UNITED STATES v. PAYNER
Legal provision: Amendment 4: Fourth Amendment
Argument of Mccree
Chief Justice Warren E. Burger: We'll hear arguments next in United States against Payner.
Mr. Solicitor General.
Mr. Mccree: Mr. Chief Justice and may it please the Court.
This case presents the question whether the District Court possesses, and if so, whether it should've exercised supervisory power to suppress relevant evidence allegedly obtained in an illegal search that did not violate respondent's rights under the Fourth Amendment.
The facts giving rise to this controversy are as follows.
In September 1976, respondent was indicted in the United States District Court for the Northern District of Ohio of a charge of knowingly and willfully making a false statement in a matter within the jurisdiction of a federal agency in violation of 18 United States Code, Section 1001.
Specifically, he was charged with falsely stating in his 1972 federal income tax return that he did not have a foreign bank account when in fact he knew that during 1972, he had such an account in the Castle Bank and Trust Company of Nassau, Bahamas.
The critical piece of evidence in the Government's case was a loan guarantee agreement dated April 28th, 1972, in which respondent pledged the money in his Castle Bank and Trust Company account to secure a loan of $100,000 extended by the Bahamian Bank through a -- an American correspondent, the Perrine Bank of Florida to a Michigan land development company in which he was interested.
The guarantee agreement was produced by the Bank of Perrine, Florida in response to Government subpoenas issued in April and May, 1974 requesting the production of all documents concerning the Bank of Perrine's business affairs with Castle Bank and Trust Company.
Other evidence, also critical to the conviction, was furnished by a former President of Castle Bank and Trust Company who testified that he had checked respondent's bank account with Castle Bank and Trust and that the amount entered at the time of the loan exceeded $100,000.
Before trial, respondent moved to suppress this evidence on the ground that it has -- had been obtained as a result of an illegal search conducted in Miami, Florida of a briefcase belonging to a Herbert Michael Wolstencroft, a Castle Bank and Trust Company officer, indeed a trust officer who is visiting in the United States in January 1973.
The person primarily responsible for the search of the briefcase was Norman Casper, a private investigator who was used as an informer by the Internal Revenue Service and who was working with the encouragement and assistance of Special Agent Richard Jaffe of the Internal Revenue Service. Casper admits -- Wolstencroft earlier, when Casper had visited Nassau in an effort to obtain information useful to the Internal Revenue Service in the course of a long time investigation of it called “Operations Trade Winds” which was an inquiry into the use of offshore tax havens for illegally obtained or employed funds by United States taxpayers.
And the Internal Revenue Service had learned that a suspected taxpayer in San Francisco had an account in the Castle Bank and Trust Company and that the Bank of Perrine Florida was an American correspondent of the Bahamian Bank.
Casper reported this discovery to Jaffe who encouraged him to try to obtain a list of the depositors in the Castle Bank and Trust Company.
On two of Wolstencroft's visits to Miami, Casper had introduced him to women, one of whom was a Sybol Kennedy, a private investigator who sometimes worked for Casper.
When Casper learned that Wolstencroft was coming to Miami in January 1973, he arranged with Sybol Kennedy to help him secure a list of depositors in Castle Bank and Trust.
Wolstencroft visited Kennedy at her Miami apartment and after which, the two went to a restaurant for dinner.
Casper then entered the apartment by means of a key which had been given to him by Kennedy and took Wolstencroft's locked briefcase to a locksmith who had -- as the Court found, had been recommended by Agent Jaffe.
When the locksmith made a key by means of which the briefcase was opened, it was taken to a photographer by IRS Agent Jaffe where the contents were photographed.
The briefcase was returned to Kennedy's apartment before she and Wolstencroft returned from dinner.
The Internal Revenue Service ratified this by paying Casper $8000 for his services out of which he paid $1000 to Kennedy.
Jaffe made inquiries about the persons whose names appeared in the photograph material and learned from the Cleveland Office that respondent Payner's returns for the years 1968 through 1971 were under investigation.
The Cleveland Special Agent was told of the listing of Payner's name but nevertheless, the investigation in Cleveland was closed for want of evidence and the returns from 1968 to 1971 were accepted as filed.
Thereafter, the Department of Justice initiated a grand jury investigation in Miami into secret bank accounts.
The subpoenas were issued in April and May 1974 and the critical loan agreement was produced.
This opened the investigation again in Cleveland which led to respondent's indictment involving his 1972 return.
Respondent waived the jury trial and moved to suppress the evidence, particularly the loan guarantee and any testimony associated with it.
After some proceedings not relevant here, the Court entered a verdict of guilty and then set it aside when it ordered the loan guarantee and the testimony related to it suppressed.
The District Court held that the suppressed testimony was tainted by the illegal search of Wolstencroft's briefcase.
It held that respondent lacked standing under the Fourth Amendment to challenge the legality of the January 1973 search, but that this, the Government agent's conduct demonstrated a “knowing and purposeful bad faith hostility to a person's fundamental constitutional rights” that the Due Process Clause of the Fifteenth Amendment requires suppression of the challenged evidence.
In the alternative and very candidly because it questioned the validity of its Fifth Amendment determination, it held “the federal court's supervisory power over federal prosecution should be invoked to exclude evidence obtained by Government conduct which is either purposefully illegal or motivated by an intentional bad faith hostility to a constitutional right.”
The Court of Appeals affirmed the District Court's conviction in a brief per curiam opinion basing its determination solely on the exercise of supervisory powers and expressly not reaching the constitutional question.
This Court granted certiorari on the question of the asserted exercise of supervisory powers to suppress relevant and probative evidence of criminal activity even though respondent's constitutional rights were not violated by the acquisition of the evidence.
Our argument urges this Court to hold first that Congress has the undoubted power to declare within constitutional limits what practices and procedures will govern trials in federal courts.
And we submit that Rule 402 of the Federal Rules of Evidence prohibits the exercise of any supervisory power that District Court might otherwise have had for the purpose of suppressing relevant evidence derived from the search of Wolstencroft's briefcase.
The rule of course provides all relevant evidence is admissible except as otherwise provided by the Constitution of the United States, by act of Congress, by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority.
