REINA v. UNITED STATES

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Argument of Allen S. Stim

Chief Justice Earl Warren: Number 29, Giacomo Reina, Petitioner, versus United States.

Mr. Stim.

Mr. Allen S. Stim: Mr. Chief Justice, if it please this Court.

This case comes before this Court on certiorari to the United States Court of Appeals for the Second Circuit which affirmed a judgment dated and entered in the United States District Court for the Southern District of New York dated the 2nd day of February, 1959 by which this petitioner was adjudged guilty of a contempt of court for his refusal to testify as ordered pursuant to the provisions of Title 18 of the United States Code, Section 1406 which is known under the popular name as the Immunity Act -- as the immunity provision of the Narcotic Control Act of 1956.

In this argument, I shall use both the code name and the popular name -- name interchangeably.

By the terms of this judgment, adjudging the petitioner in contempt of court, he was sentenced to a term of two years imprisonment.

This term of imprisonment that commenced at the termination of a narrowly, a five-year federal sentence that this petitioner was then serving.

This judgment, by its terms, provided that the petitioner might purge himself within a period of 60 days from the date of the judgment and in that event that this sentence, by its -- its terms would be -- be vacated and become null and void.

This 60-day purge period has elapsed without the petitioner having availed himself to its provisions and the judgment by its terms had become final.

I would like to state that the petitioner is presently freed -- free on $10,000 bails -- bail -- dollars bail, allowed by one of the Justices of this Court.

The questions being raised on this writ of certiorari are four questions.

They are first, does the immunity provision of the Narcotic Control Act of 1956 grant immunity from state prosecutions for violations of state narcotic laws?

And in the event that this Court holds that this federal statute does not grant such an immunity, the question is, is the immunity granted by the federal statute coextensive with the constitutional privilege against self -- self-incrimination which it seeks to replace?

The second part of this question calls for reexamination by this Court of the 1931 decision of United States against Murdock, cited 284 U.S. 141, with my contention that the Murdock case should be overruled.

My second question raised is that on the facts of this particular proceeding, before the petitioner could be validly held in contempt for refusal to testify as ordered pursuant to the immunity provision of the Narcotic Control Act of 1956, was it incumbent -- was it not incumbent upon the Government to have made -- tendered this petitioner before he testified a firm offer or commitment on the part of the Government to render inoperative, the unexecuted portions of an earlier judgment of conviction entered in the United States District -- District Court which adjudged this petitioner guilty of the crime of conspiracy to violate the narcotic laws of the United States and under the terms of which judgment, the petitioner was then serving and as yet, unexpired five-year prison sentence and owed the Government a $10,000 fine which he has been unable to pay which were imposed pursuant to the terms of the earlier judgment of conviction when the said prior judgment of conviction for conspiracy to violate the narcotic laws of the United States, was based upon the same facts that the Government sought to question this petitioner about before a grand jury in the present proceeding pursuant to Title 18 of the United States Code, Section 1406?

My third question which relates to question number one, point 1 is, was this petitioner denied due process of law by the failure of the District Court to inform him as to the scope and extent of the immunity granted pursuant to Title 18 of the United States Code, Section 1406 before it adjudged the petitioner to be in contempt of court for his failure to testify pursuant to said provisions?

Well, my fourth and final question is on the facts of this case, was the sentence of this petitioner to a five-year prison term on this present contempt proceeding -- to a two-year prison term, I mean, which sentence was to commence at the termination of the earlier five-year sentence that petitioner was then serving an abuse of discretion that will be reviewed by this Court -- by this Court?

I believe that at this point, a statement of facts is in order.

Chief Justice Earl Warren: Mr. Stim (Inaudible) to decide that this (Inaudible) carrying immunity from the state (Inaudible).

Mr. Allen S. Stim: Well, that -- that is the -- that is the Solicitor General's point, Your Honor.

I'd like to point --

Chief Justice Earl Warren: (Inaudible)

Mr. Allen S. Stim: Well, in the event that the Court finds that this -- that this statute grants immunity from -- from state -- that this Act grants immunity from state prosecution, I don't believe that I would have much to rely on in my first point.

I have to rely then on the other points in the argument.

Chief Justice Earl Warren: (Inaudible)q

Mr. Allen S. Stim: Yes, Your --

Chief Justice Earl Warren: Mr. Murdock --

Mr. Allen S. Stim: Yes, Your Honor.

Chief Justice Earl Warren: (Inaudible)

Mr. Allen S. Stim: In short, the Government is attempting to bypass the Murdock case by raising for the first time, before this Court, the unique position with regard to the Narcotic Control Act, I should state.

They're attempting to extend the doctrine of the Ullmann decision.

Justice Felix Frankfurter: Are you -- are you proposing to argue to the Court that as a matter of statutory construction, the Court can't take that position -- can't make that construction?

Mr. Allen S. Stim: Well, I'm arguing as a matter of law that the Court, taking into consideration the Tenth Amendment of the Constitution of the United States and that the peculiar circumstances of the Ullmann decision and the Immunity Act of 1954 that the Court cannot make such a decision.

Justice Felix Frankfurter: Well, that's what I asked you.

Do you say that -- that it isn't open to the Court to close the door to the ultimate constitutional question that you want to raise?

Mr. Allen S. Stim: That -- that I go along with.

This case originated in the United States District --

Justice Felix Frankfurter: In other words, you -- you like to prevail so far as that branch of the Court is concerned on the constitutional ground, not on the statutory ground?

Mr. Allen S. Stim: Well, I'm relying on both --

Justice Felix Frankfurter: On the ground that you think it isn't open to take the statutory (Voice Overlap) --

Mr. Allen S. Stim: Well, my position is -- is that I don't like -- I'm -- I'm relying on the constitutional grounds with that -- that portion -- on -- on that portion, Your Honor.

Justice Felix Frankfurter: Yes, but you can do so only on the Chief Justice's question suggest.

If you reject what the Solicitor General is imposing, namely that as a matter of construction, you have got immunity in the state courts, do you say that that road isn't open, that's closed?

Mr. Allen S. Stim: Well, in short --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Allen S. Stim: -- I reject that position --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Allen S. Stim: -- Your Honor.

Justice John M. Harlan: Do you also say it's unconstitutional even if it could be construed that way?

Mr. Allen S. Stim: Well, I state, yes, that -- that there's violation --

Justice John M. Harlan: (Voice Overlap) constitutional problem to both statutes.

Mr. Allen S. Stim: As a violation of this petitioner's constitutional rights, Your Honor.

This case originated in the United States District Court for the Southern District of New York and arose out of a proceeding brought by the Government pursuant to Title 18 of the United States Code, Section 1406.

On December 5th, 1958, this petitioner was imprisoned in a federal prison where he was then serving a five-year prison sentence and owed a -- was owing the Government a fine of 10 -- $10,000 which he had been unable to pay, which sentence was imposed pursuant to the terms of an earlier federal conviction adjudging him guilty of the crime of conspiracy to violate the narcotic laws of the United States.

On that date, December 5th, 1958, this petitioner was brought before a federal grand jury sitting in the Southern District of New York pursuant to a subpoena duces tecum test -- test of a condemn where he was asked numerous questions, many of which related to narcotics.

The petitioner refused to testify before the grand jury invoking his privilege against self-incrimination.

Thereafter and in accordance with the provisions of the -- of Title 18 of the United States Code, Section --

Chief Justice Earl Warren: (Inaudible) do these questions (Inaudible)

Mr. Allen S. Stim: Well, putting it this way, the facts -- most of the -- many of the questions -- the facts related directly to the crime that he was convicted of and I might state without fear of contradiction that the phraseology of many of those questions was taken from the testimony given against this -- this petitioner in the -- in the trial in the -- in the District Court on the charge for conspiracy to violate the narcotic laws of the United States.

Thereafter, in accordance after the petitioner refused to testify before the federal grand jury, the Government applied for and obtained an order pursuant to Title 18 of the United States Code, Section 1406.

That is the court order of December 17th, 1958, which appears in the record pages 10 and 11.

This order directed the petitioner, in its language, to testify before the grand jury pursuant to the provisions of Title 18, Section 1406.

The petitioner was again called before the grand jury after this order had been signed and was again asked the same questions.

He again -- he -- this second time, he stood mute on his -- on his constitutional rights and it was upon his continued refusal to testify before the grand jury on the claim of constitutional immunity that the Government brought this motion to punish the petitioner for contempt of court.

This -- the -- this present proceeding to punish the petitioner for contempt of court was brought pursuant to the provisions of Title 18, U.S.C., Section 401, Subdivision 3, to punish the petitioner for disobedience to a lawful order of the court.

The Government's motion to punish for contempt came on for hearing in the United States District Court for the Southern District of New York on this 22nd day of January, 1959 before the Honorable Archie O. Dawson, District Judge.

On this hearing, the petitioner opposed the Government's motion on two different grounds.

The first ground being that Title 18 of the United States Code, Section 1406 is in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and that it does not provide the broad immunity contemplated by said two amendments.

I believe this appears in transcript record -- pages 20 and 21 of the record.

The petitioner's then counsel argued that there is nothing to indicate in the immunity statute, the scope and the extent of the immunity jurisdiction of the immunity grant and jurisdictions other than the federal jurisdiction.

And more particularly, he referred to the state jurisdictions.

The petitioner's then counsel cited this statute as an example of the constant attempts to chip away the basic liberties guaranteed under the Constitution.

The petitioner's second ground which is not being urged before this Court is that certain questions propounded to the petitioner before the grand jury were not within the context of the meaning of the statute as enacted.

As I've stated, I'm not urging the -- the second point before the Court.

Thereafter and on the 2nd day of December -- of February, 1959, the District Court rendered an opinion -- an opinion and judgment, adjudging the petitioner to be in contempt of court.

I believe that the opinion was rendered on January 29th, 1959 and that there was some question before the Court whether they had entered a judgment or not, therefore, the judgments was entered, I believe, the Monday -- Monday but both the opinion and judgment are considered to go together.

This opinion which is officially cited in Giacomo Reina, 170 F. Supp.292, appears on pages 29 through 34 of the record.

In this opinion, Judge Dawson followed the rationale of this -- the decision of this Court in United States against Murdock and held that he was bound by the decision.

The judgment of the District Court was unanimously affirmed by the United States Court of Appeals for the Second Circuit on December 30th, 1959.

This affirmance appears in the transcript, pages 38 through 40.

It's officially recorded as Giacomo Reina against the United States, 273 F.2d 2 -- 234.

The Court of Appeals likewise followed the Murdock decision.

This brings me to my first point.

In answer to the first question raised and to set forth in point 1 of my brief, my contention is that the Narcotic Control Act of 1956 does not grant immunity from state prosecutions for narcotic violations of state laws.

