DUNN v. UNITED STATES

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Argument of Daniel J. Sears

Chief Justice Warren E. Burger: Case is submitted.

We'll hear arguments next in Dunn against the United States.

Mr. Sears, I think you may proceed whenever you're ready, if you don't mind the absence of an audience.

Mr. Daniel J. Sears: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

Petitioners before the Court today to present three primary questions: Whether a sworn statement taken in a private attorneys office may be deemed a proceeding ancillary to U.S. Court or grand jury in violation of 18 U.S.C. Section 1623?

Can immunized testimony be used against the witness to establish the corpus delicti of an inconsistent declarations prosecution without proof that the witness testified falsely under immunity?

And did the appellate court in this case adopt a proper theory in sustaining the conviction of Mr. Dunn?

Your Honor, petitioner submits that all three issues must be resolved against him before the conviction can stand.

The underlying case proceeded as follows.

Mr. Dunn appeared before federal grand jury in Denver, Colorado on June 16, 1976.

He claimed his right to remain silent and subsequently was ordered to appear before United States District Judge whereupon he was granted use immunity under 18 United States Code Section 6002.

He thereafter reappeared and testified the certain drug activities at the Colorado State Penitentiary implicating one Phillip Musgrave and several other co-defendants.

As a result, an indictment was returned against Musgrave and three other co-defendants.

On September 30, 1976, he appeared in the office of Musgrave's attorney, Michael Canges and proceeded to recant his grand jury testimony.

Present was a notary public who administered the oath and recorded Mr. Dunn's statement by virtue of a tape-recording.

It was subsequently reduced to writing and tendered to the U.S.District Court --

Justice William H. Rehnquist: I take it he just didn't wander into the attorney's office that day?

Mr. Daniel J. Sears: Your Honor, although the record is silent as to this, I believe the evidence would indicate that Mr. Dunn met Mr. Musgrave and then proceeded to strike a deal with him.

Subsequently, wound up in his attorney's office, Mr. Musgrave's attorney's office and recanted what he had told to -- what he had told to the grand jury.

The statement was reduced to writing and tendered to the Court as an exhibit in support of a motion to dismiss the indictment against Musgrave.

On October 21, 1976, a hearing on that motion was held in the United States District Court.

Dunn was called as a witness and once again reaffirmed the affidavit even though he'd indicated he had not totally reviewed it.

The charges against Musgrave were subsequently reduced.

Chief Justice Warren E. Burger: Well, when he reaffirmed the affidavit, will you enlarge on that, he was under oath before a grand jury then?

Mr. Daniel J. Sears: He was under oath before U.S. District Judge, Your Honor.

Chief Justice Warren E. Burger: District Judge?

Mr. Daniel J. Sears: Yes.

Your Honor --

Chief Justice Warren E. Burger: And did he simply say he reaffirmed it in a conclusory way or did he restate the same facts?

Mr. Daniel J. Sears: Your Honor, I believe the nature of the testimony went that he was asked to identify the affidavit, did identify it.

Asked him if it was the truth?

He said, yes, it was.

And he says, is it all the truth?

Then he said, possibly 10%.

Each declaration that he made before the grand jury was not proceeded through and it was the conclusory remark that 90% of it was false which we may infer.

Chief Justice Warren E. Burger: When -- when you say 90% false, that was directed at what?

At the original grand jury testimony or at the affidavit?

Mr. Daniel J. Sears: No, Your Honor.

It was directed at the original grand jury testimony.

Now, that's one of our basic contentions in this case.

The October 21st proceeding in U.S. District Court was not alleged to be an ancillary proceeding in this inconsistent declarations prosecution.

And even though the appellate court affirmed the conviction by looking to that proceeding and indicating that Dunn by adopting that statement had somehow turned the September 30th proceeding into an ancillary proceeding, we submit that was outside the indictment and improper amendment or prejudicial variance from the indictment.

Justice William H. Rehnquist: How did it prejudiced you?

Mr. Daniel J. Sears: Your Honor, it prejudiced in our preparation for the case and that we were preparing to go to trial contesting the ancillariness of the September 30th proceeding rather than the October 21st proceeding.

The October 21st proceeding was not mentioned in the indictment whatsoever.

Justice William H. Rehnquist: Well, you knew it had taken place?

Mr. Daniel J. Sears: Pardon?

Justice William H. Rehnquist: You knew it had taken place?

Mr. Daniel J. Sears: We did know it had taken place, Your Honor, and -- but as the Assistant United States Attorney conceded prior to the introduction of that transcript and as we indicated to the Court, we have not been provided with the copy of that transcript under Rule 16 and the Government Attorney conceded that he did not contemplate it as evidence in the case in chief.

There was no mention of the October 21st proceeding in the indictment whatsoever.

We're --

Justice William H. Rehnquist: How factually were you prejudiced?

Mr. Daniel J. Sears: Your Honor, we were prejudiced on the basis that our defense had been prepared to challenge the ancillariness of the September 30th proceeding and not the October 21st.

Justice William H. Rehnquist: So you couldn't use it, but how are you disadvantaged by your any inability you have to challenge the October proceeding?

Mr. Daniel J. Sears: Your Honor, the only way I can respond to his honor's question is that we did not have sufficient notice to prepare a theory in that regard and we were not -- we were not expecting that we're going to have to meet that evidence as a basis for an ancillary proceeding as the court subsequently ruled.

Justice William J. Brennan: Do you regard this situation as a prosecution blunder?

Mr. Daniel J. Sears: Quite candidly, Your Honor, yes.

Your Honor, as a result of the --

Justice William J. Brennan: Mr. Sears, you don't -- you don't disagree with the fact the October 21st proceeding was a proceeding within the meaning of the statute?

Mr. Daniel J. Sears: I don't challenge that in the least regard.

The only thing I would question, Your Honor, is whether that proceeding -- whether a prosecution could be made out of that proceeding as well based upon our same objection that the immunized testimony could not be used.

But yes, it was a proceeding before the Court under 1623.

Justice William J. Brennan: And as I remember the Solicitor General's brief, he agrees with you that they must establish that the September 30th affidavit was the proceeding in order to sustain that prosecution.

Mr. Daniel J. Sears: That is correct.

Justice William J. Brennan: He agrees to that.

Yes.

Mr. Daniel J. Sears: Yes and that would be our position.

Justice William J. Brennan: And the (Inaudible) does it in one way in contrast the way the Tenth Circuit did?

