Earl Warren: Number 29, Giacomo Reina, Petitioner, versus United States. Mr. Stim.
Allen S. Stim: Mr. Chief Justice, if it please this Court. This case comes before this Court on certiorari to the United States Court of Appeals for the Second Circuit which affirmed a judgment dated and entered in the United States District Court for the Southern District of New York dated the 2nd day of February, 1959 by which this petitioner was adjudged guilty of a contempt of court for his refusal to testify as ordered pursuant to the provisions of Title 18 of the United States Code, Section 1406 which is known under the popular name as the Immunity Act -- as the immunity provision of the Narcotic Control Act of 1956. In this argument, I shall use both the code name and the popular name -- name interchangeably. By the terms of this judgment, adjudging the petitioner in contempt of court, he was sentenced to a term of two years imprisonment. This term of imprisonment that commenced at the termination of a narrowly, a five-year federal sentence that this petitioner was then serving. This judgment, by its terms, provided that the petitioner might purge himself within a period of 60 days from the date of the judgment and in that event that this sentence, by its -- its terms would be -- be vacated and become null and void. This 60-day purge period has elapsed without the petitioner having availed himself to its provisions and the judgment by its terms had become final. I would like to state that the petitioner is presently freed -- free on $10,000 bails -- bail -- dollars bail, allowed by one of the Justices of this Court. The questions being raised on this writ of certiorari are four questions. They are first, does the immunity provision of the Narcotic Control Act of 1956 grant immunity from state prosecutions for violations of state narcotic laws? And in the event that this Court holds that this federal statute does not grant such an immunity, the question is, is the immunity granted by the federal statute coextensive with the constitutional privilege against self -- self-incrimination which it seeks to replace? The second part of this question calls for reexamination by this Court of the 1931 decision of United States against Murdock, cited 284 U.S. 141, with my contention that the Murdock case should be overruled. My second question raised is that on the facts of this particular proceeding, before the petitioner could be validly held in contempt for refusal to testify as ordered pursuant to the immunity provision of the Narcotic Control Act of 1956, was it incumbent -- was it not incumbent upon the Government to have made -- tendered this petitioner before he testified a firm offer or commitment on the part of the Government to render inoperative, the unexecuted portions of an earlier judgment of conviction entered in the United States District -- District Court which adjudged this petitioner guilty of the crime of conspiracy to violate the narcotic laws of the United States and under the terms of which judgment, the petitioner was then serving and as yet, unexpired five-year prison sentence and owed the Government a $10,000 fine which he has been unable to pay which were imposed pursuant to the terms of the earlier judgment of conviction when the said prior judgment of conviction for conspiracy to violate the narcotic laws of the United States, was based upon the same facts that the Government sought to question this petitioner about before a grand jury in the present proceeding pursuant to Title 18 of the United States Code, Section 1406? My third question which relates to question number one, point 1 is, was this petitioner denied due process of law by the failure of the District Court to inform him as to the scope and extent of the immunity granted pursuant to Title 18 of the United States Code, Section 1406 before it adjudged the petitioner to be in contempt of court for his failure to testify pursuant to said provisions? Well, my fourth and final question is on the facts of this case, was the sentence of this petitioner to a five-year prison term on this present contempt proceeding -- to a two-year prison term, I mean, which sentence was to commence at the termination of the earlier five-year sentence that petitioner was then serving an abuse of discretion that will be reviewed by this Court -- by this Court? I believe that at this point, a statement of facts is in order.
Earl Warren: Mr. Stim (Inaudible) to decide that this (Inaudible) carrying immunity from the state (Inaudible).
Allen S. Stim: Well, that -- that is the -- that is the Solicitor General's point, Your Honor. I'd like to point --
Earl Warren: (Inaudible)
Allen S. Stim: Well, in the event that the Court finds that this -- that this statute grants immunity from -- from state -- that this Act grants immunity from state prosecution, I don't believe that I would have much to rely on in my first point. I have to rely then on the other points in the argument.
Earl Warren: (Inaudible)q
Allen S. Stim: Yes, Your --
Earl Warren: Mr. Murdock --
Allen S. Stim: Yes, Your Honor.
Earl Warren: (Inaudible)
Allen S. Stim: In short, the Government is attempting to bypass the Murdock case by raising for the first time, before this Court, the unique position with regard to the Narcotic Control Act, I should state. They're attempting to extend the doctrine of the Ullmann decision.
Felix Frankfurter: Are you -- are you proposing to argue to the Court that as a matter of statutory construction, the Court can't take that position -- can't make that construction?
Allen S. Stim: Well, I'm arguing as a matter of law that the Court, taking into consideration the Tenth Amendment of the Constitution of the United States and that the peculiar circumstances of the Ullmann decision and the Immunity Act of 1954 that the Court cannot make such a decision.
Felix Frankfurter: Well, that's what I asked you. Do you say that -- that it isn't open to the Court to close the door to the ultimate constitutional question that you want to raise?
Allen S. Stim: That -- that I go along with. This case originated in the United States District --
Felix Frankfurter: In other words, you -- you like to prevail so far as that branch of the Court is concerned on the constitutional ground, not on the statutory ground?
Allen S. Stim: Well, I'm relying on both --
Felix Frankfurter: On the ground that you think it isn't open to take the statutory (Voice Overlap) --
Allen S. Stim: Well, my position is -- is that I don't like -- I'm -- I'm relying on the constitutional grounds with that -- that portion -- on -- on that portion, Your Honor.
Felix Frankfurter: Yes, but you can do so only on the Chief Justice's question suggest. If you reject what the Solicitor General is imposing, namely that as a matter of construction, you have got immunity in the state courts, do you say that that road isn't open, that's closed?
Allen S. Stim: Well, in short --
Felix Frankfurter: (Voice Overlap) --
Allen S. Stim: -- I reject that position --
Felix Frankfurter: (Voice Overlap) --
Allen S. Stim: -- Your Honor.
John M. Harlan II: Do you also say it's unconstitutional even if it could be construed that way?
Allen S. Stim: Well, I state, yes, that -- that there's violation --
John M. Harlan II: (Voice Overlap) constitutional problem to both statutes.