And that therefore, the immunity provision of the Narcotic Control Act of 1956 is not coextensive with the constitutional privilege that it seeks to replace, that is the privilege against self-incrimination guaranteed under the Fifth Amendment.

The petitioner contends that despite the wording in the Act which uses the language, "Nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court, that said statute, cannot by its terms under a grant of immunity, bar States from prosecuting for violations of state penal laws involving narcotics which are -- and exercised by the States of their police power.

As any such attempt by Congress to grant such an immunity from state prosecutions, would be an invasion of the powers expressly reserved to the States under the Tenth Amendment."

This fact was recognized by the United States Court of Appeals for the Sixth Circuit in Tedesco against the United States, 255 F.2d 35, which cases cited in my brief.

In the Tedesco case, the Sixth Circuit, while affirming a contempt conviction arising under this very same statute, went on to state on the ground that it felt bound by the Murdock decision, the Sixth Circuit went on to express grave doubt that Congress has the power to grant immunity from prosecutions in state courts pursuant to state narcotic laws.

Justice Charles E. Whittaker: Would that mean, in your opinion, that there can be no valid federal immunity legislation?

Mr. Allen S. Stim: Well, no, that doesn't mean in my opinion.

I was just citing the Tedesco case which, in Tedesco, they held that they were bound by Murdock.

There could be, in certain circumstances which I'll come to, valid immunity legislation given by the Federal Government binding -- binding the States also.

I -- I intend in my argument to distinguish the field, say, narcotics from the field of national defense, which -- the only case involved.

Justice John M. Harlan: Before you go on to this branch here, are you -- does the statute here, the immunity statute here, in its wording, differ in any substantial respect from the statute that we have in the Ullmann case?

Mr. Allen S. Stim: To be quite frank with Your Honor, as I was going to state in my argument, I believe that the statute, the Immunity Act of 1954 served as the original blueprint for the -- for the drawing up of the present statute.

This statute was enacted, I believe, about three months after this Court sustained the Ullmann case.

Justice John M. Harlan: Because there's a matter of statutory construction as we held in Ullmann as we did that the statute did reach for state immunity.

You don't -- whether argue that we shouldn't reach the same result here as a matter of statutory construction.

Mr. Allen S. Stim: Well, I -- my point is despite the language, the Ullmann case happened to refer to certain powers in the Federal Government, which I believe, are conceded to be supreme over the State's national defense which is relied, closely relied to the war powers.

The --

Justice John M. Harlan: Then goes to the power of Congress to do that rather than to what it -- what the statute (Voice Overlap) --

Mr. Allen S. Stim: Well, no.

I'm differentiating in my argument between the power of Congress in enacting legislation that might bind the States where this power is being exercised in the national defense or war power situation from a case like the narcotic -- in the narcotic field --

Justice John M. Harlan: (Voice Overlap) --

Mr. Allen S. Stim: -- which traditionally was exercised by both Governments concurrently.

Justice John M. Harlan: I understand.

But as a matter of statutory construction, I will take it that you do not contend that the statute can be read.

Mr. Allen S. Stim: Well, I'm not arguing anything about the language, Your Honor.

Justice John M. Harlan: It can be read as conferring to state immunity.

Mr. Allen S. Stim: Well, there's no -- there's been no position taken down below by a -- by the Government --

Justice John M. Harlan: No.

Mr. Allen S. Stim: -- on the statutory language.

They just say, "Murdock, we follow Murdock," and there's no -- no attempt --

Justice John M. Harlan: I'm just asking about argument so that I --

Mr. Allen S. Stim: Yes, sir.

Justice John M. Harlan: There's really no bone of contention between you and the Government that the statute does purport -- purport to grant immunity for the state prosecutions.

Mr. Allen S. Stim: No, I don't claim it does.

I claim that the statute uses the language in any court which was likewise used in the -- used in the Immunity Act of 1954, as I will come in one moment.

Justice Charles E. Whittaker: Would you believe this applies in the outset that the same words meant the same thing in here as in Murdock?

Mr. Allen S. Stim: As in Murdock or Ullmann, it hasn't --

Justice Charles E. Whittaker: Oh, no.

I beg your pardon.

Ullmann.

Mr. Allen S. Stim: Well, my question is at the time that the -- the Ullmann statute, the Immunity Act of 1954 was enacted by Congress.

The reading of the congressional reports shows that apparently, Congress didn't have too much of an intent one way or the other, their intent being that if we could get state immunity well and dandy, we'll leave that up to the Supreme Court of the United States to construe.

That appears in my brief.

Congress, in enacting federal immunity legislation, has recognized the powers involved and the questions of constitutionality that would arise out of a federal -- federal immunity legislation that might be construed as barring state prosections for violations of state penal laws.

This point, I came to the part of my arguments where I dealt with the congressional intent in the Ullmann statute.

He has report on the bill that was subsequently enacted into law and is now known as the Immunity Act of 1954 that is 18 U.S.C., Section 3486 Supp.2, as reported in two congressional codes and Congress reports, 83rd Congress, Second Session, 1954 on pages 3063 and following.

This majority -- the majority report which recommended passage of the then proposed bill, expressed great doubt as to the power of Congress under the proposed grant of immunity which referred to compel testimony in matters concerning national security.

This majority report expressed great doubt in that field of the power of Congress to bar subsequent action in -- in the States in enforcing their criminal laws.

However, this majority report recommended passage of the then proposed bill leaving the question as scope and extent of the immunity granted and constitutionality of the Act up to this Court.

The House Minority Report, which appears in page 3071 of the aforementioned code in congressional reports, considered that the proposed Act construed to grant immunity from state prosecutions, was an unwarranted intrusion by the Federal Government into state prosecutions which must therefore fail to lack of broadness, consonant with the Fifth Amendment.

This Immunity Act, as I have already stated, served as the model for the drafting of the present statute under discussion, which was enacted approximately two years later and approximately three months after the Immunity Act of 1954 was construed as constitutional.

In Ullmann against the United States, he was -- 350 -- 350 U.S. 422.

The Immunity Act of 1954, however, concerned investigations relating to the interference with or endangering of the national security or defense of the United States and its subject matter is readily -- readily distinguishable from the subject matter of this Act, which by its terms, involves investigations into violations of the narcotic laws of the United States.

In Ullmann against the United States, the constitutionality of the Immunity Act of 1954 was upheld and the phrase in any court contained in that Act and in the present -- contained in the Ullmann act, was construed as granting immunity from both federal and state prosecutions.

As I've stated before, the same language is used in the present Act.

The Ullmann case, however, turned upon a paramount power or authority of Congress to safeguard the national security.

This power is closely related to the war power, both of which powers under the Constitution, delegate the authority solely in Congress or the Federal Government, its own responsibility to preserve the continued existence of a free and independent United States and its constituent States without any bar, delay or hindrance on the part of the respective States.

While not mentioned in the Ullmann decision, this paramount power of the Federal Government and this field is, I believe, underscored by Article I, Section 10, Clause 3 of the Constitution, which is an interdiction on the States from engaging in war without the consent of Congress, unless actually invaded or in such eminent danger as will not admit of delay.

On this argument, for the first time, the Justice Department has taken the position that is in point 1 of their brief that Title 18 of the United States Code, Section 1406 grants immunity from both state as well as federal prosecutions.

All of the prior cases involving violations of this statute with the possible exception of the Tedesco case, which I've previously cited, studiously avoid discussion as to the scope or extent of the immunity granted referring to rely solely on the decision of this Court in Murdock against the United States.

And as I've stated, the Government likewise below in the lower courts in applying this statute, followed the same position as the courts did.

The position now being taken by the Justice Department on -- on this appeal that immunity is also granted from state prosecution is merely an attempt by the Justice Department to extend the doctrine of Ullmann.

The Government confers on page 20 of its brief that in every case where Congress is acting in the exercise of federal power which in the present case involves taxation and the control of the importation of narcotics, that in such cases, Congress has the power to impose restrictions but it bar the States from exercising the powers reserved to them under the Tenth Amendment of the Constitution by -- by means of statutory enactment such as the present Act now under discussion.

In support of this contention, the cases of Ullmann against the United States and Adams against Maryland are cited.

I believe I've distinguished the Ullmann case in this argument while Adams against Maryland simplified, I think, to its basic extreme, involved in my opinion the question of the admissibility of certain compelled evidence in the state courts, not the question -- not the substantive question of immunity from prosecution.

To follow the Government's position in support of an extension of the -- of the Ullmann doctrine to its logical conclusion would be, in my opinion, to sound the death knell to the -- to the rights and powers guaranteed to the States under the Tenth Amendment of the Constitution and would, in effect, be repealed of the said Tenth Amendment by judicial decision.

Could anyone seriously argue that the Federal Government, in the exercise of a conceded federal power, take, for example, the power to levy the federal income tax, could anyone seriously argue that in the exercise of that power, that Congress could enact an immunity statute similar to the one now under discussion, granting witness's immunity for such state crimes such as murder, extortion, robbery and the like?

As a matter of fact, that the Solicitor General reasonably argued that under the provisions of the particular statute now under discussion, that the Government could grant immunity for murder, extortion and robbery that might be disclosed in a narcotic investigation.

Considering the vast expansion in recent years of the regulatory functions of various Federal Government agencies, wherein the Government -- where the Federal Government now regulates such diverse fields as taking of migratory game birds under Title 16, United States Code, Section 703, the regulation such as the branding of foods under the Federal Foods and Drug Act, such a theory is urged by the Government for extending the scope of the Ullmann decision, would leave the States with no powers of their own, say, of those granted or delegated to them by the Federal Government.

It is respectfully submitted that the immunity provision of the Narcotic Control Act does not and cannot grant immunity from state prosecutions for violations of state narcotic laws.

Unknown Speaker: (Inaudible)

Mr. Allen S. Stim: Well, I have urged in my third point in this argument.

I believe that I have urged the point that assuming that this Court, in rendering a decision in this case, does not -- does not particularly go along with the points raised in my first point, but however, in the event that this Court clarifies or -- clarifies the law from what it was at the time that the hearing and judgment were rendered that in that case that this judgment still must prevail and the matter must go back to the District Court for proceedings and conformity with the decision of this Court.

Unknown Speaker: (Inaudible)

Mr. Allen S. Stim: Well, I've cited some cases.

I've cited New York cases and I believe that this Raleigh case, cited by the Solicitor General and its point is also -- is also in point there.

In other words, in the Brea case, I think that was a New York State case, the conviction in that case was also affirmed by the court.

The New York court, in rendering its decision, stated that it was improper conduct for -- that they prosecuted before the grand jury to -- and I think the statement in that case was improper conduct for the prosecutor to give a witness an incorrect idea of the -- of what the existence of the law was.

