Earl Warren: Mr. Gilinsky, you may continue.
Theodore George Gilinsky: Mr. Chief Justice, just prior to the recess Mr. -- a question was asked with regard directly to the statute. And I think the Government's answer without any question is that the man has immunity. And I think this is related to the question that the Chief Justice asked me and I like to explain it in these terms. Take this example, if we take Piemonte in this particular context and he was at the point where he was granted immunity by the court and then he is now taken in front of a grand jury, the same grand jury that day or the next day as happened here. And the very first question that's -- I think this is a part of it. The very first question is, “Now, did you rob the First National Bank?” I think the answer is yes, he has immunity in regard to that transaction. And I say it for the same reason that I answered the Chief Justice. And that this -- the prosecutor has decided quite clearly in that case that this is relevant to the inquiry. I do not think that the witness has to decide or should decide what is relevant to the narcotics inquiry if the prosecutor chooses to open up this avenue and that's where we're going. And in this connection of course, it's true the prosecutor and he usually told to be very careful because Congress has continually told the prosecutors, "Don't give anybody an immunity bath," as they term it. But I say very clearly without any question, that if the prosecutor in this grand jury asked this question, he does get immunity. Now, this doesn't always have to happen in this sequence and it's only when you get away from this particular -- the particular facts here that I come to another problem namely --
Earl Warren: Before you get to that, can we just pursue this just a little farther? Apparently, that the robbing in the First National Bank is well about as far away from a narcotic bracket and as you would expect almost any other crime to be. Now, does that mean that -- that any question that he asks would -- would confer immunity? Any question whether it's -- it's murder or robbery or -- or anything else?
Theodore George Gilinsky: I -- I think you're -- I think that's right because as you originally pointed out Your Honor, many of these do have a great connection with -- and I --
Earl Warren: Were the jury --
Theodore George Gilinsky: -- and I don't think -- I don't think it's up to the witness to decide where the prosecutor is going.
Potter Stewart: If the prosecutor is stupid enough to --
Theodore George Gilinsky: That's right.
Potter Stewart: (Voice Overlap) that's an entirely irrelevant question --
Theodore George Gilinsky: I suppose so.
Potter Stewart: (Voice Overlap) immunity for that, too.
Theodore George Gilinsky: I -- I think the witness is entitled to rely on the Government. If the Government tells me he has immunity in this circumstance and the Government then asks him a question which the Government thinks is relevant, I think the witness has a right to rely upon. I think the statute gives him immunity.
Felix Frankfurter: But you just slipped in -- I don't mean, you just inserted a phrase, “If the Government thinks it's relevant.”
Theodore George Gilinsky: Well, now, may I make this clear?
Felix Frankfurter: But because if I may -- if I may say --
Theodore George Gilinsky: Yes.
Felix Frankfurter: -- after all, Judge Campbell and no other judge normally, when -- when wasn't assumed irrational judges, but there maybe such or irrational moments, the judge was specific as to what he compel answers from which the compulsion leading to immunity by virtue of a statute, which is a restrictive statute. Congress has again and again refused a general immunity statute. It has passed ad hoc immunity statutes, beginning with the case that came up at the provision of 18 -- whatever it was in Brown against -- that was sustaining Brown against Walker.
Theodore George Gilinsky: Brown and Walker.
Felix Frankfurter: Step by step and even today, there are very few, so that the grant of immunity is limited by congressional command, by congressional direction to specific crimes. And the judge grants immunity by enumerating it in this case, to what subject matter the grant for what subject matter -- the grant to what subject matter the grant applies. And presumably, it's one thing as you said a minute ago, if the district attorney considering the latitude one has as to relevance particularly before a grand jury in determining what is relevant, certainly, if -- if he thinks that. But if he goes on a joyride of his own and suddenly takes it into his head to be asking him about the man act in a narcotics -- in the jury court for narcotics inquiries are restricted to that, you got a different problem. In that way, you mustn't assume (a) that the U.S. Attorney would travel outside of the framework of that which grants immunity, (b) that a witness doesn't know that he's traveling outside as in this case, where he's given a whole day until he's asked to return to the grand jury to consult with his lawyer. And (c) that court would act on it. All of those, this is the house the judge built, would have to be involved in order to find and in order to conclude that when quite outside of the scope of the allowed immunity, a strange U.S. Attorney does the kind of a plea that you interpreted.
Hugo L. Black: May I say (c) that I hope you stick to what you said.
Theodore George Gilinsky: Yes. Now, let -- let me -- let me have --
Felix Frankfurter: You have to decide which case and not allow the strange hypothesis.
