PILLSBURY CO. v. CONBOY

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ORAL ARGUMENT OF FRANCIS J. McCONNELL, ESQ. ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments next in the Pillsbury Company against Conboy.

Mr. McConnell, you may proceed whenever you are ready.

Mr. McConnell: Mr. Chief Justice, may it please the Court, this case involves the scope of protection under the immunity statute.

As Your Honors well know, that statute provides that no use or derivative use may be made of compelled testimony.

The issue presented by the petition is whether Mr. Conboy's deposition testimony, which repeats verbatim or closely tracks his immunized grand jury testimony, can be used against him in a subsequent criminal prosecution.

This case arises out of the corrugated antitrust litigation.

In 1978, indictments were brought against a number of major paper companies, alleging a price-fixing conspiracy in violation of the anti-trust laws in the corrugated container industry.

Mr. Conboy is a former employee of the Weyerhaeuser Company, one of the defendants in that action, and the petitioners in this case are purchasers of corrugated containers who opted out of the class action.

Now following the indictments in 1978 there were a series of class and civil actions filed in various district courts throughout the land.

Those actions were consolidated in the Southern District of Texas before Judge Singleton.

In the course of discovery in the class litigation the District Judge, on motion and the necessary showing of compelling and particularized need, released certain grand jury transcripts, including that of Mr. Conboy.

Later, in May of 1981, Petitioners, pursuant to subpoena, in Chicago took the deposition or attempted to take the deposition of Mr. Conboy.

We had his grand jury transcript.

Mr. Conboy had a copy of the transcript.

His lawyer had a copy of the transcript.

And the examination took the following format.

He had testified before the grand Jury under immunity that he had exchanged prices with Dick Herman of Alton Boxboard.

The first questions: Mr. Conboy, with whom it Alton Boxboard did you exchange prices?

He evoked the Fifth Amendment.

Next question: Is it not a fact that you exchanged prices with Dick Herman of Alton Boxboard?

Again, the witness invoked the Fifth Amendment.

Third question: Did you not so testify in January of 1978?

Again the witness--

Unidentified Justice: You used the phrase "so testified".

What's the frame of reference there?

Mr. McConnell: --The reference back to the prior question, that you had fixed prices or you exchanged prizes with Dick Herman.

Unidentified Justice: Well, are we to understand that the examiner was... had the transcript of the grand jury testimony in front of him?

Mr. McConnell: Yes.

I was the examiner.

I had the transcript.

I'm reading verbatim questions--

Unidentified Justice: It's perhaps of some importance whether it was directly from that transcript or whether it was from some other information, is it not?

Mr. McConnell: --Excuse me, Your Honor.

I thought I mentioned that we all had copies of the grand jury transcript.

Unidentified Justice: But having copies two weeks before and having copies right in front of you at the time is perhaps... perhaps... different, but you say the examination was conducted with the transcript in the hands of the examiner.

Mr. McConnell: In my hands Your Honor.

Unidentified Justice: But you were asking him... you may have been reading the questions from the grand jury transcript, which I take it you were.

Mr. McConnell: Yes.

Unidentified Justice: But you were asking him for his recollection at the time you were examining him.

Mr. McConnell: Yes, of course.

Unidentified Justice: Did he have a copy of the transcript?

Mr. McConnell: He had a copy of the transcript; his lawyer had a copy of the transcript.

Unidentified Justice: But you weren't asking him whether that was his recollection then.

You were asking him now, then, what his recollection was about the price-fixing.

Mr. McConnell: That would be the first question.

Yes.

The first question: With whom at Alton Boxboard did you have price conversations?

Unidentified Justice: Suppose you hadn't had the transcript at all and had never had it and you asked him this question and he took the Fifth Amendment?

Mr. McConnell: That's a more difficult question.

Unidentified Justice: Well, more difficult.

It isn't difficult at all, is it?

He would be entitled to take it if there was a realistic threat of criminal prosecution.

Mr. McConnell: Not according to the Eighth Circuit in the Borden case.

The Eighth Circuit says let's take your situation, Mr. Justice White.

In the Borden case... not Starkey... Starkey is Eighth Circuit also, but Borden follows Starkey also in the Eighth Circuit... there were two witnesses.

The examiner did not have a copy of the grand jury transcript.

He asked a series of questions which presumably were areas that were covered in the grand jury testimony.

The witness took the Fifth to those series of questions.

A motion to compel was made.

The Court then reviewed the grand jury transcript in camera and he said these questions are within the confines of the prior immunized grand jury testimony.

These questions are not.

Answer the questions that are within the confines.

You don't have to answer the questions that are outside.

Unidentified Justice: So it really didn't make any difference that you were reading from the transcript?

Mr. McConnell: Well, if you go as far as the Borden case, it doesn't make any difference, but if you limit yourself to Fleischacker and the panel decision below, it is important that you have the transcript.

Unidentified Justice: Now along that same line, let me see if I can get clearly what you're saying.

If you had never seen the transcript in your life but were simply aware that he had been before a grand jury at some time, would you have asked these questions?

Well, if you were suing for price-fixing you would.

Mr. McConnell: Your Honor--

Unidentified Justice: That's what you'd be probing for, wouldn't you?

Mr. McConnell: --Exactly.

Unidentified Justice: Even if you didn't know that he'd ever been before a grand jury.

Mr. McConnell: Exactly.

We know that the grand jury investigation involved price-fixing in the corrugated box industry.

We know that this man was a key employee dealing with other corrugated box manufacturers involving major accounts.

The probabilities were that he had exchanged prices.

So yes, I think I would have asked many of the same questions.

But that doesn't answer the problem yet because I did... in your hypothetical I didn't have a copy of the transcript and--

Unidentified Justice: To go beyond that, in the hypothetical the questions would not have been derived from immunized testimony.

Mr. McConnell: --Well, certainly not my questions.

But--

Unidentified Justice: If you didn't know what the immunized testimony was, how could you have been using it?

Here you know what it was.

Mr. McConnell: --Here I know what it was and clearly, to the extent I asked question verbatim or closely tracking, it's derived.

