UMANS v. UNITED STATES
Legal provision: Writ Improvidently Granted
Argument of Edward Brodsky
Chief Justice Earl Warren: Number 41, Sam Umans, petitioner, versus United States.
Mr. Edward Brodsky: If the Court please.
Petitioner is a Certified Public Accountant who was convicted in the court below of giving money to Internal Revenue Service agents.
He was named in 24 counts of an indictment for 12 separate transactions with respect to each transaction there were two separate counts in the indictment.
The Court of Appeals reversed three of the counts of the indictments so there were 21 counts remaining.
The evidence very briefly consisted of testimony from seven Internal Revenue Service agents who testified generally that they received money from the petitioner in connection with their audit of various tax returns.
The amount of money that they received varied from a low of $25.00 according to them to a high of $75.00 most of the payments were $50.00.
With that very brief statement of the facts, because we’re not complaining that the evidence in the trial court was insufficient, I will go immediately to my first point which is that the evidence before the grand jury in this case was insufficient to support the indictment.
Now the entire evidence before the grand jury in this case consisted according to the government’s characterization of an Internal Revenue Service agent’s brief summary of portions of affidavits relating to the alleged illegal payments made by petitioner.
The man who testified before the grand jury, I don’t know who he was, but from the record in this case he could not have had any personal knowledge about more than just a few of these affidavits.
In other words, the government puts a man before the grand jury who has no personal knowledge of most, if not all, of these pieces of paper that he’s summarizing, and then he briefly summarizes this hearsay, and that is the entire testimony to support this indictment.
Now the grand jury testimony itself is not a part of the record.
I know what it was because the government stated what it was in its brief in the Court of Appeals and the Solicitor General agrees that this is what the grand jury testimony was.
Now, I am arguing here that that evidence was insufficient on alternative grounds, either under petitioner’s Fifth Amendment right to be indicted by a grand jury, I think that right includes some kind of substance behind the grand jury indictment, or if this case does not reach constitutional dimensions then I would ask this Court under its rule making power to so hold.
Now it seems to me that I have two hurdles to overcome in this Court.
First, I must convince the Court that there should be some kind of a standard of evidence in these grand jury situations, a standard of evidence which is enforceable by this Court and by other courts.
Second, once I get beyond that hurdle, the question becomes what should that standard of evidence be.
Addressing myself to the first question, I think that the analysis can be made in this way.
Surely, I would think that everyone would agree that if an indictment is based upon no evidence, if for an example the prosecutor walks into the grand jury and says “Ladies and gentlemen, John Doe committed a crime, return an indictment.”
And it does inconceivably it could.
I think that all would agree that such an indictment would not be supported by this or any other court.
Justice Potter Stewart: Well you don’t -- you may be right, but there’s no case holding that is there?
Mr. Edward Brodsky: No, not at all.
I’m just trying to make an analysis now.
Justice Potter Stewart: But I thought, alright just at the analytical level.
Mr. Edward Brodsky: Yes.
Justice Potter Stewart: That the cases have held that that is a matter entirely for the grand jury as to on what bases they’re going to bring in on that.
Mr. Edward Brodsky: I think the Costello case in this Court certainly says that.
There is no question about that.
Justice Abe Fortas: But there are some decisions by various Courts of Appeals that would sustain what you have just said.
Mr. Edward Brodsky: Before Costello, Your Honor?
Justice Abe Fortas: Before Costello.
Mr. Edward Brodsky: There’s no decision after Costello which would sustain what I said.
And I think to be perfectly frank that what I’m asking this Court to do is not to overrule Costello because I think this case is far distinguishable from Costello, but at least to change some of the broad sweeping language in Costello.
Costello says that if an indictment is valid on its face, and if it was returned by a legally constituted grand jury that’s enough.
And I’m saying that that is not enough under many circumstances and particularly under the circumstances of this case.
And I think that what’s happened since Costello, I cite a number of cases in my brief where this has happened, is that prosecutors had been reading Costello in its broadest sense and have been returning indictments based upon less and less evidence.
And I think that, and I charge in my brief, that one of the reasons that they’re doing this is because when they don’t put a person with personal knowledge before the grand jury then they don’t create another record by a person who is going to testify a trial, a record which would have to be turned over to defense counsel.
So that prosecutors are motivated to get further and further away from presenting to grand juries any evidence which is based upon personal knowledge.
And the further away from that which you get, the closer you get to a situation of no evidence at all, and I think --
Justice Abe Fortas: But some of these people, whose affidavits were rather summarized to the grand jury testified here at trial, did they not?
Mr. Edward Brodsky: All of them did Your Honor.
Justice Abe Fortas: All of them?
Mr. Edward Brodsky: Yes sir.
Justice Abe Fortas: And you did obtain their affidavits, did you not?
Mr. Edward Brodsky: We obtained portions of their affidavits and the Solicitor General says and I have no reason to dispute it that the affidavits which they gave us at trial are the very same affidavits which were summarized before the grand jury, yes Your Honor.
Justice Abe Fortas: So that in that sense and to that extent you could obtain something that is substitute for the testimony of these persons before the grand jury.
Mr. Edward Brodsky: We did indeed.
We would’ve obtained that Your Honor under the Jencks Act in any event.
I think what the government avoids here if they would’ve had these same witnesses testify before this grand jury, we would’ve had not only their Jencks Act statements, these affidavits that were summarized, but in addition their grand jury testimony which might have been inconsistent with their Jencks Act statements.
I’d like to pursue that for a minute.
Justice Abe Fortas: Was there any reason to think that these affidavits were not prepared specifically for the grand jury?
Mr. Edward Brodsky: I have no evidence one way or the other on that.
Justice Abe Fortas: So it is possible that the affidavits might not have existed if these persons have testified personally before the grand jury?
Mr. Edward Brodsky: I doubt that for this reason.
These very same persons testified before a previous grand jury in this case and six out of seven of them, when they were asked in substance to name the persons from whom they received money, failed to mention petitioner’s name.
They did, when the prosecutor said “Are there other people from whom you have taken money whose names you don’t remember?”
