's Corp., Keene Corp. and Pittsburgh claims because he assert.ad the privilege Corning Corp., Petitioneirs against self-incrimination was a dispropor v. tionate response. The trial court forced Denton to choose between his right to a day ESTATE OF Otis BURT, Mable in court and the right to avoid self-incrimina Burt, and Ronald Burt '~t tion. The Court's opinion does not relieve al., Respondents. the punitive presslU·e on Denton to waive his OWENS-ILLINOIS, INC., Fibreboard privilege. Upon remand, the trial court will Corp., Keene Corp. and Pittsburgh again make him choose between asserting his Corning Corp., Petitioners constitutional right to be silent at the cost of the right to prosecute his claims. See Wehl
v. ing, 608 F.2d at 1088 (citing Simmons v. Erma Rae FRILEY, Individually and as United States, 390 U.S. 877, 394, 88 S.Ct. Representative of the Estate of 967, 976, 19 L.Ed.2d 1247 (1968), and Spe Joseph Friley, Respondents. vuck, 385 U.S. at 515, 87 S.Ct. at 628) (stat ing that assertion of one constitutionnl right Nos. 94-0259, 94-0262. should not be at the cost of another).
Supreme Court of Texan. I concur with the Court's general proposi Argued Nov. 16, 1994. tion that in some circumstances a trial comt may craft remedies if a party's assertion of
Decided April 27, 1995. the Fifth Amendment privilege conatitlltes an abuse or causes hardship to the opposing party. 897 S.W.2d at 763; see Wehling, 608 In action involving exposure to asbestos F.2d at 1089 (noting that a court should "be contnining products, the 270th Dis·.;rict Cowt, Harris County, Ann Tyn·ell Cochran, J., en free to fashion whatever remedy is required to prevent unfairness to [the] defendant"). tel'ed judgment on jiu-y vel'dicts fol' plaintiffs, A party may only assert the Fifth Amend and plaintiffs appealed with regard to calcu lation of prejudgment interest. The Comt of ment p1·ivilege hl good faith. AsserLing the privilege could be in bad faith, such as if Appeals, 870 $ .W.2d 556, found that intel'est accrued six months ft'om last day ·:>f expo:iure Denton is asserting the privilege and at the to asbestos, and further review was sought. same time prolonging the time that criminal proceedings are pending. I would allow The Supreme Court, Hightowe:r, J., held
*92 UNITED STATES v. LITTLE AL Clttu712F.Zd 131 (1183) dice which would necessitate an order of severance. UNITED STATES of America, Plaintiff-Appellee,
The other portion of defendants' attack on a verdict solely baaed, in their estima v. tion, upon guilt by aaaociation is a challenge LITTLE AL, a/kla Texas Ranpr, Etc., to the court's failure to hold a pretrial et al., Defendants, Jamea hearing. United States v. James, 590 F.2d 575 (5th Cir.1978) (en bane), cert.
Charle& Thomas Pollard, denied, 442 U.S. 917, 99 S.Ct. 2836, 61 Claimant-Appellant. L.Ed.2d 288 (1979), however, does not re No. 82-2300 quire such a hearing. Rather, the case sim SumJnary Calendar. ply recommends this procedure but provides that
United States Court of Appeals, [r]egardless of whether the proof has Fifth Circuit. been made in the preferred order, or the coconspirator's statement has been admit Aug. 15, 1983. ted subject to later connection, on appro priate motion at the conclusion of all the evidence the court must determine as a Claimant of vessels that Government factual matter whether the prosecution sought to have forfeited appealed from a has shown by a preponderance of the
summary judgment of the United States evidence independent of the statement District Court for the Southern District of itself (1) that a conspiracy existed, (2)
Texas, Hugh Gibson, J., in favor of the that the coconspirator and the defendant Government. The Court of Appeals, Reav against whom the coconspirator's state
ley, Circuit Judge, held that: (1) district ment is offered were members of the court did not abuse its discretion in denying conspiracy, and (3) that the statement claimant's motion for a continuance during waa made during the course and in fur pendency of claimant's appeal from a crimi therance of the conspiracy. Rule nal conviction that stemmed from his part 801( d)(2)(E). in marijuana importation scheme during 590 F.2d at 582. which vessels were seized, giving rise to forfeiture action, and (2) in absence of any [16] After trial, the district court ruled exercise by claimant of right to come for that only certain statements by Punch ward and show that facts constituting prob about Caceres were even entitled to a James hearing. The court also held that able cause, that is, that reasonable grounds the prosecution had borne its burden of existed to believe that claimant's vessels proof under James and the statements were used or intended to be used for prohib were, therefore, properly admitted. The ited purposes, did not actually exist, court committed no error in so ruling. 4 The
Government was entitled to forfeiture of court had ·previously instructed the jury vessels. that the conversations between Punch and
Affirmed. the DEA agents were admitted only against Punch.
For the above-stated reaaons, the def end 1. Federal Courts ~819 ants' convictions are affirmed. Moving for a continuance invokes dis. AFFIRMED. cretion of district court, and only an abuse 4. Although this challenge Is couched In terms to March 20 prejudiced them by painting Punch of objecting to the admission of evidence pur as a big-time drug dealer and making them auant to the co-conspiratorial exceptJon of Fed appear guilty by association. That argument eral Rule of Evidence 801(d)(2XE), defendants was addressed in this court's discussion of the actually contend that the admission ot all dls
severance Issue. cu11ion1 between Punch and DEA agents prior
712 FEDERAL REPORTER, 2d SERIES
*93 of that discretion will justify reversal. Fed. 6. Forfeitures ct=5 Rules Civ.Proc.Rule 56(f), 28 U.S.C.A.
If unrebutted, a showing of probable cause alone will support a forfeiture. 2. Action 11=>69(5) 7. Forfeiturea ct=5 A district court may stay a civil pro In absence of any exercise by claimant ceeding during pendency of a parallel crimi of property which Government sought to nal proceeding.
have forfeited under forfeiture laws of 3. Drup and Narcotics ~ 194 right to come forward and show that facts constituting probable cause on issue of Affidavit of counsel of claimant of ownership interest in vessels for which whether claimant's vessels were used or in tended to be used for prohibited purposes United States sought forfeiture seeking did not actually exist, Government was en continuance of forfeiture proceeding during pendency of individual's appeal from a titled to forfeiture of vessels. Tariff Act of 1930, §§ 596, 615, as amended, 19 U.S.C.A. criminal conviction that stemmed from his part in marijuana importation scheme §§ 1595a, 1615; Comprehensive Drug Abuse Prevention and Control Act of 1970, which resulted in arrest of individual and seizure of vessels amounted to nothing §§ 511, 511(b)(4), 21 U.S.C.A. §§ 881, 881(b)(4); Contraband Seizure Aci, §§ 1, 2, more than blanket assertion of Fifth 4, 49 U.S.C.A. §§ 781, 782, 784. Amendment privilege against compulsory self-incrimination in light of lack of expla nation as to how filing of affidavit in re
Michael A. Maness, Mark Vela, Houston, sponse to forfeiture proceeding would have Tex., for claimant-appellant. prejudiced criminal appeals of claimant, Frances H. Stacy, Jack Shepherd, Asst. and, as such, did not present type of circum U.S. Attys., Houston, Tex., for plaintiff-ap stances or prejudice that required a stay.
pellee. U.S.C.A. Const.Amend. 5; Fed.Rules Civ. Proc.Rule 56(f), 28 U.S.C.A.
Appeal from the United States District Court for the Southern District of Texas. 4. Drup and Narcotics ct= 191 Under forfeiture statutes, property is Before REAVLEY, · GARWOOD and subject to forfeiture if it was used in any JOLLY, Circuit Judges. manner to facilitate sale or transportation of controJled substances. Tariff Act of
REAVLEY, Circuit Judge: 1930, §§ 596, 615, as amended, 19 U .S.C.A. This case concerns the forfeiture of three §§ 1595a, 1615; Comprehensive Drug vessels allegedly used in a scheme to import Abuse Prevention and Control Act of 1970, marijuana. Appellant Charles Pollard, who §§ 511, 511(bX4), 21 U.S.C.A. §§ 881, claims an ownership interest in the vessels, 881(b)(4); Contraband Seizure Act, §§ 1, 2, appeals from the entry of judgment in fa 4, 49 U.S.C.A. §§ 781, 782, 784. vor of the government. He argues that the 5. Forfeiturea c11=>5 district court punished his exercise of the privilege against self-incrimination by re Any claimant of property sought to be f using to continue the action during the forfeited must establish either that proper pendency of Pollard's appeal from a crimi ty is not subject to forfeiture, or that a nal conviction that stemmed from his part defense to forfeiture applies. Tariff Act of in the importation scheme. We affirm. 1980, §§ 596, 615, as amended, 19 U.S.C.A. §§ 1595a, · 1615; Comprehensive Drug The factual background of the seizure of the three vessels appears in detail in United Abuse Prevention and Control Act of 1970, States v. Scott, 678 F.2d 606 (5th Cir.1982) §§ 511, 511(b)(4), 21 U.S.C.A. §§ 881, 881(b)(4); Contraband Seizure Act, §§ 1, 2, cert. denied, - U.S.--, 103 S.Ct. 804, 4, 49 U.S.C.A. §§ 781, 782, 784. 74 L.F.d.2d 285 (1982). We reiterate the
UNITED STATES v. LITTLE AL
*94 Cite II 712 F.Zd 133 (1883) essential facts. The U.S. Coast Guard continuance bears the burden Of demon strating the need for a continuance. As we boarded the unmanned fishing vessel LIT- TLE AL on April 6, 1981 and discovered have observed: over fifteen tons of marijuana aboard. The Because the burden on a party resisting coast guard, based on prior surveillance, summary judgment is not a heavy one, stopped the other two vessels, TYRANT III one must conclusively justify his entitle- and DORADO, and arrest.ed their crews and ment to the shelt.er of rule 56(f) by passengers. The twelve men found on presenting specific facts explaining the board, including appellant Pollard, were inability to make a substantive response convict.ed of conspiring to import and to as required by rule 56(e) and by specifi- posseBS with intent to distribute the marl- cally demonstrating "how postponement of a ruling on the motion will enable him, juana found on LITTLE AL. We affirmed Pollard's conviction, but reversed the con- by discovery or other means, to rebut the victions of seven of his codefendants. movant's showing of the absence of a
The government filed this forfeiture ac- genuine issue of fact." The nonmovant tion on Oct.ober 13, 1981. ·While the convic- may not simply rely on vague assertions that additional discovery will produce tions were awaiting appellate review, the government filed a motion for summary needed, but unspecified facts. SEC v. Spence & Green, 612 F.2d 896, 901 judgment in the forfeiture action and sup- (5th Cir.1980} (citations omitted), cert. de ported the motion with affidavits by coast guard personnel who had participated in nied, 449 U.S. 1082, 101 S.Ct. 866, 66 the seizure of the three vessels. Pollard L.Ed.2d 806 (1981). filed no opposing affidavits. Pollard does not diminish this burden by
Pollard, however, did invoke the continu- resting his request for a continuance on the ance procedure under Fed.R.Civ.P. 56(f), privilege against self-incrimination. As the which empowers the district court to contin- Supreme Court has not.ed recently: ue or deny a summary judgment motion [W]hile the assertion of the Fifth Amend- when the nonmoving party cannot present ment privilege against compulsory self- opposing affidavits. Pollard's counsel aver- incrimination may be a valid ground upon red that he could not obtain affidavits from which a witness . . . declines to answer Pollard or his codefendants for fear of "sub- questions, it has never been thought to be stantial prejudice" to their criminal appeals. in itself a substitute for evidence that The affidavit did not specify the nature of would assist in meeting a burden of pro- the prejudice or the nature of the evidence duction. We think the view of the Court that might become available if the court of Appeals [that invocation of the privi- grant.ed the continuance. lege satisfies a burden of production]
The district court granted summary judg- would convert the privilege from the mcnt, noting that Pollard had not made a shield against compulsory self-incrimina- tion which it was intended to be into a sufficient showing of inability to present facts. The affidavit of Pollard's counsel, in sword whereby a claimant asserting the the court's view, merely evinced reluctance privilege would be freed from adducing to oppose the motion during the pendency proof in support of a burden which would of the criminal appeals. otherwise have been his. None of our
cases support this view. 1. Denial of the Continuance United States v. Rylander, - U.S.--, [l] Moving for a continuance under 103 S.Ct. 1548, 1552-53, 75 L.F.<l.2d 521 Rule 56(f) invokes the discretion of the dis (1983}. Accordingly, a blanket assertion of trict court, and only an abuse of that discre the privilege neither excuses the burden tion will justify reversal. American Lease
under rule 56(e) of controverting the Plans v. Silver Sand Co., 637 F.2.d 311, 317- government's affidavits nor carries the bur 18 (5th Cir.1981). The party seeking the den under rule 56(f) of explaining either the
712 FEDERAL REPORTER, 2d SERIES
*95 inability to respond or the benefit to be The govemment affidavits do depend on inferences from these facts: (1) the LIT derived from postponement.
TLE AL contained over fifteen tons of mar The affidavit submitted by Pollard's ijuana; (2) coast guard surveillance estab counael amounts to nothing more than blan lished that the TYRANT III had been ket assertion of the privilege. No explana alongside LITTLE AL early in the day and tion appears concerning how the fiJing of
that TYRANT III, in tum, had been along an affidavit would have prejudiced the side DORADO; [1] (3) the fingerprints of two criminal appeals of Pollard or his codefend passengers on board TYRANT III were dis ants. No explanation appears concerning covered on nautical maps found on board what the affidavits could have discloeed. LITTLE AL; (4) the coast guard had ob No explanation appears concerning why af served someone on board TYRANT III pass fidavits would have been any more availa a roll of plastic wrap to someone on board ble after termination of the criminal appeal. DORADO; and (5) no other veasels were [2. 3] Certainly, a district court may observed in contact with LITTLE AL, TY stay a civil proceeding during the pendency RANT III or DORADO. of a parallel criminal proceeding. See SEC [ 4, 5] If the government bore the bur v. First Financial Gl'Oup of Texas, Inc., 659 den of proving by a preponderance of the F .2d 660, 668 (5th Cir.1981). Such a stay evidence that the vessels were used or in contemplates "special circumstances" and tended to be used in importing the marijua the need to avoid "substantial and irrepara na, the judgment as to these vessels might Id. The very fact of a ble prejudice.''
be in question. The forfeiture statutes, parallel criminal proceeding, however, did however, place the government's burden at not alone undercut Pollard's privilege a lower threshold. It must establish only against self-incrimination, even though the that reasonable grounds exist to believe pendency of the criminal action "forced him that the vessels were used or intended to be to choose between preserving his privilege used for prohibited purposes. 21 U.S.C.A. against self-incrimination and losing the § 881(bX4) (West 1981); [2] See United civil suit." Hoover v. Knight, 678 F.2d 578, States v. 1964 Beechcraft Baron Aircraft, 581 (6th Cir.1982). This case hardly 691 F.2d 725, 727 (6th Cir.1982), cert. de presents the type of circumstances or preju nied, - U.S. - , 103 S.Ct. 1893, 77 dice that require a stay. L.Ed.~ 283 (1988). The property is subject to forfeiture if it was used "in any manner"
2. Propriety of Summary Judgment to facilitate sale or transportation. Id. Pollard argues, alternatively, that the Any claimant of the property must estab court erred by entering summary judgment lish either that the property is not subject even if its procedures did not infringe the to forfeiture, or that a defense to the for privilege against self-incrimination. In Pol feiture applies. See United States v. $864,- lard's view, the government's affidavits do 960.00 in U.S. Cun-ency, 661 F.2d 319, 325 not demonstrate that the vessels were used (5th Cir.1981). or intended to be used to smuggle marijua [6, 7] If unrebutted, a showing of proba na. Pollard argues that the affidavits de pend upon conflicting inferences that the ble cause alone will support a forfeiture. See United States v. One 1975 Ford Pickup court could have drawn and that entry of Truck, 568 F.2d 755, 766-67 (5th Cir.1977) judgment contravened the principle of drawing all inferences favorable to the non (upholding forfeiture baaed on unrebutted moving party. showing of probable cause). If Pollard had
§§ 781, 782; and 21 u.s.c. § 881. The p~ i 1615(3), the contact I. Under 19 U.S.C. among the ve11els provides prima facie evi dures under these statutes are substantially dence of "visits" among the vessels. similar; a showing of probable cause likewise
shifts the burden of proof. See 19 U.S.C. 2. The district court ordered the forfeiture under § 1615; 49 u.s.c. § 784. four statutes, 19 U.S.C. § 1595a; 49 U.S.C. *96 CARTER v. HECKLER Clteaa 712 F.2d 137 (1983) controverted facts upon which the probable the Secretary of Health and Human Serv cauae showing relied, summary judgment ices denying claimant's application for dis would have been improper. United States ability insurance benefits and supplemental v. One 1944 Steel H~ll Freighter, 697 F.2d security. The United States District Court 1030, 1031-32 (11th Cir.1983). .A3 the Court for the Northern District of Mississippi, of Appeals for the Sixth Circuit, however, William c. Kc!ady, J ., granted judgment in has n~ted: . favor of the Secretary, and claimant air
Wbil~ ~e ~nnot agree with the gover~- pealed. The Court of Appeals, Reavley, ment a m_aistance that probable cause 1s Circuit Jud e held that: (1) administrative all that is needed by way of proof to . , g ' . . justify a forfeiture even i1r1. the face of la~. Judges conclusion~ that claimant had overwhelming proof that the cause, a.b1hty to return to pnor ~ork ~ gas sta though probable, was not uJtimately sus- l1~n attendant or wembhng pinball ~a tained, it is apparent to us that a showing chmes were not supported by substantial of probable cause is sufficient to warrant evidence; (2) administrative law judge's a forfeiture and that summary judgment credibility finding on claimant's allegations was properly entered in the absence of of pain did not adequately cover issue of any exercise by the claimant of her right pain as possible factor limiting type of work to come forward and show that the facts that claimant could perform and thus recon constituting probable cause did not actu- sideration was required; (3) record did not ally exist. provide basis for definitive ruling on claim-
United States v. One 1975 Mercedes 2808, ant's present exertional limitations and thus 590 F.2d. 196, 199 (6th Cir.1978); see United remand was required for reconsideration of States v. One 197~ Porsche 911-S, 682 F.2d whether claimant could perform substan- 283, 285-86 (1st Cir.1982). tially all activities required for light work;
Even drawing inferences favorable to and (4) Court of Appeals had no jurisdiction Pollard, we perceive no genuine issue of to review Secretary's decision not to reopen material fact as to probable cause. He has previous disability determination on res ju not undercut the factual basis shown by the dicata grounds. government.
Reversed and remanded.
AFFIRMED.
1. Social Security and Public Welfare 18::> 147 On review of decision of Secretary of Health and Human Services on claim for Edward C. CARTER, Plaintiff-Appellant, disability benefits, Court of Appeals re quires more than mere scintilla of evidence v. in support of Secretary's findings, but may Margaret M. HECKLER, Secretary of not substitute its judgment for that of Sec Health and Human Services, retary. Social Security Act, § 005(g), 42 Defendant-Appellee. U.S.C.A. § 405(g). No. 83.-4231 Summary Calendar. 2. Social Security and Public Welfare United States Court of Appeals, *='148 Fifth Circuit. Upon finding substantial evidence to Aug. 15, 1983. support findings of Secretary of Health and Human Services on claim for disability ben efits, Court of Appeals may only review
Disability benefits claimant brought ac whether Secretary has applied proper legal tion to obtain review of a final decision of *97 178 v.s. 1
1489 KALLOY T. BOG.Air CJce u" 1.a.1a CJDM> achieved :fully comport.. wf th the Jetter atill ensaaed in ·unlawful .activity, dl1- closure of hi• name might furnish a link and the spirit of our constitutional tradi- in a chain of evidence auftl.cient to connect tions.
the prisoner with a more recent crime I wouJd alftrm the Judgments in both for which he might still be proseeuted. eases. Reversed. Mr. Juat1ce Harlan, Mr. Justice
White, Mr. Justice Clark, and Mr. Justice Stewart, diesented. · L Cons&Uutlonlll Law ~86
Fifth Amendment'• eu:eption from compulsory 1eJf-incrlmlnation la protect ed by Fourteenth Amendment against abridgement by States. U .S.C.A.Conet. Amends. 5, 14.
ft8 11'.& I 1. Cltmlnal Law c:=mo<t>, m<t> William MALLOY, l'etUloner, ....
Test in determining whether conduct
Pa&rlok I. BOGAN, Sllerlft of 11.uitord ol at.ate officers in obtaining confeaafon Coaaty. vioJat.es priviJege against aelf-lncrimlna tion i1 not whether conduct of state oftl· No.110. cers was shocldn1, but whether confes .Argued March 5, 1964. sion is "tree and voluntary," that is, that Decided .Tune 15, 1964. it was not extracted by any sort of threats or violence and was not obtained b7 any direct or implied promises, how
Prisoner, who had been committed to ever alight, or by exertion of any improp Jail for contempt for refusal to answer er inftuence. U.S.O.A.Conat. Amends. 6, 14. ~rtain questions in state gambUng in quiry, broua-ht habeas corpus proceeding.
8ee publication Worc!a &114 Pbrue' The Superior Court, Hartford Councy, for other Judicial COD8lructlou Slld Connecticut, entered judgment adverae to dehitione. the prisoner, and he appealed. The Con· necticut Supreme Court of Enon, 160 I. Wl&neuea Pl97(1)
One cannot be compelled to incrim Conn. 220, 187 A.2d 744, held that there waa Jio error, and the prisoner brought inate himself. U.S.C.A.Const. Amend. 5. certiorart. The United States Supreme
«. OrlmlDal Law ~193(1) Court, Mr. Justice Brennan, held that the Fifth Amendment's exception from com Wltuue. C=:JSOO American system of criminal pros pulsory eelf-fncriminatfon Ja protected b7
ecution i11 accuaatoriaJ, not inquialtorial, the · Fourteenth Amendment arainst abridgement by the States. and that Fifth and 'its essential mafnstay ia provision Amendment was properly invoked by the of Fifth Amendment that no person shall be compelled In an7 criminal cue to be prisoner, who had previously been con victed of pool-selling, when he was asked witness again.et himself. u.s.C.A.Const. as witness in atate gambling inquiry Amend. 5. questions seekinr to elicit the identity of
·f. CJtmlnal Law c:=mct> one who ran the pool-selling operation, where it was apparent that the prisoner Governments, state and federal, are might apprehend that if that person were compelled to establish guflt by evidence
145.Ct.-94 *98 84 StJ'PJUWB OOVR! REPORTER 87117.8. 1 independently and freely secured and may where it wu apparent that witness mia-ht not b7 coercion prove charwe against ac apprehend that if such person were still cused out of his own mouth. U.S.C.A. enpa-ed in unlawful activity, disclosure Const. Amend. 5. of hie name mirht furnish link in chain
ot evidence sufficient to connect witness t. Constitutional Law *=288 with more recent crime for which he Fourteenth Amendment prohibits might still be prosecuted ; refusal to Statea from inducinw person to confess answer could not be punished as con through sympathy falsely aroused or tempt. U.S.C.A.Const. Amends. 5, 14. other like inducement far short of com pulsion by torture, and forbids States to resort to imprisonment to compel ac·
a cused to answer questions that might in · Harold Strauch, Hartford, Conn., for criminate him. U.S.C.A.Const. Amends. petitioner.
G, 14.
John D. LaBelle, Manchester, Conn., for respondent. 7. Constltutlonal Law ct:=268 Fourteenth Amendment secures against state invasion the right of ac. Mr. Justice BRENNAN delivered tbe cused to remain silent unless he chooses opinion of the Court. to iipeak in unfettered exercise of his
In this case we are asked to reconsider own will and to suffer no penalty for prior decisions holding tbat the privilege such silence. U.S.C.A.Const. Amends. 6, aa-ainst self-incrimination is not safe 14. guarded against state action by the Fourteenth Amendment. Twining v.
8. Wltneuea ~SCIO New Jersey, 211 U.S. 78, 29 S.Ct. 14, Same standards · must determine 68 L.Ed. 97; Adamson v. California, whether &Hence of accused in either fed 882 U.S. 46, 61 S.Ct. 1672, 91 L.Ed. eral or state proceeding is justified un 1903,l der the privilege against self-incrimina •
tion. U.S.C.A.Conat. Amends. 5, 14.
The petitioner was arrested during a gambling raid in 1959 by Hartford, 9. Wlbleues '9=!9'1(7) Connecticut, police. He pleaded guilty The Filth Amendment applies to to the crime of pool selling, a misde witness in statutory inquiry as well as meanor, and was sentenced to one year to defendant in criminal prosecution. in jai\ and fined $600. The sentence was U .S.C.A.Consl Amend. 5. ordered to be suspended after 90 days, at 10. witnesses ~7<10> which time he was to be placed on pro The privilege against self-incrimina bation for two years. About 16 months tion could be invoked by witness, who bad after his guilty plea, petitioner was or previously been convicted of. pool-selling, dered to testify before a referee ap when asked in state ~ambling inquiry pointed by the Superior Court of Hart questions seeking to elicit identity of ford County to conduct an inquiry into one who ran the pool-seJling operation, alleged gambling and other criminal ac- I. h both ea.1u the qu&1tlon wu whether to be A witne11 against htm1elf." For
comment up0n the fallare of an accand other etatementl b:y the Co\1rt that the to take the ltaDd ID h1I own defense fa Foul'teenth Amendment does not appl7 a •tate pro1ec:u ti on violated the pri'rilege. the federal privilege In atate proceed· It wu a11wn.ed, but 11ot decided, fa bcith fop, aee OohP v. Hurle7, 866 U.S. 117, 127- 129, 81 S.Ot. OM, 960-001, 6 L.EcL CUH that •aeh eomm.nt fQ a federal pro11eadon for a federal olfeue would 2d m6; B111dor v. Oommonwookh of IDblnre the pro'riaion or the Jl'Hth llP1Bachuaett1, 291 U.S. 97, l<MS, 114 S.Ct. Ameadment that "Cnlo per1oa • • • 830, 832, '78 L.Ed. 674. Pall be compelled la •111 criminal ~H
*99 '78 V.S. IS 1491 Cite aa IN I.Ct. H89 (lDM) tlvitiea In the county. The petitioner Errors erred fn 11oldfn8' that the privf .. wu asked a number of questions related Iere waa not properly invoked. to event.I 1urrounding his arrest and • eonvfctfon. He refused to answer any The extent to which the Fourteenth question ••on the grounds it may tend to Amendment prevents state Invasion of incriminate me.'' The Superior Court rfirhta enumerated fn the first eight adjudged him In contempt. and com- Amendment.I has been considered in nu mitted him to prJson until he wu will- meroua caaes In this Court since the ing tO answer the questions. Petition- Amendment's adoption in 1868. Al er's application !or a writ of habeas thourh many Justices have deemed the corpus was denied by the Superior Court, Amendment to fncorporate all eight of and the Connecticut Supreme Court of the Amendments,• the view which has Enon alDrmed. 160 Conn. 220, 187 thus far prevaUed dates from the deci A.2d '144. The latter court held that the sion in 1897 In Chicago, B. & Q. R. Co. v. Fifth Amendment's privilege araiMt Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L. aelf-lncrlmination was not available to a Ed. 979, whJch held that the Due Process witness fn a 1tate proceeding, that the Clause requires the States to pay just Fourteenth Amendment extended no compensation for private 1>roperty taken privilege to him, and that the petitioner for public use. [3] It wns on the authority had not properly invoked the privilege of that decision that the Court said in available under the Connecticut Constitu- 1908 in Twining v. New Jersey, supra, that "It is possible that some of the per- tfon. We granted certiorari. S7S U.S. 948, 88 S.Ct. 1680, IO L.Ed~ 704. We 11onal rights safeguarded by the first reverse. We hold that the Fourteenth eight Amendments• Amendment auaranteed the petitioner against national ac
I: • ! the protection of the Fifth Amendment's tion may also be safeguarded against privilege against self-incrimination, and state action, because a deniaJ of them that under the appUcable federal stand· would be a denial of due process of Jaw." ard, the Connecticut Supreme Court of 211 U.S., at 99, 29 S.Ct., at 19. 2. 'l'cn Juatkoa hove •n&>llOttC!d tJ•I• Tlow. GS L.FA). 062 (Fourth Amendment):
floo · Oldoon "· W11lnwrlgbt, 372 U.S. 881$, B11rtn1lo v. Cnltrornln. 110 U.S. 1511), MS, , a.ct. 111, 122. 28 L.Ed. m <Filth 840. 83 s.ot. 102, m, o L.E<l.2d 700, (oplnJon of MR. JUSTICE DouoLAB). The Amendment requJrcment of ero.nc'.J Jory Court exproased ltaclf ne nopor4undod lndlctmtlltAI); P11lko v. Conne<?tiout. 802 to ,thla •low ln In ro Xommlot', 136 U.S. U.S. 310. 828, IS8 S.Ot. 149, 1158, 82 L.Ed. 486, '"8-440, 10 S.Ot.. 930, 084, 84 L. 288 (Fifth Amcnclmont doublo jeop11rdy) I Ed. tsl9: McElvaino v. Brueh, 142 U.S. ?.fn.we.11 .,, Dow, 176 U.S., at ~~. 20
i i llSIS, 1158-169, 12 S.Ot. 115-0, llM', 81! L.Ed. a.Ct.. nt 454 (Sixth .Alllondmcnt Jury 971; Maxwell 'f. Dow, 170 U.S. IS81, trlnl}: Wnllror v. S11u't'luot, 02 U.S. 00, 02,
I I , . ISM-603, 20 8.0t. "48, 41S4-4~15, 44 L.Ed. 23 L.EIJ. 078 (Seventh Amendm~t jury IS07; TwllllDs .,, New Je1'3oy, 1upra, 211 trial); In ro Kemmler, rupra; Mc·
i I U.S. p. 00, 29 S.Ot. p, 18. Seo Splc11 Etvnlno v. Brueh, auprn; O'S-oil v. Vor· v. Dllnola, 123 U.S. 181, 8 S.Ot. 21, 22, n1oot, 144 U.S. 323, 882, 12 S.Ot. 003,
697, 80 L.Ed. 00 (El&:!Jth Amendment 31 L.Ed. 80. Declolon1 that p11rticuJar prohlbltloo ng11lo1t cruel a.nd wiuaual i\lnrantees woro not 1111toiu11rded 11gnln11t punishment). , 11tnto nctJon bJ tho Prhllege1 a.nil Im· 8. In Barron, for Uao ot Tieninn v, }fnyor mnnitloa Olaneo or other provl1lon ot the Fonrteonth Amendmeut aro: tJnttcd o.nd City Oonocll of City of Bnltlm.oro, 7 Stttto11 ,., Orulubank, 92 U.S. M2, ~l, Pot. 2·19, 8 L .Ed. 672, decided beforo 28 L.Ed. 1588; PrudontJG.l Ins. Co. of tho adoption of the Fourtocntb Amend· mont, Chief JustJco Mnrabllll, epo11kln1r America v. Ohook, 259 U.S. ~o. IW3, for the Oonrt, held thnt this right w1111 42 S.Ot. IS16, IS22 (Jl'iret Amlllldmeut) ; Proe.eer Y. Illlnol11, llO U.S. 262, 20!5, 6 not aecurod agnlnat atate nctlon by tho ll'lfth Amondrnont'11 provision: "Nor 1bnll S.Ot. MO, IS84, 29 L.Ed. Ol!S (Soconcl Amendment): WeckB v. United St1tto11, private proporey be taken for public nae, ~ U.S. 888, 898, 34 S.Ot. 841, 848, without j1111t <:omponsntlon."
*100 378 v.s. 6 1492 H SUP:&nm OOURT BBPORTER The Court has not hesitated to re-ez ftcfals." In 1961, however, the • amine past decisions according the Four· Court teenth Amendment a less central role fn held that in the light of later decisions,• the preservation of basic liberties than it was taken a11 settled that "* • • that which was contemplated b7 its the Fourth Amendment's riarbt of pri Framers when they added the Amend· vacy has been declared enforceable ment to our constitutional scheme. arainst the States through the Due Thus, although the Court aa late as 1922 Process CJause of the Fourteenth said that "neither the Fourteenth * * *." Mapp v; Ohio, 867 U.S. 648, Amendment nor any other provision of 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081. the Constitution of the United States Again, although the Court held in 1942 imp08ea upon the States any restric· tions about 'freedom of speech' * • • ," that in a state prosecution for a non
capital o:trense, "appointment of counsel Prudential Iru1. Co. of America v. Cheek, is not a fundamental right," Betts v. 259 U.S. 530, 548, 42 S.Ct. 516, 522, 66 Brady, 816 U.S. 465, 471, 62 S.Ct. 1252, L.Ed. 1044, three yeara later Gitlow v. 1261, 86 L.Ed. 1595; cf. Powell v. Ala New York, . 268 U.S. 652, 45 S.Ct. 625, bama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 69 L.Ed. 1138, initiated a series of de· 168, only last Term this decision was ciaions which today hold immune from re-examined and it was held that pro state· invasion every First Amendment vision of coun11eJ in all criminal cases protection for the cherished rights of was ''a fundamental right, essential to a mind and splrlt-the f reedoms of speech, fair trial," and thus was made obJigatory press, religion, assembly, association, on the States by the Fourteenth Amend and petition for redress of grievances.• ment. Gideon v. Wainwright, 372 U.S. Similarly, Pal~ v. Connecticut, 802 U. 385, 848-844, 83 S.Ct. 792, 796. • S. 819, 58 S.Ct. 149, decided in 1937, [1] We hold today that the Fifth suggested that the rights secured by the Foorth Amendment were not protected Amendment's exception from compulsory against Btate action, citina 302 U.S., at self-incrimination is also protected by 324, 58 S.Ct., at 151, the statement of the the Fourteenth Amendment against Court in 19H in Weeks v. United States, abridgment by the States. Decisions of 282 U.S. SSS, 898, 84 s.ot. 841. 848, that the Court since Twining and Adamson "the 4th Amendment ie not directed to have departed from the contrary view individual misconduct of [state] of- expressed in those cases. We discuss 0 L.Ed.2d 001 (nesoclntfon) : N. A. A.. 0. 4. E . g., Gitlow v. New Yo rk, 268 U.S. 652, P. v. Button, 811 U.S. 415, 83 S.Ct. 828,
606, 41i S.Ot. 021>, 020 (11pccch Md 9 L.llld.2d 4-05 (auoclation nnd epeech); prceo); Lovell " · City of Orllfw, 303 U.S. 444, 4150, ISS S.Ct. GOO, 068, S2 L;Ed, :Brotherhood ot Railroad Trainmen T. Virclnia ex rel. Virrinia State Bar, 3T7 949 (epcceh nnd prces); New York Titno"
U.S. 1, 84 s.ot. 1113, 12 L.Ed.2d 89 Co. v. S ulllvrin, 876 U.S. 2~, 811 S.Ct. 710, 11 L.Ed.2d 686 (speech and preBB): (naaoclatlon). Staub v. Oley of .Baxley, 800 U .S. SlS, 821, 18 S.Ot. 277, 2.81, 2 L .F.cl.2d 302 5, S ee Wolf v. Oolorndo, 838 U.S. 21S, 27- (eptlecb); Gro11jenn T • .American J>ree11 28, 69 S.Ot. 1869, 1861, 03 L.FAI. 1782; Oo., 297 U.S. 238, 24.4, IS6 S.Ot. 444, 446, Elklna v. Unlted $tatce, 864 U.S. 206, 80 L.Ed. . 660. (preea); Oontwell v. Con· 213, 80 S.Ot. 1437, 1441, 4 L.Ed.2d 1669. nectlcut, 810 U.S. 200, 803, 60 S.Ct. 000, I. See also Robinaon T. Calitornio, 310 U.S. 008, 84 L.Ed. 1218 (religion); De J'onge v. Oregon, 299 .U.S. 81'S3, SM, CS7 S.Ot Z5, 000, 666, 82 S.Ot. 1417, wWch, deepfte
la. re Kemmler, aapra; McElvaine T. 2159, 81 L.Ed. 278 (aeeembb} l Shelton T. Tucker, 364 U.S. 419, 486, 81S.Ot.247, llnseh, 1up1a; O'Neil "· Vermont, aopra, m, cs L.Ed.2d 281 (a11ocletlon) ; Lou
made applicable to the Statea the Eighth isi.llnn ox ul. Gtemllllon v. N. A. A. O. P., .Am~dment'e bau on cruel and 11nW1uaJ 866 U.S. 298, 296, 81 S.Ct. 1838, 18~, pun .. timenta.
*101 8'18 v.s. 8 1493 JIALLOY T. HOGAN Clte u 8' l.Ct.1489 (lDM)
. first the decisiona whf~ forbid the uae compelled to 'incriminate hbnaelf. We of coercied confeaaiona :in state crJminal have held inadmissible even a confesalon p~utions. : [1] secured by so mild a whip aa the refusal,
• under certain circumstances, to aDow a 11uspect to call his wJte until he eon-·
[2, 3] Brown v. Mieslaaippi; 297 U.S. fessed. R&111.es v. Washington, 878 U.S. 278, 06 8.Ct. 46le 80 :L.Ed. 681, was tlie 608, 88 S.~. 1886, 10 L.Ed.2d 518. first case in which the Court held that the Due ProceBS Clause prohibited the
[ 4-7] The marked shift to the fed States from using the :.ccused's coerced eral standard in state cases beran wlth ~nfessions against him! . The Court in
Lisenba v. California, 814 U.S. 219, 62 . . J Brown felt impelled, in!bght of Twinin,., S.Ct. 280, 88 L.Ed~ 166, where the Court to say that ita conclusion did not involve spoke of the accused's "free choice to ad the privilege againat self-inerimfnaticm. mit, to deny, or to refuse to answer." ·"Compulsion by torture ~o extort· a con· Id., 314 U.S. at 241, 62 S.Ct. at.292. See iesaion is a different matter." 297 U.S.,
Ashcraft v. Tennessee, 322 U.S. 148, 84 at 285, 56 s.ct., at 464.1 J3ut this distinc- S.Ct. 921, 88 L.Ed. 1192; Malinski v.
.,
tion was soon New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Spano ·v. New York, 860 abandoned, and today tho U.S. 815, 79 S.Ct. 1202, 8 L.Ed.2d 1265; .admisaibllity of a confession .in a state Lynumn v. Illinois, 872 U.S. 028, 88 S. criminal prosecution fa tested by the Ct. 917, 9 L.Ed.2d 922; Haynes v, Wash
ington, 878 u.s.· 503. The shift reflects same standard ·applied ! in federal prose -cutions since i897, wh~n. in Bram v.
recognition that the AmeriCAn system of United States, 168 U.S.:632, '18 S.Ct. 183, criminal prosecution is accusatorial, not 42 L.Ed. 668, the Court 'held that "[i]n inquisitorial, and that the Fifth Amend criminal trials, in the courts of the Unit· ment privilege is its essential mainstay. ed States, wherever a question arises Rogers v:. Richmond, 866 U.S. 684, • whether a confession is incompetent be cause not voluntary, th~ issue is con 641,
81 S.Ct. 785, '139; G L.Ed.2d 760. Govern trolled by that portion of the Fifth Amendment to the constitution of the ments, state and federal, are thus con United States commandin8' that no per~ stitutionally compelled to establish guilt son 'shall be compelled in any criminal
by evidence independently and freely se cured, uJI may not · by coercion prove a aase to be a witness agtinst himself.' " charge against an accused out of his own Id., 168 U;S. at 642, .18 .SrCt. at 187. Un der this test, the cone~ftutional inquirr mouth. Since the Fourteenth Amend
ment prohibits thei States from inducing fs not whether the condr-et of state of ilcers in obtaining th..~ confession wu a person to confess through "sympathy shocking, but whether qi confession was falsely aroused," Spano v. New York, "free and voluntary; atilt Js, [it] must supra, 860 U.S., at 828,. '19 8.Ct., at not be extracted by any) sort of threats
1207, or other like inducement .far short -or violence, nor obtained by any direct of "compulsion by. torture," Haynes v. Washinrton, supra, it follows .a fortiori or implied promises, ho\J.ever slight, nor "by the exertion of ahj improper in that it also forbids the Stat.es to resort to imprisonment, as here, to compel hfin ftuence. * * * " Id~ ~68 U.S. at 542-
to answer questions that might incrim 6,3, 18 S.Ct. at 186-18~, see also Hardy v. United States, 186 . 224, 229, 22 inate hiJD. The Fourteenth Amendment S.Ct. 889, 891, 46 L:Ed. 1~87; Ziang Sun secures against state invasion the same Wan v. United Stat.es,' ~66 u:s. 1, 14,
priviJe1e that the Fifth Amendment 46 S.Ct. 1, 3, 69 L.Ed. '181; Smith v. guarantees against f ederat infringe ment-the right of a person to nmain United States, 848 U.S. :14-7, 160, '16 S.
silent anless he chooses to speak in the .Ct. 194, 196, 99 L.Ed. 192~ In other unfettered exercise of hia own wiU, and ·words the person mus~ not have been • *102 878 v.s .•
1494
to 1uffer 220 penalty, aa held in Twi inl',
the freedom from unconacionable in· vuions of privaq and the freedom tor 1ach 1ilenee. from convictJons based upon coerced Thi• eoncluaion is lortUied by our re confeasiom do enjoy an 'intimate re· cent decision in ::Mapp v. Ohio, 867 U.S. Jation' in their perpetuation of 848, 81 s.ct. 1684, overrullnr Wolf v. 'principles of humani9' and civil lib· Colorado, 888 U.S. 28, 69 S.Ct. 1859, 98 erty [secured] • • • only aft· L.Ed. 1782, which had held "that in er rears of strunle.' Bram v. a prosecution in a State court for a United Statea, 1897, 168 U.S. 682, State crime the Fourteenth 'Amendment 548-044, 18 S.Ct. 183 * • *. does not forbid the admiuion of evidence The philosophy of each Amendment obtained by an unreasonable search and and of each freedom is comple seizure," 888 U.S., at SS, 69 S.Cl, at 1864. mentary to, although not dependent Mapp held that the Fifth Amendment upon, that of the other in its sphere privilege again.at selt-incrimination im of influence-the very least that to plemented the Fourth Amendment in gether they asaure in either sphere such cases, and that the two guarantees is that no man is to be convicted on of personal security conjoined in the unconstitutional evidence." 367 U. Fourteenth Amendment to make the ex S., at 666--657, 81 S.Ct., at 1692. clusionary rule obligatory upon the In thus returnhlg to the Boyd view that States. We relied upon the rreat case of Boyd v. United States, 116 U.S. 616, 6 the privilege is one of the "principles of a free rovernment," 116 U.S., at 632, 6 S.Ct. 624, 29 L.Ed. 746, decided in 1886,
S.Ct., at 583, 'I' Mapp necessarily repudiat which, considering the Fourth and Fifth ed the Twining concept of the privilege Amendments as running "almost into aa a mere rule of evidence ''beat defend each other," id., 116 U.S., at 680, 6 S.Ct., ed not as an unchanireable principle of at 582, held ·that "Breaking into a house
universal justice, but ae a law proved by and opening boxes and drawers are ell'· experience to be expedient." 211 U.S., cumstancea of aggravation; but any at 118, 29 S.ct., at 2~. forcible and compulsory extortion of a man's own testimony, or of hia private papers to be used as evidence to convict
(8] The respondent SheriB concedes him ot crime, or to forfeit hia goods, is in Its brief that under our decisions, within particularly those involving coeteed
•
10
the condemnation of [those
COD·
• *·" 116 U.S., at Amendments] • fessions, ,.the accuaatorJal system hu 680, 6 S.Ct., at 1582. We said in Mapp: become a fundamental part ol the fabric of our society and, hence, is enlorceab)e
"We ftnd that, u to the Federal Government the Fourth and Fifth against the States.''• The State ul'ges, Amendments and, as to the States, however, that the availabiUty of the :fed- mmdtJ. It hu beell a re!ectfon of our
7. Boyd had uld of the prlv.llego, " • • llDJ' compultoey, dl1cover1 b7 extortlnr eommon coallainee, a ambol of the to conYlct hlm .AIUerlca .tdch 1til'I our heartl." The the pnrt;r'• oat.b • • • Fifth Amendment 'l'oda1 18 (19&1). of crlmo • • • fa contrar1 to the prl.ociplet of a. free IOYllnuDftllt. It 1•
e. The brief etatu further: abhorrent to tho lu1ttnct.1 of an Engllah· llUUl; lt ii 1Lb!torrent to tho fn.ttf.oatl or th11 d1cl1lou ex-cl1Jdinc "Undtrl.Jinir coerced confession• la the impUclt as· an .Amerl.Cllll. It ma1 eult the pnrpo11111 wmptlon thnt an &Cl!U8td 11 privUe1ed of doepotic power, but It cannot abide the pure abnoepbere or political liberty ffainlt lncrim!nadng hlmeelt, either bi the and personal freedom." 116 U.S., at 681- jail hou11, the &T&nd jo"' room, or on 682. 6 8.0t., at tsSS. the witneu etand In n public trial.
• • • Dean Griirwold bu 1ald: "I believe the FUtb Amendment le, and h11 bee11 " • • • It f1 fundamentally inCOll· throuch tbl1 period or crl11Jr, an ezpree·
11.atent to 1111reat. u the Court'• opln· elon of tbe moral etrlv~ of the com- lollll now au11e1t, that the State 11 ea• *103 m l1.B. 19 1495
MALLOY"· KOGAN
Clte .. 8' 8.Ct. UllP (1*) would be fncon&'l'UOUS to have different
-eral privilege to a 41Vl~eas h1 8 · state in· oquiry fa to be 4et.ermiried according to a standards determJne the validity of a leas stringent s~dard: th.an fa. app1icable claim of privilege based on the aame in a federal proceeding. We dlsagree. f~ed prosecution, dependJng on wheth· We have held that the rruarantees of the er the claim wae asserted fn a state or First Amendment, Gitiow v. New York, federal court. Therefore, " the ·same .aupra; Cantwe11 v; Co'nnectlcut, 810 U.S. 1tandarda· must determine whether an ac 296, 60 a.Ct. '. 900, ·84 L.Ed. 1213; cused's 111lence f n either a federal or state Louisiana. ex tel. Gremillion y, N.A.A. proceedfn8" fs Justified. C.P., 866 U.S. 298, 81s.ct.1888, 6 L.Ed.
[9, 10) We turn to the petitioner's 2d 801, the prohibition of .unreaaon· claim that the Stilte of Connecticut de· able searches and seizures of the Fourth nied him the protection of his federal Amendment; Ker v. California, 874 U.S. privile&'e. It must ;l>e ·considered ir 2s, as s.ct. it628, .io L.Ed.2d 726, relevant that the petitioner was a wit.. and the right to coun!el guaranteed .bY the Sixth Amendment, Gideon v. Wain· ness in a etatutory inquiry and not a
defendant in a criminal prosecution, for wright, supra, · are all to be ·enforced it has long been settled tbat·the privilege against the Staf.es un,der the Fourteenth protects witnesaes in similar federal in .Amendment ac~ording to the same stand quiries. Counselman v. Hitchcock, 142 .ards that protect those personal rights
U.S. 547, 12 S.Ct. 196, 85 L.Ed. 1110; against federal encroachment. · In the McC&rthy v. Arndstefn, 266 U.S. 34, .45 -coerced confesaion cases, involving the S.CL 16, 69 L.Jild. 168; Hoffman v. Unit;.. -policies of the privilege itself, there baa ed States, 841 U.S. 479, '11 S.Ct. 814, 95 been no augg~stion that a confession -might be consi~ered coerced if used in a L.Ed. 1118. We recently elaborated the ·federal but .not a state tribunal. The
content. of the federal standard in Hofl'· ·Court thus has rejected the notion that man: the Fourteenth Amendment applies· to "The privilege a1forded not only the States only a "watered-down, sub· extends. to answers that would in Jective version .Of the individual themselves aupport a conviction , I I • • • but likewise embraces guaran· those which would fumsh a link 'tees of the Bill of Rights," Ohio ez: rel. in the chain of evidence needed to Eaton v. PriceJ 864 U.S. 268, 275, 80 S. prosecute. • • * (IJf the witness, Ct. 14'6S, i470, [1] 4 L.Ed.2d 1708 (disilent upon interposing his claim, were re· ing -opinion)~ itf Cohen v. Hurley, SG6 quired to prove the hazard • •. • U.S. 117, 81 S;ct. 954; and .Adamson v. he would be· compelled to surrender ·California, supra. suggest sucb .. an appli the very protection which the privi . cation of the ' privilege again.et eelf- lege is deaianed to guarantee. To incrimination; j that suggestion cannot sustain the privilege, it need only be survive recognition of the degree to evident frorri · the implications of · which the Twtning ·view of the privi the question, in the setting in which lege has been broded. Wltat ia accord it is -ed is a privilege of refuaing to incrim- u ' !nate one's selfr and the· feared pros~u- asked, that a responsive an tion may be by either federal or state Bwer to the question or an explana· tion of why it cannot be answered .authorities. Tfr!urphy v.· Waterfront • ~mm'n, 878 _l s. 52, 84 s.Ct. 1594~ It might be dangerous because injuri .. tea~, rerardlee1 of where rach compul· tlre'7 free to ei>ll\pcl nn 11ceu1id to ln· 1lon occura, would not only clarit,r the crlminate hlmielf before A graud jury, priDclplea Involved In coDfea1lon ca11e.a, or at the trlaJ, but cannot do [10] In the pollce etntlou. Frank recognition of the but would 11111l11t the State. alp.UicantJ1 in their elfort11 to comply with the llmit.a· tact that the Due ProceH OJ11u1e pro· hiblt1 the Statea trom enforclnc their tion• placed upon them b.r the Fourteenth. .la1'1 b7 tompellill~ the aecuaed to con• Amendment."
*104 378 u.s. 11 1496
84 SUPREME 0011BT B.JIPOBTEB
oaa disclosure could result." 841 U. Bergoti. The Connecticut Supreme S., at 486-487, '11 S.Ct. at 818. Court of Errors ruled that the answers to these questions could not tend to in We also said that. fn app1;ying that test, criminate hJm because the defe111es of the judge muat be double jeopardy and the running of the " 'per/ectl111 clear, from a carefu1 one-year statute of limitations on mis consideration of all the circumstanc demeanors would defeat any proaecuton es in the cue, that the witness is growing out of his answers to the first mistaken, and that the answer[a]
111 .A& for the sixth ques cannot po11Bi6l11 have such tendency' five questions. tion, the court held that petitionel"'s fail to incriminate.'' 841 U.S., at 488, 71 ure to explain how a revelation of hia. S.Ct., at 819.
relationship with Bergoti would incrim The State of Connecticut arruee that the inate him vitiated his claim to the pro· Connecticut courts properly applied the tection of the privilege atrorded by atate federal standards to the facts of this law. cue. We disagree. The conclusions of the court of Er· The investisation Jn the course of rors, tested by the federal standard, which petitioner wu questioned beran fall to take sufficient account of the set when the Superior Court in Hartford ting in which the questions were asked. County appointed the Honorable Ernest The interrogation was part of a wide A. Iqlie, formerly Chief JUBtice of Con ranginr inquiry into crime, inc1udinir necticut, to conduct an inquiry into gambling, in Hartford. It was admitted \Vhether there \Va8 reasonable cause to on behalf of the State at oral argument believe that crimes, including gambling, ·and indeed it is obvious from the quea were being committed fn Hartford Coun tions themselves-that the State desired ty. Petitioner appeared on January 16 to elicit from the petitioner the identity and 26, 1961, and in both instances he of the person who ran the pool-selling was asked substantially the same ques
operation in connection with which he tions about the circumstances surround had been arrested in 1959. It was ai> parent that petitioner might apprehend ing his arrest and conviction for pool that if this person were still engaged in selling in late 1959. The questions whfeh
unlawful activity, disclosure of his name petitioner refused to answer may be sum mirht furnish a link in a chain of evi marized u foJJows: (1) for whom did dence sufficient to connect the petitioner be work on September 11, 1959; (2) with a more recent crime for which he who selected and paid his counsel in con might still be prosecuted.• nection \Vfth his arreat on that date and subaequent conviction; (S) who selected Analysis of the sixth question, con cerning whether petitioner knew John and paid his bondsman; ( 4) who paid hia fine; (6) what was the name of the Bergoti, yields a similar conclusion. In tenant of the apartment in which he waa the conted of the inquiry, it should have been apparent to the referee that Ber- arrested; and (6) did he know John 9. See GNenberc T. United Statu, 843 U.S. of .Appeals for the Third Circuit llblted:
018, 72 B.Ot. 674, 00 L.F.d. 1382, revere· "in determining whether the witnea. reaD1 lag por cu~m, 3 Cir., 102 ll'.2d 201; apprehends dan1er in annrerlnr a quee· Slnaloton v. Unltad Statce, S~ U.S. tlon, the jud1e ca11not permit himself 044, 72 S.Ot. 104.l, 00 L.Ed. 1840, re· to be skeptical; rather mu.st he bo ac11te vcr.sLDr per corlnm, 8 Cir,. 103 F .2d 464. J1 aware that in the devlousneH of crime In United Btate1 v. Oolre1, 198 Jr.2"11 and It. detoction incrlmlnatfon mny lie app1'04ched and achieved b1 obacur·e 11nd 438 (0.A.3d Cir.), clted ·with approval In unlikely lin.M of inquiry." 198 F .2c1, at Em.spoil "· United Statea, 349 U.S. 190, 'lCS S.Ct. 687, 99 L.Ed. 997, tbe Cou'l't 4*-441.
*105 . ~78 v.s. 16 1497 KAI.I.OT y, BOGAX ate u" 11.a. uao (JM)
goti . was au1pected l>1 : the State t.o be Believinr that the reasoning behind the Court'• decision carries e:itremely involved in ·some way ·in the subject mat mischievous, if not danrerous, eonse ter of the inveatlsatiou. An afllrmative answer to the question , quences for our federal syatein in the
" ml1ht well have realm of criminal 11 Jaw enforeement, I either connected petitioner wlth a more must dissent. The importance of the recent orlme, or at Jeaat have operated as a waiver ot hia privilege with refer tuue presented and the serious incursion ence to hia relationship with· a possible which the Cc>urt makes on time-honored, criminal, See Rogers v. United States, baalc constitutional principles justify a 840 U.S. 867, 71 s.ct. 4S8, 95 L.Ed. 844.
full exposition of my reasons. We conclude, therefore, that as to each I . . of the queatlons, lt was "evident from the implications of the question, in tho
I con only read the Court's opinion as setting in which it [was) asked, that 11 accepting In fact what it rejects in tbe responsive answer to the question or an orr: the &f1plication to the ·States, via explanation of why it [could not] be an the Fourteenth Amendment, of the forms swered might be dangerous because in of tederal criminal procedure embodied jurious disclosure could result," Hoffman within the first eirht Amendments to the v. United States, 841 U.S., at 480--487, Co~titutlon. While it fa true that the 71 S.Ct. 818: · see Singleton v. United Court deals t.oday with only one aspect States, 84S U.S. 944, 72 $.Ct. 1041. of state criminal procedure, and rejects the wholesale "incorporation" of such Reversed. federal constitutional requirements, the logical rap between the Court's premises
While Mr. .Justice I)OUGLAS joins and its novel constitutional conclusion the opinion of the Court, he also adheres can, I submit, be bridged only b7 the ad· t.o his concurrence in Gideon v. Wafn ..
ditional premise that the Due Process wright, 872 U.S. 885, 846, 88 S.Ct. 792, Clause of the Fourteenth Amendment la a short.hand directive to thfa Court t.o '197.
pick and choose among the provisions of the first eleht Amendments and apply
llilr • .Justice HARLAN, whom :Mr • .Jus those chosen, freighted 'With their entire .. tice CLARK joins, dis8enting • accompanying bod7 ot federal doctrine, Connecticut bas . adjudred thia peti· t.o law enforcement in the States. tioner fn contempt for refusing to answer questions In a etate inquiry. The courts I accept and aP"ee with the proposition of the State, whose laws embody a pri~ that continuing re--eumlnation of the itege against self-incrimination, refused
constitutional .conception of Fourteenth
to recognize the petitioner's claim of Amendment "due process" of law is re privilege, finding that the questions quired, and that development of the com asked him were not incriminatory. •Thia munity's aense of justice may in time Court now holds the contempt adjudica· lead to expllllllion of the protection which tion unconetiiuttonal because, J{ ls de
due:process affords. In particular in th.is clded: (1) the Fourteenth Amendment calie, I agree that principles of justice to makes the Fifth Amendment privilege which due process gives expression, as against self-incrimination applicable to reflected in decisions of this Court, pro hibit a State, as the Fifth Amendment the States; (2) the federal standard jus tifying a claim of this privilege likewise prohibits the Federal Government, from applies to the States; and (S) judged by imprisoning a person !old11 because he that standard the petitioner's claim of refuses to give evidence which may in privilege should have been upheld. criminate him under tlle laws of the
14 S.Ct.-94\11 ii *106 8' SUPREME OOUlt'l' REPORTER S78 U.S. 15' State.1 I do not under.stand, however, been most fully explored in Twining v. :r.e New Jersey, 211 U.S. '18, 29 S.Ct. 14. how this process of re-examination, Since 1908, when Twining was decided, 1Vhich muat refer always to the ruidin8' this Court has adhered to the view there· ltandard of due process of law, including, expressed that "the exemption from com of COU1'8e, reference to the particular pulsory self-incrimination in the courts . .ruarantees of the Bill of Rights, can be of the states is not secured by any part short-circuited by the simple device of of the Federal Constitution," 211 U.S., incorporating into due process, without at 114, 29 S.Ct., at 26; Snyder v. Com critical examination, the whole body of monwealth of Massachusetts, 291 U.S. Jaw which surrounds a apeciftc prohibi· 97, 105, 64 S.Ct. 380; Brown v. Missis tion directed against the Federal Govern sippi, 297 U.S. 278, 285, 56 S.Ct. 461, ment. The consequence of such an ap 464; Palko v. Connecticut, 302 U.S. 819,. proach to due proceaa as Jt pertains to 824, 58 S.Ct. 149, 161; Adamson v. CaJ the States Is inevitably disrerard of all ifornfn, 882 U.S. 46, 67 S.Ct. 1672, 91 L. relevant differences which may exist be Ed. 1908; Knapp v. Schweitzer, 357 tween state and federal criminal law and U.S. 871, 874, 78 S.Ct. 1802, 1804, 2: ita enforcement. The ultimate result is L.Ed.2d 1893; Cohen, supra. Althourh compelled uniformity, which is incon none of these cases involved a commit sistent with the purpose of our federal ment to prison for refusing to incrim system and which is achieved either by inate oneself under state law, and they encroachment on the States' sovereign are relevantly distinguishable from this. 17 case on that narrow ground,• it is per powers or by dUution in federal law en· fectly clear from them that until today foreement of the specific protections it has been rerarded as settled law that found in ·the Bill of Rights. the Fifth Amendment privilege did no~ by any process of reasoning, apply M
II.
sucl to the Statea. As recently as 1961, this Court reaf. The Court suggests that this consist ftrmed that "the Fifth Amendment's ent line of authority has been under privilege against self-incrimination," mined by the concurrent development ante, p. 1491, was not applicable against the States. Cohen v. Hurley, 866 U.S. of constitutional doctrine in the areas of 1'17, 81 S.Ct. 964. The question had coerced confessions and search and sei- f, That procl&B Question hae not heretofore Whtie I do iiot belle't'O that the coerced
been decided by thl1 CouTt. Twining v. confession ca.ca furnillb any baale for New Jeree7, 211 U.S. 78, 29 S.Ot. 14, lncorporatlog the Fltth Amendment Into and the casee which folJowed it, see Infra, the Fou.rtcenth, 8CIO ln.fra, pp. 14DS-ll500, p. 1498, alt involved lssuca not preci1ol7 they do, It soem.s to me, carry an implica· elmDar. Althouah the Court hae etated tlon that col!rcion to incrhhinnto onoself, broa~ that an individual could "be re· e"en when under the form.1 of law, cf. quired to inclimlno.to himself In • • • Brown "· MiB11lii11ippi, 29'1 U.S. 278, 28fi, state proceedinp," Cohen v. H11rle7, 866 Im S.Ct. 461, 4M, dlscu•ed iDfra, p. 1499, U.S. 117, 127, 81 S.Ot. 954, 960, the is i11conah1tent with due procesa. Since context ill which eucb statementa were every .State already rocogniua a privilege made wu that the State had 111 each cou agalollt self.Incrimination [10] defined, aee recornl•ed the rieht to remain lllent. In VIII Wlatnore, Evide!!.ce (McNaughton
rev. 1961), I 22tS.2, the efect Qt including Twining, 111pra, until now the primary authority, tho Court noted that ''all the such a prlvlleee in due process 1.e only 1tate1 of tho Umota ban, from time to to c.reate the poaeiblllty that n fedoral time, with nrylng forr.o, but unifonza quesidou, to be decided undor the Dae meanJJ>s, ln.claded the privilere In their Proceea Clanse, wonld be rahed by a Oonetitutlou, except tho 1tate1 of New State'• refusal to accept a cla!m of the J'eraer and Iowa, and fn those 1tatee it privilege. t1 held to b4I part of tlie .U.dq Jaw.'' 2U U.S., at 92, 29 S.Ct.. at 16. 2. See note 1, supra.
*107 m v.s. 10 KALLOY y, KOGAN 1499 Cit. u 8' 8.C&. 1'89 (UCN)
1Ure. That is f'Olt f4Cto reasoning at proceedfnp. In Lfaenba v. California, beat. Certainly there has been no In- 814 U.S. 219, 6! S.Ct. 280, the privilege ·timation until now that TwJnlnl' has been aratnat self-incrimination is not men tacitly overruled. · tfoned. The relevant question before the
Court was whether "the evidence [of It was in Brown v. Mi88isaippi, 1upra, ~rcion] requires that we eet aside the that this Court ftrat prohibited the use finding of two courts and a jury nnd ad -of a coerced conf euion in a state crim judge the admission of the c0nf essions so inal trial. The petitioners in Biown had fundamentally unfair, so contrary to the ,,. been tortured common concept of ordered liberty as to amount to a taldng of life without due
until they confessed. 'l'he process of law." Id., 814 U.S. at 238, 62 Court was hardly making an artificial S.Ct. at 291. The question was the same ~atinction when it said: fn Aahcraft v. Tennessee, 822 U.S. 143, 11 64. 8.Ct. 921, 88 L.Ed. 1192 i the Court j. ., • • • [T]he question of the there adverted to the "third degree," e. right of the 1tate to withdraw the · g., id., 822 U.S. at ll>O, not~ 5, 64 S.Ct. at priviJege agaimt self-incrimination 924, and "secret inquisitorial practices," ia not here involved. · The compul . 1t sion to which the quoted statements fd,, 322 U.S. at 162, 64 S.Ct. at 925. Ma· (from Twining and Snyder, supra,] Jinakl v. New York, 824 U.S. 401, 65 S. refer fa that of the proce~aea of ;us Ct. 781, fa . the same; the privilege tice by which tho accused may be agdnat self-incrimination fa not men -ca1led as a witness and required to tioned.' So too In Spano v. New York, testify. Compidti<m by tortur1 to atort a confeaaion is a different 860 U.S. 815, 79 S.Ct. 1202; Lynumn v.
Dlinois, 872 U.S. 628, 83 S.Ct. 917; and matter." [2] 29'1 U.S •• at 285, 16 S.Ct. Haynes v. Washington, 873 U.S. 608, SS at 464. (Emphasis supplied.) S.Ct. 1836. FinaJly, in Rogers v. Rich The majority is simply wrong when it mond, 866 U.S. 634, 81 S.Ct. 735, al asserts that thfs perfectly understand though the Court did recognize that .able distinction "was soon abandoned," "ours is an accusatorial and not an in .ante, p. 1493. In none of the cases cited, quisitorial system," Id., 865 U.S. at 641, .ante pp. 1498-1494, Jn which waa de 81 S.Ct. at 789, it Is clear that the Court veloped the full sweep of the constitution was concerned only with the problem ot al prohibition against the use of coerced coerced confe88lons, see ibid.: the opin confessions at state trials, was there any ion includes nothing to support the thing to suggest that the Fifth Amend ment was being made applicable to at.ate Court's assertion here, ante, p. 1493, that S. Not'11ln1r In the opln.lon I.a Brown 1upport1 nled, the queetlon J11 not whether the
the Court's IJttimatlon bore, ante, p. 149S, record can bo found to dleclo10 llD In· that If Twlnlnr llnd not been on tho booke, fraction of ono of tho apecllio provlalon. raver11nl of tho eonvfotiona wonld have of tho 11rst olgbt (lmondmenta. To come been booed on tho ll'lfth Amendoient. «>nerotel1 to tho present c:it10, tho quea· Tho Court mnde it pl11ln in Brown that tlon 11 not whothor tho rocord pormlt.e n It rcg.nrd11d the trinl WIG of 11 confca· finding, b1 n tcnuou11 prOCeN of psycho· •Ion cxtroctod by torture n1J on 11 llDl' lorlcnl aasumptlona and reoaoulng, tb11t with tlomlnntlon of a trlnl by a mob, ace, Mallneld by mco.ne o( a conteealon woe e. r .. Mooro '" Dempae7, 2Gl U.S. 86, forced to eelf-lncrlmlnntion In dcfillllce 43 S.Ct. 26:S, M L.Ed. ~3 . .,.hero tho of tho Fifth AmOlldment. Tho exnot trial "la f\ me.re prctcnae," m u.s .. nt
question 111 wbotbor the crlmlnAl proceed· 286, M S.Ct., at 46!S. lnge which roaultcd In lite conviction do· J1rived hlm of tho clae proceee of law by 4. "And 10, whon a conviction In 11 atote which ho wns coll.lltit11tlonctljy entitled to have ble guilt determined." lfo.Umld. court la properly hero tor revlow, under a clnim thnt a rlrbt protected by the supra, 824 U.S. at 416, 6IS S.Ot. 11t 788 (opinion of Frnnkfurtor, J .). Fourteenth Amendment beta been de·
*108 H 81Jl'B.'BMB OOVJ.'f B.EPOB.TE& 878 11'.S. 19 "the Filth Amendment privilege ls • • The decision In Mapp v. Ohio, 867 U.S. [the] essential mainatay., of our 11Btem. 648, 81 S.Ct. 1684, that evidence uncon· atitutionally seized, see Wolf v. Colorado,
In Adamson, supra, the Court made it sss u.s. 26, 28, 69 s.ct. 1359, 1861, may explicit that it did not regard the in not be used in a state criminal trial fur· creasingly strict standard for determin nishes no "fortification," aee ante, p. ing the admissibility at trial of an out 1(94, for today's decision. The very pas of-eourt confeasion as undermining the sage from the Mapp opinion which the holding of Twlninr. After stating that Court quotes, ante, p. 1494 makes explicit "the due proce88 clause does not protect,
the distinct bases of the exclusionary b;y virtue of ita mere existence the ac rule ae applied in federal and atatf1 cused's freedom from giving testimony courts: by compulsion in state trials that is se cured to him arainst federal interference
''We find that, as to the Federal Gov· by the Fifth Amendment," the Court ernment, the Fourth and Fifth said: "The due process cJause forbids Amendments and, as to the States, compulsion to testify by fear of hurt, the freedom from unconscionable in· torture or exhaustion. It forbids any vaaions of privacy and the freedom other type of coercion that falls within from convictions based upon coerced the scope of due process." SS2 U.S., at confessions do enjoy an 'intimate re H, 67 S.Ct. at 1676.
lation' 10 81. (footnotes omit in their perpetuation of 'prin ted). Plainly, the Court regarded these ciples of humanity and civil libert1 two lines of cases aa distinct. See also [secured] * * * only after years Palko v. Connecticut, supra, 802 U.S.,
of struggle,' Bram v. United Statee, at 326, 68 S.Ct. at 152, to the same e1fecV
1897, 168 U.S. 582, 543-544, 18 S.
Cohen, supra, which adhered to Twining, Ct. 188, 187." 367 U.S., at 65H57, 81 s.ct., at 1692 (footnote omitted). was decided after all but a few of the confession cases which the Court men·
See also id., 867 U.S. at 655, 81 S. tions. Ct., at 1691. The coerced confession cases arc rele- Although the Court discussed Boyd v. vant to the problem of this case not be United States, 116 U.S. 616, 6 S.Ct. 524, cause they overruJed Twining .tUb lilen a federal case involving both the Fourth tio, but rather beeause they applied the and Fifth Amendments, nothing in Mapp same standard of fundamental faimees supports the statement, ante, p. 1494, which is applicable here. The recoa'lli· that the Fifth Amendment was part ot tion in them that federal supervision of
the basis for extending the exclusionary at.ate criminal procedures must be direct rule to the States. The elaboration of ly based on the requirementa of due proc· Mapp in Ker v. California, 874 U.S. 23, ess is entirely inconsistent with the 88 S.Ct. 1623, 10 L.Ed.2d 726, did in my theory here espoused by the majority. view make the Fourth Amendment ap The para11el treatment of federal and plicable to the States throui'h the Four state cases involving coerced confessions teenth; but there is nothing in it to sug resulted from the fact that the same gest that the Fifth Amendment went demand of due process was applicable in along as baggage. both; it was not the consequence of the
III.
automatic 'engrafting of federal law con struing constitutional provisions inappli· The previous discussion showa that cable to the States onto the Fourteenth this Court's decisions do not dictate the Amendment. ''incorporation" of the Fff'th Amend- a. In Adara1on ud Polka, 11upra, which ad·
1how that Twtnlnc WH gradaaU, being hered to the· rule imoounced in Ttriniar, eroded, 332 U.S., at 54, notes 12, 18, supra, the Oourt cited 1ome of the Yerf 61 S.Ct., at 1616; 302 U.S., ot 825, 826, ca1a JlOW relied on by the majority to 58 S.Ct., at 1'51, 1'52,
*109 878 v.s. 18 1501 MALLOY T. JIOGA1' Cit. .. 8' IJ.Ct.1481> (JIMN)
Bill ot Ril'hta mlrht prov.Ide historical nient's privilege aralnst aelf·incrimina· evidence that the rirht involved was tra,.. tion intQ the .. Fourteenth Amendment. clitionalJy rerarded as fundamental, in· Approaching "1te queation JQore broadly, cJuafon of the right in due process was it is equally plain that the line of cases otherwise entirely Independent of the exemplifted . ~Y Palko v. Connecticut, firat eirht Amendments: 111pra. fn which this Court haa reconaid· ered the requirements which the Due
"* * * [I]t is posaible that ,Process .Clause .fmpoaes on the States in some of the personal rights safe· the light 'of current 1tandards, furnishes guarded by the first eight Amend· no reneral theoretical framework for ments aiafnst national . action may what the Court does today. alao be safeguarded against state ac The view of the Due Precess Clause of tion, because a denial of them would be a denial _of due process of law. the Fourleenth Amendment which this • . • • If this · is so, it ia not be· Court ha.s consistently accepted and cause tkoss right.a are enumtrated in which hu . "thus far prevailed,'' ante, the first Bight Amendments, bNt be p • . 1491, is that its requirements are as C4"8e the11 are of such a. nature that [41] old as a principle of civilized govern· they cire i:racluded in the eot&Ception ment," Munn v. Illinois, 94 U.S. 118, 128, of dtU f)roce11B of law." Twinini'; a4 L.Ed. 77; the speci1lc a11pUcations of -supra, 211 U.S. at 99, 29 S.Ct. at 19. which muat be ascertained "by tho grad· (Emphasis; supplied.) ual process of judicial Inclusion and ex· cl1111ion * • *,"Davidson v. New Orie·
Relying heavily on Twining, Mr. Jus· ans, 96 U.S. 97, 104, ·24 L.Ed. 616. Due tice Cardozo provided what .maY. be re~
I.
garded as a classic expression of thia process requires "observance of those i - general rules established in our aystem of approach in Palko v. Connecticut, supra. jurisprudence for the security of private After considering a number of individual
rights (including the right rights." Hagar v. Reclamation District 13 not to in· No. 108, 111 U.S. 701, '108, 4 S.Ct. 668, criminate oneself) which were "not of 667, 28 L.Ed. 569. See Hurtado v. Cali· the very essence of a schenie of ordered fomia, 110 U.S. 516, 537, 4 S.Ct. 111, 121. liberty,'; fd., 802 U.S. at 826, 58 S.Ct. at 162, he said : . . "This ·court has never attempted to detlne with precision the words · 'We reach a different plane of 'due process of law' * • •. It la social and moral values when we sufficient to 8&7 .that there are cer· · pus ~ the privUegea and immuni· tain immutable principles of justice, · ties that have· been taken over from which inhere in the very idea of free the earlier articles ·of the F~deral government. which no member of Bill of Rfrhts and brought within the Union maJ" disregard • • • :•
the Fourteenth Amendment by a Holden v. Hardy, 169 U.S. 866, 389, process of absorption. These in 18 S.Ct. 888, 887, 42 L.Ed. 780. their origin were effective against the federal government alone. If
It followed from this recognition that the Fourteenth Amendment has ab due process encompassed the fundamental sorbed them, the process of absorp.. safe1t1ards of the individual against the tion baa bad ita source in the belief abusive exercise of governmental power that neither liberty nor justiee that some of the restraints on the Fed· would exist if they were eacri11ced." eral Government which were speciftcally Id., S02 U.S. at 826, 68 S.Ct. at 152. enumerated in the Bill of Rights applied also araf.nst the States. But, while in· Further on, Mr. .Justice Cardozo made
the independence of the Due Process clu&ion of a particular provision in the *110 8' S'OP&Elm OOUBT BEPOBTEB S71 t7.8. IS Clause from the provfalona of the first aeope in the federal and •tate domains or eight Amendments explicit: that in some areaa of criminal procedure ·
the Dae Procesa Clause demands aa much "Fundamental • • • in the of the States u the Bill of Rights de concept of due proceM, and 10 in mands of the Federal Govemment, is that of liberty, fa the thought that only tangentiallf relevant to the question eondemnatlon shall be rendered only now before us. It is toying with consti after trial. Scott v. McNeal, 154
tutional princlplea to ueert that the U.S. 84, 14 S.Ct. 1108, SS L.Ecl. 896: Court baa ''rejected the notion that the Blackmer v. United States, 284 U.S. Fourteenth Amendment appliea to the 421, 52 S.Ct. 252, 76 L.Ed. 875. The states only a 'watered-down, subjective hearing, moreover, must be a :real version of the individual paranteea of one, not a sham or a pretense. the Bill of Rights,' " ante, p. 1495. What Moore v. Dempsey, 261 U.S. 86, 48 the Court bas with the single exception S.Ct. 265, 67 L.Ed. 643 • Mooney v. of the Ker ease, supra, p. 1600: see infra, Holohan, 294 U.S. 108, 56 S.Ct. 840, p. lli08, consistentJ:v rejected ls the no "19 L.Ed. 791. For that reason, ig tion that the Bill of Rights, as such, norant defendanta f n a capital case applies to the States in any aspect at all. were held to have been condemned If one attends to those areas to which unlawfully when in truth, thourh the Court points, ante, p. 1494, in which not in form, they were refused the the prohibitions arainst the state and aid of. counsel. Powell v. Alabama, federal governments have moved in supra, 287 U.S. 45, at paJ'eS 67, 68, ss s.ct. &s, es, 11 L.Ed. 1iss, 84 parallel track!, the cases in tact reveal
again that the Court's usual· approach A.L.R. 527. The decision did not has been to ground the . prohibitions turn upon the fact that the benefit against state action squarely on due -of counsel would have been ruaran· process, without intermediate reliance on teed to the defendants by the provl· any of the 1lrat elBht Amendments. AJ. elons of the Sixth Amendment if though more recently the Court has re they bad been prosecuted in a federal ferred to the First Amendment to de eourt. The decision turned upon the fact that in the particular 1ituation scribe the protection of free expreSBion laid before ua in the evidence the against state infringement, earlier cases benefit of counsel was essential to leave no doubt that 1ueh referencea ne the substance of a hearing." Id.,
"shorthand" for doctrines developed by 302 U.S. at 827, 68 S.Ct. at 153. .,,
another
as route. In Gitlow v. New York. It is apparent that Mr. Justice Car 268 U.S. 662, 666, 45 S.Ct. 626, 680, for odozo's metaphor of "absorption" was not example, the Court said: intended to suggest the transplantation i>f case law .surrounding the specifics of
"For present purposes we may and the flrst eiaht Amendments to the very do assume that freedom of speech -different soil of the Fourteenth Amend· and of the press-which are pro ment's Due Process Clause. For, as he tected by the First Amendment made perfectly plain, what the Four from abridgment by Congre11.9--are teenth Amendment requires of the States among the fundamental personal -does not basically depend on what the rights and 'Uberties' protected by the ~rst eight Amendments require of the due process clause of the Fourteenth Federal Government. Amendment from impairment by the States."