In the other case, I'm presuming what was asked, but I don't know that and it's not directly derived from the transcript.

But when the witness refuses to answer on Fifth Amendment grounds and then the Court reviews in camera the transcript and says these are areas which were examined on before the grand jury and you must answer these questions, then it seems to me that that is a compelled repetition of immunized grand jury testimony.

Unidentified Justice: But it's in a civil action.

Mr. McConnell: It is in a civil action.

Unidentified Justice: And since the grant of protection of the immunity statute is limited to a criminal action, why does the immunity statute have anything to do with a civil action?

Mr. McConnell: The Fifth Amendment and the co-extensive use immunity protection protects you against use of that testimony only in a criminal actions, but you can invoke the Fifth Amendment in any action... civil or criminal.

Unidentified Justice: Certainly.

But conceding that, why does the use of the immunity statute play any part in your argument with respect to testimony adduced in a civil case?

Mr. McConnell: Because the respondent's position is that a prosecutor may get hold of this deposition where he has repeated his same immunized grand Jury testimony and use that as a wholly independent source.

Unidentified Justice: In a later criminal case.

Mr. McConnell: In a later criminal case.

Unidentified Justice: It is Just as though there never had been any grand jury testimony or anything else and that you have him on the witness stand in a civil case and you ask him a question that may incriminate him in some future criminal case, so he can take the Fifth Amendment.

Mr. McConnell: That's right, if he doesn't have immunity.

Unidentified Justice: Yes.

If you try to use it in a criminal case, that's the time to stop it.

Mr. McConnell: No, I don't think so, Your Honor.

Unidentified Justice: Well, if an objection was made, could it be used in a subsequent criminal case?

Mr. McConnell: No, absolutely not.

Unidentified Justice: So that's--

Mr. McConnell: The question is could this Court make the determination prospectively that that evidence would be tainted, and we say clearly it could and we also rely on the dicta in Patrick in the Seventh Circuit.

Unidentified Justice: --Well, suppose there is no subsequent criminal prosecution?

Mr. McConnell: I'm sorry.

I missed your question.

Unidentified Justice: If there is no subsequent criminal prosecution, it couldn't be used.

Mr. McConnell: If there's no subsequent criminal prosecution, it can't be used.

Unidentified Justice: But how does the harm come ahead of the criminal prosecution?

Mr. McConnell: Because the question is whether the witness can be compelled to testify over his Fifth Amendment assertion and the Court said... the Court said you can be compelled because you have compete protection because no use can be made of this civil deposition testimony.

Where you confine the examination to the four corners of the grand jury immunized testimony, where you repeat verbatim or you closely track, you are protected.

And we can make that determination today.

Unidentified Justice: Following up on Justice Rehnquist's point about the civil action, the interesting thing about the way this arises is that if this man were to answer the questions, he is now arguing that they are not protected.

But then if he were later indicted he would then take the exact opposite position and argue they were protected, I would assume.

That's right.

Mr. McConnell: I would think so.

Unidentified Justice: So his interests change in the different Proceedings.

Well, the whole problem could be solved by Just not giving out grand jury testimony, I would think.

Mr. McConnell: Well--

Unidentified Justice: You know, to plaintiffs.

Mr. McConnell: --Well, we wouldn't have the transcript if the transcript hadn't been released, that's true.

Unidentified Justice: Well, and all you're doing is waking it available to civil plaintiffs really.

Mr. McConnell: I don't think that's true.

Unidentified Justice: As a discovery tool.

Mr. McConnell: Justice Rehnquist, we are not suggesting that the test announced by this Court in Douglas Oil be in any way relaxed.

The Plaintiff still has the burden or the party seeking release of grand jury transcripts still has the burden of meeting the compelling and particularized need test, and that's a balancing test, balancing the need for disclosure against the continuing need for secrecy.

We are not suggesting that that test be relaxed in any way.

That test was meant here... the transcripts were released, and now the question is what use we can make of those transcripts.

Yes, sir,--

Unidentified Justice: Well, all you... I suppose the only showing you made is that you wanted some testimony.

You wanted some basis... you said you brought a civil suit and this would be useful in the civil suit.

Mr. McConnell: --Well, I don't think it's that simple.

What happened--

Unidentified Justice: What else could you say?

Mr. McConnell: --Well, the showing that was made before Judge Singleton... and this goes back to January of 1980... was that there had been a massive invocation of the Fifth Amendment and that meaningful discovery had been blocked by reason of the Fifth Amendment assertions in this litigation, and the judge issued a memorandum order.

Unidentified Justice: Well, if we affirm, then you'd never be able to get the grand jury minutes then again on that basis because it wouldn't do you any good to have them.

You could still take the Fifth Amendment.

Mr. McConnell: If you affirm, whether we have the grand jury minutes or not is not going to do us any good because we can't compel his testimony.

Unidentified Justice: Exactly.

Mr. McConnell: That's why I want you to reverse.

Unidentified Justice: Exactly.

But if we affirmed, you wouldn't be able to get any more grand jury minutes by saying everybody's taking the Fifth Amendment.

I thought that's what you had responded to in response to my questions, that even if you had never known about this, didn't have a copy of the transcript, the questions you would put to this witness would likely be parallel to those presented to a grand jury, but he would still have the protection of the Fifth Amendment, wouldn't he?

Mr. McConnell: He would have the protection of the Fifth Amendment in that situation.

But what the Borden court said was that if he invokes the Fifth Amendment to the question or series of questions and the Court, on in camera inspection of the grand jury transcript not released to the parties, determines that these questions were in fact touched upon in the grand jury examination, that he then can be compelled to answer over his Fifth Amendment objection.

And they say in that situation he is protected.

Unidentified Justice: I suppose we can also have the situation where the testimony is originally elicited at a grand jury investigation and use immunity is granted by the government to the witness and then the witness testifies within the use immunity at the criminal trial and you still have the question of trying to use it in the civil case.

Now there it's not a question of getting the grand jury testimony at all, but don't you have the same problem?

Mr. McConnell: Yes.

Unidentified Justice: And did that happen here?