Mr. Daniel J. Sears: I believe that was part of our argument.

Yes, Your Honor.

Your Honor, on December 15, 1976, Dunn was subsequently indicted on five counts of false declarations before a grand jury in violation of Section 1623.

Paragraph 1 of each count alleged that Dunn had made false declarations before the grand jury on June 16, 1976.

And in paragraph 4 of each respective count set out specific declarations relied upon.

Paragraph 5 of each count charged Dunn knowingly made declarations on September 30, 1976.

And then the sixth paragraph indicated that the declarations that have been made in September 30th proceeding in Canges' office and the June 16th proceeding were inconsistent to the degree that one of them was necessarily false.

Due to the confusion from the first paragraph, the charge that he had testified falsely before the grand jury on June 16th and the fourth and fifth paragraphs had indicated that he had testified falsely in the September 30th proceeding.

Defense moved for a Bill of Particulars to seek out the Government theory in which they relied to prove this case whether they were intending to use the September 30th statement as an admission that as declarations before the grand jury were false or conversely whether they were relying on the subsection (c) theory of inconsistent declarations.

In other words, submitting that the declaration were so inherently inconsistent that one of them have to be false.

Justice William H. Rehnquist: Well, isn't the Bill of Particulars to provide facts?

Mr. Daniel J. Sears: Yes, Your Honor and --

Justice William H. Rehnquist: If the Government states facts in an indictment or an information which show that a crime has been committed, it doesn't have to tell you its legal theory, does it?

Mr. Daniel J. Sears: No, it doesn't have to state the legal theory, Your Honor, in so far as it need not further explain the indictment of the defense which the defense must meet.

My understanding of the Bill of Particulars has always been twofold.

The more adequately explain the charge and to protect against double jeopardy claim so that by considering the charge in the record, similar charge could not be made.

And I would submit that's exactly what we have in this case by looking not only the September 30th but October 21st for ancillariness.

Justice William J. Brennan: Well, you got an answer.

Mr. Daniel J. Sears: Pardon?

Justice William J. Brennan: And you received an answer, didn't you?

To the Bill of Particulars?

Mr. Daniel J. Sears: Yes, we did.

Yet, not in the way of a form of Bill of Particulars but the Government did respond that it was going to rely on the 1623 (c) inconsistent declarations theory.

And that theory was submitted throughout the course of the case.

Justice Byron R. White: And that was the submission of the jury?

Mr. Daniel J. Sears: That is correct and the Court so instructed the jury that the Government need not prove which of the declarations was false.

At trial, the September 30th transcription have Dunn statement which I'll refer to as the Canges' statement was introduced to the clerk of the District Court who testified that he have received as an exhibit on October 12, 1976 in the Musgrave case.

On cross-examination, the clerk was asked to identify the immunity order and application identify his defendant's exhibit F-1 and F-2 entered prior to Dunn's appearance and testimony before the grand jury.

The notary republic was then called to the stand and asked to identify the September 30th Kansas statement which had been rendered on September 30, 1976.

He indicated however on cross-examination that Dunn did not have counsel of his own choosing in the office of Musgrave's attorney.

He was not familiar with the criminal deposition procedures under 18 U.S.C. Section 3503, no court order had been obtained for the taking of this disposition, and there was no indication that Dunn would be unavailable for trial which we submit are necessary requirements for this document to qualify as deposition under 3503.

Upon the Government's office, the Kansas statement, the defense objected, it did not qualify his proceedings ancillary or before a U.S. Court of Grand Jury.

The Government next introduced Dunn's grand jury testimony through the Assistant United States Attorney who conducted the Musgrave grand jury investigation.

On cross-examination, however, the Assistant United States Attorney admitted that there was no independent evidence but for Dunn's recantations of September 30th and October 21st to disbelieve the grand jury testimony and that there was much evidence to corroborate the truth of it.

The defense objected to the use of the grand jury's testimony on the basis that was in violation of his immunity order.

Both of those objections were overruled and both exhibits were admitted into evidence.

Then the Government further offered the transcript of the October 21, 1976 evidentiary hearing in U.S. District Court.

The defense objected that these declarations were not outlined in the allegations of the indictment that it was beyond the proper scope of the indictment.

The Government did concede that prior to trial this evidence had not been submitted to the defense and was not intended as evidence in the case in chief.

His response was since we have cross-examined the Assistant U.S. Attorney as to the truthfulness of the grand jury testimony he wanted to offset that testimony by use of the subsequent reaffirmation to lend credence to the September 30th statement.

The Government rested then elected not to testify.

Defense then move for judgment of acquittal on two bases that the immunized grand jury testimony could not be used against him to establish the corpus delicti and in inconsistent declaration prosecution and that the Canges' statement was not an ancillary proceeding under Section 1623.

The trial court ruled that the Canges' statement if not originally ancillary “channels its way into being an ancillary proceeding” upon the confirmation in U.S. District Court on October 21st.

However, United States Tenth Circuit Court of Appeals agreed with Dunn's position and said that the September 30th statement was not ancillary proceeding as the statute requires.

The Court however found that the October 21st proceeding was ancillary and affirmed the conviction on that basis even though that proceeding had not been set out in the indictment.

The Court found “it was a proceeding ancillary to the grand jury because of Dunn's subsequent affirmation and adoption of the earlier statement on October 21st.

In other words, look to the October 21st proceeding as an affirmation of the earlier September 30th proceeding.

The Court held that its admission, the October 21st statement into evidence was not a prejudicial variance because the defense would have contemplated.

Now, Your Honor, we submit that the -- since the indictment charge the June 16th and the September 30th statements as being proceedings either before or ancillary to U.S. Court or grand jury.

It set out the declarations in each of those two proceedings which were alleged to be consistent.

The only question for the jury was where the declarations in those two separate proceedings so inherently inconsistent that one of them had to be false.

We submit that the October 21st proceeding had no proper purpose in this hearing.

The Solicitor General argues that it could have all set any contention that the statements were a matter of mistake or inadvertence.

We submit that the only issue to the jury was whether the separate -- separately alleged declarations in the two separate proceedings charged in the indictment were so inherently inconsistent under --

Justice William H. Rehnquist: We're not back to (Inaudible) pleadings, are we?

I mean, you've got to show prejudice not just some technical defect in the indictment.

Mr. Daniel J. Sears: Your Honor, I submit due to the peculiar nature of proof under Section 1623 (c) theory that is only the declarations that are specifically set out in the two proceedings that can be at issue before either the trial court or jury.