Unknown Speaker: (Inaudible)

Mr. Allen S. Stim: Well, the District Court -- the District Judge didn't -- did not do anything for the simple reason that the District Judge relied on what he considers controlling case law or the decision of this Court in the Murdock case.

Unknown Speaker: (Inaudible)

Mr. Allen S. Stim: Yes.

In other words, the District Court --

Unknown Speaker: (Inaudible)

Mr. Allen S. Stim: That -- that's correct.

The District Court didn't consider anything about state prosecution.

In other words, they had no way of understanding what the correct status of the law themselves.

As a matter of fact, my --

Justice Felix Frankfurter: So that -- so that -- this -- this direction to testify would sustain on a broader ground to (Inaudible) it -- it can't be sustained on a narrow ground, is that it?

Mr. Allen S. Stim: Well, no.

My position --

Justice Felix Frankfurter: Is that your argument?

Mr. Allen S. Stim: My position is that that this man should be given a chance, given full knowledge of his rights there not to go up a blind alley.

Justice Felix Frankfurter: Well, what is this 60-day provision?

Mr. Allen S. Stim: The 60-day provision --

Justice Felix Frankfurter: Is that going on?

Suppose this -- suppose this judgment is affirmed by this Court, what happens?

Will he go to jail or (Voice Overlap) --

Mr. Allen S. Stim: The 60-day provision, this man goes to jail, Your Honor.

I believe that the provision on that judgment is clear and unambiguous there.

I'm just checking on what page it appears.

Justice Felix Frankfurter: Let me check, 627.

I supposed it's in (Voice Overlap) --

Mr. Allen S. Stim: In other words --

Justice Felix Frankfurter: -- if there's a -- if there's a challenge to the validity of the duty to testify of the correct (Inaudible) that under the judgment of -- or testify, affirmed here would have been under what might be called legitimate challenge for the (Inaudible) law was concerned that the opportunity of purging remains when the case goes down below.

Mr. Allen S. Stim: Well, according to the expressed language in the judgment --

Justice Felix Frankfurter: Well, I'm not talking about -- yes, I understand that but I'm speaking of what attack -- what my understanding of the practice.

It is my judgment, it it's entered, requiring (Inaudible) and he raises not of privilege questions, in effect, in which this Court grants certiorari (Inaudible) that there is always, when it goes back, the judgment isn't automatically enforced but there's an opportunity for purging.

Mr. Allen S. Stim: Well, I've checked --

Justice Felix Frankfurter: I may be wrong about that but let's assume that that's so.

Mr. Allen S. Stim: Well, if I assume that, I'm not assuming that I have --

Justice Felix Frankfurter: Well, I'm assuming in my question, if you don't mind.

Assume that that's so.

Mr. Allen S. Stim: Well --

Justice Felix Frankfurter: It goes in back and has this opportunity in saying, "Oh, I didn't understand that I would have immunity."

This protest -- your protest wasn't that we didn't have immunity in the statement, we'll now argue against it to this moment.

Do you still say there's no power?

Mr. Allen S. Stim: Well, I may not protest down below, was that there was no immunity in this State that the statute --

Justice Felix Frankfurter: Yes, but your protest goes beyond that, doesn't it?

Mr. Allen S. Stim: Yes.

Justice Felix Frankfurter: Alright.

Mr. Allen S. Stim: Yes, Your Honor.

Justice Felix Frankfurter: So that you didn't do something in reliance on a misruling by a court below.

Mr. Allen S. Stim: Well, apparently, Judge Dawson in -- in his opinion as cited in his opinion and in his judgment, puts us -- puts us in the predicament of relying on the language of the judgment and opinion.

And according to the terms of both, Judge Dawson recognized that maybe Reina raised this procedural device down below where the hearing came up and all that in reliance or seeking to -- to obtain a judicial determination.

But it -- it's quite obvious that Judge Dawson's opinion is that once he ruled in the matter, the judgment and the terms became final.

Justice Felix Frankfurter: I understand that and for him, it is final but we got a system of appellate procedure by which the finality of a district judge is subject to challenge in the Court of Appeals and then subject to challenge here as you're now challenging.

Mr. Allen S. Stim: Well, the only --

Justice Felix Frankfurter: My suggestion is that you didn't uphold -- you're not saying now, "Oh, well, if my client has known that he is protected against the use of materials in the state courts.

Of course, he would've --

Mr. Allen S. Stim: Well --

Justice Felix Frankfurter: -- he would've -- he would've answered the questions.

Your position now is that he was entitled not to answer even if that's so, isn't it?

Mr. Allen S. Stim: Well, according to the rationale of this Court and I think Your Honors' decision in Knapp against Schweitzer, if my man would've done anything in the court below, it would've been just too bad for him.

The only -- the only alternative that my man has of protecting his right is to refuse to testify and present the matter to the courts.

Justice Felix Frankfurter: But the -- but you're entitled to in which (Inaudible) no implication in my questions -- questions there.

Mr. Allen S. Stim: Well, yes, you're not --

Justice Felix Frankfurter: The question that is now raised is whether if the immunity statute is construed so as to protect you from use in relation to what was said in the state court, whether then, you are under -- you need to respond and you're challenging that on various grounds if you have the right.

Mr. Allen S. Stim: Yes, Your Honor.

Justice Felix Frankfurter: So I'm suggesting that you're not here saying that you were mislead by the ground on which Judge Dawson went.

Mr. Allen S. Stim: Well, we were mislead to this effect that we were -- my petitioner was a layman and who was represented at the hearing.

Had an order -- they have an -- there -- there is an order in this case, I think it appears, the order of Judge Weinfeld, where this man, a layman, is ordered subject to the provisions of Title 18, United States Code, Section 1406 as amended that Giacomo Reina -- and hereby is instructed to answer the questions propounded in before the grand jury and to testify and produce evidence with respect to such matters under inquiry before the grand jury.

Now, I'd like to ask Your Honor to a mere layman, what would that mean?

And then again, if -- as -- realizing that he is represented by an attorney at the hearing, how could the attorney give this layman any intelligent advice when the matter -- apparently, the matter is so confused or up in the air that it requires a final determination of this Court to settle the question?

Justice Felix Frankfurter: Which is a good reason why he shouldn't go to jail without law.

It is not a good reason for him now that he's shown no danger of going to jail, assuming all these will be cleared up in that opinion from still refusing to answer.

Mr. Allen S. Stim: Well, he was certainly -- the only thing that protected my man from going to jail was the fact that one of the Justices of this Court granted him bail.

Justice Felix Frankfurter: Well, but that's --

Mr. Allen S. Stim: It is --

Justice Felix Frankfurter: -- enough, isn't it?

Mr. Allen S. Stim: What?

Justice Felix Frankfurter: That's enough.

Mr. Allen S. Stim: Well, it was so real and appreciable, the danger of his going to prison that the -- the Court of Appeals for the Second Circuit refused to continue him on bail, pending application for certiorari.

Justice Felix Frankfurter: That's why you have opportunity to come to an ultimate court.

Justice Hugo L. Black: (Inaudible)

Mr. Allen S. Stim: Yes, Your Honor.

Justice Hugo L. Black: (Inaudible)

Mr. Allen S. Stim: Well, that would call on a rely -- on a ruling by this Court, not a statement by the Solicitor General that the immunity granted --

Justice Hugo L. Black: (Inaudible)

Mr. Allen S. Stim: Well, in case you disagree on this, I'm urging my other points, my -- my second point, Your Honor.

Justice John M. Harlan: I understood the Government to say that they read the order as the meaning and the purge period will be -- begin to run in the times of judgment of this Court.

Mr. Allen S. Stim: Yes.

Well, that's how they read the order, Your Honor.

That's a little different from what the records shows though.

Justice John M. Harlan: Well, it --

Justice Felix Frankfurter: Why do you resist something in your favor?

Justice John M. Harlan: (Voice Overlap)

Mr. Allen S. Stim: Well --

Justice Hugo L. Black: (Inaudible)

Mr. Allen S. Stim: -- then I don't --

Justice Hugo L. Black: I believe that you have the power (Inaudible)

Mr. Allen S. Stim: Yes, Your Honor.

That's my point.

Justice Felix Frankfurter: The Justice, in your opinion, requires that he'd be not required to answer.

That's your position at the bar of this Court.

Mr. Allen S. Stim: That is my position at the present time, Your Honor.

Justice Felix Frankfurter: Alright.

Mr. Allen S. Stim: My -- as I stated, the second part of that -- my -- my first point is that the immunity provision of the narcotic -- if this Court holds that the immunity provision of the Narcotic Control Act grants immunity from federal prosecution only and does not grant immunity from prosecution by the States for violations of state laws, and I believe that this is the only logical construction consistent with the Constitution, that in this event, that this Court should overrule its earlier decision in United States against Murdock.

The case relied on by the courts below and adjudging this petitioner to be in contempt of court for refusal to testify pursuant to Title 18 of the United States Code, Section 1406.

The Murdock case decided by this Court in 1931 did not involve an immunity statute but involved a prosecution of the taxpayer, Murdock, for his refusal to testimony -- to give testimony and to supply information for the Bureau of Internal Revenue for deductions claimed in his 1927 or 1928 federal income tax returns, for moneys allegedly paid to other persons.

This was an indictable misdemeanor under the then Title 26 of the United States Code, Section 1265 and 1114.

Murdock interposed a special plea to this indictment that if the questions he answered -- that -- that he answered the various questions propounded to him before the Bureau of Internal Revenue that he would've been compelled to become a witness against himself and caused to be subject to prosecution for violations of various laws of the United States.

The fact was that at the time Murdock invoked his privilege against self-incrimination before the Bureau of Internal Revenue, his counsel stated that Murdock had in mind violations of the state law, not of the federal laws.

This Court, in 284 U.S. 141, set aside the special plea holding that investigations for federal purposes may not be prevented by matters dependent on state laws.

This holding was construed by this Court the second time Murdock came before it, 290 U.S. 389, as definitely settling for the first time the proposition of law that one under examination in a federal tribunal may not refuse to answer on account of probable incrimination under the state law.

The Murdock case, as Your Honors are well aware, has been severely criticized as being an erroneous interpretation of the English common law as being inconsistent with prior decisions of this Court and as being destructive of the privilege against self-incrimination guaranteed under the Fifth Amendment of the Constitution of the United States.

I agree with these criticisms and in my opinion, the Murdock case was an unfortunate decision in the field of constitutional law.

In the Murdock case, this Court adopted what it called the English rule that the common law of privilege exempting witnesses from answering questions that would tend to incriminate them does not protect them against disclosing offenses and violation of the laws of the foreign country.

As I have set forth in point 1 (b) of my brief, first, there is no such English rule as was enunciated by this Court in Murdock.