Mr. McConnell: No.

Unidentified Justice: Mr. McConnell, in any of these cases that you referred to has the government taken a position on the issue?

It is interesting.

They don't file any kind of an amicus brief.

Mr. McConnell: No, they have not.

Unidentified Justice: Could the government come in in the civil proceeding and grant use immunity again, although the government's not involved?

Mr. McConnell: Well, they could, but they have not, and they have declined to.

There is no companion civil suit by the government here.

In the Folding Carton Litigation which preceded the Corrugated Litigation, the government did do that.

They had a companion civil suit and they did grant immunity in connection with the discovery depositions in the class actions which were consolidated with the government's civil action.

There was no--

Unidentified Justice: As I understand it, the government makes the practice under this use immunity statute of going in every time the witness appears any place and getting another use immunity grant, isn't that right?

Mr. McConnell: --Well, that's one of the arguments of the respondent, that the fact that the government granted separate immunity both in the interview statement and later when the witness appeared before the grand jury and in the case of witnesses who appeared in the criminal trial, again they granted it.

And I think there's two very... first of all, obviously I don't know what was in the mind of the government, but I think there are two very practical answers or reasons for that having been done.

One, defense counsel, out of an abundance of caution, demanded and said if you want testimony from my witness you are going to have to grant him immunity.

Secondly, if the government wanted to go beyond the confines of the earlier examination, then they would want the witness immunized again.

Unidentified Justice: Well, Mr. McConnell, I gather what you want us to say is the use immunity which he received in connection with the grand jury testimony carries over to this deposition in the civil case.

Mr. McConnell: Yes, provided--

Unidentified Justice: But is there anything at all in the legislative history to suggest that Congress intended that statute to apply to civil as well as criminal cases or appearances before the grand jury?

Mr. McConnell: --I think the legislative history indicates... and this Court's decision in Kastigar indicates... that that statute was to be construed as broadly, as sweepingly as possible.

Indeed, this Court in Kastigar said it provides a sweeping protection against any use or derivative use of compelled testimony.

Unidentified Justice: So you read "sweeping" as carrying all through subsequent civil proceedings and such?

Mr. McConnell: So long as the subsequent civil proceedings are confined to the four corners of the--

Unidentified Justice: Of the transcript.

Well, that would just read out the word in any criminal case from the use statute.

Mr. McConnell: --No.

What we're saying is--

Unidentified Justice: Well, the position you've just taken would weed out that language, wouldn't it?

Mr. McConnell: --I don't think so, Mr. Justice Rehnquist.

What I'm saying is if we produce a carbon copy of the grand jury testimony on civil deposition, can the government use that civil deposition in a subsequent criminal proceeding against the witness.

And that's what we say the statute prohibits.

It would be the derived or derivative use of the original immunized testimony in a down-the-pipe subsequent criminal proceeding.

Unidentified Justice: That conforms with the language of the statute, but I thought you were trying to apply it here to--

Mr. McConnell: No, no.

All we're saying is that the testimony is protected against use against Conboy in a subsequent criminal proceeding.

Unidentified Justice: --Because he has no danger of incriminating himself in some criminal case because this testimony in the civil case won't be admissible.

Mr. McConnell: Exactly.

That's it.

Unidentified Justice: That's what you're saying.

Mr. McConnell: That's what I'm saying.

If I didn't say it before, that's for sure what I'm saying now.

Unidentified Justice: What happens if the criminal case judge seals the testimony, the deposition, and refuses to release it?

Then what position do you take?

Mr. McConnell: Well, I don't know how--

Unidentified Justice: You don't know how a judge can seal testimony?

Mr. McConnell: --Well, yes, I do not know people get... I mean, a lot of times seals don't do any good.

But assuming that it is sealed sealed, and nobody gets access to it, then it seems to me in that situation the prosecutor in a subsequent criminal proceeding against Mr. Conboy would have a chance of showing that his evidence was obtained from a wholly independent source.

If he neither saw the grand jury testimony nor saw or had access to the deposition testimony which repeated--

Unidentified Justice: Well, how could he get access to sealed testimony?

Mr. McConnell: --I don't think he can.

Unidentified Justice: Well, then he wouldn't have it.

Mr. McConnell: That's it.

And what I'm saying--

Unidentified Justice: Therefore, he couldn't use it.

Mr. McConnell: --That's right, and maybe--

Unidentified Justice: Your point is he might get it from an independent source, in which event he could use it.

Mr. McConnell: --In that situation he might be able to get it from an independent source and he could establish his Kastigar burden.

Unidentified Justice: He could use this testimony from the grand jury in a subsequent criminal prosecution in spite of the statute.

Is that your position?

Mr. McConnell: No.

No way.

Unidentified Justice: Well, that's the way you are.

Mr. McConnell: I don't believe so, Justice Marshall.

The statute and this Court's holding in Kastigar say that a prosecutor in a subsequent criminal prosecution against Mr. Conboy, one, cannot use the immunized testimony itself, nor can they base their case on any evidence or fruits derived from that immunized testimony, nor... to carry it a step further... can they base their prosecution on the deposition which just repeated that testimony.

Unidentified Justice: My only trouble with you is when you say you can't use the fruit does not say the fruit can't grow.

Mr. McConnell: Well, I think this Court's decision--

Unidentified Justice: Or the fruit can't exist.

All the statute says is it can't be used.

Mr. McConnell: --Exactly, Your Honor.

It is not transactional immunity.

Mr. Conboy always remains theoretically subject to prosecution, assuming that the prosecutor can show that his evidence came from a wholly independent, legitimate source... not from this deposition and not from the grand jury testimony.

All right.

Unidentified Justice: Mr. McConnell, I think what concerns me most about this... about your position... is that probably the use immunity statute that was passed by Congress was passed by Congress in an effort to help the government lawyers... the prosecutors... to avoid having them lose other means of going after somebody in a criminal case just because of an overbrick of the transactional immunity that has been used.

Mr. McConnell: I agree with that.

Unidentified Justice: And I doubt if Congress was thinking of benefitting civil litigants when it passed that statute.