Allen S. Stim: As a violation of this petitioner's constitutional rights, Your Honor. This case originated in the United States District Court for the Southern District of New York and arose out of a proceeding brought by the Government pursuant to Title 18 of the United States Code, Section 1406. On December 5th, 1958, this petitioner was imprisoned in a federal prison where he was then serving a five-year prison sentence and owed a -- was owing the Government a fine of 10 -- $10,000 which he had been unable to pay, which sentence was imposed pursuant to the terms of an earlier federal conviction adjudging him guilty of the crime of conspiracy to violate the narcotic laws of the United States. On that date, December 5th, 1958, this petitioner was brought before a federal grand jury sitting in the Southern District of New York pursuant to a subpoena duces tecum test -- test of a condemn where he was asked numerous questions, many of which related to narcotics. The petitioner refused to testify before the grand jury invoking his privilege against self-incrimination. Thereafter and in accordance with the provisions of the -- of Title 18 of the United States Code, Section --
Earl Warren: (Inaudible) do these questions (Inaudible)
Allen S. Stim: Well, putting it this way, the facts -- most of the -- many of the questions -- the facts related directly to the crime that he was convicted of and I might state without fear of contradiction that the phraseology of many of those questions was taken from the testimony given against this -- this petitioner in the -- in the trial in the -- in the District Court on the charge for conspiracy to violate the narcotic laws of the United States. Thereafter, in accordance after the petitioner refused to testify before the federal grand jury, the Government applied for and obtained an order pursuant to Title 18 of the United States Code, Section 1406. That is the court order of December 17th, 1958, which appears in the record pages 10 and 11. This order directed the petitioner, in its language, to testify before the grand jury pursuant to the provisions of Title 18, Section 1406. The petitioner was again called before the grand jury after this order had been signed and was again asked the same questions. He again -- he -- this second time, he stood mute on his -- on his constitutional rights and it was upon his continued refusal to testify before the grand jury on the claim of constitutional immunity that the Government brought this motion to punish the petitioner for contempt of court. This -- the -- this present proceeding to punish the petitioner for contempt of court was brought pursuant to the provisions of Title 18, U.S.C., Section 401, Subdivision 3, to punish the petitioner for disobedience to a lawful order of the court. The Government's motion to punish for contempt came on for hearing in the United States District Court for the Southern District of New York on this 22nd day of January, 1959 before the Honorable Archie O. Dawson, District Judge. On this hearing, the petitioner opposed the Government's motion on two different grounds. The first ground being that Title 18 of the United States Code, Section 1406 is in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and that it does not provide the broad immunity contemplated by said two amendments. I believe this appears in transcript record -- pages 20 and 21 of the record. The petitioner's then counsel argued that there is nothing to indicate in the immunity statute, the scope and the extent of the immunity jurisdiction of the immunity grant and jurisdictions other than the federal jurisdiction. And more particularly, he referred to the state jurisdictions. The petitioner's then counsel cited this statute as an example of the constant attempts to chip away the basic liberties guaranteed under the Constitution. The petitioner's second ground which is not being urged before this Court is that certain questions propounded to the petitioner before the grand jury were not within the context of the meaning of the statute as enacted. As I've stated, I'm not urging the -- the second point before the Court. Thereafter and on the 2nd day of December -- of February, 1959, the District Court rendered an opinion -- an opinion and judgment, adjudging the petitioner to be in contempt of court. I believe that the opinion was rendered on January 29th, 1959 and that there was some question before the Court whether they had entered a judgment or not, therefore, the judgments was entered, I believe, the Monday -- Monday but both the opinion and judgment are considered to go together. This opinion which is officially cited in Giacomo Reina, 170 F. Supp.292, appears on pages 29 through 34 of the record. In this opinion, Judge Dawson followed the rationale of this -- the decision of this Court in United States against Murdock and held that he was bound by the decision. The judgment of the District Court was unanimously affirmed by the United States Court of Appeals for the Second Circuit on December 30th, 1959. This affirmance appears in the transcript, pages 38 through 40. It's officially recorded as Giacomo Reina against the United States, 273 F.2d 2 -- 234. The Court of Appeals likewise followed the Murdock decision. This brings me to my first point. In answer to the first question raised and to set forth in point 1 of my brief, my contention is that the Narcotic Control Act of 1956 does not grant immunity from state prosecutions for narcotic violations of state laws. And that therefore, the immunity provision of the Narcotic Control Act of 1956 is not coextensive with the constitutional privilege that it seeks to replace, that is the privilege against self-incrimination guaranteed under the Fifth Amendment. The petitioner contends that despite the wording in the Act which uses the language, "Nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court, that said statute, cannot by its terms under a grant of immunity, bar States from prosecuting for violations of state penal laws involving narcotics which are -- and exercised by the States of their police power. As any such attempt by Congress to grant such an immunity from state prosecutions, would be an invasion of the powers expressly reserved to the States under the Tenth Amendment." This fact was recognized by the United States Court of Appeals for the Sixth Circuit in Tedesco against the United States, 255 F.2d 35, which cases cited in my brief. In the Tedesco case, the Sixth Circuit, while affirming a contempt conviction arising under this very same statute, went on to state on the ground that it felt bound by the Murdock decision, the Sixth Circuit went on to express grave doubt that Congress has the power to grant immunity from prosecutions in state courts pursuant to state narcotic laws.
Charles E. Whittaker: Would that mean, in your opinion, that there can be no valid federal immunity legislation?
Allen S. Stim: Well, no, that doesn't mean in my opinion. I was just citing the Tedesco case which, in Tedesco, they held that they were bound by Murdock. There could be, in certain circumstances which I'll come to, valid immunity legislation given by the Federal Government binding -- binding the States also. I -- I intend in my argument to distinguish the field, say, narcotics from the field of national defense, which -- the only case involved.
John M. Harlan II: Before you go on to this branch here, are you -- does the statute here, the immunity statute here, in its wording, differ in any substantial respect from the statute that we have in the Ullmann case?
Allen S. Stim: To be quite frank with Your Honor, as I was going to state in my argument, I believe that the statute, the Immunity Act of 1954 served as the original blueprint for the -- for the drawing up of the present statute. This statute was enacted, I believe, about three months after this Court sustained the Ullmann case.
John M. Harlan II: Because there's a matter of statutory construction as we held in Ullmann as we did that the statute did reach for state immunity. You don't -- whether argue that we shouldn't reach the same result here as a matter of statutory construction.
Allen S. Stim: Well, I -- my point is despite the language, the Ullmann case happened to refer to certain powers in the Federal Government, which I believe, are conceded to be supreme over the State's national defense which is relied, closely relied to the war powers. The --
John M. Harlan II: Then goes to the power of Congress to do that rather than to what it -- what the statute (Voice Overlap) --
Allen S. Stim: Well, no. I'm differentiating in my argument between the power of Congress in enacting legislation that might bind the States where this power is being exercised in the national defense or war power situation from a case like the narcotic -- in the narcotic field --
John M. Harlan II: (Voice Overlap) --
Allen S. Stim: -- which traditionally was exercised by both Governments concurrently.
John M. Harlan II: I understand. But as a matter of statutory construction, I will take it that you do not contend that the statute can be read.
Allen S. Stim: Well, I'm not arguing anything about the language, Your Honor.
