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 FILED IN IN THE COURT OF APPEALS 12th COURT OF APPEALS FOR THE TWELFTY DISTRICT OF TEXAS TYLER, TEXAS 10/9/2015 2:42:33 PM PAM ESTES Clerk IN RE THOMAS LYTLE AND ELLEN LYTLE, REALTORS, V. THE HONORABLE TERESA DRUM, JUDGE PRESIDING 29TH 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 [email protected] 14911 Quorum Drive, Suite 340 Dallas, Texas 75254 Ph: 469-916-7700 Fax: 469-916-7705 JOHN F. WARREN 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.

RPI 0001 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. § DAYID 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.

PLAINTIFF'S ORIGINAL PETITION ~ TRUE AND CORRECT Page 1 \\Bdnt-fsl \wpprolaw\3191.003\259143.docx (~(~~; COPY OF ORIGINAL ~-· ~·~· FILED IN DALLAS RPI 0002 ~m ~ COUNTY Cl ER K'SOFf'tCE 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

PLAINTIFF'S ORIGINAL PETITION Page 2 \\Bdnt-fsl \wpprolaw\3191.003\259143.docx RPI 0003 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 RPI 0004 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 RPI 0005 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 [email protected] ATTORNEY FOR PLAINTIFF THOMAS LYTLE

&-:,.,~ TRUE AND CORRECT ~{f!X::;~ COPY OF ORIGINAL PLAINTIFF'S ORIGINAL PETITION \\Bdnt-fsl \wpprolaw\3191.003\259143.docx ._;;,/l(~~/ FILED IN DALLAS 1 Page 5 ·rf.if:fjl COUNTY CLERK'S OFFICE RPI 0006 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 710912014 CITATION (SERVICE) 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 _086 18 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 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 abuse of discretion relator must show that Mere pendeney of action in federal fact.a and law permit trial court to make court involving same parties and issues is only one decision). not reason for abating subsequent stat.a 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 v. until prior action is determined or, at least, 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- ment, on ground that breach of contract 8. Declaratory Judgment P381 actions involving same parties and issues Consideration in determining whether were pending in New Jersey state court trial court properly dismissed suit for de-

RPI 0008 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 party had attempted to charge it usurious removed to a federal court in Massachu- 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 10. Declaratory Judgment 4=>45 court and New Jersey state court were 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- lee. jurisdiction or abate the cause of action, in 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 BISSET!', Justice (Retired). Massachusetts federal court had indicated 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

RPI 0009 946 Tex. 794 SOUTH WESTERN REPORTER, 2d SERIES forfeit three quarters of a minion dollars v. Tucker, 615 S.W.2d 881, 885-86 (Tex.Civ. because they charged you interest which App.-Dallas 1981, writ ref'd n.r.e.); you haven't paid is just-I mean, you Byrnes v. University of Ho'U8ton, 507 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- Based on this exchange and the assertion ever, a motion to stay is directed to the by Space Master that the Massachusetts discretion of the court and the granting or court might not be able to enforce the denying of such a motion will only be re- usury statute because it was considered viewed for abuse of discretion. William- punitive, Space Master urged that the Tex- son, 615 S.W.2d at 886 (trial court did not as court retain jurisdiction over the suit for abuse discretion in refusing to stay state declaratory judgment. court proceeding, filed after pending feder- 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 trial court granted Porta-Kamp's motion to abused discretion when it refused to stay 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 In essence, Space Master, in its points of New York; trial court should have, as a error, contends first that the mere penden- matter of comity, stayed the action). 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- ously relied upon Texas Liquor Control v. Howard, 228 S.W.2d 906, 908 (Tex.Civ. Board v. Canyon Creek Land Corp., 456 App.-Amarillo 1950, no writ); see also S.W.2d 891 (Tex. 1970), as authority to dis- Safeco Ins. Co. of Am. v. J.L. Henson, miss the suit. As a practical matter, all Inc., 601 S.W.2d 183, 185 (Tex.Civ.App.- points challenge the authority of the trial Dallas 1980, writ ref'd n.r.e.) (citing Drake court to dismiss a suit for declaratory judg- v. Brander, 8 Tex. 351, 857 (1852)). As a ment, filed while proceedings involving the matter of comity, however, it is the custom same parties and issues are pending in for the court in which the later action is another state court and federal court. instituted t.o stay proceedings therein until 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 pendency of an action in federal court in- practically grown into a general rule which volving the same parties and the same is- strongly urges the duty upon the court in sues is not a reason for abating the subse- which the subsequent action is instituted to quent state court proceeding. Williamson do so. Mills v. Howard, 228 S.W.2d at 908;

RPI 0010 SPACE MASTER INTERN. v. PORTA-KAMP MFG. Tex. 947 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 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- atory judgment is neither legal uor eq- Dist. No. 16, 284 S.W.2d 784, 'T84, 786 (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 S.W.2d at 895; Cobb v. Ha1·rington, 144 been dismissEid where there existed prior Tex. 360, 367, 190 S.W.2d 709, 713 (1945)j condemnation proceeding pending in county see also Black's Law Dictionary 1286 (5th court at law)); see also Hawkins v. Te.'tas Ed. 1979). Oil and Ga$ Corp., 724 S.W.2d 8"/8, 891 (Tex.App.-Waco 1987, writ ref'd n.r.e.) (a [5-71 Section 37.003 of the Texas Civil court should :refuse to entertain a declara- Practice and Remedies Code authorizes tory judgment action if another uction or courts of record, acting within their juris- proceeding Is pending involving the same diction, to grant declaratory relief, where a parties and in which may be adjudicated judgment or decree will terminate the con- the same issues involved in the action for troversy or remove an uncertainty. TEX. declaratory judgment).

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 court to refuse to enter a declaratory judg- Jn so far as plaintiffs are seeking a de- ment or decree if the judgment or decree cJaratory judgment for the purpose of would not terminate the uncertainty or con· overturnin1~ the administrative interpre- troversy giving rise to tb e proceeding. tation of the statute so that no further Crawford v. City of Housto n, 600 S.W.2d proceedings will be instituted against 891, 894 (Tex.Civ.App.-Hou1,ton [1st Dist.) them, we hold that the facts of these 1980, writ ref'd n.r.e.); TEX.CIV.PRAC. & cases do Mt warrant an exercise of juris- REM.CODE ANN.§ 37.008 (Vernon 1986). diction by a civil court.

The Declaratory Judgments Act was never Id. at 896. intended to provide for the piecemeal litiga- tion of lawsuits. Unite~ Serv. :Lil~ Ins. Space Mast.er attempts to distinguish Co. v. Delaney, 396 S.W.2d 855, :8.58 (Tex. Canyon .Creek on the ground that it in· 1965). . . valved the construction of a penal statute 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 As a general rule, an action for declara- be construed in Canyon Creek was penal tory judgment will not be entertained if in nature, the court merely stated that the 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

RPI 0011 948 Tex. 794 SOUTH WESTERN REPORTER, 2d SERIES was at issue, and a privilege, rather than a ing a suit for declarat.ory judgment, where personal or property right was at stake in there existed a prior proceeding in federal the pending administrative proceeding. court involving the same parties and issues: S.W.2d at 895. The court noted that Although separate suits including the the considerations that lead courts of equi- same parties and issues may be main· ty to deny injunctive relief apply with equal tained in state and federal courts simul- force to an action for a declaratory judg· taneously, the applicable declaratory ment construing a penal statute. Canyon judgment law supports the judicial dis- Creek, 456 S.W.2d at 896. One of those cretion of the trial court to refuse to considerations is that a court of equity will entertain jurisdiction of this declaratory not interfere with the attempted enforce- action. ment of a criminal statute unless the stat- See also Kenny v. Starnes, 265 S.W.2d ute is unconstitutional and its enforcement 639, 640 (Tex.Civ.App.-El Paso 1954, writ will result in irreparable injury to vested ref'd n.r.e.). 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 sues involved in the declaratory judgment). a forum-shopping device. Based on consid- The rule announced in Canyon Creek ap- erations of comity, the unique nature of plies whether the proceeding is administra- declaratory judgments, and the authorities tive or legal. See Hawkins, 724 S.W.2d at above-cited, we conclude that the trial court 891. did not abuse its discretion in dismissing Space Master's suit for declaratory judg- [8] Another consideration in determin- ment. 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- diction over a declaratory judgment filed Peter Durwin WILL, Appellant, 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, but encouraged the trial court to decline to No. 01-89-00393-CR. 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 the courthouse and filing suit seeking a Aug. 23, 1990. declaration of non-liability." Id. at 565, Discretionary Review Refused 567. Oct. 24, 1990.

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

RPI 0012 U.S. SOS BAXTER v. PALMIGIANO 1551 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- 425 U.S. 308, 47 L.Ed.2d 810 versed.

Joseph BAXTER et al., Petitioners, Mr. Justice Brennan filed opinion con- 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 v. Without certification of action as class 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.

Argued Dec. 15, 1975. 2. Constitutional Law ~42.2(1, 2) Decided April 20, 1976. Although one of named plaintiffs in 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 prison disciplinary proceedings violated other had died, where parties stipulated to 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- 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,

RPI 0013 1552 96 SUPREME COURT REPORTER 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- joined, statute requiring convening of three 9. Constitutional Law ca=266.l(l) judge court did not appear to be applicable Aside from privilege against compelled and thus Supreme Court was not deprived self-incrimination, in proper circumstances of jurisdiction on ground that case involved silence in face of accusation is relevant fact issues that should have been heard by not barred from evidence by the due proc- three-judge court subject to review on di- ess clause. U.S.C.A.Const. Amends. 5, 14. rect appeal. 28 U.S.C.A. § 2281.

10. Prisons cS:::o 13 4. Prisons *==> 13 Permitting adverse inference to be Prison inmates do not have right to drawn from prison inmate's silence at disci- either retained or appointed counsel in dis- plinary proceeding is not, on its face, invalid ciplinary hearings. practice.

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- entitled to counsel at disciplinary hearing nary proceedings, except where prison offi- 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 do not have right to either retained or law, effectively preempted area that had appointed counsel in disciplinary hearings. been left to sound discretion of prison offi- cials.

6. Prisons cS:o:> 13 Prison disciplinary hearings are not 12. Prisons '8:::> 13 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;

RPI 0014 425 U.S. 309 BAXTER v. PALMIGIANO 1553 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 disciplinary action. state prison inmate in No. 74-1187, upon 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 Where there was no evidence that segregation" for 30 days. He then filed an named state prison inmates, who alleged action for damages and injunctive relief, that procedures used in prison disciplinary claiming that the disciplinary hearing vio- proceed ings violated their rights to due lated the Due Process Clause of the Four· 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- rather were charged with "serious miscon- versed, holding that an inmate at a prison duct," Court of Appeals acted prematurely lisciplinary proceeding must be advised of to extent it required procedures such as his right to remain silent , that he must not notice and opportunity to respond even be questioned further once he exercise t hat when inmate is faced with temporary sus- right, that such silence may not be used pension of privileges. U.S.C.A.Const. against him at thal t ime r in fut ure pro- Amend. 14. ceedings, and t hnt where cri minal charges ~ re a realistic possibili ty prison authorities ...uu Syllabus• should consider whether defense counsel, if Respondent state prison inmates in No. requested, should be perm itted at the pro- 74-1194 filed an action for declaratory and ceeding. Held: The proced ures required by injunctive relief alleging that procedures t he respective Courts of Appeals are either used in prison disciplinary proceedings vio· inconsistent with the " reasonable accommo- lated their rights to due process and equal dation" reached in Wolff v. McDonnell, 418 protection of the laws under the Fourteenth U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, Amendment. The District Court granted between institutional needs and objectives relief, and the Court of Appeals affirmed, and the constitut ional provisions of general holding t hat minimum notice and a right to application, 0 1· are premat ure on the basis respond ure d ue an inmate faced even with of the case records. Pp. 1556-1561. a temporary suspension of privileges, that (a) Prison inmates do not "have a right an inmate at a disciplinary hearing who is to either retained or appointed counsel in denied the privilege of confronting and disciplinary hearings." Wolff, supra, at crossooexamining witnesses must receive 570, 94 S.Ct. at 2981, 41 L.Ed.2d at 959. P. written reasons or the denial will be 1556. 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

RPI 0015 1554 96 SUPREME COURT REPORTER 425 U.S. 309 disciplinary proceedings is not, on its face, ~tephen J. Fortunato, Jr., Pawtucket, R. .J!io 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 court of law, effectively pre-empts the area 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). 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 prison officials in No. 74-1194. Pp. 1559- A. No. 74-1194 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." No. 74-1187, 510 F.2d 534; No. 74-- Procunier, 328 F.Supp. 767 (N.D.Cal. 1971).

1194, 510 F.2d 613, reversed. The Court of Appeals for the Ninth Circuit, 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 l. Respondents John Wesley Clutchette and spondents conceded that the case is moot as to 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-

RPI 0016 425 U.S. 314 BAXTER v. PALMIGIANO 1555 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 fronting and cross-examining witnesses r!m)ained silent during the hearing. The .J!.U 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 and-reaffirming its initial view-that an status be downgraded thereafter. 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- case for oral argument with No. 74-1187. tion.2 The Di.§t.rict Court held an evidentia- .J!.14 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· Adult Corrections Authority and hence should Lion against the enforcement of any identified 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

RPI 0017 1556 96 SUPREME COURT REPORTER 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 should consider whether defense counsel, Neither Miranda, supra, nor Mathis, su- if requested, should not be let into the pra, has any substantial bearing on the disciplinary proceeding, not because question whether counsel must. be provided Wolff requires it in that proceeding, but at "(p]rison disciplinary hearings [which] because Miranda [v. Arizona, 384 U.S. are not part of a crimin al prosecution."

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] Wolff v. McDonnell, supra, 418 U.S., at 556, requires it in light of future criminal 94 S.Ct., at 2979, 41 L.Ed.2d, at 956. The prosecution." Id., at 537. Court has never held, and we decline to do 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 -1?.ts give the proceedings_a more adversary to advise Palmigiano to the contrary, i. e., 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.

RPI 0018 425 U.S. 318 BAXTER v. PALMIGIANO 1557 ClleuMS.Ct.1551 (1878) that he was entitled to counsel at the hear- statements in criminal prosecutions; and, ing and that the State would furnish coon- upon refusal to waive, automaticall!.l_termi- J!" sel if he did not have one of his own. nated employment or eligibility to contract with the State. Holding that the State ..l!.11 ....llll 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 ment, for bids drawing adverse inferences relevant to his case. Griffin v. California, 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.

Amendment privilege not to respond or to ltU!his respect, this case is very different .J!.11 object to later use of the incriminating from the circumstances before the Court in

RPI 0019 1558 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 defend- 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 the hearing in the face or evidence that [9] It is important to note here that the incriminated him; and, as far as this record position adopted by the C.ourt of Appeals is reveals, his silence was given no more evi- rooted in the Fifth Amendment and the dentiary value than was warranted by the policies which it serves. It has little to do facts surrounding his case. This does not with a fair trial and derogates rather than smack of an invalid attempt by the State to improves the chances for accurate decisions. compel testimony without granting immu- Thus, aside from the privilege against com- nity or to penalize the exercise of the privi- pelled self-incrimination, the Court has con- lege. The advice given inmates by the deci- sistently recogni:zed that in proper circum- sionmakers is merely a realistic reflection of stances silence in the face of accusation is a the evidentiary significance of the choice to relevant fact not barred from evidence by remain silent. the Due Process Clause. Adamson v. Cali- 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 950-954 (1957). Indeed, as Mr. Justice 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, offered against them: the Amendment supra, the Court recognized that "[f)ailure "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 which reads as follows: the impeaching statement. A failure to assert

RPI 0020 425 U.S. 322 BAXTER v. PALMIGIANO 1559 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 and there is no basis in the record for reason for refosing to call a witness, wheth- invalidating it as here applied to Palmigi- er it be for irrele\lance, luck o! necessity, or ano.~ the hazards presented in individual cruies."

Id., ut 566, 94 S.Ct., at 2980, 41 L.Ed.2d, at IV 956.

In Wolff v. McDonnell, we held that "the We were careful to distinguish between inmate facing disciplinary proceedings this limited right to call witnesses and other 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 Constitution that are of general applica- prisons." Id., at 569, 94 S.Ct., at 2981, 41 tion." Id., at 556, 94 S.Ct., at 2975, 41 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 as a general principle of evidence ( 1071 ill· 4. The record in No. 74-1187 shows that Palmi- fro). There may be ex1>lnnations, indicating glano was provided with copies or the Inmate that the person had in truth no belief of that Disciplinary Report and the superior's invest!· tenor; but the conduct is 'prima facie' an In· gallon report. containing the charges and pri- consistency. mary evidence aga.l nsl him, on lhe day before "There are several common classes of cases: the dlscipllnary hearing. Al the hearing, Cnp· "(I) Omissions in legal proceedings to assert lain Baxter read the charge to Palmiglnno and what would naturally have been asserted under summarized the two reports. In the face of the 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

RPI 0021 1560 96 SUPREME COURT REPORTER 425 U.S. 322 Although acknowledging the strictures of v 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.• 5. The Court of Appeals also held, in its initial asmuch as they may provide valuable lnfonna· 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- minatlons based solely upon the evidence ing, however, we in no way dimi nish our hold· presented at the hearing" In order "[f]or the ing in Wolff that " there must be 11 'written right to confront and cross-examine adverse statement by the factfi ndcrs a to the evidence 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 right to confront and cross-examine adverse L.Ed.2d, at 955. 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

RPI 0022 425 u.s. 328 BAXTER v. PALMIGIANO 1561 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- with the "reasonable accommodation" ting an adverse inference to be drawn from 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- Mr. Justice BRENNAN, with whom Mr. tions of an in<lj~idual to elicit incriminating .J!n 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 (1975), is inapposlte. We held that case moot propriety of the certification need not be ad- because the named plaintiffs no longer had a dressed, since there ls a plaintiff with a person- personal stake \n the outcome, and the action a! Interest in the outcome. Youaklm v. Miller, had not been formally certified as a class ac- 425 U.S. 231, at 236-237 n. 2, 96 S.Ct. 1399, at tion. Id., at 129, 95 S.Ct., at 849, 43 L.Ed.2d, at 1402, 47 L.Ed.2d 701, at 706-707.

77. We did not, however, hold that without

RPI 0023 1562 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 Comm'n, 378 U.S. 52, 57 n. 6, 84 S.Ct. pass evidence which may lead to criminal 1594, 1598, 12 L.Ed.2d 678, 683 (1964). conviction, but includes information which would furnish a link in the chain of evi- Indeed, only weeks ago we said that "the privilege protects against the use of com- dence that could lead to prosecution. . pelled statements as well as guarantees the Hoffman v. United States, 341 U.S. 479, right to remain silent absent immunity." 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 Garner v. United States, 424 U.S. 648, at (1951)." Maness v. Meyers, supra, at 461, 653, 96 S.Ct. 1178, at 1182, 47 L.Ed.2d 870, 95 S.Ct., at 592, 42 L.Ed.2d, at 585. And it at 376 (1976) (emphasis supplied). Malloy v. is not necessary that a person be guilty of Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d criminal misconduct to invoke the privilege; (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 U.S. 511, 514, 87 S.Ct. 625, 17 L.Ed.2d 574 v. Board of Education, 350 U.S. 551, 557- (1967). As The Chief Justice noted last 558, 76 S.Ct. 637, 641, 100 L.Ed. 692, 699 Term; "This Court has always broadly con- (1956). See E. Griswold, The Fifth Amend- strued [the Fifth Amendment] protection to ment Today 10-22 (1955); Ratner, Conse- assure that an individual is not compelled to quences of Exercising the Privilege Against produce evidence which later may be used Self-Incrimination, 24 U.Chi.L.Rev. 472 against him as an accused in a criminal (1957). 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 least against the use of his compelled an- evidentiar~se of his statements in a crim- ..J!.U swers and evidence derived therefrom in inal proceeding lurked in the background, any subsequent criminal case in which he is but the significant element for this case is a defendant. Kastigar v. United States, that the Fifth Amendment also prohibits 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 the government from compelling an individ- (1972)." Lefkowitz v. Turley, 414 U.S. 70, ual to disclose information that might tend 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 282 to connect him with a crime. Maness v. (1973). See Maness v. Meyers, supra, 419 Meyers, supra, pointed up this distinction in U.S., at 473, 95 S.Ct., at 597, 42 L.Ed.2d, at its recognition that availability of motions (White, J., concurring in result). to suppress compelled testimonial evidence

RPI 0024 425 U.S. 330 BAXTER v. PALMIGIANO 1563 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- position of the choice betweim self-incrimi- Gardner v. Broderick, 892 U.S. 273, 88 nation and job forfeiture denied the consti- S.Ct. 1913, 20 L.Ed.2d 1082 (1968), involved tutionally required "free cholce to admit, to a policeman called to testify before a grand deny, or to refuse to answer." Lisenba v. jury investigating police corruption. He California, 314 U.S. 219, 241, 62 S.Ct. 280, was warned of his constitutional right to 292, 86 L.Ed. 166, 182 (1947). Subsequent refuse to give any incriminating informa- criminal convictions were therefore set tion, but was also asked to waive immunity, aside on the ground that the unconstitution- and told that if he refused to do so, a state 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- In Spevack v. Klein, supra, 385 U.S. 511, charged. Gardner invalidated the state 87 S.Ct. 625, 17 L.Ed.2d 574, decided the statute on the ground that the Fifth same day as Garrity, an attorney refused to Amendment does not permit the govern- honor a subpoena r.alling for production of ment to use its power to discharge employ- certain financial records; the sole basis for ees to coerce disclosure of incriminating the refusal was the privilege against self-in- evidence. Id., at 279, 88 S.Ct., at 1916, 20 crimination. He was disbarred for exercis- L.Ed.2d, at 1087. Sanitation Men v. Sanita- ...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

RPI 0025 1564 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 ment. Id., at 82, 94 S.Ct., at 324, 38 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 ling individuals to forgo the privilege. The govern111ent contracts or discharge from a .J!.32 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 4. "[11he State Intended to accomplish what bars conviction of a disciplinary violation based Garrity has specifically prohibited-to compel solely on an inmate's silence. In No. 74-1187, testimony that had nol been Immunized." 414 petitioners concede that an inmate's silence, U.S. at 82, 94 S.Cl. at 325, 38 L.Ed.2d at 284. without more, would not be substantial evi- dence.

5. Although Morris imposes a substantial-evi- dence standard for appellate review of findings

RPI 0026 425 U.S. 334 BAXTER v. PALMIGIANO 1565 Cite u 96 S.Ct. 1581 (1978) cials to make costly the exercise of the its " 'inducement of any sort.' " Bram v. privilege, something Garrity-Lefkowitz con- United States, 168 U.S. 582, 548, 18 S.Ct. demned as prohibited by the Fifth Amend- 183, 189, 42 L.Ed. 668, 575 (1897). "We 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 It is inconsequential that the State is free the Garrity-Lefkowitz group of decisions, to determine the probative weight to be those precedents compel the conclusion that attached to silence. Garrity-Lefkowitz did this constituted impermissible compulsion. not consider probative value, and other precedents deny the State power to attach III 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 vious as the compulsion upon the individu- testify in response to probative evidence als in Garrity-Lefkowitz. He was told that offered against them." Ante, at 1568. criminal charges might be brought against That rule may prevail, but it did not have him. He was also told that anything he the approval of this Court until today. said in the disciplinary hearing could be Some commentators have suggested that used against him in a criminal proceeding.7 permitting an adverse inference in some Thus, the possibility of self-incrimination civil cases violates the Fifth Amendment. was just as real and the threat of a penalty Comment, Penalizing the Civil Litigant just as coercive. Moreover, the Fifth Who Invokes the Privilege Against Self-In- 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 6. As the Court notes, the only evidence, other gation, with a possible downgrade in his classi- 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).

RPI 0027 1566 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 individual with the knowledge that the an- fore to permit an adverse inference to be swers might tend to incriminate him. See drawn from exercise of the privilege does Garner v. United States, 424 U.S. at 653, 96 not implicate the policy considerations un- S.Ct. at 1181, 47 L.Ed.2d at 376; Sanitation derlying the privilege. But where the Men v. Sanitation Comm'r, 392 U.S., at 284, government "deliberately seeks" the an- S.Ct., at 1919, 20 L.Ed.2d, at 1092. swers to incriminatory questions, allowing 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- tem by abusing its powers. Garner v. Unit- of the government to the commands of the ed States, supra, 424 U.S. at 653, 96 S.Ct. at Fifth Amendment. Cf. United States v. 1182, 47 L.Ed.2d at 376. Only a few weeks Karathanos, 531 F.2d 26, 35 (CA2 1976) ago, we SP.id "That system is undermined (Oakes, J., concurring); Amsterdam, Per- when a government deliberately seeks to spectives on the Fourth Amendment, 58 avoid the burdens of independent investiga- Minn.L.Rev. 349 (1974). 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 immunity can remove the self-incrimination [judge's] order and under threat of contempt." problem, Piccirillo v. New York, 400 U.S. 548, Maness v. Meyers, 419 U.S., at 474, 95 S.Ct., at 562, 91 S.Ct. 520, 527, 27 L.Ed.2d 596, 605 599, 42 L.Ed.2d, at 592 (concurring In result). (1971) (Brennan, J., dissenting), that view is See Fowler v. Vincent, 366 F.Supp. 1224, 1228 not presently the law. See, e. g., Lefkowitz v. (S.D.N.Y. 1973); Sands v. Wainwright, 357 Turley, 414 U.S. 70, 84, 94 S.Ct. 316, 325, 38 F.Supp. 1062, 1093 (M.D.Fla. 1973). Although L.Ed.2d 274, 285 (1973); Kastigar v. United an inmate would not be testifying in response States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d to a court order, his answers in response to (1972). questions of prison officials are nevertheless 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

RPI 0028 425 U.S. 338 BAXTER v. PALMIGIANO 1567 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. But Palmigiano's predica- the privilege on..J!he advice of counsel . .J.!u 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 it will incriminate him, at least without al that supra, 419 u.s .. at 473, 95 S.Ct., at 598, 42 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,

RPI 0029 1568 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, 16 505, 42 L.Ed.2d 301 (1974). 9 L.Ed.2d 694 (1966). The court said, People To accord silence probative force in these v. Disbrow, 16 Cal.3d 101, 113-115, 127 Cal. cases overlooks the horn book teaching "that Rptr. 360, 368, 545 P.2d 272, 280 (1976): one of the basic functions of the privilege is "We declare that Harris is not to protect innocent men." Grunewald v. persuasive authority in any state prosecu- United States, supra, 353 U.S. at 421, 77 tion in California. We pause S.Ct. at 982, 1 L.Ed.2d at 952 (emphasis in . . . to reaffirm the independent nature original). If this Court's insensitivity to the of the California Constitution and our re- .J!.n Fiftti.lJ.mendment violation present in this sponsibility to separately define and protect case portends still more erosion of the privi- the rights of California citizens despite con- lege, state courts and legislatures will re- flicting decisions of the United States Su- member that they remain free to afford preme Court interpreting the federal Con- protections of our basic liberties as a matter stitution." 10 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 L.Ed.2d 313, 334· (1975) (Brennan, J., dis- from the cases in the Garrity-Lefkowitz 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 lege against compulsory self-incrimination gate." Wolff v. McDonnell, 418 U.S., at in Harris v. New York, 401 U.S. 222, 91 581, 94 S.Ct. 2963, at 2987, 41 L.Ed.2d 935, S.Ct. 643, 28 L.Ed.2d 1 (1971), the California at 965 (Marshall, J., dissenting); see Jack- 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. Hogan, 378 U.S. l, 84 S.Ct. 1489, 12 L.Ed.2d ited by a state court as a matter of public (1964), that the Fifth Amendment protec- policy in that State. See In re Pillo, 11 N.J. 8, tion against self-incrimination was not applica- 93 A.2d 176 (1952); State v. Miller, 67 N.J. 229, ble to the States. Finally, whether Raffel v. 245 n. I, 337 A.2d 36, 45 n. 1 (1975) (Clifford, United States, 271 U.S. 494, 46 S.Ct. 566, 70 J., concurring in part and dissenting in part).

RPI 0030 425 U.S. 391 FISHER v. UNITED STATES 1569 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 UNITED STATES et al. Fifth Circuit in No. 7~11 reversed; judg- 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 C. D. KASMIR and Jerry A. Candy. judgment and filed an opinion.

Nos. 74-18, 74-611. Mr. Justice Marshall concurred in the judgment and filed an opinion.

Argued Nov. 3, 1975.

Decided April 21, 1976.

1. Witnessesct=> 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- duction of accountants' documents in pos- thing and would not compel him to be a

RPI 0031 890 v.s. 377 BDDIOKS y, UNITED S'l'ATBS 967 Clte aa 88 B.Ct.1187 (11188) should L <Jrbnlnal Law 41=889 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- .... 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 UNITED STATES. to jury the method's potential for error.

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- armed robbery of federally insured sav- ment; instead, each case must be con- 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- certiorari was granted. The Supreme tial likelihood of irreparable misidentifi- Court, Mr. Justice Harlan, held that tes- cation. 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 remanded in parl viction, where serious felony had been 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

RPI 0032 968 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) ing that after witness has testified for Where defendant moved to suppress government in federal criminal prosecu- as evidence, on ground of illegal search tion the government ·must, on request of and seizure, a suitcase containing in- defense, produce any statement of wit- criminating evidence and, to establish ness in possession of United States which his standing to so move, he admitted relates to subject matter as to which ownership of suitcase, it waa reversible witness has testified means a written error to use this testimony against de- statement made by the witness and fendant on issue of his guilt. U.S.C.A. 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 for other jucJiclnl con11tructione nnd In order to effectuate Fourth tloflnition11. Amendment's guarantee of freedom from unreasonable searches and seizures, de- 6. Criminal Law e=:>62'U(2) fendants in federal prosecutions have the The Jencks Act requires photo- right, upon motion and proof, to have graphs to be produced if they constitute excluded from trial evidence secured by a part of a written statement. 18 U.S. means of unlawful search and seizure.

C.A. § 8500. U.S.C.A.Const. Amend. 4.

'1. Crbnlnal Law <P827.6(2) 11. Criminal Lsw €=>89U(l) Photographs were not part of state- The rule excluding evidence secured ments which were approved by witnesses by means of unlawful search and seizure and therefore were not producible under is essential part of both Fourth and Jencks Act where the statements were Fourteenth Amendments. U .S.C.A. made on the day of the robbery and at Const. Amends. 4, 14. 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- duced prior to trial under discovery and ernment is precluded from denying that inspection rule, and when production of defendant has requisite possessory inter- pictures was sought at trial the defense est to challenge admission of evidence as 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.

RPI 0033 390 U.S. 881 SDDIONS v. UNITED STATES 969 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 llS. Criminal Law ~408(4) then parked.1 The agents had no war- 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 ful search an'd seizure should not be ad- in the basement they found two suit- 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 379 from the bank which had been robbed.

Raymond J. Smith for petitioners. The following morning the FBI ob- Sol. Gen. Erwin N. Griswold, for re- tained from another of Andrews' sisters spondent. some snapshots of Andrews and of pe- Mr. Justice HARLAN delivered the titioner Simmons, who was said by the opinion of the Court. sister to have been with Andrews the 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 The evidence at trial showed that at 381 of peti- about 1 :45 p. m. tioner Garrett as depicting the other rob- on February 27, 1964, ber, the other two witnesses stating that two men entered a Chicago savings and they did not have a clear view of the sec- loan association. One of them pointed a ond robber. 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.

RPI 0034 970 88 SuPR.EIO OOUB.T BEPOB'J.'BB. 890 v.s. 881 that he was the owner of clothing found I. inside the suitcase. The District Court denied the motion to suppress. Garrett's The facts as to the identification claim testimony at the "suppression" bearing are these. As has been noted previousJy, was admitted against him at trial. FBI agents on the day following the rob- bery obtained from Andrews' sister a During the trial, aH five bank em- number of snapshots of Andrews and ployee witnesses identified Simmons as Simmons. There seem to have been at one of the robbers. Three of them iden- least six of these pictures, consisting tified Garrett as the second robber, the mostly of group photographs of Andrews, other two testifying that they did not get Simmons, and others. Later the same a good look at the second robber. The day, these were shown to the five bank District Court denied the petitioners' re- employees who had witnessed the robbery quest under 18 U.S.C. § 8500 (the so- at their place of work, the photographs called Jencks Act) for production of the being exhibited to each employee sepa- photographs which had been shown to rately. Each of the five employees iden- the witnesses before trial. tified Simmons from the photographs.

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- mons and Garrett, but reversed the con- duce any of the photographs, but relied 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 We granted certiorari as to Simmons Jooke to last Term's "lineup" decisions-- 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 of our supervisory power that an 3U 383 over the lower accused is entitled to counsel at federal courts. Second, both petitioners any "critical stage of the prosecution," contend that the District Court erred in and that a post-indictment lineup is such refusing defense requests for production a "critical stage." See SSS U.S., at 286- under 18 U.S.C. § 3500 of the pictures of 237, 87 S.Ct., at 1987-1938. Simmons, the petitioners which were shown to eye- however, does not contend that he was witnesses prior to trial. Third, Garrett entitled to counsel at the time the pic- urges that his constitutional rights were tures were shown to the witnesses.

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,

RPI 0035 390 v.s. 885 SIM140NS v. UNITED STATES 971 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- untenabl~. poses to the jury the method's potential 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.

RPI 0036 972 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 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 respects fallen at the photographs "under 3500." The short of the ideate We hold that in the District Judge denied these requests. 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-

RPI 0037 890 U.S. 889 SIMMONS v. tJNI'l'ED STATES 973 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 were part of the statements which were Although the pictures might have been approved by the witnesses and, therefore, of some assistance to the defense, and producible under § 8500. It appears that although it doubtless would have been all such statements were made on the day preferable for the Government to have of the robbery. At that time, the FBI labeled the pictures shown to each wit- and police had no pictures of the peti- ness and kept them available for trial,s tioners. The first pictures were not ac- we hold that in the circumstances the quired and shown to the witnesses until refusal of the District Court to order the morning of the following day. their production did not amount to an Hence, they could not possibly have been abuse of discretion, at least as to peti- a part of the statements made and ap- tioner Simmons.& The defense surely proved by the witnesses the day of the knew that photographs had played a role robbery. in the identification process. Yet there 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 were not referred to by the Government needed, but simply argued that produc- in its ease-in~hief. They were first ask- tion was required under § 3500. More- ed for by the defense after the direct over, the strength of the eyewitness 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 for the Government noted that there III. 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- those which were shown to particuJ.ar ernment to use against Garrett on the 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 be produced under the blll, but thnt "[i]f those witnesses hod less opportunity to the pictures I1nve anything to do with the 1ee him during the robbery tbon they did etntemont of the wltneaa • • • of Simmons. The record ta opaque na to c:mrse thnt would be port of it • • •." tho number nnd type of pbotogrnphe of Cong.Rec. 16489. Garrett which were shown to these wit· uesses, and QB to the clrcometancos of 8. See P. Wnll, Eye-Witness ldentlficntion the ahowlnga. However, it ie unnecea· in Orlmtnnl Ooee11 84 (196G) ; Willlnms, 1dr7 to decide whether Garrett w111 prej- Identificntion Parnde11 [19M] Crim.L. udiced by the District Court's faUure to Rev.~~. ~30. order production of the pictures at trial, elnce we ore reversing Garrett's convic- tion on other grounds.

RPI 0038 974 88 SUPREME COURT REPORTER 390 U.S. 889 issue of guilt the testimony given by searched premises.11 In part to avoid 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- from Mrs. Mahon's basement and its quirements in two alternative ways in 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- 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- [12-15] However, we have also held en by a defendant to meet such require- that rights assured by the Fourth ments should not be admissible against Amendment are personal rights, and that him at trial on the question of guilt or they may be enforced by exclusion of innocence. We agree. 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 required to show that he was the owner Garrett evidently or possessor of was not in Mrs. Mahon's house at the 390 time his suitcase was seized from her 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.

RPI 0039 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 for possessory crimes, for then the tes- It seems obvious that a defendant who timony required for standing itself knows that his testimony may be admis- proves an element of the offense. We sible against him at trial will sometimes eliminated that Robson's choice in Jones be deterred from presenting the testi- v. United States, supra, by relaxing the monial proof of standing necessary to 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 owner of the premises from wh!ch the Stntes, 10 Cir., 239 F.2d 93: Monroe v. suitcase woe taken, dieclnimed oil know!· United Stntee, 5 Cir., 320 F.211 277; 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 F .211 247, rcv'd on othe r grounds , 12 F . were no identifying morks on the outside 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 the chance thot tbe allegotiona made on Cir., 1')7 F.2d 627: Monroe v. United the motion to suppreBfl mny be use<l Stntee, 5 Cir., 320 F.2d 277. 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. holding • • •." 362 U.S., ot 262, 80 Acconl, Fowl er v. Unit ed Stnte11, 10 Cir., S.Ot., ot 781. 239 F .21! 03 (<llctum) ; cf. F nbrl v. Unit- 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.

RPI 0040 976 88 SUPREME OOUltT REPORTER 890 v.s. 398 the testimony is known to be admissible regardless of the outcome of the motion to suppress. But even in jurisdictions the sense that if he ... refrains from testi- where the admissibility of the testimony fying he will have to fore10 a benefit, depends upon the outcome of the motion, and testimony is not always involuntary there will be a deterrent effect in those as a matter of law simply because it is marginal cases in which it cannot be es- given to obtain a benefit.II However, timated with confidence whether the rr.o- the assumption which underlies this rea- tion will succeed. Since search-and-seiz- sonin1 is that the defendant has a ure claims depend heavily upon their in- choice: he may refuse to testify and dividual facts, 110 and since the law of give up the benefit." When this as- search and seizure is in a state of flux,21 sumption is applied to a situation in the incidence of such marginal cases can- which the "benefit" to be gained is that not be said to be negligible. In such afforded by another provision of the circumstances, a defendant with a sub- Bill of Rights, an undeniable tension is stantial claim for the exclusion of evi- created. Thus, in this case Garrett was dence may conclude that the admission of obliged either to give up what he be- the evidence, together with the Govern- lieved, with advice of counsel, to be a ment's proof linking it to him, is pref- valid Fourth Amendment claim or, in erable to risking the admission of hie legal effect, to waive his Fifth Amend- own testimony connecting himself with ment privilege . against self-incrimina- the seized evidence. tion. In these circumstances, we find it 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- from asserting a Fourth Amendment ob- port of a motion to suppress evidence on jection-it imposes a condition of a kind Fourth Amendment grounds, his testi- to which this Court has always been mony may not thereafter be admitted peculiarly sensitive. For a defendant against him at trial on the issue of guilt 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 inate him. Those courts which have al- so far as it relates to petitioner Sim- lowed the admission of testimony given mons. We reverse the judgment with re- to establish standing have reasoned that spect to petitioner Garrett, and as to there is no violation of the Fifth Amend- him remand the case to the Court of ment's Self-Incrimination Clause because Appeals for further proceedings consis- the testimony was voluntary.21 As an tent with this opinion. abstract matter, this may well be true. It is so ordered.

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, 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· tJory v. Hayden, 887 U.S. 294, 87 S.Ct. 23. For eHmple, testimony civen for his 1642, 18 L.Ed.2<l 782 w:lth Gouled v. own benefit by a plaintiff in a civil suit Unlte<l States, 2155 U.S. 298, 41 S.Ct. is admissible agnlnst him in a subsequent 261, 6IS L.E<J. 647; compare Camara v. criminal prosecution. See 4 Wlgmore, Municipal Court of City and County of Evidence § 1066 (3d ed. 1940) ; 8 id., I Son Francisco, 387 U.S. 523, 87 S.Ct. 2276 (HcNa111hton rev. 1961).

1727, 18 L.Ed.2d 93:>, with Fronk v. State 24. Ibid.