They said “Yes.”
But when they were asked this specific question “Tell me the names of those persons from whom you received money,” six out of seven failed to mention petitioner’s name.
Now when they come to get an indictment against petitioner, instead of using the same grand jury which knew about these prior, what I would call inconsistent statements, they go to a new grand jury and they don’t tell the new grand jury that these people have previously testified and failed to mention petitioner’s name.
They merely have an agent who is isolated, from firsthand testimony, summarize these affidavits.
And I think that’s very far away from any kind of substantive evidence.
I should say also that the scope of this problem is indicated by a letter which is annexed to the government’s brief, a letter from the United States attorney for the southern district of New York to the Solicitor General, where the United States attorney says, in answer to my charge that in most cases, indictments are being returned on less and less evidence, he says himself that his policy has been up until this very case in the, and this is his language, in the so called cut and dried cases to have an agent summarize his interviews or his investigations of the case, mostly his interviews in the cases the way the United States attorney puts it.
So that we have a situation where the United States attorneys throughout the country, unless the law is changed, unless this Court says something about it to make a change, the United States attorneys in this country have the discretion now to present second or third or fifth or sixth hand evidence to grand juries.
Justice William J. Brennan: Do you have any knowledge Mr. Brodsky whether this is a policy of the Department of Justice or is this something developed by the United States attorneys in their respect --
Mr. Edward Brodsky: I have no knowledge on that one way or another Your Honor.
The only information is a letter from the United States attorney for the Southern District of New York.
The Department of Justice does not say in this record any place what their policy is throughout country.
Now assuming for a moment that, and I might say this before I get to the next point, that if the kind of evidence in this case is upheld by this Court and this indictment is sustained, then this is an effect a notification to the United States attorneys across the country that this kind of flimsy evidence at least will be sustained and there’s no reason, there’s no motivation on their part to present any stronger evidence, and as far as the grand jury is concerned as a practical matter, when a prosecutor says to the grand jury after summarizing affidavits, well if the grand jury does say “Shouldn’t we have something more?”
When he says to the grand jury “Well you know the Supreme Court of the United States has sustained this procedure,” that I believe would be sufficient for most grand jurors not to probe any further.
Now assuming for a moment that I’m over the first hurdle and that or might that there should be some kind of a standard that I get to the next question which is what should that standard be.
And I’m arguing that at least for purposes of this case, the standard of evidence before the grand jury should at the very least be the same standard of evidence as one needs to get a search warrant or an arrest warrant.
It seems to me to be anomalous that you can indict a person on something less than you can arrest a person on.
After all the consequences of an indictment, the humiliation to say nothing of the expense of going through a complicated or even a non-complicated trial.
A much more severe when a person is indicted then when he’s arrested yet as this very case shows a person can be indicted on substantially less evidence than a person can be arrested.
I would like to --
Justice John M. Harlan: Suppose you’re [Inaudible]
Mr. Edward Brodsky: I don’t think so Your Honor, I address --
Justice John M. Harlan: [Inaudible]
Mr. Edward Brodsky: I try to address myself to that question in the brief and I ask this Court to look out for reference to what’s done in the State of New York.
Now in the State of New York the constitutional language is almost identical to the federal constitution on this point and my interpretation in that state and by statute only legal evidence, what they call legal evidence can be introduced before the grand jury and they go this far, and I’m not arguing that this is necessary for purposes of this case, in New York they say that you must make out a prima facie case as you would at trial before the grand jury.
Now addressing myself to that question, don’t you need a hearing in every case, the answer in New York has been no.
A person must first establish some kind of a showing that there may indeed be insufficient evidence before the grand jury.
You don’t automatically get a hearing just because you ask for it.
It might be similar to an illegal search question where the question is “Was there an illegal trespass by federal agents?”
A person must first make a showing of some kind of evidence that there was indeed an illegal trespass before he’s entitled to a hearing.
Justice Byron R. White: Well, what you’re really arguing a quantum of – who to your standard of probable cause.
Is your real objection in this case reliability rather than quantum of evidence?
Mr. Edward Brodsky: Well I think it’s both.
I think its more reliability than quantum of evidence.
I don’t suggest to mean quantum of evidence.
I don’t understand probable cause in arrest or search warrant cases to mean quantum of evidence.
I understand it to be reliability, and I’m arguing reliability here too, yes.
Justice Byron R. White: Assuming that same evidence had been given by the witnesses who signed the affidavits --
Mr. Edward Brodsky: I think that would’ve been clearly alright, Your Honor.
Justice Byron R. White: So its just that is what’s removed that there’s been (Voice Overlap)
Mr. Edward Brodsky: No it’s about three times --
Justice Byron R. White: How many times, it’s a fact that is removed --
Mr. Edward Brodsky: Yes Your Honor.
Justice Byron R. White: -- from the people who got firsthand knowledge?
Mr. Edward Brodsky: Yes Your Honor.
Justice William J. Brennan: Mr. Brodsky, was there any arraignment in this case?
Mr. Edward Brodsky: Yes, there was an arraignment.
Justice William J. Brennan: What was the nature of the government’s case to hold them over for grand jury --
Mr. Edward Brodsky: Oh, no, I beg your pardon.
There was an arraignment after the grand jury an indictment, excuse me.
Justice William J. Brennan: Not before --
Mr. Edward Brodsky: Not before, no Your Honor.
Justice William J. Brennan: -- preliminary hearing I guess --
Mr. Edward Brodsky: No there was not, no Your Honor.
Justice William J. Brennan: Well what this -- what happens to the preliminary hearings, are they -- would’ve they simply decide whether they hold over for the grand jury.
Mr. Edward Brodsky: What would’ve happened in this case Your Honor?
Justice William J. Brennan: No, what is the standard that’s followed before the United States commission in those days?
Mr. Edward Brodsky: I believe its probable cause, the same standard as is necessary for arrest or search.
I believe that’s the same one.
Justice William J. Brennan: Well if there had been one here, with what was presented to this grand jury for the purpose of indictment had been sufficient to commit -- United States Commission to hold a motive for grand jury indictment?