Seen in proper perspective, therefore. the fact that Fint Amendment protec The Court went on to consider the extent tioM have generally been lfVen equal of those freedoms in the context of state
*111 17.8 v.s. ~ 1503 lrtALLOT T. EOG.Alf Cite 118' Lct.18 (1*) · . The coercecJ confession and search and
interests. . ·Mr. JustJce Holmes. Jn dis- eeisure ea.sea have a1read7 been consfd· eent, said: ered. The f!M'Dler, decided always dJrect· · "The general' principle of free ly on grounds of fundamental fairness, speech, it seems to tne, m111st be taken furnish no oupport tor the Court's pres· to be iDcluded in the Fourteenth . ent views. Ker v. California, supra, did Amendment, iri \'iew of the .scope indeed inco1l'POrate the Fourth Amend·· that has · been 'given to the word ment'a protection against invasions of 'liberty' as there used, although per privacy into the Due Process Clause. haps it may be accepted with a some
But that case should be regarded as the what larger latitude of interpreta exception which proves the rule. [1] The tion than is allowed to Congress by right to counsel in state criminal proceed the sweeping language that governs ings, which this Court assured in Gideon or ought' to govern the laws of the v. Wainwright, 872 U.S. 885, 88 S.Ct. United States." Id., 268 U.S. nt 672, 792, does no~ depend on the Sixth Amend 46 S.Ct. at 6S2.
ment. In Betta v. Brady, 816 U.S. 465, 462, 62 s.ct. 1252, 1256, this Court bad
Chief Justice Hughes, in De Jonge v. Oregon, 299 U.S. 858, 864, 57 S.Ct. 255, said: 260, gave a sim.!lar analysis:
"Due process of law is secured "Freedom of speech and of the against invasion by the federal Gov- : press are fundamental rights which ernment b1 the Fifth Amendment are ~eiruarded by the due process and is safeguarded ~gainat state ac clause of the Fourteenth Amendment tion in identical words by the Four of the Federal Constitution. * * *
teenth. The phrase formulates a
The right of peaceable assembly is a concept leas rigid and more fluid right cognate to those of free speech than those envisaged in other specific and free press and fa equally funda and particular provisions of the Bill of Rights. Its application is leas a.
mental. As this Court said in Unit [4] ed States v. Cruikshank, 92 U.S. 542,
matter of rule. Asserted denial is 562, 28 L.Ed. 588: 'The very idea to be tested by an appraisal of the · of a government, republican in form, totality of facts in a given case. implies a right on the part of its · That which may, in one setting. con cttizens to meet peaceably fot con- · stitute a denial of fundamental fair sultation in respect to public affairs ness, shocking to the universal sense and to .petition for a redress of
of justice, may, in other circum· grievances.' The First Amendment stances, and in the light of other of the Federal Constitution express .. considerations, fall 11h~rt of such de ly guarantees that right against nial." (Footnote omitted.) abridrment rt by Congress. · But ex- · Although Gideon overruled Betts, the plfcit mention there does not argue coniltitutional approach in both cases was exclusion elsewhere. For the right the same. . Gideon was bued on tbe is one that cannot be denied without Court's conclusion, contrary to that violating those fundamental' princl· reached in Betts, that the appointment plea of liberty and justice which lie of counsel for an indigent criminal de at the base of all civil and political fend~nt toaa essential to the conduct of institutions-principles 'Which the a fair trial, and was therefore part of Fourteenth Amendment embodies Jn due process. 372 p.s., at 842-845, ss the general terms of its due process claose." S.Ct. at 796-797.
L Of. the m.ajoritJ ud ditsentlnr oplnloo1 In AJ1ll]&r y, Tua.t. 8'18 lJ.S. 108, 84 S.Ct. UIOL *112 H sunmm OOU'lt! BBPOP.TEB 1004 S78 tr.S. i'1 The Coart'a approach In the preeent allocation of responsibility for the pre case i11 in fact nothing more or less than vention of crime when it applies to the States doctrines developed in the context "incorporation" in lll&tches. If, how· ever, the Due Proceas Clause la something of federal law enforcement, without any more than a reference to the Bill of attention to the special problems which Rights and protects only thosP. rights the States as a group or particular States may face. If the power of the States to which derive from fundamental princi~ ples, as the majority purports to believe, deal with local crime ia unduly restrict it is just as contrary to precedent and ed, the like]y consequence f s a shilt of resporuiibility in this area to the Federal juet as illogical to incorporate the provi sions of the Bill ot Rights one at a time Government, with !ta vastly greater re as it Js to incorporate them all at once. aources. Such a shift. if it occurs, may
in the end serve to weaken the very IV. liberties which the Fourteenth Amend ment safeguards by bringing us closer The Court's undiscriminating ap to the monolithic society which our fed proach to the Due Process Clause car· eralism rejects. Equally dangerous to ries serious fmplicatfona for the aound our liberties ts the alternative of water-· working of our federal system in the field ing down protections again111t the Federal <>f criminal law. Government embodied in the Bill of The Court concludes, almost without Rights so as not unduly to restrict the discussion, that "the same standards powen of the States. The dissenting must determine whether an accused's opinion in Aguilar v. Texas, 878 U.S., .silence in either a federal or state pro p. 116, 84 S.Ct., p. 1515, evidences that ceeding i11 justified," ante, p. 1495. About this danger is not imaginary. See my all that the Court otrers in explanation of concurring opinion in Aguilar, ibid. this conclusion is the observation that it would be "incongruous" if ditrerent
Rather than insisting, almost by rote, standards governed the assertion of a that the Connecticut court, in considering privilege to remain ailent in ata.te and the petitioner's claim of privilege, wns federal tribunals. Such "incongruity," required to apply the "federal standard.'' ltowever, is at the heart of our federal the Court should have fulfilled its respon system. The powers and responsibilities
sibility under the Due Process Clause by ·Of the at.ate and federal governments are inquiring whether the proceedings below not congruent; under our Constitution. met the demands of fundamental fairness they are not intended to be. Why should which due process embodies. Such an it be thought, as an ti priori matter, that approach may not satisfy those who see limitations on the investigative power of in the Fourteenth Amendment a set the States are fn all respects identical of easily applied "absolutes" which can with limitations on the investigative afford a haven from unsettling doubt. It power of the Federal Government? This is, however, truer to the spirit which re ·Certainly quires this Court constantly to re-exam •
ine fundamental
does not follow from the fact 89 that we deal here with constitutional re principles and at the .quirementa: for the provisions of the same time enjoins it from reading ita Constitution which are construed are own preferences into the Constitution. different. As the Court pointed out in Abbate v. The Connecticut Supreme Court of 'united State.a, 859 U.S. 187, 195, 79 S.Ct. Errors gave full and careful conaidera '666, 671, 8 L.Ed.2d 729, "the St.ates un tion to the petitioner's claim that he .der our federal system have the principal would incriminate himself if he answered responsibility for defining and prosecu.t the questions put to him. It noted that ing crimes." The Court endangers this Us decisfona "from a time antedating the
*113 878 :v.s. 81 1505 MALLOY T. KOGAN · ate u M I.a. 1'1111 (JH4)
But lt would be to convert a salutary adoption of • ·• • [the Connecticut] protection Into a means of abuse if conatltution in 1818" had upheld a privi 1t were to be held that a mere lmari· lege to refuse to answer incrfminatfnl' naey possibility of danger, however queetions. 150 Conn. 220, 228, 18'1 A.2d remote and improbable, was suftl 744, 746. StaUnir that federal eases treatµlg the Fifth Am~dment privJlege cient to justify the withholding of bad "persuuive ·force" in 'tnterpretin1 evidence eaeential to the ends of jus· tfce.' Cockburn, C. J ., in Regina v. its own eonatf tutfonal provision, and cit· . Boyes, 1 B. & S. 811, 880 • • *.'' fnl' Hoffman v. United States, 841 U.S. McCarthy v. Clancy, 110 Conn. 482, 479, 71 S.Ct. 814~ Jn particular, the Su· 488-489, 148 A. 551, 555. preme Court of Errors described the re· quirementa for assertion of the privilege
The court carefully applied the above by quoting from one of its own cases, id., standard tO each question which the peti 150 Conn., at 225; 187 A.2d, at 747: . tioner was asked. It dealt firet with the question whether be knew John Bergoti. "(A] witriess * • • has the The court said : · right to refuse to answer any ques· tlon which would tend to iincriminate
"Bergoti is nowhere described or in him. But a !nere claim on his part any way identified, either as to his that the evidence will tend to in· occupation,. actual or reputed, or as criminate him. is not auffl•:ient. • * to any criminal record he may have [He having] made his claim, it is had. • • • Malloy made no at· then • • • (neceasa.ry for ·the tempt even to suggest to the court judge] to determine in the exercise how an anewer to the question of a legal discretion whether, from whether he knew Bergoti could pos~ the circumstances of the case and the aibly incriminate him. • • • On nature of the evidence which the this state of the record the queetion witness is called upon to give, thel'e was proper, and M:alloy's claim of is reasonable ground to apprehend privile&'e, made without explanation, danger of criminal liability from bis was correctly overruled. · Malloy being compelled to answer. That 'chose to keep the door tightly closed danger •must be real and apprecia· and to deny the court the smallest ble, with reference to the ordinary glimpse of the danger he apprehend· operation .of Jaw in the ordinary ed. He cannot then complain that course of thinga--not a danger of we aee none.' In :re PiJlo, 11 N .1. 8, an imaginary and unsubstantial 22, 9S A.2d 176, 183 • • •." 1150 character, having reference to some Conn., at 226-227, 187 A.2d, at 748. extraordinary and barely possible
The remaining questions are summa· contingency, so improbable that 110 rized in the majority's opinion, ante, reasonable man would sutler it to p. 1496. All of them deal with the clr inftuence })is conduct. We think that cumatances surrounding the petitloner's a merely remote and naked poasibll· conviction on a gambling charge in 1959. ity, out of the ordinary course of
ThA court declined to decide law ·and such u no reasonable man •• would be afrected by, "whether,
IO
ahould not be on their face and apart from any consid· auifered l9 obstruct the administrk· eration of :Malloy's immunity from prose. tion of justice. The object of the eutlon, the questions should or should not Jaw is to. afford to a party, called have been answered in the light of his upon to give evidence in a proceeding failure to give any hint of explanation as int61' alioa, protectfon against being to how answers to them could incriminate brought by means of hia own evl· hlm.'' 1150 Conn., at 227, 18'1 A.2cl, at dence within the penalties of the Jaw. · '148. The court considered the State'a [14] s.et. ...... s *114 378 v.s. 81 1506 with reference to his relationship c1afm that the petitioneJ"°" prior eonvic· tion was saftlcient to clothe him with ~th a possible criminal." Ante. pp. immunity from prosecution for other 1496-1497. crimes to which the questions might per· 'The other five questions, treated at tain, but declined to rest its decision on that basis. · Id., 160 Conn., at 227-229, length in the Connecticut court's opinion, get ·equally short shrift .from this Court; 187 A.2d, at 748-749. The court conclud
it takea the majority, unfamiliar with ed, however, that the running of the Connecticut Jaw and far removed from statute of limitations on misdemeanors the proceedings below, only a dozen lines committed in 1959 and the absence of any to ~nsider the questions and conclude indication that Malloy had engaged in that they were incrimi.nating: any crime other than a milidemeanor re· moved all allPearance of danger of in·
"The interrogatf on was a part of a crimination from the questions propound· wide-ranging inquiry iiito crime, in ed concerning the petitioner's. activities cluding gambling, in Hartford. It in 1959~ The court summarized this con was admitted on behalf of the ·state clusion as follows : at oral argument-and indeed it is obvious from the questions them
"In aU this. Malloy confounds vague selves-that the State desired to and improbable possibiUties of pros elicit from the petitioner the identity ecution with reasonably appreciable of the person who ran the pool-sell ones. Under claims like his, it would ing. operation in connection with always be possible to work out some which he had been arreated Jn 1959. finespun and improbable theory from It was apparent that petitioner which an outside chance of prosecu might apprehend that if this person tion could be envisioned. Such were still engaged in unlawful ac claima are not enough to support a tivity, disclosure of his name might claim of privilege, at least where, as furnish a link in a chain of evidence here, a witness suggests no rational suffi~ient to connect the petitioner explanation of his fears of incrimi with a more recent crime for which nation, and the questions themselves. h.e might still be prosecuted." under all the circumstances, suggest (Footnote omitted.) Ante. p. 1496. none." I~., 150 Conn., at 230-281, 187 A.2d, at 750.
I do not unde:retand how anyone could read the opinion of the Connecticut court Peremptorily rejecting all of the care and conclude that the state Jaw which ful analysis of the Connecticut court, this was the basis of its decision or the deci· Court crea~s its own "finespun and im sion itself was lacking in fundamental probable theory" about how these ques fairness. The truth of the matter fa that tions might have incriminated the peti· under ·any standard-state or federal tioner. With respect to his acquaintance the commitment for contempt was proper. with Berg~ti, this Court says only: Indeed, a8 indicated above. there is every [41] ln the context of the inquiry, it reason to believe that the Connecticut should have been apparent to the court did apply the Hoffman standard referee that Bergoti was suspected 33
quoted approvingly in the majority•s 31 by the State: to be involved in some opinion. I entirely agree with my Broth way in the subject matter of the er WHITE, Post, pp. 1608-1509, that if the investigation. An affirmative an matter is viewed only from the stand· swer to the question might well have point of the federal standard, such stand· either connected petitioner with a ard was fully satis1ied. The Court's ref erence to a federal standard is, to put it more recent crime, or at leaat have operated as a waiver of his privilege bluntly, simply an excuse for the Court to *115 878 v.s. 8S 1507
MALLOY T. HOGAN' . Cite 11 IN 8.Ct. 141111 (19M)
The Queen v. Boyes, 1 B. AS. 811, 829-:- substitute its own euperftciar assessment 880 (1861) : Mason v. United States, 244 of the facts and state law;for the careful U.S. 862, 87 S.Ct. 621, 61L.Ed.1198. I and better informed conclusions of the do not think today's decision permita state court. No one who scana the two auch a det.ermiDAtion. opinions with an objec~ive eye wil~ I_ think, ·reach any other ~nclusfon.
Anawen which would furnish a lead to I would affirm. other evidence needed to prosecute or con'rict a claimant of a crfme-elue evl· Mr. Justice WHITE, with whom Mr. dence--cannot be compeHed, but "this Justice STEW ART joins, dissenting. protection must be confined to instances where the witness haa reasonable cause
I.
to apprehend danger from a direct an· The Fifth Amendment safeguards an swer." Hoffman v. United States, 841 Important complex of values, but it is U.S. 479, at 486, 71 8.Ct. 814, at 818: difficult for me to perceive how th1ese Mason v. United States, 244 U.S. 862, 87 values are · served by the Court's holding S.Ct. 621. Of course the witness ls not that the privilege was properly invoked required to disclose so much of the dan·
ger' as to render hie privilege nugatory. in this cnse. While purporting to apply the prevailing federal standard of in~ But that docs not justify a flat rule of ~rlminntion-the same standard of ·in no inquiry and nutornntlc acceptance 'of crlminntion that the Connecticut courts the claim of privilege. In determining
i , applied-the Court hns nil but stated that whether the witness has a reasonable ap· a witness' Invocation of the privilege to prehension, the test in the federal court& any question is to be automatically, nnd has been that the judge is to decide from
the circumstances ot the case, his lmowl without more, accepted. With deference; I prefer the nde permitting the judge edge of matters aurrounding the inquiry rather than the witness to determine and the nature of the evidence which is demanded from the witness. Hoffman when nn an.swer sought is incriminating.
v. United States, 841 U.S. 479, 71 S.Cl The established rule has been that the 814.; Mason v. United St.ates, 244 U.S. \'if tness' claim of the privilege is not 862, 87 S.Ct. 621. Cf. Rogers v. United ftnal, for the privilege qualifies a citizen's States, 340 U.S. 867, 71 S.Ct. 488. This general duty of disclosure only when his rule seeks and achieves a worknble ac· answers would subject h•m to danger commodntion between what are obviously from the criminal law. The privilege important. competing interests. As Mr. against self -incrimination or any other Chi of Justice Marshall enid: "The prin evidentiaey privilege does not protect si ciple wblch entitles the United States to lence which is solely an expression of the testimony of every citizen, and the political protest, a desire not to inform, principle by which every witness is privi a fear of social obloquy or economic dis leged not. to ac~use himself, can neither advantage or :fear of prosecution for fu of them be entirely disregarded. • • * ture crimes. Smith v. United States. When a question fa propounded, ft 1Je..
M
longs to the court to consider and to de· 837 cide whether any direct answer to it can U.S. 137, 147, 69 S.Ct. 1000, 1005, 93 L.Ed. 1264: Brown v. Walker, 161 U.S. implicate the witness." In
. 86 591, 605, 16 S.Ct. 64'1, 8150, 40 L. re Willie, 26 Ed. 819. It the general -duty to testify Fed.Cas.No.14,692e, at 39--40. I would when subpoenaed fa to- remain and the
not only retain this rule but apply it privilege ls to be retained M a protec in its present form. Under this test., tion against compelled incriminating an Malloy's refusals to answer some, it not swers, the trial judge must be permitted all, of the queetions put to him wero to make a meaninlfful determination of clearl1 not privileged. when answers tend to incriminate. See
*116 84 811.PBEME OOVBT BEPOBTER 878 V.B. ~5 n. on November 15, 1959, who furnished· the money to pay your ftne?
In November 1959, Malloy was ar • • • • rested in a gambling raid in Hartford * * and wu convicted of pool selling, an of·
"Q. Do you know whose apart f ense defined as occupying and keeping , ment it was [that you were· arrested a bulldhig containing gambling appara in on September 11, 1959]? tus. After a 9().day jail term, his one • • • • * year sentence was suspended and MaJloy * .. "Q. Do you know John Bergoti 1 was placed on probation for two years. •
•
• ID, earJy 1961, Malloy was summoned to * appear in an investia"ation into whether
"Q. I ask you again, Mr. Malloy, crimes, including gambling, had been now, so there will be no mieunder· committed Jn Hartford County, and was atandinw of what I want to know. asked various questions obviously and When you were arrested on Septem aolely designed to aecertain who Malloy'!J ber 11, 1969, at 600 Asylum Street in associates were in · connection with his Hartford, and the same arrest for pool~seJlln g activities in Har tford in 1959. which you were convicted in Supe Mn.lloy fnltlally r efused t.o answer vir· rior Court on November 5, 1959, for tually all the ·questions put to him, in· whom were you working?" eluding euch innoeuous ones as whether It waa for refusini to answer these he was the William Malloy arrested and questions that Malloy was cited for con convicted of pool selling in 1959. After tempt, the Connecticut courts noting that he was advised to consult with counsel the privilege does not protect one against and did so, he declined to answer each informing on f riends or associates. one of the following questions on the These were not wholly innocuoua ques ground that it would tend to incriminate tions on their face, but they clearly were him: in light of the finding, of which Malloy "Q. Now, on September 11, 1959, was told, that he was immune from prose when you were arrested at 600 Asy cution for any pool-selling activities Jn lum Street, and the same arrest for 1959. As the Connecticut Supreme Court which ·you were conVicted in the Su of Errors found, the State bore its bur perior Court on November 5, 1959, den of proving that the statute of limi for whom were you working? tations barred any prosecution for any type of violation of the state pool-selling • •
• • * statute in 1959. MaJloy advanced the "Q. Ori September 11, 1959, when claim before the Connecticut courts, and you were arrested, and the same ar again before this Court, that he -could rest for which you were convicted perbapa be prosecuted for a conspiracy in the Superior Court on November and that the statute of limitations on ~ 5, 1959, who furnished the money felony was to pay your tlne when you were con 3' victed in the Superior Court T .. 1ive years. But the Conoecti· • • cut courts were unable to llnd any state • * * statute which Malloy's gambling activi ties in 1969 in Hartford, the subject of
"Q. After your arrest on Sep the inquiry, could haye violated and Mal tember 11, 1959, and the same arrest loy has not yet pointed to one. Beyond for which you were convicted on this Malloy declined to offer any ex November 15, 1959, who selected your planation or hint at how the answers bondsman? aourht could have incriminated him. In • • • • • • these circumstances it is wholly specula tive to find that the queations ·about "Q. As a result of your arrest on September 11, 1959, and the same others, not MaJloy, posed a substantial arrest for which you were convicted hazard of criminaJ prosecution to Malloy. *117 118 v.s. 108
1509 Cit. u 8' 8,Ct. ll!OO (J.9N) Judre passing on the clafm tO understand The0retlcally, under 1ome unknown b11t perhap1 poBBible eondltioni any fact is how the aitawere sou1ht are fncriminat potentlall:y incriminatlns'. But if this ini', I would at leaat require the c1aim be the rule, there obviousJY is DO reason ant to atate hie 1rounde for asserting the for the Judge, rather than the witness, to privilege to questions 1eemiql7 lrrele pass on the claim' of privilege. The privi· vant to any incriminating matten. lege becomes a general one against an·
Adherence to the federal standard of awering distasteful questions. incrimination stated In Mason and Hott man, supra, in form onl;y, while ·its con
The Court finds that the questions were · incriminating because petitioner tent ia eroded in application, ia hardly "might apprehend that if [his associates ·an auspicloua beginning for application in 19f.:9] were itUI engaged in unlawful of the privilege to the States; As was actlV'ity, disclosure of [their names] well stated in a closely analogous situ mirht furnish a link in a chain of evi· ation, "[tJo continue a rule which ia dence sufficient to connect the petitioner
honored b:r this Court only with lip serv· with a more recent crime for which he ice ill not a healthy thins and In.the long might atfll be prosecuted.'' Ante, p, 1'96. 1't1D WJll do dfsaervice to the federal IYB· The assumption necessaey to the above . tem." Gideon v. Wainwright. 872 U.S. reasoning fa that all persons. or all who 885, at 8Gl, 88 B.Ct. '192, at 800 (HAR· have committed a miSdemeanor, are con· l:u\N, J., concurrin8'). tfnuously engaged in crime. This is but another wa:r of !Dllldnr the claim ot priv I would aftlnn. ilere automatic. It fs not only unrealistic
" r I' ,. ,, irenerall:r but peculiarl)" inappropriate_ in thi11 case. Unlike cases relied OD by the Court, like Holfman v. United States, supra, where the claimant wu known to
lt be involved in rackets in the area, which Ii were the subject of the inquiry, and had it a "broadly published police record.'' Mal- !1 loy had no record u a felon. He had. ..,. v ... 10IJ engaged once in an unlawful activity Nick Alford AGUILAR, PetHloner,
..... ~1 selling-a misdemeanor and was STA.TE 01' TEXAS. riven a suepended sentence. He had been on probation since that time and wu on probation at the time ot the in
Ar1ued March 25, 26, 1964.. quiry. Again, unlike Bo1fman, nothing Dedded .Tune 15, 1964. in these questions inclicat.es petitioner sa waa called beeauae he wu suspected of Defendant was convicted, fn the criminal activities after 19'59. There is Criminal District Court, Hanis Count7, ~o auppoft ,t all in tbt~ record for the
Tezu, of illegal possession of heroin, and cynical assumption that he had commit the Tu:aa Court of Criminal Appeals, 1 '12 ted criminal acts after his release in Tu.Cr.R. 629, 862 S.W .2d 111. aftlrmed. 1960. ' On certiorari rranted, the Unlte.d State. Even on the Cotlrt'i. assumption that Supreme Court, Mr. Justice Galdberg, J>6rsons convicted ot a misdemeanor 'are held that -afftdavit for search warrant :neceaaarlzy BUB\)ect criminala, sustaining ma:r be baaed on hearsay informatfon and need not reflect direct personal observa the privilege In these circumstances is
tions ot am.ant but magistrate must be unwarranted, for Malloy placed no re Uance on this theory in the courts below informed of some of underlying- circum or in this Court. In order to allow the
atance11 on which Informant baaed his
628 FEDERAL REPORTER, 2d SERIF.s
*118 sioned to devise it. Instead, we defer to the dors program as applied in specific cases. defendants' interpretations of the Amend The program requires many discreticfriary ments. See Udall v. Tallman, 880 U.S. 1, acts on the part of the Secretary; the agen 16, 85 S.Ct. 792, 801, 13 L.:Ed.2d 616 (1965); cy heads, and agency property matlagers. Ethyl Corp. v. EPA. 176 U.S.App.D.C. 873, These acts may of course be reviewed under 406, 541 F.2d 1, 34 (1976) (court must pre the Administrative Procedure Act. In fact, sume the agency's actions are valid); Sierra the regulations set up an internal· arbitra .. ' Club v. EPA, 176 U.S.App.D.C. 885, 845, 540 tion procedure for dispute resolution, culmi F.2d 1114, 1124 (1976), vacat.ed on other nating in judicial review of the final agency grounds, 484 U.S. 809, 98 S.Ct. 40, 54 action. See 45 C.F.R. § 1869.37. Thus L.Ed.2d 66 (1977); Columbia BroadC&Bting there is no bar to review of any further System, Inc. v. FCC, 147 U.S.App.D.C. 175, actions by the pertinent government agen 184-85, 454 F.2d 1018, 1027-28 (19'71). cies which conflict with the policies set out
in the Randolph-Sheppard Amendments and the regulations.
III.
Affirmed. [6] The plaintiffs also ask this court to reverse or remand the District Court's judg ment because of its failure to make detailed findings of fact and conclusions of law. This argument ignores the procedural con text of the court's action which disposed of the case on a motion for summary judg
SECURITIES AND EXCHANGE
ment under Fed.R.Civ.P. 56. Fed.R.Civ.P.
COMMISSION,
52(a) provides: "[f]indings of fact and con v. clusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any DRESSER INDUSTRIES, INC., other motion except as provided in Rule Appellant, 4l(b)." See, e. g., Hindes v. United States,
United States, Intervenor. 326 F.2d 150, 152 (5th Cir.), cert. denied, 377 U.S. 908, 84 S.Ct. 1168, 12 L.Ed.2d 178 SECURITIES AND EXCHANGE (1964) (only finding necessary is that there COMMISSION, are no genuine issues of material fact); v. Gurley v. Wilson, 99 U.S.App.D.C. 386, 387,
DRESSER INDUSTRIES, INC., Edward 239 F.2d 957, 958 (1956); Simpson Bros., R. Luter, Appellant, Inc. v. District of Columbia, 85 U.S.App. United State., Intervenor. D.C. 275, 179 F.2d 430 (1949), cert. denied, 388 U.S. 911, 70 S.Ct. 850, 94 L.Ed. 561 Nos. 78-1702, 78-1705. (1950). There were no . genuine issues of
· United States Court of Appeals, material fact, and this court can easily de District of Columbia Circuit• cide the legal questions on the basis of the Argued en bane April 15, 1980. statute, regulations, and the preamble to the regulations explaining the reasoning Decided July 16, 1980. supporting the defendants' policies:
Certiorari Denied }llov. 17,.1980. See 101 S.Ct. 529.
IV.
[7] The decision in this case does not Corporation appealed from decision of preclude further review of the blind ven- the United States District Court for the lenge the percentage disbursements of vending accounting for, vending machine Income from vending machines on Federal property under machine Income to blind vendors detennined his control . . . " However, this Is a logi by whether or not the vending machines are in direct competltJon with the blind vending facili cal delegation of the authority granted to the head of each department, agency, and Instru ties. 45 C.f.R. § J369.32(b), (c), (d). However, mentality of the United States in 20 U.S.C. these disbursements parallel those set in 20
u.s.c. § 107d-3(b)(l). § 107d-3(b)(2). Plaintiffs also seem to chat- *119 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1369
Cite u 828 F.2d 1388 (1980)
District of Columbia, 453 F.Supp. 578, Exchange Commission from being entitled Thomas A. Flannery, J., requiring obedi- to enforcement of subpoena issued in con ence to subpoena duces tecum issued by nection with investigation into use by cor Seeurities and Exchange Commission and poration of funds to make such payments, denying motion by the corporation to quash contrary to claims that enforcement would the subpoena. The Court of Appeals, J. 'improperly broaden right of Department of Skelly Wright, Chief Judge, held that Justice to criminal litigation discovery and parallel investigation into alleged "ques- would infringe role of grand jury, and the tionable foreign payments" conducted by corporation was not entitled to protective grand jury under guidance of Justice order prohibiting SEC from providing Jus Department did not preclude Securities and tice Department with fruits of its civil dis Exchange Commission from being entitled covery. 26 U.S.C.A. (l.R.C.1954) § 7602; to enforcement of subpoena issued in con- Securities Exchange Act of 1934, § 2l(a) as nection with investigation into use by cor- amended 15 U.S.C.A. § 78u(a); Securities poration of funds to make such payments, Act of 1988, § 19(b), 15 U.S.C.A. § 77s(b). contrary to claims that enforcement would
4. Grand Jury 111:::>36.4(1) improperly broaden right of Department of Fact that grand jury has subpoenaed Justice to criminal litigation discovery and documents concerning particular matter would infringe role of grand jury, and the does not insulate such matter from investi corporation was not entitled to protective gation in another forum. Fed.Rules Cr. order prohibiting SEC from providing Jus Proc. Rule 6(e), 18 U.S.C.A. tice Department with fruits of its civil dis- 5. Securities Regulation ~86 covery.
Enforcing Securities and F~xchange Affirmed. Commission subpoena issued in connection Edwards, Circuit Judge, concurred spe- with SEC investigation into use by corpora cially and filed opinion. · tion of funds to make "questionable foreign payments" would not breach alleg,id agree I. Federal Courts c8==> 1150 ment of confidentiality where the SEC, Constitution does not ordinarily require throughout "voluntary disclosure program," stay of civil proceedings pending outcome reserved its rights to pursue formal investi of criminal proceedings; · nevertheless, court gation and issue subpoenas. 26 U.S.C.A. may decide in its discretion to stay civil (l.R.C.1954) § 7602; Securities Exchange proceedings, postpone civil discovery, or im Act of 1934, § 2l(a) as amended 15 U.S.C.A. pose protective orders and conditions when § 78u(a); Securities Act of 1988, § 19(b), 15 interests of justice seem to require such U.S.C.A. § 77s(b). action. U .S.C.A.Const. Ame11;d. 5. 6. Federal Civil Procedure *"> 1272 2. Administrative Law and Procedure Discovery may be available in some cS=o:UI subpoena enforcement proceedings where Parallel investigations by Justice De circumstances indicate that further infor partment and other agencies should not be mation is necessary for courts to discharge blocked in absence of "special circumstanc their duties; however, district court must es" in which nature of the proceedings de be cautious in granting such discovery monstrably prejudices substantial rights of right; lest they transform subpoena en investigated party or of government. U.S. forcement proceedings into exhaustive in 0.A.Const. A~end. 5. quisitions into practices of regulatory agen 3. Securities Regulation 18=86 cies; discovery should be permitted only Parallel investigation into alleged where respondent is able to distinguish him "questionable foreign payments" conducted self from class of ordinary subjects of sub by grand jury under guidance of Justice poena. 26 U.S.C.A. (I.R.C.1954) § '1602; Se Department did not preclude Securities and curities Exchange Act of 1984, § 2l(a) as
628 FEDERAL REPORTER, 2d SERIES
*120 Irvin B. Nathan, Deputy Asst. Atty. Gen., amended 16 U.S.C.A. § 78u(a); Securities Act of 1938, § 19(b), 15 U.S.C.A. § 77s(b). Washington, D. C., with whom Phillip B.
Heymann, Asst. Atty. Gen., Washington, D. 7. Securities Replation $=>86 C., and Stephen G. Milliken, Atty., Dept. of District court acted within its discre Justice, Providence, R. I., were on brief, for tion in denying corporation discovery in intervenor. SEC subpoena enforcement proceedings. 26 U.S.C.A. (I.R.C.1954) § 7602; Securities
Before WRIGHT, Chief Judge, and Exchange Act of 1984, § 21(a) as amended McGOWAN, TAMM, ROBINSON, Mac· 15 U.S.C.A. § 78u(a); Securities Act of
KINNON, ROBB, WILKEY, WALD,
1983, § 19(b), 15 U.S.C.A. § 77s(b). MIKVA, and EDWARDS, Circuit Judges. 8. Federal Civil Procedure *=>316, 321 Applicant to intervene need only show Opinion for the court filed by Chief that representation of his interest may be Judge WRIGHT. inadequate; burden of proof rests on those resisting intervention. J. SKELLY WRIGHT, Chief Judge: 9. Securities Regulation C11::=>86 Dresser Industries, Inc. (Dresser) appeals from a decision of the District Court [1] re
Individual corporate officer was not en titled to intervene in proceedings in which quiring obedience to a subpoena duces te order enforcing Securities and Exchange cum issued by the Securities and Exchange Commission subpoena issu.ed was sought Commission (SEC) on April 21, 1978, and where record established that the corpora denying Dresser's motion to quash the sub tion adequately represented interests of its poena.2 The subpoena was issued in con employees. nection with an SEC investigation into
Dresser's use of corporate funds to make what are euphemistically called "question
Appeals from the United States District able foreign payments,'' and into the adequa Court for the District of Columbia (D.C. cy of Dresser's disclosures of such payments Miscellaneous No. 7~141). under the securities laws. David R. MacDonald, Chicago, Ill., with The principal issue facing this en bane whom Francis D. Morrissey, Chicago, Ill., court is whether Dresser is entitled to spe and Edward E. Dyson, Washington, D. C., cial protection against this SEC subpoena were on brief, for appellant Dresser Indus because of a parallel investigation into the tries, Inc. same questionable foreign payments now Raymond G. Larroca, Herbert J. Miller, being conducted by a federal grand jury Jr., and Thomas B. Carr, Washington, D. C., under the guidance of the United States were on supplemental memorandum for ap Department of Justice (Justice). Dresser pellant Edward R. Luter. argues principally that the SEC subpoena Paul Gonson, Principal Associate Gen. abuses the civil discovery process of the Counsel, Securities and Exchange Commis SEC for the purpose of criminal discovery sion, Washington, D. C., with whom Ralph and infringes the role of the grand jury in C. Ferrara, Gen. Counsel, Michael K. Wol independently investigating allegations of ensky, Associate Gen. Counsel, and James criminal wrongdoing. On November 19, H. Schropp and John P. Sweeney, Asst. 1979 a panel of this court issued a decision Gen. Counsel, Securities and Exchange affirming the District Court but, with Commission, Washington, D. C., were on Judge Robb dissenting, attaching a condi brief, for appellee. tion prohibiting the SEC from providing I. Reported at 453 F.Supp. 573 (D.D.C.1978). der denying his motion to Intervene in the sub
poena enforcement proceeding. See text infra, 2. Jn No. 7S-1705 Mr. Edward R. Luter, a senior 628 F.2d at 1384. vice president of Dresser, appeals from an or- *121 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 828 F,2d 1388 (1980) Justice with the information received from violations of the securities laws and estab Dresser under this subpoena. Because of lishing internal corporate procedures for in the importance of this issue to enforcement vestigation, disclosure, and prevention of illegal corporate payments. However, the of the regulatory laws of the United States, problem of questionable foreign payments this court voted to vacate the panel opinions proved so widespread that the SEC devised and rehear the case en bane.
a "Voluntary Disclosure Program" to en courage corporations to conduct investiga
I. BACKGROUND tions of their past conduct and make appro A. Origin of the Investigations priate disclosures without direct SEC coer cion.6 Participation in the Voluntary Dis Illegal and questionable corporate pay closure Program would not insulate a corpo ments surfaced as a major public problem ration from an SEC enforcement action, but in late 1973, when several major scandals the Commission would be less likely to exer implicated prominent American corpora cise its discretion to initiate enforcement tions in improper use of corporate funds to actions against participants. [6] The most im influence government officials in the Unit portant elements of the Voluntary Disclo ed States and foreign countries. The expo sure Program were (1) an independent com sure of these activities disrupted public mittee of the corporation would conduct a faith in the integrity of our political system thorough investigation into q_µestionable and eroded international trust in the legiti foreign and domestic payments made by the macy of American corporate operations corporation; (2) the committee would dis abroad. 3 SEC investigation revealed that close the results of this investigation to the many corporate officials were falsifying fi board of directors in full; (3) the corpora nancial records to shield questionable for tion would disclose the substance of the eign and domestic payments from exposure report to the public and the SEC on Form to the public and even, in many cases, to 8-K; and (4) the corporation would issue a corporate directors and accountants. Since policy statement prohibiting future ques the completeness and accuracy of corporate tionable and illegal payments and mainte financial reporting is the cornerstone of nance of false or incomplete records in con federal regulation of the securities markets, nection with them. [7] Except in "egregious such falsification became a matter of grave cases" the SEC would not require that pub concern to the SEC.4 lic disclosures include specific names, dates, Beginning in the spring of 1974 the SEC and places. Rather, the disclosures might brought a series of injunctive actions be "generic" in form. [8] Thus companies par against certain American corporations. It ticipating in the Voluntary Disclosure Pro obtained consent decrees prohibiting future gram would ordinarily be spared the conse- 3. The Senate Committee on Banking, Housing, recounted briefly in Report of the Securities
and Urban Affairs reported in May 1977: and Exchange Commission on Questionable Recent investigations by the SEC have re and IJJegal Corporate Payments and Practices, submitted to the Senate Committee on Bank vealed corrupt foreign payments by over 300 U.S. companies involving hundreds of mil ing, Housing, and Urban Affairs, 94th Cong., 2d lions of dollars. These revelations have had Sess. (Comm.Print 1976), reprinted in CCH severe adverse effects. Foreign governments Federal Securities Law Reports, No. 642 (May friendly to the United States in Japan, Italy, 19, 1976) (hereinafter cited as Report). and the Netherlands have come under in tense pressure from their own people. The 5. The Voluntary Disclosure Program is describ image of American democracy abroad has ed in id. at 8-13. been tarnished. Confidence in the financial integrity of our corporations has been im
6. Id. at 8 n.7. paired. The efficient functioning of our capi tal markets has been hampered.
7. See id. at S-10. S.Rep.No. 114, 95th Cong., Isl Sess. 3 (1977). 4. The history of the SEC's involvement with 8. Id. at 32. questionable and illegal foreign payments is 828 F.2d--3 J *122 628 FEDERAL REPORTER, 2d SERIES quences to their employees, property, and examination of its documents, but the staff business that might result from public dis did not agree. [13] Instead, it issued a recom closure of specific instances of foreign brib mendation to the Commission for a forma} ery or kickbacks. However, companies par order of investigation in the Dresser case. ticipating in the Voluntary Disclosure Pro
This recommendation was predicated on the gram had to agree to grant SEC requests staff's conclusions that Dresser: for access to the final report and to the 1. may have used corporate funds for unexpurgated underlying documentations. [9] non-corporate purposes; 2. may have made false and misleading B. The Dresser Investigations statements concerning the existence On January 27, 1976 an attorney and of and circumstances surrounding other representatives of Dresser met with material obligations of Dresser to cer members of the SEC staff to discuss a tain foreign governments and to oth proposed filing. At the meeting Dresser er entities; and agreed to conduct an internal inquiry into questionable foreign payments, in accord 3. may have made false entries and ance with the terms of the Voluntary Dis caused false entries to be made upon closure Program. [10] The next day Dresser the books and records of Dresser, and submitted a Form 8-K describing, in gener its affiliates and subsidiaries with re ic terms, one questionable foreign payment.
spect to, among other things, pay Joint Appendix (JA) 100-102. On Novem ments to foreign government offi ber 11, 1976 Dresser filed a second Form cials. 8-K reporting the results of the internal JA 7-8 (order directing private investiga,.. investigation. JA 103-108. On February tion and designating officers to take testi 10, 1977 the company supplemented this mony). Moreover, the staff reported that report with a third Form 8-K concerning a Dresser's proxy soliciting materials, reports, questionable payment not reported in the and statements may have been misleading earlier reports. JA 109-113. The reports with respect to the potential risks involved concerned Dresser's foreign activities after in its conduct of business through question November 1, 1973. All disclosures were in able foreign payments, and may have in generic, not specific, terms. cluded false statements in connection with As part of its general monitoring pro such payments. JA 8. Dresser vigorously gram the SEC staff requested access to the opposed issuance of an order of investiga documents underlying Dresser's report. On tion.14 July 15, 1977 Dresser refused to grant such Meanwhile, the Department of Justice access. The company argued that allowing had established a task force on transnation the staff to make notes or copies might al payments to investigate possible criminal subject its documents to public disclosure
violations arising from illegal foreign pay through the Freedom of Information Act. [11] ments. Two SEC attorneys participated in Dresser stated that such disclosure could the task force. In the summer of 1977 the endanger certain of its employees working abroad. [12] During the ensuing discussions Justice task force requested access to SEC files on the approximately 400 companies, with the staff Dresser attempted to impose conditions of confidentiality upon any SEC including Dresser, that had participated in 9. Id. at 9 n.8. 13. The staff offered to give Dresser 10 days
notice before releasing any Dresser documents 10. The meeting is described by Mr. W. Lyall to the public, to enable the company to cha!· Milde in a deposltion reprinted in Joint Appen lenge such release in court. JA 12. dix (JA) 64-66. 14. See JA 77 et seq. II. JA 71-76. 12. JA 74.
*123 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1373
Clle as 828 F.2d 1368 (1980)
the Voluntary Disclosure Program. [16] Pur the SEC. Judge Coleman also obtained a suant to Commission authorization the SEC stipulation from Justice that Justice would staff transmitted all such files to the Jus· not require Dresser .or its agents to appear tice task force in August 1977.H After its
before the grand jury until after the Com preliminary investigation of the Form 8- pany had filed a motion to quash the grand K's submitted by Dresser under the Volun jury subpoena in the District of Columbia tary Disclosure Program, Justice presented and had received a ruling on such motion. Dresser's case to a grand jury in the Dis On May 8, 1978 Drf!sser filed a motion to trict of Columbia on January 25, 1978. quash the grand jury subpoena in the Dis Before any summons or subpoena had trict Court for the District of Columbia. issued in either the SEC or the grand jury On May 19 the District Court (Parker, J.) investigation, Dresser filed suit in the denied Dresser's motion to quash, but im Southern District of Texas against the SEC posed a protective order requiring strict and Justice to enjoin any further investiga confidentiality in accordance with Rule 6(e) tion of it by either agency. [17] While Dress of the Federal Rules of Criminal Procedure. er's suit was pending in the Southern Dis In imposing the protective order the court trict of Texas, the District of Columbia stated that the "concern of DrEisser and grand jury subpoenaed Dresser's documents especially its employees is not illusory and on _April 21, 1978. At roughly the same should not be lightly considered." See JA time the SEC issued a formal order of pri 163. This was in reference to Dresser's vate investigation, authorizing the staff to argument that public disclosures of the subpoena the documents and to obtain other names, places, and dates connected with its relevant evidence. J A 7-9 (April 11, 1978). questionable foreign payments could endan Pursuant to that order the staff issued a ger the lives of its employees in certain subpoena duces tecum, returnable on May 4, turbulent foreign countries. Dres!1er there 1978. JA 14-16 (April 21, 1978). This sub after complied with this grand jury subpoe poena covered substantially the same docu na. ments and materials subpoenaed by the grand jury, and more. Dresser did not re On May 26, 1978 the Southern District of spond to the subpoena .. [18] Texas dismissed Dresser's action against the
SEC without reaching the merits. Dresser On May l , 1978 the District Court in appealed to the Fifth Circuit and on June 8 Houston, Texas dismissed Dresser's suit obtained an order from the court that: against Justice without opinion. Three Until the appeal in this case shall have days later, after the period for compliance been decided in this court, and except for with its subpoena had lapsed, the SEC ap plied to the District Court for the District proceedings before the Grand Jury in the District of Columbia, the Securities and of Columbia for enforcement. In the mean time, Dresser had appealed the adverse Exchange Commission, its officers and employees, are enjoined to preserve invio judgment in the Texas action to the Fifth Circuit, and sought interim relief. On May late the confidentiality of any informa 5 Judge Coleman of the Fifth Circuit en tion obtained by the subpoena here in joined further prosecution of the SEC sub issue. This order is not intended to inter poena enforcement action until after the fere with pending proceedings in the Dis District Court for the Southern District of trict of Columbia to enforce the SEC Texas had ruled on Dresser's action against subpoenas. 15. JA 295-296 (statement by Marvin G. Pick- 18. The procedural history of this case is re
holz.). counted in Dresser's motion to quash the SEC subpoena, JA 160- 163. 16. Id. 17. Dresser Industries, Inc. v. United States,
Civil Action No. H-78-405 (S.D.Tex.). *124 628 FEDERAL REPORTER, 2d SERIES JA 202. On June 2, 1978 the District Court II. GENERAL PRINCIPLES for the District of Columbia issued an order
A. Parallel Investigations to Dresser to show cause why it should not be required to appear, give testimony, and
The civil and regulatory laws of the Unit produce records in obedience to the SEC ed States frequently overlap with the crimi subpoena. JA 141. On June 7 Dresser nal laws, creating the possibility of parallel filed a motion for leave to obtain discovery civil and criminal proceedings, either suc from the SEC concerning the agency's al cessive or simultaneous. [19] In the absence of leged bad faith and attempted abuse of the substantial prejudice to the rights of the judicial process, JA 'l:I, and on June 13 filed parties involved, such parallel pro.ceedings a motion to quash the SEC subpoena. JA are unobjectionable under our jurispru 160. dence. As long ag-0 as 1912 the Supreme The District Court (Flannery, J.) denied Court recognized that under one statutory Dresser's motion to compel discovery on scheme-that of the Sherman Act-a trans June 16, without opinion. Judge Flannery action or course of conduct could give rise explained in court that he had carefully to both criminal proceedings and civil suits. examined the papers filed by Dresser, that Standard Sanitary Manufacturing Co. v. discovery is rarely necessary in subpoena United States, 226 U.S. 20, 52, 33 S.Ct. 9, 16, enforcement cases, and that he did not 57 L.Ed. 107 (1912). The Court held that think this was an appropriate case for it. the government could initiate such proceed JA 256. Then, on June 30, 1978, the Dis ings either "simultaneously or successively," trict Court (Flannery, J.) issued a memoran with discretion in the courts to prevent dum opinion and order rejecting all of injury in particular cases. Id. It ex Dresser's objections to the SEC subpoena plained: and requiring Dresser to comply with the The Sherman Act provides for a criminal subpoena within ten days after notice from proceeding to punish violations and suits the SEC. JA 301, reported at 453 F.Supp. in equity to restrain such violations, and 573 (D.D.C.1978). Rehearing was denied on the suits may be brought simultaneously July 15. This appeal followed.
or successively. The order of their bring Meanwhile, the United States Court of ing must depend upon the Government; Appeals for the Fifth Circuit affirmed the the dependence of their trials cannot be decisions of the District Court for the fixed by a hard and fast rule or made Southern District of Texas dismissing imperatively to turn upon the character Dresser's actions against Justice . and the of the suit. Circumstances may deter SEC in that court, largely on ripeness mine and are for the consideration of the grounds. Dresser Industries, Inc. v. United court. An imperative rule that the civil States, 596 F.2d 1231 (5th Cir. 1979), cert. suit must await the trial of the criminal denied, 444 U.S. 1044, 100 S.Ct. 731, 62 action might result in injustice or take L.Ed.2d 730 (1980). Accordingly, the inter from the statute a great deal of its pow locutory injunction requiring the SEC to er. • • • preserve inviolate the confidentiality of Dresser's materials pending a decision on Id. appeal was dissolved.
The Supreme Court returned to this Having set forth the complicated proce theme in United States v. Kordel, 397 U.S. dural history of this case, we turn now to 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). In that the principles that govern parallel adminis case the Food and Drug Administration trative and criminal proceedings ·concerning (FDA) investigated a company and certain the same conduct. of its officers in connection with possible 19. See generally Note, Concurrent Civil and
Criminal Proceedings, 67 Colum.L.Rev. 1277 (1967).
*125 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 628 F.2d 1368 (1980) violations of the Federal Food, Drug, and ceedings were unconstitutional or improper. Cosmetic Act, 21 U.S.C. § 301 et seq. Early Id. In the absence of such "special circum in the investigation the FDA recommended stances" the Court recognized that· prompt and the United States Attorney filed an in investigation of both civil and criminal rem action in federal district court seeking claims can be necessary to the public inter civil seizure of certain products. Jn connec est. It said: tion with this suit the FDA filed extensive
The public interest in protecting consum interrogatories with the company. Before ers throughout the Nation from mis the company had responded the FDA noti br~nded drugs requires prompt action by fied it that the agency was contemplating a the agency charged with responsibility criminal proceeding against it in connection for administration of the federal food and with the same alleged violations of the stat drug laws. But a rational decision ute. The company therefore moved to stay whether to proceed criminally against civil proceedings or, in the alternative, to those responsible for the misbranding extend the time for answering the interrog may have to await consideration of a atories until after disposition of the crimi fuller record than that before the agency nal proceedings. The District Court denied at the time of the civil seizure of the this motion. Thereafter, but still before offending products. It would stultify en the company had filed its answers to the forcement of federal law to require a interrogatories, the regional and divisional governmental agency such as the FDA offices of the FDA formally recommended invariably to choose either to forgo rec criminal prosecution to the General Counsel. ommendation of a criminal prosecution After it received the answers, the Depart once it seeks civil relief, or to defer civil ment of Health, Education, and Welfare proceedings pending the ultimate out formally recommended criminal prosecution come of a criminal trial. to the Justice Department. Justice obtain Id. at 11, 90 S.Ct. at 769 (footnote omitted). ed an indictment, and subsequently convic tions. The case reached the Supreme Court [1] The Constitution, therefore, does not upon appeal of the convictions of several of ordinarily require a stay of civil proceedings the company's officer11. pending the outcome of criminal proceed
ings. See Baxter v. Palmigiano, 425 U.S. The officers in Korde/ argued that use of 308, 98 S.Ct. 1551, 47 L.Ed.2d 810 (1976); the civil discovery process to compel an DeVita v. Sills, 422 F.2d 1172, 1181 (3d Cir. swers to interrogatories that could be used 1970). Nevertheless, a court may decide in to build the government's case in a parallel its discretion to stay civil proceedings, post criminal proceeding "reflected such unfair pone civil discovery, or impose protective ness and want of consideration for justice" orders and conditions "when the interests of as to require reversal. 397 U.S. at 11, 90 justice seem[] to require such action, some S.Ct. at 769. The Supreme Court did not times at the request of the prosecution, agree. The Court noted that the govern • • • sometimes at the request of the ment had not broughl the civil action "sole defense[.]" United States v. Kordel, supra, ly to obtain evidence for its criminal prose 397 U.S. at 12 n.27, 90 S.Ct. at 770 (citations cution," id. at 11-12, 90 S.Ct. at 769, or omitted); see Horne Brothers, Inc. v. Laird, without notice to the defendants that it 463 F.2d 1268, 1271-1272 (D.C.Cir.1972). contemplated a criminal action, id. at 12, 90 The court must make such determinations S.Ct. at 769. Moreover, the defendant was in the light of the particular circumstances not unrepresented by counsel, id., and had of the case. no reason to fear "prejudice from adverse Other than where there is 11pecific evi pretrial publicity or other unfair injury," id. dence of agency bad faith or malicious gov Nor were there any other "special circum ernmental tactics, the strongest case for stances" suggesting that the parallel pro-
628 FEDERAL REPORTER, 2d SERIES
*126 B. SEC Investigations deferring civil proceedings until after com pletion of criminal proceedings is where a
The ease at bar concerns enforcement of party under indict_meht for a serious of~ the securities laws of the United States, fense is required to defend a civil or admin especially the Securities Act of 1933 ('33 Act), 48 Stat. 74, 15 U.S.C. § 77a et seq. istrative action involving the same matter.
(1976), and the Securities Exchange Act of The noncriminal proceeding, if not deferred, 1934 ('84 Act), 48 Stat. 881, 15 U.S.C. § 78a might undermine the party's Fifth Amend et seq. (1976). These statutes explicitly em ment privilege against self-incrimination, power the SEC to investigate possible in expand rights of criminal discovery beyond fractions of the securities laws with a view the limits of Federal Rule of Criminal Pro to both civil and criminal enforcement, and cedure 16(b), expose the basis of the defense to transmit the fruits of its investigations to the prosecution in advance of criminal to Justice in the event of potential criminal trial, or otherwise prejudice the case. 20 If proceedings. The '84 Act provides in rele delay of the noncriminal proceeding would vant part: "The Commission may, in its not seriously injure the public interest, a discretion, make such investigations as it court may be justified in deferring it. See, deems necessary to determine whether any e.g., United States v. Henry, 491 F.2d 702 person has violated, is violating, or is about (6th Cir. 1974); Texaco, Inc. v. Borda, 383 to violate any provision of this chapter[.]" F.2d 607, 608--609 (3d Cir. 1967); Silver v. Section 21(a) of the '84 Act, 15 U.S.C. McCamey, 221 F.2d 878, 874--g75 (D.C.Cir.
§ 78u(a) (1976). This investigative authori 1955). 21 Such cases have frequently arisen ty includes the power to administer oaths and affirmations, subpoena witnesses, take in the tax field, following the leading case evidence, and require production of any of United States v. O'Connor, 118 F.Supp.
books, papers, correspondence, memoranda, 248 (D.Mass.1953). Cf. Boren v. Tucker, 239 or other records which the SEC deems rele F.2d 767, 772-773 (9th Cir. 1956) (distin vant or material. Id., Section 2l(b), 15 guishing IRS summons enforcement before U.S.C. § 78u(b). If it determines that a and after indictment). In some such cases, person "is engaged or is about to engage in however, the courts may adequately protect acts or practices constituting a violation" of the government and the private party by the Act, the SEC may bring an action in merely deferring civil discovery or entering federal district court to enjoin such acts or an appropriate protective order. Gordon v. practices. Id., Section 21(d), 15 U.S.C. FDIC, 427 F.2d 578, 580-581 (D.C.Cir.1970). § 78u(d). Under the same subsection of The case at bar is a far weaker one for the '84 Act the SEC may "transmit such staying the administrative investigation. evidence as may be available concerning No indictment has been returned; no Fifth such acts or practices • • • to the At Amendment privilege is threatened; Rule torney General, who may, in his discretion, 16(b) has not come into effect; and the SEC institute the necessary criminal proceedings subpoena does not require Dresser to reveal under this chapter." Id. The '33 Act is to similar effect. See Sections 19(b), 20(a). (b) the basis for its defense. 20. In some cases the government seeks post text, cases decided since Sliver have estab
ponement of the noncriminal proceeding, to lished that, as a general matter, due process Is prevent the criminal defendant from broaden· not infringed merely because an accused per· Ing his rights of criminal discovery against the son is subjected, without his consent, to an government. E.g., Campbell v. E{lstland, 307 administrative hearing concerning matters in F.2d 478 (5th Cir. 1962). cert. denied, 371 U.S. volved in a pending criminal proceeding. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). Nevertheless, as Silver recognized and more
recent cases have affirmed, such an administra 21. Silver v. McCamey, 221 F.2d 873 (D.C.Clr. tive proceeding can in some circumstances 1955), held that "due process is not observed If prejudice the rights of a citizen or the govern· an accused person is subjected, without his ment. In such cases the agencies and courts consent, to an administrative hearing on a seri·
may have a duty to take appropriate corrective ous criminal charge that Is pending against action. him." Id. at 874-875. As we have noted in *127 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 828 F.2d 1368 (1980) U.S. 917, 99 S.Ct. 2838, 61 L.Ed.Z<f 284 of the '33 Act, 15 U.S.C. §§ 77s(b), 77t(a), (b) (1976). [22] (1979). The SEC cannot always wait for
Justice to complete the criminal proceedings [2] Effective enforcement of the securi if it is to obtain the necessary prompt civil ties Jaws requires that the SEC and Justice remedy; neither can Justice always await be able to investigate possible violations the conclusion of the civil proceeding with simultaneously. Dissemination of false or out endangering its criminal case. Thus we misleading information by companies to should not block parallel investigations by members of the investing public may distort these agencies in the absence of "special the efficient workings of the securities mar circumstances" in which the nature of the kets and injure investors who rely on the proceedings demonstrably prejudices sub accuracy and completeness of the compa stantial rights of the investigated party or ny's public disclosures. If the SEC suspects of the government. See United States v. that a company has violated the securities Kordel, supra, 397 U.S. at 11-13, 90 S.Ct. at la~s, it must be able to respond quickly: it 769- 770. must be able to obtain relevant information concerning the alleged violation and to seek
III. APPLICABILITY 01~ prompt judicial redress if necessary. Simi United States v. LaSalle Nat'/ Bank larly, Justice must act quickly if it suspects [3] Dresser principally relies on an anal that the laws have been broken. Grand ogy to United States v. LaSalle Nat'l Bank, jury investigations take time, as do criminal prosecutions. If Justice moves too slowly 437 U.S. 298, 98 S.Ct. 2357, 57 L.F~d.2d 221 (1978), 23 in which the Supreme Court said in the statute of limitations may run, witness es may die or move away, memories may dictum that the Internal Revenue Service
(IRS) may not use its summons authority to fade, or enforcement resources may be di verted. See United States v. Fields, 592 investigate possible violations of the tax F.2d 638, 646 (2d Cir. 1978), cert. denied, 442 laws after it has referred those violations to Whenever it shall appear to the Commis 22. Sections 20{a) and 19(b) of the '33 Act pro
vide the basis for the SEC's investigative au sion that any person is engaged or about to thority: engage in any acts or practices which consti·
tute or will constitute a violation of the provi Whenever it shall appear to the Commis· sions of this subchapter, or of any rule or sion, either upon complaint or otherwise, regulation prescribed under authority there that the provisions of this subchapter, or of of, it may[.) in its discretion, bring an action any rule or regulation prescribed under au in any district court of the United States or thority thereof, have been or are about to be United States court of any Territo!)', to en· violated, it may, in its discretion, either re join such acts or practices, and upon a p:op quire or pennit such person to file with it a
er showing a permanent or temporal)' injunc statement in writing, under oath, or other tion or restraining order shall be granted wise, as to all the facts and circumstances without bond. The Commission may trans· concerning the subject matter which it be lieves to be in the public interest to investi mil such evidence as may be available con· gate, and may investigate such facts. ceming such acts or practices to the Attor
Section 20(a) of the '33 Act, 15 U.S.C. § 77t(a) ney General who may, in his discrelion, insti (1976). tute the necessary criminal proceedings un der this subchapter. • * *
For the purpose of all investigations which, in the opinion of the Commission, are neces Id. § 20(b), 15 U.S.C. § 77t(b). sal)' and proper for the enforcement of this subchapter, any member of the Commission 23. Dresser's other arguments, in summary, are or any officer or officers designated by it are (!) that the SEC subpoena breached an en empowered to administer oaths and affirma forceable agreement of confidentiality with tions, subpena witnesses, take evidence, and Dresser; (2) Dresser was erroneously denied require the production of any books, papers, certain discovery rights; and (3) enforcement or other documents which the Commission of the subpoena might violate Dresser's attor deems relevant or material to the inquil)'. ney-client privilege. See brief of respondent· * • ..
appellant at 11-12. These arguments are dis Id. § 19(b), 15 U.S.C. § 77s{b). From § 20(b) cussed in Part V infra. derives the authority to initiate civil injunctive actions and to transmit evidence to Justice:
628 FEDERAL REPORTER, 2d SERIES
*128 Justice for criminal prosecution. See id. at tice initiates a criminal investigation by the 811-813, 98 S.Ct. at 2365. 24 Dresser argues grand jury. [25] that the SEC's transmittal of Dresser's file
The IRS summons authority derives from to Justice was equivalent to a "referral" Section 7602 of the Internal Revenue Code, under LaSalle, and thus that the SEC's 26 U.S.C. § 7602 (1976). Its authority is power to enforce investigative subpoenas restricted to the terms and purposes of that against Dresser in connection with that file provision. The Supreme Court said in La lapsed at that time. Alternatively, Dresser Salle: suggests that, even if transmittal of the file In § 7602 Congress has bestowed upon was not analogous to a "referral" under LaSalle, initiation of the grand jury investi the Service the authority to summon pro gation precluded subsequent enforcement duction for four purposes only: for "as of SEC investigative subpoenas into the certaining the correctness of any return, same matters. making a return where none has been
made, determining the liability of any These two alternatives are vulnerable to person for any internal revenue tax . the same objection: the LaSalle rule applies or collecting any such liability." Con solely to the statutory scheme of the Inter gress therefore intended the summons nal Revenue Code, in which the IRS's civil authority to be used to aid the determina authority ceases for all pr~ctical purposes tion and collection of taxes. These pur upon referral of a taxpayer's case to J us poses do not include the goal of filing tice; it does not apply to the securities laws, in which the SEC's civil enforcement criminal charges against citizens. • • authority continues undiminished after Jus- 24. This portion of LaSalle is properly charac· son Court, "would thwart and defeat the appro
terized as dictum, because the controversy con priate investigatory powers that the Congress cerned investigation of a taxpayer prior to re has placed in 'the Secretary or his delegate.' " fer-ral to Justice. The Court held that a taxpay 400 U.S. at 533, 91 S.Ct. at 544. Nevertheless, er challenging an IRS summons prior to such after a detailed discussion of the enforcement referral bears the heavy burden of showing that
scheme of the Internal Revenue Code, the the summons was issued In "bad faith," 437 Court reiterated the rule in modified form: in U.S. at 316, 98 S.Ct. at 2367, which the Court stead of prohibiting enforcement of an IRS interpreted as being "solely [for] criminal pur summons if there is a pending criminal chal'ge, poses." Id. The Supreme Court has never the Court prohibited such enforcement if there decided a case concerning an YRS summons had been a referral to Justice for criminal pros issued after referral to Justice but before indict· ecution. Compare 400 U.S. at 533, 91 S.Ct. at ment. See note 25 Infra. 543, with id. at 536, 91 S.Ct. at 545. Obviously, the difference between these two formulations 25. The LaSalle rule-prohibiting enforcement is substantial. The Court did not explicitly of an IRS summons after the IRS had referred state why it shifted from the one to the other, the case to Justice for criminal prosecution derives from Donaldson v. United States, 400 but the best available explanation lies in its U.S. 517, 91 S.Ct. 534, 27 L.Ed. 580 (1971). In discussion of the statutory scheme, which ap Donaldson the Court said : pears between the two conflicting statements
We hold that under § 7602 [of the Intemal of the rule. In LaSalle Justice Blackmun, who Revenue Code, 26 U.S.C. § 7602 (1970)] an also wrote the opinion for the Court in Donald internal revenue summons may be issued in son, explained that the decision in Donaldson aid cif an investigation if it is issued in good was not predicated on its analysis of precedent. faith and prior to a recommendation for crim
United States v. LaSalle Nat'/ Bank, 437 U.S. inal prosecution. 298, 307, 98 S.Ct. 2357, .2362, 57 L.Ed.2d 221 Id. at 536, 91 S.Ct. at 545. The Donaldson (1978). Rather, the decision relied on its re Court recognized that under prior precedent view of the statutory scheme. Id. "The validi· the limitation on the IRS summons authority ty of the summonses depended ultimately on came into effect only in "the situation of a whether they were among those authorized by pending criminal chal'ge or, at most, of an in Congress," the Justice said. Id. This empha vestigation solely for criminal purposes." Id. sizes that the rule espoused in LaSaJJe and at 533, 91 S.Ct. at 544 (emphasis added). See Donaldson is not based on principles generally Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. applicable to parallel civil and criminal pro 508, 513, 11 L.Ed.2d 459 (1964) (citing Boren v. ceedings, but on limitations unique to the IRS. Tucker, 239 F.2d 767, 772-773 (9th Cir. 1956)). "Any other holding," according to the Donald·
*129 •· SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1379
Clteaa828F.2d 1388 (1980)
UnUed States v. LaSalle Nat'/ Bank, supra, ey interests," id. at 313, 98 S.Ct. at 2365. 437 U.S. at 316-317 n.18, 98 S.Ct. at 2367 These interests are to avoid broadening the n.18 (first ellipsis in original). Justice Department's right of criminal liti
gation discovery and to avoid infringing on In the pre-referral stage of an IRS inves the role of the grand jury as a principal tool tigation the civil and criminal elements of of criminal accusation. Id. at 312, 98 S.Ct. the investigation are intertwined. Id. at at 2365 ... 308-311, 98 S.Ct. at 2363-2364. The same information is useful in negotiating with Dresser asks this court to extend the rea the taxpayer, in suing in court for addition
soning of LaSalle to govern the conduct of al taxes, or in deciding whether to recom the SEC under the securities laws. But mend criminal prosecution. Thus the IRS IRS investigative and enforcement proceed at that stage is empowered to issue investi ings are not analogous to those of the SEC. gative summonses under Section 7602, even The language of the securities laws and the though the fruits of such summonses may
nature of the SEC's civil enforcement re be useful for the illegitimate purpose of sponsibilities require that the SE:C retain "filing criminal charges against citizens" as full powers of investigation and civil en well as the legitimate purposes of determin forcement action, even after Justice has ing and collecting taxes. begun a criminal investigation into the same alleged violations. However, upon referral of the case to Justice with a recommendation for criminal The investigative provisions of the securi prosecution, "the criminal and civil aspects ties laws are far broader than Section 7602 of a tax fraud case begin to diverge." Id. of the Internal Revenue Code, as interpret at 311, 98 S.Ct. at 2365. After that point ed in LaSalle. See SEC v. Arthur Young & the IRS loses its ability to compromise the Co., 584 F.Zd 1018, 1022-1024 (D.C.Cir.1978), case, either criminaHy or civilly. All such cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 authority devolves upon Justice. Id. at 312, L.Ed.2d 37 (1979). SEC investigation~ are 98 S.Ct. at 2365. Although theoretically the not confined to "four purposes only." Cf. IRS might use its summons power during United States v. LaSalle Nat'l Bank, supra, the pendency of the criminal proceeding to 437 U.S. at 316 n.18, 98 S.Ct. at 2367 n.18. <tiscover information for the purpose of a Rather, the SEC may, "in its discretion, future civil tax suit, id. at 311~12, 98 S.Ct. make such investigations as it deems neces at 2364-2365, in practice the IRS holds all sary to determine whether any person has civil action in abeyance until the criminal violated, is violating, or is about to violate proceeding is completed.26 Only then does any provision" of the '34 Act, Section 2l(a) the IRS turn itS attention again to the civil of the '34 Act, 15 U.S.C. § 78u(a) (1976) aspects of the ease. (emphasis added). Moreover, the SEC is "authorized in its discretion • • • Thus, in the LaSalle Court's view, the to authorized purposes for summonses under investigate any facts, conditions, practices, Section 7602 cease as a practical matter or matters which it may deem necessary or during the pendency of the criminal pro proper to aid in the enforcement of such ceeding. Because of this the Court was provisions, in the prescribing of l'ules and willing to impose a "prophylactic" rule flat regulations under this chapter, or in secur ly forbidding any use of the Section 7602 ing information to serve as a basis for rec authority once a case has been referred to ommending further legislation concerning Justice for criminal prosecution. Id. at 312, matters to which this chapter relates." Id. (emphasis added). See also Section 19(b) of 98 S.Ct. at 2365. This rule restricts the IRS within the confines of its statutory authori~ the '33 Act, 15 U.S.C. § 77s(b) (19'76). Giv ty and also "safeguards • • • two poli- en this broad statutory mandate, there is 26. See Policies of the IRS Handbook, P--4--84, IRS, Civil Considerations in Pending Criminal
reprinted in I CCH Internal Revenue Manual Matters, Order No. 3050.1 (March 23, 1978). 1305-1310 (1978); Office of Lhe Chief Counsel, *130 628 FEDERAL REPORTER, 2d SERIES virtuaJly no possibility that in issuing this criminal investigation. For the SEC to stay subpoena the SEC was acting ultra vires. its hand might well defeat its purpose. The investigation of Dresser-based as it
Dresser attempts to prevent enforcement was on the staff's conclusion that Dresser of this subpoena by invoking the "policy may have engaged in conduct seriously con interests" identified by the LaSalle Court: travening the securities Jaws [2] 7-: ... falls to avoid broadening Justice's right of crimi squarely within the Commission's explicit nal litigation discovery and to avoid infring investigatory authority. [28] Unlike the Inter ing the role of the grand jury as a principal nal Revenue Code as interpreted in LaSalle, tool of criminal accusation. Brief of re the securities laws offer no suggestion that spondent-appellant at 21-23; supplemental the scope of the SEC's investigative author brief of appellant Dresser Industries, Inc. at ity shrinks when a grand jury begins to 10-21; see United States v. LaSalle Nat'I investigate the same matters. Since the Bank, supra, 437 U.S. at 312, 98 S.Ct. at validity of summonses or subpoenas "de 2365. We reject this argument for two pend[s] ultimately on whether they were reasons. among those authorized by Congress," Unit ed States v. LaSalle Nat'l Bank, supra, 437 First, Dresser disregards the context in which these "policy interests" arose in La U.S. at 307, 98 S.Ct. at 2362, we conclude that this subpoena is enforceable under the Salle. Only after the Court had determined rule of that case.2 [9] that the IRS had no practical authorized
purpose for issuing a summons after refer Fulfillment of the SEC's civil enforce ral of a case to Justice did it direct its ment responsibilities requires this conclu attention to these "policy interests." Then sion. Unlike the IRS, which can postpone it did so solely to explain its imposition of a collection of taxes for the duration of paral "prophylactic" rule forbidding any use of lel criminal proceedings without seriously the IRS summons authority after referral injuring the public, the SEC must often act to Justice, as opposed to forbidding 'only quickly, lest the false or incomplete state such uses as are unrelated to the purposes ments of corporations mislead investors and of Section 7602. [36] The Court did not impose infect the markets. Thus the Commission must be able to investigate possible securi such a "prophylactic" rule in any situation ties infractions and undertake civil enforce where it would significantly restrict the ment actions even after Justice has begun a legitimate investigative authority of the 27. See text at note 14 supra. legitimate purpose and the inquiry is relevant
to that purpose." 453 F.Supp. at 576. 28. Dresser argued unsuccessfully In the Dis· trict Court that the SEC had exceeded its au 29. Cf. SEC v. OKC Corp., 474 F.Supp. 1031, thority by issuing the subpoena where there 1038 (N.D.Tex.1979) (SEC subpoena enforced was no likelihood that a violation had been or although Department of Energy had made was about to be committed. 453 F.Supp. at criminal reference to Justice in related matter). 575. On appeal Dresser makes this argument only obliquely, in the form of an objection to 30. See United States v. LaSalle Nat'/ Bank, the denial of discovery. Brief of respondent supra note 25, 437 U.S. at 311-312, 98 S.Ct. at appellant at 39-42. In any event, the argument 2365: is without merit. Our task is merely to ensure
We recognize, of course, that even upon rec that "the inquiry is within the authority of the ommendation to the Justice Department, the agency, the demand is not too indefinite and civil and criminal elements do not separate the information sought is reasonably relevant." completely. The Government does not sacri SEC v. Arthur Young & Co., 584 F.2d 1018,
fice its interest In unpaid taxes just because a 1024 (D.C.Cir.1978), cert. denied, 439 U.S. criminal prosecution begins. Logically, then, 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979) (quot the IRS could use Its summons authority un ing United States v. Morton Salt Co .. 338 U.S. der § 7602 to uncover infonnatlon about the 632, 652-653, 70 S.Ct. 357, 368-369, 94 L.Ed. taK liability created by a fraud regardless of 401 (1950)); see also SEC v. Howatt, 525 F.2d the status of the criminal case. But the rule 226, 229 (1st Cir. 1975). We agree with the forbidding such is a prophylactic intended to District Court that "[t]his investigation has a safeguard the following policy interests.
*131 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 628 F .2d 1368 ( 1980) IRS. [31] In the case of an SEC investigation indictment. Until then there is no danger there is no call for a "prophylactic rule," that Justice might broaden its discovery and thus no need to ponder the import of rights, because the subpoena power of the these "policy interests," because the SEC's grand jury is as broad as-perhaps broader authority to issue the subpoena remains un than-that of the SEC. Justice can procure diminished after the start of a grand jury from Dresser directly whatever materials it might procure indirectly through the SEC.3 3 investigation.
In fact, a party investigated under SEC Second, the "policy interests" of LaSalle rules instead of grand jury proe.edures is have little practical significance in this con accorded far greater procedural protection, text. The first-to avoid broadening Jus and has no cause to complain. See 17 tice's right to criminal discovery-is flatly C.F.R. §§ 203.6-203.7 (1979). [34] inapplicable, '1S Dresser admits. 32 The strict limitations on discovery in criminal In its brief Dresser has concentrated cases, embodied in Federal Rules of Crimi upon the second "policy interest" identified in LaSalle : avoiding infringement upon nal Procedure 15-17, do not take effect until after a grand jury has returned an the role of the grand jury. Dresser sug· 31. The LaSalle Court underscored, in a foot upon written request, to procure a copy of
note, its belief that a "prophylactic" rule need his documentary evidence or a transcript of not be imposed in every circumstance present his testimony on payment of the appropriate ing the potentiality for infringement of the fees: Provided, however, That in a nonpublic grand jury's role or broadening of Justice's formal investigative proceeding the Commis right to criminal discovery. The Court disap. sion may for good cause deny such request. proved the position adopted by the Third Cir In any event, any witness, upon proper iden cuit In United States v. Latko, 520 F.2d 622, tification, shall have the right to inspect the 625 (3d Cir. 1975), which it characterized as official transcript of the witness' own testi holding that the IRS summons authority must mony. cease at the point when the special agent rec
§ 203. 7 Rights of witnesses. ommends prosecution to the district office, (a) Any person who is compelled or re rather than at the point when the IRS recom quested to furnish documentary evidence or mends prosecution to Justice. 437 U.S. at 313 testimony at a formal investigative proceed n.15, 98 S.Ct. at 2365 n.15. The Supreme ing shall upon request be shown the Commis Court admitted that "the potential for expand sion's order of investigation. • * • ing the criminal discovery rights of the Justice
(b) Any person compelled to appear, or Department or for the usurping the role of the who appears by request or permission of the grand jury exists at the point of the recommen Commission, in person at a formal Investiga dation by the special agent." Id. But it called tive proceeding may be accompanied, repre the possibilities of abuse "remote," id., and sented and advised by counsel • * •. stated that they "do not justify imposing an (c) The right to be accompanied, represent absolute ban on the use of the summons before ed and advised by counsel shall mean the that point." Id. right of a person testifying to have an attor ney present with him during any formal in
32. Supplemental brief of appellant Dresser In ves llgative proceeding and to have this attor dustries, lnc. at 19 n.16. ney (1) advise such person before, during and 33. See Developments in the Law-Corporate after the conclusion of s uch examination, (2) Crime: Regulating Behavior Through Criminal question such person briefly at the conclu Sanctions, 92 Harv.L.Rev. 1227, 1312-1313
sion of the examination to clarify any of the (1979). Obtaining .the approval of the grand answers such person has given, and (3) make jury itself is not a serious impediment to Jus
summary notes during such examination tice's efforts; indeed, the common practice is solely for the use of such person. for grand jury subpoenas to be issued in blank, (d) Unless otherwise ordered by the Com with the contents to be filled in by the prosecu mission, in any public formal investigative tor. See In re Grand Jury Proceedings, 486 proceeding, if the record shall contain Impli F.2d 85, 87 (3d Cir. 1973). cations of wrongdoing by any person, such person shall have the right to appear on the
34. 17 C.F.R. §§ 203.6-203.7 (1979) provide in record; and in addition to the rights afforded relevant part: other witnesses hereby, he shall have a rea § 203.6 Transcripts. sonable opportunity of cross-examination '" • • A person who has submitted doc and production of rebuttal testimony or doc umentary evidence or testimony in a formal umentary evidence. * • • investigative proceeding shall be entitled, *132 628 FEDERAL REPORTER, 2d SERIES cy may be imposed on any person except gests two ways in which the SEC civil in vestigation might infringe the role of the in accordance with this rule. • • • grand jury. First, it argues that enforce We note that the Rule prohibits disclosure ment of the SEC subpoena would under of "matters occurring before the grand mine the secrecy protections of the grand jury[.]" This serves to protect the identi jury because the SEC subpoena covers ties of witnesses or jurors, the substance of many or all of the Dresser documents that testimony, the strategy or direction of the have already been subpoenaed by the grand investigation, the deliberations or questions jury. [35] In this argument Dresser miscon of jurors, and the like. It does not require, ceives the nature of the secrecy protections however, that a veil of secrecy be drawn of the grand jury. over all matters occurring in the world that
happen to be investigated by a grand jury. [36] [4] Federal Rule of Criminal Procedure It is well established that 6(c) provides in relevant part: when testimony or data is sought for its ;(e) Secrecy of Proceedings and Disclosure own sake-for its intrinsic value in the furtherance of a lawful investigation (1) General rule. A grand juror, an interpreter, a stenographer, an operator rather than to learn what took place be fore the grand jury, it is not a valid of a re~ording device, a typist who tran defense to disclosure that the same infor scribes recorded testimony, an attorney
mation was revealed to a grand jury or for the Government, or any person to that the same documents had been, or whom disclosure is made under para
were presently being, examined by a graph (2)(A)(ii) of this subdivision shall grand jury. • • • not disclose matters occurring before the grand jury, except as otherwise provided United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). 37 Dress- for in these rules. No obligation of secre-
33. Supplemental brief of appellant Dresser In from its primary concem--the investigation of dustries, Inc. at 13-17. criminal activity"). None of these rationales has any application to an independent agency 36. The rationales for grand jury secrecy are subpoena of corporate documents. No wit· well established: nesses or targets will be frightened from testi "(I) To prevent the escape of those whose fying fully, no grand jurors will be threatened indictment may be contemplated; (2) to in or suborned, no target will be embarrassed sure the utmost freedom to the grand jury in any more than it might be embarrassed by any its deliberations, and to prevent persons sub other SEC subpoena. Since the fact that ject to Indictment or their friends from im Dresser is the target of a grand jury Investiga portuning the grand jurors; (3) to prevent tion is already public knowledge-as witness subornation of perjury or tampeting with the this case-there is no danger of exposing the witness who may testify before [the] grand identity of an Innocent grand jury target. jury and later appear at the trial of those indicted by it; (4) to encourage free and 37. Accord, United States v. Stanford, 589 F.2d untrammeled disclosures by persons who 285, 290-291 (7th Cir. 1978), cert. denied, 440 have information with respect to the commis U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (I 979); sion of crimes; (5) to protect innocent ac In re Search Warrant for Second Floor Bed cused who is exonerated from disclosure of room, 489 F.Supp. 207 (D.R.I.1980); In re Grand Jury Investigation of Ven-Fuel, 441 the fact that he has been under investigation, F.Supp. 1299, 1302-1303 (M.D.Fla.1977); Brink and from the expense of standing trial where
v. DaLesio, 82 F.R.D. 651, 668-669 (D.Md. there was no probability of guilt." Douglas Oil Co. v. Petrol Stops Northwest, 441 1979); Michelin Tire Corp. v. United States, U.S. 211, 219 n. 10, 99 S.Ct. 1667, 1673 n.10, 60 453 F.Supp. 897, 898 (Cust.Ct.1978); see also L.Ed. 156 (1979) (brackets in original) (quoting In re Grand Jury Investigation (Lance), 610 United States v. Rose, 215 F.2d 617, 628-629 F.2d 202, 217 (5th Cir. 1980); Seate of Il/inois v. (3d Cir. 1954), approved in United States v. Sarbaugh, 552 f.2d 768, 771-772 (7th Cir.), Proctor & Gamble Co., 356 U.S. 677, 681 n.6, 78 cert.. denied, 434 U.S. 889, 98 S.Ct. 262, 54 S.Ct. 983, 986 n.6, 2 L.Ed.2d 1077 (1958)). See L.Ed.2d 174 (1977). Some courts have adopted also Note, Administrative Agency Access to a broa.:! interpretation of "matters occurring Grand Jury Materials, 75 Colum.L.Rev. 162, before Lhl' grand jury" as documents that "may 166 (1975) (suggesting a further rationale: "to tend to re 1eal what transpired before the grand prevent the grand jury from being diverted jury." United States v. Annco Steel Corp., 458
*133 SECURITIES & EXCHANG.Et~ COM'N v. DRESSER INDUS. Cite as 628 F.2d 1368 (1980) er's documents at issue here were created grant Justice continuing access to the en for an independent corpo!ate purpose, not tirety of a given investigative file once the directly related to the prospect of a grand Commission formally grants access. 41 As of jury investigation. The SEC has subpoe
now the SEC has not received any confiden naed them directly from Dresser, without tial documents from Dresser, and thus we mention of the grand jury. They do not
have had no opportunity to see how this reveal what has occurred bef'ol'e the grand policy operates in practice. It would be jury; they reveal only what has occurred in altogether inappropriate for this court to Dresser's foreign operations. See United presume lhat the SEC will pre-select docu States v. Stanford, 589 F.2d 285, 291 (7th ments for release to Justice in order to Cir. 1978), cert. denied, 440 U.S. 983, 99 prejudice the grand jury. S.Ct. 1794, 60 L.Ed.2d 244 (1979). The fact In another sense Dresser's complaint on that a grand jury has subpoenaed docu this score has little practical significance. ments concerning a particular matter does No one would suggest that the grand jur not insulate that matter from investigation ors, unassisted by accountants, lawyers, or in another forum. [38] In fact, if the grand others schooled in the arcana of corporate jury proceedings are genuinely secret, other financial accounting, could sift through the agencies and courts will not know the sub ject matter of the grand jury investigation masses of Dresser's corporate documents and thus will not be able to determine and arrive at a coherent picturti of the whether their own inquiry would overlap company's foreign payments and disclosure that of the grand jury. practices. In this area, as in many areas of great complexity, the grand jurors are as
In this case Dresser is obligated under the securities laws to provide documents to the sisted-guided and influenced, in. fact-not only by the United States Attorneys as· SEC in obedience to a lawful subpoena. The existence of a grand jury proceeding signed to the investigation, but a\r.o by ex neither adds to nor detracts from Dresser's perts provided by the federal regulatory rights before the SEC. Whatever rights to agencies with experience in the particular secrecy or confidentiality Dresser may have subject areas. This expert assistance is per are the product solely of the laws governing mitted under Rule 6(e), and it promotes the the SEC; they are unaffected by the paral efficiency and rationality of the criminal lel grand jury proceeding. investigative process. See In re Perlin, 589
F.2d 260 (7th Cir. 1978); Robert Haw The second way in which Dresser argues thorne, Inc. v. Director of IRS, 406 F.Supp. that enforcement of this subpoena might 1098, 1106-1107 (E.D.Pa.1975); Develop infringe the role of the grand jury is that ments in the Law-Corporate Crime: Reg the SEC could interpret and selectively dis
ulating Corporate Behavior Through Crimi close parts of the subpoenaed information nal Sanctions, 92 Harv.L.Rev. 1Zl7, 1314- to the grand jury through Justice, thereby 1315 (1979). In this case two SEC agents undermining the independence of the grand jury's inquiry. [39] Of course, this argument have been assigned to Justice's task force is purely speculative since, as Dresser is on transnational payments to assist in the well aware, [40] the SEC's general policy is to investigation of companies possibly involved
F.Supp. 784, 790 (W.D.Mo.1978); (ICCOrd, In re rant for Second Floor Bedroom, supra note 37, Grand Jury Investigation (Lance), supra, 610 489 F.Supp. at 211. This case presents no such F.2d at 216. Even under this test courts should problem. permit disclosure of documents in the hands of private parties, independently identified and 39. Supplemental brief of appellant Dresser In sought for a lawful and independent purpose.
dustries, Inc. at 17-18. 38. We recognize that in some circumstances 40. See id. at 5 n. lo. the courts have protected materials not techni cally within the range of Rule 6(e) where dis
41. See letter from James H. Schropp to this closure would jeopardize the effective function court dated April 3, 1979. ing of the grand jury. See In re Search War-
628 FEDERAL REPORTER, 2d SERIES
*134 in illegal foreign payments. 42 There can be treme an action as denying enforcement of little doubt that the grand jury's delibera this subpoena. 44 tions will be influenced by the work of
In essence, Dresser has launched this at these SEC agents. Any additional influ tack on the parallel SEC and Justice pro ence that might arise as a result of enforce ceedings in order to obtain protection ment of the SEC subpoena and transmittal against the bare SEC proceeding, which it of documents to Justice thereafter is likely fears will result in public disclosure of sen to be inconsequential. [43] sitive corporate documents. The prejudice Finally, we note that if Dresser is genu Dresser claims it will suffer from the paral inely worried that the SEC might disclose lel nature of the proceedings is speculative only those documents prejudicial to the and undefined-if indeed Dresser would company, it may provide the grand jury suffer any prejudice from it at all. [45] Any with copies of all the documents it provides entitlement to confidential treatment of its to the SEC, thereby obviating the danger. documents must arise under the laws per Alternatively, if Dresser obtains evidence
taining to the SEC; the fortuity of a paral that the SEC is in fact abusing its power to lel grand jury investigation cannot expand transmit documents to Justice, and is there Dresser's rights in this SEC enforcement by distorting the grand jury's perception of action. Thus Dresser's invocation of La the case, Dresser may apply to the courts at Salle can avail the company nothing. that time for appropriate relief.
