United States v. Balsys - Oral Argument

Argument of Michael R. Dreeben

Chief Justice Rehnquist: We'll hear argument now in Number 97-873, United States v. Balsys.

Mr. Dreeben.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

The question in this case is whether the Fifth Amendment privilege against compelled self-incrimination may be invoked based on a fear of foreign prosecution.

For three main reasons, we submit that it may not.

First, the prohibition against compelling a person to be a witness against himself applies only in a criminal case.

By that phrase, the Framers meant a Federal criminal case.

The Self-Incrimination Clause is one of a series of rights set forth in the Fifth and Sixth Amendments that are naturally read to govern criminal trials in this country, not foreign criminal cases.

Second, history teaches--

Unknown Speaker: Mr. Dreeben, in the Arndstein case the Court extended the privilege outside of the scope of a criminal trial, didn't it?

Mr. Dreeben: --That is correct, Mr. Chief Justice, in this respect.

The privilege may be claimed by a witness in any proceeding, regardless of whether the proceeding is civil, criminal, or administrative, so long as what the witness ultimately fears is incrimination in a criminal case.

The proper referent to determine whether the Self-Incrimination Clause may be invoked therefor is not the type of proceeding in which it is claimed in this country, but rather the type of proceeding in which the witness actually fears incrimination, and that point is borne out by the history of the clause.

Unknown Speaker: Mr. Dreeben, before you proceed further, would you tell me why 18 U.S.C. 1001 isn't in this picture?

It did involve a false statement to the United States, so why is it seemed to be conceded that there is no criminal case in the United States?

Mr. Dreeben: There could be, Justice Ginsburg, if these statements had been made within a period prosecutable under the statute of limitations, but the original statements that respondent made to gain entry to the United States were in 1963, and the general 5-year statute of limitations has long since run on any prosecution for false statements based on that event and, as a result, the witness is not in a position to claim a fear of domestic incrimination based on any contradiction with his prior statements and I think it's conceded in this case that the only claim of self-incrimination is based on what a foreign power might do if it had custody over respondent and instituted a case.

There is no claim in this case that there is a domestic fear of prosecution by either the State or the Federal Government based on the statements that he has made.

Now, the history of the Self-Incrimination Clause in this country points strongly to the conclusion that the words, any criminal case, in the Fifth Amendment refer only to a Federal criminal case.

In the era before this Court extended the--

Unknown Speaker: Wait.

You just told us that that refers to the case in which he is asked to testify, not the case in which he would presumably incriminate himself, right?

Mr. Dreeben: --I'm not sure, Justice Scalia, whether I was clear before, so let me try to make it clear.

Unknown Speaker: All right.

Mr. Dreeben: The case in which the incrimination must take place--

Unknown Speaker: Right.

Mr. Dreeben: --must be a criminal case, by which the Fifth Amendment in our view means a Federal criminal case.

The privilege can be claimed by a witness in any proceeding in which he is asked to give compelled testimony, not based on his concerns about what might happen to him in that proceeding, but based on concerns about what might happen to him in a criminal case down the road.

Unknown Speaker: I understand, but I don't understand how you read the phrase, in any criminal case.

No person shall be compelled in any criminal case to be a witness against himself.

Where is the compulsion?

Is the compulsion in the case in which I am summoned--

Mr. Dreeben: Yes.

Unknown Speaker: --to testify?

Mr. Dreeben: Yes.

The compulsion can be in the case in which you are compelled to give testimony under oath, as in this case, in our view, by a... backed by the contempt powers of the court if you decline to give testimony, so the compulsion can occur in any proceeding.

Unknown Speaker: All right.

Mr. Dreeben: But you need also to have incrimination.

The two interlinked requirements of the clause are compulsion and incrimination, and the question here is whether the incrimination can be in a case not brought in this country by the Federal Government or a State, but by a foreign Government.

That is the question before the Court in this case.

Unknown Speaker: And that's the implication in the latter part, to be a witness against himself, and a witness where is what we're debating.

Mr. Dreeben: That is exactly right.

The question is whether it can be triggered based on prosecution abroad.

Now, if you look at the text of the Fifth and the Sixth Amendments together, which is the logical way to read them because they contain the essential criminal procedure proscriptions that are applicable in trials in this country, the Fifth Amendment seems almost inevitably to be limited to criminal cases brought by the Federal Government.

There can be no dispute that the original intent of the Framers of the Bill of Rights was to impose limitations only on the Federal Government, not on the States, and this Court consistently held, in the era before the Fourteenth Amendment was ratified and thereby made certain constitutional protections applicable to the States, that none of the provisions in the original Bill of Rights govern State proceedings and, as a result, State witnesses could not claim the protection of the Fifth Amendment.

In that regime, in other words, State witnesses who feared incrimination by a State could not say that they feared incrimination in any criminal case, because State prosecutions were not deemed subsumed within the Fifth Amendment, and there are several textual references that make sense only if read that way.