Justice Potter Stewart: And the Government agrees with you on that here and this Court?

Mr. Daniel J. Sears: Yes and I would submit that the only question of prejudice would come if the October -- if we were considering whether the October 21st admissions were improperly introduced into evidence.

Other than that we would submit they had no proper bearing on the case and that whether --

Chief Justice Warren E. Burger: We will resume -- we'll resume there at one o'clock.

Mr. Daniel J. Sears: Thank you, Your Honors.

Chief Justice Warren E. Burger: You may continue, Mr. Sears.

Mr. Daniel J. Sears: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

Your Honor, if I might address further response to his Honor, Mr. Justice Rehnquist questions with regard to whether or not defendant Dunn was prejudiced by the Government's action in this case.

I would submit that if the Court finds a constructive amendment to the indictment in this case under the reasoning of Stirone versus United States prejudiced need not be found.

However, if the Court feels that the proceedings in which the Government introduced evidence against Mr. Dunn particularly the October 21st proceedings were merely a variance in pleading and proof, then we submit that prejudice would have to be found under that reasoning.

Your Honor, with regard to this Stirone case I would submit that the prejudice against Dunn may be more grievous than Mr. Stirone realized in -- under the facts underlying that case, the Court recall in Stirone that the defendant was charged the Hobbs Act violation.

And the specific allegation in the indictment was the interstate commerce of particular portion of the allegation which concern shipping sand into the State of Pennsylvania to construct a steel plant.

However, trial the Government instead prove that steel was going to be shipped out of Pennsylvania and that was the interstate element of the jury you should look to.

And this Honorable Court in that particular proceeding found that while there was a variance in the sense of the variation between pleading and proof.

The variation here destroyed the defendant's substantial right to be tried only on those charges presented in an indictment returned by a grand jury.

For further stated deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismiss this harmless error.

I would submit the Stirone case has been properly referred to as constructive amendment even though I would interpret the Court's language to proceed on a prejudicial variance basis.

Your Honor, the Tenth Circuit also determined aside from the ancillary issue that Dunn has immunized testimony could be used against him in an inconsistent declarations prosecution because his subsequent affirmation first of all is recantation in the September 30th proceeding in the subsequent affirmation in the October 20th proceeding contained the admission by him that his grand jury testimony was false and it was due to this possible conclusion that the defense on cross-examination of the Assistant United States Attorney at trial established that there was independent evidence to believe the truthfulness of the grand jury testimony.

Even though Dunn had subsequently recanted and that there was reasonably the subsequent recantations may in fact been false.

However, the theory throughout this case was inconsistent declarations and the Government never attempted to prove that his grand jury testimony was false under the 1623 --

Chief Justice Warren E. Burger: Do you read that the Government need to?

Mr. Daniel J. Sears: Your Honor, we would submit they would need to in order to get around the protection that Dunn was afforded by the immunity order.

Justice Byron R. White: But under their theory of the case, they didn't need to.

The way it was submitted to the jury, they didn't need to prove which was true or false.

Mr. Daniel J. Sears: That is correct, Your Honor and Your Honor the argument in the brief may be somewhat unclear.

We do not contend the false declarations under 1623 as not an exception to 6002.

We do argue, however, that the inconsistent declarations method of proof is precluded when part of the declarations relied upon are under an ordered immunity under 6002.

And the Government's method of proof inconsistent declarations in this case without proving that Dunn had violated his immunity order was accepted from use by the Government.

Justice William H. Rehnquist: Counsel, you -- you mentioned the Bane case, hasn't that case been primarily been notable for the fact that almost every court that has had to consider in last 10 to 15 years has distinguished it?

I mean, isn't it pretty much passé?

Mr. Daniel J. Sears: Your Honor, I don't recall the specific holding in the Bane case.

But as I recall, that case stood for the proposition that -- well, I have to confess I just don't recall the holding of Bane.

I would call the Court's attention, however, to this Honorable Court's holdings in Kastigar and Murphy which I think are quite crucial to the consideration of the issues here and more recently in New Jersey versus Portash which was decided March 20th and that's that an individuals immunized testimony cannot be used against him in Portash for impeachment purposes it is compelled testimony and in Kastigar, deciding the extent of 6002 immunity the implication was there that it could not be used for any purpose, that the witness who had testified under immunity was insubstantially the same position if he had complained -- if he had --

Chief Justice Warren E. Burger: Was that rather broad statement necessary to the holding?

Mr. Daniel J. Sears: Your Honor, I believe it was and particularly in view that the Court's recent statement in Portash.

Chief Justice Warren E. Burger: Was it necessary in Portash?

Mr. Daniel J. Sears: I believe it was, Your Honor, under if we are to maintain the holding that when a witness is compelled to testify it completely displaces his Fifth Amendment privilege.

Justice Byron R. White: Well, what privi -- yeah -- yes, but his privilege is not to incriminate himself, isn't it?

Mr. Daniel J. Sears: His privilege is not to incriminate himself --

Justice Byron R. White: Not to be compelled to incriminate himself.

Mr. Daniel J. Sears: That's -- that's correct, Your Honor.

Plus not to have any evidence that is force from his lips to be used against him in any criminal proceeding.

Justice Byron R. White: Well, that is -- that solves your case.

That's the issue in the case.

Mr. Daniel J. Sears: I would hope so.

Justice Byron R. White: Yes, that's -- that's the issue and that really is the issue in the case but in terms of any past crime.

Certainly, the use that use that was made here didn't incriminate them.

Using his grand jury testimony to prove that he might have told the lie in the future, wouldn't it be?

Mr. Daniel J. Sears: Your Honor, it didn't directly incriminate him but it certainly furnished derivative evidence which the Government relied upon him to subsequently convict him.

It produced evidence which the Government use to establish the corpus delicti of a crime.

Justice Byron R. White: Well, yes, a future crime, that's right.

Mr. Daniel J. Sears: Well, Your Honor it really wasn't a future crime because it was testimony uttered in response to the ordered immunity.

The Government didn't prove that he lied in October 21st proceeding or even the September 21st proceeding.

It proves that he might say this before the grand jury --

Justice Byron R. White: Let me ask you this.

Suppose -- suppose that the prosecution was that at this later -- in this later appearance in Court.

This later appearance in Court, suppose the prosecution was that he perjured himself there.

Suppose that was the charge.

It wasn't -- they didn't -- they didn't take the approach of an inconsistent statement.