IV. COOPEnATION BETWEEN We conclude that the danger that en
SEC AND JUSTICE
forcement of this subpoena might infringe the role of the grand jury is too speculative In its initial decision in this case a panel and remote at this point to justify so ex- of this court ruled that "the broad prophy- 42. See text following note 14 supra. 45. During oral argument before the panel
Dresser's attorney was asked what prejudice 43. Dresser implicitly admits that It would be the company suffered from the parallel pro proper for the SEC to conduct and complete a ceedings. Transcript of oral argument at 49 civil investigation, and then to transmit all rele (Dec. 11, 1978). He responded that Dresser vant materials to Justice for possible criminal was prejudiced In two ways. First, he com prosecution. See supplemental brief of appel plained that "the SEC does not have anywhere lant Dresser Industries, Inc. at 22-24. Yet
near the confidentiality protection that Rule such a procedure would create as severe a 6(e) provides." Of course, this complaint is problem of grand jury infringement as the pro properly addressed to Congress, which explicit cedure complained of in this case. ly granted the SEC the power to "publish" the results of its investigations. Section 21(a) of
44. Dresser seeks to minimize the effect an or the '34 Act, 15 U.S.C. § 78u(a) (1976). We do der denying enforcement of this subpoena not express any opinion on whether the SEC would have on the SEC's ability to carry out its would be justified in exercising the power to mandate by suggesting that the SEC could con publish in this case; we merely note that the tinue its civil enforcement efforts through ob: Commission is not governed, and is not intend taining access to the grand jury materials un ed to be governed, by Rule 6(e). Second, the der Rule 6(e)(2)(C)(i), which perinits disclosure attorney invoked Dresser's "right to a fair "when so directed by a court preliminarily to or criminal investigation, including the fact that in connection with a judicial proceeding[.]" the Rules of Discovery of the Federal Rules of This disregards the fact that some courts have Criminal Procedure apply to it." Transcript of held that the SEC must demonstrate a "particu oral argument at 49 (Dec. 11, 1978). If he was larized need" for grand jury materials in order referring to Rule 16(b), then he was mistaken, to obtain access to them, e.g., In re Grand Jury for Rule 16(b) comes into play only after indict Investigation, 414 F.Supp. 74, 76 (S.D.N. Y. ment. In fact, the grand jury's investigative 1976), and that administrative investigative powers are as broad as or broader than those proceedings may not be considered preliminary of the SEC. Dresser cannot claim to be preju to or in connection with a judicial proceeding diced by the breadth of the SEC investigative for purposes of the Rule. See United States v. authority. Bates, - F.2d - - (D.C.Cir. No. 79-1930, decided April 18, 1980) (per curiam) (concern ing a Federal Maritime Commission investiga tion).
*135 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Clteas628F.2d 1388 (1980) lactic rule enunciated in LaSalle is inappro this litigation." Supplemental briilf of ap priate where the SEC and the Justice De pellant Dresser Industries, Inc. at 9 n.16. The reactions of the parties, therefore, sug partment are simultaneously pursuing civil and criminal investigations." Slip opinion gest that the panel's modification might serve more to impede securities Jaw en at 18. The panel therefore affirmed the District Court and ordered enforcement of forcement than to protect the interests of Dresser. the SEC subpoena. Out of a concern that the SEC subpoena might somehow "subvert Second, we note that there is no support the limitations of criminal discovery," id;,
for the panel's modification in either the however, the panel, with one judge dissent relevant statutes or legislative history. ing, modified the terms of the subpoena Both the '33 Act and the '34 Act-and other enforcement order. It required that "once statutes related to securities law enforce the Justice Department initiates criminal ment as welJ [48] -expressly authorize the proceedings by means of a grand jury, the SEC to "transmit such evidence as may be SEC may not provide the Justice Depart available • • • to the Attorney Gener ment with the fruits of the Commission's al, who may, in his discretion, institute the civil disc9very gathered after the decision necessary criminal proceedings under this to prosecute." Id. at 22.• [6] We affirm the
subchapter. [11] Section 20{b) of the '33 Act, judgment of the District Court and reject 15 U.S.C. § 77t(b) (1976); Section 21(d) of the panel's modification. the 'S4 Act, 15 U.S.C. § 78u(d) (1976). The
statutes impose no limitation on when this First, we note that no party to this case transmittal may occur. The parties have had suggested or requested a modification not cited any portions of the legislative such as that imposed by the panel majority, histories of these Acts relevant to this ques either in the District Court or in this tion, nor have we found any. But the SEC court. 47
In supplemental briefs submitted and Justice find considerable support for to the e~ bane court both the SEC and their interpretation in the legislative histo J ustice-·v1gorously oppose the modification, ry of the Foreign Corrupt Practices Act of while Dresser's support for it is lukewarm 1977, 91Stat.1494', Title I, 15 U.S.C. §§ 78a, at most. Dresser had argued that the SEC 78m, 78dd-l, 78dd-2, 78ff (Supp. I 1977). investigation is flatly prohibited by the rule of LaSalle ; the panel's modification, ac The Foreign Corrupt Practices Act out cording to Dresser, "may have had a similar laws c~rporate bribery of foreign officials effect" to that of LaSalle-"though not as and associated inaccurate or misleading fi assured in its operation." Supplemental nancial recordkeeping. In passing the stat brief of appellant Dresser Industries, Inc. at ute Congress recognized the role of the SEC 30. Dresser characterized the panel's deci in combatting such practices under the 'SS sion to "relax" the LaSalle rule as "un and '34 Acts, and sought to "strengthen the sound," id. at 29, and described the motivat Commission's ability to enforce compliance ing factor in the panel's decision-the sup with the existing reguirements [sic] of the p95ed need to protect the "criminal dis securities laws[.)" S.Rep.No. 114, 95th Cong., 1st Sess. 12 (1977). Both the Senate covery process • • • of the grand jury," slip opinion at 22-as "irrelevant to and the House reports on the bill s.cknowl- 46. Under the panel's terminology the decision 47. Mr. Luter, appellant in No. 78-1705, has
to prosecute and the beginning of "criminal taken no position regarding the panel's modifi discovery" occur at the time when Justice be· cation of the District Court's order. gins to present Its case to the grand jury. See slip op. at 21. After Indictment by the grand 48. Investment Company Act of 1940, § 42(e), jury, when genuine criminal discovery under
15 U.S.C. § 80a-4l(e) (1976); Investment Ad Rule 16(b) begins, different considerations visers Act of 1940, § 209(e), 15 U.S.C. § 80b- would govern. See text and notes at notes 9(e) (1976); Public Utility Holding Company 20-21 supra; supplemental brief of the SEC at A.ct of 1935, § 18(f), 15 U.S.C. § 79r(f) (1976). 23-24; supplemental brief of appellant Dresser Industries, Inc. at 9 n.16. *136 628 FEDERAL REPORTER, 2d SERIES Congress manifestly did not intend that edged the SEC's dual investigative role in preparing cases for civil and criminal en the SEC be forbidden to share information forcement actions. They also recognize the with Justice at this stage of the investiga necessity of close cooperation between .the
tion. Under the panel majority's theory of SEC and Justice in preparing such cases. the case the SEC would be foreclosed from The Senate Committee said: sharing the fruits of its investigation with The committee expects that close coop Justice as soon as Justice begins its own eration will develop between the SEC and investigation through a grand jury. Only the Justice Department at the earliest by waiting until the close of the SEC pro stage of any investigation in order to ceeding before initiating its own grand jury insure that the evidence needed for a investigation could Justice obtain access to criminal prosecution does not become the evidence proc~red by the' SEC. In view stale. • • • of Congress' concern that the agencies Id. at 12. It ·stated that it expected the share information "at the earliest stage of SEC and Justice to "work out" between any investigation in order to insure that the themselves ·certain "arrangements * * • evidence needed for a criminal prosecution on criminal matters" that would preserve does not become stale," S.Rep.No. 114, su the authority of each within its jurisdiction. Id. The House Committee said: pra, at 12, and that the agencies avoid "a · costly duplication of effort," H.R.Rep.No.
Traditionally, there ha.S been a close working relationship between the Justice 640, supra, at 9, it would be unreasonable to Department and the SEC. The Commit• prevent a sharing of information at this tee fully expects that this cooperation
point in the investigation. between the -two agencies will continue Third, we note that there is little or no with respect to the enforcement of the judicial precedent for the panel's modifica provisions of this bill. tion. The only' support adduced by the pan H.R.Rep.No; 640, 95th Cong., 1st Sess. 10 el opinion is a District Court opinion in SEC (1977). v. Gilbert, 79 F.R.D. 683 (S.D.N.Y.1978). In Although the legislative history of the that case, which arose on the defendant's Foreign Corrupt Practices Act is not direct request for a protective order under the ly probative of·congressional intent govern discovery rules of the Federal Rules of Civil ing the '33 and '34 Acts, these statements Procedure-as contrasted to an investiga by the 95th Congress are nevertheless enti tive subpoena enforcement proceeding as in tled to some weight. The remarks in the this case-the court ordered the SEC "not committee reports concerning the investiga tive practices of the SEC and Justice were to furnish the U.S. Attorney specially with not intended to change, but -to reaffirm, any information procured in the course of past practice. This indicates that Congress discovery in this case." Id. at 687. The understands and approves of the "close
court offered no authority for this order working relationship'' between the agencies nor, indeed, any reason for its application. in their investigative capacities. Si~ce such While we recognize the similarity of Gilbert a "close working relationship" will govern to this case in many respects, its lack of the activities of the agencies in enforcing reasoning and its distinguishable procedural the laws against questionable foreign pay posture make it but weak authority. [49] ments under the new statute, it would be In fact, the reasoning of the Supreme impractical for us to attempt tO screen the Court in LaSalle is contrary to that of the agencies frqm each other when they are panel in two respects, and should govern investigating the same sort of offense un der the former statutes. this case in lieu of Gilbert. The LaSalle 49. The panel majority did not deal directly with er, [Transfer Binder 1979] Fed.Sec.L.Rep.
two decisions much closer to the instant case (CCH) •: 96,821 (S.D.N.Y. ·March 30, 1979); on their facts. Both were decided in favor of Ge/lis v. Casey, 338 F.Supp. 651 (S.D.N.Y. 1972). See panel slip op. at 12 n.29, 14 n.31. the SEC without modification. SEC v. Druck-
*137 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite 11828 f.2d 1388 (1980) Court considered, and explicitly rejected, statute of limitations problems. The the course adopted by the panel majority: more time a United States Attorney has, "[I]t is unrealistic to attempt to build a the easier it is for him to become familiar partial information barrier between the two with the complex facts of a securities branches of the executive." United States fraud case, to prepare the case, and to v. LaSalle Nat'/ Bank, supra, 487 U.S. at present it to a grand jury before expira 312, 98 S.Ct. at.2365. More fundamentally,
tion of the applicable statute o:C limita the LaSalle Court conceived of the contro tions. Earlier initiation of criminal pro versy before it as an analysis of the good or ceedings moreover is consistent with a bad faith of the IRS investigation. A bad
defendant's right to a speedy trial. • • faith investigation, in the Court's concep tion, is one conducted solely for criminal
Id. The panel's modification would "inter enforcement purposes. See id. at 307-308, fere with this commendable example of in 316, & 316 n.18, 98 S.Ct. at 2362-2363, 2367 ter-agency cooperation," id., to the detri & 2367 n.18. Where the agency has a legit ment of securities law enforcement and in imate noncriminal purpose for the investi contravention of the will of Congress. [51] On gation, it acts in good faith under the La the other side of the balance, the panel's Salle conception even if it might use the concern for preserving the limitations on information gained in the investigation for criminal discovery is largely irrelevant at criminal enforcement purposes as well. [50] In this stage of the proceedings, as Dresser the present case the SEC plainly has a agreea. 52 Thus this would be an inappropri legitimate noncriminal purpose for its in ate situation to impose a "prophylactic" vestigation of Dresser. It follows that the rule against cooperation between the agen investigation is in good faith, in the absence cies. We believe the courts can prevent any of complicating factors. There is, there injustice that may arise in the particular fore, no reason to impose a protective order circumstances of parallel investigations in such as that imposed by the panel majority. the future. We decline to adopt the posi Finally, we note that the panel's modifi tion of the panel majority. cation would serve no compelling purpose, and might interfere with enforcement of
V. OTHER ISSUES
the securities laws by the SEC and Justice. Several issues remain. As the Second Circuit has said, the proce dure permitting the SEC to communicate [5] First, Dresser argues that enforcing with Justice during the preliminary stages the SEC subpoena would breach an agree of an investigation has "significant advan ment of confidentiality made at the Janu tages." United States v. Fields, supra, 592 ary 'J!/, 1976 meeting between SEC and F.2d at 646. Dresser representatives. The District
Allowing early participation in the case Court held that "[t]hroughout the voluntary by the United States Attorney minimizes disclosure program the SEC reserved its
60. So long as the Commission evinces no other criminal prqsecutlon by providing sole, original indicium of bad faith. See United States v. copies of inculpatory documents to the SEC; LaSalle Nat'l Bank, supra note 25, 437 U.S. at (4) that prosecutors intght be unable to learn of 317 n.19, 98 S.Ct. at2368 n.19. prior testimony by grand jury witnesses; (5)
that prosecutors might be denied access to ex 51. In its brief Justice suggests a number of culpatory information, evidence of perjury, or a practical problems that might ensue from the prior lnculpatory statement; and (6) that the panel's modification: (1) that Jusiice might prosecutor might find It Impossible to comply have to forego any assistance from the SEC in with his responsibilities under Brady v. Mary enforcing the Foreign Corrupt Practices Act or land, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 other regulatory laws involving parallel investi (1963), and Jencks v. United States, 353 U.S. gations; (2) that agency attorneys might not be 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). legitimately appointed as special assistant United States Attorneys to assist in preparing 52. See text at notes 33-34 supra. cases for grand juries; (3) that a grand jury witness might gain effective Immunity from *138 628 FEDERAL REPORTER, 2d SERIES rights to pursue a formal investigation and mitted only where the respondent is able issue subpoenas if necessary. It is readily to distinguish himself from "the class of the apparent that the SEC never agreed to ordinary [respondent]," Uniwd States v. completely forego its rights to subpoena the Fensterwald, supra, 553 F.2d at 231-232, by material in question." 453 F.Supp. at 575. citing special circumstances that raise We have examined the record and do. not
doubts about the agency's good faith. find that the D.istrict Court's determination Even then, district courts must limit dis on this point was clearly erroneous.
covery to the minimum necessary in the Second, Dresser argues that the District interests of justice by requiring specific in Court erred in granting judgment for the terrogatories or affidavits rather than "full SEC without permitting Dresser to conduct
dress discovery and trial." United States v. discovery into the propriety of the SEC Marine Midland Bank, supra, 585 F.2d at investigation. Although the precise nature
89; see United States v. Fensterwald, su of Dresser's desired discovery is not clear, pra, 553 F.2.d at 232-233. the company apparently would investigate: (1) the SEC criminal referral and the con
[7] We conclude that the District Court current criminal investigation, with a view acted within its discretion in denying Dress to the possibility that the SEC has proceed er discovery in this case, and that it proper ed in bad faith; (2) the ethical propriety of ly granted judgment to the SEC on the SEC agents' participation in the criminal record before it. There was nothing im investigation; (3) the existence of an SEC proper about the SEC's decision to transmit commitment of confidentiality; and (4) the \ the files of the participants in the Volun basis for .the SEC staff's decision to request tary Disclosure Program to Justice, or a formal investigation of Dresser. See about the subsequent concurrent investiga brief of respondent-appellant at 36--42.
tions by the two agencies. Nor does the [6] We recognize that discovery may be participation of two SEC attorneys in the available in some subpoena enforcement Justice task force cast doubt upon the good proceedings where the circumstances indi faith of the Commission. Dresser's allega cate that further information is necessary tions of an agreement by the SEC not to for the courts to discharge their duty. subpoena the documents underlying its vol United States v. Fensterwald, 553 F.2d 231 untary report are not substantiated by any (D.C.Cir.1977) (pei- curiam ); United States writing, and are directly contrary to the v. Wright Motor Co., 536 F.2d 1090 (5th Cir.
published terms of the.Voluntary Disclosure 1976). For example, the Supreme Court in Program. 53 Finally, Dresser's suggestion LaSalle apparently contemplated some de that the order of investigation is improper gree of discovery in IRS summons cases to because there was no "likelihood that a determine the fostitutional good faith of violation has been or is about to be commit the IRS in issuing such summonses. Uniwd ted," see 17 C.F.R. § 202.5 (1979), does not States v. LaSalle Nat'/ Bank, supra, 437 distinguish Dresser from any other recalci U.S. at 316-317, 98 S.Ct. at 2367; id. at 320, trant subpoena respondent. At this stage 98 S.Ct. at 2369 (dissenting opinion); Unit ed States v. Marine Midland Bank, 585 F.2d of the investigation neither this court nor the SEC could know whether Dresser has 36, 38-39 (2d Cir. 1978) (per curiam ). However·, district courts must be cautious in violated the law. The Commission's discre tion concerning which potential violators to granting such discovery rights, lest they investigate is, whiJe not unbounded, ex transform subpoena enforcement proceed ings into exhaustive inquisitions into the tremely broad. Dresser has suggested no practices of the regulatory agencies. See improper motive for the SEC investigation, FTC v. Anderson, 631 F.2d 741, at 747 cf. United States v. Fensterwald, supra; 553 (D.C.Cir. 1979). Discovery should be per- F.2d at 232 (respondent's political and pro- 53. Report, supra note 4, at 32; see text at note
8 supra. *139 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Clteas628F.2d 1368 (1980) fessional activities "could easily have of these specific conclusions. Brifif of re spurred the Internal Revenue S.ervice to spondent.appellant at 43, 44. take an extraordinary interest in this par-.
We agree with the District CQurt that ticular ta~payer"). Dresser's bare protesta Dresser's claims of confidentiality and of tions of innocence do not suffice .to call the attorney-client privilege cannot be judged SEC's bona tides into question. 54• We by the courts on this record at this stage of therefore affirm the District Court's deci the proceeding. Rather, once the subpoena sion on this point. has been enforced the SEC will have the Two remaining substantive issues raised opportunity to rule on specific requests for by Dresser do not require decision by this confidential treatment and assertions of at court at this time. Those issues are: the torney-client privilege. This procedure will asserted right of Dresser or its employees to follow the outlines described by this court protect portion!? of the documents from in FTC v. Texaco, Inc., 55 F.2d 862, 883-885 public disclosure because of the possibility (D.C.Cir.) (en bane), cert. denied, 481 U.S. of hostile and injurious foreign reaction, 974, 97 S.Ct. 2989, 53 L.Ed.2d 1072 (1977), and the asserted attorney"client privilege of and the Supreme Court in FCC v; Schreiber, Dresser or its employees with respect to 381 U.S. 279, 29Q-291, 295-,-296, 85 S.Ct. some of the documents. Despite Dresser's 1459, 1467-1468, 1470, 14 L.Ed.2d 383 suggestion to the contrary, see brief of re (1965). spondent-appellant at 42--47, we conclude
We recognize that Judge Parker in the that the District Court did not reach the grand jury investigation of Dresser said merits of Dresser's claims on these points. that Dresser's concern for the lives of its With respect to confidentiality, the court employees and their families and property noted that the SEC had offered to give abroad in the event of public disclosure of Dresser ten days notice in advance of disclo portions of the documents is "not illusory sure of the documents to the public, to and should not be lightly considered," see enable the company to challenge the deci JA 163, but we believe that the SEC will be sion to disclose. This offer the court found in a better position to evaluate this claim to. be "adequate" to protect Dresser's inter than the courts are now. This court has ests at this stage of the proceeding. 453 commented before that the danger that F.Supp. at 576.511 With respect to the attor confidential materials might be wrongfully ney-client, privilege, the District Court prop released to the public through the Freedom erly declined to evaluate Dresser's claims in of Information Act is "by no means frivo lous," FTC v. Anderson, supra, .631 F.2d at generality, stating that such claims at this point are "vague and conclusory." Id. The 748 n.11. Courts have held an offer of court further said that "[c]ertainly not all ten days notice before release of. informa of the material sought is privileged," and. tion to be adequ11te protection in several indicated that the investigative report pre cases involving business information. Id., pared by Dresser as part of the Voluntary 631 F.2d at 748; FTC v. Texaco, Inc., supra, 555 F.2d at 884-885; SEC v. Wheel Disclosure Program is not privileged. Id. Dresser apparently does . not dispute either ing-Pittsburgh Steel Corp., 482 F.Supp. 555, 54. Dresser's allegation that the staff "repeated there is a FOIA request and the· SEC deter
ly told Dresser that it knew of no securities mines the material is· not exempt and must be violation," brief of respondent.appellant at 41, disclosed. These assurances of confidentiali' does not alter the case. By the time the Com ty are adequate and Dresser is entitled to no mission decided lo issue the order of investiga more. • • • tion, the staff had officially concluded other 453 F.Supp. at !S76. We interpret the SEC's wise. See order directing private investigation offer as encompassing any decision to release and designating officers to take testimony, JA the documents, whether or not pursuant to the 7- 9. FOIA. Moreover, we assume that, upon exam
ination of particular documents or groups of 33. The court said: documents, the SEC has the authority to stiffen Furthermore, the Commission has offered to the confidentiality or notice agreement. give Dresser ten days notice in the event that *140 628 FEDERAL REPORTER, 2d SERIES
563 (W.D.Pa.1979). The District Court ap motion. It appears that the court rejected proved a similar arrangement in this case his claim on the merits without first allow with respect to Dresser's subpoenaed docu
ing him to pass the threshold. In this cir ments in general. We do not read the cuit an applicant to intervene need only opinion as approving such a procedure with show that the representation of his interest respect to all documents in this case, no may be inadequate; the burden of proof matter how sensitive they may prove to be. rests on those resisting intervention. The decision whether to accord greater pro Nuesse v. Camp, 385 F.2d 694, 702 (D.C.Cir. tection to certain documents where release 1967). In cases of alleged corporate miscon might endanger employees' lives abroad duct it is especially important for the courts must be made in the first instance by the to be alert to the possibilities of conflict Commission, which will be able to inspect the documents and hear argument on the between the interests of the corporation issue. 66
and those of its employees. The question of the attorney-client privi (9] In this case, however, we need not lege must be resolved in a similar manner: judge whether the court was correct in its viewed initially by the Commission with later review in the courts if necessary. conclusion that Mr. Luter has asserted no
cognizable interest in the proceedings. . We see no ground for reversal in the With the benefit of hindsight, and informed District Court's determinations on the con fidentiality and attorney-client privilege is by the arguments Mr. Luter has made on sues. his behalf in this appeal, we are able to conclude that Dresser has adequately repre
The final issue in this case is that raised in No. 78-1705: whether the District Court sented the interests of its employees erred in its decision of June 23, 1978, JA through this stage of the litigation. So far, 532, reconsideration denied, JA 559, denying
the disputes have centered on the enforcea Mr. Edward R. Luter, a senior vice presi bility of the SEC subpoena, not on particu dent of Dresser, the right to intervene in lar questions of confidentiality or privilege this enforcement proceeding on behalf of pertaining to individual documents. We do himself and other employees of Dresser. not understand the District Court as having Mr. Luter claims an interest in the proceed rejected the right of Mr. Luter or any other ing on bases of an alleged confidentiality Dresser employees to intervene in future interest on the part of the employees in proceedings concerning this investigation. certain documents and an alleged attorney On the understanding that Mr. Luter or his client privilege. The District Court reject fellow employees may seek to intervene in ed Mr. Luter's motion to intervene, saying:
future SEC proceedings concerning confi Mr. Luter has failed to demonstrate any proper basis for reconsideration, for inter dentiality and the attorney-client privilege, vention as a matter of right, or for inter and in any court proceedings that might vention as a matter of discretion. Even follow, and that the SEC and the courts will if there was an attorney-client privilege
evaluate any such motions to intervene to be invoked in this case, it would be the afresh and on their merits, we affirm the corporation's and not the employees'. In judgment of the District Court in No. 78- addition, the employees had no constitu 1705. As previously indicated we affirm tional right of privacy concerning the the judgment of the District Court in No. communications in question. • • • 78-1702 as well. JA 559 (order denying reconsideration). The judgments of the District Court are [8] We are somewhat troubled by the District Court's treatment of Mr. Luter's Affirmed. 56. We note that, except in "egregious cases," tionable foreign payments. Report, supra note
the SEC has stated it would not require more 4, at 9 n.8. than "generic" disclosure to the public of ques-
*141 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1391 Cite as 628 F.2d 1368 (1980) EDWARDS, Circuit Judge, concurring: government agency may continue once an I concur in the opinion of the court in this indictment has been issued or, if it may,
case. I wishj to point out, however, that I whether protective conditions need be do not read the court's opinion as express- placed on the exercise of that power. ing any view as to the proper outcome in a These issues raise questions which are not case of this sort once an indictment has presented here. The resolution of these issued. See text of opinion at notes 83-34, questions, therefore, must await another supra. Once an indictment has issued, the day: policy interest expressed in United States v. LaSalle National Bank, 487 U.S. 298, 812, 98 S.Ct. 2357, 2867, 57 L.Ed.2d 221 (1978), con cerning the impermissibility of broadening the scope of criminal discovery through the summons authority of an agency, may come into play. I express no opinion as to wheth- er or not the summons authority of a *142 17& 17.S. 1 1489
Cite u" l.Ct.1'811 (JIM) achieved fully comportJ with the letter atm ensrasred fn · unlawful activity, di1- and the apirlt of our constitutional tradi· closure of his n&ine mlsrht furnish a link
in a chain of evidence auftlcfent to connect tiona. the prisoner with a more recent crime I would aftlrm the judgments in both for which he miaht 1till be prosecuted. cuea. Rever1ed. Mr. Justice Harlan, Mr. Justice
Whfte, Mr. Justice Clark, and Mr. Justice Stewart, dissented. · L Cons&l&utlonal Law 4=286
Fifth Amendment's exception from compulsory sel!-incrlmlnation is protect ed by Fourteenth Amendment apinat abridgement by States. U.S.C.A.Const. Amends. 15, 14.
nav ... [1] William MALLOY, Petltloner, I. Cllmlnal Law c::iUO(l), 8(1) v. Test in determining whether conduct. PaldS ~.BOGAN, Sheriff ot llal'Uord of .et.ate officers in ·obtaining confeSBion County. violates privilege aralnat self-incrimina tion i• not whether conduct of state oftl ..
No.110. cers was shocking, but whether ccnfea Argued March 5. ~· alon is "tree and voluntary," that is, that Declded J'une is. 1964. it was not extracted by any sort of threats or violence and was not obtained b;y any direct or implied promises, how
Prisoner, who had been committed to ever slight, or by exertion of any fmprop. Jail for contempt for refusal to BDBWer er intluence. U.S.C.A.Const. Amends. 6, certain que.stlona in state gambling in 14. quiry, brouwht habeaa corpus proeeedial'.
SH pv.hllcatlon. Wotda 1.11cl Phrau' The Superior Court, Hartford Coanty, IAlr other Jadlclal coutructlou uad Connecticut, entered judgment adverse to dabftlou. the prisoner, and he appealed. The Con .. necticut Supreme Court of Errors, 150 .. Wlbleuell ~9'J(l) One cannot be compelled to jncrim Conn. 220, 187 A.2d 744, held that there was no error, and the prisoner brought inate himself. U.S.C.A.Const. Amend. IS. certiorari. The United States Supreme Court, Mr. Ju1tice Brennan, held that the L <llimlDal Law 4=89S (1)
Wltneae1 c=aoo Fifth Amendment'a exception from com pulaory self-Incrimination is protected by American qatem of crlmfnal pros ecution is accusatorial, not Inquisitorial, the · Fourteenth Amendment apinst abridgement by the States, and that Fifth and , its essential mafnatay fa provision Amendment was properly Invoked by the of Fifth Amendment that no person shall prisoner, who had previously been con be compelled fn any criminal cue to be victed of pool-selling, when he was asked witness aninst himself. U.S.C.A.Const. as witness in state gambJfnr inquiry Amend. 6. questions seeking to elicit the identity of IS. CllmlDal Law Cl=89S(1) one who ran the pool-aelling operation, where it was apparent that the prisoner Governments, state and federaJ, are might apprehend that if that person were compelled to establish pilt by evidence
145.Ct.-H
871 V.S. 1
*143 independently and freely secured and may where lt was apparent that witness might not b7 coercion prove charsre against ac apprehend that if auch person were still cused out of his own mouth. U.S.C.A. engaged in unlawful aciivlt;y, disclosure Conat. Amend. G. of his name might furnish link in chain
of evidence sufficient to connect witness I. Co111Ututlonal Law ~88 with more recent crime tor which he Fourteenth Amendment prohibits might still be prosecuted ; refusal to States from inducinsr person to confess answer could not be puniahed as con through sympathy falsely aroused or tempt. U.S.C.A.Const. Amends. 15, 14. other like inducement far short of com pulsion by torture, and forbids States to resort to imprisonment to compel ac
a cused to answer questions that mfrht in · Harold Strauch, Hartford, Conn., for criminate him. U.S.C.A.Const. Amends. petitioner. o, 14. John D. LaBelle, Manchester, Conn., for respondent. 'J. Conat.ttut.lonal Law c::=288 Fourteenth Amendment 11ecurea against state invasion the right of ac Mr. Justice BRENNAN delivered the opinion of the Court. cused to remain silent unless he chooses to speak in unfettered exercise of his
In this case we are asked to reconsider own will and to suffer no penalty for prior decisions holding that the privilege such silence. U.S.C.A.Const. Amends. 5, against self-incrimination is not safe 14. guarded arainst state action by the Fourteenth Amendment. Twining v.
8. Wltneues c=soo New Jersey, 211 U.S. 78, 29 S.Ct. 14, Same standards · must determine 6S L.Ed. 97; Adamson V'. California, whether silence of accused in either fed . 382 U.S. 46, 87 s.ct. 1872, 91 L.Ed. eral or state proceeding is justified un 1903. [1] der the privilege against self-incrimina • tion. U.S.C.A.Const. Amends. 5, 14. The petitioner was arrested dul'ing a gambling raid in 1959 by Hartford, 9. Wlhteaes $=19"1('1) Connecticut, police. He pleaded guilty The Fifth Amendment applies to to the crime of pooJ selling, a misde witness in statutory inquiry as well as meanor, and was sentenced to one year to defendant in criminal prosecution. in jai} and fined $500. The sentence was U.S.C.A.Const. Amend. 5. ordered to be suspended after 90 days, at 10. witneue• ~&'7<10> which time he was to be placed on pro bation for two years. About 16 months The privilege arainst self-incrimina tion could be invoked by wjtness, who bad after his guilty plea, petitioner was or previously been convicted of pool-selling, dered to testify before a referee ap when uked in state gambllng inquiry pointed by the Superior Court of Hart ford County to conduct an inquiry into questions seeking to elicit identity of alleged gambUng and other criminal ac· one who ran the pool-seUing operation, I, h both cuea the craeetion wu whether to be A witne11 against htmaelf." For
comment upOD the failure of a.a accu1ed other atatemeat1 b1 the Coart that the to take the stand ID ht. own defenn ID Fourteenth Ameadment doea not appl7 a 1tate pro1ecution ~olated the pri"rile1e. the federal privilege in at.ate proceed· It wu a1awntd, bat 11ot decided, ID bOth l"Pp, aee Cohen v. Hurle7, 866 U.S. 11'1, cuu that 1acll comment in a federal 127-129, 81 8.0t. 9M, ~1, 6 L.lild. pro1eeution for a federal o1reDH would 2d US6; SDJder "'· Commonwealth of IDfrlnre the pro'riaioll of the Jl'ffth lilla11achaaett1, 291 U.S. 91, 1~. D4 S.Ot. Amendment that "[n}o per1on • • • 830, 832, 78 L.Ed. 674. eh..u be compelled ID any criminal OH
*144 '78 'O'.S. 15 KALL<>'!'.,, EOGAN Cite u 8' 8.Ct. H89 (UM) tlvities in the county. The petitioner Erron erred in holding that the privi wu asked a number of questions related Jere wu not properly invoked. to events aanoundinr his arrest and • conviction. He refused to answer any The e.x.tent to which the Fourteenth question "'on the grounds it may tend to Amendment prevents state invasion o! incriminate me." The SuperJor Court rlghUI enumerated in the first eight adjudged him In contempt, and com- Amendments has been considered in nu mitted him to prison until he was wlll- merous cases in this Court since the ing t.O answer the questio1l1s. Petition- Amendment'i! adoption in 1868. Al er's application for a wrilt of habeas though man~r Justices have deemed the corpus was dented b;y the Superior Court, Amendment to fncorporate all eight of and the Connecticut Supreme Court of tlie Amendments.• the view which has Errors affirmed. 150 Conn. 220, 187 thus far prevailed dates from the deci A.2d 744. The latter court held that tho sion in 1897 tn Chicago, B. & Q. R. Co. v. Fifth Amendment's priYilere against Chica 166 u s 226 17 S Ct [110] 1 41 L
go, . • , . • uo, • aelf-lncrlmfnation was not available to a Ed. 979, whJch held that the Due Process witness in a state proceeding, that the Clauae requires the States to pay just Fourteenth Amendment extended no compensation for private property taken privilege to him, and that the petitioner for public use. 3 It was on the authority had not properly Invoked the privilege of that decision that the Court said in available under the Connecticut Conetitu- 1908 in Twining v. New Jersey, supra, tfon. We granted certiorairi. 878 U.S. that "It ie possible that some of the per-
sonal rights aafeguarded by the first 948, 83 S.Ct. 1680, 10 L.Ed.~d 704. We . b ts .:i reverse. We hold that thB Fourteenth eig t AmemJmen • Amendment guaranteed the petitioner
against national ac· I 1 the protection of the Fifth Amendment's tion may also be safeguarded against I privilege against self-incrimination, and state action, because a denial of them that under the applicable federal st.and· would be a denial of due process of law." ard, the Connecticut Supreme Court of 211 U.S., at 99, 29 S.Ct., at 19. 2. Ten .Tusdaea JlaYe wpportecl this yfew. CS8 L.Ed. 862 (Fo"rth .Amenc!mciot) J
Soo·Oldeon "·Wainwright, 872 U.S. SM, Burt111lo "· C11llfomln. 110 U.S. 316, GSS, 840, 88 B.Ot. '192, '191 [1] D L.Ed.2d 799, 4 S.Ot. 111, 122, 28 L.Ed. 282 (l'ltth (opinion of Ma. Jumoz DouoLAa), The .Amendment requirement of rrand ja17 ~rt upr0111ed ltaelt n. 011per1uadocl lndlctmenta) ; l?aJko v. Connectieut. 802
U.S. ~19, 828, 1S8 S.Ct. 140. :usa. 82 L.Ed. to .tl1l1 Ylew in In re Kemmler, 136 U.S. 4$, 448-449, 10 B.Ot. 080, 004, 84 L. 288 (Jl'ifth .Amcnilmoot doublo j copnrd1) i Muwell .,, Dow, 176 U.S., ftt Gn:i, 20 Ed. ll10; McElvalno v. Braeh, 142 U.S. llSIS, llSS-ltm, 12 S.Ot. 11S6, llfT, SIS L.EU. 8.Ct., at 4M (Sl.J:th .Amendment jury trial) ; Wnlker .,. Sa11Ylnet, 92 U.S. 90, 92. 0711 Maxwell •· Dow, 170 U.S. IS81, ISO'l...:508, .20 S.Ot. '48, ~. 44 L.Ed. 23 L.Ed. 678 (Seve11th .Amendment Jol'J 15D7; TwtnlD1 y, New Jersoy, 1upro, 211 trial); In re Kemmler, 1ul)ra; Mc· U.S. p. DO, 29 S.Ot. p. 18. See Splea Elvalae .,, Bruah, 1uprn; O'Neil v. Ver• T. Illlnol11, 128 U.S. 181, 8 S.Ot. 21, 22, mont, 144 U.S. 823, 882, 12 S.Ot. 693, WT, 86 L.Ed. 4'50 (Elrhch Amendment 81 L.F.d. 80. DeclaJona that pardculu prohibition ac11Ui1t cruel and unuaua.1 cuaranteea were not ufeparded 1pln11t
punlahmant). . atD.te action b:r the Prl•Ue1u ud Im- a. In Barron, for Uae ot Tiernna v. Hn1or 1D1JDidu Claa.ee or other prov!Jilon of the l'ourteentb .Amendment are: United llJ1d CJt1 Oouncll of Clty of Ba.ldmore, 7 ' l Statea .,, Crnlkahank, 92 U.S. IH2, GG1, Pet. 243, 8 L.Ed. 672, decided before 23 L.Ed. ISSS: Pmdential Ina. Oo. of the adoption of the FourtC!enth Amend· meat, Chlef J'uadce Harahnll, epoaldnr America v. Cheek, 239 U.S. 680, IS48, 42 S.Ot. 316. IS22 (Jl'Jrat Amendment) : for the Court. held that thia right wae not Hcared agalnlt 1tate action b1 the Preaaer •· Dlbiol1, 118 U.S. 262, ~. 6 s.ot. ISSO, 15M, 29 L.Ed. e1cs csecoa
ll'lftb Amendment's prolf1loa: "Nor 1hall Amendment); Weeb T. United Statee, private properq lie taken for public ast, 232 U.S. 888, 898, 84 S.Ot. 841, 848. without Jut compen111tlon." *145 8' SUPREME CJOUR'l' BEPOB.'f:U. S18 'U.S. II
The Court has not hesitated to re--ex ftcials." In 1961, however, the • amine paat deciaiona according the Four• Court teenth Amendment a less central role in held that in the light of later decisions,• the preservation of basic liberties than it was taken &11 settled that "* * * that y;hich was contemplated b;y its the Fourth Amendment's light of pri· Framers when they added the Amend· vacy has been declared enforceable rnent to our conatitutJonal scheme.
a11ainst the States through the Due Thus, although the Court as late as 1922 Process Clause of said that "neither the Fourteenth the Fourteenth
* * *." Mapp v; Ohio, 867 U.S. 643, Amendment nor an;r other provision of 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081. the Constitution of the United States imposes upon the States any restric· Again, although the Court held in 1942 tions about 'freedom of speech' * * *,"
that in a state prosecution for a non capital otrense, "appointment of counsel
Prudential Ins. Co. of America v. Cheek, is not a fundamental right," Betts v. 259 U.S. ts80, 548, 42 S.Ct. 516, 522, 66 L.Ed. 1044, three years later Gitlow v. Brady, 816 U.S. 455, 471, 62 S.Ct. 1252, 1261, 86 L.Ed. 1695: cf. Powell v. Ala New York, . 268 U.S. 652, 45 S.Ct. 626, bama, 287 U.S. 45, 58 S.Ct. 515, 77 L.Ed. 69 L.Ed. 1138, initiated a series of de·
158, only last Term this decision was cisions which today hold immune from re-examined and it was held that pro state· invasion every First Amendment
vision of counsel in all criminal cases protection for the cherished rights of was ''a fundamental right, essential to a mind and spirit-the freedoms of speech, fair trial," and thus was made obligatory press, religion, assembly, association,
on the States by the Fourteenth Amend· and petition for redress of grievances.' ment. Gideon v. Wainwright, 372 U.S. Similarly, Palko v. Connecticut, 802 U. 886, 848-344, 83 S.Ct. 792, 796.• S. 819, 58 S.Ct. 149, decided in 1987, suggested that the rights secured by the [1) We hold today that the Fifth Foorth Amendment were not protected Amendment's exception from compulsory against state action, citing 302 U.S., at
self-incrimination is also protect.ed by 824, 58 S.Ct., at 151, the statement of the the Fourteenth Amendment against Court in 1914 in Weeks v. United States, abridgment by the States. Decisions of 232 U.S. SSS, 898, 84 s.ot. 841, 848, that
the Court since Twining and Adamson "the 4th Amendment is not directed to have departed from the contrary view individual misconduct of [state] of· expressed in those cases. We discuea 4. E. g., Gitlow v. New York, 268 U.S. ~.
6 L.Ed.2d 801 (Dlllsoclo.tion) l N. A. A. 0. 666, 46 S.Ot. 626, 629 (epeech and P. v. Button, 871 U.S. ~15, 83 B.CL 828, 9 L.Ed.2d 40IS (a11oclation nnd 1peech); preee); Lovell v. City of Grlllin, 80S U.S. 4H, 4!50, ts8 S.Ct. 666, 668, 82 L.Ed. :Brotherhood of Railroad Trainmen v. 949 (speech and preea); New York Tlmea Virclnia. e:ic rel. Virginia State Bar, 877 Co. v. Solllvon, 876 U.S. 21S4, 84 S.Ot. 710, U.S. 1, 84 8.0t. 1113, 12 L.Ed.2d 89 11 L.lild.2d 686 (speech and preea): (1U11oclo.tlon). Staub v. City of Boxley, 856 U.S. 318, 821, 1s a.ct. 2171, 281, 2 L.Ed.2d 302
5, See Wolf v. Colort1do [1] 838 U.S • .21S, 217- (epeech); Grosjean T. American J>re11 28, 69 S.Ct. 18"9, 1361, 93 L.Ed. 1'782; Elkina v. Unlted Statea, 864 U.S. 206, Co., 297 U.S. 233, 244, 156 S.Ct. 444, 446, 80 L.Ed. · 600 (preea) ; 011Jltwell v. Con·
213, 80 S.Ot. 1487, 1441, 4 L.Ed.2d 1669. nectlcut, 810 U.S • .296, 303, 60 S.Ct. 000, I. See alao RobiDBon v. Cnlltornia, 310 U.S. 008, 84 L..Ed. 1218 (religion): De J'o~e v. Oregon, 299 .U.S. 333, 864, 61 S.dt. 2:S5, 660, 666, 82 S.Ot. 1417, wWch, deepite 2G9, 81 L.Ed. 278 (auemb)J) 1 Shelton In re Kemmler, 1op"ra; McElvlllne y, T. Tucker, 364 U.S. 479, 486, 81 8.Ct. 2'7, Bra.ah, 1upra; O'Neil v. Vermont, 111pra, 21Sl, CS L.Ed.2d 281 (a11oclatlon); Lou inad1 applicable to the State• the Eighth Amendment's ban on cruel and on111ual isiana e:ic rel. Gremillion '" N. A. A. C. P., 866 U.S. 298, 296, 81 S.Ot. 1333, 183'1, • punilllament1.
I· *146 878 t1.S. B 1493 llALLOY T. EOGA.W Clte u 8' I.Ct. H89 (JIM) . first the decisions whiF. forbid the use compelled to ·incriminate himself. We of coereed confessions : in state criminal have held inadmiasible even a confesaion secured by so mild a whip aa the refuaal, prosecutions.
! [1] • under certain cireunistances, to allow a [2, 3] Brown v. Missiasippi~ 297 U.S. 1uspect to call his wife until he con-' fessed. Bani.es v. Waahfngton, 873 U.S. 278, 66 S.Ct. 461- 80 ~.Ed. 682, was the 608, BS S.~. 1886, 10 L.Ed.2d 1$18. first case in which the Court held that the Due Process Clau~e pirohibited the
[ 4-7] Tl:1e marked shift to the fed· States from usinr the ;aecused's coerced eral standar1il in state cases benn wlth ~nfessions &rain.et him; . ~l'he Court in Lisenba v. Califomia, 814 U.S. 219, 62 Brown felt impelled, in ! l~ght of Twining, S.Ct. 280, 86 L.Ed. 166, where the Court to say that its conclusiOri did not involve spoke of the accused's "free choice to ad the privilege agaimt rielf-ilrlcrimination. mit, to deny, or to refuse to answer." ·"Compulsion by torture ~o extort· a con Id., 814 U.S. at 241, 62 S.Ct. at .292. See fession is a different matter." -297 U.S.,
Ashcraft v. 'rennessee, 822 U.S. 14S, 64 at 286, 66 S.Ct., at 464.1 But this distinc S.Ct. 921, 88 L.Ed. 1192; Malinski v. tion was soon ., New York, 824 U.S. 401, 66 S.Ct. 781, 89 . L.Ed. 1029; Spano ·v. New York, 860 abandoned, and today tho U.S. 815, 79 S.Ct. 1202, ·8 L.Ed.2d 1265; .admissibility of a confession _in a state Lynumn v. Illinois, 872 U.S. 028, 88 S. criminal prosecution !s tested by the Ct. 917, 9 L.Ed.2d 922; Haynes v, Wash ington, 878 U .s: 503. The shift reflects same standard ·applied ! iD. federal prose -cutiorui since l897, wMn, in Bram v.
recognition that the American 11ystem of United States, 168 U.8;532, '18 S.Ct. 188, criminal prosecution is accusatorial, not 42 L.Ed. 668, the Court 'held that "[i]n inquisitorial, and that the FJfth Amend criminal trials, in the courts of the Unit· ment privilege is its essential mainstay. ed. States, wherever a question arises Rogers '" Richmond, 365 U.S. 684, • whether a confession is incompetent be cause not voluntary, the issue is con
541, 81 8.Ct. 786, 789; 5 L.Ed.2d 760. Govern· trolled by that portion of the Fifth Amendment to the constitution of the ment.s, state and federal, are thua con United States commandinfl' that no per~ atitutionalty compelled ta establish guilt son 'shall be compeJJed in any criminal by evidence independently and freely se alBe to be a witness agiinst bi1D8elf.' " cured, .an~ may not by coercion prove a
charge against an accused out of his own Id., 168 U;S. at 542, .18 .SlCt. at 187. Un der this test, the con* , utional inquiey mouth. Since the Fourteenth Amend
ment prohibits the States from inducing is not whether the c:ond~c:t of state of- 11.cers in obtaininr th~ confession wu a person to confess through "sympathy shocking, but whether th confession was
falsely aroused," Spano v. New York, "free and voluntary; that fs, [it] must supra, 860 U .8., at 828, . 79 S.Ct., at not be extracted by ani i' 1 sort of threats
1207, or other like inducement .far short -0r violence, nor obtaine by any direct of "compulsion by. torture," Haynes .v. Washington, supra, it :foUows .a. fortiori or implied promises, h 'ever slight, nor 'by the exertion of ah7 improper in
that it also forbids the States to resort fluence. * • • " Id~ t 68 U.S. at 642- to Imprisonment, as here, to compel him to answer questiom that might incrim 643, 18 S.Ct. at 186-18~; see also Hardy v. United States, 186 U . 224, 229, 22 inate him. The Fourt.eenth Amendment S.Ct. 889, 891, 46 L;Ed. 1 ~S7; Ziang Sun secures against state Invasion the same privilege that the Fifth Amendment Wan v. United States,' $66 U~S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. '181: Smith v. guarantees against federal infringe ment-the right of a person to remain United States, 848 U.S. :14-7, 160, '16 S. -Ct. 194, 196, 99 L.Ed. 192.. In other silent unless he chooses to BPeak in the
unfettered exe~ise of hia own wiU, and ·words the person mus~ not have been *147 84 SUP&JWll OOUBT :amo:anm 878 v.s. 8 1494 to suffer no penalty, 11 held in Twininl',
the freedom from unconscionable in tor each 1Uenee. vasions of privacy and the freedom from convictions based upon coerced Thia conclusion ts fortifted by oar r~ confessions do enjo7 an 'Intimate re eent decision in Mapp v. Ohio, 887 U.S. lation' in their perpetuation of 643, 81 S.ct. 1684, overruHns Wolf v. 'principles of humantv and civil lib· Colorado, 888 U.S. 26, 89 S.Ct. 1859, 98 ert7 [secured] • * • only aft· L.Ed. 1 '182, which had held "that in
er )'ears of struHle! Bram v. a proaecution in a State court for a United States, 1897, 168 U.S. 682, State crime the Fourteenth ·Amendment 648-644, 18 S.Ct. 18S * * *. does not forbid the admiaaion of evidence The philosophy of each Amendment obtained by an unreasonable aearch and and of each freedom ia comple seizure," 888 U.S., at 83, 69 S.Ct., at 1864. mentary to, although not dependent Mapp held that the Fifth Amendment upon, that of the other in its sphere privilege against sett-incrimination im of influence-the very leut that to plemented tho Fourth Amendment in gether they auute in either sphere such cases, and that the two guarantees is that no man is to be convicted on of personal eecurity conjoined in the unconstitutional evidence." S6'l U. Fourteenth Amendment to make the ex S., at 656-657, 81 S.Ct., at 1892. clusionary rule obligatoey upon the Jn thus returning to the Bo7d view that States. We relied upon the great case of the privile~e is one of the [14] prlnciplea of Boyd v. United States, 116 U.S. 616, 6 a free rovernment," 116 U.S .. at 632, 6 S.Ct. 524, 29 L.Ed. '146, decided .in 1886,
S.Ct., at 583,' Mapp necessarily replldiat which, considering the Fourth and Fifth ed the Twininr concept of the privilere Amendments as running "almost into as a mere rule of evidence "beat defend each other," id., 116 U.S., at 680, 6 S.Ct.,
ed not as an unchanireable principle of at 682, held ·that "Breaking !nto a house universal justice, but as a law proved by and opening boxes and drawers are cir experience to be expedient." 211 U.S., cumstances of aggravation ; but any
at 113, 29 S.Ct., at 25. forcible and compulsory extortion of a man's own testimony, o:r of his private papers to be used as evidence to convict
(8] The respondent Sheriff concedea him of crime, or to forfeit his soods, is in Its brief that under our decisloDB, within particularly those involving coerced
•
10
the condemnation of [those con Amendments] • • *." 116 U.S., at fessions, "the aceusatorJal 11.stem has 68(), 8 S.Ct., at 582. We said in Mapp: become a fundamental part of the fabric of our eociety and, hence, is enforceable "We find that, as to the Federal Government the Fourth and Fifth again.st the States."• The State urges, however, that the availability of the fed- Amendments anct_ as to the States,
7. Boyd had •alcl of the prlvlleie. " • • mmdtJ. It hu been a re4ectloa of our 01 compullo17 • dl1coveey bJ utortlq eommon coa1cleuce, a Qlllbol of the America wtllch atin our hearta." The the pal'f1'• oath • • • to conYlct him ll'Jfth Atnendment Toda7 '18 (19ti5). of crime • • • le contrary to the prlnclple1 of a free covernmCDt. It 1• abhorrent to the tiu1tlnct1 of an Engll1b· 8. The brief etate• further: man: it ii abhorrent to the ln.etincbl of ''Undtrlfini' the decl1lone excluding an American. · It 111&1 11ult the purpo11ea eoercecl confe.uion1 ill the implicit U· aumptlon that c accuaed hi privlleied of clupotic power, but It cannot abide the pure abllOQbeN of political llbertJ 84faln•t fDcdmlnatlng bfmeelt, either in the ancl penoiial freedom." ue u.s .. at 881-
Jail boute, the ~and Jal'J' room, or Oil 882, 6 S.Ot., at ts88. the wltneu ataad In n public trial. • • • ~an Oriinrolcl hu Afd: "I believe the Jl'ifth Amendment la, and ha• been " • • • It 11 fundamentally incon· throuch thl1 period of cri1la, an exprea· •latent to IUfl:eK. [111] the Court'• opln· •Ion of tbe moral ltrivlq of the com- Iona now au111e11t, that the State 11 en•
*148 m v.s. a MALLOY"' KOGAN 1495 CJte .. 8' 8.Ct.1'81> (108&)
-eral privilege to a wltxieaa 111 a· state in would be incongruous to havo different oquiey la to be 4etennhied according to a
standards determine the vaUdlty of n less atrinrent ~dard : than I~ applicable clatm o! privilege baaed on the same 1n a federal pioceeding. We disagree. f~ed prosecution, depending on wheth We have held that ~e jparantees of the er the claim was asserted in a state or federal court. Therefore, · the · eame First Amendmen~ Gitlow v. New York, Hpra: Cantwell v. COnnedlcut, 810 U.S. 1tandarda·mu11t determine whether an ac 2!J6, 60 S.Ct.'. 900, ·8-i L.Ed. 1213: caaed's silence in either a federal or atate Louisiana ex ~el. Grenrllllon y. N.A.A. proceedfn8' 1a Justified. C.P., 866 U.S . . 293, 81S.Ct.1888, 6 L.Ed.
[9, 10] We turn to the petitioner's 2d 301, the prohibition of .unreason claim that .the St,tte of Connecticut de· able searches and seizures of the Fourth nied him the protection of his federal Amendment, Ker v. California, 874 U.S. privllere. It must ,1Je considered ir· 23, 83 ·S.Ct. 11623, 10 L.Ed.2d '126, relevant that the petitioner was a wit and the right to counsel guaranteed .b:r the Sixth Amendment, Gid.eon v. :Wain ness in a statutory inquiry and not a
defendant in a criminal prosecution, for wrJght, sul)l'8, · are all to be ·enforced it has Jong been settled that-the privilege against the Stafea Ul\der the Fourt-eenth protects witnesses in similar federal in· .Amendment ac~ording to the same stand qufries. Counselman v. Hitchcock, 142 ards that protect those person~l rights
U.S. 547, 12 S.Ct. 196, 85 L.Ed. 1110; :against federal encroachment. In the McCArthy v. Arndstein, 266 U.S. 84, .45 -coerced confeufon cases, involving the S.Ct; 16, 69 L.F.ld. 1158; llotrman v. Unit 1>0Hcfes of the privilege itself, there has ed States, 341 U.S. 479, '11 S.Ct. 814, 95 "been no auga-•stfon that a confession -might be consic;lered coerced if used in a L.Ed. 1118. We recently elaborated the ·federal but . not a state tribunal. The
content. of the federal standard in Hotr ·Court thus has rejected the notion that man: the Fourteenth Amendment applies· to "The privilege atrorded not only ·the States only a "watered-down, sub extends. to answers that would in jective version .of the individual themselves support a conviction [11] likewise embra.ces • • • but guaran· thoee which would fundah a link 'tees ot the Bill of Rights,·~ Ohio ex rel. in the chain of evidence needed to Eaton v. PriceJ 864 U.S. 268, 275, 80 S. Ct. 14'68, i4 70, i 4 L.Ed.2d 1708 ( disilent· prosecute. • • • [IJf the wibtees,
upon interposing his claim, were re ing -opinion). If Cohen v. Hurter, 866 quired to prove the hazard • •. • U.S. 117, 81 SiCt. 954; and Adamson\". he would be· compelled to surrender ·California, supra, suggest auch an appli- the very protection which tlle privi· · tation of the' privilege against self incrimination; I that suggestion cannot
lege is de.9ianed to l'Uarantee. To 8U&tain the privilege, ft need only be
survive recognition of the degree to evident froni ·the implicatiOna of · which the Twining ·view of the privi- the question, in the setting in which lere has been hoded. what is accord- it ia -ed is a prJvilete of refusing to incrim· u inate one's sel*r' and the.feared pros~u· asked, that a responsive an· tton may be b either fe~eral or state Bwer to the question or an ezplana· tion of why ft cannot be answered .authorities. urphy v. Waterfront • Comm'n, 378 .8. CS2, 84 S.Ct. 1594~ It might be dangerous because injuri ..
tlreb free to 'compel o.n occuaed to ln· fe11, rerardleH of where 111ch compul- 1lon occur1, woold not onlr cJaritT the crlminate himielf before a rrand jur1, or at the trlal, but callnot do IO in the prlnalplea hlvolved ln confea1loa C811N, 1'(tllce eto.tfon. Fronk recorultlon of the but would a1111ist the Btate1 lfpfficantl1' fact that the Due Proeea OJauae pro· in their effort• to comply with tile Umita· btblu the Statee from enforcing their tiom placed upon them. b1' the ll'ourteenth . laws by eompe111nc th11 accueed to con• Amendment." *149 84 SUPBE?a!E 00l1B'1' Jt:BPOBTEB 378 11.S. Ji
ous disclosure could result." 841 U. Bergoti. The Connecticut Supreme S., at 486-487, '11 S.Ct. at 818, Court of Errors ruled that the answers
to these questions could not tend to in We also said that. In applying that test, criminate hJm because the defenses of the judge must be double jeopardy and the running of the " 'perf eetl'll clear, from a careful one-year st.atute of limitations on mis consideration of all the circumstanc demeanors would defeat any prosecuton es in the cue, that the witness is growing out of his answers to the 1lrat. mistaken, and that the anawer(11] 11 cannot f'OIBibl11 have such tendency' five questions. As for the sixth ques
tion, the court held that petitioner's fail to incriminate.'' 841 U.S., at 488, 71 ure to explain how a revelation of his. S.Ct., at 819. relationship with Bergoti would incrim The State ot Connecticut argues that the inate him vitiated his claim to the pro· Connecticut courts properly applied the tection of the privilege afforded by stat~ federal standards to the facts of this Jaw. cue. We disagree. The conclusions of the court of Er The inveatiiration in the course of rors, tested by the federal standard, which petitioner was questioned began fail to take sutllcfent account of the set when the Superior Court in Hartford ting in which the questions were asked. County appointed the Honorable Ernest The interrogation was part of a wide A~ l?l&'lis, former17 Chief Justice of Con· ranging inquiry into crime, including necticut, to conduct an jnquiry into gambling, in Hartford. It was admitted whether there was reasonable cause to on behalf of the State at oral argument believe that crimes, including gambling, and indeed it i11 obvious from the ques were being committed in Hartford Coun tions themselves-that the State desired ty. Petitioner appeared on January 16 to elicit from the petitioner the identity and 25, 1961, and ln both instances he of the person who ran the pool-selling was asked substantially the same ques
operation in connection with which he tions about the circumst.ances surround· bad been arrested in 1959. It was ap parent that petitioner might apprehend ing his arrest and conviction for pool
that if this person were still engaged in selling in late 1959. The questions whJch unlawful activity, disclosure of his name petitioner refused to answer may be sum might furnish a link in a chain of evi marized as follows: (1) for whom dfd dence sufficient to connect the petitioner he work on September 11, 1959; (2) with a more recent crime for which he who selected and paid his counsel in con might still be prosecuted.• nection with his arrest on that date and Analysis of the sixth question, con subsequent conviction: (S) who select.ed and paid his bondsman; ( 4) who paid cerning whether petitioner knew John Bergoti, yields a similar conclusion. In his fine; (6) what was the name of the tenant of the apartment in which he was the context of the inquiry, it should have arrested; and (6) did he know John been apparent to the referee that Ber-
ot .Appeals for the Third Circuit irta.ted: 9. See Green~rs .... Uiilted State&, 843 U.S. 918, '12 S.Ct. 614, 96 L.Ed. 1382, revera· "in determinfng whether the witue1111 reall1 inr por curlAm, 8 Cir., 192 F.2d 201: apprehend• danrer In anawerlucr a quea· tlon, the judge cannot permit himself Slnrloton T. Ullited States, 843 U.S. 944, '12 S.Ct. 1041, 96 L.Ed. 1349, re· to be akeptfcal: rather must he bo acute ver1lnr pu curlam, 3 Cir., 193 F.2d 464. ly aware that In the deviouelle118 of crime In Unlted StatH T. Ootre1, 198 Ji'.2d and lb detoction lncrlmlnatfon mn1 be 488 (0.A.3d Cir.), clted·with approval in approached and achieved b1 obecur·e and Emapak Y. United States, 349 U.S. 100, nnllkel;y linH of IDquiey.'' 198 F.241, at 'llS S.Ct. 687, 99 L.Ed. 991, the Court
440-441. *150 MAr.x.oy y, BOGAX 1497 · ~78 17.S. 16 eue u" 1.ct.1'811 (JIM) goti . was suspected br ·the St.ate t.o be Believinr that the reaaoninr behind .involved in aome way in the subject mat- the Court'• decision earrlea extremely ter ot the fnveitigation·. An affirmative mischievous, ft not dan1eroas, conse~ answer to the question , quencea for our federal system in the
realm of criminal
H
might well have 11 either connected petitioner with a more law enforcement, I recent crime, or at least have operated must dissent. The importance of the as a waiver of his privilege with refer- Issue presented and the serious incursion ence to hia relationship 'With· a possible which the Court makes on tlm.,.honored, crtmfnaJ. See Rogers v. United States, basic constitutional principles justify a 840 U.S. 867, 71 S.Ct. 488, 95 L.Ed. 844. full exposition of my reaaona. We conclude, therefore, that as to each
I. .
of. the questions, it was "evident from the implications of the question, in the
I can only read the Court'a opinion as setting in which it [was) naked, that tt tiecepting in fact what It rejecta in tb~ responsive answer to the question or an ory: the application to the Statea, via explanation of why it [could not] be nn~ the Fourteenth Amendment, of the forma awered might be dangerou.a because in~ of federal criminal procedure embodied jurioua dfacloaure could result/' Hoffman within the flrat eight Amendments to the v. United States, 841 U.S., at 486-487, Constitution. While it ia true that the 71 S.Ct. 818;. · see Singleton v. United Court deals today with only one aspect States, 843 U.S. 944, 72 S.Ct. 1041. of state criminal procedure, and rejects the wholesale "incorporation'' of such Reversed. federal constitutional requirements, the logical gap between the Court's premises
While Mr. Justice :QOUGLAS joina and its novel conatitational conclusion the opinion of the Court, he alao adheres can, I submit, be bridged only by the ad to his concurrence in Gideon v. Waln· ditional premise that the Due Process wright, 872 U.S. 885, 841S, 83 S.Ct. 79Z, Clause of the Fourteenth Amendment ls 797. a shorthand directive to tbia Court to
pick and choose among the provisions of the first eii'ht Amendmenta and apply
.Mr. J'u11tlce HARLAN, whom Mr • .Tua· those chosen, freighted with their entire tice CLARK Joins, dis8enting. · M:COmpanying body ot federal doctrine, " Connecticut bas . adjudfed this peti· to law enforcement fn the States. tloner fn contempt for refusing to answer questions In a 1tate inquiry. The courta I accept and ail'ee with the proposition ot the State, whose Jawa embody a priv
that continuing re--examlnation of the ilege against self.incrimination. refused constitutional .conception of Fourteenth to recornize the petitioner'a claim of Amendment "due proceaa" of law ia re privilege, finding that the queatJons quired, and that development of the com asked him were not incriminatory. · Thia munity's sense of Justice ma;y in time Court now holds the contempt adjuclica· lead to expansion of the protection which tion unconstitutional because, it ts de·
due process a«orda. In perticular in this calie, I agree that pr!nciplea of justice t.o cided: (1) the Fourteenth Amendment makes the Fifth Amendment privilege
which due process givea exl>ression, as against self-incrimination applicable to reflected in decisions of thia Court, pro- the States; (2) the federal standard jus hibit a State, as the Fifth Amendment tifying a claim of this privilege likewise prohibits the Federal Government, from applies to the St.ates; and (S) judged by imprisoning a person solei11 because he that standard the petitioner's claim of refuses to give evidence which may fn. privilege should have been upheld. criminate him under the Jawa of the
14 S.Ct.-94~ I j *151 M SUPREME OOURT BEPORTBB. 378 U.S. U State. [1] I do not understand, however, been most fully explored in Twining v. lt New Jersey, 211 U.S. 78, 29 S.Ct. 14. how thi1 proc:eas of re-examination, Since 1908, when Twininr was decided, which must refer always to the guiding this Court has adhered to the view there· etandard of due procesa of Jaw, including, expressed that "the exemption from com ot course, reference to the particular
pulsol')' self-incrimination in the courts. ruarant.ees of the Bill of Rights, can be of the states is not secured by any part shorkircuited by the simple device of of the Federal Constitution,'' 211 U.S., incorporating into due process, without at 114, 29 S.Ct., at 26; Snyder v. Com critical examination, the whole body of monwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. sso; Brown v. Missis
Jaw which surrounds a specific prohibi· tion directed aramat the Federal Govern
sippi, 297 U.S. 278, 285, 06 S.Ct. 461, ment. The consequence of such an ap 464; Palko v. Connecticut, 302 U.S. 819,. proach to due process as it pertains to 824, 58 S.Ct. 149, 151; Adamson v. Cal the States fs inevitably disrerard of all ifornia, 882 U.S. 46, 67 S.Ct. 1672, 91 L. relevant di1f erences which may exist be Ed. 1908; Knapp v. Schweitzer, 357 tween state and federal criminal law and
U.S. 871, 874, 78 S.Ct. 1802, 1304, Z its enforcement. The ultimate result is L.Ed.2d 1893; Cohen, supra. Although compelled uniformity, which is incon
none of these cases involved a commit sistent with the purpose of our federal ment to prison for refusing to incrim system and which is achieved either by inate oneself under state law, and they encroachment on the States' sovereign are relevantly distina'Uishable from this. 17 case on that narrow ground,• it is per powers or by dilution in federal law en fectly clear from them that until toda.y forcement of the specific protections it has been resrarded a~ settled law that found in·the BUI of Rights. the Fifth Amendment privilege did no~ by any process of reasoning, apply u
II.
auch. to the States. As recently as 1961, this Court reaf The Court suggests that this consist firmed that "the Fifth Amendment's ent line of authority bas been under privilege against self-incrimination,'' mined by the concurrent development ante, p. 1491, was not applicable against of constitutional doctrine in the areas of the States. Cohen v. Hurley, 866 U.S. 117, 81 S.Ct. 954. The question bad coerced confessions and search and sei- I. That 1>rec11e question hu not heretofore While I do not belleH that the coerced
confeesion cues fundab or boala for been clechJed by thl1 Court. Twining v. New JerseT, 211 U.S. 78, 29 B.Ct. 14, incorporating the Fifth Amendment into ud the C!UH which followed it, see Infra, the Fourteenth, aee infra, pp. 149S-1500, p. 1498, all ibvolved issues not preciaelT they do, it aeem1 to me, carrr on implica· elm.Dar. A1thou1b the Court hae 11tated tion that coirclon to lncrlminato oneself, e•en when under the fo?llll of law, cf. broadt, that an indlYidual could "be re• Brown v. Mi111l1111ippi, 297 U.S. 278, 283, quired to incriminate blmaelf In • • • 1tate proceed1nra," Cohen v. H-arle7, 866 118 S.Ct. 461, 464, cllacuased lufra, p. 1499, U.S. 117, 127, 81 S.Ct. 954, 960, the i1 fnconeletent with iloe procesa. Since con.text in which aucb 1taternenta We?e every State already recognizes a privlle1e made was that the State had in each cm1e agaln•t self·lnerlmlnation. [10] defined, 1ee recornfaed the rirht to remain lilent. In VIII Wfcmore, Evidence (McNaughton Twininc, 111pra, until now the primary rev. 1961), I ~ the elfect qf including
11uch a prlvllece in due procees a only authority, the Court noted that "all the •tate1 of the Union have, from time to to create the po11&ibWt7 that a federal time, with varJfnr fonn, bat uniform queatioo, to be decided uudu tbe Due meanbir, included the privilere in their Process Clause, would be railed by a Oon1tlt11tlou, except the 1tat111 of New State'a refusal to accept a claim of the Jersey and Jo.,,., and in those 1tatea it privileae. 11 held to be p1ut of the exiltf.Jic Jaw." 2U U.S., at 92, 29 S.Ct.. at 16. 2. See note 1, supra.
*152 a'/8 'U.S. 19 1499 MALLOY Y. EOG.AB Clt. u 811.Ct. 1'811 (UIM) nre. That is J)Oat faclo reasoning at proceedings. In Lfsenba v. California, beat. CertainJy there has been no in- 81' U.S. 219, 62 S.Ct. 280, the privilege timation until now that Twlnlnr has been a1alnat self-incrimination is not men tacitly overruled.
· tioned. The relevant question before the Coart waa whether "the evidence [of It waa in Brown v. l'rliasisaippi, supra, coercion] requires that we set aalde the that this Court Grat prohibited the use finding of two courts and a jury and ad (>f a coerced confeBsion in a state crim judge the admission of the c<>nfessions so inal trial. The petitioners in Brown had fundamentally unfair, so contrary to the been t.ortured common concept of ordered liberty aa to :II amount t.o a taking of life without due until they confessed. The process of law.'' Id., 814 U.S. at 238, 62 Court was hardly making aa artificial S.Ct. at 291. The question was the same .distinction when it said: 1n Aahcraft v. Tennessee, 822 U.S. 14S, 64 S.Ct. 921, 88 L.Ed. 1192 i the Court
"• • • [T]he question of the there adverted to the "third degree," e. ri1ht of the 1tate to withdraw the · g., Id., 822 U.S •. at USO, note 5, 64 S.Ct. at prlvUege againat self-incrimination 924, and "secret inquisitorial practices," is not here involved. · The compul . 19 sion to which the quoted statements Id., 822 U.S. at 152, 64 S.Ct. at 925. Ma [from Twining and Snyder, supra,] Jinskf v. New York, 824 U.S. 401, 66 S. refer itJ that of the proceaBea of !ta· Ct. 781, is . the same; the privilege tice by which the accused may be against self-Incrimination fs not men ealled as a witness and required to tioned.' So too fn Spano v. New York, testify. Compulaitm bu torture to 860 U.S. 815, '19 S.Ct. 1202; Lynumn v. a.t.ort a confeasion is a different
IIUnois, 872 U.S. 628, 88 S.Ct. 917; and matter." , 297 U.S., at 285, 66 S.Ct. Ha111es v. Wa.ehingt.on, 878 U.S. 608, 83 at 464. (Emphasis supplied.) S.Ct. 1836. Finally, in Rogers v. Rich· The majority ls simply wrong when It mond, 865 U.S. 684, 81 S.Ct. '185, al asserts that this perfectly understand though the . Court did recognize that .able distinction "was soon abandoned," "oura fa an accusatorial and not an in .ante, p. 1498. In none of the cases cited, quisitorial 15}''5tem/' id., 861S U.S. at 641, .ante pp. 1493-1494, In which was de 81 s.ct. at 789, it is clear that the Court veloped the full sw~p of the constitution wu concerned only with the problem of .al prohibition agaiost the use of coerced coerced conf eSBlons, aee ibid.: the opin confessions at state trials, was there any ion includes notbin1 to aupport the thing to suggest that the Fifth Amend ment was being made applicable t.o state Court's assertion here, ante, p. 1498, that 3. Notl1ln11 lo the opinion In Drown eupport• nled, tho queatlon f., not whothor tho
the Court's lntimntlon hen:, nnte, p. 1108, record con bo tonnd to dlecloso nn lu· fraction of ono of tho 11peclno pr-ovlsloua tbnt If 'l'wfnlnir bnd not been on tho books, roveunl ot tho convictions would havo
of tho first eight nmcndments. To come oonerotoly to the pn11eot cuo, tba Que•· boen bnecd on tho ll'lfth Amendment. Tho Court mnclo it pl11ln In Drown that tlou 11 not wbothor tho record pum.lt.a n It rcgnTclcd the trio.I UJ1e ot n confca·
finding, by a t enuoua rirocoaa of psycl10· loirlco..1 aaeumptlone 1111d reaaoning, tbnt [11011] extroctll11 by torturo ne [011] n pnr with clomlnntlon of a trial by [11] mob, ace, Mall.nekl by menus of n confculon wAll c. ~. . Moore "'· Dempsey, 261 U.S. 80, foroed to aelf.lncrhnlontJou In dc.finnce 48 S.Ct. 26:S, 61 L.Ed. M3. "'·here the ot tho Fifth Amendment. The unct tTlol ''ls n me.re p~tonse," 2f>7 U.S., nt que11tio11 111 whether the CTlmlnoJ proceed· 286, 156 S.Ct., nt 4-0lS. lugs which roaultcd in his co.nvlcdon do·
prived him of th e duo process of lnw by -4. "And eo, whoo a conviction In n ntnte which ho 1Vlle conatlt11tlona.1J1 en.titled court la propa rly hero for rovlow, under to havo lila guil t doterm.llio<l." Mnliwlkl. a clnim tbnt a right protected by the aupra, 824 U.S. at 416, ~ S.Ot. at 788 (opinion of Fronkfurter, J.). l!'ourtcontb Amondmont baa been do· *153 878 v.s.- 1&
1500
H S'D.'P:&mm OOVBT BEPOB.T:EB.
