Warren E. Burger: We will hear arguments next in 1193, United States against Jacobs. Mr. Frey you may proceed whenever you are ready.
Mr. Andrew L. Frey: Mr. Chief Justice may it please the Court. This case is here on the Court's grant of the Government's petition for writ of certiorari to review the decision of the United States Court of Appeals for the Second Circuit, suppressing respondent's Grand Jury testimony as evidence in the trail of a two-count indictment, charging her with transmitting a threat in interstate commerce and with perjury before the Grand Jury. Respondent was employed as a skip tracer by several bill collection agencies that subsequently became a focus of Grand Jury investigation. On one occasion she called the brother of an individual who had incurred gambling debts on a junkets of Puerto Rico and had not paid them. In this call, which unbenounced to her, the brother recorded, she threatened the debtor's life if the debt were not promptly paid. In June 1974, respondent was subpoenaed to appear and did appear before a Grand Jury, being conducted by an attorney from the Department of Justice Strike Force, who was specially assigned from Washington for the purpose of conducting an investigation that encompassed the respondent's activities. Respondent, when she appeared, was given advise of her privilege against self incrimination and was also advised that she could consult with an attorney if she felt the need to do so at any time and was warned about the seriousness of the offense of perjury and the penalties therefore. She was not expressly told that she was a target of a Grand Jury's investigation. During the course of the questioning of respondent about her employer's business and her own activities therein, the government attorney read to her from a transcript of the threatening conversations had with the debtor's brother and she unequivocally denied having made any of the statements contained therein. She was not told of the existence of the recording of this conversation. Respondent was thereafter indicted for the substantive threat and for the false testimony to the grand jury denying the threatening conversation. She moved the District Court to suppress her Grand Jury testimony, relying on the lower court decisions in United States against Mandujano and United States against Washington which in one instance had suppressed Grand Jury testimony to for failure to give full Miranda warnings and in another for failure to target warnings to a putative defendant. The government appealed and the Court of Appeals affirmed the suppression ruling, although on grounds of supervisory power, rather than on the basis of any finding of constitutional violation. In reaching its decision, the court followed a rather unusual practice of making written inquiry of all United States Attorneys in the Circuit to learn their policies with regard to administration of target warnings and having been advised that it was their policy to administer such warnings, the Court upheld the suppression for the stated reason of achieving uniformity in the criminal procedure in this Circuit. The United States petitioned this Court for writ of certiorari which was granted and case was remanded to the Court of appeals for reconsideration in light of this Court's reversal in Mandujano. On remand, the Court of Appeals adhered to its decision. It found no occasion to depart from its prior ruling because of this Court's decision in Mandujano, since the suppression ruling in that case had been predicated on a supposed violation of the defendant's constitutional rights, whereas here, the Court found that none of respondent's rights had been violated. The court thought its suppression order was justified as a remedy to ensure that various prosecutors follow uniform practices. In a striking self contradiction, the court stated that its remedy was a one time, ad hoc sanction, intended to let our citizens know that equal justice is available to all. The court indicated that it felt comfortable in pursuing its didactic purpose of teaching the prosecutor a lesson in this case because in its field, the prosecutor was not entitled to the luxury of a perjury count as to which the court was effectively pardoning respondent when they remain the substantive count upon which prosecution of respondent was still possible.
William H. Rehnquist: What does the word didactic mean?
Mr. Andrew L. Frey: I assume it means educational, teaching. I mentioned that the substantive prosecution was impaired, although to a far lesser degree by the suppression of respondent's -
Warren E. Burger: This then I take it as the educational function of the Court of Appeals as distinguished from its supervisory function?
Mr. Andrew L. Frey: Well, I -- I suppose I view the two is being --
Warren E. Burger: Ramps the two, conjoin at times.
Thurgood Marshall: If it used the word “supervisory,” instead of that it still would be here?
Mr. Andrew L. Frey: We would be here, of course. The Falco (Ph) question in this case is the power of Court of Appeals to apply the remedy of suppression to a defendant's Grand Jury testimony as a means of teaching the executive branch the lesson that it must achieve uniformity of prosecutorial practices and secondly assuming some such power exists, the soundness of Court's exercise of that power in the circumstances of this case. I think it is best if I begin by making clear by what we are not contending and what the Court need not decide in this case. First, we are not contending that uniformity of prosecutorial practice is undesirable. It is the hope of the Department of Justice that similarly situated persons will be to the extent feasible, similarly treated by Federal prosecutors. Although, I think it must be recognized that there are so many different individual prosecutors handling so many different matters of such complexity that actual uniformity in practice necessarily remains a goal.
Byron R. White: (Inaudible)
Mr. Andrew L. Frey: Excuse me?
Byron R. White: A man from Washington comes --
Mr. Andrew L. Frey: Well, the Court of appeal was disturbed by that aspect of the case, that is true. Second we are not here today to argue that target warnings are undesirable as a matter of policy. Indeed the Court of Appeals itself did not assert in this case that target waring should be given. It said that the Department of Justice would be equally free to require target warnings or to prohibit them if it wished to as long as the practice followed was uniform. Thirdly this Court need not decide whether the courts generally would have the power to adopt the rule prospectively which would require the administration of any particular kind of warnings in the Grand Jury. Well, I have serious doubts that such warn -- that such rules would be properly promulgated by a panel of a Court of Appeals. The issue here is not the power to establish such rules as the part of the court's control over the Grand Jury.
Thurgood Marshall: Of Course Mr. Frey there is quite an oversupply from U.S. Attorneys on the Second Circuit. You know how many they are there?
Mr. Andrew L. Frey: I am not sure how many they are at the moment.
Thurgood Marshall: But a quite a few, I mean, need not deal then somebody did not know about?
