UNITED STATES v. HUBBELL

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Argument of Ronald J. Mann

Chief Justice Rehnquist: We'll hear argument now in No. 99-166, United States v. Webster Hubbell.

Mr. Mann.

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

This case presents a question about the privilege against self-incrimination in the context of the compelled production of documents.

Specifically, does the privilege extend not only to the compelled testimonial communications, the witness' admissions that the documents exist, that they're in his position... possession and that that they respond to the subpoena, but also to other voluntarily recorded information that is contained in the documents?

Now, it's common ground that the contents of the documents were not privileged before the compulsion.

Although they would have been privileged under Boyd, your decision in Fisher rejected that view.

The issue before the Court today then is whether the way in which the Government obtained those documents through a compelled act of production taints what otherwise would not be privileged.

Now, respondent gives us a categorical answer that in any compelled testimonial admission of existence always automatically taints the contents of the produced documents.

Justice Kennedy: How... how long was the witness before the grand jury to explain all these documents?

Mr. Mann: It would have been a matter of just a few minutes.

And the... the questions that were asked in the grand jury are the questions that we ask typically pursuant to the U.S. Attorney's manual.

It's basically restating the things that are the implicit testimonial admissions that the Court identified in Fisher.

Justice Kennedy: He... he was there for just a few minutes?

Mr. Mann: The testimony was... was for just a few minutes.

I really don't know how long he was actually, you know, in the grand jury.

Justice Kennedy: I thought that he had to identify each document.

Obviously, what I'm concerned with is if you have a witness before a grand jury for any length of period, some grand jury would say, oh, he looks shifty or he's not looking me in the eye, all the things jurors think about.

And... and it seems to me there is a high degree of risk involved when you have a subpoena of this scope and of this sort, a risk of incriminating the person... person through his testimony.

Mr. Mann: Well, I think that that's true, but I think that in this particular case and I think in most cases where you have a production of documents, you have to distinguish between the things that the witness is forced to say, implicitly or explicitly... and in this case, I think those things were much the same... and the contents of the documents.

And in this case... and I think in many cases... we don't have to use and we didn't use in any way any of the things that he said.

I mean, all we're using is the information that was in the documents.

I think the... the key for us to this case is that it's not relevant that we got the documents from respondent.

Justice O'Connor: Well, but did you... did the Government know about the contents of the documents ahead of time?

Mr. Mann: No.

We absolutely did not know about the contents of the documents, but...

Justice O'Connor: You had... you had no idea what... what you were going to find.

Mr. Mann: Well, I mean, I think no idea is probably something of a stretch, but we certainly are not in a position to prove that we knew with reasonable particularity what the documents contained.

Justice O'Connor: And it was only by virtue of the production of the documents that you learned the facts that enabled you to then carry out a prosecution.

Mr. Mann: That's absolutely right, but I think it's important to... to remember that it's clear, in the cases that the Court has had since Kastigar, in Fisher and in the other cases interpreting the statute, that it's not a problem for the Government to show that we would not have the incriminating information but for the compelled act of production.

It's perfectly clear that there are circumstances in which we can force a witness to speak...

Justice O'Connor: What do you have to show?

That you had an independent source of the information or what?

What is it?

Mr. Mann: Well, I think... I think analytically that's a good way to put it.

Kastigar, of course, does say that the Fifth Amendment permits the Government to use things it gets from an independent source.

We look at Fisher as explaining that the act of production has a twofold nature, that the act of production itself is physical, non-testimonial conduct.

Justice Stevens: Mr. Mann, you didn't answer Justice O'Connor's question.

What do you have to show?

Mr. Mann: Well, I think what we have to...

Justice Stevens: Do you have to show anything?

Mr. Mann: I think what we... I don't think we have to show anything about our quantum of knowledge of the contents of the documents.

Justice Stevens: What do you have to show?

Mr. Mann: I think we have to show, once... under Kastigar, once a defendant shows that he's been compelled to testify, the burden shifts to us to show that we did not use any of his compelled testimonial communications.

And in this context...

Justice Stevens: No.

I meant do you have to show anything before you served the subpoena or to get the subpoena?

Mr. Mann: Oh, well, to get the subpoena, we have to satisfy the regular standard under R. Enterprises and then the regular standard under the Federal Rules of Criminal Procedure to show that we have a basis for issuing a subpoena.

Now, that standard is... is not difficult for grand juries to satisfy.

Justice Kennedy: Well, do you have to show anything in addition in order to satisfy the Fifth Amendment, that you had... that... that these are documents or... or items that everyone knows exists, something like that?

Mr. Mann: No, I... I think we do not.

I mean, if we don't... if we don't know anything about the contents of the documents, that does not in any way, it seems to me, affect the logical relation between the things he says when he's under compulsion...

Justice Kennedy: So, if everybody knows that the defendant, the target, has guns in his house, you can have a subpoena say bring all guns that are in your house to the grand jury.

Mr. Mann: I think that that's perfectly permissible under the Court's decisions in Schmerber.

I mean...

Justice Scalia: Well, how... how do you distinguish... what is magical about documents?

Let's... let's use a gun.

Suppose... suppose there's a murder.

You... you have the bullet that caused the death, and you... you also know that the defendant has purchased a gun of the same caliber.

You serve a subpoena on the defendant saying, turn over this gun which... which you... you are shown... we know you own it.

Are you entitled to get that gun?

Mr. Mann: Yes.

Now, let me explain.

See, that's exactly the point.

Justice Scalia: And then you get the gun.

You do a ballistics test on it.

You find that that is, indeed, the bullet that... that caused the murder, and... and this has...

Mr. Mann: Well...

Justice Scalia: not been compelled testimony?

Mr. Mann: The difficulty, of course, in that case is it might be that we would have difficulty in proving that the gun had been in the possession of the defendant, if that was relevant to us.

But if we independently can match up the gun to the defendant...

Justice Scalia: It's registered.

He bought it from a... you know, in a State where all handguns purchases have to be registered.

Mr. Mann: But, see, that goes to your initial thing.

You said, what's special about documents?

I think that what Fisher establishes is there's nothing special about documents.

What the Constitution does is it breaks up production of evidence into two classes of cases.

Justice Scalia: You're... you're accepting my gun hypothetical, and you say that the Government is entitled to demand of the defendant, who has squirreled away the gun... he's actually the murderer.

He's hidden the gun somewhere.

Mr. Mann: Well now, of course...

Justice Scalia: The Government can come to him and say, turn over the gun with which you committed the murder.

Mr. Mann: Well, I guess I'm...

Justice O'Connor: And then you can introduce it in evidence and use it against him at trial.

Right?

Mr. Mann: It's obviously more difficult for the Government if the Government subpoena says turn over the gun with which you committed the murder because they're going to have a heavier...