,.the Fifth Amendment privllere ts • • The decision in Mapp v. Ohio, 867 U.S. [the) essential mainstay'' of our 1Y1tem. 648, 81 S.Ct. 1684, that evidence uncon
stitutionally seized, see Wolf v. Colorado, In Adamson, supra, the Court made it 388 u.s. 26, 28, 69 s.ct. 1359, 1861, may explicit that it did not regard the in not be used in a state criminal trial fur creasingly strict standard for determin nishes no "fortiftcation," see ante, p. ing the admissibility at trial of an out 1494, for today's decision. The very pas of..court confession as undermining the sage from the Mapp opinion which the holding of Twining. After stating that Court quotes, ante, p. 1494 makes explicit "the due process clause does not protect,
the distinct bases of the exclusionary by virtue of its mere existence the ac rule ae applied in federal and state cused's freedom from giving testimony courts: by compulsion in state trials that is se cured to him arainst federal interference
"We find that, as to the Federal Gov by the Fifth Amendment,•• the Court ernment, the Fourth and Fifth said: .. The due process clause forbids Amendments and, as to the States, compulsion to testify by fear of burt, the freedom from unconscionable in torture or exhaustion. It forbids any vasions of privacy and the freedom other type of coercion that falls within from convictions based upon coerced the scope of due process." 882 U.S., at
confessions do enjoy an 'intimate re 154, 67 S.Ct. at 1676. lation' 10 81 (footnotes omit in their perpetuation of 'prin· ted). Plainly, the Court regarded these ciples of humanity and civil liberty [secured] * * * only after years two lines of cases as distinct. See also Palko v. Connecticut, supra, SOZ U.S.,
of struggle,' Bram v. United States, at 826, 58 S.Ct. at 162, to the same etrecV
1897, 168 U.S. 582, 543-544, 18 S.
Cohen, supra, which adhered to Twining, Ct. 183, 187." 867 U.S., at 65~57, 81 s.ct., at 1692 (footnote omitted). was decided a.fter all but a few of the confeasion cases which the Court men
See also id., 867 U.S. at 665, 81 S. tions. Ct., at 1691. The coerced confession cases are rele Although the Court discussed Boyd v. vant to the problem of this case not be United States, 116 U.S. 616, 6 S.Ct. 524, cause they overruled Twin'ing iub Bilen a federal case involving both the Fourth tio, but rather beeause they applied the and Fifth Amendments, nothing in Mapp same standard of fundamental faimess supports the statement, ante, p. 1494, which is applicable here. The recogni that the Fifth Amendment was part of tion in them that federal supervision of the basis for extending the exclusionary state criminal procedures must be direct rule to the States. The elaboration of ly based on the requjrements of due proc Mapp in Ker v. California, 874 U.S. 23, ess is entirely inconsistent with the 8S S.Ct. 1623, 10 L.Ed.2d 726, did in my theory here espoused by the majority. view make the Fourth Amendment ap The parallel treatment of federal and plicable to the States through the Four state cases involving coerced confessions teenth; but there is nothing in it to sug resulted from the fact that the same gest that the Fifth Amendment went demand of due process was applicable in along as baggage. both; it was not t'Jte consequence of the
III.
automatic 'engrafting of federal law con struini' constitutional provisions inappli The previous discussion shows that cable to the States onto the Fourteenth this Court's decisions do not dictate the Amendment. "incorporation" of the Fifth Amend- 5. In Adaruaon and PoJko, anpra, which ad· 1bow that Twlnloc wae gradaatl7 being
hered to the rule announced in Twfnlnl', or0<led. 332 U.S., at '54, notes 12, 18, supra, the Oo11rt cited some ot the 1'erJ 6'l S.Ct., at 1676; 302 U.S., o.t ~. 826, cases now relied on b7 the majorltJ' to 68 S.Ct., at lrll, 162.
*154 178 v.s. t8 1501
JULLOY "· KOGAN
mt. u 8' l.ct.1'8D (UCN)
Bill ot Rights mlrht provide historical nient's privilege a1alnst self-incrimina evidence that the right involved was tra tion inw the. Fourteenth .Amendment. Approaching ~e question JQore broadly, ditionally regarded as fundamental, in clusion of the ri'ght in due process was it is equally plain that the line ot casea exemplifted by Palko v. Connecticut,
otherwise entirely independent of the sapra. in which this Court has reconsid ilrst eight Amendments: ered the requirementa which the Due
"• * * [I)t is posaible that :Process . Clause .imposes on the States in some of the personal rights safe the light 'of current standards, furnishes guarded by the first eight Amend no general theoretical .framewo?k for ments against national. action may what the Court does today. alBo be safeguarded against state ac tion, because a denial of. them would The view of the Due Pr0cess Clause of be a denial .of due process of law. the Fourleenth Amendment which this *. * • If this .is so, it is not be Court bu consistently accepted and ca.use"t1&ose rights are enumerated in which has . "thus far prevailed," ante, the first eight Amendments, ht be p. ,1491, is that its requirements are as cause they are of suck a. nature that ''old as a principle of civilized govern they are facluded in the conception ment," Munn v. Illinois, 94 U.S. 118, 128, of dll(J f)roces1 of law." Twining~ I . 24 L.Ed. 77; the specific a11pUcatlons of -supra, 211 U.S. at 99, 29 S.Ct. at 19. which must be ascertained "by tho grad (Emphasis: aupplitd.) ual process of judicial Inclusion and ex clusion * • *,"Davidson v. New Orle
Relying heavily on Twining, Mr. Jus ans. 96 U.S. 97, 104, 24 L.Ed. 616. Due tice Cardom provided what .ma:v. be re~
I.
garded as a classic expression . of this process requires "observance of those j general rules established in our system of approach in Palko v. Connecticut. supra. jurisprudence for the security of private After considering a number of individual
• rights (including the right rights." Hagar v. Reclamation District 13 not to in No. 108, 111 U.S. 701, 708, 4 S.Ct. 668, criminate oneself) which were "not of 667, 28 L.Ed. 569. See Hurtado v. Cali the very essence of a scheme of ordered fornia, 110 U.S. 516, 637, 4 S.Ct. 111, 121. Jibel'ty,'; id., 802 U.S. at 326, 68 S.Ct. at "This ·court has never attempted 152, he said : . . to de1lne with precision the words · 'We reach a different plane of 'due process ot law' * • *. It is social and moral values when we sufficient to sq .that the..e are cer·· paaa U> the privileges and immuni tain immutable principles of justice, · ties that have· been taken ov~r from which inhere in the very idea of :free the earlier articles · of the F~deral government, which no member of BUI of Rights and brought within the Union mq disregard • • */' the Fourteenth Amendment by a Holden v. Hardy, 169 U.S. 866, 389, process of absorption. These in 18 S.Ct. 883, 387, 42 L.Ed. 780. their origin were ef!ective against the federal government alone, If
It followed from this recognition that the Fourteenth Amendment has ab due process encompassed the fundamental sorbed them, the process of absorp. safeguards of the individual against the tion has had its 80urce in the belief abusive exercise of governmental power that neither liberty nor justice that some of the restraints on the Fed
would exist if they were sacrificed." eral Government which were specifically Id., 802 U.S. at 326, 68 S.Ct. at 162. enumerated in the Bill of Rights applied also agai. nst the States. But, while in· Further on, Mr. Justice Cardozo made clusion of a particular provision in the the independence of the Due Proceas *155 84 S'tJPBE!D! OOVBT BBPOBTBB S71 V.S, IS
Clause from the proviafou of the ftr11t aeope in the federal and •f.ate domains or that in some areas of criminal procedure .tght Amendments explicit:
the Due Proceu Clause demands as much .,Fundamental • • • fn the of the State11 u the Bill of Ri1bta de concept of due process, and 10 in mands of the Federal Govemment, is that of liberty, fa the thoal'ht that only tangentially relevant to the question condemnation shall be rendered onl.Y now before us. It is toying with consti after trial. Scott v. McNeal, 164 tutional prinelplea to aaeert that the U.S. 84, 14 S.Ct. 1108, 88 L.Ed. 896; Court has ''rejected the notion that the Blackmer v. United States, 284 U.S. Fourteenth Amendment applies to the 421, 62 S.Ct. 252. 76 L.Ed. 876. The statee only a 'watered-down, subjective hearinl', moreover, must be a real version of the individual guarantees of one, not a sham or a pretense. the Bill of Rights,' " ante, p. 1496. What Moore v. Dempsey, 261 U.S. 86, 48 the Court has with the single exception S.Ct. 266, 67 L.Ed. 543 • Mooney v. of the Ker ease, supra, p. 1500; see infra, Holohan, 294 U.S. 108, 65 S.Ct. 840, p. 1603, consistently rejected la the no '19 L.Ed. 791. For that reason, ig~ tion that the Bill of Rights, u such, norant defendants in a capital case applies to the States in any upect at all. were held to have been condemned If one attends to those areas to which unlawfully when in truth, though the Court points, ante. p. 1494, in which not in form, they were refused the the prohibitions against the state and aid of counsel. Powell v. Alabama, federal governments have moved in supra, 287 U.S. 46, at pages 67, 68, SS s.ct. 56, 68, '17 L.Ed. 158, 84 parallel tracb, the cases in tact reveal
again that the Court's usual· approach A.L.R. 527. The decision did not has been to rround the . prohibitions turn upon the fact that the benefit against state action squarely on due of counsel would have been guaran. proceH, without intermediate reliance on teed to the defendants by the provl~
any of the tlrst eight Amendments. Al elons of the Sixth Amendment if though more ~ntly the Court ha.a re they had been prosecuted in a federal ferred to the First Amendment to de <10urt. The decision turned upon the fact that in the particular aituation scribe the protection of free expression laid before us in the evidence the against state infringement, earlier cases benetlt of counsel wa.s essential to
leave no doubt that such references are the substance ot a hearing." Id., .. "shorthand" tor doctrines developed by 302 U.S. at 327, 58 S.Ct. at 153. another
I I
route. In Gitlow v. NewYork, It is apparent that Mr. Justice Car 268 U.S. 652, 666, 45 S.Ct. 625, 680, for -dozo'a metaphor of "absorption" was not intended to suggest the transplantation example, the Court said: -of caae law surrounding the 1pecfftcs of
"For pre.sent purposes we may and the first eight Amendments to the very do assume that freedom of speech -different soil of the Fourteenth Amend and of the press-which are pro ment's Due Process Clause. For, as he tected by the First Amendment made perfectly plain, what the Four from abridgment by Congres.t-are teenth Amendment requires of the States among the fundamental personal -does not basically depend on what the rights and 'liberties' protected by the 1irst eight Amendments require of the due process clause of the Fourteenth Federal Government. Amendment from impairment by the States.''
Seen in proper perspective, therefore, The Court went on to consider the extent the fact that Fint Amendment protec tions have generally been given equal of those freedo1118 in the context of state
*156 t7.8 U.S. rt. 1503
MALLOY "· EOG.AN
ate 118' 1.a.1a <lM'> . . The coerce4 confession and search and
interestll. . 'Mr. Justice Holmes, ln dis- aeilure eases have alreadf been consid sent, said: ered. The f•:>rmer, decided alwaJ'8 direct · 'The general principle of free ly on grounds of fandamental fairness, a~h, it seems to tne, must be taken furnish no support for the Court's pres to be focluded in the Fourteenth ent views. Ker v. California, supra, did Ainendment, bi view of the scope indeed inco1~rate the . Fourth Amend_. that has · been given to the word ment'a protection against invasions of 'libertyf as there used, although per· p1·ivacy into the Due Process Clause. haps it may be accepted with a some But that case should be regarded as the what larger latitude of interprl?t.a exception which proves the rule. [1] The tlon than is allowed to Congress by right to counsel in state criminal proceed· the sweeping language that governs ings, whfoh this Court assured in Gideon or ought. to a'Overn the l.aws of the v. Wninwri1rht, 872 U.S. 385, 88 S.Ct. Unit.ed Sta~s.» Id., 268 U.S. nt 672, 792, does no'I; depend on the Sixth Amend 46 S.Ct. at 6S2. ment. In Betta v. Brady, 816 U.S. 455, 462, 62 S.Ct. 1252, 1256, this Court bad
Chief Justice Hughes, in De Jonge v. said: · · Oregon, 299 U.S. S6S, 864, 57 S.Ct. 255, 260, gave a similar analysis:
"Due process of law is secured "Freedom of speech and of the against invasion by the federal Gov- : preas are fundamental rights which eminent by the Fifth Amendment are qfeguarded by the due process and is safeguarded against state ac clause of the Fourteenth Amendment tion in identical words by the Four of the Federal Constitution. • * *
teenth. The phrase formulates a The right of peaceable assembly is a concept leu rigid and more fluid right cognate to those of free speech than those envisaged in other specinc and free press and fa equally funda and particular provisions of the Bill of Rights.. Its application is leas a.
mental. As this Court said in Unit [4] ed States v. Cruikshank, 92 U.S. 642,
matter of rule. Asserted denial is 562, 28 L.Ed. 588: 'The very idea to be tested by an appraisal of th& · of a government, republican in form, totality of facts in a given case. implie~ a rfa'ht on the part of its That which may, in one aettinir, con cltizens to meet peaceably for con- · stitute a denial of fundamental fair eultation in respect to pubUc affairs ness, shocking to the universal sense and to _petition for a redress of of justice, may, in other circum grievances.' The First Amendment stances, and in the light of other of the Federal Constitution express .. considere.tions, fall 11hort of such de ly guarantees that right against nial." (Footnote omitted.) ..,
abridrment
by Congress.· But ex Although Gideon overruled Betts, the plicit mention there does not argue constitutional approach in both cases was exclusion elsewhere. For the right the same. . Gideon was based on tbe is one that cannot be denied without Court•s conclusion, contraey to that violating those fundamentar princi reached ln Betts, that the appointment ples of liberty and Justice which lie of counsel for an indigent criminal de at the base of all civil and political fen~nt waa easential to the conduct of inatltutfon&-principles which the a fair trial, and was therefore part of Fourteenth Amendment embodies in the reneral terms of its due process due process. 872 U.S., at 842-845, SS S.Ot. at '79~'197. claase."
L Of. the lll8joril:7 ud dit1entill1 opln!on1 In AiaD&r Y. Tua.. 81'8 U.S. 108, 84 S.Ot. lGOO. *157 H BUPRUim 0017BT BBPO:&'l'EB S78 11.B. 17 The Court's approach In the preaent allocation of responsibility for the pr~ vention of crime when it applies to the case is in fact nothing more or less than "incorporation" in l?latches. If, how· States doctrines developed in the context ever, the Due Proceas Clause ia something of federal Jaw enforcement, without any more than a reference to the Bill of attention to the special problems which the States as a group or particular States Rights and protects only tbosP. rights may face. If the power of the States to which derive from fundamental princt.: ples, as the majority purports to believe, deal with Jocal crime is unduly restrict· it is just as contrary to precedent and ed, the likely consequence f s a shift of just ae 11loglca1 to incot"porato the provi· responsibility in this area to the Federal
Govemment, with its vastly greater re &ions of the Bill of Rights one at a time aourees. Such a shift. if it occurs, may as ft is to incorporate them all at once.
in the end serve to weaken the very IV. liberties which the Fourteenth Amend· ment aafe&'Uards by bringing us closer The Court's undiscriminating ap· to the monolithic society which our fed· proach to the Due Process Clause car· eraliem rejects. Equally dangerous to ries serious implications for the aoand our liberties :Is the alternative of water· working of our federal system in the field ing down protection8 against the Federal of criminal law. Government embodied in the Bill of The Court concludes, almost without Rights so as not unduly to restrict the <liacuesion, that "the same standards powers of the Stat.es. The dissenting must determine whether an accused's opinion in Aguilar v. Texas, 878 U.S., .silence In either a federal or state pro p. 116, 84 S.Ct., p. 1515, evidences that eeecling is justified," ante, p. 1495. About this danger is not Imaginary. See my all that the Court offers in explanation of concurring opini9n in Aguilar, ibid. this conclusion is the observation that it would be "incongruous" if different
Rather than insisting, almost by rote, standards governed the assertion of a that the Connecticut court, in considering privilege to :remain silent in state and the petitioner's claim of prlvllege, was federal tribunals. Such "incongrulcy."' required to apply the "federal standard," ·however, is at the heart of our federal the Court ahould have fulfilled its respon system. The powers and responsibilities
sibility under the Due Process Clause by ·Of the state and federal governments are inquiring whether the proceedin~s below not congruent; under our Constitution, met the demands of fundamental fairness they are not intended to be. Why should which due process etnbodies. Such an it be thought, as an s priori matter, that approach may not satisfy those who see limitations on the investigative power of in the Fourteenth Amendment a set -the States are in all respects identical of easily applied "absolutes" which can with limitations on the investigative afford a haven from unsettling doubt. It power of the Federal Government? This is, however, truer to the spirit which re· ·Certainly quires thie Court constantly to re-exam· •
ine fundamental
does not follow from the fact 119 that we deal here with constitutional re principles and at the .quirementa : for the provisions of the same time enjoins it from reading ita Constitution which are construed are own preferences into the Constitution. different. As the Court pointed out in Abbate v. The Connecticut Supreme Court of 'united States, 859 U.S. 187, 195, 79 S.Ct. Errors gave full and careful considera tion to the petitioner's claim that he -666, 671, S L.Ed.td 729, "the States un .. ~er our federal system have the principal would incriminate himself if he answered reaponsibility for defining and prosecut the questions put to him. It noted that ing crimea." The Court endangers this its decisions "from a time antedating the
*158 878 .V.8. Sl MALLOY 'f, JIOGAN Ctte u 8' I.a. YI» (UM) adoption.of • ·• * [the Connecticut] But it would be to convert a salutary protection into a means of abuse Sf comtitutlon in 1818" had upheld a prfvi .. le.re to refuse to answer incriminating it were to be held that a mere imagf.
nary possibility of danger, however questions. 150 Conn. 220, 228, 187 A.2d '144, 746. Stating that federal cases remote and Improbable, waa suffi· treatJng the Fifth Amepdment privilege clent to Justify the withholding of had "persuasive toree" in 'interpreting evidence essential to the ends of Jue·
tlce.' Cockburn, C. J ., in Regina v. its own constitutfonal provision, and cit· . Boyes, 1 B. & S. 811, 880 • • • .'' Ing Hoffman v. United States, 841 U.S. 479, '11 8.Ct. 814; in particular, the Su· McCarthy v. Clancy, 110 Conn. 482, 488-489, 148 A. 551, 5155. preme Court of Errors described the re quirements for assertion of the privilege
The court carefully applied the above by quoting from one of its own cases, id., standard tO each question which the peti 16'0 Conn., at 225~ 18'1 A.2d, at 74'1: . tioner was asked. It dealt first with the questfon whether he knew John Berl'oti. "[A] witness * • • has the The court said: · right to refuse to answer any ques tion which would tend to incriminate
"Bergoti ia nowhere descrJbed or in him. But a mere claim on his part any way identified, either as to hia that the evidence will tend to in occupat.ion, actual or reputed, or as criminate him is not sufficient. • • to any criminal record he may have [He having] inade his claim, it is had. •· • • Malloy made no at then * * * (necessary for ·the tempt i!ven to suggest to the court judge] to determin1e in the exerclse how an anawer to the question of a legal discretion whether, from whether he knew Bergoti could pos the circumstances of the case and the sibly incriminate him. • * • On nature of the evidence which the this state of the record the question witness ia called upon to give, there was proper, and Malloy'e claim of is reasonable ground to apprehend privilege, made without explanation, danger of cdminnJ Jinbillty from hie was correctly overruled. Malloy being compelled to answer. That 'chose to keep the door tightly closed danger 'must be real and apprecia and to deny the court the smallest ble, with reference to the ordinary glimpse of the danger he apprehend· operation of law in the ordinary ed. He cannot then complain that course of things--not a danger of we aee none.' In :re Pillo, 11 N .1. 8, an imaginary and unsubstantial 22, 98 A.2d 176, 183 • • * ." 1150 Conn., at 22~22'1, 18'1 A.2d, at '148. character, having reference to some ext.raordinary and barely possible
'l'he remaining questions are summa- contingency, so improbable that no rized in the majority's opinion, ante, reasonable man would auft'er it to p. 1496. All of them deal with the cir· influence })is conduct. We think that cumatancea surrounding the petitioner's a merely remote Jnd naked posldbll
conviction on a gambling charge in 1959. ity, out of the ordinary course of ThR court declined to decide law 'and such aa no reasonable man
n would be a1fected by, "whether,
IO
should not be on their face and apart from any consid· auft'ered tQ obstruct the adminfatrk· eration of Mal Joy's immunity from prose tion of Justice. The object ot the
cution, the questions should or should not law is to afl'ord to a party, ealled have been answered in the Ught of his upon to give evidence in a proceeding failure to give any hint of explanation as to how answers to them could incriminate intsr alioa, protection against being brought by means of his own evi him." ltsO Conn., at 227, 187 A.2d, at dence within the penalties of the law. · '148. The court considered the State's
14 S.Ct.--tS
!78 17.S. 81
*159 claim that the petitioner'a prior eonvic· with reference to his relationshf p tion was safllcfent to clothe him with with a possible criminal." Ante. pp. lmma.nity from prosecution for other 1496-1497. crimes to which the questions mirht per·
'The other five questions, treaied at tain, but declined to rest its decision on length in the Connecticut court's opinion, that basis. · Id., 150 Conn., at 227-229, get ·equally short shrift .from this Court: 187 A.2d, at 748-749. The court conclud it takes the majority, unfamiliar with ed, however, that the running ot the
Connecticut Jaw and far removed from statute of limitations on misdemeanors the proceedings below, only a dozen Jines committed in 19159 and the absence of any indication that Malloy had eDl'&ged in to ~nsider the questions and conclude
that they were incrimi.nating: any crime other than a miSdemeanor re· moved all appearance of danger of in·
"The interrogation was a part of a crimination from the questions propound wide-ranging inquiry into crime, in ed concerning the petitioner's . a~tivities cludinr gambling, in Hartford. It in 19159~ The court summarized this con was adinitted on behalf of the ·state clusion as follows: at oral argument-and indeed it is obvious from the questions them
"In all this, Malloy confounds vague selves-that the State desired to and improbable possibilities of pros elicit from the petitioner the identity ecution with reasonably appreciable of the person who ran the pool-sell ones. Under claims like his, it would ing. operation in connection with always be possible to work out some which he had been arreated Jn 1959. finespun and improbable theory from It waa apparent that petitioner which an outside chance of prosecu might apprehend that if this person tion could be envisioned. Such were still engaged in unlawful ac claima are not ecourh to support a tivity, disclosure of his name might claim of privilege, at least where, as furnish a link in a chain of evidence here, a witness suggests no rational sufficient to connect the petitioner explanation of his fears of incrlmi with a more recent crime for which nation, and the questions them.selves, he might still be prosecuted." under all the circumstances, sanest (Footnote omitted.) Ante, p. 1496. none." Id., 160 Conn., at 230-281, 187 A.2d, at '/60.
I do not understand how anyone could read the opinion of the Connecticut court Peremptorily rejecting all of the care and conclude that the state Jaw which ful analysis of the Connecticut court, this was the basis of its decision or the deci· Court crea~s its own .. finespun and im sion itself was Jacking in fundamental probable theory'' about how these ques fairness. The truth of the matter fa that tions might have incriminated the peti· under ·any standard-state or fedfµ'al tioner. With respect to his acquaintance the commitment for contempt was proper. with Bergoti, this Court says only: Indeed, a8 indicated above, there is every "In the context of the inquiry, it reason to believe that the Connecticut should have been apparent to the court did apply the Hoffman standard referee that Bergoti was suspected 33
quoted approvingly in the majority's [311] by the State to be involved in some opinion. 1 entirely agree with my ~roth er WHITE, post, pp. 1608-1509, that if the wa1 in the subject matter of the investigation. An affirmative an matter is viewed only from the stand swer to the question might well have point of the federal standard, such stand either connected petitioner with a ard was fully satisfied. The Court's ref
erence to a federal standard is, to put it more recent crime, or at leaet have operated as a waiver of his privilege bluntly, simply an excuse for the Court to
*160 MALLOY, .. HOGAN' . 378 11.s. 85 Cite 11 8' 8.Ct.14811 (11*) substitute its own superflcial B.sseasment The Queen v. Boyes, 1 B. It S. 811, 829-:- 830 (1861) ; Mason v. United States, 24' of the facts and state law:for the careful U.S. 862, 87 S.Ct. 621, 61L.Ed.1198. I and better informed conclusions of the do not think today's decision permita state court. No one who scau the two opinions with an objective eye wil~ I . such a determination. think, ·reach any other c:Oncluafon.
Answers which would furnish a lead to I would aftlrm. other evidence needed to prosecute or convict a claimant of a crime-clue evf·
Mr. J'uatice WHITE, with whom Mr. dence--c:annot be compelled, but "this Justice STEW ART joins, dissenUng. protection must be eonft.ned to Instances where the witness has reasonable cause
I.
to apprehend danger from a direct an· The Fifth Amendment safeguards an swer." Hoffman v. United States, 341 U.S. 479, at 486, 71 s.ct. 814, at 818; Important complex of values, but it is difficult fo?' me to perceive how these Muon v. UnCted States, 244 U.S. 862, 87 values are served by the Court's holding S.Ct. 621. Of course the witness is not required to disclose s0 much of the dan· that the privilege was properly invoked in this case. While purporting to apply ger as to render his prlvllege nugatory. tbe prevailing federal standard of in· But that docs not juaUfy a flat rule of crf m(nation-the same standard of . in· no inquiry and automatic acceptance · of crlmlnation that the Connecticut courts the claim of privilege. In determining applied-the Court baa all but stated that whether the witness has a reasonable ap· a witness' invocation of the privilege to prebension. the test In the federal coarll has been that the judge is to decide from any question is to be automatically, and without more, accepted. With deference1 the circumstances of the case, his knowl· I prefer the rule permitting the judge edge of matters surrounding the inquiry rather than the witness to determine and the nature of the evidence which when an answer sought is Incriminating. ia demanded from the witness. Hoffman
v. United States, 84.1 U.S. 479, 71 S.Ct. The established rule has been that the 814; Mason v. United States, 244 U.S. witness' claim of the privilege is not 862, 37 S.Ct. 621. Cf. Rogers v. United final, for the privilege qualifies a citizen's States, 340 U.S. 867, 71 S.Ct. 438. This general dut:r of disclosure only when his rule seeks a.nd achieves a worknble ac answers would subject him to danger commodation between what nre obviously from the criminal law. The privflege important competing interests. As Mr. against self-incrimination or any other Chief Justice Marshall said: "The prin· evidentiary privilege does not protect si ciple which entitles the United Stares to lence which fa solely an expresalon of the testimony of every citizen, and the political protest, a desire not to inform, prlnclple by which every witness is prlvl· a fear of social obloquy or economic dis leged not to accuse hlmself, can neither advantage or fear of prosecution for fu· of them be entirely disregarded. * * *
ture crimes. Smith v. United States,
When a question la propounded, it be
M
387 longs to the court to con&ider and to de· .. U.S. 187, 147, 69 S.Ct. 1000, 1005, 93 cide whether any direct answer to It can L.Ed. 1264; Brown v. Walker, 161 U.S. implicate the witness." In 591, 605, 16 S.Ct. 64~. 650, 40 L.
re Willie, 25 Ed. 819. If the ~eneral duty to testify Fed.Cas.No.14,692e, at 89-40. I would when subpoenaed Is to· remain and the not only retain this rule but apply it privilege is to be retained ns a protec in Its present form. Under this test, tion against. compelled incriminating an· Malloy's refusals to answer some, ff not swers, the trial judge must be permitted all, of the questions put to him were to make a meaningful determination of clearly not privilered. · when answers tend to incriminate. See *161 878 v.s. ~5
84 sv.eamo OOU'ltT B.EPOB'!ER 1508 n. on November 5, 1969, who furnished the money to pay your ftne?
In November 1959, Malloy .was •~ • • • rested in a gambling raid in Hartford * * and waa convicted of pool selling, an of·
"Q. Do you know whose apart· tense defined as occupying and keeping . ment it was [that you were· arrested a building containing gambling appara· in on September 11, 1959)? tus. After a 90-day jail term, his one. • • • * * * year sentence was auapended and Malloy "Q. Do you know John Bergoti? wa.s placed on probation for two years.
• • • • In early 1961, Malloy was summoned to * appear in an investiiration into whether "Q. I ask you again, Mr. Malloy, crimes, including gambling, had been
now, so there will be no misunder· committed in Hartford County, and was standing of what I want to know. aaked various questions obviously and When you were a~rested on Septem· solely designed to aacertain who Malloy'!J ber 11, 1969, at 600 Asylum Street in associates were in · connection with his
Hartford, and the same arrest for pooJ:.aeJling activities in Hartford in 1959. which you were convicted in Supe Malloy fnttlally refused to answer vir· rior Court on November 5, 1959, for tually all the ·questions put to him, in· whom were you working 't" eluding such innoeuous ones as whether It wu for refusing to answer these he was the William Malloy arrested and questions that Malloy was cited for con· convicted of pool selling in 1959. After tempt, the Connecticut courta notin8' that he was advised to consult with counsel the privilege does not protect one against and did so, he declined to answer each informing on friends or aesociatea. one of the following questions on the These were not wholly innocuous ques ground that it would tend to incriminate tions on their face, but they clearJ1 were him: in light of the finding, of which Malloy "Q. Now, on September 11, 1959, was told, that he was immun·e from prose when you were arrested at 600 Asy. cution for any pool-selling activities in Ium Street, and the same arrest for 1959. As the Connecticut Supreme Court which ·you were conVicted in the Su· of Errors found, the State bore its bur· perior Court on November 5, 1959, den of proving that the statute of limi· for whom were you working? tations barred any prosecution for any .. type of violation of the state pool-selling
• • •
*
*
statute in 1959. Malloy advanced the
"Q. Ori September 11, 1969, when claim before the Connecticut courts, and you were arrested, and the same ar· again before this Court, that he . could rest for which you were convicted perhaps be prosecuted for a conspiracy in the Superior Court on November and that the statute of limitations on 2! 5, 1969, who fumished the money felony was to pay your fine when you were con· 3't victed in the Superior Court? .. five years. But the Connecti· • • • cut courts were unable to tlnd any state • statute which Malloy's gambling activi· ties in 1969 in Hartford, the subject of
"Q. After your arrest on Sep the inquiry, could have violated and Mal· tember 11, 1969, and the same arrest Joy hu not yet pointed to one. Beyond for which you were convlcted on this Malloy declined to offer any ex· November 5, 1959, who selected your planation or hint at how the anawers bondsman? sought could have incriminated him. In • • • • • • these circumstances it is wholly specula "Q. As a result of your arrest on tive to find that the questions ·about September 11, 1969, and the same others, not Malloy, posed a substantial arrest for which you were convicted hazard of criminal prosecution to Malloy. *162 878 v.s. 101
ACIVILAlL "· STA.TB or D%A8 1509 Cite u IK a.ct. UJOO (19M> The0retlcally, under 1ome unknown bat Judre paaaing on the claim tO understand perhaps possible c:ondltioni an;r fact ia how the answers sought are lncriminat lnS", I would at leut require .the elaim potentially incriminatinl'. Bat if this be the rule, there obviously is no reason ant to et.ate hie grounds for asserting the for the Judge, rather than the witness, to privilege to questions aeemiqly lrrele paas on the claim of privilege. The privi~ vant to any incriminating matten. lege becomes a general one against an
Adherence to the federal atandard of swering diataat.efut questions. incrimination stated In Muon and Hoff man, supra, In form only, while its con
The Court dnds that the queatfons were · incriminating because petitioner tent is eroded in application, ia hardly "might apprehend that if [his associates ·an au.epicloua beginning for application in 19&9] were itill engaged in unlawful of the privilege to the States; As was activity, disclosure of [their name1] well stated tn a closely analogous situ might furnish a link in a chain of evi
ation, "[t]o continue a rule which ia dence sufficient to connect the petitioner honored b:r this Court onl:r with lip aerv· with a more recent crime for which he ice is not a health7 thing and in.the long might still be prosecuted.'' Ante, p. 1'96. 1'l1D will do disaervice to the federal ays· The assumption neceasa17 to the above . tem." Gideon v. WalnwriK'bt, 872 U.S. reasonin.r is that all persons. or all who 886, at 8151, 88 B.Ct. '192, at 800 (HAR· have committed a miSdemeanor, are con ~. J., concurrinr). ttnuousJ;r engaged fn crime. This ia but I would amnn. another war of makinr the claim of priv ilege automatic. It Is not onl;r unrealistic
" ,. generally but peculiarly inappropriate. in !: this case. Unlike cases relied on by the
I'
r
Court, like Hoffman v. Unlted States,
supra, where the claimant was known to I~
!! be involved in rackets in the area, which " were the aubject of the inquiry, and had a "broadl;r pubU.ahed police record," Mal loy had no record as a felon. He had. ..,. v ... 108 engaied once in an unlawful activit:y Nick Alford AG~ PetlUoner,
..... ~I 11eUing-a misdemeanor and was STATE OF TEXAS. riven a suepended sentence. He had been on probation since that time and
No. MS. was on probation at the time of the in Ar.rued March 25, 26, 1964. quiry. AK'ain. unlike Hoffman, nothlnr Decided June 15, 1964. In these questions indicates petitioner 38 was called beeause he was suspected of Defendant was convicted, Jn the criminal activities after 191>9. There ia Criminal District Court, Harris County, ~o suppo~ at all in tbi11 record :for the Tezas, of illegal possession of heroin, and eynical assumption that he had commit the Texaa Court of Criminal Appeals, 1'12 ted criminal acts after his release in Tu.Cr.R. 629, 862 S.W .2d 111, a1Brmed. 1960. ! On certiorari rranted, the Unlte.d Statea Even on the Cotirt'i. aasumption that Supreme Court, Mr. Justice Goldberir. persons convicted of a misdemeanor "are held that afftdavit for search W&l'l'8nt ma;r be based on hearsay information and neceasarlbr sus~ct crimiuala, sustaining need not reflect direct personal observa the privilege in theae cireu.matances is unwarranted, for Malloy placed no re tions of amant but magistrate must be Jfance on this theory in the courts below :informed of some of underl;riDI" circum or fn this Court. In order to allow the
stances on which informant based his
628 FEDERAL REPORTER, 2d SERIF.s
*163 sioned to devise it. Instead, we defer to the dors program as applied in specific ca8es. defendants' interpretations of the Amend The program requires many discretionary ments. See Udall v. Tallman, 880 U.S. 1, acts on the part of the Secretary; the agen 16, 85 S.Ct. 792, 801, 18 L.F.d.2d 616 (1965); cy heads, and agency property mailagers. Ethyl Corp. v. EPA, 176 U.S.App.D.C. 878, These acts may of course be reviewed under 406, 541 F.2d 1, 34 (1976) (court must pre the Administrative Procedure Act. In fact, sume the agency's actions are valid); Sierra the regulations set up an internal · arbitra•' Club v. EPA, 176 U.S.App.D.C. 885, 845, 540 tion procedure for dispute resolution, culmi F.2d 1114, 1124 (1976), vacated on other nating in judicial review of the final agency grounds, 484 U.S. 809, 98 S.Ct. 40, 54 action. See 45 C.F.R. § 1869.37. Thus L.Ed.2d 66 (1977); Columbia Bro&de&Sting there is no bar to review of any further System, Inc. v. FCC, 147 U.S.App.D.C. 175, actions by the pertinent government agen 184-85, 454 F.2d 1018, 1027-28 (19'11). cies which conflict with the policies set out
in the Randolph-Sheppard Amendments and the regulations.
Ill. Affirmed. [6] The plaintiffs also ask this court to reverse or remand the District Court's judg ment because of its failure to make detailed findings of fact and conclusions of law. This argument ignores the procedural con text of the court's action which disposed of the case on a motion for summary judg
SECURITIES AND EXCHANGE
ment under Fed.R.Civ.P. 56. Fed.R.Civ.P.
COMMISSION,
52(a) provides: "[f]indings of fact and con v. clusions of law are unnecessary on decisions DRESSER INDUSTRIES, INC., of motions under Rules 12 or 56 or any Appellant, other motion except as provided in Rule 4l(b)." See, e. g., Hindes v. United States,
United States, Intervenor. 326 F.2d 150, 152 (5th Cir.), cert. denied, 377 U.S. 908, 84 S.Ct. 1168, 12 L.Ed.2d 178 SECURITIES AND EXCHANGE (1964) (only finding necessary is that there COMMISSION, are no genuine issues of material fact); v. Gurley v. Wilson, 99 U.S.App.D.C. 836, 337,
DRESSER INDUSTRIES, INC., Edward 239 F.2d 957, 958 (1956); Simpson Bros., R. Luter, Appellant, Inc. v. District of Columbia, 85 U.S.App. United State1, Intervenor. D.C. 275, 179 F.2d 480 (1949). cert. denied, 838 U.S. 911, 70 S.Ct. 850, 94 L.Ed. 561 Nos. 78-1702, 78-1705. (1950). There were no genuine issues of
·United States Court of Appeals, material fact, and this court can easily de District of Columbia Circuit; cide the legal questions on the basis of the Argued en bane April 16, 1980. statute, regulations, and the preamble to the regulations explaining the reasoning Decided July 16, 1980. supporting the defendants' policies.
Certiorari Denied Nov. 17, 1980. See 101 S.Ct. 529.
IV.
Corporation appealed from decision of [7] The decision in this case does not the United States District Court for the preclude further review of the blind ven- lenge the percentage disbursements of vending accounting for, vending machine income from vending machines on Federal property under machine Income to blind vendors determined by whether or not the vending machines are in his control . . . " However, this is a logi cal delegation of the authority granted to the direct competition with the blind vending facili head of each department, agency, and instru ties. 45 C.f.R. § 1369.32(b), (c), (d). However, mentality of the United States in 20 U.S.C. these disbursements parallel those set In 20
u.s.c. § l07d-3(b)(l). § l07d-3(b)(2). Plaintiffs also seem to chal- *164 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1369
Clteu628F.2d 1368 (1980)
District of Columbia, 453 F.Supp. 573, Exchange Commission from being entitled Thomas A. Flannery, J., requiring obedi- to enforcement of subpoena issued in con ence to subpoena duces tecum issued by nection with investigation into use by cor Securities and Exchange Commission and poration of funds to make such payments, denying motion by the corporation to quash contrary to claims that enforcement would the subpoena. The Court of Appeals, J. 'improperly broaden right of Department of Skelly Wright, Chief Judge, held that Justice to criminal litigation discovery and parallel investigation into alleged "ques- would infringe role of grand jury, and the tionable foreign payments" conducted by corporation was not entitled to protective grand jury under guidance of Justice order prohibiting SEC from providing Jus Department did not preclude Securities and tice Department with fruits of its civil dis Exchange Commission from being entitled covery. 26 U.S.C.A. (l.R.C.1954) § 7602; to enforcement of subpoena issued in con- Securities Exchange Act of 1934, § 2l(a) as nection with investigation into use by cor- amended 15 U.S.C.A. § 78u(a); Securities poration of funds to make such payments, Act of 1933, § 19(b), 15 U.S.C.A. § 77s(b). contrary to claims that enforcement would 4. Grand Jury cB=>36.4(1) improperly broaden right of Department of
Fact that grand jury has subpoenaed Justice to criminal litigation discovery and documents concerning particular matter would infringe role of grand jury, and the does not insulate such matter from investi corporation was not entitled to protective gation in another forum. Fed.Rules Cr. order prohibiting SEC from providing Jus Proc. Rule 6(e), 18 U.S.C.A. tice Department with fruits of its civil dis- 5. Securities Regulation *=>86 covery.
Enforcing Securities and JC:xchange Affirmed. Commission subpoena issued in connection Edwards, Circuit Judge, concurred spe- with SEC investigation into use by corpora cially and filed opinion. · tion of funds to make ,;questionable foreign payments" would not breach allegcid agree
1. Federal Courts <8= 1150 men t of conridentiality where the SEC, Constitution does not ordinarily require throughout "voluntary disclosure program," stay of civil proceedings pending outcome reserved its rights to pursue formal investi of criminal proceedings; ·nevertheless, court gation and issue subpoenas. 26 U.S.C.A. may decide in its discretion to stay civil (I.R.C.1954) § 7602; Securities Exchange proceedings, postpone civil discovery, or im Act of 1934, § 21(a) as amended 15 U.S.C.A. pose protective orders and conditions when § 78u(a); Securities Act of 1983, § 19(b), 15 interests of justice seem to require such U.S.C.A. § 77s(b). action. U .S.C.A.Const. Amen:d. 5. 2. Administrative Law and Procedure 6. Federal Civil Procedure e::. 1272
*=341 Discovery may be available in some subpoena enforcement proceedings where ParalJel investigations by Justice De circumstances indicate that further infor partment and other agencies should not be mation is necessary for courts to discharge blocked in absence of "special circumstanc their duties; however, district court must es" in which nature of the proceedings de be cautious in granting such discovery monstrably prejudices substantial rights of right, lest they transform subpoena en investigated party or of government. U.S. forcement proceedings into exhaustive in C.A.Const. A~end. 5. quisitions into practices of regulatory agen 3. Securities Regulation OS=>86 cies; discovery should be permitted only Parallel investigation into alleged where respondent is able to distinguish him ''questionable foreign payments" conducted self from class of ordinary subjects of sub by grand jury under guidance of Justice poena. 26 U.S.C.A. (l.R.C.1954) § '7602; Se Department did not preclude Securities and curities Exchange Act of 1934, § 21(a) as *165 628 FEDERAL REPORTE~ 2d SERIES
Irvin B. Nathan, Deputy Asst. Atty. Gen., amended 15 U.S.C.A. § 78u(a); Securities Act of 1938, § 19(b), 15 U.S.C.A. § 77s(b). Washington, D. C., with whom Phillip B.
Heymann, Asst. Atty. Gen., Washington, D. 7. Securities Replation C1P86 C., and Stephen G. Milliken, Atty., Dept. of District court acted within its discre Justice, Providence, R. I., were on brief, for tion in denying corporation discovery in intervenor. SEC subpoena enforcement proceedings. 26 U.S.C.A. (1.R.C.1954) § 7602; Securities
Before WRIGHT, Chief Judge, and Exchange Act of 1934, § 21(a) as amended McGOWAN, TAMM, ROBINSON, Mac· 15 U.S.C.A. § 78u(a); Securities Act of
KINNON, ROBB, WILKEY, WALD,
1938, § 19(b), 15 U.S.C.A. § 77s(b). MIKVA, and EDWARDS, Circuit Judges. 8. Federal Civil Procedure e1=>316, 321 Applicant to intervene need only show Opinion for the court filed by Chief that representation of his interest may be Judge WRIGHT. inadequate; burden of proof rests on those resisting intervention. J. SKELLY WRIGHT, Chief Judge: 9. Securities Regulation e1=>86 Dresser Industries, Inc. (Dresser) appeals
Individual corporate officer was not en from a decision of the District Court [1] re quiring obedience to a subpoena duces te titled to intervene in proceedings in which order enforcing Securities and Exchange cum issued by the Securities and Exchange Commission subpoena issued was sought Commission (SEC) on April 21, 1978, and denying Dresser's motion to quash the sub where record established that the corpora tion adequately represented interests of its poena.2 The subpoena was issued in con nection with an SEC investigation into employees.
Dresser's use of corporate funds to make what are euphemistically called "question
Appeals from the United States District able foreign payments," and into the adequa Court for the District of Columbia (D.C. cy of Dresser's disclosures of such payments Miscellaneous No. 78-0141). under the securities laws. David R. MacDonald, Chicago, Ill., with The principal issue facing this en bane whom Francis D. Morrissey, Chicago, Ill., court is whether Dresser is entitled to spe and Edward E. Dyson, Washington, D. C., cial protection against this SEC subpoena were on brief, for appellant Dresser Indus because of a parallel investigation into the tries, Inc. same questionable foreign payments now Raymond G. Larroca, Herbert J. Miller, being conducted by a federal grand jury Jr., and Thomas B. Carr, Washington, D. C., under the guidance of the United States were on supplemental memorandum for ap Department of Justice (Justice). Dresser pellant Edward R. Luter. argues principally that the SEC subpoena Paul Gonson, Principal Associate Gen. abuses the civil discovery process of the Counsel, Securities and Exchange Commis SEC for the purpose of criminal discovery sion, Washington, D. C., with whom Ralph and infringes the role of the grand jury in C. Ferrara, Gen. Counsel, Michael K. Wol independently investigating allegations of ensky, Associate Gen. Counsel, and James criminal wrongdoing. On November 19, H. Schropp and John P. Sweeney, Asst. 1979 a panel of this court issued a decision Gen. Counsel, Securities and Exchange affirming the District Court but, with Commission, Washington, D. C., were on Judge Robb dissenting, attaching a condi brief, for appeJJee. tion prohibiting the SEC from providing I. Reported at 453 F.Supp. 573 (D.D.C.1978). der denying his motion to Intervene in the sub
poena enforcement proceeding. See text infra, 628 F.2d at 1384. 2. Jn No. 78-1705 Mr. Edward R. Luter, a senior vice president of Dresser, appeals from an or- *166 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1371
Cite as 828 F.2d 1388 (1980)
Justice with the information received from violations of the securities Jaws and estab Dresser under this subpoena. Because of lishing internal corporate procedures for in the importance of this issue to enforcement vestigation, disclosure, and prevention of of the regulatory laws of the United States, illegal corporate payments. However, the this court voted to vacate the panel opinions problem of questionable foreign payments and rehear the case en bane. proved so widespread that the SEC devised
a "Voluntary Disclosure Program" to en courage corporations to conduct investiga
I.
BACKGROUND tions of their past conduct and make appro A. Origin of the Investigations priate disclosures without direct SEC coer cion.5 Participation in the Voluntary Dis Illegal and questionable corporate pay closure Program would not insulate a corpo ments surfaced as a major public problem ration from an SEC enforcement action, but in late 1973, when several major scandals the Commission would be less likely to exer implicated prominent American corpora cise its discretion to initiate enforcement tions in improper use of corporate funds to actions against participants. 6 The most im influence government officials in the Unit portant elements of the Voluntary Disclo ed States and foreign countries. The expo sure Program were (1) an independent com sure of these activities disrupted public mittee of the corporation would conduct a faith in the integrity of our political system thorough investigation into q_µeutionable and eroded international trust in the legiti foreign and domestic payments made by the macy of American corporate operations corporation; (2) the committee would dis abroad. [3] SEC investigation revealed that close the results of this investigation to the many corporate officials were falsifying fi board of directors in full; (3) the corpora nancial records to shield questionable for tion would disclose the substance of the eign and domestic payments from exposure report to the public and the SEC on Form to the public and even, in many cases, to 8-K; and (4) the corporation would issue a corporate directors and accountants. Since policy statement prohibiting future ques the completeness and accuracy of corporate tionable and illegal payments and mainte financial reporting is the cornerstone of nance of false or incomplete records in con federal regulation of the securities markets, nection with thern. [7] Except in "egregious such falsification became a matter of grave cases" the SEC would not require that pub concern to the SEC.' lic disclosures include specific names, dates, Beginning in the spring of 1974 the SEC and places. Rather, the disclosures might brought a series of injunctive actions be "generic" in form. [8] Thus companies par against certain American corporations. It ticipating in the Voluntary Disclosure Pro obtained consent decrees prohibiting future gram would ordinarily be spared the conse- 3. The Senate Committee on Banking, Housing, recounted briefly in Report of the Securities
and Urban Affairs reported in May 1977: and Exchange Commission on Questionable and Illegal Corporate Payments and Practices, Recent investigations by the SEC have re vealed corrupt foreign payments by over 300 submitted to the Senate Committee on Bank U.S. companies involving hundreds of mil ing, Housing, and Urban Affairs, 94th Cong., 2d lions of dollars. These revelations have had Sess. (Comm.Print 1976), reprinted in CCH severe adverse effects. Foreign governments Federal Securities Law Reports, No. 642 (May friendly to the United States in Japan, Italy, 19, 1976) (hereinafter cited as Report). and the Netherlands have come under in tense pressure from their own people. The 5. The Voluntary Disclosure Program is describ image of American democracy abroad has
ed in id. at 8-13. been tarnished. Confidence in the financial integrity of our corporations has been im
6. Id. at 8 n.7. paired. The efficient functioning of our capi tal markets has been hampered.
7. See id. at 8-10. S.Rep.No. 114, 95th Cong., !st Sess. 3 (1977). 4. The history of the SEC's involvement with 8. Id. at 32. questionable and illegal foreign payments is 628F.2d-31 *167 628 FEDERAL REPORTER, 2d SERIES quences to their employees, property, and examination of its documents, but the staff business that might result from public dis did not agree. [13] Instead, it issued a recom closure of specific instances of foreign brib mendation to the Commission for a formal ery or kickbacks. However, companies par order of investigation in the Dresser case. ticipating in the Voluntary Disclosure Pro
This recommendation was predicated on the gram had to agree to grant SEC requests staff's conclusions that Dresser: for access to the final report and to the 1. may have used corporate funds for unexpurgated underlying documentations. [9] non-eorporate purposes; 2. may have made false and misleading B. The Dresser Investigations statements concerning the existence On January 27, 1976 an attorney and of and circumstances surrounding other representatives of Dresser met with material obligations of Dresser to cer members of the SEC staff to discuss a tain foreign governments and to oth proposed filing. At the meeting Dresser er entities; and agreed to conduct an internal inquiry into questionable foreign payments, in accord 3. may have made false entries and ance with the terms of the Voluntary Dis caused false entries to be made upon closure Program. [10] The next day Dresser the books and records of Dresser, and submitted a Form 8-K describing, in gener its affiliates and subsidiaries with re ic terms, one questionable foreign payment.
spect to, among other things, pay Joint Appendix (JA) 10<>-102. On Novem ments to foreign government offi ber 11, 1976 Dresser filed a second Form cials. 8-K reporting the results of the internal JA 7-8 (order directing private investiga investigation. JA 103-108. On February tion and designating officers to take testi 10, 1977 the company supplemented this mony). Moreover, the staff reported that report with a third Form 8-K concerning a Dresser's proxy soliciting materials, reports, questionable payment not reported in the and statements may have been misleading earlier reports. JA 109-113. The reports with respect to the potential risks involved concerned Dresser's foreign activities after in its conduct of business through question November 1, 1973. All disclosures were in able foreign payments, and may have in generic, not specific, terms. cluded false statements in connection with As part of its general monitoring pro such payments. JA 8. Dresser vigorously gram the SEC staff requested access to the opposed issuance of an order of investiga documents underlying Dresser's report. On tion. H July 15, 1977 Dresser refused to grant such Meanwhile, the Department of Justice access. The company argued that allowing had established a task force on transnation the staff to make notes or copies might al payments to investigate possible criminal subject its documents to public disclosure violations arising from illegal foreign pay through the Freedom of Information Act.u ments. Two SEC attorneys participated in Dresser stated that such disclosure could the task force. In the summer of 1977 the endanger certain of its employees working abroad. [12] During the ensuing discussions Justice task force requested access to SEC with the staff Dresser attempted to impose files on the approximately 400 companies, conditions of confidentiality upon any SEC including Dresser, that had participated in 9. Id. at 9 n.8. 13. The staff offered to give Dresser 10 days
notice before releasing any Dresser documents 10. The meeting is described by Mr. W. Lyall to the public, to enable the company to chal· Milde in a deposition reprinted in Joint Appen· lenge such release in court. JA 12. dix (JA) 64--66. 14. See JA 77 et seq.
11. JA 71-76.
12. JA 74.
*168 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1373
Cileas828F.2d 1368 (1980)
the Voluntary Disclosure Program. [16] Pur the SEC. Judge Coleman also obtained a suant to Commission authorization the SEC stipulation from Justice that Justice would staff transmitted all such files to the J us not require Dresser .or its agents to appear tice task force in August 1977.' 6 After its before the grand jury until after the Com preliminary investigation of the Form 8- pany had filed a motion to quash the grand K's submitted by Dresser under the Volun
jury subpoena in the District of Columbia tary Disclosure Program, Justice presented and had received a ruling on such motion. Dresser's case to a grand jury in the Dis On May 8, 1978 Dresser filed a motion to trict of Columbia on January 25, 1978. quash the grand jury subpoena in the Dis Before any summons or subpoena had trict Court for the District of Columbia. issued in either the SEC or the grand jury On May 19 the District Court (Parker, J.) investigation, Dresser filed suit in the denied Dresser's motion to quash, but im Southern District of Texas against the SEC posed a protective order requiring strict and Justice to enjoin any further investiga confidentiality in accordance with Rule 6(e) tion of it by either agency. [17] While Dress of the Federal Rules of Criminal Procedure. er's suit was pending in the Southern Dis In imposing the protective order the court trict of Texas, the District of Columbia stated that the "concern of DrEisser and grand jury subpoenaed Dresser's documents especially its employees is not illusory and on April 21, 1978. At roughly the same should not be lightly considered." See JA time the SEC issued a formal order of pri 163. This was in reference to Dresser's vate investigation, authorizing the staff to argument that public disclosures of the subpoena the documents and to obtain other names, places, and dates connected with its relevant evidence. JA 7-9 (April 11, 1978). questionable foreign payments could endan Pursuant to that order the staff issued a ger the lives of its employees in certain subpoena duces tecum, returnable on May 4, turbulent foreign countries. Dres!ler there 1978. JA 14-16 (April 21, 1978). This sub after complied with this grand jury subpoe poena covered substantially the same docu~ na. ments and materials subpoenaed by the On May 26, 1978 the Southern District of grand jury, and more. Dresser did not re Texas dismissed Dresser's action against the spond to the subpoena. [18]
SEC without reaching the merits. Dresser On May 1, 1978 the District Court in appealed to the Fifth Circuit and on June 8 Houston, Texas dismissed Dresser's suit obtained an order from the court that: against Justice without opinion. Three Until the appeal in this case shaJI have days later, after the period for compliance been decided in this court, and except for with its subpoena had lapsed, the SEC ap proceedings before the Grand Jury in the plied to the District Court for the District District of Columbia, the Securities and of Columbia for enforcement. In the mean time, Dresser had appealed the adverse Exchange Commission, its officers and employees, are enjoined to preserve invio judgment in the Texas action to the Fifth Circuit, and sought interim relief. On May late the confidentiality of any informa tion obtained by the subpoena here in 5 Judge Coleman of the Fifth Circuit en joined further prosecution of the SEC sub issue. This order is not intended to inter fere with pending proceedings in the Dis poena enforcement action until after the District Court for the Southern District of trict of Columbia to enforce the SEC Texas had ruled on Dresser's action against subpoenas. 18. The procedural history of this case is re 15. JA 295-296 (statement by Marvin G. Pick-
holz). counted in Dresser's motion to quash the SEC subpoena, JA 160-163. 16. Id. 17. Dresser Industries, Inc. v. United States,
Civil Action No. H-78-405 (S.D.Tex.). *169 628 FEDERAL REPORTER, 2d SERIES II. GENERAL PRINCIPLES JA 202. On June 2, 1978 the District Court for the District of Columbia issued an order
A. Parallel Investigations to Dresser to show cause why it should not be required to appear, give testimony, and
The civil and regulatory laws of the Unit produce records in obedience to the SEC ed States frequently overlap with the crimi subpoena. JA 141. On June 7 Dresser nal laws, creating the possibility of parallel filed a motion for leave to obtain discovery civil and criminal proceedings, either suc from the SEC concerning the agency's al~ cessive or simultaneous. [19] In the absence of leged bad faith and attempted abuse of the substantial prejudice to the rights of the judicial process, JA 27, and on June 13 filed parties involved, such parallel pro.ceedings a motion to quash the SEC subpoena. JA are unobjectionable under our jurispru 160. dence. As Jong ago as 1912 the Supreme The District Court (Flannery, J.) denied Court recognized that under one statutory Dresser's motion to compel discovery on scheme-that of the Sherman Act-a trans June 16, without opinion. Judge Flannery action or course of conduct could give rise explained in court that he had carefully to both criminal proceedings and civil suits. examined the papers filed by Dresser, that Standard Sanitary Manufacturing Co. v. discovery is rarely necessary in subpoena United States, 226 U.S. 20, 52, 33 S.Ct. 9, 16, enforcement cases, and that he did not 57 L.Ed. 107 (1912). The Court held that think this was an appropriate case for it. the government could initiate such proceed JA 256. Then, on June 30, 1978, the Dis ings either "simultaneously or successively,'' trict Court (Flannery, J .) issued a memoran with discretion in the courts to prevent dum opinion and order rejecting all of injury in particular cases. Id. It ex Dresser's objections to the SEC subpoena plained: and requiring Dresser to comply with the The Sherman Act provides for a criminal subpoena within ten days after notice from proceeding to punish violations and suits the SEC. JA 301, reported at 453 F.Supp. in equity to restrain such violations, and 573 (D.D.C.1978). Rehearing was denied on the suits may be brought simultaneously July 15. This appeal followed. or successively. The order of their bring Meanwhile, the United States Court of ing must depend upon the Government; Appeals for the Fifth Circuit affirmed the the dependence of their trials cannot be decisions of the District Court for the fixed by a hard and fast rule or made Southern District of Texas dismissing imperatively to turn upon the character Dresser's actions against Justice . and the of the suit. Circumstances may deter SEC in that court, largely on ripeness mine and are for the consideration of the grounds. Dresser Industries, Inc. v. United court. An imperative rule that the civil States, 596 F.2d 1231 (5th Cir. 1979), cert. suit must await the trial of the criminal denied, 444 U.S. 1044, 100 S.Ct. 731, 62 action might result in injustice or take L.Ed.2d 730 (1980). Accordingly, the inter from the statute a great deal of its pow locutory injunction requiring the SEC to er. • • • preserve inviolate the confidentiality of Dresser's materials pending a decision on Id. appeal was dissolved.
The Supreme Court returned to this Having set forth the complicated proce theme in United States v. Kordel, 397 U.S. dural history of this case, we turn now to 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). In that the principles that govern parallel adminis case the Food and Drug Administration trative and criminal proceedings ·concerning (FDA) investigated a company and certain the same conduct. of its officers in connection with possible 19. See generally Note, Concurrent Civil and
Criminal Proceedings, 67 Colum.L.Rev. 1277 (1967).
*170 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 628 fo'.2d 1368 (1980) violations of the Federal Food, Drug, and ceedings were unconstitutional or improper. Cosmetic Act, 21 U.S.C. § 301 et seq. Early Id. In the absence of such "special circum in the investigation the FDA recommended stances" the Court recognized that· prompt and the United States Attorney filed an in investigation of both civil and criminal rem action in federal district court seeking claims can be necessary to the public inter civil seizure of certain products. In connec- est. It said: tion with this suit the FDA filed extensive
The public interest in protecting consum interrogatories with the company. Before ers throughout the Nation from mis the company had responded the FDA noti br~nded drugs requires prompt action by fied it that the agency was contemplating a the agency charged with responsibility criminal proceeding against it in connection for administration of the federal food and with the same alleged violations of the stat drug laws. But a rational decision ute. The company therefore moved to stay whether to proceed criminally against civil proceedings or, in the alternative, to those responsible for the misbranding extend the time for answering the interrog may have to await consideration of a atories until after disposition of the crimi fuller record than that before the agency nal proceedings. The District Court denied at the time of the civil seizure of the this motion. Thereafter, but still before offending products. It would stultify en the company had filed its answers to the forcement of federal law to require a interrogatories, the regional and divisional governmental agency such a.s the FDA offices of the FDA formally recommended invariably to choose either to forgo rec criminal prosecution to the General Counsel. ommendation of a criminal prosecution After it received the answers, the Depart once it seeks civil relief, or to defer civil ment of Health, Education, and Welfare proceedings pending the ultimate out formally recommended criminal prosecution come of a criminal trial. to the Justice Department. Justice obtain Id. at 11, 90 S.Ct. at 769 (footnote omitted). ed an indictment, and subsequently convic [l] The Constitution, therefore, does not tions. The case reached the Supreme Court ordinarily require a stay of civil proceedings upon appeal of the convictions of several of the company's officeru. pending the outcome of criminal proceed
ings. See Baxter v. Palmigiano, 425 U.S. The officers in Kordel argued that use of 308, 98 S.Ct. 1551, 47 L.Ed.2d 810 (1976); the civil discovery process to compel an De Vita v. Sills, 422 F.2d 1172, 1181 (3d Cir. swers to interrogatories that could be used 1970). Nevertheless, a court may decide in to build the government's case in a parallel its discretion to stay civil proceedings, post criminal proceeding "reflected such unfair pone civil discovery, or impose protective ness and want of consideration for justice" orders and conditions "when the interests of as to require reversal. 397 U.S. at 11, 90 justice seem[] to require such action, some S.Ct. at 769. The Supreme Court did not times at the request of the prosecution, agree. The Court noted that the govern • • • sometimes at the request of the ment had not brought the civil action "sole defense[.]" United States v. Kordel, supra, ly to obtain evidence for its criminal prose 397 U.S. at 12 n.27, 90 S.Ct. at 770 (citations cution," id. at 11-12,. 90 S.Ct. at 769, or omitted); see Horne Brothers, Inc. v. Laird, without notice to the defendants that it 463 F.2d 1268, 1271-1272 (D.C.Cir.1972). contemplated a criminal action, id. at 12, 90 The court must make such determinations S.Ct. at 769. Moreover, the defendant was in the light of the particular circumstances not unrepresented by counsel, id., and had of the case. no reason to fear "prejudice from adverse pretrial publicity or other unfair injury," id. Other than where there is specific evi Nor were there any other "special circum dence of agency bad faith or malicious gov stances" suggesting that the parallel pro- ernmental tactics, the strongest case for
628 FEDERAL REPORTER, 2d SERIES
*171 B. SEC Investigations deferring civil proceedings until after com pletion of criminal proceedings is where a
The case at bar concerns enforcement of party under indictmetit for a serious of the securities laws of the United States, fense is required to defend a civil or admin especially the Securities Act of 1933 ('33 istrative action involving the same matter. Act), 48 StaL 74, 15 U.S.C. § 77a et seq. The noncriminal proceeding, if not deferred, (1976), and the Securities Exchange Act of
1934 ('34 Act), 48 Stat. 881, 15 U.S.C. § 78a might undermine the party's Fifth Amend et seq. (1976). These statutes explicitly em· ment privilege against self-incrimination, power the SEC to investigate possible in~ expand rights of criminal discovery beyond fractions of the securities laws with a view the limits of Federal Rule of Criminal Pro to both civil and criminal enforcement, and cedure 16(b), expose the basis of the defense to transmit the fruits of its investigations to the prosecution in advance of criminal to Justice in the event of potential criminal trial, or otherwise prejudice the case.• If proceedings. The '84 Act provides in rele delay of the noncriminal proceeding would vant part: "The Commission may, in its not seriously injure the public interest, a discretion, make such investigations as it court may be justified in deferring it. See, deems necessary to determine whether any e.g., United States v. Henry, 491 F.2d 702 person has violated, is violating, or is about (6th Cir. 1974}; Texaco, Inc. v. Borda, 383 to violate any provision of this chapter[.]" F.2d 607, 608-609 (3d Cir. 1967); Silver v. Section 2l(a) of the '84 Act, 15 U.S.C. McCamey, 221 F.2d 878, 874-875 (D.C.Cir. § 78u(a) (1976). This investigative authori 1955). 21 Such cases have frequently arisen
ty includes the power to administer oaths in the tax field, following the leading case and affirmations, subpoena witnesses, take evidence, and require production of any of United States v. O'Connor, 118 F.Supp.
books, papers, correspondence, memoranda, 248 (D.Mass.1953). Cf. Boren v. Tucker, 239 or other records which the SEC deems rele F.2d 767, 772-773 (9th Cir. 1956) (distin vant or material. Id., Section 21(b), 15 guishing IRS summons enforcement before U.S.C. § 78u(b). If it determines that a and after indictment). In some such cases, person "is engaged or is about to engage in however, the courts may adequately protect acts or practices constituting a violation" of the government and the private party by the Act, the SEC may bring an action in merely deferring civil discovery or entering federal district court to enjoin such acts or an appropriate protective order. Gordon v. practices. Id., Section 21(d), 15 U.S.C. FDIC, 427 F.2d 578, 580-581 (D.C.Cir.1970). § 78u(d). Under the same subsection of The case at bar is a far weaker one for the '34 Act the SEC may "transmit such staying the administrative investigation. evidence as may be available concerning No indictment has been returned; no Fifth such acts or practices • • • to the At Amendment privilege is threatened; Rule torney General, who may, in his discretion, 16(b) has not come into effect; and the SEC institute the necessary criminal proceedings subpoena does not require Dresser to reveal under this chapter." Id. The '33 Act is to the basis for its defense. similar effect. See Sections 19(b), 20(a), (b) 20. In some cases the government seeks post text, cases decided since Silver have estab
ponement of the noncriminal proceeding, to lished that, as a general matter, due process is prevent the criminal defendant from broaden not infringed merely because an accused per ing his rights of criminal discovery against the son is subjected, without his consent, to an government. E.g., Campbell v. E11stland, 307 administrative hearing concerning matters in f.2d 478 (5th Cir. 1962), cert. denied, 371 U.S.
volved in a pending criminal proceeding. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). Nevertheless, as Silver recognized and more recent cases have affirmed, such an administra 21. Silver v. McCamey, 221 F.2d 873 (0.C.Cir. tive proceeding can in some circumstances 1955). held that "due process is not observed if prejudice the rights of a citizen or the govern an accused person is subjected, without his ment. In such cases the agencies and courts consent, to an administrative hearing on a seri
may have a duty to take appropriate corrective ous criminal charge that is pending against action. him." Id. at 874-875. As we have noted in *172 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Clle as 628 F.2d 1368 (1980) U.S. 917, 99 S.Ct. 2838, 61 L.Ed.~ 284 of the '33 Act, 15 U.S.C. §§ 77s(b), 77t(a), (b) (1976). [22] (1979). The SEC cannot always wait for
Justice to complete the criminal proceedings [2] Effective enforcement of the securi· if it is to obtain the necessary prompt civil ties laws requires that the SEC and Justice remedy; neither can Justice a1ways await be able to investigate possible violations the conclusion of the civil proceeding with simultaneously. Dissemination of false or out endangering its criminal case. Thus we misleading information by companies to should not block parallel investigations by members of the investing public may distort these agencies in the absence of "special the efficient workings of the securities mar circumstances" in which the nature of the kets and injure investors who rely on the proceedings demonstrably prejudices sub accuracy and completeness of the compa stantial rights of the investigated party or ny's public disclosures. If the SEC suspects of the government. See United States v. that a company has violated the securities Kordel, supra, 397 U.S. at 11-13, 90 S.Ct. at la~s, it must be able to respond quickly: it 769- 770. must be able to obtain relevant information concerning the alleged violation and to seek
III. APPLICABILITY OI~ prompt judicial redress if necessary. Simi United States v. LaSalle Nat'/ Bank larly, Justice must act quickly if it suspects that the laws have been broken. Grand [3] Dresser principally relies on an anal ogy to United States v. LaSalle Nnt'J Bank, jury investigations take time, as do criminal prosecutions. If Justice moves too slowly 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), 23 in which the Supreme Court said in the statute of limitations m~y run, witness es may die or move away, memories may dictum that the Internal Revenue Service (IRS) may not use its summons authority to fade, or enforcement resources may be di verted. See United States v. Fields, 592 investigate possible violations of the tax laws after it 11as referred those violations to F.2d 688, 646 (2d Cir. 1978), cert. denied, 442 22. Sections 20(a) and 19(b) of the '33 Act pro Whenever it shall appear to the Commis
vide the basis for the SEC's investigative au sion that any person is engaged or about to thority: engage in any acts or practices which consti
tute or will constitute a violation of the provi Whenever it shall appear to the Commis sions of this subchapter, or of any rule or sion, either upon complaint or otherwise, regulation prescribed under authority there that the provisions of this subchapter, or of of, it may[,) in its discretion, bring an action any rule or regulation prescribed under au in any district court of the United States or thority thereof, have been or are about to be United States court of any Territory, to en violated, it may, in its discretion, either re join such acts or practices, and upon a prop quire or permit such person to file with it a er showing a permanent or temporary injunc statement in writing, under oath, or other tion or restraining order shall be granted wise, as to all the facts and circumstances without bond. The Conunission may trans concerning the subject matter which it be lieves to be in the public interest to investi mit such evidence as may be available con gate, and may investigate such facts. cerning such acts or practices to the Attor
Section 20(a) of the '33 Act, 15 U.S.C. § 77t(a) ney General who may, in his discrelion, insti (1976). tute the necessary criminal proceedings un·
For the purpose of all investigations which, der this subchapter. • • * in the opinion of the Commission, are neces Id. § 20(b). 15 U.S.C. § 77t(b). sary and proper for the enforcement of this subchapter, any member of the Commission 23. Dresser's other arguments, in summary, are or any officer or officers designated by it are (!) that the SEC subpoena breached an en empowered to administer oaths and affirma forceable agreement of confidentiality with tions, subpena witnesses, take evidence, and Dresser; (2) Dresser was erroneously denied require the production of any books, papers, certain discovery rights; and (3) enforcement or other documents which the Commission of the subpoena might violate Dresser's attor deems relevant or material to the inquiry. ney-client privilege. See brief of respondent * • ,.
appellant at 11-12. These arguments are dis Id. § 19(b), 15 U.S.C. § 77s(b). From § 20(b) cussed in Part V infra. derives the authority to initiate civil injunctive actions and to transmit evidence to Justice: *173 628 FEDERAL REPORTER, 2d SERIES tice initiates a criminal investigation by the
Justice for criminal prosecution. See id. at 311-813, 98 S.Ct. at 2365. 24 Dresser argues grand jury. [25] that the SEC's transmittal of Dresser's file
The IRS summons authority derives from to Justice was equivalent to a "referral" Section 7602 of the Internal Revenue Code, under LaSalle, and thus that the SEC's 26 U.S.C. § 7602 (1976). Its authority is power to enforce investigative subpoenas restricted to the terms and purposes of that against Dresser in connection with that file provision. The Supreme Court said in La lapsed at that time. Alternatively, Dresser Salle: suggests that, even if transmittal of the file In § 7602 Congress has bestowed upon was not analogous to a "referral" under the Service the authority to summon pro LaSalle, initiation of the grand jury investi gation precluded subsequent enforcement duction for four purposes only: for "as of SEC investigative subpoenas into the certaining the correctness of any return, same matters. making a return where none has been
made, determining the liability of any These two alternatives are vulnerable to "person for any internal revenue tax . the same objection: the LaSalle rule applies or collecting any such liability." Con solely to the statutory scheme of the Inter gress therefore intended the summons nal Revenue Code, in which the IRS's civil
authority to be used to aid the determina authority ceases for all pr~ctical purposes upon referral of a taxpayer's case to J us tion and collection of taxes. These pur tice; it does not apply to the securities poses do not include the goal of filing laws, in which the SEC's civil enforcement criminal charges against citizens. • • authority continues undiminished after Jus- 24. This portion of LaSalle is properly charac son Court, "would thwart and defeat the appro
terized as dictum, because the controversy con priate investigatory powers that the Congress cerned investigation of a taxpayer prior to re has placed In 'the Secretary or his delegate.' " ferral to Justice. The Court held that a taxpay 400 U.S. at 533, 9 1 S.Ct. at 544. Nevertheless, er challenging an IRS summons prior to such
after a detailed discussion of the enforcement referral bea rs the heavy burden of showing that scheme of the Internal Revenue Code, the the summons was issued In "bad faith," 437 Court reiterated the rule in modified form: in U.S. at 316, 98 S.Ct. at 2367, which the Court stead of prohibiting enforcement of an IRS interpreted as being "solely [for) criminal pur summons if there is a pending criminal charge, poses." Id. The Supreme Court has never the Court prohibited such enforcement if there decided a case concerning an IRS summons had been a referral to Justice for criminal pros issued after referral to Justice but before indict ecution. Compare 400 U.S. at 533, 91 S.Ct. at ment. See note 25 Infra. 543, with id. at 536, 91 S.Ct. at 545. Obviously, the difference between these two formulations 25. The LaSalle rule-prohibiting enforcement is substantial. The Court did not explicitly of an IRS summons after the IRS had referred state why it shifted from the one to the other, the case to Justice for criminal prosecution derives from Donaldson v. United States, 400 but the best available explanation lies in its U.S. 517, 91 S.Ct. 534, 27 L.Ed. 580 (1971). ln discussion of the statutory scheme, which ap Donaldson the Court said: pears between the two conflicting statements
We hold that under § 7602 [of the Internal of the rule. In LaSalle Justice Blackmun, who Revenue Code, 26 U.S.C. § 7602 (1970)] an also wrote the opinion for the Court in Donald internal revenue summons may be issued in son, explained that the decision in Donaldson aid of an investigation if it is issued in good
was not predicated on its analysis of precedent. faith and prior to a recommendation for crim United States v. LaSalle Nat'I Bank, 437 U.S. inal prosecution. 298, 307, 98 S.Ct. 2357, .2362, 57 L.Ed.2d 221 Id. at 536, 91 S.Ct. at 545. The Donaldson (1978). Rather, the decision relied on its re Court recognized that under prior precedent view of the statutory scheme. Id. "The validi the limitation on the IRS summons authority ty of the summonses depended ultimately on came into effect only in " the situation of a whether they were among those authorized by pending criminal charge or, at most, of an in Congress," the Justice said. Id. This empha vestigation solely for criminal purposes." Id. sizes that the rule espoused In LaSalle and at 533, 91 S.Ct. at 544 (emphasis added). See Donaldson is not based on principles generally Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. applicable to parallel civil and criminal pro 508, 513, I I L.Ed.2d 459 (1964) (citing Boren v. ceedings, but on limitations unique to the IRS. Tucker, 239 F.2d 767, 772-773 (9th Cir. 1956)). "Any other holding," according to the Donald-
*174 ,. SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1379
Clteas 628 F.2d 1368 (1980)
United States v. LaSalle Nat'/ Bank, supra, cy interests," id. at 313, 98 S.Ct. at 2365. 437 U.S. at 316--317 n.18, 98 S.Ct. at 2367 These interests are to avoid broadening the n.18 (first ellipsis in original). Justice Department's right of criminal liti
gation discovery and to avoid infringing on In the pre-referral stage of an IRS inves the role of the grand jury as a principal tool tigation the civil and criminal elements of of criminal accusation. Id. at 312, 98 S.Ct. the investigation are intertwined. Id. at at 2365., 308-311, 98 S.Ct. at 2363-2364. The same information is useful in negotiating with Dresser asks this court to extend the rea the taxpayer, in suing in court for addition soning of La.Sa.Jle to govern the conduct of al taxes, or in deciding whether to recom the SEC under the securities laws. But mend criminal prosecution. Thus the IRS IRS investigative and enforcement proceed at that stage is empowered to issue investi ings are not analogous to those of the SEC. gative summonses under Section 7602, even The language of the securities laws and the though the fruits of such summonses may
nature of the SEC's civil enforcement re be useful for the illegitimate purpose of sponsibilities require that the SE:C retain "filing criminal charges against citizens" as
full powers of investigation and civil en well as the legitimate purposes of determin forcement action, even after Justice has ing and collecting taxes.
begun a criminal investigation into the same alleged violations. However, upon referral of the case to Justice with a recommendation for criminal The investigative provisions of the securi prosecution, "the criminal and civil aspects ties laws are far broader than Section 7602 of a tax fraud case begin to diverge." Id. of the Internal Revenue Code, as interpret at 311, 98 S.Ct. at 2365. After that point ed in LaSalle. See SEC v. Arthur Young & the IRS loses its ability to compromise the Co., 584 F.2d 1018, 1022-1024 (D.C.Cir.1978), case, either criminally or civilly. All such cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 authority devolves upon Justice. Id. at 312, L.Ed.2<l 37 (1979). SEC investigations are 98 S.Ct. at 2365. Although theoretically the not confined to "four purposes only." Cf. IRS might use its summons power during United States v. LaSalie Nat'! Ba11k, supra, the pendency of the criminal proceeding to 437 U.S. at 316 n.18, 98 S.Ct. at 2367 n.18. ~iscover information for the purpose of a Rather, the SEC may, "in its discretion, future civil tax suit, id. at 311-312, 98 S.Ct. make such investigations as it deems neces at 2364-2365, in practice the IRS holds all sary to determine whether any person has civil action in abeyance until the criminal violated, is violating, or is about to violate proceeding is completed. 26 Only then doeg any provision" of the '34 Act, Section 2l{a) the IRS turn itS attention again to the civil of the '34 Act, 15 U.S.C. § 78u(a) (1976) aspects of the case. (emphasis added). Moreover, the SEC is • * * to "authorized in its discretion Thus, in the LaSalle Court's view, the authorized purposes for summonses under investigate any facts, conditions, practices, or matters which it may deem necessary or Section 7602 cease as a practical matter during the pendency of the criminal pro proper to aid in the enforcement of such ceeding. Because of this the Court was provisions, in the prescribing of mies and willing to impose a "prophylactic" rule flat regulations under this chapter, or in secur ly forbidding any use of the Section 7602 ing information to serve as a basis for rec authority once a case has been referred to ommending further legislation concerning Justice for criminal prosecution. Id. at 312, matters to which this chapter relates." Id. 98 S.Ct. at 2365. This rule restricts the IRS (emphasis added). See also Section 19(b) of within the confines of its statutory authori~ the '33 Act, 15 U.S.C. § 77s(b) (19'76). Giv ty and also "safeguards • * * two poli- en this broad statutory mandate, there is IRS, Civil Considerations in Pending Criminal 26. See Policies of the IRS Handbook, P-4-84,
reprinted in l CCH Internal Revenue Manual Matters, Order No. 3050.J (March 23, 1978). 1305-1310 (1978); Office of the Chief Counsel, *175 628 FEDERAL REPORTER, 2d SERIES criminal investigation. For the SEC to stay
virtuaJiy no possibility that in issuing this subpoena the SEC was acting ultra vires. its hand might well defeat its purpose. The investigation of Dresser-'-based as it
Dresser attempts to prevent enforcement was on the staff's conclusion that Dresser of this subpoena by invoking the "policy may have engaged in conduct seriously con interests" identified by the LaSalle Court: laws [27] -.:...falls travening the securities to avoid broadening Justice's right of crimi squarely within the Commission's explicit nal litigation discovery and to avoid infring investigatory authority.28 Unlike the Inter ing the role of the grand jury as a principal nal Revenue Code as interpreted in LaSalle, tool of criminal accusation. Brief of re the securities laws offer no suggestion that spondent-appellant at 21-23; supplemental the scope of the SEC's investigative author brief of appellant Dresser Industries, Inc. at ity shrinks when a grand jury begins to 10-21; see United States v. LaSalle Nat'/ investigate the same matters. Since the Bank, supra, 437 U.S. at 312, 98 S.Ct. at validity of summonses or subpoenas "de 2365. We reject this argument for two pend[s] ultimately on whether they were reasons. among those authorized by Congress,'' Unit ed States v. LaSalle Nat') Bank, supra, 437 First, Dresser disregards the context in U.S. at 307, 98 S.Ct. at 2362, we conclude which these "policy interests" arose in La that this subpoena is enforceable under the Salle. Only after the Court had determined rule of that case. [29] that the IRS had no practical authorized
purpose for issuing a summons after refer Fulfillment of the SEC's civil enforce ral of a case to Justice did it direct its ment responsibilities requires this conclu attention to these "policy interests." Then sion. Unlike the IRS, which can postpone it did so solely to explain its imposition of a collection of taxes for the duration of paral "prophylactic" rule forbidding any use of lel criminal proceedings without seriously the IRS summons authority after referral injuring the public, the SEC must often act to Justice, as opposed to forbidding only quickly, lest the false or incomplete state such uses as are unrelated to the purposes ments of corporations mislead investors and of Section 7602. [30] The Court did not impose infect the markets. Thus the Commission must be able to investigate possible securi such a "prophylactic" rule in any situation ties infractions and undertake civil enforce where it would significantly restrict the ment actions even after Justice has begun a legitimate investigative authority of the 27. See text at note 14 supra. legitimate purpose and the inquiry is relevant
to that purpose." 453 F.Supp. at 576. 28. Dresset argued unsuccessfully in the Dis· trict Court that the SEC had exceeded its au 29. Cf. SEC v. OKC Corp., 474 F.Supp. 1031, thority by issuing the subpoena where there 1038 (N.D.Tex.1979) (SEC subpoena enforced was no likelihood that a violation had been or although Department of Energy had made was about to be committed. 453 F.Supp. at criminal reference to Justice In related matter). 575. On appeal Dresser makes this argument only obliquely, in the form of an objection to 30. See United States v. LaSalle Nat'/ Bank, the denial of discovery. Brief of respondent supra note 25, 437 U.S. at 311-312, 98 S.Ct. at appellant at 39-42. In any event, the argument 2365: is without merit. Our task is merely to ensure
We recognize, of course, that even upon rec that "the inquiry is within the authority of the ommendation to the Justice Department, the agency, the demand is not too indefinite and civil and criminal elements do not separate the information sought is reasonably relevant." completely. The Government does not sacri SEC v. Arthur Young & Co., 584 F.2d 1018, fice its interest In unpaid taxes just because a 1024 (D.C.Cir. 1978), cert. denied, 439 U.S. criminal prosecution begins. Logically, then, 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979) (quot the IRS could use its summons authority un ing United States v. Morton Salt Co., 338 U.S. der § 7602 to uncover information about the 632, 652-653, 70 S.Ct. 357, 368-369, 94 L.Ed. tax liability created by a fraud regardless of 401 (1950)); see also SEC v. Howatt, 525 F.2d the status of the criminal case. But the rule 226, 229 (1st Cir. 1975). We agree with the forbidding such is a prophylactic intended to District Court that "(t)hls investigation has a safeguard the following policy interests.