John M. Harlan II: It can be read as conferring to state immunity.
Allen S. Stim: Well, there's no -- there's been no position taken down below by a -- by the Government --
John M. Harlan II: No.
Allen S. Stim: -- on the statutory language. They just say, "Murdock, we follow Murdock," and there's no -- no attempt --
John M. Harlan II: I'm just asking about argument so that I --
Allen S. Stim: Yes, sir.
John M. Harlan II: There's really no bone of contention between you and the Government that the statute does purport -- purport to grant immunity for the state prosecutions.
Allen S. Stim: No, I don't claim it does. I claim that the statute uses the language in any court which was likewise used in the -- used in the Immunity Act of 1954, as I will come in one moment.
Charles E. Whittaker: Would you believe this applies in the outset that the same words meant the same thing in here as in Murdock?
Allen S. Stim: As in Murdock or Ullmann, it hasn't --
Charles E. Whittaker: Oh, no. I beg your pardon. Ullmann.
Allen S. Stim: Well, my question is at the time that the -- the Ullmann statute, the Immunity Act of 1954 was enacted by Congress. The reading of the congressional reports shows that apparently, Congress didn't have too much of an intent one way or the other, their intent being that if we could get state immunity well and dandy, we'll leave that up to the Supreme Court of the United States to construe. That appears in my brief. Congress, in enacting federal immunity legislation, has recognized the powers involved and the questions of constitutionality that would arise out of a federal -- federal immunity legislation that might be construed as barring state prosections for violations of state penal laws. This point, I came to the part of my arguments where I dealt with the congressional intent in the Ullmann statute. He has report on the bill that was subsequently enacted into law and is now known as the Immunity Act of 1954 that is 18 U.S.C., Section 3486 Supp.2, as reported in two congressional codes and Congress reports, 83rd Congress, Second Session, 1954 on pages 3063 and following. This majority -- the majority report which recommended passage of the then proposed bill, expressed great doubt as to the power of Congress under the proposed grant of immunity which referred to compel testimony in matters concerning national security. This majority report expressed great doubt in that field of the power of Congress to bar subsequent action in -- in the States in enforcing their criminal laws. However, this majority report recommended passage of the then proposed bill leaving the question as scope and extent of the immunity granted and constitutionality of the Act up to this Court. The House Minority Report, which appears in page 3071 of the aforementioned code in congressional reports, considered that the proposed Act construed to grant immunity from state prosecutions, was an unwarranted intrusion by the Federal Government into state prosecutions which must therefore fail to lack of broadness, consonant with the Fifth Amendment. This Immunity Act, as I have already stated, served as the model for the drafting of the present statute under discussion, which was enacted approximately two years later and approximately three months after the Immunity Act of 1954 was construed as constitutional. In Ullmann against the United States, he was -- 350 -- 350 U.S. 422. The Immunity Act of 1954, however, concerned investigations relating to the interference with or endangering of the national security or defense of the United States and its subject matter is readily -- readily distinguishable from the subject matter of this Act, which by its terms, involves investigations into violations of the narcotic laws of the United States. In Ullmann against the United States, the constitutionality of the Immunity Act of 1954 was upheld and the phrase in any court contained in that Act and in the present -- contained in the Ullmann act, was construed as granting immunity from both federal and state prosecutions. As I've stated before, the same language is used in the present Act. The Ullmann case, however, turned upon a paramount power or authority of Congress to safeguard the national security. This power is closely related to the war power, both of which powers under the Constitution, delegate the authority solely in Congress or the Federal Government, its own responsibility to preserve the continued existence of a free and independent United States and its constituent States without any bar, delay or hindrance on the part of the respective States. While not mentioned in the Ullmann decision, this paramount power of the Federal Government and this field is, I believe, underscored by Article I, Section 10, Clause 3 of the Constitution, which is an interdiction on the States from engaging in war without the consent of Congress, unless actually invaded or in such eminent danger as will not admit of delay. On this argument, for the first time, the Justice Department has taken the position that is in point 1 of their brief that Title 18 of the United States Code, Section 1406 grants immunity from both state as well as federal prosecutions. All of the prior cases involving violations of this statute with the possible exception of the Tedesco case, which I've previously cited, studiously avoid discussion as to the scope or extent of the immunity granted referring to rely solely on the decision of this Court in Murdock against the United States. And as I've stated, the Government likewise below in the lower courts in applying this statute, followed the same position as the courts did. The position now being taken by the Justice Department on -- on this appeal that immunity is also granted from state prosecution is merely an attempt by the Justice Department to extend the doctrine of Ullmann. The Government confers on page 20 of its brief that in every case where Congress is acting in the exercise of federal power which in the present case involves taxation and the control of the importation of narcotics, that in such cases, Congress has the power to impose restrictions but it bar the States from exercising the powers reserved to them under the Tenth Amendment of the Constitution by -- by means of statutory enactment such as the present Act now under discussion. In support of this contention, the cases of Ullmann against the United States and Adams against Maryland are cited. I believe I've distinguished the Ullmann case in this argument while Adams against Maryland simplified, I think, to its basic extreme, involved in my opinion the question of the admissibility of certain compelled evidence in the state courts, not the question -- not the substantive question of immunity from prosecution. To follow the Government's position in support of an extension of the -- of the Ullmann doctrine to its logical conclusion would be, in my opinion, to sound the death knell to the -- to the rights and powers guaranteed to the States under the Tenth Amendment of the Constitution and would, in effect, be repealed of the said Tenth Amendment by judicial decision. Could anyone seriously argue that the Federal Government, in the exercise of a conceded federal power, take, for example, the power to levy the federal income tax, could anyone seriously argue that in the exercise of that power, that Congress could enact an immunity statute similar to the one now under discussion, granting witness's immunity for such state crimes such as murder, extortion, robbery and the like? As a matter of fact, that the Solicitor General reasonably argued that under the provisions of the particular statute now under discussion, that the Government could grant immunity for murder, extortion and robbery that might be disclosed in a narcotic investigation. Considering the vast expansion in recent years of the regulatory functions of various Federal Government agencies, wherein the Government -- where the Federal Government now regulates such diverse fields as taking of migratory game birds under Title 16, United States Code, Section 703, the regulation such as the branding of foods under the Federal Foods and Drug Act, such a theory is urged by the Government for extending the scope of the Ullmann decision, would leave the States with no powers of their own, say, of those granted or delegated to them by the Federal Government. It is respectfully submitted that the immunity provision of the Narcotic Control Act does not and cannot grant immunity from state prosecutions for violations of state narcotic laws.