But they were trying to prove that he perjured himself later.

Could they use his grand jury testimony then to -- as evidence to show that he later perjured himself?

Mr. Daniel J. Sears: Your Honor, I would submit that they could not.

Justice Byron R. White: Yes, and you have to say that or do you?

Mr. Daniel J. Sears: Your Honor, I believe I have to say that to be consistent with Portash and to be consistent with the statement in the reasons behind the statements in Hockenberry and some other Third Circuit, Second Circuit decisions.

Justice Byron R. White: Yes, but you also have to say it to maintain your position with respect to the inconsistent --

Mr. Daniel J. Sears: No question about it.

Justice Byron R. White: Yes, okay.

Justice Potter Stewart: Because you concede that if the prosecution had been for perjury before the grand jury in his immunized testimony that would have been valid.

Mr. Daniel J. Sears: Clearly.

Clearly, I would submit it would fall within the exception to the immunity.

Justice Potter Stewart: And which you accept?

Mr. Daniel J. Sears: Yes.

But Your Honor, what I would submit to the Court is that when he was ordered to testify the Government in his application to the Court and the Court in its order upon that application promised that his testimony would not be used against him directly or indirectly and if criminal proceedings against him.

That is in essence what happened.

It was used directly more directly than the testimony was used against Portash.

This Court decided that it could not be used for impeachment purposes in the Portash case.

Chief Justice Warren E. Burger: Would that -- would that apply to a crime and not yet committed, acts not yet a committed, acts not yet committed?

Mr. Daniel J. Sears: Your Honor, I submit that's were the Government is confusing transactional immunity and use immunity.

And I would -- I would submit that in the Kastigar ruling, if a witness testifies before grand jury to a certain subject matter and then later goes out and commits a crime which may pertain to that subject matter transactional immunity would protect him.

I would submit that would be a broader protection in the Fifth Amendment should offer him.

However, when the very testimony that is compelled from his lips is used to prove a crime against him as part of the corpus delicti of that crime, then we must examine whether that testimony falls within the exception to the immunity.

Unless he has violated his bargain with the Government and the court by testifying falsely or otherwise failing to comply with that order, failing to testify and committing contempt, then I submit that he must be protected by that immunity.

And I would submit the reasoning of that must be consistent with the Government's positions in several other cases that have come up one which is before the Court in which the Court has reasonably granted cert in Apfelbaum.

But more particularly in the Patrick and the Housand and Berardelli line of reasoning.

If the courts are going to continue to compel witnesses to testify under an order of immunity, on the promise that it will not be used against them in inconsistent declarations prosecution, regardless of whether there's prior to or subsequent to as long as it forms a part of the corpus delicti of an inconsistent prosecution.

You cannot subsequently use that testimony in convicting someone without establishing that he's violated his immunity bargain.

And we submit that it cannot be used against Mr. Dunn in this proceeding.

Justice Byron R. White: But you agree I take it that the immunity need be no broader than the privilege?

Mr. Daniel J. Sears: Absolutely, and I submit that it is no broader by protecting Mr. Dunn from use of his very possibly and likely truthful testimony when he did compel when he did testify in compliance with court order.

Justice Byron R. White: Well suppose -- suppose later some other person is charged with murder or robbery or something and also your client is charged with that later robbery also and has claimed that both of them committed a robbery and he says, "Well I was never there.

I don't even know that fellow."

But it turns out that in this grand jury testimony that we're talking about is where he was given immunity.

He can -- he in the course of his testimony was perfectly clear that he knew this fellow.And he had a lot of dealings with even the past.

Mr. Daniel J. Sears: Your Honor, I submit that points out the very difference between --

Justice Byron R. White: Can you say his -- do you say that his grand jury testimony then would not be admissible against him in the later prosecution?

Mr. Daniel J. Sears: I would say the grand jury testimony could not be used against him but had he had transaction immunity it would have protected him but they -- the Government could establish by extrinsic evidence, the crime.

He's not protected from prosecution for the crime.

Justice Byron R. White: No, I understand but you say that in his prosecution for the later robbery along with somebody else, his grand jury testimony could not be used against him.

Mr. Daniel J. Sears: That's correct, Your Honor.

As long as it was truthful and as long as the Government could not prove that it was false or he had otherwise violated this immunity order.

Your Honor, the few remaining moments I have, I would like to reserve for rebuttal.

Thank you.

Argument of Andrew L. Frey

Chief Justice Warren E. Burger: You may proceed.

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

This is a case in which it is clear that the petitioner lied, either in his grand jury testimony or in his subsequent sworn recantation of that testimony.

This is also a case in which it is clear that the false swearing by the petitioner adversely affect that the administration of justice either by causing Mr. Musgrave to be wrongfully indicted of a felony or by forcing the Government to drop the felony charges against Mr. Musgrave although they were all well-founded.

Now, the question before this Court is whether petition is perjury palpable on its face from a comparison of the contradictory statements may be proved by placing those statements before the jury or whether the immunity granted in connection with the first of those statements preclude such a course of proof.

Now the case also involves an issue about whether the September 30th statement in Musgrave's lawyer's office was a proceeding ancillary to a court and if not whether that is fatal to the prosecution in this case.

I intend to rely on our brief on those points unless the Court has any questions and move on to the more important constitutional immunity point.

Justice Potter Stewart: Do you concede that the -- that unless the what -- the transaction in the lawyer's office was ran by the statute and this conviction cannot stand.

Mr. Andrew L. Frey: We do.

But we say that it was proceeding ancillary to a court and I might point out in that connection that if the Court withhold that this kind of a proceeding which is essentially the preparation of an affidavit for submission to a court is not ancillary to a court.

It would have consequences beyond the rather unusual circumstances of this case because it would affect civil litigation where its common place to submit affidavits in connection with our opposition to summary judgment, motions and then the witness may get up at trial and after having forced the trial and give testimony that's completely contradictory --

Chief Justice Warren E. Burger: Where would a pretrial deposition fit in this?

Mr. Andrew L. Frey: It would also be ancillary to a court if it was taken for use in a judicial proceeding.

Justice Potter Stewart: I think the petitioner concedes a --

Mr. Andrew L. Frey: He conceded us with that as with a deposition.

We don't contend that this was a deposition under --

Justice Potter Stewart: No, I know.

This was an affidavit prepared by lawyer.

Mr. Andrew L. Frey: This was an affidavit and we say it's like the affidavit that would be prepared for summary judgment motion or in connection with the 2255 motion.