RPI 0041 890 U.S. 396 SIMMONS v. UNITED STATES 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- I concur in affirmance of the convic- cording to 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- 1. Simmons' chief claim is that his lous.* For these reasons I vote to affirm 'pretrial identification [was] so unnec- Simmons' conviction. essarily suggestive and conducive to ir- 2. I agree with the Court, in part for reparable mistaken identification, that he reasons it assigns, that the District Court was denied due process of law." The did not commit error in declining to per- Court rejects this contention. I agree mit the photographs used to be turned with the Court but for quite different over to the defense for purposes of cross- reasons. The Court's opinion rests on a examination. 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- mary reading of the evidence as outlined ernment to use against him testimony he 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 not a question for the Court but for the in the suppression hearing that he was 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 robbed and all saw the robbers. The due evidence against [Garrett]." Ante, at process contention revolves around the 975. In fact, one might go further and circumstances under which these wit- say that this testimony, along with the 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- be found in the "totality of circum- fendant from winning an acquittal on stances" of the picture identification. the false premiEe that he is not the owner 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, rniee no each contention, the Court de- to find n "supervisory power" In this 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

RPI 0042 978 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 that his testimony may be admissible Mfg. Co. v. against him at trial will sometimes United States, 871 U.S. 841, 367, 83 S.Ct. 397 448, 463, 9 L.Ed.2d 857 (1968) (dissent- 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- For the Court, though not for me, the ilege against self-incrimination has al- question seems to be whether the disad- ways been considered a privilege that can vantages associated with deterring a de- be waived, and the validity of the waiver fendant from testifying on a motion to is, of course, not undermined by the in- suppress are significant enough to off- evitable fact that by testifying, a defend- set the advantages of permitting the Gov- ant can obtain the "benefit" of a chance ernment to use such testimony when rele- to help his own case by the testimony he vant and probative to help convict the gives. When Garrett took the stand at defendant of a crime. The Court itself the suppression hearing, he validly sur- concedes, however, that the deterrent ef- rendered his privilege with respect to the fect on which it relies comes into play, at statements he actually made at that time, most, only in "marginal cases" in which and since these statements were therefore the defendant cannot estimate whether not "compelled," they could be used the motion to suppress will succeed. against him for any subsequent purpose.

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

RPI 0043 'U.S. 405 BIGGERS v. STATE or TENNESSEE 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- tially for the reasons given by Mr. Jus- Thomas E. Fox, Nashville, Tenn., for tice BLACK in hie separate opinion. respondent.

PER CURIAM.

The judgment below is affirmed by an equally divided Court.

890 v.s. 40I Mr. Justice MARSHALL took no part Archie Nathaniel BIGGEBS, Petitioner, in the consideration or decision of this v. case.

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- Rehearing Denied April 22, 1968. tenced to 20 years, first to a juvenile See 390 U.S. 1037, 88 S.Ct. 1401. facility and later to prison. The Su- 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 Tennessee Supreme Court, 219 Tenn. On the night of January 22, 1965, Mrs. 553, 411 S.W.2d 696, affirmed the con- Beamer was at home sewing, when an viction, and certiorari was granted. The intruder with a butcher knife in his hand United States Supreme Court affirmed grabbed her from the rear. Her screams the conviction by an equally divided brought her 13-year-old daughter, who, court. arriving at the scene, also started to Judgment affirmed. scream. The intruder said to Mrs. 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 Criminal I.aw ¢=S9S(l) took Mrs. Beamer out of the house to a Rape conviction of defendant, who, spot two blocks away and raped her. while at police headquarters, was re- During the next seven months the quested in presence of complaining wit- police showed Mrs. Beamer numerous ness to repeat words which he allegedly police photographs one of which, she I. As respects the practice of Justices L.Ed. 1328; In re lssermnn, 845 U.S. 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

RPI 0044 518 Ta. 860 SOUTH WESTERN :&BPOB'I'ER. 84 sums ----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. Western Union Telegraph Co. v. Tweed, St. arts. 5973, 5971.

Tex.Civ.App., 138 S.W. 1155, 1157, af- firmed, 107 Tex. 247, 166 S.W. 696; In- 2. Ceuntlee C=87 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 Ctaarlea H. MEYER, Relator, doubt. Vernon's Ann.Civ.SL arts. 5970, 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- Supreme Oourt ot Tes:aa. volved in action under statute respecting re- 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- ver, J., held that the State was entitled removal of county officials is not to punish 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.

Mandamus denied.

Vernon's Ann.Civ.St. art. 5976 et seq.

8. Olllcera ¢::177_ I.

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 :from . office allegations of petition mu.st be in ·similar political affairs. · · · · ·

RPI 0045 KEYE& Y. TUlrKS Tu. 519· Cite u 880 8.W.24 618 7. Dl1cov1ry e=4S . CUlVER, Justice.

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 answer on ground of scl!~incrimin at ion .. ~sc overruled the motion filed. in behalf of 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.u t. 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 not against propounding of question but to require the l)jstrict Judge to revoke his protection against being compelled to an- ordc~r o~crruling that motion. swer if he claims that privifcge. v cmon's Ann.St.Const. art~ 1, §' 10; U.S.C.A.Const. The grounds alleged in· the petition for Amend. s·; •Vernon's Ann.C.C.P. art. 710. the removal of this officer are: (1) that he accc!pted the sum of $200.00 on two separate 9. App11.I and Error ·~961 occasions from the same person with the 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 as sa:nc subject matter 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.

10. Discovery c:;.33 At all times pertinent herein Meyer has been 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- · 186~. : d,er Arf:. ·3, Vernon's Ann.Code of Criminal Procedure, and Art. 1, § 10 of the State .

Gilbert T. Adams, Beaumont, for.relatQr, Constitution, Vernon's Ann.St. in that it i1 ~tamount to reQ.uiring ·him .~o .t ake the . a stand and testify in criminal action against, W.c. Lindsey, bist. Atty., W .. G. Wa·ll~y, hi1n ·since this removal action charges him , Jr., .Beaumont,. wu.1Wilson, At~. G~: .. ~d ~itti . the . wiJiful commiu.io11 o~ penal of- No~n V. Suarez, Asst., Austin, for re- fenses; . Furth.er Ile reprtsents that the at- apondents. ,. "· tempt .to. take hia. deposition is in bad faith

RPI 0046 520 Tex. 860 BOVTH WBSTD.N :&BPOBTBB, .Bd BUIES ~

and for the purpose of . obtaining evidence ture has thus in effect denominated the ac- to be used in the criminal cases now pend- tion as a civil proceeding. It is one triable ing against him. in a civil court. An appeal lies_to the .Court_ of Civil Appeals. The prosecution has the [1] He relies heavily on State .ex rel. T. right to appeal from an adverse judgment.

Alcorn, 78 Tex. 387, 14 S.W. 663, 665, which The degree of proof necessary for a finding terms the removal statute as penal in char- of a verdict of guilty or judgment of re- acter "and must be construed as though it moval is by the preponderance of the. evi- were one defining a crime and prescr_ibing dence rather than "beyond a reasonable. ita punishment." We quoted that statement doubt". No question of former jeopardy. with approval in State ex rel. Edwards v. is involved. The officer may be prosecuted Reyna, 160 Tex. 404, 333 S.W.2d 832, 835. criminally on the same charges either. before Aside from any implications that might or after the removal proceedings, 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 misconduct or for becoming intoxicated. public in r~moving from office by, specd.r' Art. 5970: The State Constitution stipulates and adequate means those who have been that: "The Legislature shall provide by law faithless and corrupt and have violated th.cir for ·the trial and removal from office of all t,rust. The law imposes no other penalty. officers of this State, the modes for whlch It baa been said that an officer has & prop- have not been provided in this Constitution." erty right in the office but that applies mere-· Art. 15; § 7. County officials fall into this ty to the privilege of asserting his right to category. Accordingly the Legislature hu gain and hold the office in an election con- ~nactcd the rules governing the trial and re- test and in similar political affairs~ The moval of those officials.I The action may be o~ce belpnga to the ,people and is gjven to brought by an individual citizen and must him temporarily in trust. Even so an .action be conducted in the name of "The State of to deprive hiln of this or any other property Texas", upon the relation of that person. right would be essentia~ly a civil action.

The verified petition is to be filed in the dis- · In McDaniel v. State, (1928) Tex.Civ. trict ·c ourt 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- nected therewith [removal actions] shall be . ·tutes no bar to the subsequent indict- conducted as far as it is possible in accord- ment and prosecution of the defendant ance with the ·r ules and practice of the for any criminal offense he may have court in other civil cases." The Legisla- committed in·" the · iJiiii~conduct with •. • . j i.\ ;1 • • ·~\'.

I. See Art.. CS976 et HQ., Vernon'• Ann.Civ.StatL

RPI 0047 • I• ' .: . Tu. ··521 with; a criminal offense to a jury trial i1 . basic .inau 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 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 [7} In &O far as the terminology a(>plied holding that iuch actions are civil. Stale'· · to th.is character of proceeding is c:oncem.ed, v. JJorst.ad (19l4) 27 N.D. 533, 147 N.Vf.. ·-the courts of other jurisdictions· are not in 380, held that th~ triat tC>u'rt did not err irr- 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 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 dicate. California in Thttrston v. Clark, 107 by jury in a civil action. Also in that $tate 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 of ·such a criminal nature that the defendant [8] The gist of Art. 1, § 10 of the State ofticer was to be shielded from becoming an Constitution is the same as that of the enforCcd witneS's against himself by reason . Fifth Amendment to the United States Con- of oonstitUtiona1 provisions ~th national 1titt1tion, nimely. that the · defendant ·-in a and state. On the other hand in Cline v. criminal case shall not be compelled to 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 tile denial of • . jucy trial to th~ officer and refuse to answer if he claims that privilege. 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 fn 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

RPI 0048 522 Ta. 860 soum WESTBB.N ·. . UPOBTE:&, id SEBIES Rules of Civil Procedure we ace no reason rights guaranteed by the Fifth Amend- to make an exception or to say that a11 the 1nent. ruJcs wiJJ control except that the dcfendant cannot be called as a witness. We there- In National "Discount Corporation "'· fore hold that Art. 3 of the Vernon's Ann. HoJzbaugh, D.C., l"3 F.R.D. 236, the court Code of Criminal Procedure doee not appJy held that where the fabric of the fraud sued upon in the civil proceeding is identical in this case nor does I 10, Art. 1 of the · State Constitution exempt this officer from with the fraud embraced in the pending · being examined as an adverse witness, criminal proceedinr, to require the defend~ ' though he may cl&im the protection afford- ant to 1ubmit to oral cnmination in the ed to him by this constitu~onal provi- ch·il case would be oppressive and consti· 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. ·T he 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 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'a rt 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- prise Animal Oil Co., Inc. (D.C., 1953) [9] Actua11y the only authoritative con- 14 F.R.D. 333, a conspiracy prosecution struction. we think, given .,Ythe Federal · under the Sherman Anti· Trust Act was courts to Rule 30(b) is that the trial judge ' pending against persons who were named is vested with judicial discretion in a~ting defendants in a civil actfon under such Act, upon a t11otion to stay-- the taking of the based upon the same alleged conspiracy. deposition of a party and before. hia ruling The court stayed the taking of the deposi- may he set aside there must bC ahoym a t tions of those persons in the civil action on clear abuse of discretion. Whether we are . the i'f'Ound that the same would contravene bound by this construction or not is imma-

RPI 0049 , ·KEYD. '· TUNKS Tu. 523 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 for mandamus to reverse his ruling on an interlocutory matter, we cannot pro- perly substitute our judgment for hi1 as to the determination of what consti- . applied by the Federal Distnct Courts would have no application to the remaining chal'lfes.-.:,,_, . ,. , ; ; Our Ruic 186b u well as the Federal Rul-e 30(b) gives to the trial court broad . l

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- requiring Landy to respond to the adminis- tion that he must not be examined upon any trative subpoena of the Internal R~vepue . of t.hc matters or charges specified in the.,, Service was affirmed. We quote the hold- removal action. !.:.J ing in that case which we thlnk is quite .Wc 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'. subpoena on the general allegation that against him. ·. 4") ,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 .which the 9ubpoenacd witness could of the indictment chargi.n g the defendant constitutionally refuse to answer.· The with. false statements in his report of elec- tion contn'butions and expenses. This. ex~ privilege of the Fifth Amendment must be exercised in connection with precise hib:it relates only t~ some alleged statement questions and not at a general excuse made by Meyer concerning the judge and for refusing to appear in response to the members of the grand jury. It forms subpoena. Rogers v. United States, no ground for removal. The triat judge 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 , the judicial discretion of the trial judge, . [10] We hold that the Trial Judge did it cannot be said with any degree of cer- , not abuse bis discretion. Mandamus ia tainty that, if the trial judge had not grant-. denied.

RPI 0050 GEBHARDT~GALLARDO Tex. 327 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.

No. 04-94-00690-CV. 4. Witnesses ®=>305(1), 307 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- Jan. 9, 1995. cific inquiry or it is waived; blan.i<et asser- tions of the privilege are not )ermitted.

U.S.C.A. Const.Amend. 5; Vernon's Republican candidate brought negli- Ann.Texas Const. Art. 1, § 10. gence and civil conspiracy claims against 5. Abatement and Revival e=S(2) Democratic party officials and members con- cerning filing of Democratic candidate's nom- Action €:=>60 inating petition. The 150tb District Court, Assertion of privilege against self-in- Bexar County, Juan Gallardo, J., severed and crimination alone did not present :egal basis abated negligence claim pending possibility for severance and abatement of negligence of or pursuance of criminal changes against claim against defendant while criminal inves- any of the defendants, and plaintiff sought tigation of defendant arising out of same reviEiw by mandamus. The Court of Appeals, facts was pending, even though, if defendant Blair Reeves, C.J. (Retfred), held that: (1) asserted privilege at trial, plaintiff might re- defendants' assertion of privilege against quest instruction on res ipsa loquitur; abate- self-incrimination alone did not present legal ment would be akin to impermissible blanket basis for severance and abatement of negli- assertion of the privilege. U.S.C.A. Const. gence claim; (2) negligence claim was im- Amend. 5; Vernon's Ann.Texas Const. Art. l, properly severed from civil conspiracy claim §' 10. 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.

Writ of mandamus conditionally granted. 7. Witnesses e=>309 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

RPI 0051 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- Claim is properly severable only if con- fendants' testimony through oral deposition troversy involves more than one cause of on negligence issues while abatement order action, severed claim is one that would be was in effect, so that evidence might become proper subject of lawsuit if independently unavailable. asserted, and severed claim is not so inter- woven with remaining action that they in- 16. Abatement and Revival e=>8(2) 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 9. Action e=>60 officials and members concerning Democratic Trial court is afforded broad discretion candidate's filing of nominating petition, in matter of severance. Vernon's Ann.Texas pending possibility of or pursuance of crimi- Rules Civ.Proc., Rule 41. nal changes against any of the defendants, 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- date against Democratic party officials and Revision of statute concerning authority members concerning filing of Democratic of courts of appeal to issue writs of manda- 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 advanced by Democratic party officials in 18. Mandamus e=>3(3) 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.

Abatement is generally incidental ruling V.T.C.A., Government Code § 22.221. not susceptible to mandamus relief.

13. Pretrial Procedure e=>534 Trial courts generally have discretion in John E. Clark, Goode, Casseb & Jones, abatement decisions. San Antonio, for appellant.

14. Mandamus e=>4(4) Steven P. Price, Enrique G. Serna Mar- Appeal is not appropriate remedy, for tinez, The Law Offices of Steven P. Price, purposes of determining whether mandamus Randall C. Jackson, Jr., Speiser, Krause, Ma- should issue, where ability to present viable dole & Mendelsohn, Dwight P. Mosher, Rob- claim was vitiated by pretrial order. ert A. Valdez, San Antonio, for appellee.

RPI 0052 GEBHARDTv.GALLARDO 'lex. 329 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 Relator, the Hon. Shay Gebhardt, the Re- which relator has no adequate r·~medy on publican candidate for judge of County appeal. Writ of mandamus is conditionally Court-at-Law No. 3 of Bexar County, sued granted for the reasons set forth below. 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 (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- 3. 1be order, dated October 4, 1994, states in ance, the severed cause number S4-C l- 14910 pc ~ t incn t part: s hall be, and It i hereby, AllATEO ponding lhe Aft er considering the evidence . 1he argumcnlS of inal d i posi tioo of any ..:rimlnai churgcs 1h111 cou nsel, nd !he post·hc11rlng briefs filed by the m11y be brought n3r.i ns1 any of the clcfonclanis panics, the court finds th11t the plaimlff. a llcgn· ba ·cd on lhc alicg31 ions r fo t con tained in the tions could be read ns a cloim that the candi- severed paragraph IV of p lai n1 1rrs <·rlghml pct i· dntc's pe tit ion was a ltered while in the cKc lu sivc tion, or until the exp iration of th: statuh; of possession of some of the defendant!:, a nd th at limilntion for any crlmi nnl offense with which suc.:h allegatio ns ral c the possibili1y thm the nny of th e dofc1idnn rs could be c har~cd 011 1hc 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.

RPI 0053 330 Tex. 891 SOUTH WESTERN REPORTER, 2d SERIES rants coITection by mandamus w~en a court cial, investigatory or adjudicatory); Ex parte issues a decision which is without basis or Butler, 522 S.W.2d 196, 198 (Tex. 1975) (Tex- 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- b01-n, 835 S.W.2d 260, 261 (Tex.App.-Hous- [4-6] The assert.ion of the privilege ton [14th Dist.] 1992, orig. proceeding); see against self-inc1imination must be raised in also Joachim v. Chambers, 815 S.W.2d 234, response to each specific inquiry or it is (Tex. 1991) (trial court abused discretion waived. Each assertion of the privilege rests by misinterpreting the Code of Judicial Con- on its own circumstances. Blanket asser- duct); NCNB Texas Nat'l Bank v. Coker, tions of the privilege are not permitted. See 765 S.W.2d 398, 400 (Tex. 1989) (trial court United States v. White, 589 F.2d 1283, 1286- abused discretion by failing to apply proper 87 (6th Cir. 1979); Meye1· v. Tunks, 360 legal standard to motion to disqualify coun- S.W.2d 518, 523 (Tex. 1962). The abatement sel); Eanes lndep. Sch. Dist. v. Logue, 712 of the negligence claim while the grand jury S.W.2d 741, 742 (Tex. 1986) (trial court investigates potential criminal charges is akin abused discretion by elToneously finding con- to a blanket assertion of the Fifth Amend- stitutional violation). ment privilege. The rationale for reversals in White and Meyer v. Tunks would militate THE FIFTH AMENDMENT against severance and abatement on a vague PRIVILEGE assertion of constitutional privilege regarding 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 fundamental constitutional right. See Ma- civil case while criminal charges arising out ness v. Meyers, 419 U.S. 449, 464, 95 S.Ct. of the same conduct were pending did not 584, 594, 42 L.Ed.2d 574, 587 (1975) (Fifth unconstitutionally force him to choose be- Amendment may be asserted in any proceed- tween preserving his Fifth Amendment privi- ing, civil or criminal, administrative or judi- lege and losing his civil suit where there was

RPI 0054 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) (decision on whether to testify in civil case is SEVERANCE 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 trial." Mclnnis v. State, 618 S.W.2d at 393. (1) the controversy involves more than one 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 right to silence under the Fifth Amendment, Guaranty Fed. Sav. Bank v. H01·s11shoe Op- the plaintiff may, as a trial strategy, request erating Co., 793 S.W.2d 652, 658 (Tex. 1990) an instruction on res ipsa loquitur on the (citing Saxer v. Nash Phillips-Copus Co. 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. between a criminal and a civil case as to Paoc. 41. Rule 41 affords the t::-ial court whether an inference of guilt may be drawn broad discretion in the matter of Eeverance. 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 (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 privilege is claimed by a party to a civil Moreover, it is observed that the trial cause." 8 J. WIGMORE, EVIDENGE 439 court's order leaves the relator free to try (McNaughton rev. 1961) (emphasis in origi- her civil conspiracy claim based on the same nal). The Baxter opinion lists a long line of factual allegations without the r·~strictions caseE: which recognize "that in proper circum- the trial court has placed on the severed and stances silence in the face of ac.cusation is a abated negligence claim. The concerns ad- relevant fact not barred from evidence by the vanced by the respondent to the ·;rial court Due Process Clause." Baxter, 425 U.S. at would in large measure also be preaent in the 319, 96 S.Ct. at 1558, 47 L.Ed.2d at 822. conspiracy trial. Severing claims into sepa- Therefore, the assertion of the privilege rate lawsuits without valid and sustaining against self-incrimination alone does not reasons is not in the interest of judicial econ- present a legal basis for severance and omy.

4. The record before us docs not reflect that this theory is alleged by the plaintiff below.

RPI 0055 332 Tex .. 891 SOUTH WESTERN REPORTER, 2d SERIES ABATEMENT repeatedly refused to vacate his order of The trial court ordered the negligence abatement. Id. at 427. The issue at the claim abated pending final disposition of any mandamus proceeding was whether the state criminal charges that may be brought against court had a legal basis to abate the state any of the defendants or until the statutes of cause in order to encourage all parties to limitation expire. settle their controversy in federal court.

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- discretion in abatement decisions. E.g., Do- ing suit in another court because the plaintiff lenz v. Continental Nat'l Bank of Fort may still pursue her remedy in the second Worth, 620 S.W.2d 572, 575 (Tex. 1981). court. Id. In Trapnel~ both forums had 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 (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 ceedings." Id., citing Cleveland v. Ward, pretrial order. The negligence claim in this 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 courts provisions of the Texas Constitution. no remedy by appeal. Cleveland v. Ward, 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 ceeding). In Trapnel~ survivors had filed a mandamus ordering trial judges to go to 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. against the Navy pending completion of the See TEX. Gov'T CODE § 22.221 (Vernon 1988). 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.

RPI 0056 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 while an accused is abse·n t from the state and Physician and patient are free to con- tolled during the pendency of an indictment. tract for physician's services on my terms TEX.CRIM.PROC.C<;>DE ANN. art. 12.05 (Vernon they choose.

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 relator is entitled to a writ of mandamus to e:>791 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;>749, 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 Jan. 11, 1995. § 2001.l 74(2)(E).

Rehearing Overruled Feb. 22, 1995. 6. Administrative Law and Procedure €=>790 State Board of Medical Examiners ap- Physicians and Surgeons e=>ll.3(5) 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 evidence supported Board's determination § 2001.174(2)(E).

RPI 0057 1026 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- (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 an FOIA disclosure of the Moorefield file v. would "interfere" with an enforcement pro- COLUMBIA BROADCASTING SYSTEM, ceeding. We conclude that it would. The Defendant-Appellee. materials in this file are sensitive; all con- stitute investigative matter that assists the No. 77-2840.

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 disastrous results. In our view, disclosure ant during the oral deposition and then here would constitute an interference much asserted his Fifth Amendment privilege like the one found by the Court in Robbins against compelled self-incrimination in re- Tire, where it concluded that, on balance, sponse to an order to comply with defend- disclosure of the NLRB witness statements ant's discovery request. The United States would upset the conduct of enforcement District Court for the Western District of proceedings. 487 U.S. at 236-242, 98 S.Ct. Texas, John H. Wood, Jr., J., dismissed the at 2324-27. The risk of presidential assassi- action, and plaintiff appealed. The Court nation presented by the forced disclosure of of Appeals, 608 F.2d 1084, revened and the sort of Service records involved here is remanded. Defendant petitioned for at least as great as that of the mere witness rehearing, and the Court of Appeals held intimidation considered in Robbins Tire. that: (1) the prior opinion of the Court of 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-

RPI 0058 WEHLING v. COLUMBIA BROADCASTING SYSTEM 1027 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.

Federal Courts e1=>744 This argument is unfounded. Nothing in 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- serted his Fifth Amendment privilege in though Wehling could continue to assert his response to discovery order was denied Fifth Amendment rights at trial, it is clear where the arguments submitted by defend- that bis invocation of the privilege would be ant in support of its petition for rehearing subject to the drawing of an adverse infer- were not based on a correct interpretation ence by the trier of fact. Baxter v. Pa/mi- of the Court of Appeals' prfor opinion and giano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 where nothing in the prior opinion preclud- L.Ed.2d 810 (1976). 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 Appeal from the United States District to be utilized in resolving such questions, Court for the Western District of Texas. and we remain convinced that the trial court can adequately deal with this problem ON PETITION FOR REHEARING when and if it arises. Furthermore, we 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) On petition for rehearing, CBS points out some projection as to when the criminal 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-

RPI 0059 1028 611 FEDERAL REPORTER, 2d SERIES The other pointa raised by CBS lack mer- that, as condition precedent to dealing in 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 v. provided; and (4) the complaint sufficiently alleged violation of the Louisiana Unfair Pat PUCKETT, d/b/a Pat Puckett Auto Trade Practice and Consumer Protection Salee et al., Defendants, Law.

Western Surety Co., Defendant-Appellee. Ruling that bill of sale did not consti- 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 of such pendent jurisdiction; (2) invoice and 2. Licenses *=" 26 bill of sale, though it showed no more than Invoice and bill of sale, though it 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, age of vehicle, constituted a "written con- and purported mileage of vehicle, constitut- tract" within Louisiana statute requiring ed "written contract" within Louisiana stat- dice Is so great that the trial court would be coordinates of this point cannot be determined justified In requiring plaintiff to either submit until additional Information becomes available. to discovery or forego his lawsuit. The precise

RPI 0060 10/6/2015 Librado v. M.S. Carriers, Inc. - WestlawNext

Librado v. M.S. Carriers, Inc. United States District Court, N.D. Texas, Dallas Division. November 5, 2002 Not Reported in F.Supp.2d 2002 WL 31495988 (Approx. 3 pages) SELECTED TOPICS 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, APPENDIX IV GUIDANCE AND v. TECHNICAL ASSISTANCE MANUALS 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 TITLE II ADA Compliance Guide ¶870 *1 Defendant M.S. Carriers, Inc. (“MSC”) moves the court to abate this 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 (“Nichols”). The court grants the motion to the extent that it abates the action in part. Assistance Manual addresses the requirements of Title II of the Americans With Disabilities Act, which applies to the I operations...

Plaintiffs bring this action arising from a tragic vehicular collision that took the life of one ¶900 SAMPLE JOB CLASSIFICATION person and seriously injured another. 1 According to plaintiffs, Manuel Victor Perez SPECIFICATIONS (“Perez”) was killed and Juan Cipriano Marcos (“Marcos”) was seriously injured when an Public Employer's Guide to FLSA Emp. Class.

MSC tractor-trailer rig being driven by Nichols ran a stop sign and collided with a car in ¶900 which Perez and Marcos were passengers. A state grand jury has indicted Nichols for ...The job classification specifications (“class specs”) provided in this tab cover a wide criminally negligent homicide. MSC moves the court to abate the action in its entirely, or range of public employer positions. at least with respect to discovery as it relates to Nichols, until the criminal case against Classification specifications are not job descriptions; they are broader docu... him has been concluded. 2 It maintains that Nichols is subject to criminal prosecution, has separate counsel for the criminal case, and has the right to invoke his Fifth See More Secondary Sources Amendment privilege against self-incrimination. MSC argues that plaintiffs' claims against Briefs it arise from an alleged agency relationship between it and Nichols, but that Nichols is Appellants ' Revised Opening Brief unable to participate in discovery or in MSC's defense, thereby stymieing its ability to defend itself. 2012 WL 831327 Rukhsana CHAUDHRY, et al., Plaintiffs- Appellants, v. CITY OF LOS ANGELES, et al., Plaintiffs oppose a stay. They argue that MSC lacks standing to seek abatement, that Defendants-Appellees.

MSC's motion effectively serves as an impermissible blanket assertion of the Fifth United States Court of Appeals, Ninth Circuit.

March 05, 2012 Amendment privilege, and that total abatement is unwarranted, since significant ...Former Los Angeles Police Department discovery can be taken without Nichols' complete and/or limited participation. 3 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.

“As the Fifth Circuit has instructed, in ruling on requests for stays of the civil side of However, on... parallel civil/criminal proceedings, ‘Judicial discretion and procedural flexibility should be Appellants ' Revised Opening Brief utilized to harmonize the conflicting rules and to prevent the rules and policies applicable 2012 WL 831325 to one suit from doing violence to those pertaining to the other. In some situations it may Rukhsana CHAUDHRY, et al., Plaintiffs- be appropriate to stay the civil proceeding. In others it may be preferable for the civil suit Appellants, v. CITY OF LOS ANGELES, et al., Defendants-Appellees. to proceed-unstayed.” ’ United States 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 may stay a civil proceeding during the ...Former Los Angeles Police Department Officer Joseph Cruz alleged that on March 25, pendency of a parallel criminal proceeding. Such a stay contemplates ‘special 2008, Mohammad Usman Chaudhry circumstances' and the need to avoid ‘substantial and irreparable prejudice.” ’ United (“Usman”) attacked him with a knife, prompting Cruz to shoot and kill Usman.

States 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 Courts from other jurisdictions have outlined several factors that should be considered in 2012 WL 831326 determining whether “special circumstances” warrant a stay, including: (1) the extent to Rukhsana CHAUDHRY, et al., Plaintiffs- Appellants, v. CITY OF LOS ANGELES, et al., which the issues in the criminal case overlap with those presented in the civil case; (2) Defendants-Appellees. the status of the criminal case, including whether the defendants have been indicted; (3) United States Court of Appeals, Ninth Circuit.

March 05, 2012 the private interests of the plaintiffs in proceeding expeditiously, weighed against the ...Former Los Angeles Police Department prejudice to plaintiffs caused by the delay; (4) the private interests of and burden on the Officer Joseph Cruz alleged that on March 25, 2008, Mohammad Usman Chaudhry defendants; (5) the interests of the courts; and (6) the public interest. See, e.g., Trustees (“Usman”) attacked him with a knife, of Plumbers and Pipefitters Nat'l Pension Fund v. Transworld Mech., Inc ., 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 10/6/2015 Librado v. M.S. Carriers, Inc. - WestlawNext Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993). Trial Court Documents C Rev. Martin Fry v. Middletown Tp.

2003 WL 26075058 1 Rev. Martin Fry v. Middletown Tp.

United States District Court, E.D. *2 The first question to be resolved is the extent to which the issues in Nichols' criminal Pennsylvania. case overlap with those in the present case, because self-incrimination is more likely if March 12, 2003 there is 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 is the For the reasons that follow, this motion will be degree to which the civil issues overlap with the criminal issues.”). “If there is no overlap, granted in part and denied in part. In this case, Reverend Martin Fry and... there would be no danger of self-incrimination and accordingly no need for a stay.”

Trustees, 886 F.Supp. at 1139 (citing Parallel Proceedings, 129 F.R.D. at 203). In re Augusta Apartm ents , LLC 2011 WL 6779594 The subject matter of the criminal charges against Nichols is substantially, if not In re Augusta Apartments, LLC precisely, the subject matter of the instant civil suit. The criminal case and this suit both United States Bankruptcy Court, N.D. West Virginia. arise from allegations about Nichols' conduct related to the December 11, 2001 accident December 16, 2011 that took Perez's life and maimed Marcos. The court finds that this overlap of issues ...Chapter 11 THIS MATTER is before the Court on the TRUSTEE'S MOTION FOR between the civil and criminal actions weighs in favor of a stay. ORDER AUTHORIZING THE SALE OF ASSETS PURSUANT TO 11 U.S.C. § 363(b), 2 (f), AND (m) AND § 105(a) (the “Sale Motion”), filed by Rober...

The second factor to be considered 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 In re Augusta Apartm ents , LLC same conduct for two reasons: first, the likelihood that a defendant may make 2011 WL 6779589 incriminating statements is greatest after an indictment has issued, and second, the In re Augusta Apartments, LLC United States Bankruptcy Court, N.D. West prejudice to the plaintiffs in the civil case is reduced since the criminal case will likely be Virginia. quickly resolved due to Speedy Trial Act considerations.” Trustees, 886 F.Supp. at 1139. December 16, 2011 Although Nichols is not a party to the instant case, he is a person whose testimony is ...THIS MATTER is before the Court on the TRUSTEE'S MOTION FOR ORDER essential to its fair adjudication, because it is his alleged conduct that serves as the basis AUTHORIZING THE SALE OF ASSETS for plaintiffs' claims. Since Nichols is under indictment rather than merely under PURSUANT TO 11 U.S.C. § 363(b), (f), AND (m) AND § 105(a) (the “Sale Motion”), filed by investigation, the court finds that the status of the criminal case weighs in favor of a stay. Robert L. Johns,...

3 See More Trial Court Documents In ruling on a motion for stay, the court should also weigh the private interests of the plaintiffs in proceeding expeditiously against the prejudice that will be caused by the delay that will result from the stay. Plaintiffs assert that the criminal case against Nichols is proceeding slowly and uncertainly, with no specific trial date. Nevertheless, Texas law recognizes a right to a speedy trial. Therefore, the court concludes that consideration of the burden to be placed on the plaintiffs does not weigh heavily against a stay.

The court recognizes that, even if convicted, Nichols' Fifth Amendment privilege may continue throughout the pendency of his direct appeal. See, e.g., Frank v. United States, 347 F.2d 486, 491 (D.C.Cir. 1965). Because the issuance and duration of a stay are committed to the court's sound discretion, and because imposition of a stay lasting throughout the duration of Nichols' direct appeal (if he is convicted) would likely be unduly burdensome to plaintiffs' interests, the court contemplates that the stay granted today will remain in effect only through sentencing. If he is acquitted, the stay will terminate upon the return of a not guilty verdict.

*3 The court has also considered the private interest of MSC in securing the stay and the burden on it that would result were the stay denied. As discussed above, absent a stay, Nichols faces a conflict between asserting his Fifth Amendment rights and fulfilling his legal obligations as a witness in this civil action. This conflict may be largely, if not completely, eliminated by granting a stay of appropriate scope. Moreover, the court discerns no substantial prejudice to plaintiffs from granting a partial stay. Therefore, the court finds that MSC's private interest weighs in favor of abatement in part.

Because the court concludes that granting a stay will not unduly interfere with the court's management of its docket, it finds that the court's interests do not weigh against a stay.

Additionally, the court holds that the interests of the public do not weigh against a stay.

MSC seeks abatement of the entire suit, contending that Nichols is unable to participate in discovery or in MSC's defense, thereby compromising its ability to defend itself. The court is not persuaded that all discovery must be halted. There would appear to be a great deal of discovery that both parties could undertake, including that concerning the physical evidence from the accident, the extent, nature, and costs of the medical RPI 0062 https://a.next.westlaw.com/Document/I88e400f553ff11d9b17ee4cdc604a702/View/FullText.html?originationContext=typeAhead&transitionType=Default&context… 2/3 10/6/2015 Librado v. M.S. Carriers, Inc. - WestlawNext expenses rendered to Marcos, and the personal injuries that plaintiffs suffered as a result of the death of Perez and the injuries to Marcos. 4 Instead, the court abates the case to the extent that plaintiffs are precluded from taking Nichols' deposition and from conducting any discovery that MSC can show, by motion, will or is likely to subject it to undue prejudice by reason of Nichols' unavailability as a witness to MSC or to assist it in its defense.

Based on its consideration of the above factors, and in the interests of justice, the court grants in part MSC's motion to abate and, to the extent set forth above, abates discovery in this case until such time as a verdict of not guilty has 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 1 This case is now pending in its fourth forum. Plaintiffs filed it in state court in Webb County, Texas, MSC removed it to the Southern District of Texas, that court transferred it to the Western District of Texas (while suggesting that it probably should be transferred to the Northern District of Texas but that the court was powerless to make such a transfer), and the Western District of Texas granted an unopposed motion to transfer the case to the Northern District of Texas, Dallas Division. The court is not confident that the case should be pending in this division, because plaintiffs' connection to this court appears to be the Fort Worth Division, not the Dallas Division.

Nevertheless, because, at some point, this case must come to rest, the court will not direct that it be transferred still again.

2 MSC filed its motion to abate on July 16, 2002 in the Western District of Texas, where the case was then pending. Plaintiffs filed their response on August 2, 2002. MSC did not file a reply brief. On October 21, 2002 MSC filed in this court a request for ruling by submission, in which it asked the court to decide the motion. On October 30, 2002 plaintiffs filed the response to MSC's request. They join the request that the court decide the motion.

The court grants the request for ruling, and decides the motion today.

3 The court will not organize its analysis based on plaintiffs' arguments, because in some respects they misunderstand the apposite jurisprudence.

For example, their contention that MSC lacks standing is based erroneously on the personal nature of the Fifth Amendment privilege. While it is true that MSC cannot invoked Nichols' right against self-incrimination, it can certainly rely on the fact that he has that right to seek a stay of discovery.

4 This is intended as an illustrative, nonexclusive list, not a catalogue of the limits of available discovery.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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RPI 0064 660 659 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 Since defendant's claims do not constitute them; and (4) officers' persistent refusal to reversible error, her conviction is comply with court orderi throughout litiga- 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. v. Fed.Rules Civ.Proc. Rule 37(b)(2)(C), 28 FIRST FINANCIAL GROUP OF TEXAS, U.S.C.A.

INC., Defendant, 2. Federal Courts ~820 Wllliaal H. Rowton, et al., In reviewing district court's entry of Defenclant.-Appellantl. discovery sanction, Court of Appeals' role is limited to determination whether important No. 80-1895 historical findings made by the district Summary Calendar. court are clearly erroneous and whether Unit.ed States Court of Appeals, district court abused its discretion in impos- Fifth Circuit. ing particular sanction. Fed.Rules Civ. 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.

RPI 0065 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. 661 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 eo flagrant as to justify entry of default 11. Witneuea ..,.308 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- 7. Federal Civil Procedure e-1636 mits district court to rule on validity of hie 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 founded. U.S.C.A.Const. Amend. 5.

1atiafy their obligatione, did not abuee its diBcretion in entering default judgment 12. Witnesses 11=tS07 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 loans. Fed.Rules Civ.Proc. Rule 87, ~U.S. remain totally silent; it is only where court C.A. finds that he could legitimately refuse to 8. Abatement and Revival e=& answer essentially all relevant questions be- 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- eral ~nciea against same defendant in- 13. Wltnel8ea *""30'1 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-

RPI 0066 662 659 FEDERAL REPORTER, 2d SERIES 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 H. Federal Court. .,..625, 640 since judgment of civil contempt could not Failure of corporate officers, who nei- stand if basis for judgment was erroneous. 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.

15. Federal Civil Procedure IP2419 19. Contempt *»28(2), 70 Where Securities and Exchange Com- Reliance upon advice of counsel may be miBSion filed motion for default judgment considered in mitigation of contempt sanc- on March 10th and hand delivered copy of tion but does not constitute defense to con- motion to counsel for corporate officers tempt of court. 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 where district court did not enter its order Michael K. Wolensky, Douglas J. Scheidt, of permanent injunction by default against Linda D. Fienberg, Paul Gonson, Asst. Gen. officers until March 20th, corporate officers Counsels, Securities & Exchange Comm., had sufficient notice of possibility that de- Washington, D. C., for plaintiffs-appellees. 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 55(b)(2), 28 U.S.C.A. Before AINSWORTH, REAVLEY and 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 discovery by Securities and Exchange Com· in contempt of court and permaner1tly en- mission rather than to vindicate court's au- joined them from further violations of the thority without regard for officers' future federal securities laws. The district court compliance, and where order itself stated entered these judgments in an action that officers could purge their contempt, brought by the Securities and Exchange

RPI 0067 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. 663 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 A. Background to the District Court Judge Bue i88ued a temporary restraining Proceedings order against appellants and First Financial Beginning in May 1979, Howton and that day restraining the alleged unlawful Reynolds, acting as representatives of First conduct, and set a hearing on the SEC's Financial, began to market packages of motion for a preliminary injunction for Au- guaranteed student loans and repurchase gust 81. On August Z'l, the SEC began agreements totalling approximately nine discovery proceedings by filing a motion million dollars to several institutional inves- under Fed.R.Civ.P. SO(a) to depose appel- tors.• As part of the agreements reached lants and other persons associated with between First Financial and these investors, First Financial and to examine First Finan- First Financial agreed to deposit the loans cial'& corporate and financial records. The with a third party, such as a bank, and also SEC then served notice that it would depose agreed to repurchase the loans from the Reynolds or any other authorized represent- investors either on a specified date or at the ative of First Financial on August 28 as 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 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· lion a1aln1t First Financial as well a1 the di•· a. The SEC brought this ault ba1ed upon t l 7(a) trtct court'• appointment of a temporary re- of the Securltle1 Act of 1933, 115 U.S.C. ceiver for First Financial. We alao dlaml11ed I 77q(a), t IO(b) of the Securttlea Exchange Act u moot Howton'• and Reynold•' appeal from of 193', 15 V.S.C. § 7BJ(b), and Rule IOb-5, 17 the dlatrtct court'• entry of a preliminary In· C.F.R. 240.lOb-5, promulaated under the 1934 Junction apinll them on the around that the Act, which render unlawful the offer or sale of dl1trtct court's entry of the permanent lnJunc· securities throuah fraudulent, manipulative, or tlon Involved In thl1 appeal mooted Ill earlier deceptive schemes or devices, lncludln1 the uae order. SEC v. Flnt Financl-1 Group of TexH, of falae or misleading 1tatements of material Inc., 645 F.2d 429 (15th Cir. 1981). fact. SE.C v. First Financial Group of Texas, 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

RPI 0068 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 At that hearing, District Judge Sterling contempt of the district court's February 15 ordered appellants to make themselves order. Neither appellant appeared for the available for discovery. The hearing was March 10 hearing. The district court there- not completed that day and Judge Sterling upon held appellants in contempt of court set the remainder of the hearing for Sep- for "totally violat[ing] all of the aforesaid tember 7. The SEC then served notice orders of the Court" and ordered appellants upon 11.ppellants of its intent to depose them confined for ten days unless they purged as well as examine First Financial's records the contempt. 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 At the September 7 hearing, the District new trial, requesting the district court to Judge ordered appellants to appear for dep- vacate its default judgment, and Reynolds ositions and to produce the subpoenaed ma- also requested a new trial on the district terial within the next two weeks. The SEC court's contempt order. The district court noticed a deposition for September 14 at denied both motions and this appeal fol- 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 On November 2, the SEC filed a motion Express, Inc. v. Piper, 447 U.S. 752, 768, 100 seeking to have the district court compel S.Ct. 2455, 2462, 65 L.Ed.2d 488 (1980); Na- appellants to submit to discovery before a tional Hockey League v. Metropolitan magistrate. The district court granted this Hockey Club, 427 U.S. 689, 648, 96 S.Ct. 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

RPI 0069 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. 665 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 Appellants challenge the default judg- attend. However, the record fully supports ment on four grounds. First, appellants the district court's findings that the SEC, contend that the district court's factual the magistrate, or the district court itself findings are clearly erroneous. Second, ap- sufficiently notified appellants of their at- pellants argue that the district court abused tendance and production requirements. its discretion in entering a default judg- Appellants' arguments to the contrary are ment. Third, appellants argue that the dis- either factually inaccurate or legally irrele- trict court should have stayed this civil SEC vant and are therefore rejected. proceeding pending the outcome of a grand jury investigation into the same transac- [5] Appellants also contend that the dis- tions at issue here. Finally, appellants ar- trict court did not find that appellants were gue that the district court entered the de- in possession of the records of First Finan- fault judgment without affording them ad- cial sought by the SEC. The ~rda, ac- equate notice of its intention to do so. cording to appellants' briefs, were turned None of these contentions has merit. over to the temporary receiver appointed by Judge Sterling for Fint Financial shortly A. Factual Finding& by the District after October 10. Appellants, however, dic;l Court not discuss possession of these records until 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 the rule that 'findings of fact shall not be when they admittedly did have po1188811ion set uide unleea clearly erroneous.' " SEC of the records. Moreover; the record dis- v. Blatt, 688 F ,2,(1 1825, 1828 (6th Cir. 19'78), closes that the temporary receiver did not quoting Fed.R.Civ.P. 62(a). See McAllister obtain these records until late February, v. United States, 848 U.S. 19; 20, 76 S.Ct. 6, 1980.

