                                                                                            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
michael@courtroom.com
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
                                                     bemerson@bd-law.com

                                            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


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                                                        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
0 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
                                                    456 S.W.2d at 895 (citing Pickens v. Hidal-
not recognize that a declaraoory judgment
                                                    go County Weiter Control & Improvement
proceeding is unique. An action for declar-
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:
 456 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
             425 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-
             497 F.2.d 809, 510 F.?.d 613, affirmed. In      plinary committee for infraction that could
             the other, the district court denied relief     have also lead to state criminal proceedings,




                                                                                                               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;
        653 (1964), held that the Fifth Amend-           an innocent person, perhaps fearing that
        ment-the "essential mainstay" of our             revelation of information would tend to
        "American system of criminal prosecution,"       connect him with a crime he did not com-
        id., at 7, 84 S.Ct., at 1498, 12 L.Ed.2d, at     mit, also has its protection. " 'The privilege
        659-protects "the right of a person to re-       serves to protect the innocent who other-
        main silent unless he chooses to speak in the    wise might be ensnared by ambiguous cir-
        unfettered exercise of his own will, and to      cumstances.' "      Grunewald v. United
        suffer no penalty                 for such si-
                                                         States, 353 U.S. 391, 421, 77 S.Ct. 963, 982, 1
        lence." Id., at 8, 84 S.Ct., at 1493, 12
                                                         L.Ed.2d 931, 953 (1957), quoting Slochower
        L.Ed.2d, at 659. See Spevack v. Klein, 385
        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
        592 (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-
    88 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
        212 (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
        653 (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-
             880 .... rrt
                                                   victions based on misidentification may
Thomas Earl SDDIONS et al., Pe&ltlonen,
                                                   be substantially lessened by course of
                    Y.                             cross-examination at trial which exposes
            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.
                     380
                                                    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
                                                                     387
witnesses displayed any doubt about their
                                                  Written statements of this kind were
respective identifications of Simmons.
                                                taken from all five eyewitnesses by the
Taken together, these circumstances
                                                FBI on the day of the robbery. Appar-
leave little room for doubt that the iden-
                                                ently none were taken thereafter. When
tification of Simmons was correct, even         these statements were produced by the
though the identification procedure em-         Government at trial pursuant to § 3500,
ployed may have in some                         the defense also claimed the right to look
                      388
                         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
   103 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-
367 U.$. 643, 657, 81 S.Ct. 1684, 1693,
                                                 ments must be satisfied. 12 On that
6 L.Ed.2d 1081.
                                                 premise, he contends that testimony giv-
   [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
                                                        7 F .211 247, rcv'd on othe r grounds , 12 F .
   were no identifying morks on the outside
                                                        211 771. Cont rn. see B nll oy v. Uni ted
   of the suitcase. See Brief for the United
                                                        Stntce, 128 U.S.App.D.C. 354, 889 F.2d
   States at 33.
                                                        305; U nited States v. Lewie, D.C., 270
15. In .Jones, the only reference to the                F.Supp. 807, 810, n. 1 (dictum).
   subject wns a etntement thnt "[The de.·
                                                     17. See, e. g., Heller v. United Stntee, 7
   fen<lont] l1ll.ll been faced • • • with
   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,
   889 U.S. ~. 63, 70 S.Ct. 430, 484, 94 L.        3 L.Ed.2d 877.
   Ed. 658.                                     22. See, e. g., Heller v. United States, 7
                                                   Cir., ft7 F.2d 627.
21. E. g., compare Warden, Md. Peniten·
   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
                                                                           398
tion of Simmons but dissent from re-                            the "totality of the circum-
versal of Garrett's conviction. I shall            stances." Simmons' due process claim
first discuss Simmons' case.                       here should be denied because it is frivo-
   1. Simmons' chief claim is that his             lous.* For these reasons I vote to affirm
1
 '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
890 '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.
                                                        0


