Earl Warren: Number 122, Armando Piemonte, Petitioner, versus United States. Mr. Lewis.
Melvin B.lewis: Mr. Chief Justice, may it please the Court. This matter comes on -- on petition for certiorari to the -- and on the grant of that petition, the writ of certiorari issuing to the Court of Appeals for the Seventh Circuit. We here invoked the general supervisory powers vested in Your Honors and hope likewise to be able to demonstrate to Your Honors a very serious constitutional deficiency in the proceedings below, which we trust will merit Your Honors' consideration. At the inception of the litigation in about August of 1959, the petitioner, Armando Piemonte, was in federal custody serving a six-year sentence for the sale of narcotics. He was brought in from his place of confinement where he was lodged pursuant to final mittimus. The proceedings consequent upon his being brought in, have to be somewhat interpolated from the record, but are, nonetheless, I think, quite plain. Giving them chronologically, he had a conference with the prosecutor who had caused him to be brought there, a special attorney of the Department of Justice, special agent, I believe, he's referred to some places in the record. He asked to the prosecutor that he'd be allowed to call a lawyer. The lawyer was indeed called and the -- and he -- as -- the lawyer spoke with the prosecutor who arranged for him to see the defendant. There was a conference between the defendant and his lawyer following which the defendant, then theoretically a witness, was called before the grand jury as a -- as a witness. He claimed self-incrimination as to the various questions propounded to him, which, I think, painted broadly, could be said to deal with the general subject of narcotics. The prosecutor engaged in a colloquy at that time with the defendant in which he intimated -- read it strongly to the defendant that there was no area of privilege with reference to his being asked where he had obtained the narcotics for whose sale he was then serving a sentence. The defendant said something to the effect that he hadn't understood everything that his lawyer had told him, but that -- well, I think to quote him directly, “I ain't answering no questions," or words to that effect. He, thereupon, persisted in his refusal and was brought back before the Court. In the proceedings before the Court, which occurred some days subsequent to his grand jury appearance, the lawyer, whose identity was, of course, known to the prosecutor, who -- and who had, in fact, spoken with the prosecutor on a prior occasion, was not called or notified so far as the record discloses. The defendant was brought before the Court and they -- there held a hearing in which he was not represented. The prosecutor at this time advised the Court that lest there should be any questions, he was desirous that the Court should know that based upon some recent decisions of the appellate court, as he phrased it, he now felt that the petitioner's constitutional claim of privilege was proper as to all questions propounded to him, including those relating to the prior conviction. The Court, in his response, expressed doubt as to whether the constitutional immunity would apply in that aspect but agreed that as to all the remaining questions, the constitutional claim of privilege was indeed proper. The Court, thereupon, advised the defendant that in -- herewith, granted him immunity, that it was, therefore, no longer necessary for him to claim possible self-incrimination and it directed that he be required to answer the questions. I would've -- I would like to depart from my factual presentation to urge the Court at this particular time so that the rest of the statements would be framed in their proper context, that there never was a direction to the defendant at any stage that he answer any specific question. He was told rather to answer -- the -- the most frequently recurring phrase is, "Answer the questions propounded to you". And I think it could be argued equally well on the face of this record that he was ordered to answer such questions as might in the future be propounded to him or such questions as might, in the past, have been propounded to him. The significance of the distinction there is something that I will come to later, but I think at this point, I think it is not inappropriate to observe to Your Honors that the point never did come where the petitioner was told, "Answer this specific question," by the Court. Now, Piemonte, at this time, the -- the petitioner when he -- when the Court told him that he was granted immunity, that he no longer had to worry about self-incrimination and that he ought, therefore, answer questions. He asked if he might be permitted to talk to his lawyer and the Court said that indeed, he could, and that the grand jury should not further interrogate the petitioner until he had seen his lawyer and the Court further observed that the petitioner would be represented by counsel and upon hearing held prior to the imposition of any penalty. However, at this time, the -- I -- I don't believe that there could be any possible tenable theory by which the defendant was, in fact, in contempt at this stage. The next procedural development was the entry of a written order. The written order is not shown to have been brought to the petitioner's attention in any manner. I think I may fairly state to this Court that all of the record inferences are against it, but we needn't go that far because of the fact that the -- the burden, I think, being concededly upon the prosecution to sustain all elements of criminal contempt in this way. The least we can say is that there is no showing that, in fact, it was brought to his attention. The order does -- again, this written order does not direct answers to specific questions but rather states that the defendant, and I believe, I'm fairly well quoting it, that the defendant shall not be excused from testifying on the grounds that his testimony or any evidence presented by him, may tend to incriminate him but that he shall answer the questions propounded to him, again, the recurring phrase. The defendant was then brought back before the grand jury, and he was reminded that the -- by the prosecutor that the judge had -- as the prosecutor phrased it, "Granted you immunity and ordered you to answer questions in," -- generally, I think the prosecutor's phrase was concerning narcotics. The response of the -- the petitioner was, "I stand on the Fifth Amendment." And the prosecutor said, "Well, he's going to go ahead anyhow," and asked the questions on which the privilege had been claimed and repeats them to the petitioner. And he proceeded -- substantially to do that, he added, for the first time in the second grand jury presentations, questions concerning two persons, Nathaniel Spurlock and Jeremiah Pullings. Pullings will appear later in the presentation as a codefendant with the petitioner on the indictment subsequently returned against the petitioner by that same grand jury. The petitioner stood by his refusal to answer questions. A rule to show cause was entered against him. His lawyer was present. He persisted in his refusal to answer questions. He asked the -- where jury to demand was refused, the hearing -- and the hearing was held on the rule. The Government rested on the transcript in the case. The defendant testified that the basis for his refusal to answer questions that the -- the real reason why he wouldn't answer was fear of underworld retaliation. And after some colloquy between the Court and prosecuting counsel as to whether or not, six months were the maximum permissive sentence, he was sentenced to a period of 18 months on the assurance of the special agent for the Department of Justice that he had himself been party to proceedings wherein sentences of that nature had, in the past, been approved. On August 27th, some nine days following the sentence, the petitioner filed his notice of appeal. Five or six days after the filing of the notice of appeal, there was return of an indictment by the same grand jury before which he had declined to testify The indictment charged the petitioner here and the gentleman, Pullings, who, I mentioned before, I used the term "gentleman" not in an analytic sense, but rather I -- I don't know the man, and it seems in -- in problems that I should do otherwise. The indictment was returned. It was subsequently tried and the Government has filed a supplemental memorandum in this case in which it indicates that the -- that the petitioner here was found not guilty on that trial. I suppose that the Government will probably explain to the Court what the relevance of the not guilty is, but we have certain submissions to make predicated upon the indictment itself. Now, we complained to Your Honors first and -- and addressed ourselves to you Your Honors' general supervisory power and suggest that the summary nature of these proceedings, the speed, the mechanical nature of the processing, almost as though they were -- were gears grinding through the -- the courtroom was of such a nature that it really will not support the contempt adjudication that was predicated on -- on it. I would remind Your Honors that the defendant was hold from the penitentiary to the courthouse that he was given a -- a hearing at which no lawyer was present, even though the identity of his lawyer was known to the prosecutor. The issue of the confusion relative to the prior conviction can only have served to convince the defendants that he was as well of keeping his own counsel as that of the persons who undertook to advise him both at his request and -- at -- those who undertook to advise him sua sponte, so to speak, and certainly with unsolicited advice. In that area, I -- I would like to make myself clear particularly in view of ceratin language contained in the Piemonte -- pardon me, in the -- in the Reina decision recently issued by this Court. Giacomo Reina, I believe, is the name of the case. In that case, a question arose as to whether immunity would properly extend to questions relating to the prior conviction of a defendant called before a grand jury. There is -- as Your Honors there indicated, very waivy authority to the proposition that there is no immunity in that specific area. But that is -- that is something of no application to this particular case. In Reina, as I read the decision, the defendant would have been convicted, I believe, of the sale of narcotics. He was asked essentially something to the effect of to whom he had sold it, a matter directly related to the conviction and encompass completely therein. There, the -- the question of whether he had any immunity remaining as to that aspect of the thing is quite beside the point here. For here, the petitioner was asked something vastly different. He was asked where he had obtained the heroin for whose sale. He had thereafter been convicted. The purchase of the heroin, the -- it -- and its subsequent possession and so forth, presents offenses quite distinct from the sale of it. And offenses which might well have been punished by cumulative sentencing. So that I submit to Your Honors that being convicted of sale does not deprive a man of any constitutional immunity that he otherwise possesses relative to his acquisition of that heroin for which he can be quite separately and additionally punished.