*176 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 628 F .2d 1368 ( 1980) IRS. [31] In the case of an SEC investigation indictment. Until then there is no danger there is no call for a "prophylactic rule," that Justice might broaden its discovery and thus no need to ponder the import of rights, because the subpoena power of the grand jury is as broad as-perhaps broader these "policy interests," because the SEC's authority to issue the subpoena remains un than-that of the SEC. Justice can procure diminished after the start of a grand jury from Dresser directly whatever materials it might procure indirectly through the SEC. 33 investigation.
In fact, a party investigated under SEC Second, the "policy interests" of LaSalle rules instead of grand jury procedures is have little practical significance in this con accorded far greater procedural protection, text. The first-to avoid broadening Jus and has no cause to complain. See 17 tice's right to criminal discovery-is flatly C.F.R. §§ 203.6-203.7 (1979).34 inapplicable, as Dresser admits. [32] The strict limitations on discovery in criminal In its brief Dresser has concentrated upon the second "policy interest" identified cases, embodied in Federal Rules of Crimi in LaSalle : avoiding infringement upon nal Procedure 15-17, do not take effect the role of the grand jury. Dresser sug- until after a grand jury has returned an 31. The LaSalle Court underscored, in a fool· upon written request, to procure a copy of
note, its belief that a "prophylactic" rule need his documentary evidence or a transcript of not be imposed in every circumstance present his testimony on payment of the appropriate ing the potentiality for infringement of the fees: Provided, however, That in a nonpublic grand jury's role or broadening of Justice's formal investigative proceeding the Commis right to criminal discovery. The Court disap sion may for good cause deny such request. proved the position adopted by the Third Cir In any event, any witness, upon proper iden cuit in United States v. Latko, 520 F.2d 622, tification, shall have the right to inspect the 625 (3d Cir. 1975), which it characterized as official transcript of the witness' own testi holding that the IRS summons authority must mony. cease at the point when the special agent rec
§ 203. 7 Rights of witnesses. ommends prosecution to the district office, (a) Any person who is compelled or re rather than at the point when the IRS recom quested to furnish documentary evidence or mends prosecution to Justice. 437 U.S. at 313 testimony at a formal investigative proceed n.15, 98 S.Ct. at 2365 n.15. The Supreme ing shall upon request be shown the Commis Court admitted that "the potential for expand sion's order of investigation. • • * ing the criminal discovery rights of the Justice
(b) Any person compelled to appear, or Department or for the usurping the role of the who appears by request or permission of the grand jury exists at the point of the recommen· Commission, in person at a formal Investiga dation by the special agent." Id. But it called tive proceeding may be accompanied, repre the possibilities of abuse "remote," id., and sented and advised by counsel • * •. stated that they "do not justify imposing an (c) The right to be accompanied, represent absolute ban on the use of the summons before ed and advised by counsel shall mean the that point." Id. right of a person testifying to have an attor ney prescnL wllh him during any formal in
32. Supplemental brief of appellant Dresser In· vesllgative proceeding and to have this attor dustries, Inc. at 19 n.16. ney (I) advise such person before, during and 33. See Developments in the Law-Corporate nflcr the conclusion of such examination, (2) Crime: Regulating Behavior Through Criminal question such person briefly at the conclu Sanctions, 92 Harv.L.Rev. 1227, 1312-13"13
sion of the examination to clarify any of the (1979). Obtaining .the approval of the grand answers such person has given, and (3) make jury itself is not a serious impediment to Jus summary notes during such examination tice's efforts; indeed, the common practice is solely for the use of such person. for grand jury subpoenas to be issued in blank, (d) Unless otherwise ordered by the Com with the contents to be filled in by the prosecu mission, in any public formal investigative tor. See In re Grand Jury Proceedings, 486 proceeding, if the record shall contain impli F.2d 85, 87 (3d Cir. 1973). cations of wrongdoing by any person, such person shall have the right to appear on the
34. 17 C.F.R. §§ 203.6--203.7 (1979) provide in record; and in addition to the rights afforded relevant part: · other witnesses hereby, he shall have a rea § 203.6 Transcripts. sonable opportunity of cross-examination * * • A person who has submitted doc and production of rebuttal testimony or doc umentary evidence or testimony in a formal umentary evidence. * • • investigative proceeding shall be entitled, *177 628 FEDERAL REPORTER, 2d SERIES cy may be imposed on any person except gests two ways in which the SEC civil in • * • vestigation might infringe the role of the in accordance with this rule. grand jury. First, it argues that enforce We note that the Rule prohibits disclosure ment of the SEC subpoena would under of "matters occurring before the grand mine the secrecy protections of the grand jury[.]" This serves to protect the identi jury because the SEC subpoena covers ties of witnesses or jurors, the substance of many or all of the Dresser documents that testimony, the strategy or direction of the have already been subpoenaed by the grand investigation, the deliberations or questions jury. [35] In this argument Dresser miscon of jurors, and the like. It does not require, ceives the nature of the secrecy protections however, that a veil of secrecy be drawn of the grand jury. over all matters occurring in the world that
happen to be investigated by a grand jury. [36] {4] Federal Rule of Criminal Procedure It is well established that 6(c) provides in relevant part: when testimony or data is sought for its (e) Secrecy of Proceedings and Disclosure own sake-for its intrinsic value in the (1) General rule. A grand juror, an furtherance of a lawful investigation interpreter, a stenographer, an operator rather than to learn what took place be fore the grand jury, it is not a valid of a rec;ording device, a typist who tran defense to disclosure that the same infor scribes recorded testimony, an attorney mation was revealed to a grand jury or for the Government, or any person to that the same documents had been, or whom disclosure is made under para
were presently being, examined by a graph (2)(A)(ii) of this subdivision shall grand jury. • • • not disclose matters occurring before the grand jury, except as otherwise provided United States v. Interstate Dress Carriers, for in these rules. No obligation of secre- Inc., 280 F.2d 52, 54 (2d Cir. 1960). [37] Dress-
35. Supplemental brief of appellant Dresser In from its primary concern--the investigation of dustries, Inc. at 13-17. criminal activity"). None of these rationales has any application to an independent agency 36. The rationales for grand jury secrecy are subpoena of corporate documents. No wit· well established: nesses or targets will be frightened from testi "(I) To prevent the escape of those whose fying fully, no grand jurors will be threatened indictment may be contemplated; (2) to in or suborned, no target will be embarrassed sure the utmost freedom to the grand jury in any more than it might be embarrassed by any its deliberations, and to prevent persons sub· other SEC subpoena. Since the fact that ject to indictment or their friends from im Dresser is the target of a grand jury Investiga portuning the grand jurors; (3) to prevent tion is already public knowledge--as witness subornation of perjury or tampering with the
this case-there is no danger of exposing the witness who may testify before [the] grand identity of an Innocent grand jury target. jury and later appear at the trial of those indicted by it; (4) to encourage free and 37. Accord, United Staces v. Stanford, 589 F.2d untrammeled disclosures by persons who 285, 290-291 (7th Cir. 1978), cert. denied, 440 have information with respect to the commis U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979); sion of crimes; (5) to protect innocent ac In re Search Warrant for Second Floor Bed cused who is exonerated from disclosure of room, 489 F.Supp. 207 (D.R.1.1980); In re the fact that he has been under investigation, Grand Jury Investigation of Ven-Fuel, 441 and from the expense of standing trial where F.Supp. 1299, 1302-1303 (M.D.Fla.1977); Brink
v. DaLesio, 82 F.R.D. 661. 668-669 (D.Md. there was no probability of guilt." Douglas Oil Co. v. Petrol Stops Northwest, 441 1979); Miche.lin Tire Corp. v. United States, U.S. 211, 219 n .10, 99 S.Ct. 1667, 1673 n.10, 60 453 F.Supp. 897, 898 (Cust.Ct.1978); see also L.Ed. 156 (1979) (brackets in original) (quoting Jn re Grand Jury Investigation (Lance), 610 United States v. Rose, 215 F.2d 617, 628-629 F.2d 202, 217 (5th Cir. 1980); State of Illinois v. (3d Cir. 1954), approved in United States v. Sarbaugh, 552 F.2d 768, 771-772 (7th Cir.), Proctor & Gamble Co., 356 U.S. 677, 681 n.6, 78 cert.. denied, 434 U.S. 889, 98 S.Ct. 262, 54 S.Ct. 983, 986 n.6. 2 L.Ed.2d 1077 (1958)). See L.Ed.2d 174 (1977). Some courts have adopted also Note, Administrative Agency Access to a broa.:! interpretation of "matters occurring Grand Jury Materials, 75 Colum.L.Rev. 162, before th1· grand jury" as documents that "may 166 (1975) (suggesting a further rationale: "to tend to re 1eal what transpired before the grand prevent the grand jury from being diverted jury." United States v. Armco Steel Corp., 458
*178 SECURITIES & EXCHANGB COM'N v. DRESSER INDUS. Cite as 628 F.2d 1368 (1980) er's documents at issue here were created grant Justice continuing access to the en for an independent corporate purpose, not tirety of a given investigative file once the directly related to the prospect of a grand Commission formally grants access.u As of jury investigation. The SEC has subpoe now the SEC has not received any confiden naed them directly from Dresser, without tial documents from Dresser, and thus we mention of the grand jury. They do not
have had no opportunity to see how this reveal what has occurred before t he grand policy operates in practice. It would be jury; they reveal only what has occurred in altogether inappropriate for this court to Dresser's foreign operations. See United presume that the SEC will pre-select docu~ States v. Stanford, 589 F .2cl 285, 291 (7th ments for release to Justice in order to Cir. 1978), cert. denied, 440 U.S. 983, 99 prejudice the grand jury. S.Ct. 1794, 60 L.Ed.2d 244 (1979). The fact In another sense Dresser's complaint on that a grand jury has subpoenaed docu this score has little practical significance. ments concerning a particular matter does No one would suggest that the grand jur not insulate that matter from investigation ors, unassisted by accountants, lawyers, or in another forum. [38] In fact, if the grand others schooled in the arcana of corporate jury proceedings are genuinely secret, other financial accounting, could sift through the agencies and courts will not know the sub ject matter of the grand jury investigation masses of Dresser's corporate documents and thus will not be able to determine and arrive at a coherent picture of the whether their own inquiry would overlap company's foreign payments and disclosure that of the grand jury. practices. In this area, as in many areas of great complexity, the grand jurors are as
In this case Dresser is obligated under the securities laws to provide documents to the sisted-guided and influenced, in fact-not only by the United States Attorneys as SEC in obedience to a lawful subpoena. The existence of a grand jury proceeding signed to the investigation, but alr.o by ex neither adds to nor detracts from Dresser's perts provided by the federal regulatory rights before the SEC. Whatever rights to agencies with experience in the particular secrecy or confidentiality Dresser may have subject areas. This expert assistance is per are the product solely of the laws governing mitted under Rule 6(e), and it promotes the the SEC; they are unaffected by the paral efficiency and rationality of the criminal lel grand jury proceeding. investigative process. See In re Perlin, 589
F.2d 260 (7th Cir. 1978); Robert Haw The second way in which Dresser argues thorne, Inc. v. Director of IRS, 406 F.Supp. that enforcement of this subpoena might 1098, 1106--1107 (E.D.Pa.1975); Develop infringe the role of the grand jury is that
ments in the Law-Corporate Crime: Reg the SEC could interpret and selectively dis ula.ting Corporate Behavior Thl'Ough Crimi close parts of the subpoenaed information nal Sanctions, 92 Harv.L.Rev. 1Z~7, 1314- to the grand jury through Justice, thereby undermining the independence of the grand 1315 (1979). In this case two SEC agents jury's inquiry. [39] Of course, this argument have been assigned to Justice's task force is purely speculative since, as Dresser is on transnational payments to assist in the well aware, [40] the SEC's general policy is to investigation of companies possibly involved rant for Second Floor Bedroom, supra note 37,
F.Supp. 784, 790 (W.D.Mo.1978); Record, In re Grand Jury Investigation (Lance), supra, 610 489 f.Supp. at 211. This case presents no such F.2d at 216. Even under this test courts should problem. permit disclosure of documents in the hands of private parties, independently identified and 39. Supplemental brief of appellant Dresser In sought for a lawful and independent purpose. dustries, Inc. at 17-18.
38. We recognize that in some circumstances 40. See id. at 5 n. l 0. the courts have protected materials not techni cally within the range of Rule 6(e) where dis
41. See letter from James H. Schropp to this closure would jeopardize the effective function court dated April 3, 1979. ing of the grnnd jury. See In re Search War- *179 628 FEDERAL REPORTER, 2d SERIES in illegal foreign payments. 42 There can be treme an action as denying enforcement of this subpoena. 44 little doubt that the grand jury's delibera tions will be influenced by the work of
In essence, Dresser has launched this at these SEC agents. Any additional influ tack on the parallel SEC and Justice pro ence that might arise as a result of enforce ceedings in order to obtain protection ment of the SEC subpoena and transmittal against the bare SEC proceeding, which it of documents to Justice thereafter is likely fears will result in public disclosure of sen to be inconsequential. [43] sitive corporate documents. The prejudice Finally, we note that if Dresser is genu Dresser claims it will suffer from the paral inely worried that the SEC might disclose lel nature of the proceedings is speculative only those documents prejudicial to the and undefined-if indeed Dresser would company, it may provide the grand jury suffer any prejudice from it at all.4 [5] Any with copies of all the documents it provides entitlement to confidential treatment of its to the SEC, thereby obviating the danger. documents must arise under the laws per Alternatively, if Dresser obtains evidence taining to the SEC; the fortuity of a paral that the SEC is in fact abusing its power to lel grand jury investigation cannot expand transmit documents to Justice, and is there
Dresser's rights in this SEC enforcement by distorting the grand jury's perception of action. Thus Dresser's invocation of La the case, Dresser may apply to the courts at Salle can avail the company nothing. that time for appropriate relief.
IV. COOPE~ATION BETWEEN We conclude that the danger that en
SEC AND JUSTICE
forcement of this subpoena might infringe the role of the grand jury is too speculative In its initial decision in this case a panel and remote at this point to justify so ex- of this court ruled that "the broad prophy- 42. See text following note 14 supra. 45. During oral argument before the panel
Dresser's attorney was asked what prejudice 43. Dresser implicitly admits that It would be the company suffered from the parallel pro proper for the SEC to conduct and complete a ceedings. Transcript of oral argument at 49 civil investigation, and then to transmit all rele (Dec. 11, 1978). He responded that Dresser vant materials to Justice for possible criminal was prejudiced in two ways. First, he com prosecution. See supplemental brief of appel
plained that "the SEC does not have anywhere lant Dresser Industries, Inc. at 22-24. Yet near the confidentiality protection that Rule such a procedure would create as severe a 6(e) provides." Of course, this complaint is problem of grand jury infringement as the pro properly addressed to Congress, which explicit cedure complained of in this case. ly granted the SEC the power to "publish" the results of its investigations. Section 21(a) of
44. Dresser seeks to minimize the effect an or the '34 Act, 15 U.S.C. § 78u(a) (1976). We do der denying enforcement of this subpoena not express any opinion on whether the SEC would have on the SEC's ability to carry out its would be justified in exercising the power to mandate by suggesting that the SEC could con publish in this case; we merely note that the tinue its civil enforcement efforts through ob Commission is not governed, and Is not intend taining access to the grand jury materials un ed to be governed, by Rule 6(e). Second, the der Rule 6(e)(2)(C)(i), which perinits disclosure attorney invoked Dresser's "Tight to a fair "when so directed by a court preliminarily to or criminal investigation, including the fact that in connection with a judicial proceeding[.]" the Rules of Discovery of the Federal Rules of This disregards the fact that some courts have Criminal Procedure apply to it." Transcript of held that the SEC must demonstrate a "particu oral argument at 49 (Dec. 11, 1978). If he was larized need" for grand jury materials in order referring to Rule 16(b), then he was mistaken, to obtain access to them, e.g., Jn re Grand Jury for Rule 16(b) comes into play only after indict Investigation, 414 F.Supp. 74, 76 (S.D.N.Y. ment. Jn fact, the grand jury's Investigative 1976), and that administrative investigative powers are as broad as or broader than those proceedings may not be considered preliminary of the SEC. Dresser cannot claim to be preju to or in connection with a judicial proceeding diced by the breadth of the SEC Investigative for purposes of the Rule. See United States v. authority. Bates, - F.2d - - (D.C.Cir. No. 79-1930, decided April 18, 1980) (per curiam) (concern ing a Federal Maritime Commission investiga tion).
*180 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 628 F.2d 1368 (1980) lactic rule enunciated in LaSalle is inappro this litigation." Supplemental brief of ap priate where the SEC and the Justice De pellant Dresser Industries, Inc. at 9 n.16. partment are simultaneously pursuing civil The reactions of the parties, therefore, sug and criminal investigations." Slip opinion gest that the panel's modification might serve more to impede securities law en at 18. The panel therefore affirmed the forcement than to protect the interests of District Court and ordered enforcement of Dresser. the SEC subpoena. Out of a concern that the SEC subpoena might somehow "subvert
Second, we note that there is no support the limitations of criminal discovery," id:, for the panel's modification in either the however, the panel, with one judge dissent relevant statutes or legislative history. ing, modified the terms of the subpoena Both the '33 Act and the '34 Act-and other enforcement order. It required that "once statutes related to securities law enforce the Justice Department initiates criminal ment as well [48] -expressly authorize the proceedings by means of a grand jury, the SEC to "transmit such evidence as may be SEC may not provide the Justice Depart available • • • to the Attorney Gener ment with the fruits of the Commission's al, who may, in his discretion, institute the civil discovery gathered after the decision
necessary criminal proceedings under this to prosecute." Id. at 22. [46] We affirm the subchapter." Section 20(b} of the '33 Act, judgment of the District Court and reject 15 U.S.C. § 77t(b) {1976); Section 21(d) of the panel's modification. the '34 Act, 15 U.S.C. § 78u(d) (1976). The
statutes impose no limitation on when this Firs't, we note that no party to this case transmittal may occur. The parties have had suggested or requested a modification not cited any portions of the legislative such as that imposed by the panel majority, histories of these Acts relevant to this ques either in the District Court or in this tion, nor have we found any. But the SEC court.n In supplemental briefs submitted and Justice find considerable support for to the e~ bane court both the SEC and their interpretation in the legislative histo J ustice-·v1gorously oppose the modification, ry of the Foreign Corrupt Practices Act of while Dresser's support for it is lukewarm 1977, 91 Stat. 1494', Title I, 15 U.S.C. §§ 78a, at most. Dresser had argued that the SEC 78m, 78dd-1, 78dd-2, 78ff (Supp. I 1977). investigation is flatly prohibited by the rule of LaSalle; the panel's modification, ac The Foreign Corrupt Practices Act out cording to Dresser, "may have had a similar laws c~rporate bribery of foreign officials effect" to that of LaSalle -"though not as and associated inaccurate or misleading fi assured in its operation." Supplemental nancial recordkeeping. In passing the stat brief of appellant Dresser Industries, Inc. at ute Congress recognized the role of the SEC 30. Dresser characterized the panel's deci in combatting such practices undel' the '33 sion to "relax" the LaSalle rule as "un and '34 Acts, and sought to "strengthen the sound," id. at 29, and described the motivat Commission's ability to enforce compliance ing factor in the panel's decision-the sup with the existing reguirements [si<:] of the posed need to protect the "criminal dis securities laws[.]" S.Rep.No. 114, 95th covery process • • • of the grand Cong., 1st Sess. 12 (1977). Both the Senate jury," slip opinion at 22--as "irrelevant to and the House reports on the bill a,cknowl- 46. Under the panel's terminology the decision 47. Mr. Luter, appellant in No. 78-1705, has
to prosecute and the beginning of "criminal taken no position regarding the panel's modifi discovery" occur at the time when Justice be cation of the District Court's order. gins to present its case to the grand jury. See slip op. at 21. After indictment by the grand
48. Investment Company Act of 1940, § 42(e), jury, when genuine criminal discovery under 15 U.S.C. § 80a-41(e) (1976); Investment Ad Rule 16(b) begins, different considerations
visers Act of 1940, § 209(e). 15 U.S.C. § 80b·- would govern. See text and notes at notes 9(e) (1976); Public Utility Holding Company 20-21 supra; supplemental brief of the SEC at A~t of 1935, § 18(f), 15 U.S.C. § 79r(t) (1976). 23-24; supplemental brief of appellant Dresser Industries. Inc. at 9 n.16. *181 628 FEDERAL REPORTER, 2d SERIES edged the SEC's dual investigative role in Congress manifestly did not intend that preparing cases for civil and criminal en the SEC be forbidden to share information forcement actions. They also recognize the with Justice at this stage of the investiga necessity of close cooperation between the
tion. Under the panel majority's theory of SEC and Justice in preparing such cases. the case the SEC would be foreclosed from The Senate Committee said: sharing the fruits of its investigation with The committee expects that close coop Justice as soon as Justice begins its own eration will develop between the SEC and investigation through a grand jury. Only the Justice Department at the earliest by waiting until the close of the SEC pro stage of any investigation in order to ceeding before initiating its own grand jury insure that the evidence needed for a investigation could Justice obtain access to criminal prosecution does not become the evidence procured by the SEC. In view stale. * • • of Congress' concern that the agencies Id. at 12. It stated that it expected the share information "at the earliest stage of SEC and Justice to "work out" between any investigation in order to insure that the themselves ·certain "arrangements * • • evidence needed for a criminal prosecution on criminal matters" that would preserve does not become stale," S.Rep.No. 114, su the authority of each within its jurisdiction. Id. The House Committee said: · pra, at 12, and that the agencies avoid "a costly duplication of effort," H.R.Rep.No.
Traditionally, there haa been a close 640, supra, at 9, it would be unreasonable to working relationship between the Justice Department and the SEC. The Commit prevent a sharing of information at this tee fully expects that this cooperation
point in the investigation. between the . two agencies will continue Third, we note that there is little or no with respect to the enforcement of the judicial precedent for the panel's modifica provisions of this bill. tion. The only' support adduced by the pan H.R.Rep.No; 640, 95th Cong., 1st Sess. 10 el opinion is a District Court opinion in SEC (1977). v. Gilbert, 79 F.R.D. 683 (S.D.N.Y.1978). In Although the legislative history of the that case, which arose on the defendant's Foreign Corrupt Practices Act is not direct request for a protective order under the ly probative of congressional intent govern discovery rules of the Federal Rules of Civil ing the '33 and '34 Acts, these statements Procedure-as contrasted to an investiga by the 95th Congress are nevertheless enti· tive subpoena enforcement proceeding as in tled to some weight. The remarks in the committee reportS concerning the investiga this case-the court ordered the SEC "not to furnish the U.S. Attorney specially with tive practices of the SEC and Justice were not intended to change, but to reaffirm, any information procured in the course of past practice. This indicates that Congress discovery in this case." Id. at 687. The understands and approves of the "close court offered no authority for this order working relationship'' between the agencies
nor, indeed, any reason for its application. in their investigative capacities. Si~ce such While we recognize the similarity of Gilbert a "close working relationship" will govern to this case in many respects, its lack of the activities of the agencies in enforcing reasoning and its distinguishable procedural the laws against questionable foreign pay posture make it but weak authority. [49] ments under the new statute, it would be In fact, the reasoning of the Supreme imprac'tical for Us to attempt tO screen the Court in LaSalle is contrary to that of the agencies frQm each other when they are panel in two respects, and should govern investigating the same sort of offense un· der the former statutes. this case in lieu of Gilbert. The LaSalle er, 49. The panel majority did not deal directly with [Transfer Binder 1979] Fed.Sec.L.Rep.
two decisions much closer to the instant case (CCH) •: 96,821 ,(S.D.N.Y. ·March 30, 1979); on their facts. Both were decided in favor of Gellis v. Casey, 338 F.Supp. 651 (S.D.N.Y.
1972). See panel slip op. at 12 n.29, 14 n.31. the SEC without modification. SEC v. Druck· *182 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite 11628 F.2d 1368 (1980) Court considered, and explicitly rejected, statute of limitations problew. The more time a United States Attorney has, the course adopted by the panel majority: "[l]t is unrealistic to attempt to build a the easier it is for him to become familiar partial information barrier between the two with the complex facts of a securities branches of the executive." United States fraud case, to prepare the case, and to present it to a grand jury before expira v. LaSalle Nat'] Bank, supra, 487 U.S. at 312, 98 S.Ct. at.2365. More fundamentally, tion of the applicable statute o:r limita the LaSalle Court conceived of the contro tions. Earlier initiation of criminal pro versy before it as an analysis of the good or ceedings moreover is consistent with a bad faith of the IRS investigation. A bad defendant's right to a speedy trial. • • faith investigation, in the Court's concep tion, is one conducted solely for criminal
Id. The panel's modification would "inter enforcement purposes. See id. at 307-308, fere with this commendable example of in 316, & 316 n.18, 98 S.Ct. at 2362-2363, 2367 ter-agency cooperation," id., to the detri & 2367 n.18. Where the agency has a legit ment of securities law enforcement and in imate noncriminal purpose for the investi contravention of the will of Congress. [51] On gation, it acts in good faith under the La the other side of the balance, the panel's SaJJe conception even if it might use the concern for preserving the limitations on information gained in the investigation for criminal discovery is largely irrelevant at criminal enforcement purposes as we!I. [50] In this stage of the proceedings, as Dresser the present case the SEC plainly has a agrees. [52] Thus this would be an inappropri legitimate noncriminal purpose for its in ate situation to impose a "prophylactic" vestigation of Dresser. It follows that the rule against cooperation between the agen investigation is in good faith, in the absence cies. We believe the courts can prevent any of complicating factors. There is, there injustice that may arise in the particular fore, no reason to impose a protective order circumstances of parallel investig-dtions in such as that imposed by the panel majority. the future. We decline to adopt the posi Finally, we note that the panel's modifi tion of the panel majority. cation would serve no compelling purpose, and might interfere with enforcement of
V. OTHER ISSUES
the securities laws by the SEC and Justice. Several issues remain. As the Second Circuit has said, the proce dure permitting the SEC to communicate [5] First, Dresser argues that enforcing with Justice during the preliminary stages the SEC subpoena would breach an agTee of an investigation has "significant advan ment of confidentiality made at the Janu tages." United States v. Fields, supra, 592 ary 27, 1976 meeting between SEC and F.2d at 646. Dresser representatives. The District
Allowing early participation in the case Court held that "[t]hroughout the voluntary disclosure program the SEC reserved its by the United States Attorney minimizes
50. So long as the Commission evinces no other criminal prqsecution by providing sole, original indicium of bad faith. See United States v. copies of inculpatory documents to the SEC; LaSalle Nat'/ Bank, supra note 25, 437 U.S. at (4) that prosecutors might be unable to learn of 317 n.19, 98 S.Ct. at 2368 n.19. prior testimony by grand jury witnesses; (5)
that prosecutors might be denied access to ex 51. In its brief Justice suggests a number of culpatory information, evidence of perjury, or a practical problems that might ensue from the prior inculpatory statement; and (6) that the panel's modification: (l) that Justice might prosecutor might find it impossible to comply have to forego any assistance from the SEC in with his responsibilities under Brady v. Mary enforcing the Foreign Corrupt Practices Act or land, 373 U.S. 83, 83 S.Ct. 1194, JO L.Ed.2d 215 other regulatory laws involving parallel investi (1963), and Jencks v. United States, 353 U.S. gations; (2) that agency attorneys might not be 657, 77 S.Ct. 1007, I L.Ed.2d ll03 (1957). legitimately appointed as special assistant United States Attorneys to assist in preparing 52. See text at notes 33-34 supra. cases for grand juries; (3) that a grand jury witness might gain effective inununity from
628 FEDERAL REPORTER, 2d SERIES
*183 mitted only where the respondent is able rights to pursue a formal investigation and issue subpoenas if necessary. It is readily to distinguish himself from "the class of the apparent that the SEC never agreed to ordinary [respondent]," United States v. completely forego its rights to subpoena the Fensterwald, supra, 553 F.2d at 231-232, by material in question." 453 F.Supp. at 575. citing special circumstances that raise We have examined the record and do. not doubts about the agency's good faith. find that the D.istrict Court's determination Even then, district courts must limit dis on this point was clearly erroneous.
covery to the minimum necessary in the Second, Dresser argues that the District interests of justice by requiring specific in Court erred in granting judgment for the terrogatories or affidavits rather than "full SEC without permitting Dresser to conduct
dress discovery and trial." United States v. discovery into the propriety of the SEC Marine Midland Bank, supra, 585 F.2d at investigation. Although the precise nature 89; see United States v. Fensterwald, su of Dresser's desired discovery is not clear, pra, 553 F.2d at 232-233. the company apparently would investigate: (1) the SEC criminal referral and the con
[7] We conclude that the District Court current criminal investigation, with a view acted within its discretion in denying Dress to the possibility that the SEC has proceed er discovery in this case, and that it proper ed in bad faith; (2) the ethical propriety of ly granted judgment to the SEC on the SEC agents' participation in the criminal record before it. There was nothing im investigation; (3) the existence of an SEC proper about the SEC's decision to transmit commitment of confidentiality; and (4) the
\ the files of the participants in the Volun basis for .the SEC staff's decision to request tary Disclosure Program to Justice, or a formal investigation of Dresser. See about the subsequent concurrent investiga brief of respondent-appeJlant at 36-42.
tions by the two agencies. Nor does the [6] We recognize that discovery may be participation of two SEC attorneys in the available in some subpoena enforcement Justice task force cast doubt upon the good proceedings where the circumstances indi faith of the Commission. Dresser's allega cate that further information is necessary tions of an agreement by the SEC not to for the courts to discharge their duty. subpoena the documents underlying its vol United States v. Fensterwald, 553 F.2d 231 untary report are not substantiated by any (D.C.Cir.1977) (per curiam ); United States writing, and are directly contrary to the v. Wright Motor Co., 536 F.2d 1090 (5th Cir. published terms of the Voluntary Disclosure 1976). For example, the Supreme Court in
Program. [53] Finally, Dresser's suggestion Le.Salle apparently contemplated some de that the order of investigation is improper gree of discovery in IRS summons cases to because there was no "likelihood that a determine the fostitutional good faith of violation has been or is about to be commit the IRS in issuing such summonses. United States v. LaSalle Nat'] Bank, supra, 437 ted," see 17 C.F.R. § 202.5 (1979), does not distinguish Dresser from any other recalci U.S. at 31~317, 98 S.Ct. at 2867; id. at 320, trant subpoena respondent. At this stage 98 S.Ct. at 2369 (dissenting opinion); Unit ed States v. Marine Midland Bank, 585 F.2d of the investigation neither this court nor the SEC could know whether Dresser has 36, 38--89 (2d Cir. 1978) (per curiam ). violated the law. The Commission's discre However; district courts must be cautious in granting such discovery rights, lest they tion concerning which potential violators to transform subpoena enforcement proceed investigate is, while not unbounded, ex ings into exhaustive inquisitions into the tremely broad. Dresser has suggested no practices of the regulatory agencies. See improper motive for the SEC investigation, FTC v. Anderson, 631 F.2d 741, at 747 cf. United States v. Fensterwald, supra; 558 (D.C.Cir. 1979). Discovery should be per- F.2d at 232 (respondent's political and pro- 53. Report, supra note 4, at 32; see text at note
8 supra. *184 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Clteas628 F.2d 1388 (1980) fessional activities "could easily have of these specific conclusions. Bri1~f of re spurred the Internal Revenue Service to spondent-appellant at 43, 44. take an extraordinary interest in this par
We agree with the District CQurt that ticular taxpayer"). Dresser's bare protesta Dresser's claims of confidentiality and of tions of innocence do not suffice to call the attorney-client privilege cannot be judged SEC's bona fides into question. [54] • We by the courts on this record at this stage of therefore affirm the District Court's deci the proceeding. Rather, once the subpoena sion on this point. has been enforced the SEC will have the Two remaining substantive issues raised opportunity to rule on specific requests for by Dresser do not require decision by this confidential treatment and assertions of at court at this time. Those issues are: the torney-client privilege. This procedure will asserted right of Dresser or its employees to follow the outlines described by this court protect portion~ of the documents from in FTC v. Texaco, Inc., 55 F.2d 862, 883-885 public disclosure because of the possibility (D.C.Cir.) (en bane), cert. denied, 431 U.S. of hostile and injurious foreign reaction, 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977), and the Supreme Court in FCC v; Schreiber, and the asserted attorney~client privilege of Dresser or its employees with respect to 381 U.S. 279, 290-291, 295--,.296, 85 S.Ct. some of the documents. Despite Dresser's 1459, 1467-1468, 1470, 14 L.F.d.2d 383 suggestion to the contrary, see brief of re (1965). spondent-appellant at 42--47, we conclude
We recognize that Judge Parker in the that the District Court did not reach the grand jury investigation of Dresser said merits of Dresser's claims on these points. that Dresser's concern for the lives of its With respect to confidentiality, the court employees and their families and property noted that the SEC had offered to give abroad in the event of public disclosure ·of Dresser ten days notice in advance o( disclo portions of the documents is "not illusory and should not be lightly considered," see sure of the documents to the public, to enable the company to challenge the deci JA 163, but we believe that the SEC will be in a better position to evaluate this claim sion to disclose. This offer the court found to. be "adequate" to protect Dresser's inter than the courts are now. This court has ests at this stage of the proceeding. 458 commented before that the danger that F.Supp. at 576. [5] ~ With respect to the attor confidential materials might be wrongfully ney-client· privilege, the District Court prop released to the public through the Freedom erly declined to evaluate Dresser's claims in of Information Act is "by no means frivo generality, stating that such claims at this lous," FTC v. Anderson, supra., 631 F.2d at point are "vague and conclusory." Id. The 748 n.11. Courts have held an offer of court further said that "[c]ertainly not all ten days notice before release of. informa of the material sought is privileged," and. tion to be adequ!lte protection in several cases involving business information. Id., indicated that the investigative report pre pared by Dresser as part of the Voluntary 631 F.2d at 748; FTC v. Texaco, Inc., supra, 555 F.2d at 884-885; SEC v. Wheel Disclosure Program is not privileged. Id. ing-Pittsburgh Steel Corp., 482 F.Supp. 555, Dresser apparently does not dispute either 54. Dresser's allegation that the staff "repeated there is a FOIA request and the· SEC deter mines the material is not exempt and must be
ly told Dresser that it knew of no securities violation," brief of respondent-appellant at 41, disclosed. These assurances of confldentiali' ty are adequate and Dresser Is entitled to no does not alter the case. By the time the Com mission decided to issue the order of investiga more. * * * tion, the staff had officially concluded other 453 F.Supp. at 576. We interpret the SEC's wise. See order directing private investigation offer as encompassing any decision to release and designating officers to take testimony, JA the documents, whether or not pursuant to the 7-9. FOIA. Moreover, we assume that, upon exam
ination of particular documents or groups of 55. The court said: documents, the SEC has the authority to stiffen Furthermore, the Commission has offered to the confidentiality or notice agreement. give Dresser ten days notice in the event that
*185 628 FEDERAL REPORTER, 2d SERIES motion. It appears that the court rejected 563 (W.D.Pa.1979). The District Court ap proved a similar arrangement in this case his claim on the merits without first allow with respect to Dresser's subpoenaed docu
ing him to pass the threshold. In this cir ments in general. We do not read the cuit an applicant to intervene need only opinion as approving such a procedure with show that the representation of his interest respect to all documents in this case, no may be inadequate; the burden of proof matter how sensitive they may prove to be. rests on those resisting intervention. The decision whether to accord greater pro Nuesse v. Camp, 385 F.2d 694, 702 (D.C.Cir. tection to certain documents where release 1967). In cases of alleged corporate miscon might endanger employees' lives abroad duct it is especially important for the courts must be made in the first instance by the to be alert to the possibilities of conflict Commission, which will be able to inspect the documents and hear argument on the between the interests of the corporation issue." and those of its employees.
The question of the attorney-client privi [9] In this case, however, we need not lege must be resolved in a similar manner: judge whether the court was correct in its viewed initially by the Commission with later review in the courts if necessary. conclusion that Mr. Luter has asserted no
cognizable interest in the proceedings. . We see no ground for reversal in the With the benefit of hindsight, and informed District Court's determinations on the con fidentiality and attorney-client privilege is by the arguments Mr. Luter has made on sues. his behalf in this appeal, we are able to conclude that Dresser has adequately repre
The final issue in this case is that raised in No. 78-1705: whether the District Court sented the interests of its employees erred in its decision of June 23, 1978, JA through this stage of the litigation. So far, 532, reconsideration denied, JA 559, denying
the disputes have centered on the enforcea Mr. Edward R. Luter, a senior vice presi bility of the SEC subpoena, not on particu dent of Dresser, the right to intervene in lar questions of confidentiality or privilege this enforcement proceeding on behalf of pertaining to individual documents. We do himself and other employees of Dresser. not understand the District Court as having Mr. Luter claims an interest in the proceed rejected the right of Mr. Luter or any other ing on bases of an alleged confidentiality Dresser employees to intervene in future interest on the part of the employees in proceedings concerning this investigation. certain documents and an alleged attorney On the understanding that Mr. Luter or his client privilege. The District Court reject fellow employees may seek to intervene in ed Mr. Luter's motion to intervene, saying: future SEC proceedings concerning confi
Mr. Luter has failed to demonstrate any proper basis for reconsideration, for inter dentiality and the attorney-client privilege, vention as a matter of right, or for inter and in any court proceedings that might vention as a matter of discretion. Even follow, and that the SEC and the courts will if there was an attorney-client privilege
evaluate any such motions to intervene to be invoked in this case, it would be the afresh and on their merits, we affirm the corporation's and not the employees'. In judgment of the District Court in No. 78- addition, the employees had no constitu 1705. As previously indicated we affirm tional right of privacy concerning the the judgment of the District Court in No. communications in question. • • • 78-1702 as well. JA 559 (order denying reconsideration). The judgments of the District Court are [8] We are somewhat troubled by the Affirmed. District Court's treatment of Mr. Luter's 56. We note that, except In "egregious cases," tlonable foreign payments. Report, supra note
the SEC has stated it would not require more 4, at 9 n.8. than "generic" disclosure to the public of ques-
*186 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. Cite as 628 F.2d 1368 (1980) EDWARDS, Circuit Judge, concurring: government agency may continue once an I concur in the opinion of the court in this indictment has been issued or, if it may,
case. I wishj to point out, however, that I whether protective conditions need be do not read the court's opinion as express- placed on the exercise of that power. ing any view as to the proper outcome in a These issues raise questions which are not case of this sort once an indictment has presented here. The resolution of these issued. See text of opinion at notes 83-34, questions, therefore, must await another supra. Once an indictment has issued, the day'. policy interest expressed in United States v. LaSaJJe National Bank, 437 U.S. 298, 312, 98 S.Ct. 2357, 2367, 57 L.Ed.2d 221 (1978), con cerning the impermissibility of broadening the scope of criminal discovery through the summons authority of an agency, may come into play. I express no opinion as to wheth- er or not the summons authority of a
*187 Tex. 787
JACKSON v. SMITH SEC. SERVICE, INC.
Cite u 716 8.W.2d 717 (Tu:.App.-Houtlon [111 Dl11.) 1990) C.J., hE1ld that appeal in civil suit would be
tablish that ~he falls within the protected class: a handicapped person who was not held in abeyance pending determination of hired because of her handicap. It is not customer's petition for discretionary review sufficient for the plaintiff to merely estab of shoplifting conviction arising out of lish that she was denied employment "be same incident. cause of handicap" under article 622lk.
Ordered accordingly. Id. The explanation of the term "because of handicap" Is contained in section l.04(b) of article 522lk, under the heading "Specif
Action . . 69(5) · ic Rules of Construction." Id. "Thie 'rule Appeal from take-nothing judgment of construction' simply adds the require rendered for store in action based on ment that before any 'handicap' can be the store's conduct including allegedly false ac basis of a discrimination action, it must not cusation of shoplifting would be held in impair the person's ability to reasonably abeyance pending det.ermination of plain perform the job." Id. However, the plain tiff's petition for discretionary review with tiff must still be "handicapped." Id. respect to shopUfting conviction arising out of same incident, to avoid unjust conse Because Brunner has not alleged that slie was handicapped, we cannot hold that quences of giving preclusive effect to crim inal judgment if it were lat.er reversed on she has established that appellees discrimi nated against her "because of handicap." appeal.
We overrule point of error two. The judgment is affirmed.
Robert G. Miller, O'Donnell & Ferebee, Houston, for appellant. Robert C. Scruggs and Jeffrey Lee Hoff. man, Whittington, Pfeiffer & Vacek, Hous ton, for appellees.
Before EVANS, C.J., and COHEN and
HUGHES,
JJ. Patricia L. JACKSON, Appellant, v. ORDER
SMITH SECURITY SERVICE, INC.,
EV ANS, Chief Justice. and T.J.X. Companies, Inc., d/b/a T .J. Maxx, Appellees.
ORDER ON MOTION FOR
No. 01-89-00391>-CV. REHEARING Thiu Court's former order of December Court of Appeals of Texas, 21, 1989, is withdrawn, and the following Houston (lat Dist). order is substitut.ed. Feb. 22, 1990. Thia is an appeal from a take-nothing summary judgment. Customer brought action against store The plaintiff, Patricia L. Jackson, sued based on conduct including al1egedly false defendants, T.J.X. Companies, Inc. (T.J. accusation of shoplifting, seeking damages Max.x) and Smith Security Services, Inc. for assault and battery, false imprison (Smith Security), alleging that they had ment, slander, invasion of privacy, and vio falsely accused her of shoplifting, placed lation of civil rights under federal civil her under physical restraint, and threat ened to handcuff her to force her to remain rights statute. The 284th District Court, Harris County, rendered take-nothing sum at the T.J. Maxx store. Jackson alleged mary judgment for store, and customer that her purse was forcibly taken from her, appealed. The Court of Appeals, Evans, and that she was questioned for at least
*188 788 Tex.· 786 SOUTH WESTERN REPORTER, 2d SERIES tionary Review before the Court of Crimi two hours despite her continuing protesta tions of innocence and her demands to be nal Appeals, and that only one issue has released. Thereafter, she alleged that the been presented to that court for its deter sheriff's department, based solely on the mination. Here, Jackson's sole contention defendant's accusations, placed her under is that because of her pending criminal arrest, shackled her in handcuffs, and led appeal, her conviction cannot yet be given her through the store. in full view of the
preclusive effect. Jackson asks this Court general public. She also alleged that she to either stay the trial court's judgment or was then fingerprinted and placed in a cell, abate the appeal in this case until the Court and that she was not released from custody of Criminal Appeals has decided her crimi for seven more hours. Because of these nal appeal and issues a mandate. alleged wrongs, Jackson sought damages The Texas Supreme Court has held that for assault and battery, false imprison "a judgment is final for the purposes of ment, slander, invasion of privacy, and vio issue and claim preclusion despite the tak lation of her civil rights under 42 U.S.C. ing of an appeal unless what is called an sec. 1983 (1989). She also sought exempla appeal actually consists of a trial de novo." ry damages on the grounds that the defen Scurlock Oil Co. v. Smithwick, 724 S.W.2d dants had engaged in a malicious and un 1, 6-7 (Tex.1986); see also CLS Assoc., justified civil conspiracy and had intention Ltd. v. A-B-, 762 S.W.2d 221, 223 (Tex. ally and negligently caused her emotional App.-Dallas 1988, no writ); McCormick v. distress. Texas Commerce Bank Nat'l Ass'n, 751 The record indicates that the court en S.W.2d 887, 889-90 (Tex.App.-Houston tered an interlocutory summary judgment [14th Dist.] 1988, writ denied); Federal in favor of defendant, Smith Security, Sav. & Loan Ins. Corp. v. Kennedy, 732 based upon its conclusive showing that it S.W.2d 1, 3 (Tex.App.-Houston [1st Dist.] was a stranger to the transaction and had 1986, writ ref'd n.r.e.). This holding, which no relationship with the other defendant, adopts the established rule in the federal T.J. Maxx. Evidently, Jackson does not courts, is based on the Restatement (Sec complain of that ruling, and this appeal ond) of Judgments section 16 (1982). relates solely to the take-nothing summary In Scurlock, the Texas Supreme Court judgment entered in favor of T.J. Maxx.
recognized the "manifest risk" in resting In its motion for summary judgment, T.J. preclusion on a judgment's being appealed. Maxx asserted that it had a legal right to Scurlock, 724 S.W.2d at 6. The court fur engage in the conduct of which it was ther noted that the second judgment should charged, and that Jackson's criminal con not be allowed to stand if the first judg viction for shoplifting should be given pre ment is later reversed. Id. clusive effect with respect to each theory of recovery asserted by Jackson in her Several alternatives have been suggested petition. In support of its motion, T.J. to avoid the unjust consequences of giving Maxx attached copies of the criminal com
preclusive effect to a judgment that is later plaint charging Jackson with the misde reversed on appeal. One suggested option meanor offense of price-tag swit.ching, an
is to stay the proceedings in the second affidavit of one of its employees identify action until the determination of the appeal ing Jackson as the same person named in
in the first action. Another alternative is the complaint, and a copy of the judgment to hold open the appeal in the second action entered by the County Criminal Court at until the determination of the appeal in the Law No. 7 of Harris County, showing that first action. A third possibility is to pro a jury found Jackson guilty of the offense ceed to a final determination in the second charged in the information. action, on the premise that any inequity could be remedied by an equitable bill of On oral submission, both parties agree that Jackson's appeal from the criminal review in the. event the first judgment is later set aside. See 18 C. Wright, A. Miller conviction is pending Petition for Discre- *189 Tex. 789
LAMAR BUILDERS v. GUARDIAN SAY. AND LOAN Cite u 786 S.W.2d 719 (Tex.App.-Hauatoa [Ill Di.t.) 1990) & E. Cooper, Federal Practice & Proce pending appeal from denial of temporary injunction. The 883rd District Court, Har dure sec. 4488 (1981).
ris County, granted motion for temporary Here, Jackson urges the adoption of one order. Appeal was taken. The Court of of the first two alternatives suggested, and Appeals, Evans, C.J ., held that motion she asks this Court either to stay the pro failed to provide showing required for re ceedings in the trial court or to hold this appeal in abeyance pending determination quested relief to be granted. of her criminal appeal by the decision of
Vacated. the Court of Criminal Appeals. T.J. Maxx argues the adoption of the third altema tive, contending that it will suffer undue
1. Appeal and Error *=>468(3) hardship, delay, and inconvenience if the dispute is not expeditiously determined. Injunction *=>189 While appeal from order denying inter
Recognizing the disadvantages inherent in each of the methods suggested, we adopt locutory relief may not be suspended by the second alternative, urged by appellant, filing supersedeas bond, Court of Appeals and hold the appeal in abeyance pending a has authority to issue such temporary or determination by the Court of Criminal Ap ders as it finds necessary to preserve peals of Appellant's Petition fo r Discretion·
rights of parties until disposition of appeal a ry Review . This method, we believe, will and may require such security as it deems best meet the interests of the courts and appropriate. Rules App.Proc., Rule 48(a, the litigants, and will avoid the more dras
c). tic consequences that could follow our adoption of some other course of action. 2. Banks and Banking 4=191.30
We accordingly order the appeal stayed Two issues generally before a Court of pending the issuance of a mandate by the Appea.ls in determining whether to extend Court of Criminal Appeals in appellant's temporary order enjoining presentation of criminal case. If appellant's criminal con letter11 of credit are whether it is necessary viction is upheld by the decision of the
to preserve right.a of parties pending dispo Court of Criminal Appeals, the trial court's sition of appeal of denial of temporary in take-nothing summary judgment in this juncti•>n, and if injunction is necessary, case will be affirmed; otherwise, the trial what the appropriate security is. court's summary judgment will be reversed and the cause remanded. 3. Injunction ~140 There is no necessity for party moving
It is so ORDERED. for temporary order in an appeal to follow formal prerequisites of rule governing orig inal proceedings for writ of mandamus, prohibition, and injunction. Rules App. Proc., Rules 43, 121.
LAMAR BUILDERS, INC., Appellant, 4. Injunction $=>140 v. Movant seeking temporary order pend GUARDIAN SAVINGS & LOAN ing disposition of interlocutory appeal ASSOCIATION, Appellee. should meet same standards for presenta tion of motion and evidence as relators
No. 01-90-00092-CV. seeking relief through original proceeding Court of Appeals of Texas, to protect jurisdiction. Rules App.Proc., Houston (let Dist.). RuleE. 48, 121. Feb. 26, 1990. 5. ln.-Junction $=>140 1'o obtain injunctive relief under rule Motion was filed to stay presentment providing for temporary orders, movant of· letters of credit which were subject of *190 385 U.S. 511 SPEVAOX v. KLEIN 625 Cite as 87 S.Ct. 6!?l! (1967) purposes of the constitutional priv 38& •••• 611 ilege, and which may reasonably be
Samu~SPEVACK,PeUUoner, expected to serve important public v. interests. We are not entitled to as-
Solomon A. KLEIN. sume that discharges will be used ei- No. &i. ther to vindicate impermissible infer- ences of guilt or to penalize privileged
Argued Nov. 7, 1966. silence, but must instead presume that this procedure is only intended and will
Decided Jan. 16, 1967. only be used to establish and enforce standards of conduct for public em- ployees.z As such, it does not minimize or endanger the petitioners' constitu
Disciplinary proceeding against at tional privilege against self-incrimina torney. Th~ New York Supreme Court, tion.3 Appellate Division, Second Department, 610 entered order confirming report of ref I would therefore conclude that the eree and directiJ1g that attorney be dis sanction pZ"Ovided by the State is consti barred and attorney appealed and moved tutionally permissible. From this, it for stay of operation of order of disbar surely follows that the warning given of ment. The Court of Appeals, 16 N.Y.2d the possibility of discharge is constitu 1048, 266 N.Y.S.2d 126, 213 N.E.2d 457, tionally unobjectionable. Given the con stitutionality both of the sanction and of denied motion for stay and affirmed or the warning of its application, the peti
der of disbarment. A motion was made tioners would be constitutionally entitled to amend the remittitur. The Court of to exclude the use of their statements as Appeals, 17 N.Y.2d 490, 267 N.Y.S.2d evidence in a criminal prosecution 210, 214 N.E.2d 373, granted the motion against them only if it is found that the to amend remittitur and certiorari was statements were, when given, involun granted. The Supreme Court. Mr. Jus tary in fact. For the reasons stated tice Douglas, held that refusal of attor above, I cannot agree that these state ments were involuntary in fact. ney to produce demanded financial rec
ords or to testify at judicial inquiry on I would affirm the judgments of the basis that production of records and his Supreme Co:irt of New Jersey. who decline, on grounds of the privilege, 2. The legislative history of N.J.Rev.Stat. to disclose information pertinent to their
2A :81-17.1, N.J.S.A. provides nothing public responsibilities. Judge Frank quot which clearly indicates the purposes of the statute, beyond what is to be inferred from ed the following with approval: " 'Duty required tlwnn to answer. its face. In any event, the New Jersey
Privilege permitted. them to refuse to Supreme Court noted below that the State ans10er. T he11 ohose to e0eroise t he would be entitled, even without the statu privilege, but the ezerclse of Bllch. priv· tory nuthorizntion, to diRcharge state em p\oyee11 who declined to provide informa ilogc was wholly bteonal.stenl with their tion relevant to their official responsibil ctrity as 710Uce offlcers. T hey clnlm t hat itie11. There is therefore nothing to they hnll n co1111titutlon11l right to refllllo which this Court could properly now look to nnswer under the c l reumstn n~ . but lhey hod no co11atit11tio11ai to forecast the purpoees for which or cir • • • right to remain poHce officers in the cumstances in which New Jersey might discharge those who have invoked the face of their clear violation of the duty constitutional privilege. imposed upon them.' Ohriatal v. Police
Commission of San Francisco". Citing 3. The lnte Judge Jerome Frank thus once 33 Cal.App.2d 004, 92 P.2d 416. (Em noted, in the course of a spirited defense phasis added by Judge Frank.) United of the privilege, thnt It would be entirely States v. Field, 2 Cir., 193 F .2d 92, 106 permissible to discharge police officers (separate opinion) .
87 S.Ct.-40 *191 87 SUPREME COURT REPORTER 385 U.S. 511 U .S.C.A.Const. testimony would tend to incriminate him ment privilege costly. was not ground for disbarment. Amends. 5, 14.
See publiC'ation Words nnd Phrnses Reversed. for other ju<liciol constructions and definitions.
Mr. Justice Harlan, Mr. Justice Clark, Mr. Justice Stewa:·~. and Mr. Jus 5. Witnesses ~29'7(1) tice White dissented. Privilege against self-incrimination should be accorded a liberal construction. For dissenting opinion of Mr. Jus U.S.C.A.Const. Amend. 5. tice White see 87 S.Ct. 636. 6. Witnesses ~806 LawyerJ are not excepted from words of Fifth Amendment that no per 1. CoMtttutlonal Law ~251 son shall be compelled in any case to be Self-incrimination clause of Fifth witness against himself and no exception Amendment has been absorbed in Four can be implied. U.S.C.A.Const. Amend. teenth Amendment and applies to states; 6. overruling Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. U .S.C.A.
'7. Attorney and Client €:=>57 Const. Amends. 5, 14. Where, in New York disciplinary proceeding, applicability of privilege 2. Constitutional Law ~806 against self-incrimination to records of Self-inc."imination clause of Fifth attorn~y was not questioned and attorney Amendment as absorbed in Fourteenth was disbarred on theory that privilege Amendment extends its protection to was applicable to records but that in lawyers and should not be watered down vocation of privilege could lead to dis by imposing dishonor of disbarment and barment, disbarment could not be affirm deprivation of JivelihooC: as price for as ed on ground that privilege was not ap serting it; overruling Cohen v. Hurley, plicable in first place. U.S.C.A.Const. 366 U.S. 11'1, 81 S.Ct. 954, 6 L.Ed.2d 156. Amend. 5; Supreme Court Rules, App. U.S.C.A.Const. Amends. 5, 14. Div., 2nd Dept., N.Y., Part 3, rule 4(6). 8. Attorney and Cllent ~45 Refusal of attorney in disciplinary proceeding to produce demanded finan 512 Lawrence J. Latto, Washington, D. C., cial records and to testify at judicial in for petitioner. quiry on basis that production of records and his testimony would tend to incrim Solomon A. Klein, for respondent, pro inate him was not ground for disbar se. ment. U.S.C.A.Const. Amends. 5, 14.
Mr. Justice DOUGLAS announced 4. Constttutlonal Law ~251 the judgment of the Court and deliv Within rule that Fourteenth Amend ered an opinion in which THE CHIEF Jus ment secures against state invasion the TICE, MR. JUSTICE BLACK and MR. JUS same privilege that Fifth Amendment TICE BRENNAN concur. guarantees against federal infringement,
This is a proceeding to discipline peti that is, right of person to remain silent tioner, a member of the New York Bar, unless he chooses to speak in unfettered for professional misconduct. Of the exercise of his own will, without suffer various charges made, only one survived, ing penalty for such silence, "penalty" is viz., the refusal of petitioner to honor a not restricted to fine or imprisonment subpoena duces tecum served on him in but means imposition of any sanction that he refused to produce the demanded financial records and refused to testify at which makes assertion of Fifth Amend- *192 386 U.S. 614 SPEVAOX v. KLEIN 627
Cite as 87 a.ct. 6211 (1967) the judicial inquiry. Petitioner's sole de- U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. fense was that the production of the rec- While Cohen v. Hurley was not over- ords and his testimony would tend ruled, the majority indicated that the
1113 principle on which it rested had been to in- seriously eroded. 37E U.S., at 11, 84 criminate him. The Appellate Division S.Ct., at 1495. One minority view es of the New York Supreme Court ordered poused by Mr. Justice Harlan and Mr. petitioner disbarred, holding that the Justice Clark stated that Cohen v. Hur constitutional privilege against self-in- Jey flatly decided that the Self-Incrim crimination was not available to him in ination Clause of the Fifth Amendment light of our decision in Cohen v. Hurley, was not applicable against the States 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. (id., 378 U.S. at 17, 84 S.Ct. at 1498) See 24 A.D.2d 653. The Court of Appeals and urged that it be followed. su. affirmed, 16 N.Y.2d 1048, 266 N.Y.S.2d The 126, 213 N.E.2d 457, 17 N.Y.2d 490, 267 N.Y.S.2d 210, 214 N.E.2d 373. The case others in dissent-Mr. Justice White is here on certiorari which we granted to and Mr. Justice Stewart-thought that determine whether Cohen v. Hurley, su on the facts of the case the privilege pra, had survived Malloy v. Hogan, 378 was not properly invoked and that the state trial judge should have been sus U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
tained in ruling that the answers would Cohen v. Hurley was a five-to-four de not tend to incriminate. Id., 378 U.S. at cision rendered in 1961. It is practically 33-38, 84 S.Ct. 1506-1509. on all fours with the present case. There, The Appellate Division distinguished as here, an attorney relying on his privi Malloy v. Hogan on the ground that there lege against self-incrimination refused to the petitioner was not a member of the testify and was disbarred. The majority
Bar. 24 A.D.2d, at 654. And the Court of the Court allowed New York to con of Appeals rested squarely on Cohen v. strue her own privilege against self-in Hurley as one of the two grounds for af crimination so as not to make it available firmance.1 in judicial inquiries of this character (366 U.S., at 125-127, 81 S.Ct., at 959,
[1-3] And so the question emerges 960) and went on to hold that the Self whether the principle of Malloy v. Hogan Incrimination Clause of the Fifth is inapplicable because petitioner is a Amendment was not applicable to the member of the Bar. We conclude that States by reason of the Fourteenth. Id., Cohen v. Hurley should be overruled, that 366 U.S. at 127-129, 81 S.Ct. at 960-962. the Self-Incrimination Clause of the The minority took the view that the full Fifth Amendment has been absorbed in sweep of the Fifth Amendment had been the Fourteenth, that it extends its pro absorbed into the Fourteenth and extend tection to lawyers as well as to other in ed its protection to lawyers as well as dividuals, and that it should not be other persons. watered down by imposing the dishonor In 1964 the Court in another five-to of disbarment and the deprivation of a four decision held that the Self-Incrimi livelihood as a price for asserting it. nation Clat.:se of the Fifth Amendment These views, expounded in the dissents in was applicable to the States by reason of Cohen v. Hurley, need not be elaborated the Fourteenth. Malloy v. Hogan, 378 again. by Mm. Dn\118 v. Unltnrl .'tnt s, 328 I. "Order affirmed on the authority of
Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. U .•. 5 2, 60 S.Ct. 125G, 90 r,.F.11. 1453 ; 954, 6 L.Ed.2d lM, and on the further Shn11iro v. Unit d Stnlc.q, 335 U . . l , 68 ground that the Fifth Amendment privi S.Ct. 1375, 02 L .Etl. l7 7." 0 N.Y.2cl 1018. 1050, 266 N.Y.S.2tl 126. 127, 213 lege does not apply to a demand, not for oral testimony, but that nn attorney pro· N.E.211 •J57-•11)8. duce records required by law to be kept *193 87 SUPREME COURT REPORTER 385 U.S. 614 We said in Malloy v. Hogan: legal modes of procedure. This can
only be obviated by adhering to the "The Fourteenth Amendment se rule that constitutional provisions for cures against state invasion the same the security of person and property privilege that the Fifth Amendment should be liberally construed. A close guarantees against federal infringe and literal construction deprives them ment-the right oi a person to remain of half their efficacy, and leads to silent unless he chooses to speak in the gradual depreciation of the right, as if unfettered exercise of his own will, and it consisted more in sound than in sub to suffer no penalty * * * for such stance. It is the duty of courts to be silence." 378 U.S., at 8, 84 S.Ct., at watchful for the constitutional rights 1493. [2] of the citizen, and against any stealthy encroachments thereon," 116 U.S., at
&15 635, 6 S.Ct., at 535. [ 4] In this context "penalty" is not restricted to fine or imprisonment. It 518 means, as we said in Griffin v. State of [5, 6] The threat of disbarment and California, 380 U.S. 609, 85 S.Ct. 1229, the loss of professional standing, profes 14 L.Ed.2d 106, the imposition of any sional reputation, and of livelihood are sanction which makes assertion of the powerful forms of compulsion to make a Fifth Amendment privilege "costly."
lawyer relinquish the privilege. That Id., 380 U.S. at 614, 85 S.Ct. at 1233. We threat is indeed as powerful an instru held in that case that the Fifth Amend ment of compulsion as "the use of legal ment, operating through the Fourteenth,
process to force from the lips of the ac "forbids either comment by the prosecu cused individual the evidence necessary tion on the accused's &ilence or instruc to convict him * * *." United States tions by the court that such silence is evi
v. White, 322 U.S. 694, 698, 64 S.Ct. dence of guilt." Id., 380 U.S. at 615, 85 1248, 1251, 88 L.Ed. 1542. As we recent S.Ct. at 1233. What we said in Malloy ly stated in Miranda v. State of Arizona, and Griff in is in the tradition of the 384 U.S. 436, 461, 86 S.Ct. 1602, 1620, 16 broad protection given the privilege at L.Ed.2d 694, "In this Court, the privi least since Boyd v. United States, 116 lege has consistently been accorded a U.S. 616, 634-635, 6 S.Ct. 524, 534-535, liberal construction." It is in that tradi 29 L.Ed. 746, where compulsory produc tion that we overrule Cohen v. Hurley. We find no room in the privilege against tion of books and papers of the owner of self-incrimination for classifications of goods sought to be forfeited was held to
people so as to deny it to some and extend be compelling him to be a witness against it to others. Lawyers are not excepted himself. from the words "No person * * * "It may be that it is the obnoxious shall be compelled in any criminal case to thing in its mildest and least repulsive be a witness against himself"; and we form; but illegitimate and unconstitu can imply no exception. Like the school tional practices get their first footing teacher in Slochower v. Board of Higher in that way, namely, by silent ap Education of City of New York, 350 U.S. proaches and slight deviations from 551, 76 S.Ct. 637, 100 L.Ed. 692, and the
2. Kimm v. Roeenberg, 363 U.S. 405, 80 if nny, would be cleddecl the other way S.Ct. 1139, 4 L.Ed.2c1 1299, much relied because of "the right of n person to re on here, was a five-to-four decision the main silent unless he chooses to speak in other way and accurately reflected the the unfettered exercise of his own will, encl to suffer no penalty • • • for pre-Malloy v. Hogan, construction of the such silence," a11 declared In Malloy v. Fifth Amendment. We do not stop to re· examine nil the other prior decieions of Hogan, supra, 378 U.S. at 8, 84 S.Ct. that vintage to determine which <1f them, 1493. (Italics ndded.)
*194 SPEVAOK v. KLEIN 629
386 U.S. 618
cue as 87 s.ct. 625 11067) policemen in Garrity v. State of New called them records with "public aspects, .. Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L. as distinguished from private papers. Ed.2d 562,3 lawyers also enjoy first- (335 U.S., at 34, 68 S.Ct., at 1393); and class citizenship. concluded by a divided vote that their
compelled production did not violate the The Court of Appeals alternately af Fifth Amendment. We are asked t<> firmed the judgment disbarring petition overrule Shapiro. But we find it unnec er on the ground that under Shapiro v. essary to reach it. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, and the required records
[7] Rule 5, requiring the keeping of doctrine he was under a duty to produce records, was broad and general-"the the withheld records. The Court of Ap pleadings, records and other papers per peals did not elaborate on the point; nor taining to such action, claim and proceed did the Appellate Division advert to it.
ing, and also all data and memoranda of At the time in question the only Rule the disposition thereof." The detailed fi governing the matter was entitled "Pres nancial aspects of contingent-fee litiga ervation of records of actions, claims tion demanded might possibly by a broad, and proceedings.'' ' It provided that in generous construction of the Rule be cases involving "contingent fee compen brought within its intendment. Our· sation" attorneys
problem, however, is different. Neither 517 the referee of the inquiry, nor counsel for for all the parties shall
the inquiry, nor the Appellate Division preserve "the pleadings, records and of the New York Supreme Court ques other papers pertaining to such action, tioned the applicability of the privilege claim and proceeding, and also all data against self-incrimination to the records. and memoranda of the disposition there All proceeded on the basis that petitioner of, for the period of at least five years could invoke the privilege with respect t<> after any settlement or satisfaction of the the action, claim or proceeding or judg 518 records, but that the price he might ment or final order thereon, or after the have to pay was disbarment. The Court. dismissal or discontinuance of any action
of Appeals was the first to suggest that or proceeding brought.'' the privilege against self-incrimination The documents sought in the subpoena was not applicable to the records. Peti were petitioner's daybook, cash receipts tioner, however, had been disbarred on book, cash disbursements book, check the theory that the privilege was appli book stubs, petty cashbook and vouchers, cable to the records, but that the invoca general ledger and journal, canceled tion of the privilege could lead to disbar checks and bank statements, passbooks ment. His disbarment cannot be affirm and other evidences of accounts, record of ed on the ground that the privilege was. loans made, payroll records, and state and not applicable in the first place. Cole v. federal tax returns and worksheets rela State of Arkansas, 333 U.S. 196, 201, 68. tive thereto. S.Ct. 514, 517, 92 L.Ed. 644. For that procedure would deny him all opportunity The Shapiro case dealt with a federal price control regulation requiring mer at the trial to show that the Rule, fairly chants to keep sales records. The Court construed and understood, should not be 3. Whether a policeman, who invokes the 4. Rule 5 of the Special Rules of the Sec
privilege when his conduct aa a police ond Dept., Appellate Division. Rule 5 officer is questioned in disciplinary pro was subsequently amended and renum ceedings, may be discharged for refusing bered as Special Rule IV ( 6). See Civil Practice Annual of New York 9-24 to testify le a question we did not reach.
(1964). *195 385 U.S. 618 87 SUPREME COURT REPORTER given a broad sweep [11] and to ment by the State. This Court has never held, for example, that a policeman may 619 make a not be discharged for refusal in disciplin record that the documents demanded by ary proceedings to testify as to his con the subpoena had no "public aspects" duct as a police officer. It is quite a within the required records rule but were different matter if the State seeks to use private papers. the testimony given under this HO Reversed. lash in a subsequent criminal proceeding. Gar Mr. Justice FORTAS, concurring in rity v. State of New Jersey, 385 U.S. 493, the judgment. 87 S.Ct. 616, 17 L.Ed.2d 562. I agree that Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961), But a lawyer is not an employee of the should be overruled. But I would dis State. He does not have the responsibil tinguish between a lawyer's right to re ity of an employee to account to the State main silent and that of a public employee for his actions because hJ does not per who is asked questions specifically, di form them as agent of the State. His rectly, and narrowly relating to the per respo11sibility to the State is to obey its formance of his official duties as dis laws and the rules of conduct that it has tinguished from his beliefs or other mat generally laid down as part of its licens ters that are not within the scope of the ing procedures. The special responsibil specific duties which he undertook faith ities that he assumes as licensee of the fully to perform as part of his employ- State and officer of the court do not • •
• • • 5. Counsel for respomlent conceded on ornl argument thnt the subpoena was bronder "A. [T]he New York Court of Ap thnn Rule 5: peals, speaking for the State of New
"Q. Is this subpoena coextensive with York, enys these are required records. the provisions of the order about keep "Q. I suppose that if he produced just ing the financial records or does the sub the records thnt were required-thot he poena go beyond? wos required to keep-thnt that might
"A. I would say in my judgment it very well constitute a waiver os to other goes beyond. • • • There is room for records. reasonable argument that some of the "A. No, no it would not. • • • items cnlled for in the subpoena might "Q. Why not? perhaps be argued to not come within the "A. Because if the other records were required records I am t11lking about. held not to come within the required rec
"Q. Would you mind relnting those to ords doctrine he would have the privilege us? Tell us whnt those are. • • • to do that, but he has no privilege. Cash disbursements? "Q. I am not sure. Are you sure
"A. I would say do come under the about that? • • • I would eny that records. • • • I would exclude as the common understanding is thnt if he not coming within the st11tute the fed produces some of the records relating to eral and state tnx returns for example. a given subject matter, that is a waiver • • •
of privilege ns to the balance of the rec
"Q. How about worksheets • • • ? ords relnting to the subject matter. Am "A. ·worksheets? Out. • • • I wrong about that? "Q. You menu nil of item 12 • • • "A. I would not agree with thnt. It
would be out? is an argument that could be made but I "A. Item 12---copies of federal and would disagree with it for this renson. state tax returns, nccountants' work Under the doctrine of Shapiro v. United sheets, and all other • • • I do not States, he has no Fifth Amendment priv include them. ilege as to records that are required to
"Q. They would all be outside the be kept. He does hnve Fifth Amend rules? ment privilege as to records he i3 not "A. Yes. required to keep and also as to refusal • • • • •
to give oral testimony."
"Q. But the demand was for records beyond the records that he w11.s required to keep.
*196 886 U.S. 622 SPEVAOK v. KLEIN Cite as 87 S.Ct. 626 (1967) carry with them a diminution, however like petitioner, prevents full inquiry into limited, of his Fifth Amendment rights. his professional behavior. And, still Accordingly, I agree that Spevack could more pervasively, this decision can hard not be disbarred for asserting his privi ly fail to encourage oncoming generations lege against self-incrimination. of lawyers to think of their calling as im
posing on them no higher standards of If this case presented the question behavior than might be acceptable in the whether a lawyer might be disbarred for general market-place. The soundness of refusal to keep or to produce, upon prop erly authorized and particularized de a constitutional doctrine carrying such mand, records which the lawyer was denigrating import for our profession is lawfully and properly required to keep by
surely suspect on its face. the State s.s a proper part of its func Six years ago a majority of this Court, tions in relation to him as licensor of his
in Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. high calling, I should feel compelled to 954, 6 L.Ed.2d 156, set its face against vote to affirm, although I would be pre the doctrine that now prevails, bringing pared in an appropriate case to re-exam
to bear in support of the Court's holding, ine the scope of the principle announced among other things, the then-established in Shapiro v. United States, 335 U.S. 1, constitutional proposition that the Four 68 S.Ct. 1375, 92 L.Ed. 1787 ( 1948). I teenth Amendment did not make appli am not prepared to indicate doubt as to
cable to the States the Fifth Amendment the essential validity of Shapiro. How as such. Three years later another ma ever, I agree that the required rec jority of the Court, in Malloy v. Hogan, ords issue is not appropriately presented 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, here, for the reason3 stated by my decided to make the Fifth Amendment Brother DOUGLAS. On this basis I applicable to the States and in doing so join in the judgment of the Court.
cast doubt on the continuing vitality of Cohen v. Hurley. The question now is
Mr. Justice HARLAN, whom Mr. Jus whether Malloy requires the overruling tice CLARK and Mr. Justice STEWART of Cohen in its entirety. For reasons join, dissenting. that follow I think it clear that it does This decision, made in the name of the not. Constitution, permits a lawyer suspected of professional misconduct to thwart di It should first be emphasized that the rect official inquiry of him without fear issue here is plainly not whether lawyers of disciplinary action. What is done to may "enjoy first-class citizenship." day will be disheartening [522]
Nor 521 and frustrating is the issue whether lawyers may be de to courts and bar associations through prived of their federal privilege against out the country in their efforts to main self-incrimination, whether or not crimi tain high standards at the bar. nal prosecution is undertaken against
them. These diversionary questions have It exposes this Court itself to the pos of course not been presented or even re sible indignity that it may one day have motely suggested by this case either here to admit to its own bar such a lawyer or in the courts of New York. The unless it can somehow get at the truth of plurality opinion'1::1 vivid rhetoric thus suspicions, the investigation of which the serves only to obscure the issues with applicant has previously succeeded in which we are actually confronted, and to blocking. For I can perceive no distinc hinder their serious consideration. The tion between "admission" and "disbar true question here is instead the proper ment" in the rationale of what is now scope and effect of the privilege against held. The decision might even lend some color of support for justifying the ap self-incrimination under the Fourteenth pointment to the bench of a lawyer who, Amendmen~ in state disciplinary proceed- *197 385 U.S. 622 87 SUPREME COURT REPORTER ings against attorneys.1 In particular, Court would require their consideration. Bates v. City of Little Rock, 361 U.S. we are required to determine whether pe 516, 80 S.Ct. 412, 4 L.Ed.2d 480. I titioner's disbarment for his failure to provide information relevant to charges therefore first turn to these factors to of misconduct in carrying on his law assess the validity under the Fourteenth practice impermissibly vitiated the pro Amendment of petitioner's disbarment. tection afforded by the privilege. This
It cannot be claimed that the purposes important question warrants more com served by the New York rules at issue plete and discriminating analysis than here, compendiously aimed at "ambu that given to it by the plurality opinion. lance chasing" and its attendant evils, This Court reiterated only last Term are unimportant or unrelated to the pro that the constitutional privilege against tection of legitimate state interests. self-incrimination "has never been given This Court has often held that the States the full scope which the values it helps have broad authority to devise both re to protect suggest." Schmerber v. quirements for admission and standards State of California, 384 U.S. 757, 762, of practice for those who wish to enter 86 S.Ct. 1826, 1831, 16 L.Ed.2d 908. the professions. E. g., Hawker v. People The Constitution contains no formulae of State of New York, 170 U.S. 189, with which we can calculate the areas 18 S.Ct. 573, 42 L.Ed. 1002; Dent v. within this "full scope" to which the State of West Virginia, 129 U.S. privilege should extend, and the Court 114, 9 s.ct. 231, a2 L.Ed. 623; has therefore been obliged to fashion for Barsky v. Board of Regents of Univer itself standards for the application of sity of State of New York, 347 U.S. the privilege. In federal cases stemming 442, 74 S.Ct. 650, 98 L.Ed. 829. The from Fifth Amendment claims, the Court States may demand any qualifications has chiefly derived its standards from which have "a rational connection with the applicant's fitness or capacity," consideration of two factors: the his tory and purposes of the privilege, and Schware v. Board of Bar Examiners of the character and urgency of the other State of New Mexico, 353 U.S. 232, 239, public interests 77 S.Ct. 752, 756, 1 L.Ed.2d 796, and
H3 may exclude any applicant who fails to involved. See, e. g., Or- satisfy them. In particular, a State may loff v. Willoughby, 345 U.S. 83, 73 S.Ct. require evidence of good character, and 534, 97 L.Ed. 842; Davis v. United may place the onus of its production up States, 328 U.S. 582, 66 S.Ct. 1256, 90 on the applicant. Konigsberg v. State L.Ed. 1453; Shapiro v. United States, Bar of California, 366 U.S. 36, 81 S.Ct. 335 U.S. 1, 68 S.Ct. 1376, 92 L.Ed. 1787. 997, 6 L.Ed.2d 105. Finally, a State If, as Malloy v. Hogan, supra, suggests, may without constitutional objection re the federal standards imposed by the quire in the same fashion continuing Fifth Amendment are now to be ex evidence of professional and moral fit tended to the States through the Four ness as a condition of the retention of teenth Amendment, see also Griffin v. the right to practice. Cohen v. Hurley, State of California, 380 U.S. 609, 85 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d S.Ct. 1229, 14 L.Ed.2d 106, it would 156. All this is in no way questioned follow that these same factors must be by today's decision. no less relevant in cases centering on Fourteenth Amendment claims. In any
SH
event, the construction consistently given As one prerequisite of continued prac tice in New York, the Appellate Division, to the Fourteenth Amendment by this L No claim hns been mnde either here or claim the privilege agninst self-incrlmln11-
in the stnte courts that the underlying tion. We therefore deal with the cnse on the premise that hie claim of privilege wns facts representing petitioner's alleged con duct were not such as to entitle him to properly 11sserted.