Justice Scalia: Well, they don't say that...

Mr. Mann: If we say...

Justice Scalia: turn over the gun.

Unidentified Justice: [Laughter]

Mr. Mann: Suppose that the subpoena says, turn over all guns in your possession.

Justice Scalia: Not all guns.

Just... just this gun.

Mr. Mann: This particular gun.

Justice Scalia: The .38 caliber automatic that you are shown to have purchased.

Mr. Mann: Okay.

I would respond to you with the hypothetical that Justice Stevens has in his dissent in the second Doe case where he... in... which the Court accepted as being the line that you've drawn in your cases past Schmerber.

If what we do is we tell the defendant give us the key to the strong box, it's full of incriminating documents, the answer is he has to give us the key.

If we tell him, tell us the combination to the safe, we can't make him do that.

What the Constitution says is it doesn't care what we get, it doesn't care where we get it, it doesn't matter if we get it from the defendant.

The Government has a right to every man's evidence, the Court in Kastigar emphasized.

What it cares about is how we get it.

If we get the evidence by forcing the defendant to tell it to us, if we force him to restate, repeat, or affirm the information, well, then we lose.

And so, if we make him tell us the combination to the safe, if we make him tell us the information we want, well, then we lose.

But if what we do is we force him to the physical act of handing it to us, that's permissible.

Justice Scalia: You can't make him tell you where the gun is.

You can only make him go get the gun and give it to you.

Mr. Mann: Absolutely.

The...

Justice Scalia: And you... you think that... that is a sensible distinction.

Mr. Mann: I think it's a distinction that the Court has had to draw.

If you look at the opinions in Schmerber and Kastigar, the Court looks at two important policies founded in our history.

One policy is the principle that the Government has the right to every man's evidence, and the Court talks about at great length about how important this is.

At the same time...

Justice Souter: Well, that's your... that's your Schmerber point, but I don't see how Schmerber is... is helpful to you here because Schmerber... the instance in which the individual, in effect, makes his bodily... body available for the drawing of the blood sample and so on, Schmerber does not involve the implicit representations that are made, for example, in this case when the documents are produced or in Justice Scalia's hypothetical when the individual implicitly indicates that, yes, the gun is in his possession by... by turning it over.

I... I don't see Schmerber as being help to you at all.

Mr. Mann: Well, Schmerber involves I think a unitary act of production, and according to the Court in Schmerber, it... that one was analyzed as wholly non-testimonial.

So, what we have today is an act of production that under Fisher has two natures to it.

It's a physical, non-testimonial act of production.

At the same time, it has implicit within it a testimonial communication.

So, the question for the Court is to decide, although the act is not privileged, the communications are.

And so what you have to decide is do the contents of the documents come from the testimonial portion of the act or do they come from the conduct.

Chief Justice Rehnquist: Well, I... I think the documents that were subpoenaed here may be an easier case for you than Justice Scalia's gun hypothesis because presumably virtually anyone has tax records and accounting records.

It's no confession to say that... to say that those exist and that they're in the person's possession.

Mr. Mann: And I... I think that goes to our... the second question presented, which the second question presented suggests that if the quantum of evidence that we have about the documents reaches a certain level, then... then it's... then it's a foregone conclusion that he has them.

And our view as to what Fisher says is that if we're asking for simple business records, the Fifth Amendment simply isn't implicated in the same way...

Justice Ginsburg: Mr. Mann, aren't you stretching Fisher?

Fisher was specific documents that had been in the hands of the accountant, specific documents that the accountant used to file tax returns, and says, turn those documents, lawyer, over to the grand jury.

They went from the client to the accountant to the lawyer.

But that was documents used by the accountant to file tax returns.

This subpoena is far more sweeping and seems to resemble the one in Doe I much more than the one in Fisher.

So, if we're just going by what the Court held in those two cases, Fisher, particular documents; Doe, broader documentary disclosure, generically described, as in this case, then one would say, well, if we just go on how the Court came out at the end of the line, in Fisher the... the Government lost... the Government won, and in Doe I the Government lost.

This case is more like Doe I.

End of the case.

Mr. Mann: Well, on the foregone conclusion point, that may be true if you look... if you look at it that way, but I think one problem with that analysis is that in Doe I, the Court, of course, did not itself examine the subpoena.

The Court's opinion says that it's accepting the factual findings of the lower court and accepting the lower court's view on that.

And that's not really the question that the Court addresses.

But in any event, in...

Justice Ginsburg: But the Court had the subpoena before it and it was one of these sweeping subpoenas that asked for all kinds of documents.

Mr. Mann: Well, with all due respect, I don't think it... I don't think that the subpoena here is significantly broader than the subpoena in Fisher.

But I think the most important point is to emphasize the relation between the foregone conclusion doctrine that's at the heart of Justice O'Connor's question and your question, and the principal question that... that's presented in this case because our... our main submission is that even if we would not prevail on the foregone conclusion doctrine, so even if this production includes a testimonial incriminating admission, the... the important point in the case is to decide whether the contents of the documents are derived from that communication.

And on that point, I think we're on very solid ground under Fisher and Doe.

Justice Kennedy: Let... going just back to the gun hypothetical, I give you two hypotheticals.

Subpoena A: produce all the guns that are in your possession and it's generally known that the man has lots of guns

Subpoena B: produce the Smith and Wesson .38 with ivory handles and the initial K

Difference in those two cases?

Mr. Mann: No.

Our view is that in either case we can get him to produce... in either case he's required to provide the guns to us.

Now, we have obtained from him a slightly different testimonial admission in the two cases, but in most prosecutions, it strikes me that... that neither of those will be...

Justice Breyer: No, no.

There's a big difference.

Justice O'Connor: Well, Mr. Mann, let... let me ask you this in relation to the gun.

If you were to get a search warrant and go out and search the residence for a gun, what would you have to show the magistrate to get that warrant?

Mr. Mann: Well, I think we probably would have to show... well, we obviously would have to show probable cause, and the question is what would probable cause require.

And I think in most cases probable cause would require considerably less than... than...

Justice O'Connor: Some reason to think that he has something that you might find that's relevant to the crime.

Mr. Mann: Absolutely.

Justice O'Connor: And do you think you have to show more or less to issue a subpoena to say, give me all your guns?

Mr. Mann: We obviously have to show less to get a subpoena, but the reason for that is because when you get a search warrant, you're going out into somebody's house.

You're intruding in somebody's reasonable expectation of privacy in their home, and so the Court has articulated a relatively high standard for that relatively intrusive method of obtaining information from citizens.

Justice Souter: Yes, but what the... what the person being searched really cares about is the fact that you are intruding for the purpose of getting evidence.

The concern of the person who objects insofar as the criminal courts are concerned is exactly the same in each instance.