Mr. Andrew L. Frey: I do not believe that the three judges on this panel included any former U.S attorney.
Thurgood Marshall: Talk about the whole Court?
Mr. Andrew L. Frey: Well, I am not -- I will get to somethings that I think they did not understand a little later in my argument [Laughter] about the prosecutorial practices. In any event, I was trying to make the point that the Court does -- does not have to decide here the question of the existence of power as an aspect of the power of the courts over the Grand Jury. Rather the question here is the power of the courts to impose the remedy of suppression in the absence of any court made or statutory rule that the prosecutor has violated. The suppression of respondent's Grand Jury testimony in this case represents, I submit, a wholly unprecedented exercise of judicial supervisory power and we have educed in our brief a number of independent grounds for concluding that this exercise of supervisory power was erroneous. Now, first of all no one disputes that the judicial supervisory power maybe circumscribed by Congress. I do not think that the court disputed that. In part one of our brief, we have argued that two statutes, rule 402 of the Federal rules of evidence and 18 U.S.C 3501, deprive the courts of the remedy of suppressing relevant evidence, especially if the evidence consists of a statement by the defendant. I intend to rely on our brief with regard to these points and pass on here to our arguments that apart from any statutory restrictions on the supervisory power, the Court of Appeals' exercise of it in this case was improper. Now first, we can compare, I think what the Court of Appeals did here with any other past exercise of supervisory power by this Court or indeed by other Federal Courts of Appeals and we can see that there are some striking differences. The case is on which respondent relies and on which the court relied, by and large involve the exercise of supervisory power over the conduct of the trial itself. That is with regard to such matters as voir dire questioning of prospective jurors, conformity to Rule 11 proceedings, regularity in sentencing practice, rules of evidence, rules regarding instruction of juries, the Allen Charge, those kind of matters. We do not for moment question that these kinds of rules are -- are inherently necessary as a part of the supervisory powers of the Appellate Courts over the conduct of the District Courts and except of course to the extent any statute imposes restrictions. We do not think that helps to justify the result that the Court of Appeals reached here. The only significant case it seems to me which involves something, outside of the trial context itself, is the McNabb case which of course is the famous instance in which the police violated the defendant's rights for a prompt presentation to a magistrate and the court found that that violation justified the application of an exclusionary rule, excluding the defendant's confession. Now, there are a couple of important differences between McNabb and the present case. The first and most significant is that the probable basis for the court's power in McNabb which was the power to make common law rules of evidence in accordance with reason and which was codified and formed Rule 26 of the Federal Rules of Criminal Procedure, has been abolished with the adoption of the Federal Rules of Evidence which is a fresh codification and which I think takes away the supervisory power over evidence that may previously have existed. Second distinction between McNabb and the present case is that in McNabb there was a flagrant violation of an existing statutory right of the defendant and it was as a means of enforcing this right of the defendant that the Court acted. Now, here there was no right. The respondent had no right to a target warning. According to Court of Appeals, there was simply an irregularity in practice and departure from a informal departmental or U.S. Attorney policy involved, we think that is a very substantial difference from McNabb. I respectfully suggest that the the assertion of supervisory power here over prosecutorial conduct that did not violate respondent's constitutional or statutory rights is undisciplined and is intrusive on the proper allocation of judicial and executive responsibilities. What the Court of Appeals was doing here was in fact exercising a chancellor's foot veto over law enforcement practices of which it disapproved, something that this Court in turn specifically --
Warren E. Burger: You include in that -- you include in that Mr. Frey that -- that it trespasses on the rule making power of the -- of this Court through the judicial conference processes?
Mr. Andrew L. Frey: Well --
Warren E. Burger: Would that -- in other words, would such a rule be an appropriate rule as part of the Federal Rules of Criminal Procedure.
Mr. Andrew L. Frey: If -- well, the rule that target warnings must be administered, if that were the rule, it would be perfectly appropriate rule, preferably adopted by an Act of Congress or by amendment to the Rules of Criminal Procedure which involves this Court, the advisory committee and the concurrence of Congress. The rule that prosecutor must act uniformly, we do not care how, as long as its uniform, it seems to me would be difficult to include in the Rules of Criminal --
Warren E. Burger: No, I am speaking of the specific rule, which was laid down by supervisory power here, is that within the rule making power of the -- this Court through the judicial conference under the statue?
Mr. Andrew L. Frey: Yes. Well, I have no difficulty if such a statute were adopted through the rule making power of this Court. I would have no difficulty with adherence to that statute, although there would still be a question as to the proper remedy for a violation --
Thurgood Marshall: But there had to be a statute?
Mr. Andrew L. Frey: Well, I am not -- I am not insisting here that there would have to be a statute. I think it is possible that the District Court could have even -- could adopt a rule with regard to the administration of the Grand Jury.
Thurgood Marshall: You have given up too much, you are not going to give prosecutorial discretion, are you?
Mr. Andrew L. Frey: Well, there are many areas in which prosecutorial discretion is -- is circumscribed by rules, the Brady rules --
Thurgood Marshall: I am talking about --
Mr. Andrew L. Frey: -- the Jenk's act --
Thurgood Marshall: Yes, but not by the Court without the benefit of rule or statute, you would not want (Inaudible)?
Mr. Andrew L. Frey: Well, I am -- I am not sure for purposes of this case certainly, I am prepared. I do not think the Court need decide whether let us say the District Court could adapt such rule or whether even the Judicial Council of this Circuit Acting under section 330 could adopt such rule as has been done in connection with Speedy Trial Rules. These are I think difficult philosophical questions that are not all necessary to get into to resolve this case.
John Paul Stevens: But Mr. Frey we are talking about a rule requiring of giving target warnings or a rule required that evidence be excluded if target warnings are not given?