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 demonstrating that the district court's fac- finds no support in the record. Their argu- 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 411, 418 (5th Cir. 1981). The district court's court's finding& of fact are erroneous. findings, diecuaaed above, detail the SEC'a Their conclusion falls with their premise.

RPI 0070 666 659 FEDERAL REPORTER, 2d SERIES B. Abuse of Discretion the discovery requests made by the SEC Appellants contend that the district court and to comply with the orders of the dis- abused its discretion in entering a default trict court. The evidence demonstrates ap- judgment. Both appellant.a contend that pellants' willful bad faith and callous disre- they did not believe that they were required gard for the responsibilities of litigants, to attend the March 10 hearing on the contradicting any inference of accide.ntal magistrate's order to show cause why they oversight or confusion on their part. The should not be held in contempt. In addi- capstone of appellants' unrelenting and ab- tion, Reynolds argues on his own behalf ject refusal to satisfy their obligations is that he did appear for depositions twice their failure even to appear for the hearing prior to the March 8 deposition and that he on the magistrate's order to show cause 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 However, the magistrate's oral order di- flagrant bad faith and callous disregard of rected to the parties and entered in the its responsibilities, the district court's choice presence of Reynolds and the attorney for of the extreme sanction is not an abuse of Reynolds and Howton was explicit in its diacretion." Emerick v. Fenick Industries, requirement that both appellants appear Inc., supra, 539 F .2d at 1381. The district before the district court on March 10 to court offered appellants every opportunity show cause why they should not be held in to satisfy their obligations and accordingly contempt. The magistrate also entered a did not abuse its discretion in entering a minute entry into the record requiring the default judgment. 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 the district court and appellants' argument Appellants argtie that the district court that the procedure followed by the magis- erred by failing to stay the SEC's civil trate waa confusing is meritless. proceedings once a federal grand jury be- 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 could, in its discretion, have determined the (8] There is no general federal constitu- 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- record of proceedinra which amply discloses lel civil and criminal proceedings instituted appellants' peniatent refusal to respond to by different federal agencies are not un-

RPI 0071 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. 667 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 tled to vindicate the different interests pro- (DC. . Cll''.), (en banc), ce~·· ~ ·-~ -AA9 . . ,.,.. uemc:u, us 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 and criminally were sometimes necessary in lation of the federal securities laws. order to protect the public interest and that The Supreme Court's decision in United 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) (9) Thia principle is fully applicable may not uae ita authority to iuue aummons-· when the SEC and Justice Department each ea under 26 U.S.C. § '7602 (1976) solely for seek to enforce the federal aecuritiea laws the purpose of gathering information for a through separate civil and criminal actions. criminal prosecution. See United States v. The District of Columbia Court of Appeala Davis, 636 F.2.d 1028, 1086 (5th Cir. 1981). 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 4. "The Sherman act providea for a criminal I. "The public interest In protectlns con1umers proceeding to punish vlolaUons, and 1ult1 In throushout the Nation from misbranded drugs equity to restrain such vlolaUon1, and the 1utt1 requires prompt action by the agency charged 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 the aovernment; the dependence of their trial• decision whether to proceed criminally a11alnat 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."

RPI 0072 668 859 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 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 the Supreme Court in LaSalle National ing the Fifth Amendment, 48 U.Chi.L.Rev. Bank are not applicable to this civil suit by 158, 164 (1981); id. at 161. This Court bas the SEC. Of. SEO v. Dresser Industries, held that such a blanket assertion of the Inc., supra, 628 F.2d at 1877-84 (LaSalle privilege is insufficient to relieve a party of National Bank not applicable to SEC'a is- the duty to respond to questions put to him, suance of summons). stating that "even if the danger of self-in- 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; SEC v. Dresser Industries, Inc., supra, 628 (6th Cir. 1969) (footnote omitted). See F .2.d at 1877. For instance, in Wehling v. United States v. Malnik, 489 F.2d 682, 685 Columbia Broadcasting System, supra, 608 (6th Cir. 1974); Note, supra, 48 U.Chi.L.

F.2d 108', we held that the district court Rev. at 161. Requiring a party to object elTed by failing to stay a civil libel action with specificity to the information aought pending the outcome of a related criminal from him permits the district court to rule investigation and potential proaecution or on the validity of his claim of privilege. A the running of the applicable statute of party is not entitled to decide for himself limitations after the plaintiff had validly whether he is protected by the fifth amend- claimed hia f'afth amendment privilege in ment privilege. Rather, this question is for reaponse to the defendant's discovery re- the court to decide after conducting "a par- quests and had sought a protective order ticularized inquiry, deciding, in connection staying the civil auiL See also The Black with each specific area that the questioning Panther Party v. Smith, 661 F.2d 1243, party seeks to explore, whether or not the 127~1274 (D.C. Cir. 1981); United States privilege is well-founded." Uni~ States v. v. U. S. Currency, 626 F.2d 11, 14--16 (6th Melchor Moreno, 686 F.2d 1042, 1049 (5th Cir. 1980); Campbell v. Gerrans, 592 F.2d Cir. 1976). Even where a party has a legiti- 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

RPI 0073 S. E. C. v. FIRST FINANCIAL GROUP OF TEXAS, INC. 669 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 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 civil litigant of the responsibility to answer [16, 17] As the Supreme Court stated in questions put to him during the civil dis- Gompers v. Buck's Stove & Range Co., 221 covery process and to claim the privilege U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.F.d. 797 with respect to each inquiry. See National (1911), "the power of courts to punish for Life Insurance Co. v. Hartford Accident & contempts is a necessary and integral part Indemnity Co., 615 F.2d 595, 598-600 (3d of the independence of the judiciary, and is Cir. 1980); id. at 599 (cases cited); In re absolutely essential to the performance of Folding Carton . Antitrust Litigation, 609 the duties imposed on them by law." See F.2d 867, 878 (7th Cir. 1979) (per curiam); 8 Roadway Express, Inc. v. pjper, supra, 447 C. Wright & A. Miller, Federal Practice and U.S. at 764, 100 S.Ct. at 2468. A party Procedure: Civil § 2018, at 142--48 (1970 & commits contempt when he violates a defi- Supp. 1981); Note, supra, 48 U.Chi.L.Rev. at nite and specific order of the court requir- 161, 164. Appellants' failure properly to ing him to perform or refrain from per- raise their claim of privilege in the proceed- forming a particular act or acts with knowl- 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). [15] Appellants' final challenge to the In this case, the district court's judgment default judgment states that the district was an adjudication of civil contempt. The court entered the judgment without proper purpose of this order was to compel appel- notice to appellants. This argument is mer- lants to comply with the court's previous itlesa. Rule 56(b)(2) of the federal rules of orders requiring them to submit to dis· civil procedure states that "[i]f the party covery by the SEC rather than to vindicate against whom judgment by default is the court's authority without regard for the sought has appeared in the action, he (or, if contemnor's future compliance with the appearing by representative, his representa- court's orders. See Smith v. Su11ivan, 611 tive) s~all be served with written notice of F.2d 1050, 1058 (5th Cir. 1980). The order the application for judgment at least 8 days itself stated that appellants could purge prior to the hearing on such application." their contempt, presumably by following The SEC. filed a motion for default judg- the district court's prior orders, and we 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 served a copy of its motion on counsel for judgment of civil contempt can not stand if appellants that day. The district court did the basis for the judgment is erroneous.

RPI 0074 670 659 FEDERAL REPORTER, 2d SERIES 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 Appellants contend that the district F.Supp. 846, 849-50 (C.D.Cal. 1974), vacated oourt's contempt judgment should be re- as moot, 687 F.2.d 1081 (9th Cir. 1976); id. vened because the district court's factual (cases cited); Theriault v. Carlson, 853 findings are clearly erroneous and the dis- F.Supp. 1061, 1066 n. 2 (N.D.Ga. 1978), rev'd trict court abused ita discretion in holding on other grounds, 495 F.2d 890 (5th Cir.), them in contempt. Finally, appellants ar- cert. denied, 419 U.S. 1008, 96 S.Ct. 828, 42 gue that their refusal to submit to dis- L.F.d.2d 279 (1974). 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- sons stated above, we also reject it here. The STATE BAR OF CALIFORNIA, The district court also did not abuse its Defendant-Appellee. 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- trict court's imposition of this sanction. United States Court of Appeals, For the reaaona stat.eel above, we also reject Fifth Circuit. 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 try of a pennanent injunction by default judg- separatt! opinion In connection with that order. ment. SEC v. FITst Fln•nclal Group of Texas, SEC v. FiTst Financial GToup of Texas, Inc., No. 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·

RPI 0075 1084 608 FEDERAL REPORTER, 2d SERIES 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 v. 26(b)(l), 28 U.S.C.A.

COLUMBIA BROADCASTING SYSTEM, 2. Witnesses *-297(1) Defendant-Appellee.

If party reasonably apprehends risk of No. 77-2840. self-incrimination, he may claim Fifth United States Court of Appeals, Amendment privilege though no criminal Fifth Circuit. charges are pending against him and even if risk of prosecution is remote. U.S.C.A.

Dec. 28, 1979. Const. Amend. 6.

Rehearing Denied Feb. 14, 1980.

See 611 F .2d 1026. 3. Witnesses .,..309 In a libel action, the plaintiff refused to Plaintiff who retreats under cloak of answer certain questions posed by defend- Fifth Amendment cannot hope to gain un- ant during his oral deposition and then as- equal advantage against party he has cho- serted his Fifth Amendment privilege sen to sue. U.S.C.A.Const. Amend. 5. against compelled self-incrimination in re- 4. Federal Civil Procedure .,_ 1800 sponse to order to comply with defendant's discovery request. The United States Dis- Civil plaintiff's assertion of his Fifth trict Court for the Western District of Tex- Amendment privilege during pretrial die- as at San Antonio, John H. Wood, Jr., J., covery did not automatically require dis- then dismissed action, and plaintiff appeal- miesal of his libel action. U.S.C.A.Const. ed. The Court of Appeals, Lewis R. Mor- Amend. 5; Fed.Rules Civ.Proc. Rule gan, Circuit Judge, held that: (1) plaintiff's 26(bXl), 28 U.S.C.A. assertion of privilege during pretrial dis- 5. Federal Civil Procedure -.1278 covery did not automatically require dis- missal of his libel action; (2) when plain- No provision in federal diecovery rules tiff's silence is constitutionally guaranteed, authorizes court to impose sanctions on par- dismissal of civil action is appropriate only ty who resists discovery by asserting valid when other, less burdensome remedies claim of privilege, and thus district court would be ineffective means of preventing had no authority to order civil plaintiff to unfairness to defendant, and (3) where discloae privileged information and should staying discovery until applicable criminal not have imposed sanctione when civil plain- statute of limitations ran would not impose tiff declined to answer during pretrial dis- undue hardship on defendant, trial court covery on Fifth Amendment grounds, al- abused its discretion in denying plaintiff's though district court was not precluded motion for a protective order seeking such a from using dismissal 88 remedy to prevent stay. unfairness to defendant 88 last resort. U.S. Reversed and remanded. C.A.Const. Amend. 5; Fed.Rules Civ.Proc.

Rule 26(b)(l), 28 U.S.C.A.

1. Witneaae• *-2931h Fact that Fifth Amendment privilege 6. Federal Civil Procedure ...,.1741 against self-incrimination is raised in civil Dismissing action by civil plaintiff, who proceeding rather than criminal prosecution in addition to Fifth Amendment right to 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.

RPI 0076 WEHLING v. COLUMBIA BROADCASTING SYSTEM 1085 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 and 88Berted his Fifth Amendment privilege Joel W. Westbrook, Bruce L. Goldston, against self-incrimination in response to or- San Antonio, Tex., for plaintiffs-appellants. 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.

U.S.C.A.Const. Amend. 5. Before MORGAN, RONEY and GARZA, 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 staying discovery would not impose undue from the dismissal of his libel action under hardship on defendant in libel action, per- Rule 37, Fed.R.Civ.P., for refusing to an- mitting three-year hiatus in lawsuit was swer certain questions posed by CBS during preferable to requiring plaintiff to choose plaintiff's oral deposition. Wehling assert- between his silence and his lawsuit, and ed his Fifth Amendment privilege against thus further discovery should have been compelled self-incrimination in response to stayed until applicable statute of limitations the district court's order to comply with had run with respect to criminal prosecu- defendant's discovery request. The ques- tion against plaintiff, who had asserted his tion presented is whether the court abused Fifth Amendment privilege against com- its discretion in denying Wehling's motion pelled self-incrimination in response to dis- for a protective order and dismissing his covery order. U.S.C.A.Const. Amend. 5. complaint with prejudice. For reasons dis- 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."

RPI 0077 1086 608 FEDERAL REPORTER, 2d SERIES I. been cooperating with the United States Carl and Geraldine Wehling, the owners Attorney's office and the Attorney General 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- trial discovery from plaintiff concerning the tion concerning the accuracy of its broad- details of the operation of these schools, cast and thus thwarted discovery of issues Wehling invoked his Fifth Amendment at the heart of plaintiff's lawsuit. 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- sition or suffer dismissal of his lawsuit for information relevant to the subject matter failure to make discovery. Wehling then of the action before the court unless such filed a motion for a protective order asking information is privileged. Fed.R.Civ.P. the court to fashion some type of relief 1 26(b)(l). Even if the rules did not contain short of outright dismissal which would re- specific language exempting privileged in- 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 appearances before the grand jury, Wehling under both the Federal Rules of Civil Pro- a.aserted his Fifth Amendment privilege cedure and the Constitution, Wehling was against self-incrimination. On the date under no obligation to diaclose to CBS in- CBS took plaintiff's oral deposition, Wehl· formation that he reasonably believed ing's counsel stated that he had reason t.o might be used against him as an accused in believe that the grand jury investigation a criminal prosecution. Maness v. Meyers, 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,

RPI 0078 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- [2] The question here, however, is not ceed to trial without answering the ques- whether Wehling had a right to invoke the tions posed by CBS during the deposition. constitutional privilege against self-incrimi- Instead, Wehling asks only that discovery nation, which he did, but what effect the be stayed until all threat of criminal liabili- assertion of this privilege would have on his ty has ended. We must decide whether, libel action against CBS. Wehling argues under the circumstances of this case, plain- that dismissing his lawsuit because he as- tiff should have been required to forego a serted his self-incrimination privilege in ef- valid cause of action in order to exercise his fect penalized him for exercising a funda- constitutional right to avoid self-incrimina- mental constitutional right. He claims that tion. 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 C. Wright & A. Miller, Federal Practice the action. Furthermore, CBS contends that postponing discovery pending termina- and Prooodure § 2018 (1970). Rule 26 limits tion of the grand jury proceedings or expi- the scope of discovery to matter that is "not ration of the limitations period would preju- privileged." Because CBS had no right to dice its efforts to prepare a defense to information protected by the privilege Wehling's claim. against self-incrimination, Wehling did not 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- equal advantage against the party he has [6] Second, we believe that dismissing a 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 Education, and Welfare before formulating and 6. While dismissal is unavailable as a sancUon, 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)

RPI 0079 1088 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- tion of any sanction which makes asser- [8] The district court's task in this case tion of the Fifth Amendment privilege was complicated by the presence of compet- "costly." ing constitutional and procedural rights. In focusing solely on CBS' right to the re- Spevack v. Klein, 885 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967). We agree quested information, the court failed to at- with the Ninth Circuit's conclusion in tribute any weight to Wehling's right to his Campbell v. Gerrans, 592 F.2d 1054, 1058 day in court. Instead of arbitrarily adopt- (9th Cir. 1979), that dismissing a party's ing a rule favoring CBS, the court should action because he asserts his Fifth Amend- have measured the relative weights of the ment privilege makes resort to that privi- parties' competing interests with a view lege "costly." 7 See 8 C. Wright & A. Mil- toward accommodating those interests, if ler, Federal Practice and Procedure, § 2018 possible. This balancing-of-interests ap- at 148. proach ensures that the rights of both par- 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. be required to defend against a party who Wehling filed his suit against CBS on Au- 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-

RPI 0080 UNITED STATES v. MILLER 1089 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 to requiring plaintiff to choose between his REVERSED and REMANDED. 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 F.R.D. 236 (E.D.Mich. 1952). 10 Because 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 consequences, we believe the court abused Clifford Jerome MILLER and Kathelyn its discretion in denying Wehling's Motion Vandraise Miller, Defendante-Appellees. 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- mature at this stage of the proceeding, the Clifford Jerome MILLER, district court is not precluded from dismiss- Defendant-Appellee. 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 open to CBS in 1977 will be closed by the United States Court of Appeals, time the stay is lifted in 1980. Should the Fifth Circuit. 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, though the Motion for Protective Order did not nor v. Minor, 240 So.2d 301 (Fla. 1970). we are 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-

RPI 0081 PUBLIC SAFETY OFFICERS ASS'N v. DENTON TE•X. 757 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, Lemond complains that he was entitled to Third Judicial District, 862 S.W.2d 785, Mack an instruction on manufacturing defect, and Kidd, J., i·eversed and remanded, aricl associ- that distributors of natural gas should be ation applied for writ of error. The Supreme held to a higher standard of care because of Court, Enoch, J., held that: (1) plaintiff was the dangers that inhere in the product. The engaging in "offensive use" of the pdvilege court of appeals addressed these complaints under three-pronged Republic I n1mrance fully and, we believe, rejected them correctly. test, and thus had exposed himself ·;o discov- 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 v. answer might tend to subject to criminal 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.- tion to avoid discovery. The 200th District 4. Pretrial Procedure e:o>33, 44.J.

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-

RPI 0082 758 Tex. 897 SOUTH WESTERN REPORTER, 2d SERIES quired, under "offensive use" doctrine enun- 7. Witnesses P309 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 See publication Words and Phrases discovery, keeping in mind whether any rem- 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- ance t.est, and thus had exposed himself to 8. Witnesses e=>309 discovery sanction by not waiving the privi- Court can allow civil jury to make nega- lege, where he was seeking damages and tive inference from assertion of Fifth Amend- thus was seeking affirmative relief; the dis- ment privilege against self-incrimination. covery questions to which he bad asserted U.S.C.A. Const.Amend. 5. 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 privilege in response to discovery requests is 10. Witnesses ~309 offensive in nature and thus subjects plaintiff Before dismissing civil action, as discov- to risk of discovery sanction in absence of ery sanction for plaintiff's offensive use of waiver. Vernon's Ann.Texas Rules Civ. Fifth .Amendment privilege against self-in- Proc., Rules 215, 215, subd. 1, par. b. crimination to avoid discovery when plaintiff has elected to risk such sanction rather than See publication Words and Phrases for other judicial constructions and def- waive the privilege, trial court must be con- initions. vinced that less burdensome remedies would

RPI 0083 PUBLIC SAFETY OFFICERS ASS'N v. DENTON Tex. 759 Cite as 897 S.W.2d 757 (Tex. 1995) not be effective in preventing unfairness to 787. We affirm, but for different reasons. defendant. U.S.C.A. Const.Amend. 5; Ver- We conclude that a trial court can ultimately non's Ann.Texas Rules Civ.Proc., Rules 215, dismiss a party's claims for failing t:o comply 215, subd. 1, par. b. with an order for discovery, but c·nly after first satisfying the procedures governing ll. Witnesses ~309 sanctions. In addition, before irr.posing a Trial court abused its discretion in dis- sanction, the trial court must consid·~r wheth- missing plaintiff's civil action against public er remedial steps short of sanctions can al- safety officers association as discovery sanc- leviate the problem. Then, assuming they tion for his offensive use of Fif~h Amendment cannot, the trial court must detennine privilege against self-incrimination to avoid whether a 1e13ser sanction would satisfy the discovery. U.S.C.A Const.Amend. 5; Ver- legitimate puirpose of the sanction before im- 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 Texas Dept. of Public Safety Officers Ass'n, Lane Denton was terminated by the Texas Billy Don Ivey, Jerry Moore, Charlie Adams Department of Public Safety Officers Associ- 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 Co. on several tort and contract grounds.1 -As 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 We are asked what can a trial court do motion. Although Denton then appeared for when a civil plaintiff exercises his Fifth his deposition, he refused to aru.wer ques- Amendment privilege against self-incrimina- tions or produce documents. The trial court held another hearing to consider the Associa- tion and thereupon refuses to comply with tion's motions to compel and for sanctions. discovery. I n answer ing this question, we 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 his Fifth Amendment privilege in re- ed to his claim, and the trial court dismissed 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 that the criminal case on the indictment entered Denton is not aware of the nature of this sepa- against him was set for trial. He also explained rate investigation or whether it is still ongoing.

RPI 0084 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 and while the risk of self-incrimination [2, 3] The Fifth Amendment can be as~ loomed over him. He also claimed that the serted in both civil and criminal trials ''wher- dismissal violated his due process rights be- ever the answer might tend to subject to cause his Fifth Amendment rights out- criminal responsibility him who gives it." weighed any inconvenience that would result McCarthy v. Amdstein, 266 U.S. 34, 40, 46 from an abeyance. The court of appeals S.Ct. 16, 17, 69 L.Ed. 158 (1924); see Kasti- reversed, holding that there was no offensive gar v. United States, 406 U.S. 441, 444, 92 use of a privilege and that Denton's due S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). process rights were violated by the dismissal, Generally, the exercise of the privilege and that the dismissal was an impermissible should not be penalized. Spevack v. Klein, discovery sanction. 862 S.W.2d at 791, 793. 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L.Ed.2d 674 (1967); Malloy v. Hogan, 378 II. Trial Court's Power to Dismiss U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964).

A trial court has limited authority to dis- miss a cause of action on its own initiative. The importance of the freedom from self- The power to dismiss implicated in the pres- incrimination notwithstanding, the role of the ent case is the trial court's power under Rule Fifth Amendment in civil cases when assert- 215. TEx.R.Crv.P. 215(1)(b). In TransA.mer- ed by a plaintiff presents certain problems ican Natural Gas Corp. v. Powel4 811 not found when the privilege is asserted in a S.W.2d 913, 917 (Tex. 1991) (orig. proceeding), criminal context.3 Because of the difference we held that sanctions imposed by a trial between the civil and criminal context, the court must be just, there must be a direct United States Supreme Court has allowed relationship between the offensive conduct juries in civil cases to make negative infer- and the sanction imposed, and the sanction ences based upon the assertion of the privi- must not be excessive. Id. lege. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 III. Denton's Fifth Amendment Claims (1976). Also, when a plaintiff invokes the [1] Denton had the right to assert his privilege against self-incrimination, the trial Fifth Amendment privilege to avoid civil dis- court can subsequently prohibit the plaintiff covery if he reasonably feared the answers from introducing evidence on the subject, would tend to incriminate him. See Wehling and such an act of judicial discretion does not v. Columbia Broadcasting Sys., 608 F.2d constitute penalizing the plaintiffs use of the 1084, 1086 (5th Cir. 1979) ("Wehling was un- privilege. See Gutierrez-Rodriguez v. Cart- der no obligation to disclose to CBS informa- agena, 882 F.2d 553, 676 (1st Cir. 1989). The tion he reasonably believed might be used rule against penalizing the use of the privi- against him as an accused in a criminal pros- lege does not prohibit a trial court from ecution."). Nevertheless, the resulting use of taking acts to ensure that the civil proceed- the privilege was an offensive use. Denton ing remains fair. used a privilege to protect information that A plaintiff who uses the privilege to pro- 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

RPI 0085 PUBLIC SAFETY OFFICERS ASS'N v. DENTON Tex. 761 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 subsets of sanctions cases. Even if a party .A. Affirmative Relief has a valid reason to avoid discovery, such as (5, 6] The first prong of the Republic In- an evidentiary or co118titutional privilege, swrance test asks whether the party assert- that party, when .appropriately ordered by ing the privilege is seeking affirmative relief. the trial court, must elect whether to main- In Republic Insurance, the party exercising tain the privilege or risk suffering a sanction. the privilege was seeking declaratory judg- E.g., Repu.bUc /?'t$., 856 S.W.2cl at 161; Gins- ment which did not implicate any affinnative 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 SO?t v. Citize?is Bank of frlfing, 549 S.W.2d prong of the Republic lmuranc6 rest applied 446, 449 (Tex.App.-Eastland 1977, no writ); to the facts in this case. 862 S.W .2d at 790.

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- to choose between maintaining the privilege plated by Republic ln.su:rance. SE·e Republic and risking a sanction 01· revealing the privi- Insurance, 856 S.W.2<1 at 163. We disagree. leged information) (approving HetUJrm., 549 Denton was seeking damages as a part of his S.W.2d at 449). claims. The first element is satisfied.

The theory underlying the offensive use line of cases is that a plaintiff who is seeking B. Outcome Determinative affinnative relief should not be permitted to The second prong of the Republic Insur- maintain the action, and at the same time ance test requires that ._the privileged infor- maint.'lin evidentiary privileges that protect mation sought must be such that, if believed from discovery out.come determinaU\le infor- by the factfinder, in all probability it would mation not otherwise available to the defen- have been outcome detenninative of the dant. This Court, in Re1mblic Insurance v. cause of action asserted. . . . The confiden- 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

RPI 0086 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? ing, the trial court narrowed the scope of the * What business relations and contracts questions it ordered Denton to answer to did you contend were the subject of inter- only those questions that pertained to the ference ... ? claims made by Denton against the Associa- * Have you seen a physician with respect 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 • What false and misleading information 163. did Jerry Moore give the Travis County District Attorney's office? C. Alternative Sources for Privileged Information • What false and misleading information do you contend that defendant Charlie Finally, the court of appeals also erred Adams gave the Travis County District when it used an all-or-nothing approach in Attorney's office? considering the third prong. This prong of 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.

RPI 0087 PUBLIC SAFETY OFFICERS ASS'N v. DENTON Tux. 763 Cite as 897 S.W.2d 757 (Tex. 1995) V. The 'Remedy the event the plaintiff continued to assert the (7] Because each prong of the offensive privilege. AB an example, the court. could use test is satisfied, we hold that the defen- prohibit the plaintiff from introducing evi- dants made the requisite showing of offensive dence on matters about which the plaintiff use such that they could properly ask the asserted his privilege. In any e'le.nt, the trial court to put Denton to the election. court can allow a civil jw"Y to maim a nega- Denton, having chosen not to waive his Fifth tive inference from the assertion of the privi- Amendment privilege, therefore exposed lege. Baxter v. Palmigiano, 425 U.S. 308, himself to remedial action by the court. The 318, 96 S.Ct. 1551, 1558, 47 L.E.d.2d 810 question remains, though, whether the sanc- (,1976). 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 necessary to satisfy due process when a trial Finally, the trial court should recognize court is faced with a plaintiff asserting the that it would have options to impose reme- privilege against self-incrimination. See dies in the future if any delay afforded the Wehli , ~08 F.2d at 1084. Together these plaintiff resulted in unanticipated cir extraor- cases provide a framework to determine dinary har~ships. In other words, if after an what optiona are available and what options extended abatement a defendant cannot pre- are appropriate. pare a defense, the trial court shculd deter- In determining what remedies are avail- mine at that point whether a dismissal is able, the court should consider a number of appropriate as the only way to fairly balance factors. First, the trial cowt should consider the plaintiffs and defendant's rigl:.ts. Id. at the nature of both the questions asked and 1089. 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- tion.-; to determine whether more narrow TransAmerican, 811 S.W.2d at 917. Also, to 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 should also consider whether the privilege is sequently, before dismissing a cause of ac- being asserted in a bona fide fear of self- tion, the trial cowt must be convinced that incrimination or merely to avoid discovery or less burdensome remedies would not be ef- to rreate delay. fective in preventing unfairness to a defen- 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- i11g. 6 8 F.2d at 1087. Or. the court could [111 On this record we conch;de that the proceed to trinl and conside1· whether any bial court exceeded its discretion by dismiss- remedies could be imposed during the tiial in ing Denton's lawsuit. We remand the case

RPI 0088 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 GONZALEZ, Justice, joined by that his assertion of the privilege was an GAMMAGE and OWEN, Justices offensive use. In my opinion, this Court concurring. similarly errs in subjecting Denton's asser- I concur with the Court's order remanding tion of a constitutional privilege to analysis this case to the trial court. Dismissing Den- as an offensive use and an abuse of discov- ton's suit violated his due process rights and ery, and by concluding that Denton's conduct impermissibly sanctioned Denton. I dis- was sanctionable. agree that TranaAmerican Natural, Gas The extended analysis of TranaAmerican Carp. v. Powel4 811 S.W.2d 913, 917 (Tex. and Republic Insurance attempts but fails to 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- which to rule in this case. Therefore, I lege so long as the assertion meets the defi- decline to join the Court's opinion. Our case nition of an offensive use. Because Denton law regarding sanctions for resisting discov- was entitJed to resist discovery by asserting ery orders should not be applied to this case, his constitutional freedom against self-in- 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 The Court today assumes that the offen- Cir. 1979). Under Wehling, a court balances sive use doctrine applies to an assertion of the hardships caused to the parties when one the privilege against self-incrimination, and of them asserts a constitutional privilege, but that an offensive use of a privilege is sanc- does not threaten sanctions to compel the tionable as an abuse of discovery. 897 party to waive his privilege. See id. at 1088.

S.W.2d 757, 76~2. The offensive use doc- The dangers of compelling Denton or any ttine bars a plaintiff who seeks affirmative prospective criminal defendant to testify are 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.

RPI 0089 OWENS-ILLINOIS, INC. v. ESTATE OF BURT Tmc. 765 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- tionate response. The trial court forced v. 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 privilege. Upon remand, the trial court will OWENS-ILLINOIS, INC., Fibreboard again make him choose between asserting his Corp., Keene Corp. and Pittsburgh- constitutional right to be silent at the cost of Corning Corp., Petitioners the right to prosecute his claims. See Wehl- v. ing, 608 F.2d at 1088 (citing Simmons v. United States, 390 U.S. 877, 394, 88 S.Ct. Erma Rae FRILEY, Individually and as 967, 976, 19 L.Ed.2d 1247 (1968), and Spe- Representative of the Estate of 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- tion that in some circumstances a trial comt Argued Nov. 16, 1994. 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, free to fashion whatever remedy is required Harris County, Ann Tyn·ell Cochran, J., en- 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- ment p1·ivilege hl good faith. AsserLing the lation of prejudgment interest. The Comt of privilege could be in bad faith, such as if Appeals, 870 $ .W.2d 556, found that intel'est Denton is asserting the privilege and at the accrued six months ft'om last day ·:>f expo:iure same time prolonging the time that criminal to asbestos, and further review was sought. proceedings are pending. I would allow The Supreme Court, Hightowe:r, J., held

RPI 0090 UNITED STATES v. LITTLE AL 133 Clttu712F.Zd 131 (1183) dice which would necessitate an order of severance. UNITED STATES of America, The other portion of defendants' attack Plaintiff-Appellee, on a verdict solely baaed, in their estima- v. tion, upon guilt by aaaociation is a challenge to the court's failure to hold a pretrial LITTLE AL, a/kla Texas Ranpr, Etc., Jamea hearing. United States v. James, et al., Defendants, 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- quire such a hearing. Rather, the case sim- No. 82-2300 ply recommends this procedure but provides SumJnary Calendar. 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 [16] After trial, the district court ruled forfeiture action, and (2) in absence of any that only certain statements by Punch exercise by claimant of right to come for- about Caceres were even entitled to a ward and show that facts constituting prob- 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 defend- 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

RPI 0091 134 712 FEDERAL REPORTER, 2d SERIES 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) A district court may stay a civil pro- 7. Forfeiturea ct=5 ceeding during pendency of a parallel crimi- In absence of any exercise by claimant nal proceeding. of property which Government sought to have forfeited under forfeiture laws of 3. Drup and Narcotics ~ 194 right to come forward and show that facts Affidavit of counsel of claimant of constituting probable cause on issue of ownership interest in vessels for which whether claimant's vessels were used or in- United States sought forfeiture seeking tended to be used for prohibited purposes continuance of forfeiture proceeding during did not actually exist, Government was en- pendency of individual's appeal from a titled to forfeiture of vessels. Tariff Act of criminal conviction that stemmed from his 1930, §§ 596, 615, as amended, 19 U.S.C.A. part in marijuana importation scheme §§ 1595a, 1615; Comprehensive Drug which resulted in arrest of individual and Abuse Prevention and Control Act of 1970, seizure of vessels amounted to nothing §§ 511, 511(b)(4), 21 U.S.C.A. §§ 881, more than blanket assertion of Fifth 881(b)(4); Contraband Seizure Aci, §§ 1, 2, Amendment privilege against compulsory 4, 49 U.S.C.A. §§ 781, 782, 784. self-incrimination in light of lack of expla- nation as to how filing of affidavit in re- sponse to forfeiture proceeding would have Michael A. Maness, Mark Vela, Houston, prejudiced criminal appeals of claimant, Tex., for claimant-appellant. and, as such, did not present type of circum- Frances H. Stacy, Jack Shepherd, Asst. stances or prejudice that required a stay. U.S. Attys., Houston, Tex., for plaintiff-ap- U.S.C.A. Const.Amend. 5; Fed.Rules Civ. pellee.

Proc.Rule 56(f), 28 U.S.C.A. Appeal from the United States District 4. Drup and Narcotics ct= 191 Court for the Southern District of Texas.

Under forfeiture statutes, property is subject to forfeiture if it was used in any Before REAVLEY, · GARWOOD and manner to facilitate sale or transportation JOLLY, Circuit Judges. of controJled substances. Tariff Act of REAVLEY, Circuit Judge: 1930, §§ 596, 615, as amended, 19 U.S.C.A.

§§ 1595a, 1615; Comprehensive Drug This case concerns the forfeiture of three Abuse Prevention and Control Act of 1970, vessels allegedly used in a scheme to import §§ 511, 511(bX4), 21 U.S.C.A. §§ 881, marijuana. Appellant Charles Pollard, who 881(b)(4); Contraband Seizure Act, §§ 1, 2, claims an ownership interest in the vessels, 4, 49 U.S.C.A. §§ 781, 782, 784. appeals from the entry of judgment in fa- vor of the government. He argues that the 5. Forfeiturea c11=>5 district court punished his exercise of the Any claimant of property sought to be privilege against self-incrimination by re- forfeited must establish either that proper- f using to continue the action during the ty is not subject to forfeiture, or that a pendency of Pollard's appeal from a crimi- defense to forfeiture applies. Tariff Act of nal conviction that stemmed from his part 1980, §§ 596, 615, as amended, 19 U.S.C.A. in the importation scheme. We affirm.

§§ 1595a, · 1615; Comprehensive Drug The factual background of the seizure of Abuse Prevention and Control Act of 1970, the three vessels appears in detail in United §§ 511, 511(b)(4), 21 U.S.C.A. §§ 881, States v. Scott, 678 F.2d 606 (5th Cir. 1982) 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

RPI 0092 UNITED STATES v. LITTLE AL Cite II 712 F.Zd 133 (1883) essential facts. The U.S. Coast Guard continuance bears the burden Of demon- boarded the unmanned fishing vessel LIT- strating the need for a continuance. As we 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 juana found on LITTLE AL. We affirmed of a ruling on the motion will enable him, 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 tions were awaiting appellate review, the that additional discovery will produce government filed a motion for summary needed, but unspecified facts. judgment in the forfeiture action and sup- SEC v. Spence & Green, 612 F.2d 896, 901 ported the motion with affidavits by coast (5th Cir.1980} (citations omitted), cert. de- 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- sufficient showing of inability to present tion which it was intended to be into a 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- (5th Cir. 1981). The party seeking the den under rule 56(f) of explaining either the

RPI 0093 136 712 FEDERAL REPORTER, 2d SERIES inability to respond or the benefit to be The govemment affidavits do depend on derived from postponement. inferences from these facts: (1) the LIT- The affidavit submitted by Pollard's TLE AL contained over fifteen tons of mar- counael amounts to nothing more than blan- ijuana; (2) coast guard surveillance estab- ket assertion of the privilege. No explana- lished that the TYRANT III had been tion appears concerning how the fiJing of alongside LITTLE AL early in the day and an affidavit would have prejudiced the that TYRANT III, in tum, had been along- criminal appeals of Pollard or his codefend- side DORADO; 1 (3) the fingerprints of two ants. No explanation appears concerning passengers on board TYRANT III were dis- what the affidavits could have discloeed. covered on nautical maps found on board No explanation appears concerning why af- LITTLE AL; (4) the coast guard had ob- fidavits would have been any more availa- served someone on board TYRANT III pass ble after termination of the criminal appeal. a roll of plastic wrap to someone on board 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 v. First Financial Gl'Oup of Texas, Inc., 659 [4, 5] If the government bore the bur- F.2d 660, 668 (5th Cir. 1981). Such a stay den of proving by a preponderance of the contemplates "special circumstances" and evidence that the vessels were used or in- the need to avoid "substantial and irrepara- tended to be used in importing the marijua- ble prejudice.'' Id. The very fact of a na, the judgment as to these vessels might parallel criminal proceeding, however, did be in question. The forfeiture statutes, not alone undercut Pollard's privilege however, place the government's burden at against self-incrimination, even though the a lower threshold. It must establish only pendency of the criminal action "forced him that reasonable grounds exist to believe to choose between preserving his privilege that the vessels were used or intended to be against self-incrimination and losing the used for prohibited purposes. 21 U.S.C.A. civil suit." Hoover v. Knight, 678 F.2d 578, § 881(bX4) (West 1981); 2 See United (6th Cir. 1982). This case hardly States v. 1964 Beechcraft Baron Aircraft, presents the type of circumstances or preju- 691 F.2d 725, 727 (6th Cir. 1982), cert. de- dice that require a stay. nied, - U.S. - , 103 S.Ct. 1893, 77 L.Ed.~ 283 (1988). The property is subject 2. Propriety of Summary Judgment to forfeiture if it was used "in any manner" Pollard argues, alternatively, that the to facilitate sale or transportation. Id. court erred by entering summary judgment Any claimant of the property must estab- even if its procedures did not infringe the lish either that the property is not subject privilege against self-incrimination. In Pol- to forfeiture, or that a defense to the for- lard's view, the government's affidavits do feiture applies. See United States v. $864,- not demonstrate that the vessels were used 960.00 in U.S. Cun-ency, 661 F.2d 319, 325 or intended to be used to smuggle marijua- (5th Cir. 1981). na. Pollard argues that the affidavits de- [6, 7] If unrebutted, a showing of proba- pend upon conflicting inferences that the ble cause alone will support a forfeiture. court could have drawn and that entry of See United States v. One 1975 Ford Pickup judgment contravened the principle of Truck, 568 F.2d 755, 766-67 (5th Cir. 1977) drawing all inferences favorable to the non- (upholding forfeiture baaed on unrebutted moving party. showing of probable cause). If Pollard had I. Under 19 U.S.C. i 1615(3), the contact §§ 781, 782; and 21 u.s.c. § 881. The p~ 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.