Mr. Mann: But the concern of the Constitution is entirely different.

The Constitution is not the least bit concerned if we prosecute and convict somebody by evidence that we compulsorily obtain from him.

That is completely legitimate.

That is emphasized repeatedly...

Justice Stevens: Mr. Mann, could I just supplement the question Justice Kennedy asked about a specific gun and all guns in your house?

What if you don't have any idea that a person ever owned a gun or had it?

Could you serve him with a subpoena and say, please produce all the guns in your possession...

Mr. Mann: I... I think it's...

Justice Stevens: just because he's a suspect in the case?

Mr. Mann: Well now, see, once you say that he's a suspect in the case, I think at that point you're saying that we had some reason to suspect him, which probably is enough reason to issue a subpoena.

You can't say...

Justice Stevens: Would you have to prove that you had some... what does it take to be a suspect in the case?

Mr. Mann: Well, it takes...

Justice Stevens: You just have a hunch.

This fellow... he's a bad guy.

He might have some guns.

Can you go out and serve a subpoena on him?

Mr. Mann: Well, yes.

I mean, I think... I think the hunch is the R. Enterprises standard.

Justice Stevens: And ask for all his guns?

Mr. Mann: Under the R. Enterprises standard, I think that having a hunch is more of less what the standard is.

I mean, the Court... the Court looks at this and says grand juries traditionally have had very broad investigatory powers, and the... the requirements of knowledge up front to get to issue subpoenas are relatively small.

The... the key for us is this is not a testimony of communication.

The act might include one...

Justice Stevens: But if... if it's that broad, why has it been so rarely used in the past?

Mr. Mann: Well, it's not at all clear I think that it's been rarely used.

I mean, for one thing, in your own decisions you'll see that we've been up here several times since Fisher presenting more or less the same question to you.

It's the... the implications of it, compelled production of documents, have been up here several times.

Another problem you would see, to the extent that it's not used as frequently as you might expect, is of course the law is really quite uncertain, and anytime you do this, you're likely to be faced with what the Court discussed in Braswell, which is once we force him to say something that includes any compelled testimonial admission, we're faced with a Kastigar hearing which is going to slow down a prosecution.

If we can obtain evidence in a way that we know is completely permissible, which we can't do in this area ever at the moment, then we don't have to worry about a Kastigar hearing.

I mean, I think the real problem is that the law is very uncertain, but even with the uncertainty, there have been enough prosecutions that this issue has been coming up to the Court repeatedly since Fisher.

Justice Ginsburg: Mr. Mann, may I ask a question about the... initially the Fifth Amendment privilege was claimed.

You said, okay, we give you immunity.

We give you use immunity.

If I understand your position, what you gave... the immunity that you gave immunized nothing, and if that's the case, wasn't there a certain deception involved in saying, okay, yes, he's got Fifth Amendment privilege?

We give him immunity, and then the immunity shields nothing.

Mr. Mann: Well, I don't think that that's right.

I think that the immunity we gave is the immunity that the statute grants, and the genius of the statute is that it avoids the necessity to litigate at the time of a production over the...

Justice Ginsburg: What did... what did the immunity give to Hubbell?

Mr. Mann: I mean, in this particular case, the immunity would prevent us from introducing into evidence or using in our investigation the fact that Mr. Hubbell possessed these documents.

It would prevent us from using in the investigation...

Justice Ginsburg: Well, isn't it obvious they're the papers that were used to... to bill, to make tax records, that... his phone records, his... his schedule, that they obviously came from him?

Mr. Mann: Well, if it's evident... if it's evident on their face that they came from him, then that might mean we don't need to use his testimonial communication against him.

But that's a harder question that's not presented here because here we have no need to establish that these documents came from him.

These are not offenses as for which his possession of these documents has the least bit of relevance.

If we had to establish his possession of these pieces of paper, we would have something of a Kastigar problem, and...

Chief Justice Rehnquist: for his production of them.

If... if his production of them is incriminating, he...

Mr. Mann: That would be... that would be a problem for us.

I mean, my general theory would be we would lose.

If we had to prove that he possessed these documents and his production was the best way to do it, we would lose.

I mean, assume, for example...

Justice Souter: The very fact that you were using these documents rests upon the fact that... or... strike that.

The very fact that you were using the information that you gained from these documents rests upon the fact that, on the production of the documents, their existence and authenticity were represented to you.

You are not directly proving possession, and you are not directly proving the authenticity by use of the production.

But what you do use you are using as a result of the production which has these implications.

And so, it seems to me it's very difficult for you to argue that the use that you are making is not a use which is dependent upon the representational aspect of the production.

Mr. Mann: I think it's actually quite easy for us to argue, and I think it's easy for the reason that you said.

We're using these things because he produced them to us.

He produced them to us in the same way he would produce a handwriting exemplar or something else.

I think what... that the heart of the case is just a judgment call.

Did we force him to give us the documents, which is perfectly permissible?

Or did we force him to tell us the information?

We didn't force him to tell us anything of value.

Everything of value in the documents is information that was voluntarily recorded long before we brought compulsion to bear.

Chief Justice Rehnquist: Your position then is basically that your... this situation is no different for you than if you had found the documents on the doorstep of the Justice Department.

Mr. Mann: Yes, that's exactly right.

If I may reserve the rest of my time.

Argument of Michael R. Dreeben

Chief Justice Rehnquist: Very well, Mr. Mann.

Mr. Dreeben, we'll hear from you.

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

To properly assess the effect of a grant of use immunity in a documentary subpoena context, it's necessary to separate out the two components of what is compelled by the subpoena.

First, the subpoena compels a physical act, the transfer of documents from the witness to the Government.

Second, the subpoena also compels the witness to make certain implicit testimonial admissions about that the responsive documents exist, that they are in his possession, and that the production to the Government will transfer the documents to the Government.

Now, the witness is protected by the Fifth Amendment only with respect to the testimonial components of the act of production, not with respect to the physical act itself that transfers the documents.

Justice Scalia: Mr. Dreeben, I... I gather that means that your answer to my hypothetical earlier would be that there is no Fifth Amendment problem in requiring a person to turn over the handgun which... which was used in the commission of a murder.

Mr. Dreeben: No, Justice Scalia.

I think that there's a substantial Fifth Amendment claim that the witness has, that possession of that handgun is highly incriminating, and as a result, the witness can assert the Fifth Amendment and require the Government to give the witness act of production immunity if the Government wishes to enforce the subpoena.

The question then becomes...

Justice Scalia: But the only thing the Government can't use is the fact that he turned it over to prove that he possessed it.

The Government could come in and show the record that he purchased it and... and leave it to the jury to surmise that he still continued to have it at the time of the murder.

Right?