The Sixth Amendment refers to all criminal prosecutions, yet it is quite clear that by that reference the Framers did not intend to refer to State criminal prosecutions, and far less sensible would it be to think that they were referring to foreign criminal prosecutions.

The only criminal prosecutions that were originally subsumed by the Sixth Amendment were domestic criminal prosecutions.

Unknown Speaker: But that goes to where the compulsion is, not to where the incrimination is, doesn't it?

Mr. Dreeben: No, Justice Scalia.

I think what it goes to is by what did the Framers mean the words, any criminal case, to refer to?

Originally they only meant them to refer to a Federal criminal case and, as a result, this Court held that if a Federal witness was compelled to testify, he said, look, I don't have any concern that I'm going to be incriminated in a Federal criminal case, but I am worried that in the State of Maryland I might be incriminated.

This Court held that is not a basis for declining to give testimony, because the criminal case in which you fear incrimination is not a Federal criminal case.

Unknown Speaker: That was before the Murphy decision.

Mr. Dreeben: That is correct, Justice Ginsburg.

Unknown Speaker: And why shouldn't it be that the concern is controlling the conduct of the Federal actor, whether a Federal agent, a police officer... if the amendment is directed against the compulsion, the action that is prohibited is compelling the testimony, why should it matter where the criminal case is instead of who is doing the compelling?

Mr. Dreeben: Well, Justice Ginsburg, it always has mattered where the criminal case is, and once this Court held in Malloy v. Hogan that the Fifth Amendment applied equally to the States and to the Federal Government, this Court in the Murphy decision changed the former Federal rule and held that the Fifth Amendment may now be claimed whether the prosecution that is feared would occur in a State or in the Federal Government.

The theory behind that is that any jurisdiction that is bound by the Fifth Amendment should not be able to receive testimony that was compelled by another jurisdiction, also bound by the Fifth Amendment, and use it to convict someone.

So under the Murphy decision two jurisdictions, each bound by the Fifth Amendment, cannot evade that constitutional guarantee by having one compel the testimony and the other one use it, but that is a value that primarily relates to the way we try criminal cases in this country.

Like the presumption of innocence and the requirement of proof beyond a reasonable doubt, the Fifth Amendment fits into a mosaic of rights that express the view that it is the Government that must prove the defendant's guilt without the assistance of compelling the defendant to incriminate himself out of his own mouth and thereby confess himself into a Federal or a State prison.

Unknown Speaker: Is there anything in our cases which would allow the respondent to make the argument that there is an additional protection in the Fifth Amendment Self-Incrimination Clause that it is simply degrading or destructive of the dignity of the person to be required to answer and to confess a crime?

Mr. Dreeben: I think that that is one of the components that this Court has identified as a value underlying the Fifth Amendment, but it again relates primarily to a value about how we prosecute individuals in this country.

It says nothing about whether another country might choose to adopt a different criminal law system.

Unknown Speaker: Well, but I'm not so sure, and do you get that out of Malloy or Murphy?

Where do you get this interest in individual dignity or autonomy?

Mr. Dreeben: Well, to the extent that one identifies an interest in individual dignity or autonomy, it does not extend so far as to say the Government cannot exert compulsion.

By granting immunity--

Unknown Speaker: Of course, because you can have immunity.

Mr. Dreeben: --That's correct.

The Government has always had the countervailing ability to grant immunity and then to compel an individual to say anything about himself that he knows honestly, no matter how offensive it is to him personally, no matter whether it would subject him to personal humiliation or jeopardy of life.

So long as it's not used against him, those words--

Unknown Speaker: Which leads me to think that there is no freestanding interest in just individual dignity, that it's... the only question is whether or not it can be used by the Government which is going to prosecute him.

Mr. Dreeben: --I think that that is exactly right, Justice Kennedy.

It is not a freestanding interest.

It's an interest that it is integrally interlinked with the potential for incrimination, and--

Unknown Speaker: Mr. Dreeben, can the Federal Government compel testimony that would incriminate someone in a State proceeding by giving him immunity from the State prosecution?

Mr. Dreeben: --Yes.

It's settled that the Federal Government has the authority under the Supremacy Clause to declare that testimony that is compelled will not be used against an individual in a State proceeding.

Unknown Speaker: In a State proceeding as well.

What case--

--What case settles that?

Mr. Dreeben: That I think is settled by the Kastigar decision, by the Murphy decision, by Brown v. Walker, and by Adams v. Maryland.

I believe we cited all of these cases in our brief that specifically address the Federal Government's power to do that.

Unknown Speaker: Mr. Dreeben, is it possible that the Federal Government, for example in this case the OSI, might want to cooperate with a foreign nation to see the individual prosecuted elsewhere and have a motive to--

Mr. Dreeben: Certainly--

Unknown Speaker: --secure the testimony to help the foreign prosecution?

Mr. Dreeben: --Well, I think in a case like this the Justice Department has dual interests.

There is a Federal law that provides for the deportation of an individual who lied to get into this country and who assisted the Nazis in persecuting Jews during World War II, and that is a distinct Federal interest that is being enforced by OSI.