RPI 0094 CARTER v. HECKLER 137 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.

AFFIRMED. Reversed and remanded.

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- v. quires more than mere scintilla of evidence Margaret M. HECKLER, Secretary of in support of Secretary's findings, but may Health and Human Services, not substitute its judgment for that of Sec- Defendant-Appellee. retary. Social Security Act, § 005(g), 42 No. 83.-4231 U.S.C.A. § 405(g).

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- Disability benefits claimant brought ac- efits, Court of Appeals may only review tion to obtain review of a final decision of whether Secretary has applied proper legal

RPI 0095 178 v.s. 1 KALLOY T. BOG.Air 1489 CJce u" 1.a.1a CJDM> achieved :fully comport.. wf th the Jetter atill ensaaed in ·unlawful .activity, dl1- and the spirit of our constitutional tradi- closure of hi• name might furnish a link tions. in a chain of evidence auftl.cient to connect 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 William MALLOY, l'etUloner, 1. Cltmlnal Law c:=mo<t>, m<t> .... 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- No.110. tion i1 not whether conduct of state oftl· .Argued March 5, 1964. cers was shocldn1, but whether confes- 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, ~rtain questions in state gambUng in- 14. 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) Conn. 220, 187 A.2d 744, held that there One cannot be compelled to incrim- waa Jio error, and the prisoner brought inate himself. U.S.C.A.Const. Amend. 5. certiorart. The United States Supreme Court, Mr. Justice Brennan, held that the «. OrlmlDal Law ~193(1) Fifth Amendment's exception from com- Wltuue. C=:JSOO pulsory eelf-fncriminatfon Ja protected b7 American system of criminal pros- the · Fourteenth Amendment arainst ecution i11 accuaatoriaJ, not inquialtorial, 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 prisoner, who had previously been con- be compelled In an7 criminal cue to be 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 one who ran the pool-selling operation, ·f. CJtmlnal Law c:=mct> 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

RPI 0096 1490 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., 7. Constltutlonal Law ct:=268 for respondent.

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 8. Wltneuea ~SCIO Fourteenth Amendment. Twining v. 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 9. Wlbleues '9=!9'1(7) gambling raid in 1959 by Hartford, The Filth Amendment applies to Connecticut, police. He pleaded guilty witness in statutory inquiry as well as to the crime of pool selling, a misde- to defendant in criminal prosecution. meanor, and was sentenced to one year U .S.C.A.Consl Amend. 5. in jai\ and fined $600. The sentence was 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 tion 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, CUH that •aeh eomm.nt fQ a federal 127- 129, 81 S.Ot. OM, 960-001, 6 L.EcL 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

RPI 0097 '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, tfon. We granted certiorari. S7S U.S. that "It is possible that some of the per- 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, 840. 83 s.ot. 102, m, o L.E<l.2d 700, , a.ct. 111, 122. 28 L.Ed. m <Filth (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 llSIS, 1158-169, 12 S.Ot. 115-0, llM', 81! L.Ed. a.Ct.. nt 454 (Sixth .Alllondmcnt Jury i 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. IS07; TwllllDs .,, New Je1'3oy, 1upra, 211 L.EIJ. 078 (Seventh Amendm~t jury trial); In ro Kemmler, rupra; Mc· i I U.S. p. 00, 29 S.Ot. p, 18. Seo Splc11 v. Dllnola, 123 U.S. 181, 8 S.Ot. 21, 22, Etvnlno v. Brueh, auprn; O'S-oil v. Vor· n1oot, 144 U.S. 323, 882, 12 S.Ot. 003, 31 L.Ed. 80. Declolon1 that p11rticuJar 697, 80 L.Ed. 00 (El&:!Jth Amendment i\lnrantees woro not 1111toiu11rded 11gnln11t prohlbltloo ng11lo1t cruel a.nd wiuaual 11tnto nctJon bJ tho Prhllege1 a.nil Im· punishment). , mnnitloa Olaneo or other provl1lon ot the 8. In Barron, for Uao ot Tieninn v, }fnyor 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· America v. Ohook, 259 U.S. ~o. IW3, mont, Chief JustJco Mnrabllll, epo11kln1r S.Ot. IS16, IS22 (Jl'iret Amlllldmeut) ; for the Oonrt, held thnt this right w1111 Proe.eer Y. Illlnol11, llO U.S. 262, 20!5, 6 not aecurod agnlnat atate nctlon by tho S.Ot. MO, IS84, 29 L.Ed. Ol!S (Soconcl ll'lfth Amondrnont'11 provision: "Nor 1bnll Amendment): WeckB v. United St1tto11, private proporey be taken for public nae, ~ U.S. 888, 898, 34 S.Ot. 841, 848, without j1111t <:omponsntlon."

RPI 0098 1492 H SUP:&nm OOURT BBPORTER 378 v.s. 6 The Court has not hesitated to re-ez- ftcfals." In 1961, however, the amine past decisions according the Four· teenth Amendment a less central role fn • Court the preservation of basic liberties than held that in the light of later decisions,• that which was contemplated b7 its it was taken a11 settled that "* • • Framers when they added the Amend· the Fourth Amendment's riarbt of pri- ment to our constitutional scheme. vacy has been declared enforceable Thus, although the Court aa late as 1922 arainst the States through the Due said that "neither the Fourteenth Process CJause of the Fourteenth Amendment nor any other provision of * * *." Mapp v; Ohio, 867 U.S. 648, the Constitution of the United States 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081. imp08ea 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- Prudential Iru1. Co. of America v. Cheek, capital o:trense, "appointment of counsel 259 U.S. 530, 548, 42 S.Ct. 516, 522, 66 is not a fundamental right," Betts v. L.Ed. 1044, three yeara later Gitlow v. Brady, 816 U.S. 465, 471, 62 S.Ct. 1252, New York, . 268 U.S. 652, 45 S.Ct. 625, 1261, 86 L.Ed. 1595; cf. Powell v. Ala- 69 L.Ed. 1138, initiated a series of de· bama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. ciaions which today hold immune from 168, only last Term this decision was state· invasion every First Amendment re-examined and it was held that pro- protection for the cherished rights of vision of coun11eJ in all criminal cases mind and splrlt-the f reedoms of speech, was ''a fundamental right, essential to a press, religion, assembly, association, fair trial," and thus was made obJigatory and petition for redress of grievances.• on the States by the Fourteenth Amend- 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, 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 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 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 4. E . g., Gitlow v. New Yo rk, 268 U.S. 652, 0 L.Ed.2d 001 (nesoclntfon) : N. A. A.. 0.

606, 41i S.Ot. 021>, 020 (11pccch Md P. v. Button, 811 U.S. 415, 83 S.Ct. 828, prceo); Lovell " · City of Orllfw, 303 9 L.llld.2d 4-05 (auoclation nnd epeech); U.S. 444, 4150, ISS S.Ct. GOO, 068, S2 L;Ed, :Brotherhood ot Railroad Trainmen T.

949 (epcceh nnd prces); New York Titno" Virclnia ex rel. Virrinia State Bar, 3T7 Co. v. S ulllvrin, 876 U.S. 2~, 811 S.Ct. 710, U.S. 1, 84 s.ot. 1113, 12 L.Ed.2d 89 11 L.Ed.2d 686 (speech and preBB): (naaoclatlon).

Staub v. Oley of .Baxley, 800 U .S. SlS, 821, 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, 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, 008, 84 L.Ed. 1218 (religion); De J'onge I. See also Robinaon T. Calitornio, 310 U.S. v. Oregon, 299 .U.S. 81'S3, SM, CS7 S.Ot Z5, 000, 666, 82 S.Ot. 1417, wWch, deepfte 2159, 81 L.Ed. 278 (aeeembb} l Shelton la. re Kemmler, aapra; McElvaine T.

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.

RPI 0099 8'18 v.s. 8 JIALLOY T. HOGAN 1493 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 [2, 3] Brown v. Mieslaaippi; 297 U.S. 11uspect to call his wJte until he eon-· 278, 06 8.Ct. 46le 80 :L.Ed. 681, was tlie fessed. R&111.es v. Washington, 878 U.S. first case in which the Court held that 608, 88 S.~. 1886, 10 L.Ed.2d 518. the Due ProceBS Clause prohibited the States from using the :.ccused's coerced [ 4-7] The marked shift to the fed- eral standard in state cases beran wlth ~nfessions against. him! .The Court in . J Lisenba v. California, 814 U.S. 219, 62 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- same standard ·applied ! in federal prose- ington, 878 u.s.·503. The shift reflects -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, trolled by that portion of the Fifth 81 S.Ct. 785, '139; GL.Ed.2d 760. Govern- 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- aase to be a witness agtinst himself.' " cured, uJI may not ·by coercion prove a Id., 168 U;S. at 642, .18 .SrCt. at 187. Un- charge against an accused out of his own der this test, the cone~ftutional inquirr mouth. Since the Fourteenth Amend- fs not whether the condr-et of state of- ment prohibits thei States from inducing 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. or implied promises, ho\J.ever slight, nor Washinrton, supra, it follows .a fortiori "by the exertion of ahj improper in- that it also forbids the Stat.es to resort ftuence. * * * " Id~ ~68 U.S. at 542- to imprisonment, as here, to compel hfin 6,3, 18 S.Ct. at 186-18~, see also Hardy to answer questions that might incrim- 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- United States, 848 U.S. :14-7, 160, '16 S. ment-the right of a person to nmain .Ct. 194, 196, 99 L.Ed. 192~ In other silent anless he chooses to speak in the ·words the person mus~ not have been unfettered exercise of hia own wiU, and

• RPI 0100 1494 878 v.s.• to 1uffer 220 penalty, aa held in Twi inl', the freedom from unconacionable in· tor 1ach 1ilenee. vuions of privaq and the freedom 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 States. We relied upon the rreat case of In thus returnhlg to the Boyd view that Boyd v. United States, 116 U.S. 616, 6 the privilege is one of the "principles of S.Ct. 624, 29 L.Ed. 746, decided in 1886, a free rovernment," 116 U.S., at 632, 6 which, considering the Fourth and Fifth S.Ct., at 583,'I' Mapp necessarily repudiat- Amendments as running "almost into ed the Twining concept of the privilege each other," id., 116 U.S., at 680, 6 S.Ct., aa a mere rule of evidence ''beat defend- at 582, held ·that "Breaking into a house ed not as an unchanireable principle of and opening boxes and drawers are ell'· universal justice, but ae a law proved by cumstancea of aggravation; but any experience to be expedient." 211 U.S., forcible and compulsory extortion of a at 118, 29 S.ct., at 2~. 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 • the condemnation of [those COD· Amendments] • • *·" 116 U.S., at fessions, ,.the accuaatorJal system hu 680, 6 S.Ct., at 1582. We said in Mapp: become a fundamental part ol the fabric "We ftnd that, u to the Federal of our society and, hence, is enlorceab)e 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- 7. Boyd had uld of the prlv.llego, " • • mmdtJ. It hu beell a re!ectfon of our llDJ' compultoey, dl1cover1 b7 extortlnr eommon coallainee, a ambol of the the pnrt;r'• oat.b • • • to conYlct hlm .AIUerlca .tdch 1til'I our heartl." The of crlmo • • • fa contrar1 to the Fifth Amendment 'l'oda1 18 (19&1). prl.ociplet of a. free IOYllnuDftllt. It 1• abhorrent to tho lu1ttnct.1 of an Engllah· e. The brief etatu further: llUUl; lt ii 1Lb!torrent to tho fn.ttf.oatl or "Undtrl.Jinir th11 d1cl1lou ex-cl1Jdinc an .Amerl.Cllll. It ma1 eult the pnrpo11111 coerced confession• la the impUclt as· of doepotic power, but It cannot abide wmptlon thnt an &Cl!U8td 11 privUe1ed 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•

RPI 0101 m l1.B. 19 MALLOY"· KOGAN 1495 Clte .. 8' 8.Ct. UllP (1*) -eral privilege to a 41Vl~eas h1 8 · state in· would be fncon&'l'UOUS to have different 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 fn 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 ness in a etatutory inquiry and not a the Sixth Amendment, Gideon v. Wain· 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- .ards that protect those personal rights quiries. Counselman v. Hitchcock, 142 against federal encroachment. · In the U.S. 547, 12 S.Ct. 196, 85 L.Ed. 1110; -coerced confesaion cases, involving the McC&rthy v. Arndstefn, 266 U.S. 34, .45 -policies of the privilege itself, there baa S.CL 16, 69 L.Jild. 168; Hoffman v. Unit;.. been no augg~stion that a confession ed States, 841 U.S. 479, '11 S.Ct. 814, 95 -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 , II themselves aupport a conviction guaran· • • • but likewise embraces 'tees of the Bill of Rights," Ohio ez: rel. those which would fumsh a link Eaton v. PriceJ 864 U.S. 268, 275, 80 S. in the chain of evidence needed to Ct. 14'6S, i470, 1 4 L.Ed.2d 1708 (disilent- prosecute. • • * (IJf the witness, ing -opinion)~ itf Cohen v. Hurley, SG6 upon interposing his claim, were re· U.S. 117, 81 S;ct. 954; and .Adamson v. quired to prove the hazard • •. • ·California, supra. suggest sucb . an appli- he would be· compelled to surrender . cation of the ' privilege again.et eelf- the very protection which the privi- incrimination; j that suggestion cannot lege is deaianed to guarantee. To survive recognition of the degree to sustain the privilege, it need only be · which the Twtning ·view of the privi- evident frorri · the implications of 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· .authorities. Tfr!urphy v.· Waterfront tion ofwhy it cannot be answered • ~mm'n, 878 _ls.

52, 84 s.Ct. 1594~ It might be dangerous because injuri.. tlre'7 free to ei>ll\pcl nn 11ceu1id to ln· tea~, rerardlee1 of where rach compul· crlminate hlmielf before A graud jury, 1lon occura, would not only clarit,r the or at the trlaJ, but cannot do 10 In the priDclplea Involved In coDfea1lon ca11e.a, pollce etntlou. Frank recognition of the but would 11111l11t the State. alp.UicantJ1 tact that the Due ProceH OJ11u1e pro· in their elfort11 to comply with the llmit.a· hiblt1 the Statea trom enforclnc their tion• placed upon them b.r the Fourteenth. .la1'1 b7 tompellill~ the aecuaed to con• Amendment."

RPI 0102 1496 84 SUPREME 0011BT B.JIPOBTEB 378 u.s. 11 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 cannot po11Bi6l11 have such tendency' five questions. .A& for the sixth ques- to incriminate.'' 841 U.S., at 488, 71 tion, the court held that petitionel"'s fail- S.Ct., at 819. ure to explain how a revelation of hia. 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>- ing his arrest and conviction for pool parent that petitioner might apprehend selling in late 1959. The questions whfeh that if this person were still engaged in petitioner refused to answer may be sum- unlawful activity, disclosure of his name marized u foJJows: (1) for whom did mirht furnish a link in a chain of evi- be work on September 11, 1959; (2) dence sufficient to connect the petitioner 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- and paid his bondsman; ( 4) who paid cerning whether petitioner knew John 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 arrested; and (6) did he know John been apparent to the referee that Ber- 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 (0.A.3d Cir.), clted ·with approval In app1'04ched and achieved b1 obacur·e 11nd Em.spoil "· United Statea, 349 U.S. 190, unlikely lin.M of inquiry." 198 F .2c1, at 'lCS S.Ct. 687, 99 L.Ed. 997, tbe Cou'l't 4*-441.

RPI 0103 . ~78 v.s. 16 KAI.I.OT y, BOGAX 1497 ate u" 11.a. uao (JM) goti .was au1pected l>1 :the State t.o be Believinr that the reasoning behind involved in ·some way ·in the subject mat- the Court'• decision carries e:itremely ter of the inveatlsatiou. An afllrmative mischievous, if not danrerous, eonse- answer to the question , quences for our federal syatein in the realm of criminal "ml1ht well have 11 either connected petitioner wlth a more Jaw enforeement, I recent orlme, or at Jeaat have operated must dissent. The importance of the 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 of the queatlons, lt was "evident from I. . 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 '197. a short.hand directive to thfa Court t.o pick and choose among the provisions of llilr• .Justice HARLAN, whom :Mr• .Jus- the first eleht Amendments and apply tice CLARK joins, dis8enting• those chosen, freighted 'With their entire .. 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- 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 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 S.Ct.-94\11

ii RPI 0104 1498 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. 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. ftrmed that "the Fifth Amendment's The Court suggests that this consist- privilege against self-incrimination," ent line of authority has been under- ante, p. 1491, was not applicable against mined by the concurrent development 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 .S tate 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 Twining, 111pra, until now the primary rev. 1961), I 22tS.2, the efect Qt including 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.r eate 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.

RPI 0105 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 confeuion in a state crim- judge the admission of the c0nfessions 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, 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 · priviJege agaimt self-incrimination g., id., 822 U.S. at ll>O, not~ 5, 64 S.Ct. at ia not here involved. · The compul- 924, and "secret inquisitorial practices," . 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 860 U.S. 815, 79 S.Ct. 1202; Lynumn v. atort a confeaaion is a different matter." 2 29'1 U.S•• at 285, 16 S.Ct. Dlinois, 872 U.S. 628, 83 S.Ct. 917; and at 464. (Emphasis supplied.) Haynes v. Washington, 873 U.S. 608, SS 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, .ante pp. 1498-1494, Jn which waa de- quisitorial system," Id., 865 U.S. at 641, veloped the full sweep of the constitution- 81 S.Ct. at 789, it Is clear that the Court al prohibition against the use of coerced was concerned only with the problem ot confessions at state trials, was there any- coerced confe88lons, see ibid.: the opin- thing to suggest that the Fifth Amend- ion includes nothing to support the 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 court la properly hero tor revlow, under to have ble guilt determined." lfo.Umld. a clnim thnt a rlrbt protected by the supra, 824 U.S. at 416, 6IS S.Ot. 11t 788 Fourteenth Amendment beta been de· (opinion of Frnnkfurtor, J .).

RPI 0106 1500 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· In Adamson, supra, the Court made it atitutionally seized, see Wolf v. Colorado, explicit that it did not regard the in- sss u.s. 26, 28, 69 s.ct. 1359, 1861, may creasingly strict standard for determin- not be used in a state criminal trial fur· ing the admissibility at trial of an out- nishes no "fortification," aee ante, p. of-eourt confeasion as undermining the 1(94, for today's decision. The very pas- holding of Twlninr. After stating that sage from the Mapp opinion which the "the due proce88 clause does not protect, Court quotes, ante, p. 1494 makes explicit b;y virtue of ita mere existence the ac- the distinct bases of the exclusionary cused's freedom from giving testimony rule ae applied in federal and atatf1 by compulsion in state trials that is se- courts: 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, was decided after all but a few of the 81 s.ct., at 1692 (footnote omitted). 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 automatic 'engrafting of federal law con- III. 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,

RPI 0107 878 v.s. 18 MALLOY T. JIOGA1' 1501 Cit. .. 8' IJ.Ct.1481> (JIMN) nient's privilege aralnst aelf·incrimina· Bill ot Ril'hta mlrht prov.Ide historical tion intQ the . Fourteenth Amendment. evidence that the rirht involved was tra,..

Approaching "1te queation JQore broadly, clitionalJy rerarded as fundamental, in· it is equally plain that the line of cases cJuafon of the right in due process was exemplifted . ~Y Palko v. Connecticut, otherwise entirely Independent of the 111pra. fn which this Court haa reconaid· firat eirht Amendments: ered the requirements which the Due "* * * [I]t is posaible that ,Process .Clause .fmpoaes on the States in the light 'of current 1tandards, furnishes some of the personal rights safe· guarded by the first eight Amend· no reneral theoretical framework for what the Court does today. ments aiafnst national . action may alao be safeguarded against state ac- The view of the Due Precess Clause of tion, because a denial of them would the Fourleenth Amendment which this be a denial _of due process of law.

Court ha.s consistently accepted and • . • • If this ·is so, it ia not be· which hu . "thus far prevailed,'' ante, cause tkoss right.a are enumtrated in p • .1491, is that its requirements are as the first Bight Amendments, bNt be- old as a principle of civilized govern· C4"8e the11 are of such a. nature that ment," Munn v. Illinois, 94 U.S. 118, 128, they cire i:racluded in the eot&Ception a4 L.Ed. 77; the speci1lc a11pUcations of of dtU f)roce11B of law." Twinini'; which muat be ascertained "by tho grad· -supra, 211 U.S. at 99, 29 S.Ct. at 19. ual process of judicial Inclusion and ex· (Emphasis; supplied.) 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. process requires "observance of those garded as a classic expression of thia 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, 667, 28 L.Ed. 569. See Hurtado v. Cali· criminate oneself) which were "not of fomia, 110 U.S. 516, 537, 4 S.Ct. 111, 121. the very essence of a schenie of ordered liberty,'; fd., 802 U.S. at 826, 58 S.Ct. at "This ·court has never attempted 162, he said : . . 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 clu&ion of a particular provision in the the independence of the Due Process

RPI 0108 1602 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 fn a capital case applies to the States in any aspect at all. were held to have been condemned unlawfully when in truth, thourh If one attends to those areas to which not in form, they were refused the the Court points, ante, p. 1494, in which aid of. counsel. Powell v. Alabama, the prohibitions arainst the state and supra, 287 U.S. 45, at paJ'eS 67, 68, federal governments have moved in ss s.ct. &s, es, 11 L.Ed. 1iss, 84 parallel track!, the cases in tact reveal A.L.R. 527. The decision did not again that the Court's usual· approach turn upon the fact that the benefit has been to ground the . prohibitions -of counsel would have been ruaran· against state action squarely on due teed to the defendants by the provl· process, without intermediate reliance on elons of the Sixth Amendment if any of the 1lrat elBht Amendments. AJ. they bad been prosecuted in a federal though more recently the Court has re- eourt. The decision turned upon the ferred to the First Amendment to de- 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 It is apparent that Mr. Justice Car- route. In Gitlow v. New York. odozo's metaphor of "absorption" was not 268 U.S. 662, 666, 45 S.Ct. 626, 680, for intended to suggest the transplantation example, the Court said: 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 Seen in proper perspective, therefore. States." 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

RPI 0109 17.8 v.s. ~ lrtALLOT T. EOG.Alf 1503 Cite 118' Lct.18 (1*) · interests. . ·Mr. JustJce Holmes. Jn dis- . The coercecJ confession and search and eent, said: eeisure ea.sea have a1read7 been consfd· 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 the sweeping language that governs right to counsel in state criminal proceed- or ought' to govern the laws of the ings, which this Court assured in Gideon United States." Id., 268 U.S. nt 672, v. Wainwright, 872 U.S. 885, 88 S.Ct. 46 S.Ct. at 6S2. 792, does no~ depend on the Sixth Amend- ment. In Betta v. Brady, 816 U.S. 465, Chief Justice Hughes, in De Jonge v. 462, 62 s.ct. 1252, 1256, this Court bad 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 mental. As this Court said in Unit 4 of Rights. Its application is leas a. 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- abridrment .. ly guarantees that right against

by Congress. · But ex- · nial." (Footnote omitted.) rt 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· plea of liberty and justice which lie reached in Betts, that the appointment at the base of all civil and political of counsel for an indigent criminal de- institutions-principles 'Which the fend~nt toaa essential to the conduct of Fourteenth Amendment embodies Jn a fair trial, and was therefore part of the general terms of its due process due process. 372 p.s., at 842-845, ss 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

RPI 0110 1004 H sunmm OOU'lt! BBPOP.TEB 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 "incorporation" in lll&tches. If, how· States doctrines developed in the context 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 which derive from fundamental princi~ may face. If the power of the States to 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 juet as illogical to incorporate the provi- resporuiibility in this area to the Federal 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- The Court's undiscriminating ap- ment safeguards by bringing us closer proach to the Due Process Clause car· to the monolithic society which our fed- ries serious fmplicatfona for the aound eralism rejects. Equally dangerous to working of our federal system in the field our liberties ts the alternative of water-· <>f criminal law. ing down protections again111t the Federal 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- • does not follow from the fact ine fundamental 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

RPI 0111 :v.s. 81 MALLOY T. KOGAN · 1505 ate u M I.a. 1'1111 (JH4) adoption of • ·• • [the Connecticut] But lt would be to convert a salutary conatltution in 1818" had upheld a privi- protection Into a means of abuse if lege to refuse to answer incrfminatfnl' 1t were to be held that a mere lmari· queetions. 150 Conn. 220, 228, 18'1 A.2d naey possibility of danger, however 744, 746. StaUnir that federal eases remote and improbable, was suftl- treatµlg the Fifth Am~dment privJlege cient to justify the withholding of bad "persuuive ·force" in 'tnterpretin1 evidence eaeential to the ends of jus· its own eonatf tutfonal provision, and cit· tfce.' Cockburn, C. J ., in Regina v. fnl' Hoffman v. United States, 841 U.S. . Boyes, 1 B. & S. 811, 880 • • *.''

479, 71 S.Ct. 814~ Jn particular, the Su· McCarthy v. Clancy, 110 Conn. 482, preme Court of Errors described the re· 488-489, 148 A. 551, 555. 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 "(A] witriess * • • has the question whether be knew John Bergoti. right to refuse to answer any ques· The court said : · 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 contingency, so improbable that 110 The remaining questions are summa· reasonable man would sutler it to rized in the majority's opinion, ante, inftuence })is conduct. We think that p. 1496. All of them deal with the clr- a merely remote and naked poasibll· cumatances surrounding the petitloner's ity, out of the ordinary course of conviction on a gambling charge in 1959. law ·and such u no reasonable man ThA court declined to decide would be afrected by, IO •• "whether, 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 s.et.......s

RPI 0112 1506 378 v.s. 81 c1afm that the petitioneJ"°" prior eonvic· with reference to his relationship 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· tain, but declined to rest its decision on 'The other five questions, treated at that basis. · Id., 160 Conn., at 227-229, length in the Connecticut court's opinion, 187 A.2d, at 748-749. The court conclud- get ·equally short shrift .from this Court; ed, however, that the running of the it takea the majority, unfamiliar with statute of limitations on misdemeanors Connecticut Jaw and far removed from committed in 1959 and the absence of any the proceedings below, only a dozen lines indication that Malloy had engaged in to ~nsider the questions and conclude any crime other than a milidemeanor re· that they were incrimi.nating: moved all allPearance of danger of in· crimination from the questions propound· "The interrogatf on was a part of a wide-ranging inquiry iiito crime, in- ed concerning the petitioner's. activities cluding gambling, in Hartford. It in 1959~ The court summarized this con- clusion as follows : was admitted on behalf of the ·state at oral argument-and indeed it is "In aU this. Malloy confounds vague obvious from the questions them- and improbable possibiUties of pros- selves-that the State desired to ecution with reasonably appreciable elicit from the petitioner the identity ones. Under claims like his, it would of the person who ran the pool-sell- always be possible to work out some ing. operation in connection with finespun and improbable theory from which he had been arreated Jn 1959. which an outside chance of prosecu- It was apparent that petitioner tion could be envisioned. Such might apprehend that if this person claima are not enough to support a were still engaged in unlawful ac- claim of privilege, at least where, as tivity, disclosure of his name might here, a witness suggests no rational furnish a link in a chain of evidence suffi~ient to connect the petitioner explanation of his fears of incrimi- nation, and the questions themselves. with a more recent crime for which under all the circumstances, suggest h.e might still be prosecuted." none." I~., 150 Conn., at 230-281, (Footnote omitted.) Ante. p. 1496. 187 A.2d, at 750. I do not unde:retand how anyone could Peremptorily rejecting all of the care- read the opinion of the Connecticut court ful analysis of the Connecticut court, this and conclude that the state Jaw which Court crea~s its own "finespun and im- was the basis of its decision or the deci· probable theory" about how these ques- sion itself was lacking in fundamental tions might have incriminated the peti· fairness. The truth of the matter fa that tioner. With respect to his acquaintance under ·any standard-state or federal- with Berg~ti, this Court says only: the commitment for contempt was proper.

Indeed, a8 indicated above. there is every 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 31 quoted approvingly in the majority•s 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- more recent crime, or at leaat have erence to a federal standard is, to put it operated as a waiver of his privilege bluntly, simply an excuse for the Court to

RPI 0113 878 v.s. 8S MALLOY T. HOGAN' . 1507 Cite 11 IN 8.Ct. 141111 (19M) substitute its own euperftciar assessment The Queen v. Boyes, 1 B. AS. 811, 829-:- of the facts and state law;for the careful 880 (1861) : Mason v. United States, 244 and better informed conclusions of the U.S. 862, 87 S.Ct. 621, 61L.Ed.1198. I state court. No one who scana the two do not think today's decision permita opinions with an objec~ive eye wil~ I_ auch a det.ermiDAtion. 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 STEWART 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· in this cnse. While purporting to apply ger' as to render hie privilege nugatory. 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 i, crlminntion that the Connecticut courts the claim of privilege. In determining 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 without more, accepted. With deference; the circumstances ot the case, his lmowl- 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 when nn an.swer sought is incriminating. is demanded from the witness. Hoffman 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- ture crimes. Smith v. United States. of them be entirely disregarded. • • * M When a question fa propounded, ft 1Je..

837 longs to the court to consider and to de· U.S. 137, 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 . 86 591, 605, 16 S.Ct. 64'1, 8150, 40 L. Ed. 819. It the general -duty to testify re Willie, 26 when subpoenaed fa to- remain and the Fed.Cas.No.14,692e, at 39--40. I would privilege ls to be retained M a protec- not only retain this rule but apply it tion against compelled incriminating an- in its present form. Under this test., swers, the trial judge must be permitted Malloy's refusals to answer some, it not to make a meaninlfful determination of all, of the queetions put to him wero when answers tend to incriminate. See clearl1 not privileged.

RPI 0114 1508 84 811.PBEME OOVBT BEPOBTER 878 V.B. ~5 n. on November 15, 1959, who furnished· In November 1959, Malloy was ar- the money to pay your ftne? 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 • • * • • * Do you know John Bergoti 1 was placed on probation for two years.

ID, earJy 1961, Malloy was summoned to "Q. * . • • • 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 ground that it would tend to incriminate These were not wholly innocuoua ques- him: tions on their face, but they clearly were 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· • "Q. • . • * After your arrest on Sep- tember 11, 1959, and the same arrest * cut courts were unable to llnd any state statute which Malloy's gambling activi- ties in 1969 in Hartford, the subject of the inquiry, could haye violated and Mal- for which you were convicted on loy has not yet pointed to one. Beyond November 15, 1959, who selected your this Malloy declined to offer any ex- bondsman? planation or hint at how the answers aourht could have incriminated him. In • • • • • • these circumstances it is wholly specula- "Q. As a result of your arrest on tive to find that the queations ·a bout September 11, 1959, and the same others, not MaJloy, posed a substantial arrest for which you were convicted hazard of criminaJ prosecution to Malloy.

RPI 0115 118 v.s. 108 1509 Cit. u 8' 8,Ct. ll!OO (J.9N) The0retlcally, under 1ome unknown b11t Judre passing on the clafm tO understand 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· awering distasteful questions. Adherence to the federal standard of incrimination stated In Mason and Hott- The Court finds that the questions were · incriminating because petitioner man, supra, in form onl;y, while ·i ts con- 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 " irenerall:r but peculiarl)" inappropriate_in thi11 case. Unlike cases relied OD by the r,.

I' ,, Court, like Holfman v. United States, supra, where the claimant wu known to be involved in rackets in the area, which lt were the subject of the inquiry, and had Ii a "broadly published police record.'' Mal- it loy had no record u a felon. He had. ..,. v ... 10IJ !1 engaged once in an unlawful activity- Nick Alford AGUILAR, PetHloner, ~1 selling-a misdemeanor and was ..... riven a suepended sentence. He had STA.TE 01' TEXAS. 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 in these questions inclicat.es petitioner Dedded .Tune 15, 1964. sa waa called beeauae he wu suspected of criminal activities after 19'59. There is Defendant was convicted, fn the ~o auppoft ,t all in tbt~ record for the Criminal District Court, Hanis Count7, cynical assumption that he had commit- Tezu, of illegal possession of heroin, and ted criminal acts after his release in the Tu:aa Court of Criminal Appeals, 1'12 1960. ' Tu.Cr.R. 629, 862 S.W.2d 111. aftlrmed.

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 'a re held that -afftdavit for search warrant :neceaaarlzy BUB\)ect criminala, sustaining ma:r be baaed on hearsay informatfon and the privilege In these circumstances is need not reflect direct personal observa- unwarranted, for Malloy placed no re- tions ot am.ant but magistrate must be 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

RPI 0116 1368 628 FEDERAL REPORTER, 2d SERIF.s 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 III. and the regulations. [6] The plaintiffs also ask this court to Affirmed. 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- ment under Fed.R.Civ.P. 56. Fed.R.Civ.P. SECURITIES AND EXCHANGE 52(a) provides: "[f]indings of fact and con- COMMISSION, clusions of law are unnecessary on decisions v. 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. D.C. 275, 179 F.2d 430 (1949), cert. denied, United State., Intervenor. 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 statute, regulations, and the preamble to Argued en bane April 15, 1980. 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 accounting for, vending machine Income from lenge the percentage disbursements of vending 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 cal delegation of the authority granted to the direct competltJon with the blind vending facili- 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 § 107d-3(b)(2). Plaintiffs also seem to chat- u.s.c. § 107d-3(b)(l).

RPI 0117 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- covery. 5. Securities Regulation ~86 Affirmed. Enforcing Securities and F~xchange 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 I. Federal Courts c8==> 1150 payments" would not breach alleg,id agree- Constitution does not ordinarily require ment of confidentiality where the SEC, stay of civil proceedings pending outcome throughout "voluntary disclosure program," of criminal proceedings; · nevertheless, court reserved its rights to pursue formal investi- may decide in its discretion to stay civil gation and issue subpoenas. 26 U.S.C.A. proceedings, postpone civil discovery, or im- (l.R.C. 1954) § 7602; Securities Exchange pose protective orders and conditions when Act of 1934, § 2l(a) as amended 15 U.S.C.A. interests of justice seem to require such § 78u(a); Securities Act of 1988, § 19(b), 15 action. U.S.C.A.Const. Ame11;d. 5. U.S.C.A. § 77s(b).

2. Administrative Law and Procedure 6. Federal Civil Procedure *"> 1272 cS=o:UI Discovery may be available in some Parallel investigations by Justice De- subpoena enforcement proceedings where partment and other agencies should not be circumstances indicate that further infor- blocked in absence of "special circumstanc- mation is necessary for courts to discharge es" in which nature of the proceedings de- their duties; however, district court must monstrably prejudices substantial rights of be cautious in granting such discovery investigated party or of government. U.S. right; lest they transform subpoena en- 0.A.Const. A~end. 5. forcement proceedings into exhaustive in- 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

RPI 0118 1370 628 FEDERAL REPORTER, 2d SERIES amended 16 U.S.C.A. § 78u(a); Securities Irvin B. Nathan, Deputy Asst. Atty. Gen., Act of 1938, § 19(b), 15 U.S.C.A. § 77s(b). Washington, D. C., with whom Phillip B.

7. Securities Replation $=>86 Heymann, Asst. Atty. Gen., Washington, D.

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 Exchange Act of 1984, § 21(a) as amended Before WRIGHT, Chief Judge, and U.S.C.A. § 78u(a); Securities Act of McGOWAN, TAMM, ROBINSON, Mac· 1983, § 19(b), 15 U.S.C.A. § 77s(b). KINNON, ROBB, WILKEY, WALD, 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 Individual corporate officer was not en- from a decision of the District Court 1 re- 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-

RPI 0119 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 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 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- I. BACKGROUND courage corporations to conduct investiga- tions of their past conduct and make appro- A. Origin of the Investigations priate disclosures without direct SEC coer- Illegal and questionable corporate pay- cion.6 Participation in the Voluntary Dis- ments surfaced as a major public problem closure Program would not insulate a corpo- in late 1973, when several major scandals ration from an SEC enforcement action, but implicated prominent American corpora- the Commission would be less likely to exer- tions in improper use of corporate funds to cise its discretion to initiate enforcement influence government officials in the Unit- actions against participants.6 The most im- ed States and foreign countries. The expo- portant elements of the Voluntary Disclo- sure of these activities disrupted public sure Program were (1) an independent com- faith in the integrity of our political system mittee of the corporation would conduct a and eroded international trust in the legiti- thorough investigation into q_µestionable macy of American corporate operations foreign and domestic payments made by the 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, 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 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 F.2d--3 J

RPI 0120 1372 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; B. The Dresser Investigations 2. may have made false and misleading On January 27, 1976 an attorney and statements concerning the existence other representatives of Dresser met with of and circumstances surrounding members of the SEC staff to discuss a material obligations of Dresser to cer- proposed filing. At the meeting Dresser tain foreign governments and to oth- agreed to conduct an internal inquiry into er entities; and 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 questionable payment not reported in the Dresser's proxy soliciting materials, reports, earlier reports. JA 109-113. The reports and statements may have been misleading concerned Dresser's foreign activities after with respect to the potential risks involved November 1, 1973. All disclosures were in in its conduct of business through question- generic, not specific, terms. able foreign payments, and may have in- 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 access. The company argued that allowing Meanwhile, the Department of Justice the staff to make notes or copies might had established a task force on transnation- subject its documents to public disclosure al payments to investigate possible criminal through the Freedom of Information Act. 11 violations arising from illegal foreign pay- Dresser stated that such disclosure could ments. Two SEC attorneys participated in endanger certain of its employees working the task force. In the summer of 1977 the 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 cha!· Milde in a deposltion reprinted in Joint Appen- lenge such release in court. JA 12. dix (JA) 64-66.

II. JA 71-76. 14. See JA 77 et seq.

12. JA 74.

RPI 0121 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 subpoena the documents and to obtain other argument that public disclosures of the relevant evidence. J A 7-9 (April 11, 1978). names, places, and dates connected with its Pursuant to that order the staff issued a questionable foreign payments could endan- subpoena duces tecum, returnable on May 4, ger the lives of its employees in certain 1978. JA 14-16 (April 21, 1978). This sub- turbulent foreign countries. Dres!1er there- poena covered substantially the same docu- after complied with this grand jury subpoe- ments and materials subpoenaed by the na. 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 On May l , 1978 the District Court in SEC without reaching the merits. Dresser Houston, Texas dismissed Dresser's suit appealed to the Fifth Circuit and on June 8 against Justice without opinion. Three obtained an order from the court that: days later, after the period for compliance Until the appeal in this case shall have with its subpoena had lapsed, the SEC ap- been decided in this court, and except for plied to the District Court for the District proceedings before the Grand Jury in the of Columbia for enforcement. In the mean- District of Columbia, the Securities and time, Dresser had appealed the adverse Exchange Commission, its officers and judgment in the Texas action to the Fifth employees, are enjoined to preserve invio- Circuit, and sought interim relief. On May late the confidentiality of any informa- 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.).

RPI 0122 1374 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 to Dresser to show cause why it should not A. Parallel Investigations 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 and requiring Dresser to comply with the plained: subpoena within ten days after notice from The Sherman Act provides for a criminal the SEC. JA 301, reported at 453 F.Supp. proceeding to punish violations and suits (D.D.C. 1978). Rehearing was denied on in equity to restrain such violations, and July 15. This appeal followed. the suits may be brought simultaneously Meanwhile, the United States Court of or successively. The order of their bring- Appeals for the Fifth Circuit affirmed the ing must depend upon the Government; decisions of the District Court for the the dependence of their trials cannot be Southern District of Texas dismissing fixed by a hard and fast rule or made Dresser's actions against Justice . and the imperatively to turn upon the character SEC in that court, largely on ripeness of the suit. Circumstances may deter- grounds. Dresser Industries, Inc. v. United mine and are for the consideration of the States, 596 F.2d 1231 (5th Cir. 1979), cert. court. An imperative rule that the civil denied, 444 U.S. 1044, 100 S.Ct. 731, 62 suit must await the trial of the criminal L.Ed.2d 730 (1980). Accordingly, the inter- action might result in injustice or take locutory injunction requiring the SEC to from the statute a great deal of its pow- preserve inviolate the confidentiality of er. • • • 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).