Mr. Edward Brodsky: I think the answer is clearly no.
Justice William J. Brennan: Why?
Mr. Edward Brodsky: Because there was no probable cause.
I think the standard there is the same standard of probable --
Justice Byron R. White: You say that because you say that the people with firsthand knowledge didn’t appear?
Mr. Edward Brodsky: Not necessarily Your Honor, I think for example --
Justice Byron R. White: Well I think it’s necessary in this case but you don’t object to the fact that these people had come in and said these very things and then that’s sufficient.
Mr. Edward Brodsky: Yes.
Justice Byron R. White: Just a fact that an affidavit instead of the person.
Mr. Edward Brodsky: Well no, the fact that I was summary of an affidavit instead of a person.
For example, I think that if an agent in this case had interviewed all seven of these people and had then gone to the commissioner and said “Commissioner, I have spoken to these seven people.
Each of them told me that petitioner gave them money in connection with --
Justice Byron R. White: Would you be making the same argument if the agent had not made a summary of the affidavits, but had presented the affidavit?
Mr. Edward Brodsky: I think I’d be making the same argument would not be as strong Your Honor.
I think I have a much stronger case because he summarized these affidavits.
Justice William J. Brennan: You mean, if he’d read the affidavits than were a difficult case --
Mr. Edward Brodsky: I think so.
At least he would have been given word for word to the grand jury what these people actually said, this would --
Justice William J. Brennan: And swore to?
Mr. Edward Brodsky: And swore to.
I go further because this agent didn’t even know that these pieces of paper were in fact affidavits.
These pieces of paper I would assume what happened, I think the record supports this, one agent gathered the affidavits.
They were sworn before many different agents, some 10 or 12 or more agents and one agent took them all.
He may have had personal knowledge because maybe one or two of these people swore to these affidavits before the agent, but he didn’t have any knowledge.
Justice Byron R. White: At least they were notarized, weren’t they?
Mr. Edward Brodsky: They were sworn --
Justice Byron R. White: You knew that they were -- he knew they were in the form of affidavit?
Mr. Edward Brodsky: They were in form of affidavits, no question about that, yes sir.
I would like to go to my second point --
Justice Abe Fortas: Did you say -- excuse me, did the agent who summarized these affidavits for the grand jury testified later at the trial?
Mr. Edward Brodsky: No, he did not.
Justice Abe Fortas: Was he in charge of the investigation?
Mr. Edward Brodsky: I have no idea, I don’t know what his name was, I don’t know what his capacity is.
The government does not reveal that and it’s not part of the record.
Justice Abe Fortas: And we don’t know whether he was in a position to answer any question that the grand jurors may have had.
Mr. Edward Brodsky: We do not know that Your Honor from this record --
Justice Abe Fortas: So that this --
Justice Byron R. White: Well, he probably read the affidavit and prepared the summary?
Mr. Edward Brodsky: I would think he did, yes, but without --
Justice Abe Fortas: If the grand jurors had questions about what was covered by the affidavits, we don’t know whether he was in a position to answer them?
Mr. Edward Brodsky: We do not know that Your Honor, and I think that even if you were if it’s not part of the record before the grand jury, I make an analogy to the arresting officer who has a great deal of information in his head that he doesn’t put into an affidavit.
This Court has held that you look to the four corners of the affidavit.
I’m asking this Court to hold that you look to the four corners of the foundation for the indictment.
Justice Potter Stewart: How do you get at it?
Mr. Edward Brodsky: Sorry I didn’t --
Justice Potter Stewart: Given the strong traditions at least in the federal system of grand jury secrecy, how do you get at this?
Mr. Edward Brodsky: Well as far as the --
Justice Potter Stewart: Call the grand jurors or do you call -- who do you call as a witness?
Mr. Edward Brodsky: No, you don’t call grand jurors.
I -- certainly I -- in the Southern District of New York all proceedings are transcribed.
I think this is the practice generally throughout the country.
Justice William J. Brennan: There’s a transcript of this particular grand jury proceeding anywhere in the record?
Mr. Edward Brodsky: It is not Your Honor.
Justice William J. Brennan: Did you try to get it?
Mr. Edward Brodsky: Yes we did.
We asked for it but it was denied.
Justice Potter Stewart: So what do you do, excuse me.
Mr. Edward Brodsky: Oh, no, what you would do, yes.
Assuming that we can make a showing as we did in this case that none of the witnesses who testified at trial testified before the grand jury which indicted the petitioner.
Now that leads to the question, well what was the evidence, and we bring to this to the attention of the court and we say to the court --
Justice Potter Stewart: Of the trial court?
Mr. Edward Brodsky: Of the trial court, oh yes!
And we said, please direct the government to furnish you with a copy of the minutes before the grand jury, or furnish them to us so that we can look at them and brief and argue the point, assuming that there is a point after you look at them.
So there wouldn’t be any calling of grand jurors or calling of witnesses who appear before the grand jury.
Justice Potter Stewart: But there would be a complete disclosure of the grand jury proceedings or it would have to be.
Mr. Edward Brodsky: At least to the court.
It could be in-camera.
Justice Potter Stewart: Well --
Mr. Edward Brodsky: -- in the first instance, that’s the way they do it in New York.
Again I refer to that, because in the first instance the judge himself takes a look at the grand jury minutes and then if the point, as they put it, is fairly arguable then they give the grand jury minutes to defense counsel for brief and argument.
Justice Potter Stewart: And pro tanto, that of course invades the traditional secrecy of the grand jury for whatever that’s worth.
Mr. Edward Brodsky: It did most assuredly does in that sense.
I don’t think that’s a problem we invade the secrecy of the grand jury very often.
We get the minutes of the witnesses who testified before the grand jury when they testify at trial.
This Court in the Dennis case said that under some circumstances we’re entitled to the --
Justice Potter Stewart: Now, now that maybe I should listen.
Mr. Edward Brodsky: Yes.
Justice William J. Brennan: Well hasn’t the Second Circuit Mr. Brodsky been rather more liberal perhaps in other circuits about making minutes of grand jury proceeding --
Mr. Edward Brodsky: They have indeed.