And secondly, in this country, the respective States which had domestic jurisdictions within the -- within the territorial limits of the jurisdiction of the United States, do not quite fit the term in other country as was used in the English cases.

Two English cases that were cited in Murdock are Two Sicilies against Willcox and Regina against Boyes.

These cases are cited and discussed on pages 21 and 22 of my brief.

And to take some mere reading of them to show that they do not stand for any such rule of law set forth in Murdock, Two Sicilies, which was decided in the year 1850, involved -- involved the claim of privilege in both by a witness at a trial and a discovery proceeding in an English court where the witnesses, who were agents of a revolutionary government in Sicily, claimed before the English court that if they were required to testify that their answers might subject them to the penal laws of Sicily.

The English court rejected this claim of privilege and after first stating its ignorance of Sicilian law and the fact that the English court had enough of a problem understanding the law of its own jurisdiction without being expected to understand the lower foreign jurisdictions, the court went on to state in that case, in its decision, "It is to be observed that in such a case, in order to make the disclosures dangerous to the party who objects, it is essential that he should first quit the protection of our laws and willfully go within the jurisdiction of the laws he has violated."

I don't think it takes any extended discussion to differentiate the Two Sicilies case from the problem that this petitioner faces.

The other English case cited, Regina against Boyes states what I consider as the correct rule as to the extent of the privilege against self-incrimination.

Regina against Boyes, decided in 1861, involved a claim of privilege invoked by a witness at a trial and at a -- an election bribery case.

Despite the fact that at the trial, the witness was offered and he accepted a pardon, a royal pardon under the great seal.

Despite the offer and acceptance of the pardon, this witness persisted in his claim of privilege stating that despite the pardon, he was still subject to possible impeachment by commons which was not covered by the pardon and that therefore, he should be entitled to invoke his privilege.

King's Bench, in ruling against the claim of privilege stated, and I quote, "Further than this, we are of the opinion that the danger to be apprehended must be real and appreciable with reference to the ordinary operation of law in the ordinary course of things, not a danger of an imaginary and unsubstantial character having reference to some extraordinary and fairly possible contingency so improbable that no reasonable man would separate to influence his conduct."

The court further stated, "But it would be to convert to a salutary protection into a means of abuse if it would be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to ends of justice."

In Regina against Boyes, the Court ruled against the privilege -- claim of privilege stating that the witness's fear of impeachment despite the pardon was in its words, ridiculous and unreasonable as any impeachment of the witness would be contrary to custom and to law.

Both of the aforementioned cases and subsequent English cases turn on the question of the danger of the witness, was it real and appreciable?

If the fear was unrealistic or imaginary, the claim of privilege was denied.

If it was recognized by the Court as reasonable or realistic, it was recognized.

That -- such is the rule of the English cases and has been in the past and still is as amply demonstrated by the cases of East India Company against Campbell, 1 Ves. sen. 267, 27 Eng. Rep. 1010, United States of America against McRae, L.R. 4 Eq. 327, decided in 1867 and affirmed by the Court of Appeals, L. R. Ch. 79 in the year 1867.

The United States of America against McRae, which was an English case, decided subsequent to the decisions in Two Sicilies against Willcox and Regina against Boyes, the claim of privilege or the privilege against self-incrimination was recognized by the English court despite the fact that the fines, forfeitures and penalties were under the laws of the United States, a jurisdiction far into that of the English court.

This law -- that this rule is still the law of England and the test being that whether the danger was real and appreciable, I referred the Court to Ex parte Reynolds, 20 Ch. D. 294, where the rule was reaffirmed and restated.

The Murdock case cited as further authority for its holding, prior decisions of this Court.

These prior decisions are cited in Murdock, has authority to sustain the proposition set forth in that case.

The case of Counselman against Hitchcock, 142 U.S. 4 -- 547, which is an old standby and is now one book law and decided both pro and con in all -- in all litigation involving the construction of immunity legislation, does not stand for any such proposition as enunciated in Murdock.

In that case which involved the constitutionality of the old Interstate Commerce Act with regard to its provision for the compulsion of testimony, no question was raised as the applicability of the Act to state jurisdictions.

The Court, in that landmark decision, only stated what has now become the established rule that a statue which leaves a party or witness subject to prosecution after he answers the criminating questions put to him and that's the plan, the privilege conferred by the Constitution of the United States.

The other cases cited in United States against Murdock, which touched on the issue involved, likewise apply the test of whether or not the danger to the witness was real and -- and appreciable.

Brown against Walker, 161 U.S. 591, the case cited in United States against Murdock and it successors, had the original authority for the Murdock rule, dealt with the amended Interstate Commerce Act toward the Act of February 11th, 1893 which was the successor to the Act struck down by this Court in Counselman against Hitchcock.

The Act of February 11th, 1893 substantially provided as follows."

That no person shall be subject to penalty or forfeiture for or on account of any transaction matter or thing concerning which he might testify in obedience to a subpoena or order."

This provision was held by the majority opinion of the Court in Brown against Walker, which was a 5-to-4 decision, as being that the criminality was removed by statute that the immunity granted was coextensive with the privilege that it sought to replace.

Well, this majority opinion inferred that the immunity granted in the federal act was operative also in the state jurisdictions for crimes committed in those jurisdictions under the supreme law of the land clause.

A careful reading of this majority opinion, discloses that the majority of the justices deciding that case went on the test set forth by the old English cases.

The test of the reality or the danger of be -- of the -- to the witness being real and appreciable.

The minority opinion in that case by Mr. Justice Shiras did not consider the possibility of state prosecution as being a fear unsubstantial and remote and held that the statute was thus in conflict with the Fifth Amendment of the Constitution of the United States.

This minority opinion also asserted that as Congress cannot create state courts nor denounce penalties for crimes or offenses against the States, so it cannot proscribe rules for proceedings in state courts and that therefore, the Act in question could not apply to the States.

In Hale against Henkel, 201 U.S. 43, which involved the proceeding under the Sherman Antitrust Act and likewise involved an immunity statute, this Court disposed of the witness' claim in that case of probable incrimination under state law as being -- following the language of the English cases as being to one substantial and remote to impair legal immunity, citing Brown against Walker and Jack against Kansas.

Jack against Kansas, which involved the converse of the present case, a refusal of the witness to testify pursuant to a state immunity statute on the claim that the statute which involved the fixing of coal prices might -- did not confer immunity from state -- from federal prosecution and therefore, violated his rights under the Fifth and Fourteenth Amendments of the Constitution.

In that case, this Court while stating that it thought that legal immunity is in regard to prosecutions in the same jurisdiction where the immunity is granted suffices, the Court based its decision on -- in that case on the fact that it considered the alleged fear of the witness of federal prosecution under the federal antitrust act as being too unsubstantial and remote to seriously consider.

As proof -- as proof that this Court used the test of reasonableness or reality of the witness's apprehension of prosecution in the aforementioned case -- cases, I cite Bollman against Fagan, which was decided by this Court and by the same bench that decided the previous cases of Jack against Kansas and Hale against Henkel.

In Bollman against Fagan, which did not involve an immunity statute, the witness on being summoned before a federal grand jury, pursuant to an investigation I understand as the criminal liability of an employee in a national bank where certain funds were missing, the witness on being summoned to appear before the grand jury pursuant to subpoena to produce certain records, invoked the Fifth Amendment before said grand jury using the following language."

I decline to answer the questions contained in the said order of April 8th, 1905 on the ground that it might tend to criminate me and in this connection, I produced a copy of a petition filed against me and others by a manual up in (Inaudible) in the Court of Common Pleas of Hamilton County.

And I state that there are many other actions of the same kind pending against me.

This petition referred to by the witness Bollman charged him and others with a scheme of gambling known as bucket shop in Ohio, which was criminal conduct in Ohio.

In Bollman against Fagan, this Court, in citing the earlier opinion of Mr. Chief Justice Marshall in 1820, in United States versus Saline Bank wherein the -- this Court at that time, held that the privilege against self-incrimination exonerated from disclosing offenses in violation of the law -- state law of this -- law of the State of Virginia.

This Court in Bollman against Fagan followed the rationale of Judge Marshall's decision and held that Bollman was exonerated under his claim of privilege from disclosures that would've exposed him to penalties under the state laws and is respectfully submitted that all of the aforementioned decisions of this Court up until Murdock against the United States are consistent and that they apply the rules set forth in the English cases, which apply the test of the danger to the witness being real and appreciable.

It was only commencing with Murdock against the United States and it successors, Feldman against the United States and Knapp against Schweitzer, that this Court, in deciding the applicability of the constitutional privilege against self-incrimination has abandoned what I considered the tried and true rule of the English cases.

That this petitioner would face the threat of a probable state prosecution for violations of state narcotic laws for facts adduced before a federal grand jury or to the federal authorities as a fact that this Court can take judicial notice of.

Title 21 of the United States Code, Section 198 which is not cited in my brief, but is cited by the Solicitor General on page 26 of his brief, provides that federal authority shall cooperate with the States in the suppression of the abuse of use of narcotics to the extent that the Federal Government shall, and I quote, "Substantially arranged for the exchange of narcotic information for the use of said information in prosecutions in federal and state courts."

I should -- as a further example of the firm basis of this petitioner's fear that if he's compelled to give testimony in this proceeding that the testimony will be used against him in a -- by the State, I cite the registration of the Mann Act, Title 18, United States Code, Section 2424 (b), which provision is also set forth in my opponent's brief.

I cited the Mann Act that the registration provision as being a fact that Congress recognized its limited authority in fields which are strictly as violations of the law under the State.

My opponent, the Solicitor General, on page 27 of his brief, Footnote 10, cites this Act as showing a congressional intent to make such harboring as mentioned in the Act, practically impossible by making the federal registrations available to state authorities, the use in state prosecutions.

It is only reasonable to believe that the -- that a similar intent is behind the enactment and application of the statute now under discussion.

I have also cited that conflict between the States that follow the Michigan rule and -- and this Court in the Murdock decision.

I likewise cited various decisions of the lower court such as Marcello against the United States, United States against DeCarlo and the like, which decisions, although came lip service to Murdock, ignore it in practice.

I respectfully submit that the judgments -- that the judgment of conviction should be reversed with directions to the lower court that the Government's motion to punish for contempt should be denied.

Chief Justice Earl Warren: Mr. Davis.

Argument of Oscar H. Davis

Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.

Turning first to the question of the 60-day purge period, I would like to say first that we do construe that provision of the judgment as running not only from the day of the District Court's judgment but from the day of an affirmance by this Court, if this Court should affirm and the return of the mandate.

And the reason why we construe the purge period that way, is the District Court explicitly said, it's on page 34 of the record, that the reason he put in a purge period was that he thought that the petitioner might be raising this issue of law and order to get a decision and he thought it was fair for the petitioner to do that.