Speaker: (Inaudible)
Allen S. Stim: Well, I have urged in my third point in this argument. I believe that I have urged the point that assuming that this Court, in rendering a decision in this case, does not -- does not particularly go along with the points raised in my first point, but however, in the event that this Court clarifies or -- clarifies the law from what it was at the time that the hearing and judgment were rendered that in that case that this judgment still must prevail and the matter must go back to the District Court for proceedings and conformity with the decision of this Court.
Speaker: (Inaudible)
Allen S. Stim: Well, I've cited some cases. I've cited New York cases and I believe that this Raleigh case, cited by the Solicitor General and its point is also -- is also in point there. In other words, in the Brea case, I think that was a New York State case, the conviction in that case was also affirmed by the court. The New York court, in rendering its decision, stated that it was improper conduct for -- that they prosecuted before the grand jury to -- and I think the statement in that case was improper conduct for the prosecutor to give a witness an incorrect idea of the -- of what the existence of the law was.
Speaker: (Inaudible)
Allen S. Stim: Well, the District Court -- the District Judge didn't -- did not do anything for the simple reason that the District Judge relied on what he considers controlling case law or the decision of this Court in the Murdock case.
Speaker: (Inaudible)
Allen S. Stim: Yes. In other words, the District Court --
Speaker: (Inaudible)
Allen S. Stim: That -- that's correct. The District Court didn't consider anything about state prosecution. In other words, they had no way of understanding what the correct status of the law themselves. As a matter of fact, my --
Felix Frankfurter: So that -- so that -- this -- this direction to testify would sustain on a broader ground to (Inaudible) it -- it can't be sustained on a narrow ground, is that it?
Allen S. Stim: Well, no. My position --
Felix Frankfurter: Is that your argument?
Allen S. Stim: My position is that that this man should be given a chance, given full knowledge of his rights there not to go up a blind alley.
Felix Frankfurter: Well, what is this 60-day provision?
Allen S. Stim: The 60-day provision --
Felix Frankfurter: Is that going on? Suppose this -- suppose this judgment is affirmed by this Court, what happens? Will he go to jail or (Voice Overlap) --
Allen S. Stim: The 60-day provision, this man goes to jail, Your Honor. I believe that the provision on that judgment is clear and unambiguous there. I'm just checking on what page it appears.
Felix Frankfurter: Let me check, 627. I supposed it's in (Voice Overlap) --
Allen S. Stim: In other words --
Felix Frankfurter: -- if there's a -- if there's a challenge to the validity of the duty to testify of the correct (Inaudible) that under the judgment of -- or testify, affirmed here would have been under what might be called legitimate challenge for the (Inaudible) law was concerned that the opportunity of purging remains when the case goes down below.
Allen S. Stim: Well, according to the expressed language in the judgment --
Felix Frankfurter: Well, I'm not talking about -- yes, I understand that but I'm speaking of what attack -- what my understanding of the practice. It is my judgment, it it's entered, requiring (Inaudible) and he raises not of privilege questions, in effect, in which this Court grants certiorari (Inaudible) that there is always, when it goes back, the judgment isn't automatically enforced but there's an opportunity for purging.
Allen S. Stim: Well, I've checked --
Felix Frankfurter: I may be wrong about that but let's assume that that's so.
Allen S. Stim: Well, if I assume that, I'm not assuming that I have --
Felix Frankfurter: Well, I'm assuming in my question, if you don't mind. Assume that that's so.
Allen S. Stim: Well --
Felix Frankfurter: It goes in back and has this opportunity in saying, "Oh, I didn't understand that I would have immunity." This protest -- your protest wasn't that we didn't have immunity in the statement, we'll now argue against it to this moment. Do you still say there's no power?
Allen S. Stim: Well, I may not protest down below, was that there was no immunity in this State that the statute --
Felix Frankfurter: Yes, but your protest goes beyond that, doesn't it?
Allen S. Stim: Yes.
Felix Frankfurter: Alright.
Allen S. Stim: Yes, Your Honor.
Felix Frankfurter: So that you didn't do something in reliance on a misruling by a court below.
Allen S. Stim: Well, apparently, Judge Dawson in -- in his opinion as cited in his opinion and in his judgment, puts us -- puts us in the predicament of relying on the language of the judgment and opinion. And according to the terms of both, Judge Dawson recognized that maybe Reina raised this procedural device down below where the hearing came up and all that in reliance or seeking to -- to obtain a judicial determination. But it -- it's quite obvious that Judge Dawson's opinion is that once he ruled in the matter, the judgment and the terms became final.
Felix Frankfurter: I understand that and for him, it is final but we got a system of appellate procedure by which the finality of a district judge is subject to challenge in the Court of Appeals and then subject to challenge here as you're now challenging.
Allen S. Stim: Well, the only --
Felix Frankfurter: My suggestion is that you didn't uphold -- you're not saying now, "Oh, well, if my client has known that he is protected against the use of materials in the state courts. Of course, he would've --
Allen S. Stim: Well --
Felix Frankfurter: -- he would've -- he would've answered the questions. Your position now is that he was entitled not to answer even if that's so, isn't it?
Allen S. Stim: Well, according to the rationale of this Court and I think Your Honors' decision in Knapp against Schweitzer, if my man would've done anything in the court below, it would've been just too bad for him. The only -- the only alternative that my man has of protecting his right is to refuse to testify and present the matter to the courts.
Felix Frankfurter: But the -- but you're entitled to in which (Inaudible) no implication in my questions -- questions there.
Allen S. Stim: Well, yes, you're not --
Felix Frankfurter: The question that is now raised is whether if the immunity statute is construed so as to protect you from use in relation to what was said in the state court, whether then, you are under -- you need to respond and you're challenging that on various grounds if you have the right.
Allen S. Stim: Yes, Your Honor.
Felix Frankfurter: So I'm suggesting that you're not here saying that you were mislead by the ground on which Judge Dawson went.
Allen S. Stim: Well, we were mislead to this effect that we were -- my petitioner was a layman and who was represented at the hearing. Had an order -- they have an -- there -- there is an order in this case, I think it appears, the order of Judge Weinfeld, where this man, a layman, is ordered subject to the provisions of Title 18, United States Code, Section 1406 as amended that Giacomo Reina -- and hereby is instructed to answer the questions propounded in before the grand jury and to testify and produce evidence with respect to such matters under inquiry before the grand jury. Now, I'd like to ask Your Honor to a mere layman, what would that mean? And then again, if -- as -- realizing that he is represented by an attorney at the hearing, how could the attorney give this layman any intelligent advice when the matter -- apparently, the matter is so confused or up in the air that it requires a final determination of this Court to settle the question?
Felix Frankfurter: Which is a good reason why he shouldn't go to jail without law. It is not a good reason for him now that he's shown no danger of going to jail, assuming all these will be cleared up in that opinion from still refusing to answer.