Charles E. Whittaker: Was there some defect in the grant of immunity?
Melvin B.lewis: Indeed there was. Indeed --
Charles E. Whittaker: (Inaudible)
Melvin B.lewis: Indeed there was, Your Honor, in our review. The -- in fact, we would submit to Your Honor that -- and to the Court that the question is not really whether there -- so much whether there was a -- a defect in the grant of immunity. I believe firmly that there was. But rather whether the proceedings below where characterized by such procedural regularity as to support a contempt adjudication. In other words, we -- we would urge, Mr. Justice Whittaker, that it -- it need not necessarily be one or the other. The -- the proceedings -- it just doesn't follow as an ironclad rule that if the proceedings are sufficiently regular to have conferred immunity at a subsequent stage, they are necessarily sufficiently regular to support a contempt adjudication. That surely there is a -- a shadow area where giving the benefit to the defendant under the -- such a statute. He might very well be held subsequently to have been giving immunity, but yet, the proceedings sufficiently irregular as not to support a contempt adjudication. We submit -- we suggest to Your Honors here though, with reference to this --
John M. Harlan II: What is the shadow?
Melvin B.lewis: Pardon me.
John M. Harlan II: What is the shadow that you're on?
Melvin B.lewis: I allude Your -- Your Honor to this. The statute requires, in order that a grant of immunity be consequent upon one's appearance before a grand jury or a court, the following steps. First, the witness, as he is termed at that point, the -- the witness must be -- must receive -- there must be propounded to him one or more questions which he refuses to answer on the grounds that his testimony may tend to incriminate him. Secondly, sir, he must be brought before the Court and such one or more questions, as the Court of Appeals he ought properly to answer, are then certified as questions which he must answer. Upon his answering those questions, he acquires immunity, once that procedure is followed. Now, of course, it requires certain ancillary procedure as well. There must be a proper petition presented by the prosecution and the -- the court must make certain basic findings. But I submit to Your Honor that the immunity statute, as written, will not support a general direction to a defendant to answer questions, just go answer questions. This is the one thing that cannot, I think, properly be tolerated under a statute. And the reason for my saying that, if it please Your Honors, is that where a defendant is called upon subsequently to assert his immunity, acquired in the course of these proceedings, as against a subsequent indictment of one sort or another, it -- it necessarily be -- divulge upon him as a burden to show that the immunity, in fact, attached in pursuance of the statute which we are here contemplating. In order that he might show this, it must be necessary that he be prepared to show that he was directed to answer a certain specific question relating to the subject matter of his subsequent indictment. He must also, I suppose, show how -- what the connection is, and there's really quite a substantial burden imposed upon him in that area. But it's a -- it's a burden which, however -- however, the light it maybe attached --
William J. Brennan, Jr.: I'm sorry, Mr. Lewis, but I don't follow you. What is it that you say is a prerequisite before there may be a grant of immunity that there must be some questions asked to him which he does what? He must answer them before?
Melvin B.lewis: No, Your -- oh, yes, yes. The answering of the question is a condition precedent to the grant of immunity, if the Court please.
William J. Brennan, Jr.: I don't follow this. You mean -- let's see. Before the grand jury, and he's taken the privilege --
Melvin B.lewis: Yes, sir.
William J. Brennan, Jr.: -- he comes back before the court --
Melvin B.lewis: Yes, sir.
William J. Brennan, Jr.: -- and the court repeats the questions, he refuses to answer them, isn't that stage that an order of immunity, is that it?
Melvin B.lewis: No, Your Honor. The order which is entered at that stage provides that immunity shall be consequent upon any answer given to -- by him to -- to that question in the proper forum. I wonder if that explains it somewhat better if I might divert from Mr. Justice Harlan's question just long any enough to -- to answer it.
William J. Brennan, Jr.: I didn't think I'm in the verdict. I thought I was in the same area.(Voice Overlap) --
Melvin B.lewis: Well, you are, Your -- Your Honor, very substantially. The immunity does not attach until the witness testifies. Until he actually answers a question, he acquires no immunity whatever under this statute. The only purpose, the function served by the court's order is to energize the immunity statute in such manner that his answers to the questions which he is directed to answer will confer immunity.
William J. Brennan, Jr.: Well, wasn't there a form of order entered here by Judge Campbell?
Melvin B.lewis: There was indeed, Your Honor.
William J. Brennan, Jr.: And what -- what page is that at?
Melvin B.lewis: If the Court will indulge me for a second, Judge Campbell entered two orders, but the order directing that the -- that the defendant answer questions appears at page 12 and 13 of the record, if it please the Court.
William J. Brennan, Jr.: Now, does that make reference to the immunity statute?
Melvin B.lewis: No, Your Honor. It does -- it -- well, pardon me. It makes reference to it, yes. It cites the immunity statute and says -- the exact words are, “This order is -- is made in accordance with 18 U.S.C.
William J. Brennan, Jr.: Well, now, I'm not sure whether you can answer this as a general practice, but that was the same form of order that was in Reina.
Melvin B.lewis: I believe it's probably is, Your Honor, because I think that the majority of these orders are prepared, if -- if I may stretch my limited knowledge of this matter, by very much the same small group of people. It's the same form of order which is -- which was prepared in Reina perhaps. I -- I may -- that -- that may very well be. I suggest to Your Honor that we are making a contention with reference to that order, which I do not believe was, in any way, presented by Reina. And -- and what we are urging to Your Honors is this. No immunity attaches until the defendant, in fact, answers the questions. Now, in order for him to assert his immunity at a subsequent stage, he must show -- the burden will be on him to show, first, that he went before the court or grand jury and that he claimed constitutional immunity with reference to that question. Secondly, that he was, thereafter, ordered to answer the question over his claim of constitutional immunity. Third, that the question was then a game propounded to him in pursuance of the court order entered in -- under the statute, and that he, thereupon, answered it. And fourth, he must show that his answer relates to the subject matter of the subsequent criminal accusation made against him. Now, it is -- for that reason, Mr. Justice Brennan, that I earnestly urge to -- upon this Court the proposition that a general direction to a witness, "go answer questions", will not properly energize the immunity statute with which we are here dealing. And the reason that that is so very fundamentally true is because of the fact that the immunity will attach only under the terms of the statute to such questions as have been asked without reference to the immunity statute, which the witness has refused to answer on the grounds of possible self-incrimination and which, thereafter, if -- if it please the Court, he is directed specifically to answer and then answers.