Justice William J. Brennan: -- the defense?
Mr. Edward Brodsky: They have indeed, during the pro tanto.
I would like to get to my Jencks Act point in the time remaining.
After the direct testimony of the witnesses, they were, counsel asked the government to produce all of the statements of the witnesses which came within the Jencks statute.
Now there are a large number of statements which were not furnished to us, which were sealed in the court below, sent up to the Court of Appeals and I understand that they are still sealed and now they are lodged with this Court.
Now the Court of Appeals and the government in its brief in the Court of Appeals tells us that these statements are statements by these witnesses who testified at trial in which they admit the receipt of money from other people, not from petitioner, and therefore the government has said that does not relate to their direct testimony since they didn’t testify about other people on direct testimony and that therefore the statements do not fall within the Jencks statute.
I want to put the Jencks Act in what I think it’s it proper context before I argue how these statements do indeed relate to the direct testimony. I’d like to talk about the Jencks Act in terms of the Rosenberg case in this Court in which this Court said that Jencks should be interpreted in the light of its purpose which is to provide defense counsel with material which might be useful for impeachment purposes.
So trying to answer that question, was this material useful for impeachment purposes, of course I haven’t seen it, but knowing what it is from the statement in the -- by the Court of Appeals, I think that it was indeed valuable for impeachment purposes in this way.
The witnesses apparently gave a lot of affidavits to the government in which they fail to mention petitioner’s name.
Now I think that it would have been extremely useful for us at trial to be able to show that, for example, on January 1, on January 15, on January 20, and that’s the way it is in this case.
I’m referring to dates with respect to one of the particular witnesses, on each of those dates, the witness filled out an affidavit in which he purported to name, the names of those people from whom he received money and he failed to mention petitioner’s name on each of those dates.
And it wasn’t until for example April 17 in the particular case that I’m talking about, that he first mentioned petitioner’s name.
Now I think that would’ve been extremely useful for cross examination purposes and we were denied that in the court below.
In addition, I think that there was another value for impeachment purposes here and that is this.
In the statements, the witnesses admitted taking money from other people.
They admitted in effect crimes involving moral turpitude, and I think that on cross-examination, it would’ve been useful and valuable for impeachment purposes to be able to show each specific crime that these witnesses admitted in the affidavits which were denied to us.
Now the government claims with regard to this point that we did on cross-examination asked these witnesses whether or not they received money from other people aside from petitioner, and indeed we did.
But the record shows that in answer to our questions on cross-examination, the witnesses were somewhat vague.
They said “Well, yes I took money, but I don’t remember how many people that I took money from or the years or the amounts” and yet when they were filling out these affidavits in the privacy of their rooms with the government officials, they were quite precise I am sure these affidavits will show.
They were quite precise in saying “On July 5, 1965, I took $25.00 from John Doe” and I think that these statements would’ve been extremely useful for impeachment purposes.
Justice Potter Stewart: It would seem to me, just as a matter practical trial strategy that the answers you got were more useful to you, if they couldn’t remember from whom and when and how much they took the money from.
That would make their testimony in your case very reliable, does it?
Mr. Edward Brodsky: No.
Justice Potter Stewart: And if they’ve been awfully precise, the jury might have thought their memories were better than you showed the --
Mr. Edward Brodsky: I don’t think so Your Honor because as a matter of trial strategy, what we might have been able to argue to the jury was that these people were actually memorizing what they said in this case.
And indeed filling out precise affidavits and only by minimizing these affidavits could they remember what their actual testimony was.
They really couldn’t remember it unless they were sitting down with government agents and writing with government agents precisely what they were recreating happened in this case.
Justice Potter Stewart: I should think that that was the precise argument that was available to you on the basis of the answers you did elicit, but that is not a point worth pursuing anyway.
Mr. Edward Brodsky: Thank you Your Honor.
Chief Justice Earl Warren: Mr. Glazer.
Argument of Sidney M. Glazer
Mr. Sidney M. Glazer: May it please the Court.
First, before turning to the argument of the two principle issues raised in this case, I want to point out one fact omitted by the petitioner and pulling out all of the circumstances under which the two main issues in this case developed.
The seven Internal Revenue employees involved who are witnesses in the case, six were indicted along with petitioner and the seventh was indicted in a separate indictment.
So these seven witnesses were in a sense different than the normal witness you have in a normal situation, in a normal case.
Now, what happened is, they -- each of these witnesses testified on direct examination that they accepted bribes from petitioner.
Their direct examination was only concerned with their transactions with petitioner.
They didn’t, in their direct examination -- they didn’t go into any other bribes with any other accountants.
After the direct examine -- after the first witness testified on direct examination, petitioner made a blank at the man for all statements made by the witness.
After this blank at the man, the government turned over statements, affidavits of the witnesses and some of the affidavits were turned over directly to defense counsel.
Other affidavits, the government told the court that had matters in them which did not relate to the direct examination.
So the court examined those affidavits in-camera, and as result of its examination what was actually turned over the government, the government had prepared it in advance were affidavits with certain portions excised -- would have -- with certain portions of it with material excised from it.
And what wasn’t turned over were statements concerning the petitioner’s transactions with other accountants.
Now each of the -- included in the material turned over were grand jury testimony of these witnesses.
These witnesses, each of these witnesses had testified before a previous grand jury.
This was in the initial stage of investigation which involved widespread corruption in the New York Internal Revenue office and at this previous, in the initial stage before this first grand jury, only one of the witnesses had named petitioner as a person who had paid him bribes.
The testimony before the previous grand jury however somewhat the -- the previous grand jury didn’t try to develop all the names of all of the accountants who had received bribes from petitioner.
Now, at the conclusion of the case, defendant -- as each witness testified, found out that none of these witnesses had testified before the grand jury which had indicted petitioner.
At the conclusion of the case, he moved the court to dismiss the indictment on the ground that none of the witnesses had testified before the grand jury and asked the court to examine the grand jury testimony.
At this point the court overruled his motion to dismiss and refused to examine the grand jury testimony.