Allen S. Stim: Well, he was certainly -- the only thing that protected my man from going to jail was the fact that one of the Justices of this Court granted him bail.
Felix Frankfurter: Well, but that's --
Allen S. Stim: It is --
Felix Frankfurter: -- enough, isn't it?
Allen S. Stim: What?
Felix Frankfurter: That's enough.
Allen S. Stim: Well, it was so real and appreciable, the danger of his going to prison that the -- the Court of Appeals for the Second Circuit refused to continue him on bail, pending application for certiorari.
Felix Frankfurter: That's why you have opportunity to come to an ultimate court.
Hugo L. Black: (Inaudible)
Allen S. Stim: Yes, Your Honor.
Hugo L. Black: (Inaudible)
Allen S. Stim: Well, that would call on a rely -- on a ruling by this Court, not a statement by the Solicitor General that the immunity granted --
Hugo L. Black: (Inaudible)
Allen S. Stim: Well, in case you disagree on this, I'm urging my other points, my -- my second point, Your Honor.
John M. Harlan II: I understood the Government to say that they read the order as the meaning and the purge period will be -- begin to run in the times of judgment of this Court.
Allen S. Stim: Yes. Well, that's how they read the order, Your Honor. That's a little different from what the records shows though.
John M. Harlan II: Well, it --
Felix Frankfurter: Why do you resist something in your favor?
John M. Harlan II: (Voice Overlap)
Allen S. Stim: Well --
Hugo L. Black: (Inaudible)
Allen S. Stim: -- then I don't --
Hugo L. Black: I believe that you have the power (Inaudible)
Allen S. Stim: Yes, Your Honor. That's my point.
Felix Frankfurter: The Justice, in your opinion, requires that he'd be not required to answer. That's your position at the bar of this Court.
Allen S. Stim: That is my position at the present time, Your Honor.
Felix Frankfurter: Alright.
Allen S. Stim: My -- as I stated, the second part of that -- my -- my first point is that the immunity provision of the narcotic -- if this Court holds that the immunity provision of the Narcotic Control Act grants immunity from federal prosecution only and does not grant immunity from prosecution by the States for violations of state laws, and I believe that this is the only logical construction consistent with the Constitution, that in this event, that this Court should overrule its earlier decision in United States against Murdock. The case relied on by the courts below and adjudging this petitioner to be in contempt of court for refusal to testify pursuant to Title 18 of the United States Code, Section 1406. The Murdock case decided by this Court in 1931 did not involve an immunity statute but involved a prosecution of the taxpayer, Murdock, for his refusal to testimony -- to give testimony and to supply information for the Bureau of Internal Revenue for deductions claimed in his 1927 or 1928 federal income tax returns, for moneys allegedly paid to other persons. This was an indictable misdemeanor under the then Title 26 of the United States Code, Section 1265 and 1114. Murdock interposed a special plea to this indictment that if the questions he answered -- that -- that he answered the various questions propounded to him before the Bureau of Internal Revenue that he would've been compelled to become a witness against himself and caused to be subject to prosecution for violations of various laws of the United States. The fact was that at the time Murdock invoked his privilege against self-incrimination before the Bureau of Internal Revenue, his counsel stated that Murdock had in mind violations of the state law, not of the federal laws. This Court, in 284 U.S. 141, set aside the special plea holding that investigations for federal purposes may not be prevented by matters dependent on state laws. This holding was construed by this Court the second time Murdock came before it, 290 U.S. 389, as definitely settling for the first time the proposition of law that one under examination in a federal tribunal may not refuse to answer on account of probable incrimination under the state law. The Murdock case, as Your Honors are well aware, has been severely criticized as being an erroneous interpretation of the English common law as being inconsistent with prior decisions of this Court and as being destructive of the privilege against self-incrimination guaranteed under the Fifth Amendment of the Constitution of the United States. I agree with these criticisms and in my opinion, the Murdock case was an unfortunate decision in the field of constitutional law. In the Murdock case, this Court adopted what it called the English rule that the common law of privilege exempting witnesses from answering questions that would tend to incriminate them does not protect them against disclosing offenses and violation of the laws of the foreign country. As I have set forth in point 1 (b) of my brief, first, there is no such English rule as was enunciated by this Court in Murdock. And secondly, in this country, the respective States which had domestic jurisdictions within the -- within the territorial limits of the jurisdiction of the United States, do not quite fit the term in other country as was used in the English cases. Two English cases that were cited in Murdock are Two Sicilies against Willcox and Regina against Boyes. These cases are cited and discussed on pages 21 and 22 of my brief. And to take some mere reading of them to show that they do not stand for any such rule of law set forth in Murdock, Two Sicilies, which was decided in the year 1850, involved -- involved the claim of privilege in both by a witness at a trial and a discovery proceeding in an English court where the witnesses, who were agents of a revolutionary government in Sicily, claimed before the English court that if they were required to testify that their answers might subject them to the penal laws of Sicily. The English court rejected this claim of privilege and after first stating its ignorance of Sicilian law and the fact that the English court had enough of a problem understanding the law of its own jurisdiction without being expected to understand the lower foreign jurisdictions, the court went on to state in that case, in its decision, "It is to be observed that in such a case, in order to make the disclosures dangerous to the party who objects, it is essential that he should first quit the protection of our laws and willfully go within the jurisdiction of the laws he has violated." I don't think it takes any extended discussion to differentiate the Two Sicilies case from the problem that this petitioner faces. The other English case cited, Regina against Boyes states what I consider as the correct rule as to the extent of the privilege against self-incrimination. Regina against Boyes, decided in 1861, involved a claim of privilege invoked by a witness at a trial and at a -- an election bribery case. Despite the fact that at the trial, the witness was offered and he accepted a pardon, a royal pardon under the great seal. Despite the offer and acceptance of the pardon, this witness persisted in his claim of privilege stating that despite the pardon, he was still subject to possible impeachment by commons which was not covered by the pardon and that therefore, he should be entitled to invoke his privilege. King's Bench, in ruling against the claim of privilege stated, and I quote, "Further than this, we are of the opinion that the danger to be apprehended must be real and appreciable with reference to the ordinary operation of law in the ordinary course of things, not a danger of an imaginary and unsubstantial character having reference to some extraordinary and fairly possible contingency so improbable that no reasonable man would separate to influence his conduct." The court further stated, "But it would be to convert to a salutary protection into a means of abuse if it would be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to ends of justice." In Regina against Boyes, the Court ruled against the privilege -- claim of privilege stating that the witness's fear of impeachment despite the pardon was in its words, ridiculous and unreasonable as any impeachment of the witness would be contrary to custom and to law. Both of the aforementioned cases and subsequent English cases turn on the question of the danger of the witness, was it real and appreciable? If the fear was unrealistic or imaginary, the claim of privilege was denied. If it was recognized by the Court as reasonable or realistic, it was recognized. That -- such is the rule of the English cases and has been in the past and still is as amply demonstrated by the cases of East India Company against Campbell, 1 Ves. sen. 267, 27 Eng. Rep. 1010, United States of America against McRae, L.R. 4 Eq. 327, decided in 1867 and affirmed by the Court of Appeals, L. R. Ch. 79 in the year 1867. The United States of America against McRae, which was an English case, decided subsequent to the decisions in Two Sicilies against Willcox and Regina against Boyes, the claim of privilege or the privilege against self-incrimination was recognized by the English court despite the fact that the fines, forfeitures and penalties were under the laws of the United States, a