Now the danger of letting you use it, it seems to me, is that in the process of using it, although the government prosecutors are not involved, somehow that use immunity will get widened, although the government wouldn't like that because the witness is in a bad position.

The witness presumably has to be cross-examined and maybe it gets wider and wider and wider, and all of a sudden the government is losing the benefit of some testimony that it didn't want to lose.

Now how do you respond to that?

Mr. McConnell: Well, the answer to that, I think, is that so long as the deposition examination is confined to the four corners of the grand jury immunized examinations, there is no expansion.

Unidentified Justice: Okay, but how do you do that within the framework of giving cross examination?

Otherwise, presumably the evidence can't come in anyway.

Mr. McConnell: I understand.

There is nothing which prevents the defendants in this situation from cross examining as to details of the direct examination.

We are assuming here that the scope of the direct examination is confined and limited to the scope of the immunized examination.

In turn, there is no reason why defendants cannot conduct meaningful cross examination within the confines of the direct examination.

They can ask details... who, where, when, how many times.

They can ask exculpatory testimony.

Well, now, you said you had this price-fixing conversation with Dick Herman where you agreed that you would both raise your prices.

But isn't it a fact that you cut your prices?

You said you were both going to honor each other's prices.

Isn't it a fact that both of you cut each other's prices?

That's cross examination.

That's meaningful cross examination, but that's clearly within the scope and confines of the direct examination and does not expand the immunity grant, which--

Unidentified Justice: No, but I suppose, Mr. McConnell, that in such a cross examination question it would be possible that the cross examiner would bring out information that could not reasonably have been derived from the confines of the original testimony and, therefore, that broadened examination might go beyond the scope of the use immunity.

Mr. McConnell: --Well, if the examination goes beyond the confines and the answer is potentially incriminating--

Unidentified Justice: Then he would have to claim the Fifth.

Mr. McConnell: --Then he would have to claim the Fifth.

Unidentified Justice: So he's really faced with a choice in the case of every single question that deviates even a little bit from the transcript as to... he'll need a lawyer standing right there beside him to decide whether he should claim the Fifth or not.

Mr. McConnell: I don't think it's that difficult, but we've gotten rulings from the Court in this case before and there's no reason that we couldn't get rulings again, and, as a matter of fact, in this very case, Fleischacker is Second Circuit.

After the Fleischacker case came down, the opinion came down, we went back and we took Fleischacker's deposition and I used the same procedure or format that I attempted to use with Mr. Conboy... asked him questions verbatim from the grand jury testimony.

On cross examination, Mr. Fleischacker asserted the Fifth Amendment.

No attempt was made to compel answers over his Fifth Amendment assertion, and in a motion in limine in this litigation the defendants moved to strike the Fleischacker deposition on the ground that they'd been denied meaningful cross examination.

Judge Singleton ruled in pretrial order PTO-69... pre-trial order 69, which we have supplemented the record with... he ruled that the defendants were entitled to cross examine as to details, that the appropriate procedure was a motion to compel, and had they done that they could have had meaningful cross examination.

On the other hand, if the cross examination clearly goes beyond the scope of the direct and the immunized and is collateral to, that is not a denial of meaningful cross examination, and that is not grounds for striking his direct examination and we cite the Court to Cardilla... U.S. versus Cardilla... on that point.

Unidentified Justice: In the posture of this case or this type of case, isn't your examination of someone who has appeared before the grand jury generally a cross examination... really, although you are the first to question, it's really an adverse witness.

Mr. McConnell: It is.

He is a price-fixer, and I am trying to get him to admit it, yes.

I would like to reserve my remaining time.

Unidentified Justice: Well, Mr. Coffield.

ORAL ARGUMENT OF MICHAEL W. COFFIELD, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Coffield: Mr. Chief Justice, may it please the Court, although I am here today on behalf of John Conboy, in fact I think, Your Honors, that really Mr. Conboy is a representative almost in a class sense of many, many deponents and witnesses before not only this antitrust grand jury that started back in 1976 and resulted in one criminal case, one civil class action case, and this opt-out case, but he is representative of witnesses throughout the country in multi-defendant and large investigate cases, and I have represented many of them and, as Mr. McConnell has himself, these depositions have taken all sizes, all forms and all shapes.

The panel majority, it seems to me, says, as it does precisely at the conclusion of its opinion, the thing that Mr. McConnell throughout his briefs and his argument I would, with all due respect submit, has never answered, and that is the Court says there are just too many uncertainties.

If Kastigar reads the use immunity statute and supports it as a constitutional statute, and as we have applied Kastigar and defense counsel for all these witnesses who are individual counsel for these witnesses, represent to them that what Kastigar means, as this Court has said, is that yes.

While we think that the Fifth Amendment and the use immunity must be of the same scope and we should read it broadly, the fact is that it is use immunity and it is not transactional.

And, therefore, the source, if it is a separate source, if it is an independent source, may well be the source of new information, testimony that would be incriminating.

And if you look at it on the scope, at one end of the spectrum you have Mr. Conboy's concern that if one has to wait to the application of an exclusionary rule down the line, as this Court has frequently said, that is not the same as the Fifth Amendment to simply apply an exclusionary rule.

If one has to look down the line to the judgment of the discretion of a prosecutor... will he or will he not, in the State of Ohio, for example, decide because of an unlimited statute of limitations he is going to have his own antitrust investigation, his own possible indictment of Mr. Conboy and others, because Mr. Conboy did business down there, or will some judge that's not any longer Judge Singleton but some other District Judge, in reading the spectrum of questions that go beyond the actual immunized testimony, say I will cut it here.

I think at this point he may have waived or at this point it may be beyond the derivative use concept.

So that our submission really is very clear and very simple, and that is that for Mr. Conboy to be certain of the scope of his Fifth Amendment rights and for a reaffirmation of Kastigar, which we think the panel majority clearly did, and that in conjunction with the way the government does this every time, that each testimonial situation... be it civil or criminal, be it interview, grand jury, criminal trial, civil deposition or civil trial or next grand jury... Mr. Conboy and all of those witnesses that he represents are entitled to claim their Fifth Amendment right because the source not of the questions, as we point out in our brief and the panel majority indicated, not of the questions... the source is not the questions.

