UNITED STATES v. JACOBS

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Argument of Andrew L. Frey

Chief Justice Warren E. Burger: We will hear arguments next in 1193, United States against Jacobs.

Mr. Frey you may proceed whenever you are ready.

Mr. Andrew L. Frey: Mr. Chief Justice may it please the Court.

This case is here on the Court's grant of the Government's petition for writ of certiorari to review the decision of the United States Court of Appeals for the Second Circuit, suppressing respondent's Grand Jury testimony as evidence in the trail of a two-count indictment, charging her with transmitting a threat in interstate commerce and with perjury before the Grand Jury.

Respondent was employed as a skip tracer by several bill collection agencies that subsequently became a focus of Grand Jury investigation.

On one occasion she called the brother of an individual who had incurred gambling debts on a junkets of Puerto Rico and had not paid them.

In this call, which unbenounced to her, the brother recorded, she threatened the debtor's life if the debt were not promptly paid.

In June 1974, respondent was subpoenaed to appear and did appear before a Grand Jury, being conducted by an attorney from the Department of Justice Strike Force, who was specially assigned from Washington for the purpose of conducting an investigation that encompassed the respondent's activities.

Respondent, when she appeared, was given advise of her privilege against self incrimination and was also advised that she could consult with an attorney if she felt the need to do so at any time and was warned about the seriousness of the offense of perjury and the penalties therefore.

She was not expressly told that she was a target of a Grand Jury's investigation.

During the course of the questioning of respondent about her employer's business and her own activities therein, the government attorney read to her from a transcript of the threatening conversations had with the debtor's brother and she unequivocally denied having made any of the statements contained therein.

She was not told of the existence of the recording of this conversation.

Respondent was thereafter indicted for the substantive threat and for the false testimony to the grand jury denying the threatening conversation.

She moved the District Court to suppress her Grand Jury testimony, relying on the lower court decisions in United States against Mandujano and United States against Washington which in one instance had suppressed Grand Jury testimony to for failure to give full Miranda warnings and in another for failure to target warnings to a putative defendant.

The government appealed and the Court of Appeals affirmed the suppression ruling, although on grounds of supervisory power, rather than on the basis of any finding of constitutional violation.

In reaching its decision, the court followed a rather unusual practice of making written inquiry of all United States Attorneys in the Circuit to learn their policies with regard to administration of target warnings and having been advised that it was their policy to administer such warnings, the Court upheld the suppression for the stated reason of achieving uniformity in the criminal procedure in this Circuit.

The United States petitioned this Court for writ of certiorari which was granted and case was remanded to the Court of appeals for reconsideration in light of this Court's reversal in Mandujano.

On remand, the Court of Appeals adhered to its decision.

It found no occasion to depart from its prior ruling because of this Court's decision in Mandujano, since the suppression ruling in that case had been predicated on a supposed violation of the defendant's constitutional rights, whereas here, the Court found that none of respondent's rights had been violated.

The court thought its suppression order was justified as a remedy to ensure that various prosecutors follow uniform practices.

In a striking self contradiction, the court stated that its remedy was a one time, ad hoc sanction, intended to let our citizens know that equal justice is available to all.

The court indicated that it felt comfortable in pursuing its didactic purpose of teaching the prosecutor a lesson in this case because in its field, the prosecutor was not entitled to the luxury of a perjury count as to which the court was effectively pardoning respondent when they remain the substantive count upon which prosecution of respondent was still possible.

Justice William H. Rehnquist: What does the word didactic mean?

Mr. Andrew L. Frey: I assume it means educational, teaching.

I mentioned that the substantive prosecution was impaired, although to a far lesser degree by the suppression of respondent's -

Chief Justice Warren E. Burger: This then I take it as the educational function of the Court of Appeals as distinguished from its supervisory function?

Mr. Andrew L. Frey: Well, I -- I suppose I view the two is being --

Chief Justice Warren E. Burger: Ramps the two, conjoin at times.

Justice Thurgood Marshall: If it used the word “supervisory,” instead of that it still would be here?

Mr. Andrew L. Frey: We would be here, of course.

The Falco (Ph) question in this case is the power of Court of Appeals to apply the remedy of suppression to a defendant's Grand Jury testimony as a means of teaching the executive branch the lesson that it must achieve uniformity of prosecutorial practices and secondly assuming some such power exists, the soundness of Court's exercise of that power in the circumstances of this case.

I think it is best if I begin by making clear by what we are not contending and what the Court need not decide in this case.

First, we are not contending that uniformity of prosecutorial practice is undesirable.

It is the hope of the Department of Justice that similarly situated persons will be to the extent feasible, similarly treated by Federal prosecutors.

Although, I think it must be recognized that there are so many different individual prosecutors handling so many different matters of such complexity that actual uniformity in practice necessarily remains a goal.

Justice Byron R. White: (Inaudible)

Mr. Andrew L. Frey: Excuse me?

Justice Byron R. White: A man from Washington comes --

Mr. Andrew L. Frey: Well, the Court of appeal was disturbed by that aspect of the case, that is true.

Second we are not here today to argue that target warnings are undesirable as a matter of policy.

Indeed the Court of Appeals itself did not assert in this case that target waring should be given.

It said that the Department of Justice would be equally free to require target warnings or to prohibit them if it wished to as long as the practice followed was uniform.

Thirdly this Court need not decide whether the courts generally would have the power to adopt the rule prospectively which would require the administration of any particular kind of warnings in the Grand Jury.

Well, I have serious doubts that such warn -- that such rules would be properly promulgated by a panel of a Court of Appeals.

The issue here is not the power to establish such rules as the part of the court's control over the Grand Jury.

Justice Thurgood Marshall: Of Course Mr. Frey there is quite an oversupply from U.S. Attorneys on the Second Circuit.

You know how many they are there?

Mr. Andrew L. Frey: I am not sure how many they are at the moment.

Justice Thurgood Marshall: But a quite a few, I mean, need not deal then somebody did not know about?

Mr. Andrew L. Frey: I do not believe that the three judges on this panel included any former U.S attorney.

Justice Thurgood Marshall: Talk about the whole Court?

Mr. Andrew L. Frey: Well, I am not -- I will get to somethings that I think they did not understand a little later in my argument [Laughter] about the prosecutorial practices.

In any event, I was trying to make the point that the Court does -- does not have to decide here the question of the existence of power as an aspect of the power of the courts over the Grand Jury.

Rather the question here is the power of the courts to impose the remedy of suppression in the absence of any court made or statutory rule that the prosecutor has violated.

The suppression of respondent's Grand Jury testimony in this case represents, I submit, a wholly unprecedented exercise of judicial supervisory power and we have educed in our brief a number of independent grounds for concluding that this exercise of supervisory power was erroneous.

Now, first of all no one disputes that the judicial supervisory power maybe circumscribed by Congress.

I do not think that the court disputed that.

In part one of our brief, we have argued that two statutes, rule 402 of the Federal rules of evidence and 18 U.S.C 3501, deprive the courts of the remedy of suppressing relevant evidence, especially if the evidence consists of a statement by the defendant.

I intend to rely on our brief with regard to these points and pass on here to our arguments that apart from any statutory restrictions on the supervisory power, the Court of Appeals' exercise of it in this case was improper.

Now first, we can compare, I think what the Court of Appeals did here with any other past exercise of supervisory power by this Court or indeed by other Federal Courts of Appeals and we can see that there are some striking differences.

The case is on which respondent relies and on which the court relied, by and large involve the exercise of supervisory power over the conduct of the trial itself.

That is with regard to such matters as voir dire questioning of prospective jurors, conformity to Rule 11 proceedings, regularity in sentencing practice, rules of evidence, rules regarding instruction of juries, the Allen Charge, those kind of matters.

We do not for moment question that these kinds of rules are -- are inherently necessary as a part of the supervisory powers of the Appellate Courts over the conduct of the District Courts and except of course to the extent any statute imposes restrictions.

We do not think that helps to justify the result that the Court of Appeals reached here.

The only significant case it seems to me which involves something, outside of the trial context itself, is the McNabb case which of course is the famous instance in which the police violated the defendant's rights for a prompt presentation to a magistrate and the court found that that violation justified the application of an exclusionary rule, excluding the defendant's confession.

Now, there are a couple of important differences between McNabb and the present case.

The first and most significant is that the probable basis for the court's power in McNabb which was the power to make common law rules of evidence in accordance with reason and which was codified and formed Rule 26 of the Federal Rules of Criminal Procedure, has been abolished with the adoption of the Federal Rules of Evidence which is a fresh codification and which I think takes away the supervisory power over evidence that may previously have existed.

Second distinction between McNabb and the present case is that in McNabb there was a flagrant violation of an existing statutory right of the defendant and it was as a means of enforcing this right of the defendant that the Court acted.

Now, here there was no right.

The respondent had no right to a target warning.

According to Court of Appeals, there was simply an irregularity in practice and departure from a informal departmental or U.S. Attorney policy involved, we think that is a very substantial difference from McNabb.

I respectfully suggest that the the assertion of supervisory power here over prosecutorial conduct that did not violate respondent's constitutional or statutory rights is undisciplined and is intrusive on the proper allocation of judicial and executive responsibilities.

What the Court of Appeals was doing here was in fact exercising a chancellor's foot veto over law enforcement practices of which it disapproved, something that this Court in turn specifically --

Chief Justice Warren E. Burger: You include in that -- you include in that Mr. Frey that -- that it trespasses on the rule making power of the -- of this Court through the judicial conference processes?

Mr. Andrew L. Frey: Well --

Chief Justice Warren E. Burger: Would that -- in other words, would such a rule be an appropriate rule as part of the Federal Rules of Criminal Procedure.

Mr. Andrew L. Frey: If -- well, the rule that target warnings must be administered, if that were the rule, it would be perfectly appropriate rule, preferably adopted by an Act of Congress or by amendment to the Rules of Criminal Procedure which involves this Court, the advisory committee and the concurrence of Congress.

The rule that prosecutor must act uniformly, we do not care how, as long as its uniform, it seems to me would be difficult to include in the Rules of Criminal --

Chief Justice Warren E. Burger: No, I am speaking of the specific rule, which was laid down by supervisory power here, is that within the rule making power of the -- this Court through the judicial conference under the statue?

Mr. Andrew L. Frey: Yes.

Well, I have no difficulty if such a statute were adopted through the rule making power of this Court.

I would have no difficulty with adherence to that statute, although there would still be a question as to the proper remedy for a violation --

Justice Thurgood Marshall: But there had to be a statute?

Mr. Andrew L. Frey: Well, I am not -- I am not insisting here that there would have to be a statute.

I think it is possible that the District Court could have even -- could adopt a rule with regard to the administration of the Grand Jury.

Justice Thurgood Marshall: You have given up too much, you are not going to give prosecutorial discretion, are you?