It is also true that OSI regards it as a proper component of its mission to see to it that information that may be relevant to a foreign Government's consideration of prosecution is provided.

Unknown Speaker: Well, should that make any difference in our concerns about this case, if it's that kind of a situation?

Mr. Dreeben: I don't think it should make any difference whatsoever, Justice O'Connor, because the underlying question here is not whether it would be fair in a United States prosecution to use this information.

The question is whether the United States Constitution has something to say about the way foreign Governments conduct their prosecutions.

There is no country that I'm aware of that has a Fifth Amendment right, or a mirror image of the Fifth Amendment right that looks just like ours.

Unknown Speaker: Do foreign countries scratch our backs, too?

I mean, do we get people to testify before the courts of foreign countries that don't have Fifth Amendment protections, knowing that what they say can be used in a Federal criminal prosecution?

Mr. Dreeben: We don't, Justice Scalia.

My understanding is that we provide sufficient information to the foreign Government and ask them to provide information to a witness when we are seeking testimony from overseas about applicable privileges.

Now, the traditional rule about how the privileges are supposed to be applied when countries cooperate in securing testimony is that the foreign country will take the testimony subject to any claim of privilege, and then the privilege is adjudicated in the home country where the privilege actually derives from, but it is not--

Unknown Speaker: After the testimony is already taken.

Mr. Dreeben: --Right, but it is not the--

Unknown Speaker: After the cat is out of the bag.

Mr. Dreeben: --That is true, Justice Ginsburg.

It's not the policy of the United States Government to seek to... that that happen in every case and, as a result, I'm not aware of instances where we did have a foreign Government act as our agent, compelling testimony that would be prohibited if the United States were acting alone.

Obviously, that raises a somewhat separate question from the question here, which is whether the United States may use an agent or an intermediary to accomplish something that it cannot accomplish acting directly, but that is an entirely separate question from whether a witness in this country in a domestic U.S. proceeding may claim the Fifth Amendment based not on a fear of prosecution here, but by a fear of what might happen to him if he is... finds himself in a foreign country and the testimony ends up there.

Unknown Speaker: I take it, then, to your argument it makes no difference whether the foreign country is a country that has a comparable privilege, perhaps, or strata, or whether it's a country that's typical of a civil law system that would not?

Mr. Dreeben: It does make no difference, Justice Ginsburg, because again, I think that the fundamental concern of the Fifth Amendment and as applied to the States through the Fourteenth Amendment is how we conduct our criminal prosecutions here.

Unknown Speaker: Why is that?

That is, if... I'm thinking only of the Fourteenth.

I agree with you that, let's say hypothetically the Fifth is Federal.

They're talking about a Federal trial, but the Fourteenth uses the word liberty, and it protects a person's liberties.

So if there's a person in Ohio who would be deprived of a liberty by having his testimony taken and used in an Ohio proceeding, it would deprive that person of a liberty, so he must have a liberty not to have his testimony forced from him for Ohio.

Why is it different from Lithuania?

Mr. Dreeben: It's--

Unknown Speaker: I mean, the Fourteenth Amendment doesn't talk about what Ohio can do.

The Fourteenth Amendment talks about the liberty that a person enjoys.

Mr. Dreeben: --It's different because Ohio, unlike Lithuania, is bound by the Fifth Amendment privilege against compelled--

Unknown Speaker: Where does it say that in the Constitution?

I thought all that it says in the Constitution is that you cannot deprive a person of a liberty.

It says no State shall deprive a person of a liberty.

We're talking about a liberty.

What's the liberty?

Mr. Dreeben: --The liberty, I think, in your hypothetical is ultimately freedom from incarceration.

The question is whether Ohio may use the information that Illinois has extracted for purposes of prosecution, and this Court in the Murphy decision attempted to make sense out of our Federal system in which all jurisdictions are bound by the Fifth Amendment by saying that two jurisdictions who are equally bound by the Fifth Amendment cannot team up--

Unknown Speaker: Mr. Dreeben, may I just interrupt?

It isn't technically and strictly correct to say that the State is bound by the Fifth Amendment.

Mr. Dreeben: --No.

Unknown Speaker: It's bound by the Fourteenth Amendment--

Mr. Dreeben: That's correct.

Unknown Speaker: --which has a liberty protection which is somewhat comparable, or is comparable to the Fifth.

Mr. Dreeben: Well, I think--

Unknown Speaker: But strictly speaking the State is not bound by the Fifth Amendment.

Mr. Dreeben: --That is correct, strictly speaking it's not, but the Court in Malloy v. Hogan said, we are going to apply the Fifth Amendment to the States just as we apply it to the Federal Government.

Unknown Speaker: And when we say just as we apply it to the Federal Government, there is no case, with reference to the Fourth Amendment search rules, the Fifth Amendment self-incrimination or double jeopardy rules, or the jury trial rules in which the State protection is any greater or any less than is granted to... under the Federal... than is applicable to the Federal Government, is that not correct?