     Party again.st whom was!pending a suit         •  In Jefferson County there is now pendinr,
to reo1ovc him from office ' of sheriff on         a suit brought by the State of Texas on re-
ground of official misconduct could be re-'        latic<11 o} certain citiiens for the removal of
quired to subject himself to oral d~position.      Charles H . Meyer from the office of Sheriff
before ·trial subject to right lof refusing to     of that county: The District Judge in that
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
                                                    81 A.LR. 1089.
                                                     . · In Skeen v: Craig (1906) 31 Utah 20,
                                                     86 P. 487, the court aligns itself with
                                                  :· wfu.t it terms the great weight of authority
                                                     and the better reasoned cases in expressly
      [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
                           1
                                                  • 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
  28 U.S.C.A. Petitioner maintains there-
                                                    criminal proceedings on the following
  fore that we arc bo~d by the construction
                                                    ground:
  placed upon that rule by the federal courts.
  That construction, so it is claimed, is to the          "Ap'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
                                                            917 (Tex.1985). The Supreme Cout empha-
of the required 250 signatures on his petition
                                                            sizes that the petitioner must also show that
were forgeries and/or had been added to the
                                                            she has no adequate remedy en appeal.
petition after the deadline had expired.
                                                            Walker v. Packer, 827 S.W.2d 833, 842 (Tex.
  The trial court severed and abated the                    1992); Staw v. Walke1~ 679 S.W.2d 484, 485
negligence claim pending the possibility of or              (Tex.1984).
pu1·suance of criminal charges ngainst any of
the defendant• .3 Relatol' seeks a wri1. of                   [2] An appellate court rarely interferes
mandamus to ord.er Visiting District Judge                  with a trial court's exercise of discretion.
Juan Gallardo to rescind the order which                    However, a clear abuse of discMtion war-
1. Judge Onion, Justice Cadena and Justice                      Thc plaintiff hnving ndviscd the co nn that she
  Reeves were assigned to this case by the Chief             elect not to amend her pleadings to exclude the
  Justice of the Supreme Court of Texas pursuant             clnim for negligence comprising parograph IV o r
  to TEX. GOl,.T CoI>E ANN. § 74.003(b) (Vernon              her origina l petition. ii i ORDEREll 1hat all of
  1988).                                                     the allegations of pa ragntph IV f plaimlCC's 01·ig·
                                                             in(ll pctit on, and 1111 nllcgn1ioni: of dam11sc by
2. The original lawsu it is styled and numbered              reason of ncgligmce in pa1·agraph V or plnin ti rrs
  Slwy (;eblu1rd1 v. Leo G. P{lcheco, John W. Reyn-          o riginal petlt on be, and the same arc h rcby,
  olds. Dwigli1 Mosl1 ar, and Ramon G. Flores, Sr.,
                                                             SEVERE.P from th is cause of 11c1ion and as-
  No. 9'1 -Cl- 05455. in the lSOth District Court of
                                                             signed separate docket number 94-·'.':!-14910.
  Bexar County, Texas.
                                                                It is FURTHER ORDERED that after sever-
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
240 (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
110 (1965). However, "the Fifth Amendment            facts and circumstances as the :t·emaining
does not forbid adverse inferences against           claim. The parties are identical. While the
parties to civil actions when they refuse to         elements of each claim are necessa1ily differ-
testify in response to probative evidence of-        ent, the proof required is all to be drawn
fered against them." Baxter v. Palmigiano,           from the same events. The severance order
425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47           is interlocutory and nonappealable while the
L.Ed.2d 810, 821 (1976). The Amendment               abatement is in effect.
"does not preclude the inference where the
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
843 (Tex.1992) recognizes that appeal is not
                                                 action remains in a suspended state . . . . A
an appropriate remedy where the ability to
                                                 trial judge may not arbitrarily halt trial pro-
present a viable claim was vitiated by a
                                                 ceedings." Id., citing Cleveland v. Ward,
pretrial order. The negligence claim in this
                                                 116 Tex. l, 285 S.W. 1063, 1068 (1926);
case is vitiated because relator is prohibited
                                                 Greenberg, Benson, Fisk and Fielder v.
from preserving defendants' testimony
                                                 Howel~ 685 S.W.2d 694, 695 (Tex.App.-Dal-
through oral deposition on the negligence
                                                 las 1984, orig. proceeding) (citing the open
issues while the abatement order is in effect,
                                                 courts provision of TEX. CONST. art. I, § 19).
As time goes on, memories will likely dim
and evidence become unavailable.
                                                    (17] The Texas Supreme Court has also
  (16]    Abating a case indefinitely, more-     reasoned that mandamus would issue to force
over, has been found to violate the open         a trial judge to go to trial because there was
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-
107 (1974); see id. at 82, 98. Congress could    ly given purportedly exempt documents;
not have wanted to open Service files to the     that such investigations are enforcement
public, which includes potential assassins,      proceedings; and that disclosure of the type
merely because they contain protective           of records contained in such an investiga-
rather than prosecutorial investigative ma-      tive file would interfere with such proceed-
terials. "[T]he release of information in        ings. Accordingly, the judgment of the dis-
investigatory files prior to the completion
                                                 trict court is AFFIRMED.
of an actual, contemplated enforcement
proceeding was precisely the kind of inter-
ference that Congress continued to want to
protect against." 437 U.S. at 232, 98 S.Ct.
at 2322. In light of our reading of Robbins
Tire and the legislative history of exemp-
tion 7(A), we conclude that the Service's
activities in investigating and observing
persons who present threats to Service pro-
tectees are enforcement proceedings for the        Carl D. WEHLING and Geraldine D.
purposes of the FOIA.                                 Wehling, Plaintiff1-AppellanU,
   [7] The remaining question is whether
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.