Mr. Andrew L. Frey: Well, there are many areas in which prosecutorial discretion is -- is circumscribed by rules, the Brady rules --

Justice Thurgood Marshall: I am talking about --

Mr. Andrew L. Frey: -- the Jenk's act --

Justice Thurgood Marshall: Yes, but not by the Court without the benefit of rule or statute, you would not want (Inaudible)?

Mr. Andrew L. Frey: Well, I am -- I am not sure for purposes of this case certainly, I am prepared.

I do not think the Court need decide whether let us say the District Court could adapt such rule or whether even the Judicial Council of this Circuit Acting under section 330 could adopt such rule as has been done in connection with Speedy Trial Rules.

These are I think difficult philosophical questions that are not all necessary to get into to resolve this case.

Justice John Paul Stevens: But Mr. Frey we are talking about a rule requiring of giving target warnings or a rule required that evidence be excluded if target warnings are not given?

Mr. Andrew L. Frey: Well, I think that is -- that is a very pertinent distinction as I suggested in response to the Chief Justice.

Even if there were such a rule it would not follow that the remedy would be exclusion.

Justice John Paul Stevens: But in your view as I understand your brief is that the Court would not have the power to exclude the evidence even if it had adopted such a rule.

It could not discipline, it could not enforce the rule by using the inclusion to power to exclude evidence.

Your reading of the rule --

Mr. Andrew L. Frey: Well, our -- our brief is -- is essentially premised on the non existence of any such rule outside of whatever rule one might discern in -- in prosecutorial practices.

We would have a different case if there were a rule adopted either in -- in the rules of Criminal procedure or adapted by a particular District Court.

Justice John Paul Stevens: No, but do -- I just want to be sure I understand your brief.

Even assume that the District Court or a Court of Appeals or this Court adopted a rule saying prosecutors must give target warnings, it would not follow from that, that we could adopt a further rule saying that if target warnings are not given, evidence may be excluded?

Mr. Andrew L. Frey: It would not necessarily follow --

Justice John Paul Stevens: In fact your position is that we could not adopt an exclusionary rule to enforce such a prosecution --

Mr. Andrew L. Frey: Well, I am not -- I am not sure that we suggest that it could not be done.

Justice John Paul Stevens: But your argument is it all the relevant evidences is admissible?

Mr. Andrew L. Frey: Oh you mean under the -- under the Statutory?

Justice John Paul Stevens: Yeah yeah.

Mr. Andrew L. Frey: I am sorry I was --

Justice John Paul Stevens: Your argument on the Statute is, we could not police the rule in effect, even though we could adopt?

Mr. Andrew L. Frey: Well, if it were adapted by the mechanism suggested by the Chief Justice it would be by Statute or by rule adopted under statutory authority.

Justice John Paul Stevens: Yes but if the rule adopted is merely one saying the prosecutor must give target warnings, that still would not enable a court to exclude the evidence -- include evidence obtained by baloney (Ph) of target warnings.

Mr. Andrew L. Frey: Well, I -- I think that in so far as the rule is based on our Statutory arguments or the issue here is based on our Statutory arguments, you would have to find a rule that was violated and we were not suggesting that if a constitutional right or a statutory rule or a rule adopted by this Court pursuant to statutory authority had been violated, the Court would necessarily be without the power as in McNabb to adopt some kind of an exclusionary rule.

We think it should not even then because --.

Justice John Paul Stevens: Well, how could we have the power if the statute means if you say it means.

If I read your brief, you are saying Rule 402 now deprives all Federal Courts of any power to adopt in exclusionary rule, excluding relevant evidence unless the rule, the evidentiary rule is compelled by statute or the connectivity.

May be I misread your brief, but I think that is what your arguing?

If that is not sure argument, I don't understand your Rule 402 argument, I hope you will explain it to me?

Mr. Andrew L. Frey: Well, I think you are probably right that is our, we have a number of steps however, even my point is that, even if you were to disagree with the conclusion that Rule 402 was an absolute bar, it seems to me that must -- that Rule 402 requires the admission of evidence unless there is an underlying violation of constitution, statute.

In other words, Rule 402 does not, I think overrule the Weeks, Mapp exclusionary rule.

I am not suggesting that it does that.

Justice John Paul Stevens: Let me just pursue it with one further question because I really want to be sure I understand it.

Assume an identification problem and say the way it did those cases where there is a question of whether evidence should be excluded because identification procedure in the statute was improper, a lineup case.

Now, is it the Government's view that, that evidence could not be -- the Federal Courts could not adopt an exclusionary rule for the Federal system that is different from the constitutional rule that might impose upon the states?

I so not know if I make my question clear?

Mr. Andrew L. Frey: Well, I think that is right because there is a specific statute covering lineup identification, I assume you are not --

Justice John Paul Stevens: Well, I am just saying if any example is does the Court have any discussion with respect to supervising Federal Courts that is different in terms of admissibility of evidence, that is different from its power over state court?

Mr. Andrew L. Frey: I mean apart from all of the desecration that is provided in other parts of the Federal Rules of Evidence such as the desecration to weight prejudicial affect against prohibitive value and that the desecration in the hearsay exception to, I mean, there is much desecration which is vested by the evidentiary code in Courts to make evidentiary rulings.

We do not question that --

Justice John Paul Stevens: Does that desecration include the power to exclude because it wants to, in affect require the police to follow a certain a practice or something like that?

Mr. Andrew L. Frey: No I do not think it does.

Unless constitutionally -- unless Congress could not constitutionally abolish it.

Chief Justice Warren E. Burger: If we read, follow too literally the power to enforce exclusion rests exclusively in the constitution or the Congress or through the rule making power and no individual judge and no collection of individual judges could impose such a rule, unless that 402 does not mean what it says.

Mr. Andrew L. Frey: I think that is right.

You would have to find that the -- that the exclusionary rule was derived either expressly or by implication from the constitution, from the statute or from a rule of procedure.

Justice John Paul Stevens: Through all the Rules of Evidence -- all the rules of evidence that the Courts have developed down through the years prior to the codification of the rules have been replaced?

Mr. Andrew L. Frey: I think that is right by the -- by the Federal, by the Court --

Justice John Paul Stevens: No Court is any longer free to follow a rule that it used to follow, if it is inconsistent with the Federal -- with the Federal Rule?

Mr. Andrew L. Frey: If it is inconsistent with the Rules of Evidence, I think that is right.

In fact, the Rules of evidence abolished the part of Rule 26 of the Rules of Criminal Procedure that, that previously had conferred that power on the Courts.

So I do not see that, that is a serious problem.

Justice Potter Stewart: Well then why does not the 402 then invalidate the Rule of Weeks against United States?

Mr. Andrew L. Frey: Well, I -- my suggestion is that if a rule is constitutionally compelled and I assume that the Rule of Weeks against the United states must be constitutionally compelled today in light of Mapp, of course --

Justice Potter Stewart: And not in light of Weeks?

Mr. Andrew L. Frey: I understand that.

Justice Potter Stewart: In light of Alkins?

Mr. Andrew L. Frey: I think Alkins is -- I think Alkins is overruled by the Rules of Evidence.

Justice John Paul Stevens: McNabb?

Mr. Andrew L. Frey: I think McNabb is overruled.

It is separately overruled by 3501.

Justice William H. Rehnquist: 3501 overrules those --

Mr. Andrew L. Frey: But I think --- I mean, we are -- we are relying on two statutes, each of which we suggest independently takes away the power that the Court might previously have had prior to the enactment of those statutes and anyway to return to the question apart from the statutes of what is a proper exercise of judicial supervisory power, I suggest that the chancellor's foot veto that was condemned in Russel was even more inappropriate in the case of supervising a prosecutor's conduct than it is in supervising police conduct in entrapment situations.

On this connection the words of the Chief Justice says, the Circuit Judge in Newman against the United States are singularly opposite and I think worth quoting here.

The Chief Justice said, “An attorney for the United States as any other attorney appears in a dual rule.

He is at once an officer of the Court and the agent and attorney for a client.

In the first capacity he is responsible to the Court for the manner of his conduct of the case, that is his demeanor, deportment in ethical conduct, but in his second capacity as an agent and attorney for the executive, he is responsible to his principal and the Courts have no power over the exercise of his desecration or his motives as they relate to the execution of his duty within the framework of his professional employment.

To say that every United States attorney must literally treat very offense and very offender alike is to delegate him an impossible task.

Of course this concept would negate desecration” and now this is an important point.

“It is assumed that the United States Attorney will perform his duties and exercise his powers consistent with his oaths and while this desecration is subject to abuse or misuse just as his judicial desecration, deviations from his duty as an agent of the executive are to be dealt with by his superiors.”

Now in this case, I want to reiterate that there is no suggestion here of any deliberate impropriety by the strike force attorney or any departure from a statute or rule or even a published policy or policy of general application.

This was at most a negligent mistake on his part and I like to comeback to a point that I mentioned earlier in connection with the wisdom of the courts attempting to enforce upon the prosecutors' policies and that is the court's can often make mistakes that perhaps the executive branch with regard to its own policy would not make.

Page 5A of the appendix to the petition in the Court of Appeals' second opinion in this case, they relied upon the guidelines involving the relationship between the strike force and the United States Attorney and they invoke the guideline that says when a specific investigation has progressed to the point where there is to be presentation for an indictment, the Chief of the Strike Force shall then for this purpose, operate under the direction of the United States Attorney, who shall oversee the judicial phase of the case.

Now I -- my understanding is contrary to the Court of Appeal's understanding, that what that means is the Strike Force Attorney is on his own, until he is ready to present the case for an indict, and that the conduct of the investigation in the Grand Jury is -- is not under the direct control of the United States Attorney in this sense.

It is only when he decides to indict, that he comes to the United States Attorney for the authority and the United States Attorney takes over.

Now I do not rely on that point for anything more than to show that when courts get outside what seems to me to be their legitimate domain, they are in danger of making mistakes.

Justice Thurgood Marshall: And what’s that statement about not forgetting what you know as men?

Mr. Andrew L. Frey: Excuse me?

Justice Thurgood Marshall: Not forgetting what you know as men even though you are judge, you have Lane v. Wilson?

Mr. Andrew L. Frey: Yes.

Justice Thurgood Marshall: Justice Frankfurter, what I am saying, these former prosecutors know what you and I know, that there is always been some tension between Strike Forces and Washington(voice Overlap)the lawyers --

Mr. Andrew L. Frey: Well, I understand -- obviously the court did not like the idea of --

Justice Thurgood Marshall: (Inaudible)

Mr. Andrew L. Frey: No, I do not think so.

No, I of course understand that.

Now, in terms of the didactic effect, our future prosecutorial conduct, I suggest that, what the Court has done here, may have exactly the reverse of what was intended, because what they have done, is they have discouraged to the extent they are relying on what they perceived to be a uniform prosecutorial rule or practice and punishing us for a departure from that practice.

They are encouraging us not to adopt such practices.