Potter Stewart: In other words, the immunity doesn't attach with respect to the questions but with respect to the answers.
Melvin B.lewis: That is correct, sir. Absolutely.
William J. Brennan, Jr.: Well, I -- I can see that. If I get you correctly, what you're saying is that he must be directed to answer specific questions which would call for particular answers, and that if gives those answers, then, by reasons of those answers, he may not be prosecuted that be relied upon the immunity in giving them.
Melvin B.lewis: Well, I don't know if I've understood you properly, Your Honor, but I would -- I would revise that statement somewhat. The questions need not call for specific answers if I -- I mean there -- But I thought you were telling is that or maybe you're not. Do you -- do you say that the statute cannot be affected to grant immunity if all that the judge says is, "You go back and answer all questions that are put to you by the grand jury in connection with its inquiry, and as to every answer that you may give to any questions," and I don't know what the questions are going to be asked that as -- "any answers you might give, the statute gives you immunity." You say that (Voice Overlap) --
Melvin B.lewis: That cannot be done.
William J. Brennan, Jr.: Well, that's what I'm trying to get to. So that what you are saying is that there must be specific questions as to which he is told, "You go back and answer and as to answer -- any answers you give to those particular questions, you have immunity," is that it?
Melvin B.lewis: That is correct. Yes, Mr. Justice Stewart, precisely. The -- the Court does not itself give immunity. The immunity is -- is conferred by the act of answering. Now, if I -- I just going to clear up one possible area of misapprehension here. I don't want to import to this Court that there must be a specific answer that -- given in order to get immunity.
William J. Brennan, Jr.: Now, there must be a -- there must be a particular question.
Melvin B.lewis: Yes, sir, and that's right.
William J. Brennan, Jr.: Now, what support you have for that particular question.
Melvin B.lewis: I would refer Your Honor to the -- to the statute involved, if it please the Court. The statute is reprinted in a number of places in the -- in the record. The one, let's see, that occurs to me most readily is it's reprinted at pages 2 and 3 of the Government's brief. I know we have also printed it without trying to find precisely where that pages two and three of the Government's brief, the statute -- the -- the text appears fully. Now, it is quite customary in the --
William J. Brennan, Jr.: Now, what -- what in the statute is it?
Melvin B.lewis: Pardon me.
William J. Brennan, Jr.: What -- what is it in the statute that supports that interpretation that there must be a particular question.
Melvin B.lewis: If it please the Court, it says whenever in the judgment of the United States Attorney, the testimony of any witnesses and so on. Reading through that, going to -- if -- if the Court will to the portion, “But no such witness shall be prosecuted or subjected to any penalty or forfeiture on account of any transaction, matter or thing concerning which he is compelled after having claimed his privilege against self-incrimination to testify or produce evidence.” Now, it -- it -- the clear wording here, Your Honor, is that the testimony which is required of this -- of a witness in these proceedings. In order that there'd be immunity, first, as the statute says he must have claimed his privilege against self-incrimination. Then, he must have been directed to testify over that claim of self-incrimination. And third, necessarily, he must testify. Now, I suggest earnestly to this Court that the -- in order that a witness be permitted in a -- into a subsequent stage, if he be placed in jeopardy of any sort, to claim the immunity conferred by this statute, necessarily, it must -- it evolves upon him that he must be able to show that a question was propounded to him, calling for a specific -- area of -- of possible incrimination and that he testify in answer to that question after first having claimed his constitutional privilege with reference to it. Now, if he be told simply, "Go --
William J. Brennan, Jr.: You mean otherwise, he runs the risk because it may be said that his testimony was voluntarily given, unless his testimony addressed to some particular question which he was ordered then.
Melvin B.lewis: Precisely, Your Honor. May I bring that in reference to the case at bar? In reference to the case at bar, the defendant was called in before the grand jury and was asked some, well, roughly speaking 100 questions before the grand jury as to all of which he claimed his constitutional immunity. He then went back before the court and the court told him to answer questions propounded to you before the grand jury. He went back before the grand jury and well, a -- a great many of the same questions were put to him. He was asked for the first time before that grand jury concerning certain activities of a man named Pullings. Subsequently, he was indicted by that same grand jury for having conspired with Pullings for the sale of narcotics. Now, I suggest to Your Honor that had he obeyed the Court's order and had he gone back and simply testified as to everything that was asked of him, it could be very tenably and, I think, unassailably argued in the -- with reference to this very identical subsequent indictment returned against him. It could be very tenably argued and, I think, successfully that as to the questions concerning Pullings, he had never claimed his constitutional immunity, his privilege against self-incrimination And that therefore, there was no immunity grant as to that, this was a brand new question. Now, I -- may I suggest to Your Honor one further reason why procedural regularity -- procedural due process, really, requires that the witness be compelled to answer specific questions. I suggest to Your Honors that when this man appeared first before the grand jury, as I say, some roughly 100 questions were asked of him, it may be 70, it may be -- I don't know, but a -- a large number. He went back before the grand jury for the second time, if it please the Court, some four or five days later. Now, was it then incumbent upon him to perform the -- the memory feat of being able to recall specifically what questions were asked of him and what questions were not, particularly in circumstances where the prosecutor himself appears to have been confused for after promising the defendant that he was just going to ask him these questions over again, he goes off into the new area of -- of the Mr. Spurlock and Pullings.
Hugo L. Black: (Voice Overlap) --
William J. Brennan, Jr.: Well, it's happening to this though I gather, Mr. Lewis, if an order generally to answer questions has the effect of -- the statute has the effect of granting immunity as to answers to all questions asked.
Melvin B.lewis: Well, if it please the Court, I don't know if I properly understand your -- your --
William J. Brennan, Jr.: Well, I -- as I gather what Judge Campbell did was -- say, "You go back and answer all the questions put to you."
Melvin B.lewis: Yes, sir.
William J. Brennan, Jr.: Now, and you'll have the benefit of the statute. Now, the statute is to be interpreted in that context as meaning that he then may not be prosecuted in respect of any answers he gives to any questions in obedience to the order to get back and answer all questions, then what is there of your point?
Melvin B.lewis: Well, if the Court please, I would --
Felix Frankfurter: May I -- may I cut in and small then that he need an answer that he can't be prosecuted for any questions, any answers he gives, but in the whole relevance of the subject matter as what is the statute is talking about. The statute says the subject matter.
Melvin B.lewis: I believe, Your Honor, that it says --
Felix Frankfurter: (Voice Overlap) the specific answers?
Melvin B.lewis: It says that he cannot be -- some prosecutors are subjected to any penalty or forfeiture for or account of any transaction, matter or thing concerning which he is compelled after having claimed his privilege against self-incrimination to testify or produce evidence.