Mr. Dreeben: Once the Court has made the decision to extend the right in question to the States through the Fourteenth Amendment, that's correct.

Unknown Speaker: They are coterminous in each case.

Mr. Dreeben: They're coextensive, and the fundamental premise of the Murphy decision is that we do have cooperative federalism in this country when it comes to law enforcement, and it makes very little sense to say that once the States are no longer free to compel testimony under the Federal Constitution, that they may then operate together and achieve results that they couldn't achieve--

Unknown Speaker: Can I ask you about that, because I was just testing out the linguistic argument, that's why I was... Justice Stevens made the point linguistically, but I have a practical question, which is why... how specifically would extension of the protection that you oppose interfere with Government law enforcement efforts?

In particular, I'm thinking that it must be perhaps a fairly unusual case where, say, as here, the statute of limitations has run, 5 years, so there's no risk of domestic protection.

I'm guessing that in most cases anybody who can assert a Fifth Amendment privilege in respect to a foreign country probably could here, too, so I'm interested in... I'm raising that so you'll respond to the real practicality, how would extension really interfere with law enforcement efforts?

Mr. Dreeben: --The extension of the privilege to foreign prosecutions would seriously interfere with domestic investigations, because we cannot grant immunity from a fear of foreign prosecutions.

Unknown Speaker: Why don't you just say to the person you wouldn't deport him?

Mr. Dreeben: That has not been considered by most courts an adequate answer to concerns about the Fifth Amendment.

The Fifth Amendment is not... does not stand as a guarantee that depends on whether later events bear it out.

Unknown Speaker: But doesn't there have to be a realistic threat of prosecution, and if you say you're not going to deport him, then there's no realistic threat.

Mr. Dreeben: No, there may well be a realistic threat of prosecution because a foreign country may issue an extradition order to us, so we then have the discretion to say, well, we're not going to comply with the terms of our extradition treaty, but we then have to answer to the world community for our decision not to do that.

In a case in which, for example, an act of terrorism occurs abroad that involves citizens of foreign States, we may apprehend some of them, bring them to this country, learn that they fear domestic prosecution, and issue an immunity order which would ordinarily require them to testify, but they may say no, I'm sorry, I'm not going to testify because I still fear prosecution abroad.

Unknown Speaker: Well, isn't there considerable administrative difficulty in applying the rule sought by the respondent here?

Courts in this country are going to have to analyze whether the fear is realistic or not and really familiarize themselves with a number of different kinds of foreign law.

Mr. Dreeben: There are a number of practical implementation questions, Chief Justice Rehnquist, as you raise.

In the jurisdictions where a claim like this could be raised, courts will have to go through, as they did in this case, several bodies of foreign law and try to make appraisal of the realistic ability of a foreign government to prosecute, and that stands quite a bit in contrast to the domestic regime in which, once the privilege is raised, it stands as an absolute, except that the Government has immunity power, and the immunity power has always been viewed as essentially coextensive with the reach of the Fifth Amendment.

Unknown Speaker: Outside of a witness who is a defendant in a criminal trial, you have to show that there is a likelihood of incrimination in the answer.

You can't just say, I plead the Fifth Amendment, period, and automatically get off.

Mr. Dreeben: That is certainly true, but the way that the test is applied in the lower courts is not terribly demanding.

Normally, if a witness can identify a body of law under which he contends it's conceivable that he might be incriminated, he's not required to go much further than that.

Courts don't typically take in camera testimony to determine whether the answers would really be incriminating, and they don't typically ask whether the State or Government prosecution that is feared is really likely to happen.

It's generally enough simply to assert that there is testimony that would incriminate the individual and to identify a law under which that might happen, and the Government's next step is ordinarily immunity if it wants the testimony.

But immunity orders aren't going to work in this context, because we rarely are going to be able to guarantee that the immunity order will actually be coextensive with the scope of the privilege and prevent the use of the testimony overseas and, as a result, we may well be in situations where we're investigating serious terrorist activity, or interstate... international drug trafficking, money laundering, white collar crime, and we are helpless to attain our prosecutorial objectives because an immunity order simply doesn't work.

Unknown Speaker: Suppose that in this case or a similar case there were three grounds for deportation, each of them fairly substantial, so that you're going... you know you're going to be able to deport this man anyway.

If ground number 1 were lying on the application, could the Government say, we don't really need your testimony because we're going to be able to deport you anyway, but we want it in order to help Lithuania, or Israel, or some other foreign country?

Would that be a legitimate basis for the Government to compel the testimony?

Mr. Dreeben: As long as the Government has a law that it's seeking to enforce in that circumstance, I don't see any reason why the Fifth Amendment question would change.

Now, it is conceivable that if the Court were to hold that the United States were somehow completely in control of a foreign prosecution so that some foreign Government's prosecution were really nothing but a sham, a cover under which the United States were really the prosecuting entity, then the analysis might be different.

This Court had suggested that there might be an exemption to the traditional dual sovereignty rule under the Double Jeopardy Clause, which allows the States and the Federal Government each to prosecute.