Mr. Andrew L. Frey: Well, I think that is -- that is a very pertinent distinction as I suggested in response to the Chief Justice. Even if there were such a rule it would not follow that the remedy would be exclusion.
John Paul Stevens: But in your view as I understand your brief is that the Court would not have the power to exclude the evidence even if it had adopted such a rule. It could not discipline, it could not enforce the rule by using the inclusion to power to exclude evidence. Your reading of the rule --
Mr. Andrew L. Frey: Well, our -- our brief is -- is essentially premised on the non existence of any such rule outside of whatever rule one might discern in -- in prosecutorial practices. We would have a different case if there were a rule adopted either in -- in the rules of Criminal procedure or adapted by a particular District Court.
John Paul Stevens: No, but do -- I just want to be sure I understand your brief. Even assume that the District Court or a Court of Appeals or this Court adopted a rule saying prosecutors must give target warnings, it would not follow from that, that we could adopt a further rule saying that if target warnings are not given, evidence may be excluded?
Mr. Andrew L. Frey: It would not necessarily follow --
John Paul Stevens: In fact your position is that we could not adopt an exclusionary rule to enforce such a prosecution --
Mr. Andrew L. Frey: Well, I am not -- I am not sure that we suggest that it could not be done.
John Paul Stevens: But your argument is it all the relevant evidences is admissible?
Mr. Andrew L. Frey: Oh you mean under the -- under the Statutory?
John Paul Stevens: Yeah yeah.
Mr. Andrew L. Frey: I am sorry I was --
John Paul Stevens: Your argument on the Statute is, we could not police the rule in effect, even though we could adopt?
Mr. Andrew L. Frey: Well, if it were adapted by the mechanism suggested by the Chief Justice it would be by Statute or by rule adopted under statutory authority.
John Paul Stevens: Yes but if the rule adopted is merely one saying the prosecutor must give target warnings, that still would not enable a court to exclude the evidence -- include evidence obtained by baloney (Ph) of target warnings.
Mr. Andrew L. Frey: Well, I -- I think that in so far as the rule is based on our Statutory arguments or the issue here is based on our Statutory arguments, you would have to find a rule that was violated and we were not suggesting that if a constitutional right or a statutory rule or a rule adopted by this Court pursuant to statutory authority had been violated, the Court would necessarily be without the power as in McNabb to adopt some kind of an exclusionary rule. We think it should not even then because --.
John Paul Stevens: Well, how could we have the power if the statute means if you say it means. If I read your brief, you are saying Rule 402 now deprives all Federal Courts of any power to adopt in exclusionary rule, excluding relevant evidence unless the rule, the evidentiary rule is compelled by statute or the connectivity. May be I misread your brief, but I think that is what your arguing? If that is not sure argument, I don't understand your Rule 402 argument, I hope you will explain it to me?
Mr. Andrew L. Frey: Well, I think you are probably right that is our, we have a number of steps however, even my point is that, even if you were to disagree with the conclusion that Rule 402 was an absolute bar, it seems to me that must -- that Rule 402 requires the admission of evidence unless there is an underlying violation of constitution, statute. In other words, Rule 402 does not, I think overrule the Weeks, Mapp exclusionary rule. I am not suggesting that it does that.
John Paul Stevens: Let me just pursue it with one further question because I really want to be sure I understand it. Assume an identification problem and say the way it did those cases where there is a question of whether evidence should be excluded because identification procedure in the statute was improper, a lineup case. Now, is it the Government's view that, that evidence could not be -- the Federal Courts could not adopt an exclusionary rule for the Federal system that is different from the constitutional rule that might impose upon the states? I so not know if I make my question clear?
Mr. Andrew L. Frey: Well, I think that is right because there is a specific statute covering lineup identification, I assume you are not --
John Paul Stevens: Well, I am just saying if any example is does the Court have any discussion with respect to supervising Federal Courts that is different in terms of admissibility of evidence, that is different from its power over state court?
Mr. Andrew L. Frey: I mean apart from all of the desecration that is provided in other parts of the Federal Rules of Evidence such as the desecration to weight prejudicial affect against prohibitive value and that the desecration in the hearsay exception to, I mean, there is much desecration which is vested by the evidentiary code in Courts to make evidentiary rulings. We do not question that --
John Paul Stevens: Does that desecration include the power to exclude because it wants to, in affect require the police to follow a certain a practice or something like that?
Mr. Andrew L. Frey: No I do not think it does. Unless constitutionally -- unless Congress could not constitutionally abolish it.
Warren E. Burger: If we read, follow too literally the power to enforce exclusion rests exclusively in the constitution or the Congress or through the rule making power and no individual judge and no collection of individual judges could impose such a rule, unless that 402 does not mean what it says.
Mr. Andrew L. Frey: I think that is right. You would have to find that the -- that the exclusionary rule was derived either expressly or by implication from the constitution, from the statute or from a rule of procedure.
John Paul Stevens: Through all the Rules of Evidence -- all the rules of evidence that the Courts have developed down through the years prior to the codification of the rules have been replaced?
Mr. Andrew L. Frey: I think that is right by the -- by the Federal, by the Court --
John Paul Stevens: No Court is any longer free to follow a rule that it used to follow, if it is inconsistent with the Federal -- with the Federal Rule?
Mr. Andrew L. Frey: If it is inconsistent with the Rules of Evidence, I think that is right. In fact, the Rules of evidence abolished the part of Rule 26 of the Rules of Criminal Procedure that, that previously had conferred that power on the Courts. So I do not see that, that is a serious problem.
Potter Stewart: Well then why does not the 402 then invalidate the Rule of Weeks against United States?