Felix Frankfurter: In other words, although questions may not have elicited, an answer may not have given matter immediately involved in parties prosecuted for if it pertains to the transaction, he gets immunity.
Melvin B.lewis: I would think so, yes, Your Honor.
Felix Frankfurter: Not you would think so. The statute says so. And that's -- that's the way it's been -- that's -- whether the ground of its being sustained that it covers areas of subject matter that -- that is too little transactions --
Melvin B.lewis: Yes.
Felix Frankfurter: -- rather than that you can't use what he said.
Melvin B.lewis: Well -- oh, certainly. It covered a --
Felix Frankfurter: But what he's -- what he said, oh, what -- that which he said leads to.
Melvin B.lewis: Indeed, Mr. Justice Frankfurter --
Felix Frankfurter: The -- the whole thing is shut off.
Melvin B.lewis: Indeed, Mr. Justice Frankfurter, it is. If the witness before the grand jury is able to establish that the proper -- that he has followed the proper procedures. For example, it's a condition precedent to his -- to his acquiring immunity under the statute, an absolute condition precedent, that he must first have claimed his constitutional privilege against self-incrimination with reference to that particular -- using the -- the statutory language with reference to that transaction, matter or thing.
Felix Frankfurter: Matter.
Melvin B.lewis: He must first have claimed his constitutional immunity against self-incrimination.
John M. Harlan II: He did -- he did that.
Melvin B.lewis: Pardon me?
John M. Harlan II: He did that --
Melvin B.lewis: He did that.
John M. Harlan II: -- at the first grand jury testimony, then the United States Attorney comes up and gets the immunity order and the judge told him to go back.
Melvin B.lewis: To go back and --
John M. Harlan II: Why doesn't that satisfy everything the statute requires?
Melvin B.lewis: Well, if the Court please, the requirements of the statute are, I think, largely what we're -- what we are here to settle today as best I -- I can urge upon Your Honors the necessity of its being settled. The -- the requirements of the statute here would indeed extend. There's no question that they would extent to any transaction, matter or thing concerning which he was then compelled to testify after having claimed his privilege against self-incrimination as to those transactions, matters or things. No question of that, sir. The question rather is that -- well, it's -- it's really twofold. First, in a subsequent prosecution against him for a substantive offense, the defendant is entitled, I should think, at the very least to an unassailable grounds for the showing that indeed, he had testified that -- concerning these matters in pursuance of an order of court, only after having first claimed his constitutional immunity. Secondly, if it please the Court, he -- the -- the question of whether in fact he has -- he would have achieved immunity under these proceedings specifically, I suggest to Your Honor that indeed, he would not have with reference to the questions concerning Pullings and Spurlock because they were asked of him for the first time on his second grand jury appearance. Had he simply answered those questions, he would have had immunity in the other areas.
William J. Brennan, Jr.: Well, was it the order under which he -- at the time he went back, I mean those questions were asked of him, there was a general order to get back and answer all questions, wasn't it?
Melvin B.lewis: Yes, sir, indeed, there was. But you see, Mr. Justice Brennan, the only ones that he's going to get immunity on are in those -- as with preference to those transactions, matters or things concerning which he has previously claimed his constitutional immunity. Had he answered the questions concerning Pullings or Spurlock which were put to him at the time of his second grand jury appearance, had he answered those questions, he would have acquired no immunity whatever. And I cannot urge that upon this Court too strongly. The fact is that with reference to those -- to -- to those questions, he had not theretofore gone through the statutory routine, the statutory procedure of claiming his -- of claiming possible self-incrimination being ordered over that claim to answer the question and then asking it -- of their been answering it.
Felix Frankfurter: Let me -- let me ask you this, if I may, in order to understand this. The questions the he refused to answer by claiming his privilege, they were -- they in the field of inquiry as to which Judge Campbell then directed him to answer all the questions.
Melvin B.lewis: Well, I don't believe, Your Honor, that that's a question that could be answered unless we knew what the petitioner's answers to those questions would have been.
Felix Frankfurter: I don't think the answer of a question marks the boundaries of the subject -- the answer to your question do not mark for me, the boundaries of the subject matter within which he either answers freely or if he doesn't answer freely -- really, he may be made to answer compulsory by getting immunity.
Melvin B.lewis: I would not think that your --
Felix Frankfurter: Suppose the district attorney starts out by saying, I want to ask you about certain narcotics transaction which your name has been associated, and the witness says that "Mr. District Attorney or Mr. Jones, you can save yourself time and the grand jury's time and my time, I'll tell you now, I'll be mum on all questions pertaining to that subject." And then he's brought before the judge and the matter is disclosed before him and the judge does or Judge Campbell did here. What -- what lack in the appropriate procedure is there in your view?
Melvin B.lewis: In my view, Your Honor --
Felix Frankfurter: In the case in the lower courts.
Melvin B.lewis: -- in my view, Your Honor, the defendant would then have the burden of sitting back and asking himself at the time of his second grand jury appearance. When each question is propounded to him, he would have to say, "Does this relate to a transaction, matter or thing concerning which I have previously asserted my privilege against self-incrimination. If it does, I will answer it. If it does not, I will not answer it." That would be his burden right there, his burden at a subsequent time of showing --
Felix Frankfurter: Do you think the Government -- do you think the Government if he answers subject to -- to an order by the Court to answer all questions that the District Attorney puts to you -- the United States Attorney puts to you when you're back -- go back with the grand jury rule and then he answers all questions, do you think the United States Government can thereafter say, "Oh, well, we asked him questions as to which his answer doesn't give him immunity because it doesn't -- it wasn't covered as the first hearing," do you think that's -- do you think that's -- do you think that's so -- real solid danger of that (Voice Overlap) --
Melvin B.lewis: If I understand, Your Honor --
Felix Frankfurter: -- imaginary things that lawyers rightly make arguments about?
Melvin B.lewis: If I understand Your Honor properly, if you're asking me whether I think that this Court would sustain such a procedure --
Felix Frankfurter: Any --
Melvin B.lewis: -- I can honestly say no. If --
Felix Frankfurter: Any -- or anybody who tenders such a (Voice Overlap) --
Melvin B.lewis: If Your -- if Your Honor would ask me whether such a procedure would be attempted, I would respectfully have to say to Your Honor that I have seen worst things happen.
Felix Frankfurter: But we can't shape law, at least I -- I don't think that law should be shaped on the assumption that people are either accessibly foolish or accessibly miscreated that.
Melvin B.lewis: No, Your Honor, nor I think needed be formulated upon the basis that leaves it to them to determine how, in fact, they will behave. I would suggest, Mr. Justice Frankfurter, that the proposition here however many equities it may raise in favor of a defendant --
Felix Frankfurter: It hasn't to do with that position. It has to do with procedures before a grand jury and the normality of their conduct.
Melvin B.lewis: Yes, sir.
Felix Frankfurter: And the district attorney asked questions about an area of subject matter, and he's blocked, and then the man is taken before the Court and the Court says, “I decide -- in the exercise of the discretion that I have, I decide that it's important for you to be given immunity than to be allowed to stand in your rights."