Mr. Dreeben: Well, the Government has to show that it does not use anything testimonial in the investigation that leads up to the prosecution.

Justice Scalia: But the Government could show at the trial that the murder was committed with a handgun that had been purchased by Mr. X.

Mr. Dreeben: It would need to do at least that, and it would also need to show that it did not make use, as an investigatory lead, of its knowledge that this witness possessed the particular item.

Justice Breyer: Could we go to the other part of Justice Kennedy's hypothetical?

I understand and will assume you're right on two things.

I assume that the problem of knowing that these... there's a reasonable possibility that the person has material like this is a kind of Fourth Amendment problem that may be in rule 17 and some cases of the Court, but don't concern us here.

I put it to the side.

I'm also putting to the side and assuming you're absolutely right that you can get the single gun that you know exists and just give him the production immunity.

But there's a second assertion here.

One is the assertion I have the thing.

Okay?

We give him use immunity for that.

The other is the assertion the thing exists.

Now, in respect to that statement, the thing exists, it creates a problem only where you are subpoenaing hundreds of things because if you ask for a year's worth of tax checks, it's certainly very possible that four of those checks, unbeknownst to you, turn out to be pure gold.

That's why they have a subpoena, and you didn't know before he brought these into the room that those four checks existed.

All you asked for were all his tax records.

Now, every case that we've had, including Doe I, which is what Justice Ginsburg pointed out, suggests that there is a Fifth Amendment problem in that statement, the thing exists.

And where the Government doesn't independently know that the thing exists, they are using the testimonial response to the question, does that thing exist.

Now, that seems to me to be the problem that the Second Circuit, this circuit, that Doe I, that our Fisher use of the word existence, et cetera is... is focusing on.

And I'd like you to focus on that.

Mr. Dreeben: Justice Breyer, I think, first of all, the... the notion that the subpoena respondent says, the thing exists, is not a meaningful statement and is not one that the Court's cases actually contemplate as being the testimonial statement.

I realize the Court has said that, but the only meaningful statement that a respondent can make is that responsive documents exist, which is a way of correlating what the subpoena calls for with what the documents actually say.

And the Government may not use... make use of the mental act that the witness uses to correlate documents with a subpoena.

That is most significant and most important when the document itself is, for example, a list of numbers and the witness produces it under a subpoena specification that calls for give me all itemizations of your income.

In such a case, we cannot interpret the document or make use of it without taking advantage of the witness' mental faculties.

Justice Kennedy: Do you know how long the defendant was before the grand jury?

Mr. Dreeben: I don't.

This was not our prosecution, Justice Kennedy.

Justice Kennedy: Well, I... I understand that, but I... I can't seem to get an answer.

We were told, oh, just a few minutes, but it takes me more than a few minutes just to read through the whole subpoena on page 47 and 49.

And I understood that they asked him with reference to each paragraph of the subpoena, have you produced these documents, which means that there's a very high risk that you're going to be probing the perception, the cognition, the memory, the knowledge of this witness.

And we're talking about risk here, it seems to me, in large part.

Mr. Dreeben: Well, I think the case comes to the Court, Justice Kennedy, on the assumption that the... the actions of Mr. Hubbell, sitting in a grand jury, do not change the essential testimonial representations that were made.

Justice Kennedy: The case comes before the Court on the assumption that you can use this subpoena of this breadth in every drug prosecution that the Government brings, as I understand it.

Mr. Dreeben: And the result of that is that we would be...

Justice Kennedy: And I think there's a very serious problem of prosecutorial overreaching with that.

Mr. Dreeben: The problem exists if we make use of what is testimonial and what the witness is compelled to do.

If we do not make use of what is testimony, we are not trenching on Fifth Amendment values.

Justice Kennedy: It's very odd to me, in response to Justice O'Connor, that... the counsel has conceded, as he must, that you have to have probable cause... you can now have a witness come live, a target of investigation, before a grand jury with less than probable cause.

That's astounding to me.

Mr. Dreeben: Well, we can bring witnesses before the grand jury with less than probable cause.

The very purpose of the grand jury is to determine whether probable cause exists.

Justice Kennedy: Well, I... I understand that, but with reference to requiring him as well to bring documents covering a tremendously broad description.

Mr. Dreeben: I think that the essential position that we have taken responds to the fact that in Fisher and in Doe this Court overruled the doctrine of Boyd under which the notion was that the contents of the documents themselves were testimonial and that a witness was being compelled to testify by producing those contents.

What Fisher and Doe require the Court to do is separate out that which is testimonial in an act of production from that which is not.

Justice Kennedy: Would your argument change if the defendant were before the grand jury for 3 hours responding to every paragraph of this subpoena to see if he complied with it?

Mr. Dreeben: The argument would change only insofar as there is a greater chance that more testimony that is protected would go before the grand jury and potentially influence...

Justice Kennedy: So, we are concerned with risk.

Mr. Dreeben: Yes.

Justice O'Connor: Mr. Dreeben, I... I had the... have been making the assumption that the Government makes use of section 6002 immunity provisions to compel testimony from witnesses largely in a third party context, in other words, getting evidence that way from a third party to use against another criminal defendant.

How often does the Government turn around and prosecute the very person who is given the immunity under section 6002?

Is that unusual at all?

Mr. Dreeben: It is relatively unusual, but far from unheard of.

And one of the principal reasons why it is not done is that under our view of the law, there is still a significant Kastigar issue that the Government has to get over.

If we show that we made no use whatsoever of any of the act of production, but only the contents of the records, that's fine.

But it may be difficult to show that if the witness produces records that take on their meaning only from being correlated with the subpoena or would suggest that he had knowledge of their contents.

The witness...

Justice O'Connor: Well, and... and the language of section 6002 itself is sort of broad: No other information compelled under the order or information directly or indirectly derived from it may be used against the witness

I mean, that's pretty broad.

Mr. Dreeben: This Court said in Kastigar and also in United States v. Apfelbaum, which is at 445 U.S. 115, that 6002 was intended to go as far as but no further than the Fifth Amendment.

What the...

Justice O'Connor: Well, certainly that language goes pretty far, doesn't it?

Mr. Dreeben: Well, the language I think was written against a backdrop of Boyd in which the contents of the records were protected, and so if the witness were compelled to produce private papers that he had created, that created a Fifth Amendment issue.

But the intent of the statute and this Court's construction of it has been to make it coextensive with the Fifth Amendment.

Argument of John W. Nields, Jr.

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

Mr. Nields, we'll hear from you.

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

My client was indicted in this case at least in part as a result of the fact that under immunity he told the truth.

The thing that he told the truth about was what documents he had that were responsive to the subpoena.

If he had been untruthful and withheld those documents, the independent counsel wouldn't have had them, but instead he told the truth, turned them over, and the independent counsel used those documents to bring this case.