Now we submit that this evidence that was obtained from Wolstencroft's briefcase was not prohibited by the Constitution of the United States at the urging of Payner by any act of Congress, by the Federal Rules of Evidence or by other rules which -- prescribed by the Supreme Court pursuant to statutory authority which would mean amendments or additions to the Federal Rules of Evidence.
Justice William H. Rehnquist: General McCree, am I right in thinking that Congress made some changes of its own in these Federal Rules of Evidence when they were transmitted by this Court?
Mr. Mccree: Indeed, the Congress did and perhaps most relevant to -- to our purposes here, it changed the last sentence from other rules prescribed by the Supreme Court pursuant to its authority or words to that effect to pursuant to statutory authority which was -- we submit intended to indicate that the source of the Supreme Court's authority to amend would be the Congress of the United States.
Chief Justice Warren E. Burger: You say, I take it, Mr. Solicitor General that this is an express declaration by the Congress on the jurisdiction of the federal courts and of this Court?
Mr. Mccree: That's -- that is our submission.
This is an express declaration by the Congress that the Court shall not exercise a supervisory power relative to the exclusion of relevant evidence.
Now, we don't say that the courts are bereft of all supervisory power.
As a matter of fact, our brief suggests that supervisory power is merely part of the general power that courts possess to decide cases and controversies.
And the Court everyday uses supervisory powers when it determines the procedure that will be followed in the Court.
But the Congress has the power to say that the Court shall not use supervisory power unless it is subsumed in one of the specified sources of power --
Chief Justice Warren E. Burger: Let me put it in another --
Mr. Mccree: -- to exclude relevant evidence.
Chief Justice Warren E. Burger: To put it in another way, are you saying that up to the time of the adoption of Section 402, the powers of the Court -- the inherent powers of the Court may well have embraced this kind of supervisory authority, but that Congress has deliberately withdrawn that jurisdiction from the courts now.
Mr. Mccree: I would agree with that statement precisely.
Chief Justice Warren E. Burger: That's -- that's --
Mr. Mccree: And this Court has in the past prior to the adoption of Section 402 purported to act pursuant or to recognize the use of supervisory powers, but -- and even in the area of the admission of relevant evidence and we don't say that the Court doesn't still possess supervisory powers for other purposes.
As a matter of fact, these rules, the so-called wild card rule on -- on hearsay evidence allows courts to use a power which we would analogize to the supervisory power to admit evidence that has the authenticity or the same or equivalent badges of authenticity as specified exceptions to the hearsay.
Justice Potter Stewart: Well, supervisory power is -- is really just another word for the power that any appellate court has to correct non-constitutional errors, isn't it?
Mr. Mccree: I would agree with that except I would -- I would include a trial court as well in that and I think it does have power.
It -- it is the judicial power of the United States to decide cases and controversies.
Justice Potter Stewart: Right.
Mr. Mccree: And in the course.
Justice Potter Stewart: And -- and it's the --
Mr. Mccree: And to correct error.
Justice Potter Stewart: -- not the power but the function of a -- an -- of an appellate court to correct prejudicial errors and to reverse judgments if prejudicial errors have occurred and if they're non-constitutional errors, you can call that supervisory power if it pleases you but it --
Mr. Mccree: Unless -- yes, we would agree Mr. Justice Stewart and we would say that the Congress has a power to proscribe rules or procedure in evidence for the federal courts.
This Court in Palermo versus the United States held specifically that the language that was used was the power of this Court to prescribe rules or procedure in evidence for the federal courts, exists only in the absence of a relevant act of the Congress.
We submit that the Congress can provide the circumstances under which relevant testimony may be excluded from evidence.
Of course, it cannot tell this Court that it can't do it in contravention of the Constitution.
There isn't any question about that and that's one of the specified grounds of course on which the Court can exclude.
Justice Byron R. White: Well, I take it then, you say that the -- that the rules and that Section in particular tells the courts that unless you find some constitutional ground for exclusion or unless you find some ground for excluding expressed in these rules.
Mr. Mccree: Or a statute.
Justice Byron R. White: Or some other statute, you may not exclude the relevant evidence.
Mr. Mccree: That's the way we read Rule 402 and we say --
Justice Byron R. White: And that -- and that prior to the rules, the rules of evidence were -- you found them in the books, the courts had made them up.
Mr. Mccree: Well, more or less --
Justice Byron R. White: And --
Mr. Mccree: -- but not out of context.
Justice Byron R. White: But -- but then they'd -- then -- then it was decided to -- to reduce the Rules of Evidence to a written -- to a set of rules --
Mr. Mccree: Precisely.
Justice Byron R. White: -- and then the Congress turned it into a statute.
Mr. Mccree: Precisely.
Before 402 was adopted, Federal Rules of Crimin -- Federal Rule of Criminal Procedure 26 provided in its second sentence, “The admissibility of evidence and the competency of witnesses shall be governed except when an act of Congress or these rules otherwise provide by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience.”
Justice Byron R. White: That was a --
Mr. Mccree: But --
Justice Byron R. White: That was a -- that power was eliminated.
Mr. Mccree: Was -- was severely circumscribed and 402 specified the -- the basis by which relevant evidence could be excluded thereafter.
Chief Justice Warren E. Burger: If 402 were not in the books, Mr. Solicitor General, would you be here today?
Mr. Mccree: I will be here today.
I will be here today to say that even if there is supervisory power in the courts that it was not correctly exercised in this case, and that's my next argument.
Justice Byron R. White: That was inconsistent with our standing cases.
Mr. Mccree: That indeed it is.
Chief Justice Warren E. Burger: That will be a different basis entirely.
Mr. Mccree: It would be that the power exists but it should not have been exercised in this instance because it amounts to an utter circumvention of all of the standing jurisprudence that this Court has worked out in a -- on a case by case basis over the years.
Justice William H. Rehnquist: Would it be another way of saying the same thing, General McCree, to say that concededly, the Courts of Appeals have supervisory power but that this Court has supervisory power to supervise their supervisory power or --
Mr. Mccree: Well, there seems to be no question of that and this course is the end of the road.