If in a particular case a defendant could show that in reality the State prosecution was simply a cover for the Federal Government to take over and do it as a tool, the--

Unknown Speaker: Well, the hypothetical I put is a little different.

It's not that the foreign prosecution is a cover, but that the United States is very eager to assist the foreign prosecution.

That makes no difference in your view?

Mr. Dreeben: --I... no, that makes no difference, because the ultimate constitutional question is whether the criminal case in which incrimination is feared is a criminal case within the meaning of the Fifth Amendment.

Our essential position is that no foreign criminal case fits within the language of the Fifth Amendment, construed in light of its history and its policies and, as a result, it simply doesn't matter that the witness may say, I fear incrimination overseas because the United States may cooperate with a foreign government.

Now, again, the role of immunity statutes here, in our view, is key, because there has never been a time in this country in which a claim of the Fifth Amendment privilege could not be met by the Government seeking to get the testimony through granting immunity, but if this rule proposed by the respondent and accepted by the Second Circuit were adopted, it would mean that the United States would no longer be able to obtain needed testimony and it would put a witness who feared foreign prosecution in a better position than a witness who fears domestic prosecution.

Unknown Speaker: Of course, the Constitution would have had the same meaning, I suppose, if the Congress had never passed any immunity statutes.

Mr. Dreeben: The Constitution would have, and it would have meant that immunity statutes would be permissible if a legislature wished to pass them.

The historical fact is that, as the Fifth Amendment right developed in the common law in England, simultaneously it was recognized that testimony could be compelled if immunity was granted and, in the colonies in this country which adopted precursors of the Fifth Amendment privilege, immunity statutes were also enacted.

Now, the Federal Government didn't get into the business of enacting immunity statutes until about 1857, but I think that's largely explicable by the very small role of the Federal Government in prosecuting criminal cases in the early years of this Nation.

Unknown Speaker: Yes, but the Second Circuit's suggestion was that the Congress could pass statutes in the extradition and deportation area that are analogous to the immunity statutes in the domestic area.

It could thereby do just what the immunity statutes have done.

Mr. Dreeben: No.

Unknown Speaker: Why not?

Mr. Dreeben: It would do far more--

Unknown Speaker: Yes.

Mr. Dreeben: --Justice Breyer, because an immunity statute in this country grants the witness freedom from having his words used against him or the fruits of those words used against him.

It doesn't foreclose a prosecution altogether.

This Court in the Kastigar decision overruled the view that transactional immunity is required.

Unknown Speaker: No, no, but I mean, why couldn't Congress... what's wrong with the Second Circuit's suggestion?

Mr. Dreeben: Because the Second Circuit's suggestion in effect would grant transactional immunity.

Not only would the witness be free from having his words used against him, he would be free from any prosecution altogether, because if the theory of the immunity statute that the Second Circuit posited is correct, that witness can never be sent to the foreign country where he might be prosecuted, and that grants the witness something far more than he would have in the United States, puts him in a much better position than a similarly situated U.S. witness would be, and thwarts the foreign country's interest in prosecuting if it could do it without the defendant's words at all.

It is also anomalous because the Second Circuit's holding would grant a witness greater protection than he might have in the country to which he ultimately goes if he faces prosecution.

That country might not recognize a Fifth Amendment privilege in the same way or to the same extent as this country, and thus we have the anomaly that here the witness says, I don't want my words to be used against me because I fear prosecution in a foreign country, and then when he gets there that foreign country says, we'd now like your testimony.

There's no basis for using the Fifth Amendment to internationalize U.S. self-incrimination rules when foreign countries themselves may treat the same issues quite differently.

I'd like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Dreeben.

Mr. Berzins, we'll hear from you.

Argument of Ivars Berzins

Mr. Berzins: Mr. Chief Justice, may it please the Court:

What the Government advocates defeats the policies and purposes of the privilege, as this Court has repeatedly said in all the cases that followed Murphy.

The Government wants to extract from my client testimony that is designed to impose criminal penalties on him.

They are trying to get him to testify without any grant of immunity, under naked compulsion, to extract out of him, out of his mouth the testimony that will inflict criminal penalties on him.

Unknown Speaker: Mr. Berzins, could the United States constitutionally compel your client to do something which would be criminal under the law of another country?

If it wanted to, could the United States pass a statute that says, if you do not do this you are committing a crime in the United States and will be put in jail, even though, under the law of another country, if he did what the Federal statute says, he would be subject to criminal punishment?

Mr. Berzins: Yes, Your Honor, the United States could pass such a law.

Unknown Speaker: Well, this is much less than that, it seems to me.

Here, what the United States would be compelling would not automatically subject him to criminal punishment somewhere else.

It would just allow in evidence somewhere else that might subject him to criminal punishment.

It seems to me that the greater includes the lesser.

It's a very strange system in which we say we can compel you to do something that will enable a foreign country to send you to jail, but we cannot compel you to say something which might be used as part of a criminal prosecution in a foreign country that might send you to jail.