As I read the record, at no time did petitioner ask to have this grand jury testimony.
The grand jury testimony involved in this case turned over to him.
Now his first contention is that Costello versus United States should either be reexamined or overruled.
We see nothing in this case to warrant the reexamination or overruling Costello.
Justice Abe Fortas: MWhat is the practice in this respect?
Is there any general departmental policy or instructions with respect to the use of live witnesses before a grand jury?
Mr. Sidney M. Glazer: No Your Honor, as far as I know the practice varies with the individual U.S. attorney.
Now of course now in the Second Circuit as a result of this case and as a result of another case, it’ll be prudent for the U.S. attorney – any U.S. attorney in the Second Circuit to offer firsthand testimony of the witnesses because in this case the court said unless there are some unusual reasons whenever possible, firsthand witnesses should be used before the grand jury, So as far as the practice which will be followed in the Second Circuit any prudent prosecutor will offer some firsthand testimony unless he has some reason not to.
Justice William J. Brennan: I’m sorry Mr. Glazer; did I understand you to say that it’s the Justice Department?
Mr. Sidney M. Glazer: No, no.
Justice William J. Brennan: No.
Mr. Sidney M. Glazer: It’s not the Justice Department.
Justice William J. Brennan: This with any Justice Department --
Mr. Sidney M. Glazer: No, as far as I know there’s no Justice Department policy.
It all depends on the individual U.S. attorney.
What I did say was that as a result of the decision in this case that the U.S. attorney in New York is adopting a policy which the opinion says that wherever possible firsthand -- witnesses with firsthand information should be used before the grand jury.
I said its prudent being in the Second Circuit for him to do it --
Justice William J. Brennan: I appreciate the record wouldn’t show anything about this but how often was, before this case, was the practice followed which was followed in this case, do you know that? Is that a common place thing or --
Mr. Sidney M. Glazer: From the U.S. attorney’s letter of the Second Circuit, I would assume that it was common for -- to put on an agent and not offer firsthand information in cases which originated through the investigation agencies.
Now that would be different in the case where the grand jury did its own investigation, but that is apparently the practice in New York.
Now I do not know that that practice existed elsewhere.
Justice William J. Brennan: But in any event, this is the southern district we’re talking about?
Mr. Sidney M. Glazer: Right, this is the southern district and this case arises out of the southern district.
Justice William J. Brennan: And the southern district is now following the admonition of the Court of Appeals, is that it?
Mr. Sidney M. Glazer: Right, the southern district is following the admonition of the Court of Appeals.
Justice Abe Fortas: Is this confined -- is it confined to tax cases? This practice, was it confined to tax cases?
Mr. Sidney M. Glazer: This --
Justice Abe Fortas: Practice of using affidavits where it existed, do you know?
Mr. Sidney M. Glazer: I don’t think it’s confined with tax cases.
I mean, the U.S. attorney in the Southern District of New York doesn’t say he confined it to tax cases. Of course you know there are some tax cases where the grand jury investigates themselves.
Justice Abe Fortas: Well I understand that, but what I’d like to know is whether there are other districts too where non-tax cases this practice -- is this the right --
Mr. Sidney M. Glazer: I would assume that in other districts --
Justice Abe Fortas: -- shortcut.
Mr. Sidney M. Glazer: I would assume that in other districts there are cases where U.S. attorneys use the agent, the agent instead of using firsthand witnesses.
Justice Abe Fortas: I say non-tax case.
Mr. Sidney M. Glazer: And I would assume that it also has occurred in non-tax cases.
I don’t -- I would --
Justice William J. Brennan: May I ask this, I take it the Department of Justice could, I imagine, administratively establish a policy which would be binding on all U.S. attorneys I suspect, couldn’t it?
Mr. Sidney M. Glazer: Yes it could it.
Justice William J. Brennan: Any indication that it has any idea doing this?
Mr. Sidney M. Glazer: I have no idea, no.
Now one suggestion which we have made, it’s in a footnote in our brief, if a particular district judge is dissatisfied with the quality of test -- of evidence being presented before the grand jury.
We suggest a simple solution and that’s on empaneling a grand jury the district judge can instruct the grand jury as to the quality of evidence.
And so instead of waiting until after the grand jury has heard the case and adopting a drastic remedy dismissing indictments, it seems you can adopt as prophylactic measure and that solves the problem.
I mean if the particular district is using what the judge can --
Justice William J. Brennan: Well may I suggest I should think a more practical way would be for the Department of Justice to announce a policy in this regard and bind the U.S. attorneys too.
Mr. Sidney M. Glazer: I think that also be a solution to the problem.
Justice Hugo L. Black: Do you think that he could do that if the law provides otherwise?
Mr. Sidney M. Glazer: Well we certainly couldn’t bind the grand jury.
In other words, if the grand jury wanted to return an indictment on its own, on the basis of other evidence the U.S. attorney couldn’t bind the grand jury.
The grand jury after all is an independent body.
And traditionally it has been considered to be the protection a defendant has against arbitrary indictment.
Instead of having an elected official, the constitution has provided for these lay people to hear the case unhampered by technical rules.
My suggestion when I was -- if district judges do not like or the judges in the Court of Appeals prefer better testimony before the grand jury, certainly the department would on its own, would try to offer firsthand testimony and suggest it to the grand jury.
But the grand jury, we submit, has the power to act on hearsay evidence.
After all its function is only to determine the probable cause and the probable cause -- you take a situation like this particular case.
In this particular case you have six people who are indicted as co-defendants.
Now, it so happened that they were cooperating with the government, but if they hadn’t been cooperating with the government or the government wasn’t sure of the cooperation, it seems to me that it’d be adequate --
Justice Byron R. White: But you’re never really sure, are you?
Mr. Sidney M. Glazer: No, because they sometimes change their mind.
It seems to me to be adequate for the government to present the affidavits of the six people, indicating that they had committed a crime.
This is certainly reliable information.
After all a -- people don’t ordinarily put their -- subject themselves to punishment or to loss of jobs by admitting they have committed an offense.