Mr. Andrew L. Frey: Well, I -- my suggestion is that if a rule is constitutionally compelled and I assume that the Rule of Weeks against the United states must be constitutionally compelled today in light of Mapp, of course --
Potter Stewart: And not in light of Weeks?
Mr. Andrew L. Frey: I understand that.
Potter Stewart: In light of Alkins?
Mr. Andrew L. Frey: I think Alkins is -- I think Alkins is overruled by the Rules of Evidence.
John Paul Stevens: McNabb?
Mr. Andrew L. Frey: I think McNabb is overruled. It is separately overruled by 3501.
William H. Rehnquist: 3501 overrules those --
Mr. Andrew L. Frey: But I think --- I mean, we are -- we are relying on two statutes, each of which we suggest independently takes away the power that the Court might previously have had prior to the enactment of those statutes and anyway to return to the question apart from the statutes of what is a proper exercise of judicial supervisory power, I suggest that the chancellor's foot veto that was condemned in Russel was even more inappropriate in the case of supervising a prosecutor's conduct than it is in supervising police conduct in entrapment situations. On this connection the words of the Chief Justice says, the Circuit Judge in Newman against the United States are singularly opposite and I think worth quoting here. The Chief Justice said, “An attorney for the United States as any other attorney appears in a dual rule. He is at once an officer of the Court and the agent and attorney for a client. In the first capacity he is responsible to the Court for the manner of his conduct of the case, that is his demeanor, deportment in ethical conduct, but in his second capacity as an agent and attorney for the executive, he is responsible to his principal and the Courts have no power over the exercise of his desecration or his motives as they relate to the execution of his duty within the framework of his professional employment. To say that every United States attorney must literally treat very offense and very offender alike is to delegate him an impossible task. Of course this concept would negate desecration” and now this is an important point. “It is assumed that the United States Attorney will perform his duties and exercise his powers consistent with his oaths and while this desecration is subject to abuse or misuse just as his judicial desecration, deviations from his duty as an agent of the executive are to be dealt with by his superiors.” Now in this case, I want to reiterate that there is no suggestion here of any deliberate impropriety by the strike force attorney or any departure from a statute or rule or even a published policy or policy of general application. This was at most a negligent mistake on his part and I like to comeback to a point that I mentioned earlier in connection with the wisdom of the courts attempting to enforce upon the prosecutors' policies and that is the court's can often make mistakes that perhaps the executive branch with regard to its own policy would not make. Page 5A of the appendix to the petition in the Court of Appeals' second opinion in this case, they relied upon the guidelines involving the relationship between the strike force and the United States Attorney and they invoke the guideline that says when a specific investigation has progressed to the point where there is to be presentation for an indictment, the Chief of the Strike Force shall then for this purpose, operate under the direction of the United States Attorney, who shall oversee the judicial phase of the case. Now I -- my understanding is contrary to the Court of Appeal's understanding, that what that means is the Strike Force Attorney is on his own, until he is ready to present the case for an indict, and that the conduct of the investigation in the Grand Jury is -- is not under the direct control of the United States Attorney in this sense. It is only when he decides to indict, that he comes to the United States Attorney for the authority and the United States Attorney takes over. Now I do not rely on that point for anything more than to show that when courts get outside what seems to me to be their legitimate domain, they are in danger of making mistakes.
Thurgood Marshall: And what’s that statement about not forgetting what you know as men?
Mr. Andrew L. Frey: Excuse me?
Thurgood Marshall: Not forgetting what you know as men even though you are judge, you have Lane v. Wilson?
Mr. Andrew L. Frey: Yes.
Thurgood Marshall: Justice Frankfurter, what I am saying, these former prosecutors know what you and I know, that there is always been some tension between Strike Forces and Washington(voice Overlap)the lawyers --
Mr. Andrew L. Frey: Well, I understand -- obviously the court did not like the idea of --
Thurgood Marshall: (Inaudible)
Mr. Andrew L. Frey: No, I do not think so. No, I of course understand that. Now, in terms of the didactic effect, our future prosecutorial conduct, I suggest that, what the Court has done here, may have exactly the reverse of what was intended, because what they have done, is they have discouraged to the extent they are relying on what they perceived to be a uniform prosecutorial rule or practice and punishing us for a departure from that practice. They are encouraging us not to adopt such practices. Since what is implicit in the decision of the executive branch to adopt the practice like this is the Executive branch's expectation that it can enforce the practice, it can decide, how important that practice is and what sanctions are probability.
Warren E. Burger: Is there anything that prevented Attorney General of the United States from repealing and revoking that practice in the Second Circuit or any other U.S. Attorney's office tomorrow?
Mr. Andrew L. Frey: No, he -- he of course could do so. I think it's more likely that he would do just the opposite and then possibly require target warnings. As a matter of practice, but not -- not with intention that the courts can --
Warren E. Burger: I was thinking purely of power --
Mr. Andrew L. Frey: Yes, he has the power, the Court of Appeals did not contest that power.
Warren E. Burger: And he allows, the Attorney General has traditionally allowed variations in practices among various districts. In order to encourage experimentation, is that not so?
Mr. Andrew L. Frey: That is so and it seems to me that is one permissible approach that this not a matter in which there is any external requirement that there be a uniform rule or that it is so important, that the court should justify in stepping in and saying there has to be --
Warren E. Burger: The Second Circuit, at least at one time or perhaps the Southern District exhibits all Grand Jury evidence which very few of any other districts do, is that still so?