Justice John Paul Stevens: General McCree, before you get into your second argument, do I correctly understand that your first argument asks us to overrule Miranda because the giving of Miranda warnings as I understand is not constitutionally required.
Mr. Mccree: Well, the Miranda warnings are under the Fifth Amendment right to be -- not to be required to --
Justice John Paul Stevens: They're -- they're a public protected rule to protect the Fifth Amendment right but they --
Mr. Mccree: To protect --
Justice John Paul Stevens: -- are not themselves constitutionally required.
Mr. Mccree: Well, the Fifth Amendment specifically provides that no person shall be required to incriminate himself and I would say that on that basis, there is authority for the Miranda rule if it's to be a precaution against self-incrimination.
It's not a general open-ended chancellor's foot kind of -- of determination.
Justice John Paul Stevens: But it's not a rule proscribed by the Supreme Court pursuant to statutory authority and it's not provided by the Constitution of the United States that the evidence -- that a confession given without the appropriate warrant -- warning shall be inadmissible.
Mr. Mccree: It's -- it's not expressly provided but this Court has found it to be required.
Justice John Paul Stevens: Well, this -- doesn't Michigan against Moseley clarify that and make it rather clear that Miranda is not a constitutional -- constitutional mandate of their requirement.
If I'm right about that, then your argument I think does ask as to overrule Miranda.
Mr. Mccree: Well, I don't think it does and I -- I want to -- I want to think just a moment more about my response to it and I come back to -- to my earlier answer that the Fifth Amendment does specifically protect the person against self-incrimination.
Justice John Paul Stevens: Right and of course --
Mr. Mccree: And --
Justice John Paul Stevens: -- the Fourth Amendment protects these people against having their briefcases searched (Inaudible)
Mr. Mccree: It -- it protects Mr. Wolstencroft.
Justice John Paul Stevens: Right, right.
Mr. Mccree: It doesn't protect Mr. Payner.
Justice John Paul Stevens: Right.
Mr. Mccree: Mr. Payner has no more right to invoke the Fourth Amendment here than a --
Justice John Paul Stevens: I understand.
Mr. Mccree: -- a perfect stranger to it.
Justice William H. Rehnquist: It would be difficult to imagine why the -- this Court reversed the Supreme Court of Arizona in Miranda against Arizona if the Constitution didn't require Miranda warnings, would it not?
I mean our only authority to reverse the Constitution of the Supreme Court of Arizona is a violation of Federal Constitution or federal statute.
Mr. Mccree: That was my response I thought to Mr. Justice Stevens that --
Justice Potter Stewart: And there were three or four --
Mr. Mccree: -- there is the express --
Justice Potter Stewart: -- companion cases in Miranda.
All of -- all but one of which were also state cases.
Mr. Mccree: And this is an ex -- and there is an express guarantee against self-incrimination and this Court --
Justice Potter Stewart: Compulsory self-incrimination.
Mr. Mccree: Compulsory self-incrimination and this Court equated the failure to give these warnings as subjecting a person to that -- that risk.
Justice Byron R. White: Well at least absent those warnings is somebody's -- the state is in cons -- in constitutional trouble, but the Miranda and some other cases indicated that those -- these particular prophylactic rules might not be the only satisfactory protection that a state could satisfactorily give to the Fifth Amendment right, but absent some other protections and absent these warnings, a state conviction is vulnerable.
Mr. Mccree: Yes.
Fortunately, we -- we don't have to face that -- that question here though.
I submit that the literal language of 402 forbid -- forbad the District Judge here from using an amorphous, and undefined supervisory power --
Justice Byron R. White: This is the --
Mr. Mccree: -- to exclude this very relevant, very probative evidence.
Chief Justice Warren E. Burger: Should the Court read it as having Congress say to us that from this time on, you will not make any rules except within the framework of 402.
Mr. Mccree: I think that's exactly what the Congress --
Chief Justice Warren E. Burger: That would leave Miranda in --
Mr. Mccree: Rules to --
Chief Justice Warren E. Burger: -- intact.
Mr. Mccree: Rules relating to the exclusion of evidence.
Chief Justice Warren E. Burger: That's -- that's the one.
Mr. Mccree: Yes.
Justice Byron R. White: Well, (Voice Overlap)
Mr. -- Mr. Solicitor General, I -- suppose -- suppose someone asked us to overrule Alderman or it was one of the standing cases that says that if -- that Mr. A can't object to a Fourth Amendment violation of Mr. B and we -- five justices think those standing cases were wrong, that those are just prudential rules anyway.
So we'll reverse Alderman and you say that A does have standing to object to B.
I take it your argument would say we would have no power to do that.
Mr. Mccree: No, I don't -- I don't say you wouldn't have the --
Justice Byron R. White: Why not, why not?
Mr. Mccree: -- power to --
Justice Byron R. White: We would be then -- exclude the evidence, this very evidence, this very evidence that is involved in this case would then be inadmissible.
Mr. Mccree: If -- if you felt constrained by the Constitution to do that, you wouldn't be wrong.
Justice Byron R. White: Well, do you think Alderman is -- after all is a case of -- in there, the -- the prisoner has a case of controversy with the state and the state is trying to convict him by evidence that was illegally seized and we have said, “Well, the evidence -- the-- it wasn't seized in violation of you rights and so you can't object to it.”
I don't know if that's a -- is that constitutional?
Mr. Mccree: Well, you -- you've afforded a remedy to a person whose rights, whose constitutional rights you found to have been violated.
I think that's what would happen.
Justice Byron R. White: Well, the Alderman and those standing --
Mr. Mccree: In those cases.
Justice Byron R. White: -- cases have denied, have denied a remedy to --
Mr. Mccree: But you've denied it to the person whose rights were not -- whose rights were not --
Justice Byron R. White: Well, he's being put in jail by illegally seized evidence.
Mr. Mccree: But you've held that -- that A's rights cons -- that are protected by the Fourth Amendment were not violated by a search of -- of -- by the invasion of a right of privacy of B.
Justice William H. Rehnquist: Whereas the District Court here held that they had to create standing in somebody in order to enable him to litigate unconstitutional conduct of the Government even though the particular defendant before them was unable to under our case.
Mr. Mccree: Was it -- indeed, the District Court here indeed found that Payner's rights had not been violated at all.