Chief Justice Rehnquist: Well, he didn't have much choice except to tell the truth, did he, when he was before the grand jury?

Mr. Nields: No, and that was because he had asserted his Fifth Amendment privilege respectfully declining to state whether he had any documents, and he was compelled to state whether he had any by the immunity order.

And then, Your Honor, that's absolutely right, but... but with an immunity order, the Government is required to hold the defendant harmless from the truth that he tells.

And in this case, instead of holding him harmless, they used the documents that he revealed to them, truthfully revealed to them, to bring this indictment.

And, Justice Kennedy, in response to your question, he... he was in front of the grand jury for 17 minutes.

And the reason he was there for that length of time is that they needed him to tell them what documents he had that were responsive.

Chief Justice Rehnquist: Mr. Nields, what... what is your position with respect to your client's production?

What... what was the incriminating aspect of it?

Mr. Nields: The incriminating aspect of it was that he told them what documents existed and were in his possession...

Chief Justice Rehnquist: You mean he... he told them by speaking not just by producing?

Mr. Nields: Both.

In all cases a witness will answer the question, the effective question, what documents do you have?

What incriminating documents do you have that are responsive?

He answers that question by producing or not producing documents.

Chief Justice Rehnquist: And how did... how did that incriminate him?

Mr. Nields: It led the Government to get incriminating documents.

Chief Justice Rehnquist: Well, but is that the test?

I don't think that's the test laid down in Fisher.

Mr. Nields: Fisher doesn't deal, of course, with immunity, but what Fisher says is that the... the testimony that is involved... and the first thing that it says is the testimony involved is that the documents exist and are in the witness' possession because everybody who responds to a subpoena is required to say... tell the Government what documents he has.

Justice O'Connor: What if the Government subpoenas income tax... copies of income tax forms and records?

They don't ask for incriminating anything.

Give me your income tax forms and records for years 5 and 6.

Mr. Nields: I would have to answer that in two parts.

The first question is whether there's testimony, and that depends on whether possession of income tax returns is a foregone conclusion.

Justice O'Connor: Well, for most people it is.

Is it or isn't it?

Mr. Nields: It may be.

The case... the only case I'm aware of, decided in the courts of appeals, has held that it's not a foregone conclusion that the person has kept a copy because there is no legal obligation to keep a copy.

But... but that is a close question I would submit.

But in answer to, I think, Mr. Chief Justice's question, the point is this, that the Fifth Amendment since 1892 has protected a person from making disclosures or statements that...

Chief Justice Rehnquist: The Fifth Amendment was adopted in 1791 I think.

What happened in 1892 to change it?

Mr. Nields: Counselman against Hitchcock was decided, Your Honor, and this Court...

Chief Justice Rehnquist: Well, that presumably interpreted the...

Mr. Nields: Yes.

Chief Justice Rehnquist: the law...

Mr. Nields: Yes.

Chief Justice Rehnquist: rather than changed it I trust.

Mr. Nields: You're correct.

I believe since the adoption of the Bill of Rights.

But this Court pronounced in Counselman that a witness is privileged from giving testimony that is innocuous in itself that will lead the Government to obtain other incriminating evidence.

And... and what... what happens in these document subpoena cases or the gun subpoena case, is that it may or may not be incriminating for the witness to say this document exists, but if the document is one which will cause him to lose his liberty and if the Government only gets it from him because he truthfully discloses in response to the subpoena that it exists, then that is privileged...

Justice Kennedy: Well, why doesn't that apply to your... to the income tax question that Justice O'Connor said?

Give me your income tax return for the year X.

Mr. Nields: It does.

Justice Kennedy: The Government says, we've lost ours.

Give us yours.

Mr. Nields: It does.

The reasoning applies perfectly unless...

Justice Kennedy: Well, but then...

Mr. Nields: the Court holds that it's a foregone conclusion that he possessed it, in which case Fisher...

Justice Kennedy: The Court holds... I stipulate to that.

It's a foregone conclusion you've got a copy of your tax return.

Mr. Nields: Then there's no testimony involved at all, so we don't even get to the question of incrimination.

Justice Kennedy: Well, but that... that just didn't fit your... your nice summary that you gave, it seemed to me.

He is being convicted because he truthfully complied with a subpoena and they wouldn't have had the information otherwise.

So, then your... your test doesn't quite work.

Mr. Nields: It... I believe it does, but it needs a little more explanation.

The Court in Fisher says that the key question is are you relying on the witness' truth-telling to get the document, and Fisher says if it's a foregone conclusion that he has it... in Fisher, the... the parties had admitted that they had it... if it's a foregone conclusion, then you're not relying on the witness' truth-telling.

Justice Breyer: All right, but in any case where it's not a foregone conclusion, that this particular document... I mean, why stop there?

That the words on this particular document are precisely what they are.

In any case where it isn't a foregone conclusion... i.e., where the prosecutor doesn't already know... on the line that is being taken with this word existence, it becomes testimonial and the... the Fifth Amendment privilege applies.

Mr. Nields: Correct.

Justice Breyer: All right.

Well, then we're back overruling Fisher...

Chief Justice Rehnquist: Yes.

Justice Breyer: back to Boyd, and not only Boyd, well beyond Boyd because exactly... as Justice Scalia pointed out, it's exactly the same thing whether it's a document or not.

It's exactly the same thing with any piece of evidence whatsoever.

The only time that you would be able to compel a person to produce that evidence in court is when it is a foregone conclusion that he already has precisely that thing.

Mr. Nields: Yes.

Justice Breyer: That's very far-reaching and... and seems... is there a... I mean, suppose the Court decides we're not going to overrule Fisher.

I agree that the logic of it is right in that word existence in Fisher, but you can't sort of assume Fisher intends to blow itself up.

Mr. Nields: Well, Fisher... Fisher is I believe quite clear, that the... the relevant language in Fisher is... is the language that says that the existence and possession of the documents are a foregone conclusion.

Justice Breyer: Yes, that's right.

Mr. Nields: And therefore... but it's the therefore... we're not relying...

Justice Breyer: Good, but we're on exactly the same track.

Mr. Nields: Okay.

Justice Breyer: And what I'm searching for and have been unable to find... we're absolutely eye to eye as far as the logic is concerned.

And I'm searching.

Is there some kind of test in respect to existence that isn't as weak as the possible... reasonable possibility test which may be a rule 17 or Fourth Amendment test under the Fourth Amendment or something like that, but isn't as strong as foregone conclusion and gives some meaning to these cases?

That's what she's... that's what they're driving at by reasonable particularity.

Mr. Nields: Yes.

Justice Breyer: But... but that's a sort of illogical compromise.

I mean, what do we do?