                                                               4
              *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.

                                                             5
              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.

                                                           6
              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
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               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
  18 the SEC applied to the dl1trtct court for the         banks to students In Institutions of hlaher edu-
  Southern Dlltrict of Teus for an order to com·           cation or at certain vocational achool1. These
  pel First Financial to comply with the SEC'•             loan• provide the holder with a seven percent
  IUbpoena. SEC v. Flnt Financial Group of                 retum plu1 an additional lntere1t Increment de·
  Texas, Inc., No. H-79-1243 (S.D.Tex., ftled              tennlned on a quarterly bails by abort-term
  June 18, 1979). That action was unresolved at            United State• Treuury Bill rate1." SEC v.
  the time the SEC flied Its complaint In thli             First Financial Group of Texas, Inc., No. H-79-
  case, but the SEC has stated In Its brtef that It        1772 slip op. at 2-3 (S.D.Tex., Sept. 28, 1979),
  voluntartly dl1mi11ed that action on Febrvary            afl'd In part, appeal dl1mlsaed as moot In p11rt,
  Ill, 1980. In an earlier decl1lon by thil court          645 F.2d 429, 440 (15th Cir. 1981).
  lnvoMna matters lri thl1 case, we affirmed the
  dl1trtct court's entry of a preliminary lnJunc·
  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
                       669 FEDERAL REPORTER, 2cl SERIES

naed Howton and Reynolds to be witnesses olds appeared at the March 8 deposition but
at the hearing on the SEC's motion for a refused either to testify, produce the sub-
preliminary injunction on August 81. poenaed material, or assert any privilege to
Reynolds appeared for the August 28 depo- justify his noncompliance with the district
sition on behalf of First Financial but re- court's February 15 order. Howton did not
fused either to testify or to produce any of appear or provide the SEC with any docu-
the subpoenaed documents. Howton and .ments. The magistrate orally directed ap-
Reynolds both failed either to appear or to pellants at the March 8 deposition to appear
produce any of the subpoenaed material for before the district court on March 10 to
the August 81 hearing.                         ahow cause why they should not be held in
   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
628 F.2d at 1878-90 & n. 26. The SEC's           depositions but sought to exercise a blanket
authority to aubpoena material from appel-       privilege by refusing to respond to any
lants under Fed.R.Civ.P. 26 is considerably      questions of any type and also never pro-
broader than the IRS's authority to subpoe-      duced any records. "A blanket refusal to
na material under § 7802, encompassing the       answer questions at deposition on the
right to diacover any non-privileged materi-
                                                 ground that they are privileged is an im-
al relevant to the aubject matter of the
                                                 proper invocation of the fifth amendment,
action. See Wehling v. Columbia Broad-
                                                 Irrespective of whether such a claim is
casting System, 808 F.2d 1084, 1086 (5th
                                                  made by a plain~iff, defendant, or a wit-
Cir. 1979). Accordingly, the limitations im-
                                                 neaa." Note, Plaintiff as Deponent: Invok-
posed upon the IRS by § 7602 recognized by
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
                                                 852 (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
607 F .2d 1218, 1200 (5th Cir. 1975), because     20. Rule 55(b)(2) does not require the dis-
 of the threat of incrimination from any          trict court to hold either an evidentiary
relevant queationing is a person totally ex-      hearing or oral argument on a motion for a
cused from responding to relevant inquiries.      default judgment.       ThomBB v. United
Otherwise, a person is entitled to invoke the     States, 581 F.2d 746, 748 (5th Cir. 1976).
privilege "[o]nly as to genuinely threaten-       Appellants had sufficient notice of the pos-
ing questions .... " United States v. Mel-        sibility that a default judgment would be
 chor Moreno, supra, 586 F.2d at 1049. See        entered against them and their contention
generally United States v. Goodwin, 625           is rejected.
F.2d 698, 700-01 (5th Cir. 1980). Therefore,
a blanket invocation of the fifth amend-
                                                    III. Contempt Judgment
ment privilege is insufficient to relieve a
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
                                                    8 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)
                                                                                           135
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-
18 (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
581 (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
                                                                   23 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
          42 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
282 U.S. SSS, 898, 84 s.ot. 841. 848, that         the Court since Twining and Adamson
"the 4th Amendment ie not directed to              have departed from the contrary view
individual misconduct of [state] of-               expressed in those cases. We discuss