And we think it's consonant with that understanding that the petitioner should have the right to exhaust his appellate remedies through the Court of Appeals and this Court.

Also, we think that the same purge appear -- period provision should be construed in the light of Rule 35 of the Federal Rules of Criminal Procedure which say that when a case comes back from this Court, after the affirmance of a -- of a conviction within 60 days, that's the period, the petitioner, the -- the defendant can go before the District Judge and ask for a reduction or change in the sentence.

And so that is why, Mr. Justice Black, we ask for the affirmance of the conviction because we construe the purge period as not having elapsed, this counsel said, but is going in the future.

But I would also like to bring this to the attention of the Court.

If there should be any doubt or if the Court should not feel that its construction adoption of our construction in the opinion should be sufficient and that you want to go further, this is a contempt case.

And in contempt cases, the Court has exerted a power over sentences that it does not have in the ordinary criminal case.

So there would be nothing improper, it would be in accordance with the Court's decisions.

If it should feel it appropriate, we do not feel it would be necessary but it's open to the Court if it should feel it appropriate to change the purge period of the sentence by providing that the 60-day shall run explicitly from the return of the mandate to the District Court.

So there would be no question then that in -- in that -- on that -- when the case goes back to the District Court that the -- that the petitioner will be advised if, as we submit, the Court should hold that the provision -- the immunity provision of the 1956 statute covers both state and federal prosecution.

At that time, the petitioner will be fully advised and he will have the opportunity to answer the questions under the advice given, most authoritatively, by this Court.

I think, I should also take the opportunity to point out explicitly because there were some intimations to the contrary that we do not read the record as in any way indicating that this petitioner was misled either by the Government or by the trial court.

He never asked the trial court to -- to told whether or not this provision covered state prosecution.

As counsel very, I think, very deliberately withheld questions of the trial court.

The trial court never took the position.

He didn't explicitly say, "No, it doesn't cover state prosecutions."

What he said was, "It is necessary that it covers state prosecutions," because under the Murdock decision, this -- the -- the statute would be perfectly valid even if it covered only federal prosecutions.

And of course, this -- this petitioner had counsel with him, who could advice him just as -- as well as any other lawyer.

Now, also on appeal, the statement has been made that the Government argued that this did not cover state prosecutions.

I would like to be a little more explicit and perhaps a little more precise as to what the Government's position has been generally under this statute in the lower courts.

We -- I don't believe that it ever taken the position that it does not cover state prosecutions.

We have generally said that we think it does.

But in the lower courts, we have said that it doesn't have to cover state prosecutions because under the Murdock rule, it wasn't necessary.

The -- the federal courts, on the whole, have adopted that position that is most of them have said even the Sixth Circuit in the Tedesco case which thought that there was doubt as to the power of Congress to extend immunity of the state prosecutions, said it had no doubt that the statute purported or Congress intended to cover state prosecution.

And that was also true by -- of an opinion of Judge Bryan, Judge Frederick van Pelt Bryan in the Pagano case and some other cases.

And in this case, though the Government's brief on appeal which I have here in the Court of Appeals did argue quite strenuously that under Murdock, the -- it was unnecessary to cover state prosecutions.

It did contain this paragraph which I should like to read to the Court.

“If Congress has the power, immunity from both federal and state prosecution should be granted under the Narcotic Control Act, if it does not," that is if Congress does not have the power, "then the statute should be held constitutional by a construction limiting it to federal prosecution."

So I think accurately that position of the Government has never been that it does not cover state prosecutions but merely that it was unnecessary to go into that problem.

Now --

Justice William J. Brennan: Well, are you going to argue, Mr. Davis, that the Federal Government does have the power --

Mr. Oscar H. Davis: Oh, yes.

Justice William J. Brennan: -- to grant immunity --

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Oscar H. Davis: Oh, yes.

Our position is that the -- that the statute does grant the immunity and that that Congress does have the power.

And I will only argue, if some members of the Court would like me to, that if it -- that on the assumption that the statute does not grant immunity over state prosecution or cannot, that the rule of the Murdock case should be contended.

Unknown Speaker: (Inaudible)

Mr. Oscar H. Davis: No, Mr. Justice.

He was asked -- the questions -- all the questions appear on pages 2 to 7 of this record.

And they were not questions of the type, are you guilty or not guilty or did you commit the offense?

I will concede that the general transactions on which he was asked about, were, in part at least, related to the offense which -- for which he was convicted.

That is their -- he was convicted along with several others of a --

Justice Tom C. Clark: (Inaudible)

Mr. Oscar H. Davis: That's -- that's right.

Justice Tom C. Clark: (Inaudible)

Mr. Oscar H. Davis: Without -- without --

Justice Tom C. Clark: (Inaudible)

Mr. Oscar H. Davis: That's right.

He -- he did not take the stand of trials, I understand that the conspiracy draw.

It was a conspiracy to violate the provisions of the narcotics law including the provisions which prohibit the unlawful importation of narcotics into this country.

And as appears from the opinion of Judge Learned Hand in the Second Circuit in 242 F.2d, there was apparently a large scale conspiracy to import into this country, unlawfully large amounts of narcotics.

And there was a continuous going back and forth to Europe in order to bring narcotics into this country to France and Italy and other places.

And this defendant was -- was charged with conspiracy to commit that offense and he was convicted.

And he appealed to the Second Circuit.

That conviction was affirmed.

Another defendant sought certiorari here but this defendant did not.

Now --

Justice Hugo L. Black: (Inaudible)

Mr. Oscar H. Davis: Well, he's already served.He's already served that sentence.

Justice Hugo L. Black: He served it all?

Mr. Oscar H. Davis: He served it all and he's -- he's come out.

Justice Hugo L. Black: He's out.

Mr. Oscar H. Davis: He's out.

And this is a wholly separate question as to whether --

Justice Hugo L. Black: This would be (Inaudible)

Mr. Oscar H. Davis: He has served that sentence and he is now out on that.

Justice Felix Frankfurter: (Inaudible)

Mr. Oscar H. Davis: The reason that Government, Mr. Justice Black, is interested in going ahead is I think, quite obvious on this record.

This was a large scale conspiracy in which there are a lot of people involved.

The Government had gotten knowledge of only a few of those.

It was very anxious to -- to stop it, to prevent the importation of this enormous amount of -- of narcotics into the country.

The one way it felt that it could -- it could discover the sources of this ring in this conspiracy was to ask somebody who knew something about it which petitioner was thought to be.

Justice Hugo L. Black: That was served all to (Inaudible)

Mr. Oscar H. Davis: Yes, yes, sir.

Justice Hugo L. Black: (Inaudible)

Mr. Oscar H. Davis: Oh, well, I think, he did have time of the behavior as all -- as all --

Justice Hugo L. Black: (Inaudible)

Mr. Oscar H. Davis: I -- I don't -- I think now Mr. Stim will be able to tell you.

I think that his time has fully elapsed by now.

I don't know -- I don't think -- he -- when he was called before the District Judge on this proceeding, present proceeding, he, of course, was still in prison at that time.

He --

Chief Justice Earl Warren: (Inaudible)

Rebuttal of Allen S. Stim

Mr. Allen S. Stim: Well, from the facts, Your Honor, I understand my belief, I think it was about November 29th of last year, the -- the petitioner completed the conspiracy sentence that he was then serving.

At the time though that this proceeding took place and at the time of entry of judgment, I believe that he had -- it was February 2nd, 1959 until -- until November 28th, 1960.

He would remain in prison serving the earlier sentence.

Chief Justice Earl Warren: (Inaudible)

Mr. Allen S. Stim: He has been unable to pay the fine (Inaudible)

Chief Justice Earl Warren: (Inaudible)

Mr. Allen S. Stim: I mean he -- I understand, he had to (Inaudible) some oath, to serve 30 additional days in prison regarding the (Inaudible)

Chief Justice Earl Warren: You may --

Rebuttal of Oscar H. Davis

Mr. Oscar H. Davis: As this case stands here now, I don't think it -- it's legally significant as this case stands here now.

He has completed the service of his conspiracy sentence and the only question is, whether he can be compelled under the grant of immunity which Congress has given him to answer these questions which the Government feels are necessary in order to discover the sources of this -- or to help discover the sources of a -- of a large illicit narcotics ring importing illegal contraband into the country.

Chief Justice Earl Warren: Well, Mr. Davis, these plaintiffs knew (Inaudible)

Mr. Oscar H. Davis: Oh, yes.

I --

Chief Justice Earl Warren: (Inaudible)

Mr. Oscar H. Davis: I -- I wouldn't -- I --

Chief Justice Earl Warren: It's not the whole thing but the (Inaudible)

Mr. Oscar H. Davis: Yes.

I would -- I would say that, the only thing I would say is that I think, I can't tell of course, but I think it goes beyond that.

It isn't only just the -- the crime that he committed but it's even aspects of -- of what is believed to be the -- the ring which were not parts or charged in the -- in the original indictment of conspiracy.

Chief Justice Earl Warren: May I ask you a question, Mr. Davis, do you make any (Inaudible) between the question is about the narcotics (Inaudible) which are in no sense involved (Inaudible) for which he is convicted on the one hand and on the other, is making him testify concerning (Inaudible)

Mr. Oscar H. Davis: No, Mr. Chief Justice.

Chief Justice Earl Warren: (Inaudible)

Mr. Oscar H. Davis: No, no distinction.

We think the purpose of Congress was to be -- was to get information to enable the Government to enforce the narcotics legislation, federal narcotics legislation more effectively.

And one of the -- the people from whom this information can be obtained are, of course, people who are conspirators who were parts of a -- of a ring or a conspiracy.

And so long as this -- as the defendant cannot be prosecuted again either by the Federal Government or the State Government on basis of -- of what he testifies to under the immunity, that is he cannot be prosecuted --

Justice Felix Frankfurter: In relation to the matter it's about (Voice Overlap) --

Mr. Oscar H. Davis: In a relation to the matters, yes, Mr. Justice, you're right.

Chief Justice Earl Warren: In other words, the man has been convicted for the first term of the year, (Inaudible) he can then be compelled due to his testimony which (Inaudible) or which perhaps might cause him death because of the -- of what he said about the people of the narcotics (Inaudible) or go back to prison to serve another sentence (Inaudible).

Mr. Oscar H. Davis: Well, in this case, Mr. Chief Justice, there is no excuse.

He did not give the excuse that he would be subject to -- to attack or so or death.

He gave no excuse.