Melvin B.lewis: Well, if I -- if I might interrupt there, Your Honor. The Court does not make that determination. The Court, under the statute, is limited to simply determining whether the Attorney General's application is improper for him.
Felix Frankfurter: Oh, but we've held that he can't -- he isn't called upon automatically (Voice Overlap) --
Melvin B.lewis: I don't say automatically. No, Your Honor.
Felix Frankfurter: Well, that means discretion. That means he must decide whether -- whether to grant immunity or not.
Melvin B.lewis: Well --
Felix Frankfurter: Because the statute was attacked on the ground that he is an -- automatic.
Melvin B.lewis: There was never a suggestion made to this Court, Your Honor, that the appellant Piemonte was in the position substantially or materially to assist the grand jury's inquiry. The -- the Court was never given any background for the -- any reason why his testimony might be important even up to --
Felix Frankfurter: Nothing that I said implied that. If a man is before a grand jury, the grand jury having the function that this Court has described not so long ago in opinion by Justice Black and a -- a witness is contumacious or refuses to answer because he thinks he has constitutional right, he's then brought before the Court and the United States Attorney makes the presentation and the judge then said, “Well, I'll grant you immunity, you'll go back and answer.” It was simple and it's conclusive and comprehensive as all that.
Melvin B.lewis: If it -- if it please the Court, I would -- I would suggest to Your Honor that it would be a virtual impossibility for a witness before a grand jury, a year after his appearance there to show that, in fact, he had answered a given question in response into an -- to an inquiry put to him by a prosecutor before that grand jury after first having claimed his constitutional immunity in that field.
Felix Frankfurter: Your argument gets down to this. That when he first refuses to stand on his right, stand on his immunity, the U.S. Attorney must then and there go through a specific litany of questions, to which the witness refuses to answer. And then it goes before the judge and says, “Yes, you must answer all these questions. You now know specifically what I'm telling you to answer and this will give you a -- a surefire protection, if you're prosecuted for anything you'd say after I granted you immunity." That --
Melvin B.lewis: If Your Honor please --
Felix Frankfurter: That's -- that's probably took a (Inaudible) so far as I'm concerned.
Melvin B.lewis: That would be one way of doing it. There is a second way and that is the way that Your Honor has suggested that the Court may say essentially with reference to this specific questioning -- this specific thing which the prosecutor told you, to wit, "I'm going to ask you about your involvement in certain narcotics transactions, answer that question and all related questions." And in that area, you will acquire immunity. But simply to say to him, "Go and answer questions concerning narcotics," I just don't believe, Your Honor, that this man has -- can be said to have theretofore claim a general area of constitutional immunity concerning narcotics as a whole.
Hugo L. Black: Is that precisely what the Court told him?
Melvin B.lewis: I think that the Court -- the Court entered two -- made two such statements, if -- if it please Your Honor, one of them in the form of a verbal order, the other one in the form of a written order. The verbal order -- in the verbal order, the Court --
Hugo L. Black: Is that on page 60, concerning the matter of their investigation?
Melvin B.lewis: Yes, sir. That's correct. Concerning the matter of their investigation is what he was told the answer on there. Leaving to him to determine just what was the matter of their investigation and to prove it at a subsequent juncture, if he should be exposed to jeopardy at some sort.
Hugo L. Black: Had it already appeared in the record what was the matter of investigation?
Melvin B.lewis: Not other than that they were investigating violations of certain narcotic statutes, possibly among other things there -- there's no way of knowing. But that they were at least investigating violations of certain narcotic statutes.
Hugo L. Black: Is your argument somewhat similar to the argument that frequently made with reference to the specificity of an indictment in order to afford the man a proper opportunity to plead double jeopardy?
Melvin B.lewis: I can see, Mr. Justice Black, a very strong area of analogy.
Hugo L. Black: What you are saying is that it must be on some kind of an order which will give him complete protection on any question they asked --
Melvin B.lewis: Certainly.
Hugo L. Black: -- on that field?
Melvin B.lewis: Certainly, Your Honor, in order -- sufficiently specific as --
Hugo L. Black: But why --
Melvin B.lewis: -- as to minimize the difficulties that he might encounter at a subsequent juncture.
Hugo L. Black: I can see your objection if he had said, "Go back and answer everything they asked you," that -- unless we would hold which perhaps many courts would be inclined to hold. That if the -- certainly, if -- if it would put on the basis, go back and answer any question and didn't make any difference what's related to it or not. They'd say that you had a right --
Melvin B.lewis: No --
Hugo L. Black: -- (Voice Overlap) community --
Melvin B.lewis: If the Court --
Hugo L. Black: -- from anything they asked you.
Melvin B.lewis: If the Court please, the statutes says that the Court -- the Court doesn't grant immunity. What the Court does is to energize the immunity statute in such manner that if the witness subsequently complies with the directions given to him, he will then receive immunity.
Felix Frankfurter: Well, everything that he says after the compulsion.
Melvin B.lewis: No, Your Honor. For everything --
Felix Frankfurter: This --
Melvin B.lewis: -- that he says after having first claimed his constitutional privilege not to testify with reference thereto --
Felix Frankfurter: In fact, it doesn't say that. It says it gives him immunity with reference to -- just read the statute again.
Melvin B.lewis: If I may, Your Honor --
Felix Frankfurter: I mean not going back to the statutes if one deals with it. What does that statute -- what are -- what are the -- what is the scope of the immunity?
Melvin B.lewis: The scope of the immunity is to any transaction, matter or thing concerning which the witness is compelled after having claimed his privilege against self-incrimination to testify or produce evidence.
Felix Frankfurter: Well, the judge told them, "You talk -- you disclose everything they asked you about narcotics," therefore, he gets immunity, so far as I can see about anything that touches prosecutions for narcotics, if any provision of the law.
Melvin B.lewis: If he has first claimed his constitutional privilege.
Felix Frankfurter: (Voice Overlap) --
Melvin B.lewis: As would be the case in the hypothetical situation that Your Honor mentions where the -- where the prosecutors starts out by saying, "Now, I'm going to ask you questions concerning, generally, your involvement in narcotics transactions," and the witness says "You can save your time. I refuse to incriminate myself."
Felix Frankfurter: But Mr. Lewis, these cases -- that's when the practical, in the real world instead of what I call (Inaudible). These cases arise when the witness starts the questioning almost at the threshold usually.
Melvin B.lewis: Yes, sir.
Felix Frankfurter: That's the way these things arise.
Melvin B.lewis: Indeed.
Felix Frankfurter: And therefore, what is the judge confronted with? According to your view, he would simply compel the witness to say, "You go back and answer the question, that one question which -- by which you go for all further questions."
Melvin B.lewis: No, Your Honor. He could say go back and answer that question and any other questions related to it. In the -- in the case at bar, I suggest to Your Honor that there were 100 questions or so there for the Court to direct the witness to answer, any one or more than.
Felix Frankfurter: But what subject matter did they relate?
Melvin B.lewis: In general, Your Honor, they're related, so far as they can -- or shown to relate to anything specific, they're related to the field of narcotics.
Felix Frankfurter: Alright. So he gets immunity for everything that thereafter he says about narcotics.
Melvin B.lewis: Bearing, Your Honor, upon those questions. Bearing upon those transactions, matters or things.