The source is the answers and, therefore, for certainty and in the ability of the witness to know the scope of his Fifth Amendment and to keep the scope of the Fifth Amendment and the statute the same, as the Court has indicated it must be, each time he testifies, he is entitled to claim it because each testimonial situation might be a new use.

Now you take the one end of the spectrum.

What Mr. McConnell wants to do is to say I bring out the transcript and I give it to you, Mr. Conboy... as he did on the day of his deposition... and this is now the grand jury transcript and I have got it and you have got it, and now I am going to read to you.

Did you say this; did you say that?

And to make that one relatively simple, he could say in one question if I were to read you all of the questions and all of the answers in your grand jury transcript, would your answers today be the same to those questions, and Mr. Conboy could theoretically say yes, Mr. McConnell, despite the fact that Judge Singleton in this new pretrial order 69 has said I am not going to allow in grand jury transcript to be read into this trial except for cross examination of actual witnesses.

But all of a sudden Mr. McConnell is going to have us transfer what is impermissible under the Federal Rules of Evidence and Judge Singleton has already said I'm not going to let that in, by Mr. Conboy answering the question yes, it all of a sudden becomes now more verifiable, somehow a better class of testimony, and he is going to let it in.

Now the tough question for me at that point is, and Justice Marshall suggested this, can anyone seriously claim that Mr. Conboy's one answer "yes" might somehow be... subject him to criminal prosecution later on.

And I would submit to Your Honors that given the fact that criminal prosecution is still possible and there's been no real argument in this case that it is still theoretically possible--

Unidentified Justice: The issue really isn't whether another criminal prosecution is possible.

Let's assume it is.

Mr. Coffield: --Right.

Unidentified Justice: The question is whether the answer "yes" in your example would fall within the statutory language of being information directly or indirectly derived from such testimony.

Isn't that the issue?

Mr. Coffield: That's right.

Unidentified Justice: Your submission is that the question that your opponent asked of him was derived from it, but the answer was not even indirectly derived from the grand jury transcript... the information contained in the transcript.

Mr. Coffield: I would say, Your Honor, that clearly... and I'm trying to give myself the hardest case, clearly... that it is difficult for me to argue that is isn't indirectly, but there are a number of differences.

Unidentified Justice: Why is it hard to do that?

They are asking him for his present recollection.

Mr. Coffield: That's right.

That's my point.

Unidentified Justice: You are not asking him for what your recollection was then.

You are saying what is it now, and that certainly isn't derived from his grand jury testimony.

Mr. Coffield: And that's not.

Exactly, Justice White.

What I am saying is--

Unidentified Justice: Well, but let's not leave that quite so fast.

Is it not true that it's indirectly derived from the other testimony, even though it isn't what he testified to before?

You found out about it indirectly by knowing what he testified to before.

Mr. Coffield: --No, I submit not.

Unidentified Justice: And if you were defending him in a criminal case you would not be willing to argue that that testimony was the fruit of the grand jury testimony?

Mr. Coffield: Ah, well, as you pointed out before, that's the conundrum and the Catch-22, if you will, that Mr. Conboy's going to be put in unless this Court affirms, because Mr. Conboy in fact, yes, will have to say that he is entitled to his Fifth Amendment right because it's a new source... a new answer, a present recollection of something that happened four years ago... and then, if he is compelled and he does say yes and some prosecutor down the line says but I have an independent source... it's a new yes and it's today's yes... and I'm going to bring an indictment, I'm going to have to turn around, and so does Mr. Conboy, and say well, now, since it is in fact going to be held either to be excluded under the exclusionary rules or it's going to be held to be indirect, I now am going to take your position.

Unidentified Justice: So it's a fruit of the poison tree.

Mr. Coffield: Exactly.

Unidentified Justice: Supposing you had a coerced confession case where Mr. Conroy had been hauled in by the police and subjected to brutality and he gave a transcript that confessed to a crime.

Then later on he was asked again did you so confess... the same questions you've got here... and he's say well, my present recollection is such and such.

And you say the present recollection has not been indirectly derived from the earlier testimony?

You say that's not a fruit of the earlier confession?

Mr. Coffield: It is not, because--

Unidentified Justice: Because it's his present recollection rather than what he testified.

Mr. Coffield: --It is not only present recollection but the problem with it is that in addition to it being present recollection, the moment you add anything else to my spectrum or to the level of questions--

Unidentified Justice: It is not an indirect fruit.

Mr. Coffield: --You are in an area where who knows where you are going to stop.

And without meaning this disrespectfully, from the point of view of Mr. Conboy, we don't care how Your Honors decide this, because if you tell us on the one... what we want is certainty.

So if you tell me on the one hand, all right, Kastigar means every time you are entitled to use, at that point Mr. Conboy and every other witness will do it the way we do it with the government every time, and Mr. McConnell is going to have to look to his own presentation of his case, however he may find it.

On the other hand, if Your Honors say well, we'll go all the way... and effectively I would submit that goes back to Justice Marshall's dissent in Kastigar, which was effectively to say once you give up the transactional concept you found yourself in this hornet's nest... go all the way and say everything that relates to the corrugated container industry from the years X to Y is going to be seen, and this Court will so say, as derivatively and indirectly related to the questions of this testimony, as far as I am concerned that's fine too, because then we'll sit down and go for five days.

Unidentified Justice: But you pose two possible decisions of this Court, but those two aren't the only ones.

You could get a decision somewhere in the middle, which I suppose wouldn't please you so much.

Mr. Coffield: Well, I submit, Your Honor, that if Your Honors come down somewhere in the middle it is fraught with uncertainty and it is fraught with constitutional concern, and the reason it is is because what you would effectively be doing, it seems to me, if you come down anywhere in the middle, is going against cases like Manusk, against cases like Murphy v. Waterfront... against the cases which have said the exclusionary rule remedy is not the same as the constitutional privilege and the statutory immunity that's related to it.