Since what is implicit in the decision of the executive branch to adopt the practice like this is the Executive branch's expectation that it can enforce the practice, it can decide, how important that practice is and what sanctions are probability.

Chief Justice Warren E. Burger: Is there anything that prevented Attorney General of the United States from repealing and revoking that practice in the Second Circuit or any other U.S. Attorney's office tomorrow?

Mr. Andrew L. Frey: No, he -- he of course could do so.

I think it's more likely that he would do just the opposite and then possibly require target warnings.

As a matter of practice, but not -- not with intention that the courts can --

Chief Justice Warren E. Burger: I was thinking purely of power --

Mr. Andrew L. Frey: Yes, he has the power, the Court of Appeals did not contest that power.

Chief Justice Warren E. Burger: And he allows, the Attorney General has traditionally allowed variations in practices among various districts.

In order to encourage experimentation, is that not so?

Mr. Andrew L. Frey: That is so and it seems to me that is one permissible approach that this not a matter in which there is any external requirement that there be a uniform rule or that it is so important, that the court should justify in stepping in and saying there has to be --

Chief Justice Warren E. Burger: The Second Circuit, at least at one time or perhaps the Southern District exhibits all Grand Jury evidence which very few of any other districts do, is that still so?

Mr. Andrew L. Frey: I am not sure --

Chief Justice Warren E. Burger: Not material, but I merely suggest that, that variations are --

Mr. Andrew L. Frey: No, there are variations.

I wanted to make two more points very briefly, if I may before my time expires.

One is that, to compare the exclusionary rule which the court has an effect applied in this case with Fourth Amendment exclusionary rule and to point out that there is some significant differences here, the most important is that in Mapp against Ohio the court said in effect, we have no way to control the conduct of the police.

The only way we can make the police respect people's constitutional rights is by imposing the sanction that we have at hand and that sanction is exclusion of evidence and we hope by the employment of that sanction that we will accomplish the salutary objectives of -- of conformity of police conduct to the requirements of the law.

Now, in this case we are dealing with prosecutors.

If the court announces a rule that Target warning should be given, if it feels that is appropriate and then let us assume it has the power, what reason is they had to suppose that prosecutors will deliberately violate that rule which such consistency that exclusion of evidence is necessary or that if they do violate that rule, the court does not have in its hand a simple remedy of direct discipline against the prosecutor.

So the situation is very different.

In closing, let me point to what seems to me be the quintessential irony of the Court of Appeals ruling here.

In its zeal to ensure uniformity of prosecutorial practices, the court has indicated that it will engage in apparently sporadic half-hazard imposition of penalties on prosecutors, not in all cases, under some identifiable standards, but from time to time, when it feels it is necessary to teach the prosecutor a lesson.

They sought to arm themselves with a sword of Damocles to wheel as they wish from time-to-time.

In affect equal justice in the Courts is forsworn in favor of supervision over the prosecutor's activities.

The supervision that ought in principle to be exercised by the executive branch itself.

Justice John Paul Stevens: Mr. Frey may I ask one question before you sit down?

I understand of course you challenge the exercise of the discretion in this case and you rely on Rule 402 of the Federal Rules of Evidence in Section 3501, on admissibility.

If we were to assume for the moment that 402 and 3501, neither those was controlling, would you concede that apart from those restrictions, the Court of Appeals had the power to what they did in this case?

Mr. Andrew L. Frey: Well, I -- let me put it this way.

The Court of Appeals whether it had the power is a matter for review by this Court.

This Court can -- I do not know, I mean, as a philosophical matter, as this court says it is improper to apply the remedy of of suppression under these circumstances, I do not know whether The Court of Appeals has the power in some sense to do that or not.

Chief Justice Warren E. Burger: In other words, whatever their supervisory power maybe is subject to the supervisory power of this Court?

Mr. Andrew L. Frey: Definitely and if you say they cannot do it, then in the sense they do not have the power.

Thank you.

Chief Justice Warren E. Burger: Mr. Seidman?

Argument of Irving P. Seidman

Mr. Irving P. Seidman: Mr. Chief Justice and if it pleases the Court.

Mr. Frey has most reasonably stated the underlying factual pattern in this case.

However, whether it would be from the standpoint of the legal issues or the philosophy underlying the legal issues, I believe that the thrust of the argument has failed to address the problem.

I do not believe this case involves an instance where the Appellate Court seeks to direct the prosecutor in what he must or must not say and I believe the underlying opinion of the Court of Appeals expressively states that, if the prosecutor wishes or the Attorney General wishes they need not as a law is presently constituted, give any type of warning.

I believe what the Court of Appeals was concerned about and what I was initially concerned about as defense counsel in this matter, who brings ten years of having been a prosecuted as a background to this type of case, was the conduct that would be taking place before a norm of the court to with the Grand Jury.

I heard many questions asked to Mr. Frey, which seem to address the problem as to whether or not this was a chancellor's veto of the executive branch of the government concerning what was or was not to be said to a witness who was a prospective defendant before a Grand Jury.

I submit to you that, that is not the question, that is not thrust of the Court of Appeals decision in this case.

I believe what the Court was concerned about and is concerned with and properly concerned with, is that the Grand Jury which is a norm of the court and not of the executive branch of the government was being used in a manner that it determined, required its action within the scope of its supervisory power, and again I wish to reiterate that the court in its second opinion as well as in its first opinion indicated that the prosecutor could adopt any policy he wished, concerning the granting of any warnings to any prospective defendant.

So therefore, to seek to have this case revolve around a contest between the exercise of executive power and the exercise of judicial power, I believe begs the question and fails to identify it properly.

Chief Justice Warren E. Burger: But however you define it, that constitutes a command to the United States Attorney and the -- all the United States Attorneys in the Second Circuit, does is it not?

Mr. Irving P. Seidman: I respectfully believe that it does not.

Number one, Your Honor, this Court --

Chief Justice Warren E. Burger: By what -- it imposes a sanction if he does not -- if he does not comply with the matter they ordered, does it not?

Mr. Irving P. Seidman: It only impose the sanction in this case Your Honor.

I believe the court was explicit in its articulation of the legal principle concerning the exercise of it's supervisory power that a) this was not a general principle to be applied in all cases, that it had considered particularly this fact pattern which involved the situation of the court's Grand Jury the people's Grand Jury, not the prosecutor's Grand Jury, sir and what takes place before and Mr. Justice Marshall indicated that many members of the bench that related to this problem maybe gentlemen who have prosecutorial background and I believe that -- if that is the case that was important to the consideration of this case because any jurist, I submit most respectfully, who has not logged time in a Grand Jury as a prosecutor, does not know the omnipotent power that a prosecutor has in that room, concerning the witness and what takes place to it.

I submit to this Court that as a practical matter, the Grand Jury is a non-functioning body which constitutes a rubber stamp for the prosecutor.

Therefore, what control if any, can the court have over the conduct of prosecutors before Grand Juries when the court is not there.

The only one who is before the Grand Jury happens to be the 23 jurists who are fundamentally mute in the process that ultimately evolves other than determining, hopefully whether an indictment is warranted, the prosecutor and the witness.

As a matter of fact, I do not believe that there is even a statutory requirement that all of the colloquy that takes place in a Grand Jury be transcribed, and therefore, very often as maybe the case, in this case the colloquy that does takes place is selected, assumed for good reason by the prosecutor and that is what appears before the Court.

Justice John Paul Stevens: Are notes taken of everything, whether they are transcribed or not?

Mr. Irving P. Seidman: I believe not, Your Honor.

Justice Thurgood Marshall: It is just the Southern District?

Mr. Irving P. Seidman: No, no.

I am not suggesting.

In the Southern District, there is a transcription, but that transcription begins and ends -- this is Eastern district, that transcription begins and ends, when at the direction of the prosecutor there is that direction.

But I believe that is a side issue and just merely to give the court the background, if it needs as to what does and does not take place in the Grand Jury.

The question here is as to what motivated this Court to exercise its supervisory power.

Justice William H. Rehnquist: Does it really had anything to do with the Court's concern about possible prosecutorial abuse of the Grand Jury.

Since as I read, Judge Griffin's opinion, so long as they do the same thing in every district, it does not make a difference, what they do?

Mr. Irving P. Seidman: Well, within certain confines, Mr. Justice Rehnquist, I would agree with that statement.

Justice William H. Rehnquist: And the reversal here was not based on the Court of Appeals' determination that this particular thing done by the Grand -- the U.S. Attorney was improper, had it been done uniformly?

Mr. Irving P. Seidman: What the Court did say sir, is that if the United States Attorneys in this circuit or the Attorney General of the United States wished to adopt a rule that no target warnings were to be given that since there is no constitutional or statutory requirement that it would be possible for them, not to give that type of warning.

Justice William H. Rehnquist: So, it -- it seems to be, it is hard to -- hard to support the Court of Appeals' decision on the concern you expressed for abuses that go on in the Grand Jury Room, since the Court of Appeals said that the U.S. Attorneys, take your choice, but just make one choice or the other and apply it uniformly?

Mr. Irving P. Seidman: I would disagree with that statement for the following reasons Your Honor.

I think, what the Court was seeking to do was to ensure to the citizen who is called before the Grand Jury, since, I submit to the Court that fundamentally that is a coercive in custodial situation.

Although, this Court has previously ruled under Mandujano and its progeny that there is no constitutional safeguard similar to Miranda that apply, that there are and there is a situation here to be dealt with and what the Court was concerned about is that given the large activity in this Circuit by the Strike Force Attorneys and the need that the application of the law or the application of the Grand Jury to a witness not vary depending upon the personality of the prosecutor, that there should bean adherence by the Strike Force Attorney to the universal concept of giving target warnings in the Second Circuit and the Court cited back to a decision written by Judge McDiner (ph) in US v. Scully some 23 years ago.

Justice William H. Rehnquist: It was not -- the Court of Appeals' opinion was not based on the requirement that -- that target warnings be given, but on the basis that whether they be given or not the practice ought to be uniform?

Mr. Irving P. Seidman: There might have been another vehicle which would have -- could have caused the Court to come down with a similar type decision under different set of facts if that is what the court is asking me where there was a dichotomy within the same circuit as to what prosecutors are doing.

Chief Justice Warren E. Burger: Well do you -- do you suggest that uniformity was not the only, was not the fulcrum of Judge Griffin's decision here, Second Circuit decision?

Mr. Irving P. Seidman: Uniformity was not the sole issue here, I believe that -- in addition, I believe the language of the decision seem to concern itself with the aspect of fairness --

Chief Justice Warren E. Burger: Let me read just one paragraph then.

“In the interest of uniformity in criminal prosecutions within the Circuit which is fundamental to the administration of criminal justice, we affirm the dismissal on count two pursuant to our supervisory function.”

Now is not that the -- is it not the basis on which the Second Circuit decided the case?

Mr. Irving P. Seidman: That is the basis under which the Second Circuit decided the -- the case accepting there is other language in the case that would indicate that it was not uniformity limited to the issue of target warnings.