Theodore George Gilinsky: -- let me add this -- this -- let me add -- may I have this problem here? On the other hand, there are instances and they're not usual in this type of field, because it just doesn't come up. But where we would have let's say, a small town grand jury who have the problem of investigating a lot of things besides narcotics and where the grand jury has under consideration a great deal more than they would have in this -- in this case, I can see a situation where the prosecutor may say to a witness even after the grant of immunity and in the grand jury after discussing the narcotics situations say to this witness, either them or some weeks later. Now, the questions that I am about to ask you are not related to the immunity that you were granted and I am telling you so, they are related to another matter which this grand jury is investigating. Under those circumstances, I do not -- and if -- without any question that this was made clear, I would say unto those circumstances the statute does not, does not grant immunity to the -- the questions that would come after that. Now --
Hugo L. Black: I want to ask you one question on grant. Suppose the judge had send him in there and said you answer any question that's asked and you say that he would not get immunity if the -- the lawyer says this has no connection with it. Would you think that the statute would -- which was held, the statute would then grant him the complete immunity that it has to grant him?
Theodore George Gilinsky: I'm not sure that I understand the question.
Hugo L. Black: Well, I mean the --
Theodore George Gilinsky: Let me -- let me get it to it.
Hugo L. Black: In order to -- in order to make an immunity statute that resorts to compel a man top answer a question, it must be a complete one that's been held. And suppose the judge tell him to go and answer any question they ask, then --
Theodore George Gilinsky: Well --
Hugo L. Black: -- the district attorney makes that -- that explanatory speech that you're talking about and asked him a question and he answered it. Do you think that on immunity statute would be a complete immunity, if he had it disobey what the judge told him to do and get an answer?
Theodore George Gilinsky: Well, I suppose you're asking a question which the judge didn't have in mind when he -- when he told him this and that -- at the troubles made because --
Hugo L. Black: Well, what I'm talking about is --
Theodore George Gilinsky: I -- I understand what you're saying.
Hugo L. Black: A judge has granted power to grant him immunity.
Theodore George Gilinsky: No, no. You -- you see, we're starting at a different point.
Hugo L. Black: Well, the -- the statute -- the statute --
Theodore George Gilinsky: No. Well, that's as important --
Hugo L. Black: -- whatever the -- whatever it is --
Theodore George Gilinsky: No, because this is important because the petitioner raises this type of problem in this case. There is such a case on the books and it's --
Hugo L. Black: And what?
Theodore George Gilinsky: There is such a case on the books and it is called Isaac in which -- in which the judge said to a man, “You're granted immunity for -- so go ahead and answer these questions." And the Eighth Circuit held, "No, that is not -- a judge cannot just go off and give somebody immunity." So I -- I've got to be careful that this --
Hugo L. Black: Well, if he made it so general then that he said in a question? That comes to this argument that's been made, if you are saying it, when he makes it that general. A man --
Theodore George Gilinsky: I think we have to --
Hugo L. Black: -- the man could -- wouldn't get immunity, then you are saying that they couldn't try out to compel.
Theodore George Gilinsky: I think --
Hugo L. Black: There's only one specific enough.
Theodore George Gilinsky: I think we have to start Mr. Justice Black with a problem of a narcotic question under this statute or a relevant question under any other immunities that I think they all work the same. If you don't start with an investigation in regard to which the immunity statute is directed, I do not think that any judge either has authority or can just give immunity. So, we have to start with a -- with a general type of narcotic investigation. Now then, after that and -- and after complying with the statute in that regard, then the judge let's say as in this case, told him to go back and answer these questions in front of this grand jury. I think at that point as I told Mr. Justice Stewart that if the first question is in regard to this bank, I think everyone is entitled to understand that that is relevant and it has to do with narcotics and it's a link in the chain and as the Chief Justice mentioned, many of these people have to get their money by robbing and -- and murdering is not unusual for them to be involved in this and this would get into the whole controversy. Therefore --
Potter Stewart: Excuse me, whether it's relevant or not and whether you --
Theodore George Gilinsky: Well, this --
Potter Stewart: -- and whatever his understanding is --
Theodore George Gilinsky: It may not be relevant.
Potter Stewart: -- looking at the words of the statute --
Theodore George Gilinsky: Right.
Potter Stewart: -- if this is a grand jury relating and investigating these narcotics advances, then any questions asked by that grand jury to which immunity has been confirmed, he's immune to the future controversy --
Theodore George Gilinsky: The -- well, let me say this, the question of --
Potter Stewart: -- and of the statute he said --
Theodore George Gilinsky: Yes, that's right.
Potter Stewart: -- and we're into the statute.
Theodore George Gilinsky: That's right.
Potter Stewart: Not thinking (Voice Overlap) --
Felix Frankfurter: Are you authorized to make this concession for the Government? I'd like you to ask you a few questions before you get through, because you're thriving on very dangerous crime.
Theodore George Gilinsky: I know.
Felix Frankfurter: Well, quite outside what I believe, can be the authorized the law.