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,
  18 S.Ot. 277, 2.81, 2 L .F.cl.2d 302             5, S ee Wolf v. Oolorndo, 838 U.S. 21S, 27-
   (eptlecb); Gro11jenn T• .American J>ree11          28, 69 S.Ot. 1869, 1861, 03 L.FAI. 1782;
  Oo., 297 U.S. 238, 24.4, IS6 S.Ot. 444, 446,        Elklna v. Unlted $tatce, 864 U.S. 206,
  80 L.Ed. . 660. (preea); Oontwell v. Con·           213, 80 S.Ot. 1437, 1441, 4 L.Ed.2d 1669.
  nectlcut, 810 U.S. 200, 803, 60 S.Ct. 000,
  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
                                                                                10
                                                                                                    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
   438 (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
              14 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.
                        17
                                                 case on that narrow ground,• it is per-
powers or by dUution in federal law en·          fectly clear from them that until today
foreement of the specific protections            it has been rerarded as settled law that
found in ·the Bill of Rights.                    the Fifth Amendment privilege did no~
                                                 by any process of reasoning, apply M
                       II.                       sucl to the Statea.
   As recently as 1961, this Court reaf.
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,
11
                                                            64. 8.Ct. 921, 88 L.Ed. 1192 i the Court
j.      ., • • • [T]he question of the
                                                            there adverted to the "third degree," e.
         right of the 1tate to withdraw the ·
        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-
     41
        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
                                                                    89
 that we deal here with constitutional re-                        principles and at the
.quirementa: for the provisions of the          same time enjoins it from reading ita
 Constitution which are construed are           own preferences into the Constitution.
 different.
   As the Court pointed out in Abbate v.           The Connecticut Supreme Court of
'united State.a, 859 U.S. 187, 195, 79 S.Ct.    Errors gave full and careful conaidera-
'666, 671, 8 L.Ed.2d 729, "the St.ates un-      tion to the petitioner's claim that he
.der our federal system have the principal      would incriminate himself if he answered
responsibility for defining and prosecu.t-      the questions put to him. It noted that
ing crimes." The Court endangers this           Us decisfona "from a time antedating the




                                                                                          RPI 0111
878 :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
      14 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
  41
     ln the context of the inquiry, it        reason to believe that the Connecticut
  should have been apparent to the            court did apply the Hoffman standard
  referee that Bergoti was suspected                              33
                    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
15 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
    828 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-
5 Judge Coleman of the Fifth Circuit en-              tion obtained by the subpoena here in
joined further prosecution of the SEC sub-            issue. This order is not intended to inter-
poena enforcement action until after the              fere with pending proceedings in the Dis-
District Court for the Southern District of           trict of Columbia to enforce the SEC
Texas had ruled on Dresser's action against           subpoenas.
15. JA 295-296 (statement by Marvin G. Pick-        18. The procedural history of this case is re-
  holz.).                                             counted in Dresser's motion to quash the SEC
                                                      subpoena, JA 160- 163.
16.   Id.

17.  Dresser Industries, Inc. v. United States,
  Civil Action No. H-78-405 (S.D.Tex.).




                                                                                                 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
573 (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
248 (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
  401 (1950)); see also SEC v. Howatt, 525 F.2d          the status of the criminal case. But the rule
  226, 229 (1st Cir. 1975). We agree with the            forbidding such is a prophylactic intended to
  District Court that "[t]his investigation has a        safeguard the following policy interests.




                                                                                                      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
  625 (3d Cir. 1975), which it characterized as             official transcript of the witness' own testi-
  holding that the IRS summons authority must               mony.
  cease at the point when the special agent rec-               § 203. 7 Rights of witnesses.
  ommends prosecution to the district office,                  (a) Any person who is compelled or re-
  rather than at the point when the IRS recom-              quested to furnish documentary evidence or
  mends prosecution to Justice. 437 U.S. at 313             testimony at a formal investigative proceed-
  n.15, 98 S.Ct. at 2365 n.15. The Supreme                  ing shall upon request be shown the Commis-
  Court admitted that "the potential for expand-            sion's order of investigation. • * •
  ing the criminal discovery rights of the Justice             (b) Any person compelled to appear, or
  Department or for the usurping the role of the            who appears by request or permission of the
  grand jury exists at the point of the recommen-           Commission, in person at a formal Investiga-
  dation by the special agent." Id. But it called           tive proceeding may be accompanied, repre-
  the possibilities of abuse "remote," id., and             sented and advised by counsel • * •.
  stated that they "do not justify imposing an                 (c) The right to be accompanied, represent-
  absolute ban on the use of the summons before             ed and advised by counsel shall mean the
  that point." Id.                                          right of a person testifying to have an attor-
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
  166 (1975) (suggesting a further rationale: "to       tend to re 1eal what transpired before the grand
  prevent the grand jury from being diverted            jury." United States v. Annco Steel Corp., 458




                                                                                                          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
  317 n.19, 98 S.Ct. at2368 n.19.                        prior testimony by grand jury witnesses; (5)
                                                         that prosecutors might be denied access to ex-
51. In its brief Justice suggests a number of
                                                         culpatory information, evidence of perjury, or a
  practical problems that might ensue from the
                                                         prior lnculpatory statement; and (6) that the
  panel's modification: (1) that Jusiice might
  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
   8 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