It was seeking to make sure that all witnesses who appear before a Grand Jury receive equal treatment and that the public be aware of that Your Honor.

Chief Justice Warren E. Burger: let me -- let me test this out on you then. Do you agree with Mr. Frey's response to a question from the bench that the Attorney General of the United states could tomorrow instruct all US Attorneys in Second Circuit to go back to the general, usual practice of giving a no target warnings?

Mr. Irving P. Seidman: If reading the Griffin opinion in the second decision, I would say yes.

Chief Justice Warren E. Burger: That he can?

Mr. Irving P. Seidman: That the Attorney General or the United States Attorney's in the Second Circuit could uniformly change the warnings that would be given to targets that they presently adhere to.

Whether I -- whether that could be attacked for other reasons, I do not believe is a matter before this Court at the moment, but --

Justice Thurgood Marshall: And that the conviction would be valid?

Mr. Irving P. Seidman: Well as I --

Justice Thurgood Marshall: Because I do not answer that probably do I want to say we then release this woman or retry?

Mr. Irving P. Seidman: Well Your Honor, if -- if I understand Mandujano and its progeny --

Justice Thurgood Marshall: I do not understand that the Court of Appeals at the Second Circuit said that this rule could be changed tomorrow morning?

Mr. Irving P. Seidman: Provided -- provided you accept the concept that Mandujano avoided the requirement of constitutional giving of -- of this type of warning and there is no statute that requires it.

If there is no constitutional requirement, there is no statutory requirement Your Honor then the only source of the target warning in the Second Circuit is a matter of practice adopted within that circuit.

Justice Thurgood Marshall: Then I have great problem, then this just involves one person and no precedential value at all?

Mr. Irving P. Seidman: I would say that this case involves one person Your Honor and I believe Court of Appeals had a problem with that and also seem to indicate and seem to -- in response to Mr. Justice Stevens concurring opinion, the first time this matter was here, it clearly stated that this is not a general exclusionary rule and to talk about this decision in general exclusionary rule terms does not really identify what is said in the circuit opinion.

I think what -- what is being argued here is whether or not a) Does the court have this type of supervisory power and b) Assuming the statutory and ruled arguments aside whether or not the sanction which was imposed here was an appropriate one?

I would submit to the Court, that this Court should not interfere with the supervisory power of the Circuit Court which deals in the everyday problems within the Circuit and I am sure that when it considered this case involving Strike Force Attorneys to come into the Circuit and identifies a prior case where it concerned itself in depth with the relationship of Strike Force Attorneys to the United States Attorney and that was in the Persiko case that the Court of Appeals must have had good reason to feel that in this particular case Mr. Justice Marshall, it would apply the sanction of suppression using the lack of uniform application of warnings under the exercise of its supervisory power.

And it may well be that this is not a rule and I submit that it is not, that establishes from this time on any misstatement by a prosecutor or failure to state something that is customary or habitual, assuming it does not raise to constitutional or Statutory level will be stepped upon by the exercise of supervisory power.

I think the Court went to great length in an attempt to assuage this Court by its language that it was limiting this opinion to this particular case, and getting back to the didactic, it may have felt that this case warranted this action, given the urban environment of this Circuit.

Justice Byron R. White: Are you suggesting as of it precisely the same thing happened next week?

I think Second Circuit would not exclude the evidence?

Mr. Irving P. Seidman: I cannot speak for the Second Circuit, Mr. Justice White, I do not know.

I know what the Second Circuit said in this case and what it said was that it was not establishing an inexorable rule to be applied in each and every case nor was it suggesting that every time a prosecutor made a mistake, concerning accepted practice that it would utilize his supervisory power and impose a sanction of suppression which ultimately results in the dismissal of a count and an indictment.

Justice Byron R. White: Well, suppose they had made such a rule and just announced it, you either do it this way or the evidence will be excluded, if that would and said this is a -- this rule is made under our -- our supervisory power.

You say that situation is not here?

Of course somebody might disagree with you and think that it is.

What would you say about that?

Mr. Irving P. Seidman: I would -- I would compliment the Court and suggest that --

Justice Byron R. White: You do not think it would be -- it would be forbidden by the Federal Rules of Evidence?

Mr. Irving P. Seidman: I believe that the argument posed concerning 3501 has no application to this case.

That the argument proposed by the Government with respect to Rule 402 has no application to this case.

3501 has no application because this is a denial of guilt, therefore, through whatever attenuated concept I do not believe that, that constitutes a confession.

The Court did not deal with voluntariness in this opinion.

Further as to Rule 402, there is no doubt has the Court acknowledged that or relevant testimony evident etcetera is applicable to the case, but if you continue to read on into the Rules of Evidence and if you take a look at the Constitution of the United States out of which flows the inherent power of this Court and the other Federal Courts, I would assume that the Federal Rules of Evidence do not remove from the judges to sit in a courtroom or rule on motions from their discretion.

Justice William H. Rehnquist: You say the -- you say the Constitution of United States from which flow the inherent powers of this Court, do you think that before Congress provided for appeals in criminal cases from the District Courts in 1889 or whenever it was --

Mr. Irving P. Seidman: 1789.

Justice William H. Rehnquist: No, I mean 1889, for a 100 years there was no right of appeal from a criminal sentence in the District Court to this Court, do you think there was some sort of an inherent authority in this Court to review an appeal on those kind of criminal judgments?

Mr. Irving P. Seidman: Well, I do know that the constitution says -- it states that Congress establishes a jurisdiction of the Federal the Court and I am aware of that statute.

However, knowing the creativeness of the mind I would assume the possibly in answer to your question that some learned legal scholars might have developed a theory under our constitution that might have permitted that type of approach by Appellate Courts to criminal law matters.

Justice William H. Rehnquist: Non surfaced in the 19th Century at any rate?[Laughter]

Mr. Irving P. Seidman: Well, our concept of justice did I not change a great deal until 1954 Your Honor, so that may well be true, until then.

However, I am -- I am responding to your question most respectfully and -- and seriously when I state that and I am aware of the fact that the jurisdiction of the District Courts is created by acts of Congress.

Justice John Paul Stevens: Mr. Siedman could I ask you a question please.

You think -- assume we are persuaded by Mr. Frey on the uniformity is not a sufficient interest and uniformity within the circuit is not a sufficient justification for exercising the Court of Appeals' supervisory power whatever it maybe.

Do you think the Court -- this Court now in this case has presented the question whether its supervisory power would justify, apart from the constitution, would justify a rule such as the American Bar Association Standards recommend, namely the target warning all must be given and that therefore we could affirm on the basis that a general rule applicable to the entire Federal system would be appropriate to implement that kind of policy?

Mr. Irving P. Seidman: I believe you could Your Honor and I would applaud it if that is important.

I believe it became extra important that this Court through its rule making and supervisory power deal with the Grand Jury in view of its decisions in Mandujano, Washington and Wang and I so not stand here to suggest that I condone perjury in this argument.

I do not believe that the Court of Appeals condones it and the sole issue before this Court is the exercise of a supervisory power in the context of what takes place before a Grand Jury.

Justice Thurgood Marshall: Mr. Siedman if I understand you correctly we could issue a rule that there must be uniformity among all of the prosecuting attorneys and what they present to a Grand Jury, is that right?

Mr. Irving P. Seidman: I believe that --

Justice Thurgood Marshall: Well, then should not we also say that the judges should be uniform in their sentences, I mean, while we are at it.[Laughter]

Mr. Irving P. Seidman: Well, I think you are asking too much of me.

Justice Thurgood Marshall: Well, I mean while we are (Inaudible) we should get into that?

Mr. Irving P. Seidman: But however, I think getting back to judge -- Justice Stevens' suggestion which I believe is a manageable one and that is given the fact that the American Bar Association has done an extensive study in the criminal justice area, if I understood Mr. Justice Stevens, he was asking whether or not the Supreme Court of the United States should adopt the recommendation of the ABA as is recited in the Jacob's opinion and -- and possibly the the Court of Appeals may have been hopeful that Supreme Court taking the look at that which says if prosecutor believes that a witness is a potential defendant, he should not seek to compel his testimony before the Grand Jury without informing him that he may be charged and that he should seek independent legal advice concerning his rights that is a recommendation by the American Bar Association.

Chief Justice Warren E. Burger: You may not be aware of it, but I was the author of that report and that did not mean we were writing a rule, constitutional dimensions or that we were undertaking to suggest clothing Courts with some kind of supervisory power to impose uniformity.

These reports of the American Bar Association are a statement of what numbers of lawyers and judges thought would be the right way to do it?

Mr. Irving P. Seidman: I agree with the Court and I am not suggesting that I assume that the entire standards as finally adopted should become necessarily the --

Chief Justice Warren E. Burger: We are taking here about the power of the Court of Appeals, not the wisdom of this rule?

Mr. Irving P. Seidman: Well, getting back to the heart of this case, Your Honor, I believe that the Court of Appeals exercised supervisory power not in conflict with Section 3501 or with Rule 402 and the the -- the best thinking of the Court as to why it was doing it, I believe is -- is the quote given in the opinion where the Court, quote is from Judge Friendly in U.S. v. Stepper (Ph) and stated, a reversal with instructions to dismiss the indictment may help to translate the assurances of United States Attorneys into consistent performance by their assistant.

Again, this is a sole limited narrow issue that is before this Court and it does not particularly have relationship solely with respect to target warnings.

It might well be that the Court of Appeals as stated by Mr. Frey, may in some future matter, unforeseen, seek to exercise its supervisory power and I cannot believe that this Court, given the long line of cases, some of which Your Honor has written, Mr. Justice Burger -- Chief Justice Burger has written opinions in, has identified and recognized the supervisory power of the -- of the Court of Appeals to deal with matters within the Circuit and if I may respectfully relate to Mr. Justice Marshall's dissenting opinion in the first Jacob's case, the case has cited therein the Cupp v. Naughten case, Barko v. Wingo, United States v. Thomas, Ristaino v. Ross and Murphy v. Florida, some of which have their opinions from Mr. Chief Justice Burger, clearly acknowledged the existence of propriety of exercise of supervisory powers and at times, the opinions seek to avoid the exercise of Federal Supervisory Power in General -- in State criminal cases, but use of affirmative language which clearly states that, had this been a Federal Court matter that the United States Supreme Court in these instances would have recommended the utilization of supervisory power to justify whatever Court's concept of fair and equal application of the law to all people.

I submit to the Court that the sanction herein, given the argument of the Court of Appeals which I am limited to, is that the defendant in this case is not escaping justice, so therefore, I do not know that the sanction part of this case is that troublesome.

The only issue that I could conceive of as being of importance to the -- and crucial to this is, whether or not this was a reasonable application of the supervisory power and again I wish to reiterate in -- in my closing argument that this not a trial proper that is before the Court.