Hugo L. Black: I can't understand your apprehension. If it's true that the courts would say that after a judge told a man, go back and answer anything they ask, you could construe to believe the courts would say that the Government can go back on that thereafter and do something to him for some of those questions. I -- I can't concede that the court would hold the statute to mean.
Melvin B.lewis: Well, if it -- if it please the Court, while the statutes doesn't specifically spell out that particularly vicious procedure, it certainly leaves the door open to it. If the -- if the -- if it is shown that a witness gave evidence before the grand jury concerning a transaction, matter or thing with reference to which, he did not first claimed the provisions -- the benefits of the Fifth Amendment and thereafter received directions to testify that were shown that he did that, then there would be no immunity.
Hugo L. Black: Well, if I can conceive that this Court would ever hold after statement like that has been made to a man, go back, the judge tells him to go back and answer anything he's asked, if I could conceive that this Court would ever hold, that doesn't mean that he was immune from prosecution by anything in the world to ask him about any subject for -- in that city, then I would agree with you that the -- there should be some specific thing like an indictment to tell him exactly the scope of it. I can't conceive that --
Melvin B.lewis: Mr. --
Hugo L. Black: -- the Court would hold that. I hope it wouldn't.
Melvin B.lewis: Mr. Justice Black, I -- I cannot conceive that this Court would sustain the procedure that would evolve from this, nor, however, can I conceive that a plea in bar against the prosecution could be made with certainty below, unless it were shown that this plea in bar related to a transaction, matter or thing concerning which a witness was first asked, claimed, secondly, his - his constitutionally immunity, third, was directed to answer over that immunity and then fourth, answered.
Felix Frankfurter: Well, then, your argument really comes down to this. That you can conceive that there maybe some judges, among the hundreds or the more hundreds that we'll have assume, in the land, but there maybe among those hundreds of judges, it's conceivable that there maybe some judge or judges who would do something that you can't conceive that this Court would approve of. That's what your argument comes down.
Melvin B.lewis: If it please the Court, I don't conceive that this Court would approve of it, if it could sufficiently be shown to this Court that, in fact, that's what had happened. But I would commend to Your Honor the very serious consideration that when a man is simply told, "Go answer questions," a year later it's a very difficult thing for him to prove what questions, in fact, he answered under that direction.
Felix Frankfurter: When they -- when we asked stenographic minutes of juries, an application for the disclosures come like fallen leaves in autumn.
Melvin B.lewis: A year later, Your Honor, if they're not typed up, it sometimes very nearly impossible, and I think this Court is not in frequently confronted with situations --
Felix Frankfurter: I suggest where a remark of Justice Holmes in his opinion for the Court, a man who wants to keep within the law if they have no difficulty in a situation like this.
Melvin B.lewis: If Your Honor please, a man who succeeds in keeping within the law has theoretically no difficulty in any situation.
Felix Frankfurter: Oh, yes, he had.
Melvin B.lewis: I'm --
Felix Frankfurter: That's -- that's why we (Voice Overlap) --
Melvin B.lewis: Well --
Felix Frankfurter: -- the statute is unconstitutional.
Melvin B.lewis: That's what I've been trying to sell you, Your Honor. Sometimes he does.
Felix Frankfurter: I'm an unwilling customer.
Melvin B.lewis: I have -- I want to save sometime for rebuttal. I would like to make one other basic point to this Court, if I might, and that's this. The defendant here, having been held in contempt and having filed his notice of appeal from that contempt to adjudication. This defendant thereupon was indicted some five or six days later by the same grand jury concerning which he was being punished for refusal to testify. I -- I submit to this Court that this is nothing less than a -- a really basic proposition of the -- the inquisitorial as opposed to the accusatory method of -- or theory of criminal jurisprudence. I don't think that this Court, -- for example, I don't think that this Court would ever approve a situation in which a defendant might be indicted with say four other men at a total four-count indictment relating to narcotics. That he might be then called to the witness stand and forced to testify on count 1, exposing thereby his -- his basic criminality or -- or lack of reliability to the jurors for consideration on their other three counts which may not be met the transactions, matters or things concerning which he has compelled to testify under the -- under the specific grand of immunity given him. I think that this Court can very well concede that a grant of immunity may be so limited as to -- restricted to the transaction of the sale of narcotics to Jones and to have no application at all to the sale of narcotics to Smith. Now, if either this statute will authorize a man's being called as -- as a witness against his codefendants on other counsel that a trial where -- where he is himself defendant to a count or else it will not admit the procedure that was adopted here. I suggest to Your Honors that by choosing to treat the defendant as a defendant by indicting him for a substantive offence, he became justified in his refusal to have answered questions theretofore. And I would define that, if I may, briefly in -- in just --
Charles E. Whittaker: What --
Melvin B.lewis: Pardon?
Charles E. Whittaker: What you -- what you're asking is that your argument?
Melvin B.lewis: I do, Your Honor. I do. I say this. The statute deprives a man of the right to refuse to testify on the grounds that his testimony may tend to incriminate him. But the fact that his testimony may tend to incriminate him is a derivative doctrine. The Constitution does not expressly, in so many words, give a man a guarantee against the giving of testimony that might -- may serve to incriminate him at a subsequent time in a -- in a different form. Rather what the Constitution provides, in so many words, is that a citizen -- that a -- an individual may not be called to -- as a witness against himself in a criminal case. That he may not be required to -- to give evidence against himself in a criminal case. Now, if it please the Court, subsequent to this, there has derived a -- a derivative doctrine on this which says that in no form, at anytime, can you compel a man, absent immunity statutes, to give testimony which may serve to incriminate him subsequently. You cannot force Jones to give evidence in Smith's trial that may incriminate Jones where he, thereafter, indicted. That's the derivative doctrine. The basic constitutional doctrine is that a man cannot be forced in a criminal case to be a witness against himself. The grand jury proceedings are, I think, by settled decisions of this Court, part of the criminal case. The question was the criminal case against whom, at the time that he -- that -- that the defendant was there before the -- the grand jury at all times, thereafter, up to the time -- up to the very time of his sentencing. It was a good -- have been impossible for him to substantiate the claim that this was a criminal case against him. But it was, and the distinction is this. If Jones be called as a witness in Smith's trial, he is excused from answering questions only on the grounds that those answers may tend to incriminate him, Jones. If he doesn't -- if he doesn't say that, he can be forced to testify. If Smith be called in Smith's trial, Smith cannot be forced to testify at all. He need not say his estimony may tend to incriminate him. He has an absolute privilege against being called to testify at all in a criminal case against himself. Now, the statute, the immunity statute, with which we are here confronted, says nothing at all, nor could it, I believe, proper to say anything at all about taking away the right of an individual to refuse to be a witness against himself in a criminal case. Rather it takes away the derivative right, the right to refuse to give answers in proceedings other than a direct criminal case against the witness himself, which may serve to incriminate him later in a different matter. That's the right that's taken away by this statute. I suggest to Your Honors that had the indictment been returned against Piemonte, the appellant here, before his sentencing for contempt, have that been done, no sentence for contempt would have been possible because of the fact that the worst thing that could be said against the appellant in that circumstance, is that he was sought to be punished for refusing to become a witness against himself in a criminal case. Surely, if you take the view that he was properly granted immunity, he no longer had the right to refuse to testify on the grounds that his testimony might incriminate him. But he still had the very viable robust right not to give testimony against himself in a criminal case, and this is a right which is not affected by the immunity statute. And I, therefore, submit to the Court that by indicting Piemonte, the grand jury treated him as a defendant rather than a witness in ultimate terms in the final analysis. That's what he was, was a defendant, and a defendant cannot be compelled in a criminal case to give evidence against himself, and the immunity statute does not touch upon that aspect of the rights under the Fifth Amendment.