Theodore George Gilinsky: I know. In regard to the question that Mr. Justice Stewart asked me, I -- I can say that I have been authorized to give the answer that I gave to Mr. Justice Stewart.
Felix Frankfurter: Now, let me put this case to you. Let's test these things. The first phrase is a great deal of confusion arriving from talking about the statute-conferred immunity. The statute doesn't confer immunity. The statute authorizes a judge.It gives him certain powers. Therefore, we are dealing with jurisdiction in the ultimate sense of the term, "power". Let me put to this question, suppose the judge was brought before him this defendant, says “While we're about it, I know this grand jury is at large. It isn't called just to deal with narcotics. I know that it's also investigating a counterfeiting ring.” And therefore, while we're about it, I tell you if the district attorney, when he gets through with narcotics question or when he wants to play another question, while he talks about narcotic matters, asked you about counterfeiting. I instruct you now to answer those questions too and I grant you immunity. Would he have immunity for those counterfeiting problems? Has the judge power to grant him immunity for counterfeiting your offenses?
Theodore George Gilinsky: I do not think so.
Felix Frankfurter: Well, just read the statute.
Theodore George Gilinsky: Well the -- well, I don't -- well, I don't --
Felix Frankfurter: -- the statute is confined by -- the statute enumerates the provisions of the law under which immunity is granted.
Theodore George Gilinsky: I -- I don't see any -- I'm sorry, I -- I say, I do not think the judge does, but I don't think that conflicts with my answer to -- I -- I may -- I may not be under -- I maybe misunderstanding your question, but I --
Felix Frankfurter: I understand well that what is relevant that if a district attorney on his conscience and none for his duty, deems a question relevant considering the scope we've given the grand jury investigation and the hearsay and all the rest. I can well understand and that I well understand, I agree that if the district attorney thinks the question is relevant, we aren't going to test this in another case. But if the district attorney travels outside of the orbit of the subject matter for which the judge is authorized to give immunity, he can't give immunity.
Earl Warren: And if that is true and the -- the defendant answers the question that he's asked under that injunction of the Court, is he -- is he subject to prosecution for the crime?
Theodore George Gilinsky: Let me -- let me understand your question. If what Mr. Justice Frankfurter says is true, and if -- we start with this premise and then, if what he's asked a question outside -- to clear the outside, is he granted immunity? I think the answer has to be no. Because you're --
Earl Warren: Well --
Theodore George Gilinsky: -- starting with this, Mr. Justice Frankfurter's premise that the judge isn't going to grant or can't. I don't mean to quiver about the words, “can't give that immunity.”
Earl Warren: Well, Mr. Gilinsky, but -- you opened the discussion this afternoon by saying, if after this -- this petitioner had been asked to -- or have been required to -- to testify under the -- under the immunity statute, the -- if the first -- the first question that the district attorney asked was, "Did you rob the first National Bank?" You say that if he answered that question yes, he gets immunity. Now, that is -- that is just about as far away from the narcotic bracket --
Theodore George Gilinsky: No, no.
Earl Warren: -- if anything could --
Theodore George Gilinsky: No -- not --
Earl Warren: -- could be. Now --
Theodore George Gilinsky: Well --
Earl Warren: -- well now, let me --
Theodore George Gilinsky: I --
Earl Warren: let me put it to --
Theodore George Gilinsky: I -- I --
Earl Warren: -- let me put it to you this way, if -- if he had said, “Do you know John -- John Doe and Richard Roe and -- and did you have any -- did you use any narcotics on a certain day with them? Yes. And did you go any place with them after that? And did that eventually been the robbery of the First National Bank? Now, that's one thing. But you put it to us boldly, you said, he walks right in there and -- and said, “Did you rob -- did you rob the bank?” And the fellow says, yes and you say he has immunity.
Theodore George Gilinsky: That's right.
Earl Warren: Now couldn't he ask him about murder? Couldn't he ask him about anything under the sun that he wanted to? And if that is true, how can you -- how can you get away from what Mr. Justice Stewart said that he then gets immunity for any question that he answers?
Theodore George Gilinsky: Well, I don't -- I'm not sure that we're in disagreement Mr. Chief Justice. I -- I am --
Earl Warren: Well, you'd got be in disagreement with one of the other --
Theodore George Gilinsky: Well, I'm not so sure.
Earl Warren: -- even Mr. Justice Stewart or Mr. Justice Frankfurter --
Theodore George Gilinsky: No.
Earl Warren: -- because they've -- they've put different situations to you and different answers.