What is before this Court is the conduct and management of the Grand Jury which is norm of the judiciary and not a norm of the executive branch of Government and I believe it was in this context, the Court Of Appeals so ought to apply its supervisory power not of the prosecutor, which is the effect of what has happened here, but rather as to what takes place before the Court's Grand Jury, before which the prosecutor practices as a part of the executive branch of Government.

And in response to Mr. Justice Stevens' question in his concurring opinion in the first case, it would assume -- it is clear to me that this is not an inexorable rule to be applied in all instances and this Court need not be fearful that with each slip of the tongue in any particular criminal law prosecution that there will be a -- a dismissal or suppression which would result in non prosecutorial happenings with respect to people who should be prosecuted.

And -- and the Court of Appeals clearly stated that it, in deciding this case, it a perjury, but it felt that given the fact that there was another portion of the case to be tried, that it could take this law just so to speak, if the Court wanted to picture it as such and employ the sanction of suppression, and therefore, the dismissal of the indictment which flow there from.

I might -- I might add, getting back to what Mr. Chief Justice Burger stated that given, in closing, given the fact that the citizen's rights before the Grand Jury have been limited by Mandujano, Wang and Washington that consistent with what Mr. Justice Stevens suggested, that possibly and humbly this Court might consider the ABA standards as to what should be the procedure before the Grand Juries which represent throughout the United States, all of -- all of the people.

I thank you.

Chief Justice Warren E. Burger: Do you anything further Mr. Frey?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Just short points, if I may Mr. Chief Justice.

I think in response to Mr. Justice Stevens' questions about the -- whether there is any difference between the Court of Appeals' supervisory power and in this Court's supervisory power, on the context of deciding a case, I do not believe there is any difference.

If either the Court of Appeals has it and you have over sight of that power or I believe neither of you have it.

Now, you do have the power in the context of passing a Rule of Criminal Procedures as the Chief Justice suggested earlier, but that is a totally different procedure in one to which we would not make exception.

Justice John Paul Stevens: But you do not contend our supervisory power is limited to rule making as I understand it, you do not take --

Mr. Andrew L. Frey: Not at all.

Justice John Paul Stevens: You did not take issue with the basic theory of McNabb rule for example?

I mean, you might not approve of the exclusion of the confession, but the Court had the power to adopt such a rule pursuant to its supervisory power in deciding a case?

Mr. Andrew L. Frey: Yes, it did have it previously, yes, but we -- but we think that -

Justice Potter Stewart: That was basically a rule of evidence, was it not?

Mr. Andrew L. Frey: It was a rule of evidence and it was a rule that was predicated on an antecedent violation of another rule established by Statute or Constitution.

Here we have no antecedent violation, and indeed no rule to be violated.

There is not any rule.

We can do what we want and that -- and that brings me to the point, to the extent the Court of Appeals may have been hopeful that this would encourage us to adopt the ABA standards.

This may very well have had exactly the opposite effect by the punishment that was administered in this case because I understand in the Southern District of New York they now have stopped giving target warnings, in order, they have no longer have a policy of giving target warnings, so that they cannot be accused of violating their policy and having suppression administered on that basis.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Print this transcript Transcript: 

Argument of Frey

Chief Justice Warren E. Burger: We will hear arguments next in United States against Estelle Jacobs.

I think you may proceed whenever you are ready now Mr. Frey.

Mr. Frey: Thank you Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit holding that respondent's grand jury testimony was properly suppressed in the exercise of that court’s supervisory powers.

This case arose when respondent was called to appear before a special organized crime grand jury in the eastern district of New York investigating extortion at debt collection activities.

The grand jury was being conducted by a Strike Force attorney from Washington who had been specially assigned by the Assistant Attorney General for the purpose of conducting the investigation.

The government had evidence that respondent while employed as a skip tracer by Frankie Provenzano had other threats against the life of a gambling debtor to that debtor’s bother.

When respondent appeared before the grand jury, she was given a careful explanation of her right not to answer potentially self-incriminating questions and of her right to the assistance of counsel who could be available to her outside the grand jury room.

She was also told about the perjury laws.

She was not told that she was a target of the investigation and during the interrogation she was not told that the government possessed evidence directly contradicting her testimony.

In the course of her testimony she flatly denied the conversation involving the threats to the debtor’s brother.

The grand jury indicted respondent both of the substantive offense of transmitting a threat and for perjury in denying the existence of the conversation.

The district court suppressed respondent’s grand jury testimony on ground subsequently invalidated by this Court in United States against Mandujano when United States against Washington.

The Court of Appeal upheld the district court’s action not on the constitutional ground, but on the basis of its supervisory powers that exercised these powers in response not to any violation of Mrs. Jacobs’ right, but to the irregularity perceived in the failure of the Strike Force Attorney to follow what the court understood to be the uniform practice of the US Attorney’s Office in that district than in the Circuit generally to advise perspective defendants of their status as grand jury targets when they were called to appear before the grand jury.

The Court of Appeals stated that the exclusion of evidence in this case was a one time sanction which it said it was imposing for didactic purposes.

I might say parenthetically that the lesson it meant to teach the government is not altogether clear to us from its opinion.

It explicitly disallows any intent to require of giving of target warnings and while it speaks broadly of some points of uniformity in prosecutorial practice and making equal justice available to all, both commendable goals in which we whole heartedly concur, rather points, its opinion seem quite explicitly to limit its concern to uniformity within a single district and even more specifically to conformity of Strike Force practice to the practice of the United States Attorney's Office.

Chief Justice Warren E. Burger: It would not apply in the Eastern District, only in the Southern?

Mr. Frey: Well, this was in Eastern District.

Chief Justice Warren E. Burger: Well, then it would not apply in the Southern?

Mr. Frey: They would not as far as I can tell from the opinion the Eastern District and the Southern District would not have to follow the same practice.

Indeed, I do not think two Assistant US Attorneys would have to follow the same practice.

What would be required it is not clear, but what they expressly stated is that the Strike Force Attorney must follow the practice of the United States Attorney.

Justice Potter Stewart: Well, was that not the didacticism, if that is the word in tie in, it does not record shed rather strongly at that?

Mr. Frey: Well, the opinion suggests that what they were concerned about was the intrusion of alien Strike Force Attorneys from Washington into New York to conduct business that I think the court felt might have been better conducted by the United States Attorney's office.

Justice Potter Stewart: Then to in conducting that business to deviate from the established practice of the US Attorney’s Office in that district?

Mr. Frey: That was what the Court was concerned about.

Justice Potter Stewart: So (Voice Overlap) opinions about rightly or wrongly, it it not?

Mr. Frey: Well, there are other intimations of broader principles of uniformity in prosecutorial practice generally, so that I am not clear.

I assume at a minimum we can distill the lesson that the Strike Force Attorneys ought to follow the practice of the US Attorneys.

Now, whatever the lesson was that they meant to teach the questions that this Court must decide or essentially too, the first is whether the Federal Courts possess as part of their supervisory powers, the power to exclude evidence as a remedy for pre-trial prosecutorial conduct that the court finds distasteful, but that does not violate the defendant’s constitutional or statutory rights.

The second is assuming that such power exists and at least in some cases was it appropriately exercised?

In this case, we submit that the proper answer to both questions is no and we have advanced several arguments in our brief, any one of which if expect that would compel reversal of the decision of the Court of Appeals.

Before turning to the arguments, I want to inform the Court of a recent development that has at least background interest for this case.

On December 16th 1977, the Department of Justice issued significant amendments to the United States Attorney’s Manual on the subject of grand jury practice.

Under these procedures, grand jury witnesses are now receiving with the subpoena a printed advice of rights form which briefly states the nature of the grand jury’s inquiry and advises them of their self incrimination and counsel rights.

The content of this advice is essentially what was told to Mrs. Jacobs when she was in the grand jury in this case.

In addition, the new internal guidelines direct the targets of the grand jury’s inquiry be advised that their conduct is being investigated for possible violation of Federal Law.

A target is defined in the new manual provision as “a person as to whom the prosecutor has substantial evidence linking him to the commission of a crime and who in the judgment of the prosecutor’s appear to be defendant.”

These new manual provisions represent an effort by the department to achieve greater uniformity of prosecutorial practice in the conduct of grand juries, the same goal that the Court of Appeal sought to foster by suppressing respondent’s testimony.

Now, the fact that the department has instituted these procedures makes this case if anything more important than before in our view.

If the judicial supervisory power is held to extent to suppression of evidence related to prosecutorial departure from uniform practice, there will be a new category of suppression hearings to which criminal defendants will be entitled.

In addition to Miranda claims, Fourth Amendment exclusionary rule claims, Wade Stover claims and alike, the courts will have to entertain Jacob’s suppression motions based upon allegations that internal guidelines related to prosecutorial practices were that consistent, informal prosecutorial practices have been violated.

These inquires will not always be easy since there are numerable areas of prosecutorial activities in which standard practices have developed informally or are called for by the United States Attorney’s manual.

Looking just at the aspect involved in this case the concept of a grand jury target is a slippery one, specially in the context of an investigatory grand jury.

Often a witness in Mandujano or Wang or Mrs. Jacobs are all examples, would be someone who could be indicted, but who the grand jury is really more interested in as a source of information leading to higher ups.

In other words, there will be run for considerable controversy in interpreting these prosecutorial guidelines and the Courts will be shouldering a significant added burden in undertaking to supervise prosecutorial conduct by determining --

Justice Thurgood Marshall: Which courts are you talking about?

Mr. Frey: The Federal Courts.

Justice Thurgood Marshall: But if this court had set up their own rule and you say they do not like it.

The Second Circuit said these rule, they are not complaining about it, are they?

Mr. Frey: I am not sure which rule they --

Justice Thurgood Marshall: In this case, the rule in this case.

The Court of Appeals involved in this case is not complaining about --

Mr. Frey: Well, I think the Court of Appeals perhaps did not fully consider in this case what the effect would be of a rule that says whenever the prosecutor --

Justice Thurgood Marshall: Well, I assume you know more about the business of the Second Circuit than the Second Circuit does?

Mr. Frey: I do not assert that.

Chief Justice Warren E. Burger: How many districts are there are in the Second Circuit?

Mr. Frey: I believe there are 6 districts in the Second Circuit.

Chief Justice Warren E. Burger: The action of the Court of Appeals is to make all of them conform to one of them, is that it?

Mr. Frey: Well, it is not clear.

I mean, there is going to have to be a lot of further litigation as to what degree of conformity is required and what kinds of departures from norms of prosecutorial behavior would justify a remedy such as Mrs. Jacobs got in this case.

I think it will be futile feel for further litigation, but I do want to say that wholly apart from considerations of increased judicial workload that would result from adding Jacob’s type suppression motions, there is a serious of the legitimacy and of the efficacy of judicial efforts to enforce non-statutory and non-constitutional standards of prosecutorial conduct.

Inherent in the voluntary adoption by the executive branch of such practices is the expectation that the interpretation and the enforcement of these practices will be for the executive branch.