Potter Stewart: Isn't it part of your argument also on this -- on this phase of the case, Mr. Lewis, that the grand jury may -- might well have been affected by his demeanor and his refusal to testify and by his conduct, generally, in returning that indictment?
Melvin B.lewis: Very well, sir, although this is something that goes more to the indictment itself and as the Government has submitted in a supplemental memorandum, the defendant was found not guilty under that indictment. But certainly, they cannot have been unaffected. May I reserve the remainder of my time, Mr. Chief Justice, for rebuttal?
Earl Warren: You may.
Melvin B.lewis: Thank you.
Earl Warren: Mr. Gilinsky.
Theodore George Gilinsky: Mr. Chief Justice, may it please the Court. In the Government's view, the petitioner does not raise any of the problems which were remaining in Reina or which were dealt with in Reina. And as a matter of fact, what this case really is about then is whether or not on this record in the District Court, this petitioner was fully advised and was granted immunity as a matter of fact and understood what he was supposed to do and whether he disobeyed that order. In order to understand whether or not the petitioner clearly understood on whether he then deliberately disobeyed the order and thus arose the contempt, it's necessary to go over the facts somewhat and perhaps repeat some that have been mentioned. The first thing that happened was on August 10th, when the petitioner was called for this grand jury hearing, I think it's important to -- in considering whether or not, he understood and whether or not he committed contempt to view the entire proceeding of what happened at that point. One, there is no question on this record that the petitioner consulted with his attorney prior to the time he entered into the grand jury room. There is no question that he talked to his attorney specifically about answering questions. As a matter of fact, what happened was this petitioner, despite advice from his attorney, told his attorney that he was not going to answer any questions. He was going to stand on the Fifth Amendment. That's number one. The second thing that's important is that as we started to ask the questions at the grand jury, the first thing that we asked the petitioner was in regard to his previous conviction, which he readily admit, and the next series of questions were related to that particular conviction. It is true, it is true that the Government, at that time, told the petitioner that he did not think the petitioner had the right to claim the privilege insofar as those questions were related to the convictions on which he was then serving time. That is true. And as -- immediately after that thatthe petitioner note -- said, "Well, I'm not going to answer any questions." After that, the Government asked a series of approximately 50 some questions, having to do generally with narcotics, having to do with -- in some instances with the conviction, this heroin that he had previously sold, having to do with marijuana, having to do with his knowledge of such people as John Omento (ph) from New York, having to do with his knowledge of a previous codefendant. And all of these questions, the petitioner declined to answer claiming the Fifth Amendment. Now, that's on August 10. On August 13, this matter was presented before Judge Campbell. At that time, the Government said, “We believe that the petitioner properly claimed his privilege in the light of some recent appellate cases.” The Government then explained to the judge what they were there for. That they were there to present this transcript to the grand jury to the judge so that he could decide and that they would -- going to present a petition to the court for a grant of immunity. The Court was presented with the transcript and the court read, quite obviously in this record, read the questions that were asked and the answer that were given. And the Court expressed doubt as to whether the privilege was properly claimed as to those question which related to the conviction, but the court also said as to the adage, there was no question however that the privilege was properly claimed. At that point, the Government presented to the court a written petition, which I do not believe is challenged by this petitioner as to form, setting out everything that was required in the statute, and I might say this isn't the exact type of petition that were presented in Reina, Corona, as a matter of fact, in almost all the narcotic cases. The crucial point that the Government feels is important to understand is what happened next. The court said, "Very well, I find the petition in proper form, the same is granted." As far as the Government is concerned, that was it, no further finding, no further interrogation, no further problems of roads. The petition was granted, he's -- the court said so in unequivocal terms. It is hard to say at this time that this was not understood, but I would go further. After this, the Court addressed itself directly to the petitioner and explained in other words what was going on that he'd been granted immunity that he no longer need claim his privilege. In this connection, as to what he was asked to respond to, I think it's important to look directly at the record. On page 16, the -- the court says partway down after paragraph -- telling him that it's no longer necessary to claim the Fifth Amendment closes with this.
William J. Brennan, Jr.: May I ask you, Mr. Gilinsky?
Theodore George Gilinsky: Yes.
William J. Brennan, Jr.: This colloquy followed the entry of the order, is that it?
Theodore George Gilinsky: This follows the entry of the oral -- at the beginning of -- at the -- near the --
William J. Brennan, Jr.: They're both dated --
Theodore George Gilinsky: -- top of 16.
William J. Brennan, Jr.: -- they're both dated --
Theodore George Gilinsky: The same day.
William J. Brennan, Jr.: -- August 13, yes.
Theodore George Gilinsky: The same day. At the -- at -- near the top of 16, Your Honor, you will find the words that I previously mentioned, “Very well, I find the petition in proper form, the same is granted.” Those who know and experienced District Court practice can very well visualize exactly what's happening at that point because the judge is just signing an order. Whether or not, this -- this actually takes place on the record, of course, it never is disclosed. But below this, where the court is explaining to the defendant, and this is an important thing, "I now grant you immunity from such prosecution and direct you to answer the questions propounded to you by the grand jury and the next thing is do you understand the order of this court -- of the court?" And the petitioner replies, "Yes, sir, Your Honor." But we go further in this case because immediately after this, at the request of the petitioner, the Court makes specific provision for this petitioner to see his counsel again, directs the United States Government not to bring this petitioner back before the grand jury until he has had an opportunity to see his lawyer again.
Hugo L. Black: May I ask you this. Suppose they had asked him, in the grand jury, about stealing something, that he had confessed to it, and he had been indicted for the stealing.
Theodore George Gilinsky: Could he be indicted for the --
Hugo L. Black: And he had been indicted for the stealing, do you think he had immunity in that?
Theodore George Gilinsky: No, I don't believe so.
Hugo L. Black: You don't think so.
Theodore George Gilinsky: You mean after this, if he'd been asked --
Hugo L. Black: I mean it went back right straight to the grand jury and they asked him if he had been stealing something.
Theodore George Gilinsky: If it had to do with narcotics --
Hugo L. Black: Well, suppose it was not.
Theodore George Gilinsky: -- I supposed it would, but if it --
Hugo L. Black: Suppose it was something else --
Theodore George Gilinsky: If -- if --
Hugo L. Black: -- and he had been directed by the judge (Voice Overlap) --
Theodore George Gilinsky: That's right. I suppose if they said to him, "Mr. Piemonte, did you rob the First National Bank?", which is entirely an unrelated thing, I would imagine that he did not have immunity to that.
Hugo L. Black: Then he -- how would he know that?
Theodore George Gilinsky: I don't think -- I don't think this petitioner had that problem.