jurisdiction far into that of the English court. This law -- that this rule is still the law of England and the test being that whether the danger was real and appreciable, I referred the Court to Ex parte Reynolds, 20 Ch. D. 294, where the rule was reaffirmed and restated. The Murdock case cited as further authority for its holding, prior decisions of this Court. These prior decisions are cited in Murdock, has authority to sustain the proposition set forth in that case. The case of Counselman against Hitchcock, 142 U.S. 4 -- 547, which is an old standby and is now one book law and decided both pro and con in all -- in all litigation involving the construction of immunity legislation, does not stand for any such proposition as enunciated in Murdock. In that case which involved the constitutionality of the old Interstate Commerce Act with regard to its provision for the compulsion of testimony, no question was raised as the applicability of the Act to state jurisdictions. The Court, in that landmark decision, only stated what has now become the established rule that a statue which leaves a party or witness subject to prosecution after he answers the criminating questions put to him and that's the plan, the privilege conferred by the Constitution of the United States. The other cases cited in United States against Murdock, which touched on the issue involved, likewise apply the test of whether or not the danger to the witness was real and -- and appreciable. Brown against Walker, 161 U.S. 591, the case cited in United States against Murdock and it successors, had the original authority for the Murdock rule, dealt with the amended Interstate Commerce Act toward the Act of February 11th, 1893 which was the successor to the Act struck down by this Court in Counselman against Hitchcock. The Act of February 11th, 1893 substantially provided as follows." That no person shall be subject to penalty or forfeiture for or on account of any transaction matter or thing concerning which he might testify in obedience to a subpoena or order." This provision was held by the majority opinion of the Court in Brown against Walker, which was a 5-to-4 decision, as being that the criminality was removed by statute that the immunity granted was coextensive with the privilege that it sought to replace. Well, this majority opinion inferred that the immunity granted in the federal act was operative also in the state jurisdictions for crimes committed in those jurisdictions under the supreme law of the land clause. A careful reading of this majority opinion, discloses that the majority of the justices deciding that case went on the test set forth by the old English cases. The test of the reality or the danger of be -- of the -- to the witness being real and appreciable. The minority opinion in that case by Mr. Justice Shiras did not consider the possibility of state prosecution as being a fear unsubstantial and remote and held that the statute was thus in conflict with the Fifth Amendment of the Constitution of the United States. This minority opinion also asserted that as Congress cannot create state courts nor denounce penalties for crimes or offenses against the States, so it cannot proscribe rules for proceedings in state courts and that therefore, the Act in question could not apply to the States. In Hale against Henkel, 201 U.S. 43, which involved the proceeding under the Sherman Antitrust Act and likewise involved an immunity statute, this Court disposed of the witness' claim in that case of probable incrimination under state law as being -- following the language of the English cases as being to one substantial and remote to impair legal immunity, citing Brown against Walker and Jack against Kansas. Jack against Kansas, which involved the converse of the present case, a refusal of the witness to testify pursuant to a state immunity statute on the claim that the statute which involved the fixing of coal prices might -- did not confer immunity from state -- from federal prosecution and therefore, violated his rights under the Fifth and Fourteenth Amendments of the Constitution. In that case, this Court while stating that it thought that legal immunity is in regard to prosecutions in the same jurisdiction where the immunity is granted suffices, the Court based its decision on -- in that case on the fact that it considered the alleged fear of the witness of federal prosecution under the federal antitrust act as being too unsubstantial and remote to seriously consider. As proof -- as proof that this Court used the test of reasonableness or reality of the witness's apprehension of prosecution in the aforementioned case -- cases, I cite Bollman against Fagan, which was decided by this Court and by the same bench that decided the previous cases of Jack against Kansas and Hale against Henkel. In Bollman against Fagan, which did not involve an immunity statute, the witness on being summoned before a federal grand jury, pursuant to an investigation I understand as the criminal liability of an employee in a national bank where certain funds were missing, the witness on being summoned to appear before the grand jury pursuant to subpoena to produce certain records, invoked the Fifth Amendment before said grand jury using the following language." I decline to answer the questions contained in the said order of April 8th, 1905 on the ground that it might tend to criminate me and in this connection, I produced a copy of a petition filed against me and others by a manual up in (Inaudible) in the Court of Common Pleas of Hamilton County. And I state that there are many other actions of the same kind pending against me. This petition referred to by the witness Bollman charged him and others with a scheme of gambling known as bucket shop in Ohio, which was criminal conduct in Ohio. In Bollman against Fagan, this Court, in citing the earlier opinion of Mr. Chief Justice Marshall in 1820, in United States versus Saline Bank wherein the -- this Court at that time, held that the privilege against self-incrimination exonerated from disclosing offenses in violation of the law -- state law of this -- law of the State of Virginia. This Court in Bollman against Fagan followed the rationale of Judge Marshall's decision and held that Bollman was exonerated under his claim of privilege from disclosures that would've exposed him to penalties under the state laws and is respectfully submitted that all of the aforementioned decisions of this Court up until Murdock against the United States are consistent and that they apply the rules set forth in the English cases, which apply the test of the danger to the witness being real and appreciable. It was only commencing with Murdock against the United States and it successors, Feldman against the United States and Knapp against Schweitzer, that this Court, in deciding the applicability of the constitutional privilege against self-incrimination has abandoned what I considered the tried and true rule of the English cases. That this petitioner would face the threat of a probable state prosecution for violations of state narcotic laws for facts adduced before a federal grand jury or to the federal authorities as a fact that this Court can take judicial notice of. Title 21 of the United States Code, Section 198 which is not cited in my brief, but is cited by the Solicitor General on page 26 of his brief, provides that federal authority shall cooperate with the States in the suppression of the abuse of use of narcotics to the extent that the Federal Government shall, and I quote, "Substantially arranged for the exchange of narcotic information for the use of said information in prosecutions in federal and state courts." I should -- as a further example of the firm basis of this petitioner's fear that if he's compelled to give testimony in this proceeding that the testimony will be used against him in a -- by the State, I cite the registration of the Mann Act, Title 18, United States Code, Section 2424 (b), which provision is also set forth in my opponent's brief. I cited the Mann Act that the registration provision as being a fact that Congress recognized its limited authority in fields which are strictly as violations of the law under the State. My opponent, the Solicitor General, on page 27 of his brief, Footnote 10, cites this Act as showing a congressional intent to make such harboring as mentioned in the Act, practically impossible by making the federal registrations available to state authorities, the use in state prosecutions. It is only reasonable to believe that the -- that a similar intent is behind the enactment and application of the statute now under discussion. I have also cited that conflict between the States that follow the Michigan rule and -- and this Court in the Murdock decision. I likewise cited various decisions of the lower court such as Marcello against the United States, United States against DeCarlo and the like, which decisions, although came lip service to Murdock, ignore it in practice. I respectfully submit that the judgments -- that the judgment of conviction should be reversed with directions to the lower court that the Government's motion to punish for contempt should be denied.