If judicial sanctions are going to be imposed for violations of voluntarily adapted internal prosecutorial practices, the wisdom of adopting such standards in the first place will have to be re-examined.

Chief Justice Warren E. Burger: Well, would this mean that if in one circuit of the great many districts, one district decided or the Attorney General decided that in one district they would conduct a pilot program to give the full target warnings, the most that have been asked by anyone that that would mean under this approach all would have to comply with it forthwith?

Mr. Frey: Well, I think that at this stage that remains a speculative matter and I am not prepared characterize the Court of Appeals decision as going that far.

It might be construed to go that far.

It is the first step towards a policy of uniform national prosecutorial practice, but I think it should not, however, small the first may be that the Court is taking in this case.

I do not think it should be taking that step at all and in this connection, I refer to your statement on Court of Appeals in the Newman case which dealt with the question of the legitimacy of judicial inquiry into whether prosecutors have conformed to their own standards of behavior.

This is set forth at page 28 of our brief and you said there and I quote it is assumed that the United States Attorney will perform its duty and exercise its powers consistent with its oaths and while this discretion is subject to abuse or misuse just as the judicial discretion, deviations from his duty as an agent of the executive are to be dealt with by his superiors.

That seems to be powerful consideration that the Court of Appeals has not given due regard to, In any event, pragmatic considerations aside, we do contest the power of the Federal Courts to apply the sanction of evidentiary exclusion under their supervisory power in case as such as this.

Before discussing our argument --

Justice John Paul Stevens: Mr. Frey you say in cases such as this, if you left those words out, would you say there is no power in the Court of Appeals and exercised with supervisory power ever to order the exclusion of evidence except on one of the grounds already recognized such as Fourth Amendment violation or a coerced confession or wade violation, whatever this list would be, it can never oder exclusion of evidence?

Mr. Frey: Well, I think I ought to divide my response into the different headings because as I indicated we have several quite different and independent arguments.

Under rule 402, I think that the supervisory power to exclude evidence has been taken away, but that does not, it seems to me -- it does not in any way undermine the result in Weekes and in the constitutional exclusionary rules cases.

Justice John Paul Stevens: No, but I am just saying is your submission that a Court of Appeals may never go beyond what is now the law with respect to exclusion of evidence?

It could never find an action by a Strike Force lawyer coming into the district which violated a lot of local rules never a basis for suppressing evidence, again that is which is relevant?

Mr. Frey: I do not think that is our position.

First of all if the action violates a statute, a rule or the constitution then I think there may be room under Section 402 for the application or rule 402 for the application of an exclusionary rule.

As far as inherent supervisory power is concerned that is assuming you reject our argument under the Rule 402 and under Section 3501, I do not suggest that there is no power at all to exclude evidence.

I do suggest that this category of case that the court has before today is one in which such power never existed and in which the court does not have power, that is the power has to be linked to a violation of a constitutional or statutory right or else to the supervision of the judicial proceeding.

Justice John Paul Stevens: It never could for example be based on a Strike Force lawyer coming in and saying I am not going to follow US Attorney’s manual or what you described to us, I have got a better way of getting evidence, I will go out beat somebody up or something like that.

They could never in the Third Party so that the witness himself is not the defendant, the court could never exclude such a evidence?

Mr. Frey: I think that would be right, I think that would right.

Chief Justice Warren E. Burger: Was there a manual ever issued from the Department of Justice dictating the result that this Court?

Mr. Frey: At the time that this took place that what we were dealing with was a purely informal practice within the US Attorney’s districts and there was no provision in the manual requiring the giving of target warnings.

Indeed the Court of Appeals when it made its inquiry the first time the appeal was before it is the wrong question because they asked what the practice was at the time they were hearing the first appeal and they did not even ask whether at the time Mrs. Jacobs testified there was any practice in the Eastern District to give target warnings.

In any event, let me try -- in my first argument I focused largely on the point that even assuming that there is some supervisory power in this area, it was improperly exercised by the Court of Appeals in the circumstances of this case.

Today I would like to focus a bit more on our arguments regarding the various limitations on the reach of the judicial supervisory power which we believe entirely foreclose the use of a remedy evidentiary exclusion in a case such as this if I may use that term and I will elaborate more as I go along.

I will begin with Rule 402 of the Federal rules of evidence.

I think it is undisputed by anyone that the supervisory power of the courts is subject to statutory restriction and we submit that Rule 402 does eliminate whatever power the Courts previously enjoyed to apply the remedy of evidentiary suppression except in the circumstances specified by the rule.

Now, the rule begins by saying all relevant evidence is admissible.

If it is what all it said the Court of Appeals might have been correct in concluding that the rule was not designed to and did not circumscribe pre-existing inherent supervisory powers.

However, the rule says more.

It explicitly delineates the exceptions to the general requirement of admissibility that the courts are empowered to recognize.

The rule is set forth it several places in our brief.

I am looking at page 14 of our brief.

It says all relevant evidence is admissible except as otherwise provided by the constitution of the United States by act of Congress by these rules that is the rules of evidence or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Moreover the adoption of Rule 402 was accompanied by an amendment to Rule 26 of the Federal Rules of Criminal Procedure which eliminated the provision which had been relied on in Alkins for example as conferring upon the Courts a general, in a sense common law power to formulate rules of evidence under their inherent supervisory powers.

Justice William H. Rehnquist: Mr. Frey when you are saying inherent supervisory power, do you mean anything more than the authority of any Appellate Court to reverse a Trial Court on a basis not other than -- on a basis that does not depend on the statute of the Constitution?

Mr. Frey: Well, I would distinguish I think two categories of cases and I intend after discussing Rule 402 to turn to the question apart from the statuary arguments what I do think are the limitations under supervisory power, so perhaps I could defer it that point.

Now, I want to be sure that the limitations of our argument about Rule 402 are understood.

We are not calling into question in anyway the power of the Federal Courts to apply the remedy of evidentiary exclusion, when that remedy is necessary to protect constitutional rights.

The Weekes decision stands unpaired in our view.

The more difficult question is when we come to violations of statutory rights or of rules.

Now, it is clear from the rule that if a statute or a rule listed in Rule 402 explicitly provides a remedy of evidentiary exclusion, of course that remedy may be enforced by the courts, agreeably to Rule 402 and an example of that is the wiretap statute which contains various exclusionary principles, some of which are not constitutionally required.

But if the statute or rule does not specify exclusion of evidences or remedy then there is a close issue.

The rule on its face would appear to foreclose exclusion in such circumstances since admissibility must according to the language be provided by the constitution statue or rule.

But in any event whether the court has the power in enforcing a statutory rule listed in Rule 402 to exclude evidence ancillary to that the finding of a violation, there is no way it seems to us that its power under Rule 402 continues, if it ever did to reach out where there is no constitutional violation, no statute over --

Justice John Paul Stevens: What about a Miranda case, where there is no constitutional violation, just a failure to give the warning specified?

Mr. Frey: Well, I think that Miranda and Mapp stand on essentially the same footing, that is the court -- what the court determines is that there has been a constitutional violation and that --

Justice John Paul Stevens: I thought there was a case written later that said, a Michigan Case that said it was not a constitutional (Voice Overlap).

Mr. Frey: It said the remedy is a prophylactic remedy that extends perhaps beyond the --

Justice John Paul Stevens: Where there is no constitutional violation at all.

It is just a justification.

How do you know it was decided?

Mr. Frey: We are getting on to very slippery ground, but since it is clear that this rule is applicable against the States, it must have a constitutional footing.

Now, it seems to be that what the court has done and let us take Mapp as an example because of course to prior Mapp, it was not clear that the exclusionary remedy was available against the States for Fourth Amendment violations.

What the court must be saying is that there has been violation of constitutional rights or conduct of such nature in the Miranda Case that we cannot distinguish it from a violation of constitutional rights.

We are going to treat it presumptively as a violation of constitutional rights and the only way we know to enforce those rights.

The only remedy that is available to us is the exclusionary principle and I --

Justice John Paul Stevens: Let me ask you this way.

Supposing Mapp Case were to arise that day as a Case of first impression, it had not been decided before, we would have to admit that confession I suppose?

Mr. Frey: Well, you would certainly have to under Section 3501, but if Section 3501 did not exist that is the issue which I am saying is a difficult issue.

I could see an argument which would say and I would probably be on the other side of it, but I could see an argument which would say that just as the exclusionary rule is necessary to enforce Fourth Amendment Rights even though the Fourth Amendment does not explicitly contain an exclusionary rule so the McNabb-Mallory rule is the only way of enforcing the rights that are protected by that particular statute and --

Chief Justice Warren E. Burger: But McNabb-Mallory of the constitution or rule 5 (a)?

Mr. Frey: That was a Rule 5 (a) or in effect the statutory provision, it promotes the statutory, so --

Chief Justice Warren E. Burger: So you had to build in exclusion by the will of Congress?

Mr. Frey: No I do not think rule 5 (a) contained any exclusionary dictate from Congress.

It was a judicial variation.

Chief Justice Warren E. Burger: Are you sure in both McNabb and Mallory that that is the case?

Mr. Frey: I think that that is the case and I think that Congress has not passed a statute which expressly deals with the question of exclusion in relation to violations of the prompt presentation to (Voice Overlap).

Chief Justice Warren E. Burger: It is statutory now, clearly is it not, not constitutional?

Mr. Frey: Yes.

It is not constitutional, but I was responding to what I understood to be a question from Mr. Justice Stevens about what would happen in the McNabb-Mallory situation under Rule 402 and I was saying that I think it would be arguable and indeed if you look at the advisory committee notes in connection with the adoption of Rule 402, they seem to contemplate that a McNabb and Mallory kind of exclusionary rule would survive.

So you would have to balance the language of the rule against the contemplation that words use to enforce a statutory rights such as in McNabb-Mallory it may still exist, but that is neither here nor there for purposes of your problem today because there is no -- nobody has pointed me to constitutional provision of statute, a rule of the kind listed Rule 402 on which the Second Circuit could predicate its decision.

Now, leaving our statutory arguments and turning to the question of inherent power, assuming there were no statutes, I want to preface my remarks on this point by stating that we do not for one minute deny the existence the substantial supervisory powers in the federal courts.

The Case is cited by Justice Marshall in his descent from the initial remand in this Case unquestionably established that such powers exist.

What is at issue here, is the nature and extent of those powers and I suggest without substantial fear of contradiction that the Court of Appeals exercise of these powers in the present Case is unprecedented and it is qualitatively different from the past exercises of supervisory power and decisions of this Court or of other Courts of Appeals.

And the supervisory powers of the federal courts must be something more than a mere rubert to be invoked to justify any action that the courts wished to take.

The fact that some supervisory powers undeniably exist as not if I may borrow the words of Justice Stevens in his dissent in the Telephone Company Case, give federal judges the wide ranging powers of an ombudsman.