And so the grand jury as far as we’re concerned had very reliable evidence and they had sufficient evidence to determine probable cause.
Justice Hugo L. Black: I ask you the question again, because I thought you answered rather quickly, the problem that I hadn’t talked about until the question was answered. So this is that.
Suppose if he agrees that legal and constitution to a grand jury to proceed on the basis if they ever and the Court of Appeals judge decides he doesn’t like this.
I understood you they hadn’t made to the Court of Appeals judge or district judge but in some way bar the grand jury from proceeding on that basis.
Mr. Sidney M. Glazer: No I didn’t --
Justice Hugo L. Black: Or the Department of Justice, the attorney general and the executive office could change that rule by telling his prosecuting officers not to use it?
Mr. Sidney M. Glazer: No, I don’t suggest that we were tried -- the Department of Justice would try to stop the grand jury from hearing hearsay evidence.
I just suggest that the Department of Justice when they assist a grand jury would find it prudent in view of criticism in the Court of Appeals to offer firsthand testimony.
Justice Hugo L. Black: Or might be -- suppose the criticism was wrong?
Mr. Sidney M. Glazer: Well --
Justice Hugo L. Black: Suppose the law is the other way?
Mr. Sidney M. Glazer: Well I think the law is --
Justice Hugo L. Black: You only mean that they would have to bound to the will of judges of the Court of Appeals and violate the law.
Mr. Sidney M. Glazer: Yes.
I don't think the law is the other way.
I think the law is that a grand jury has the right to act on its own.
I think the grand jury has the right to act on its own, and if the grand jury can hear any type of evidence that it wants.
All I’m suggesting is if the Court of Appeals like the Second Circuit is done in this case has said that where practical the U.S. attorney should offer the grand jury first hand evidence.
I say it’s prudent for the U.S. attorney to do this because if you’re going to -- why get yourself involved in a situation where you have a trial long involved lawsuit, and at the very tail end, the Court of Appeals is going to say there’s something wrong with the grand jury procedure.
Justice Hugo L. Black: Well did they make that suggestion on the basis even though the law provided otherwise, they were going to say it, admonish the judges in that Circuit to take evidence is not being missed there under the law?
Mr. Sidney M. Glazer: Well --
Justice Hugo L. Black: Where does that right come from to make that suggestion?
Mr. Sidney M. Glazer: Though I think the --
Justice Hugo L. Black: I’m not talking about interpretative law --
Mr. Sidney M. Glazer: I think the right may -- I think the suggestion may have come from a case, an earlier case which they had where there was a dispute between, in the Court of Appeals as to whether there had been a witness -- an agent who testified they had deceived the grand jury.
And in order -- and I think it was in response and that was in the Payton case and it was a two to one decision on the Second Circuit.
And now I think in this case – because this case followed that up, and I think what they wanted to do is avoid a situation where somebody could say the agent who’s testifying before the grand jury in that particular case, there was a dispute as to whether the agent testified before the grand jury indicated the grand jury had personal knowledge with certain fact when he didn’t.
And the court -- I think that was the response of the -- that’s what the Court of Appeals responded to it.
Well, I agree with you that --
Justice Hugo L. Black: I was just asking the question because I hadn’t -- the thought hadn’t occurred to me that anybody would think of this judge to have that power.
Mr. Sidney M. Glazer: Let me get to the second issue in this case.
The Jencks Act or Statute provides that after a witness testifies on direct examination, upon motion of the defendant, the government shall turn over all statements of the witness which relates to the subject matter as to which the witness has testified.
And if material doesn’t relate to the subject matter, the court shall examine the statement in-camera and shall excise the portion of the statements which do not relate to the subject matter of the testimony.
Now in this particular case, the court, the trial judge we believe did turn over the material which should have been turned over and the material which was not turned over was properly kept from the defendant.
Now the trial judge in determining what related in this to the subject matter upon which the witness has testified didn’t adopt any narrow rule.
He gave them -- the defense got the affidavits which concerned the activities to which witnesses testified on direct examination.
In addition, the defense obtained earlier grand jury testimony of the witnesses even though only one of the witnesses as mentioned petitioner, and even as to the statements.
Even statements which didn’t mention petitioner in two instances were turned over to petitioner and these statements mentioned acts of other accountants.
The full record and not just the printed appendix in this case shows the basis upon which the court -- initially the grand jury testimony of the third witness, a former employee named Diche (ph) was not turned over.
The court after reading the exhibit noticed a question in this grand jury’s act testimony which said “Did anybody else give you any money?”
And the witness at that time didn’t name Umans.
The court said “This material should be turned over.”
And what the court says “At least the defendant could argue that at that particular time in the grand jury, the witness either did not remember or could not remember or did not want to remember Umans’ name.”
So we have a situation where what the court was trying to do was, was trying to turn over -- is turning over any material which related to Umans while at the same time protecting from disclosure a material which related to other accountants individuals who hadn’t been -- who had been indicted and which were -- and who were awaiting trial.
Now the issue thus, is whether this peripheral matter has to be turned over.
We submit that this is an area in which the court has discretion.
In other words, the court has discretion at trial to cut off all examination as to other acts of bribery.
The court doesn’t have to allow a defense counsel to get into the -- to allow him to cross-examine upon -- and try to impeach a witness with other acts of misconduct not amounting to criminal conviction.
But here the court, the court did allow this -- did allow these witnesses to be examined concerning these other bribes, but what the court didn’t turn over and properly didn’t turn over was the particulars.
In other words, he didn’t turn over the defense's statements which said that on a particular day involving a particular tax return, the particular accountant who may have been awaiting trial on a separate indictment paid the agent a particular sum of money.
We don’t think that -- we think the Jencks Act -- this is a type of a material which the Jencks Act meant to keep confidential, especially since it involves what we say is needless disclosure of other people.
Petitioner’s cross-examination wasn’t hampered.
He was allowed to question each of the witnesses as to the various amounts of money they received from other people.
Justice William J. Brennan: Mr. Glazer, were any of the papers turned over to the defense, affidavits or other statements of the witnesses in which they identified receipts of money from other than this petitioner?