Earl Warren: Mr. Davis.
Oscar H. Davis: Mr. Chief Justice, may it please the Court. Turning first to the question of the 60-day purge period, I would like to say first that we do construe that provision of the judgment as running not only from the day of the District Court's judgment but from the day of an affirmance by this Court, if this Court should affirm and the return of the mandate. And the reason why we construe the purge period that way, is the District Court explicitly said, it's on page 34 of the record, that the reason he put in a purge period was that he thought that the petitioner might be raising this issue of law and order to get a decision and he thought it was fair for the petitioner to do that. And we think it's consonant with that understanding that the petitioner should have the right to exhaust his appellate remedies through the Court of Appeals and this Court. Also, we think that the same purge appear -- period provision should be construed in the light of Rule 35 of the Federal Rules of Criminal Procedure which say that when a case comes back from this Court, after the affirmance of a -- of a conviction within 60 days, that's the period, the petitioner, the -- the defendant can go before the District Judge and ask for a reduction or change in the sentence. And so that is why, Mr. Justice Black, we ask for the affirmance of the conviction because we construe the purge period as not having elapsed, this counsel said, but is going in the future. But I would also like to bring this to the attention of the Court. If there should be any doubt or if the Court should not feel that its construction adoption of our construction in the opinion should be sufficient and that you want to go further, this is a contempt case. And in contempt cases, the Court has exerted a power over sentences that it does not have in the ordinary criminal case. So there would be nothing improper, it would be in accordance with the Court's decisions. If it should feel it appropriate, we do not feel it would be necessary but it's open to the Court if it should feel it appropriate to change the purge period of the sentence by providing that the 60-day shall run explicitly from the return of the mandate to the District Court. So there would be no question then that in -- in that -- on that -- when the case goes back to the District Court that the -- that the petitioner will be advised if, as we submit, the Court should hold that the provision -- the immunity provision of the 1956 statute covers both state and federal prosecution. At that time, the petitioner will be fully advised and he will have the opportunity to answer the questions under the advice given, most authoritatively, by this Court. I think, I should also take the opportunity to point out explicitly because there were some intimations to the contrary that we do not read the record as in any way indicating that this petitioner was misled either by the Government or by the trial court. He never asked the trial court to -- to told whether or not this provision covered state prosecution. As counsel very, I think, very deliberately withheld questions of the trial court. The trial court never took the position. He didn't explicitly say, "No, it doesn't cover state prosecutions." What he said was, "It is necessary that it covers state prosecutions," because under the Murdock decision, this -- the -- the statute would be perfectly valid even if it covered only federal prosecutions. And of course, this -- this petitioner had counsel with him, who could advice him just as -- as well as any other lawyer. Now, also on appeal, the statement has been made that the Government argued that this did not cover state prosecutions. I would like to be a little more explicit and perhaps a little more precise as to what the Government's position has been generally under this statute in the lower courts. We -- I don't believe that it ever taken the position that it does not cover state prosecutions. We have generally said that we think it does. But in the lower courts, we have said that it doesn't have to cover state prosecutions because under the Murdock rule, it wasn't necessary. The -- the federal courts, on the whole, have adopted that position that is most of them have said even the Sixth Circuit in the Tedesco case which thought that there was doubt as to the power of Congress to extend immunity of the state prosecutions, said it had no doubt that the statute purported or Congress intended to cover state prosecution. And that was also true by -- of an opinion of Judge Bryan, Judge Frederick van Pelt Bryan in the Pagano case and some other cases. And in this case, though the Government's brief on appeal which I have here in the Court of Appeals did argue quite strenuously that under Murdock, the -- it was unnecessary to cover state prosecutions. It did contain this paragraph which I should like to read to the Court. “If Congress has the power, immunity from both federal and state prosecution should be granted under the Narcotic Control Act, if it does not," that is if Congress does not have the power, "then the statute should be held constitutional by a construction limiting it to federal prosecution." So I think accurately that position of the Government has never been that it does not cover state prosecutions but merely that it was unnecessary to go into that problem. Now --
William J. Brennan, Jr.: Well, are you going to argue, Mr. Davis, that the Federal Government does have the power --
Oscar H. Davis: Oh, yes.
William J. Brennan, Jr.: -- to grant immunity --
Oscar H. Davis: Yes.
William J. Brennan, Jr.: (Inaudible)
Oscar H. Davis: Oh, yes. Our position is that the -- that the statute does grant the immunity and that that Congress does have the power. And I will only argue, if some members of the Court would like me to, that if it -- that on the assumption that the statute does not grant immunity over state prosecution or cannot, that the rule of the Murdock case should be contended.
Speaker: (Inaudible)
Oscar H. Davis: No, Mr. Justice. He was asked -- the questions -- all the questions appear on pages 2 to 7 of this record. And they were not questions of the type, are you guilty or not guilty or did you commit the offense? I will concede that the general transactions on which he was asked about, were, in part at least, related to the offense which -- for which he was convicted. That is their -- he was convicted along with several others of a --
Tom C. Clark: (Inaudible)
Oscar H. Davis: That's -- that's right.
Tom C. Clark: (Inaudible)
Oscar H. Davis: Without -- without --
Tom C. Clark: (Inaudible)
Oscar H. Davis: That's right. He -- he did not take the stand of trials, I understand that the conspiracy draw. It was a conspiracy to violate the provisions of the narcotics law including the provisions which prohibit the unlawful importation of narcotics into this country. And as appears from the opinion of Judge Learned Hand in the Second Circuit in 242 F.2d, there was apparently a large scale conspiracy to import into this country, unlawfully large amounts of narcotics. And there was a continuous going back and forth to Europe in order to bring narcotics into this country to France and Italy and other places. And this defendant was -- was charged with conspiracy to commit that offense and he was convicted. And he appealed to the Second Circuit. That conviction was affirmed. Another defendant sought certiorari here but this defendant did not. Now --
Hugo L. Black: (Inaudible)
Oscar H. Davis: Well, he's already served.He's already served that sentence.