RPI 0123 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1375 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- ed an indictment, and subsequently convic- Id. at 11, 90 S.Ct. at 769 (footnote omitted). 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- The officers in Korde/ argued that use of ings. See Baxter v. Palmigiano, 425 U.S. the civil discovery process to compel an- 308, 98 S.Ct. 1551, 47 L.Ed.2d 810 (1976); swers to interrogatories that could be used DeVita v. Sills, 422 F.2d 1172, 1181 (3d Cir. to build the government's case in a parallel 1970). Nevertheless, a court may decide in its discretion to stay civil proceedings, post- criminal proceeding "reflected such unfair- ness and want of consideration for justice" pone civil discovery, or impose protective 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 S.Ct. at 769. Moreover, the defendant was The court must make such determinations not unrepresented by counsel, id., and had in the light of the particular circumstances no reason to fear "prejudice from adverse of the case. pretrial publicity or other unfair injury," id. Other than where there is 11pecific 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

RPI 0124 1376 628 FEDERAL REPORTER, 2d SERIES deferring civil proceedings until after com- B. SEC Investigations 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 istrative action involving the same matter. Act), 48 Stat. 74, 15 U.S.C. § 77a et seq.

The noncriminal proceeding, if not deferred, (1976), and the Securities Exchange Act of might undermine the party's Fifth Amend- 1934 ('84 Act), 48 Stat. 881, 15 U.S.C. § 78a ment privilege against self-incrimination, et seq. (1976). These statutes explicitly em- expand rights of criminal discovery beyond power the SEC to investigate possible in- the limits of Federal Rule of Criminal Pro- fractions of the securities laws with a view cedure 16(b), expose the basis of the defense to both civil and criminal enforcement, and to the prosecution in advance of criminal to transmit the fruits of its investigations 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 in the tax field, following the leading case and affirmations, subpoena witnesses, take of United States v. O'Connor, 118 F.Supp. evidence, and require production of any (D.Mass. 1953). Cf. Boren v. Tucker, 239 books, papers, correspondence, memoranda, F.2d 767, 772-773 (9th Cir. 1956) (distin- or other records which the SEC deems rele- guishing IRS summons enforcement before vant or material. Id., Section 2l(b), 15 and after indictment). In some such cases, U.S.C. § 78u(b). If it determines that a however, the courts may adequately protect person "is engaged or is about to engage in 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 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 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

RPI 0125 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1377 Cite as 828 F.2d 1368 (1980) of the '33 Act, 15 U.S.C. §§ 77s(b), 77t(a), U.S. 917, 99 S.Ct. 2838, 61 L.Ed.Z<f 284 (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- larly, Justice must act quickly if it suspects United States v. LaSalle Nat'/ Bank that the laws have been broken. Grand [3] Dresser principally relies on an anal- jury investigations take time, as do criminal ogy to United States v. LaSalle Nat'l Bank, prosecutions. If Justice moves too slowly 437 U.S. 298, 98 S.Ct. 2357, 57 L.F~d.2d 221 the statute of limitations may run, witness- (1978),23 in which the Supreme Court said in es may die or move away, memories may dictum that the Internal Revenue Service fade, or enforcement resources may be di- (IRS) may not use its summons authority to 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 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· Whenever it shall appear to the Commis· tute or will constitute a violation of the provi- sion, either upon complaint or otherwise, sions of this subchapter, or of any rule or that the provisions of this subchapter, or of regulation prescribed under authority there- any rule or regulation prescribed under au- of, it may[.) in its discretion, bring an action thority thereof, have been or are about to be in any district court of the United States or violated, it may, in its discretion, either re- United States court of any Territo!)', to en· quire or pennit such person to file with it a join such acts or practices, and upon a p:op- statement in writing, under oath, or other- er showing a permanent or temporal)' injunc- wise, as to all the facts and circumstances tion or restraining order shall be granted concerning the subject matter which it be- without bond. The Commission may trans· 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- 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). 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:

RPI 0126 1378 628 FEDERAL REPORTER, 2d SERIES 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 against Dresser in connection with that file restricted to the terms and purposes of that lapsed at that time. Alternatively, Dresser provision. The Supreme Court said in La- suggests that, even if transmittal of the file Salle: was not analogous to a "referral" under In § 7602 Congress has bestowed upon 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 These two alternatives are vulnerable to made, determining the liability of any the same objection: the LaSalle rule applies person for any internal revenue tax . solely to the statutory scheme of the Inter- or collecting any such liability." Con- nal Revenue Code, in which the IRS's civil gress therefore intended the summons authority ceases for all pr~ctical purposes authority to be used to aid the determina- 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.' " 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, 25. The LaSalle rule-prohibiting enforcement the difference between these two formulations of an IRS summons after the IRS had referred is substantial. The Court did not explicitly the case to Justice for criminal prosecution- state why it shifted from the one to the other, 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. 508, 513, 11 L.Ed.2d 459 (1964) (citing Boren v. applicable to parallel civil and criminal pro- Tucker, 239 F.2d 767, 772-773 (9th Cir. 1956)). ceedings, but on limitations unique to the IRS.

"Any other holding," according to the Donald·

RPI 0127 •· 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- In the pre-referral stage of an IRS inves- gation discovery and to avoid infringing on tigation the civil and criminal elements of the role of the grand jury as a principal tool the investigation are intertwined. Id. at of criminal accusation. Id. at 312, 98 S.Ct. 308-311, 98 S.Ct. at 2363-2364. The same at 2365... 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 However, upon referral of the case to same alleged violations.

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 Thus, in the LaSalle Court's view, the "authorized in its discretion • • • 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. 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 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,

RPI 0128 1380 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 27-:...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 among those authorized by Congress," Unit- reasons. ed States v. LaSalle Nat'l 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 Fulfillment of the SEC's civil enforce- purpose for issuing a summons after refer- ment responsibilities requires this conclu- ral of a case to Justice did it direct its sion. Unlike the IRS, which can postpone attention to these "policy interests." Then collection of taxes for the duration of paral- it did so solely to explain its imposition of a lel criminal proceedings without seriously "prophylactic" rule forbidding any use of injuring the public, the SEC must often act the IRS summons authority after referral quickly, lest the false or incomplete state- to Justice, as opposed to forbidding 'only ments of corporations mislead investors and such uses as are unrelated to the purposes infect the markets. Thus the Commission of Section 7602.36 The Court did not impose 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 (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.

RPI 0129 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1381 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 investigation. might procure indirectly through the SEC.33 Second, the "policy interests" of LaSalle In fact, a party investigated under SEC have little practical significance in this con- rules instead of grand jury proe.edures is text. The first-to avoid broadening Jus- accorded far greater procedural protection, tice's right to criminal discovery-is flatly and has no cause to complain. See 17 inapplicable, '1S Dresser admits. 32 The C.F.R. §§ 203.6-203.7 (1979).34 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 nal Procedure 15-17, do not take effect in LaSalle : avoiding infringement upon 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 (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- 32. Supplemental brief of appellant Dresser In- ney present with him during any formal in- dustries, lnc. at 19 n.16. ves llgative proceeding and to have this attor- 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 34. 17 C.F.R. §§ 203.6-203.7 (1979) provide in person shall have the right to appear on the relevant part: record; and in addition to the rights afforded § 203.6 Transcripts. other witnesses hereby, he shall have a rea- '" • • A person who has submitted doc- sonable opportunity of cross-examination umentary evidence or testimony in a formal and production of rebuttal testimony or doc- investigative proceeding shall be entitled, umentary evidence. * • •

RPI 0130 1382 628 FEDERAL REPORTER, 2d SERIES gests two ways in which the SEC civil in- cy may be imposed on any person except 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- of a re~ording device, a typist who tran- fore the grand jury, it is not a valid scribes recorded testimony, an attorney defense to disclosure that the same infor- for the Government, or any person to mation was revealed to a grand jury or whom disclosure is made under para- that the same documents had been, or graph (2)(A)(ii) of this subdivision shall were presently being, examined by a not disclose matters occurring before the grand jury. • • • 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- 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 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 there was no probability of guilt." v. DaLesio, 82 F.R.D. 651, 668-669 (D.Md. 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 (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

RPI 0131 SECURITIES & EXCHANG.Et~ COM'N v. DRESSER INDUS. 1383 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 that a grand jury has subpoenaed docu- In another sense Dresser's complaint on ments concerning a particular matter does this score has little practical significance. not insulate that matter from investigation No one would suggest that the grand jur- in another forum. 38 In fact, if the grand ors, unassisted by accountants, lawyers, or jury proceedings are genuinely secret, other others schooled in the arcana of corporate agencies and courts will not know the sub- financial accounting, could sift through the 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 In this case Dresser is obligated under the great complexity, the grand jurors are as- securities laws to provide documents to the sisted-guided and influenced, in. fact-not SEC in obedience to a lawful subpoena. only by the United States Attorneys as· 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 The second way in which Dresser argues F.2d 260 (7th Cir. 1978); Robert Haw- that enforcement of this subpoena might thorne, Inc. v. Director of IRS, 406 F.Supp. infringe the role of the grand jury is that 1098, 1106-1107 (E.D.Pa. 1975); Develop- the SEC could interpret and selectively dis- ments in the Law-Corporate Crime: Reg- close parts of the subpoenaed information ulating Corporate Behavior Through Crimi- to the grand jury through Justice, thereby nal Sanctions, 92 Harv.L.Rev. 1Zl7, 1314- 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 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- ing of the grand jury. See In re Search War- court dated April 3, 1979.

RPI 0132 1384 628 FEDERAL REPORTER, 2d SERIES 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.

We conclude that the danger that en- IV. COOPEnATION BETWEEN forcement of this subpoena might infringe SEC AND JUSTICE 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 held that the SEC must demonstrate a "particu- Criminal Procedure apply to it." Transcript of larized need" for grand jury materials in order oral argument at 49 (Dec. 11, 1978). If he was to obtain access to them, e.g., In re Grand Jury referring to Rule 16(b), then he was mistaken, Investigation, 414 F.Supp. 74, 76 (S.D.N. Y. for Rule 16(b) comes into play only after indict- 1976), and that administrative investigative ment. In fact, the grand jury's investigative proceedings may not be considered preliminary powers are as broad as or broader than those to or in connection with a judicial proceeding of the SEC. Dresser cannot claim to be preju- for purposes of the Rule. See United States v. diced by the breadth of the SEC investigative Bates, - F.2d - - (D.C.Cir. No. 79-1930, authority. decided April 18, 1980) (per curiam) (concern- ing a Federal Maritime Commission investiga- tion).

RPI 0133 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1385 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. partment are simultaneously pursuing civil The reactions of the parties, therefore, sug- and criminal investigations." Slip opinion gest that the panel's modification might at 18. The panel therefore affirmed the serve more to impede securities Jaw en- District Court and ordered enforcement of forcement than to protect the interests of the SEC subpoena. Out of a concern that Dresser. 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 First, we note that no party to this case statutes impose no limitation on when this had suggested or requested a modification transmittal may occur. The parties have such as that imposed by the panel majority, not cited any portions of the legislative either in the District Court or in this histories of these Acts relevant to this ques- court. 47 In supplemental briefs submitted tion, nor have we found any. But the SEC to the e~ bane court both the SEC and and Justice find considerable support for J ustice-·v1gorously oppose the modification, their interpretation in the legislative histo- while Dresser's support for it is lukewarm ry of the Foreign Corrupt Practices Act of at most. Dresser had argued that the SEC 1977, 91Stat.1494', Title I, 15 U.S.C. §§ 78a, investigation is flatly prohibited by the rule 78m, 78dd-l, 78dd-2, 78ff (Supp. I 1977). 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 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 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.

RPI 0134 1386 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 criminal prosecution does not become investigation could Justice obtain access to stale. • • • the evidence proc~red by the' SEC. In view Id. at 12. It ·stated that it expected the of Congress' concern that the agencies SEC and Justice to "work out" between share information "at the earliest stage of themselves ·certain "arrangements * * • any investigation in order to insure that the on criminal matters" that would preserve evidence needed for a criminal prosecution the authority of each within its jurisdiction. does not become stale," S.Rep.No. 114, su- Id. The House Committee said: · pra, at 12, and that the agencies avoid "a Traditionally, there ha.S been a close costly duplication of effort," H.R.Rep.No. 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 with respect to the enforcement of the Third, we note that there is little or no provisions of this bill. judicial precedent for the panel's modifica- tion. The only' support adduced by the pan- H.R.Rep.No; 640, 95th Cong., 1st Sess. 10 (1977). el opinion is a District Court opinion in SEC v. Gilbert, 79 F.R.D. 683 (S.D.N.Y. 1978). In Although the legislative history of the Foreign Corrupt Practices Act is not direct- that case, which arose on the defendant's ly probative of·congressional intent govern- request for a protective order under the ing the '33 and '34 Acts, these statements discovery rules of the Federal Rules of Civil by the 95th Congress are nevertheless enti- Procedure-as contrasted to an investiga- tled to some weight. The remarks in the tive subpoena enforcement proceeding as in committee reports concerning the investiga- this case-the court ordered the SEC "not 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 impractical for us to attempt tO screen the In fact, the reasoning of the Supreme agencies frqm each other when they are Court in LaSalle is contrary to that of the investigating the same sort of offense un- panel in two respects, and should govern 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. the SEC without modification. SEC v. Druck- 1972). See panel slip op. at 12 n.29, 14 n.31.

RPI 0135 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1387 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- fore, no reason to impose a protective order injustice that may arise in the particular such as that imposed by the panel majority. circumstances of parallel investigations in 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 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 have to forego any assistance from the SEC in prosecutor might find It Impossible to comply enforcing the Foreign Corrupt Practices Act or with his responsibilities under Brady v. Mary- other regulatory laws involving parallel investi- land, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 gations; (2) that agency attorneys might not be (1963), and Jencks v. United States, 353 U.S. legitimately appointed as special assistant 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957).

United States Attorneys to assist in preparing cases for grand juries; (3) that a grand jury 52. See text at notes 33-34 supra. witness might gain effective Immunity from

RPI 0136 1388 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- current criminal investigation, with a view [7] We conclude that the District Court to the possibility that the SEC has proceed- acted within its discretion in denying Dress- ed in bad faith; (2) the ethical propriety of er discovery in this case, and that it proper- SEC agents' participation in the criminal ly granted judgment to the SEC on the investigation; (3) the existence of an SEC record before it. There was nothing im- commitment of confidentiality; and (4) the proper about the SEC's decision to transmit basis for .the SEC staff's decision to request \ the files of the participants in the Volun- a formal investigation of Dresser. See tary Disclosure Program to Justice, or brief of respondent-appellant at 36--42. about the subsequent concurrent investiga- [6] We recognize that discovery may be tions by the two agencies. Nor does the available in some subpoena enforcement participation of two SEC attorneys in the proceedings where the circumstances indi- Justice task force cast doubt upon the good cate that further information is necessary faith of the Commission. Dresser's allega- for the courts to discharge their duty. tions of an agreement by the SEC not to United States v. Fensterwald, 553 F.2d 231 subpoena the documents underlying its vol- (D.C.Cir. 1977) (pei- curiam ); United States untary report are not substantiated by any v. Wright Motor Co., 536 F.2d 1090 (5th Cir. writing, and are directly contrary to the 1976). For example, the Supreme Court in published terms of the.Voluntary Disclosure LaSalle apparently contemplated some de- Program. 53 Finally, Dresser's suggestion gree of discovery in IRS summons cases to that the order of investigation is improper determine the fostitutional good faith of because there was no "likelihood that a the IRS in issuing such summonses. Uniwd violation has been or is about to be commit- States v. LaSalle Nat'/ Bank, supra, 437 ted," see 17 C.F.R. § 202.5 (1979), does not U.S. at 316-317, 98 S.Ct. at 2367; id. at 320, distinguish Dresser from any other recalci- 98 S.Ct. at 2369 (dissenting opinion); Unit- trant subpoena respondent. At this stage ed States v. Marine Midland Bank, 585 F.2d of the investigation neither this court nor 36, 38-39 (2d Cir. 1978) (per curiam ). the SEC could know whether Dresser has However·, district courts must be cautious in violated the law. The Commission's discre- granting such discovery rights, lest they tion concerning which potential violators to transform subpoena enforcement proceed- investigate is, whiJe 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; 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 supra.

RPI 0137 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1389 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- 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 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., Disclosure Program is not privileged. Id. supra, 555 F.2d at 884-885; SEC v. Wheel- 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

RPI 0138 1390 628 FEDERAL REPORTER, 2d SERIES (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.

The decision whether to accord greater pro- rests on those resisting intervention. tection to certain documents where release Nuesse v. Camp, 385 F.2d 694, 702 (D.C.Cir. might endanger employees' lives abroad 1967). In cases of alleged corporate miscon- must be made in the first instance by the duct it is especially important for the courts Commission, which will be able to inspect to be alert to the possibilities of conflict 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- lege must be resolved in a similar manner: (9] In this case, however, we need not viewed initially by the Commission with judge whether the court was correct in its later review in the courts if necessary. conclusion that Mr. Luter has asserted no . We see no ground for reversal in the cognizable interest in the proceedings.

District Court's determinations on the con- With the benefit of hindsight, and informed fidentiality and attorney-client privilege is- by the arguments Mr. Luter has made on sues. his behalf in this appeal, we are able to The final issue in this case is that raised conclude that Dresser has adequately repre- 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- ing on bases of an alleged confidentiality rejected the right of Mr. Luter or any other interest on the part of the employees in Dresser employees to intervene in future certain documents and an alleged attorney- proceedings concerning this investigation. client privilege. The District Court reject- On the understanding that Mr. Luter or his ed Mr. Luter's motion to intervene, saying: fellow employees may seek to intervene in Mr. Luter has failed to demonstrate any future SEC proceedings concerning confi- 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 communications in question. • • • the judgment of the District Court in No. 78-1702 as well.

JA 559 (order denying reconsideration). [8] We are somewhat troubled by the The judgments of the District Court are 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-

RPI 0139 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

RPI 0140 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 tiona. in a chain of evidence auftlcfent to connect 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 ·o btaining confeSBion County. violates privilege aralnat self-incrimina- No.110. tion i• not whether conduct of state oftl.. 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) Conn. 220, 187 A.2d 744, held that there One cannot be compelled to jncrim- 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) Fifth Amendment'a exception from com- Wltneae1 c=aoo pulaory self-Incrimination is protected by American qatem of crlmfnal pros- the · Fourteenth Amendment apinst ecution is accusatorial, not Inquisitorial, 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 one who ran the pool-aelling operation, IS. CllmlDal Law Cl=89S(1) 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

RPI 0141 1490 871 V.S. 1 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., 'J. Conat.ttut.lonal Law c::=288 for respondent.

Fourteenth Amendment 11ecurea against state invasion the right of ac- Mr. Justice BRENNAN delivered the cused to remain silent unless he chooses opinion of the Court. 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 8. Wltneues c=soo Fourteenth Amendment. Twining v. 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 9. Wlhteaes $=19"1('1) gambling raid in 1959 by Hartford, The Fifth Amendment applies to Connecticut, police. He pleaded guilty witness in statutory inquiry as well as to the crime of pooJ selling, a misde- to defendant in criminal prosecution. meanor, and was sentenced to one year U.S.C.A.Const. Amend. 5. in jai} and fined $500. The sentence was ordered to be suspended after 90 days, at 10.witneue• ~&'7<10> which time he was to be placed on pro- The privilege arainst self-incrimina- bation for two years. About 16 months 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- questions seeking to elicit identity of ford County to conduct an inquiry into one who ran the pool-seUing operation, alleged gambUng and other criminal ac· 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

RPI 0142 '78 'O'.S. 15 KALL<>'!'.,, EOGAN 1491 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 go, 166 u.s• 226, 17 S.Ct • 110 uo, 1 41 L• 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 .:i ts reverse. We hold that thB Fourteenth eig t AmemJmen • Amendment guaranteed the petitioner against national ac· I1 I the protection of the Fifth Amendment's privilege against self-incrimination, and tion may also be safeguarded against 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, '1911 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 to .tl1l1 Ylew in In re Kemmler, 136 U.S. U.S. ~19, 828, 1S8 S.Ct. 140. :usa. 82 L.Ed. 4$, 448-449, 10 B.Ot. 080, 004, 84 L. 288 (Jl'ifth .Amcnilmoot doublo j copnrd1) i Ed. ll10; McElvalno v. Braeh, 142 U.S. Muwell .,, Dow, 176 U.S., ftt Gn:i, 20 llSIS, llSS-ltm, 12 S.Ot. 11S6, llfT, SIS L.EU. 8.Ct., at 4M (Sl.J:th .Amendment jury 0711 Maxwell •· Dow, 170 U.S. IS81, trial) ; Wnlker .,. Sa11Ylnet, 92 U.S. 90, 92.

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, L.F.d. 80. DeclaJona that pardculu WT, 86 L.Ed. 4'50 (Elrhch Amendment cuaranteea were not ufeparded 1pln11t prohibition ac11Ui1t cruel and unuaua.1 atD.te action b:r the Prl•Ue1u ud Im- punlahmant). .

1D1JDidu Claa.ee or other prov!Jilon of the a. In Barron, for Uae ot Tiernna v. Hn1or l'ourteentb .Amendment are: United llJ1d CJt1 Oouncll of Clty of Ba.ldmore, 7 'l Statea .,, Crnlkahank, 92 U.S. IH2, GG1, L.Ed. ISSS: Pmdential Ina. Oo. of America v. Cheek, 239 U.S. 680, IS48, Pet. 243, 8 L.Ed. 672, decided before the adoption of the FourtC!enth Amend· meat, Chlef J'uadce Harahnll, epoaldnr S.Ot. 316. IS22 (Jl'Jrat Amendment) : for the Court. held that thia right wae Preaaer •· Dlbiol1, 118 U.S. 262, ~. 6 not Hcared agalnlt 1tate action b1 the 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."

RPI 0143 1492 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• teenth Amendment a less central role in • Court the preservation of basic liberties than held that in the light of later decisions,• that y;hich was contemplated b;y its it was taken &11 settled that "* * * Framers when they added the Amend· the Fourth Amendment's light of pri· rnent to our conatitutJonal scheme. vacy has been declared enforceable Thus, although the Court as late as 1922 a11ainst the States through the Due said that "neither the Fourteenth Process Clause of the Fourteenth Amendment nor an;r other provision of * * *." Mapp v; Ohio, 867 U.S. 643, the Constitution of the United States 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081. 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- Prudential Ins. Co. of America v. Cheek, capital otrense, "appointment of counsel U.S. ts80, 548, 42 S.Ct. 516, 522, 66 is not a fundamental right," Betts v. L.Ed. 1044, three years later Gitlow v. Brady, 816 U.S. 455, 471, 62 S.Ct. 1252, New York, . 268 U.S. 652, 45 S.Ct. 626, 1261, 86 L.Ed. 1695: cf. Powell v. Ala- 69 L.Ed. 1138, initiated a series of de· bama, 287 U.S. 45, 58 S.Ct. 515, 77 L.Ed. cisions which today hold immune from 158, only last Term this decision was state· invasion every First Amendment re-examined and it was held that pro- protection for the cherished rights of vision of counsel in all criminal cases mind and spirit-the freedoms of speech, was ''a fundamental right, essential to a press, religion, assembly, association, fair trial," and thus was made obligatory and petition for redress of grievances.' on the States by the Fourteenth Amend· 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 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, preee); Lovell v. City of Grlllin, 80S 9 L.Ed.2d 40IS (a11oclation nnd 1peech); U.S. 4H, 4!50, ts8 S.Ct. 666, 668, 82 L.Ed. :Brotherhood of Railroad Trainmen v. (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 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. Colort1do1 838 U.S• .21S, 217- (epeech); Grosjean T. American J>re11 28, 69 S.Ct. 18"9, 1361, 93 L.Ed. 1'782; Co., 297 U.S. 233, 244, 156 S.Ct. 444, 446, Elkina v. Unlted Statea, 864 U.S. 206, 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, 008, 84 L..Ed. 1218 (religion): De J'o~e I. See alao RobiDBon v. Cnlltornia, 310 U.S. 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 isiana e:ic rel. Gremillion '" N. A. A. C. P., Amendment's ban on cruel and on111ual 866 U.S. 298, 296, 81 S.Ot. 1333, 183'1, • punilllament1.

I·

RPI 0144 878 t1.S. B llALLOY T. EOGA.W 1493 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 prosecutions. ! 1 • secured by so mild a whip aa the refuaal, under certain cireunistances, to allow a [2, 3] Brown v. Missiasippi~ 297 U.S. 1uspect to call his wife until he con-' 278, 66 S.Ct. 461- 80 ~.Ed. 682, was the fessed. Bani.es v. Waahfngton, 873 U.S. first case in which the Court held that 608, BS S.~. 1886, 10 L.Ed.2d 1$18. the Due Process Clau~e pirohibited the States from usinr the ;aecused's coerced [ 4-7] Tl:1e marked shift to the fed· 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- same standard ·applied !iD. federal prose- ington, 878 U .s: 503. The shift reflects -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, trolled by that portion of the Fifth 81 8.Ct. 786, 789; 5 L.Ed.2d 760. Govern· 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 Id., 168 U;S. at 542, .18 .SlCt. at 187. Un- charge against an accused out of his own der this test, the con* ,utional inquiey mouth. Since the Fourteenth Amend- is not whether the c:ond~c:t of state of- ment prohibits the States from inducing 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' i1sort of threats 1207, or other like inducement .far short -0r violence, nor obtaine by any direct of "compulsion by. torture," Haynes .v. or implied promises, h 'ever slight, nor Washington, supra, it :foUows .a. fortiori '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 643, 18 S.Ct. at 186-18~; see also Hardy to answer questiom that might incrim- 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 Wan v. United States,' $66 U~S. 1, 14, privilege that the Fifth Amendment 45 S.Ct. 1, 3, 69 L.Ed. '181: Smith v. guarantees against federal infringe- United States, 848 U.S. :14-7, 160, '16 S. ment-the right of a person to remain -Ct. 194, 196, 99 L.Ed. 192.. In other silent unless he chooses to BPeak in the ·words the person mus~ not have been unfettered exe~ise of hia own wiU, and

RPI 0145 1494 84 SUP&JWll OOUBT :amo:anm 878 v.s. 8 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 States. We relied upon the great case of Jn thus returning to the Bo7d view that Boyd v. United States, 116 U.S. 616, 6 the privile~e is one of the 14prlnciplea of S.Ct. 524, 29 L.Ed. '146, decided .in 1886, a free rovernment," 116 U.S .. at 632, 6 which, considering the Fourth and Fifth S.Ct., at 583,' Mapp necessarily replldiat- Amendments as running "almost into ed the Twininr concept of the privilere each other," id., 116 U.S., at 680, 6 S.Ct., as a mere rule of evidence "beat defend- at 682, held ·that "Breaking !nto a house ed not as an unchanireable principle of and opening boxes and drawers are cir- universal justice, but as a law proved by cumstances of aggravation ; but any experience to be expedient." 211 U.S., forcible and compulsory extortion of a at 113, 29 S.Ct., at 25. 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 • condemnation of [those the 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 "We find that, as to the Federal of our eociety and, hence, is enforceable Government the Fourth and Fifth again.st the States."• The State urges, Amendments anct_ as to the States, however, that the availability of the fed- 7. Boyd had •alcl of the prlvlleie. " • • mmdtJ. It hu been a re4ectloa of our compullo17 • dl1coveey bJ utortlq eommon coa1cleuce, a Qlllbol of the the pal'f1'• oath • • • to conYlct him America wtllch atin our hearta." The of crime • • • le contrary to the ll'Jfth Atnendment Toda7 '18 (19ti5). 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· of clupotic power, but It cannot abide aumptlon that c accuaed hi privlleied 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•

RPI 0146 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 First Amendmen~ Gitlow v. New York, federal court. Therefore, · the · eame 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. 2d 301, the prohibition of .unreason- [9, 10] We turn to the petitioner's 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. 23, 83 ·S.Ct. 11623, 10 L.Ed.2d '126, privllere. It must ,1Je considered ir· 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- ards that protect those person~l rights qufries. Counselman v. Hitchcock, 142 :against federal encroachment. In the U.S. 547, 12 S.Ct. 196, 85 L.Ed. 1110; -coerced confeufon cases, involving the McCArthy v. Arndstein, 266 U.S. 84, .45 1>0Hcfes of the privilege itself, there has S.Ct; 16, 69 L.F.ld. 1158; llotrman v. Unit- "been no auga-•stfon that a confession ed States, 341 U.S. 479, '11 S.Ct. 814, 95 -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 11 themselves support a conviction guaran· • • • but likewise embra.ces 'tees ot the Bill of Rights,·~ Ohio ex rel. thoee which would fundah a link Eaton v. PriceJ 864 U.S. 268, 275, 80 S. in the chain of evidence needed to Ct. 14'68, i470, i 4 L.Ed.2d 1708 ( disilent· prosecute. • • • [IJf the wibtees, ing -opinion). If Cohen v. Hurter, 866 upon interposing his claim, were re- U.S. 117, 81 SiCt. 954; and Adamson\". quired to prove the hazard • •. • ·California, supra, suggest auch an appli- he would be· compelled to surrender · tation of the' privilege against self- the very protection which tlle privi· I incrimination; 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 · which the Twining ·view of the privi- evident froni ·the implicatiOna of lere has been hoded. what is accord- the question, in the setting in which -ed is a prJvilete of refusing to incrim· it ia u r' and the.feared pros~u· inate one's sel* asked, that a responsive an· tton may be b either fe~eral or state Bwer to the question or an ezplana· .authorities. urphy v. Waterfront tion of why ft cannot be answered • 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- crlminate himielf before a rrand jur1, 1lon occur1, woold not onlr cJaritT the 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."

RPI 0147 1496 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 " 'perfeetl'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- to incriminate.'' 841 U.S., at 488, 71 tion, the court held that petitioner's fail- S.Ct., at 819. ure to explain how a revelation of his. 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- ing his arrest and conviction for pool parent that petitioner might apprehend selling in late 1959. The questions whJch that if this person were still engaged in petitioner refused to answer may be sum- unlawful activity, disclosure of his name marized as follows: (1) for whom dfd might furnish a link in a chain of evi- 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 subsequent conviction: (S) who select.ed Analysis of the sixth question, con- and paid his bondsman; ( 4) who paid cerning whether petitioner knew John his fine; (6) what was the name of the Bergoti, yields a similar conclusion. In 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- 9. See Green~rs .... Uiilted State&, 843 U.S. ot .Appeals for the Third Circuit irta.ted: 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· Slnrloton T. Ullited States, 843 U.S. tlon, the judge cannot permit himself 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 (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.

RPI 0148 · ~78 17.S. 16 MAr.x.oy y, BOGAX 1497 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 H realm of criminal 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 of. the questions, it was "evident from I. . 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 .Mr. J'u11tlce HARLAN, whom Mr• .Tua· the first eii'ht Amendmenta and apply tice CLARK Joins, dis8enting. · those chosen, freighted with their entire " 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 cided: (1) the Fourteenth Amendment calie, I agree that pr!nciplea of justice t.o 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 S.Ct.-94~

Ij RPI 0149 1498 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. Jaw which surrounds a specific prohibi· 97, 105, 54 S.Ct. sso; Brown v. Missis- 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 di1ferences 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. 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- firmed that "the Fifth Amendment's The Court suggests that this consist- privilege against self-incrimination,'' ent line of authority bas been under- ante, p. 1491, was not applicable against mined by the concurrent development the States. Cohen v. Hurley, 866 U.S. of constitutional doctrine in the areas of 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 been clechJed by thl1 Court. Twining v. confeesion cues fundab or boala for 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, broadt, that an indlYidual could "be re• e•en when under the fo?llll of law, cf. quired to incriminate blmaelf In • • • Brown v. Mi111l1111ippi, 297 U.S. 278, 283, 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 authority, the Court noted that "all the 11uch a prlvllece in due procees a only •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.

RPI 0150 a'/8 'U.S. 19 MALLOY Y. EOG.AB 1499 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, "• • • [T]he question of the 64 S.Ct. 921, 88 L.Ed. 1192 i the Court ri1ht of the 1tate to withdraw the · there adverted to the "third degree," e. g., Id., 822 U.S •.at USO, note 5, 64 S.Ct. at prlvUege againat self-incrimination is not here involved. · The compul- 924, and "secret inquisitorial practices," . 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 matter." , 297 U.S., at 285, 66 S.Ct. IIUnois, 872 U.S. 628, 88 S.Ct. 917; and at 464. (Emphasis supplied.) Ha111es v. Wa.ehingt.on, 878 U.S. 608, 83 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, .ante pp. 1493-1494, In which was de- quisitorial 15}''5tem/' id., 861S U.S. at 641, veloped the full sw~p of the constitution- 81 s.ct. at 789, it is clear that the Court .al prohibition agaiost the use of coerced wu concerned only with the problem of confessions at state trials, was there any- coerced confeSBlons, aee ibid.: the opin- thing to suggest that the Fifth Amend- ion includes notbin1 to aupport the 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· tbnt If 'l'wfnlnir bnd not been on tho books, fraction of ono of tho 11peclno pr-ovlsloua roveunl ot tho convictions would havo of tho first eight nmcndments. To come boen bnecd on tho ll'lfth Amendment. oonerotoly to the pn11eot cuo, tba Que•· 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· 11011 extroctll11 by torturo ne 011 n pnr loirlco..1 aaeumptlone 1111d reaaoning, tbnt 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.r e 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 l!'ourtcontb Amondmont baa been do· (opinion of Fronkfurter, J.).

RPI 0151 1500 H S'D.'P:&mm OOVBT BEPOB.T:EB. 878 v.s.- 1& ,.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- In Adamson, supra, the Court made it stitutionally seized, see Wolf v. Colorado, explicit that it did not regard the in- 388 u.s. 26, 28, 69 s.ct. 1359, 1861, may creasingly strict standard for determin- not be used in a state criminal trial fur- ing the admissibility at trial of an out- nishes no "fortiftcation," see ante, p. of..court confession as undermining the 1494, for today's decision. The very pas- holding of Twining. After stating that sage from the Mapp opinion which the "the due process clause does not protect, Court quotes, ante, p. 1494 makes explicit by virtue of its mere existence the ac- the distinct bases of the exclusionary cused's freedom from giving testimony rule ae applied in federal and state by compulsion in state trials that is se- courts: 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 two lines of cases as distinct. See also [secured] * * * only after years 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, was decided a.fter all but a few of the 81 s.ct., at 1692 (footnote omitted). 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 automatic 'engrafting of federal law con- III. 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.

RPI 0152 178 v.s. t8 JULLOY "· KOGAN 1501 mt. u 8' l.ct.1'8D (UCN) nient's privilege a1alnst self-incrimina- Bill ot Rights mlrht provide historical tion inw the. Fourteenth .Amendment. evidence that the right involved was tra- Approaching ~e question JQore broadly, ditionally regarded as fundamental, in- it is equally plain that the line ot casea clusion of the ri'g ht in due process was 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 :Process .Clause .imposes on the States in "• * * [I)t is posaible that the light 'of current standards, furnishes some of the personal rights safe- 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- The view of the Due Pr0cess Clause of tion, because a denial of. them would the Fourleenth Amendment which this be a denial .of due process of law.

Court bu consistently accepted and *. * • If this .is so, it is not be- which has . "thus far prevailed," ante, ca.use"t1&ose rights are enumerated in p. ,1491, is that its requirements are as the first eight Amendments, ht be- ''old as a principle of civilized govern- cause they are of suck a. nature that ment," Munn v. Illinois, 94 U.S. 118, 128, they are facluded in the conception I. 24 L.Ed. 77; the specific a11pUcatlons of of dll(J f)roces1 of law." Twining~ which must be ascertained "by tho grad- -supra, 211 U.S. at 99, 29 S.Ct. at 19. ual process of judicial Inclusion and ex- (Emphasis: aupplitd.) 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. process requires "observance of those garded as a classic expression .of this 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 v. • rights (including the right rights." Hagar Reclamation District 13 No. 108, 111 U.S. 701, 708, 4 S.Ct. 668, not to in- 667, 28 L.Ed. 569. See Hurtado v. Cali- criminate oneself) which were "not of fornia, 110 U.S. 516, 637, 4 S.Ct. 111, 121. the very essence of a scheme of ordered 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.n st the States. But, while in· Further on, Mr. Justice Cardozo made clusion of a particular provision in the the independence of the Due Proceas

RPI 0153 1502 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 .tght Amendments explicit: that in some areas of criminal procedure 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 unlawfully when in truth, though If one attends to those areas to which not in form, they were refused the the Court points, ante. p. 1494, in which aid of counsel. Powell v. Alabama, the prohibitions against the state and supra, 287 U.S. 46, at pages 67, 68, federal governments have moved in SS s.ct. 56, 68, '17 L.Ed. 158, 84 parallel tracb, the cases in tact reveal A.L.R. 527. The decision did not again that the Court's usual· approach turn upon the fact that the benefit has been to rround the . prohibitions of counsel would have been guaran. against state action squarely on due teed to the defendants by the provl~ proceH, without intermediate reliance on elons of the Sixth Amendment if any of the tlrst eight Amendments. Al- they had been prosecuted in a federal though more ~ntly the Court ha.a re- <10urt. The decision turned upon the ferred to the First Amendment to de- 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., .

302 U.S. at 327, 58 S.Ct. at 153.

It is apparent that Mr. Justice Car- -dozo'a metaphor of "absorption" was not "shorthand" tor doctrines developed by another II route. In Gitlow v. NewYork, 268 U.S. 652, 666, 45 S.Ct. 625, 680, for 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 Seen in proper perspective, therefore, States.'' the fact that Fint Amendment protec- The Court went on to consider the extent tions have generally been given equal of those freedo1118 in the context of state

RPI 0154 t7.8 U.S. rt. MALLOY "· EOG.AN 1503 ate 118' 1.a.1a <lM'> . interestll. . 'Mr. Justice Holmes, ln dis- . The coerce4 confession and search and sent, said: aeilure eases have alreadf been consid- 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· haps it may be accepted with a some- p1·ivacy into the Due Process Clause.

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 the sweeping language that governs right to counsel in state criminal proceed· or ought. to a'Overn the l.aws of the ings, whfoh this Court assured in Gideon Unit.ed Sta~s.» Id., 268 U.S. nt 672, v. Wninwri1rht, 872 U.S. 385, 88 S.Ct. 46 S.Ct. at 6S2. 792, does no'I; depend on the Sixth Amend- ment. In Betta v. Brady, 816 U.S. 455, Chief Justice Hughes, in De Jonge v. 462, 62 S.Ct. 1252, 1256, this Court bad Oregon, 299 U.S. S6S, 864, 57 S.Ct. 255, said: · · 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 mental. As this Court said in Unit 4 of Rights.. Its application is leas a. 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- abridrment .. ly guarantees that right against by Congress.· But ex- plicit mention there does not argue nial." (Footnote omitted.) .., Although Gideon overruled Betts, the- 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 at the base of all civil and political of counsel for an indigent criminal de- inatltutfon&-principles which the fen~nt waa easential to the conduct of Fourteenth Amendment embodies in a fair trial, and was therefore part of the reneral terms of its due process due process. 872 U.S., at 842-845, SS claase." S.Ot. at '79~'197.

L Of. the lll8joril:7 ud dit1entill1 opln!on1 In AiaD&r Y. Tua.. 81'8 U.S. 108, 84 S.Ot. lGOO.

RPI 0155 1604 H BUPRUim 0017BT BBPO:&'l'EB S78 11.B. 17 The Court's approach In the preaent allocation of responsibility for the pr~ case is in fact nothing more or less than vention of crime when it applies to the "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 Rights and protects only tbosP. rights the States as a group or particular States which derive from fundamental princt.: may face. If the power of the States to 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 fs a shift of just ae 11loglca1 to incot"porato the provi· responsibility in this area to the Federal &ions of the Bill of Rights one at a time Govemment, with its vastly greater re- as ft is to incorporate them all at once. aourees. Such a shift. if it occurs, may in the end serve to weaken the very IV. liberties which the Fourteenth Amend· The Court's undiscriminating ap· ment aafe&'Uards by bringing us closer proach to the Due Process Clause car· to the monolithic society which our fed· ries serious implications for the aoand eraliem rejects. Equally dangerous to working of our federal system in the field our liberties :Is the alternative of water· of criminal law. ing down protection8 against the Federal 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· • does not follow from the fact ine fundamental 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- -666, 671, S L.Ed.td 729, "the States un.. tion to the petitioner's claim that he ~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

RPI 0156 .V.8. Sl MALLOY 'f, JIOGAN Ctte u 8' I.a. YI» (UM) 1505 adoption.of • ·• * [the Connecticut] But it would be to convert a salutary comtitutlon in 1818" had upheld a prfvi.. protection into a means of abuse Sf le.re to refuse to answer incriminating it were to be held that a mere imagf. questions. 150 Conn. 220, 228, 187 A.2d nary possibility of danger, however '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· its own constitutfonal provision, and cit· tlce.' Cockburn, C. J ., in Regina v. Ing Hoffman v. United States, 841 U.S. . Boyes, 1 B. & S. 811, 880 • • • .''