Mr. Sidney M. Glazer: Yes, yes that’s right.
Justice William J. Brennan: In other words, there were some documents in which omissions of the petitioner’s name as one who paid the money appears, is that right?
Mr. Sidney M. Glazer: Right, in addition to the grand jury testimony --
Justice William J. Brennan: I mean at the trial?
Mr. Sidney M. Glazer: At the – no, at the trial.
No, the trial turned over grand jury testimony --
Justice William J. Brennan: But you agree or do you –
Mr. Sidney M. Glazer: Oh, sure we agree that --
Justice William J. Brennan: -- that a document in which a name was omitted that there is --
Mr. Sidney M. Glazer: Yes, that’s right and that’s what the court, as I pointed out in the portion of the transcript it’s in page 162 and 163 of the original transcript, it isn’t printed, the court did when he noticed that one of these documents did name either accountants, he did turn over that type of material, and also that there are two other affidavits which name other accountants, don’t name petitioner one as Exhibit 107 involving the witness Ellington, the other one is 128 (a) involving --
Justice William J. Brennan: Does the record show any cross-examination of those witnesses based on the omission of petitioners then?
Mr. Sidney M. Glazer: Well, for some reason the witness Ellington was not cross-examined except with his grand jury testimony just for two pages.
The witness Ryan was cross-examined extensively not only --
Justice William J. Brennan: Including the omission of petitioner’s name from his prior --
Mr. Sidney M. Glazer: Well he had that material.
Now how much use he made of it, he -- I don’t recall, but he had it and I think what he did is he may had it marked as a defense exhibit and it was given to the jury.
Justice John M. Harlan: Going back to the grand jury problem, the Court of Appeals seems to assume that and at least some time ago this might be [Inaudible] If the government use it’s [Inaudible] than the attorney or the prosecutor going in before the grand jury before going to investigate it and a charge to set a [Inaudible]
Mr. Sidney M. Glazer: Well I would have I – in first place I can’t conceive of a prosecutor doing it.
Justice John M. Harlan: How far does [Inaudible]
Mr. Sidney M. Glazer: Well I would say if there was absolutely no evidence, no evidence, I would have trouble with the case.
I would think that’s -- you could find some sort of abuse, maybe the government, this is overreaching by the prosecutor and I think the prosecutor should give the grand jury something.
Justice John M. Harlan: Well if you have trouble with that what would be the criticism probable cause of it?
Mr. Sidney M. Glazer: The what?
Justice John M. Harlan: I say if you have trouble with the hypothetical that I’ve put in you, what is your criticism of the your adversary of probable cause then of being --
Mr. Sidney M. Glazer: Well I think the -- that the -- I have no objection to -- in this case there is a probable cause.
I have -- with the problem I have in the case it seems to me that I don’t see the real need for putting an intervening step with -- in this type of situation.
I think as long as there is some evidence before the grand jury that should be sufficient, because unlike the motion --
Justice John M. Harlan: Well unless I misunderstand you, you say there’s some evidence you have to put some standard as to what form of judgment is declared, either there’s a matter of being provided a power or a matter of -- just a matter of due process.
What is the standard used today?
Mr. Sidney M. Glazer: Well, it seems to me that if there -- well of course, if there’s -- and it seems to me if there’s any evidence, if there’s any evidence before the grand jury that should be sufficient, I don’t think --
Justice Hugo L. Black: What about the standard use in the shuffling in Stanton case where there’s no evidence?
Mr. Sidney M. Glazer: Well it seems to me if there’s no evidence -- if there’s absolutely -- if there’s an absolutely no evidence in that particular situation that’s where I’d say --
Justice Hugo L. Black: That would be a standard then, wouldn’t it, there have to be some evidence?
Mr. Sidney M. Glazer: There have to be some evidence.
Justice Hugo L. Black: I’m not -- I’m just thinking that was an instance in which we had held.
That was the standard and that’s the issue of no evidence at all would take any further.
Mr. Sidney M. Glazer: Well, if there’s absolutely no evidence, I would say that perhaps the indictment should be dismissed, but it seems to me if there’s some evidence and especially in a case -- and of course in this case, I think there’s clear evidence of probable cause.
I don’t think that requires an examination by the court.
But my problem with the no evidence situation is if the grand jury on its own would go ahead and indict and it was an unbiased grand jury and did it on the basis of its own knowledge, I would say it’s a valid indictment.
Where I have trouble is the situation where the U.S. attorney knowing, with knowledge of the law has some evidence, I think the U.S. attorney has a duty to come forward with some evidence and not just say indict so and so.
That’s why it’s a -- in connection with the no evidence case, I think that may not be -- that is basically a problem where I think the U.S. attorney has sort of overreached or perhaps deceived the grand jury.
I don’t think the U.S. attorney should do that.
I think the U.S. attorney should try to give some evidence to grand jury.
However, I think the grand jury on its own decides to indict somebody on its own knowledge, and I think it’s a valid indictment.
Justice John M. Harlan: And you do consider showing out the grand jury your newspaper article and [Inaudible]
Mr. Sidney M. Glazer: Well, of course that indictment will only be valid as I understand the case in the Fifth Circuit, the Cox case which requires its U.S. attorney to sign the indictment.
I can’t conceive of the U.S. attorney signing an indictment in that situation.
Justice John M. Harlan: The U.S. attorney, the grand jury has indicted with a diagram and the U.S. attorney found [Inaudible]
Mr. Sidney M. Glazer: Well, that was the dispute in this case -- in the case involving down the Fifth Circuit where the --
Justice Abe Fortas: What eventually happened in that case?
I remember that did the judge go ahead with the case anyway despite the U.S. attorney’s refusal to sign the indictment?
Mr. Sidney M. Glazer: My recollection is when that case went up in the Fifth Circuit, the Fifth Circuit said -- it had said they couldn’t proceed with the trial, that the indictment required a signature of the U.S. attorney.
Justice William J. Brennan: Mr. Glazer, may I just ask you before you sit down, I gather this, the probable cause standard is the standard that staged a preliminary hearing to bind over to the grand jury, isn’t it?