And so this is -- that this -- this is -- is a clear attempt to afford a remedy to exclude relevant and probative evidence without showing that the person who claims to be aggrieved had a constitutional right of his infringed --
Justice Byron R. White: But I --
Mr. Mccree: -- or a right created by a statute or a rule.
Justice Byron R. White: I still think -- I still think under your first argument that in -- in effect, you're saying Congress is -- has now forbidden us to -- to overrule any of our prior evidence cases.
Mr. Mccree: Well, I don't make that contention and --
Justice Byron R. White: Well, if --
Mr. Mccree: And I don't think we have to decide that here today.
I think today, you could agree -- you could agree with our position here that at the very least, Rule 402 forbids the lower court.
Justice Byron R. White: But what if we decided that you get to your second argument and suppose we, thinking about your second argument that this ruling is inconsistent with Alderman and the other standing cases.
Mr. Mccree: It is.
Justice Byron R. White: And we say well, it certainly sounds like -- like it's inconsistent when we now -- we now think Alderman is wrong and we would like to reverse it.
But then we say, “Well, the Solicitor General told us in effect that we couldn't.”
Mr. Mccree: Of course if you -- if you reverse, you mean to exclude evidence that infringes --
Justice Byron R. White: Exactly.
Mr. Mccree: -- A's right but at B's insistence?
Justice Byron R. White: Exactly.
Mr. Mccree: I think you'd probably find a constitutional underpinning for it.
[Attempt to Laughter]
Chief Justice Warren E. Burger: On the other hand, if we reach just the standing and if the Court rest solely on standing, where would we be?
Mr. Mccree: Well, it's hard to -- it's hard for me to divorce the notion of standing from the notion of a constitutional right having been violated.
Someone's constitutional right may be violated but whether another person can assert it is another matter.
Chief Justice Warren E. Burger: Up to now we have said they couldn't (Inaudible)
Mr. Mccree: And conceptually, it's difficult to separate these.
Yes, we have said that up till now.
Justice Thurgood Marshall: Well, now you see the first man's rights are violated.
They didn't use it against him, did they?
Mr. Mccree: They -- they did not use it against him.
Justice Thurgood Marshall: So he -- he wasn't incriminated, was he?
Mr. Mccree: As a matter of fact, that's correct.
And as a matter of fact, this case really should not be in -- would not have been in this Court if the Court of Appeals had looked to see whether this evidence that was critical for the conviction had whatever taint might have been produced by the search of Wolstencroft's briefcase.
As a matter of fact, in -- in the Northern District of Illinois in Chicago, there's a case called Vasquez, United States of America versus Vasquez that grew out of the same investigation of this Operation Trade Winds.
There, also, the name of -- Vasquez's name surfaced in the photographing of the contents of Wolstencroft's briefcase, but the District Court determined that since they already knew that the Bank of Perrine, Florida was a correspondent for the Castle Bank and Trust Company and had the information that led them to subpoena, the Castle Bank and Trust Company papers in the Bank of Perrine's possession that this was an independent source of information and therefore, there was no taint connected with going into the briefcase and there was another episode too where Casper allegedly took a rolodex or I think it was Kennedy, took a rolodex address device which didn't figure into this case.
If the Court of Appeals had decided this and addressed the question obtained, I think this case might not have been here.
I think it would have come out the same way the District Court in Illinois did and certainly that case is pending now in the Seventh Circuit.
It's also instructive to -- to me anyway that the District Court in Vasquez also found that -- and -- and said so expressly that to allow the use of supervisory powers here would circumvent this Court's Fourth Amendment jurisprudence associated with the concept of standing.
And that --
Justice John Paul Stevens: Genreal McCree may I return for a second to my question about Miranda because it does -- it does trouble me.
I've been looking at Michigan against Tucker.
I misdescribed the case before, at 417 U.S. at page --
Mr. Mccree: Is that the use of the evidence to impeach, for impeachment purposes?
Justice John Paul Stevens: No, no.
This is the -- the violation of Miranda before Miranda was decided.
Mr. Mccree: Alright.
Justice John Paul Stevens: The question whether it was retroactive in effect.
In the -- at page 444 of the opinion, the Court points out that the Court in Miranda had recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to ensure that the right against self-incrimination was protected.
And then later on page 445, our determination of the interrogation in this case involved no compulsion sufficient to breach the right against compulsory self-incrimination, does not mean that there was not a disregard albeit an inadvertent disregard of the procedural rules later established in Miranda.
I think it quite clearly draws a distinction between a constitutional violation and a violation of a procedural rule imposed by this Court and I think if we accept your theory, we'd say that Rule 402 has overruled Miranda as so interpreted.
Mr. Mccree: Well --
Justice Potter Stewart: On the other hand, if --
Justice John Paul Stevens: Maybe there was no jurisdiction to decide Miranda but it's on the book.
Justice Potter Stewart: My opinion does say of course what my bother Stevens says it says but Miranda couldn't -- this Court wouldn't have had power to reverse the judgments of convictions in Miranda had it not been construing the United States Constitution.
Mr. Mccree: I have said before that I have a conceptual difference -- difficulty with this problem on habeas of course, a state judgment may be reviewed only for a constitutional violation.
I see my time is fast fleeting, I'd like to --
Chief Justice Warren E. Burger: Your time has fled, Mr. Solicitor General.
Mr. Mccree: Then I should follow my time.
Chief Justice Warren E. Burger: Let me ask you one question though which relates to justify what we've been focusing on.
Assuming that the Court had supervisory power linked to constitutional underpinnings that you have suggested when it adopted Miranda and when it acted in the Tucker case, is it your position that whatever that authority was, Congress has now withdrawn that jurisdiction from -- from this Court under 402?
Mr. Mccree: Unless the Court adopts a rule pursuant to statutory authority, yes Mr. Chief Justice.
Justice Thurgood Marshall: How can we go that far?
We got one case before us and we will not have Miranda, why not Brown against Mississippi?
Mr. Mccree: Our --
Justice Thurgood Marshall: Chambers against Florida?
Why don't we take them all up?