 563 (W.D.Pa.1979). The District Court ap- motion. It appears that the court rejected
 proved a similar arrangement in this case his claim on the merits without first allow-
 with respect to Dresser's subpoenaed docu- ing him to pass the threshold. In this cir-
 ments in general. We do not read the cuit an applicant to intervene need only
opinion as approving such a procedure with show that the representation of his interest
 respect to all documents in this case, no may be inadequate; the burden of proof
 matter how sensitive they may prove to be.
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,
       81 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,
       23 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
       42 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
259 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
232 U.S. SSS, 898, 84 s.ot. 841, 848, that the Court since Twining and Adamson
"the 4th Amendment is not directed to have departed from the contrary view
individual misconduct of [state] of· expressed in those cases. We discuea

4. E. g., Gitlow v. New York, 268 U.S. ~.              6 L.Ed.2d 801 (Dlllsoclo.tion) l N. A. A. 0.
   666, 46 S.Ot. 626, 629 (epeech and                  P. v. Button, 871 U.S. ~15, 83 B.CL 828,
   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.
   949 (speech and preea); New York Tlmea              Virclnia. e:ic rel. Virginia State Bar, 877
    Co. v. Solllvon, 876 U.S. 21S4, 84 S.Ot. 710,      U.S. 1, 84 8.0t. 1113, 12 L.Ed.2d 89
    11 L.lild.2d 686 (speech and preea):                (1U11oclo.tlon).
    Staub v. City of Boxley, 856 U.S. 318, 821,
   1s a.ct. 2171, 281, 2 L.Ed.2d 302                5, See Wolf v. 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,
   80 L.Ed. · 600 (preea) ; 011Jltwell v. Con·         213, 80 S.Ot. 1487, 1441, 4 L.Ed.2d 1669.
   nectlcut, 810 U.S • .296, 303, 60 S.Ct. 000,
   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
                                                                         10
                                                                                              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
   01 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
   488 (0.A.3d Cir.), clted·with approval in      approached and achieved b1 obecur·e and
   Emapak Y. United States, 349 U.S. 100,         nnllkel;y linH of IDquiey.'' 198 F.241, at
   'llS S.Ct. 687, 99 L.Ed. 991, the Court        440-441.




                                                                                                  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
           14 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.
                       17
                                                case on that narrow ground,• it is per-
powers or by dilution in federal law en-        fectly clear from them that until toda.y
forcement of the specific protections           it has been resrarded a~ settled law that
found in·the BUI of Rights.                     the Fifth Amendment privilege did no~
                                                by any process of reasoning, apply u
                      II.                       auch. to the States.
   As recently as 1961, this Court reaf-
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
                                                                    119
 that we deal here with constitutional re-                        principles and at the
.quirementa : for the provisions of the         same time enjoins it from reading ita
 Constitution which are construed are           own preferences into the Constitution.
different.
   As the Court pointed out in Abbate v.           The Connecticut Supreme Court of
'united States, 859 U.S. 187, 195, 79 S.Ct.     Errors gave full and careful considera-
-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
878 .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
      14 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
378 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.
                     38
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
15 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-
5 Judge Coleman of the Fifth Circuit en-           tion obtained by the subpoena here in
joined further prosecution of the SEC sub-         issue. This order is not intended to inter-
poena enforcement action until after the           fere with pending proceedings in the Dis-
District Court for the Southern District of        trict of Columbia to enforce the SEC
Texas had ruled on Dresser's action against        subpoenas.
15. JA 295-296 (statement by Marvin G. Pick-      18. The procedural history of this case is re-
  holz).                                            counted in Dresser's motion to quash the SEC
                                                    subpoena, JA 160-163.
16.   Id.

17. Dresser Industries, Inc. v. United States,
  Civil Action No. H-78-405 (S.D.Tex.).




                                                                                               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
573 (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
248 (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
  401 (1950)); see also SEC v. Howatt, 525 F.2d          the status of the criminal case. But the rule
  226, 229 (1st Cir. 1975). We agree with the            forbidding such is a prophylactic intended to
  District Court that "(t)hls investigation has a        safeguard the following policy interests.