Mr. Berzins: That is quite so, Your Honor, but I invite you to consider the cruel trilemma that faces the claimant to the privilege.

It is the cruel trilemma that I submit to you the Constitution prohibits.

Unknown Speaker: Well, Mr. Berzins, you know, we're bound under stare decisis by the holding of the Murphy case.

We're not bound to just accept every sentence in the opinion.

Mr. Berzins: Your Honor, Mr. Chief Justice, I submit to you that the Self-Incrimination Clause prohibits compulsion, and that the Framers had in mind precisely the compulsion that is about to be visited upon my client.

Unknown Speaker: No.

Well--

--It prohibits compulsion which incriminates.

That's the other half, and I think the Government... you have to agree, don't you... maybe you don't.

Don't you agree that the Government is correct that you're asking, really, for a superprivilege, because the Government is powerless to grant immunity in this case, and we know of... I know of no other case where the Federal Government is powerless to give an immunity when we have simply a State or a Federal prosecution under the Kastigar rule.

Mr. Berzins: Your Honor, I submit that the Government is not powerless to help itself if it really wants my client's testimony.

They certainly have the means of getting... either not deporting him or getting pardons or immunity from the States to which the Government wants to--

Unknown Speaker: Well, but a U.S. citizen can't ask for immunity in a civil action, which is the immunity you're suggesting that the Government must give your client.

Mr. Berzins: --Your Honor, my client is not asking for immunity.

My client is merely asking that he not be compelled to, out of his own mouth to admit to criminal... to admit to acts that will inflict criminal penalties upon him.

Unknown Speaker: You recognize, don't you, that if he does successfully plead self-incrimination, that could be used.

His refusal to answer could be used against him in the deportation proceeding, so his risk of deportation is enhanced if he refuses to testify, is that not so?

Mr. Berzins: Yes, Your Honor, that is quite so.

An inference can be drawn from his mere exercise of the privilege.

The cases have so held.

Unknown Speaker: I wanted... your client is now 85 years old, is that... is that right?

Mr. Berzins: He's very old, Your Honor.

My math fails me right now.

Unknown Speaker: But he's still with us.

Mr. Berzins: Yes, Your Honor.

The Government claims that it has no effective way to grant immunity.

I'd like to address that, if I may.

It seems to me that the Government has the means to address foreign governments and it has the means to enter into treaties and other arrangements that might be coextensive with the privilege, and also I submit to you that the compulsion is precisely what the Framers wanted to preclude by the very plain language of the amendment.

And the crux of this case, I submit to you, is on page 13 of the Government's reply brief where, in footnote 4, I believe, they very plainly admit... and I certainly thank them for this admission... that they do not have sufficient evidence to charge my client with anything, that they have to compel him to incriminate himself, that they have to compel him to confess before they can proceed.

Well, it seems to me that this is exactly what the Framers wanted to preclude.

Unknown Speaker: Well, they're not proceeding in a criminal action against him and apparently there's no prospect of that in the United States, isn't that correct?

Mr. Berzins: Your Honor, the cruel trilemma--

Unknown Speaker: Well, before we get back to the cruel trilemma, I mean, what's the answer to my question?

The... as I understand it they want to use this in a civil proceeding and so far as I can tell from anything you have said there is no prospect of a domestic criminal proceeding.

Are those two points correct?

Mr. Berzins: --Yes, Your Honor.

There is no prospect of a criminal proceeding in the United States, but I submit to you that it makes no difference where the criminal proceeding takes place.

The compulsion doesn't become any different whether the compulsion takes place in California and the criminal trial takes place in Calcutta.

Unknown Speaker: Well, you say it makes--

Mr. Berzins: It makes no difference to the claimant.

Unknown Speaker: --You say it makes no difference.

I don't have Kastigar in front of me, but my recollection is that Kastigar explained Murphy as being the result of the decision in Malloy, so that the theory, if I understand the Kastigar explanation, was in effect that we will recognize the privilege in order, in effect, to guarantee enforcement of Fifth Amendment rights in any jurisdiction in which Fifth Amendment rights apply.

Originally they just applied with respect to Federal prosecutions.

After Malloy they apply with respect to State prosecutions.

But the theory, as I understand it, after Kastigar remains that the enforcement was geared to preserving the right in a jurisdiction in which the Fifth Amendment applied and, if that's the case, then it seems to me we would have to modify the theory of the Fifth Amendment in order to recognize your position.

Am I wrong in my reading of Kastigar and in inferring the theory behind it that I just stated?

Mr. Berzins: No, Your Honor.

The theory in Kastigar, though, should be read in the context of Kastigar, where there was no claim of a foreign criminal prosecution raised.

It dealt with the State prosecution.

Unknown Speaker: Well, that's right.

I'm talking about Kastigar's explanation of Murphy in light of Malloy.

Do you think that was an incorrect explanation, an incorrect reconciliation of our cases, where we had gone from a regime in which the, a State... use in a State prosecution didn't count, to a regime after Malloy in which use in a State prosecution did count, and Kastigar explained it.

Do you think that the explanation was correct?