The exclusionary rule remedy is to clean it up... de facto immunity... some judge later saying well, all right, Mr. Conboy went this far and now I've got to look at it--

Unidentified Justice: Well, what if you just had a rule.

It might not make a lot of sense, but at least it might be clear that as long as you are reading a question from the grand jury testimony and he gives the same answer and the judge is following it, that there is... that he must answer that question, because there's immunity.

But if you stray a word from the grand jury testimony, then you can take the Fifth.

Mr. Coffield: --Well, I would pick up on Your Honor's statement of that.

I think that--

Unidentified Justice: That's the equivalent of your hardest case.

Mr. Coffield: --That's my hardest case, but it seems to me the problem with that hardest case is that while the courts have made it clear that the immunity does not protect you from perjury, there is a question with respect to whether or not your present recollection on these case-by-case questions is the same.

Unidentified Justice: Well, you might be perjuring yourself again because you'd answer--

Mr. Coffield: That's right, and he is entitled, I would submit, Your Honor, he is entitled not to perjure himself again and to take the Fifth Amendment with respect to that.

Unidentified Justice: --Well, I didn't know immunity protected you against perjury.

Mr. Coffield: It doesn't.

The case is where you in fact by giving an answer, a new answer, would be indicating that a past answer was perhaps perjury, that you are protected against doing, as you are from making any statement that would in any way incriminate you.

So while... if you perjure yourself within... once you've been given immunity, you are not protected from prosecution.

Unidentified Justice: You say the second testimony the guy has a right to claim the privilege against self-incrimination if the answer would tend to indicate that he perjured himself in an early... the first time.

Mr. Coffield: That's correct.

Unidentified Justice: Or if he said I refuse... I will not answer to the same jury.

If he said, I'm taking the Fifth Amendment because I refuse to answer, I will not answer that question the same as I did at the grand jury?

Mr. Coffield: Well I think if he even says that much then you may have a court that comes down and says, well, you waived at least the concept that your answer would be the same, and now we're going to say that you've waived to the extent that now you have to answer.

My point in all of these examples, Your Honor, is that... and this is something that the class Plaintiffs can't do in any form in which they've tried this.

Mr. McConnell told Your Honors what happened with Mr. Fleischacker, and there was the one where the Second Circuit said, oh, it's okay, go ahead.

Well, he did, and what happened?

The moment he got past the actual questions and actual answers, Mr. Fleischacker's counsel, as the Maness case indicates, being conservative and concerned with the Constitution, stands up and says: That's it.

No more.

He is now taking his Fifth Amendment.

At which point all of the cross-examination and all of the things that would make the testimony viable, usable, and in the context of the Defendants in those civil cases--

Unidentified Justice: You don't represent them.

Mr. Coffield: --I don't represent them.

But the point is that from the standpoint of the witness, it's cut off.

And as Judge Singleton recognizes himself in his new order, he is going to cut off and not admit anything that is grand jury testimony on its own.

And so I would submit that, whether Mr. Fleischacker's deposition or Mr. Conboy's, if he answers yes doesn't get more credibility, more viability as valid testimony by the mere answer yes than it did... and I would submit--

Unidentified Justice: Mr. Coffield, the only interest you have in representing a number of these people is protecting your client from criminal prosecution, really.

That's your ultimate goal.

Mr. Coffield: --That's correct.

Unidentified Justice: But is it not true... and you did indicate it depends on the proceeding, and I of course recognize you've got to fight each battle as it arises.

But is it not true that generally the class of persons you represent would benefit from a holding that gives broad interpretation to the words "indirect use", because then they would have broad protection against subsequent criminal prosecution?

Mr. Coffield: Well, as I indicated earlier, Justice Stevens, I think either way would benefit them.

Unidentified Justice: As long as you know where you stand.

If we were to say, for example, that we apply the same test we do in the fruits of an illegal search or seizure, the fruits of an illegal confession, the same broad scope of protection applies to this immunity statute, that would be very beneficial to your client, wouldn't it?

Mr. Coffield: Well, it would be beneficial--

Unidentified Justice: In the sense of avoiding future prosecution.

Mr. Coffield: --Yes, but it would not be as beneficial as the affirmance of the panel below, because once I leave here today and Mr. McConnell and I go back in the trenches, we are out there in a world of prosecutors all over the place making discretionary--

Unidentified Justice: Well, let me ask you, let me give you this hypothetical.

Supposing the Ohio Attorney General that you're concerned about gets his hands on this transcript and he calls the witness in and wants to use the information in the transcript, but not ask him any questions about it.

You then I think would be taking the position that he is using information that was indirectly derived from a grand jury transcript, wouldn't you?

Mr. Coffield: --You bet I would, and that by a Court's ruling that does not affirm this panel below is the Catch-22 that Mr. Conboy's put in.

He's got to then be on both sides of this question, depending on who's doing the asking.

Unidentified Justice: Let me put the question to you that I put to your friend.

Mr. McConnell has no transcript.

No transcript was issued in a jurisdiction, in a circuit where it is not allowed.

Mr. Coffield: Yes.

Unidentified Justice: But if he's an experienced lawyer, as he is, he's going to ask.

He's going to be able to surmise what the testimony was.

Mr. Coffield: He's going to come pretty close, sure.

Unidentified Justice: Now, then he puts the questions to the witness which very closely track the testimony he gave before the grand jury.

And what does your witness do?

Mr. Coffield: Well, he does the same thing.

He takes the Fifth Amendment.

The irony of that is that if you take Mr. McConnell's argument that it doesn't depend on, as I think must be implied in what he's saying, it doesn't depend on what comes out of Mr. Conboy's mouth, then you have the reverse situation.

Even if Mr. McConnell just fortuitously asks the same questions in the same order, even though he never had a copy of the transcript, in fact under his theory it might also be derivative use, it might also be protected.

But I think that would be a ludicrous result, because in the cases like Kuehn, in the cases like Brown, the lower... the Court of Appeals who have looked at it clearly have indicated that a new source, a new statement, is a new entitlement to claiming the privilege, because that otherwise might be used and the use would then subject him.