Justice William O. Douglas: Just one other point on that, Mr. Frey.

If instead of using the affidavit in the October 21st hearing, it merely put the man on the stand and had the affidavit there in order -- yes, you often do the witness had an affidavit would put you to get impeachment necessary.

Would you still say it was a proceeding?

Mr. Andrew L. Frey: Well, we're not saying -- we still think there's no doubt that the October 21st --

Justice William O. Douglas: I understand, would you still say the September 30th?

Mr. Andrew L. Frey: Yes, we -- our position is that the September 30th proceeding at the -- when he made the statement then and there, that was a proceeding ancillary to a court.

Justice William O. Douglas: And you'd take the same position even if there have never been a proceeding on October 21st, yes.

Mr. Andrew L. Frey: We would take that position but we have an alternative argument that if the Court is not satisfied with that that at least when the affidavit is in fact submitted to the Court, that it retroactively makes it --

Justice William O. Douglas: Had the effect to make in the earlier --

Mr. Andrew L. Frey: And he in effect takes his chances if he gives sworn testimony that he knows as for use in connection with the federal court case.

I don't think he can be heard to complain that later on it was submitted to the Court and he didn't expect it.

I think he takes his chances that he is exposed to perjury but -- (Voice Overlap).

Justice William O. Douglas: But you take the chance that you could have indicted him October 21st proceeding also.

Mr. Andrew L. Frey: Well, he -- I think it's clear that we could have indicted him for the October 21st proceeding.

I don't think that's really disputed.

Justice William H. Rehnquist: I would think your affidavit by itself contention is a good deal weaker than your deposition type of contention because of the word proceeding in the statute.

I think it's a common practice for people just to be handed affidavits and sure they're told they have to swear to him and there's a notary in the room but they may not read every word but that's not to say they may not -- the false statements may not be made punishable but it's kind of hard to envision the signing of an affidavit as a proceeding.

Mr. Andrew L. Frey: Well, but that it seems to me goes -- I mean the kind of concern that you're addressing is an issue for the jury as to his intent and knowledge in making the statements.

Justice William H. Rehnquist: Or the formalities of the situation?

Mr. Andrew L. Frey: Well, I'm -- we are not suggesting that this is in fact the deposition.

Now, we are suggesting that he knew that it was for use in the court proceeding and that indeed he later on participated in its presentation in the court proceeding.

Chief Justice Warren E. Burger: What you're really saying is that it's functionally equivalent to use that phrase over deposition, aren't you?

Mr. Andrew L. Frey: Well, in some respects but there was not counsel for both parties to the case was not present and since it is connection with the criminal case their restrictions on depositions that don't exist on the civil case.

Chief Justice Warren E. Burger: There's no hostility between the person who signed the affidavit and the person who presumably prepared it here, is there?

Mr. Andrew L. Frey: In this case, well, I don't -- I can't say whether there was hostility or not but they were both on the same side of the Musgrave case whatever their motivations or feelings are.

Chief Justice Warren E. Burger: But at that time, it was prepared and signed they all thought they were on the same high road presumably?

Mr. Andrew L. Frey: I gather petitioner felt it better.

Chief Justice Warren E. Burger: Helped Mr. Musgrave out?

Mr. Andrew L. Frey: Yes.

Justice William H. Rehnquist: But now does that cut out in favor or against you really?

Becuase --

Mr. Andrew L. Frey: I don't.

Justice William H. Rehnquist: -- the proceeding concept to me suggests a fairly formal type of situation where you have perhaps adversary parties and that sort of thing.

Mr. Andrew L. Frey: Well, I don't want to.

I think our view is that this is a proceeding ancillary to a court.

I agree that it is not as formal as many proceedings ancillary to a court would be.

But I think that if the Court determines that it's not a proceeding ancillary to a court even though it was there after submitted to the Court, as I say it will create a significant gap in the covered 1623 which was designed to protect judicial proceedings basically and to give added protection that the perjury statute 1621 which covers all --

Justice William H. Rehnquist: But what if it weren't there after submitted to a court?

What if it were simply a naked affidavit?

Mr. Andrew L. Frey: Well, I would say that if he simply prepared an affidavit and put it in a mail to Musgrave's lawyer, that would be a much more difficult case I'm not clear that we would contend that that was the proceeding ancillary to the Court.

Justice Potter Stewart: Or the affidavit had --- this was filed in the Court?

Mr. Andrew L. Frey: Indeed, it was -- he testified in the Court that the statements that he had made were wholly true and that is grand jury testimony.

Justice Potter Stewart: But the affidavit itself was filed and was the basis for the motion, wasn't it?

Mr. Andrew L. Frey: I think so.

Justice Potter Stewart: On which there was a hearing.

Is that correct?

Mr. Andrew L. Frey: That's right.

And it definitely affected the provision process.

Justice Potter Stewart: So that incident was quite similar to an affidavit filed in support or an opposition to a motion for summary judgment.

Mr. Andrew L. Frey: Absolutely, yes it's very similar to that.

Justice William O. Douglas: As I understand your position which I'm sure I'm right.

You would take the same position if instead of happening it in the lawyer's office the lawyer would send an investigator out to his house for example.

You got to him sign the affidavit and then they never even filed the affidavit in court you'd still say the same thing.

Mr. Andrew L. Frey: Well, I suggested that I would have a lot more difficulty with that.

Justice William O. Douglas: Why?

What's the difference between that?

Mr. Andrew L. Frey: Well, because if it was never filed in Court, I think it would depend on more facts if he went and he said we want you to make a statement in connection with a judicial proceeding.

Justice William O. Douglas: Right.(Voice Overlap)

Mr. Andrew L. Frey: And then I think there was an argument that that would be ancillary to a court which is --

Justice William O. Douglas: And simply, your argument is exactly the same if I read your brief correctly.

Mr. Andrew L. Frey: Well, --

Justice William O. Douglas: If you don't require it to actually be filed under your theory.

Mr. Andrew L. Frey: We do not -- that's right, our theory does not depend on some --

Justice William O. Douglas: And I don't think it makes any difference if it's in a lawyer's office.

It's a sworn statement for use in connection with the allegation.

Mr. Andrew L. Frey: Yes, that's correct.

Justice William O. Douglas: Yes.

Justice Thurgood Marshall: I'm worried about the trappings I used at (Inaudible) that you need to bring this under the Court.

For example, suppose they got one to the bar and (Inaudible)?