Theodore George Gilinsky: And you see --
Felix Frankfurter: I haven't said and I do not say that if a district attorney asked him a question that appears on the face that irrelevant this could be that we should sit here and assume that the district attorney is going to be either ignorant of or in defiance of what the judges just ordered. Namely that he must keep within the framework of narcotics question and I'm not going to sit here to decide whether in fact, what he asked was relevant. I presumed that when a U.S. Attorney asked a question, he's asking a question in accordance with law and it would be not in accordance with law to compel an answer outside of narcotics legislation because that's the only basis on which immunity could have been given by a court --
Earl Warren: But if --
Theodore George Gilinsky: Let me -- may I explain --
Earl Warren: -- if you want -- be more comfort to a defendant though, if he was asked a question of that kind and he answered it, "yes, I robbed -- robbed the bank." And then the courts came along and said that -- that it wasn't within the immunity statutes and therefore, he could be prosecuted for it.
Theodore George Gilinsky: Well, Mr. Chief Justice, I -- I think we're in agreement, but it's going to be hard, it -- a little difficult to explain. I do not think this is what Mr. Justice Frankfurter is saying.
Earl Warren: I was talking about the consciences of the --
Theodore George Gilinsky: No --
Earl Warren: -- conscience of the district attorney. But this -- this man, who's asked the question with the peril of going to the penitentiary, doesn't know what his conscience is or how he's exercising it.
Hugo L. Black: You don't think the witness would have to be clairvoyant enough to file --
Theodore George Gilinsky: No.
Hugo L. Black: -- whether the district attorney thought it is relevant?
Theodore George Gilinsky: No, I think --
Felix Frankfurter: No, but if -- but if --
Theodore George Gilinsky: -- well, this is the problem.
Felix Frankfurter: -- he answers the common -- if he answers the common inquiry regarding counterfeiting, I'm now through with the narcotics. I'm now going to the question of counterfeiting, having nothing to do with narcotics. The judge below told you, you shouldn't answer any question because you got immunity. And I say, neither this Court nor any other court could grant immunity for counterfeiting, because Congress hasn't given that right.
Theodore George Gilinsky: If I may say this is the type of example that I was giving when I said, “If you get the type of grant, this is unusual and that's why it's -- it's hard for me to -- to visualize this problem, because I assume it -- as Mr. Justice Frankfurter I suppose that -- that a prosecutor is going to ask questions within the scope. Or problem comes --
Hugo L. Black: Of course -- of course you know that there have been occasions when there was a little slip on that field and they were not relevant?
Theodore George Gilinsky: There have been. The problem here -- there are certain -- or let me put it this way, there certainly is no problem in this case about any -- anywhere near this type of question, this -- none of this ever happened in this case. This -- this petitioner clearly understood what the questions were and there's no question --
John M. Harlan II: (Inaudible)
Theodore George Gilinsky: Oh, yes. They're similar in my -- I -- I should explain this about his lawyer. The counsel says, well, he didn't -- the Government didn't notify his lawyer to be there on the 14th or 13th, when he was granted immunity because this isn't in the record. I don't think you have the right to assume that the Government didn't notify anybody. Facts are --
John M. Harlan II: He had a lawyer --
Theodore George Gilinsky: -- the facts are he --
John M. Harlan II: (Inaudible)
Theodore George Gilinsky: That's right.
John M. Harlan II: -- during the time that he ordered to answer under the immunity statute and before he'd be up here before the grand jury.
Theodore George Gilinsky: That's right. And there is--
John M. Harlan II: Is there anything in the record (Inaudible) anytime in the proceeding (Inaudible)
Theodore George Gilinsky: No, never once. As a matter of fact, the record shows he had a lawyer to consult with before he went into the grand jury, the record shows the judge very carefully saw to it that he had a lawyer to check with these -- this if he had this type of problem, check with the boy who went into the grand jury at the second time. The -- it's very clear that a lawyer was present at the time in order to show cause was entered. And of course at that time and there's only one answer that he was called by the Government. He was there throughout this type of proceeding. He did not raise anything like this in the -- on the hearing. I know he had time to prepare for the hearing. Every question that he raised at the time of the hearing, the judge clarified. We think the problems which this petitioner is now raising, which were not raised before the district judge would have been similarly handled by the district judge. And in any event, there was no confusion on petitioner's part as to whether or not the questions were outside the scope or inside or any this type of thing, there was never any question about it. And the petitioner has said so himself that there was no question about it.
Charles E. Whittaker: Mr. Gilinsky, wouldn't be a pretty good idea to -- in determining what the statute means to really look at the statute? Isn't the statute Section 1406, a narcotic statute? Deriving that whenever the judgment of the U.S. Attorney in any case for proceeding before a grand jury involving any provisions of, then it refers to various sections, parts and chapters that deal with narcotic drugs, doesn't it?
Theodore George Gilinsky: That's --
Charles E. Whittaker: Now then, is necessary to the public interest, he, the district attorney, upon the approval of attorney generals shall make application to the court that the witness should be instructed to testify or produce evidence. Now, here comes the phrase, "Subject to the provisions of this section." Now, are those not words of limitation to relevancy?