So that in fact what would happen is that Mr. Conboy would continue to claim his Fifth Amendment right, and the mere fact that he happened to have the transcript in front of him, or Mr. Conboy happened to have the transcript in front of him, shouldn't make a difference.

And we submit that because it is current recollection, because it is in fact within the very statements made by Kastigar, it's the effort to say that the scope of the immunity is the same as the scope of the Fifth Amendment privilege and that in any circumstance in which there might be an extension of that the use is not use by civil attorneys, it is the use by the prosecuting attorneys of the information gained from the immunized testimony.

And so the--

Unidentified Justice: That just is a contradiction in terms, because at the point that the privilege is claimed in the civil deposition there isn't yet any use by any future criminal prosecutors.

Mr. Coffield: --Well, we don't know that, Your Honor.

Unidentified Justice: Well, you certainly don't know one way or the other.

Mr. Coffield: We don't know one way or the other.

But the fact of the matter is that, now that the grand jury transcript is out... and that of course is the subject of all kinds of other appeals and other issues, the secrecy of the grand jury... once the grand jury transcript is out, there may be people and there may be prosecutors who look at that transcript.

And now they are looking at an immunized transcript and there is no use they can make of that because so far there's been no extension of it.

Unidentified Justice: What safeguards are put on these grand jury transcripts?

It seems to me that's the root of the problem here.

Mr. Coffield: I would submit, at least in the experience I've had before Judge Singleton... and I think Mr. McConnell would agree with this... that the court there and the court in other cases I've been involved in try very hard, both through security in offices and checkout systems and what have you, to make sure that only the parties, be it the counsel or in certain cases counsel and an expert witness or counsel and one representative of the client... that there is very limited access.

And I think the courts have in fact been fairly careful about it.

The whole question of whether or not there is an effect on Mr. Conboy, Your Honors will recall Mr. Conboy was joining an appeal made to this Court for certiorari that was denied because we did take the position that had our transcript not been turned over we wouldn't even be here.

And we thought it was improper at the time.

We objected at the time, and it came up through the Fifth Circuit on that issue and then cert was denied.

But certainly this goes to your question, Mr. Chief Justice, that the fact of the turning over of these transcripts... Mr. McConnell says he doesn't make much use of them.

I would submit that there's a great deal of use of them made other than the need, as he claims, to get them in somehow into the courtroom in the trial.

But with respect to the interest of Mr. Conboy and all these other witnesses, the principal use that is made of them are these series of depositions, which we submit are going to extend and subject him to substantial risk.

And it is not just frivolous and it is not just a mere possibility.

It is a situation where any movement down that road, any answers that go beyond that immunized transcript, even the affirmation, put Mr. Conboy at risk or put the courts in the position of trying now to flesh out the breadth and scope of the use immunity statute and the Fifth Amendment by exclusionary rules, which this Court has said is not the proper way to handle it, or analyses by other judges and other prosecutors of what is indirect.

And I would submit that that whole series of questions leaves Mr. Conboy, who is the one that started out here with this constitutional right, in tremendous uncertainty.

And counsel like myself cannot say to Mr. Conboy, well, yes, as the Supreme Court said, Kastigar says the use immunity statute and your constitutional rights are the same.

His question to me is: Well, Mr. Coffield, that sounds good, but what happens if the prosecutor decides that he's going to file an indictment and he's got a grand jury that'll do it for him?

And what happens if Judge Singleton isn't on that bench and Judge Smith is, and Judge Smith thinks that now I've waived it?

Or Judge Jones thinks that in fact, yes, he's going to apply an exclusionary rule when the prosecutor comes--

Unidentified Justice: You're not expecting us to give an opinion that will allow antitrust lawyers to give a definitive opinion on anything?

Mr. Coffield: --Yes.

Unidentified Justice: Are you?

[Laughter]

Mr. Coffield: With all due respect, I think you can.

And the reason I think you can, Your Honor, is because of the exact thrust of your dissent in Kastigar itself.

Unidentified Justice: Why, that proves it.

It was a dissent.

Mr. Coffield: Well, that's right.

But now is the chance, Your Honors, because if this Court reaffirms Kastigar... and Your Honor, with all due respect, can see that if Kastigar is affirmed, and the Government's been living by it and we've been living by it as defense counsel or witness counsel, that each testimonial situation is entitled to separate protection.

If we get that separate protection, we'll testify until Mr. McConnell is all through.

The Government, it's clear in all the cases, the Government is the one that has the discretion to come in there and decide.

And if the Government wanted to get beyond that criminal trial and made a determination it was in the public interest to have Mr. Conboy testify, I believe we'd find the Government in there saying, okay, I'll go down to Judge Singleton and I'll give him a petition.

And I am sure Judge Singleton would sign that order as fast as the ink would dry, and we'd be down there--

Unidentified Justice: Well, is there statutory authority for the Government to give immunity to a witness to testify in a private case?

Mr. Coffield: --I think there is.

The application's been made in a number of cases.

It's made administratively here in town all the time.

It's done--

Unidentified Justice: Has that been the subject of litigation?

Mr. Coffield: --I think it will be, but I don't know that it has been.

Unidentified Justice: Well, there may be a lot of applications.

Have they been granted?

Mr. Coffield: I don't know of any case that we've studied where, in our research, where the Government, when asked, his gone ahead and done it.

Now, the other areas--

Unidentified Justice: They've been asked, yes.

Mr. Coffield: --The other area, of course, is when--

Unidentified Justice: It'd be a change in policy.

The Division didn't use to just hand out stuff to private litigants, did it?

Mr. Coffield: --I'm sorry, Your Honor?

Unidentified Justice: Did the Antitrust Division just hand out information to private litigants as a result of their investigation?

I mean, I think this would be a change in policy, wouldn't it?

Mr. Coffield: No, the Government, with respect to the release of grand jury information and so forth, I think the Government has, with all due respect to the Government, been on both sides of that fence.

I mean, sometimes they see it's of some benefit, they've got private treble damage claims; and sometimes they have other fish to fry and so they don't want to do it.

So it seems to me they change.