Mr. Berzins: Yes, Your Honor, I do in the context in which it was given, but I submit to you that Murphy can stand independent of the application of the Fifth Amendment through the Fourteenth Amendment to the States.

Unknown Speaker: But if it does, I guess, we've got to read criminal case in a very different way from the way we have read it before.

It's got to go... a criminal case has gone from Federal criminal case to State criminal case and on your theory it's got to go a step further, or we would have to adopt a compulsion theory, but that seems out of the question, because we routinely compel testimony if, in fact, the immunity can be granted.

So it seems to me we've got to come up with a brand-new theory of what a criminal case is, and we're going to have to reject the prior explanation in order for the case to come out your way.

Mr. Berzins: Your Honor, I submit that the case could come out as I advocate it if the Court adopts the view that the personal liberties component as explained in Murphy is a very important one, and that it cannot be brushed aside merely because the infliction of criminal penalties will take place elsewhere.

The fear is here.

The Article III compelling court is here.

The claimant is here.

All of this takes place in the United States.

It is just a coincidence that the criminal penalties will be inflicted elsewhere.

Unknown Speaker: Mr. Berzins, if the testimony were taken under seal would you have any... would you still object?

Mr. Berzins: Your Honor, I would, and I would object for the reasons stated by the district court in this case as well as in the Gecas case and, as I recall, the reasons were the sealing order really cannot be made coextensive with the privilege.

That has been recognized as a very difficult prospect in light of all the newspaper articles we read about grand jury leaks, et cetera.

And even more concern to me is what would happen if there is a sealing order, my client gets deported overseas, and then the leaks come out overseas.

Obviously there is no way that that situation can be remedied.

It's too late.

Unknown Speaker: But once your client is overseas... I don't know what the Lithuanian legal system is, but most systems have at best a muted self-incrimination guarantee compared to ours, so once he's over there the likelihood is that his testimony could be compelled, is that not so?

Mr. Berzins: Yes, Your Honor, but I submit we ought not be concerned with what the procedural systems are that might compel it.

I submit to you that we should be concerned with the compulsion here, not with what happens to the compulsion overseas.

We cannot help the compulsion that may occur in some other country.

The Fifth Amendment does not, I submit, protect against other compulsions and other disabilities and other harms, only against infliction of criminal penalties, and that, I submit, is what ought to be guarded against, and I submit that is a liberty interest that should be recognized as a very important one.

As I submit, the Murphy court in its explanation highlighted it very prominently, and on that basis I ask you to recognize it when the obvious fear of infliction of criminal penalties is real.

Mr. Chief Justice raised the question about administrative difficulties.

Thus far I do not believe administrative difficulties have been encountered in these cases, because the burden has always been upon the claimant to establish precisely what it is that he fears and what are the realistic chances of him winding up before a criminal court where the criminal penalties will be inflicted.

Unknown Speaker: Was this tried as an issue of fact in the district court, Mr. Berzins?

Mr. Berzins: Mr. Chief Justice, that was extensively handled in the district court, and it was... in each case it is a claimant's burden and it's a heavy one under the Flanigan case in the Second Circuit.

It's a whole litany of things that the claimant has to prove before he can have any chance of having the privilege recognized.

Unknown Speaker: Well, if there is a whole litany of things, it seems to me that that would make for administrative difficulties.

Mr. Berzins: But I submit to you that the difficulty is upon the claimant, not upon the courts.

Unknown Speaker: Well, but the fact that it may be a hard row for the claimant to hoe doesn't mean that that fact shouldn't be taken into consideration, because it's also going to be something that the district court probably has to spend a fair amount of time on.

Mr. Berzins: Admittedly, the district court may have to spend some time on it, but it's up to the claimant to bring to the district court every last piece of evidence on which he relies and which will establish his claim as being a legitimate claim as distinguished from a fanciful or contrived claim, and that burden is upon the claimant, and once the claimant establishes it, I submit the privilege ought to be permitted to be invoked, because the alternative is the cruel trilemma to which I must again return and urge you to recognize it from the standpoint of the claimant.

It makes no difference to him where he will spend his time in jail.

If the jail is overseas, or if the gallows are overseas, it's a criminal penalty from his point of view, and from his point of view the liberty interest is definitely infringed upon.

Unknown Speaker: Well, if it makes no difference I suppose he can just refuse to answer, and then he can spend his time in jail here.

Mr. Berzins: Well, Your Honor, I think you hit the nail on the head.

[Laughter]

But that does not minimize the constitutional claim that we're advocating.

We're advocating that this Court recognize the individual liberties component as it was so eloquently explained in Murphy, and I submit to you that individual liberties component, if it is recognized, as being a very important component of the privilege.

Unknown Speaker: Well, calling it an individual liberty doesn't make it any... doesn't change the wording of the Fifth Amendment, which is a privilege against self-incrimination, and I think... you know, worldwide, as Justice Ginsburg has suggested, that is not a universal... universally valued as highly as it is in this country.

So to call it individual liberty I think is perhaps an overstatement.