Justice Potter Stewart: None of those was a supervisory power case --
Mr. Mccree: Our --
Justice Potter Stewart: -- they couldn't have been.
Mr. Mccree: Our suggestion is that the Court --
Justice Thurgood Marshall: Miranda couldn't have been (Voice Overlap) --
Mr. Mccree: -- reverse the decision of the -- of the Court of Appeals for the Sixth Circuit, remand the case and require it to address the questions that it did not address in this very brief per curiam opinion and we believe they'll find no taint.
They'll find that the finding is clearly erroneous.
Justice Byron R. White: Mr. Solicitor general just to -- I did not -- sure I understood what your -- one of your answers, your recent answers.
Suppose Miranda had not been decided until the today, suppose Miranda was before us today on -- and that -- and the question was, “Did we have the power under 402 to do it,” I would suppose you would argue that that was constitutionally based and that 402 wouldn't -- wouldn't prevent us from doing what the Court did in Miranda?
Mr. Mccree: I think I would have to.
Justice Byron R. White: Yes.
Mr. Mccree: Thank you.
Chief Justice Warren E. Burger: Mr. Kleinman.
Argument of Bennet Kleinman
Mr. Bennet Kleinman: Mr. Chief Justice and may it please the Court.
I would like first to direct my argument in light of the argument made by the Solicitor General to -- to Rule 402 if I may.
It appears that Rule 402 sets forth certain rules regarding the exclusion of evidence.
However, what the Solicitor General has not taken into account is that the supervisory power of the Court has historically been exercised to make certain that all of the prosecutorial and all of the procedural steps which involved in the conviction of a criminal were followed by the executive and the other branches which were involved in bringing that criminal to justice.
Chief Justice Warren E. Burger: Do you question the authority of the Congress to withdraw specific areas of jurisdictions from the federal courts?
Mr. Bennet Kleinman: No, I do not -- I do not question that authority of the -- of the Congress to do that.
However, I would suggest that it may very well be and I'm not taking this position here today as strongly as I might but the supervisory power of these courts to make certain that the constitutional requirements or at least their due process as the civilized countries of this world understand due process without the use of torture and without the use of requiring one to testify against himself, are within the power of this Court, otherwise, there is no check upon what the executive can do in order to bring a criminal to justice.
For example --
Chief Justice Warren E. Burger: I believe, Mr. Kleinman, before you go too far --
Mr. Bennet Kleinman: Yes.
Chief Justice Warren E. Burger: -- let me -- I'm just -- to take you on that to testify, to be compelled to testify against himself, we don't need to get any more authority to deal with that than we have under the Constitution, do we?
Mr. Bennet Kleinman: Well, the question is whether the evidence can be excluded.
It is true that the Constitution provides that no person shall be required to be a -- a witness against himself.
However, the courts, through the supervisory power said, “How are we going to enforce this provision?
We're going to say that the evidence is not admissible.”
That's what the Court said in McNabb.
Now, the interesting part of -- of McNabb case was, they were three brothers who were brought to the police station and who were questioned and the Court held that those confessions were not voluntary because of the time that was spent and the manner in which they were carried out and it did not permit any of those confessions to be used against anyone.
Chief Justice Warren E. Burger: The same was true in Mallory, was it not, in the Mallory case that followed McNabb?
Mr. Bennet Kleinman: Yes.
Chief Justice Warren E. Burger: And Anderson.
Mr. Bennet Kleinman: Yes.
In -- in Mallory, the -- the evidence was admissible against others.
However, in McNabb, it was not.
In the Valencia case which was decided in the Sixth Circuit and for which incidentally, then Judge McCree wrote the opinion.
The rights of an individual who had hired an attorney were violated by the secretary to that attorney who was a spy, I should say, a spy, an informer for the Internal Revenue or for the Government.
And that secretary took material from the attorney's files and gave it to the Government and that material was used to convict three people, only one of whom was the client of that attorney.
The other two had no relationship with this attorney at all.
Yet, Judge McCree in the opinion of the Sixth Circuit Court said that that evidence was tainted and it could not be used against anyone.
I'm suggesting, Your Honor that in this particular case, the evidence was tainted.
The Government continues to act as if the -- the activity of the Internal Revenue Service in this case was an illegal matter, an illegal search, the constable's blunder if you will.
Justice Byron R. White: Why is that?
I thought -- I didn't think his position would be any different if -- if the Internal Revenue Service broke into the bank --
Mr. Bennet Kleinman: That's correct.
Justice Byron R. White: -- and seized the evidence.
Mr. Bennet Kleinman: There would be no difference, Your Honor if they killed, I they --
Justice Byron R. White: I mean under their -- under their argument.
Mr. Bennet Kleinman: According to their argument, if they killed Mr. Wolstencroft.
As a matter of fact, if the Court will recall, the briefs point out --
Justice Byron R. White: Well, the -- the Internal Revenue Service agent might be in a great deal of trouble, but the question is about the evidence.
Mr. Bennet Kleinman: That's correct. Could the evidence be excluded if that had happened?
As a matter of a fact in this case, the revenue agent in charge, Mr. Jaffe, was asked, “Did you know about -- about how Mr. Casper was going to get this evidence?”
He denied knowing it, although the Court found that he did know.
But he said, “No, I didn't know but I didn't expect that he would commit murder to get it.”
Now, if it -- if the Government is correct in its position on Section -- under Rule 402, if the government agent, if Mr. Casper had killed Wolstencroft in order to get that evidence, there was no way -- there would be no way that this Court could exclude that evidence if the Government's position on Rule 402 is correct.
Justice Thurgood Marshall: You said --
Justice Potter Stewart: Mr. Kleinman.
Justice Thurgood Marshall: -- affirm his convictions of murder, couldn't they?
Mr. Bennet Kleinman: Well, I'm not sure of that.
Justice Thurgood Marshall: Could they?
Mr. Bennet Kleinman: I'm not sure of that because I do not believe as I read some of the cases that a federal agent in connection with his duties for the federal government may not be subject to criminal prosecution under state law.
I don't make that as a --
Justice Thurgood Marshall: This wasn't a federal agent.
Mr. Bennet Kleinman: He was a federal agent.
The Court here --
Justice Thurgood Marshall: He -- he hired private investigators.