Mr. Nields: I think what you do is... I would do two things.

One, the principle is whether you're relying on the truth-telling of the witness to find out that the document exists.

That's the principle.

Are you relying on the truth-telling of the... that's testimony.

That's Fifth Amendment language: testimony, truth-telling

That's the issue.

And if you are, if you're compelling a person to tell the truth with the consequence that he loses his liberty, you have a Fifth Amendment problem.

Chief Justice Rehnquist: Well, why do you emphasize truth-telling, Mr. Nields?

I mean, a witness can speak falsely and still comply with the subpoena, and the... the remedy is perjury not some immunity.

Mr. Nields: The... the reason I emphasize truth-telling, Your Honor, is that the Court has done so in Doe II.

It specifically talks about the question of whether you are relying on the witness' truth-telling to... to gain the evidence you seek.

And if the answer is no, the Fifth Amendment doesn't apply; if the answer is yes, it does.

It's also in Pennsylvania against Muniz.

Both majority and dissent said the Fifth Amendment applies if the witness is confronted with the options of truth, falsity, or silence.

And...

Chief Justice Rehnquist: Well, that's the cruel trilemma, which I think we've paid little attention to in the last few years.

Mr. Nields: It was absolutely adopted as the standard in Pennsylvania against Muniz.

And, indeed, I believe the dissent also referred to the truth-falsity-silence predicament.

And our fundamental position under the Fifth Amendment is this, that where the Government puts a person to two choices... one, tell the truth and risk losing your liberty; and two, commit the crime of falsification and maybe go free... the Fifth Amendment applies and extends to privilege of silence.

Justice Kennedy: What... what was the document involved in this case that's the least ordinary sort of document?

Was there a diary or something like that or?

Mr. Nields: I'm not sure I could pick out the least one, Your Honor.

Justice Kennedy: The... the subpoena...

Mr. Nields: There was an enormous...

Justice Kennedy: is... is enormous.

Mr. Nields: quantity.

There were retainer agreements.

They weren't regular.

For some clients there were some, for some there weren't.

There were documents reflecting the receipt of fees.

They were also not regular, but... but there were a... a number of those.

There was work product.

The Government was trying to find out whether he did work for various clients, so they wanted to know if there was work product.

Chief Justice Rehnquist: Well, supposing this is an... perhaps it wasn't... an ordinary income tax fraud prosecution.

I mean, are... are you saying that the Government cannot subpoena tax returns and accounting returns and check records from... from someone who it suspects of committing fraud?

Mr. Nields: It absolutely can serve the subpoena, but if the witness claims the Fifth Amendment privilege, and... and he is... he is compelled to disclose the existence under immunity...

Chief Justice Rehnquist: Then... then Fisher becomes almost meaningless.

I... I had thought that Fisher was a... a very significant repudiation of Boyd.

It says that these documents are not incriminating.

But by your test you simply come around by another door and achieve the same result as Boyd.

Mr. Nields: I think the answer is no, Your Honor, and this is the reason.

I agree Fisher is a very significant case.

And what it does, by holding that the contents of the documents are not privileged, is it means that the Government can get them from a variety of other sources, and the owner and the person who's writing is on the document has no objection.

And that's what the Government usually does.

In a small business...

Justice Souter: Well, when you're... you're saying contents, you mean the information contained, in other words, the information does not become immunized.

Mr. Nields: Correct.

Justice Souter: Okay.

Mr. Nields: Correct, so that the Government... this is what they usually do.

They'll... they'll go to a small business and they'll give a subpoena to a bookkeeper or a secretary or a... a document custodian or... or they will go to the other... if it's a... if it's a communication, they go to the other party to the communication and get the letter.

If it's a financial transaction, they go to a bank.

They get it from there.

If it's another financial transaction, they go to a credit card company.

Justice Souter: But the fact that the information is in the document subpoenaed, that remains subject to privilege.

Mr. Nields: No.

Justice Souter: No.

You can use the information when you get it from all of these other sources.

Mr. Nields: Yes.

Justice Souter: But you can't use the information as a result of its being contained in the subpoenaed document subject to the immunity grant.

Mr. Nields: Yes, but I would put it a slightly different way.

You can't compel over an immunity claim.

You can't compel the subject of the investigation to tell you what documents exist and what documents...

Justice Souter: Yes, I... I understand.

Justice Breyer: You couldn't require a handwriting example, I guess, could you?

Mr. Nields: You can command a handwriting example because this Court has said so.

Justice Breyer: Well, but I mean... no.

But you're pushing the logic of it.

Unidentified Justice: [Laughter]

Justice Breyer: I mean, really your truth-telling test is simply the obverse side of the foregone conclusion coin.

Mr. Nields: Yes.

Justice Breyer: I mean, they're both the same.

Mr. Nields: Yes.

Justice Breyer: And... and so, is there any fall-back position?

That is to say, you... you pushed the logic for what it's worth.

I... I see that.

And is there any position that would reconcile these cases?

Like I'm almost tempted to say you couldn't force people into lineups on that.

Mr. Nields: Well, but...

Justice Breyer: Maybe you... maybe you could force them into lineups.

Mr. Nields: Yes, let me address that.

I think it's important.

Justice Breyer: Lineups might be... yes.

Mr. Nields: Let me talk about that whole line of cases, and of course, we know Schmerber is the beginning of it.

The point about Schmerber is that the witness there could be the biggest liar or the biggest truth-teller in the world, and the Government will get the same blood.

It is not relying on the truth-telling of the person at all.

Justice Kennedy: How about a voice exemplar?

Give me all of the money.

This is a robbery.

And then he can't disguise his voice.

Mr. Nields: That's the assumption I believe.

It's not stated, but the assumption is they can't disguise their voice.

And therefore, a voice... a voice exemplar works regardless of the truth-telling of... of the witness.

Justice Scalia: And handwriting...

Mr. Nields: And handwriting.

That's the hardest case in this line in... in my opinion, but... and the Court doesn't explain the handwriting decision.

It... it states in one... in one sentence, a mere handwriting exemplar, in contrast to the content of what is written, like the voice or the body itself, is an identifying physical characteristic.

Justice Souter: But if the handwriting can be disguised, then the handwriting example would not be in the Schmerber line and it would be in the document...

Mr. Nields: It's the hardest case.

However, I believe most handwriting experts will tell you they think they can... they think they can identify even an attempted disguise, that there's...

Justice O'Connor: Well, what about business records, Mr. Nields?

Mr. Nields: Yes.

Justice O'Connor: Everyone knows that a business or a law firm keeps records.

It keeps records of who the clients are and what the billings were and what was paid.

It's a foregone conclusion that they do.

Can the Government subpoena those business records and fall within the bounds of Fisher?