Mr. Andrew L. Frey: Well, you mean if he gave a sworn statement which was made before somebody authorize to administer oaths and he know --

Justice Thurgood Marshall: Bar and (Inaudible).

Mr. Andrew L. Frey: Well, --

Justice Thurgood Marshall: To try your false in the Court as I can.

Mr. Andrew L. Frey: I'm afraid that our position would still be as Justice Stevens suggested that would be ancillary to a court that might be question if it was in a bar by whether it was drunk and knew what he was doing which would go to his guilt in terms because the statements have to be knowing statement.

Justice Thurgood Marshall: Well, what is it that makes it “ancillary” to the Court?

Mr. Andrew L. Frey: The fact that it is given for use in connection with the judicial proceeding in the federal court and given under oath.

Justice Potter Stewart: And knowing they've given for that purpose.

Mr. Andrew L. Frey: Knowingly given as a requirement of the signing of guilt.

Chief Justice Warren E. Burger: In the sense that you suggested as an affidavit on summary judgment?

Mr. Andrew L. Frey: Yes, I think it's -- I think it's very similar.

I'd like to turn if I may to the -- where we view as the more important --

Justice Harry A. Blackmun: Mr. Frey before you get to that, if you lose this first issue, do we have to meet the second?

Mr. Andrew L. Frey: Well, I don't think you have to meet the second issue but we suggest that you should meet the second issue because what will happen in all likelihood is that we will go back and re-indict Mr. Dunn on either of two theories.

Either we could use a 1621 indictment that is a straight perjury indictment charging that his testimony in the lawyer's office was false in using his grand jury testimony as evidence of that.

Or more likely, we will charge an inconsistency between the grand jury testimony and the October 21st court testimony which concededly was a proceeding before court.

Justice Harry A. Blackmun: So the U.S.Attorney --

Mr. Andrew L. Frey: The same issue --

Justice Harry A. Blackmun: -- will do what he should have done in the first place?

Mr. Andrew L. Frey: Well, it would.

I think it would have better have they done it in the first place although not necessary.

Justice William J. Brennan: Well, I was just wondering if we aren't in your theory if you lose the first issue, we wouldn't be rendering an advisory opinion.

Mr. Andrew L. Frey: Well, I don't believe you would because it is an issue that will arise in the further litigation of this case and it will be back before the Court shortly assuming you still --

Justice Byron R. White: Well, that's no answer to its (Inaudible).

It doesn't suggest that when the advisory and it might suggest that might even be advisory.

Justice Harry A. Blackmun: There isn't any second indictment yet.

Justice Potter Stewart: That's right.

Mr. Andrew L. Frey: Well, there is not yet a second indictment and --

And until there is --

Mr. Andrew L. Frey: But I think the Court has the, in a two-issue case where there are two independent issues, the court has the choice of starting with on issue or the other and it's a matter of --

Justice William O. Douglas: The constitutional issue or the statutory issue, which do we start with?

Mr. Andrew L. Frey: Well, the -- well, I --

Justice William O. Douglas: Well, you think that the -- your position is the immunity statute co-extensive with the constitutional privilege that's really a constitutional issue.

Mr. Andrew L. Frey: It is a constitutional issue that builds a statutory aspect to that issue.

Justice William O. Douglas: Yes, but don't we normally start with the statutory issue?

Mr. Andrew L. Frey: Well, I'm not suggesting by any means that you're required to reach the other issue if you decide any ancillary proceeding issue adversely to us.

I'm just suggesting that it would be not be improper for you to do so.

In view of the likelihood that the issue will persist in this same litigation not technically the same because it would be a new light.

Justice William O. Douglas: But it would persist that if there's an acquittal, it's all over then there'd be no appeal, there will be no nothing.

Mr. Andrew L. Frey: Yes, I understand that.

I understand that.

It's not -- it's not necessary to dispose of this case.

Justice Potter Stewart: The question is that the question --

Mr. Andrew L. Frey: I think it's the prudential question --

Justice Potter Stewart: -- is whether it's desirable or wise or even proper?

Mr. Andrew L. Frey: Yes.

Justice Byron R. White: Of course we don't mean to agree with you that we are not entitled to look at the grand -- at the -- our court statement either.

Mr. Andrew L. Frey: You don't need to agree with us now.

Justice Byron R. White: The Court of Appeals might be right.

Mr. Andrew L. Frey: They might be right.

Of course.

Justice Byron R. White: In which event we reach the others?

Mr. Andrew L. Frey: You would, yes.

Now turning to that issue, our position on the constitutionality of the use that we made of petitioner's immunized grand jury testimony in this case is the product that two propositions both of which we believe to be reasonably well-settled.

Now, the first proposition is that the immunity that must be granted to displace a valid claim of the privilege against self-incrimination has to be co-extensive with but need not be any broader than the scope of the privilege which was available to the witness at the time he invoked it.

In other words, when the Government seeks to make some use of compelled testimony against the witness who gave that testimony, the permissibility of making that use can be ascertained by asking yourself the question, could he have invoked the privilege against compulsory self-incrimination to refuse to answer to guard against this prospective use of his testimony?

Now, the second proposition on which we rests is that at the time petitioner was called to testify before the grand jury and invoked his privilege, he could not have validly invoked his privilege on the grounds that later on he might choose to give contradictory testimony and he did not want to create evidence now that could be used to show the falsity of subsequent non-immunized testimony.

Now, if those two propositions are accepted I think we win the case and I don't understand petitioner to contest the second of those that is that he could not have invoked the privilege solely on the ground of a possible future perjury.

He does stoutly maintain, however, that his immunity is sweeping regardless of the scope of his privilege at the time he acquired the immunity.

In other words, he says he invalidly invoked the privilege with regard to his drug dealings at the Colorado State Penitentiary, something that we don't dispute.

Consequently, he says the Government may not make any use of his immunized testimony but must leave him in the same position as if he had not been compelled to testify.

So the question before the Court is whether a valid claim of the privilege gives them immunity buff as to any criminal case used of immunized testimony.

Or as we argue, does it only provide immunity co-extensive with the privilege.

Now, the Court's prior decision looked our way on this issue.

Nearly 70 years ago, in Glickstein and in Heike, the Court stated the basic principle that is central to our constitutional analysis.

For instance in Glickstein, the Court said that the immunity of course is required to be complete.

That is to say, in all respects commensurate with the protection guaranteed by the constitutional limitation referring to the privilege against self-incrimination.