It's something that is in our Constitution.

It's a guarantee that we enforce in our courts, but to call it a liberty doesn't change what the Constitution says.

Mr. Berzins: Yes, Mr. Chief Justice, that is so, but this Court has in a long line of cases since Murphy reiterated this liberty aspect and used very, very strong language in saying that the liberty aspect of the privilege is important.

It's not--

Unknown Speaker: Of course, it's a liberty that he has while he's in this country.

If as Justice Kennedy suggested, a case in which the Government has two grounds for deportation, one that doesn't incriminate him and one that does, and say he's silent about the one that does but he gets deported on the other ground and he gets sent to Lithuania, and if Lithuania doesn't recognize this liberty, he would there be forced to testify against himself, wouldn't he?

Mr. Berzins: --That may very well come to pass, Your Honor, but nevertheless, while he is here, and while he is subject to an Article III court, that Article III court ought not compel him to convict himself out of his own mouth, not here in this country.

What happens in Lithuania, we can't control, but we can control--

Unknown Speaker: Well, he hasn't convicted himself out of his own mouth in our courts because he hasn't violated any United States criminal statute.

He has given testimony that may be useful abroad in a country that does not provide that particular liberty protection that we provide.

Mr. Berzins: --That is quite so, but the incrimination, the testimony coming out of the claimant's own mouth, that I submit violates the privilege, because he's being compelled here without a grant of immunity.

Every case where immunity has been granted, and the claimant has been forced to testify, the fear of the criminal penalties has been eliminated.

But if the fear of the criminal penalties is not eliminated, I submit that the violation is there regardless of where the infliction takes place.

It is the--

Unknown Speaker: You do acknowledge that it is kind of a superprivilege that he would have because of the absence of the immunity, the absence of the United States' ability to give... to immunize the testimony?

Mr. Berzins: --Your Honor, characterizing it as a superprivilege, I don't want to join in that characterization.

I would prefer to characterize it as giving full application to the privilege, not super.

It's really not super.

He is not... he is not... the claimant is not being given anything that he shouldn't have, because if his fear is legitimate, if the criminal penalties are there, I really don't see that it is superprotection.

I think it is the protection that the Framers had in mind.

Unknown Speaker: The Government is saying that, imagine ordinary drug dealers who somehow get into this country and if, in fact, it's a drug dealer from New York who's in Ohio, and Ohio wants to compel the testimony, Ohio can simply give use immunity, or... and it's possible that... and that person can't be prosecuted for what flows from that particular testimony.

But suppose the person, instead of coming from New York to Ohio, comes from some foreign country to Ohio, and now the Government is saying, well, we don't know what to do.

I mean, we'll never be able to get this testimony.

There's no way to deal with the foreign country.

The best we could ever do is not deport him, and if we don't deport him, that means he can never be prosecuted there for anything, though he might have been the worst murderer in this other country that anybody's ever seen.

Now, what's your response?

Is there a response to that claim of the Government?

Mr. Berzins: Your Honor, my response is that obviously there will be cases where the Government will not be able to either grant immunity or get the foreign government to cooperate in granting a pardon, or issuing its own immunity, or whatever.

There obviously will be cases, but I submit to you that those cases will be far and few, and they really ought not be what turns this issue.

Unknown Speaker: Why will they be few and far between, given, let's say, current international criminal behaviors which, you know, are all over the place?

Why won't it come up every day of the week?

Mr. Berzins: Well, Your Honor, I am... I am really prefacing my answer based on the past.

I have not seen that in the past it has arisen that often.

Maybe in the future it will, but in the past, these claimants who have made claim to the privilege under similar circumstances, the majority of them have lost.

Unknown Speaker: All right.

So in your view the Government can compel your client's testimony provided it says what?

A) We won't deport him.

B) We will deport him but not to this particular country.

C) We will get a promise from the foreign country that they won't use the testimony.

D) We'll get a promise from the foreign country that they will pardon him.

All right.

Any of those four would be sufficient, in your view?

Mr. Berzins: It seems to me that they would be if they are coextensive with what we would consider equivalent to immunity that can be granted here.

Unknown Speaker: Mm-hmm.

So then in your view there is no obstacle of a practical nature for the Government to getting any of those four things, or is there?

What are the natures of the obstacles?

Mr. Berzins: Your Honor, the obstacles will be practical and diplomatic, but I have a lot of faith in our Government.

They can do miracles, and if they have to they will accomplish them here also.

Unknown Speaker: I don't think you're going to rely on it being a miracle, because that would weaken your case considerably.

[Laughter]

Mr. Berzins: Is there anything else that I can be of assistance to this Court with?

Unknown Speaker: Apparently not, Mr. Berzins.

Thank you.

Mr. Berzins: Thank you.

Unknown Speaker: Mr. Dreeben, you have 2 minutes remaining.

Rebuttal of Michael R. Dreeben

Mr. Dreeben: Unless the Court has any questions, the Government waives rebuttal.

Chief Justice Rehnquist: The case is submitted.