Mr. Nields: I think the answer is no, and I'd like to give two reasons.

The simple, easy one I think is that Doe I held no.

And reason number two is the one that Justice Breyer proffered which is you may know that a person has records, but let's just assume there is one out-of-place, smoking gun document in there.

The Government will only get it if the witness tells the truth and produces not only all the others, but that one too.

And, you know, we... we civil litigators run up against this all the time.

Responding to a subpoena is a truth-telling process, as Wigmore said.

It relies on the witness' moral obligation to tell the truth.

When we have a big civil document demand, you... you get all these documents from the company and you have to hold the specs of the subpoena up against the documents and you have to answer the question for every document, and it's a true/ false question.

Is this document called for by this subpoena?

That's truth-telling.

In a civil context...

Justice O'Connor: Well, but in the context of a law firm's records of clients and billings and payments, I don't... I don't see that that necessarily follows.

Mr. Nields: Well, in a law firm, first of all, the Fifth Amendment privilege doesn't apply at all.

That's Bellis I believe.

And... and second, in any large business of any size at all, whether it's incorporated, unincorporated, partner, it is almost 100 percent of the time going to be easy for the Government to... to find a document custodian, someone who has access to the documents who deals with them on a regularized basis from whom they can be subpoenaed.

It's...

Justice O'Connor: So, you're saying the Government should have called in some file clerks from the law firm and gotten them.

Mr. Nields: Well, in this case they didn't have that option because in this case my client's business had terminated over a year earlier.

It was a very... there's no real facts in the record on this, Your Honor, but it was a... essentially a one-person business.

But in any event, it was over.

He was incarcerated at the time and the Government simply had no idea whether he had any records or not.

Justice O'Connor: Did the Government have enough here to get a search warrant?

Mr. Nields: No, and they said so on the record.

Justice Breyer: Could... could... suppose you were to say hypothetically, I see the logic, I see it's there in the cases, I see it's there in the purposes of the Fifth Amendment, but still, wouldn't it work a revolution in what prosecutors and defense lawyers alike have come to expect that the Fifth Amendment stands for?

And revolutions don't take place ordinarily in the law even if the... without them it's a little illogical, at least... et cetera.

Could you expand a little on that theme?

Mr. Nields: Yes.

I'd like to make two points in response to that.

One is it wouldn't do a revolution at all.

It would leave things virtually exactly the way they've been for the last century.

There has been no time at which, over a Fifth Amendment claim, unincorporated business records have been routinely obtained by the Government.

The only time they've been obtained... and they've virtually never been obtained under immunity.

The only time...

Chief Justice Rehnquist: Mr. Nields, let me interrupt.

You're saying then that Fisher really didn't amount to much of anything in overruling Boyd if the thing has been the same for the last century.

Mr. Nields: Fisher made a... a very important clarification that so-called private documents, unincorporated... documents of an unincorporated entity, documents which might have the subject's writing on them... Fisher made it very clear that those documents were obtainable in any one of a variety of ways not involved compelling self-incrimination, including a search warrant.

And Andresen was a... a decision this Court handed down the same term as Fisher which relied on Fisher that said a search warrant can be issued for a person's documents even though they may have private writings on them.

So, Fisher was an important case, but if the question is, has the Justice Department or... or anyone been routinely subpoenaing from the subject business records, the answer is no.

Justice Kennedy: Well, that's... I took Justice Breyer's question as... as being susceptible of that answer as well, that the revolution is... is if we sustain a subpoena of... of this breadth.

But the question is what's the rationale we have for drawing the line between something that's very specific and something that's this broad?

I... I'm not sure what the rationale is.

Mr. Nields: Well, the rationale again gets back to... you asked the question are you relying on the witness' truth-telling to get the evidence that you seek, and if the answer is yes, then the Fifth Amendment applies.

Justice Breyer: I see that.

Now, apply that to outside the business record context, and is there a revolution there?

I mean, after all, the same principle will apply whether it's a business record or any other kind of evidence that the... the person asserting the amendment has in his possession.

Mr. Nields: I mean, pardon me for saying so, but I think that prosecutors all over the country would fall down dead if they thought they could subpoena guns or... or incriminating bloody underwear or... or...

Justice Breyer: Booty from hijacking or something.

Mr. Nields: Yes.

I mean, it just... it's completely unthinkable.

And I would say this, too, while we're on the law enforcement topic.

One of the things... not only is this immunity that they have issued here, according to their understanding of it... not only is it ineffective from my client's point of view, ineffective to meet the constitutional requirements, but it's ineffective from their point of view.

It's... it's ineffective for law enforcement purposes.

The wonderful thing about immunity for... for law enforcement is that it removes the witness' incentive to lie because it holds him harmless.

It promises him he won't be prosecuted because of anything that turns up.

Justice O'Connor: Well, but... but in... in the first Doe case, it was business records, and the Court said, fine, you can compel those and use the contents against the producer.

Mr. Nields: I don't think so.

I think in the first Doe case the Court held that the act of production is privileged, and the Government, therefore, didn't get the documents.

Justice O'Connor: But it went on to say the contents of voluntarily prepared private papers enjoy no privilege.

Mr. Nields: Yes, and... and that was also said in Fisher, and it's a very important and very true thing.

But it doesn't answer the question of... of what do you do if the testimony you do compel leads you to documents.

And... and in the example analogous to a gun where the... the crucial document is some smoking gun document, is possessed by the witness, if the witness is asked orally in the grand jury, is there such a document, where is it located, and the Government goes and gets it, the document isn't privileged, but it's absolutely tainted and couldn't possibly be used.

But getting back to the point I was making before, this kind of immunity says to a witness, witness, you are obligated to turn over all your documents and if there are incriminating ones in them, I will use them to indict you.

That is a terrible kind of immunity.

It's not only ineffective for the Fifth Amendment, but it's ineffective law enforcement, that you want to be able to tell the witness, now that you're under immunity, you should give me all your documents because the only way you can get into trouble is... is to respond falsely.

Justice Breyer: Well, you can do that.

I mean, if they want to give him that immunity, they will.

Mr. Nields: Well, they can do it but not from State prosecutors I believe.

Justice Souter: You're saying it does convert law enforcement into an essentially inquisitorial system...

Mr. Nields: It does that too.

Justice Souter: if you can do that.

Would you explain the foregone conclusion doctrine to me?

And the reason I... I ask is this, to focus the question.

Even in the case in which it is a foregone conclusion that some document exists, when the Government subpoenas it and the subject of the subpoena hands it over, there at least is implicit testimony there that the... the witness agrees the document exists.

But... but more precisely, it... there's always implicit testimony that the witness has the document under his control and... and that's why he's able to... to hand it over.