*198 385 v.s. 6215 SPEVAOK v. KLEIN 633
Cite as 87 S.Ct. 821S (1967)
Second Department, of the Supreme by these rules, the plurality opinion has Court of New York has determined that seemingly concluded that they may not attorneys must actively assist the courts be enforced because any consequence of and the appropriate professional groups a claim of the privilege against self in the prevention and detection of un incrimination which renders that claim ethical legal activities. The Second De "costly" is an "instrument of compul partment demands that attorneys main sion" which impermissibly infringes on tain various records, file statements of the protection offered by the privilege. retainer in certain kinds of cases, and Apart from brief obiter dicta in recent upon request provide information, all opinions of this Court, this broad prop relevant to the use by the attorneys of osition is entirely without support in the contingent fee arrangements in such construction hitherto given to the priv cases. These rules are intended to pro ilege, and is directly inconsistent with tect the public from the abuses revealed a series of cases in which this Court by a lengthy series of investigations of has indicated the principles which are malpractices in the geographical area properly applicable here. The Court has represented by the Second Department. not before held that the Federal Govern It cannot be said that these conditions ment and the States are forbidden to are arbitrary or unreasonable, or that permit any consequences to result from they are unrelated to an attorney's con a claim of the privilege; it has instead tinued fitness to practice. English recognized that such consequences may vary widely in kind and intensity, and courts since Edward I have endeavored tu regu1ate the qualification and practice that these differences warrant individual of lawyers, always in hope that this examination both of the hazard, if any, might better assure the integrity and offered to the essential purposes of the evenhandedness of the administration of privilege, and of the public interests pro justice. [2] Very similar efforts have been tected by the consequence. This process made in the United States since the 17th is far better calculated than the broad century. [3] These efforts have protected prohibition embraced by the plurality to the systems of justice in both countries serve both the purposes of the privilege from abuse, and have directly contributed and the other important public values which are often at stake in such cases. to public confidence in those systems. It would assure the integrity of the Such efforts give appropriate recognition privilege, and yet guarantee the most to the principle accepted both here and in England that lawyers are officers of generous opportunities for the pursuit of the court who perform a fundamental other public values, by selecting the rule role in the administration of justice.4 or standard most appropriate for the hazards and characteristics of each con The rules at issue here are in form and spirit a continuation sequence.
625 One such rule has already been plainly of these efforts, and accordingly are reasonably calcu approved by this Court. It seems clear lated to serve the most enduring inter
to me that this rule is applicable to the ests of the citizens of New York. situation now before us. The Court has Without denying the urgency or sig repeatedly recognized that it is permis nificance of the public purposes served sible to deny a status or authority to 4. Evidences of this principle may be found 2. The history of these efforts is outlined
in Collen, A History of the English Bar in the opinions of this Court. See, e. g., and A ttornatus to 1450, 277 et seq., 2
Ex parte Bradley, 7 Wall. 364, 19 L.Ed. Holdsworth, A History of English Law 214; Powell v. State of Alabama, 287 317, 504 et seq.; 6 id., 431 et seq.
U.S. 45, 53 S.Ct. Mi, 77 L.Ed. 158; Gideon v. Wainwright, 372 U.S. 335, 83 3. These efforts are traced in Warren, His tory of the American Bar, passim. S.Ct. 792, 9 L.Ed.2d 799. 87 S.Cl.-401/z *199 87 SUPREME OOURT REPORTER 38'5 U.S. 526 a claimant of the privilege against the 527 [588] self answers might incriminate him. The incrimination if his claim has prevented petitioner could not prevent the applica full assessment of his qualifications for tion of a sanction imposed as a result the status or authority. Under this rule, of his silence by interposing the priv the applicant may not both decline to ilege against self-incrimination as a ba disclose information necessary to dem
sis for that silence. onstrate his fitness, and yet demand that These principles have also been em he receive the benefits of the status. ployed by this Court to hold that failure He may not by his interjection of the to incriminate one's self can result in privilege either diminish his obligation denial of the removal of one's case from to establish his qualifications, or escape a state to a federal court, Maryland v. the consequences exacted by the State Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, for a failure to satisfy that obligation. 70 L.Ed. 449, and by the Fourth Circuit This rule was established by this Court to hold that a bankrupt's failure to dis in Orloff v. Willoughby, 345 U.S. 83, 73 close the disposition of his property, al S.Ct. 534, 97 L.Ed. 842. The Court though disclosure might incriminate him, there held that a doctor who refused, requires the denial of a discharge in under a claim of the privilege against bankruptcy. Kaufman v. Hurwitz, 4 self-incrimination, to divulge whether he Cir., 176 F.2d 210. was a Communist was not entitled by
This Court has applied similar prin right to receive a commission as an Army ciples in a series of cases involving officer, although he had apparently sat· claims under the Fourteenth Amend isfied every other prerequisite for a com ment. These cases all antedate Malloy mission. The Court expressly noted that v. Hogan, and thus are presumably now "[n]o one believes he can be pun subject to the "federal standards," but ished" for asserting the privilege, but until today those standards included the said that it had "no hesitation" in hold principles of Orloff v. Willoughby, and ing that the petitioner nonetheless could Malloy v. Hogan therefore could not alone not both rely on the privilege to deny require a different result. The fulcrum relevant information to the commission of these cases has been Slochower v. ing authorities and demand that he be Board of Higher Education of City of appointed to a position of "honor and New York, 350 U.S. 551, 76 S.Ct. 637, trust." 345 U.S., at 91, 73 S.Ct., at 539. 100 L.Ed. 692. The appellant there was The Court concluded that "we can an associate professor at Brooklyn Col not doubt that the President of the lege who invoked the Fifth Amendment United States, before certifying his con privilege before an investigating com fidence in an officer and appointing him mittee of the United States Senate, and to a cpmmissioned rank, has the right was subsequently discharged from his to learn whatever facts the President position at the college by reason of that thinks may affect his fitness." Ibid. occurrence. The Court held that his re Analogous problems were involved in moval was a denial of the due process Kimm v. Rosenberg, 363 U.S. 405, 80 demanded by the Fourteenth Amend S.Ct. 1139, 4 L.Ed.2d 1299, in which the ment. Its reasons were apparently two: first, the Board had attached a "sinister Court held that an alien whose deporta meaning," in the form of an imputation tion had been ordered was ineligible for a discretionary order permitting his of guilt, to Slochower's invocation of the voluntary departure. The alien was held privilege; and second, the Board was not engaged in a bona fide effort to to be ineligible because he had failed elicit information relevant to assess the to establish that he was not affiliated "qualifications of its P.mployees." Tha with the Communist Party, in that he refused to answer questions about mem state authorities "had possessed the bership in the Party on grounds that pertinent information for 12 years," and *200 SPEVAOlt v. KLEIN 635 386 U.S. 629
Cite as 87 s.ct. 62IS (1967) in any event the questions put to Sloch- low that under the construction consis- ow er tently given by this Court both to the privilege under the Fifth Amendment
528 by the committee were "wholly un and to the Due Process Clause of the related" to his university functions. 350 Fourteenth Amendment, petitioner's dis U.S., at 558. barment is constitutionally permissible.
The elements of the holding in Sloch 5a9 ower have subsequently been carefully The plurality opinion does not pause considered on several occasions by this either to acknowledge the previous han Court. See, e. g., Beilan v. Board of dling of these issues or to explain why Public Education, School Dist. of Phil the privilege must now be supposed to adelphia, 357 U.S. 399, 78 S.Ct. 1317, forbid all consequences which may re 2 L.Ed.2d 1414; Lerner v. Casey, 357 sult from privileged silence. This is U.S. 468, 78 S.Ct. 1811, 2 L.Ed.2d 1423; scarcely surprising, for the plurality Nelson v. Los Angeles County, 362 U.S. opinion would create a novel and en 1, 80 S.Ct. 527, 4 L.Ed.2d 494. These tirely unnecessary extension of the priv cases, when read with Slochower, make ilege which would exceed the needs of plain that so long as state authorities the privilege's purpose and seriously in do not derive any imputation of guilt hibit the protection of other public in from a claim of the privilege, they may terests. The petitioner was not denied in the course of a bona fide assessment his privilege against self-incrimination, of an employee's fitness for public em nor was he _penalized for its use; he ployment require that the employee dis was denied his authority to practice law close information reasonably related to within the State of New York by reason his fitness, and may order his discharge of his failure to satisfy valid obligations if he declines. Identical principles have imposed by the State as a condition of been applied by this Court to applicants that authority. The only hazard in this for admission to the bar who have re process to the integrity of the privilege fused to produce information pertinent is the possibility that it might induce to their professional and moral qualifi involuntary disclosures of incriminating cations. Konigsberg v. State Bar of materials; the sanction precisely cal California, 366 U.S. 36, 81 S.Ct. 997, culated to eliminate that hazard is to ex 6 L.Ed.2d 105; In re Anastaplo, 366 clude the use by prosecuting authorities U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. In of such materials and of their fruits. sum, all these cases adopted principles This Court has, upon proof of involun under the Fourteenth Amendment which tariness, consistently forbidden their use are plainly congruent with those applied since Brown v. State of Mississippi, 297 in Orloff v. Willoughby, supra, and other U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, federal cases to Fifth Amendment claims. and now, as my Brother WHITE has emphasized, the plurality has intensified
The petitioner here does not contend, this protection still further with the and the plurality opinion does not sug broad prohibitory rule it has announced gest, that the state courts have derived today in Garrity v. State of New Jersey, any inference of guilt from petitioner's 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d claim of the privilege. The state courts 562. It is true that this Court has have expressly disclaimed all such in on occasion gone a step further, and ferences. 24 A.D.2d 653, 654. Nor is forbidden the practices likely to produce it suggested that the proceedings against involuntary disclosures, but those cases petitioner were not an effort in good are readily distinguishable. They have faith to assess his qualifications for uniformly involved either situations in continued practice in New York, or that which the entire process was thought the information sought from petitioner both to present excessive risks of coer was not reasonably relevant to those cion and to be foreign to our nccusatorial qualifications. It would therefore fol- *201 87 SUPREME COURT REPORTER 385 U.S. 629 aa5 11.s. 511 system, as in Miranda v. State of Ari
Edward J, GARRITY et al., Appellants, zona, 384 U.S. 436, 86 S.Ct. 1602, 16 v. L.Ed.2d 694, or situations in which the only possible purpose of the practice was STATE OF NEW JERSEY. thought to be to penalize the accused
Samuel SPEVACK, Petitioner, for his use of the constitutional privilege, v. as in Griffin v. State of California, 380 Solomon A. KLEIN. U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Nos. 13, 62. Both situations are plainly remote from Jan. 16, 1967. that in issue here. None of the reasons thought to require the prohibitions
Dissenting opinion. 630 estab For majority opinions see 87 S.Ct. lished in those cases have any relevance 616, 625. in the situation now before us; nothing in New York's efforts in good faith to
Mr. Justice WHITE, dissenting. assure the integrity of its judicial system In No. 13, Garrity v. State of New destroys, inhibits, or even minimizes the Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 petitioner's constitutional privilege. L.Ed.2d 562, the Court apparently holds There is therefore no need to speculate that in every imaginable circumstance whether lawyers, or those in any other the threat profession or occupation, have waived 531 in some unspecified fashion a measure of
of discharge issued by one pub the protection afforded by the constitu lic officer to another will be impermis tional privilege; it suffices that the State sible compulsion sufficient to render sub is earnestly concerned with an urgent sequent answers to questions inadmis~ public interest, and that it has selected sible in a criminal proceeding. I would methods for the pursuit of that interest agree that in some, if not in most, cases which do not prevent attainment of the this would be the proper result. But the privilege's purposes. circumstances of such confrontations are I think it manifest that this Court is of infinite variety. Rather than the required neither by the logic of the privi Court's inflexible, per se rule, the matter lege against self-incrimination nor by should be decided on the facts of each previous authority to invalidate these particular case. In the situation before state rules, and thus to overturn the dis us now, I agree with my Brother HARLAN that the findings of the two barment of the petitioner. Today's appli cation of the privilege serves only to ham courts below shouJd not be overturned. per appropriate protection of other fun
However that may be, with Garrity on damental public values. [5] the books, the Court compounds its error In view of these conclusions, I find it in Spevack v. Klein, No. 62, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574. The peti unnecessary to reach the alternative basis tioner in that case refused to testify and of the Court of Appeals' decision, the to produce any of his records. He in "required records doctrine." See Shapiro criminated himself in no way whatso v. United States, 335 U.S. l, 68 S.Ct. ever. The Court nevertheless holds that 1375, 92 L.Ed. 1787. he may not be disbarred for his refusal I would affirm the judgment of dis to do so. Such a rule would seem justifi· able only on the ground that it is an es- barment. lege, hns been ntloptecl ln a vnrlety of 5. It shoulcl be noted thnt the 11rini•ir1le
thnt a license or status may be cleniecl to situations by statute. See, e. g., 12 u.s.c. § 481; 47 u.s.c. §§ 308(b), 312 one who refuses, under the shelter of the (a) (4); 5 U.S.C. § 2283. constitutional privilege, to disclose infor mation pertinent to thnt status or privi- *202 XASTIGAR v. UNITED STATES 1653
406 U.S. 441 Ctta as 92 S.Ct. 1653 (1972) on double jeopardy, to treat the ver minority viewpoint, but simply for him dict of a nonunanimous jury as a nullity self-and that, in my view, is enough. rather than as a1!l_acquittal. On re The doubts of a single juror are in my trial, the prosecutor may be given the view evidence that the government has opportunity to make a stronger case failed to carry its burden of proving if he can: new evidence may be avail guilt beyond a reasonable doubt. I dis able, old evidence may have disappeared, sent. and even the same evidence may appear in a different light if, for example, the demeanor of witnesses is different. Be cause the second trial may vary substan tially from the first, the doubts of the dissenting jurors at the first trial do 408 V.& -Ml, 311 :r..JJU4 !1112 not necessarily impeach the verdict of Char.lea JOlleph KASTIGAB and Michael a new jury on retrial. But that conclu
Gorean Stewari, Petitioners, sion is wholly consistent with the view v. that the doubts of dissenting jurors create a constitutional bar to conviction UNITED 8TATF.8. at the trial that produced those doubts.
No. 70-117. Until today, I had thought that was the Argued Jan. ll, 1972. law. Decided May 22, 1972. I respectfully reject the suggestion of Rehearing Denied June 26, 1m. my Brother POWELL that the doubts of See 408 U.S. 931, ~ S.Ct. 2478. minority jurors may be attributable to "irrationality" against which some pro tection is needed. For if the jury has Petitioners were ordered to appear before a grand jury and to answer ques been selected properly, and every juror tions under grant of immunity and, on is a competent and rational person, then the "irrationality" that enters into the refusal of the petitioners to answer ques deliberation process is precisely the es tions, after asserting their privilege sence of the right to a jury trial. Each against compulsory self-incrimination, time this Court has approved a change the United States District Court for in the familiar characteristics of the the Central District of California ad jury, we have reaffirmed the principle judged petitioners to be in civil contempt that its fundamental characteristic is its and ordered them confined. The Court capacity to render a commonsense, lay of Appeals, Ninth Circuit, affirmed, 440 men's judgment, as a representative F.2d 954. The Supreme Court granted body drawn from the community. To certiorari, and, speaking through Mr. fence out a dissenting juror fences out a Justice Powell, held that although a grant voice from the community, and under of immunity must afford protection com mensurate with that afforded by the mines. the principle on which our whole notion of the jury now rests. My dis privilege against compulsory self-incrim senting Brothers have pointed to the ination, it need not be broader, and im danger, under a less-than-unanimous munity from use and derivative use is rule, of excluding from the process mem coextensive with the scope of the privi bers of minority groups, whose partici lege and is sufficient to compel testimony over claim of privilege. The Court also pation we have elsewhere recognized as a constitutional requirement. It should held that in any subsequent criminal be emphasized, however, that the fenc prosecution of a person who has been granted immunity to t!!stify, the pros· ing-out problem goes beyond the prob lem of identifiable minority groups. ecution has the burden of proving af The juror whose dissenting voice is un- firmatively that evidence proposed to be
..Ji.os hear~may be a spokesman, not for any used ie derived from a legitimate source *203 92 SUPREME COURT REPORTER 408 17.S. 441 wholly independent of compelled testi er, and immunity from use and deriva mony.
tive use is coextensive with scope of privilege and is sufficient to compel tes
Affirmed. timony over claim of privilege; trans Mr. Justice Douglas and Mr. Justice actional immunity is not required. Marshall dissented and filed opinions. U.S.C.A.Const. Amend. 5; 18 U.S.C.A. Mr. Justice Brennan and Mr. Jus §§ 6001-6005, 6002, 6008; 49 U.S.C.A. tice Rehnquist took no part in consider § 46. ation or decision.
6, Court.a ~92 Broad language of opinion which was unnecessary to court's decision could I. Criminal Law ~898(1) not be considered binding authority. Fifth Amendment privilege against compulsory self-incrimination can be as '1. Criminal Law *=82'1 serted in any proceeding, civil or crim In subsequent criminal prosecution inal, administrative or judicial, investi of person who has been compelled to tes gatory or adjudicatory. U.S.C.A.Const. tify under grant of immunity, prosecu Amend. 5. tion has burden of proving affirmatively
that evidence proposed to be used is de Z. Crbnlnal Law ¢:::1898('1) rived from legitimate source wholly in Fifth Amendment privilege against dependent of compelled testimony. compulsory . self-incrimination protects U.S.C.A.Const. Amend. 5; 18 U.S.C.A. against any disclosures which witness §§ 6001-6005, 6002, 6003. reasonably believes could be used in crim inal prosecution or could lead to other
Syllabus* evidence which might be so used. U.S. C.A.Const. Amend. 5. The United States can compel testi
mony from an unwilling witness who in 8. Crlmlnal Law cs=>393 (1) vokes the Fifth Amendment privilege Fifth Amendment privilege against against compulsory self-incrimination by compulsory self-incrimination does not conferring immunity, as provided by 18 deprive Congress of power to enact U.S.C. § 6002, from use of the compelled properly drawn laws that compel self testimony and evidence derived there incrimination through grant of immu from in subsequent criminal proceedings, nity from prosecution. U.S.C.A.Const. as such immunity from use and deriva Amends. 5, 6; 18 U.S.C.A. §§ 6001-6005, tive use is coextensive with the scope of 6002, 6003. the privilege and is sufficient to compel testimony over a claim of the privilege. 4. Witnesses «S=>S04(S) Grant of immunity, to supplant Transactional immunity would afford privilege against compulsory self-incrim broader protection than the Fifth ination, must be coextensive with scope Amendment privilege, and is not consti of privilege. U.S.C.A.Const. Amend. 5; tutionally required. In a subsequent 18 U.S.C.A. §§ 6001-6005, 6002, 6003; criminal prosecution, the prosecution has 49 U.S.C.A. § 46. the burden of proving affirmatively that
evidence proposed to be used is derived 5. Witnesses «S=>SM(S) from a legitimate source wholly inde Though grant of immunity must af pendent of the compelled testimony. Pp. ford protection commensurate with that 1655-1666. afforded by privilege against compulsory self-incrimination, it need not be broad- 440 F.2d 954, affirmed. • The eyllabue constitutes no part of Statee v. Detroit, Timber & Lumber Co.,
the opinion of the Court but has been pre· 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 pared by the Reporter of Decisions for L.Ed. 499. the convenience of the reader. See United *204 KASTIGAR v. UNITED STATES 406 U.S. 443
Cite as 92 S.Ct.1653 (1M'2) Hugh R. Manes, Los Angeles, Cal., for lege against compulsory oelf-incri'mina petitioners. tion. They were brought before the Dis trict Court, and each persisted in his re Sol. Gen. Erwin N. Griswold, for re fusal to answer· the grand jury's ques spondent. tions, notwithstanding the grant of im munity. The court found both in con
.J!tz ...L Mr. Justice POWELL delivered the tempt, and committed them to the cus opinion of the Court. tody of the Attorney General until either This case presents the question wheth they answered the grand jury's questio11s er the United States Government may or the te1·m of the gl'and jury expired. 1 compel testimony from an unwilling wit The Court o!'.,0ppeals for the Ninth Cir- .l!o ness, who invokes the Fifth Amendment cuit affirmed. Stewart v. United States, privilege against compulsory self-incrim 440 F.2d 954 (CA9 1971). This Court ination, by conferring on the witness granted certiorllri to resolve the impor- immunity from use of the compelled tant question whether testimony may be testimony in subsequent criminal pro compelled by a:ranting immunity from ceedings, as well as immunity from use the use of compelled testimony and of evidence derived from the testimony. evidence derived therefrom ("use and Petitioners were subpoenaed to appear derivative use" immunity), or whether it is necessary to grant immunity from before a United States grand jury in the prosecution for offenses to which com Central District of California on Febru ary 4, 1971. The Government believed pelled testimony relates ("transaction- al" immunity). 402 U.S. 971, 91 S.Ct. that petitioners were likely to assert their 1668, 29 L.Ed.2d 135 (1971). Fifth Amendment privilege. Prior to the scheduled appearances, the Government applied to the District Court for an order
I
directing petitioners to answer questions and produce evidence before the grand
The power of government to compel jury under a grant of immunity con persons to testify in court or before ferred pursuant to 18 U.S.G. §§ 6002, grand juries and other governmental 6003. Petitioners opposed issuance of agencies is firmly established in Anglo the order, contending primarily that the American jurfaprudence.2 The power scope of the immunity provilded by the with respect to courts was established by statute was not coextensiv1~ with the statute in Eng:land as early as 1562, [3] scope of the privilege against self-in and Lord Bacon observed in 1612 that all crimination, and therefore was not suf subjects owed the King their "knowledge ficient to supplant the privilege and com and discovery." [4] While it is not clear pel their testimony. The District Court when grand juries first resorted to com rejected this contention, and ordered pe pulsory process to secure the attendance titioners to appear before the grand ju and testimony of witnesses, the general ry and answer its question!! unde1· the common-law principle that "the public grant of immunity. has a right to every man's evidence" was Petitioners appeared but refused to considered an "indubitable certainty" answer questions, asserting their privi- that "cannot be denied" by 1742.11 The I. The contempt order was issued pursuant 3. Statute of Elizabeth, 5 Eliz. 1, c. 9, § 12
to 28 U.S.C. § 1826. (1562). 2. For a concise history of testimonial com· 4. CounteBS of Shrewsbury's Case, 2 pulsion prior to the adoption of our Con· How.St.Tr. 769, 778 (1612). etitutlon, see 8 J. Wi&'more, Evidence § 2100 (J. McNaughton rev. 1961). See 5. See the parliamentary debate on the Bill Ullmann v. United States, 350 U.S. 422, to Indemnify Evidence, particularly the 439 n. 15, 76 B.Ct. 497, 507, 100 L.Ed. remarks of the Duke of Argyle and Lord 511 (1956) ; Blair v. United States, ~O Chancellor Hardwicke, reparted in 12 T. U.S. 278, 39 S.Ct. 468, 63 L.Ed. 979 Hansard, Parliamentary History of Eng· (1919). *205 406 U.S. 443 92 SUPREME COURT REPORTER
power to compel testimony, and the cor L.Ed. 979. Such testimony consti tutes one of the Government's primary responding duty to testify, are recognized
..J!.u in the Sixth Amen.£ient requirements sources of information." that an accused be confronted with the (1, 2] But the power to compel testi witnesses against him, and have compul mony is not absolute. There are a num- sory process for obtaining witnesses in ber of exemptions from the testimonial his favor. The first Congress recog duty, [7] the most important of which is nized the testimonial duty in the Judici the Fifth Amendment privilege against ary Act of 1789, which provided for compulsory self-incrimination. The priv- compulsory attendance of witnesses in ilege reflects a complex of our fundamen- the federal courts.e Mr. Justice White tal values and aspirations,• and marks an noted the importance of this essential important advance in the development of power of government in his concurring our liberty.• It can be asserted in any opm1on in Murphy v. Waterfront proceeding, civil or criminal, administra- Comm'n, 378 U.S. 62, 93-94, 84 S.Ct. tive or judicial, investigatory or adjudi 1694, 1611, 12 L.Ed.2d 678 (1964): catory; 10 and i!ll>rotects against any .Jits disclosures which the witness reasona-
"Among the necessary and most im bly believes could be used in a criminal portant of the powers of the States as prosecution or could lead to other evi well as the Federal Government to as dence that might be so used. [11] This sure the effective functioning of gov Cour.t hu been zealous to safe&'Uard the ernment in an ordered society is the values which underlie the privilege.1 [2] broad power to compel residents to testify in court or before grand juries Immunity statutes, which have his or agencies. See Blair v. United torical roots deep in Anglo-American ju risprudence,13 are not incompatibl!!J_with ..Jiu States, 260 U.S. 273, 39 S.Ct. 468, 63 land 675, 693 (1812). See also Piemonte 11. Hoffman v. United Statea, 341 U.S. 479, v. United States, 367 U.S. ~6. 559 n. 2, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 81 S.Ct. 1720, 1722, 6 L.Ed.2d 1028 (1951) : Blau v. United Statea, 340 U.S. (1961) ; Ullmann v. United States, av· 169, 71 S.Ct. 223, 95 L.Ed. 170 (1900) : pra, SM U.S., at 439 n. 15, 76 S.Ct., at Mason v. United Statea, 244 U.S. 362, l507; Brown v. Walker, 161 U.S. 591, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198 600, 16 S.Ct. 644, 648, 40 L.Ed. 819 (1917). (1896).
12. See, e. fl., Miranda v. Arizona, 384 U.S. 436, 443-444, 86 S.Ct. 1602, 1611-1612, 6. l Stat. 73, 88-89. 16 L.Ed.2d 694 (1966) : Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524,
7. See Blair v. United States, 1t1pro, ~ 684, 29 L.Ed. 746 (1886). U.S., at 281, 39 S.Ct., at 471; 8 Wig· more, '"pnz., n. 2, H 2192, 2197. 13. Soon after the privilege against com·
pulaory sell-incrimination became firmly 8. See Murphy v. Waterfront Comm'n, 878 establlahed in law, it wa11 recognised that U.S. 52, 55, 84 S.Ct. 1694, 1596, 12 L the privilege did not apply when Im· Ed.2d 678 (1964). munity, or "Indemnity," in the English
usage, had been sranted. See L. Levy, 9. See tm.mann v. United States, 850 U.S., Origina of the Fifth Amendment 328, 495 at 426, 76 S.Ct., at WO; E. Griswold, (1968). Parliament enacted in Immunity The Fifth Amendment Today 7 (1955). statute in 1710 directed againat 11legal
rambling, 9 Anne, c. 14, H 3-4, 10. Morphy v. Waterfront Comm'n, aupra, which became the model for an identical immunity atatute enacted in 1774 by the 378 U.S., at 94, 84 S.Ct., at 1611 (White, J., concurring) ; :McCarthy v. Arndstein, Colonial Lesielature of New York. Law 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. of Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York 621, 623 (1894). 158 (1924) ; United Statea v. Saline Theae atatutea provided that the lo11er Bank, 1 Pet. 100, 7 L.Ed. 69 (1828) : cf. could sue the winner, who waa compelled Gardner v. Broderick, 892 U.S. 278, 88 to answer the loser's charges. After the S.Ct. 1918, 20 L.Ed.2d 1082 (1968).
wfnner re&Ponded and retnrned his ill· *206 KASTIGAR v. UNITED STATES 1657 406 U.S. 447 cite aa 92 s.ct. 16M (t972l these values. Rather, they seek a ration mony are those implicated in the crime. al accommodation between the impera Indeed, their origins were in the context tives of the privilege and the legitimate of such offenses,•~nd their primary _ll•T demands of government to compel citi use has been to investigate such offens- zens to testify. The existence of these es.111 Congress included immunity stat- statutes reflects the importance of testi utes in many of the regulatory measures mony, and the fact that many offenses adopted in the first half of this cen- are of such a character that the only tury .16 Indeed, prior to the enactment persons capable of giving useful testi- of the statute under consideration in
gotten gains, he was "acquitted, Indem Compulsory Immunity Legislation and the nified [immunized] and discharged from Fifth Amendment Privilege: New De any further or other Punishment, For velopments and New Confusion, 10 St. feiture or Penalty, which he Louis U.L.Rev. 327 (1966); and National may have incurre<l by the playing for, and Commission on Reform of Federal Crim winning such Money " 9 inal Lawe, Working Papers, 1406-1411 Anne, c. 14, § 4 (1710) ; Law of Mar. (1970). 9, 1774, c. 1001, 5 Colonial Laws of Xew York, at 623.
14. See, e. g., Resolution of Jan. 6, 17118, Another notable instance of the early n. 13, supra, 6 Pennsylvania Archives use of immunity legislation is the 1725 im (8th series) 4679 (C. Hoban ed. peachment trial of Lord Chancellor 1935); Law of Mar. 24, 1772, c. 11142,
5 Colonial Laws of New York s:n,
Macclesfield. The Lord Chancellor was
accusecl by the House of Commons of the 354; Law of Mar. 9, 1774, c. 16115, sale of public offices and appointments. id., at 639, 642. Bishop Atterbury's In order to compel the testimony of Trial, supra, for which the House of Masters in Chancery who had allegedly Commons llassed immunity legislation, purchased their offices from the LoNI was a i1rosecution for treasonable con Chancellor, and who could incriminate spiracy. See id., at 604-005; 8 Wig themselves by so testifying. Parliament more, supra., n. 2, § 2281, at 492 n. 2. enacte1l a statute granting immunity to Lord Chancellor Maccleefield's Trial, su persons then holding office as Masters in pra, for which Parliament passed immuni Chancery. Lord Chancellor Macclesfield's ty legislation, was a prosecution for politi Trial, 16 How.St.Tr. 767, 1147 (1726). cal bribery involving the sale of public See 8 Wigmore, supra, n. 2, § 2281, at offices and appointments. See id., at 492, See also Bishop Atterbury's Trial, 1147. The first federal immunity statute 16 How.St.Tr. 323, 604-005 (1723). The was enacted to facilitate an investigation legislatures in colonial Pennsylvania arnl of charges of corruption and vote buying New York enacte1l immunity legislation in in the House of Representatives. See the 18th <'entury. See, e.g., Resolution of Comment, n. 13, supra, 72 Yale L.J., at Jan. 6, 171i8, in Votes and Proceedings 1571. of the House of Representatives of the
15. See 8 'Wigmore, supra, n. 2, § 2281, at Province of Pennsylvania (1682-1776), 6 492. Mr. Justice White noted in his Pennsylvania Archives (8th series) 4679 concurring opinion in Murphy v. Water (C, Hoban ed. 1935) ; Law of Mar. 24, front Comm'n, 378 U.S., at 92, 84 S.Ct., 1772, c. 1542, 5 Colonial Lawe of New York 351, 353--354; Law of Mar. 9, 1774, at 1610, that immunity statutes "have c. 1001, id., at 621, 623; Lew of Mar. 9, for more than a century been resorted to 1774, c. 100~, id., at 639, 641-642. for the investigation of many offenses, See generally L. Levy, Origins of
chiefly those whose proof and punishment the Fifth Amendment 359, 384--385, were otherwise impracticable, such as 389, 4-02-403 (1968). Federal immunity political bribery, extortion, gambling, con statutes have existed since 1857. sumer frauds, liquor violations, com· Act of Jan. 24, 1857, 11 Stat. 155. For a mercial larceny, and various forms of history of the various federal immunity racketeering." Id., at 94--95, 84 S.Ct., statutes, see Comment, The Federal Wit· at 1611. See n. 14, s"pra. ness Immunity Acts in Theory and Prac· 16. See Comment, n. 13, supra, 72 Yale L.J., tice: Treading the Constitutional Tight· rope, 72 Yale L.J. 1568 (1963) ; Wendel, at 1576.
92 SUPREME COURT REPORTER
*207 406 U.S. 447 this case, there were in force over 50 644, 40 L.Ed. 819 (1896), and Ullmann federal immunity statutes.n In addition, v. United States, supra, decisions that every State in the Union, as well as the uphold the constitutionality of immunity District of Columbia and Puerto Rico, statutes.n has one or more such statutes.le The
We find no merit to this contention and commentators, 1• and this Court on sev reaffirm the decisions in Brown and Ull eral occasions, [20] have characterized im mann. munity statutes as essential to the effec tive enforcement of various criminal stat utes. As Mr. Justice Frankfurter ob III served, speaking for the Court in Ull [ 4] Petitioners' second contention is mann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), such that the scope of immunity provided by statutes have "become part of our consti the federal witness immunity statute, 18 tutional fabric." [21] Id., at 438, 76 S.Ct., U.S.C. § 6002, is not coextensive with the at 606. scope of the Fifth Amendment privilege
against compulsory self-incrimination, and therefore is not sufficient to sup plant the privilege and compel testimony _i_II
_l!u over a claim of the privilege. The stat [3] Petitioners contend, first, that ute provides that when a witness is com the Fifth Amendment's privilege against pelled by district court order to testify compulsory self-incrimination, which is over a claim of the privilege: that "[n]o person . . shall be com "the witness may not refuse to com- peUed in any criminal case to be a wit ply with the order on the basis of his ness against himself," deprives Congress privilege against self-incrimination; of power to enact laws that compel self but no testimony or other information incrimination, even if complete immunity compelled under the order (or any in from prosecution is granted prior to the formation_i_directly or indirectly de- ...l!o compulsion of the incriminatory testi rived from such testimony or other in mony. In other words, petitioners assert formation) may be used against the that no immunity statute, however witness in any criminal case, except a drawn, can afford a lawful basis for prosecution for perjury, giving a false compelling incriminatory testimony. statement, or otherwise failing to com- They ask us to reconsider and overrule ply with the order." 11s 18 U.S.C. § Brown v. Walker, 161 U.S. 591, 16 S.Ct. 6002. 17. For a listing of these etatutee, see Xa Act of 1893, 27 Stat. 443, the moilel for tional Commission on Reform of Federal almost all federal immunity statutes prior 0l'iminal Laws, Working Papers, 1444- to the enactment of the statute under 1445 (1970). consideration in this case. See Murphy v. Waterfront Comrn'n, 378 U.S., at 95, 84 18. For a listing of theee statutes, see 8 Wigmore, 1upra., n. 2, f 2281, at 495 n. 11. S.Ct., at 1612 (White, J., concurring). 22. Accord, Gardner v. Broderick, 392 U.S., 19. See, e. g., 8 J. Wigmore, Evidence § at 276, 88 S.Ct.. at 1915 i Murphy v. 2281, at Ml (3d ed. 194-0) ; 8 Wigmore, "'aterfront Comm'n, supra; McCarthy aupra, n. 2, § 2281, at 496. v. Arndstein, 266 U.S., at 42, 45 S.Ct., at 17 (Brandeis, J.); Heike v. Uniteo..I 20. See Hale v. Henkel, 201 U.S. 43, 70, 26 States, 227 U.S. 131, 142, 33 S.Ct. 226, S.Ct. 370, 377, 50 L.Ed. 662 (1906); 228, 57 L.Ed. 450 (1913) (Holmes, J.). Brown v. Walker, 161 U.S., at 610, 16 S.Ct., at 652.
23. For other provisions of the 1970 Act 21. Thie statement was made with specific relative to immunity of witnesses, see 18 u.s.c. §§ 6001~. reference to the Compulsory Testimony *208 406 U.S. 450 KABTIGAR v. UNITED STATES ctte aa 92 s.ct. 1e:sa (1972) The constitutional inquiry, rooted in be given in evidence, or in any manner used against him . in any court logic and history, as well as in the deci of the United States . "21 No~ sions of this Court, is whether the im withstanding a grant of immunity and munity granted under this statute is co order to testify under the revised 1868 extensive with the scope of the privi Act, the witness, asserting his privilege lege." If so, petitioners' refusals to an against compulsory self-incrimination, swer based on the privilege were unjusti refused to testify before a federal grand fied, and the judgments of contempt were jury. He was consequently adjudged in proper, for the grant of immunity has contempt of court.ii& On appeal, this removed the dangers against which the Court construed the statute as affording privilege protects. Brown v. Walker, a witness protection only against the use If, on the other hand, the im supra. of the specific testimony compelled from munity granted is not as comprehensive him under the grant of immunity. This as the protection afforded by the privi construction meant that the statute lege, petitioners were justified in refus "could not, and would not, prevent the ing to answer, and the judgments of con use of his testimony to search out other tempt must be vacated. McCarthy v. testimony to be used in evidence against Arndstein, 266 U.S. 34, 42, 45 S.Ct. 16, him." [29] Since the revised 1868 Act, as 17, 69 L.Ed. 158 (1924). construed by the Court, would permit the use against the immunized witness of
Petitioners draw a distinction between evidence derived from his compelled tes statutes that provide transactional im timony, it did not protect the witness to munity nnd those that provide, as does the same extent that a claim of the privi tho statute before us, immunity from use lege would protect him. Accordingly, and derivative use.211 They contend that under the principle that a grant of im a statute must at a minimum grant full munity cannot .supplant the privilege, transactional immunity in order to be and is not sufficient to compel testimony coextensive with the scope of the privi over a claim of the privilege, unless the lege. In support of this contention, they scope of the grant of immunity is coex rely on Counselman v. Hitchcock, 142 tensive with the scope of the privilege, [30] U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 the witness' refusal to testify was held (1892), the first case in which this Coul'l proper. In t he course of its opinion, tt.e considered a constitutional challenge to
Court made the follow ing statement, on an immunity statute. The statute, a re which petitioners heavily rely: enactment of the Immunity Act of "We are clearly of opinion that no 1868," provided that no "evidence ob statute which leaves the party or wit- tained from a party or witness by means ..l!.&o of a judicia!!Proceeding shall 28. In re Counselman, 44 F. 268 (CCND Ill. 1890). 24. See, e. g., Murphy v. Waterfront Comm'n, BUf)ra., 378 U.S. at M, 78, 84 29. Counselman v. Hitchcock, suf)ra, 142 S.Ct., at 1596, 1609, 12 L.Ed.2d 678; U.S., at ti64, 12 S.Ct., at 198-199. Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 30. Precisely, the Court held "that legisla (1892). tion cannot abridge a constitutional priv
ilege, and that it cannot replace or sup 25. See Piccirillo v. New York, 400 U.S. ply [aio] one, at least unless it is so broad 1548, 91 s.ct. 520, 21 L.Ed.2d 596 (1971). as to have the same extent in scope and effect." Id., at 5815, 12 S.Ct., at 206.
26. 15 Stat. 37. See Murphy v. Waterfront Comm'n, su 27. See Counselman v. Hitchcock, supra, pra, 378 U.S., at 54, 78, 84 S.Ct., at 1596, 142 U.S., at 560, 12 S.Ct., at 197. 1609.
92 SUPREME COURT REPORTER
*209 406 U.S. 460 ness subject to prosecution_J!fter he statute.st The bill, which became the answers the criminating question put Compulsory Testimony Act of 1893,33 to him, can have the effect of supplant
was drafted specifically to meet the broad inr the privilege conferred by the Con language in Counselman set forth stitution of the United States. [The above.SC The new Act removed the immunity statute under consideration] privilege against self-incrimination in does not supply a complete protection hearings before the Interstate Commerce from all the perils against which the Commission and provided that: constitutional prohibition was de.sign ed to guard, and is not a full substitutk "no person shall be prosecuted or sub jected to any penalty or forfeiture for for that prohibition. In view of the or on account of any transaction, constitutional provision, a statutory matter or thing, concerning which he enactment, to be valid, must afford ab may testify, or produce evidence, solute immunity against future prose documentary or otherwise " cution for the offence to which the question relates." 142 U.S., at 680- Act of Feb. 11, 1893, 27 Stat. 444. 586, 12 S.Ct., at 206.
i_This transactional immunity statute be- Sixteen days after the Counselman came the basic form for the numerous decision, a new immunity biH was intro- federal immunity statutes ss until 1970, duced by Senator Cullom,3 [1] who urged when, after re-examining applicable con that enforcement of the Interstate Com- stitutional principles and the adequacy of merce Act would be impossible in the existing law, Congress enacted the absence of an effective immunity statute here under consideration. 38 The 31. OouMelman wa11 decided Jan. 11, 1892. Commission on Reform of Federal Crimi·
Senator Cullom introduced the new bill nal Laws, as well as by Congreee. The Commiasion recommended legislation to re· on Jan. 27, 1892. 23 Cong.Rec. 573.
form the federal immunity laws. The recommendation served as the model for
32. 23 Cong.Rec. 6333. this statute. In commenting on its pro· poeal in a special l'eport to the President,
33. Act of February 11, 1893, 27 Stat. the Commission said : 448, repealed by the Organized Crime "We are satisfied that our substitution Control Act of 1970, Pub.L.No. 91-452, of immunity from use for immunity from § 245, 84 Stat. 931. proeecution meets constitutional require· ment.B for overcoming the claim of privi·
34. See the remarks of Senator Cullom, 23 lege. Immunity from use is the only con sequence flowing from a violation of the Cong.Rec. 573, 6883, and Congressman iodividunl'e conetitutional right to be pro· Wise, who introdu~ the bill in the tccted from u11rea8onoble eearchea and House. 24 Cong.Rec. ISOS. See Shapiro seizures, hia conetitutiooal right to coun· v. United Stot&IJ, 335 U.S. 1, 2S-29 eel, and his conetltutlonol right not to be and n. 36, 68 S.Ct. 1375, 1381)-1390, 92 coerced into confessillg. The proposed im· L.Ed. 1787 (1948). munity is thus of the aome scope as that frequently, even though unintentionally,
35. Ullmann v. United States, 350 U.S., conferred as the result of constitutional at 488, 76 S.Ct., at GOO; Shapiro v. violations by law enforcement officers." United States, 1upra., 386 U.S., at 6,
Second Interim Report of the National 68 S.Ct., at 1378. There was one minor Commission on Reform of Federal Crimi exception. See Piccirillo v. New York, nal Lawe, Mar. 17, 1969, Working Pa· 400 U.S., at 571 and n. 11, 91 S.Ot., at
pers of the CommfSllion, 1446 (1970). 532 (Brennan, J., dissenting) ; Arnd· The Commission's recommendation was stein v. McCarthy, 2M U.S. 71, 73, 41 based in large part on a comprehensive S.Ct. 26, 27, 65 L.Ed. 188 (1920). study of immunity and the relevant deci·
sione of this Court prepared for the Com· 36. The statute ia a product of careful mission by Prof. Robert G. Dixon, Jr., study and coneldoratlon by the National of the George Washington University Law *210 406 U.S. 454 KASTIGAR v. UNITED STATES
Cite na 92 S.Ct. 16.~3 (1072) new statute, which does not "afford compelled t~stimony in any respect, and [the] absolute immunity against future it therefore insures that the testimony prosecution" referred to in Counselman, cannot lead to the infliction of criminal was drafted to meet what Congress penalties on the witness. judged to be the conceptual basis of (6] Our holding is consistent with Counselman, as elaborated in subsequent the conceptual basis of Counselman. The decisions of the Court, namely, that im-
_liss munity from th~se of compelled testi Counselman statute, as construed by the mony and evidence derived therefrom is Court, was plainly deficient in its failure coextensive with the scope of the t£1.Erohibit the use against the immunized privilege.3? witness of evidence derived from his com
pelled testimony. The Court repeatedly emphasized this deficiency, noting that [5] The statute's explicit proscrip the statute: tion of the use in any criminal case of "testimony or other information com
"could not, and would not, prevent the pelled under the order (or any informa use of his testimony to search out tion directly or indirectly derived from other testimony to be used in evidence such testimony or other information)" is against him or his property, in a consonant with Fifth Amendment stand criminal proceeding " 142 ards. We hold that such immunity from U.S., at 564, 12 S.Ct., at 198-199; use and derivative use is coextensive with that it: the scope of the privilege against self "could not prevent the obtaining and incrimination, and therefore is suffi cient to compel testimony over a claim the use of witnesses and evidence which should be attributable directly to the of the privilege. While a grant of im munity must afford protection com testimony he might give under com mensurate with that afforded by the pulsion and on which he might be con privilege, it need not be broader. Trans victed, when otherwise, and if he had actional immunity, which accords full im refused to answer, he could not possibly have been convicted," ibid. ; munity from prosecution for the offense to which the compelled testimony
and that it: relates, affords the witness considerably "nfford no protection against that broader protection than doos the Fifth use of compelled testimony which con Amendment privilege. The pl'iv ilege has sists in gaining therefrom a knowl never been construed to menn that one edge of tho details of a crime, and of who invokes it cannot su bseq uently be sources of information which may prosecuted. Its sole concern is to afford supply other means of convicting the protection against being "forced lo give witness or party." 142 U.S., at 586, 12 testimony leading to the Infliction of S.Ct., at 206. 'penalties affixed to criminal acts.' " [38] Immunity from the use of com
The basis of the Court's decision was pelled testimony, as well as evidence de recognized in Ullmann v. United States, rived directly and indirectly therefrom, affords this protection. It prohibits the 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 prosecutorial authorities from using the (1956), in which the Court reiterated
Center, and transmitted to the Preshlent 38. Ullmann v. United States, 350 U.S .. at with the recommendr1tions of the Commift 438-439, 76 S.Ct., at 507, quoting Doy1l sion. See National Comn1ission on Reform v. United States, 116 U.S., at 634, G of l!,cllcral Criminal Lows, Working Pa· S.Ct., ot 534. See Knop11 v. Schweitzer, pers, 1400-1444 (1970). 357 U.S. 371, 380, 78 S.Ct. 1302, 1308,
2 L.E<l.2<l 1393 (1958). 37. See S.Rep.No.91--017, 11p. 51-56, 145 (1969) ; H.R.Rep.No.91-1549, p. 42 (1970).
92 SUPREME COURT REPORTER
*211 406 U.S. 464 that the Counselman statute was in Waterfront Commission of New York sufficient: Harbor. After refusing to answer
certain questions on the ground that the "because the immunity granted was answers might tend to incriminate them, incomplete, in that it merely forbade petitioners were granted iJ!!!lunity from .J.!56 the use of the testimony given and fail prosecution under the laws of New ed to protect a witness from future Jersey and New York."' They continued prosecution based on knowledge a.nd to refuse to testify, however, on the sources of information obta.ined from ground that their answers might tend the compelled testimony." Id., at 437, to incriminate them under federal law, 76 S.Ct., at 506. (Emphasis sup to which the immunity did not purport plied.) to extend. They were adjudged in civil See also Arndstein v. McCarthy, 254 contempt, and that judgment was af U.S. 71, 73, 41 S.Ct. 26, 27, 65 L.Ed. 138 firmed by the New Jersey Supreme (1920), The broad language in Counsel-
Court. [41] .Jiu mam. relied upon by pe~oners was un The issue before the Court in Murphy necessary to the Court's decision, and was whether New Jersey and New York cannot be considered binding authority.39 could compel the witnesses, whom these In Murphy v. Waterfront Comm'n, 378 States had immunized from prosecution U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 under their laws, to give testimony that (1964), the Court carefully considered might then be used to convict them of a immunity from use of compelled testi federal crime. Since New Jersey and mony and evide-nce derived therefrom. New York had not purported to confer The Murphy petitioners were subpoenaed immunity from federal prosecution, the to testify at a hearing conducted by the Court was faced with the question what 39. Cf. The Supreme Court, 1963 Term, 78 In Adams v. Maryland, 347 U.S. 179,
Harv.L.Rev. 179, 230 (1964). Lnngunge 182, 74 S.Ct. 442, 445, 98 L.Ed. 008 similar to the Counselman dictum can be (1954), and In United States v. Murdock, found ln Brown v. Walker, 161 U.S., at 284 U.S. 141, 149, 52 S.Ct. 63, 64, 76 L.Ed. 210 (1931), the Co1maelrnan. dictum 594-59~, 16 S.Ct., at 641>-646, and Hale v. Henkel, 201 U.S., at 67, 26 S.Ct., woe referred to as the principle of Coun at 876. Brown and Hale, however, aelm11n. The references were in the con involved statutes that were clearly text of ancillnry points not eHential to the sufficient to supplant the privilege decisions of the Court. The Adams Court did note, however, that the Fifth Amend against self.incrimination, as they provided full immunity from prosecution ment privllege prohibits the "use" of compelled eelf-incrlminatory testimony. "for or on account of nny transaction, matter or thing concerning which he may 347 U.S., at 181, 74 S.Ct., at 445. In testify, or produce evidence " any event, the Coort in Ullmann v. United 161 U.S., at 594, 16 S.Ct., at 645 i 201 Statea, 350 U.S., at 43H37, 76 S.Ct., U.S., at 66, 26 S.Ct., at 376. The same at ~oo. recognized that the ratlonale of Counselman was that the Counaelm11n Is true of Smith v. United States, 337 U.S. 137, 141, 146, 69 S.Ct. 1000, lOO'l, statute was insufficient for failure to 1005, 93 L.Ed. 1264 (1949), and United prohibit the use of evidence derived from compelled testimony. See also Arndsteln States v. Monie, 317 U.S. 424, 4~, 428, v. McCarthy, 254 U.S., at 73, 41 B.Ct., 63 S.Ct. 409, 410, 411, 87 L.Ed. 376 (1943). In Albertson v. Subversive Ac at 27. tivities Control Board, 382 U.S. 70, 86
40. The Waterfront Commission of New S.Ct. 194, lG L.Ed.2d 165 (1965), some York Harbor is a bistate body established of the Oounaelm11n. language urged upon un<ler an interstate compact approved by us by petltloners was again quoted, But Congress. 67 Stat. 541. Albertaon, like Oounaelman, involved an immunity statute that was held insuffi 41. In re Application of Waterfront cient for failure to prohibit the use of Comm'n of N. Y, Harbor, 39 N.J. 436, evidence derived from compelled admis 189 A.2d 36 (1963). sions and the use of compelled admiSBlons as an "Investigatory lead." Id., at 80, 86 S.Ct., at 199. *212 KASTIOAR v. UNITED STATES 1663
406 U.S. 458 Cite as 92 S.Ct. 1003 (1972) limitations the Fifth Amendment Federal Governments mtist be pro privilege imposed on the prosecutoria) hibited from making any such use of powers of the Federal Government, a compelled testimony and its fruits." o nonimmunizing sovereign. After under 378 U.S., at 79, 84 S.Ct., at 1609. taking an examination of the policies and purposes of the privilege, the Court over The Court emphasized that this ru]e left turned the rule that one jurisdiction the state witness and the Federal Govern within our federal structure may compel ment, against which the witness had im munity only from the use of the com a witness to give testimony which could be used to convict him of a crime in peJled testimony and evidence derived another jurisdiction.u The Court held therefrom, "in substantiaJJy the same position as if the witness had claimed that the privilege protects state witnesses
.Jin against incril!i!iation under federal as his privilege in the absence of a state grant of immunity." Id., at 79, 84 S.Ct., well as state law, and federal witnesses against incrimination under state as well at 1610. as federal law. Applying this principle to It is true that in Murphy the Court the state immunity legislation before it,
was not presented with the precise ques- the Court held the constitutional rule tion presented by this case, whether a to be that: jurisdiction seeking to compe] testimony "[A] state witness may not be com may do so by granting only use and pelled to give testimony which may be derivative-use immunity, for New Jersey incriminating under federal Jaw unless and New York had granted petitioners the compelled testimony and its fruits transactional immunity. The Court cannot be used in any manner by heretofore has noillquarely confronted .Jiu this question,« because post-Counselman federal officials in connection with a criminal prosecution against him. We immunity statutes reaching the Court conclude, moreover, that in order to either have followed the pattern of the implement this constitutional rule and 1893 Act in providing transactional im accommodate the interests of the State munity,4is or have been found deficient and Federal Government in investi for failure to prohibit the use of all evi gating and prosecuting crime, the dence derived from compelled testi-
42. Reconsideration of the rule thnt the deemed to be the "constitutional rule" Fifth Amendment privilege does not pro· there could be no federal prosecution. tect n witness in one jurisdiction agnlnst
44. See, e. g., California v. Byers, 402 U.S. being compelled to give testimony that 424, 442, n. 3, 91 S.Ct. 1535, 154tl, 29 L. could be used to convict him in another Ed.2d 9 (1971) (Harlan, J., concurring jurisdiction was made necessary by the in judgment) ; United States v. Freed, decision in Malloy v. Hogan, 878 U.S. 401 U.S. 601, 606 n. 11, 91 S.Ct. 1112, l, 84 S.Ct. 1489, 12 L.Ed.2d ~ (1964), 1116, 28 L.Ed.2d 306 (1971); Piccirillo v. in which the Court held the Fifth Amend· New York, 400 U.S. 548, 91 S.Ct. 520, 27 ment privilege applicable to the States L.Ed.2d 596 (1971); Stevens v. Marks, through the Fourteenth Amendment. 383 U.S. 234, 244-245, 86 S.Ct. 788, 793- Murphy v. Waterfront Comm'n, 378 U.S., 794 (1966). nt 57, 84 S.Ct., at 11597. 45. JiJ. g., Murphy v. 'Vaterfront Comm'n, 43. At this point the Court added the fol· supra; Ullmann v. United States, Bt1pra; lowing note : "Once a defendant demon· Smith v. United States, 337 U.S. strates that he has testified, under a state 187, 69 S.Ct. 1000, 93 L.Ed. 1264 grant of Immunity, to matters related to (1949) ; United States v. Monia, 317 U.S. the federnl prosecution, the federnl au· 424, 63 S.Ct. 409, 87 L.Ed, 376 (1943) ; thorities have the burden of showing that Hale v. Henkel, 201 U.S. 48, 26 S.Ct. 370, their evidence is not tninted by establish 50 L.Ed. 652 (1906) ; Jack v. Kansas, 199 ing that they had an independent, legit!· U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234 mate source for the disputed evidence." (1905) ; Brown v. Walker, 161 U.S. 591, Id., at 79 n. 18, 84 S.Ct., at 1.609. 16 S.Ct. 644, 40 L.Ed. 819 (1896). See If transactional immunity had been also n. 30, aupra.
406 U.S. 468
*213
92 SUPREME COURT REPORTER mony.4f But both the reasoning of the additional arguments advanced by peti Court in Murphy and the result reached tioners against the sufficiency of such immunity. We start from the premise, compel the conclusion that use and deriv repeatedly affirmed by this Court, that ative-use immunity is constitutionalJy an appropriately broad immunity grant sufficient to compel testimony over a claim of the privilege. Since the privi is compatible with the Constitution. lege is fully applicable and its scope is
Petitioners argue that use and deriva the same whether invoked in a state or in tivP.-use immunity will not adequately a federal jurisdiction,47 the Murphy con protect a witness from various possible clusion that a prohibition on use and incriminating uses of the compelled derivative use secures a witness' Fifth testimony: for example, the prosecutor Amendment privilege against infringe or other Jaw enforcement officials may ment by the Federal Government demon obtain leads, names of witnesses, or other strates that immunity from use and information not otherwise available derivative use is coextensive with the that might result in a prosecution. It scope of the privilege. As the Murphy will be difficult and perhaps impossible, Court noted, immunity from use and the argument goes, to identify, by testi derivative use "leaves the witness and the mony or cross-examination, the subtle Federal Government in substantially the ways in which the compelled testimony .J!.H same positio!!J!s if the witness had claim may disadvantage a witness, especially in ed his privilege" " in the absence of a the jurisdiction granting the immunity. grant of immunity. The Murphy Court was concerned solely with the danger of
This argument presupposes that the incrimination under federal law, and held statute's pr!!!_ibition will prove impos- .l!.•o that immunity from use and derivative sible to enforce. The statute provides a use was sufficient to displace the danger. sweeping proscription of any use, direct This protection coextensive with the or indirect, of the compelled testimony privilege is the degree of protection and any information derived therefrom: that the Constitution requires, and is all that the Constitution requires even
"[N]o testimony or other information against the jurisdiction compelling testi compelled under the order (or any in mony by granting immunity. [411] formation directly or indirectly derived from such testimony or other informa tion) may be used against the witness
IV
in any criminal case " 18 Although an analysis of prior deci u.s.c. § 6002. sions and the purpose of the Fifth This total prohibition on use provides Amendment privilege indicates that use and derivative-use immunity is coexten a comprehensive safeguard, barring the sive with the privilege, we must consider use of compelled testimony as an "in- is the SRme in sto.te and in federal pro· 46. E. g., Albertson v. Subveraive Activities
Control Board, 882 U.S., at 80, 86 S.Ct., ceedlngs. Murphy v. Waterfront Comm'n, 378 U.S., at 79, 84 S.Ct., at 1~1610. o.t 199; Arndstein v. McCarthy, 254 U.S., at 73, 41 S.Ct., at 27.
48. Ibid. 47. In Malloy v. Hogan, 378 U.S., at 10- 49. Aa the Court noted in Gardner v. Brod· erick, 892 U.S., at 276, 88 S.Ct., at 1915, 11. 84 S.Ct., at 1494-1495 the Court held "[a)nawera may be compelled regardless that the BBme standards would determine the extent or scope of the privilege In of the privilege if there la immunity from federal and state use of the compelled tee· state ancl in federal proceedings, because timony or it& fruits In connection with a the Bame substantive guarantee of the Bill crlmino.l prosecution o.galnst the person of Rights is involved. The Murph11 Court emphasized that the acope of the privilege testifying."
*214 406 U.S. 462 XASTIGAR v. UNITED STATES Cite as 92 8.Ct. 1M3 (1972) vestigatory lead," 110 and also barring the ed a question requiring an incriminatory ?se of_ an~ evidence ~btained by focusing answer. This statute, which operates 1~vestigation 01!' a witness as a result of after a witness has given incriminatory his compelled disclosures. testimony, affords the same protection
by assuring that the compelled testimony [7] A person accorded this immunity can in no way lead to the infliction of under 18 U.S.C. § 6002, and subsequently criminal penalties. The statute, like the prosecuted, is not dependent for the pres Fifth Amendment, grants neither pardon ervation of his rights upon the integrity nor amnesty. Both the statute and the and good faith of the prosecuting au Fifth Amendment allow the government thorities. As stated in Murphy: to prosecute using evidence from "Once a defendant demonstrates that legitimate independent sources. he has testified, under a state grant
The statutory proscription is analo- of immunity, to matters related to the gous to the Fifth Amendment require- federal prosecution, the federal au ment in cases of coerced confesaions.111 thorities have the burden of showing A coerced confession, as revealing of that their evidence is not tainted by leads as testimony given in exchange for establishing that they had an independ immunity,ss is inadmissible in a criminal ent, legitimate source for the disputed trial, but it does not bar prosecution.M evidence." 878 U.S., at 79 n. 18, 84 Moreover, a defendant against whom in S.Ct., at 1609. criminating evidence has been obtained through a grant of immunity may be in
This burden of proof, which we reaffirm a stronger position at trial than a de as appropriate, is not limited to a nega fendant who asserts a Fifth Amendment tion of taint; rather, it imposes on the coerced-confession claim. One raising a prosecution the affirmative duty to claim under this statute need only show prove that the evidence it proposes to use that he testified under a grant of im is derived from a legitimate source munity in order to shift to the govern- whoJly independent of the compelled testi ment the heavy burden of proving that mony. all of the evidence it proposes to use was independent .Jiu derived from ..lJegitimate .Jiu .J..This is very substantial protection,111 sources.M On the other hand, a de:f end- commensurate with that resulting from ant raising a coerced-confession claim invoking the privilege itself. The under the Fifth Amendment must first privilege assures that a citizen is not prevail in a voluntariness hearing before compelled to incriminate himself by his his confession and evidence derived from own testimony. It usually operates to it become inadmissible.ae allow a citizen to remain silent when ask- because it is compelled incrimination in 50. See, e. (J., Albertson v. Subversive Ac violation of the privilege. Malloy v. Ho tivities Control Board, 382 U.S., at 80, gan [878 U.S. 1, 7-8, 84 S.Ct. 1489, at 86 S.Ct., at 199. 149~1494, 12 L.Ed.2d 653]; Spano v. 51. See Murphy v. Waterfront Comm'n, 378 New York, 860 U.S. 311S, 79 S.Ct. 1202, U.S., at 100-lM, 84 S.Ct., at 161~ 3 L.Ed.2d 1261S; Bram v. Unltecl Statea, 1617 (White, J., concurrinc). 168 U.S. IS82, 18 S.Ct. 183, 42 L.Ed.
MB." 378 U.S., at 103, 84 S.Ct., at 1616. 52. Adams v. Maryland, 347 U.S., at 181, 74 S.Ot., at 444; Bram v. United States, 54. Jackson v. Denno, 878 U.S. 368, 84 168 U.S. IS32, M2, 18 S.Ct. 183, 186, 42 S.Ct. 1774, 12 L.Ed.2d 908 (1964). L.Ed. IS68 (1897).
55. See aupra, at 1664; Brief the United 53. As Mr. Justice White, concurring in States 87; Cf. Chapman v. California, Mv,.,,h11, pointed out: 886 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d "A coerced confeBBion ia aa revealing ot 700 (1967). leads as testimony given in excbanre for
56. Jackson v. Denno, •llf)ra. immunity and indeed la excluded in part
92 SUPREME COURT REPORTER
*215 406 U.S. 462 There can be no justification in reason offense to which the question relate1:1." or policy for holding that the Constitu Id., at 586, 12 S.Ct., at 206. In Brown v. tion requires an amnesty grant where, Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L. acting pursuant to statute and ac Ed. 819, a case involving another federal companying safeguards, testimony is prosecution, the immunity statute provid compelled in exchange for immunity ed that the witness would be protected from use and derivative use when no "on account of any transaction . such amnesty is required where the concerning which he may testify." Id., government, acting without colorable at 594, 16 S.Ct., at 645. The Court held right, coerces a defendant into incrimi that the immunity offered was coter nating himself. minous with the privilege and that the
witness could therefore be compelled to We conclude that the immunity pro testify, a ruling that made "transactional vided by 18 U.S.C. § 6002 leaves the wit immunity" part of the fabric of our con ness and the prosecutorial authorities stitutional law. Ullmann v. United in substantially the same position as if States, supra, 360 U.S., at 438, 76 S.Ct., the witness had claimed the Fifth at 50. Amendment privilege. The immunity therefore is coextensive with the privilege This Court, however, apparently be and suffices to supplant it. The judg lieves that Counselman and its progeny were overruled sub silentio in Murphy v. ment of the Court of Appeals for the Waterfront Comm'n, 378 U.S. 52, 84 Ninth Circuit accordingly is
S.Ct. 1594, 12 L.Ed.2d 678, Murphy in Affirmed. volved state witnesses, granted transac tional immunity under state law, who re
Mr. Justice BRENNAN and Mr. fused to testify for fear of subsequent Justice REHNQUIST took no part in the federal prosecution. We held that the consideration or decision of this case. testimony in question could be compelled, but that the Federal Government would
Mr. Justice DOUGLAS, dissenting. be barred from using any of the testi The Self-Incrimination Clause says: mony, or its fruits, in a subsequent fed "No person . . shall be compelled eral prosecution. in any criminal case to be a witness
Murphy overruled, not Counselman, against himself." I see no answer to the but Feldman v. United States, 322 U.S. proposition that he is such a witness 487, 64 S.Ct. 1082, 88 L.Ed. 1408, which when only "use" immunity is granted. had held "that one jurisdiction within our federal structure may compel a wit My views on the question of the scope ness to give testimony which could be of immunity that is necessary to force a .J.!.63 witness to give up his gua..!l!.ntee against used to convict him of a crime in another jurisdiction." Murphy v. Waterfront self-incrimination contained in the Fifth Comm'n, supra, 378 U.S., at 77, 84 S. Amendment are so well known, see Ull
Ct., at 1608. But Counselman,J!-S the .J.!.U mann v. United States, 350 U.S. 422, 440, Murphy Court recognized, "said nothing 76 S.Ct. 497, 507, 100 L.Ed. 511 (dis about the problem of incrimination under senting), and Piccirillo v. New York, 400 the law of another sovereign." Id., at U.S. 548, 549, 91 S.Ct. 520, 521, 27 L.Ed. 72, 84 S.Ct., at 1606. That problem is one 2d 596 (dissenting), that I need not write of federalism, as to require transactional at length.
immunity between jurisdictions might In Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 206, 35 L.Ed. 1110, "deprive a state of the right to prose the Court adopted the transactional im cute a violation of its criminal law on the basis of another state's grant of munity test: "In view of the constitu immunity [a result which] would be tional provision, a statutory enactment, gravely in derogation of its sovereign to be valid, must afford absolute immu nity against future prosecution for the ty and obstructive of its administra- *216 406 U.S. 466 XASTIGAR v. 'UNITED STATES 1667
Cite as 92 8.Ct. 1638 (1972)
tion of justice." United States ex rel. Stevens v. Mark11, 383 U.S. 234, 244-245, Catena v. Elias, 449 F.2d 40, 44 (CA3 86 S.Ct. 788, 793-794, 15 L.Ed.2d 724; 1971). id., at 249-250, 86 S.Ct., at 796-797
(Harlan, J., concurring and dissenting); Moreover, as Mr. Justice Brennan has Mansfield, The Albertson Case: Con pointed out, the threat of future prose flict Between the Privilege Against Self cution Incrimination and the Government's "substantial when a single jurisdiction Need for Information, 1966 Sup.Ct.Rev. both compels incriminating testimony 103, 164. and brings a later prosecution, may If, as some have thought, the Bill of fade when the jurisdiction bringing Rights contained only "counsels of mod the prosecution differs from the juris~ eration" from which courts and legisla diction that compelled the testimony.
tures could deviate according to their Concern over informal and undetected conscience or discretion, then today's con exchange of information is also cor traction of the Self-Incrimination Clause respondingly less when two different of the Fifth Amendment would be under jurisdictions are involved." Piccirillo standable. But that has not been true, v. New York, 400 U.S., at 568, 91 S.Ct., starting with Chief Justice Marshall's at 531 (dissenting).
opinion in United States v. Burr~5 F. -1!66 None of these factors apply when the Cas. p. 38 (No. 14,692e) (CC Va.), threat of prosecution is from the juris where he ruled that the reac_h of the diction seeking to compel the testimony, Fifth Amendment was so broad as to which is the situation we faced in Coun- make the privilege applicable when selman, and which we face today. The there was a mere possibility of a crim- irrelevance of Murphy to such a situa inal charge being made. tion was made clear in Albertson v. Sub versive Activities Control Board, 382 U. The Court said in Hale v. Henkel, 201 S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165, in U.S. 43, 67, 26 S.Ct. 370, 376, 50 L.Ed. which the Court struck down an immu 652 that "if the criminality has already nity statute because it failed to measure been taken away, the Amendment ceases up to the standards set forth in Counsel to apply." In other words, the immunity man. Inasmuch as no interjurisdictional granted is adequate if it operates as a problems presented themselves, Murpky complete pardon for the offense. Brown was not even cited. That is further v. Walker, 161 U.S., at 595, 16 S.Ct., proof that Murphy was not thought sig- at 646. That is the true measure of the
.J!e& nificantly ~ndercut Counselma.n. [1] See Self-Incrimination ClausJ. As Mr. Jus- I. In Albertson v. Subversive Activities Con· ewers the criminating question put to him, trol Bo11rd, 382 U.S. 70, 86 S.Ct. 194, 1~ can have the effect of supplanting the L.Ed.2d 1~, the Court was faced with a privilege . . . ,' and that auch a stat Fifth Amendment challenge to the Com· ute is valid only if it supplies 'a complete munlst registration provision of the Sub· protection from all the perils against versive Activities Control Act of 1950, 64 which the constitutional prohibition was Stat. 987. We held that the provision designed to guard . . . ' by affording violated the prospective registrant's prlvi· 'absolute immunity against future prose lege against self.Incrimination, and that cution for the offence to which the ques· the registration provision was not saved tion relates.' Id., at llSl'H!86, 12 S.Ct., at by a so-called "immunity statute" (I 4
206. Measured b11 these standards, the (f) ) which prohibited the introduction immunity granted by § 4(f) is not com· into evidence in any criminal prosecution plete." 882 U.S., at 80, 86 S.Ct., nt 199. of the fact of registration under the Act. (Emphaeie added.) The Court's analysis of this immunity Thus, the Albertaon Court, which could provision rested solely on Ooun.relman.: have struck the statute by employing the
"In Counselman v. Hitchcock, 142 U.S. test approved today, went well beyond, 547, 12 S.Ct. 195, M L.Ed. 1110, decided and measured the statute solely against In 1892, the Court held 'that no [lmmunl· the more restrictive standards of Oounael· ty] statute which leaves the party or wit man. neu subject to prosecution after he an-
92 S.Ct.-10!1 *217 92 SUPREME OOURT REPORTER 406 U.S. 466 tice Brennan has stated: "[U] se immu States, 350 U.S., at 446, 76 S.Ct., at 511 nity literally misses half the point of (dissenting). That is indeed one of the the privilege, for it permits the com chief procedural guarantees in our ac pulsion without removing the criminal cusatorial system. Government acts in ity." Piccirillo v. New York, supra., 400 an ignoble way when it stoops to the end U.S., at 567, 91 S.Ct., at 530 (dissenting). which we authorize today.
I would adhere to Counselman v. Hitch As Mr. Justice Brennan has also said: cock and hold that this attempt to dilute the Self-Incrimination Clause is uncon "Transactional immunity stitutional. provides the individual with an assur ance that he is not testifying about
Mr. Justice MARSHALL, dissenting. matters for which he may later be prosecuted. No question arises of Today the Court holds that the United tracing the use or non-use of informa
States may compel a witness to give in tion gleaned from the witness' com criminating testimony, and subsequently pelled testimony. The sole question prosecute him for crimes to which that presented to a court is whether the testimony relates. I cannot believe the subsequent prosecution is related to the Fifth Amendment permits that result. substance of the compelled testimony. See Piccirillo v. New York, 400 U.S. 548, Both witness and government know 552, 91 s.ct. 520, 522, 21 L.Ed.2d 596 precisely where they stand. Respect (1971) (Brennan, J., dissenting from for law is furthered when the individ dismissal of certiorari). ual knows his position and is not left The Fifth Amendment gives a wit- suspicious that a later prosecution was ness an absolute right to resist interro actually the fruit of his compelled tes gation, if the testimony sought would timony." 400 U.S., at 568-569, 91 tend to incriminate him. A grant of im S.Ct. at 531 (dissenting). munity...L may strip the witness of the ..l!n When we allow the prosecution to of right to refuse to testify, but only if it fer only "use" immunity we allow it to is broad enough to eliminate all possi- bility that the testimony will in fact op- grant far less than it has taken away. For while the precise testimony that is erate to incriminate him. It must put compelled may not be used, leads from him in precisely the same position, 11ia-d-
~·7 that testimony marue pursued and used vis the government that has compelled to convict the witness. [2] My view is that his testimony,* as he would have been the framers put it beyond the power of in had he remained silent in reliance on Congress to compel anyone to confess his the privilege. Ullmann v. United States, crimes. The Self-Incrimination Clause 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 creates, as I have said before, "the fed (1956); McCarthy v. Arndstein, 266 U. erally protected right of silence," making S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924); it unconstitutional to use a law "to pry Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, open one's lips and make him a witness 60 L.Ed. 662 (1906); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 against himself." Ullmann v. United 2. As Mr. Justice Marshall points out, post, the investigation, the witness might decide
at 1669, it is futile to expect that o ban he would be better off remaining silent on use or derivative use of compelled even If he is jailed for contempt. testimony can be enforced. •This case tloes not, of course, Involve the
It Is also possible that use immunity mieht actually have an adverse impact on special consitlerations that come into play the administration of justke rather than when the prosecuting government is dif promote law enforcement. A witneee ferent from the government that has com pelled the testimony. See Murphy v. mirht believe, with good reason, that his "immunized" testimony will inevitably lead Waterfront Comm'n, 378 U.S. 1'>2, 84 S.Ct. 1594, 12 L.Ed.2tl 678 (1964). to a felony conviction. Under such cir cumetancee, rather than testify and aid *218 K.ASTIGAR v. UNITED STATES 1669
406 U.S. 470 Cite as 92 S.Ct. 1653 (1972) (1896); Counselman v. Hitchcock, 142 compelled testimony was used to develop U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 a lead will be hard pressed indeed to (1892). ferret out the evidence necessary to
prove it. And of course it is no answer The Court recognizes that an immu to say he need not prove it, foi: though nity statute must be tested by that the Court puts the burden of proof on standard, that the relevant inquiry is the government, the government will whether it "leaves the witness and the have no difficulty in meeting its burden prosecutorial authorities in substantially by mere assertion if the witness pro the same position as if the witness had duces no contrary evidence. The good claimed the Fifth Amendment privi faith of the prosecuting authorities is lege." Ante, at 1666. I assume, more thus the sole safeguard of the witness' over, that in theory that test would be rights. Second, even their good faith is met by a complete ban on the use of the not a sufficient safeguard. For the compelled testimony, including all de paths of information through the in rivative use, however remote and indi vestigative bureaucracy may well be long rect. But I cannot agree that a ban on and winding, and even a prosecutor act use will in practice be total, if it re ing in the best of faith cannot be certain mains open for the government to con that somewhere in the depths of his in vict the witness on the basis of evidence vestigative apparatus, often including derived from a legitimate independent hundreds of employees, there was not source. The Court asserts that the wit some prohibited use of the compelled ness is adequately protected by a rule testimony. Cf. Giglio v. United States, imposing on 'the government a heavy 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d burden of proof if it would establish the 104 {1972); Santobello v. New York, independent character of evidence to be 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d used against the witness. But in light 427 ( 1971). The Court today sets out a of the inevitable uncertainties of the loose net to trap tainted evidence and fact-finding process, see Speiser v. Ran prevent its use against the witness, but dall, 357 U.S. 513, 525, 78 S.Ct. 1332, it accepts an intolerably great risk that 1341, 2 L.Ed.2d 1460 (1958), a greater tainted evidence will in fact slip through margin of protection is required in or that net. der to provide a reliable guarantee that ..J.!n the witnes!Uis in exactly the same posi _Lin my view the Court turns reason on .Ji70 tion as if he had not testified. That its head when it compares a statutory margin can be provided only by im grant of immunity to the "immunity" munity from prosecution for the of that is inadvertently conferred by an un fenses to which the testimony relates, constitutional interrogation. The exclu i. e., transactional immunity. sionary rule of evidence that applies in I do not see how it can suffice merely that situation has nothing whatever. to to put the burden of proof on the gov do with this case. Evidence obtained ernment. First, contrary to the Court's through a coercive interrogation, like assertion, the Court's rule does leave the evidence obtained through an illegal witness "dependent for the preservation search, is excluded at trial because the of his rights upon the integrity and good Constitution prohibits such methods of faith of the prosecuting authorities." gathering evidence. The exclusionary Ante, at 1665. For the information rele rules provide a partial and inadequate vant to the question of taint is uniquely remedy to some victims of illegal police within the knowledge of the prosecuting conduct, and a similarly partial and in authorities. They alone are in a posi adequate deterrent to police officers. An immunity statute, on the other hand, tion to trace the chains of information and investigation that lead to the evi is much more ambitious than any exclu dence to be used in a criminal prosecu sionary rule. It does not merely attempt tion. A witness who suspects that his to provide a remedy for past police mis- *219 92 SUPREME COURT REPORTER 406 U.S. 470 conduct, which never should have oc of transactional immunity without im curred. An immunity statute operates periling large numbers of otherwise in advance of the event, and it author valid convictions. An exclusionary rule izes-even encourages-interrogation comes into play after the interrogation that would otherwise be prohibited by or search has occurred ; and the deci the Fifth Amendment. An immunity sion to question or to search is often statute thus differs from an exclusion made in haste, under pressure, by an of ary rule of evidence in at least two criti ficer who is not a lawyer. If an un cal respects. constitutional interrogation or search
were held to create transactional im First, because an immunity statute munity, that might well be regarded as gives constitutional approval to the re an excessively high price to pay for the sulting interrogation, the government is "constable's blunder." An immunity under an obligation here to remove the statute, on the other hand, creates a danger of incrimination completely and framework in which the prosecuting at absolutely, whereas in the case of the ex torney can make a calm and reasoned clusionary rules it may be sufficient to decision whether to compel testimony shield the witness from the fruits of the and suffer the resulting ban on prosecu illegal search or interrogation in a par tion, or to forgo the testimony. tial and reasonably adequate manner. For when illegal police conduct has oc For both these reasons it is clear to curred, the exclusion of evidence does me that an immunity statute must be not purport to purge the conduct of its tested by a standard far more demand unconstitutional character. The consti ing than that appropriate for an exclu tutional violation remains, and may pro sionary rule fashioned to deal with past vide the basis for other relief, such as a constitutional violations. Measured by civil action for damages (see 42 U.S.C. that standard, the statute approved to § 1988 and Bivens v. Six Unknown day by the Court fails miserably. I re Named Agents, 403 U.S. 388, 91 S.Ct. spectfully dissent. 1999, 29 L.Ed.2d 619 (1971) ), or a crim-
...li" inal prosecution of the responsibltigf ficers (see 18 U.S.C. §§ 241, 242). The Constitution does not authorize police officers to coerce confes11ions or to in
408 v.s. 4'711, 32 :r..Jld.!14 !13-l vade privacy without cause, so long as Joseph Arthur ZICABELLI, no use is made of the evidence they Appellant, obtain. But this Court has held that v. the Constitution does authorize the gov The NEW JERSEY STATE COMMIS· ernment to compel a witness to give
SION OF INVESTIGATION.
potentially incriminating testimony, so long as no incriminating use is made No.~. of the resulting evidence. Before the Argued Jan. 11, 1972. government puts its seal of approval
Decided May 22, 1972. on such an interrogation, it must pro vide an absolutely reliable guarantee that
Witness who refused to answer ques it will not use the testimony in any way tions before New Jersey State Commis at all in aid of prosecution of the wit sion of Investigation despite grant of ness. The only way to provide that immunity was ordered incarcerated until guarantee is to give the witness immu such time as he testified as ordered. The nity from prosecution for crimes to which Supreme Court of New Jersey, 55 N.J. his testimony relates. 249, 261 A.2d 129, affirmed, and witness Second, because an immunity statute appealed. The Supreme Court, Mr. operates in advance of the interrogation, Justice Powell, held that New Jersey there is room to require a broad grant statute which provides immunity to wit- *220 536 FEDERAL REPORTER, 2d SERIES turer giving rise to the liability creating this claim occurred prior to the existence of UNITED STATES of America, Plaintiff-Appel.lee. either statute. It is well eatabJiahed in the State of Florida that the former statute,
v. that is, section 48.182, may not be given Ivan MELCHOR MORENO and retrospective app1ication. Gordon v. John Rlroberto Melchor Moreno, Deere Co., 264 So.2d 419 (Fla.1972). Defendant.Appellant.. No. 75-2957. (3) Plaintiff here argues that section 48.193 is not an implied consent statute and, United State1 Court of Appeals, therefore, that it can be given retrospective Fifth Circuit. application. Plaintiff further argues that Aug. 9, 1976. the states other than Florida have applied retrospectively long arm statutes similar to section 48.198. Nevertheless, this court By judgment of the United States Dis must apply the law of the State of Florida. trict Court for the Western District of Tex· Klaxon Co. v. Stentor Electric Manufactur aa, at El Paso, William S. Sessions, J., the ing Co., 818 U.S. 487, 61 S.Ct. 1020, 85 L.Ed.
def endanta were convicted on four narcotics 1477 (1941). It is the law of Florida that charges and they appealed. The Court of section 48.198 may not be applied retroac Appeal1, Godbold, Circuit Judge, held that tively to causes of action which accrued where informer waa subpoenaed by def end prior to July 1, 1978. Barton v. Keyes Co.,
anta as witness and claimed privilege 805 So.2d 269 (Fla.Dist.Ct.App.1974); Hoff. againat self-incrimination trial judge after mann v. Three Thousand South Association, holding an in camera hearing sustained Inc., 818 So.2d 486 (Fla.Dist.Ct.App.1975). privilege too broadly when he excused in
former, aince record did not show that such As relates to the isaue concerning breach informer could legitimately refuse to an of warranty, AB CTC v. Morejon, 824 So.2d swer essentially all relevant questions; in 625 (Fla.1976), supports and affirms the po former should have been placed on witness sition of Gordon v. John Deere Co., supra. stand and directed to give at least part of It appears that the Florida courts have testimony sought by defense and allowed to not changed their view in regard to retroac assert privilege only as to genuinely threat tivity. While a final decision under section ening questions. 48.193 has not been decided by the Supreme Conviction reversed. Court e>f Florida, several district courts of appeal have applied the Gordon v. John 1. Witneue1 11=>2(2) Deere principle to that atatute. This court If district court's refusal to allow de is sufficiently convinced that under those cues the long arm statute should not be f endanta to call a material witness to stand retroactively applied. Having so found, the lacked some affirmative justification, it was opinion of the court below ia affirmed. a violation of defendants' constitutional
rights. U.S.C.A.Const. Amend. 6. 2. Wltneue11 *=>2(2)
Sixth Amendment embraces not only the right to bring witnesses to courtroom but also at appropriate circumstances to put them on the stand. U.S.C.A.Const. Amend. 6. 3. Wltneaaes 11=>2(2)
Sixth Amendment's policy of granting accused right for compulsory process to ob- *221 UNITED STATES v. MELCHOR MORENO 1043 Cite u aH F.Jd IMJ (1171) 8. Witneuee ~297(1) tain witnesses in his favor is reinforced by broad requirements of f undamentaJ fairness Witness may not withhold all of the that due process clause of Fourteenth evidence demanded of him merely because Amendment imposes. U.S.C.A.Const. some of it is protected from disclosure by Amends. 6, 14. the Fifth Amendment. U.S.C.A.Const.