Mr. Bennet Kleinman: Yes, but this Court found that he --
Justice Thurgood Marshall: Wasn't he?
Mr. Bennet Kleinman: Yes, he was.
Justice Thurgood Marshall: Wasn't he?
Mr. Bennet Kleinman: But he was an agent of the Government, the Court so found.
He was an agent of the United States Government.
I would like to -- to --
Justice Potter Stewart: Mr. Kleinman, before you go on --
Mr. Bennet Kleinman: Yes.
Justice Potter Stewart: -- where is Rule 402 here on the papers that we have.
Mr. Bennet Kleinman: Rule 402 is cited -- page 15 of the -- of the respondent's brief.
Justice Potter Stewart: Alright, fine.
Thank you very much.
Mr. Bennet Kleinman: I might say that the Government has talked about ratifying an act in the -- in their brief, they talk about distasteful practices.
The fact of the matter is that the United States Government was a participation -- it was a participant as a matter of fact, planned to commit a criminal act in order to get evidence against this defendant.
I submit to this Court that the act of the Government was more heinous than the act allegedly committed by this defendant, by the respondent here.
The fact of an -- of an account in a Bank in the Bahamas was not an illegal act.
He had every right to have such a bank account.
The contention was that he lied about it.
Justice Thurgood Marshall: And to lie about it.
Mr. Bennet Kleinman: That he said that there --
Justice Thurgood Marshall: And that's not reprehensible, lying.
Mr. Bennet Kleinman: I didn't say it was not reprehensible, Your Honor, but I suggest that the commission of a felony by stealing this man's property was a more heinous crime than report -- than failing to state on a tax return that a man had an account in the Bahamas because that would not necessarily indicate that any crime was committed by him other than that statement made.
Now, I suggest that in Jacobs case, the Second Circuit for example held, it was their opinion, the only case that I find that directly confronted a section -- a Rule 402 problem.
They held that the Congress did not direct its attention to the supervisory power of the Court at all.
And that therefore, if one looks at the legislative history of the Rule 402, one will find no reference to such an important matter as a supervisory power of this Court.
Justice William H. Rehnquist: Mr. -- Mr. Kleinman, what you're talking, I take it, about the supervisory power of the federal judiciary as a whole, not of each in the Court of Appeals independently.
Mr. Bennet Kleinman: Correct.
I'm speaking of the -- the right of the federal judiciary to govern the manner in which a criminal is brought to justice, including its right to supervise the activities of the executive branch in bringing that criminal to justice.
Justice William H. Rehnquist: So if the Seventh Circuit case that General McCree mentioned is affirmed by the Court of Appeals and there was a conflict in the Seventh Circuit and the Sixth Circuit on this in -- in your case, that conflict would presumably, ultimately have to be resolved by this Court.
Mr. Bennet Kleinman: I believe it would.
Justice William H. Rehnquist: So they -- it -- it isn't a question -- as I recall the Jacobs case, it was the policy of U.S. Attorneys in the Second Circuit, something that the Second Circuit didn't purport to say was something ought to be followed in the Ninth Circuit or the Fifth Circuit or the Fourth Circuit.
It was some -- simply some -- more or less an administrative policy.
Mr. Bennet Kleinman: It was an administrative policy of the Attorney's -- U.S. Attorney's office to do certain things.
And this -- the Court in Jacobs held that they did -- they improperly failed to do it in the case of Jacobs in that particular situation, but incidentally, through its decision, it stated that Section -- the Rule 402 did not deal with the supervisory power of the Court.
As I say, the -- the receipt or the acquisition of evidence in the case by a crime as heinous as the murder of Wolstencroft, would not have been excludable if the Government's interpretation of Rule 402 is correct.
I submit in a --
Justice Byron R. White: But the -- wholly aside from Rule 402, the Government says that evidence would be admissible under our -- under the --
Mr. Bennet Kleinman: That's correct.
Justice Byron R. White: -- under the standing cases.
Mr. Bennet Kleinman: Well, the question -- the standing cases is another matter, Your Honor --
Justice Byron R. White: Well, I know but -- but you certainly have to get by those two.
Mr. Bennet Kleinman: Yes.
That depends on whether we rely on the Fourth Amendment or whether we rely on the Fifth Amendment.
Chief Justice Warren E. Burger: Well, whatever you rely on, you have to get by that one point, don't you?
Mr. Bennet Kleinman: The standing point?
Chief Justice Warren E. Burger: Yes.
Mr. Bennet Kleinman: I don't -- I don't understand the -- the matter of standing to be involved in the question involving the Fifth Amendment.
The Due Process Clause provides that -- that if there is a taint to evidence, it cannot be used.
The citizens of this country are entitled to know that the Government -- the executive branch of the Government will deal with its citizens in a manner which comports with modern day civilization
Chief Justice Warren E. Burger: What was involved in Alderman?
What was involved in the Alderman case?
That's a standing case, isn't it?
Mr. Bennet Kleinman: Yes.
That's a standing case, but that have to do with the particular act that was -- that was involved.
For example, in the search cases -- in the illegal search cases, we are dealing with an act, with the illegal act of switching, making an improper and an illegal search against an individual.
And this Court has held that an individual in order to have standing to complain must be the individual against whom that search was directed.
Now, there is -- however I -- we have argued in our brief that in this -- in this particular case, the -- the respondent had the right, the legitimate expectation of privacy and the records that were maintained in the Bahamian Bank.
So to that extent, he could be held to have had standing.
However, in connection with the Fifth Amendment --
Chief Justice Warren E. Burger: What if we had a -- what if we had a treaty that would've allowed us to “extradite” that -- that -- those records.
Mr. Bennet Kleinman: Well, I'm -- if there were such a treaty, then I would assume he did not have a legitimate expectation of privacy because he would know that the Court -- that this Government recognizes the fact that they could get those records and that if he knew that, he had no legitimate expectation.
Justice Byron R. White: This is a -- this -- your submission that he really had standing because he had an expectation of privacy.
That is either been -- not been presented below or was rejected by both the courts below.
Mr. Bennet Kleinman: Yes.
It was rejected by the -- the District Court.