He --

Chief Justice Earl Warren: (Inaudible)

Mr. Oscar H. Davis: Well --

Chief Justice Earl Warren: (Inaudible)

Mr. Oscar H. Davis: Other defendants have that's why I said --

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: -- but this defendant did not --

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: -- and so --

Chief Justice Earl Warren: Well, I -- I wonder if that -- that (Inaudible)

Mr. Oscar H. Davis: Well --

Chief Justice Earl Warren: (Inaudible)

Mr. Oscar H. Davis: Mr. Chief Justice, he may have served his given -- paid his debt to society insofar as a violation of the criminal law was concerned.

But he has not paid the obligation he owes to the society in which all citizens owe of giving information to the public officials if they, themselves, if the person who gives the information is not going to be subject to incrimination for at least two centuries since Lord Hartwood's Day (ph) it has been said that every citizen owes to the public the giving of information with respect to possible criminality.

This privilege against self -- self-incrimination stands against that obligation where the man himself will be incriminated.

But where that is removed and he will not be incriminated, the obligation to give evidence remains and this man, though has fulfilled the obligation with so far -- insofar as having committed a crime is concerned, has not fulfilled the obligation insofar as giving information is concerned.

Now, --

Chief Justice Earl Warren: Were there any -- are there any (Inaudible)

Mr. Oscar H. Davis: You mean where -- where man has been called up after he's been convicted of --

Chief Justice Earl Warren: (Inaudible)

Mr. Oscar H. Davis: Frankly --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Oscar H. Davis: -- frankly, I -- I don't know, Mr. Chief Justice, because this -- this is a problem that has not been adverted to by the courts that is -- as far as I -- I've seen in my reading, no court has made any distinction between whether the man has already served his sentence, already -- already been convicted or whether he's called up before he's been prosecuted.

There had been many discussions about this matter but this particular distinction, I have not seen in any of the -- in any of the opinions that is as between a man who has served his sentence and a man who -- who was not (Inaudible).

Print this transcript Transcript: 

Argument of Oscar H. Davis

Chief Justice Earl Warren: Giacomo Reina, versus United States.

Mr. Davis, you may continue your argument.

Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.

This morning I should like to discuss, if I may first and briefly, the statutory question of whether the immunity provision of the Narcotic Control Act of 1956 does cover state prosecutions and secondly the constitutional question of whether Congress may so provide.

And third, I would like to touch also briefly on the propriety of the two-year sentence which was given by the District Court.

And then I shall return to the problem posed by the Chief Justice at the end of the argument yesterday as to whether there is a different rule with respect to such immunity provision as this for a man who has been convicted of a -- of a crime and is then sought to be questioned about transactions involved in that crime.

Unless some justice should -- should desire me to, I do not propose to argue the alternative position of the Government which is, of course, that if either the immunity provision does not cover state prosecutions because Congress did not intended to do so or it does not cover it because Congress could not do so, then under the rule, the Murdock case in 284 United States, the immunity is sufficient though it covers only federal prosecution.

We of course do not waive or abandon that argument.

We think it is unnecessary to the Court to reach it and therefore, I -- I shall not seek to discuss it unless some Justice should wish me to do so.

Going very briefly to the question, the statutory question of whether this provision does cover state prosecutions.

The first thing to know is that the substantive provisions of the statute are the provisions which grant the immunity are in the same words as the compulsory testimony Act of 1893 which the Court held in Brown against Walker in 1896 did cover state prosecutions.

And that those substantive provisions were carried forward into the 1954 statute relating to so-called subversive activities and into the 1956 statute relating to narcotic legislation as in this case.

But perhaps more significant and we think absolutely conclusive is the fact that this narcotics provi -- this immunity provision of the Narcotic Control Act of 1956 was formulated and enacted after this Court had decided the Ullmann case.

The Court decided the Ullmann case in March, 1956.

In May, 1956, the narcotic subcommittee of the Ways and Means Committee of the House of Representative issued its voluminous report suggesting various provisions for the legislation which was to become the Narcotic Control Act of 1956.

And it included in that proposal an immunity provision and a bill was thereupon drafted and presented to Congress which concluded the same immunity provision in the terms with the necessary changes to cover narcotic legislation, in the terms of the 1954 provision which the Court had already held in the Ullmann case some month before did cover state prosecution.

Justice Felix Frankfurter: Mr. Davis, am I right in my recollection that certainly affecting that no Attorney General has ever recommended and all embracing immunity statute, that is an immunity statute available for every kind of prosecution as in the jurisdiction.

Mr. Oscar H. Davis: I think you are right, Mr. Justice -- Justice --

Justice Felix Frankfurter: And it is always been ad hoc with reference to --

Mr. Oscar H. Davis: -- to particular statute.

Justice Felix Frankfurter: -- specific areas --

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: -- of penal -- penal liability.

Mr. Oscar H. Davis: Yes and I'll take this opportunity to stress a particular point about this statute which unlike the statute in Brown against Walker and in many of the other cases as in the (Inaudible) case and others gave immunity with respect to a concerning transactions matters and events which were testified to in any grand jury proceeding whether the Government intended or personally intended to grant immunity or not, this is a new kind of statute which came into the books with the 1954 statute which is that the immunity is only granted by the statute if the United States Attorney with the concurrence of the Attorney General acting in the -- in the public interest should state that immunity was necessary.

Now this statute has been on the books now a little over for four years.

It was passed in July, 1956.

In that four-year time, immunity has been accorded under the statute to only 13 persons, including this petitioner.

The Attorney General did authorize that immunity be accorded to five other persons but it was not necessary for one reason or another to seek an order from the Court.

So that actually only 13 persons have been accorded immunity under the statute in the four-and-a-half year period which has elapsed since its enactment.

I think that is all that I need to say on the statutory question of whether this immunity provision does cover state prosecutions.

Its history, its wording, its background going back to Brown and Walker I think make it clear that it does.

Then the second question is whether Congress may validly so provide.

Some doubt was cast upon this by the opinion of the Sixth Circuit in the Tedesco case.

It is a doubt which I think need not have arisen and which I would like, if I may, to can -- to try to lay completely to rest.

The short answer, the short answer for us is that in Brown against Walker, in 1896, repeated by this Court in the Ullmann case in 1956 and again in Emanuel Brown against the United States, a contempt case arising under the Motor Carrier Act in 1959, the Court we think indicated very clearly that when Congress is acting under the commerce power, there is no doubt of its -- of its authority to grant immunity which covers state prosecution as well as federal prosecution.

The Court so said in Brown against Walker and this was repeated in the Ullmann case.

Now what we have here in large part -- of what we have here instead of narcotic legislation, which rests on two bases; one, the power of a foreign interstate commerce and foreign affairs on the one hand, and the power over the taxing power on the other.

And what I would like to stress for the Court, if I may, is the importance of the foreign and -- and interstate commerce aspect of -- of the narcotics legislation, particularly as applied to this case.

The original -- this we think is the core and the basis of federal narcotics legislation and particularly appropriate here, Congress had it in mind as I shall point out when it pass -- when it enacted the immunity provision of this 1956 Act.

Let me take you back into history.

The first federal statute was the Opium Exclusion Act of 1909 which was -- which was so clearly valid under the Commerce Clause that is it prevented the unlawful importation of opium and thereafter prohibited the use of opium which had been unlawfully imported.

It was so clearly valid that in -- in the Brolan case, when someone sought to take the constitutional issue to this Court, the Court dismissed the writ of error as frivolous.

It said that the -- that the power of Congress to preclude the importation of -- of opium and similar bad products was so clear that it would not either consider the question substantially.

Then there came the Harrison Narcotics Act which was based largely, though not completely upon the taxing power.

But then in 1921, Congress did pass the Narcotics Drugs Import and Export Act which was wholly based upon the foreign and interstate commerce powers and related to the importation to this country of -- of narcotics, drugs and the exportation from the country of narcotics drugs.

And in 1941, Congress enacted another statute, having to do with the carriage of narcotic drugs on American vessels in foreign commerce, which was also clearly based on -- on the interstate commerce power.

And more than that, the central -- perhaps the most central bid in this -- in the complex of federal legislation is the presumption which Congress put it into the federal narcotics legislation that when a man is found in possession of narcotics on stand and without an order on stand that there shall be -- it shall be presume to have been illegally imported unless the defendant chose to the contrary.

Now that presumption was upheld in the EEM case many years ago and has been consistently upheld and applied by this Court.

I mentioned it to show that the -- that though it is sometimes said that the narcotics legislation rests on the taxing power and I hasten to say that a little later in my argument, I will support preemption if you can call it that even on the taxing power, but at this point in my argument, I want to lay bare for the Court the important role of the federal commerce power, the interstate and foreign commerce power in -- in the -- underpinning of federal narcotics legislation.

Justice Hugo L. Black: May I ask you Mr. Davis, if you make that the Government will have less power in one field and another and it has power to legislate in that field and create a crime?

Mr. Oscar H. Davis: No sir.

No sir.

I -- I'm making this argument solely cause I think I can bring myself squarely within the decisions of this Court under Brown, Walker and Ullmann where they talked about the commerce power.

And that's why I -- I do not and I will go on to say that where -- I will say that wherever the Congress has constitutional power to legislate, I think that it will have constitutional power to adopt an immunity provision like this.

Justice Felix Frankfurter: But at least -- at least whatever power it has about immunity is equally after the (Inaudible) power that comes to this.

Mr. Oscar H. Davis: Yes.

I hasten to say that the only reason I am making this argument now is because I think that I can fall directly within two or three decisions of this Court without any need even to extrapolate from the theories which have been laid down in those decisions.

And I would like to take one moment, if I may, to point out to the Court how Congress took account of -- of the foreign and interstate commerce aspects of narcotic legislation in this very immunity provision.

At pages 2 and 3 of the Government's brief, we have set out the immunity provision Section 1406 and the Court will note that -- that Congress referred to three types of federal statutes as to which if testimony were compelled, the immunity would be granted.

Now the first part which remains to the -- Internal Revenue Code is basically the taxing legislation founded on the Harrison Act of 1914, but even that -- even in that portion of the Internal Revenue Code, there is interwoven interstate and foreign commerce powers.

That is in that very section of the Internal Revenue Code there are provisions that people who get possession of -- of narcotics and then carried them in interstate commerce are committing a crime, so that interstate commerce enters into even that aspect of the -- of the provisions.

Justice Felix Frankfurter: Narcotics are produced in this country?

Mr. Oscar H. Davis: Opium is -- is sometimes grown and Marijuana is -- is sometimes grown.

Justice Felix Frankfurter: What are the proportions?

Mr. Oscar H. Davis: I think it is relatively small.

I think the basic problem --

Justice Felix Frankfurter: It has to be --

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: -- the nexus within (Inaudible)

Mr. Oscar H. Davis: Well that's right.

The basic problem is -- is to try to prevent drugs from coming into this country from abroad.