Theodore George Gilinsky: Well, I think they are. But I'm not sure that that -- well, I think, yes.
Charles E. Whittaker: Confining the immunity --
Theodore George Gilinsky: I think, I --
Charles E. Whittaker: -- to the nature of the -- of the grant.
Theodore George Gilinsky: I think that the prosecutor and as far as I know, they always do, they ask some questions relevant to the narcotic statute. Now, it maybe that there are a lot of other things related to getting at a conviction of narcotics and the statute is broad in that scope namely any testimony or any transaction. I mean, you don't have to pinpoint -- the -- the violation doesn't have to be pinpointed and the question doesn't have to be pinpointed in order to grant a greater immunity. But I -- I've always assumed that the prosecutors will ask questions as they're -- in -- in this -- in this field. Certainly, the United States Attorney when he made the affidavit told the judge, “This was a grand jury investigating trafficking narcotics.” And that's all the evidence in this record shows that's exactly what was going on. And the -- all the prosecutor's questions, well, some of them certainly, with some of -- "Do you know John Doe?" Does not on its face say anything about narcotics.
Felix Frankfurter: Are you saying anything more -- are you saying anything more --it was a rather this long discussion and a lot of supposition far removed from this case that can be, are you saying anything more that the questions of the prosecutor are presumably restricted to the subject matter on the affidavit of which is approved by Attorney General, they go before the court and grant -- and get compulsory process that aren't you -- are you saying anymore that the relevancy of his questions are not to be subsequently reexamined de novo by an outside tribunal? Are you saying anything more than that?
Theodore George Gilinsky: Well, I don't --
Felix Frankfurter: But if he says I'm --
Theodore George Gilinsky: Yes.
Felix Frankfurter: -- not through with narcotics, I'm now going to counterfeiting --
Theodore George Gilinsky: I --
Felix Frankfurter: -- and the judge said you must answer everything --
Theodore George Gilinsky: No, I --
Felix Frankfurter: -- is a wholly different problem.
Theodore George Gilinsky: -- I -- I think I tried to explain that if the prosecutor clearly indicates something like this, then we've got another problem. And -- and that it's not only far removed from this case, but it -- it's hard for me to visualize it in this context mostly because this type of investigation is not one of this free willing type of investigations of crime in general.
Earl Warren: But you didn't have to let me get back to your original statement when you opened -- opened the discussion this afternoon --
Theodore George Gilinsky: All right.
Earl Warren: -- after deliberation over the new (Inaudible). You came in and you said positively that if -- if this man went before the grand jury under this order of the court granting him immunity in this narcotic investigation, if the district attorney asked him, did -- first question, "Did you rob the First National Bank?" And he said, "Yes." He would be immunized.
Theodore George Gilinsky: I -- I said that and I say it again.
Earl Warren: Yes.
Theodore George Gilinsky: And I -- I -- and I say, I don't -- I do not believe this is a qualification to what I said to Mr. Justice Whittaker about the statute. I do not think there's a qualification to anything that I told Mr. Justice Stewart. And I -- and when -- before recess, when you asked me about bank robbery and -- and other related, I -- and I -- I think I answered quite positively that he had immunity. I -- I've -- I still say that all of these answers are consistent in exactly what I mean, all the way through.
Earl Warren: Now, let -- let me pursue it just one -- one question farther then. If without telling him that -- that he's going beyond the immunity or beyond the order of the judge. He asked him about a bank robbery, he asked him about a murder, he asked him about a burglary and any other number of -- of crimes with -- without any showing beforehand that they were at all connected with -- with narcotics. Would he be immunized?
Theodore George Gilinsky: My answer is exactly the same as it was to Mr. Justice Potter Stewart. They asked -- there's no question. If the first question is about bank robbery and the second question is about the murder of John Jones and the third question is about --
Earl Warren: Yes.
Theodore George Gilinsky: -- somewhat, my answer is exactly the same as it would.
Earl Warren: And if I may pursue just one question farther then, when a man goes before the grand jury under an order of this kind, he gets immunity under any answer that he makes unless the prosecutor says, now, I've finished with this matter that -- that was referred to -- to me here by the order of the court and I now want to pursue counterfeiting or something else as Justice Frankfurter has -- has said. Up until that time, any question with the prosecutor asked and he answers immunizing him?
Theodore George Gilinsky: Well, I'm not sure how this question differs from the previous. I think that's why I hesitate about the answer.
Earl Warren: Well, I -- I don't --
Theodore George Gilinsky: You see there were three. There were --
Earl Warren: -- I don't think it -- it does, but it gets to what Justice Stewart asked you about. He said, doesn't it give -- give them complete immunity as to everything concerning which he has interrogated by the district attorney. Now, the only thing I had is unless the prosecutor says "Now, we're through with that business and we'll now go on to something detached -- totally detached from it, to wit, counterfeiting and -- and man act and other -- other crimes that we might mention. Now, I -- I think we're entitled to know if that is a theory of the Government and that if we can -- if we can take it in that sense in deciding this case.