Hugo L. Black: He served it all?
Oscar H. Davis: He served it all and he's -- he's come out.
Hugo L. Black: He's out.
Oscar H. Davis: He's out. And this is a wholly separate question as to whether --
Hugo L. Black: This would be (Inaudible)
Oscar H. Davis: He has served that sentence and he is now out on that.
Hugo L. Black: (Inaudible)
Oscar H. Davis: The reason that Government, Mr. Justice Black, is interested in going ahead is I think, quite obvious on this record. This was a large scale conspiracy in which there are a lot of people involved. The Government had gotten knowledge of only a few of those. It was very anxious to -- to stop it, to prevent the importation of this enormous amount of -- of narcotics into the country. The one way it felt that it could -- it could discover the sources of this ring in this conspiracy was to ask somebody who knew something about it which petitioner was thought to be.
Hugo L. Black: That was served all to (Inaudible)
Oscar H. Davis: Yes, yes, sir.
Hugo L. Black: (Inaudible)
Oscar H. Davis: Oh, well, I think, he did have time of the behavior as all -- as all --
Hugo L. Black: (Inaudible)
Oscar H. Davis: I -- I don't -- I think now Mr. Stim will be able to tell you. I think that his time has fully elapsed by now. I don't know -- I don't think -- he -- when he was called before the District Judge on this proceeding, present proceeding, he, of course, was still in prison at that time. He --
Earl Warren: (Inaudible)
Allen S. Stim: Well, from the facts, Your Honor, I understand my belief, I think it was about November 29th of last year, the -- the petitioner completed the conspiracy sentence that he was then serving. At the time though that this proceeding took place and at the time of entry of judgment, I believe that he had -- it was February 2nd, 1959 until -- until November 28th, 1960. He would remain in prison serving the earlier sentence.
Earl Warren: (Inaudible)
Allen S. Stim: He has been unable to pay the fine (Inaudible)
Earl Warren: (Inaudible)
Allen S. Stim: I mean he -- I understand, he had to (Inaudible) some oath, to serve 30 additional days in prison regarding the (Inaudible)
Earl Warren: You may --
Oscar H. Davis: As this case stands here now, I don't think it -- it's legally significant as this case stands here now. He has completed the service of his conspiracy sentence and the only question is, whether he can be compelled under the grant of immunity which Congress has given him to answer these questions which the Government feels are necessary in order to discover the sources of this -- or to help discover the sources of a -- of a large illicit narcotics ring importing illegal contraband into the country.
Earl Warren: Well, Mr. Davis, these plaintiffs knew (Inaudible)
Oscar H. Davis: Oh, yes. I --
Earl Warren: (Inaudible)
Oscar H. Davis: I -- I wouldn't -- I --
Earl Warren: It's not the whole thing but the (Inaudible)
Oscar H. Davis: Yes. I would -- I would say that, the only thing I would say is that I think, I can't tell of course, but I think it goes beyond that. It isn't only just the -- the crime that he committed but it's even aspects of -- of what is believed to be the -- the ring which were not parts or charged in the -- in the original indictment of conspiracy.
Earl Warren: May I ask you a question, Mr. Davis, do you make any (Inaudible) between the question is about the narcotics (Inaudible) which are in no sense involved (Inaudible) for which he is convicted on the one hand and on the other, is making him testify concerning (Inaudible)
Oscar H. Davis: No, Mr. Chief Justice.
Earl Warren: (Inaudible)
Oscar H. Davis: No, no distinction. We think the purpose of Congress was to be -- was to get information to enable the Government to enforce the narcotics legislation, federal narcotics legislation more effectively. And one of the -- the people from whom this information can be obtained are, of course, people who are conspirators who were parts of a -- of a ring or a conspiracy. And so long as this -- as the defendant cannot be prosecuted again either by the Federal Government or the State Government on basis of -- of what he testifies to under the immunity, that is he cannot be prosecuted --
Felix Frankfurter: In relation to the matter it's about (Voice Overlap) --
Oscar H. Davis: In a relation to the matters, yes, Mr. Justice, you're right.
Earl Warren: In other words, the man has been convicted for the first term of the year, (Inaudible) he can then be compelled due to his testimony which (Inaudible) or which perhaps might cause him death because of the -- of what he said about the people of the narcotics (Inaudible) or go back to prison to serve another sentence (Inaudible).
Oscar H. Davis: Well, in this case, Mr. Chief Justice, there is no excuse. He did not give the excuse that he would be subject to -- to attack or so or death. He gave no excuse. He --
Earl Warren: (Inaudible)
Oscar H. Davis: Well --
Earl Warren: (Inaudible)
Oscar H. Davis: Other defendants have that's why I said --
Earl Warren: Yes.
Oscar H. Davis: -- but this defendant did not --
Earl Warren: Yes.
Oscar H. Davis: -- and so --
Earl Warren: Well, I -- I wonder if that -- that (Inaudible)
Oscar H. Davis: Well --
Earl Warren: (Inaudible)
Oscar H. Davis: Mr. Chief Justice, he may have served his given -- paid his debt to society insofar as a violation of the criminal law was concerned. But he has not paid the obligation he owes to the society in which all citizens owe of giving information to the public officials if they, themselves, if the person who gives the information is not going to be subject to incrimination for at least two centuries since Lord Hartwood's Day (ph) it has been said that every citizen owes to the public the giving of information with respect to possible criminality. This privilege against self -- self-incrimination stands against that obligation where the man himself will be incriminated. But where that is removed and he will not be incriminated, the obligation to give evidence remains and this man, though has fulfilled the obligation with so far -- insofar as having committed a crime is concerned, has not fulfilled the obligation insofar as giving information is concerned. Now, --
Earl Warren: Were there any -- are there any (Inaudible)
Oscar H. Davis: You mean where -- where man has been called up after he's been convicted of --
Earl Warren: (Inaudible)
Oscar H. Davis: Frankly --
Earl Warren: (Voice Overlap) --
Oscar H. Davis: -- frankly, I -- I don't know, Mr. Chief Justice, because this -- this is a problem that has not been adverted to by the courts that is -- as far as I -- I've seen in my reading, no court has made any distinction between whether the man has already served his sentence, already -- already been convicted or whether he's called up before he's been prosecuted. There had been many discussions about this matter but this particular distinction, I have not seen in any of the -- in any of the opinions that is as between a man who has served his sentence and a man who -- who was not (Inaudible).