Mr. Andrew L. Frey: I am not sure --
Warren E. Burger: Not material, but I merely suggest that, that variations are --
Mr. Andrew L. Frey: No, there are variations. I wanted to make two more points very briefly, if I may before my time expires. One is that, to compare the exclusionary rule which the court has an effect applied in this case with Fourth Amendment exclusionary rule and to point out that there is some significant differences here, the most important is that in Mapp against Ohio the court said in effect, we have no way to control the conduct of the police. The only way we can make the police respect people's constitutional rights is by imposing the sanction that we have at hand and that sanction is exclusion of evidence and we hope by the employment of that sanction that we will accomplish the salutary objectives of -- of conformity of police conduct to the requirements of the law. Now, in this case we are dealing with prosecutors. If the court announces a rule that Target warning should be given, if it feels that is appropriate and then let us assume it has the power, what reason is they had to suppose that prosecutors will deliberately violate that rule which such consistency that exclusion of evidence is necessary or that if they do violate that rule, the court does not have in its hand a simple remedy of direct discipline against the prosecutor. So the situation is very different. In closing, let me point to what seems to me be the quintessential irony of the Court of Appeals ruling here. In its zeal to ensure uniformity of prosecutorial practices, the court has indicated that it will engage in apparently sporadic half-hazard imposition of penalties on prosecutors, not in all cases, under some identifiable standards, but from time to time, when it feels it is necessary to teach the prosecutor a lesson. They sought to arm themselves with a sword of Damocles to wheel as they wish from time-to-time. In affect equal justice in the Courts is forsworn in favor of supervision over the prosecutor's activities. The supervision that ought in principle to be exercised by the executive branch itself.
John Paul Stevens: Mr. Frey may I ask one question before you sit down? I understand of course you challenge the exercise of the discretion in this case and you rely on Rule 402 of the Federal Rules of Evidence in Section 3501, on admissibility. If we were to assume for the moment that 402 and 3501, neither those was controlling, would you concede that apart from those restrictions, the Court of Appeals had the power to what they did in this case?
Mr. Andrew L. Frey: Well, I -- let me put it this way. The Court of Appeals whether it had the power is a matter for review by this Court. This Court can -- I do not know, I mean, as a philosophical matter, as this court says it is improper to apply the remedy of of suppression under these circumstances, I do not know whether The Court of Appeals has the power in some sense to do that or not.
Warren E. Burger: In other words, whatever their supervisory power maybe is subject to the supervisory power of this Court?
Mr. Andrew L. Frey: Definitely and if you say they cannot do it, then in the sense they do not have the power. Thank you.
Warren E. Burger: Mr. Seidman?
Irving P. Seidman: Mr. Chief Justice and if it pleases the Court. Mr. Frey has most reasonably stated the underlying factual pattern in this case. However, whether it would be from the standpoint of the legal issues or the philosophy underlying the legal issues, I believe that the thrust of the argument has failed to address the problem. I do not believe this case involves an instance where the Appellate Court seeks to direct the prosecutor in what he must or must not say and I believe the underlying opinion of the Court of Appeals expressively states that, if the prosecutor wishes or the Attorney General wishes they need not as a law is presently constituted, give any type of warning. I believe what the Court of Appeals was concerned about and what I was initially concerned about as defense counsel in this matter, who brings ten years of having been a prosecuted as a background to this type of case, was the conduct that would be taking place before a norm of the court to with the Grand Jury. I heard many questions asked to Mr. Frey, which seem to address the problem as to whether or not this was a chancellor's veto of the executive branch of the government concerning what was or was not to be said to a witness who was a prospective defendant before a Grand Jury. I submit to you that, that is not the question, that is not thrust of the Court of Appeals decision in this case. I believe what the Court was concerned about and is concerned with and properly concerned with, is that the Grand Jury which is a norm of the court and not of the executive branch of the government was being used in a manner that it determined, required its action within the scope of its supervisory power, and again I wish to reiterate that the court in its second opinion as well as in its first opinion indicated that the prosecutor could adopt any policy he wished, concerning the granting of any warnings to any prospective defendant. So therefore, to seek to have this case revolve around a contest between the exercise of executive power and the exercise of judicial power, I believe begs the question and fails to identify it properly.
Warren E. Burger: But however you define it, that constitutes a command to the United States Attorney and the -- all the United States Attorneys in the Second Circuit, does is it not?
Irving P. Seidman: I respectfully believe that it does not. Number one, Your Honor, this Court --
Warren E. Burger: By what -- it imposes a sanction if he does not -- if he does not comply with the matter they ordered, does it not?
Irving P. Seidman: It only impose the sanction in this case Your Honor. I believe the court was explicit in its articulation of the legal principle concerning the exercise of it's supervisory power that a) this was not a general principle to be applied in all cases, that it had considered particularly this fact pattern which involved the situation of the court's Grand Jury the people's Grand Jury, not the prosecutor's Grand Jury, sir and what takes place before and Mr. Justice Marshall indicated that many members of the bench that related to this problem maybe gentlemen who have prosecutorial background and I believe that -- if that is the case that was important to the consideration of this case because any jurist, I submit most respectfully, who has not logged time in a Grand Jury as a prosecutor, does not know the omnipotent power that a prosecutor has in that room, concerning the witness and what takes place to it. I submit to this Court that as a practical matter, the Grand Jury is a non-functioning body which constitutes a rubber stamp for the prosecutor. Therefore, what control if any, can the court have over the conduct of prosecutors before Grand Juries when the court is not there. The only one who is before the Grand Jury happens to be the 23 jurists who are fundamentally mute in the process that ultimately evolves other than determining, hopefully whether an indictment is warranted, the prosecutor and the witness. As a matter of fact, I do not believe that there is even a statutory requirement that all of the colloquy that takes place in a Grand Jury be transcribed, and therefore, very often as maybe the case, in this case the colloquy that does takes place is selected, assumed for good reason by the prosecutor and that is what appears before the Court.
John Paul Stevens: Are notes taken of everything, whether they are transcribed or not?