Theodore George Gilinsky: Well, I -- I just don't see any difference in the answer. Now, let me try to explain why I don't see any difference.Maybe that will explain why --
Earl Warren: Well, unless those --
Theodore George Gilinsky: -- on my answer is yes.
Earl Warren: -- you answered, yes.
Theodore George Gilinsky: My answer is yes --
Earl Warren: But I --
Theodore George Gilinsky: -- but I have to explain this.
Earl Warren: If you'll hold please, go ahead. And I --
Felix Frankfurter: May I -- you couldn't explain --
Earl Warren: -- I'll try not to ask you anymore, if you still got free time.
Theodore George Gilinsky: No, I -- I think it's relevant. I think this is --
Felix Frankfurter: And this is where you explain. We understood the Chief Justice's question was and I may have misunderstood that the district attorney, the U.S. Attorney asked him a lot of question and that -- then now, he says as you've heard Judge Jones say, we're also interested in the counterfeiting wherein we haven't asked the same question.
Theodore George Gilinsky: No, I don't believe -- no, I don't --
Felix Frankfurter: (Voice Overlap) immunize them.
Theodore George Gilinsky: No, I don't believe he said -- no, and wait a minute --
Earl Warren: No, I didn't say that.
Theodore George Gilinsky: He -- no, let me -- let me --
Felix Frankfurter: The --
Earl Warren: But I -- I --
Theodore George Gilinsky: -- first, let me -- may I first --
Felix Frankfurter: Well, I don't understand you.
Theodore George Gilinsky: -- had try to keep with the Chief Justice's question.
Earl Warren: Yes.
Theodore George Gilinsky: As I --
Felix Frankfurter: Do you mind repeating that?
Theodore George Gilinsky: Yes, may I try to rephrase at my language so that we'll understand, because I think it's important.
Earl Warren: Yes.
Theodore George Gilinsky: You asked me whether or not this petitioner, he first walks into the courtroom beyond the three questions which I've used as examples, now. He asked him a whole strew of questions about everything under the -- go right down the whole criminal code, lets say. I mean that's the far as broad as I can imagine.
Earl Warren: Yes.
Theodore George Gilinsky: And you said to me, “Do we understand that the Government's position is this witness has immunity in regard to each and everyone.” I don't know whether you used each and everyone.
Earl Warren: Yes.
Theodore George Gilinsky: But it's that -- and that's every one of those questions are answers.
Earl Warren: Yes, yes.
Theodore George Gilinsky: And my answer --
Earl Warren: Now -- now, I put -- I put one -- one unless in -- in there because --
Theodore George Gilinsky: Yes. Well, but --
Earl Warren: I said, “Unless the prosecutor says now we're through with this matter and we now go on to -- to a matter disassociated from the order of the judge to wit -- to wit, counterfeiting.
Theodore George Gilinsky: My answer is, yes.
Earl Warren: Yes. Well now, I won't bother you anymore.
Theodore George Gilinsky: No, no, I --
Earl Warren: I just want to know what --
Theodore George Gilinsky: No, I -- no, I don't want to think this is not a bother.
Felix Frankfurter: Do you think -- do you think he must use the very words, --
Theodore George Gilinsky: No --
Felix Frankfurter: -- the very words, that unless it's -- although it's clear to everybody that he's through with counterfeiting --
Theodore George Gilinsky: Well --
Felix Frankfurter: -- although he doesn't say the words that he has immunity for everything, although plainly enough, every grand juror would know, the witness would know, everybody would know he's going off into different territories. Because he hasn't said -- as they said it in the 17th Century, volunteered so, unless you said, now, Mr. Witness, I want you to know because you would know otherwise, but I must tell you in words that I'm not going often to other territory. That makes the crucial difference, is that what you say?
Theodore George Gilinsky: Not -- I -- I do not believe that Chief Justice --
Hugo L. Black: But that's a lot more and I thought I heard you say.
Theodore George Gilinsky: Well --
Felix Frankfurter: No words --
Theodore George Gilinsky: No, wait a minute.
Felix Frankfurter: -- that would be intense --
Theodore George Gilinsky: No, no -- wait a minute. The problem -- the problem is that is you see, I -- I would agree to the -- let me go to another spectrum maybe to help answer this. If -- I think there is no question that if the United States Attorney or whoever is interrogating the -- in front of the grand jury says to a witness in front of the grand jury, “Now, I am now about to ask you some questions on narcotics. The judge did -- or on that counterfeiting. The judge has not granted you immunity on counterfeiting and I am telling you in no uncertain terms, do you understand that?” And if the witness says, yes, I under -- I don't mean that you have to use a particular formula. What I'm getting to is that -- now, I think it would be unrealistic, unrealistic to assume that that petitioner then thought he had immunity after that.