Mr. Sidney M. Glazer: Right.
Justice William J. Brennan: And I suppose it’s still true, it used to be when I was in the practice that it’s not often that the grand jury goes off on its own?
Mr. Sidney M. Glazer: Right.
Justice William J. Brennan: Ordinarily the grand jury receives only that which the prosecutor presents, isn’t it?
Mr. Sidney M. Glazer: That’s correct.
Justice William J. Brennan: So in this case, it doesn’t really involve an issue of what would be the case if the grand jury went off on its own?
Mr. Sidney M. Glazer: Correct.
Justice William J. Brennan: Here, we’re really concerned with what should be the case when the government, U.S. attorney, comes before the grand jury just as it would be the U.S. attorney who would come before the commissioner in preliminary hearing, isn’t it?
Why should we have any different test over it?
Mr. Sidney M. Glazer: Well it seems to me that the problem you’re faced unless you’re going through the change -- it seems to me that the traditional notion of the grand jury was that the grand jury could act on its own and --
Justice William J. Brennan: Yes, well I’d like to lay that aside a moment.
Mr. Sidney M. Glazer: Sure.
Justice William J. Brennan: I’m just wondering where, whereas I think is usually the case, the grand jury never thinks of doing anything unless and as the U.S. attorney, I know they’re exception, but unless and as the U.S. attorney comes in and produces witnesses and suggests that this is an indictable offense.
I don’t think grand juries ordinarily act, do they?
Mr. Sidney M. Glazer: Correct.
It’s a rare grand jury where it’ll act on its own, but if the --
Justice Byron R. White: But when they do act and indict, I assume that the -- you must assume that the grand jury thought there was sufficient evidence on which to indict presented by somebody, and if the only person who presented it to them was the U.S. attorney, why at least think that the evidence before them is sufficient and sufficiently reliable on which to indict?
Mr. Sidney M. Glazer: That’s correct.
I think there’s a protection which we can overlook in the fact that it’s not one of the grand juries, not one person.
The grand jury takes 12 people and the grand jury doesn’t sit permanently.
You have a constant change over in grand juries, so you don’t have a situation where you have an arbitrary elected official who might be doing something.
Here’s a grand jury which been sitting for a short span of time then it takes 12 people have to go haywire and not just one, and to have --
Justice William J. Brennan: Well there isn’t any doubt that grand juries often will refuse to indict?
Mr. Sidney M. Glazer: Not the --
Justice William J. Brennan: However persuasive the U.S. attorney may be that this is an indictable case.
Mr. Sidney M. Glazer: That’s often --
Justice Abe Fortas: For one point of view, this might be said that upon revealing this here is an allegation of prosecutorial abuse, abuse by the prosecution and that the prosecution obtained an indictment from a grand jury in such a way in and in such circumstances as to result in invalidation of the subsequent conviction.
I suppose that’s one way of looking at it?
Mr. Sidney M. Glazer: Yes sir.
Justice Abe Fortas: Which would carve out the question of what the grand jury can do acting on its own.
Mr. Sidney M. Glazer: But as we point out in that brief, we don’t think there’s any abuse from this situation --
Justice Abe Fortas: Well that’s the next question.
I’m just talking about it theoretically and then let it collect.
Justice Hugo L. Black: What’s the general rule in the states that provide for information to be filed by the prosecuting attorney?
Mr. Sidney M. Glazer: Well one of the state that I’m very familiar with Missouri is an alternative.
The prosecutor -- the prosecuting attorney has an alternative in every case.
He can either proceed by information.
If he proceeds by information then the defendants --
Justice Hugo L. Black: Is that information subject to attack?
Mr. Sidney M. Glazer: Well if he proceeds by information, the defendant is entitled to preliminary hearing, or if he proceeds by indictment, the indictment eliminates preliminary hearing.
In other words, he has an alternative, but in the -- as to a state where the prosecutor just has the right, you know, going in a case by information, I’m not sure whether the procedure would require a preliminary hearing or not or whether the -- just the oath of the prosecutor would be sufficient and would --
Justice Hugo L. Black: But I understand that they got a number of states whose constitution --
Mr. Sidney M. Glazer: Provide.
Justice Hugo L. Black: -- provide simply for the prosecution to trial proceeding by information in any kind the case, felony or misdemeanor, am I wrong on that?
Mr. Sidney M. Glazer: I’m sure that’s a practice and I -- it’s the English practice as I understand it now also that --
Justice Hugo L. Black: And when he does, that’s final, is it not?
In other words that can not be dismissed by some attack on the ground that he didn’t know anything about it, or is it, it is the rule?
Mr. Sidney M. Glazer: Well I don’t know what the rule is.
I just know that in one state, the rule is when they proceed by information the defendant is entitled to a preliminary hearing.
Now whether --
Justice Abe Fortas: What are the issues?
Excuse me, what are the issues of preliminary hearing?
Mr. Sidney M. Glazer: Where there is probable cause, probable cause is the issue.
Justice Hugo L. Black: Just like the preliminary held in many of the states before you can arrest a man and hold them over to the grand jury --
Mr. Sidney M. Glazer: Correct, correct.
Justice Hugo L. Black: -- hold them over to see if it’s probable cause --
Mr. Sidney M. Glazer: And I think that’s --
Justice Hugo L. Black: But that’s not in the information stage as I understand.
My understanding is the information, they simply file an information and that’s the end of it.
I may be wrong on --
Mr. Sidney M. Glazer: Well I’m not -- I just know the -- I think the English procedure they file an information and there’s a preliminary hearing, a very extensive preliminary --
Justice John M. Harlan: -- why they’re trying to do it --
Mr. Sidney M. Glazer: That’s right.
Justice Hugo L. Black: They have in some of the states to view, as I recall it, one or two hasn’t it?
Mr. Sidney M. Glazer: Sure, that’s correct.
Chief Justice Earl Warren: Mr. Brodsky?
Rebuttal of Edward Brodsky
Mr. Edward Brodsky: Nothing further Your Honor.
Chief Justice Earl Warren: Very well.