That's the basic problem that the -- the Federal Narcotics Bureau and the federal congressmen have been trying to deal with.

Now the second section, subsection of -- of this statute is the Narcotic Drugs Import and Export Act which as I've mentioned before deals wholly with foreign and interstate commerce.

And the third section, the Act of July 11, 1941 deals with the carriage of drugs on American vessels in foreign commerce.

And of course as I tried to point out yesterday in this particular case, foreign commerce and interstate commerce is the nub of it.

This was a conspiracy to import large amounts of narcotics drugs into the United States.

And as the Court can see from reading through the questions which were sought to be ask under this -- under the immunity statute, almost every single one of them deals with the question of importation of drugs into the country.

They deal with -- dealing with French groups abroad, groups in Europe, means of -- of bringing drugs into the country, the obtaining of passports for the purpose of going abroad to obtain drugs and so forth.

Now I would like -- like to argue the issue which Mr. Justice Black called to my attention and that is the power of Congress to grant this immunity regardless of the basis of its -- of its action in the Constitution.

That is once it is assumed that Congress has constitutional power to enact the substantive legislation as this Court has held that the narcotics legislation was validly adopted either under the taxing powers or under the commerce powers then it is our position that there is no barrier to Congress adopting an immunity provision which covers state prosecutions.

The Court has already held that -- that the narcotics legislation under the taxing power enable -- can use and make available for itself other kinds of reg -- regulations such as registration, the order forms, provisions for -- for stamps on packages.

This is an implementation of the taxing power which the Court has held was appropriate.

Now the Court has never held, in fact the Court has held the opposite, that -- that the Necessary and Proper Clauses of the Constitution, Necessary and Proper Clause and the Supremacy Clause of the Constitution applied for the taxing power, the commerce power all the powers in which Congress enjoys.

I think the Court yesterday in the John Hancock Mutual Life Insurance case gave it -- the latest example of -- of upholding an action of Congress in that very field.

It is in that case the Farmers Home Administration which had made the loan was acting under the -- the welfare -- the payments for grants under the Welfare Clause, the first section of Article 1, Section 8, not one of the so-called regulatory sections of Article 1, Section 8.

And the Court -- and the property which -- which Congress was protecting and which the Court held could be protected was of course under the property clause of the Constitution, not under the one of the so-called regulatory clause is the Commerce Clause and war power.

And in the John Hancock case yesterday, the Court held that Congress could constitutionally preempt, that is this place state rules and there, as I say, that Congress was acting on the two non, so-called non regulatory powers, the property power of the Constitution, the property clause of the Constitution, and the general power to grant farms under the first section, the same section which contains the power to lay taxes.

And as I say, I think this is the -- the latest example, a holding of the Court that the power of Congress to supersede and preempt state legislation is universal, that is it is not limited to any power that Congress has.

And I would go on to say that what -- what I think what the Congress has done here is a kind of partial or pro tanto preemption.

It hasn't said, "No state narcotics legislation shall remain on the books as I think it could."

And as I think the Court way back intimated this and I'll explain in a minute, it hasn't said that Congress has been very careful not to say that.

In the 1956 statute, one of the sponsors of the legislation took the pains to put it into the legislative history a statement, though I don't think it was actually read on the floor of Congress that Congress did not want the 1956 statute to be considered a general preemption of state narcotics law so that they were still to remain concurrent power.

But what an immunity provision is, I think, it's a pro tanto or a partial supersession or preemption as I say.

Justice Felix Frankfurter: (Inaudible)

Mr. Oscar H. Davis: Pardon.

Justice Felix Frankfurter: It didn't have that, we have a (Inaudible) available, potentially available evidence.

Mr. Oscar H. Davis: Well it -- it prevents -- no I think it prevents the -- the entire prosecution even if it's obtained through other -- other evidence.

Justice Felix Frankfurter: Yes.

Yes, it does.

Other evidence here --

Mr. Oscar H. Davis: -- related to this.

Justice Felix Frankfurter: Yes.

Yes, but it doesn't prevent the prosecution.

Mr. Oscar H. Davis: No, it doesn't.

But in practical effect --

Justice Felix Frankfurter: Well that's -- that's the different thing.

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: That's what -- I don't think it's an ordinary kind of preemption.

Mr. Oscar H. Davis: No, it isn't.

But I -- but I think it -- if you -- it can be viewed possibly in that light and I think it maybe easier for some like the Sixth Circuit who found it difficult to accept the notion, if to put it in the light, the fact that Congress clearly has the power of preemption and -- and supersession even in the narcotics field and it hasn't gone that far here.

It has gone much less.

And I say -- I think quite accurately that Congress has the power to impose supersession preemption even in the narcotics field because back in 256 United States in the case of Wipple against Markinson, the question arose whether a state law, I think it was the narcotics law of the State of Minnesota, had been superseded by the Harrison Narcotics Act of 1914 and the Supreme Court held no, it had not been, but the whole intimation of the including part of the opinion is that of course Congress could, Congress could and if there were a conflict or there were some inconsistency, then the state law would have to fall but the Court found there was no inconsistency.

Justice Felix Frankfurter: But one doesn't have to decide that the (Inaudible) include the less (Inaudible) isn't that kind of a problem.

Mr. Oscar H. Davis: No, it isn't but I -- I think that if I can later -- later to rest the -- greater problem or at least indicate that there's I think no substantiality to it, I think I will gone forward with my -- with my argument.

I'd also point out that in the cases in which the Court has upheld immunity provisions against state legislation such as Brown against Walker and Ullmann, there was concurrent state power.

The auditor in Brown against Walker claimed that he might be guilty of embezzlement or he might have defrauded some persons in connection with -- with -- connection with that the transactions about which he was being questioned.

In other words the State of Pennsylvania might if he had really done such things, might have been able to prosecute him so it wasn't the case in which all the power over the particular transaction was in the Federal Government.

Now the same thing is true in the Ullmann case.

Though it's true that the Federal Government as the Court held later after on a week after on Pennsylvania against Nelson that the Federal Government had superseded state sedition laws of the -- comparable to the Smith Act the Court was very careful even in the Nelson case to say that the -- that Congress had not superseded a whole mass of -- of state legislation which impinged on that problem such as sabotage and other things or even a seditious legislation directed against the common law of Pennsylvania alone not against the United States Government.

So the cases which the Court has already had, I think, indicate that there is concurrent power so-called in the States in those areas and nevertheless, that Congress has had the -- has been held to have the authority to pass a valid immunity provision which exclude -- covered state prosecutions.

Justice John M. Harlan: I was curious as to whether the Court of Appeals is to bypass this argument, this question -- did you argue -- the Government argued there?

Mr. Oscar H. Davis: Well, as I pointed out yesterday, the Government mainly argued that that Murdock is still a good law and then it's just a passing reference to the fact that the -- that the statute was valid -- a validly covered state prosecutions.

Justice Felix Frankfurter: Why isn't that appropriate advocacy for the lower courts?

Mr. Oscar H. Davis: I think it is and that's what the lower courts have been doing in this field.

I think perhaps that none of them realized the close connection of the statute in this case to the Ullmann case.

I think none of them realized the statute here was enacted after the Ullmann case has been decided.

In fact, it was being formulated after the Ullmann case and that made him -- made him a little hesitant about saying that it had the same meaning.

In any case, we make the argument here that that it does cover state prosecutions and that it may validly do so.

There is a suggestion I think perhaps in the Sixth Circuit's opinion that if Congress can do that here, it can do it everywhere, there can be a general immunity provision covering abolishing all state prosecutions.

I think our answer to that would -- would stem -- would be first that Congress has to indicate that Congress is sensitive to the role of the States.

Congress is after all composed in the -- in the upper chamber of representatives of the States and Congress has never sought to preempt federal legislation completely through the ordinary preemption power and I think there's very little likelihood that it would try to immunize all state prosecutions with res -- in connection with some federal criminal legislation.

And if that were not answered enough, I call upon three statements that this Court has made in recently years and the first is what Chief Justice Taft sent an Ex parte Grossman.

Ex Parte Grossman was a case in which the President had pardoned a man for contempt and the contempt consisted of disobeying an order of a Court, District Court of the United States and the President pardoned the man.

And the argument was made is that it would violate still separation of powers for the President to be able to pardon a man who would compe -- committed a contempt of Court and it was said that if this were allowed, a President could completely impede the efficiency and the administration of the Court by pardoning people completely who would be violating Court orders.

And Chief Justice Taft, of course, had been both President and was Chief Justice gave what I think is the -- the classic answer to it.

I won't attempt to read it here though in the Grossman case, 267 United States at pages 119 and 121, he referred to the interdependence of all branches of the Government and he said there was no branch of the Government or no part of the Government which could be completely independent that Congress could refuse to make appropriations, the President can refuse to make appointments, the President could have refused to -- to enforce laws, but that you could not construe a power of -- granted to a -- a prior Federal Government in the Constitution while thinking of the ultimate breakdown of constitutional government.

And they ended up by sa -- by saying, if it can be said that the President by successive pardons of constantly recurring contempt of particular litigation might deprive the Court the power to enforce its neighbors and its orders in a reconcile of neighborhood, it is enough to observe that such a course is so improbable as to furnish by little basis for argument.

Exceptional cases like this, if it to be imagined at all would suggest to resort to impeachment rather than to a narrow and strained construction of the general powers of the President.

We think by analogy, that applies here and I would also of course refer the Court to what Justice Stone said in his dissent in the AAA case, the Butter case that you cannot construe general -- general legislation which is properly founded in the Constitution on the basis of what possibly abuses my result in the future by someone malevolent or seeking to -- to do away with the structure of the Government.

And last, I would rely of course upon what Justice Holmes said that in the ultimate analysis, this Court sits, in the ultimate analysis this Court sits and if the power is carried to extend in a particular case or situation, this Court will be sitting here.

Now I turn -- I turn for a moment to the question of the two-year sentence.

I won't again discuss the purge provision which I talk about yesterday.

I just want to point out, if I may Mr. Chief Justice, how this case differs from the Emanuel Brown case in which on behalf of three other justices and yourself, you wrote a dissent from the -- the sentence in that case.

That case was a summary case.

It was not a -- this is not a summary case.

This was not a summary proceeding.

It was a full scale proceeding with days elapsing in which there was full opportunity for counsel to argue on the sense and he did argue on the sense.

Also, that case, there was no purge clause, there was a purge clause which is inserted in this -- in this case and this I said yesterday, we construe the purge clause as running from the day of the -- the mandate of this Court returns the case to the lower court and if the Court should be unhappy about accepting our construction or making its own construction, we think it has power because this is a contempt case to revise the sentence explicitly to say that.

Thirdly, we would point out that this is a narcotics case and narcotics of various -- narcotics violations are very serious offenses which Congress has laid down very severe punishments.