                                                                                                       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
  625 (3d Cir. 1975), which it characterized as            official transcript of the witness' own testi-
  holding that the IRS summons authority must              mony.
  cease at the point when the special agent rec-              § 203. 7 Rights of witnesses.
  ommends prosecution to the district office,                 (a) Any person who is compelled or re-
  rather than at the point when the IRS recom-             quested to furnish documentary evidence or
  mends prosecution to Justice. 437 U.S. at 313            testimony at a formal investigative proceed-
  n.15, 98 S.Ct. at 2365 n.15. The Supreme                 ing shall upon request be shown the Commis-
  Court admitted that "the potential for expand-           sion's order of investigation. • • *
  ing the criminal discovery rights of the Justice            (b) Any person compelled to appear, or
  Department or for the usurping the role of the           who appears by request or permission of the
  grand jury exists at the point of the recommen·          Commission, in person at a formal Investiga-
  dation by the special agent." Id. But it called          tive proceeding may be accompanied, repre-
  the possibilities of abuse "remote," id., and            sented and advised by counsel • * •.
  stated that they "do not justify imposing an                (c) The right to be accompanied, represent-
  absolute ban on the use of the summons before            ed and advised by counsel shall mean the
  that point." Id.
                                                           right of a person testifying to have an attor-
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
  166 (1975) (suggesting a further rationale: "to       tend to re 1eal what transpired before the grand
  prevent the grand jury from being diverted            jury." United States v. Armco Steel Corp., 458




                                                                                                         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
  317 n.19, 98 S.Ct. at 2368 n.19.                      prior testimony by grand jury witnesses; (5)
                                                        that prosecutors might be denied access to ex-
51. In its brief Justice suggests a number of           culpatory information, evidence of perjury, or a
  practical problems that might ensue from the          prior inculpatory statement; and (6) that the
  panel's modification: (l) that Justice might
                                                        prosecutor might find it impossible to comply
  have to forego any assistance from the SEC in
  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
   8 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

 563 (W.D.Pa.1979). The District Court ap-           motion. It appears that the court rejected
 proved a similar arrangement in this case           his claim on the merits without first allow-
 with respect to Dresser's subpoenaed docu-          ing him to pass the threshold. In this cir-
 ments in general. We do not read the                cuit an applicant to intervene need only
 opinion as approving such a procedure with          show that the representation of his interest
 respect to all documents in this case, no           may be inadequate; the burden of proof
 matter how sensitive they may prove to be.
                                                     rests on those resisting intervention.
 The decision whether to accord greater pro-
 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
366 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.
                       625
                         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
                                                                   408 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
       439 n. 15, 76 B.Ct. 497, 507, 100 L.Ed.            remarks of the Duke of Argyle and Lord
       511 (1956) ; Blair v. United States, ~O            Chancellor Hardwicke, reparted in 12 T.
       U.S. 278, 39 S.Ct. 468, 63 L.Ed. 979               Hansard, Parliamentary History of Eng·
       (1919).



                                                                                                         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
        378 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
        158 (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
  16 How.St.Tr. 323, 604-005 (1723). The           was enacted to facilitate an investigation
  legislatures in colonial Pennsylvania arnl       of charges of corruption and vote buying
  New York enacte1l immunity legislation in        in the House of Representatives. See
  the 18th <'entury. See, e.g., Resolution of      Comment, n. 13, supra, 72 Yale L.J., at
  Jan. 6, 171i8, in Votes and Proceedings          1571.
  of the House of Representatives of the
  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
   68 S.Ct., at 1378. There was one minor         Commission on Reform of Federal Crimi-
   exception. See Piccirillo v. New York,         nal Lawe, Mar. 17, 1969, Working Pa·
   400 U.S., at 571 and n. 11, 91 S.Ot., at       pers of the CommfSllion, 1446 (1970).
   532 (Brennan, J., dissenting) ; Arnd·          The Commission's recommendation was
   stein v. McCarthy, 2M U.S. 71, 73, 41          based in large part on a comprehensive
   S.Ct. 26, 27, 65 L.Ed. 188 (1920).             study of immunity and the relevant deci·
                                                  sione of this Court prepared for the Com·
36. The statute ia a product of careful           mission by Prof. Robert G. Dixon, Jr.,
   study and coneldoratlon by the National        of the George Washington University Law




                                                                                                  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,
                                                            2 L.E<l.2<l 1393 (1958).
    37. See S.Rep.No.91--017, 11p. 51-56, 145
       (1969) ; H.R.Rep.No.91-1549, p. 42
       (1970).