Irving P. Seidman: I believe not, Your Honor.
Thurgood Marshall: It is just the Southern District?
Irving P. Seidman: No, no. I am not suggesting. In the Southern District, there is a transcription, but that transcription begins and ends -- this is Eastern district, that transcription begins and ends, when at the direction of the prosecutor there is that direction. But I believe that is a side issue and just merely to give the court the background, if it needs as to what does and does not take place in the Grand Jury. The question here is as to what motivated this Court to exercise its supervisory power.
William H. Rehnquist: Does it really had anything to do with the Court's concern about possible prosecutorial abuse of the Grand Jury. Since as I read, Judge Griffin's opinion, so long as they do the same thing in every district, it does not make a difference, what they do?
Irving P. Seidman: Well, within certain confines, Mr. Justice Rehnquist, I would agree with that statement.
William H. Rehnquist: And the reversal here was not based on the Court of Appeals' determination that this particular thing done by the Grand -- the U.S. Attorney was improper, had it been done uniformly?
Irving P. Seidman: What the Court did say sir, is that if the United States Attorneys in this circuit or the Attorney General of the United States wished to adopt a rule that no target warnings were to be given that since there is no constitutional or statutory requirement that it would be possible for them, not to give that type of warning.
William H. Rehnquist: So, it -- it seems to be, it is hard to -- hard to support the Court of Appeals' decision on the concern you expressed for abuses that go on in the Grand Jury Room, since the Court of Appeals said that the U.S. Attorneys, take your choice, but just make one choice or the other and apply it uniformly?
Irving P. Seidman: I would disagree with that statement for the following reasons Your Honor. I think, what the Court was seeking to do was to ensure to the citizen who is called before the Grand Jury, since, I submit to the Court that fundamentally that is a coercive in custodial situation. Although, this Court has previously ruled under Mandujano and its progeny that there is no constitutional safeguard similar to Miranda that apply, that there are and there is a situation here to be dealt with and what the Court was concerned about is that given the large activity in this Circuit by the Strike Force Attorneys and the need that the application of the law or the application of the Grand Jury to a witness not vary depending upon the personality of the prosecutor, that there should bean adherence by the Strike Force Attorney to the universal concept of giving target warnings in the Second Circuit and the Court cited back to a decision written by Judge McDiner (ph) in US v. Scully some 23 years ago.
William H. Rehnquist: It was not -- the Court of Appeals' opinion was not based on the requirement that -- that target warnings be given, but on the basis that whether they be given or not the practice ought to be uniform?
Irving P. Seidman: There might have been another vehicle which would have -- could have caused the Court to come down with a similar type decision under different set of facts if that is what the court is asking me where there was a dichotomy within the same circuit as to what prosecutors are doing.
Warren E. Burger: Well do you -- do you suggest that uniformity was not the only, was not the fulcrum of Judge Griffin's decision here, Second Circuit decision?
Irving P. Seidman: Uniformity was not the sole issue here, I believe that -- in addition, I believe the language of the decision seem to concern itself with the aspect of fairness --
Warren E. Burger: Let me read just one paragraph then. “In the interest of uniformity in criminal prosecutions within the Circuit which is fundamental to the administration of criminal justice, we affirm the dismissal on count two pursuant to our supervisory function.” Now is not that the -- is it not the basis on which the Second Circuit decided the case?
Irving P. Seidman: That is the basis under which the Second Circuit decided the -- the case accepting there is other language in the case that would indicate that it was not uniformity limited to the issue of target warnings. It was seeking to make sure that all witnesses who appear before a Grand Jury receive equal treatment and that the public be aware of that Your Honor.
Warren E. Burger: let me -- let me test this out on you then. Do you agree with Mr. Frey's response to a question from the bench that the Attorney General of the United states could tomorrow instruct all US Attorneys in Second Circuit to go back to the general, usual practice of giving a no target warnings?
Irving P. Seidman: If reading the Griffin opinion in the second decision, I would say yes.
Warren E. Burger: That he can?
Irving P. Seidman: That the Attorney General or the United States Attorney's in the Second Circuit could uniformly change the warnings that would be given to targets that they presently adhere to. Whether I -- whether that could be attacked for other reasons, I do not believe is a matter before this Court at the moment, but --
Thurgood Marshall: And that the conviction would be valid?
Irving P. Seidman: Well as I --
Thurgood Marshall: Because I do not answer that probably do I want to say we then release this woman or retry?
Irving P. Seidman: Well Your Honor, if -- if I understand Mandujano and its progeny --
Thurgood Marshall: I do not understand that the Court of Appeals at the Second Circuit said that this rule could be changed tomorrow morning?
Irving P. Seidman: Provided -- provided you accept the concept that Mandujano avoided the requirement of constitutional giving of -- of this type of warning and there is no statute that requires it. If there is no constitutional requirement, there is no statutory requirement Your Honor then the only source of the target warning in the Second Circuit is a matter of practice adopted within that circuit.
Thurgood Marshall: Then I have great problem, then this just involves one person and no precedential value at all?