In the Brown case, the -- the matters into -- into which the grand jury was inquiring, led to census of only a farm.

And I think from the opinion of the dissenters in that case, indicated that this was an important factor.

Here the issues -- the types of matters that are sought to be gone into are -- are important aspects of federal narcotic legislation.

And lastly, I would say that in --in -- if you take the comparable sentences given to other defendants under this immunity statute in the last four years, they have been either two years or 18 months and so that if you look at the question of comparability, this is not out of line.

Now I should like to return in the minutes remaining, if I may to the problem that the Chief Justice raised at the end of the day yesterday.

I said in answer to a question, Mr. Chief Justice, that I didn't know of any case under immunity provision in which a man had been questioned concerning a matter for which he had already been convicted in the -- in an ultimate appellate court.

There are cases in the lower courts under this very statute.

There are cases in the lower courts and I think under some other statutes.

The -- the Court of Appeals -- I mean the -- yes, the Court of Appeals in the last footnote of its opinion, cites three court cases in New York and the appellate division and the lower court in New York which are comparable to that.

And I don't know of any such cases but I think I should say in all candor that it's hard to find because there are no cases as far as I can tell in which this issue has been raised in -- in that -- in this fashion.

I don't even think this petitioner raises the issue in that fashion, because his argument was that if the Government pardoned him for the narcotics offense for which he was then serving a sentence and remitted the fine and if his -- he was immune from prosecution under status as well as federal law, then he could be compelled to answer.

He did not take the position that once having been convicted; he could not be compelled to answer.

His position was that he should -- that the rest of his sentence should have been remitted and the fine should have been remitted.

So I don't think that even he has made that argument in this case.

And as indicated yesterday, at the present posture of the case, he is no longer -- he has fully served his sentence and he is no longer subject to that sentence.

But I would like to go further because I think that the -- that the possibility of a distinction under the Immunity Act between men who have been tried and convicted and men who have not, that is between this petitioner on the one hand and men like Ullmann or the Browns in the Brown against Walker and Brown against United States cases will not stand against the theory of the self incrimination clause and the general law which has grown up again -- around that clause in the last century and a half.

The theory of the self incrimination clause is that it protects against criminality.

It protects against criminality.

It does not protect against disgrace or infamy or the kind of exposure or attack which people maybe subjected to if they're required to reveal that they have engaged in something which might otherwise be a crime or would be morally turpitudinous.

This Court held that very clearly in the Brown against Walker case.

Mr. Justice Brown in his majority opinion made a great point of it because Mr. Justice Field in dissent had said that the -- the clause did protect against disgrace and infamy.

Justice Felix Frankfurter: That is so in that case because James v. Carter and -- but I think it's one of the most powerful briefs ever written to this Court, (Inaudible) is stronger on this Court --

Mr. Oscar H. Davis: Yes Mr. Justice and that's why --

Justice Felix Frankfurter: That the source of the discussion in Brown and Walker --

Mr. Oscar H. Davis: That's right.

Justice Felix Frankfurter: (Inaudible) James v. Carter's argument.

Mr. Oscar H. Davis: I think Mr. Justice Field quoted part of Mr. Carter's argument or paraphrased it in his dissent, but it was rejected by the majority of the Court and then Hale against Henkel a few years later again explicitly rejected the same notion.

And much later, in the Smith case in 337 United States, in passing the Court rejected it.

And I think again in the Ullmann case, it was rejected because the opinion of the Court by Mr. Justice Frankfurter refers that Mr. Justice Frankfurter had just indicated to Mr. Carter's argument sets it out and paraphrases in footnote in which indicates that one of the arguments he made was the argument based on disgrace or infamy, and that said it was rejected in -- in Brown against Walker and has been -- and there's no reason to over -- overturn that finding that holding.

Congress has rejected it insofar as appearances before congressional committees are concerned.

Just long ago as the Act of January 24th, 19 -- 1862, 1862 almost 100 years ago, Congress provided that no person can refuse to appear and testify when validly called before a congressional committee on the ground that to so testify would tend to degrade or -- degrade him or lead to infamy.

It said so explicitly.

The State cases have -- have almost universally adopted this rule.

I think there may possibly be one or two jurisdictions of the United States which do not follow.

There's a recent opinion of the Supreme Court of New Jersey, Ray Vince and 2 New Jersey at 443, an opinion written by late Mr. Justice Berlin of the Supreme Court of New Jersey which surveys the law and indicate -- and adopts from New Jersey the rule that disgrace or infamy is not enough.

Justice Felix Frankfurter: What is that citation?

Mr. Oscar H. Davis: Two New Jersey, 443, Ray Vince.

Justice Hugo L. Black: Ray what?

Mr. Oscar H. Davis: Vince V-I-N-C-E.

Now of course, Professor Whittemore has an elaborate discussion in his book in which he points out that -- that the rule -- what shall I say, the privilege against infamy or disgrace seem to have been -- have gotten started in the English Common law.

It did not take route in the United States and by the end of the 19th Century and today, it has almost no routes in this country at all.

And where it does, it only collaterally with respect to -- the privilege has always been said not to apply where the matter is directly in issue.

That is you can't refuse to testify on the ground of disgrace of infamy where something is central to your testimony.

It was a collateral matter.

It's a collateral matter then you may, in those jurisdictions where this privilege shall maintain.

Similarly, I think another -- another universally accepted rule, two other universally accepted rules indicate that disgrace or infamy is not the basis of the privilege against self incrimination.

And the first is that if the statute of limitations is clearly run, the almost universal rule is that -- that the man can be compelled to testify without immunity statute, even absolute immunity statute.

If the statute of limitations is clearly run, then -- then the man can be compelled to testify.

And on that simply because I happen to find it and it's a very recent case, there's an opinion of Mr. Justice Brennan sitting on the Supreme Court of New Jersey called Ray Pillow, 11 New Jersey 8 which holds explicitly that if the statute of limitations is run, the immunity -- I mean the privilege cannot be afforded.

And similarly, if a pardon is granted to a man, if a pardon is granted to a man, he can be forced to testify.

That's the -- began on the famous case of --

Justice Felix Frankfurter: He's been force to pick the pardon of --

Mr. Oscar H. Davis: Well that's what the Court held in the Birdie case and then I -- I'm not so certain if that rule still exist.

Well Mr. Justice Holmes in the Pankovich case, I think somewhat cut into it in Pankovich against Federal, but anyway, if he does take the pardon, he can then be force to testify.

Queen against Boyes was cited by my brother yesterday, an English case, says that explicitly, and that I think has been the rule in the United States.

More than that, more than that, there seems to be the rule throughout the United States that even though there is no immunity provision, if a man has been convicted or acquitted, convicted or acquitted, he can be compelled to testify respecting the subject matters of his conviction or acquittal because the theory is he is no longer able to be tried under the principles of double jeopardy and res judicata.

Therefore, he is not in danger of criminality and -- and he can -- he can be tried.

This is absence in immunity provision.

Whittemore says this is universally conceded and I have found no exceptions to it in the United States or hadn't made it actually exhaust to survey.

The Second Circuit recently in three cases laid down this rule as well established in the same opinion I mentioned to Mr. Justice Brennan in the Supreme Court of New Jersey Ray Pillow. One of the grounds in which Pillow was forced to testify with respect to certain transactions he had pleaded guilty.

And the Court there held that the immunity no longer -- I mean that the privilege no longer exists as far as he was concerned.

In the -- in the opinion in Brown against Walker, famous opinion Brown against Walker, the Court cites and quotes from a decision of the Supreme Court of California Ex Parte Kone back in 104 California which says the same turning with a man -- man has been acquitted for convicted particularly if he server his sentence, particularly if he serve his sentence, he maybe compelled to testify.

And the same had been true of other courts.

So we think that there is no basis in the -- in the history or the theory, the principles of the -- either the privilege against self incrimination or this immunity legislation which would permit a distinction to be made between a petitioner like Reina here or a defend -- or a petitioner like Ullmann in the Ullmann case or Brown in Brown against Walker.

They stand we think on the -- on the same basis.

I think I have nothing further.

Chief Justice Earl Warren: Mr. Stim.

Argument of Allen S. Stim

Mr. Allen S. Stim: Mr. Chief Justice, if it please the Court.

First of all, I would like to point out in this particular case the petitioner Giacomo Reina had been convicted of the crime of conspiracy to violate the narcotic laws of the United States.

He has never been charged or convicted of the substantive crimes from which he has been convicted of conspiring to violate.

I have distinguished the facts of this case in my brief.

A question was asked yesterday by the Court as to what prejudice there would be to the petitioner in the event that this Court construed the purge clause of the judgment as running from the date of final determination by this Court of the matter now before the Court instead of following the plain language of the judgment which commenced the purge clause as of February 2nd in 1959 that this -- such a construction would create more problems than it could possibly solve.

It's apparent from the record of the Court and I refer the Court to page 25, 24 of the transcript of the record, the second paragraph down the second statement of Mr. Cobe who was the attorney for the petition at below.

Mr. Cobe stated toward the end of the first paragraph that the order which this petition has been held in contempt on the order of Judge Edelstein was construed by Judge Edelstein that the petitioner should answer all questions referred to one before the grand jury including those which might not appear on these papers, therefore, even assuming that this Court would construe the purge clause as commencing as of the date that this Court made a final determination such a construction might possibly preclude this petitioner down below if called before the grand jury again to attack the reasonableness or materiality of certain questions propounded to him.

In other words, it would put him on his own -- own peril that if he would challenge the materiality that he would not purge himself and that he would remain in prison and if any members of the Court raised the question that made -- that the Government might not digress from the purposes of the investigation, I refer the Court to page six of the record, the bottom questions propounded to Reina before the grand jury.

I haven't raised this point on this petition but at the bottom, Mr. Reina was asked this question.

Mr. Reina, was your father Thomas a member of an organization sometimes known as the mafia.

I can represent to this Court from my own personal knowledge that Mr. Reina's father died 30 years ago.

Reina was further asked that his father had a title Don in that organization, then he was asked after his father's death, did Reina take the place and title of Don in the organization and what are the names of the members of the organization?

This I respectfully submit has to the deal with matters that occurred 30 years ago and could have no possible reference to any narcotic investigation or narcotic matter now under investigation.

I would like to refer this Court in the conclusion of my argument that Title 21 United States Code Section 198, which does not appear in my brief, this makes it a duty on the part of the Government to make narcotic information available to the State Governments the use in the state courts.

I would also like to bring to the attention of the Court, I omitted this from my brief, I omitted the State of California.

The California Penal Code Section 1324, 1958 supplement by statute, and by statute the State of California has adopted the Michigan rule which disagrees with the Murdock decision.

Thank you.