                                                                                                       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
       76 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,
       86 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-
        86 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,
        74 S.Ot., at 444; Bram v. United States,          54. Jackson v. Denno, 878 U.S. 368, 84
        168 U.S. IS32, M2, 18 S.Ct. 183, 186, 42             S.Ct. 1774, 12 L.Ed.2d 908 (1964).
        L.Ed. IS68 (1897).
                                                          55. See aupra, at 1664; Brief the United
     53. As Mr. Justice White, concurring in                 States 87; Cf. Chapman v. California,
        Mv,.,,h11, pointed out:                              886 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
        "A coerced confeBBion ia aa revealing ot             700 (1967).
        leads as testimony given in excbanre for
        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-
          92 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-
625 (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,
21 U.S.C.A. §§ 84l(a)(l), 846, 952(a),                                      I
960(a)(l), 963; U.S.C.A.Const. Amend. 5.
                                                        The Melchor brothers are Mexican na-
17. Criminal Law oe=-772(6)                          tionals. In 1974 Rigoberto was living as a
     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
841 U.S. at 486-87, 71 S.Ct. at 818, 95 L.Ed.        Corp., 878 F.2d 6~ (CAS, 1967). The appel·
at 1124. Thia general approach to adjudica-          lants in U. S. Hoffman Can Corp. had re-
tion of the aelf-incrimination privilege baa         sisted, on Fifth Amendment grounds, dis-
been followed by this circuit in numerous            closure of financial information. The Dis-
opinions.•                                           trict Court ordered them to submit a sealed
   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
507 F.2d at 1220. In a companion case with critical to the Melchors' entrapment conten-
virtually identical facts, we remanded for a tion-would expose him to a risk of prose-
new trial with instructions that the judge cution. Since there is a great deal of evi-
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
      0


    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·
   1 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
 161 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
                   1 RANSWORLD MECHANICAL,
                                                                         remedy. U .S.C.A. ConstAmend. 5; Fed.Rules
                         INC., et al., Defendants.
                                                                         Cr.Proc.Rule 16(b), 18 U.S.C.A
           No. 94 Civ. 6634 (DC).             May :L5, i995 .
                                                                         30 Cases that cite this headnote
Trustees of employee benefit funds for local union brought
action against employers for violating Employee Retirement         [3]   Action
Income Security Act (ERISA), Labor Management Relations                       Nature and subject matter of actions in
Act. civil Racketeer Influenced Corrupt Organizations Act                general
(RICO), and common-law fraud. On defendants' motion to                   Factors lo be consi<lered in detem1ining whether
stay case pending resolution of related criminal and civil cases         sta\ of case is warranted in interests of justice
and their motion to dismiss, the District Court, Chin, J., held
                                                                         include extent to which issues in criminal case
that: ( 1) case would be stnyed pending resolution of criminal
                                                                         overlap '' ith those presented in ci,·il case.
case alleging same wrongful conduct; (2) complete stay
                                                                         status of case, including \\ hether defendanls
would granted, rather than only partial stay as to individual
                                                                         ha\ c been indicted, private interests of plaintiffs
defendants: ( 3) pending civil case on suspense calendar would           in proceeding expetlitiously weighed against
not be stayed under '·prior pending action" doctrine; (4)
                                                                         pr~jutlice to plaintiffs caused b) i.lela), pri\ ate
trustees alleged conunon-law and ERISA fraud claims with
                                                                         interests of and burden on defendants, interests
required particularity; and (5) trustees established pattern             of courts. imi.1 public interest.
of racketeering activity sufficient to withstand motion to
dismiss.                                                                 94 Cases that cite this headnote

Motion to stay criminal case granted; motions to stay civil
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
            4 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
       2 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
       28 Cases that cite this headnote
                                                                         Act (ERISA) fraud claim with particularity
                                                                         required by Federal Rules of Civil Procedure.
[7]    Action                                                            where they alleged that in monthly reports
            Nature and subject matter of actions in                      submitted to them, employers misrepresented
       general                                                           identity of employees working for them and
       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
       34 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
        2 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
                                                                             3 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
        18 U.S.C.A. § l 962(c).                                               monthly reports to trustees containing intentional
                                                                              misrepresentations regarding number of persons
        3 Cases that cite this headnote                                       employed by employers and number of hours
                                                                              worked by those employees for purposes of
                                                                              reaping financial gain at expense of trustees, and
[15]    Racketeer Influenced and Corrupt
                                                                              that they underreported amount of money owed
        Organizations
                                                                            . to employee benefit funds on reports and retained
            Pattern of Activity
                                                                              money themselves. 18 U.S .C.A. § 1962.
        To allege adequately pattern of racketeering,
        plaintiffs must establish that defemlants                            Cases that cite this headnote




                                                                •'                                                    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
                                                                      1 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
        4 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
                                                                      28 U.S.C.A.
        employers of persons perfonning work covered
        under collective bargaining agreement and                     Cases that cite this headnote
        controlled by individual defendants, who had
        responsibility for nccuracy nnd mailing of
        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
                                                                                                                  1
         peculiarly within defendants' knowledge. 18                                            BACKGROUND
         U.S .C.A. § 1962.
                                                                          Plaintiffs are the Trustees of severnl employee benefit funds
         3 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
         5 Cases that cite this headnote
                                                                          by a collective bargaining agreement with Local 2 that
                                                                          sets forth the terms and conditions for plumbing and
                                                                          gas fitting work performed by defendants' employees in
                                                                          Manhattan and the Bronx (the "Agreement''). The Agreement
Attorneys and Law Firms
                                                                          provides that defendants will remit contributions to the
 '"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