Indeed in the specific area of supervising police in prosecutorial practices, this Court has expressly stated that the federal judiciary does not set to exercise a chancellor's foot Veto over law enforcement practices of which it does not approve, that is in the entrapment cases in last term in Lovasco and talking about due process, but in a very related context the Court said judges are not free in defining due process to impose on law enforcement officials a personal and private notions of fairness and to disregard the limits that bind judges (Voice Overlap).

Justice Potter Stewart: But that was in the defining due process which is a constitutional standard.

Is not there to echo my brother Rehnquist's question, supervisory power to reverse a judgment of conviction is no more than the power of any reviewing court to reverse the judgment of conviction which it finds for one reason or another erroneous on some basis or other than a constitution or a statute.

Is there anything wrong for example of a particular Court of Appeals in a particular Circuit saying on this Circuit we are not going to approve the Allen charge to the jury?

Mr. Frey: No not at all.

Justice Potter Stewart: It is not constitutionally required to disapprove it, but we are not as a matter of that ex-Circuit law going have Allen charges in this Circuit?

Mr. Frey: I think that is precisely the point that I am trying to make.

I do not question if that power exists.

Indeed, I think all of the cases in which supervisory power has been exercised can be divided into two categories.

The first category which encompasses the vast majority of cases includes matters such as the proper voir dire of jurors, steps to be taken to avoid prejudicial publicity, proper jury instructions such as the Allen charge, the legitimacy of these powers is beyond question, but they are far removed in kind.

They are supervision of the trial itself of what goes on in the trial and the court does not need a statute or constitutional provision in order to exercise that kind of supervision.

That is far removed from what the Court of Appeals was doing in this case.

Justice Thurgood Marshall: Mr. Frey, I assume you can draw a line between out of court and in court, the way you put to grand jury?

Mr. Frey: Well, let me pass on to that.

I have very little time left, so I just want to say, I think the McNabb and Alkin cases are different from the Allen charge cases.

They come closer, but the point I want to make about those was that the Court has never exercised its supervisory power without finding a violation of the defendants' rights in the McNabb-Alkin kind of cases.

Now, let me respond to your point.

The grand jury is in significant respects a norm of the Court.

Federal Courts have legitimate and substantial interest in over seeing grand jury proceedings.

Now, we think they have to be circumspect about keeping a line between what is intruding on executive branch functions and what is proper judicial functions, but it is not necessary to our argument today to say that the courts do not have supervisory power to promulgate a rule to give target warnings in the grand jury.

In other words, we can concede that the Courts could adopt such a rule.

They could say henceforth you will record all proceedings before a grand jury transcriber.

Henceforth you will give certain warnings to witnesses.

Henceforth you will not call targets, but these are prospect of rules.

They are not a retrospective reaching out on a selective ad hoc basis to pick a single past instance of a practice which the Court had never indicated before was inappropriate and imposing a sanction of suppression.

The question Mr. Justice Marshal is remedy.

It is not the power to make the rule.

It is the power to impose the particular remedy which the court selected in this case of suppression.

And I might say that we are dealing here with standards of conduct for prosecutors.

In Mapp against Ohio the Court found itself confronted with a policeman over whom it had very little power with respect to whom it had very little ability to discipline him and it was in a sense compelled, if it was going to anything about what it viewed as a rash of otherwise uncontrollable Fourth Amendment violations to use a remedy of evidentiary exclusion.

Here we are dealing with prosecutors.

There is no reason to suppose that they will not obey a rule that is announced by the courts and there is no reason to suppose if there are isolated instances of this obedience, that it is not sufficient to deal with them by disciplining the disobedient lawyer directly rather than --

Justice John Paul Stevens: Mr. Frey, of course you are dealing with strike force prosecutors coming into the district, not those who are regular before the Court actually?

Mr. Frey: Well --

Justice John Paul Stevens: Is not that a special problem for the Circuit and to concern about the --

Mr. Frey: I am sure if the strike – well, they cannot – I am not -- I am reluctant to encourage the court to get in to the matter of allocating functions between strike force and US attorney because I think that really is principally the job of the Department of Justice, but if it were to see fit to do so it has the power of contempt over these people if they come in.

It has, it seems to me the same control as over any lawyer who appears before them.

Chief Justice Warren E. Burger: And has not that type of power traditionally in most cases been exercised prospectively?

Mr. Frey: Oh! Yes.

I think that you would, well not, the contempt power indeed requires an order which is violated even --

Chief Justice Warren E. Burger: I am talking about a power over a practice which the court disapproves, and says hereafter the United States Attorney will do this himself?

Mr. Frey: I think that is precisely so and that is one of them --

Justice Thurgood Marshall: It is not in the very case where a federal judge over the years returning in contempt?

Mr. Frey: Your Honor, Judge chamber did that in Oklahoma when --

Justice Thurgood Marshall: And God what happened to him?[Laughter]

Mr. Frey: Well, we got a little overturn pretty rapidly, but the --

Chief Justice Warren E. Burger: And another judge held the present judge’s chambers in contempt before he was a judge?

Mr. Frey: But I think before you go to what is a clearly a drastic remedy of taking a defendant who was committed on offense, a serious offense of forgery in this case and in effect pardoning that defendant as a means of disciplining the US attorney, I think you have to be persuaded that really is a necessary part of that.

Justice Thurgood Marshall: I persuaded that this might not have been the right case?

Justice John Paul Stevens: May I try on other example?

We had some case in the Seventh Circuit where there was a charge, a claim made that the government has abused its immunity powers, granted immunity much to liberal terms to get a witness to testify against an accomplice.

Now, supposing that the Court were persuaded that the immunity was almost like a bribe and that it made the witness’s testimony so inherently incredible that it should be suppressed, would a Court have power to that, do you think?

Mr. Frey: No, I think Rule 402 would not --

Justice John Paul Stevens: You would say no under (Voice Overlap)

Mr. Frey: If you take the FunFood situation which I was thinking about where Judge Wisensky (Ph) disapproved the consultation between the US Attorney and the witness, I do not think he would have the power to say well I am not going to let you put on that witness, that is my point.

Chief Justice Warren E. Burger: Thank you, Mr. Frey.

Mr. Seidman?

Argument of Irving P. Seidman

Mr. Irving P. Seidman: Mr. Chief Justice and if it may please the Court.

I appreciate the fact that we are here a second time, but I respectfully submit to the Court that Mr. Frey has used his first argument on the second occasion.

If for us --

Chief Justice Warren E. Burger: Has anything changed since then?

Mr. Irving P. Seidman: I would have hoped that he would have considered my argument more fully Your Honor.

Justice William H. Rehnquist: Do really mean that you appreciate the fact that you are here a second time?

Mr. Irving P. Seidman: Well, it is, for a humble lawyer, it is always an honor to appear before the Supreme Court of the United States Mr. Justice Rehnquist.

Chief Justice Warren E. Burger: We will accept that.

Mr. Irving P. Seidman: Mr. Frey has most reasonably stated the underlying factual pattern in this case except that I would wish to inform the Court that the defendant in this matter is a housewife who had part time employment and for whatever it is worth, my law firm represents this defendant with respect to the appellate part of this case in a pro bono publico decision.

I think that is important to indicate that this defendant does not appear here represented by a high priced attorney nor is she a seasoned witness represented by a counsel when she appeared before the Grand Jury.

Chief Justice Warren E. Burger: When the charges of perjury on a specific day an hour before a Grand Jury, how any of those factors relevant?

Mr. Irving P. Seidman: I just mentioned it to the Court for background, Your Honor.

I wish to get into the case as to the law.

However, whether it is from the standpoint of the legal issues or the philosophy underlying the legal issues, I believe that the thrust of the argument by Mr. Frey has failed to address the problem.

I do not believe this case involves an instance where the Appellate Court seeks to direct the prosecutor in what he must or must not say and I believe the underlying opinion of the Court of Appeals expressly states that if the prosecutor wishes or the Attorney General wished, they need not us the law has presently constituted, give any type of target warning and as time has indicated the Attorney General of the Unites States has deemed it appropriate to adopt the requirement of target warnings as a uniform practice outside the scope of Constitutional and statutory requirement in the United States of America, effective I believe February the 15th, 1978 or there about.

I believe what the Court of Appeals was concerned about and what I was initially concerned about as defense counsel in this matter who brings approximately ten years as a prosecutor as a background to this type of case was a conduct that would be taking place before an arm of the Court, to a Grand Jury.

I submit to the Court that this is not an issue of an Appellate Court seeking to exercise its chancellor’s veto of executive branch practice.

I submit to the Court that since the Court’s constitutional rulings in Mandujano and its progeny that absent the exercise of supervisory power over Grand Jury’s by Appellate and District Court, this is Court has left bare the protection and the requirement inherent in the exercise of equal and fair justice, any concept of protection to any witness who appears before the Grand Jury.

For the Court has clearly stated that there is no requirement for Miranda warning, target warnings of any type in that type of setting.

I believe what the Court was concerned about and this concerned with them properly concerned with is the Grand Jury which is a norm of the Court and not the executive branch of government.

And again, I wish to reiterate that the Court in its second opinion as well as in its first opinion indicated that the prosecutor could adopt any policy concerning this matter.

The question really is Your Honor whether or not any witness who appears before a Grand Jury should expect uniform application from the standpoint of fairness and from the standpoint of what is the accepted practice within that Circuit which is an urban Circuit consisting of six different districts of whether or not the application of practice --

Justice Thurgood Marshall: Fray mentioned they got six --

Mr. Irving P. Seidman: Six Districts.

Justice Thurgood Marshall: I am sorry.

Well two of them in New York are not urban, the western and the northern.

The northern does consist of six (Inaudible)

Mr. Irving P. Seidman: And Vermont

And vermont is not urban.

Mr. Irving P. Seidman: Well, I stand corrected Your Honor [Laughter] to the extent that that geographical population, I was trying to guess correct.

However, the entire district and the workload of this Second Circuit certainly is a most responsible one and I believe what the Court was seeking to do is not retrospectively, but rather prospectively and currently dealing with the situation which it faced in that Circuit and there as it is cited in our brief.

The Second Circuit had previously admonished and warned the strike force attorneys appearing before it and then its Circuit, in the Persico (Ph) case that they had an obligation to identify with, become informed with, and follow the guidelines not only of their work in the Circuit, but the requirement that they operate with and in conjunction with and under the direction of the United States Attorney in the particular district involved.

For Mr. Frey to suggest that this was a retrospective application is incorrect in view of Persico case where the Court not only issued a formal opinion, but annexed thereto a copy the appropriate guidelines that were involved.

I submit to the Court that there is probably no more important aspect of the Criminal Justice process than as Grand Jury because it is before the Grand Jury that supposedly the determination is made whether one becomes a defendant or is determined not to be formally charged.

Chief Justice Warren E. Burger: Do you mean to suggest that most of the people who are charged do go before the Grand Juries?