Irving P. Seidman: I would say that this case involves one person Your Honor and I believe Court of Appeals had a problem with that and also seem to indicate and seem to -- in response to Mr. Justice Stevens concurring opinion, the first time this matter was here, it clearly stated that this is not a general exclusionary rule and to talk about this decision in general exclusionary rule terms does not really identify what is said in the circuit opinion. I think what -- what is being argued here is whether or not a) Does the court have this type of supervisory power and b) Assuming the statutory and ruled arguments aside whether or not the sanction which was imposed here was an appropriate one? I would submit to the Court, that this Court should not interfere with the supervisory power of the Circuit Court which deals in the everyday problems within the Circuit and I am sure that when it considered this case involving Strike Force Attorneys to come into the Circuit and identifies a prior case where it concerned itself in depth with the relationship of Strike Force Attorneys to the United States Attorney and that was in the Persiko case that the Court of Appeals must have had good reason to feel that in this particular case Mr. Justice Marshall, it would apply the sanction of suppression using the lack of uniform application of warnings under the exercise of its supervisory power. And it may well be that this is not a rule and I submit that it is not, that establishes from this time on any misstatement by a prosecutor or failure to state something that is customary or habitual, assuming it does not raise to constitutional or Statutory level will be stepped upon by the exercise of supervisory power. I think the Court went to great length in an attempt to assuage this Court by its language that it was limiting this opinion to this particular case, and getting back to the didactic, it may have felt that this case warranted this action, given the urban environment of this Circuit.
Byron R. White: Are you suggesting as of it precisely the same thing happened next week? I think Second Circuit would not exclude the evidence?
Irving P. Seidman: I cannot speak for the Second Circuit, Mr. Justice White, I do not know. I know what the Second Circuit said in this case and what it said was that it was not establishing an inexorable rule to be applied in each and every case nor was it suggesting that every time a prosecutor made a mistake, concerning accepted practice that it would utilize his supervisory power and impose a sanction of suppression which ultimately results in the dismissal of a count and an indictment.
Byron R. White: Well, suppose they had made such a rule and just announced it, you either do it this way or the evidence will be excluded, if that would and said this is a -- this rule is made under our -- our supervisory power. You say that situation is not here? Of course somebody might disagree with you and think that it is. What would you say about that?
Irving P. Seidman: I would -- I would compliment the Court and suggest that --
Byron R. White: You do not think it would be -- it would be forbidden by the Federal Rules of Evidence?
Irving P. Seidman: I believe that the argument posed concerning 3501 has no application to this case. That the argument proposed by the Government with respect to Rule 402 has no application to this case. 3501 has no application because this is a denial of guilt, therefore, through whatever attenuated concept I do not believe that, that constitutes a confession. The Court did not deal with voluntariness in this opinion. Further as to Rule 402, there is no doubt has the Court acknowledged that or relevant testimony evident etcetera is applicable to the case, but if you continue to read on into the Rules of Evidence and if you take a look at the Constitution of the United States out of which flows the inherent power of this Court and the other Federal Courts, I would assume that the Federal Rules of Evidence do not remove from the judges to sit in a courtroom or rule on motions from their discretion.
William H. Rehnquist: You say the -- you say the Constitution of United States from which flow the inherent powers of this Court, do you think that before Congress provided for appeals in criminal cases from the District Courts in 1889 or whenever it was --
Irving P. Seidman: 1789.
William H. Rehnquist: No, I mean 1889, for a 100 years there was no right of appeal from a criminal sentence in the District Court to this Court, do you think there was some sort of an inherent authority in this Court to review an appeal on those kind of criminal judgments?
Irving P. Seidman: Well, I do know that the constitution says -- it states that Congress establishes a jurisdiction of the Federal the Court and I am aware of that statute. However, knowing the creativeness of the mind I would assume the possibly in answer to your question that some learned legal scholars might have developed a theory under our constitution that might have permitted that type of approach by Appellate Courts to criminal law matters.
William H. Rehnquist: Non surfaced in the 19th Century at any rate?[Laughter]
Irving P. Seidman: Well, our concept of justice did I not change a great deal until 1954 Your Honor, so that may well be true, until then. However, I am -- I am responding to your question most respectfully and -- and seriously when I state that and I am aware of the fact that the jurisdiction of the District Courts is created by acts of Congress.
John Paul Stevens: Mr. Siedman could I ask you a question please. You think -- assume we are persuaded by Mr. Frey on the uniformity is not a sufficient interest and uniformity within the circuit is not a sufficient justification for exercising the Court of Appeals' supervisory power whatever it maybe. Do you think the Court -- this Court now in this case has presented the question whether its supervisory power would justify, apart from the constitution, would justify a rule such as the American Bar Association Standards recommend, namely the target warning all must be given and that therefore we could affirm on the basis that a general rule applicable to the entire Federal system would be appropriate to implement that kind of policy?
Irving P. Seidman: I believe you could Your Honor and I would applaud it if that is important. I believe it became extra important that this Court through its rule making and supervisory power deal with the Grand Jury in view of its decisions in Mandujano, Washington and Wang and I so not stand here to suggest that I condone perjury in this argument. I do not believe that the Court of Appeals condones it and the sole issue before this Court is the exercise of a supervisory power in the context of what takes place before a Grand Jury.
Thurgood Marshall: Mr. Siedman if I understand you correctly we could issue a rule that there must be uniformity among all of the prosecuting attorneys and what they present to a Grand Jury, is that right?
Irving P. Seidman: I believe that --
Thurgood Marshall: Well, then should not we also say that the judges should be uniform in their sentences, I mean, while we are at it.[Laughter]
Irving P. Seidman: Well, I think you are asking too much of me.
Thurgood Marshall: Well, I mean while we are (Inaudible) we should get into that?
Irving P. Seidman: But however, I think getting back to judge -- Justice Stevens' suggestion which I believe is a manageable one and that is given the fact that the American Bar Association has done an extensive study in the criminal justice area, if I understood Mr. Justice Stevens, he was asking whether or not the Supreme Court of the United States should adopt the recommendation of the ABA as is recited in the Jacob's opinion and -- and possibly the the Court of Appeals may have been hopeful that Supreme Court taking the look at that which says if prosecutor believes that a witness is a potential defendant, he should not seek to compel his testimony before the Grand Jury without informing him that he may be charged and that he should seek independent legal advice concerning his rights that is a recommendation by the American Bar Association.