479, '11 8.Ct. 814; in particular, the Su· McCarthy v. Clancy, 110 Conn. 482, preme Court of Errors described the re- 488-489, 148 A. 551, 5155. 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 "[A] witness * • • has the questfon whether he knew John Berl'oti. right to refuse to answer any ques- The court said: · 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 character, having reference to some ext.raordinary and barely possible Conn., at 22~22'1, 18'1 A.2d, at '148. contingency, so improbable that no 'l'he remaining questions are summa- reasonable man would auft'er it to rized in the majority's opinion, ante, influence })is conduct. We think that p. 1496. All of them deal with the cir· a merely remote Jnd naked posldbll- cumatancea surrounding the petitioner's ity, out of the ordinary course of conviction on a gambling charge in 1959. law 'a nd such aa no reasonable man ThR court declined to decide would be a1fected by, n IO "whether, 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 intsr alioa, protection against being to how answers to them could incriminate 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 S.Ct.--tS

RPI 0157 1506 !78 17.S. 81 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· tain, but declined to rest its decision on 'The other five questions, treaied at that basis. · Id., 150 Conn., at 227-229, length in the Connecticut court's opinion, 187 A.2d, at 748-749. The court conclud- get ·equally short shrift .from this Court: ed, however, that the running ot the it takes the majority, unfamiliar with statute of limitations on misdemeanors Connecticut Jaw and far removed from committed in 19159 and the absence of any the proceedings below, only a dozen Jines indication that Malloy had eDl'&ged in to ~nsider the questions and conclude any crime other than a miSdemeanor re· that they were incrimi.nating: 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 "In all this, Malloy confounds vague obvious from the questions them- and improbable possibilities of pros- selves-that the State desired to ecution with reasonably appreciable elicit from the petitioner the identity ones. Under claims like his, it would of the person who ran the pool-sell- always be possible to work out some ing. operation in connection with finespun and improbable theory from which he had been arreated Jn 1959. which an outside chance of prosecu- It waa apparent that petitioner tion could be envisioned. Such might apprehend that if this person claima are not ecourh to support a were still engaged in unlawful ac- claim of privilege, at least where, as tivity, disclosure of his name might here, a witness suggests no rational furnish a link in a chain of evidence explanation of his fears of incrlmi- sufficient to connect the petitioner nation, and the questions them.selves, with a more recent crime for which under all the circumstances, sanest he might still be prosecuted." none." Id., 160 Conn., at 230-281, (Footnote omitted.) Ante, p. 1496.

187 A.2d, at '/60. I do not understand how anyone could Peremptorily rejecting all of the care- read the opinion of the Connecticut court ful analysis of the Connecticut court, this and conclude that the state Jaw which Court crea~s its own ..finespun and im- was the basis of its decision or the deci· probable theory'' about how these ques- sion itself was Jacking in fundamental tions might have incriminated the peti· fairness. The truth of the matter fa that tioner. With respect to his acquaintance under ·any standard-state or fedfµ'al- with Bergoti, this Court says only: the commitment for contempt was proper.

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 33 311 quoted approvingly in the majority's by the State to be involved in some opinion. 1 entirely agree with my ~roth­ wa1 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 satisfied. The Court's ref- more recent crime, or at leaet have erence to a federal standard is, to put it operated as a waiver of his privilege bluntly, simply an excuse for the Court to

RPI 0158 11.s. 85 MALLOY,.. HOGAN' . 1507 Cite 11 8' 8.Ct.14811 (11*) substitute its own superflcial B.sseasment The Queen v. Boyes, 1 B. It S. 811, 829-:- of the facts and state law:for the careful 830 (1861) ; Mason v. United States, 24' and better informed conclusions of the U.S. 862, 87 S.Ct. 621, 61L.Ed.1198. I state court. No one who scau the two do not think today's decision permita 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 STEWART 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 Important complex of values, but it is U.S. 479, at 486, 71 s.ct. 814, at 818; 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 that the privilege was properly invoked required to disclose s0 much of the dan· 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 any question is to be automatically, and has been that the judge is to decide from 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· ture crimes. Smith v. United States, of them be entirely disregarded. * * * M When a question la propounded, it be- 387 longs to the court to con&ider and to de· U.S. 187, 147, 69 S.Ct. 1000, 1005, 93 L.Ed. 1264; Brown v. Walker, 161 U.S. 591, 605, 16 S.Ct. 64~. 650, 40 L. Ed. 819. If the ~eneral duty to testify .. cide whether any direct answer to It can implicate the witness." In re Willie, 25 when subpoenaed Is to· remain and the Fed.Cas.No.14,692e, at 89-40. I would privilege is to be retained ns a protec- not only retain this rule but apply it tion against. compelled incriminating an· in Its present form. Under this test, swers, the trial judge must be permitted Malloy's refusals to answer some, ff not to make a meaningful determination of all, of the questions put to him were when answers tend to incriminate. See clearly not privilered. ·

RPI 0159 1508 84 sv.eamo OOU'ltT B.EPOB'!ER 878 v.s. ~5 n. on November 5, 1969, who furnished In November 1959, Malloy .was •~ the money to pay your ftne? 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 * * • • • * wa.s placed on probation for two years. "Q. Do you know John Bergoti?

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 ground that it would tend to incriminate These were not wholly innocuous ques- him: tions on their face, but they clearJ1 were 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· • • . • "Q. After your arrest on Sep- • tember 11, 1969, and the same arrest cut courts were unable to tlnd any state statute which Malloy's gambling activi· ties in 1969 in Hartford, the subject of the inquiry, could have violated and Mal· for which you were convlcted on Joy hu not yet pointed to one. Beyond November 5, 1959, who selected your this Malloy declined to offer any ex· bondsman? planation or hint at how the anawers 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 ·a bout September 11, 1969, and the same others, not Malloy, posed a substantial arrest for which you were convicted hazard of criminal prosecution to Malloy.

RPI 0160 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- potentially incriminatinl'. Bat if this lnS", I would at leut require .the elaim- 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 claimof privilege. The privi~ vant to any incriminating matten. lege becomes a general one against an- swering diataat.efut questions. Adherence to the federal atandard of incrimination stated In Muon and Hoff- The Court dnds that the queatfons were · incriminating because petitioner man, supra, In form only, while its con- 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 another war of makinr the claim of priv- I would amnn. ilege automatic. It Is not onl;r unrealistic ,." generally but peculiarly inappropriate. in !: this case. Unlike cases relied on by the I'

Court, like Hoffman v. Unlted States, rI~ supra, where the claimant was known to !! 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 ..... riven a suepended sentence. He had STATE OF TEXAS. 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 In these questions indicates petitioner Decided June 15, 1964. was called beeause he was suspected of criminal activities after 191>9. There ia Defendant was convicted, Jn the ~o suppo~ at all in tbi11 record :for the Criminal District Court, Harris County, eynical assumption that he had commit- Tezas, of illegal possession of heroin, and ted criminal acts after his release in the Texaa Court of Criminal Appeals, 1'12 1960. ! Tu.Cr.R. 629, 862 S.W.2d 111, a1Brmed.

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 neceasarlbr sus~ct crimiuala, sustaining ma;r be based on hearsay information and the privilege in theae cireu.matances is need not reflect direct personal observa- 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

RPI 0161 1368 628 FEDERAL REPORTER, 2d SERIF.s 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 Ill. and the regulations. [6] The plaintiffs also ask this court to Affirmed. 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- ment under Fed.R.Civ.P. 56. Fed.R.Civ.P. SECURITIES AND EXCHANGE 52(a) provides: "[f]indings of fact and con- COMMISSION, clusions of law are unnecessary on decisions v. 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. 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. D.C. 275, 179 F.2d 480 (1949). cert. denied, United State1, Intervenor. 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 statute, regulations, and the preamble to Argued en bane April 16, 1980. the regulations explaining the reasoning Decided July 16, 1980. supporting the defendants' policies.

Certiorari Denied Nov. 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 accounting for, vending machine income from lenge the percentage disbursements of vending vending machines on Federal property under machine Income to blind vendors determined his control . . . " However, this is a logi- by whether or not the vending machines are in 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 § l07d-3(b)(2). Plaintiffs also seem to chal- u.s.c. § l07d-3(b)(l).

RPI 0162 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- covery. 5. Securities Regulation *=>86 Affirmed. Enforcing Securities and JC:xchange 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 1. Federal Courts <8= 1150 payments" would not breach allegcid agree- Constitution does not ordinarily require men t of conridentiality where the SEC, stay of civil proceedings pending outcome throughout "voluntary disclosure program," of criminal proceedings; ·nevertheless, court reserved its rights to pursue formal investi- may decide in its discretion to stay civil gation and issue subpoenas. 26 U.S.C.A. proceedings, postpone civil discovery, or im- (I.R.C. 1954) § 7602; Securities Exchange pose protective orders and conditions when Act of 1934, § 21(a) as amended 15 U.S.C.A. interests of justice seem to require such § 78u(a); Securities Act of 1983, § 19(b), 15 action. U.S.C.A.Const. Amen:d. 5. U.S.C.A. § 77s(b).

2. Administrative Law and Procedure 6. Federal Civil Procedure e::. 1272 *=341 Discovery may be available in some ParalJel investigations by Justice De- subpoena enforcement proceedings where partment and other agencies should not be circumstances indicate that further infor- blocked in absence of "special circumstanc- mation is necessary for courts to discharge es" in which nature of the proceedings de- their duties; however, district court must monstrably prejudices substantial rights of be cautious in granting such discovery investigated party or of government. U.S. right, lest they transform subpoena en- C.A.Const. A~end. 5. forcement proceedings into exhaustive in- 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

RPI 0163 1370 628 FEDERAL REPORTE~ 2d SERIES amended 15 U.S.C.A. § 78u(a); Securities Irvin B. Nathan, Deputy Asst. Atty. Gen., Act of 1938, § 19(b), 15 U.S.C.A. § 77s(b). Washington, D. C., with whom Phillip B.

7. Securities Replation C1P86 Heymann, Asst. Atty. Gen., Washington, D.

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 Exchange Act of 1934, § 21(a) as amended Before WRIGHT, Chief Judge, and U.S.C.A. § 78u(a); Securities Act of McGOWAN, TAMM, ROBINSON, Mac· 1938, § 19(b), 15 U.S.C.A. § 77s(b). KINNON, ROBB, WILKEY, WALD, 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- 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 issued 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. 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, 2. Jn No. 78-1705 Mr. Edward R. Luter, a senior 628 F.2d at 1384. vice president of Dresser, appeals from an or-

RPI 0164 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- I. BACKGROUND courage corporations to conduct investiga- tions of their past conduct and make appro- A. Origin of the Investigations priate disclosures without direct SEC coer- Illegal and questionable corporate pay- cion.5 Participation in the Voluntary Dis- ments surfaced as a major public problem closure Program would not insulate a corpo- in late 1973, when several major scandals ration from an SEC enforcement action, but implicated prominent American corpora- the Commission would be less likely to exer- tions in improper use of corporate funds to cise its discretion to initiate enforcement influence government officials in the Unit- actions against participants.6 The most im- ed States and foreign countries. The expo- portant elements of the Voluntary Disclo- sure of these activities disrupted public sure Program were (1) an independent com- faith in the integrity of our political system mittee of the corporation would conduct a and eroded international trust in the legiti- thorough investigation into q_µeutionable macy of American corporate operations foreign and domestic payments made by the 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 Recent investigations by the SEC have re- and Illegal Corporate Payments and Practices, 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

RPI 0165 1372 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; B. The Dresser Investigations 2. may have made false and misleading On January 27, 1976 an attorney and statements concerning the existence other representatives of Dresser met with of and circumstances surrounding members of the SEC staff to discuss a material obligations of Dresser to cer- proposed filing. At the meeting Dresser tain foreign governments and to oth- agreed to conduct an internal inquiry into er entities; and 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 questionable payment not reported in the Dresser's proxy soliciting materials, reports, earlier reports. JA 109-113. The reports and statements may have been misleading concerned Dresser's foreign activities after with respect to the potential risks involved November 1, 1973. All disclosures were in in its conduct of business through question- generic, not specific, terms. able foreign payments, and may have in- 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 access. The company argued that allowing Meanwhile, the Department of Justice the staff to make notes or copies might had established a task force on transnation- subject its documents to public disclosure al payments to investigate possible criminal through the Freedom of Information Act.u violations arising from illegal foreign pay- Dresser stated that such disclosure could ments. Two SEC attorneys participated in endanger certain of its employees working the task force. In the summer of 1977 the 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.

11. JA 71-76. 14. See JA 77 et seq.

12. JA 74.

RPI 0166 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 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 On May 1, 1978 the District Court in SEC without reaching the merits. Dresser Houston, Texas dismissed Dresser's suit appealed to the Fifth Circuit and on June 8 against Justice without opinion. Three obtained an order from the court that: days later, after the period for compliance Until the appeal in this case shaJI have with its subpoena had lapsed, the SEC ap- been decided in this court, and except for plied to the District Court for the District proceedings before the Grand Jury in the of Columbia for enforcement. In the mean- District of Columbia, the Securities and time, Dresser had appealed the adverse Exchange Commission, its officers and judgment in the Texas action to the Fifth employees, are enjoined to preserve invio- Circuit, and sought interim relief. On May late the confidentiality of any informa- 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.).

RPI 0167 1374 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 to Dresser to show cause why it should not A. Parallel Investigations 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 subpoena within ten days after notice from The Sherman Act provides for a criminal the SEC. JA 301, reported at 453 F.Supp. proceeding to punish violations and suits (D.D.C. 1978). Rehearing was denied on in equity to restrain such violations, and July 15. This appeal followed. the suits may be brought simultaneously Meanwhile, the United States Court of or successively. The order of their bring- Appeals for the Fifth Circuit affirmed the ing must depend upon the Government; decisions of the District Court for the the dependence of their trials cannot be Southern District of Texas dismissing fixed by a hard and fast rule or made Dresser's actions against Justice . and the imperatively to turn upon the character SEC in that court, largely on ripeness of the suit. Circumstances may deter- grounds. Dresser Industries, Inc. v. United mine and are for the consideration of the States, 596 F.2d 1231 (5th Cir. 1979), cert. court. An imperative rule that the civil denied, 444 U.S. 1044, 100 S.Ct. 731, 62 suit must await the trial of the criminal L.Ed.2d 730 (1980). Accordingly, the inter- action might result in injustice or take locutory injunction requiring the SEC to from the statute a great deal of its pow- preserve inviolate the confidentiality of er. • • • 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).

RPI 0168 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1375 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- ed an indictment, and subsequently convic- Id. at 11, 90 S.Ct. at 769 (footnote omitted). tions. The case reached the Supreme Court [l] The Constitution, therefore, does not upon appeal of the convictions of several of ordinarily require a stay of civil proceedings the company's officeru. pending the outcome of criminal proceed- The officers in Kordel argued that use of ings. See Baxter v. Palmigiano, 425 U.S. the civil discovery process to compel an- 308, 98 S.Ct. 1551, 47 L.Ed.2d 810 (1976); swers to interrogatories that could be used De Vita v. Sills, 422 F.2d 1172, 1181 (3d Cir. to build the government's case in a parallel 1970). Nevertheless, a court may decide in criminal proceeding "reflected such unfair- its discretion to stay civil proceedings, post- ness and want of consideration for justice" pone civil discovery, or impose protective orders and conditions "when the interests of as to require reversal. 397 U.S. at 11, 90 S.Ct. at 769. The Supreme Court did not justice seem[] to require such action, some- agree. The Court noted that the govern- times at the request of the prosecution, • • • 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- cution," id. at 11-12,. 90 S.Ct. at 769, or 397 U.S. at 12 n.27, 90 S.Ct. at 770 (citations without notice to the defendants that it omitted); see Horne Brothers, Inc. v. Laird, contemplated a criminal action, id. at 12, 90 463 F.2d 1268, 1271-1272 (D.C.Cir. 1972).

S.Ct. at 769. Moreover, the defendant was The court must make such determinations not unrepresented by counsel, id., and had in the light of the particular circumstances no reason to fear "prejudice from adverse of the case. 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

RPI 0169 1376 628 FEDERAL REPORTER, 2d SERIES deferring civil proceedings until after com- B. SEC Investigations 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 might undermine the party's Fifth Amend- 1934 ('34 Act), 48 Stat. 881, 15 U.S.C. § 78a ment privilege against self-incrimination, et seq. (1976). These statutes explicitly em· expand rights of criminal discovery beyond power the SEC to investigate possible in~ the limits of Federal Rule of Criminal Pro- fractions of the securities laws with a view cedure 16(b), expose the basis of the defense to both civil and criminal enforcement, and to the prosecution in advance of criminal to transmit the fruits of its investigations 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 of United States v. O'Connor, 118 F.Supp. evidence, and require production of any (D.Mass. 1953). Cf. Boren v. Tucker, 239 books, papers, correspondence, memoranda, F.2d 767, 772-773 (9th Cir. 1956) (distin- or other records which the SEC deems rele- guishing IRS summons enforcement before vant or material. Id., Section 21(b), 15 and after indictment). In some such cases, U.S.C. § 78u(b). If it determines that a however, the courts may adequately protect person "is engaged or is about to engage in 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

RPI 0170 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1377 Clle as 628 F.2d 1368 (1980) of the '33 Act, 15 U.S.C. §§ 77s(b), 77t(a), U.S. 917, 99 S.Ct. 2838, 61 L.Ed.~ 284 (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- larly, Justice must act quickly if it suspects United States v. LaSalle Nat'/ Bank that the laws have been broken. Grand [3] Dresser principally relies on an anal- jury investigations take time, as do criminal ogy to United States v. LaSalle Nnt'J Bank, prosecutions. If Justice moves too slowly 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 the statute of limitations m~y run, witness- (1978), 23 in which the Supreme Court said in es may die or move away, memories may dictum that the Internal Revenue Service fade, or enforcement resources may be di- (IRS) may not use its summons authority to verted. See United States v. Fields, 592 investigate possible violations of the tax F.2d 688, 646 (2d Cir. 1978), cert. denied, 442 laws after it 11as referred those violations to 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- Whenever it shall appear to the Commis- tute or will constitute a violation of the provi- sion, either upon complaint or otherwise, sions of this subchapter, or of any rule or that the provisions of this subchapter, or of regulation prescribed under authority there- any rule or regulation prescribed under au- of, it may[,) in its discretion, bring an action thority thereof, have been or are about to be in any district court of the United States or violated, it may, in its discretion, either re- United States court of any Territory, to en- quire or permit such person to file with it a join such acts or practices, and upon a prop- statement in writing, under oath, or other- er showing a permanent or temporary injunc- wise, as to all the facts and circumstances tion or restraining order shall be granted concerning the subject matter which it be- without bond. The Conunission may trans- 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:

RPI 0171 1378 628 FEDERAL REPORTER, 2d SERIES Justice for criminal prosecution. See id. at tice initiates a criminal investigation by the 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 against Dresser in connection with that file restricted to the terms and purposes of that lapsed at that time. Alternatively, Dresser provision. The Supreme Court said in La- suggests that, even if transmittal of the file Salle: was not analogous to a "referral" under In § 7602 Congress has bestowed upon 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 These two alternatives are vulnerable to made, determining the liability of any the same objection: the LaSalle rule applies "person for any internal revenue tax . solely to the statutory scheme of the Inter- or collecting any such liability." Con- nal Revenue Code, in which the IRS's civil gress therefore intended the summons authority ceases for all pr~ctical purposes authority to be used to aid the determina- 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, 25. The LaSalle rule-prohibiting enforcement the difference between these two formulations of an IRS summons after the IRS had referred is substantial. The Court did not explicitly the case to Justice for criminal prosecution- state why it shifted from the one to the other, 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. 508, 513, I I L.Ed.2d 459 (1964) (citing Boren v. applicable to parallel civil and criminal pro- Tucker, 239 F.2d 767, 772-773 (9th Cir. 1956)). ceedings, but on limitations unique to the IRS.

"Any other holding," according to the Donald-

RPI 0172 ,.

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- In the pre-referral stage of an IRS inves- gation discovery and to avoid infringing on tigation the civil and criminal elements of the role of the grand jury as a principal tool the investigation are intertwined. Id. at of criminal accusation. Id. at 312, 98 S.Ct. 308-311, 98 S.Ct. at 2363-2364. The same at 2365., 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 However, upon referral of the case to same alleged violations.

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 Thus, in the LaSalle Court's view, the "authorized in its discretion • * * 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 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 26. See Policies of the IRS Handbook, P-4-84, IRS, Civil Considerations in Pending Criminal reprinted in l CCH Internal Revenue Manual Matters, Order No. 3050.J (March 23, 1978).

1305-1310 (1978); Office of the Chief Counsel,

RPI 0173 1380 628 FEDERAL REPORTER, 2d SERIES virtuaJiy 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 laws 27-.:...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'/ 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 among those authorized by Congress,'' Unit- reasons. 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 Fulfillment of the SEC's civil enforce- purpose for issuing a summons after refer- ment responsibilities requires this conclu- ral of a case to Justice did it direct its sion. Unlike the IRS, which can postpone attention to these "policy interests." Then collection of taxes for the duration of paral- it did so solely to explain its imposition of a lel criminal proceedings without seriously "prophylactic" rule forbidding any use of injuring the public, the SEC must often act the IRS summons authority after referral quickly, lest the false or incomplete state- to Justice, as opposed to forbidding only ments of corporations mislead investors and such uses as are unrelated to the purposes infect the markets. Thus the Commission of Section 7602. 30 The Court did not impose 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 (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.

RPI 0174 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1381 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 investigation. might procure indirectly through the SEC.33 Second, the "policy interests" of LaSalle In fact, a party investigated under SEC have little practical significance in this con- rules instead of grand jury procedures is text. The first-to avoid broadening Jus- accorded far greater procedural protection, tice's right to criminal discovery-is flatly and has no cause to complain. See 17 inapplicable, as Dresser admits. 32 The C.F.R. §§ 203.6-203.7 (1979).34 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 nal Procedure 15-17, do not take effect in LaSalle : avoiding infringement upon until after a grand jury has returned an the role of the grand jury. Dresser sug- 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 (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- 32. Supplemental brief of appellant Dresser In· ney prescnL wllh him during any formal in- dustries, Inc. at 19 n.16. vesllgative proceeding and to have this attor- 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 34. 17 C.F.R. §§ 203.6--203.7 (1979) provide in person shall have the right to appear on the relevant part: · record; and in addition to the rights afforded § 203.6 Transcripts. other witnesses hereby, he shall have a rea- * * • A person who has submitted doc- sonable opportunity of cross-examination umentary evidence or testimony in a formal and production of rebuttal testimony or doc- investigative proceeding shall be entitled, umentary evidence. * • •

RPI 0175 1382 628 FEDERAL REPORTER, 2d SERIES gests two ways in which the SEC civil in- cy may be imposed on any person except 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- of a rec;ording device, a typist who tran- fore the grand jury, it is not a valid scribes recorded testimony, an attorney defense to disclosure that the same infor- for the Government, or any person to mation was revealed to a grand jury or whom disclosure is made under para- that the same documents had been, or graph (2)(A)(ii) of this subdivision shall were presently being, examined by a not disclose matters occurring before the grand jury. • • • 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 there was no probability of guilt." v. DaLesio, 82 F.R.D. 661. 668-669 (D.Md. Douglas Oil Co. v. Petrol Stops Northwest, 441 1979); Miche.l in 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 (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

RPI 0176 SECURITIES & EXCHANGB COM'N v. DRESSER INDUS. 1383 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 that a grand jury has subpoenaed docu- In another sense Dresser's complaint on ments concerning a particular matter does this score has little practical significance. not insulate that matter from investigation No one would suggest that the grand jur- in another forum. 38 In fact, if the grand ors, unassisted by accountants, lawyers, or jury proceedings are genuinely secret, other others schooled in the arcana of corporate agencies and courts will not know the sub- financial accounting, could sift through the 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 In this case Dresser is obligated under the great complexity, the grand jurors are as- securities laws to provide documents to the sisted-guided and influenced, in fact-not SEC in obedience to a lawful subpoena. only by the United States Attorneys as- 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 The second way in which Dresser argues F.2d 260 (7th Cir. 1978); Robert Haw- that enforcement of this subpoena might thorne, Inc. v. Director of IRS, 406 F.Supp. infringe the role of the grand jury is that 1098, 1106--1107 (E.D.Pa. 1975); Develop- the SEC could interpret and selectively dis- ments in the Law-Corporate Crime: Reg- close parts of the subpoenaed information ula.ting Corporate Behavior Thl'Ough Crimi- to the grand jury through Justice, thereby nal Sanctions, 92 Harv.L.Rev. 1Z~7, 1314- 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 F.Supp. 784, 790 (W.D.Mo. 1978); Record, 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. 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- ing of the grnnd jury. See In re Search War- court dated April 3, 1979.

RPI 0177 1384 628 FEDERAL REPORTER, 2d SERIES 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.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.

We conclude that the danger that en- IV. COOPE~ATION BETWEEN forcement of this subpoena might infringe SEC AND JUSTICE 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 held that the SEC must demonstrate a "particu- Criminal Procedure apply to it." Transcript of larized need" for grand jury materials in order oral argument at 49 (Dec. 11, 1978). If he was to obtain access to them, e.g., Jn re Grand Jury referring to Rule 16(b), then he was mistaken, Investigation, 414 F.Supp. 74, 76 (S.D.N.Y. for Rule 16(b) comes into play only after indict- 1976), and that administrative investigative ment. Jn fact, the grand jury's Investigative proceedings may not be considered preliminary powers are as broad as or broader than those to or in connection with a judicial proceeding of the SEC. Dresser cannot claim to be preju- for purposes of the Rule. See United States v. diced by the breadth of the SEC Investigative Bates, - F.2d - - (D.C.Cir. No. 79-1930, authority. decided April 18, 1980) (per curiam) (concern- ing a Federal Maritime Commission investiga- tion).

RPI 0178 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1385 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 at 18. The panel therefore affirmed the serve more to impede securities law en- District Court and ordered enforcement of forcement than to protect the interests of the SEC subpoena. Out of a concern that Dresser. 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 Firs't, we note that no party to this case statutes impose no limitation on when this had suggested or requested a modification transmittal may occur. The parties have such as that imposed by the panel majority, not cited any portions of the legislative either in the District Court or in this histories of these Acts relevant to this ques- court.n In supplemental briefs submitted tion, nor have we found any. But the SEC to the e~ bane court both the SEC and and Justice find considerable support for J ustice-·v1gorously oppose the modification, their interpretation in the legislative histo- while Dresser's support for it is lukewarm ry of the Foreign Corrupt Practices Act of at most. Dresser had argued that the SEC 1977, 91 Stat. 1494', Title I, 15 U.S.C. §§ 78a, investigation is flatly prohibited by the rule 78m, 78dd-1, 78dd-2, 78ff (Supp. I 1977). 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.

RPI 0179 1386 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 criminal prosecution does not become investigation could Justice obtain access to stale. * • • the evidence procured by the SEC. In view Id. at 12. It stated that it expected the of Congress' concern that the agencies SEC and Justice to "work out" between share information "at the earliest stage of themselves ·certain "arrangements * • • any investigation in order to insure that the on criminal matters" that would preserve evidence needed for a criminal prosecution the authority of each within its jurisdiction. does not become stale," S.Rep.No. 114, su- Id. The House Committee said: · pra, at 12, and that the agencies avoid "a Traditionally, there haa been a close costly duplication of effort," H.R.Rep.No. 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 with respect to the enforcement of the Third, we note that there is little or no provisions of this bill. judicial precedent for the panel's modifica- H.R.Rep.No; 640, 95th Cong., 1st Sess. 10 tion. The only' support adduced by the pan- (1977). el opinion is a District Court opinion in SEC v. Gilbert, 79 F.R.D. 683 (S.D.N.Y. 1978). In Although the legislative history of the Foreign Corrupt Practices Act is not direct- that case, which arose on the defendant's ly probative of congressional intent govern- request for a protective order under the ing the '33 and '34 Acts, these statements discovery rules of the Federal Rules of Civil by the 95th Congress are nevertheless enti· Procedure-as contrasted to an investiga- tled to some weight. The remarks in the tive subpoena enforcement proceeding as in committee reportS concerning the investiga- this case-the court ordered the SEC "not 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 imprac'tical for Us to attempt tO screen the In fact, the reasoning of the Supreme agencies frQm each other when they are Court in LaSalle is contrary to that of the investigating the same sort of offense un· panel in two respects, and should govern 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 Gellis v. Casey, 338 F.Supp. 651 (S.D.N.Y. the SEC without modification. SEC v. Druck· 1972). See panel slip op. at 12 n.29, 14 n.31.

RPI 0180 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1387 Cite 11628 F.2d 1368 (1980) Court considered, and explicitly rejected, statute of limitations problew. The the course adopted by the panel majority: more time a United States Attorney has, "[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 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: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 of complicating factors. There is, there- cies. We believe the courts can prevent any fore, no reason to impose a protective order injustice that may arise in the particular such as that imposed by the panel majority. circumstances of parallel investig-dtions in 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 by the United States Attorney minimizes disclosure program the SEC reserved its 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 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 enforcing the Foreign Corrupt Practices Act or with his responsibilities under Brady v. Mary- other regulatory laws involving parallel investi- land, 373 U.S. 83, 83 S.Ct. 1194, JO L.Ed.2d 215 gations; (2) that agency attorneys might not be (1963), and Jencks v. United States, 353 U.S. legitimately appointed as special assistant 657, 77 S.Ct. 1007, I L.Ed.2d ll03 (1957).

United States Attorneys to assist in preparing cases for grand juries; (3) that a grand jury 52. See text at notes 33-34 supra. witness might gain effective inununity from

RPI 0181 1388 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]," 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- current criminal investigation, with a view [7] We conclude that the District Court to the possibility that the SEC has proceed- acted within its discretion in denying Dress- ed in bad faith; (2) the ethical propriety of er discovery in this case, and that it proper- SEC agents' participation in the criminal ly granted judgment to the SEC on the investigation; (3) the existence of an SEC record before it. There was nothing im- commitment of confidentiality; and (4) the proper about the SEC's decision to transmit basis for .the SEC staff's decision to request \ the files of the participants in the Volun- a formal investigation of Dresser. See tary Disclosure Program to Justice, or brief of respondent-appeJlant at 36-42. about the subsequent concurrent investiga- [6] We recognize that discovery may be tions by the two agencies. Nor does the available in some subpoena enforcement participation of two SEC attorneys in the proceedings where the circumstances indi- Justice task force cast doubt upon the good cate that further information is necessary faith of the Commission. Dresser's allega- for the courts to discharge their duty. tions of an agreement by the SEC not to United States v. Fensterwald, 553 F.2d 231 subpoena the documents underlying its vol- (D.C.Cir. 1977) (per curiam ); United States untary report are not substantiated by any v. Wright Motor Co., 536 F.2d 1090 (5th Cir. writing, and are directly contrary to the 1976). For example, the Supreme Court in published terms of the Voluntary Disclosure Le.Salle apparently contemplated some de- Program. 53 Finally, Dresser's suggestion gree of discovery in IRS summons cases to that the order of investigation is improper determine the fostitutional good faith of because there was no "likelihood that a the IRS in issuing such summonses. United violation has been or is about to be commit- States v. LaSalle Nat'] Bank, supra, 437 ted," see 17 C.F.R. § 202.5 (1979), does not U.S. at 31~317, 98 S.Ct. at 2867; id. at 320, distinguish Dresser from any other recalci- 98 S.Ct. at 2369 (dissenting opinion); Unit- trant subpoena respondent. At this stage ed States v. Marine Midland Bank, 585 F.2d of the investigation neither this court nor 36, 38--89 (2d Cir. 1978) (per curiam ). the SEC could know whether Dresser has However; district courts must be cautious in violated the law. The Commission's discre- 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 supra.

RPI 0182 SECURITIES & EXCHANGE COM'N v. DRESSER INDUS. 1389 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 asserted attorney~client privilege of and the Supreme Court in FCC v; Schreiber, 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 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. 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 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., Disclosure Program is not privileged. Id. supra, 555 F.2d at 884-885; SEC v. Wheel- 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 confldentiali' does not alter the case. By the time the Com- ty are adequate and Dresser Is entitled to no 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

RPI 0183 1390 628 FEDERAL REPORTER, 2d SERIES (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- tection to certain documents where release Nuesse v. Camp, 385 F.2d 694, 702 (D.C.Cir. might endanger employees' lives abroad 1967). In cases of alleged corporate miscon- must be made in the first instance by the duct it is especially important for the courts Commission, which will be able to inspect to be alert to the possibilities of conflict 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- lege must be resolved in a similar manner: [9] In this case, however, we need not viewed initially by the Commission with judge whether the court was correct in its later review in the courts if necessary. conclusion that Mr. Luter has asserted no . We see no ground for reversal in the cognizable interest in the proceedings.

District Court's determinations on the con- With the benefit of hindsight, and informed fidentiality and attorney-client privilege is- by the arguments Mr. Luter has made on sues. his behalf in this appeal, we are able to The final issue in this case is that raised conclude that Dresser has adequately repre- 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- ing on bases of an alleged confidentiality rejected the right of Mr. Luter or any other interest on the part of the employees in Dresser employees to intervene in future certain documents and an alleged attorney- proceedings concerning this investigation. client privilege. The District Court reject- On the understanding that Mr. Luter or his ed Mr. Luter's motion to intervene, saying: fellow employees may seek to intervene in Mr. Luter has failed to demonstrate any future SEC proceedings concerning confi- 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). [8] We are somewhat troubled by the The judgments of the District Court are District Court's treatment of Mr. Luter's Affirmed.

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-

RPI 0184 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. 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

RPI 0185 JACKSON v. SMITH SEC. SERVICE, INC. Tex. 787 Cite u 716 8.W.2d 717 (Tu:.App.-Houtlon [111 Dl11.) 1990) tablish that ~he falls within the protected C.J., hE1ld that appeal in civil suit would be 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 Because Brunner has not alleged that of same incident, to avoid unjust conse- slie was handicapped, we cannot hold that quences of giving preclusive effect to crim- she has established that appellees discrimi- inal judgment if it were lat.er reversed on 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., EVANS, 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 Court of Appeals of Texas, Thiu Court's former order of December Houston (lat Dist). 21, 1989, is withdrawn, and the following 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- rights statute. The 284th District Court, ened to handcuff her to force her to remain 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

RPI 0186 788 Tex.· 786 SOUTH WESTERN REPORTER, 2d SERIES two hours despite her continuing protesta- tionary Review before the Court of Crimi- 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 for assault and battery, false imprison- The Texas Supreme Court has held that ment, slander, invasion of privacy, and vio- "a judgment is final for the purposes of lation of her civil rights under 42 U.S.C. issue and claim preclusion despite the tak- sec. 1983 (1989). She also sought exempla- ing of an appeal unless what is called an ry damages on the grounds that the defen- appeal actually consists of a trial de novo." dants had engaged in a malicious and un- Scurlock Oil Co. v. Smithwick, 724 S.W.2d justified civil conspiracy and had intention- 1, 6-7 (Tex. 1986); see also CLS Assoc., ally and negligently caused her emotional Ltd. v. A-B-, 762 S.W.2d 221, 223 (Tex. distress. App.-Dallas 1988, no writ); McCormick v. 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, based upon its conclusive showing that it Sav. & Loan Ins. Corp. v. Kennedy, 732 S.W.2d 1, 3 (Tex.App.-Houston [1st Dist.] was a stranger to the transaction and had no relationship with the other defendant, 1986, writ ref'd n.r.e.). This holding, which T.J. Maxx. Evidently, Jackson does not adopts the established rule in the federal complain of that ruling, and this appeal courts, is based on the Restatement (Sec- relates solely to the take-nothing summary ond) of Judgments section 16 (1982). judgment entered in favor of T.J. Maxx. In Scurlock, the Texas Supreme Court In its motion for summary judgment, T.J. recognized the "manifest risk" in resting Maxx asserted that it had a legal right to preclusion on a judgment's being appealed. engage in the conduct of which it was Scurlock, 724 S.W.2d at 6. The court fur- charged, and that Jackson's criminal con- ther noted that the second judgment should viction for shoplifting should be given pre- not be allowed to stand if the first judg- clusive effect with respect to each theory ment is later reversed. Id. 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 On oral submission, both parties agree could be remedied by an equitable bill of that Jackson's appeal from the criminal review in the. event the first judgment is conviction is pending Petition for Discre- later set aside. See 18 C. Wright, A. Miller

RPI 0187 LAMAR BUILDERS v. GUARDIAN SAY. AND LOAN Tex. 789 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 dure sec. 4488 (1981). injunction. The 883rd District Court, Har- Here, Jackson urges the adoption of one ris County, granted motion for temporary of the first two alternatives suggested, and order. Appeal was taken. The Court of she asks this Court either to stay the pro- Appeals, Evans, C.J ., held that motion ceedings in the trial court or to hold this failed to provide showing required for re- 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 hardship, delay, and inconvenience if the 1. Appeal and Error *=>468(3) dispute is not expeditiously determined. Injunction *=>189 Recognizing the disadvantages inherent While appeal from order denying inter- 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 It is so ORDERED. There is no necessity for party moving 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- No. 01-90-00092-CV. tion of motion and evidence as relators seeking relief through original proceeding Court of Appeals of Texas, Houston (let Dist.). to protect jurisdiction. Rules App.Proc., RuleE. 48, 121.

Feb. 26, 1990.

5. ln.-Junction $=>140 Motion was filed to stay presentment 1'o obtain injunctive relief under rule of· letters of credit which were subject of providing for temporary orders, movant

RPI 0188 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- ther to vindicate impermissible infer- No. &i. ences of guilt or to penalize privileged silence, but must instead presume that Argued Nov. 7, 1966. 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- tutionally permissible. From this, it barred and attorney appealed and moved surely follows that the warning given of for stay of operation of order of disbar- the possibility of discharge is constitu- ment. The Court of Appeals, 16 N.Y.2d tionally unobjectionable. Given the con- 1048, 266 N.Y.S.2d 126, 213 N.E.2d 457, 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 against them only if it is found that the 210, 214 N.E.2d 373, granted the motion statements were, when given, involun- to amend remittitur and certiorari was tary in fact. For the reasons stated granted. The Supreme Court. Mr. Jus- above, I cannot agree that these state- tice Douglas, held that refusal of attor- ments were involuntary in fact. ney to produce demanded financial rec- I would affirm the judgments of the ords or to testify at judicial inquiry on Supreme Co:irt of New Jersey. basis that production of records and his 2. The legislative history of N.J.Rev.Stat. who decline, on grounds of the privilege, 2A :81-17.1, N.J.S.A. provides nothing to disclose information pertinent to their which clearly indicates the purposes of the public responsibilities. Judge Frank quot- statute, beyond what is to be inferred from ed the following with approval: its face. In any event, the New Jersey " 'Duty required tlwnn to answer.

Supreme Court noted below that the State Privilege permitted. them to refuse to would be entitled, even without the statu- ans10er. T he11 ohose to e0eroise t he tory nuthorizntion, to diRcharge state em- privilege, but the ezerclse of Bllch. priv· p\oyee11 who declined to provide informa- ilogc was wholly bteonal.s tenl 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 to forecast the purpoees for which or cir- • • • lhey hod no co11atit11tio11ai cumstances in which New Jersey might right to remain poHce officers in the 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

RPI 0189 626 87 SUPREME COURT REPORTER 385 U.S. 511 testimony would tend to incriminate him ment privilege costly. U .S.C.A.Const. 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 1. CoMtttutlonal Law ~251 words of Fifth Amendment that no per- Self-incrimination clause of Fifth son shall be compelled in any case to be Amendment has been absorbed in Four- witness against himself and no exception teenth Amendment and applies to states; can be implied. U.S.C.A.Const. Amend. overruling Cohen v. Hurley, 366 U.S. 117, 6. 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 2. Constitutional Law ~806 proceeding, applicability of privilege Self-inc."imination clause of Fifth against self-incrimination to records of attorn~y was not questioned and attorney Amendment as absorbed in Fourteenth Amendment extends its protection to was disbarred on theory that privilege lawyers and should not be watered down was applicable to records but that in- by imposing dishonor of disbarment and vocation of privilege could lead to dis- deprivation of JivelihooC: as price for as- barment, disbarment could not be affirm- serting it; overruling Cohen v. Hurley, ed on ground that privilege was not ap- 366 U.S. 11'1, 81 S.Ct. 954, 6 L.Ed.2d 156. plicable in first place. U.S.C.A.Const. U.S.C.A.Const. Amends. 5, 14. Amend. 5; Supreme Court Rules, App. 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 cial records and to testify at judicial in- Lawrence J. Latto, Washington, D. C., quiry on basis that production of records for petitioner. 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 which makes assertion of Fifth Amend- financial records and refused to testify at

RPI 0190 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. affirmed, 16 N.Y.2d 1048, 266 N.Y.S.2d su.