Earl Warren: I wouldn't argue that (Voice Overlap) --
Theodore George Gilinsky: So, I think was the plan -- and I -- I think that's what you mentioned.
Earl Warren: That's what I made.
Theodore George Gilinsky: Right. Now --
Earl Warren: Yes.
Theodore George Gilinsky: -- one of my -- my -- what I'm really getting to is the -- I think you have to deal in real life situations. If everyone on the grand jury was so certain and so clear about this whole thing, I think the petitioner wouldn't -- I don't think, whatever the question about whether he thought he had immunity either. I mean he can't do perfectly abstract about the problem. These are people that understand things. And this petitioner, I don't think -- well certainly on his motive, let me add and while it -- it is relevant to this extent in this case, certainly on his motive for not answering, which he said that he was afraid, I think there's no question that he wasn't worried about the confusion problem or anything else and his lawyer was not worried about any confusion and very clearly, his lawyer told the judge at the time of the hearing to show cause that the real reason this defendant is not answering is because he's afraid. No one said anything about as the petitioner now raises some questions whether you can ask marijuana questions, we think it clearly covered. We -- if the question as to the scope of the grant, this type of problem I suppose, can always be raised. As a matter of fact, it was -- the scope was raised in Reina, the same type of question. That we -- we can get -- you can always enumerate a number of questions after the fact that could have created a confusion. But we think if you really read the record that you find that the Government was not only fair to this petitioner, or watched his -- his rights all the way through. And if anything, the colloquy about the question of whether or not he should have been granted of privilege or not, I think all it goes to is the fact that the Government bought more it had to buy, if anything. That we did not have to grant as -- all this immunity, but we did out of the matter. Fairness wouldn't have to pick and choose, we did grant more. Of course, this is normal in a number of cases that happened in Reina, it happened in Brown versus Walker, the very first case. The -- there's no question, the whole opinion talks great deal about the fact that the auditor may not have been incriminating himself at all, as a matter of fact on -- on the questions.
William J. Brennan, Jr.: I'm trying to get to the answer to your -- at the start of your questions affecting the facts --
Theodore George Gilinsky: I'll -- I'll go that immediately. The Government's view on the -- on the indictment is that this is irrelevant to this case. First of all, this petitioner was not a defendant in a case at the time of the grand jury. There's no question about that. There's an assumption. This -- this petitioner was not a target of this grand jury. This comes nowhere near the type of case where we get concerned about who's being interrogated in front of a grand jury. In the reply brief, the petitioner posed the question as if he had stood mute. And that that was all that was necessary. Now, without getting into the vagaries of grand juries and why they indict and why they do not indict, if anything -- if anything, we think -- and this goes to the whole scope of all legal questions including even fairness, if anything, they all arise if at all in the indictment case. And this is true even under the statute. If we read the statute in its narrowest terms, wit, that the Government had merely an election and I think that's much more narrowly than the statute should be read in election. The statute specifically says and from the last clause of it, “No witness shall be exempt under this section from prosecution for perjury or contempt.” We're clear, they would end this statute. This is not to say that there may not be problems in another case, as with this Court has had other cases like that. And one of them that come to mind is Regan versus New York. A serious problem or much more serious than this, because in that case, the man had waived immunity, so that he clearly was going to be not only indicted, but could be held in contempt. So the clear problem in this Court very clearly understood, those problems can arrive and they'll be handled in another case, if they are problems at all. We do not say that this is a criminal case. This is a criminal proceeding. This man was not a defendant. If this man were as the petitioner so places him, he certainly would've been entitled to a lawyer right then and there, in the grand jury room. And I have yet -- I do not believe this Court has ever felt that. Certainly, there's no difference in the calling it a witness statute and the Fifth Amendment uses the same term. I mean, we're not -- we're not talking about words then in those -- in those terms. I cannot see how and I know of no case, how a subsequent proceeding entirely unrelated, because it's a crime in narcotics and the other, this case is about disobeying a court order, how it can retroactively knockout and that's the way I read it, “Knockout a judgment that a -- a court has made without more than that.” I know of no case that would so hold. It is the reverse argument that was made in Reina. Reina wanted a pardon for what he'd already -- and this is just the other way around that he wants something that he may not be entitled to. But if he were even, that would be a problem which clearly should be raised in the indictment case in whatever it's worth it. The facts in this case, it will not come because the indictment was dismissed by the Government because the witness was unable to identify Piemonte at that time of the trial. And that's clearly disclosed on the record. Unless there are some other questions Your Honor, why I think that covers the problem for the Government. Thank you.
Earl Warren: Thank you, Mr. Gilinsky. Mr. Lewis, you may close your argument.