One of the areas, though, that is suggested by the Court's questions is... and this is going to come up as a constitutional question... if Mr. Conboy were a defendant in the criminal case down the road, and now Mr. Conboy says, and I want Joe Gluntz, who you've not given immunity to, to be given immunity, because under Brady he's got all kinds of exculpatory information, and the Government says, no, I'm not going to give him immunity.

So far the court has said that's still a Government discretionary policy.

But from the standpoint of witnesses, it is not wholly unlike the problem with respect to defendants, that we have to look to the Government, and if they're not here I submit Mr. McConnell's got to live with that as much as I do.

Unidentified Justice: I get a feeling in this colloquy and the one that preceded it that we sometimes meet ourselves coming back.

Let me put a relatively simple hypothetical to you.

Mr. Coffield: Okay.

Unidentified Justice: Your witness is on the stand.

Make it this witness, Mr. Conboy.

Mr. McConnell asks him a question which is by coincidence, not by use of any transcript, the same kind of questions he answered before the grand jury and for which he had immunity.

Now, he declines to answer.

He asserts his Fifth Amendment.

You have told him in advance that that's the thing to do.

Mr. Coffield: Right.

Unidentified Justice: Judge Singleton orders him to answer under pain of contempt.

Mr. Coffield: As he did.

Unidentified Justice: And he answers.

And he answers.

Mr. Coffield: Okay.

Unidentified Justice: Is that or is that not immune?

Is that compelled testimony?

Mr. Coffield: That's my Catch-22.

At that point, Your Honor, I have to take the position that if he answered that it is, as Justice Stevens suggests.

I've got to then say it's indirect and it's derivative.

I don't think it is, but I would then--

Unidentified Justice: My question is a simpler one.

My question is, Judge Singleton orders him to answer and says, if you don't answer I'm going to hold you in contempt.

So he says, under that compulsion, Your Honor--

Mr. Coffield: --I will answer.

Unidentified Justice: --I answer, and then he answers.

Mr. Coffield: Right.

Unidentified Justice: Is that or is that not compelled testimony?

Mr. Coffield: Oh, it certainly is compelled.

Unidentified Justice: Well, it would never be admissible in a criminal proceeding.

No.

Mr. Coffield: Well, I would submit to Your Honor that I'm comfortable when you say that.

Unidentified Justice: Any more than a compelled confession.

Mr. Coffield: I am comfortable hearing you say that, Your Honor.

I am not as comfortable when, if you just stretch this out a little bit more and you get a few more questions than, Mr. Chief Justice, you posed.

You then have a judge or a prosecutor who says: Well now, wait a minute; somewhere along that line we think the subject got a little bit away from the container industry and we think you've waived it.

And under Rogers, he's stuck with that.

Or he says, we don't--

Unidentified Justice: He could solve that by asserting the Fifth Amendment on every question that's put, and go through the same.

And he can order... let the judge order him.

Mr. Coffield: --Well, if the judge sits there, I would submit, Your Honors, and makes a determination on a case by case basis, I might feel more comfortable in terms of what's going to happen with Mr. Conboy's uncertainties.

I don't feel a whole lot more constitutionally comfortable, if you'll permit me, but at least no one else is going to be able to second-guess that down the road, as we can if we simply go forward in this deposition.

I think when we go back to the beginnings of this, and even under the Immunity Act of 1954, the Allman case, Judge Frankfurter I think said it best and adopted language in Mathie of Judge Magruder and said:

"If it be thought that the privilege is outmoded in the conditions of this modern age. "

--as Mr. McConnell is really suggesting to us...

"then the thing to do is take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion. "

And I suggest that Starkey is a subtle encroachment, and Fleischacker's a subtle encroachment, and that the panel majority said: No, Mr. Conboy and others like him are entitled to certainty, and the certainty can only be the reaffirmation by this Court of Kastigar and the affirmance of the panel below.

Thank you, Your Honors.

Chief Justice Burger: You have two minutes remaining, Mr. McConnell.

REBUTTAL ARGUMENT OF FRANCIS J. McCONNELL, ESQ. ON BEHALF OF PETITIONERS

Mr. McConnell: Mr. Chief Justice, members of the Court:

The fact is that the Government would not give immunity in this case.

It's my understanding that that is their overall policy.

They will not grant immunity in private civil suits.

So unless we're able to compel--

Unidentified Justice: How could the Government give immunity in a private civil suit?

Mr. McConnell: --I don't know how they can.

Unidentified Justice: Well, I thought you were challenging their failure to give it.

They have no authority to give it.

Iif Judge Singleton in that hypothetical compels the witness to answer the question, can that... in your view, can that answer be used against him in any subsequent criminal proceeding?

Mr. McConnell: No.

Compelled repetition of immunized testimony cannot be used against a witness in any subsequent criminal proceeding.

Unidentified Justice: I'm not talking about immunized.

Compelled testimony.

Mr. McConnell: Compelled testimony over a Fifth Amendment assertion, the answer, cannot be used against that witness in a subsequent criminal proceeding.

Unidentified Justice: That doesn't mean you're supposed to compel him.

That's too general a statement.

That doesn't mean that it's right for the judge to compel him, just because--

Mr. McConnell: That's right.

Unidentified Justice: --Otherwise, the Fifth Amendment privilege would never exist.

The judge would always just order him to answer.

Mr. McConnell: It is too general a statement.

Unidentified Justice: It's too general.

If a witness wrongly claims a Fifth Amendment privilege--

Mr. McConnell: Exactly.

Unidentified Justice: --the Judge overrules it, the witness' answer is compelled; that can be introduced against him in another criminal proceeding.

Mr. McConnell: Exactly.

And to bring both your points, what we're saying here is that the determination that was made by the court was, the witness had no legitimate Fifth Amendment privilege to assert because that privilege had been supplanted by the use immunity statute, which gave him full protection against both direct and derivative use of his testimony.

We've got a simple case here.

When you've got the grand jury transcript and you take the question from the grand jury transcript, the answer necessarily derives from that transcript and is protected.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Tuesday next at 10 a.m..