126, 213 N.E.2d 457, 17 N.Y.2d 490, 267 The 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 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. state trial judge should have been sus- 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, as here, an attorney relying on his privi- The Appellate Division distinguished lege against self-incrimination refused to Malloy v. Hogan on the ground that there testify and was disbarred. The majority the petitioner was not a member of the of the Court allowed New York to con- Bar. 24 A.D.2d, at 654. And the Court strue her own privilege against self-in- of Appeals rested squarely on Cohen v. crimination so as not to make it available Hurley as one of the two grounds for af- in judicial inquiries of this character firmance.1 (366 U.S., at 125-127, 81 S.Ct., at 959, 960) and went on to hold that the Self- [1-3] And so the question emerges Incrimination Clause of the Fifth whether the principle of Malloy v. Hogan Amendment was not applicable to the is inapplicable because petitioner is a States by reason of the Fourteenth. Id., member of the Bar. We conclude that U.S. at 127-129, 81 S.Ct. at 960-962. Cohen v. Hurley should be overruled, that The minority took the view that the full the Self-Incrimination Clause of the sweep of the Fifth Amendment had been Fifth Amendment has been absorbed in absorbed into the Fourteenth and extend- the Fourteenth, that it extends its pro- ed its protection to lawyers as well as tection to lawyers as well as to other in- other persons. dividuals, and that it should not be 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.

I. "Order affirmed on the authority of by Mm. Dn\118 v. Unltnrl .'tnt s, 328 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 lege does not apply to a demand, not for 1018. 1050, 266 N.Y.S.2tl 126. 127, 213 oral testimony, but that nn attorney pro· N.E.211 •J57-•11)8. duce records required by law to be kept

RPI 0191 628 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. tion of books and papers of the owner of We find no room in the privilege against goods sought to be forfeited was held to self-incrimination for classifications of be compelling him to be a witness against people so as to deny it to some and extend himself. it to others. Lawyers are not excepted 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, pre-Malloy v. Hogan, construction of the encl to suffer no penalty • • • for Fifth Amendment. We do not stop to re· such silence," a11 declared In Malloy v. 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.)

RPI 0192 386 U.S. 618 SPEVAOK v. KLEIN 629 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 ment or final order thereon, or after the records, but that the price he might dismissal or discontinuance of any action have to pay was disbarment. The Court. or proceeding brought.'' of Appeals was the first to suggest that 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 The Shapiro case dealt with a federal procedure would deny him all opportunity 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 to testify le a question we did not reach. Practice Annual of New York 9-24 (1964).

RPI 0193 630 87 SUPREME COURT REPORTER 385 U.S. 618 given a broad sweep 11 and to ment by the State. This Court has never 619 held, for example, that a policeman may 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 Reversed. HO lash in a Mr. Justice FORTAS, concurring in subsequent criminal proceeding. Gar- the judgment. rity v. State of New Jersey, 385 U.S. 493, 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 • • • • "Q. But the demand was for records • to give oral testimony."

beyond the records that he w11.s required to keep.

RPI 0194 886 U.S. 622 SPEVAOK v. KLEIN 631 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- If this case presented the question posing on them no higher standards of whether a lawyer might be disbarred for behavior than might be acceptable in the refusal to keep or to produce, upon prop- general market-place. The soundness of 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- tions in relation to him as licensor of his Six years ago a majority of this Court, high calling, I should feel compelled to in Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. vote to affirm, although I would be pre- 954, 6 L.Ed.2d 156, set its face against pared in an appropriate case to re-exam- the doctrine that now prevails, bringing ine the scope of the principle announced to bear in support of the Court's holding, in Shapiro v. United States, 335 U.S. 1, among other things, the then-established 68 S.Ct. 1375, 92 L.Ed. 1787 ( 1948). I constitutional proposition that the Four- am not prepared to indicate doubt as to teenth Amendment did not make appli- the essential validity of Shapiro. How- cable to the States the Fifth Amendment ever, I agree that the required rec- as such. Three years later another ma- ords issue is not appropriately presented jority of the Court, in Malloy v. Hogan, here, for the reason3 stated by my 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, Brother DOUGLAS. On this basis I decided to make the Fifth Amendment join in the judgment of the Court. applicable to the States and in doing so cast doubt on the continuing vitality of Mr. Justice HARLAN, whom Mr. Jus- Cohen v. Hurley. The question now is tice CLARK and Mr. Justice STEWART whether Malloy requires the overruling join, dissenting. of Cohen in its entirety. For reasons 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 522 521 Nor 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 It exposes this Court itself to the pos- them. These diversionary questions have sible indignity that it may one day have of course not been presented or even re- to admit to its own bar such a lawyer motely suggested by this case either here unless it can somehow get at the truth of or in the courts of New York. The plurality opinion'1::1 vivid rhetoric thus suspicions, the investigation of which the applicant has previously succeeded in serves only to obscure the issues with blocking. For I can perceive no distinc- which we are actually confronted, and to tion between "admission" and "disbar- hinder their serious consideration. The ment" in the rationale of what is now true question here is instead the proper held. The decision might even lend some scope and effect of the privilege against 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-

RPI 0195 632 87 SUPREME COURT REPORTER 385 U.S. 622 ings against attorneys.1 In particular, Court would require their consideration. we are required to determine whether pe- Bates v. City of Little Rock, 361 U.S. titioner's disbarment for his failure to 516, 80 S.Ct. 412, 4 L.Ed.2d 480. I 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 important question warrants more com- It cannot be claimed that the purposes plete and discriminating analysis than served by the New York rules at issue that given to it by the plurality opinion. here, compendiously aimed at "ambu- 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 consideration of two factors: the his- the applicant's fitness or capacity," 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- to the Fourteenth Amendment by this tice in New York, the Appellate Division, 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 facts representing petitioner's alleged con- the premise that hie claim of privilege wns duct were not such as to entitle him to properly 11sserted.

RPI 0196 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 courts since Edward I have endeavored vary widely in kind and intensity, and 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 to public confidence in those systems. which are often at stake in such cases.

Such efforts give appropriate recognition It would assure the integrity of the to the principle accepted both here and privilege, and yet guarantee the most 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 The rules at issue here are in form and hazards and characteristics of each con- spirit a continuation sequence. of these efforts, One such rule has already been plainly 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 2. The history of these efforts is outlined 4. Evidences of this principle may be found 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; 3. These efforts are traced in Warren, His- Gideon v. Wainwright, 372 U.S. 335, 83 tory of the American Bar, passim. S.Ct. 792, 9 L.Ed.2d 799.

87 S.Cl.-401/z

RPI 0197 634 87 SUPREME OOURT REPORTER 38'5 U.S. 526 a claimant of the privilege against the 588 527 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 he receive the benefits of the status. These principles have also been em- He may not by his interjection of the ployed by this Court to hold that failure privilege either diminish his obligation to incriminate one's self can result in to establish his qualifications, or escape denial of the removal of one's case from the consequences exacted by the State a state to a federal court, Maryland v. for a failure to satisfy that obligation. Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, 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 right to receive a commission as an Army This Court has applied similar prin- officer, although he had apparently sat· ciples in a series of cases involving isfied every other prerequisite for a com- claims under the Fourteenth Amend- mission. The Court expressly noted that ment. These cases all antedate Malloy "[n]o one believes he can be pun- v. Hogan, and thus are presumably now ished" for asserting the privilege, but subject to the "federal standards," but said that it had "no hesitation" in hold- until today those standards included the principles of Orloff v. Willoughby, and ing that the petitioner nonetheless could not both rely on the privilege to deny Malloy v. Hogan therefore could not alone relevant information to the commission- require a different result. The fulcrum of these cases has been Slochower v. ing authorities and demand that he be appointed to a position of "honor and Board of Higher Education of City of trust." 345 U.S., at 91, 73 S.Ct., at 539. New York, 350 U.S. 551, 76 S.Ct. 637, The Court concluded that "we can- 100 L.Ed. 692. The appellant there was an associate professor at Brooklyn Col- not doubt that the President of the United States, before certifying his con- lege who invoked the Fifth Amendment fidence in an officer and appointing him privilege before an investigating com- to a cpmmissioned rank, has the right mittee of the United States Senate, and was subsequently discharged from his to learn whatever facts the President thinks may affect his fitness." Ibid. position at the college by reason of that 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: Court held that an alien whose deporta- first, the Board had attached a "sinister tion had been ordered was ineligible for meaning," in the form of an imputation 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 to be ineligible because he had failed not engaged in a bona fide effort to to establish that he was not affiliated elicit information relevant to assess the with the Communist Party, in that he "qualifications of its P.mployees." Tha refused to answer questions about mem- state authorities "had possessed the bership in the Party on grounds that pertinent information for 12 years," and

RPI 0198 386 U.S. 629 SPEVAOlt v. KLEIN 635 Cite as 87 s.ct. 62IS (1967) in any event the questions put to Sloch- low that under the construction consis- ower tently given by this Court both to the 528 privilege under the Fifth Amendment 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 The petitioner here does not contend, emphasized, the plurality has intensified and the plurality opinion does not sug- this protection still further with the gest, that the state courts have derived broad prohibitory rule it has announced any inference of guilt from petitioner's today in Garrity v. State of New Jersey, claim of the privilege. The state courts 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d have expressly disclaimed all such in- 562. It is true that this Court has ferences. 24 A.D.2d 653, 654. Nor is on occasion gone a step further, and it suggested that the proceedings against forbidden the practices likely to produce petitioner were not an effort in good involuntary disclosures, but those cases faith to assess his qualifications for are readily distinguishable. They have continued practice in New York, or that uniformly involved either situations in the information sought from petitioner which the entire process was thought was not reasonably relevant to those both to present excessive risks of coer- qualifications. It would therefore fol- cion and to be foreign to our nccusatorial

RPI 0199 636 87 SUPREME COURT REPORTER 385 U.S. 629 system, as in Miranda v. State of Ari- aa5 11.s. 511 zona, 384 U.S. 436, 86 S.Ct. 1602, 16 Edward J, GARRITY et al., Appellants, L.Ed.2d 694, or situations in which the v. 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, as in Griffin v. State of California, 380 v. U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Solomon A. KLEIN.

Both situations are plainly remote from Nos. 13, 62. that in issue here. None of the reasons Jan. 16, 1967. thought to require the prohibitions 630 Dissenting opinion. estab- For majority opinions see 87 S.Ct. lished in those cases have any relevance in the situation now before us; nothing 616, 625. in New York's efforts in good faith to Mr. Justice WHITE, dissenting. assure the integrity of its judicial system destroys, inhibits, or even minimizes the In No. 13, Garrity v. State of New petitioner's constitutional privilege. Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 There is therefore no need to speculate L.Ed.2d 562, the Court apparently holds whether lawyers, or those in any other that in every imaginable circumstance profession or occupation, have waived the threat in some unspecified fashion a measure of 531 the protection afforded by the constitu- of discharge issued by one pub- tional privilege; it suffices that the State lic officer to another will be impermis- is earnestly concerned with an urgent sible compulsion sufficient to render sub- public interest, and that it has selected sequent answers to questions inadmis~ methods for the pursuit of that interest sible in a criminal proceeding. I would which do not prevent attainment of the agree that in some, if not in most, cases privilege's purposes. this would be the proper result. But the 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 barment of the petitioner. Today's appli- HARLAN that the findings of the two cation of the privilege serves only to ham- courts below shouJd not be overturned. per appropriate protection of other fun- damental public values. 5 However that may be, with Garrity on 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, unnecessary to reach the alternative basis 87 S.Ct. 625, 17 L.Ed.2d 574. The peti- of the Court of Appeals' decision, the tioner in that case refused to testify and "required records doctrine." See Shapiro to produce any of his records. He in- v. United States, 335 U.S. l, 68 S.Ct. criminated himself in no way whatso- 1375, 92 L.Ed. 1787. ever. The Court nevertheless holds that he may not be disbarred for his refusal I would affirm the judgment of dis- to do so. Such a rule would seem justifi· barment. able only on the ground that it is an es- 5. It shoulcl be noted thnt the 11rini•ir1le lege, hns been ntloptecl ln a vnrlety of thnt a license or status may be cleniecl to situations by statute. See, e. g., 12 one who refuses, under the shelter of the u.s.c. § 481; 47 u.s.c. §§ 308(b), 312 constitutional privilege, to disclose infor- (a) (4); 5 U.S.C. § 2283. mation pertinent to thnt status or privi-

RPI 0200 406 U.S. 441 XASTIGAR v. UNITED STATES 1653 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 V.& -Ml, 311 :r..JJU4 !1112 not necessarily impeach the verdict of a new jury on retrial. But that conclu- Char.lea JOlleph KASTIGAB and Michael sion is wholly consistent with the view Gorean Stewari, Petitioners, that the doubts of dissenting jurors v. 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 been selected properly, and every juror before a grand jury and to answer ques- is a competent and rational person, then tions under grant of immunity and, on 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- mines. the principle on which our whole mensurate with that afforded by the 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 pation we have elsewhere recognized as over claim of privilege. The Court also a constitutional requirement. It should held that in any subsequent criminal be emphasized, however, that the fenc- prosecution of a person who has been ing-out problem goes beyond the prob- granted immunity to t!!stify, the pros· 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

RPI 0201 1654 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 Affirmed. privilege and is sufficient to compel tes- 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 I. Criminal Law ~898(1) was unnecessary to court's decision could Fifth Amendment privilege against not be considered binding authority. 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 Z. Crbnlnal Law ¢:::1898('1) that evidence proposed to be used is de- Fifth Amendment privilege against rived from legitimate source wholly in- compulsory . self-incrimination protects dependent of compelled testimony. against any disclosures which witness U.S.C.A.Const. Amend. 5; 18 U.S.C.A. reasonably believes could be used in crim- §§ 6001-6005, 6002, 6003. inal prosecution or could lead to other evidence which might be so used. U.S. Syllabus* 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 4. Witnesses «S=>S04(S) testimony over a claim of the privilege.

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

RPI 0202 406 U.S. 443 KASTIGAR v. UNITED STATES 1655 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- Sol. Gen. Erwin N. Griswold, for re- trict Court, and each persisted in his re- spondent. fusal to answer· the grand jury's ques- tions, notwithstanding the grant of im- .J!tz ...LMr. Justice POWELL delivered the munity. The court found both in con- opinion of the Court. tempt, and committed them to the cus- 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 before a United States grand jury in the is necessary to grant immunity from Central District of California on Febru- prosecution for offenses to which com- ary 4, 1971. The Government believed pelled testimony relates ("transaction- that petitioners were likely to assert their al" immunity). 402 U.S. 971, 91 S.Ct. Fifth Amendment privilege. Prior to the 1668, 29 L.Ed.2d 135 (1971). scheduled appearances, the Government applied to the District Court for an order directing petitioners to answer questions I 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 n. 15, 76 B.Ct. 497, 507, 100 L.Ed. remarks of the Duke of Argyle and Lord (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).

RPI 0203 1656 92 SUPREME COURT REPORTER 406 U.S. 443 power to compel testimony, and the cor- L.Ed. 979. Such testimony consti- responding duty to testify, are recognized tutes one of the Government's primary ..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 "Among the necessary and most im- disclosures which the witness reasona- portant of the powers of the States as bly believes could be used in a criminal well as the Federal Government to as- prosecution or could lead to other evi- sure the effective functioning of gov- dence that might be so used.11 This ernment in an ordered society is the Cour.t hu been zealous to safe&'Uard the broad power to compel residents to values which underlie the privilege.12 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- States, 260 U.S. 273, 39 S.Ct. 468, 63 risprudence,13 are not incompatibl!!J_with ..Jiu 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 7. See Blair v. United States, 1t1pro, ~ States, 116 U.S. 616, 635, 6 S.Ct. 524, U.S., at 281, 39 S.Ct., at 471; 8 Wig· 684, 29 L.Ed. 746 (1886). 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 U.S., at 94, 84 S.Ct., at 1611 (White, immunity atatute enacted in 1774 by the 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 (1924) ; United Statea v. Saline Laws of New York 621, 623 (1894).

Bank, 1 Pet. 100, 7 L.Ed. 69 (1828) : cf. Theae atatutea provided that the lo11er Gardner v. Broderick, 892 U.S. 278, 88 could sue the winner, who waa compelled S.Ct. 1918, 20 L.Ed.2d 1082 (1968). to answer the loser's charges. After the wfnner re&Ponded and retnrned his ill·

RPI 0204 406 U.S. 447 KASTIGAR v. UNITED STATES 1657 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, Macclesfield. The Lord Chancellor was 5 Colonial Laws of New York s:n, 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 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 Province of Pennsylvania (1682-1776), 6 15. See 8 'Wigmore, supra, n. 2, § 2281, at Pennsylvania Archives (8th series) 4679 492. Mr. Justice White noted in his (C, Hoban ed. 1935) ; Law of Mar. 24, concurring opinion in Murphy v. Water- 1772, c. 1542, 5 Colonial Lawe of New front Comm'n, 378 U.S., at 92, 84 S.Ct., 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· tice: Treading the Constitutional Tight· 16. See Comment, n. 13, supra, 72 Yale L.J., rope, 72 Yale L.J. 1568 (1963) ; Wendel, at 1576.

RPI 0205 1658 92 SUPREME COURT REPORTER 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,2 0 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- mann v. United States, 350 U.S. 422, 76 [ 4] Petitioners' second contention is 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- _l!u _i_II plant the privilege and compel testimony 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- tional Commission on Reform of Federal Act of 1893, 27 Stat. 443, the moilel for 0l'iminal Laws, Working Papers, 1444- almost all federal immunity statutes prior 1445 (1970). to the enactment of the statute under consideration in this case. See Murphy v. 18. For a listing of theee statutes, see 8 Waterfront Comrn'n, 378 U.S., at 95, 84 Wigmore, 1upra., n. 2, f 2281, at 495 n. 11. S.Ct., at 1612 (White, J., concurring).

19. See, e. g., 8 J. Wigmore, Evidence § 22. Accord, Gardner v. Broderick, 392 U.S., 2281, at Ml (3d ed. 194-0) ; 8 Wigmore, at 276, 88 S.Ct.. at 1915 i Murphy v. aupra, n. 2, § 2281, at 496. "'aterfront Comm'n, supra; McCarthy v. Arndstein, 266 U.S., at 42, 45 S.Ct., 20. See Hale v. Henkel, 201 U.S. 43, 70, 26 at 17 (Brandeis, J.); Heike v. Uniteo..I S.Ct. 370, 377, 50 L.Ed. 662 (1906); States, 227 U.S. 131, 142, 33 S.Ct. 226, Brown v. Walker, 161 U.S., at 610, 16 228, 57 L.Ed. 450 (1913) (Holmes, J.).

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 reference to the Compulsory Testimony u.s.c. §§ 6001~.

RPI 0206 406 U.S. 450 KABTIGAR v. UNITED STATES 1659 ctte aa 92 s.ct. 1e:sa (1972) The constitutional inquiry, rooted in be given in evidence, or in any manner logic and history, as well as in the deci- used against him . in any court sions of this Court, is whether the im- of the United States . "21 No~ munity granted under this statute is co- withstanding a grant of immunity and extensive with the scope of the privi- order to testify under the revised 1868 lege." If so, petitioners' refusals to an- Act, the witness, asserting his privilege 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 supra. If, on the other hand, the im- 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 1868," provided that no "evidence ob- "We are clearly of opinion that no tained from a party or witness by means statute which leaves the party or wit- ..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 26. 15 Stat. 37. effect." Id., at 5815, 12 S.Ct., at 206.

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.

RPI 0207 1660 92 SUPREME COURT REPORTER 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- for that prohibition. In view of the jected to any penalty or forfeiture for constitutional provision, a statutory or on account of any transaction, enactment, to be valid, must afford ab- matter or thing, concerning which he solute immunity against future prose- may testify, or produce evidence, cution for the offence to which the documentary or otherwise " 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 on Jan. 27, 1892. 23 Cong.Rec. 573. Commiasion recommended legislation to re· form the federal immunity laws. The 32. 23 Cong.Rec. 6333. recommendation served as the model for this statute. In commenting on its pro· 33. Act of February 11, 1893, 27 Stat. poeal in a special l'eport to the President, 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- Cong.Rec. 573, 6883, and Congressman sequence flowing from a violation of the Wise, who introdu~ the bill in the iodividunl'e conetitutional right to be pro· House. 24 Cong.Rec. ISOS. See Shapiro tccted from u11rea8onoble eearchea and v. United Stot&IJ, 335 U.S. 1, 2S-29 seizures, hia conetitutiooal right to coun· 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 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· 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

RPI 0208 406 U.S. 454 KASTIGAR v. UNITED STATES 1661 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 Counselman, as elaborated in subsequent (6] Our holding is consistent with decisions of the Court, namely, that im- the conceptual basis of Counselman. The _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 [5] The statute's explicit proscrip- emphasized this deficiency, noting that tion of the use in any criminal case of the statute: "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 the scope of the privilege against self- that it: incrimination, and therefore is suffi- "could not prevent the obtaining and cient to compel testimony over a claim the use of witnesses and evidence which of the privilege. While a grant of im- should be attributable directly to the 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 munity from prosecution for the offense have been convicted," ibid. ; to which the compelled testimony and that it: relates, affords the witness considerably broader protection than doos the Fifth "nfford no protection against that Amendment privilege. The pl'iv ilege has use of compelled testimony which con- never been construed to menn that one sists in gaining therefrom a knowl- who invokes it cannot su bseq uently be edge of tho details of a crime, and of prosecuted. Its sole concern is to afford sources of information which may protection against being "forced lo give supply other means of convicting the testimony leading to the Infliction of witness or party." 142 U.S., at 586, 12 'penalties affixed to criminal S.Ct., at 206. acts.' " 38 Immunity from the use of com- pelled testimony, as well as evidence de- The basis of the Court's decision was rived directly and indirectly therefrom, recognized in Ullmann v. United States, 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, 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).

RPI 0209 1662 92 SUPREME COURT REPORTER 406 U.S. 464 that the Counselman statute was in- Waterfront Commission of New York sufficient: Harbor. After refusing to answer "because the immunity granted was certain questions on the ground that the incomplete, in that it merely forbade answers might tend to incriminate them, the use of the testimony given and fail- petitioners were granted iJ!!!lunity from .J.!56 ed to protect a witness from future prosecution under the laws of New prosecution based on knowledge a.nd Jersey and New York."' They continued sources of information obta.ined from to refuse to testify, however, on the the compelled testimony." Id., at 437, ground that their answers might tend S.Ct., at 506. (Emphasis sup- to incriminate them under federal law, plied.) to which the immunity did not purport 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- necessary to the Court's decision, and The issue before the Court in Murphy cannot be considered binding authority.39 was whether New Jersey and New York 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, 76 594-59~, 16 S.Ct., at 641>-646, and Hale L.Ed. 210 (1931), the Co1maelrnan. dictum 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 against self.incrimination, as they did note, however, that the Fifth Amend- provided full immunity from prosecution ment privllege prohibits the "use" of "for or on account of nny transaction, compelled eelf-incrlminatory testimony. 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 Is true of Smith v. United States, 337 of Counselman was that the Counaelm11n 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 States v. Monie, 317 U.S. 424, 4~, 428, compelled testimony. See also Arndsteln 63 S.Ct. 409, 410, 411, 87 L.Ed. 376 v. McCarthy, 254 U.S., at 73, 41 B.Ct., (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, S.Ct., at 199.

RPI 0210 406 U.S. 458 KASTIOAR v. UNITED STATES 1663 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- a witness to give testimony which could munity only from the use of the com- 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 that the privilege protects state witnesses position as if the witness had claimed .Jin against incril!i!iation under federal as his privilege in the absence of a state well as state law, and federal witnesses grant of immunity." Id., at 79, 84 S.Ct., against incrimination under state as well at 1610. as federal law. Applying this principle to the state immunity legislation before it, It is true that in Murphy the Court the Court held the constitutional rule was not presented with the precise ques- to be that: tion presented by this case, whether a 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 federal officials in connection with a this question,« because post-Counselman 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.

RPI 0211 1664 92 SUPREME COURT REPORTER 406 U.S. 468 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 compel the conclusion that use and deriv- immunity. We start from the premise, ative-use immunity is constitutionalJy repeatedly affirmed by this Court, that sufficient to compel testimony over a an appropriately broad immunity grant claim of the privilege. Since the privi- is compatible with the Constitution. lege is fully applicable and its scope is the same whether invoked in a state or in Petitioners argue that use and deriva- a federal jurisdiction,47 the Murphy con- tivP.-use immunity will not adequately clusion that a prohibition on use and protect a witness from various possible derivative use secures a witness' Fifth incriminating uses of the compelled Amendment privilege against infringe- testimony: for example, the prosecutor ment by the Federal Government demon- or other Jaw enforcement officials may strates that immunity from use and obtain leads, names of witnesses, or other derivative use is coextensive with the information not otherwise available scope of the privilege. As the Murphy that might result in a prosecution. It Court noted, immunity from use and will be difficult and perhaps impossible, derivative use "leaves the witness and the the argument goes, to identify, by testi- Federal Government in substantially the mony or cross-examination, the subtle .J!.H same positio!!J!s if the witness had claim- ways in which the compelled testimony ed his privilege" " in the absence of a may disadvantage a witness, especially in grant of immunity. The Murphy Court the jurisdiction granting the immunity. was concerned solely with the danger of incrimination under federal law, and held This argument presupposes that the that immunity from use and derivative statute's pr!!!_ibition will prove impos- .l!.•o use was sufficient to displace the danger. sible to enforce. The statute provides a This protection coextensive with the sweeping proscription of any use, direct privilege is the degree of protection or indirect, of the compelled testimony that the Constitution requires, and is and any information derived therefrom: 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- IV tion) may be used against the witness in any criminal case " 18 Although an analysis of prior deci- u.s.c. § 6002. sions and the purpose of the Fifth Amendment privilege indicates that use This total prohibition on use provides 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- 46. E. g., Albertson v. Subveraive Activities is the SRme in sto.te and in federal pro· Control Board, 882 U.S., at 80, 86 S.Ct., ceedlngs. Murphy v. Waterfront Comm'n, o.t 199; Arndstein v. McCarthy, 254 U.S., 378 U.S., at 79, 84 S.Ct., at 1~1610. 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· 11. 84 S.Ct., at 1494-1495 the Court held erick, 892 U.S., at 276, 88 S.Ct., at 1915, that the BBme standards would determine "[a)nawera may be compelled regardless the extent or scope of the privilege In of the privilege if there la immunity from state ancl in federal proceedings, because federal and state use of the compelled tee· the Bame substantive guarantee of the Bill timony or it& fruits In connection with a of Rights is involved. The Murph11 Court crlmino.l prosecution o.galnst the person emphasized that the acope of the privilege testifying."

RPI 0212 406 U.S. 462 XASTIGAR v. UNITED STATES 1665 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 This burden of proof, which we reaffirm through a grant of immunity may be in as appropriate, is not limited to a nega- a stronger position at trial than a de- tion of taint; rather, it imposes on the fendant who asserts a Fifth Amendment prosecution the affirmative duty to coerced-confession claim. One raising a prove that the evidence it proposes to use claim under this statute need only show is derived from a legitimate source that he testified under a grant of im- whoJly independent of the compelled testi- munity in order to shift to the govern- mony. ment the heavy burden of proving that all of the evidence it proposes to use was .Jiu .J..This is very substantial protection,111 derived from..lJegitimate independent .Jiu commensurate with that resulting from sources.M On the other hand, a de:fend- invoking the privilege itself. The ant raising a coerced-confession claim privilege assures that a citizen is not under the Fifth Amendment must first compelled to incriminate himself by his prevail in a voluntariness hearing before own testimony. It usually operates to his confession and evidence derived from allow a citizen to remain silent when ask- it become inadmissible.ae 50. See, e. (J., Albertson v. Subversive Ac- because it is compelled incrimination in tivities Control Board, 382 U.S., at 80, violation of the privilege. Malloy v. Ho- S.Ct., at 199. gan [878 U.S. 1, 7-8, 84 S.Ct. 1489, at 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, S.Ot., at 444; Bram v. United States, 54. Jackson v. Denno, 878 U.S. 368, 84 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 immunity and indeed la excluded in part 56. Jackson v. Denno, •llf)ra.

RPI 0213 1666 92 SUPREME COURT REPORTER 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 We conclude that the immunity pro- witness could therefore be compelled to vided by 18 U.S.C. § 6002 leaves the wit- testify, a ruling that made "transactional ness and the prosecutorial authorities immunity" part of the fabric of our con- in substantially the same position as if stitutional law. Ullmann v. United the witness had claimed the Fifth States, supra, 360 U.S., at 438, 76 S.Ct., Amendment privilege. The immunity at 50. therefore is coextensive with the privilege This Court, however, apparently be- and suffices to supplant it. The judg- lieves that Counselman and its progeny ment of the Court of Appeals for the were overruled sub silentio in Murphy v. Ninth Circuit accordingly is Waterfront Comm'n, 378 U.S. 52, 84 Affirmed. S.Ct. 1594, 12 L.Ed.2d 678, Murphy in- 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 My views on the question of the scope our federal structure may compel a wit- of immunity that is necessary to force a ness to give testimony which could be .J.!.63 witness to give up his gua..!l!.ntee against used to convict him of a crime in another self-incrimination contained in the Fifth jurisdiction." Murphy v. Waterfront Amendment are so well known, see Ull- Comm'n, supra, 378 U.S., at 77, 84 S. mann v. United States, 350 U.S. 422, 440, Ct., at 1608. But Counselman,J!-S the .J.!.U 76 S.Ct. 497, 507, 100 L.Ed. 511 (dis- Murphy Court recognized, "said nothing senting), and Piccirillo v. New York, 400 about the problem of incrimination under U.S. 548, 549, 91 S.Ct. 520, 521, 27 L.Ed. the law of another sovereign." Id., at 2d 596 (dissenting), that I need not write 72, 84 S.Ct., at 1606. That problem is one at length. of federalism, as to require transactional In Counselman v. Hitchcock, 142 U.S. immunity between jurisdictions might 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 munity test: "In view of the constitu- the basis of another state's grant of tional provision, a statutory enactment, immunity [a result which] would be to be valid, must afford absolute immu- gravely in derogation of its sovereign- nity against future prosecution for the ty and obstructive of its administra-

RPI 0214 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 Moreover, as Mr. Justice Brennan has (Harlan, J., concurring and dissenting); pointed out, the threat of future prose- Mansfield, The Albertson Case: Con- cution flict Between the Privilege Against Self- 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 fade when the jurisdiction bringing If, as some have thought, the Bill of the prosecution differs from the juris~ Rights contained only "counsels of mod- diction that compelled the testimony. eration" from which courts and legisla- Concern over informal and undetected tures could deviate according to their exchange of information is also cor- conscience or discretion, then today's con- respondingly less when two different traction of the Self-Incrimination Clause jurisdictions are involved." Piccirillo of the Fifth Amendment would be under- v. New York, 400 U.S., at 568, 91 S.Ct., standable. But that has not been true, at 531 (dissenting). starting with Chief Justice Marshall's None of these factors apply when the opinion in United States v. Burr~5 F. -1!66 threat of prosecution is from the juris- Cas. p. 38 (No. 14,692e) (CC Va.), diction seeking to compel the testimony, where he ruled that the reac_h of the which is the situation we faced in Coun-- Fifth Amendment was so broad as to selman, and which we face today. The make the privilege applicable when irrelevance of Murphy to such a situa- there was a mere possibility of a crim- tion was made clear in Albertson v. Sub- inal charge being made. 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- S.Ct.-10!1

RPI 0215 1668 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.

As Mr. Justice Brennan has also said: I would adhere to Counselman v. Hitch- cock and hold that this attempt to dilute "Transactional immunity the Self-Incrimination Clause is uncon- provides the individual with an assur- stitutional. ance that he is not testifying about matters for which he may later be Mr. Justice MARSHALL, dissenting. 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 S.Ct. at 531 (dissenting). tend to incriminate him. A grant of im- munity...Lmay 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- grant far less than it has taken away. bility that the testimony will in fact op- 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, against himself." Ullmann v. United 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 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.

It Is also possible that use immunity •This case tloes not, of course, Involve the 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- mirht believe, with good reason, that his pelled the testimony. See Murphy v. "immunized" testimony will inevitably lead Waterfront Comm'n, 378 U.S. 1'>2, 84 S.Ct. to a felony conviction. Under such cir- 1594, 12 L.Ed.2tl 678 (1964). cumetancee, rather than testify and aid

RPI 0216 406 U.S. 470 K.ASTIGAR v. UNITED STATES 1669 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 The Court recognizes that an immu- prove it. And of course it is no answer nity statute must be tested by that to say he need not prove it, foi: though standard, that the relevant inquiry is the Court puts the burden of proof on whether it "leaves the witness and the the government, the government will prosecutorial authorities in substantially have no difficulty in meeting its burden the same position as if the witness had by mere assertion if the witness pro- claimed the Fifth Amendment privi- duces no contrary evidence. The good lege." Ante, at 1666. I assume, more- faith of the prosecuting authorities is over, that in theory that test would be thus the sole safeguard of the witness' met by a complete ban on the use of the rights. Second, even their good faith is compelled testimony, including all de- not a sufficient safeguard. For the rivative use, however remote and indi- paths of information through the in- rect. But I cannot agree that a ban on vestigative bureaucracy may well be long use will in practice be total, if it re- and winding, and even a prosecutor act- mains open for the government to con- ing in the best of faith cannot be certain vict the witness on the basis of evidence that somewhere in the depths of his in- derived from a legitimate independent vestigative apparatus, often including source. The Court asserts that the wit- hundreds of employees, there was not ness is adequately protected by a rule some prohibited use of the compelled imposing on 'the government a heavy testimony. Cf. Giglio v. United States, burden of proof if it would establish the 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d independent character of evidence to be 104 {1972); Santobello v. New York, used against the witness. But in light 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d of the inevitable uncertainties of the 427 ( 1971). The Court today sets out a fact-finding process, see Speiser v. Ran- loose net to trap tainted evidence and dall, 357 U.S. 513, 525, 78 S.Ct. 1332, prevent its use against the witness, but 1341, 2 L.Ed.2d 1460 (1958), a greater it accepts an intolerably great risk that margin of protection is required in or- tainted evidence will in fact slip through der to provide a reliable guarantee that that net. ..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. tion to trace the chains of information An immunity statute, on the other hand, 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-

RPI 0217 1670 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 First, because an immunity statute were held to create transactional im- gives constitutional approval to the re- munity, that might well be regarded as sulting interrogation, the government is an excessively high price to pay for the under an obligation here to remove the "constable's blunder." An immunity danger of incrimination completely and statute, on the other hand, creates a absolutely, whereas in the case of the ex- framework in which the prosecuting at- clusionary rules it may be sufficient to torney can make a calm and reasoned shield the witness from the fruits of the decision whether to compel testimony illegal search or interrogation in a par- and suffer the resulting ban on prosecu- tial and reasonably adequate manner. tion, or to forgo the testimony.

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 no use is made of the evidence they Joseph Arthur ZICABELLI, Appellant, obtain. But this Court has held that the Constitution does authorize the gov- v. ernment to compel a witness to give The NEW JERSEY STATE COMMIS· potentially incriminating testimony, so SION OF INVESTIGATION. 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-

RPI 0218 1042 536 FEDERAL REPORTER, 2d SERIES turer giving rise to the liability creating this claim occurred prior to the existence of UNITED STATES of America, either statute. It is well eatabJiahed in the Plaintiff-Appel.lee.

State of Florida that the former statute, v. that is, section 48.182, may not be given retrospective app1ication. Gordon v. John Ivan MELCHOR MORENO and Rlroberto Melchor Moreno, Deere Co., 264 So.2d 419 (Fla. 1972).

Defendant.Appellant.. (3) Plaintiff here argues that section No. 75-2957.

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 the states other than Florida have applied Aug. 9, 1976. 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. defendanta 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 defend- 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- As relates to the isaue concerning breach former, aince record did not show that such of warranty, AB CTC v. Morejon, 824 So.2d informer could legitimately refuse to an- (Fla. 1976), supports and affirms the po- swer essentially all relevant questions; in- sition of Gordon v. John Deere Co., supra. former should have been placed on witness 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 Deere principle to that atatute. This court 1. Witneue1 11=>2(2) is sufficiently convinced that under those If district court's refusal to allow de- 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-

RPI 0219 UNITED STATES v. MELCHOR MORENO 1043 Cite u aH F.Jd IMJ (1171) tain witnesses in his favor is reinforced by 8. Witneuee ~297(1) 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 Determination by trial court thnt pro- 9. Witneeaee ~308 spective witness, a government informer, Where witness asserts privilege against who had been subpoenaed by defendants, self-incriminE~tion court must make a par- could not testify without incriminating him- ticularized h11quiry, deciding in connection self, if correct, would provid~. the requisite with each Sf)(~ific area that the questioning justification for excluding such informer's party wishes to explore, whether or not testimony, since defense would have no privilege is well-founded, and as to each right to put informer on the stand merely question the test is whether witness is con- so jury could see him asserL his elnim of fronted with substantial and real and not privilege. U.S.C.A.Const. Amends. 5, 6. merely trifling or imaginary hazards of in- 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 6. Witnesses $:::>308 court found that informer could legitimate- Where subpoenaed witness indicates ly refuse to answer essentially all relevant that he cannot testify without incrimina- questions. U .S.C.A.Const. Amend. 5. ting himself, practice has developed where- 11. Witne88es ~297(1) 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- exist, court must uphold privilege without ment informer should be directed to give at requiring witness to demonstrate that re- least part of testimony sought by defense sponse would incriminate. U.S.C.A.Const. and privilege sustained only as to genuinely Amend. 5. threatening questions. Comprehensive 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 asked, that responsive answer Lo question 12. Witnes8es '*=308 or explanation of why it cannot be answer- Witness claiming privilege against self. ed might be dangerous because injurious incrimination had burden of establishing his disclosure could result; trial judge must be cntitlcmcnl to the privilege. U.S.C.A. governed as much by his personal percep- Const. Amend. 5. tion of peculiarities of case as by the facts 13. Witnesses $:::>308 actually in evidence. U.S.C.A.Const. While trial courts must enjoy wide dis- Amend. 5. cretion in resolving self-incrimination

RPI 0220 1044 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.

14. Criminal Law ...,37(2) Appeal from the United States District Entrapment occurs when crimina] con- Court for the Western District of Texas. duct was the product of creative activity of law enforcement officials or those working Before WISDOM,• GODBOLD and closely with law enforcement officials; en- LIVELY,•• Circuit Judges. 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, 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 Attempt to draw a distinction in in- rancher, farmer, and trucker in Mexico. struction between lawful entrapment and On September 16, Guillermo Botello, Rigo- unlawful entrapment is confusing. berto's partner in various ventures, includ- ing the ownel'Bhip of an aircraft, introduced him to an individual whom we will call Wayne Windle, El Paso, Tex., for Roberto Roe. 1 The three made arrangements to Moreno. bring a large shipment of marijuana into 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 Tex., Ronald F. Ederer, Mike Milligan, Asst. Roe in the United States. Rigoberto per- • Judge Wisdom was a member of the panel that l, Throughout this case the prosecution has heard oral arguments but due to lllne11 did not sought to conceal Roe's identity because of his 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.

RPI 0221 UNITED STATES v. MELCHOR MORENO 1045 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· ised him that whatever assist.ance he gave tion, but the request was denied. The Dis- 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.

During these meetings Roe introduced Ivan In Roe's absence, the principal defense to Joaquin Legaretta, an undercover agent witnes&e8 were the brothers themselves. for the DEA. A deal was struck, and on With the support of charactel'. witnesses, March 29 Rigoberto arranged to send to El they attempted to portray themselves as Paso 2000 grams of heroin concealed under basically honest men who had obeyed the the dashboard of a station wagon driven by law all their lives, with the above described Ivan.1 That day Rigoberto and Ivan met exceptions. Rigoberto testified that after with Legaretta and John C<:•mey, another the marijuana deal had fallen through he DEA agent, at a hotel in El Paso. Legaret· had felt depressed and ashamed and had ta displayed a large quantity of government resolved to avoid any further involvement cash, Rigoberto produced the heroin, and an with the dru1r traffic. He testified that he arrest followed. had put aside his reluctance and partici- A grand jury returned a four-count in- pated in the heroin transaction only because dictment against the brothers, charging of Roe'a persistent requests and pleas of them with conspiring to import heroin (21 hardship.

U.S.C. § 963), importing heroin (id. Ivan's story was that he had had little §§ 952(a), 960(a)(l) ), conspiring to possess understanding of what was happening and heroin with intent to distribute (id. § 846), that he had participated in the activities and possessing heroin with intent to distrib- noted above solely because his brother had ute (id. § 84l(a)(l) ). asked him to.