So that even in the case of the foregone conclusion, there is some testimonial aspect, and I suppose it's a testimonial aspect to which the... the later use of the... of the document can... can be traced.

And yet, under the foregone conclusion doctrine, we say, well, it can be used anyway.

The reason I guess is not that there is no conceivable use of testimony, but that because of the foregone conclusion, it's understood that the Government could get it anyway by a different means, e.g., a Fourth Amendment search warrant.

Am I right that it's kind a... a harmlessness analysis?

Mr. Nields: I think it has a harmlessness element to it.

And I understand Your Honor's point that there is, of course, nonetheless, some implicit testimony.

But I think the point of it is that the Government isn't relying upon the witness' truth-telling.

Justice Scalia: Well, then in... in the gun case, you really think the gun case comes out differently if, you know, the... the suspected murderer has shown the gun to somebody and then he runs off to a cabin in the woods?

He has been surrounded ever since there... then.

You know that the gun exists.

You know that he has it somewhere in the cabin in the woods.

He could have buried it somewhere.

Search and seizure.

You're never going to dig it up.

In that case, since it's a foregone conclusion, you can require him to turn over the gun?

Mr. Nields: I'm not sure, Your Honor.

Justice Scalia: It seems very strange to me.

Justice Breyer: Why not?

Why not?

Mr. Nields: It does seem strange.

Justice Breyer: Sorry.

Just in answering it, why not?

Mr. Nields: Well, the... the only case in this Court in which the foregone conclusion doctrine has been applied is one in which the parties conceded the existence and location of the documents and argued only about their contents.

The... the... in Doe, the Court said existence and location was not conceded, and they held the Fifth Amendment applied.

In this case my client went in front of the grand jury and expressly stated I decline to say whether or not there are any documents responsive...

Justice Scalia: So, you have some doubts about the foregone conclusion qualification.

Mr. Nields: It may only...

Justice Scalia: It may be an admission qualification rather than...

Mr. Nields: It might but I would suggest this.

This is not a very good case to try to figure out exactly and announce exactly what the rule is, exactly where you draw the line.

Fisher said these cases should be decided on their own facts.

And here we have no facts.

The Government did not even argue foregone conclusion in the lower court.

There's no factual record about what they knew, and there won't ever be one because, as the Court knows, the case is essentially over.

Justice Souter: But had there not been that stipulation, I take it the court of appeals left it subject to a... a remand to get into that very issue.

Mr. Nields: Get into that.

And they... they adopted a test which had previously been adopted by the Second Circuit, which is the Government had to know the documents' existence and possession with reasonable particularity.

That is a test that two courts of appeals have adopted.

It strikes me as a more relaxed test than foregone conclusion which is a pretty extreme sounding phrase.

Justice Souter: It sounds more like the Fourth Amendment.

Mr. Nields: It does sound more like Fourth Amendment.

But what I would suggest here is that... that this isn't the case to lay down the exact standard, only to say that the analysis has to be are you relying on the witness' truth-telling to get the document.

And if you are, it's testimony and the Fifth Amendment applies.

And if you only got an incriminating document because the witness told the truth and you got it under immunity, you got to hold the witness harmless.

You have to leave him... as Kastigar said, as emphatically as Kastigar could say, you must leave him after immunity in just as good a position as he would have been if he had been left to his Fifth Amendment privilege.

And under Doe, Mr. Hubbell had a Fifth Amendment privilege not to tell whether he had any of these documents.

Justice Souter: Well, you would... you would... I guess it would be sufficient for you if we said if the Government is relying, then the Government has a... if it still claims that it can use, it has a burden to come forward and show something.

And maybe it would be enough for the Government to say, in fact, it's not relying that... to... to rebut that conclusion.

But it might also be enough if the Government came forward... and this was the suggestion I was making... and said we don't have to rely because we could have gotten it by Fourth Amendment means.

Mr. Nields: Yes.

Justice Souter: But we don't... we don't choose between those possibilities.

Mr. Nields: That's correct.

The problem with the second one here is that the Government... I expected, frankly, in the district court that we would get an inevitable discovery position or legitimate independent source position, but they didn't proffer either.

They simply conceded that they had used the information compelled under immunity to bring this indictment.

Chief Justice Rehnquist: Thank you, Mr. Nields.

Mr. Nields: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-166, United States against Hubbell will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: This case comes to us on from the United States Court of Appeals for the District of Columbia.

It presents a question whether the Fifth Amendment privilege against compelled self-incrimination prohibits the government from using incriminating documents produced under a grant of immunity to prepare charges against the immunized party.

Because the government has not shown that its evidence against respondent Hubbell was derived from sources wholly independent of the testimonial aspect of his immunized conduct in assembling and producing the subpoenaed documents.

We hold that the indictment against him must be dismissed.

The indictment at issue is the second prosecution of Hubbell by the independent counsel appointed in August 1994 to investigate possible violations of federal law relating to the Whitewater Development Corporation.

The foundation for this prosecution was the subpoena requiring Hubbell to produce all documents in his control that fit any of several broad descriptions.

After invoking his Fifth Amendment privilege in receiving a grant of immunity coextensive with the scope of that privilege, Hubbell produced the documents.

The independent counsel made substantial use of those documents in the investigation leading to the indictment.

The District Court granted Hubbell's motion to dismiss the indictment holding that the government use of the subpoenaed documents violated his grant of immunity, because all of the evidence against him was derived either directly or indirectly from the testimonial aspects of his immunized act of producing the documents.

The Court of Appeals vacated and remanded directing the District Court to permit the prosecution to proceed if the independent counsel could establish prior knowledge that the incriminating documents existed and were in Hubbell's possession.

Acknowledging that he could not meet their standard, the counsel filed a petition for writ of certiorari which we granted.

Our analysis of the issues presented begins with the summary of our prior cases interpreting the Fifth Amendment privilege and the equivalent protection provided by a grant of statutory use and derivative use immunity.

A particular relevance in this case is our recognition that the act of producing documents in response to a subpoena may have an implicit testimonial aspect that is protected by the privilege, even though the contents of the documents produced are not protected.

Applying these principles to this case, we conclude that Hubbell's act of producing the subpoenaed documents did have a testimonial aspect and that the government made derivative use of it in obtaining the indictment against him and preparing the case for a trial.

Clearly the mental and physical steps that subpoena compelled Hubbell to take in order to provide the government with an accurate inventory of the many sources of requested evidence, provided a link in the chain of evidence needed to prosecute it.

In light of counsel's failure to show that his evidence against Hubbell was derived from sources wholly independent of these steps, the immunity granted to Hubbell shields him from prosecution.

The judgment of the Court of Appeals for the District of Columbia is affirmed.

Justice Thomas has filed a concurring opinion in which Justice Scalia has joined; the Chief Justice has filed a dissenting statement.