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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)
18 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.
                                                          3
                                                              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
770 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



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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
109 F.R.D. at 119. Accordingly, stays will generally not be       that this Court will have to "rely upon fortuitous events to
granted before an indictment is issued. See, e.g., Citibank
                                                                  manage its dockets" is obviated. 9 In addition, resolution of
v, Hakim, 1993 WL 481335 (S.D.N.Y.1993) l"Although
                                                                  the criminal case may increase the possibility of settlement of
defendant Hakim allegedly is a target of a continuing
                                                                  the civil case due to the high standard of proof required in a
grnnd jury investigation, he does not "1140 claim to have
                                                                  criminal prosecution. See Parallel Proceedings, 129 F.R.D
been indicted. Accordingly, Hakim's pre-indictment motion
                                                                  at 204.
to stay can be denied on this ground alone"') (citations
omitted): Securities and Exchange Commission v. M11sell.a,
                                                                  Finally. a stay of this case 'l.Vould not cause serious hann to
38 Fed.Rules Serv.2d 426 (S.D.N.Y.1983) (defendant's pre-
                                                                  any public interest. Plaintiffs argue that the public interests
indictment motion to stay civil case denied).
                                                                  in obtaining "prompt and effective redress from a contractor
                                                                  who allegedly has been a player in an dngoing scheme which
Here, Helen and Thomas Andreadakis, along with the two
                                                                  has affected'" New York city residents and in maintaining
Danica entities, have been indicted. In addition, defendants'
                                                                  the ''financial security of employee benefit funds," would
counsel has advised that the Criminal Case should be
                                                                  be advanced by the civil case_ (Pl. Mem. at 14l. While
completed by the end of this year. which would not
                                                                  the public interests enunciated by plaintiffs' counsel have
umeasonably prolong this case. 8 See Twenty Fil·st Century        merit, this is not a case where a stay of the case will cause
Corp. v. LaBianca, 801 F.Supp. 1007, 1010 (E.D.N.Y.1992)          serious or immediate injury to those interests. Because of
(motion for stay grnnted where civil case commenced in June       the overlapping issues in the criminal and civil cases, the
l 992 and related criminal case was set for trial on November     criminal prosecution will serve to advance the public interests
30, 1992). Thus, this factor weighs in fovor of granting a stay.  at stake here. See Volmar, 152 F.R.D. at 40. In addition, as
                                                                  discussed above, the case should not be delayed longer than
                                                                  approximately six months.
3. The Private am/ P11blic Interests
  (7] 11xamination ofille ~anous interests at staR:c hem makes
                                                                  The inconvenience and delay to plaintiffs that will
it clear that n s an is \\arranted in this case. First, the
                                                                  unfortrnmtely be caused by a stay • 1141 are outweighed
balance of the parties' divergent interests weighs in favor of
                                                                  by the defendants' significant Fifth Amendment concerns,
a stay. Plaintiffs have a legitimate interest in the expeditious
                                                                  particularly where a stay will not inordinately prolong
resolution of their case and their argument that they could face
                                                                  the civil case and where the criminal prosecution could
prejudice from a stay through loss of evidence is well-taken.
                                                                  provide some benefit to the civil case and advance public
These interests, however, are trumped by defendants' interests
                                                                  interests. Accordingly, the Andreadakises' motion for a stay
in avoiding the quandary of choosing between waiving their


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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
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 [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




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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
                                                                                                                                  18
(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
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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
                                                     5 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)
                                                                                                73
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
134 (N.D.N.Y.1983), particularly when a case       Cir.1988) (granting a stay of discovery be-
involves multiple parties and claims. See          cause the same facts underlie the criminal
S.E.C. v. Everest Mgmt. Corp., 475 F.2d            and civil cases); Brock v. Tolkow, 109 F.R.D.
1236, 1240 (2d Cir.1972). Moreover, because        116, 119 (E.D.N.Y.1985) (reasoning that a
a "federal district court has the inherent         "stay of discovery is most likely to be grant-
power, in the exercise of its discretion, to       ed where the civil and criminal actions in-
stay an action," Twenty First Century Corp.        volve the same subject matter"). Allowing
v. LaBianca, 801 F.Supp. 1007, 1010                civil discovery to proceed would likely afford



                                                                                                       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
    381 (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
367 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




                                                                                             t....t:.JO,... •   M   s   .rrnx   ) J'Jt-M ... fliM LL <l   ,; :    ~~.!        • )'l    .-'IL .. .; ~r.   •:;c    jl•


                                                                                         "    IS                                                 f'° '           ·\) I        T.- ,   jlJf< 11-. 1 lt•21



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1.

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3.




                                                                                                                                                                  [ 11 )


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4.




s.
                                                                                                                                                                                                           RPI 0253
 6




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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