In Heike, the Court said that in order to avoid giving what it called a gratuity to crime, the immunity afforded under the statute that was there in question should be construed and I quote, “as co-terminus with what otherwise would have been the privilege of the person concerned.”

Now, this same theme of symmetry between the privilege and the immunity also underlie this Court's decisions in Murphy against the Waterfront Commission and in Kastigar.

I think that it is clear from those decisions that the Court has held that what the Constitution requires in the way of immunity is defined by the privilege that the witness has.

Justice Potter Stewart: And the privilege of course was not to testify at all?

Mr. Andrew L. Frey: Well, I understand that but let me point out the fallacy in his position that he must be left in the same position as if he had not testified at all?

The first, --

Justice Potter Stewart: You would agree that that's what the privilege, that would be consequence of the exercise or the privilege, would be not to testify at all.

Mr. Andrew L. Frey: Yes, and -- will save himself a lot of inconvenience as he would save himself possibly losing his job.

He would save himself public obloquy.

He would save himself many inconveniences but the fact that he is not left in the same position when he's compelled to testify as he would have been had that claim --

Justice William H. Rehnquist: Mr. Frey, could I interrupt you for a moment.

Are you speaking in response to Justice Stewart's question of the privilege of a defendant and a criminal case not to take the stand?

Mr. Andrew L. Frey: No, I'm speaking of the privilege of a witness to --

Justice William H. Rehnquist: Well, I understood --

Mr. Andrew L. Frey: Refused to answer questions that are incriminating.

Justice William H. Rehnquist: That's not a privilege not to testify at all as I believe and understood it's a privilege not to compulsorily incriminate oneself.

Mr. Andrew L. Frey: I agree although as to the particular questions that were asked here, he had a right not to answer those questions because his answers would have been self-incriminatory.

Chief Justice Warren E. Burger: Well even in the trial courts, the privilege is not absolute to justify its assertion, is it?

Mr. Andrew L. Frey: That's true, it is not --

Chief Justice Warren E. Burger: It can be an inquiry by the Court to determine whether it's a validly assertion.

Mr. Andrew L. Frey: And the -- and the privilege exists only in the areas where he has exist only in the areas where he has a risk of current self-incrimination which of course is the point that we're saying here that he doesn't have.

Now, the fallacy and the notion that he should be in the same position as if he'd been allowed to remain silent is illustrated by the fact that he can prosecuted for perjury in making those statements.

He clearly is not in the same position as if he had remained silent and looking one step beyond that, why is it that he can be prosecuted for perjury?

Well, I think the reason why he can be prosecuted for perjury is that his privilege did not entitle him to commit perjury.

He couldn't invoke the privilege on the grounds that his statements might be false be used against him in perjury prosecution.

Now, we say the very same thing is true here.

He could not invoke his privilege on the guard against the use that we have made of his testimony in this case.

So therefore, I don't -- I don't think his argument is right.

Now, we also illustrate our point by looking at the situation with transactional immunity.

I think it was clear in Kastigar and the cases before Kastigar that transactional immunity satisfied the requirements of the privilege against self-incrimination.

If that statute no longer allows it but if petitioner had been given transaction immunity, as once was permitted, his statements could have been used against them to prove a subsequent perjury because the transactional immunity would have been with regard to the offenses about which he was being compelled to testify.

Now, his answer to this analysis is to invoke certain language in Kastigar and in Portash.

But we don't think that language was addressed to the problem that we have in this case at all.

The Court was not examining in that case the question of whether the immunity must exceed the scope of the privilege.

In both cases, what the Court was talking about was the uses that the witness would have been privileged to resist at the time testimony was compelled.

In Kastigar, the Court was concerned with whether use and derivative use immunity was sufficient to displace the privilege and in that respect the Court was comparing it with transaction immunity and the Court was saying that use and derivative use immunity since it protects use in any respect of his evidence is sufficient.

Clearly, they were focusing on use to prove the crime about which he was required to testify.

Now, Portash is exactly the same situation.

It's clear from the court's holding that Portash had a right to invoke his privilege against self-incrimination to guard against the use of compelled testimony to impeach and surely be prosecuted for the crimes about which he testified so that this case is completely different and you can't simply lift that language out of those cases and in effect, I think automatically are unthinkingly applied to this quite different situation.

Now, even if the Constitution permits the kind of use immunized testimony that was made in the present case, there does remain a question whether such use is brought by the immunity statute Section 6002.

Now, we of course contend that the statute does not bar this use.

Now at part, we rely on the explicit inclusion in the last clause of Section 6002 of false statement prosecutions.

But these are more fundamental point that shows that the statute is no bar to the kind of use made here so long as that use is constitutionally permissible.

This Court has construed immunity provisions like that in 6002 and a number of prior cases.

In Glickstein for instance, it was confronted with the statute which barred used of immunized testimony in any proceeding and it held that that statute that did not bar use in a perjury prosecution.

And in Bryan, the Court held that a statute which barred any use “except in a prosecution for perjury” did not bar use in a contempt case.

Now in both of those cases, the Court recognized that the kind of language that were dealing with the immunity statute here refers to use in connection with the prosecution for the offense that is disclosed by the testimony itself and not for future offenses such as contempt or perjury as to which the privilege was unavailable at the time of the compelled testimony.

Now, the Court in this case should analyze the proviso of the Section 6002 in precisely the same manner.

And if it does so, it will be giving to that statute the meaning that Congress intended.

The immunity statute was based on -- closely on the report of the National Commission on Reform of Federal Criminal Laws.

That Commission proposed that “the immunity conferred be confine to the scope required by the Fifth Amendment.”

And both the House and Senate Report stated explicitly, “this statutory immunity is intended to be as broad as but no broader than the privilege against self-incrimination.”

Now the last clause in Section 6002 which specifically list perjury false statement and the third clause which I think basically they had in mind, contempt cases was added not as a limitation on the use that could be made of immunized testimony but out of an abundance of caution to make sure that no court would prohibit as long as the constitutional allowed it but no court would prohibit the use in a perjury case or a false statement case or a contempt case.

Now, the same policy concerns that led the Court in Glickstein and in Bryan to refused to read limitation into the immunity statutes in those cases are also operative here.

In effect, what the Court said in Glickstein and in Bryan is Congress can't really have meant.

We can't believe that Congress meant to protect the defendant or the witness against a perjury or a contempt prosecution even though the Constitution doesn't require it because that would defeat in large part the purpose of giving him the immunity.