Melvin B. Lewis: Mr. Chief Justice, may it please the Court. I can think there are only two propositions that would be appropriate to the reply that I here, undertake, both in the view of the rather limited scope of what's been brought out on the oral argument and in view of the rather limited remaining time. I should suggest Your Honors that when we speak of whether immunity will result in a different -- in -- in varying situations, we get into rather a dangerous area of comparing equitable immunity in a situation in which a man would have every right to come up and urge to a trial court, "Good heavens, look what happened to me down there and just generally, equitably, I ought not to be prosecuted." On the one hand, with statutory immunity, the absolute, complete uncompromising bar on the other. Now, equitable immunity will indeed arise as counsel as in -- as intimated from reliance upon the Government in his representations in certain circumstances. However, a failure to perceive on the basis of equitable immunity will not I believe, serve as a basis for a contempt order. The statutory immunity of the provisions I think, are plain. Now, I would take some issue with the proposition that the court grants immunity in these situations, just as the Isaac case does and just as counsel here did not seem to urge with any great vigor. What the court does in these circumstances, is to evaluate the petition and then to compel the witness to surrender his constitutional immunity. It does not however, grant him immunity from prosecution. The grant is statutory and close from the witnesses testifying, with reference to any subject, matter or thing concerning which he has first claimed his constitutional privilege against self-incrimination and then thereafter, testifies. The most significant words in the statute as I read it, are having first claimed his constitutional privilege against self-incrimination or words of that genre.
Felix Frankfurter: It requires -- it requires this order of the court before immunity could go to him.
Melvin B. Lewis: Oh certainly, certainly yes.
Felix Frankfurter: And it is the court that must enter this order. And it is the court that must be satisfied the conditions in the statute as satisfied.
Melvin B. Lewis: Yes, sir. This is true, absolutely. But the court --
Felix Frankfurter: The court doesn't give him immunity.
Melvin B. Lewis: No, sir. The court does not.
Felix Frankfurter: Those are just words, aren't they? Is it your words or my words?
Melvin B. Lewis: If I understand, Your Honor, properly --
Felix Frankfurter: I'm saying -- what I've just said is that it's a -- a statute that empowers judicial action and defines the scope within which the court must act.
Melvin B. Lewis: The manner of this action, yes, sir. And the -- the immunity is --
Felix Frankfurter: It doesn't say that he must have a red -- a red band rather than a blue band or covering the paper or a seal --
Melvin B. Lewis: No, Your Honor.
Felix Frankfurter: -- it is -- it requires the adjudication of a constitutional court to bring this about.
Melvin B. Lewis: Certainly, Your Honor. Absence such an adjudication there could be no immunity, certainly. Now, I would further submit to Your Honors that -- with reference to counsel's argument rather attenuated on the proposition of the effect of the man's subsequent indictment. Counsel points out I think quite properly that you couldn't say at the stage of which -- at which the -- the petitioner here appeared before the grand jury that he was then a defendant, nor you could you say that about anybody for that matter that the grand jury is subsequently indicted. Yet, it did return indictments. The indictments were as settled law, a part of the criminal case and the proceedings before the grand jury were as it evolved a part of the criminal case against Piemonte. Counsel suggests to Your Honor that the Government just itself voluntarily dismissed the case. This was done after some six weeks of trial or something on that order and long after the defendant had been subjected to very, very serious jeopardy indeed.
Potter Stewart: How unusual thing is it for a grand jury to indict -- to subsequently indict one of the witnesses of its hearing?
Melvin B. Lewis: Well, Your Honor, I would -- I would think of -- of my experience that it -- well, it's -- it's not customary. It's certainly is very far from unique, I would think.
Potter Stewart: It happens every time, doesn't it?
Melvin B. Lewis: Yes, sir. Yes, sir it does.
Potter Stewart: And your argument would be applicable in any such case, wouldn't it?
Melvin B. Lewis: In any case, Your Honor, you cannot punish a man in my view, for refusing to testify before the grand jury which ultimately indicts him. Because of the fact in his refusal to testify in those circumstances, if it please the Court, is not to be justified by whether his testimony might incriminate him. Rather, it is an absolute privilege not to testify, he need not to show that the testimony might incriminate him. He need only to show ultimately that this was a part of a criminal case against himself and this Mr. Piemonte has done. The fact of the situation is, if it please the Court, that without -- the statute takes away his right to refuse to testify on the grounds that his testimony might incriminate him somewhere else, but it does not in any way affect his right, nor does the order affect it -- his right to refuse to testify in a criminal case against himself. My time is expired.
Hugo L. Black: What was the sentence?
Melvin B. Lewis: The sentence, Your Honor?
Hugo L. Black: Yes.
Melvin B. Lewis: 18 months, if it please you. Thank you very much.
Earl Warren: Thank you, Mr. Lewis. Mr. Gilinsky.