It was not treated by Circuit Court of Appeals.
It was rejected by the District Court who held he did not have --
Justice Byron R. White: Because --
Mr. Bennet Kleinman: -- standing.
Justice Byron R. White: I think that -- I -- I think that if you're right about that, the 402 argument is beside the point and so were the standing cases.
Mr. Bennet Kleinman: I cite --
Justice Byron R. White: -- to be the points.
Mr. Bennet Kleinman: That's true.
However, the -- the District Court did hold that the activities of the Government in this particular case, the planning and direction of the -- of the -- of the larceny, if you will, was such as not to comport with the manner which due process is carried on in this country.
It so shocked the conscience of the Court.
This was not a mere act of an illegal act of making a search where an officer of the Government thought he had the right to do so.
This was a devious plan to acquire evidence by means of a larceny.
Mr. Jaffe, when he spoke with Mr. Casper, said, “I have to talk to my supervisor.
I have to talk to Troy Register,” who was the head of the intelligent section.
He planned it.
If the exclusionary rule can never be applied, and I know the courts have struggled with this problem as to whether the exclusionary rule really deters illegal conduct in -- in the criminal conduct on the part of the Government as in this case, this case ought to prove that the exclusionary rule works.
If Jaffe, when he talked with Mr. Register in Washington, had come to the conclusion, both he and Mr. Register, that this evidence would not be admitted in Court.
If they did what they did, they would not have performed that act.
There was no question that when they were told, “Well, go ahead and do it,” because the Court has said that this man Payner or indeed -- they didn't know about Payner but anyone whose -- whose name was there or evidence against whom they might acquire had no standing to complain, they went ahead and did it.
As a matter of fact, the Court's decision in this Payner case impelled the Internal Revenue Service to adopt the rule with regard to the manner in which evidence is acquired, so it wouldn't happen again.
Furthermore, as I understand it, the Government has dropped all prosecutions against others on -- in this type of action except perhaps two or three, although there were some 400 people involved.
As the evidence show there were some 400 names in that brief case, the Government after the matter had been determined and had been heard by the House of Representatives, decided that they would not proceed against any of the other persons who were named in their because of the taint upon the evidence.
This Court will --
Chief Justice Warren E. Burger: Where do we -- where do we find that out?
Justice William J. Brennan: What about that –-
Mr. Bennet Kleinman: The -- the hearings before the House of Representatives.
Chief Justice Warren E. Burger: We -- we -- you're suggesting we can judicially notice that.
Mr. Bennet Kleinman: I think you can notice that, yes.
There were hearings before the House of Representatives in which the Commissioner of Internal Revenue was involved and he called off, as a matter of fact, the Trade Winds Operation and was subjected to some criticism by some people for having done it, but he called off the investigation of Trade Winds because of the manner in which these things had been accomplished.
I might suggest to the Court --
Justice John Paul Stevens: The Solicitor General has told us that there's a pending prosecution arising out of the same -- same thing.
Mr. Bennet Kleinman: Yes, I said there were two or three.
I think there are perhaps only two.
Payner is one --
Justice John Paul Stevens: But they're still persisting with the Vasquez case.
Mr. Bennet Kleinman: Vasquez is another.
Because that -- apparently, that had gone far enough at that time that they didn't feel they could withdraw.
At least that's the evidence we have from minutes of the -- of the intelligence section, that they -- but they have withdrawn any activity in connection with any other of these.
Justice John Paul Stevens: Of course if that's true, then we don't really need any deterrent, do we?
Mr. Bennet Kleinman: Well, except that you cannot say that that in this particular case, if it's held that that evidence is admissible, the Government can very well say okay, now we're going ahead with it.
The -- this Court must hold that this evidence is excludable.
Otherwise, the Government will proceed and will not be deterred from using evidence illegally obtained --
Justice William H. Rehnquist: Justice -- Justice Stevens just pointed out that the executive branch responded to congressional hearings -- any statement from this Court at all.
Mr. Bennet Kleinman: No, not true.
They respondent to the Act, to the -- to the judgment rendered in this case.
The Internal Revenue Service did not adopt its rule until after Judge Manis in the District Court ruled that the evidence was not admissible.
Justice William H. Rehnquist: I thought you said that it would -- the -- all these prosecutions were dropped after the -- they were criticized in the congressional hearing.
Mr. Bennet Kleinman: No, they were dropped -- no, the -- this -- this case in itself, Your Honor.
It was carried on after the hearings in the -- in the Congress.
It was only after this case was decided that the others were dropped.
Justice William H. Rehnquist: So the hearings in Congress really didn't amount -- amount to all that much.
Mr. Bennet Kleinman: Well, the hearings -- the Commissioner of Internal Revenue stopped any -- not further proceedings but further activity of agents in acquiring evidence under the tax haven.
Justice William H. Rehnquist: To refer the tax evasion.
Mr. Bennet Kleinman: That's right.
Not -- but they -- they did not -- that did not stop the prosecutions at that time.
Those prosecutions were continued until this Court ruled that the evidence was tainted, that the -- that the agents of the -- of the United States had violated the laws of the State of Florida by means of a larceny which they had committed.
The Court also cast some doubt as to whether there were -- weren't something involved with this woman, Sybol Kennedy which could have had other implications.
The Government did not bring Sybol Kennedy to Court.
We couldn't find Sybol Kennedy.
We didn't know who she was.
I don't believe that was --
Justice William H. Rehnquist: If this Court reverses the Sixth Circuit presumably but the prosecutions will continue.
Mr. Bennet Kleinman: I have no knowledge of what they will do if this Court does that.
However, I feel that if this Court does not affirm the Sixth Circuit, certainly, the Government will then feel that it can proceed to do whatever it feels like in this case because the evidence could not be excluded under any circumstances.
Justice John Paul Stevens: That's a requirement, isn't it?
Chief Justice Warren E. Burger: Mr. Kleinman, at least for me, you -- you covered the standing point so swiftly that I think I missed it.
Now, Mr. Justice Stevens has a question but I'd like to have you reach the standing question.
Mr. Bennet Kleinman: My understanding of the question of standing is that the person who objects to the introduction of evidence obtained in an illegal search must have standing to object to that.