Warren E. Burger: You may not be aware of it, but I was the author of that report and that did not mean we were writing a rule, constitutional dimensions or that we were undertaking to suggest clothing Courts with some kind of supervisory power to impose uniformity. These reports of the American Bar Association are a statement of what numbers of lawyers and judges thought would be the right way to do it?
Irving P. Seidman: I agree with the Court and I am not suggesting that I assume that the entire standards as finally adopted should become necessarily the --
Warren E. Burger: We are taking here about the power of the Court of Appeals, not the wisdom of this rule?
Irving P. Seidman: Well, getting back to the heart of this case, Your Honor, I believe that the Court of Appeals exercised supervisory power not in conflict with Section 3501 or with Rule 402 and the the -- the best thinking of the Court as to why it was doing it, I believe is -- is the quote given in the opinion where the Court, quote is from Judge Friendly in U.S. v. Stepper (Ph) and stated, a reversal with instructions to dismiss the indictment may help to translate the assurances of United States Attorneys into consistent performance by their assistant. Again, this is a sole limited narrow issue that is before this Court and it does not particularly have relationship solely with respect to target warnings. It might well be that the Court of Appeals as stated by Mr. Frey, may in some future matter, unforeseen, seek to exercise its supervisory power and I cannot believe that this Court, given the long line of cases, some of which Your Honor has written, Mr. Justice Burger -- Chief Justice Burger has written opinions in, has identified and recognized the supervisory power of the -- of the Court of Appeals to deal with matters within the Circuit and if I may respectfully relate to Mr. Justice Marshall's dissenting opinion in the first Jacob's case, the case has cited therein the Cupp v. Naughten case, Barko v. Wingo, United States v. Thomas, Ristaino v. Ross and Murphy v. Florida, some of which have their opinions from Mr. Chief Justice Burger, clearly acknowledged the existence of propriety of exercise of supervisory powers and at times, the opinions seek to avoid the exercise of Federal Supervisory Power in General -- in State criminal cases, but use of affirmative language which clearly states that, had this been a Federal Court matter that the United States Supreme Court in these instances would have recommended the utilization of supervisory power to justify whatever Court's concept of fair and equal application of the law to all people. I submit to the Court that the sanction herein, given the argument of the Court of Appeals which I am limited to, is that the defendant in this case is not escaping justice, so therefore, I do not know that the sanction part of this case is that troublesome. The only issue that I could conceive of as being of importance to the -- and crucial to this is, whether or not this was a reasonable application of the supervisory power and again I wish to reiterate in -- in my closing argument that this not a trial proper that is before the Court. What is before this Court is the conduct and management of the Grand Jury which is norm of the judiciary and not a norm of the executive branch of Government and I believe it was in this context, the Court Of Appeals so ought to apply its supervisory power not of the prosecutor, which is the effect of what has happened here, but rather as to what takes place before the Court's Grand Jury, before which the prosecutor practices as a part of the executive branch of Government. And in response to Mr. Justice Stevens' question in his concurring opinion in the first case, it would assume -- it is clear to me that this is not an inexorable rule to be applied in all instances and this Court need not be fearful that with each slip of the tongue in any particular criminal law prosecution that there will be a -- a dismissal or suppression which would result in non prosecutorial happenings with respect to people who should be prosecuted. And -- and the Court of Appeals clearly stated that it, in deciding this case, it a perjury, but it felt that given the fact that there was another portion of the case to be tried, that it could take this law just so to speak, if the Court wanted to picture it as such and employ the sanction of suppression, and therefore, the dismissal of the indictment which flow there from. I might -- I might add, getting back to what Mr. Chief Justice Burger stated that given, in closing, given the fact that the citizen's rights before the Grand Jury have been limited by Mandujano, Wang and Washington that consistent with what Mr. Justice Stevens suggested, that possibly and humbly this Court might consider the ABA standards as to what should be the procedure before the Grand Juries which represent throughout the United States, all of -- all of the people. I thank you.
Warren E. Burger: Do you anything further Mr. Frey?
Mr. Andrew L. Frey: Just short points, if I may Mr. Chief Justice. I think in response to Mr. Justice Stevens' questions about the -- whether there is any difference between the Court of Appeals' supervisory power and in this Court's supervisory power, on the context of deciding a case, I do not believe there is any difference. If either the Court of Appeals has it and you have over sight of that power or I believe neither of you have it. Now, you do have the power in the context of passing a Rule of Criminal Procedures as the Chief Justice suggested earlier, but that is a totally different procedure in one to which we would not make exception.
John Paul Stevens: But you do not contend our supervisory power is limited to rule making as I understand it, you do not take --
Mr. Andrew L. Frey: Not at all.
John Paul Stevens: You did not take issue with the basic theory of McNabb rule for example? I mean, you might not approve of the exclusion of the confession, but the Court had the power to adopt such a rule pursuant to its supervisory power in deciding a case?
Mr. Andrew L. Frey: Yes, it did have it previously, yes, but we -- but we think that -
Potter Stewart: That was basically a rule of evidence, was it not?
Mr. Andrew L. Frey: It was a rule of evidence and it was a rule that was predicated on an antecedent violation of another rule established by Statute or Constitution. Here we have no antecedent violation, and indeed no rule to be violated. There is not any rule. We can do what we want and that -- and that brings me to the point, to the extent the Court of Appeals may have been hopeful that this would encourage us to adopt the ABA standards. This may very well have had exactly the opposite effect by the punishment that was administered in this case because I understand in the Southern District of New York they now have stopped giving target warnings, in order, they have no longer have a policy of giving target warnings, so that they cannot be accused of violating their policy and having suppression administered on that basis. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.