Amend. 5. 4. Witnesses '8=>308 9. Witneeaee ~308 Determination by trial court thnt pro Where witness asserts privilege against spective witness, a government informer, self-incriminE~tion court must make a par who had been subpoenaed by defendants, ticularized h11quiry, deciding in connection could not testify without incriminating him with each Sf)(~ific area that the questioning self, if correct, would provid~. the requisite party wishes to explore, whether or not justification for excluding such informer's privilege is well-founded, and as to each testimony, since defense would have no question the test is whether witness is con right to put informer on the stand merely fronted with substantial and real and not so jury could see him asserL his elnim of merely trifling or imaginary hazards of in privilege. U.S.C.A.Const. Amends. 5, 6. crimination. U.S.C.A.Const. Amend. 5. 5. Witnesses $:::>308 10. Witnesses $:::>297(1) Courts cannot accept Fifth Amendment Government informers subpoenaed by claims at face value and applicability of defendants as witness and claiming privi privilege is ultimately a matter for the lege against self-incrimination could proper court to decide. U.S.C.A.Const. Amend. 5. ly be excused from testifying at all only if court found that informer could legitimate 6. Witnesses $:::>308 ly refuse to answer essentially all relevant Where subpoenaed witness indicates questions. U .S.C.A.Const. Amend. 5. that he cannot testify without incrimina 11. Witne88es ~297(1) ting himself, practice has developed where by outside presence of jury witness will Subpoenaed defense witness, examined allude in very general, circumstantial terms in camera proceeding conducted by trial the reason why he feels he might be incrim judge with respect to claim of privilege inated by answering a given question and against self-incrimination, failed to show judge examines him only so far as to deter that he should be entirely excused from mine whether there are reasonable grounds testifying on ground that he could legiti to apprehend a danger to witness from his mately refuse to answer essentially all rele being compelled to answer; if danger might vant questions, and such witness, a govern ment informer should be directed to give at exist, court must uphold privilege without requiring witness to demonstrate that re least part of testimony sought by defense and privilege sustained only as to genuinely sponse would incriminate. U.S.C.A.Const. threatening questions. Comprehensive Amend. 5.
Drug Abuse Prevention and Control Act of 7. WitneBBes $:::>297(1), 308 1970, §§ 401.(a)(l), 406, 1002(a), lOlO(a)(l), To sustain privilege against self-incrim 1013, 21 U.S.C.A. §§ 84l(a)(l), 846, 952(a), ination it need only be evident from impli 960(a)(l), 963; U.S.C.A.Const. Amend. 5. cations of question, in setting in which it is 12. Witnes8es '*=308 asked, that responsive answer Lo question Witness claiming privilege against self. or explanation of why it cannot be answer incrimination had burden of establishing his ed might be dangerous because injurious cntitlcmcnl to the privilege. U.S.C.A. disclosure could result; trial judge must be Const. Amend. 5. governed as much by his personal percep 13. Witnesses $:::>308 tion of peculiarities of case as by the facts actually in evidence. U.S.C.A.Const. While trial courts must enjoy wide dis Amend. 5. cretion in resolving self-incrimination *222 536 FEDERAL REPORTER, 2d SERIES claims, that discretion is not unlimited. U. S. Atty., El Paso, Tex., for plaintiff-ap U.S.C.A.Const. Amend. 5. pellee. Appeal from the United States District 14. Criminal Law ...,37(2)
Court for the Western District of Texas. Entrapment occurs when crimina] con duct was the product of creative activity of Before WISDOM,• GODBOLD and law enforcement officials or those working LIVELY,•• Circuit Judges. closely with law enforcement officials; en trapment defense does not require proof of
GODBOLD, Circuit Judge: threats or coercion and preauppoaea deceit. Rigoberto Melchor Moreno and his broth 15. Criminal Law ...,.37(2) er Ivan Melchor Moreno appeal from con Entrapment defense does not require victions on four narcotics charges. The that the entrapping individual must have principal issue they raise is a novel one. stayed at hand until the sale was complet The prosecution informed the court that an ed, and if government agent tru]y implants individual subpoenaed by the defense, and criminal deaign in mind of defendant and called as a witnesa by the defense, would then disappears requirements of entrap assert his Fifth Amendment privilege. In ment can atiU be met. passing on the validity of the privilege, the
tria] judge held an in camera conference 16. Criminal IAw ...,.11701h(1) with the prospective witness, refusing to Evidence against defendants in prose allow defense attorneys to attend. After cution on narcotics charges was not so over the conference the judge announced in open whelming as to show beyond reasonable court that he would sustain the privilege doubt that the infringement of defendants' and bar all testimony by the witness. The constitutional rights to compel testimony of defendants ask us to hold that this proce informer, whose privilege against se]f-in dure deprived them of a fair trial. We crimination was upheld in its entirety, was decline to do so but nevertheless reverse harmless. Comprehensive Drug Abuse Pre because we find that the privilege was sus vention and Control Act of 1970, tained too broadly. §§ 40l(a)(l), 406, 1002(a), lOlO(a)(l), 1018, 21 U.S.C.A. §§ 84l(a)(l), 846, 952(a),
I
960(a)(l), 963; U.S.C.A.Const. Amend. 5. The Melchor brothers are Mexican na 17. Criminal Law oe=-772(6) tionals. In 1974 Rigoberto was living as a rancher, farmer, and trucker in Mexico. Attempt to draw a distinction in in On September 16, Guillermo Botello, Rigo struction between lawful entrapment and berto's partner in various ventures, includ unlawful entrapment is confusing. ing the ownel'Bhip of an aircraft, introduced him to an individual whom we will call Roe. 1 The three made arrangements to
Wayne Windle, El Paso, Tex., for Roberto bring a large shipment of marijuana into Moreno. the United States. Rigoberto was to obtain Dan L. Armstrong, El Paso, Tex., for the marijuana from local growers, and Bo Ivan Moreno. tello was to bring it across the border in the John Clark, U. S. Atty., San Antonio, jointly-owned airplane and make delivery to Roe in the United States. Rigoberto per- Tex., Ronald F. Ederer, Mike Milligan, Asst. • Judge Wisdom was a member of the panel that l, Throughout this case the prosecution has sought to conceal Roe's identity because of his
heard oral arguments but due to lllne11 did not participate In this decision. The case ts being service to the government as an informer. The decided by a quorum. 28 U.S.C. § 46(d). trial court cooperated, and we see no reason to
use the name here. • • Of the Sixth Circuit, sitting by designation. *223 UNITED STATES v. MELCHOR MORENO Clta u IH Fold IMI (1171) formed hi11 agreed part in the deal, but the timony, the government informed the court tranaaction was aborted in October. The that Roe would B888rt hia self-incrimination marijuana was aeized near Ft. Worth, and privilege and should not be called to the Roe and others were arrested. stand. The District Judge ruled that he
In January 1975, according to the testi· would conduct an in camera hearing to de mony of government agents at the Mel- termine whet'.ller or not Roe's Fifth Amend chora' trial, Roe began to wor' closely with ment claims v~ere valid. The defense attor the Drug Enforcement .Administration neys asked porrniaaion to attend this hear (DEA) as an informer. DEA agents prom- ing to partici1pate in the court'a determina· tion, but the request was denied. The Dis ised him that whatever assist.ance he gave the agency would be made known to the trict Judge o~nducted a lengthy interview sentencing judge when the Ft. Worth epi- with Roe. A transcript thereof was made sode came up for trial. and preserved under seal for review by this
court. After the interview the District Roe contacted Rigoberto on March 25, Judge annouriced in open court his decision 1975, to propose a heroin transaction. Ri· that. Roe could not testify without incrimi goberto said that he would send his brother nating himself and thus would not have to Ivan to discuss the matter. Ivan met with take the star1d. Roe several times on the f·ollowing day. In Roe's absence, the principal defense During these meetings Roe introduced Ivan witnes&e8 were the brothers themselves. to Joaquin Legaretta, an undercover agent With the support of charactel'. witnesses, for the DEA. A deal was struck, and on they attempted to portray themselves as March 29 Rigoberto arranged to send to El basically honest men who had obeyed the Paso 2000 grams of heroin concealed under
law all their lives, with the above described the dashboard of a station wagon driven by exceptions. Rigoberto testified that after Ivan. [1] That day Rigoberto and Ivan met the marijuana deal had fallen through he with Legaretta and John C<:•mey, another had felt depressed and ashamed and had DEA agent, at a hotel in El Paso. Legaret·
resolved to avoid any further involvement ta displayed a large quantity of government with the dru1r traffic. He testified that he cash, Rigoberto produced the heroin, and an had put aside his reluctance and partici arrest followed. pated in the heroin transaction only because A grand jury returned a four-count in of Roe'a persistent requests and pleas of dictment against the brothers, charging hardship. them with conspiring to import heroin (21 Ivan's story was that he had had little U.S.C. § 963), importing heroin (id. understanding of what was happening and §§ 952(a), 960(a)(l) ), conspiring to possess
that he had participated in the activities heroin with intent to distribute (id. § 846), noted above solely because his brother had and possessing heroin with intent to distrib
asked him to. ute (id. § 84l(a)(l) ). The jury found Rigoberto and Ivan guilty At trial the Melchors raised an entrap on all counts. The judge imposed partly ment defense and sought to call Roe as consecutive and partly concurrent sentences their first witness. The defendants were totalling 80 years' imprisonment for each acquainted with Roe, of course, having had
defendant. dealings with him for several months. At the time of trial, according to undisputed
II
evidence, they had his telephone number and the numbers of persons who knew him. (1-3] If the District Court's refusal to Although Roe had responded to the de allow the defendants to call a material wit neas to the stand lacked some affirmative fense's subpoena and was available for tes- 2. Both brothers testified that Ivan did not know the drugs were in the car. Evidently the jury
did not believe them. *224 536 FEDERAL REPORTER, 2d SEfilES justification, it was a violation of the de ed within the context of the broad approach fendants' constitutional rights. In Wash outlined by the Supreme Court in Hoffman ington v. Texas, 388 U.S. 14, 19, 87 S.Ct. v. U. S., 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967), the 1118 (1951). Hoffman attempts to resolve a Supreme Court spelled out the significance dilemma that arises in many privilege situa of the Sixth Amendment right of the ac tions. The courts cannot accept Fifth cused "to have compulsory process for ob Amendment claims at face value, because taining witnesses in his favor." The Court that would allow witnesses to assert the noted: "The right to offer testimony of privilege where the risk of self-incrimina witneases, and compel their attendance, if tion was remote or even nonexistent, thus necessary, is in plain terms the right to obstructing the functions of the courts. present a defense." 3 The Sixth Amend
The applicability of the privilege is ulti ment's policy is rein! orced by the broad mately a matter for the court to decide. requirement of fundamental fairness that On the other hand, "if the witness, upon the due process clause of the Fourteenth
interposing his claim, were required to Amendment imposes. In Chambers v. Mis prove the hazard in the sense in which a sissippi, 410 U.S. 284, 302, 93 S.Ct. 1038, claim is usually required to be established in 1949, 85 L.Ed.2d 297, 312 (1978), the Su court, he would be compelled to surrender preme Court aaid, in the course of a discus the very protection which the privilege is sion of due proceBS: "Few rights are more designed to guarantee." Hoffman, 341 U.S. fundamental than that of an accused to at 486, 71 S.Ct. at 818, 95 L.Ed. at 1124. present witnesses in his own defense." Thus a practice has developed whereby, out side the presence of the jury, the witness
[4] The District Court's Fifth Amend will allude in very general, circumstantial ment decision, if correct, would provide the terms to the reasons why he feels he might requisite justification for excluding Roe's be incriminated by answering a given ques testimony. U. S. v. Gloria, 494 F.2d 477 (CA5), cert. denied, 419 U.S. 995, 96 S.Ct. tion. The judge examines him only far 306, 42 L.Ed.2d 267 (1974); U. S. v. Lacou enough to determine whether there is rea ture, 496 F.2d 1287 (CA5), cert. denied, 419 sonable ground to apprehend danger to the U.S. 1058, 95 S.Ct. 681, 42 L.Ed.2d 648 witness from his being compelled to answer. (1974).• But the defendants are in a diffi If the danger might exist, the court must cult position. They cannot challenge the uphold the privilege without requiring the substance of the Fifth Amendment ruling witness to demonstrate that a response because they did not hear what the judge would incriminate him, the latter inquiry heard. Thus they take the position that being barred by the privilege itself. As the they should have been allowed to partici
Court in Hoffman phrased it: pate in the Fifth Amendment hearing, To sustain the privilege, it need only be croSB-examining Roe if necessary and urg evident from the implications of the ques ing the judge to overrule the privilege tion, in the setting in which it is asked, claim to the extent, if any, that it was that a responsive answer to the question frivolous. or an explanation of why it cannot be (5-7] The District Judge's method of de answered might be dangerous because in jurious disclosure could result. The trial ciding the privilege claim must be evaluat- 3. Despite the limitations of Its wording, the right to use." 388 U.S. at 23, 87 S.Ct. at 1925,
Amendment Is held to embrace not only the 18 L.Ed.2d at 1025. right to bring wltnes11es to the courtroom, but also, In appropriate circumstances, the rtaht to 4. Lacouture held that where a witness's self-In put them on the stand. As the Court In Wash crimination privilege protected her from having ington said, "[t)he Framers of the Constitution to give any of the testimony the defense want did not Intend to commit the fuWe act of &iving ed, the defense had no right to put her on the to a defendant the rtaht to secure the attend stand merely so that the jury could see her ance of witnesses whose testimony he had no assert her claim of privilege.
*225 UNITED STATES v. MELCHOR MORENO Cite u 1111 F.ld IOU (1171) judge in appraising the claim "must be On the other hand, the Third Circuit baa governed as much by his personal percep expreaaed fears that in camera proceedings tion of the peculiarities of the case as by could violate the witneaa'a Fifth Amend· the facts actual1y in evidence." ment rights. In re U. S. Hoffman Can 841 U.S. at 486-87, 71 S.Ct. at 818, 95 L.Ed. Corp., 878 F.2d 6~ (CAS, 1967). The appel· at 1124. Thia general approach to adjudica lants in U. S. Hoffman Can Corp. had re tion of the aelf -incrimination privilege baa sisted, on Fifth Amendment grounds, dis been followed by this circuit in numerous closure of financial information. The Dis opinions.• trict Court ordered them to submit a sealed statement explaining the basis for their
It is clear that the District Judge here claim. The Court of Appeals held that in waa correct in passing upon Roe's privilege claim in the absence of the jury, U. S. v. circumstances where the appellants proved that a direct answer might be incrimina Gomez-Rojas, 507 F.2d 1213, 1220 (CA5, ting, the judge could make no further in 1975), but it is by no means clear that he quiry. A procedure involving sealed state waa correct in excluding everyone else aa ments, the court said, "is bound ultimately well. There is very little authority on this
to beget a requirement of maximum disclo question. In a few reported cases an indi sure to prove the right to the privilege, in vidual baa been directed to make the show ing contemplated by Hoffman through an contrast to a proceeding in open court in camera presentation. U. S. v. Curcio, where the disclosure may be [interrupted] 234 F.2d 470 (CA2, 1956), rev'd on other at the point where the right to the privilege grounds, 354 U.S. 118, 77 S.Ct. 1145, 1 becomes clear to the judge. In any event, L.Ed.2d 1225 (1957); In re John Lakis, Inc., the history of the privilege itself contains 228 F.Supp. 918 (S.D.N.Y., 1964); In re its own condemnation of a procedure in Mutual Security Savings & Loan Ass'n, 214 camera." Id. at 629. F.Supp. 877 (D.Md., 1963). These cases,
The issue is not a simple one. 7 This case however, contain little or no analysis of the does not require that we decide it, and we pros and cons of the procedure involved.' leave it for another day. Pretermitting the 15. See, e. g., U. S. v. Malnlck, 489 F.2d 882 Arguably, as U. S. Hoffman Can Corp. sug (CA5, 1974); U. S. v. Wilcox, 450 F.2d 1131, gests, this may have Infringed Roe's Fifth 113~7 (CA5, 1971), cert. denied, 405 U.S. Amendment rights. But compare cases sustain 917, 92 S.Ct. 944, 30 L.Ed.2d 787 (1972); Kiew ing Immunity statutes on the ground that the eJ v. U. S., 204 F.2d 1 (CA5, 1953).
Fifth Amendment does not confer an absolute right not to testify about one's crimes but only
8. Decades ago individuals asserting a self-In a right not to be placed in danger of prosecu crimination privilege In regard to documents tion as the result of such testimony. KasUgar would sometimes be ordered or furnish the v. U.S., 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d documents themselves to the court for an In 212 (1972); Ullman v. u. s., 350 U.S. 422, 76 camera inspection. Contempt convictions for S.Ct. 497, 100 L.Ed. 511 (1956). Possibly the refusal to comply with such orders were upheld confidentiality of the Jn camera hearing would on appeal. Brown v. U. S., 276 U.S. 134, 48 be deemed to afford security comparable to S.Ct. 288, 72 L.Ed. 500 (1928); Consolidated statutory Immunity. In any event, parties ordi Rendering Co. v. Vermont, 207 U.S. 541, 28 narily may "rely only upon constitutional rights S.Ct. 178, 52 L.Ed. 327 (1908); Corretjer v. which are personal to themselves." NAACP v. Draughon, 88 F.2d 116 (CAI, 1937). It would Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, seem that the authority of these early cases has 1170, 2 L.Ed.2d 1488 (1958). A procedure been weakened by Hoffman v. U. S. All of whereby statements are Improperly elicited them expressly proceeded on the premise that from a witness Jn camera would not necessarily tolerating the ~itness's behavior would have Injure the defendants who seek his testimony. totally precluded the court from passing on the (2) There Is a general antipathy in our legal privilege issues. Hoffman v. U. S. authorita system to judicial proceedings behind closed tively promulgated a less drastic method of doors. The due process clause embraces to resolving such Issues without full disclosure. some extent "[t]his nation's accepted practice 7. There are tensions In several directions: of guaranteeing a public trial to an accused," (1) Roe was induced by the judge to discuss In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); see also Fed.R.Crim.P. 26; 6 Wig his fears of self-Incrimination more freely than the judge could have required In open court. more, Evidence § 1834 (3d ed. 1940). But it *226 536 FEDERAL REPORTER, 2d SERIES propriety of the procedure, we conclude must be measured. In that case the de that the court gave too broad a scope to the fendant Sutherlin pleaded that he had been privilege as applied to Roe. entrapped by government informer Smith.
The informer resisted a defense subpoena
III
by claiming his Fifth Amendment privilege, which the District Court upheld without In U. S. v. Gomez-Roju, 507 F.2d 1213 (CA5, 1975), this court set forth the basic making any inquiry into the validity of the standards against which the substance of claim. We held that the court had erred by Roe's self-incrimination privilege claim accepting the informer's assurances at face
has never been the law that a person cannot be and we find none, establishing that they would convicted unless every element of his trial Is have had a right to cross-examine Roe if the conducted In public. The courts have recog· District Court had passed on his claim in the normal way, in open court. In U. S. v. Lacou· nlzed that the broad requirement of public Judi· clal proceedings Is a flexJble one, Influenced by ture, 495 F.2d 1237 (CA5), cert. denied, 419 particular circumstances. Judges Inspect pros· U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974), ecution evidence privately In order to deter· on which defendants rely, a reluctant witness mine whether the Jencks Act, 18 U.S.C. § 3500, was examined at a hearing in the judge's cham or the Constitutions requires the govemment to bers, with defense counsel present. But so far release that evidence to the defense. See U. S. as the opinion reveals, the only questions the v. Rivero, 532 F.2d 450 (CA5, 1976). Judges defense was permitted to ask related to matters make an in camera detennlnation of whether at Issue in Lacouture's trial, not matters con an Informant's Identity should be disclosed to cerning the witness's Fifth Amendment claim. the defense. U. S. v. Freund, 525 F.2d 873 In fact, the opinion narrates how the witness's (CA5, 1976). privlle1e was Invoked and sustained, and in
Parenthetically, we do not agree with the that account the only participants in the discus government's argument that Freund and its sion were the witness, her own attorney, and companion case, U. S. v. Doe, 525 F.2d 878 the judge. (CA5, 1976), "conclusively establish that the The usual Sixth Amendment rights of cross· trial judge need not allow either the defendant examination were only peripherally at stake or his lawyer to be present at the in camera here, since the hearing did not relate to guilt hearing with the confidential Informant." but to the collateral Issue of whether Roe's Freund and Doe did not establish blanket pro· privilege was properly invoked. Cf. U. S. v. cedural rules to govern all judicial interviews Pollard, 509 F.2d 601, 604 (CA5, 1975). And with informers. Instead, they were concerned defendants were not unfairly deprived of a with procedures for determining whether the chance to discredit an adverse witness in the so-called "informer's privilege" should be sus jury's eyes, since the jury did not hear Roe tained. We have recently held in U. S. v. testify. Godldns, 527 F.2d 1321 (CA5, 1976), that this (5) Considered solely from the standpoint of privilege (which actually is a privilege of the its utility in eliciting relevant testimony, the in government) may be Invoked only when the camera method has both advantages and dlsad· government seeks to avoid disclosure of an vantages when compared with an Inquiry in informer's Identity; when an accused person open court. It perhaps allows an unusually wishes to subpoena an individual already searching Inquiry Into the proper bounds of the known to him, the privilege is Irrelevant. "If witness's privilege. Under the ordinary proce the Identity of the informer Is admitted or dure a judge Is often placed in the position of known, then there is no reason for pretended excluding testimony that would not really in· concealment of his identity, and the privilege of crimlnate the witness, because he does not secrecy would be merely an artificial obstacle know what the witness's answer would be If to proof." 8 Wtgmore, Evidence§ 2374 at 766 given. See Klewel v. U. S., 204 F.2d 1, 4, 6 (rev. ed. 1961). As we have already pointed (CA5, 1953). Behind closed doors, the judge out, the defendants knew Roe's identity. has no need to make such allowance for igno
(3) Extraordinary complexJty of subject mat· rance. On the other hand, the in camera ap ter and the need to avoid placing a substantial proach tends to deprive courts of the perspec burden on judicial resources may call for the tive that can be contributed by parties seeking participation of counsel In a determination oth· the testimony. The attorneys In the case, hav erwtse suitable for in camera inquiry. See Al· ing greater familiarity with the details of their dennan v. u. S., 394 U.S. 165, 182 n. 14, 89
clients' evidentiary needs, and also possessing S.Ct. 961, 22 L.Ed.2d 176 (1969). the viewpoint of advocates, may draw the (4) Defendants here say that they were entl· judge's attention to considerations that he him tied to cross-examine Roe to expose possible self would have overlooked. See Dennis v. U. omissions and flaws In the submission he made S., 384 U.S. 855, 874-75, 86 S.Ct. 1840, 16 to support his privilege. But they cite no case, L.Ed.2d 973 (1966).
*227 UNITED STATES v. MELCHOR MORENO Cltl u Ill P.2cl 100 (1171) (CAB, 1978), cert. denied, 414 U.S. 1162, 89 value and sent the case back for a new trial, L.Ed.2d 116 (1974). .A. Gomez-&jas and directing:
Waddell clearly contemplated, Roe could On remand, the trial court must hold a properly have been excluded from testify hearing to det.ermine whether Smith's ing only if the court had found that Roe fear of self-incrimination is well-founded could "legitimately ref uae to answer essen and what the parameters of his Fifth tially all relevant questions." Gomez-&jas, Amendment rights are in the context of 507 F.2d at 1220 (emphasis added). the testimony that Sutherlin wishes to obtain from him. If the court finds that
[ll. 12] The record here does not sup Smith cannot properly invoke the Fifth port any such finding. The sealed tran Amendment with respect to any relevant script indicates that Roe's fears of self-in and material questions which Sutherlin crimination centered on the possibility that proposes to uk him, then Smith must the defense, while probing his motives for testify at the new trial. If, on the other becoming an informer, would ask him to hand, the court finds that Smith may discuss circumstances as they existed prior legitimately refuse to answer essentially to the heroin transaction underlying the all relevant questions, then the district instant prosecution. Such testimony, we court must decide in its informed discre may assume for present purposes, might tion whether, in light of Sutherlin's en have aided prosecutors in marshalling trapment defense, Sutherlin should be al charges against him. Roe did not, however, lowed to elicit Smith's refusal to testify explain why the testimony he could give before the jury or to comment on that about his negotiations with the Melchors refusal.
over the heroin sale-the testimony most 507 F.2d at 1220. In a companion case with critical to the Melchors' entrapment conten virtually identical facts, we remanded for a tion-would expose him to a risk of prose new trial with instructions that the judge cution. Since there is a great deal of evi dence to suggest that with respect to the should conduct a "searching inquiry into the validity and extent of [the informer's] Fifth heroin deal he was acting in cooperation Amendment claims." U.S. v. Waddell, 507 with DEA agents at least part of the time, F.2d 1226 (CA5, 1975). we surmise that such a showing would have
been difficult to make. In any event, the [8-10] A witness may not withhold all burden of establishing entitlement to the of the evidence demanded of him merely privilege was his, and he did not carry it as because some of it is protected from disclo to the entire subject matter of his prospec sure by the Fifth Amendment. A blanket tive testimony. Accordingly he should have refusal to testify is unacceptable. A court been called to the witness stand and direct must make a particularized inquiry, decid· ed to give at least part of the testimony ing, in connection with each specific area sought by the defense. Only as to genuine that the questioning party wishes to ex ly threatening questions should his silence plore, whether or not the privilege is well have been sustained. See U. S. v. Stephens, founded. See, e. g., U. S. v. Malnick, 489 . 492 F.2d 1867 (CA6, 1974); Warnell v. U. S., F.2d 682 (CA5, 1974); Daly v. U. S., 393 supra. F.2d 878 (CAB, 1968); Warnell v. U.S., 291 F.2d 687 (CA5, 1961). As to each question, The Second Circuit was recently faced the test is whether the witness is confront with a situation much like the one before ed with substantial and "real,'' and not us. U. S. v. Anglada. 524 F.2d 296 (CA2, merely trifling or imaginary hazards of in 1976). Anglada was unable to obtain testi crimination. Marchetti v. U. S. , 890 U.S. mony from the informer, who had allegedly 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); entrapped him, because the informer, San Rogers v. U. S., 840 U.S. 367, 874, 71 S.Ct. tana, had asserted his Fifth Amendment 438, 95 L.Ed. 344 (1941); General Dynamics privilege. On appeal the defendant raised a Corp. v. Seib Mfg. Co., 481 F.2d 1204, 1~12 number of arguments against the exclusion, *228 536 FEDERAL REPORTER, 2d SERIES 1050 most if not all of them equally pertinent to ed. Roe was the only person who could the Melchon' situation. He pointed to corroborate or discredit this story. He also
played a central role in Ivan's story.• The the unique nature of Santana's testimony District Judge, after his in camera meeting in establishing the entrapment defense with Roe, expressed the view that Roe's (he was the only other participant in the answers "would not be of assistance to the critical conversation). the protection af Defendants in their defense of entrap forded Santana against a criminal charge ment." It is true that Roe's in camera in the Anglada transaction because San account of his dealings with the Melchors tana was acting at the Government's re
differed in some respects from the brothers' quest, the lack of connection between the own testimony. But one cannot assume Anglada sale and the state charge [under
that Roe's account would have stood up lying the self-incrimination claim], the under defense examination. And the jury possible waiver of his fifth amendment might have given greater credence to the rights by his conversations with the pros brothers' story if Roe's testimony had cor· ecutor, and the poBSibility that his reluc
roborated it to some extent. tance to testify was based upon fear of Anglada's retaliation rather than on the
[13) Trial courts must enjoy wide dis fifth amendment. cretion in resolving a self-incrimination Id. at 300 (footnote omitted). In response claim, [11] but their discretion is not unlimited. the appellate court, which had already de· Cf. U. S. v. Chase, 281 F .2d 2'i5, 228-29 cided to revene the case on unrelated (CA7, 1960). In this instance the exclusion grounds, advised the District Judge that if of Roe's testimony in its entirety rose to the the situation arose again at Anglada's new level of constitutional error. trial, he should "take a harder look at any blanket assertion of privilege and also at IV the poBSibility of allowing some carefully phrased, limited questions by Anglada's
(14, 15) The government makes what is, counsel." Jd. 8 in effect, a harmless error contention. As a matter of law, the argument runs, there To complete our analysis of the defend ants' compulsory process contention, we was no entrapment, so it makes no differ look to the materiality and relevancy of the ence whether or not the exclusion of Roe's excluded testimony. See U. S. v. Joseph, testimony was wrong. The government 533 F.2d 282, 284-85 (CA5, 1976). Rigober emphasizes (1) that there were no threats and no real coercion directed against the to alleged that Roe had tried on numerous occasions to entice him into a heroin trans defendants, and (2) that Roe merely set up the transaction and played no part in the action, although Rigoberto had at first de clared several times that he was uninterest- events occurring on the day of the arrest. 8. The District Judge's remarks during his in has ever been extended to the point of allowing
camera conference Indicated a belief that Roe the exclusion of evidence at a criminal trial might be placed In physical danger If he were
with a direct bearing on the guilt or innocence to tesUfy. Of course, there is authority to sup of the accused. port the proposition that a court may protect a witness by forbidding a defendant from asking
9. Although Agent Legaretta participated in and his address or like information, If there Is a testified about some of the preliminary negotia substantial showing of danger. Smith v. Illi tions between Ivan and Roe, his story contra nois, 390 U.S. 129, 133-34, 88 S.Ct. 748, 19 dicted Ivan's In important particulars, and Roe L.Ed.2d 956 (1968) (White, J .. concurring); U. was the only person whose testimony could S. v. Harris, 501 F.2d 1, 7 (CA9, 1974); U. S. v. resolve the inconsistency. Alston, 460 F.2d 48, 52 (CAS, 1972). Like the Informer's privilege (see point (2) within n. 7, 10. This discretion la Implicit in the Supreme supra), these authorities are of doubtful appli Court's admonition that the judge must rely on cation if the defendant already knows the wit· neas and how to contact him. In any event, we " 'his personal perception of the peculiarities of the case.' " See text accompanying n. 5, supra. are not aware that the rationale of these cases
*229 BRUCE v. ESTELLE CJteuNIF.2d IOll (1978)
In simple terms, entrapment occurs "when the criminal conduct was 'the prod Robert Vemon BRUCE, uct of the creative activity' of law-enforce Petitioner-Appellant. ment officials," Sherman v. U. S., 856 U.S.
v. 369, 872, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 W. J. ESTELLE, Director, Texas (1958) (emphasis omitted), or of those work Department of Corrections, ing closely with law-enforcement officials, Reapondent-Appe)Jee. Gomez-Rojas, 507 F.2d at 1220. The en- No. 75-3284. trapment defense does not require proof of threats or coercion. It presupposes deceit,
United States Court of Appeals, not force. Nor does the defense require Fifth Circuit. that the entrapping individual must have Aug. 9, 1976. stayed at hand until the sale was complet- ed. If a government agent truly "implants
After remand from a prior appeal in the criminal design in the mind of the de habeas corpus proceedings brought by a fendant," U.S. v. Russell, 411 U.S. 428, 486,
convicted murderer, 483 F.2d 1031, the 98 S.Ct. 1687, 1645, 36 L.Ed.2d 366 (1978), United States District Court for the North and then disappears, the requirements of ern District of Texas, at Dallas, Eldon B. entrapment can still be met. In any event, Mahon, J., conducted a nunc pro tune com the defendants' theory did not assume that petency hearing and concluded that the pe entrapment had to be attributed to Roe alone. Instead the defendants blamed Roe, titioner did not suffer from any mental
illneBB which would interfere with his abili· Legaretta and Corney jointly. ty to assist in his own defense and factually [16, 17] In short, the evidence against and rationally understand the proceedings Rigoberto and Ivan was not so overwhelm against him, and petitioner again appealed. ing as to show, beyond reasonable doubt, The Court of Appeals, Clark, Circuit Judge, that the infringement at trial of def end held, inter alia, that the trial court's finding ants' constitutional rights was harmleas. 11 that petitioner wu a sociopath and was not Harrington v. California, 895 U.S. 250, 89 schizophrenic was clearly erroneous and S.Ct. 1726, 28 L.Ed.2d 284 (1969). The con that, under the "hard look" standard of victions must be, and are, REVERSED. 12 appellate review, the trial court's ultimate
conclusion that the petitioner was compe tent to stand trial was in error.
Reversed with directions. 1. Babeu Corpus *=>60 In habeas corpus proceeding brought by convicted murderer, mere fact that there was gap of more than nine years between petitioner's murder trial and later nunc pro tune competency hearing in habeas proceed ing did not, per se, preclude intelligent ret rospective resolution of competency issue;
ll. The government did not come forward with 12. Because of this dl1po1ltlon of the case, we Independent evidence that the defendants were need not dwell on defendant•' other assl1n ment1 of error. In his ln1tructtons to the jury predl1po1ed to commit narcotics offenaea. It the District Court drew a distinction between elmply relied on the facts of the transaction
"lawful entrapment" and "unlawful entrap and the Melchors' teatlmony to argue that en ment." We have often criticized that usage as trapment had not occurred. confusing. See. e. g., U. S. v. Oquendo, 490 F.2d 161, 165 n. 9 (CA5, 1974). *230 (Oct.Term
16 4G BUPRJDKlll COURT BJDPORTJllB Plalntlir'1 motion for a tempol'U'J bljunc· Appeal from tbe Dlatrlct Court of tbe tlon abould have been sranted. United States for the Southern Dlatrtct of Decree reversed. New York. On rehearinr. Judgment reamrmed. = <• u ..... , For former opinion, see 262 U. S. SIS3, 48 s. Ot. 562, 67 L. Ed. 1023. McCARTHY v. ARNDSTEIN. Meean. Solicitor General Beck, of Wuh· (Rearped Nov. 21, 1923. Dedded Oct. 20, ington, D. o., and Saul S. Myers and Walter 1924.) H. Pollak, both of New York Cit,y, for ap No. 404. pellant. I. Bankruptcy 11:=241 (1)-General rul11 of •aa evidence appllcabl1 to exa•lnatlon of l1Hk• •Mr. Selden Bacon, of New York City, for rupt aad wife under Bankruptoy Aot. National Surety Oo.
The reneral rules governing admlHibllit7 •88 •Mr. Lindley M. Garrison, ot New York of evidence and competency aud compellablllty of wftne11e1 are applicable to examination of Oity, tor American Surety Co. and others. bankrupt and wife, under Bankruptcy Act, July Mr. W. Randolph Montgomery, of New l, 1898, f 2la, a1 amended by Act Feb. 6, 1903,
York City, for National Asa'n of Credit Men. f7 (Comp. St. f 9605). Mr. Wm. J. Fallon, of White Plains, N. Y., 2. Wltnn111 11:=293\,' [2] -Constltutlonal prlvl· for appellee. lege agalnat eelf-lnorlmlnatlon applicable to civil •• well aa criminal prooeedlnga.
Mr. Justice BRANDEIS delivered the opin· Constitutional prlvflere against aelf-incrim· ion of the Court. fnation appliea to civil as well [81] criminal pro Jn 1920, Amdstefn was adjudged an in· ceedln11. voluntary bankrupt In the Southern dl1trlct 3. WHne1111 4=293-PrMleae against aelf· of New York. Pursuant to a subpa!Da, be Incrimination appll11 to wltnees not party appeared before a special commlsaloner for defendant. examination as to bis assets under section Oomtitutfonal pririlere arainet aelf-lncrJmi· 2la of the Bankruptcy Act of July l, 1898, nation la available to witneta who fa not a par· c. Ml, 80 Stat. 544, 552, aa amended by Act q defendant.
Feb. 5, 1900, I 7 (Comp. St. I 9605), wu 4. WltHllff C:=293%-Co111tltutlonaJ prM· sworn as a witness, and freely answered leg1 available to owner of gooda which may be forfeited In peMI prooeedlng. some questions. Others he refused to answer
Con1tftutional privilege against aelf-lncrim on the ground that to do so mlgbt tend to ination protect. owner of goods wbich may be incriminate him. Having persisted in thfa forfeited in penal proceeding.
refusal, after tbe District Judge ordered blm 5•·Bukruptoy $=242 (2)-Coaatltutlonal prlVI· to answer, Arndstein was committed for con llttie agaJnet aelf·lnorlmlnatloa avallable to tempt. He did not appeal from the order or bankr11pt examlHtl u to u11t1 11nder Ba•k·
tile a petition to revtae. Instead be applied l'Uptoy Act. to another judge aitting in the same court Oon1tft11tlonal prlrilep against aelf·lncrim· for a writ of habeas corpus. The petition lnaUon ill available to bankrupt. beinr ezamiued wa11 denied, on the ground that the bauk- before commissioner a1 to assets under Bank •ae rupt.cy Act, July 1, 1898, I 21a, as amended by rupt bad •waived bJs privilege by complJIDg Act Jf'eb. 6, 1903, I 7 (Comp. St. f 9605), though without objection to the order that he me a information fa 1ou1ht for purpoae of di1cover· schedule ot bfa assets.1 The judgment de i.111 eatate. · nying the writ wa11 reversed by this court. 6. Bankruptcy 4=242(2)-Prlvllege aaaln1t but the mandate rectulred merely that the 11lf [0] lncrlmlnatlon don not relieve bankrupt lower court issue the writ and then proceed of duty to 1urrender bo0k1 and papers u part as uaual. Amdstefn v. McCarthy, 2lS4 U. S. of 11tate. 71, 41 S. 0t. 136, 6!S L. Ed. 138; Id., 2lS4 U. Conatitutfonal privilere against 1elf·incriml· s. 379, 41 s. Ct. 136, 65 L. Ed. 314. nation doe. not relieve bankrupt from duty of Thereupon the District Court Issued the 1urrenderin1 boob and papers BB part of hie eatate, under Bankruptcy Act July 1, 1898, writ of habeas corpus. Tbe marshal made I 70a (1), beiq Comp. St. I 9654.
a return which included a transcript of the 7. Bankrvptay 41=242(2)-Con11r111 oan oonfer entire proceedf.ngs. The court held that, power of unreetrloted examination of bank· desplt.e certain oral answers given, the bank· rupt aa to ueeta by providing complete Im·
rupt was entitled to cease disclosure. The mU11lty. judgment, which discharged the bankrupt Conrre111 can confer power of unreatrleted from custody, was a.IDrmed by this court. ezamlnatlon of bankrupt, being examined before McCAlrthy v. Arndstein, 202 U. S. 85G, 857, commi1&loner [81] to assets, under Bankruptcy 358, 43 B. Ct. 562, 67 L. Ed. 1023. The case Act July 1, 1898, I 2la, Oii amended by Act, Is now before us on rehearing, granted in Feb. 5, 1903, I 7 (Comp. St. I 9605), aud make order to permit argument of the proPoBltion, privilege against self-incrimination not avail not presented by coun1el before, that the able, by providing complete immunity.
c=iror other cases He aame topic and Kl!IY -NUMBB:R In •II KeT·Numbend Dlseata u4 Ja4ae. • Ia n Toblu, Greenthal I Hendel.Ion (D. 0,) 216 l'-4. Iii. *231 19'J4) llcOABTBY v. ARNDSTEIN 17 (4& S.Ct.) prlvllege against selt-fncrlmlnatlon does not fully as it doee one who Is also a party de extend to an examination of the bankrupt fendant. It protects, likewise, the owner of made for the purPoBe of obtaining possee- goods which may be forfeited In a penal pro alon of property belonging to his estate. 263 ceeding. See Counselman v. Hitchcock, 142 U. 8. 676, 44 S. Ot. 88, 68 L. Ed. 001. U. S. M7, 1168, IS64, 12 S. Ct. 191S, 35 L. Ed.
[1 J The right to examine the bankrupt, 1110. ••1 here In question, rests wholly on section 21a. [I] 'The government urges more strongly This section provides that the court may a narrower contention. It claims that the "require any designated person, Including the constitutional privilege does not relieve a bankrupt and his wife, to appear in court bankrupt from the duty to give Information • • • to be examined concerning the acta, conduct, or property ot a bankrupt whose which la sought for the purpose of discover·
tng his estate. It asserts that in England estate la In process of admlnlstratton. such an exception to the common law privl • • • " The subject-matter of the examina lege prevails, and that the exception bad tion ls thus specifically prescribed by the been established there prior to the Declara· act. There ls no provision prescribing the tlon of Independence.• Whatever may be the rules by which the examination ls to be gov rule In England, it ls clear that tn America erned. These are, lmpliedl;v, the general the consUtutlonal prohibition of compulsory rules governing the admissib111ty of evidence self-Incrimination has not been so limited.& and the competency and compellablllty of [II] The cases which hold that a bankrupt •40 wltne11e1.1 The section contains no ln•dlca- must surrender booka and papers, although tlon of an intention, on the part of Congrese, they contain tncrlmtnating evidence, reat upon a principle different from that here to take from any witness the privilege against selt-lncrlmlnatlon. Moroover, the section involved. Matter of Harris, 221 U. S. 274, makes clear the purpose not to dUrerenttate 31 8. Ot. 557, 113 L. Ed. 782; Johnson v. between the bankrupt and other witnesses, nor United States, 228 U. 8. 4:>7, 33 S. Ct. 672, to dllrerentlate examinations which relllte to 57 L. Ed. 919, 47 L. R. A. (N. S.) 268; Ex the property from those which relate to the parte Fuller, 262 U. S. 91, 43 8. Ot. 496, 67 acts or the conduct of the bankrupt.• Thia L. Ed. 881; Dier v. Banton, 262 U. S. 147, court baa already decided that the privilege 48 S. Ot. 533, 67 L. Ed. 915. The law re was not waived, either by the bankrupt's ftl· quires a bankrupt to surrender bis property.
The books and papers of a business are a Ing the schedule or by his answering orall7 part of the bankrupt estate. Section 70a certain questions. The contention now ls
(1) being Comp. St. I 9654. To permit him that the privilege against eelf-incriminaHon ought to have been disallowed because, un to retain poBSeSBlon, because surrender might
involve disclosure of a crime, would destroy der the Conatttutton, it does not extend to a property right. The consUtutional prlvl· the examination of a bankrupt in a bank
lege relatee to the adjective law. It does not ruptcy proceeding. relleve one from compliance with the sub· (2-4) The government Insists, broadly, that stantlve obllgatton to surrender propert7, the constitutional privilege against aelt-tn· •a crlmlnatlon does not apply tn any civil pro [7] •section 21a, on the other hand, deals ceedtng. The contrary must be accepted aa specUtcally and solely with the adjective 1ettled. The privilege ls not ordinarily de law-with evidence and witnesses. When pendent upon the nature of the proceeding in the bankrupt appears before a commissioner Which the testimony is sought or is to be used. under this section, he comes, like any other It ap111ies alike to clvll and criminal proceed person, merely to testify. In that connecUon ings, wherever the answer might tend to sub he may, like any other witness, assert the ject to criminal responsibility him who gives constitutional privilege; been use the present tt. The privilege protects a mere witness ns statute tails to atrord complete immunity from prosecution. If Congress should here
• Bee People'• Bank ot Bullalo "'· Brown, [118] 11'. nfter conclude that a full disclosure of tho 882. ISO C. C. A. 4ll: In re Punell (D. 0.) 114 11'. 171; Iia re Josephson <D. C.) 121 11'. 142: Brown "'· 1------- ---------- Penoa, 122 Ji', 213, 68 C. C. A. 658: In re Hook• • See Bz parte Me)'lllot, 1 Atk. 196, 198, 200 : Bz parte CoasenB, Buck'11 Ca.ses, 591, 640; In re Heath, lmolt.liag Co. (D. 0.) 138 11'. 91it, 961: In re RUO• (D, O.) 16' F. 268. 2 D. A Ch. 214. Th11 requlrement under the IDnr· ll•h pracUce referred to 111, perhaps, more like the [1] Bubat&Dtla.117 the ume provision wa1 made la American roqulrmneot of the filing or & 1ehedule Act April " 1800, c. 19, II 14, 18, 24, 2 Stat. 25, of &1118ta under 1ectlon 7a(8), being Comp. St. I IS. ·•: la Act Aug. 19, 1841, c. 9, I 4, 6 Btat. 440 9691, than the eubmlaaloa to ezamlnatlon aa & wit• (Ill part) : In Aot lllaroh 2, 1887, c. 176, I 26, 14 Btat. 1117, 629. See, also, Act Feb. 5, 1903, o. 487, I '1, 32 11811 proTlded for In llOCllon 21a. 'In re Scott (D. C.) 116 F. 8111: In n Ro11er (D. Stat. 'lff, 798. The purpo1e m•7 have been, la part, to reader the bankrupt and other• competent u C.) 81 P. I06: In re Frauklln Syndicate (D. C.) wtta-•. Compare Ex parte Hae&, [1902] 1 K. B. llt 11'. ao&: United Stat.ea v. Ooldatelo (D. C.) 182 18. The bankrupt (and m-.n)' other wltn-) F. 789: In re Bendhelm <D. O.) 180 F. 918: In re
Toblu, etc. (D. C.) 316 r. 81&: In re Nalet•k>' (0. would. under the rul• prevailing In the common law court at. the Ume the earlier blUlkrupt 1&11'8 C.) l80 11'. 437, Comp1ore In re Peldateln (D. C.)
lOS r. ••: In " Walllh (D. C.) lot ... 618; Ill ... were enaeted, h•ve been Incompetent u wlta-, Sher& (D. c.) 114 F. 207: In re Nachman (D. C.) - the ground or lnte?'Ollt, but tor 1uch .. proTl· Ut I'. 996: In re Levin (D. C.) 131 JI'. 188. But 1ee 11011. and the wife would have been lacompetallt be e&llM or her partloullll' hlaUomhip. Mackel "· Rochuter, 102 F, 114, 43 O. 0. A. 4J7, *232 415 SUPREMJll COURT REPORTER ( Oc~.11,'erm bankrapt e&tate bJ tile wltnell8ell la of great~ 7. Jury $=>13(21)-Provlaloaa of Clayton Act er Importance than the posalblllt7 of PUD· providing tor Jury trlal In oontempt proceed· Inga held avallaltl• to railroad atrlken, who falling them tor aome crime 1n the paet, lt
had rejected deolalon ot Railroad LabOt' can, ae ID other cases, confer the power of Board. unrestricted examinaUon b7 provldlll; com Strlklnr emplo7~1 of railroad, who bad re· plete immunity. Compare Brown v. Walker, fn1ed to abide by order of Rail road Labor 161 U. 8. 591, 16 S. Ot. 644, 40 L. Ed. 819 i Board, Aeld entitled to jury tr ial, under Clayton GUckatelD v. United States, 222 u. S.139, 142. .Act, 11 20--22 (Oomp. St. II 1243d, 1245a, 82 S. Ct. 71, 56 L. Ed. 128 i Ensign v. 1246b), In contempt proceedlnra for Tlolation Penn17lnnla, 221 U. S. G92, 88 S. Ot. 221. of injunction, 1lnce auch 1tatute doea not re 57 L. Ed. 638. quire existence of 1tatu1 of emplo7ment at .Judgment reaftlrmed. time acts conetltutinr contempt .are committed • 8. lnJanotlon 41=223(2)-Vlolatlon of lnJuno- tlon against 1trlk1ra held lla1l1 for ooatempt proo11dlng1.
Striker•, who n1ed abu1ive language, 81~ (lllMl 0. 8. U) sembled in numbers, and were ruilty of picket· MICHAELSON et al. v. UNITED STATES ex iog a nd other octe for purpose of lntimidntlng
rel. CHICAGO, ST. P., M. ~ O. RY. CO. prospective employ~s. could be convicted of cootemf)t in proceedings under Clayton Act, U SANDEFUR v. CANOE CREEK COAL CO. 2()..22 (Comp. Sl. §§ l243d, 12450, 1245b) , re quiring tbc con tempt to constitute [11] crime,
(Arped April 9 and 10, 1924. Decided Oct. sincl! su~b acte pr ima foclc, nt Jeost, violate St. 20, 1924.) Wl1. 1921, I 4466c. Nos. 24.6 and 232. 9. Jury 41=13(21)-Provlilon of Cl1yton Aot provldtng tor Jury trlal In cont ... pt prooeed· I. lnJunctlon $=>230(1)-Prooeedlng tor vlola· ln111 ta 1111ndatory. tlon ot Injunction under Clayton Aot le tor Clayton A.ct, H 21, 22 (Comp. St. If 1245a, crlmlaal and not cMI oontempt.
1245b), providing · for Ju1'7 trial on demand of Proceeding for violation ol injunction, un· accused in contempt proceeding, where the act der Clayton A.ct, II 21, 22 (Comp. St. H 1245a, conetitute1 a crime, is mandator7. 1245b), i1 a. proceeding for criminal and not for civil contempt, and i1 u independent pro· On Writ of CerUorarl to the United States ceedlng at law between the public and defend Circuit Court of Appeal& for the Seventh Cir ant, and no part of the orlrina.l caue.
cuit. On Certificate from the United States Olr 2. Comteaipt $=>30-Power to pu1l1h for oon. tempt Inherent In all oourta. cult Court of Appeals for ~be Sixth Olrealt. . The power to punish for contempt la ID·
Contempt proceeding b7 tbe United State&, herent ID all courta. on the relation of the Chicago, St. PaUl. s. CDltempt $=>80 ( I )-Pre11t111ptlon Of IHO Mlnneapolls & Omaha Railway Compan,y, oence obtain• 11 orlmlnal oonte•~ prooeed· a1atn1t Sam Michaelson and others, and irult lags.
b7 the Canoe Creek Coal CompaD7 agaburt Preeomption of Innocence obtai111 ta pro S. C. S&Ddefur and others. Judgments aplnat ceedinp for criminal contempt. defendants Jn the first described proceedlng were a.!Brmed b7 the Circuit Co.urt of .Appeal&
4. Contempt $=>80(3)-Proot Of gallt ot Of'fm· (291 II'. 940), and the7 bring error. The uamed laal contempt must lie befond rHaonallle doubt. defendant 1D the second described action was 4ned tor contempt, and the Circuit Court of
In contempt proceedinr1, proof of rullt of eriminal intent muat be be7ond reuonable Appeal&, on error, cerWled the question In doubt. volved to the United Statea Supreme Court (298 F. 379). Judgments reversed and cause 5, Wltne1111 $=>2931/2-E)efendant, aoou11d Of
orlmlnal oontempt, cannot h oompelled totll• remanded 1n first proceeding, and question .... tlfy agalnat hlm11lf. anawered 1n second action. Defendant may not be compelled to teedfJ arainat himself 1D criminal contempt proceed •Meears. Donald R. Richberg, of Chicago, ln1. Ill., Jobn A. Cadigan, of Superior, Wis., and
Jackson H. Ralston, of New York Cl~, for 8. Jury 41=13(21)-Provlalon of Clayton Aot, providing for Jury trial In certala eontempt petitioner& Michaelson and others. •so proceeding•, held oonatltutlonal. •Messn • .Jackson B. Ralston, of New York ClaJ'ton A.ct, II 21, 22 (Comp. Bt. II 12451, Oit7 [1] and James W. Henson, of Hender~n, 1245h), provldinr for ju17 trial in contempt Ky., tor petitioner Sandefur. proceedinr1 where act complained of 11 [1110] a •M c:rime [1] on demand of accused, Aeld not uncon
•Mr. Edward Porter Humphrey, of Louis atltuuonal impairment ·of Inherent power of eourta to punieh for contempt; the proceeding ville, K7., for Canoe Creek Coal Co. •as beinr Ill Independent proceedlnr at law for •Mr. Richard L. Kennedy, of St. Paul, MIDn., erlmlnal contempt, baaed ou act con1tltotl.q for respondent Chlca,o, St. P., M. & O. R. Co. crime. ~J'or oUaer u.• - l&Dlo topic u4 KIDY·NVMBBR la all ~1,N1&111bv*2 DJa'•la aa4 la4uee *233 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846
Courts are afforded discretion to stair case if interests of justice so require because
886 F.Supp. 1134 denial of stay could impair party's Fifth United States District Court, Amendment privilege against self-incrimination, S.D. New York. extend criminal discovery beyond limits set forth in Federal Rule of Criminal Procedure, expose
TRU-STEES OF the PLUMBERS AND PIPEFITfERS defense's theory to prosecution in advance NATIONAL PENSION FUND, et al., Plaintiffs, of trial, or otherwise prejudice criminal case; v. however, stay of criminal case is extraordinary
1 RANSWORLD
MECHANICAL, remedy. U .S.C.A. ConstAmend. 5; Fed.Rules INC., et al., Defendants. Cr.Proc.Rule 16(b), 18 U.S.C.A No. 94 Civ. 6634 (DC). May :L5, i995 . 30 Cases that cite this headnote Trustees of employee benefit funds for local union brought action against employers for violating Employee Retirement
[3] Action Income Security Act (ERISA), Labor Management Relations Nature and subject matter of actions in Act. civil Racketeer Influenced Corrupt Organizations Act general (RICO), and common-law fraud. On defendants' motion to Factors lo be consi<lered in detem1ining whether stay case pending resolution of related criminal and civil cases sta\ of case is warranted in interests of justice and their motion to dismiss, the District Court, Chin, J., held include extent to which issues in criminal case that: ( 1) case would be stnyed pending resolution of criminal overlap '' ith those presented in ci,·il case. case alleging same wrongful conduct; (2) complete stay status of case, including \\ hether defendanls would granted, rather than only partial stay as to individual ha\ c been indicted, private interests of plaintiffs defendants: ( 3) pending civil case on suspense calendar would in proceeding expetlitiously weighed against not be stayed under '·prior pending action" doctrine; (4) pr~jutlice to plaintiffs caused b) i.lela), pri\ ate trustees alleged conunon-law and ERISA fraud claims with interests of and burden on defendants, interests required particularity; and (5) trustees established pattern of courts. imi.1 public interest. of racketeering activity sufficient to withstand motion to dismiss. 94 Cases that cite this headnote Motion to stay criminal case granted; motions to stay civil
[4] Action case and to dismiss denied. Nature and subject matter of actions in general Issues in criminal case overlap with those in
West Headnotes (26) civil case, supporting stay of civil case. where \-Vrongful conduct alleged in both cases \Vas that defendants, through their companies, failed Action
[1] to make contributions to union pension fonds, Stay of Proceedings failed to pay m1ion assessments, and concealed Court has discretionary authority to stay case if employment of non-union employees, all in interests of justice so require. violation of collective bargaining agreement betvveen defendants and union, and state and
4 Cases that cite this headnote federal law. 24 Cases that cite this headnote [2] Action , Nature and subject matter of actions in general Action [SJ . , .... I '· i J, . , *234 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846
Nature and subject matter of actions in to individual defendants; individual defendants general were controlling officers of corporate defendants and responsible for conect reporting and Indictment of defendants for defrauding union payment of fringe benefit contributions and members of fringe benefit contributions weighed wages that defendants allegedly withheld. in favor of granting stay of civil action alleging same wrongful conduct.
4 Cases that cite this headnote 2 Cases that cite this headnote [9] Action . · Nature and subject matter of actions in Action [6) general Nature and subject matter of actions in general "Prior pending action" doctrine did not apply to support stay of case pending resolution of earlier Stay of civil case 1s most appropriate \vhere tiled civil case on suspense calendar. party to civil case has already been indicted for same conduct: likelihood that defendant may
Cases that cite this headnote make incriminating statements is greatest after indictment has issued, and prejudice to plaintiffs in ciYil case is reduced since criminal case will [10] Federal Civil Procedure likelv be quickly resolved due to Speedy Trial Fraud, mistake and condition of mind Act considerations.
Tmstees of union pension fund alleged common la\v and Employee Retirement Income Security
28 Cases that cite this headnote Act (ERISA) fraud claim with particularity required by Federal Rules of Civil Procedure.
[7] Action where they alleged that in monthly reports Nature and subject matter of actions in submitted to them, employers misrepresented general identity of employees working for them and number of hours each employee worked. lhat Judicial efficiency weighed in favor of granting employers were responsible for accuracy of stay of civil case pending resolution of c1iminal reports, that trustees relied on misrepresentations case alleging same wrongful conduct: defendants to their detriment. and thnt trustees could have been indicted and \vill face trial within not know identity of employees or hours six months, resolution of criminal case may actually \Vorked, since they did not have access increase possibility of settlement of civil case to employers' records. Employee Retirement due to high standard ofproofrequired in criminal Income Security Act of 1974, § 3(1, 3), 29 prosecution. and resolution of criminal case may U.S.C.A. § 1002(1, 3) ~ Fed.Rules Civ.Proc.Rule reduce scope of discovery in civil case, since 9(b), 28 U .S.C.A. evidence gathered during criminal prosecution can later be used in civil case.
Cases that cite this headnote 34 Cases that cite this headnote [11] Federal Civil Procedure Fraud, mistake and condition of mind (8) Action Nature and subject matter of actions in Purpose behind particularity requirement for general pleading fraud is to provide defendants with fair notice of plaintiffs' claims, protect defendants Complete stay of civil case as to all from hann to their reputation and reduce number defendants pending resolution of criminal of strike suits. Fed.Rules Civ.Proc.Rule 9(b), 28 case involving allegations of same vHongful
U.S.C.A
conduct was warranted, since it would be more efficient than granting only partial stay as
II I [1] [11] *235 Trustees of Plumbers and Plpefltters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RI CO Bus.Disp.Guide 8846
committed two or more predicate acts within ten I Cases that cite this headnote years, which were related and continuous 18 U.S.C ,A § 1962.
(12] Federal Civil Procedure I Cases that cite this headnote .. · Fraud, mistake and condition of mind To satisfy rule requiring fraud to be pleaded with [16] Racketeer Influenced and Corrupt particularity, plaintiffs must specify statements Organizations they claim were false or misleading and giYe Continuity or relatedness; ongoing activity particulars with respect to fraudulent statements, including when and where statements were made Predicate acts are "related" , for purposes of and identity of those responsible for statements. satisf)'ing relatedness requirement for alleging Fed Rules Civ.Proc.Rule 9(b), 28 U .S.C.A pattern of racketeering activity. if they share
similar purposes, participants, victims, methods, Cases that cite this headnote or other distinguishing clrnracteristics~ they must not be isolated or sporadic. 18 U.S.C.A. § 1962.
(13] Federal Civil Procedure I Cases that cite this headnote Fraud, mistake and condition of mind Allegation that certain facts are peculiarly \Vithi.n [17) Racketeer Influenced and Corrupt opposing party's knowledge justifies relaxation Organizations of requirement for pleading fraud claims with Time and duration particularity. Fed.Rules Civ.Proc.Rule 9(b), 28 U .S.C.A "Continuity" required lo allege pattern of
racketeering can be shown either through 2 Cases that cite this headnote series of related predicate acts extending over substantial period of time or by past conduct which by its nature extends into future . 18
[14] Racketeer Influenced and Corrupt U.S.C.A § 1962. Organizations Association with or participation in 3 Cases that cite this headnote enterprise; control or intent Racketeer Influenced and Corrupt
(18] Racketeer Influenced and Corrupt Organizations Organizations Business, property, or proprietary injury; Pattern personal irtjuries Trnstees of several employee benefit funds for To prevail on their civil RlCO claim, plaintiffs local union established pattern of racketeering must establish that defendants conducted or activity sufficient Lo withstand motion to participated in conduct of enterprise's affairs dismiss, where they alleged that employers, through pattern of racketeering activity that from at least 1988 to present, mailed caused injury to plaintiffs' business or property. monthly reports to trustees containing intentional 18 U.S.C.A. § l 962(c). misrepresentations regarding number of persons 3 Cases that cite this headnote employed by employers and number of hours worked by those employees for purposes of reaping financial gain at expense of trustees, and
[15] Racketeer Influenced and Corrupt that they underreported amount of money owed Organizations . to employee benefit funds on reports and retained Pattern of Activity money themselves. 18 U.S .C.A. § 1962. To allege adequately pattern of racketeering, plaintiffs must establish that defemlants Cases that cite this headnote
•' \, • 'I *236 Trustees of Plumbers and Pipefitters Nat. Pension Fund v ... ., 886 F.Supp. 11 34 (1995) RI CO Bus Disp.Guide 8846 [19) Racketeer Influenced and Corrupt [22] Federal Civil Procedure
Organizations Fraud, mistake and condition of mind What constitutes enterprise in general RJCO claim based on mail fraud must satisfy Racketeer Influenced and Corrupt particularity requirement for pleading fraud Organizations under Federal Rules of Civil Procedure. 18
Informal entities; associations-in-fact U.S.CA § 1962; Fed.Rules Civ.Proc.Rule 9(b),
28 U.S.C.A
"Enterprise" for RICO claim may either be ongoing organization or association-in-fact of
Cases that cite this headnote individuals or entities acting as group for common purpose of engaging in racketeering activity. 18 U.S.C.A § 1961(4). [23] Racketeer Influenced and Corrupt
Organizations Cases that cite this headnote .- Racketeering or criminal activity; predicate acts 1201 Racketeer Influenced and Corrupt RJCO mail fraud claim must also identify Organizations purpose of mailing within fraudulent scheme. 18 lnfonnal entities; associations-in-fact U.S .C.A § 1962. Racketeer Influenced and Corrupt 1 Cases that cite this headnote Organizations Separateness from predicate acts, pattern, or persons [24] Federal Civil Procedure .-- Fraud, mistake and condition of mind To establish "association-in-fact enterprise" for RICO purposes. plaintiffs must show that Trustees of employee benefit funds for local members of enterprise function as continuing union pied RJCO mail fraud claim with required unit and that enterprise exists separate and apart particularity, 1,.vhere purpose of mailing was from racketeering activity in which it is allegedly to Lmderreport number of persons employed engaged. 18 U.S.C.A § 1962. and hours worked by employees so that
employers would pay fewer contributions and 4 Cases that cite this headnote keep additional money, which was owed to trustees, for themselves: no specific connection between defendants and fraudulent mailing was
[21] Racketeer Influenced and Corrupt necessary, since individual defendants were Organizations owners and controlling officers of corporate Employers and employees defendants, \vhich were same entity with Trustees of employee benefit funds for local responsibility for accliracy of reports. 18 unions sufficiently alleged existence of RJCO U.S.C.A. § 1962; Fed.Rules Civ.Proc.Rule 9(b), enterprise by alleging that defendants were
28 U.S.C.A.
employers of persons perfonning work covered under collective bargaining agreement and
Cases that cite this headnote controlled by individual defendants, who had responsibility for nccuracy nnd mailing of
[25] Racketeer Influenced and Corrupt reports, and thnt two of corporate defendants Organizations \Vere sham companies created by other Injury; causation defendants to defraud trustees. 18 U.S.C.A §§ 1961( 4), 1962. Allegations by truste~s of employee benefits
funds for local union that employers withheld Cases that cite this headnote contributions and other payments sufficiently stated RlCO injury; trustees alleged non-
., •I *237 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846
speculative loss. but could not ascertain precise amount of that loss because information was
BACKGROUND 1 peculiarly within defendants' knowledge. 18 U.S .C.A. § 1962.
Plaintiffs are the Trustees of severnl employee benefit funds for Local No. 2, United Association of Journeymen and
3 Cases that cite this headnote Apprentices of the Plumbing and Pipefitting Industry (the "Local 2 Funds") and of the Plumbers and Pipefitters
[26] Racketeer Influenced and Corrupt National Pension Fund (collectively, the '·Pension Fund"). Organizations The Tmstees administer multi-employer employee benefit · Damages funds as defined by the Employment Retirement Income RICO plaintiff may not recover for speculative Security Act of 1974 ("ERlSA"), 29 U.S.C. §§ 1002(1) and losses or where amount of damages is (3). Local 2, a labor organization atliliated with the AFL unprovable, since purpose of civil RICO award CIO, is also a plaintiff in this action. is to return plaintiff to same financial position he would have enjoyed absent illegal conduct. 18 Defendants are corporations engaged in the plmnbing U S.C.A. § I% 1 et seq. and pipefitting industry. 2 Plaintiffs allege that defendants
Transworld Mechanical nnd Danica Plumbing are bound 5 Cases that cite this headnote by a collective bargaining agreement with Local 2 that sets forth the terms and conditions for plumbing and gas fitting work performed by defendants' employees in Manhattan and the Bronx (the "Agreement''). The Agreement
Attorneys and Law Firms provides that defendants will remit contributions to the Funds for every hour \.Yorked by an employee, Plaintiffs
'"1137 Cohen. Weiss and Simon by Joseph J. Vitale and allege that defendants, from 1988 to the present, foiled Tamir W. Rosenblum, New York City, for plaintiffs. to make adequate contributions for the hours worked by their employees, conceilled the identity of the individuals Schlam Stone & Dolan by James C. Sherwood, Ne\.\' York employed by them, and misrepresented the hours worked by City, for defendants .
the employees who were listed. Defendants allegedly made these misrepresentations on reports made to the Industry Boilrd and the Pension Fund. In addition, defendm1ts allegedly
OPINION
failed to pay their employees the contrnclual wage rates as set Cl !IN. District Judge forth in the Agreement and failed to make union assessment payments or promotion fund contributions. This is a case brought to collect contributions and other benefits allegedly owed to several employee benefit
"1138 On or about October 15, 1993 , the Andreadakises and plans. Defendants Transworld Mechanicnl. Inc., Transworld the two Danica entities were indicted by the Grand Jury of Phunbing & Heating, Inc ., Danica Plumbing & Heating the County of New York, People of the State of New York Corp., Danica Mechanical, Inc .. Thomas Andreadakis ilnd v. Helen Andreadakis, et al. The indictment charged that. Helen Andreadakis move I) to stay this case pending the among other things, defendants filed false reports to disguise resolution of a related criminal matter in New York state violations of the Agreement. failed to make contributions to court, 2) to stay this cnse pending the resolution of a related union pension funds, failed to pay union assessments, and civil case in this Court, and 3) to dismiss certain claims. For concealed the employment of non-union workers who would the following reasons, the motion to stay this case until the otherwise be coven:d under the Agreement (the "Criminal resolution of the criminal matter is granted; the motion to Case"). The Criminal Case is scheduled to go to trial in late stay pending the civil case, however. is denied. The motion !995 to dismiss is granted in pmt and denied in part Following the indictment, plaintiffs commenced this ilCtion (with an amended complaint filed on or about January I 2, 1995), asserting violations ofERISA, the Labor Management
" .. ' ' , II I II I• *238 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 Pharmaceutical, Inc., 133 F R.D . 12 , 13 (S.D.N .Y .1990) Relations Act, 1947, 29 U.S.C . § 141 et seq., civil RICO, 18 U.S.C § 1961 et seq., aml common-lmv fraud. The (citing Dresser, 628 F.2d at 1376); Brock v. Tolkow, 109 F .R.D . 116, 119 (E.D.N.Y.1985). * ll39 A slay of the wrongful conduct about which plaintiffs complain in this case is the same as in the Criminal Case. 3 Defendants move civil case, however. is an extrnordinmy remedy. In re Par
Pharmaceutical, 133 F.R.D. at 13 . to stay this action pending resolution of the Criminal Case because, without a stay. they will be forced to choose between
[3) wuiving their Fifth Amendment privilege and responding to discovery in the civil case, thereby risking self-incrimination. or invoking the privilege and facing a default in the civil case.
lhu,;c presented in the ci1 iJ case: 5 2) the st:.ilus nf thi.: rnsi.:. Defendants also move to stay this case pending the resolution mcluJmg '' ht:thcr !hi: JcknJa11ts ha,·e bl'en mJicted: 6 3 fl hc of a related civil case that is currently before Judge Haighl.
p111 Jtc interests pf the plaintiffs in p1oceeding c:-.pi.:ditioush That case. Brenner v. Transworld J1echanical, Inc., 93 Civ. '' cigllL'd aga111st the pre.i~d1L·o.: lo plaintiff~ cm1,;cd b1 the 2198 (CSH'l, which was commenced before the indictment dela1. ·1 l lht.: pri\ ate inten~st,; llfand tiLLrden on the dcknd:mls.;: was issued, is a delinquent contribution action brought by the Local 2 Funds rig:ainst defendants Trnnsworld Meclrnnical and Helen Andreadakis (the ·Brenner case''). After the Local 2 Funds learned of the other defendants' roles in the alleged fraud and embezzlement, it joined in the instant lawsuil. The Bre1111er case is currently on the suspense calendar, and counsel for plaintiffs has represented thn t Local 2 Funds is
11th respect to th.e ndrl'aduk1ses \villing to discontinue it. (Pl.Mem. at 4), Finally, defendants move to dismiss the RICO and fraud
A. St<1y c1s to Helen <1ml J1w11111s Andrewlakis claims for failure to state a claim and failure to plead fraud 1. Oi•erlup oflssues with particularity.
[-1) The first question to be resol\'ed is thcextenl lo\\ hich.Jhe issues in the criminal case (11erlup \\ ith those presen I.be ci\'il case, since self-incrimination is more l ikd~ il" there is a
DISCUSSION
significant overlap. See Volmar Distributors, lnc. , 152 F R.D. at 39 (quoting ParallelPmceedings, 12.9 F.R.D. a t 203) r·Jhe
l. Motion for Stay mllsl im )llrtant foclor al the thresh(1Jd is the degree lo which [l] [2) It i~ \_vt:ll :;dtkJ that a court ]/11s tl1c Jiscretioiwn the ci\'il issm:s 01Trlop \ itb the crimirn1l issues.,) If the1e n 11u1on ~ to:;1a~ <case !'1lk 111u:resr~\)r11bLic"' s 'ircqllirc See is n o ll\ crlap, there '\\ ouhl be no danger of self-inl'.rimination United States v. Kordel, 397 U.S. 1, 12 n. 27, 90 S.Ct. 763 , and acrnn.lingh no need for a ~la~ See Parallel Proceedings, 770 n. 27 , 25 L.Ed 2d I (1970) ; Kashi v. Gratsos, 790 F .2d 129 F.R D. at 203 . 1050, 1057 (2d Cir.1986) (citing SEC v. Dresser Industries, 628 F.2d 1368, 1375 (D.C.Cir.) (en bane ). cert. denied, 449
Reading the ccimina1 inu1ctmcn1 und fhc amendccJ ciYil U .S 993 , 101 S.Ct. 529, 66 L .Ed.2d 289 (1980)) (holding efll11plainl to~thc1 r ., cal' lh« l tlw \ 1 nmgful conduct alleged that although ·'the Constitution ... does not ordinaril~· require in both CHS ' S is the >mm:: de endants Helen and Thonrns n stay of eivil proceedings pending the outcome of criminal Andreadakis, through their cornpunies, failed to make proceedings ... a court may decide in its discretion to stay contributions to union pension funds, foiled to pay union civil proceedings"); Volmar Distributo1·s, Inc. v. The New assessments, and concealed the employment of non-union York Post Co., Inc., 152 F.R.D. 36, 39 (S.D .N.Y.1993). 4 employees, all in violation of the collective bargaining ( 11 tTr h arc ,~(Jo dcd ihis dt,;crc ion bec.Hu~c th J cnkiJ of' a stm agreement between defendants and Local 2 und state and c iuhl 1111p<1 u a putt~ · · s Vil'tln \rncm!rnc11l pri1·ikge aµ.1l i11st selt federal la\\. Indeed, plaintiffs concede that the indictment incri11 natinl\ , e'>:tcml crimmal d1sei \<:(I he1 ond tin: limits "obviously played a role in the Pluintiffs' decision to bring this set Ji n Lh m Federal Rule o[ Criminal Procedure 16cb L e. pi se action" since. according to the indictment, "the Funds have to the pi n:;ec ntion in p ch ance o{ trial. th e du ft.·n-;e·~ !he'hn been defrauded out of thousands. if not millions. of dollars rn P DWt 111Sl' prc.1udicc the crimimd case See In re Par I I ' I I *239 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 Fifth Amendment rights or effectively forfeiting the civil in fringe benefit contributions." (Pl.Mem. at 4). Accordingly, this factor weighs in favor of granting a stay. case. This is particularly true where the subject matter of
both cases overlaps to a significant degree and the Criminal Case is expected to be resolved by the end of this year.
2. The Stttt11s of the Criminttl Case In addition, the loss of evidence may not be as serious as (5] (6] The second factor to be considered is the status of plaintiffs believe since the resolution of the Criminal Case the criminal case. A stay of a civil case is most appropriate may reduce the scope of discovery in the civil case and the where a party to the civil case has already been indicted for evidence gathered during the criminal prosecution can later the same conduct for two reasons: first, the likelihood that be used in the civil action. See Brock v. Tolkow, 109 F.R.D. a defendant may make incriminating statements is greatest
116, 120 (E.D .N.Y.1985).
after an indictment has issued, and second, the prejudice to the plaintiffs in the civil case is reduced since the criminal
Judicial efficiency also weighs in favor of granting a stay. case will likely be quickly resolved due to Speedy Trial This is not an instance ·where criminal prosecution is merely Act considerations. See Jn re Par Phannaceutical, Inc., 133 conjecturaL defendants have been indicted and will face trial F.R.D. at 13 (''The weight of authority in this Circuit indicates within six months. Cf Citibank v. Hakim, 1993 WL 481335, that courts will stay a civil proceeding when the criminal •2 (S.D.N. Y.1993) (pre-indictment motion for stay denied: investigation has ripened into an indictment") (citing cases); the "convenience to the court weighs against a stay because Parallel Proceedings, 129 F.R.D. at 203-{)4; Volmar, 152 it is unrealistic to postpone indefinitely the pending action F.R.D. at 39 (citing Dresser, 628 F.2d at 1375-76); Brock, until criminal charges are brought"). Thus, plaintiffs' com~ern 109 F.R.D. at 119. Accordingly, stays will generally not be that this Court will have to "rely upon fortuitous events to granted before an indictment is issued. See, e.g., Citibank manage its dockets" is obviated. 9 In addition, resolution of v, Hakim, 1993 WL 481335 (S.D.N.Y.1993) l"Although the criminal case may increase the possibility of settlement of defendant Hakim allegedly is a target of a continuing the civil case due to the high standard of proof required in a grnnd jury investigation, he does not "1140 claim to have criminal prosecution. See Parallel Proceedings, 129 F.R.D been indicted. Accordingly, Hakim's pre-indictment motion at 204. to stay can be denied on this ground alone"') (citations omitted): Securities and Exchange Commission v. M11sell.a,
Finally. a stay of this case 'l.Vould not cause serious hann to 38 Fed.Rules Serv.2d 426 (S.D.N.Y.1983) (defendant's pre any public interest. Plaintiffs argue that the public interests indictment motion to stay civil case denied). in obtaining "prompt and effective redress from a contractor who allegedly has been a player in an dngoing scheme which
Here, Helen and Thomas Andreadakis, along with the two has affected'" New York city residents and in maintaining Danica entities, have been indicted. In addition, defendants' the ''financial security of employee benefit funds," would counsel has advised that the Criminal Case should be be advanced by the civil case_ (Pl. Mem. at 14l. While completed by the end of this year. which would not the public interests enunciated by plaintiffs' counsel have umeasonably prolong this case. 8 See Twenty Fil·st Century merit, this is not a case where a stay of the case will cause Corp. v. LaBianca, 801 F.Supp. 1007, 1010 (E.D.N.Y.1992) serious or immediate injury to those interests. Because of (motion for stay grnnted where civil case commenced in June the overlapping issues in the criminal and civil cases, the l 992 and related criminal case was set for trial on November criminal prosecution will serve to advance the public interests 30, 1992). Thus, this factor weighs in fovor of granting a stay. at stake here. See Volmar, 152 F.R.D. at 40. In addition, as discussed above, the case should not be delayed longer than approximately six months.