And it has been held that that the person who can so complain is one whose legitimate expectation of privacy has been violated.
I believe Mr. Justice Rehnquist wrote the opinion in the Rakas case in which it was so held that a person must have a legitimate expectation of privacy.
And that legitimate expectation of privacy doesn't necessarily involve a property right.
He must not necessarily own the property, it might not be his property necessarily that was searched.
The question is whether he had the legitimate expectation of privacy.
I suggest here and that's the reason why I suggested perhaps even the standing requirement has been that, is that Mr. Payner had the right to believe that the confidentiality would be -- of his records would be observed and he had a legitimate expectation of privacy (Voice Overlap) as to those records.
Justice Byron R. White: The District Court rejected that.
Mr. Bennet Kleinman: Yes it did.
Justice Byron R. White: And it -- and -- and it excluded the evidence on another basis.
Mr. Bennet Kleinman: That's right.
It excluded the evidence on the basis that the Government had violated --
Justice Byron R. White: Yes.
Mr. Bennet Kleinman: -- due process rights.
Justice Byron R. White: Yes, I understand that.
Mr. Bennet Kleinman: That's right.
It had a bad faith hostility to an individual's constitutional right.
Justice Byron R. White: Well, suppose we agree with the District Court, what -- what's your answer to the standing cases if -- if we agree with -- if we happen to disagree with you and agree with the District Court standing --
Mr. Bennet Kleinman: If you --
Justice Byron R. White: -- that there was no reasonable expectation of privacy in this record.
Mr. Bennet Kleinman: Well, then I assume that this Court would then have to hold that my client did not have or the respondent did not have standing to object to the search on that basis.
Justice Byron R. White: Alright, then -- then what -- then what will you do?
Mr. Bennet Kleinman: Then we -- we'll proceed to the next basis upon which the Court ruled --
Justice Byron R. White: Due process.
Mr. Bennet Kleinman: -- and that is that under the Due Process Clause, there was a -- a violation of -- bad faith hostility violation insofar as an individual's constitutional rights were concerned and that so tainted the evidence that it is not admissible in the Court of law.
It is not comport with the American sense of due process and justice.
And as I said, there were cases that so held.
I believe that the Valencia case is matter in that line.
The -- the violation of the constitutional rights in Valencia were against one individual.
However, the Court said, that this so tainted the evidence, it was so abhorrent to them, shocked their conscience that that evidence couldn't be used even against the other two who had no connection with his attorney at all.
It seems to me --
Justice Harry A. Blackmun: Mr. Kleinman, you don't get any comfort out of Irvine against California back in 347.
Mr. Bennet Kleinman: I'm not sure --
Justice Harry A. Blackmun: One way or the other, you don't cite it, neither does the Solicitor General.
Mr. Bennet Kleinman: No.
Chief Justice Warren E. Burger: From your arguments, even if the exclusionary rule were modified as has been advocated from time to time to say that it should not apply to the cases where the constable blundered but only to cases of egregious calculated intentional violations that this would fall under the latter category.
Mr. Bennet Kleinman: Yes.
This is what I'm suggesting and this is what the District Court held.
The -- the activities of the Government here were so egregious as to call for the exclusion of the evidence.
I might point out that in the Court of Appeals Judge Damon Keith was prompted to -- to comment during the time of the argument after having read the briefs and he said that this reminded him nothing -- of nothing more than Anatoly Sharansky in the KGB in Russia.
This is the kind of an impression he got when he read the briefs in this case.
This is how egregious he felt the conduct of the Government was.
They planned this action.
The Government --
Justice John Paul Stevens: Suppose if one of the differences and that is that -- I don't know what happened to Mr. Wolstencroft but I presume he has a pretty clear remedy against the agents for damages, doesn't he, the victim of the illegal search.
Mr. Bennet Kleinman: I suggest that that's possible except however that he was in -- under indictment for some only of his own activities.
He lives in the Bahamas and he's not, as far as I know, extraditable to the United States and therefore, he will not appear.
And one of the things that bothered Judge Manis was --
Justice John Paul Stevens: But in the normal case, the bank representative who was victimized by this kind of procedure and if it will -- all -- all the facts came out, he'd have a pretty good lawsuit, I would think.
Mr. Bennet Kleinman: I believe that's true.
Justice John Paul Stevens: It's not constable wonder type situation.
Mr. Bennet Kleinman: Well, I believe that's true, however, I would suggest to this present --
Justice John Paul Stevens: So there was a deterrent at least in our legal system that is not present in -- in the Russian legal system --
Mr. Bennet Kleinman: Well --
Justice John Paul Stevens: -- insofar as I know about it.
Mr. Bennet Kleinman: With all due respect, Your Honor, there is such a provision.
However, in all my years of practice, I have never heard of anyone whose rights were violated by a search of having recovered from anyone who was guilty of having performed that search in any substantial amounts for violation of the civil rights.
I don't believe it is a deterrent.
I can't imagine, I can't imagine the jury awarding him anything once the Government found evidence which might implicate him in a crime.
I can't find anything.
Justice John Paul Stevens: But -- but the normal cases, a third party is not implicated in the crime.
See, this third party is in -- as I understood it, wasn't particularly implicated in any -- any wrong doing --
Mr. Bennet Kleinman: No, nothing in connection --
Justice John Paul Stevens: -- insofar as (Voice Overlap) or maybe he did something else that we don't know about.
Mr. Bennet Kleinman: Right.
Now, however, the Second Circuit also in the Archer case said that it was unthinkable, that the Government -- that evidence could be admitted when the Government instigated robberies and beatings of one individual or group of individuals to get evidence against other individuals.
And that's what happened here.
They committed a crime.
They violated the rights of Mr. Wolstencroft, and under those circumstances, the evidence is so tainted -- it's not a mere error of judgment of a -- of an official of the Government.
It's a deliberate devious plan to steal something from someone else.
And that makes the difference between a due process violation and one involving particular standing of this individual.
I believe my time is up, Your Honor.
Chief Justice Warren E. Burger: No, it's not.
We are glad to have you terminate if you want to.
I think your time was consumed, Mr. Solicitor General.
Thank you, gentlemen, the case is submitted.