Hugo L. Black: Well, I --
Theodore George Gilinsky: This petitioner --
Hugo L. Black: -- it is a problem -- it's a problem, so far as I'm concerned, with reference to what kind of a -- how specific this must be.
Theodore George Gilinsky: Oh --
Hugo L. Black: If I understand the Government is taking the position that they could get him in there and ask him other questions about other things, which --
Theodore George Gilinsky: Well, I don't --
Hugo L. Black: -- he had -- he'd had to have a legal knowledge enough to know that he had -- didn't have immunity with that then that raises a problem in my mind.
Theodore George Gilinsky: Well, let me -- let me go to the specific problem that you were talking about previously. The question of how specific this type of thing has to be because this is not a new problem in this field. In a case called Hale versus Henkel, which is decided long ago, the same problem was presented to this Court. In numerous cases since that date, exactly the same problem has been presented to this Court. This problem is not confined, as a matter of fact, merely to immunity statues. This is a general problem involving any type of double jeopardy.
Hugo L. Black: Well, I'm not interested in the general problem. What I wanted --
Theodore George Gilinsky: Well -- in -- I'm --
Hugo L. Black: -- do I understand that you're taking the position, they could get him in there if he'd been directed to answer all questions asked. And that the Government would take the position that you didn't have immunity because they were not closely enough related to narcotics?
Theodore George Gilinsky: The statute only gives the Government the power to ask for immunity in regard to this statute. We do not have the power to ask -- the Congress has -- would never give us this right. While you -- you raise a question which I -- I can't imagine happening, but it's a possibility --
Hugo L. Black: Well, it -- I can.
Theodore George Gilinsky: Well, not in this context because this whole grand jury had to do with narcotics. And it was so stated and that's what they would there for and that's why this witness was called and that's what was so stated. So I cannot say that -- that we -- that we could -- that anyone can grant him immunity from a bank robbery because as far as I read it, Congress --
Hugo L. Black: I didn't mean --
Theodore George Gilinsky: -- can't.
Hugo L. Black: -- to grant him immunity from the bank robbery, unless they asked him about it after they told him to go answer all the questions that were asked.
William J. Brennan, Jr.: I don't know. Suppose the question whether to rob a bank in order to buy narcotics.
Theodore George Gilinsky: I -- at that point, I think that the question gets close enough that -- that the Government is bound by the immunity that he's been given to any transaction related to it, yes. I don't think -- in other words, I -- I cannot see that we can read this so narrowly as the petitioner would -- would in -- like to theorize on. If we had to get immunity specifically as to each question, I doubt that the statute could be used because I think it's clear to those who have ever asked questions that one question leads to another question. You can't -- you can't imagine what the next question will be in a grand jury and what does this would amount to, is asking the Government on each question to bring the petitioner back in front of the Court and say, "You now answer this one and then we'd go back and answer the last one." And then after getting that answer, well, then a new approach, of course, would -- would come to the Government and they would ask another question. Of course, we'd start all over again. I -- seriously, this -- I've never seen it this way. My experience is that in all these cases, it has been a general grant of immunity, and that it is always covered all questions and it covered questions that were not specifically asked, but in the general category.
Earl Warren: Mr. Gilinksy, just to reduce this to practicalities, it's -- it's not uncommon for the narcotic traffic for particularly those who are users to be common thieves, and they get their money from burglarizing homes and burglarizing buildings, from breaking into automobiles and from -- and from doing all kinds of things like that. Now, this man -- they asked this man, "From whom did you purchase these narcotics?" And he says, "John Doe." And I said, "Where did you get the money to -- where did you get the money from?" And he said, "Well, I -- I burglarized a household here in the street, and I burglarized that one over there. And I -- I've stole it from -- picked somebody's pocket or I did this and this and that." Will he then -- would he then get immunity from prosecutions for those crimes? I think there's no question about it. I think there's no question about it that he would.
Earl Warren: Well, then, if he had robbed the banks to do --
Theodore George Gilinsky: That's right.
Earl Warren: -- the same things --
Theodore George Gilinsky: That's right.
Earl Warren: He would --
Theodore George Gilinsky: I would -- unhesitatingly I -- I say. There is no question that he gets immunity as to that type. And I'll go further not even specifically as to what he testifies to. This -- in other words, if he just says, "I -- I robbed the First National Bank. He -- it's everything in relation to that transaction." This is not -- this is not something that's narrow because if it's narrow, then we do have a lot of problems. And it has never been considered narrow. And I -- and -- and none of the cases have ever considered it narrow, although, as I say, the problem of specificity and ability to prove has been argued many times in this Court. And this problem, while you can think about it, is no different than any other problem of proof and has been answered that way in all the cases.
Earl Warren: How often -- how often is this statute, do you -- do you know, Mr. Gilinsky?
Theodore George Gilinsky: Yes, I --
Earl Warren: I don't.I have --
Theodore George Gilinsky: -- I do know.
Earl Warren: -- no idea.
Theodore George Gilinsky: I have -- at -- at the time of the Reina argument, we included in our brief a footnote as to this particular immunity statute, and there were 13 grants of immunity since the beginning of this statute down --
Earl Warren: 13 grants.
Theodore George Gilinsky: -- through and that includes -- that includes this petitioner and all these cases. There -- so it is not used -- well, I should say it's not used very extensively because it is not an easy procedure and it's deliberately not easy. We -- we have to -- you -- you have to get the approval of the Attorney General.
Earl Warren: Yes.
Theodore George Gilinsky: It requires a -- a complete application, and it -- I think Congress deliberately made it hard so that it would not -- the -- the Congress certainly is not about to give immunity to many people. They do not believe that this is a good practice.
Earl Warren: Yes. And may I ask you? You said this has always been given the broad construction --
Theodore George Gilinsky: That's right.
Earl Warren: -- of 13 (Voice Overlap) --
Theodore George Gilinsky: Oh.
Earl Warren: -- whether times and --
Theodore George Gilinsky: No.
Earl Warren: -- how much.
Theodore George Gilinsky: I'm sorry. What I meant was in relation to the general immunity provisions, which are old, there's a long history of immunity provisions, specific ones relating to internal security and they are in numerous regulatory acts.
Felix Frankfurter: No, the -- the interstate commerce goes back to the 1980s (Voice Overlap) --
Theodore George Gilinsky: That's -- that's correct. So that there is a long history of immunity upon which each particular section has been built so that this statute is a culmination of a long series of cases and history related to immunity in many fields. And I -- I do not I think it can be divorced from that because, surely, each clause, in turn, almost relates to some case that this Court has decided or some provision of law. Now, to go back to the -- the -- what happened at this District Court.
Potter Stewart: Mr. Gilinsky, just --
Theodore George Gilinsky: Yes.
Potter Stewart: So that you will be thinking the matters during the lunch. As I read this statute, although the case or the grand jury investigation has to do with some of this limited narcotics laws, is quite limited in the kind of case in which immunity can be conferred. But once the immunity is conferred, it seems to me that the -- is conferred as to everything that -- that might incriminate the witness. Whether it be narcotics, about bank robbery, murder or counterfeiting or vagrancy, I'd like you to -- I wonder if you agree. I like to be interested in your answer after lunch.
Earl Warren: You may answer that after lunch, Mr. Gilinsky.