3. The Private am/ P11blic Interests (7] 11xamination ofille ~anous interests at staR:c hem makes
The inconvenience and delay to plaintiffs that will it clear that n s an is \\arranted in this case. First, the unfortrnmtely be caused by a stay • 1141 are outweighed balance of the parties' divergent interests weighs in favor of by the defendants' significant Fifth Amendment concerns, a stay. Plaintiffs have a legitimate interest in the expeditious particularly where a stay will not inordinately prolong resolution of their case and their argument that they could face the civil case and where the criminal prosecution could prejudice from a stay through loss of evidence is well-taken. provide some benefit to the civil case and advance public These interests, however, are trumped by defendants' interests interests. Accordingly, the Andreadakises' motion for a stay in avoiding the quandary of choosing between waiving their • 111 I ' ' II *240 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 is grunted. Plaintiffs may move to vacate the stay, however, Furthenuore, while :'.I partial stay would pennit plaintiffs to if the criminal prosecution does not proceed within the proceed witl1 the civil case, even a partial stay would delay the Limetable presented by defense counsel or if other changes case . To avoid duplication of effort and for judicial economy, in circumstances warrant vacating the stay . .S'ee id.: see also this Court, in its discretion, grants the corporate defendants' Certain Real Property, 751 F .Supp. at 1063; Brock, 109 motion to stay the civil case until the Criminal Case against F .R.D . at 121. the Andreadakises is resolved. Again, however, plaintiffs
may move to vacate the stay if changes in circumstances so warrant. 12
B. Stay fls to the Corporate Defemlants [8] Plaintiffs argue that even if a stay is entered against the individual defendants. the case should not be stayed against
• 11..i2 C. Stay Pemling Bre11ner Ca.~e the corporate defendants because the corporate defendants [9] Defendants move to stay this case pending the resolution do not have a Fifth Amernlment privilege against self of the Brenner case under the doctrine of the '·prior pending incrimination. See Dreier v. United States, 221 U.S. 394, action." (Def. Mem. at 13). That request is denied, in vie\v of 399-400, 31 S.Ct. 550, 550, 55 L.Ed. 784 (1911 ); In re the fact that I have granted a stay pending the Criminal Case Grand Jury Subpoenas Issued to Thirteen Corps., 775 F.2d and also because the Brenner case is on the suspense calendar. 43, 46 (2d Cir.1985). cn·t. denied, 475 U .S. 1081, 106 I note that plaintiffs' counsel has represented that the Local 2 S Ct. 1459, 89 L.Ed.2d 716 ( 1986). Plnintiffs also contend Funds is willing to discontinue the Brenner case. (Pl. Mem. that the corporate defend1mts should not be pennitted to at 4, 24 ). In lhe interest of jutlicial economy, it would make hide behind the individual defendants' Fifth Amendment great sense for plaintiffs to discontinue the Brenner case. privilege . Defendants, on the other hand, contentl tlmt since the Andreadakises control the corporate defendants, the corporations cannot atlequately defend themselves without II. Motion to Dismiss the testimony of the individual defendants. Defendants Defendants move to dismiss Counts IV, VII, and VIII, which further argue that judicial efficiency would be promoted by are plaintiffs' claims for common la\\o fraud, civil RICO. and a stay as to the corporate defendimts since discovery would ERISA fraud, respectively. for failure to state a claim and not have to proceed in a piece-rneul fashion but could proceed failure to plead fraud with particularity. simultaneously against all defendants once the stay is lifted.
A. Standards/or Motio11 to Dismi.fs I do not have to resolve the issue of whether the corporate In analyzing defendants' motion to dismiss under Rules 9(b) defendants would be prejudiced by the individua 1 defendants' and l 2(b )(6) of the Federal Rules of Civil Procedure, I must invocation of their Fifth Amendment rights since I find that it view the m:nended complaint in the light most favorable is more efficient to grant a complete stay as to all defendants to plaintiffs and accept all allegations contained in the rather than only a pmtial stay as to U1e individual ones. complaint as true_ See Scheuer v. Rhodes, 416 U.S. 232, Plaintiffs themselves concede that the Andreadakises are the 236, 94 S.Ct. 1683, 1686, 40 L.Ed .2d 90 (1974); Annis v. central figures in this case, as they are the ''controlling officers Cmmty of Westchester, 36 F.3d 251, 253 (2d Cir.1994) (Rule of the corporate defendants and responsible for the correct l 2(b)(6) motion); Cosrnas v. Hassett, 886 F.2d 8, 11 (2d reporting and payment of fringe benefits contributions and Cir.1989) (Rule 9(b) motion). GiYing plaintiffs the benefit wages." Thus, because of the importance of their testimony, of the inferences in their fovor, the complaint should not be a partial stay could lead to duplicative discovery efforts. dismissed unless it appears beyond a doubt that plaintiffs can Plaintiffs might need to re-issue interrogatories or re-depose prove no set of facts that would entitle them to relief. See certain individuals in light of the testimony· given by the Conley v. Gibson, 355 U.S . 41, 45-46, 78 S.Ct. 99, 101--02, Andreadakises. IO Additionally, since the indictment against 2 L.Ed.2d 80 (1957): Christ Gatzonis Electrical Contractor, the Danica defendants is, as with the individual defendants, Inc. v. New York City School Construction Authority, 23 F.3d based on the same allegations as in the civil case, the evidence 636, 639 (2d Cir.1994). With these standards in mind, I turn garnered in the criminal trial could reduce the scope of to defendants' motion to dismiss, discovery in lhe civil c:'.lse. ll See Volmar, 152 F.R.D. at41 . B. Cou11t~ IV am/ V/Il-Tlle Frflu<l Claims · I *241 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 place (origin and destination) and content of the allegedly [10) Defendants assail plaintiffs for not pleading their fraudulent statements. In addition. plaintiffs' fraud claims common law and ERISA fraud claims with the particularity allege certain facts "peculiarly within the opposing party's required by Rule 9(b) of the Federal Rules of Civil Procedure and move to dismiss the fraud claims. 13 Specifically, knowledge" (namely, the identity of the persons employed
by defendants and the hours worked). \Vhich justifies a defendants maintain that the fraud claims are deficient relaxation of Rule 9's standards. Since greater particularity because they fail to provide such details as which defendant could not reasonably be expected without further discovery, made which misrepresentation, or the date and time of the the complaint should not be dismissed. See Solomon v. Sari/ alleged misrepresentations. Apparel, Ltd., 1993 WL 404177 (SD.N.Y.1993) (motion to dismiss ERISA claim based on delinquent contributions
[ ll] [12] Rule 9(b) provides that "'[i]n all avennents for failing to plead fraud with particularity denied since of fraud or mistake, the circumstances constituting fraud facts concerning the alleged failure to contribute were or mismke shall be stated with particularity.'' The purpose within defendants' knowledge and discovery would provide behind the particularity requirement is to provide defendants additional infonnation about the fraud). Finally, considering with fair notice of plaintiffs' claims, protect defendants from the circumstances of the alleged fraud, plaintiffs' allegations harm lo their reputation and reduce the number of strike give defendants sufficient notice of the claims to prepare a suits. See Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). defense. Id. (citing Ross v. Bolton, 904 F.2d 819, 823 (2d To satisfy Rule 9(b), plaintiffs must specify the statements Cir.1990)); see also Center Cadillac, 808 F.Supp. at 229 they claim were false or misleading and give particulars (where the complaint sufficiently detailed the nature and with respect to the fraudulent statements. including when and mechanics of the fraudulent scheme, plaintiffs not required where the statements \\·ere made and the identity of those to plead the exact time, place and content of each mail responsible for the statements. Id. at l l. communication). Rule 9(b)'s particularity requirement, however, must be read Accordingly. defendants' motion to dismiss Counts IV and in concert with Rule 8 of the Federal Rules of Civil Procedure, VIII is denied. which requires a short, plain stntement of the facts upon which a claim is based. See Ouaknine v. MacFarlane, 897 F.2d 75, 79 (2d Cir.1990) (citing DiVittorio v. Eq11idyne Extractive
C. Count VII-The RICO Claim Industries, Inc., 822 F.2d 1242, 1247 (2d Cir.1987)). In [14] To prevail on their civil RICO claim, plaintiffs must addition, Rule 9's strictures are relaxed where the alleged establish that: I) defendants 2) conducted or participated fraud concerns facts "peculiarly within the opposing party's in the conduct of 3) an enterprise's affairs 4) through a knowledge.'· See DiVittorio, 822 F.2d at 1247. pattern 5) of racketeering activity 6) that caused injury to plaintiffs' business or property See 18 U.S.C. § l 962lc):
In their common-law fraud claim, plaintiffs allege that, in Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 498, monthly reports due on the 20th of each month and submitted 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); McLaughlin to plaintiffs, defendants misrepresented the identitv of the v. Anderson, 962 F.2d 187, 190 (2d Cir. 1992). In their employees working for them and the number of hours each amended complaint, plaintiffs allege that defendants together employee worked. ~ 1143 Plaintiffs further allege that the constituted an "enterprise affecting commerce" and that they Andreadakis defendants were responsible for the accuracy committed a pattern of racketeering activity by causing of the reports, that plaintiffs relied on the misrepresentations fraudulent reports and other items to be sent through the to their detriment, and that plaintiffs could not know the mail in violation of 18 U.S.C. § 1341 and by embezzling identity of the employees or the hours actu::illy worked since or converting funds and assets belonging to plaintiffs in they did not have access to defendants' records. (Cmplt. ~ii! violation of 18 U.S.C. § 664, all in furtherance of the 37-41). With respect to their ERISA fraud claim. plaintiffs enterprise and in violation of 18 U.S.C. § l 962(c). (Cmplt. ,icr incorporate the allegations of their common-law fraud claim 52-53). 14 and also allege that the Andreadakises are controlling officers of the defendant corporations. (Crnplt . ~~ 57-62).
Defendants move to dismiss this claim, arguing that plaintiffs have failed to allege: l) a pattern of racketee1ing activity, 2)
[13] Plaintiffs have thus sufficiently pied their fraud claims an enterprise. 3) mail fraud with particularity, and 4) injury to with particularity: the amended comp la int specifies the date, *242 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 business or property. Because I conclude that plaintiffs have to members of a utility commission to approve unreasonably properly *1144 pied a RICO claim, defendants' motion is favorable rates for defendants stated a pattern of racketeering denied. activity since the bribes had a common purpose and were
frequent); Koal Industries Corp. v. As/and, S.A., 808 F.Supp. 1143, 1161 (S.D.N. Y.1992) (pattern of racketeering activity
1. Pattern of Racketeeri11g Activity sufficiently stated where defendants allegedly committed [15] [16] [17] To allege adequately a pattern of various acts of fraud over a period of two years that had racketeering, plaintiffs must establish that defendants a common purpose of defrauding plaintiffs of money and committed two or more predicate acts \Vithin ten years, which gaining control of a mine). acts were related and continuous. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 237-243 , 109 S.Ct.
Plaintiffs have also alleged continuit~' by claiming that the 2893 , 2899-2902, 106 L.Ed.2d 195 (1989); Beau.ford v. Andreadakises set up ··'sham" corporations in an effort to Helmsley, 865 F.2d 1386, 1391 (2d Cir.1989), cert. granted defraud plaintiffs. These allegations plead continuity baserl and judgmenl 1•acated, 492 U.S. 914, 109 S.Ct. 3236, on the predicate acts or offenses that are part of an ongoing 106 L.Ed.2d 584, afl'd e11 bane, 893 F.2d 1433 (2d Cir.), entity's regular way of doing business. See H.J. Inc., 492 U.S. cert. denied, 493 U.S. 992, 110 S.Ct 539, 107 L.Ed .2d at 241-43, 109 S.Ct. at 2902 . 537 (1989). The relatedness requirement is the easier of the two to define: predicate acts are related if they share similar purposes, participants. victims, methods, or other 2. Enterpri.~e distinguishing characteristics; in short, they must not be [19] [20) The existence of nn enterprise is an essential isolated or sporadic. H.J. Inc., 492 U.S. at 239-41 , 109 S.Ct. element of a RJCO claim. See 18 U.S.C. § 1961(4). An at 2901. Continuity, however, is a more fluid concept: it can enterprise may either be an ongoing organization or an be either open- or closed-ended in nature, i.e .. continuity can association-in-fact of individuals or entities acting as a group be shown either through a series of related predicate acts for the common purpose of engaging in racketeering activity. extending over a substantial period of time or by past conduct See Procter & Gamble v. Big Apple Indushy B11ildings, which by its nature extends into the future. Id. at 241-43 , 109 Inc., 879 F.2d 10, 15 (2d Cir.1989), cert. denied, 493 U.S. S.Ct. at 2902 . 15 1022, 110 S.Ct. 723, 107 L.Ed2d 743 (1990); *1145
CeT1ter Cadillac v. Bank Leumi Tn.ist Co., 808 F.Supp. 213, 234 (S.D .N .Y.1992). To establish an association-in
[18] Plaintiffs assert that they have established a pattern fact enterprise. plaintiffs must show that the members of the of racketeering activity sufficient to withstand the motion enterprise function ns a continuing unit and that the enterprise to dismiss I agree. Plaintiffs have alleged that defendants. exists separate and apnrt from the racketeering activity in from at least 1988 to the present, mailed monthly reports to which it is allegerlly engaged. Center Cadillac, 808 F.Supp. plaintiffs containing intentional misrepresentations regarding at 235 (citing Procter & Gamble, 879 F.2d at 15). the number of persons employed by defendants and the munber of hours worked by those employees, for the
[21) Plaintiffs allege that all of the defendants together purpose of "reaping financial g[lin at the expense of constituted an "enterprise'" within the meaning of 18 Plaintiffs." (Cmplt. ~ 52). In addition, plaintiffs alleged that U.S.C. §§ I 961(4) and 1962. Defendants maintain that this defendants, again on [l monthly basis from 1988 to the allegation does not plead a RICO enterprise with particularity. present, underreported the amount of monies owed to the Defemlants' argument is rejected since the plearling of employee benefit funds on the reports and retained the money a RICO enterprise need only meet the requirements of themselves instead. (Cmplt. ~l 53). Thus. the predicate acts Rule 8 of the Federal Rules of Civil Procedure: that is. of nrnil fraud and embezzlement/conversion were related: plaintiffs need only provide a clear and concise statement each of them had similar purposes (to defraud plaintiffs of the enterprise. See Center Cadillac, 808 F.Supp. at 235 for defendants' own financial gain), participants, victims (nssociation enterprise sufficiently alleged where plaintiffs and methods. The acts were also continuous: they extended claimed individual defendants functioned as a unit with a over a substantinl period of time and most likely would banking entity to perpetrate fraud anrl extortion on plaintiffs); have continued into the future if defendants had not been AZllrite Cmp. Ltd. v. Amster & Co., 730 F.Supp. 571, 577 indicted. See H.J. Inc., 492 U.S. at 249-51, 109 S.Ct. at 2906
(S .D.N. Y.1990).
(allegations Iha t defendants made bribes over a six year period ' I *243 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 Furthermore. the mnended complaint does state the structure securities in question''). Plaintiffs have therefore sufficiently of the enterprise: plaintiffs allege that the corporate pied mail fraud with particularit)'. defendants were employers of persons perfom1ing \vork covered under the collective bargaining agreement and
4. J11jury to B11si11ess or Property controlled by the Andreadakis defendants. who had (25] Defendants' third attack on plaintiffs' RICO claim responsibility for the accurncy and mailing of the reports. concerns plaintiffs' nlleged injury to business or property. 18 (Cmplt. ~~ 7-12, 52-53). Plaintiffs further allege that two of the corporate defendants were sham companies created by the Defendants maintain that, since plaintiffs request an audit other defendants to defraud plaintiffs. (See, e.g .. Cmplt. -ii:
or accounting as to the amount of contributions which were 26, 32). Thus, keeping in mind that an enterprise need not be withheld, plaintiffs' alleged injuries are speculative. pied with particularity, plaintiffs have sufficiently alleged the [26] Defendants are correct in asserting that a RICO plaintiff existence of a RICO enterprise. 16
may not recover for speculative losses or where the amount of damages is unprovable. See First Natiomvide, 27 F.3d at
3. M<til Fraud 768 (citing Bankers Trust Co. v. Rhoades, 859 F.2d 1096, (22] (23) A IUCO claim based on mail fraud must satisf)' 1106 (2d Cir.1988), cert. denied, 490 U .S. 1007, 109 S.CL the particularity requirement of Rule 9(b). McLaughlin v. 1642, 1643, 104 L.Ed.2d 158 (1989)). Specific damages are Anderson, 962 F.2d 187, 191 (2d Cir.1992). In addition, a required because the purpose of a civil RICO award is to RICO mail fraud claim must also identi(v the purpose of the return the plaintiff to the same financial position he would mailing within the fraudulent scheme. Id. have enjoyed absent the illegal conduct. See Bankers Tmst
Co., 859 F .2d at 1106. (24] As discussed above, I have already concluded that plaintiffs have pied fraud with sufficient particularity. Here, notwithstanding the fact that plaintiffs have not Plaintiffs hove also identified the purpose of defendants' specified an exact dollar amount of damages, plaintiffs' nrn ilings: to underreport the number of persons employed and allegations that defendants withheld contributions and other the hours worked by defendants' employees so that defendants pa~·ments sufficiently state a RICO injury. This is not would pay fewer contributions and keep the additional an instance where the RICO injury is mere coqjecture money. \.\·hich was owed to plaintiffs, for themselves. (Cmplt. because plaintiffs may ultimately recover their losses through «;•· 52 and 53 ).
alternate or independent means. 19 Rather, plaintiff~ have alleged a non-speculative loss: they simply cannot ascertain
The fact that plaintiffs do not specify which defendants the precise amount of that loss at this time because made the fraudulent statements in the reports mailed to infomrntion is peculiarly within defendants' knowledge. The plaintiffs is more troubling. Defendants argue that plaintiffs fact that plaintiffs have requested an audit and accounting do not tie any particular defendant to a specific act or does not render their losses speculative. See Gregory v. omission. Keeping in mind, however, that the reason for American Guild of Afusical Artists, 1993 WL 179110 the particularity requirement is to apprise each defendant (S.D .N . Y.1993) (plaintiffs' allegations that they were induced of the facts surrounding the alleged fraud and that the to accept lower pension benefits than they could otherwise complaint is lo be read generously at this stage, [17] I conclude have obtained due to defendants' fraudulent concealment that the particularity requirement has been met given the sufficiently stated a RICO irtjury). In addition, dismissing circumstances of this case. The individual defendants are the the RICO claim at this stage only to have plaintiffs move O\-Yners and controlling officers of the corporate defendants to reinstate the claim after the audit is completed does which, plaintiffs allege, are 111e same entity and have not promote judicial efficiency. Accordingly, the motion to responsibility for the accuracy of the reports. Thus, no dismiss the RICO claim is denied. Of course. defendants may specific connection between defendants and the fraudulent move for summary judgment after the audit is completed if mailings is necessary. See Luce v. Edelstein, 802 F.2d 49, the audit shows that plaintiffs have not suffered any injury. 55 (2d Cir.1986) ("no specific connection between * 1146 fraudulent representations in the Offering Memorandwn and particulnr defendants is necessary where, as here, defendants
CONCLUSION
are insiders or affiliates participating in the offer of the l' I ' *244 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846
SO ORDERED.
Defen<lnnts' motion to stay this case until the resolution of the Criminal Case is granted. The motion to stay until the resolution of the Brenner case is clenied. The motion to
All Citations dismiss is denied. 886 F.Supp. 1134, RICO Bus.Disp.Guide 8846 Footnotes For purposes of deciding defendants' motion to dismiss, I will accept as true the allegations contained in plaintiff's amended complaint. References to "Cmplt." are to the amended complaint Plaintiffs allege that Transworld Plumbing and Danica Mechanical are alter egos of the other corporate defendants and share common ownership, management, facilities, equipment, employees, etc. Plaintiffs also allege that the Andreadakises are the controlling officers of the corporate defendants. (Cmplt.111111-12, 18 and 21 ). Pursuant to a request made by my law clerk, counsel for defendants advised this Court that Judge Fried had issued an opinion in the Criminal Case dismissing 25 counts. The remaining counts, however, contain allegations that are similar to those present in the civil case . Plaintiffs assert that defendants' interests in not being forced to choose between asserting their Fifth Amendment rights or defending the civil action are insufficient to warrant a stay. Plaintiffs argue that it is not unconstitutional to force a litigant to choose between invoking his Fifth Amendment rights and risking adverse consequences in a civil action, or engaging in discovery in the civil case and risking conviction . See. e.g .. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976) ; United States v. Rubinson, 543 F.2d 951, 961 (2d Cir.), cert. denied, 429 U.S. 850 , 97 S.Ct. 139, 50 L.Ed.2d 124 ( 1976). Even if a court may constitutionally deny a request for a stay, however, a stay of a civil action may still be warranted in some instances. See Parallel Civil and Criminal Proceedings , 129 F.R.D. 201 (Pollack, J.) (hereafter, "Parallel Proceedings"). See Volmar Distributors, Inc., 152 F.R .D. at 39; In re Par Pharmaceutical, Inc. , 133F.R.D. at13 ; United States v. Certain Real Properly, 751F .Supp.1060 (E.D.N.Y.1989); Parallel Proceedings, 129 F.R.D. at203. Volmar Distributors, Inc., 152 F.R.D at 39 (citing Arden Way Associates v. Boesky, 660 F.Supp. 1494, 1497
(S.D.N.Y.1987)).
A fifth factor often cited by courts in this Circuit, the interests of persons not party to the civil litigation, is not applicable here and has not been raised by the parties.
In response to an inquiry by my law clerk, plaintiffs' counsel cautioned that the trial might not commence before late 1995 or early 1996. Most of the cases cited by plaintiffs for its assertion that judicial efficiency would not be achieved by a stay are inapplicable since they either concern a pre-indictment motion for stay, a motion for stay after the defendant has pleaded guilty in the criminal case, thereby eliminating any Fifth Amendment concerns, or a civil case involving different issues than those present in the criminal case . See. e.g., United States v. Private Sanitation Industry Assoc., 811 F.Supp . 802 (S.D.N.Y.1992)( pre-indictment motion); Arden Way Assoc. v. Boesky, 660 F.Supp. 1494(S.D.N.Y.1987) (motion for stay after guilty plea entered); FDIC v. Renda, 1987 U.S.Dist.LEXIS 8305 "13(D.Kan .1987) (little overlap of issues between civil and criminal case). Indeed, plaintiffs state in their memorandum of law that "it may well be necessary to eventually depose the indicted defendant officers." (Pl _ Mern . at 21 ). Plaintiffs also assert that "it is not at all clear at this stage how significant [the indicted defendants') depositions will be to the lawsuit." This argument, however, is rejected as the Andreadakises, as controlling officers of the corporate defendants, are principal characters in this case and their testimony will undoubtedly be critical. The fact that the other two defendants, Transworld Mechanical and Transworld Plumbing & Heating, Inc., were not indicted does not weigh against a stay since plaintiffs themselves allege that all four entities are "affiliated business enterprises and alter ego of each other." (Cmplt.1126). See United States v. Certain Real Property, 751 F.Supp . 1060, 1063 (E.D.N.Y.1989) (staying case for both defendants although only one had been indicted).
Defendants maintain that a stay is also warranted because there is an issue as to whether this Court or the National Labor Relations Board has jurisdiction over this case which ca~ only be resolved after substantial discovery has been completed. Plaintiffs counter that a "potential question" as to jurisdiction does not form the basis for a stay. As I have granted the stay pending the resolution of the Criminal Case, I do not need to resolve this issue.
r [1] r f,.· [1] *245 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 13 Defendants also attack plaintiffs' RICO claim , to the extent that it is based on mail fraud, for failure to plead with
particularity This argument will be considered in the RICO section below. 14 Section 1962 provides in relevant part: (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in , or the activities of which affect, interstate or foreign commerce. (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce , to conduct or participate, directly or indirectly, in the conduct of such an enterprise's affairs through a pattern of racketeering activity or the collection of unlawful debt
18 U.S.C. § 1341 prohibits the use of the mails in furtherance of "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." The elements of a mail fraud violation are 1) a scheme to defraud someone of money or property and 2) use of the mails to further the scheme. United States v. Wallach, 935 F.2d 445, 461 (2d Cir.1991 ). 18 U.S.C. § 664 prohibits the embezzlement or conversion of any funds or assets of any employee welfare benefit plan or employee pension benefit plan or any fund connected to either plan.
15 The Supreme Court in HJ. Inc., while recognizing that continuity would be analyzed on a case by case basis, nevertheless strove to give some guidance with respect to the concept of continuity, and stated that "continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes .. . [orJ where it is shown that the predicate acts are a regular way of conducting defendant's ongoing legitimate business (in the sense that it is not a business that exists for criminal purposes), or of conducting or participating in an ongoing and legitimate RICO 'enterprise.'" H.J. Inc., 492 U.S. at 243, 109 S.Ct. at 2902.
16 Defendants' reliance on First Nationwide Bank v. Gett Funding, Corp., 820 F.Supp. 89 (S.D.N.Y.1993), aff'd, 27 F.3d 763 (2d Cir.1994) , is misplaced. The alleged enterprise in First Nationwide was simply the association of a mortgage broker and different borrowers who had engaged in a series of unrelated loan transactions. Not surprisingly, the district court held that plaintiff had not alleged an enterprise since he failed to specify the structure or personnel of the enterprise or how the various defendants came together as a group. Id. at 98.
Here, defendants are not unrelated entities, but are closely affiliated: plaintiffs have alleged that the individual defendants are the controlling officers of the corporate defendants and that the corporate defendants are alter egos of one another. Thus, plaintiffs have sufficiently alleged an enterprise .
17 See Center Cadillac, 808 F.Supp. at 230 (citation omitted). 18 Section 1964(c) of RICO provides that:
Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains ...
Thus, to have standing to bring a civil RICO claim, plaintiffs must show that defendants' violation of section 1962 caused an injury to their business or property. See Sedima SPRL, 473 US. 479, 105 S.Ct. 3275; First Nationwide Bank v. Gett Funding Corp , 27 F.3d 763, 767 (2d Cir.1994) (citing Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990)).
19 Cf Bankers Trust, 859 F .2d at 1105-06; First Nationwide, 27 F.3d at 768--69. The plaintiff in Bankers Trust, alleged that it was fraudulently induced by a bankrupt corporation's officers into accepting only 17.5% of its outstanding claim from the corporation. In dismissing the portion of the RICO claim seeking repayment of a lost debt, the appeals court held that the lost debt damages were too speculative to state a claim since the plaintiffs RICO injuries could be reduced or magnified depending on the outcome of the bankruptcy proceedings
In First Nationwide, the plaintiff bank's RICO claim that borrowers fraudulently induced it to make nonrecourse loans was dismissed where the bank had not yet attempted to foreclose on the loans. The appeals court noted that any loss with respect to the loans could not be determined until the bank attempted foreclosure and "only when [the bank's] actual loss becomes clear and definite will the claims be ripe for suit". 27 F.3d at768-69.
End of Do cument © 2015 Thomson Reuters No claim to original U .S Government Works t'.Jc..'.1 ~ I II *246 218 FEDERAL RULES DECISIONS Plaintiffs Response at 4 (emphasis added). for sanctions, available to a prevailing party Contrary to the assertions in McGirr's Sup pursuant to Fed.R.Civ.P. 37, shall be filed by plemental Declaration, Ms. Tharp, Plaintiffs Defendant within 10 days of service of this Vice President for Manufacturing testified, Decision and Order. Plaintiff shall file its at her deposition in December 2002, that response within 10 days after service of such there were such contracts and that Defen motion; Defendant may reply within five dant's conduct did indeed therefore "force" days thereafter. Further oral argument Plaintiff to buy prunes from available market shall be at the court's discretion. sources. Exhibit A to Defendant's Motion at 120-21. Carefully read, Mr. McGirr's two
CONCLUSION
declarations are not entirely inconsistent on Based on the foregoing, Defendant's mo this score. McGirr's latest recitation of how tion (Doc. No. 13) is GRANTED. Plaintiff Plaintiff conducts its sales reveals that the shall serve the requested answer to Inten·og contractual sales agreements, sought by De atory No. 5, and provide copies of all docu fendant, between Plaintiff and its private la ments responsive to Document Request No. bel customers are in the form of sales orders 5 within 20 days of this Decision and Order. by e-mail and faxes received by Plaintiff
SO ORDERED.
from Plaintiffs customers and invoices issued by Plaintiff. Defendant's Document Request No. 5 requests all documents; thus, to the extent copies (including electronic storage) of such e-mails messages, faxes, and invoices are within Plaintiffs control, they should be produced. Fed.R.Civ.P. 34(a). Plaintiff does not state specifically such documents are un available to it, and it would be remarkable
JAVIER H., Hector H., Miguel P., S.R.C., that a large manufacturer would conduct its Juventino C., Juan G., Jonas G., L.P.R., business without a system for documenting B.C.V., and Marcos C., Plaintiffs, its sales to facilitate applicable accounting, v. audit, banking, and collection requirements.
Plaintiffs arguments in opposition to De Maria GARCIA-BOTELLO, Elias Botello, Jose J. Garcia, Rogelio Espinoza, Antho fendant's requests amount to telling Defen dant how to conduct its defense. Defendant ny Piedimonte, Bruce Kirby, David Pied is entitled to learn for itself the basis, if any, mont, Rodney Winkstern, Francis Do for Plaintiffs unfair competition claim and, moy, Stephen Howard, James Kirby, Philip Vigneri, Ron Weiler, Robert Ven for that matter, Plaintiffs other contract detti and Jose I. Garcia, Defendants. claims. Plaintiffs efforts to deflect Defen dant's requests by defining the issues to suit
No. 02-CV-523S (SR). its own purpose of non-production cannot be countenanced. As such, Plaintiffs objections United States District Court, to Defendant's requests based on lack of W.D. New York. relevance, overbreadth and burdensomeness
Sept. 12, 2003. are ovem1led, and Plaintiff shall answer fully Interrogatory No. 5 and provide all docu ments responsive to Document Request No.
Migrant farm workers filed complaint 5. against growers and labor contractors, seek The court notes that Defendant, by letter ing damages and/or injunctive relief under dated August 20, 2003, has requested sanc the Fair Labor Standards Act (FLSA), the tions. However, as no sanctions, including Migrant and Seasonal Agricultural Worker costs, were sought in Defendant's motion, the Protection Act (MSAWPA), the Racketeer court will not entertain such request at this Influenced and Corrupt Organizations Act time. Therefore, any request by Defendant (RICO), and New York statutes. United
*247 JAVIER H. v. GARCIA-BOTELLO Cite as 218 F.R.D. 72 (W.D.N.Y. 2003) States moved to intervene to stay discovery Gretchen L. Wylegala, U.S. Attorney's Of- until conclusion of the presentation of evi- flee, Buffalo, NY, for Movant. dence in related criminal trial against con tractor defendants. The District Court,
ORDER
Schroeder, United States Magistrate Judge, SCHROEDER, United States Magistrate held that the United States would not be Judge. permitted to intervene, but a stay of civil discovery pending presentation of evidence in
INTRODUCTION
criminal case was appropriate. This case was referred to the undersigned Motion denied. by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(l) for all pretrial matters. Dkt. # 29.
1. Action ~69(5) Presently before the Court is the United When determining whether a. stay of States' motion to intervene, pursuant to Fed civil proceedings is appropriate pending a eral Rule of Civil Procedure 24(b)(2), for the related criminal case, federal district courts limited purpose of staying discovery until the generally weigh the following factors: (1) the conclusion of the presentation of evidence in extent to which the issues in the criminal
a related criminal trial, United States v. Ma- case overlap with those in the civH case; (2) 1-ia Garcia at al., 02-CR-110-S. Dkt. # 40. the status of the criminal case, including
Plaintiffs in the above-captioned civil case whether the defendants have been indicted; ("farm-worker plaintiffs") support a stay of (3) the private interest of the plaintiffs in civil discovery. Dkt. # 63. Defendants An proceeding expeditiously with the civil litiga thony Piedimonte, Robert Vendetti, Bruce tion; (4) the private interests of, and the Kirby, David Piedmonte, Rodney Winkstern, burden on, the defendant; (5) the interests of
Francis Domoy, Stephen Howard, James the courts; and (6) the public interest. Fed. Kirby, Philip Vigneri, and Ron Weiler Rules Civ.Proc.Rule 24, 28 U.S.C.A.
("grower defendants") neither oppose nor 2. Action ~69(5) support a stay of discovery. Dkt. # 58. Civ Although the United States would not be il defendants Maria Garcia and Elias Botello, permitted to intervene in civil case for pur and Jose J. Garcia ("contractor defendants"), pose of staying discovery until evidence was also defendants in the pending criminal case, presented in related criminal case against oppose the government's motion. Dkt. # 57; certain of the defendants, because it had no Dkt. # 62. For the reasons stated herein, interest in the civil litigation, interests of the Court denies the United States' motion to justice militated in favor of such a stay, intervene but, nevertheless, orders a stay of considering risk that civil discovery could be all discovery in the above-captioned matter used to circumvent criminal discovery limita · until the close of all evidence in United tions, and that the civil proceeding could States v. Maria Garcia et al., 02-CR-110-S. undermine the defendants' privilege against self-incrimination. Fed.Rules Civ.Proc.Rule
BACKGROUND
24(b)(2), 28 U.S.C.A. On June 12, 2002, a federal grand jury sitting in Buffalo, New York returned an eighteen-count indictment against Maria
Daniel Werner, Fannworker Legal Ser Garcia, Elias Botello, Jose I. Garcia, Jose J. vices of New York, Inc., New Paltz, NY, for Garcia and Rogelio Espinoza. On July 22, Plaintiffs. 2002, plaintiffs filed a complaint in district John J. Lavin, Sean Dennis Hill, Hill & court alleging that these defendants and oth McCready, Buffalo, NY, Monte B. Lake, ers violated plaintiffs' rights under the Fair Christine M. Cooper, Natalie K. Brouwer, Labor Standards Act, the Migrant and Sea McGuiness, Norris & Williams, LLP, Wash sonal Agricultural Workers Protection Act, ington, DC, for Defendants. and various state tort laws.
*248 218 FEDERAL RULES DECISIONS The criminal and civil cases involve nearly (E.D.N.Y.1992); Sidari v. Orleans County, identical questions of fact. The criminal 180 F.R.D. 226, 228 (W.D.N.Y.1997), it may charges and the civil complaint are predicat deny a motion to intervene, or decline to ed on the same alleged conduct. Both cases address the merits of such a motion, and implicate the same contractor-farm-worker nevertheless enter an order staying civil dis relationships during a shared time frame. covery. See, e.g., In 1·e Ahead by a Length, The plaintiffs in the civil case are the alleged 78 B.R. 708, 710 (Bankr.S.D.N.Y.1987) ("Be victims of the conduct charged in the crimi cause we . . . have the power to stay discov nal indictment. The overlapping questions of
ery sua sponte, we decline to address the fact include whether the contractor defen issue of intervention."). dants recruited the farm-worker plaintiffs near the Mexican border, transported them [l] The Constitution does not require a stay of civil proceedings pending the outcome to Albion, New York, demanded payment for transportation, forced them to work for little of criminal proceedings. "Nevertheless, a or no money, and told them they were not court may decide in its discretion to stay civil free to leave. Several of the same witnesses proceedings when the interests of justice and much of the same evidence will be pro seem to require such action." Kashi v. Grat duced to substantiate or refute these allega sos, 790 F.2d 1050, 1057 (2d Cir.1986) (inter nal citations omitted); see also S.E. C. v. tions. Five of the criminal defendants are defendants in the civil action. Moreover, Dresser Indus., 628 F .2d 1368, 1372 (D.C.Cir. three of these defendants have the same 1980). When determining whether a stay of counsel representing them in both the crimi civil proceedings is appropriate, federal dis nal and civil cases. trict courts generally weigh the following
factors: (1) the extent to which the issues in
DISCUSSION
the criminal case overlap with those in the Rule 24(b)(2) of the Federal Rules of Civil civil case; (2) the status of the criminal case, Procedure permits anyone to intervene in an including whether the defendants have been action, upon timely application, "when an ap indicted; (3) the private interest of the plain plicant's claim or defense and the main action tiffs in proceeding expeditiously with the civil have a question of law or fact in common."
litigation; (4) the private interests of, and the Fed.R.Civ.P. 24(b)(2). In exercising its dis burden on, the defendant; (5) the interests of cretion to permit intervention, the Court is the courts; and (6) the public interest. See directed to "consider whether the interven Sida1-i, 180 F.R.D. at 228; Trustees of the tion will unduly delay or prejudice the adju Plumbers and Pipefitte1·s Nat'l Pension dication of the right of the original parties." Fund v. Transworld Mech., 886 F.Supp. Id. As a rule, federal district courts generally 1134, 1139 (S.D.N.Y.1995); LaBianca, 801 permit the United States to intervene for the F.Supp. at 1010. In the instant case, each of narrow purpose of staying discovery pending these factors weighs strongly in favor of the disposition of a related criminal matter. granting a stay. See S.E.C. v. Credit Bancm-p., 297 F.3d 127, 130 (2d Cil'.2002); S.E.C. v. Chestma.n, 861 [2] The risk that civil discovery will be F.2d 49, 50 (2d Cir.1988). A trial court, used to circumvent criminal discovery limita however, is vested with broad discretion to tions becomes much great.er where the same facts are at issue, as in the instant case. See grant or deny permissive intervention, see United States v. New York, 99 F.R.D. 130, S.E.C. v. Chest:rnan, 861 F.2d 49, 50 (2d 134 (N.D.N.Y.1983), particularly when a case Cir.1988) (granting a stay of discovery be involves multiple parties and claims. See cause the same facts underlie the criminal S.E.C. v. Everest Mgmt. Corp., 475 F.2d and civil cases); Brock v. Tolkow, 109 F.R.D. 1236, 1240 (2d Cir.1972). Moreover, because 116, 119 (E.D.N.Y.1985) (reasoning that a a "federal district court has the inherent "stay of discovery is most likely to be grant power, in the exercise of its discretion, to ed where the civil and criminal actions in stay an action," Twenty First Century Corp. volve the same subject matter"). Allowing v. LaBianca, 801 F.Supp. 1007, 1010 civil discovery to proceed would likely afford
*249 JAVIER H. v. GARCIA-BOTELLO Cite as 218 F.R.D. 72 (W.D.N.Y. 2003) defendants access to evidence to which they between asserting his or her right against are not entitled under the criminal discovery self-incrimination, thereby inviting prejudice rules and, thereby, prejudice the proceed in the civil case, or waiving those rights, ings. LaBianca, 801 F.Supp. at 1010. thereby courting liability in the criminal
case. [1] See LaBianca, 801 F.Supp. at 1011; "[T]he strongest case for defening civil Brock, 109 F.R.D. at 120. "Where invocation proceedings until after completion of criminal of the fifth amendment imposes undue sanc proceedings is where a party under indict tions or penalties on a defendant, a court ment for a serious offense is required to may in its discretion stay proceedings, [or) defend a civil action involving the same mat postpone civil discovery." LaBianca, 801 ter." Dresser, 628 F.2d at 1376; see also F.Supp. at 1011 (quoting Ardwn Wuy Assocs. LaBianca, 801 F.Supp. at 1011 ("[C]ourts are v. Boesky, 660. F.Supp. 1494, 1498-1499 more likely to grant [civil discovery] stays (S.D.N.Y.1987)). Moreover, the grower de when an indictment has already been is fendants, who are not defendants in the crim sued"); In re Par Pharrn., Inc. Sec. Litig., inal case, will not be burdened by a stay of @ 133 F.R.D. 12, 13-14 (S.D.N.Y.1990) civil discovery as they will be afforded more ("[C]ourts will stay a civil proceeding when complete discovery at the time they must the criminal investigation has ripened into an defend the civil case. See, e.g., In re Ahead indictment."). If a grand jury indicts a party by a Length, Inc., 78 B.R. at 713. for conduct that is the subject of a civil action, as they have in the instant matter, the A stay of discovery pending resolution of court is obligated to prevent that criminal
the criminal case clearly serves both the defendant from "using parallel civil proceed interests of the Court and those of the pub ings to gain premature access to evidence
lic. By proceeding first with the criminal and information pertinent to the criminal prosecution, the Court makes efficient use of case." S.E.C. v. Doody, 186 F.Supp.2d 379, judicial time and resources by insuring that
381 (S.D.N .Y.2002).
common issues of fact will be resolved and subsequent civil discovery will proceed unob
The private interests of the civil plaintiffs structed by concerns regarding self-incrimi in this case do not outweigh the inherent nation. See, e.g., In re Ahead by a Length, risks in allowing civil discovery to proceed Inc., 78 B.R. at 713. Moreover, the public's while a parallel criminal case is pending. interest in the integrity of the criminal case The civil plaintiffs have waived their interest is entitled to precedence over the civil liti in proceeding expeditiously with this civil gant. See In re Ivan F. Boesky Sec. Litig., action by consenting to the government's mo 128 F.R.D. 47, 49 (S.D.N.Y.1989); Integrated tion to intervene and to stay discovery. In plaintiffs' reply to Garcia-Botello's response Generics v. Bowen, 678 F.Supp. 1004, 1009 (E.D.N.Y.1988). "[A] trial judge should give to the government's motion, plaintiffs explic itly request that the court grant a stay of substantial weight to [the public interest in discovery pending disposition of the criminal law enforcement] in balancing the policy against the right of a civil litigant to a rea matter. Dkt. # 63.
sonably prompt determination of his civil Moreover, defendants' private interests claims or liabilities." LaBianca, 801 F.Supp. weigh in favor of a stay. The civil proceed at 1010 (quoting Campbell v. Eastland, 307 ings, if not deferred, would undermine the F.2d 478, 487 (5th Cir.1962)). defendants' privilege against self-incrimina tion under the Fifth Amendment of the Unit The government concedes that it has no ed States Constitution. Dresser, 628 F.2d at interest in the civil litigation and is therefore 1376. It is likely that, if deposed in the civil unable to assert either a claim or a defense. case, the criminal defendants would invoke Dkt. # 64, p. 2. For this reason, the govern their Fifth Amendment privilege. Dkt. # 57, ment's motion to intervene is denied. How p. 5. If discovery moves forward, each defen ever, the Court finds that the interests of dant will be faced with the difficult choice justice militate in favor of a stay of discovery. 1. Defendants' choices arc rendert!d no less diffi have been characterized by their attomt!y as
cult by thi: fact that ci:rtain indigi:nt ddendants "judgmt:nt proof." Dkt. # 57, p. 5. *250 218 FEDERAL RULES DECISIONS Accordingly, the Court orders a stay of dis ing short and plain statement of claim where covery in this matter until the conclusion of it contained redundant, argumentative, and disjoined assertions that merely stated con evidence in the related criminal case, United States v. Maria Garcia et aL, 02-CR-ll{}-S. clusions, unsupported by facts, necessary to
prevail on securities claim that proprietary
SO ORDERED.
mutual fund bought stocks in order to en hance controlling brokerage firm's invest ment banking business. Fed.Rules Civ.Proc. Rule 8(a)(2), (e)(l), 28 U.S.C.A. 3. Federal Civil Procedure e=>l104
Generally, motions to strike are viewed with disfavor. Fed.Rules Civ.Proc.Rule
12(1), 28 U.S.C.A.
In re MERRILL LYNCH & CO., INC.
RESEARCH REPORTS SECURI
4. Federal Civil Procedure ®=>1125.1, 1127
TIES LITIGATION.
A motion to strike on grounds of imper No. 02 MDL 1484. tinence and immateriality should be denied unless it can be shown that no evidence in
United States District Court, support of the allegation would be admissi S.D. New York. ble. Fed.Rules Civ.Proc.Rule 12(0, 28 Oct. 22, 2003. U.S.C.A. 5. Federal Civil Procedure e;;:>l125.l Shareholders in proprietary mutual fund For purposes of rule permitting motion brought suit against fund, controlling per to strike on ground of immateriality, refer sons, and others, alleging that fund bought ences to preliminary steps in litigations and stocks in order to enhance related invest administrative proceedings that did not re ment banking business in violation of securi sult in an adjudication on the merits or legal ties laws. On defendants' motions to strike or permissible findings of fact are, as a mat and to dismiss, the District Court, Pollack, ter of law, immaterial. Fed.Rules Civ.Proc. Senior District Judge, held that: (1) com Rule 12(f), 28 U.S.C.A. plaint violated rule requiring short and plain statement of claim, and (2) immaterial refer 6. Federal Civil Procedure e=>l126 ences to administrative proceedings or other
References to Securities and Exchange litigation would be stricken from any further Commission (SEC) and National Association amended pleadings. of Securities Dealers (NASD) administrative Motions granted. complaints, as well as to ongoing securities and antitrust litigation, were to be stricken as immaterial from amended complaint in
1. Federal Civil Procedure ®=>1125.1, 1138, securities litigation attacking operation of 1772, 1824 proprietary mutual fund. Fed.Rules Civ. When a complaint is not sh01t and plain, Proc.Rule 12(t), 28 U.S.C.A. or its averments are not concise and direct, the district court has the power, on motion or sua sponte, to dismiss the complaint or to
Wolf Haldenstein Adler Freeman & Herz, strike such parts as are redundant or imma LLP (by Daniel W. Krasner, Jeffrey G. terial. Fed.Rules Civ.Proc.Rule 8(a)(2), Smith, Robert B. Weintraub, and Stefanie A. (e)(l), 28 U.S.C.A. Lindeman), New York City, for Plaintiffs. 2. Federal Civil Procedure ®=>691 Kaplan Fox & Kilsheimer LLP (by Fred eric S. Fox, Laurence D. King, and Donald Complaint encompassing 98 pages and R. Hall), New York City, for Plaintiffs. 367 separate paragraphs violated rule requir- *251 I ! Document: Frierson v. City of Terrell, 2003 U.S. Dist. LEXIS 26443 Acti o ns· Results list 0 Frierson v. City of Terrell, 2003 U.S. Dist. LEXIS 26443 Copy Citation United States District Court for the Northern District of Texas, Dallas Division June 5, 2003, Decided; June 6, 2003, Filed Civil Action No. 3:02-CV-2340-H Reporter 2003 U.S. Dist. LEXIS 26443 I 2003 WL 21355969 JESSICA FRIERSON Plaintiff, v. CllY OF TERRELL, and ALEJANDRO SUAREZ, Defendants. Subsequent History: Motion granted by tr'l!r59!1 v '•IY of Jerrell .lOOl y S D1st Lf;XIS l S l [32] (!'l Ll Tex Auy. l 5. 2003} Prior lilstorv: f.Ula;\•~• • C1!y •A ! 111 ell lupJ tJ 5, !J•:! \ J;)Cl'j I SJ~ trl.O. I~ •" t en
}1)0!) Core Terms discovery, documents, 1mplicate [1] labeled, in camera~ indictment, responsive, criminal proceeding, internal affairs, investigators, terminates, subpoena, criminal case, weighs, protective order, civil discovery_ civil case, privileged, portions, charges, overlap, staying, days, tape, harassment, sentencing, producing, questions, postpone, papers
Case Summary Procedural Posture In a civil rights action brought under [42] Us.cs § [1983] by plaintiff police officer against defendants, a city and another officer, defendants submitted for in camera review items responsive to plaintiff officer's discovery request which allegedly implicated defendant officer's Fjfth Amendmlill.t self-incrimination privilege. Defendant officer sought a stay of further discovery until the completion of criminal proceedings against him. Overview Plaintiff officer claimed that defendant officer harassed her. Defendant officer was indicted on a misdemeanor charge of official oppression for the same alleged harassment. Defendant officer sought a stay of further discovery and a protective order shielding him from having to produce information that he believed would implicate his Fifth Amendment privilege. The city was willing to produce all responsive information, even that which might have implicated defendant officer's privilege. Jn g1anting defendant officer's request for a stay, the court held that several factors weighed in favor of a stay, including the degree to which the civil issues overlapped with the criminal issues and the fact that defendant officer had been indicted for the same conduct that was the subject of the civil case. The court held that, with respect to compelled statements made by defendant officer to the city's internal affairs investigators, if the statements were provided to the prosecution, allowing plaintiff officer to discover them would not have violated defendant officer's Fif\h Amendment privilege because the privilege only guarded against the improper use of the compelled statements. Outcome The court ordered defendants to produce, with exceptions, all documents that had been submitted for in camera review. The court stayed further discovery from defendant officer until he was convicted and sentenced, acquitted, or the charges were dropped in the state criminal proceeding . ., LexisNexis® Headnotes *252 Civil Procedure > ... > ~ ... > Pri vjleged Commu njcatlons • > General Overy jew ... Constitutional Law> ... > Eu r1da m enta! Rja hts ... > • Procedu ral Du e Process ... > Self·In cri m lnc~ tion PriviJege ... Evidence> ~· > e self ·ln rnmmatton Prtvileqc • > ~~ · ~ When the fifth Amendment privilege is invoked In a civil proceeding to avoid discovery, a court must conduct a particularized inquiry, deciding in connection with each specific area that the questioning seeks to explore, whether or not the privilege Is well-founded. Even where <i party has a legitimate claim of privilege with respect to certain questions or lines of Inquiry, that person may not be entitled to invoke his privilege to remain totally silent. Only where the court finds that he could !eg1tlmate!y refuse to answer essentially all relevant questions, because or the threat of incrimination from any relevant questioning is a person totally excused from responding to relevant inquiries. Otherwise, a person Is entitled to invoke the privilege only as to genuinely tlireatening questions. A blanket assertion of the privilege without inquiry by the court is unacceptable. The court may conduct an in camera review of the items at issue to determine 1f the privilege applies. If, after such a review, the court finds that the prlvilege is well·founded, the court may stay or postpone civil discovery or issue a protective order. Sfu:Afcdur- Noqovw by th1$ HNrt11oh• Civil Procedure > Discove ry & Disclosure ... > ~., > 1!11 Protedi1Je Orders .,.. Constitutional Law> ... > Fundamental Rights .,.. > . . Procedural Due Pror:r;ss • > Self-I n crim1r1abo11 Privilege ... Evidence> Privileges ... > 8 se!f-l ncnm inat1on Pnvileae ..- > General Overview .... Evidence> ~ .... > e se!f-loqjm jqa tlon Priy1lege • > Elements• Evidence> ~ ... > e Self- Incr1 m 1na t1on Pnvilege ... > Scope ... HNZ.t. In deciding whether to stay discovery in light of a party's Firth A1pendrn1:nt privilege, a court must balance the interests of the party asserting the privilege against any preiudice resulting to the other parties. To achieve that balance, the court uses a six-factor test: (1) the extent to which the issues in the criminal case overlap with those presented In the civil case; (2) the status of the criminal case, including whether the defendants have been indicted; (3) the private interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused by the delay; (4) the private Interests of and burden on the defendants; (5) the interests of the courts; and (6) the public Interest. She pardize - Narrow by t his Headnot e Civil Protedure > pjscoyery & Disclosu re-. > ~-. > . . Prot ective Ord ers .... Constitutional Law> ,,, > Fundamental Rights .... > . . Procedural Due process ... > Self-lncrjmjnat jon Prlyj!ege..,. Evidence> ~ • > l!?Jl se!f- In cr1m1nat1on Pny1lege,.. > General Oy~rv1 e w .... Evidence > ~-... > 8 Self-Incnrn inat 1on priv j! ege ... > Elements .. Evidence > ~ ... > 8 Seff·l ncn minat1on Pn yilege • > Scope .. Civil Procedure > Di scove1y & Disclosu re ., > ~ -. > • Prote ct ive Orde rs ... Constitutional Law > ... > Fu ndam ent al Right s ..,.. > Ill Proc edural Due Process ... > Self·In crjmma tion Privil ege .... Criminal Law & Procedure > ComrrtnnLen1mt o/ Cnminol tnKe:f!dtngs., > Acc usatory In strum ents .... > General Overview• Criminal Law 8t Procedure> Prelim in ar y Proce edings .. > Speedy Tri al ... > General Overview ... Criminal Law & Procedure > Prellm to ary Proceedjo gs .... > Speedy Trj a! ... > Statut orv Right ...,.. Evidence > ~., > 8 Self- I ncrim1nat1on prjvilcgc ., > General Overview • Evidence> Priv ileges ... > 8 Self-Incrlm1 nat1on Pri vilege .... > !::l~me nts ,.. !1!JL.4A The second factor to be considered In deciding whether to stay discovery in light of a party's Fiftl-1 Arne11drnent privilege Is the status of the criminal case. A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct for two reasons: first, the likelihood that• defendant may make incriminating statements is greetest after an indictment has issued, and second, the prejudice to the plaintiffs in the civil case is reduced since the criminal case will likely be quickly resolved due to Speedy Trial Act consider•tions. Sbepa1.:f!µ: · Natr•Jl'S by l1Jl5 Ht:ad1111te Constitutional Law > ... > Fun !)am c nlal Riaht s ... > 181 Procedu ral Due Proces s ... > Self-ln crin11 n ation PrivilEne .. Evidence> ~ ... > 8 self- locrim1oatmn Pnvll eyc ... :::>- Ge nera l Overview ., Evidence> ~ ..,.. > rn,:servut1op o( Rolfl•tan t Ey1<h'rl g: ... > Exc!us100 & Preservation by Pro:aect1tors ,.. HNS.t. The Fifth Amendment privilege is intended to protect an individual from being compelled to furnish a link in the chain of evidence needed to prosecute him for a crime. In order to sustain the privilege, it need only be evident from the Implications of the question that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Such "injurious disclosure" is protected because it may provide or assist in the collection of evidence admissible in a prosecution for past or present offenses. S/1c@ulqe · N•(!!!W by th1• Headnote Constitutional Law > ... > FytJdarnental Rjghts .. > II Procedural Due Process• > Self-lncrim1nat!oo Privilege ... ~ Any statements made in the course of an internal affairs investigation are prevented from being llsed against police officers in subsequent criminal proceedings. Sheoardize - Narrow hy this Headn ot e *253 Civil Procedure > ... > Dl!;covery .... > Pnv1!eoe d Communications ..,.. > General Over v 11•w .,.. Constitutional Law> ... > r undamen t a! R1yt1ts ,.. > !al Procedural Otl e Procesc; • > Sclf-l11cnrrnnat 1on Pr1vd~CJP. ..,.. Criminal Law & Prncedure > .. , > Self-lncrim inatlor1 Pr1vllegq .,,.. > l nvocfltlOn by Witnesse ~ .... > Warnmqs ..,, Evidei:nc.:e > Pnv1 leges ,.. > e ;'.;elf - I o c::nm1nat1on PrP11leg e ..,.. > Genc:;ral Overview ,,. HN7.!. The protection of the Fil t h Arn endment privilege, when applied to statements by police officers 1n in ternal affairs Files, must Focus on the use of those statements against the officers who gave them. The statements are not privileged From prorlucttan to a subpoenaing authority. But the Firth Amen drn ~nt guards against any improper use of them. The F1flh Amendm en t privilege is implicated by the prosecution's use, not possession, of an officer's statements . . r1 hf.0~1r1ue - Narrow by t h1 ~ ~ Civil Procedure> ... > D1scov~ry • > Pnv1h;>m .. d rmnm y n1ca t1011s • > Ge.neral Overv 1~ ...,.. Constitutional Law > ... > f u n da m ental Righ ts ..,. > 11:!1 Procedural Due Process ..,.. > Self -Incn mu)ation Pnvdeqe .. Criminal Law & Procedure> ... > En try of P l ~as ..., > Gu il t y Plea s ... > Gen er al Ov er v1~ ... HNB~ The act of produc111g documents 1n response to a subpoena may have a compelled testimonial aspect. The act of production itself may implicitly communicate statements of fact. By producing documents in compliance 'Nlth a subpoena, t!1e witness would admJt that the papers e><1sted, were in his µas.session or control, and were a1Jthentic. This "act of production" doctrine clarifies that the act of responding to a compelled request may have a privileged testimonial effect if it could provide a prosecutor with a lead to incriminating evidence, or a link in the chain of evidence needed to prosecute. SherordfO( ·Narrow by thl$ f1(ad r. pte
Counsel: (1] For Jessica Frierson, Plaintiff: Bren da H Collier • , Law Offiu• of Brendi::I H Collier -., Austin, TX. For City of Terrell. Defendant : Ma n g11 y A I. an1er ,,. [1] Jen n1fer L Carter ..-, Mans & Lanier, Dallas, TX. For Alejcmdro Suarez, Defendant: Ronald r Harden .. , Law Offices of Ronald E Hnrden, Terrell, TX. Judges: !BMA CARRILLO RAM I REZ ... , UNITED STATES MAGISTRATE JUDGE . Opinion by: !RM/\ Cl\RRILLO R,AMIRtZ ... Opinion Before the Court are Defendant: Ale1andro Suarez 's lo Camera Subn11ssion Pursuant to Cowt's December 26, 2002 Order. submitted on January 21, 2002, and Cit:v of Terrell 's Documents and Items Submitted for In Camera Inspection, submitted on .January 22, 2003.
I. BACKGROUND
On October 24, 2002, Jessica Frierson (Plaintiff), an officer with the Terrell Police Department, initiated this civil action against the City oflerrell (City) and another officer, Alejandro Suarez (Officer), for alleged harassment under •12 V S.C. § 1983. On or about October 10, 2001, Office1 was indicted m state court on a class A m1Sdemeanor charge of Officral Oppression . r • for the same alleged harassm ent. [2] On December 3, 2002, Officer filed a Motion for Protective Order and to Stav Discovery or Alternative Motion fol' E><tension of Tim e to Serve Ob1ect1ons and Responses to D1scove1y (Officer Mot). In that molion, he requested a stay of all discovery 1n this case under FED R C!V. P. 261cl pending the outcome of the criminal proceedings. (Officer Mot, at 5.) Alternatively, Officer requested that the Court grant him an extension of thirty days to respond or object to Plaintiff's discovery requests, and tl1at the Court issue a protective order shielding Officer from having to produce infmmation that he believed would implicate his Fifth Amendment privilege against self-1ncriminat1on in the state cnmmal proceeding. Id. at 8-9. On the same day, City filed its Motion and Brief to Strike Discovery Requests (City Mot), City primarily requested that the Court strike Plaintiff's discovery requests because th ey were mailed prematurely. (City Mot. at 1-2.) Plaintiff responded to both motions on December 9, 2002, and sought an order compelling City to produr.e all requested items. The Court held a hearing on this matter December 20, 2002. During [3] the hearing, City stated that it was willing to produce all responsive Information, even that which might implicate Officer's privilege. Officer objected to City's production of documents that might implicate his F1rt11 Arnen iJrnenl privilege . Officer admitted, however, that some of the requested documents -- for instance, his regularly maintained personnel Fiie and some internal investigative materials -- were discoverable and did not implicate his Eillh A<ne11 •J1n<;!lt privilege. Based on the motions, the response, and the oral arguments, the Court orally ruled that it would be inappropriate to stay all discovery in this case. Officer and City were ordered to jointly review their respective discovery requests in order for Officer to determine which of City's responsrve information implicated his privileg e, and both defendants were ordered to submit to the Court for in camera review all responsive information that Officer believed would implicate his Fifth Ar11e11dmulj; privilege. The submissions were to describe in detail, with supporting case law, l1ow each item l!Tiplicated Officer's privilege. Id. The Court also ordered City and Officer to produce all responsive non-obiectionable documents [4] to Plaintiff within thirty days. On December 24, 2002, the CO(lrt issued a written Order to that effect. (Ord. at 1-2.) *254 Officer and City timely submitted separate sets of items for in camera review. However, only Orficer provided argument on how the requested Items would implicate his EJf1b. ArnP[J[hnent privilege, Because City did not object to production, it saw no reason to present argument. The defendants' in camera submtsstons and Officer's argument are now before the Court and ripe for detet minat:on.
II. ANALVSJS
HNl'i' When the F 1~ h Am endm en t privtlege ts invoked 1n a civil proceeding to avoid discovery, a court must conduct a "patticularized inqutty, dectding tn connection wtth each specific area that the questtoning seeks to e>plore, whether or not the privilege is well-founded ," S(C y, Qr<! (mi!IJrirl/ frmm f!f [C>Cd·, fil e. 659 f.2d 660. fifiH ( 5t h Cit .c!lil}. "Even where a party has a legitimate clatrn of privilege with respect to certain questions or lines of tnqutry, that person may not be entitled to invoke his privilege to rema.in totally silent. Only where the court finds that he could 'legitimately refuse to answer essentially all relevant questions, [S] 'because of the threat of incrimination from any relevant questioning is a person totally excused from responding to relevant inqutnes. otherwise, a person 1s entitled to invoke the privilege '(o)nly as to genutnely threatening questions,,,,''' !d at 66B -69 (quoting l/nlte<I Stati:s • - /lfr:k:/U)( f:toa:np 536 f 2d 1U42 1049 (S!h CIC 19?&!!, "A blanket assertion of the privilege without inquiry by the court, Is unacceptable." Ut"IW stmc> y. Gom1wm 625 F ld 69J [701] 15th Cir 1980l. The court may conduct an in camera review of the items al issue to determtne if the privilege applies. See id. If, after such a review, the court ltnds that the privilege ts well-founded, t11e court may stay or postpone civil discovery or issue a protective order. See Un1 1~c1 S{d(,s y KQ{(fcl, 3<17 U.S. I 9 25 L. [d. 2d 1 - 90 S. Ct. 763 Cl 9701, quoted in Gqaton v. FDIC ! 38 U S Auo, p L JOB ·HI f.2d ~ 7!! 58!] p.4 (1970) (noting that the " appropriate remedy would be a protective order under Rul e 30 (bl . 2~.:, which would postpone civil discovery until termination of the criminal action.") (footnote added); see ii/so "'""'"'a y. qhtm lN 01111)i:ka$l u> g 51'~· <iM [.2!1 1904 10 8 0 ·!!
!Slh Qr. 1280! [6] (staying civil discovery until termlnatton of the criminal action); accord V!!lm.r1 Dwri(/:; Inc v f/!e IY!!•Y ro1k Post Co. 152 F,R p, 36 J9 (5.R N,y. 19911 (stating choices and st aying discovery entirely); Nowaczvk v. r.t;u,nws I H1 F .B [) 16? 178 · 79 lll,D Ill 1-l'ill (denying motion to stay civil discovery but granting protecttve order to restrict disclosure of items discovered). A. Stay of Discovery
.-'IL .. .; ~r. •:;c jl• t....t:.JO,... • M s ) J'Jt-M ... fliM LL <l ,; : ~~.! • )'l .rrnx f'° ' ·\) I T.- , jlJf< 11-. [1] lt•21 " I S ..
1 .
f ( l '111" l . ... .. ' I.,._ '. "'T J. - ' • • ' ~ 3.
[ 11 ) f, 4 . s. *255 B. Protective Order 1. Documents Produced by City City submitted six categories of materials for in camera review pursuant to Officer's objection that they implicate his Fifth Amendment privilege because the statements were compelled during the internal affairs investigation. a. Appllcablllty of Privilege to Compelled Statements This case 1s unique in that it is a federal civil action against a police officer who is currently under indictment in state court and who has already provided compelled statements to internal affairs investigators. Officer objects to Plaintiff's discovery from City on grounds that his statements to the internal affairs Investigators and City's act of producing those statements would implicate his privilege in the criminal proceeding If discovered. While it is clear that Officer's Fi(th Amendment privilege would be implicated if discovery from him is not stayed, it is not clear that his privilege would be implicated by allowing Plaintiff to discover his statements [14] to the internal affairs investigators, City, or the Terrell Police Department in this civil case. tf!l5.T The f1(th Amendment privilege is intended to protect an individual from being compelled to "furnish a link in the chain of evidence needed to prosecute" him for a crime. He rri n w ' u .. 11,:a Sl·•l••s HI I; S J 7 9 "BCi R7 <:l 'i I Ed I I 18 71 S n B H 0 2 5 I l (emphasis added), In order to "sustain the privilege, it need only be evident from the implications of the question ... that a responsive answer to the question or an explanation of why It cannot be answered might be dangerous because~ ~could result." Id. at 466-87 (emphasis added), Such "injurious disclosure" is protected because it "may proyjde or assjst in the collection of evidence admissible In a prosecution for past or present offenses." •'°Wtrh rt u \ Umh:~tl St.1 (,t'i 52Q 'tJ ;i llf )2 . L? l fd J ,J B8 ? k S. Cf &~ l I Q 68~ I c.p 50';) (1 268 ) (emphasis added). If the internal affairs investigators, City, or the Terrell Police Department have provided Officer's statements to the prosecution, then allowing the Plaintiff to discover them in this case would not unconstitutionally furnish or disclose them to prosecution. Assuming that [15] the prosecution possesses or obtains Officer's statements, its use of those statements is restricted by the Supreme Court's decision In Garritv v New Jersey 385 U.S 493 17 L Ed 2d 562 87 S. Ct 616 (196?l, which "prevents !11!§.'Y any statements made In the course of the internal affairs investigation from being used against [police] officers in subsequent criminal proceedings," l u u: f ¢rpll tff411tt lt1rn PrPP"""lt1tl'f [975] f 2d 148 $ 14 Q 0 j th qr 1991 1. Officer [1] s statement to the internal affairs investigators reflects that it was given unde1 a "Garity [sic] Warning," and that if he refused to answer, he could be subject to termination. (Off. Sub. at Ex. B l.) This warning specifically advised Officer that his statement "cannot be used against [him] in any criminal proceeding." Id. In an analogous situation, the Ninth Circuit held "that HN?'T the protection of the Fjrth Amendment privilege, when applied to statements by police officers in internal affairs files, must focus on the use of those statements against the officers who gave them. TI1e statements are not privileged from production to a subpoenaing authority, But the Fi(th Amqndment guards against any improper use of them. [16] II l11 1s li@QQJvn· .;-upoocwn / f", t J d .Mt; d .S ft( Oth C"l f l"jtlB t;seea/so Gr;r tlh uy5UPP<)=Q·1~D ll tra(\rc .l and !I t m 1me01>smm qrc;r l l\llluqyµo1ui: Pp/jc;;: D.:pc y ({ [5] [10] f. 'd 10% l ltll ClYtn C1• l'il"1 I ("The time for protection will come when, 1f ever, the government attempts to use the information against the defendant at trial. We are not willing to assume that the government will make such use, or if it does, that a court will allow it to do so."). According to these cases, the fifth Amendment privilege is implicated by the prosecution's J.W:, not possession, of Otflcer's statements. Because neither side has had an opportunity to l>rief this issue, the parties shall be allowed ten days from the date on which this Order is filed to provide additional briefing supported by case law. Rather than provide additional briefing, City shall cooperate with Officer in detailing which items have been provided to or are available to the prosecution. After reviewing the briefs, and especially the authorities cited therein, the Court will determine whether production of Officer's compelled statements to the Plaintiff in this civil case implicates [17] his f j~h Amendment privilege. b. Documents Which do not Contain Compelled Statements The threshold issue in determining 1f the privilege is well-founded is whether or not the contents of these items contain Officer's compelled statements. See United States v L!t>" •!\,', ll " , b!I '> [1] l!I 121. Cd. ~!l 5'· ? l !"lol ~ C• l ll ? 1J9,fl4 '. The Court has made a "particularized inquiry" into Officer's objections and determined that not all of City's submissions contain Officer's compelled oral or written statements or compelled statements that were recorded or summarized by an internal affairs investigator. See hr'·i F11!sll'b•11/ Grava Qf Teea; Inc, &59 F 2d al 668. Following 1s a table evidencing the documents submitted by City, and the specific items that contain Officer's compelled statements or statements that may implicate Officer's Fiftt1 Arn~ndmeril privilege:
No, Description of Cltegory Items Containing Officer's Compelled Statements Intemal Affairs Jnve~tigative 5th iiaragraµh l:Jeg1nn1ng "On 7/9/01. , ." File labeled COT0220· of COT0223;COT0226;
COT0229·30; COT0257-0263;COT0267-0268:
COT082
COT0277·0278
Various photographs labeled COT0283 COT074-076; c:omputer disks labeled COT079-080; videotape labeled COT0283
.1 Audio cassettes labeled COT0285·0286 *256 COT0284-0286 Documents to and from EEOC labeled COT08l·COT0114 Suare2' payroll record covering admm1strative leave labeled COT0267 Dictaphone tape l~beled l4 A lcOT0228 ; Audio ca55ette labeled COT0269 ror r::ounter numhers 251-254; 280-288; 320-326; 334-342; 411-412; 459-466
[18] The remainder of the items submitted by City are either documenls or audio cassette tapes containing statements by others, portions of Texas's Local Government Code, Officer's activity log and the police department's daily call log for June 24, 2001, Officer's payroll record, surveillance photographs, documents sent to and received from the Equal Employment Opportunity Commission, an e-mail allegedly from Officer to Plaintiff, [19] or other non-compelled statements, These items do not implicate Officer's privilege because they do not contain Officer's compelled statements. Accordingly, these items shall be produced to Plaintiff within ten days of the date of this order. c. Act of Production Officer also objects that the City's act of responding to Plaintiff's request for production is a privileged "act of production" protected by the Supreme Court's decision in ~ ~ r.l/C> v. Hublicll 5 31111.6 27 . M Z L Cd. ZsJ ] ·!. uto :;;, Ct. ?0)1 fZOOQl . The Hubbell case arose out of the investigation by Independent Counsel Kenneth Starr into President Bill Clinton and Hiiiary Clinton's involvement in what was commonly called the "Whitewater investigation," Hubbell, S:lO U,S at 30-3 1. During the investigation, the government served Webster Hubbell, an attorney essociated with the Clintons, with a broadly-worded subpoena duces tewm seeking production of eleven broad categories of documents. ~· The government did not describe the requested items with any particularity. Id. In his testimony before the grand jury, Mr. Hubbell asserted his .Eltt.b. Ar11e 11 dmeril privilege and refused "to staL·e [20] whether there are documents within my possession, custody, or control responsive to the Subpoena," Id. The government granted immunity "to the extent allowed by law" to gain the responsive documents, but later used those same documents to obtain a second indictment against Mr. Hubbell. Id. On Mr. Hubbell's motion, the district determined that the government had violated its grant of immunity and dismissed the second indictment. Id. The government appealed. The appellate court reversed, deciding that the district court should have addressed "the extent of the Government's independent knowledge of the documents' ex istence and authenticity, and (Mr. Hubbell'sJ possession or control of them." The case was remanded, and the government petitioned the Supreme Court for certiorari. Jn the meantime, on remand, the governm ent entered into a plea agreement with Mr. Hubbell: portions of the agreement were contingent on the outcome of the petition for certiorari. Id. dt 33 -34 . Despite the plea agreem ent, the Supreme Court granted the government's petition to "determine the precise scope of a grant of immunity with respect to tile production of documents 1n response [21] to a subpoena." ~. The Supreme Court explained that HN~ "the act of producing documents in response to a subµoena may have a compelled test1mo11ial aspect. We have held that 'the act of production' itselr may implicitly communicate 'statements of fact.' By 'producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and we1e authentic"' Id This "act of production" doctrine, as 1t is commonly referred to, clarifies that the act of responding to a compelled request may have a privileged testimonial effect if it "could provide a prosecutor with a lead to incriminating evidence,' or a 'link In the chain of evidence needed to prosecute.'" Id. Officer analogizes his case to Hubbell, and argues that City's act of producing ce1tain Items gives the prosecutor a "lead to Incriminating evide11ce' or a 'link In the chain of evidence need to prosecute." (Officer Sub. at 30-31.) Officer claims that tile City's act of producing these items unconstitutionally compels hi:; privileged testimony. In Hubbell, the privileged testimony arose out of the defendant's act of identifying and gathering (22] his documents responsive to a very broad subpoena directed to him. Plaintiff's relevant requests for production are directed to City, and City's response requires no act by Officer that could be construed as his testimony. Thus, the concern in Hubbell - the testimonial effect of a defendant's own actions -- is absent from Officer's case. It is also detel'minat1ve that Oty does not object to its own act of production as privileged . Is .t,l In fact, City has repeatedly stated - at oral argument and in its in camera submission -- that it does not oppose Plamlirf's requests for production on Officer's Filth Amendment grounds. As explained in Hubbell:
It is doubtful that implicitly admitting the existence and possession of the papers 1 ises to the level of testimony within the protection of the Fifth Amendmen t. The papers belong to the accountant, were prepared by him, and are the kind usuallv prepared bv an accountant working on the tax returns of his client. Surely the Government is in no way relying on the 'truthtelling' of the taxpayer to prove the existence of or his access to the documents ... , The existence and location of tl1e papers are a foregone [23] conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he [111] ract has the papers.
liubtie/I 510 U.S . at [44] (emphasis added) (quoting frs/l(:r 1• Uurt.:d :itdtes o)25 US J91 l 91 [48] L. Ed. 2d 19 96 S r 1 1 s 49 11971ill. The items requested from City belong to City, were prepared by City, and are the kind usually prepared man internal affairs investigation or day-to-day operations of the Terrell Police Department. Moreover. the existence and authenticity of the items requested from City rnay be independently con finned by City or the Terl'cll Police Department. Thus, the prosecutor 1s n.ot relying on Officer's "truthtelling" to prove the existence of or Officer's access to these items. Consequently, City's production does not implicate Officer's [24] F1~h Amendment privilege, 2. Production by Officer Officer produced documents and items labeled Exhibits A, Bl-12, and C. At this time, production of these documents will not be ordered because the documents either (1) contain compelled statements or statements which implicate or may implicate Officer's Fifth Amendment privilege; or (2) consist of identical copies of documents already *257 ordered to be produced by City.
111, CONCLUSION
For the foregoing reasons, it is hereby ORDERED th at further discovery from omcer shall be stayed until Officer is convicted and sentenced, acquitted, or the charges are dropped in the stnte criminal proceeding. If he Is sentenced, the stay terminates upon sentencing. If he Is acquitted, the stay terminates upon the return of a not guilty verdict. If the charges are dropped, the stay term inates upon dismissal of the charges. This stay may be appropriately modified for good cause. It is further hereby ORDERED that the Plaintiff and Officer (with the cooperation of City) shall file additional briefing within ten calendar days of the date of this Order regarding whether Officer's statements are available to the prosecution and [2S] the impact of Garrity on statements made to internal affairs investigators that are later disclosed in a civil action. ORDERED that City shall produce to Plaintiff within ten calendar days of the date of this Order all documents which it submitted for in camera review, with the exception of the following items : 5th paragraph beginning "On 7/9/01 • .. ' of COT0223; COT0226 ; COT0229-0230 ; COT0257-0263;COT0267-0268 ; COT0277-0278; COT0283; and
COT0285-0286 .
SO ORDERED on this 5th day of June, 2003. lRMA CARRlllO RAMIREZ ... UNITED STATES MAGISTRAlC JUDGE
Footnotes [1 'f'j officer is the defendant in State of Texas v. Alejandro Suarez, Cause No. 20,718, in the 86th Judicial District Court, Kaufman County, Texas. The relevant portion of the crime with which he is charged states "A public servant acting under color of his office or employment commits an offense if he: • , . (3) intentionally subjects another to sexual harassment ." lFX PEN. CODF ANN § 39 03 (Vernon 1994 ). [2] y ' In 1970, the protection provisions of Rule 3 Dlb) were transferred to~.~ now authorizes the Court to stay civil discovery as justice requires. See FF.D R, cr v P. 26Ccl ; see al.i;o f.ci lt•M/ Oe£n N [1] u 1' 1 l +mumu " JI t·cU::'·'' Rgt,.1Y& yg ,-m • f:f1:rtitl -t-4 3 !J' l 1 l} 1 5 ~ , r _t J . I g. l d SS J '
' ' :;i t J8Ql Cl [1] [1] .j) (" Federal Ru ic Cjy Proc 261c)(7), which replaced former Bl.!..l.!:..l.. in 1970, was Intended ... to 'reflect existing law."'). r- ; 1_3 "'' A copy of the indictme11t was included as Exhibit C to Officer's Motion for Protective Order and to Stay Oiscove1 v or Alternative Motmn for Extension of Time to Serve Objections and Responses to Discovery ~Y [ Pursuant to the Court's Order, dated Aprll 16, 2003, City was ordered to prnvide this Dictaphone tape to Officer in a format by wh ich Officer could identify Its objection able pmtions. In lieu of resubmitting the entire Dictaphone taµe, City was ordered to provide the Court with only the objectionable portions. Qty timely submitted the objectionable portions to the Court on one audio cassette t ape labeled COT 0269. Concurrently, City submitted Officer's objections. Thus, the Court limits its review of the Dictaphone tape to only those portions of it that Officer round objectionable. ~ Because it is unnecessary to this decision, the Court expresses no opinion as to the ability of municipalities such as City to assert Fifth Am endm ent objections based on the act of production doctrine.
ii Jump To•