Mr. Irving P. Seidman: Well, ultimately in the process, in the Federal process, I would say that a good number, if not half of the cases are Grand Jury origin Your Honor rather than summary --

Chief Justice Warren E. Burger: As to the particular defendant, is the particular defendant the witness before the Grand Jury in half of the cases or anyway near half of the cases?

Mr. Irving P. Seidman: Well, in the Second Circuit and particularly in the Southern District and in the Eastern District of the Circuit Your Honor, I believe it is the practice and was a practice and this is what disturbed the Court in this instance after having given fair warning to the Strike Force Attorney to notify defendants that there is a matter pending before the Grand Jury and should they wish to payable for the Grand Jury, although they are targeted that they have that right to do so and that is the accepted practice and apparently that now is the accepted practice in the United States of America pursuant to the guidelines now issued by the Attorney General of the United States.

I might further submit to the Court that the issue of sanction in this case really does not present any problem unless one determines that this Court does not have the inherent power to supervise the conduct the prosecutors before an arm of the Court which is a Grand Jury.

Chief Justice Warren E. Burger: Does the type of supervisor power to supervise the conduct of judges?

Mr. Irving P. Seidman: Within its circuit, yes Your Honor.

Chief Justice Warren E. Burger: This court, this court have supervisory power over judges.

Mr. Irving P. Seidman: I believe you do sir and I believe there have been instances of its application and I would assume that, that did not emanate out of any constitutional or statutory scheme and that is what cited in the dissenting opinion of Mr. Justice Marshall in the remand portion of this case.

This Court and the Chief Judge has acknowledged the existence of the supervisory power and enumerated cases therein and has acknowledged the effective and proper utilization of sanction by way of suppression as a means of fulfilling that supervisory power.

Justice Thurgood Marshall: My Point is that Mr. General, under the supervisor whatever file you have, the Second Circuit said what it said the Attorney General has issued in order, a manual to all the judges, down to, I mean all of the prosecutors, not only in this eastern district, not only in the Second Circuit, but all over the country, so you accomplish what you wanted?

Mr. Irving P. Seidman: If Your Honor please --

Justice Thurgood Marshall: Now, the only other thing is where you turn lose a (Inaudible)?

Mr. Irving P. Seidman: I submit that, that is not the issue Mr. Justice Marshall.

Justice Thurgood Marshall: Well, I thought that was the government's posissue?

Mr. Irving P. Seidman: That may well be the government's posissue, but I think this Court in its seasoned and reasoned judgment would see beyond that myopic approach to what is a fit here.

What the government really is seeking to state and propose is that pursuant to Rule 402 that appellate courts do not have the supervision or even district courts as to what evidence or what conduct goes before those areas that are within its domain which include the trial court and the grand jury and I might submit to the Court that Section, Rule 402 and its wording merely states that relevant evidence is admissible.

Justice William H. Rehnquist: Mr. Seidman does not this Court have the same sort of supervisory power over the Court of Appeals as the Court of Appeals has over US attorneys or the district court just by virtue of our power to grant certiorari?

Mr. Irving P. Seidman: There is no doubt in my mind that this Court has supervisory power over the conduct of affairs of the judiciary in United States of America which would include the Second Circuit.

Justice William H. Rehnquist: In other words, if the Second Circuit decides there is going to be no more Allen charges as my brother Stewart gave in hypothesis to your colleague Mr. Frey, and reverses the conviction, the government can petition here and we in turn would be called upon to decide whether the Allen charge was to be a matter of national uniformity or whether it is up to each circuit, but anyway we would have a right to review this Second Circuit's determination?

Mr. Irving P. Seidman: I believe so and I have not suggested anything to the contrary.

However, the analogy of the Allen charge under diversity of practice within the circuit and the fact that, that does exist and the fact that this Court has not chosen to apply a uniform standard or universal standard here in the United States, if anything buttresses my position that the Second Circuit with respect to its jurisdiction could certainly adopt a procedure or a concept of what should take place before its grand juries that have reasonableness and nobody has contended that the suggestion that the requirement of a target warning be given is unreasonable.

And if anything, the fact that the US, the Attorney General has adopted that practice adds weight to the significance of this case and the requirement in acknowledging the existence of the supervisory power of the circuit court when reasonably exercised and in this case adoption by the Attorney General which shows some type of reasonableness as to the concept that the supervisory power is what is at issue here and not whether or not my client who faces prosecution on another aspect of this charge has or has not committed perjury.

I do not stand before this Court to condone perjury and that has never been my argument.

However, I do not believe when the circuit court stated that this Court has adopted a rule, a principle of law that in any perjury indictment that per se there is no concept of suppression or the sanction of suppression.

And as a matter of fact even in the Mandujano case which was a plurality opinion, I believe that there was an acknowledgment that there might be some situations in which even given a perjury that the sanction of suppression would be applicable.

I might add that there has not been a trial in this matter and all that the indictment really is hopefully is an allegation.

The posture of this case is one of acquisition.

The posture of this case as to the consideration of the point of law or principle of law involved herein is what took place before that grand jury and whether or not the circuit or the district court could apply its supervisory power, which obviously was not arbitrary or capricious, given the adoption of the same principle of law by the Attorney General of the United States.

And what is at issue here, is can this Court or should this Court, in essence, interfere with the reasoned judgment of a circuit court that had previously warned prosecutors that given Strike Force's failure to adhere to certain standards that it was giving them fair warning that the next time it would apply sanctions.

I might add that if this Court interferes with the supervisory application, a circuit court power then it would be adopting the suggestion of Mr. Frey which I believe this Court could not reasonably entertain.

There is no way that a circuit court nor the defense counsel can supervise each and every prosecutor as to what he or she does, just as it would be impossible to this court to supervise each and every judge within its jurisdiction as to what he or she does, and therefore, the essence of the supervisory power is to permit the Court to guide in general terms, the conduct of those who are responsible and the performance of their duties within its jurisdiction.

In this instance, the jurisdiction is not the executive branch of government. The jurisdiction is a grand jury.

There is no argument and case law and statute is clear that the grand jury is a norm of the court.

That means that it is created by the court, it is supervised by the court, the grand jury reports back to the court and if need be, the prosecutor can be excluded from appearing before that arm of the court.

For Mr. Frey to suggest that the grand jury in some way is a part of the executive branch of government, I believe is the sanction, is a cause of the sanction in this case.

Justice Thurgood Marshall: Mr. Frey did not say that.

He said that the US Attorney was.

He says simply that grand jury was a part of the judicial system.

Mr. Irving P. Seidman: Well, I take that back, but it was my impression that he is, what he is saying is that the application of a sanction in this case is an interference with the executive branch to government.

Justice Thurgood Marshall: Well, if the grand jury was (Inaudible)

Mr. Irving P. Seidman: However, Justice what I say before this Court is --

Justice Thurgood Marshall: Because the Grand Jury did not know about the rule?

Mr. Irving P. Seidman: Well, that maybe the weakness --

Justice Thurgood Marshall: (Inaudible) US Attorney that you know?

Mr. Irving P. Seidman: Well, I am a former state prosecutor, but and I do understand what takes place before grand juries and I would hope that this Court would reconsider some of its constitutional rulings in this area, but this is not the time or place to deal in this matter, but again getting back to the point that was I seeking to make and that is that there is no way that a supervisory court can exercise supervisory power unless as a concomitant of that power it had an ability to apply sanctions.

And I submit to the Court that in this instance the sanction that was imposed here which results in the dismissal of the perjury indictment related not to the perjury, not to the perjury count, but rather to the conduct of the prosecutor in failing to adhere to a prior written formal warning to Strike Force Attorneys.

I would hope that the Court would not per move from circuit courts, its wisdom in determining when it should apply sanctions of this type.

I do not believe this Court should be led to believe as Mr. Frey seemed to indicate that there would be a nuance load of litigation in this matter, involving failure to comply with the internal guidelines.

This circuit was clear in stating that they were not creating any general exclusionary rule, nor were they in any way suggesting that in each and every time that a prosecutor failed to dot a T -- dot an eye across the T (ph) that there would be the sanction of suppression and the failure of an indictment.

To the contrary, the Court clearly stated that this was a ad hoc one time sanction falling within its desire to inform Strike Force Attorneys that failure to apply to the circuit court's practices before grand juries has to result in this sanction.

Chief Justice Warren E. Burger: That would mean, I take it from your point of view that if the Attorney General personally went in regard as at least the newspaper accounts indicated he did last week in one case or within the last two weeks that the local rule and the local Court of Appeals can instruct the Attorney General of the United States personally on how he must function, that is consensus of it, is it not?

Mr. Irving P. Seidman: Only as to how he can function as he practices law before the grand jury and before that court. The court does not seek to tell the Attorney General who he is to investigate, how is he --

Chief Justice Warren E. Burger: No, no.

I am narrowing it down to the process that we are talking about.

You are saying that the Third Circuit can tell the Attorney General of United States when he personally presents himself before a grand jury to present an important case, how he is to do it?

Mr. Irving P. Seidman: I believe that, that is absolutely so Your Honor and by that I assume that the court is not telling him what facts or how to investigate, but within its concept of fair play and the application of equal justice as citizens of the United States should expect to receive, I believe that the court can within that, in that circuit so instruct him sir.

And I do not believe that, that would have in anyway and does not anyway interfere with his exercise of his executive power.

There are concepts or principles that fall within the sole and exclusive province of the court and I sought to state to the Court that the conduct of the Grand Jury is in the sense of what it listens to and how witnesses are treated there is something that should be and is within the province of the court and not within the province of any particular prosecutor depending upon how he wakes up in the morning and determines he is going to treat a witness before that grand jury.

In closing, I submit to the Court that the suggestion by Mr. Frey that the failure of the prosecutor in this case to adhere to internal guide of lines is not the sole and total issue here.

The question really is whether or not the Second Circuit can from the standpoint of fairness and the expectation of equal treatment by its citizens require that once government has chosen a line of approach that singular or particular prosecutors not have their own personal predilections apply with respect to the application of that particular principle.

And as Judge Friendly stated in the Estepa (Ph) case which again was recognition of the court's supervisory power also involving a perjury case that he stated “we had hoped that with the clear warning we have given to prosecutors and the assurances given by United States Attorneys a reversal for him, properly use a fair say before the grand jury would not be required.”

Here the Assistant United States Attorney whether willingly or unwillingly, we prefer to think the latter, clearly violated the first of these provisos.

We cannot, with proper respect for the discharge of our duties, content ourselves with yet another admonition.

A reversal, with the instructions to dismiss the indictment, may help to translate the assurances of the United States Attorneys into the consistent performance by their assistance. I think really that is what is at the heart of this particular case and its singular application to the facts of this case.

And if the Court recognized the existence of such supervisory power in Estepa, I see no distinction between this case and the Estepa case.

The fact that the Attorney General has adopted these new guidelines which seem to adopt what was at issue here, I believe do not deal with the essence of this case and there should be affirmance of the circuit court's opinion to sustain its authority to supervise the conduct of its affairs before that court.