At trial the Melchors raised an entrap- The jury found Rigoberto and Ivan guilty ment defense and sought to call Roe as on all counts. The judge imposed partly their first witness. The defendants were consecutive and partly concurrent sentences acquainted with Roe, of course, having had totalling 80 years' imprisonment for each dealings with him for several months. At defendant. the time of trial, according to undisputed evidence, they had his telephone number II 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- fense's subpoena and was available for tes- neas to the stand lacked some affirmative 2. Both brothers testified that Ivan did not know the drugs were in the car. Evidently the jury did not believe them.

RPI 0222 1046 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- [4] The District Court's Fifth Amend- side the presence of the jury, the witness ment decision, if correct, would provide the will allude in very general, circumstantial requisite justification for excluding Roe's terms to the reasons why he feels he might testimony. U. S. v. Gloria, 494 F.2d 477 be incriminated by answering a given ques- (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- ciding the privilege claim must be evaluat- jurious disclosure could result. The trial 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.

RPI 0223 UNITED STATES v. MELCHOR MORENO 1047 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 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 It is clear that the District Judge here statement explaining the basis for their waa correct in passing upon Roe's privilege claim. The Court of Appeals held that in claim in the absence of the jury, U. S. v. circumstances where the appellants proved Gomez-Rojas, 507 F.2d 1213, 1220 (CA5, that a direct answer might be incrimina- 1975), but it is by no means clear that he ting, the judge could make no further in- waa correct in excluding everyone else aa quiry. A procedure involving sealed state- well. There is very little authority on this ments, the court said, "is bound ultimately question. In a few reported cases an indi- to beget a requirement of maximum disclo- vidual baa been directed to make the show- sure to prove the right to the privilege, in 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 would sometimes be ordered or furnish the tion as the result of such testimony. KasUgar documents themselves to the court for an In v. U.S., 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d camera inspection. Contempt convictions for 212 (1972); Ullman v. u. s., 350 U.S. 422, 76 refusal to comply with such orders were upheld S.Ct. 497, 100 L.Ed. 511 (1956). Possibly the on appeal. Brown v. U. S., 276 U.S. 134, 48 confidentiality of the Jn camera hearing would S.Ct. 288, 72 L.Ed. 500 (1928); Consolidated be deemed to afford security comparable to Rendering Co. v. Vermont, 207 U.S. 541, 28 statutory Immunity. In any event, parties ordi- S.Ct. 178, 52 L.Ed. 327 (1908); Corretjer v. narily may "rely only upon constitutional rights Draughon, 88 F.2d 116 (CAI, 1937). It would which are personal to themselves." NAACP v. seem that the authority of these early cases has Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, been weakened by Hoffman v. U. S. All of 1170, 2 L.Ed.2d 1488 (1958). A procedure them expressly proceeded on the premise that whereby statements are Improperly elicited tolerating the ~itness's behavior would have from a witness Jn camera would not necessarily totally precluded the court from passing on the Injure the defendants who seek his testimony. privilege issues. Hoffman v. U. S. authorita- (2) There Is a general antipathy in our legal tively promulgated a less drastic method of system to judicial proceedings behind closed resolving such Issues without full disclosure. doors. The due process clause embraces to 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. his fears of self-Incrimination more freely than 682 (1948); see also Fed.R.Crim.P. 26; 6 Wig- the judge could have required In open court. more, Evidence § 1834 (3d ed. 1940). But it

RPI 0224 1048 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, In U. S. v. Gomez-Roju, 507 F.2d 1213 which the District Court upheld without (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 nlzed that the broad requirement of public Judi· normal way, in open court. In U. S. v. Lacou· 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).

RPI 0225 UNITED STATES v. MELCHOR MORENO 1049 Cltl u Ill P.2cl 100 (1171) value and sent the case back for a new trial, (CAB, 1978), cert. denied, 414 U.S. 1162, 89 directing: L.Ed.2d 116 (1974). .A. Gomez-&jas and On remand, the trial court must hold a Waddell clearly contemplated, Roe could hearing to det.ermine whether Smith's properly have been excluded from testify- fear of self-incrimination is well-founded ing only if the court had found that Roe and what the parameters of his Fifth could "legitimately refuae to answer essen- Amendment rights are in the context of tially all relevant questions." Gomez-&jas, the testimony that Sutherlin wishes to 507 F.2d at 1220 (emphasis added). 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 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- should conduct a "searching inquiry into the dence to suggest that with respect to 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 [8-10] A witness may not withhold all been difficult to make. In any event, the of the evidence demanded of him merely burden of establishing entitlement to the because some of it is protected from disclo- privilege was his, and he did not carry it as sure by the Fifth Amendment. A blanket to the entire subject matter of his prospec- refusal to testify is unacceptable. A court tive testimony. Accordingly he should have must make a particularized inquiry, decid· been called to the witness stand and direct- ing, in connection with each specific area ed to give at least part of the testimony that the questioning party wishes to ex- sought by the defense. Only as to genuine- plore, whether or not the privilege is well- ly threatening questions should his silence founded. See, e. g., U. S. v. Malnick, 489 . have been sustained. See U. S. v. Stephens, F.2d 682 (CA5, 1974); Daly v. U. S., 393 492 F.2d 1867 (CA6, 1974); Warnell v. U. S., F.2d 878 (CAB, 1968); Warnell v. U.S., 291 supra. 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,

RPI 0226 1050 536 FEDERAL REPORTER, 2d SERIES 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 the unique nature of Santana's testimony played a central role in Ivan's story.• The in establishing the entrapment defense District Judge, after his in camera meeting (he was the only other participant in the with Roe, expressed the view that Roe's critical conversation). the protection af- answers "would not be of assistance to the forded Santana against a criminal charge Defendants in their defense of entrap- in the Anglada transaction because San- ment." It is true that Roe's in camera tana was acting at the Government's re- account of his dealings with the Melchors quest, the lack of connection between the differed in some respects from the brothers' Anglada sale and the state charge [under- own testimony. But one cannot assume lying the self-incrimination claim], the that Roe's account would have stood up possible waiver of his fifth amendment under defense examination. And the jury rights by his conversations with the pros- might have given greater credence to the ecutor, and the poBSibility that his reluc- brothers' story if Roe's testimony had cor· tance to testify was based upon fear of roborated it to some extent.

Anglada's retaliation rather than on the fifth amendment. [13) Trial courts must enjoy wide dis- 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 the poBSibility of allowing some carefully IV phrased, limited questions by Anglada's (14, 15) The government makes what is, counsel." Jd.8 in effect, a harmless error contention. As a To complete our analysis of the defend- matter of law, the argument runs, there 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 to alleged that Roe had tried on numerous and no real coercion directed against the occasions to entice him into a heroin trans- defendants, and (2) that Roe merely set up action, although Rigoberto had at first de- the transaction and played no part in the 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 L.Ed.2d 956 (1968) (White, J .. concurring); U. dicted Ivan's In important particulars, and Roe S. v. Harris, 501 F.2d 1, 7 (CA9, 1974); U. S. v. was the only person whose testimony could Alston, 460 F.2d 48, 52 (CAS, 1972). Like the resolve the inconsistency.

Informer's privilege (see point (2) within n. 7, supra), these authorities are of doubtful appli- 10. This discretion la Implicit in the Supreme cation if the defendant already knows the wit· Court's admonition that the judge must rely on neas and how to contact him. In any event, we " 'his personal perception of the peculiarities of are not aware that the rationale of these cases the case.' " See text accompanying n. 5, supra.

RPI 0227 BRUCE v. ESTELLE CJteuNIF.2d IOll (1978) 1051 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- trapment defense does not require proof of No. 75-3284. 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 the criminal design in the mind of the de- After remand from a prior appeal in fendant," U.S. v. Russell, 411 U.S. 428, 486, habeas corpus proceedings brought by a 98 S.Ct. 1687, 1645, 36 L.Ed.2d 366 (1978), convicted murderer, 483 F.2d 1031, the and then disappears, the requirements of United States District Court for the North- entrapment can still be met. In any event, ern District of Texas, at Dallas, Eldon B. the defendants' theory did not assume that Mahon, J., conducted a nunc pro tune com- entrapment had to be attributed to Roe petency hearing and concluded that the pe- alone. Instead the defendants blamed Roe, titioner did not suffer from any mental Legaretta and Corney jointly. illneBB which would interfere with his abili· 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 defend- 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- predl1po1ed to commit narcotics offenaea. It ment1 of error. In his ln1tructtons to the jury elmply relied on the facts of the transaction the District Court drew a distinction between and the Melchors' teatlmony to argue that en- "lawful entrapment" and "unlawful entrap- trapment had not occurred. ment." We have often criticized that usage as confusing. See. e. g., U. S. v. Oquendo, 490 F.2d 161, 165 n. 9 (CA5, 1974).

RPI 0228 16 4G BUPRJDKlll COURT BJDPORTJllB (Oct.Term 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 McCARTHY v. ARNDSTEIN. s. Ot. 562, 67 L. Ed. 1023. (Rearped Nov. 21, 1923. Dedded Oct. 20, Meean. Solicitor General Beck, of Wuh· 1924.) ington, D. o., and Saul S. Myers and Walter 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 of evidence and competency aud compellablllty •Mr. Lindley M. Garrison, ot New York 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.

Constitutional prlvflere against aelf-incrim· Mr. Justice BRANDEIS delivered the opin· fnation appliea to civil as well 81 criminal pro- ion of the Court. ceedln11. Jn 1920, Amdstefn was adjudged an in· 3. WHne1111 4=293-PrMleae against aelf· voluntary bankrupt In the Southern dl1trlct Incrimination appll11 to wltnees not party of New York. Pursuant to a subpa!Da, be defendant. appeared before a special commlsaloner for Oomtitutfonal pririlere arainet aelf-lncrJmi· examination as to bis assets under section nation la available to witneta who fa not a par· 2la of the Bankruptcy Act of July l, 1898, q defendant. c. Ml, 80 Stat. 544, 552, aa amended by Act 4. WltHllff C:=293%-Co111tltutlonaJ prM· Feb. 5, 1900, I 7 (Comp. St. I 9605), wu leg1 available to owner of gooda which may sworn as a witness, and freely answered 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· i.111 eatate. · schedule ot bfa assets.1 The judgment de- nying the writ wa11 reversed by this court.

6. Bankruptcy 4=242(2)-Prlvllege aaaln1t but the mandate rectulred merely that the 11lf lncrlmlnatlon don not relieve bankrupt

of duty to 1urrender bo0k1 and papers u part lower court issue the writ and then proceed of 11tate. as uaual. Amdstefn v. McCarthy, 2lS4 U. S.

Conatitutfonal privilere against 1elf·incriml· 71, 41 S. 0t. 136, 6!S L. Ed. 138; Id., 2lS4 U. nation doe. not relieve bankrupt from duty of s. 379, 41 s. Ct. 136, 65 L. Ed. 314.

1urrenderin1 boob and papers BB part of hie Thereupon the District Court Issued the 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, Feb. 5, 1903, I 7 (Comp. St. I 9605), aud make Is now before us on rehearing, granted in privilege against self-incrimination not avail- order to permit argument of the proPoBltion, able, by providing complete immunity. not presented by coun1el before, that the 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.

RPI 0229 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. here In question, rests wholly on section 21a. ••1 [I] 'The government urges more strongly This section provides that the court may "require any designated person, Including the a narrower contention. It claims that the bankrupt and his wife, to appear in court constitutional privilege does not relieve a • • • to be examined concerning the acta, bankrupt from the duty to give Information conduct, or property ot a bankrupt whose which la sought for the purpose of discover· estate la In process of admlnlstratton. tng his estate. It asserts that in England • • • " The subject-matter of the examina- such an exception to the common law privl tion ls thus specifically prescribed by the lege prevails, and that the exception bad act. There ls no provision prescribing the been established there prior to the Declara· rules by which the examination ls to be gov- tlon of Independence.• Whatever may be the erned. These are, lmpliedl;v, the general rule In England, it ls clear that tn America rules governing the admissib111ty of evidence the consUtutlonal prohibition of compulsory and the competency and compellablllty of self-Incrimination has not been so limited.& •40 [II] The cases which hold that a bankrupt 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 to take from any witness the privilege against upon a principle different from that here 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.

Ing the schedule or by his answering orall7 The books and papers of a business are a certain questions. The contention now ls part of the bankrupt estate. Section 70a that the privilege against eelf-incriminaHon (1) being Comp. St. I 9654. To permit him ought to have been disallowed because, un- to retain poBSeSBlon, because surrender might der the Conatttutton, it does not extend to involve disclosure of a crime, would destroy the examination of a bankrupt in a bank- a property right. The consUtutional prlvl· ruptcy proceeding. lege relatee to the adjective law. It does not (2-4) The government Insists, broadly, that relleve one from compliance with the sub· the constitutional privilege against aelt-tn· stantlve obllgatton to surrender propert7, crlmlnatlon does not apply tn any civil pro- •a [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 • Bee People'• Bank ot Bullalo "'· Brown, 118 11'. from prosecution. If Congress should here- 882. ISO C. C. A. 4ll: In re Punell (D. 0.) 114 11'. nfter conclude that a full disclosure of tho 171; Iia re Josephson <D.

Penoa, 122 Ji', 213, 68 C.

C.) 121 11'. 142: Brown "'· C. A. 658: In re Hook• 1------- ----------- • See Bz parte Me)'lllot, 1 Atk. 196, 198, 200 : Bz lmolt.liag Co. (D. 0.) 138 11'. 91it, 961: In re RUO• parte CoasenB, Buck'11 Ca.ses, 591, 640; In re Heath, (D, O.) 16' F. 268. 2 D. A Ch. 214. Th11 requlrement under the IDnr· Bubat&Dtla.117 the ume provision wa1 made la ll•h pracUce referred to 111, perhaps, more like the Act April " 1800, c. 19, II 14, 18, 24, 2 Stat. 25, American roqulrmneot of the filing or & 1ehedule IS. ·•: la Act Aug. 19, 1841, c. 9, I 4, 6 Btat. 440 of &1118ta under 1ectlon 7a(8), being Comp. St. I (Ill part) : In Aot lllaroh 2, 1887, c. 176, I 26, 14 Btat. 9691, than the eubmlaaloa to ezamlnatlon aa & wit• 1117, 629. See, also, Act Feb. 5, 1903, o. 487, I '1, 32 11811 proTlded for In llOCllon 21a.

Stat. 'lff, 798. The purpo1e m•7 have been, la part, 'In re Scott (D. C.) 116 F. 8111: In n Ro11er (D. 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 would. under the rul• prevailing In the common Toblu, etc. (D. C.) 316 r. 81&: In re Nalet•k>' (0. law court at. the Ume the earlier blUlkrupt 1&11'8 C.) l80 11'. 437, Comp1ore In re Peldateln (D. C.) were enaeted, h•ve been Incompetent u wlta-, lOS r. ••: In " Walllh (D. C.) lot ... 618; Ill ... - the ground or lnte?'Ollt, but tor 1uch .. proTl· Sher& (D. c.) 114 F. 207: In re Nachman (D. C.)

11011. and the wife would have been lacompetallt be- Ut I'. 996: In re Levin (D. C.) 131 JI'. 188. But 1ee e&llM or her partloullll' hlaUomhip. Mackel "· Rochuter, 102 F, 114, 43 O. 0. A. 4J7,

RPI 0230 18 415 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· falling them tor aome crime 1n the paet, lt Inga held avallaltl• to railroad atrlken, who can, ae ID other cases, confer the power of had rejected deolalon ot Railroad LabOt' unrestricted examinaUon b7 provldlll; com- Board. plete immunity. Compare Brown v. Walker, Strlklnr emplo7~1 of railroad, who bad re· fn1ed to abide by order of Rail road Labor U. 8. 591, 16 S. Ot. 644, 40 L. Ed. 819 i Board, Aeld entitled to jury tr ial, under Clayton u.

GUckatelD v. United States, 222 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.

2. Comteaipt $=>30-Power to pu1l1h for oon. On Certificate from the United States Olr- 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 4. Contempt $=>80(3)-Proot Of gallt ot Of'fm· were a.!Brmed b7 the Circuit Co.urt of .Appeal& laal contempt must lie befond rHaonallle (291 II'. 940), and the7 bring error. The uamed doubt. defendant 1D the second described action was In contempt proceedinr1, proof of rullt of 4ned tor contempt, and the Circuit Court of eriminal intent muat be be7ond reuonable Appeal&, on error, cerWled the question In- doubt. volved to the United Statea Supreme Court 5, Wltne1111 $=>2931/2-E)efendant, aoou11d Of (298 F. 379). Judgments reversed and cause orlmlnal oontempt, cannot h oompelled totll• remanded 1n first proceeding, and question tlfy agalnat hlm11lf.

Defendant may not be compelled to teedfJ arainat himself 1D criminal contempt proceed- .... anawered 1n second action. •Meears. Donald R. Richberg, of Chicago, ln1. Ill., Jobn A. Cadigan, of Superior, Wis., and 8. Jury 41=13(21)-Provlalon of Clayton Aot, Jackson H. Ralston, of New York Cl~, for providing for Jury trial In certala eontempt petitioner& Michaelson and others. proceeding•, held oonatltutlonal. •so ClaJ'ton A.ct, II 21, 22 (Comp. Bt. II 12451, •Messn• .Jackson B. Ralston, of New York 1245h), provldinr for ju17 trial in contempt Oit71 and James W. Henson, of Hender~n, proceedinr1 where act complained of 11 1110 a Ky., tor petitioner Sandefur. c:rime1 on demand of accused, Aeld not uncon- •M atltuuonal impairment ·of Inherent power of •Mr. Edward Porter Humphrey, of Louis- eourta to punieh for contempt; the proceeding ville, K7., for Canoe Creek Coal Co. beinr Ill Independent proceedlnr at law for •as erlmlnal contempt, baaed ou act con1tltotl.q •Mr. Richard L. Kennedy, of St. Paul, MIDn., crime. for respondent Chlca,o, St. P., M. & O. R. Co. ~J'or oUaer u.• - l&Dlo topic u4 KIDY·NVMBBR la all ~1,N1&111bv*2 DJa'•la aa4 la4uee

RPI 0231 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 TRU-STEES OF the PLUMBERS AND PIPEFITfERS in Federal Rule of Criminal Procedure, expose NATIONAL PENSION FUND, et al., Plaintiffs, defense's theory to prosecution in advance v. of trial, or otherwise prejudice criminal case; however, stay of criminal case is extraordinary 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 case and to dismiss denied. [4] Action 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 [1] Action 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 Cases that cite this headnote betvveen defendants and union, and state and federal law. [2] Action 24 Cases that cite this headnote , Nature and subject matter of actions in general [SJ Action

I '· i J, . , .... . , RPI 0232 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 Indictment of defendants for defrauding union and responsible for conect reporting and members of fringe benefit contributions weighed payment of fringe benefit contributions and in favor of granting stay of civil action alleging wages that defendants allegedly withheld. same wrongful conduct.

4 Cases that cite this headnote Cases that cite this headnote [9] Action [6) Action . · Nature and subject matter of actions in Nature and subject matter of actions in general general "Prior pending action" doctrine did not apply to Stay of civil case 1s most appropriate \vhere support stay of case pending resolution of earlier party to civil case has already been indicted tiled civil case on suspense calendar. 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 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 Judicial efficiency weighed in favor of granting number of hours each employee worked. lhat stay of civil case pending resolution of c1iminal employers were responsible for accuracy of case alleging same wrongful conduct: defendants reports, that trustees relied on misrepresentations have been indicted and \vill face trial within to their detriment. and thnt trustees could six months, resolution of criminal case may not know identity of employees or hours increase possibility of settlement of civil case actually \Vorked, since they did not have access due to high standard ofproofrequired in criminal to employers' records. Employee Retirement prosecution. and resolution of criminal case may Income Security Act of 1974, § 3(1, 3), 29 reduce scope of discovery in civil case, since U.S.C.A. § 1002(1, 3) ~ Fed.Rules Civ.Proc.Rule evidence gathered during criminal prosecution 9(b), 28 U .S.C.A. can later be used in civil case.

Cases that cite this headnote Cases that cite this headnote [11] Federal Civil Procedure (8) Action Fraud, mistake and condition of mind Nature and subject matter of actions in Purpose behind particularity requirement for general pleading fraud is to provide defendants with fair Complete stay of civil case as to all notice of plaintiffs' claims, protect defendants defendants pending resolution of criminal from hann to their reputation and reduce number case involving allegations of same vHongful of strike suits. Fed.Rules Civ.Proc.Rule 9(b), 28 conduct was warranted, since it would be more U.S.C.A efficient than granting only partial stay as

RPI 0233 II I 1 11 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 particularity, plaintiffs must specify statements [16] Racketeer Influenced and Corrupt they claim were false or misleading and giYe Organizations particulars with respect to fraudulent statements, Continuity or relatedness; ongoing activity 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 opposing party's knowledge justifies relaxation [17) Racketeer Influenced and Corrupt of requirement for pleading fraud claims with Organizations particularity. Fed.Rules Civ.Proc.Rule 9(b), 28 Time and duration U .S.C.A "Continuity" required lo allege pattern of racketeering can be shown either through Cases that cite this headnote series of related predicate acts extending over substantial period of time or by past conduct [14] Racketeer Influenced and Corrupt which by its nature extends into future . 18 Organizations U.S.C.A § 1962.

Association with or participation in Cases that cite this headnote enterprise; control or intent Racketeer Influenced and Corrupt Organizations (18] Racketeer Influenced and Corrupt Business, property, or proprietary injury; Organizations personal irtjuries Pattern To prevail on their civil RlCO claim, plaintiffs Trnstees of several employee benefit funds for must establish that defendants conducted or local union established pattern of racketeering participated in conduct of enterprise's affairs activity sufficient Lo withstand motion to through pattern of racketeering activity that dismiss, where they alleged that employers, caused injury to plaintiffs' business or property. from at least 1988 to present, mailed U.S.C.A. § l 962(c). monthly reports to trustees containing intentional misrepresentations regarding number of persons 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

•' RPI 0234 \, • 'I 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), "Enterprise" for RICO claim may either be 28 U.S.C.A 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 Cases that cite this headnote Organizations Separateness from predicate acts, pattern, or persons [24] Federal Civil Procedure To establish "association-in-fact enterprise" for .-- Fraud, mistake and condition of mind 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 Cases that cite this headnote keep additional money, which was owed to trustees, for themselves: no specific connection [21] Racketeer Influenced and Corrupt between defendants and fraudulent mailing was Organizations necessary, since individual defendants were Employers and employees owners and controlling officers of corporate 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 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 reports, and thnt two of corporate defendants [25] Racketeer Influenced and Corrupt \Vere sham companies created by other Organizations defendants to defraud trustees. 18 U.S.C.A §§ Injury; causation 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 RPI 0235 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 peculiarly within defendants' knowledge. 18 BACKGROUND U.S .C.A. § 1962.

Plaintiffs are the Trustees of severnl employee benefit funds Cases that cite this headnote for Local No. 2, United Association of Journeymen and 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 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 '"1137 Cohen. Weiss and Simon by Joseph J. Vitale and Funds for every hour \.Yorked by an employee, Plaintiffs 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 Schlam Stone & Dolan by James C. Sherwood, Ne\.\' York their employees, conceilled the identity of the individuals City, for defendants . employed by them, and misrepresented the hours worked by the employees who were listed. Defendants allegedly made these misrepresentations on reports made to the Industry OPINION Boilrd and the Pension Fund. In addition, defendm1ts allegedly 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• " .. ' ' , RPI 0236 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 Relations Act, 1947, 29 U.S.C . § 141 et seq., civil RICO, Pharmaceutical, Inc., 133 F R.D . 12 , 13 (S.D.N .Y . 1990) U.S.C § 1961 et seq., aml common-lmv fraud. The (citing Dresser, 628 F.2d at 1376); Brock v. Tolkow, 109 wrongful conduct about which plaintiffs complain in this F .R.D . 116, 119 (E.D.N.Y. 1985). * ll39 A slay of the case is the same as in the Criminal Case.

Defendants move civil case, however. is an extrnordinmy remedy. In re Par to stay this action pending resolution of the Criminal Case Pharmaceutical, 133 F.R.D. at 13 . because, without a stay. they will be forced to choose between wuiving their Fifth Amendment privilege and responding to [3) 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 6 mcluJmg '' ht:thcr !hi: JcknJa11ts ha,·e bl'en mJicted: 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 p laintiff~ 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 with particularity. 1. Oi•erlup oflssues [-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. l. Motion for Stay at 39 (quoting ParallelPmceedings, 12.9 F.R.D. a t 203) r·Jhe [l] [2) It i~ \_vt:ll :;dtkJ that a court ]/11s tl1c Jiscretioiwn mllsl im )llrtant foclor al the thresh(1Jd is the degree lo which n 11u1on ~ to:;1a~ <case !'1lk 111u:resr~\)r11bLic"' s 'ircqllirc See the ci\'il issm:s 01Trlop \ itb the crimirn1l issues.,) If the1e United States v. Kordel, 397 U.S. 1, 12 n. 27, 90 S.Ct. 763 , is n o ll\ crlap, there '\\ ouhl be no danger of self-inl'.rimination n. 27 , 25 L.Ed 2d I (1970) ; Kashi v. Gratsos, 790 F .2d and acrnn.lingh no need for a ~la~ See Parallel Proceedings, 1050, 1057 (2d Cir. 1986) (citing SEC v. Dresser Industries, 129 F.R D. at 203 . 628 F.2d 1368, 1375 (D.C.Cir.) (en bane ). cert. denied, 449 U .S 993 , 101 S.Ct. 529, 66 L .Ed.2d 289 (1980)) (holding Reading the ccimina1 inu1ctmcn1 und fhc amendccJ ciYil efll11plainl to~thc1 r ., cal' lh« l tlw \ 1 nmgful conduct alleged that although ·'the Constitution ... does not ordinaril~· require n stay of eivil proceedings pending the outcome of criminal in both is the >mm:: de endants Helen and Thonrns CHS ' S proceedings ... a court may decide in its discretion to stay Andreadakis, through their cornpunies, failed to make civil proceedings"); Volmar Distributo1·s, Inc. v. The New contributions to union pension funds, foiled to pay union 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 th e du ft.·n-;e·~ !he'hn to the pi n:;ec ntion in p ch ance o{ trial. been defrauded out of thousands. if not millions. of dollars rn P DWt 111Sl' prc.1udicc the crimimd case See In re Par

RPI 0237 I I I' I Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 in fringe benefit contributions." (Pl.Mem. at 4). Accordingly, Fifth Amendment rights or effectively forfeiting the civil 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 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 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

' ' II • 111 I RPI 0238 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.

I do not have to resolve the issue of whether the corporate A. Standards/or Motio11 to Dismi.fs defendants would be prejudiced by the individua 1 defendants' In analyzing defendants' motion to dismiss under Rules 9(b) invocation of their Fifth Amendment rights since I find that it and l 2(b )(6) of the Federal Rules of Civil Procedure, I must is more efficient to grant a complete stay as to all defendants view the m:nended complaint in the light most favorable rather than only a pmtial stay as to U1e individual ones. to plaintiffs and accept all allegations contained in the Plaintiffs themselves concede that the Andreadakises are the complaint as true_ See Scheuer v. Rhodes, 416 U.S. 232, central figures in this case, as they are the ''controlling officers 236, 94 S.Ct. 1683, 1686, 40 L.Ed .2d 90 (1974); Annis v. of the corporate defendants and responsible for the correct Cmmty of Westchester, 36 F.3d 251, 253 (2d Cir. 1994) (Rule reporting and payment of fringe benefits contributions and l 2(b)(6) motion); Cosrnas v. Hassett, 886 F.2d 8, 11 (2d wages." Thus, because of the importance of their testimony, Cir. 1989) (Rule 9(b) motion). GiYing plaintiffs the benefit a partial stay could lead to duplicative discovery efforts. of the inferences in their fovor, the complaint should not be Plaintiffs might need to re-issue interrogatories or re-depose dismissed unless it appears beyond a doubt that plaintiffs can certain individuals in light of the testimony· given by the prove no set of facts that would entitle them to relief. See 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 RPI 0239 Trustees of Plumbers and Pipefitters Nat. Pension Fund v .... , 886 F.Supp. 1134 (1995) RICO Bus.Disp.Guide 8846 [10) Defendants assail plaintiffs for not pleading their place (origin and destination) and content of the allegedly common law and ERISA fraud claims with the particularity fraudulent statements. In addition. plaintiffs' fraud claims required by Rule 9(b) of the Federal Rules of Civil Procedure allege certain facts "peculiarly within the opposing party's and move to dismiss the fraud claims. 13 Specifically, knowledge" (namely, the identity of the persons employed defendants maintain that the fraud claims are deficient by defendants and the hours worked). \Vhich justifies a because they fail to provide such details as which defendant relaxation of Rule 9's standards. Since greater particularity made which misrepresentation, or the date and time of the could not reasonably be expected without further discovery, alleged misrepresentations. the complaint should not be dismissed. See Solomon v. Sari/ Apparel, Ltd., 1993 WL 404177 (SD.N.Y. 1993) (motion [ll] [12] Rule 9(b) provides that "'[i]n all avennents to dismiss ERISA claim based on delinquent contributions of fraud or mistake, the circumstances constituting fraud for failing to plead fraud with particularity denied since or mismke shall be stated with particularity.'' The purpose facts concerning the alleged failure to contribute were behind the particularity requirement is to provide defendants within defendants' knowledge and discovery would provide with fair notice of plaintiffs' claims, protect defendants from additional infonnation about the fraud). Finally, considering harm lo their reputation and reduce the number of strike the circumstances of the alleged fraud, plaintiffs' allegations suits. See Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). give defendants sufficient notice of the claims to prepare a To satisfy Rule 9(b), plaintiffs must specify the statements defense. Id. (citing Ross v. Bolton, 904 F.2d 819, 823 (2d they claim were false or misleading and give particulars Cir. 1990)); see also Center Cadillac, 808 F.Supp. at 229 with respect to the fraudulent statements. including when and (where the complaint sufficiently detailed the nature and where the statements \\·ere made and the identity of those mechanics of the fraudulent scheme, plaintiffs not required responsible for the statements. Id. at l l. to plead the exact time, place and content of each mail communication).

Rule 9(b)'s particularity requirement, however, must be read in concert with Rule 8 of the Federal Rules of Civil Procedure, Accordingly. defendants' motion to dismiss Counts IV and which requires a short, plain stntement of the facts upon which VIII is denied. 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 and also allege that the Andreadakises are controlling officers 52-53). 14 of the defendant corporations. (Crnplt . ~~ 57-62).

Defendants move to dismiss this claim, arguing that plaintiffs [13] Plaintiffs have thus sufficiently pied their fraud claims have failed to allege: l) a pattern of racketee1ing activity, 2) with particularity: the amended comp la int specifies the date, an enterprise. 3) mail fraud with particularity, and 4) injury to

RPI 0240 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. 15 1022, 110 S.Ct. 723, 107 L.Ed2d 743 (1990); *1145 S.Ct. at 2902 .

CeT1ter Cadillac v. Bank Leumi Tn.ist Co., 808 F.Supp. [18] Plaintiffs assert that they have established a pattern 213, 234 (S.D .N .Y. 1992). To establish an association-in- of racketeering activity sufficient to withstand the motion fact enterprise. plaintiffs must show that the members of the to dismiss I agree. Plaintiffs have alleged that defendants. enterprise function ns a continuing unit and that the enterprise from at least 1988 to the present, mailed monthly reports to exists separate and apnrt from the racketeering activity in plaintiffs containing intentional misrepresentations regarding which it is allegerlly engaged. Center Cadillac, 808 F.Supp. the number of persons employed by defendants and the at 235 (citing Procter & Gamble, 879 F.2d at 15). munber of hours worked by those employees, for the purpose of "reaping financial g[lin at the expense of [21) Plaintiffs allege that all of the defendants together Plaintiffs." (Cmplt. ~ 52). In addition, plaintiffs alleged that constituted an "enterprise'" within the meaning of 18 defendants, again on [l monthly basis from 1988 to the U.S.C. §§ I 961(4) and 1962. Defendants maintain that this present, underreported the amount of monies owed to the allegation does not plead a RICO enterprise with particularity. employee benefit funds on the reports and retained the money Defemlants' argument is rejected since the plearling of themselves instead. (Cmplt. ~l 53). Thus. the predicate acts a RICO enterprise need only meet the requirements of of nrnil fraud and embezzlement/conversion were related: Rule 8 of the Federal Rules of Civil Procedure: that is. each of them had similar purposes (to defraud plaintiffs plaintiffs need only provide a clear and concise statement for defendants' own financial gain), participants, victims of the enterprise. See Center Cadillac, 808 F.Supp. at 235 and methods. The acts were also continuous: they extended (nssociation enterprise sufficiently alleged where plaintiffs over a substantinl period of time and most likely would claimed individual defendants functioned as a unit with a have continued into the future if defendants had not been banking entity to perpetrate fraud anrl extortion on plaintiffs); indicted. See H.J. Inc., 492 U.S. at 249-51, 109 S.Ct. at 2906 AZllrite Cmp. Ltd. v. Amster & Co., 730 F.Supp. 571, 577 (allegations Iha t defendants made bribes over a six year period (S .D.N.Y. 1990).

'I RPI 0241 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 controlled by the Andreadakis defendants. who had 4. J11jury to B11si11ess or Property responsibility for the accurncy and mailing of the reports. (25] Defendants' third attack on plaintiffs' RICO claim (Cmplt. ~~ 7-12, 52-53). Plaintiffs further allege that two of concerns plaintiffs' nlleged injury to business or property. 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 existence of a RICO enterprise. 16 [26] Defendants are correct in asserting that a RICO plaintiff 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

RPI 0242 I ' l' 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 1 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 2 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 ).

3 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 .

4 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.

5 See Parallel Civil and Criminal Proceedings , 129 F.R.D. 201 (Pollack, J.) (hereafter, "Parallel Proceedings").

6 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.

7 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.

8 In response to an inquiry by my law clerk, plaintiffs' counsel cautioned that the trial might not commence before late 1995 or early 1996.

9 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).

10 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.

11 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).

12 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 r f,.· 1 RPI 0243 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

~ I t'.Jc..'.1 II RPI 0244 72 218 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 within 20 days of this Decision and Order. by e-mail and faxes received by Plaintiff from Plaintiffs customers and invoices issued SO ORDERED. 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, audit, banking, and collection requirements. v. Plaintiffs arguments in opposition to De- Maria GARCIA-BOTELLO, Elias Botello, fendant's requests amount to telling Defen- Jose J. Garcia, Rogelio Espinoza, Antho- 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, for that matter, Plaintiffs other contract Philip Vigneri, Ron Weiler, Robert Ven- claims. Plaintiffs efforts to deflect Defen- detti and Jose I. Garcia, Defendants. 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 are ovem1led, and Plaintiff shall answer fully Sept. 12, 2003.

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

RPI 0245 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, held that the United States would not be SCHROEDER, United States Magistrate permitted to intervene, but a stay of civil Judge. discovery pending presentation of evidence in criminal case was appropriate. INTRODUCTION 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.

1. Action ~69(5) Dkt. # 29.

When determining whether a. stay of Presently before the Court is the United civil proceedings is appropriate pending a States' motion to intervene, pursuant to Fed- related criminal case, federal district courts eral Rule of Civil Procedure 24(b)(2), for the generally weigh the following factors: (1) the limited purpose of staying discovery until the extent to which the issues in the criminal conclusion of the presentation of evidence in case overlap with those in the civH case; (2) a related criminal trial, United States v. Ma- the status of the criminal case, including 1-ia Garcia at al., 02-CR-110-S. Dkt. # 40. whether the defendants have been indicted; Plaintiffs in the above-captioned civil case (3) the private interest of the plaintiffs in ("farm-worker plaintiffs") support a stay of proceeding expeditiously with the civil litiga- civil discovery. Dkt. # 63. Defendants An- tion; (4) the private interests of, and the thony Piedimonte, Robert Vendetti, Bruce burden on, the defendant; (5) the interests of Kirby, David Piedmonte, Rodney Winkstern, the courts; and (6) the public interest. Fed. Francis Domoy, Stephen Howard, James Rules Civ.Proc.Rule 24, 28 U.S.C.A. Kirby, Philip Vigneri, and Ron Weiler ("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.

RPI 0246 74 218 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 to Albion, New York, demanded payment for stay of civil proceedings pending the outcome 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- tions. Five of the criminal defendants are nal citations omitted); see also S.E. C. v. 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 grant or deny permissive intervention, see facts are at issue, as in the instant case. See United States v. New York, 99 F.R.D. 130, S.E.C. v. Chest:rnan, 861 F.2d 49, 50 (2d (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

RPI 0247 JAVIER H. v. GARCIA-BOTELLO 75 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 "[T]he strongest case for defening civil case. 1 See LaBianca, 801 F.Supp. at 1011; proceedings until after completion of criminal Brock, 109 F.R.D. at 120. "Where invocation proceedings is where a party under indict- of the fifth amendment imposes undue sanc- ment for a serious offense is required to tions or penalties on a defendant, a court defend a civil action involving the same mat- may in its discretion stay proceedings, [or) ter." Dresser, 628 F.2d at 1376; see also postpone civil discovery." LaBianca, 801 LaBianca, 801 F.Supp. at 1011 ("[C]ourts are F.Supp. at 1011 (quoting Ardwn Wuy Assocs. more likely to grant [civil discovery] stays v. Boesky, 660. F.Supp. 1494, 1498-1499 when an indictment has already been is- (S.D.N.Y. 1987)). Moreover, the grower de- sued"); In re Par Pharrn., Inc. Sec. Litig., fendants, who are not defendants in the crim- 133 F.R.D. 12, 13-14 (S.D.N.Y. 1990) inal case, will not be burdened by a stay of

@ ("[C]ourts will stay a civil proceeding when the criminal investigation has ripened into an indictment."). If a grand jury indicts a party for conduct that is the subject of a civil civil discovery as they will be afforded more complete discovery at the time they must defend the civil case. See, e.g., In re Ahead by a Length, Inc., 78 B.R. at 713. 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 (S.D.N .Y. 2002). common issues of fact will be resolved and The private interests of the civil plaintiffs subsequent civil discovery will proceed unob- in this case do not outweigh the inherent structed by concerns regarding self-incrimi- risks in allowing civil discovery to proceed nation. See, e.g., In re Ahead by a Length, while a parallel criminal case is pending. Inc., 78 B.R. at 713. Moreover, the public's The civil plaintiffs have waived their interest interest in the integrity of the criminal case in proceeding expeditiously with this civil is entitled to precedence over the civil liti- action by consenting to the government's mo- gant. See In re Ivan F. Boesky Sec. Litig., tion to intervene and to stay discovery. In 128 F.R.D. 47, 49 (S.D.N.Y. 1989); Integrated plaintiffs' reply to Garcia-Botello's response Generics v. Bowen, 678 F.Supp. 1004, 1009 to the government's motion, plaintiffs explic- (E.D.N.Y. 1988). "[A] trial judge should give 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 matter. Dkt. # 63. against the right of a civil litigant to a rea- Moreover, defendants' private interests sonably prompt determination of his civil weigh in favor of a stay. The civil proceed- claims or liabilities." LaBianca, 801 F.Supp. ings, if not deferred, would undermine the at 1010 (quoting Campbell v. Eastland, 307 defendants' privilege against self-incrimina- F.2d 478, 487 (5th Cir. 1962)). 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.

RPI 0248 76 218 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 evidence in the related criminal case, United disjoined assertions that merely stated con- States v. Maria Garcia et aL, 02-CR-ll{}-S. clusions, unsupported by facts, necessary to SO ORDERED. prevail on securities claim that proprietary 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 In re MERRILL LYNCH & CO., INC. 12(1), 28 U.S.C.A.

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 United States District Court, unless it can be shown that no evidence in S.D. New York. support of the allegation would be admissi- 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- Complaint encompassing 98 pages and eric S. Fox, Laurence D. King, and Donald separate paragraphs violated rule requir- R. Hall), New York City, for Plaintiffs.

RPI 0249 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

RPI 0250 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 RPI 0251 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 A me n 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 privilege, 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.)

RPI 0252 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, pL 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

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RPI 0253

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 s statement to the 1

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; COT082 COT0229·30; COT0257-0263;COT0267-0268: COT0277·0278 Various photographs labeled COT0283 COT074-076; c:omputer disks labeled COT079-080; videotape labeled COT0283 .1 Audio cassettes labeled COT0285·0286 RPI 0254 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 1ises 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) or may implicate RPI 0255 contain compelled statements or statements which implicate Officer's Fifth Amendment privilege; or (2) consist of identical copies of documents already 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 1u 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 11.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.

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RPI 0256