Now, the same is true in this case.

He is given the immunity.

He is compelled to testify and then he walks out of the grand jury and a couple of weeks later, he encounters the defendant who is now indicted and the defendant apparently by whatever means persuades him to recant his testimony.

The recantation has totally destroyed the value of the immunity that this witness was given.

It's -- it's undone the usefulness of the statutory scheme that Congress created.

And I think it would be very unfortunate and certainly not what Congress would have wanted if in the future when situations like this arise, an indicted defendant can say to a witness who gave immunized testimony, "Well, you can recant it, don't worry, look at Dunn against the United States.

They can't use your grand jury testimony to show that you're lying the second time around."

So in sum, we suggest that neither the Constitution nor the statute bars the use that we made of the immunize testimony in this case and accordingly the judgment of the Court of Appeals should be affirmed.

Chief Justice Warren E. Burger: You're really suggesting that the agreement on the immunity should be ignored for failure of consideration in effect.

Mr. Andrew L. Frey: Well, that is a secondary argument.

My first argument is that the agreement never encompassed the promise not to make the kind of use that the Government made in this case, that the Constitution doesn't require that kind of a promise and that it would be foolish for us as Justice White said in the concurrence in Murphy against the Waterfront Commission that it would be harmfully and wastefully broad construction of the immunity.

Justice Byron R. White: Wasn't -- wasn't this even more specifically said by my Brother Brennan in the Fried case in his --

Mr. Andrew L. Frey: Yes, I think the Fried case of course is, it's a case on which we quite strongly rely on.

It's a case in which -- it didn't deal with immunity statute that was subject to the construction that there was a statutory bar to a particular use and I think that was what I was trying to address in answering the Chief Justice's question.

On the constitutional point, Fried has very strong support for us because of course in Fried there was a statute that gave only contemporaneous and past offense immunity and not future offense immunity and the Court unanimously held both the Court's opinion and Justice Brennan emphasized that he could not complain that his statement might be used against him in connection with the future offense.

So that is we've relied heavily on our brief in that point but there is an agreement here that the Constitution may allow the Government to do but the statute doesn't allow it.

And it's to that argument that I was addressing the Chief Justice's question and I was saying that first of all there was no bargain with him that we wouldn't make the kind of use that we made.

And secondly, I think the Chief Justice's right in suggesting that from a policy standpoint, he's robbed us of the -- of what we were entitled to.

Once he got that immunity, we were entitled to his truthful testimony and he's undone taken away the value of that by going out and giving sworn recantation of that testimony which destroyed the prosecution.

Justice William O. Douglas: Mr. Frey, this is really an ancillary.

If I understand you correctly to the statutory argument based on the words or otherwise because you're in effect saying that by recanting he breaches the -- he violates the substance or just as much as if he have given false testimony in the first place.

Mr. Andrew L. Frey: Well, I am saying that and it is (Voice Overlap) and obviously the problem only arises because the otherwise language is susceptible to a limiting construction.

Justice William O. Douglas: But even if you give it to limiting instructions, usually you've made an ancillary in the sense that just as he had an obligation to tell the truth, he also implicitly has agreed not to recant?

Mr. Andrew L. Frey: Well, I suggest that and I suggest that a contrary construction adverse to our position would not comport with what Congress must have intended.

Thank you.

Rebuttal of Daniel J. Sears

Chief Justice Warren E. Burger: Do you have anything further, Mr. Sears?

Mr. Daniel J. Sears: Mr. Chief Justice, if I may just have a few concluding remarks.

Your Honor, respondent's argument is preceded on the basis that if this Court rules that immunized testimony cannot be used in establishing the corpus delicti of an inconsistent declarations prosecution, that means anybody has a free license to commit perjury.

That is not what we're contending in this case.

We're merely contending that the Government is obliged once it offers immunity to prove that a man has perjured himself under testimony.

That was not established in this case.

To the contrary, the evidence in the record was that there was much to believe the truthfulness of Dunn's grand jury testimony under compulsion.

Chief Justice Warren E. Burger: Do you think the Government got what it bargained for?

Mr. Daniel J. Sears: Your Honor, I have to conceive that what Mr. Dunn did is repugnant to every moral obligation but I submit it was not a violation of Section 1623 and 1623 (c) was not a proper method of proof.

Chief Justice Warren E. Burger: But he's still claiming all the benefits of that bargain, isn't it?

Mr. Daniel J. Sears: Your Honor, he has a right to claim the benefits of that bargain and yes, he is.

Chief Justice Warren E. Burger: Without any adjustment in the price?

Mr. Daniel J. Sears: Your Honor, I submit the Government had its options available.

It had the option of taking the September 30th transcript as extrinsic evidence in proving that he lied before the grand jury.

Of course then, the defense would have the right to defend his grand jury declarations were truthful.

That was never a theory in the case.

If the Government --

Justice Thurgood Marshall: Is there any right of the Government to rely on the witness's testimony that he will not recant it?

And isn't that the reason for putting it under oath?

Mr. Daniel J. Sears: Absolutely, Your Honor.

But I submit --

Justice Thurgood Marshall: But you won't take that away?

Mr. Daniel J. Sears: No, Your Honor, that's not what we're asking.

We're asking that when there is reason to believe that the testimony is truthful under immunity that it not be subsequently use against him in a criminal proceeding which we submit is the very ruling of Kastigar.

Justice Thurgood Marshall: And I hope so, it's just that the belief that he shall not recant.

Mr. Daniel J. Sears: Your Honor, I would submit that there would certainly be the hope.

Justice Thurgood Marshall: Well, isn't that reason you put him under oath?

Mr. Daniel J. Sears: Yes.

Justice Thurgood Marshall: So that if he does recant, --

Mr. Daniel J. Sears: Well, Your Honor, if he recants --

Justice Thurgood Marshall: You don't want to cut that out, do you?

Mr. Daniel J. Sears: Your Honor, only if he recants in another ancillary proceeding.

But that is not what happened in this case.

And unless the Government is going to go that one additional step in providing extrinsic evidence to prove that one of his declarations was false under 1623, then no violation ensues.

And simply because he testifies inconsistently and it seems to me this is the proceeding on which Hockenberry and (Inaudible) and some of the other Third Circuit cases preceded which this Court need not accept.

But I think which was alluded to in the Portash ruling last week is that if he does testify truthfully, it should not be used against him for impeachment or in any criminal proceedings whatsoever and that's what we ask the Court to rule.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.