William H. Rehnquist: We'll hear argument next in No. 88-1972, Illinois v. Lloyd Perkins. Ms. Friedl, you may proceed whenever you're ready.
Marcia L. Friedl: Mr. Chief Justice, and may it please the Court: This case comes from the Illinois Appellate Court which upheld the suppression of Defendant's murder confession on the Miranda grounds. The ruling precludes the use of undercover agents to in any way question incarcerated suspects concerning criminal offenses that they may have committed and it ironically arises on facts which affirmatively establish that Defendant Perkins in this case perceived no pressures whatsoever to speak when making his incriminating statements, but, rather, he was simply killing time with boastful admissions to those whom he believed to be co-conspirators in a jail break. After detailing how the privilege against self-incrimination is seriously threatened whenever a suspect is subjected to the inherently compelling pressures of custodial interrogation, this Court in Miranda developed prophylactic warnings and rules to provide practical reinforcement for the Fifth Amendment privilege. However, because the Miranda safeguards of a protective Fifth Amendment, and because they markedly decrease the number of wholly-reliable statements that are available to law enforcement for both investigation and prosecution purposes, this Court has characterized those safeguards as extraordinary and has consistently refused to apply them outside the context of the inherently compelling custodial interrogations for which they were designed. The Miranda's principal concern was that mutually reinforcing manifestations of police dominance arising from custodial interrogation will inevitably exert significant pressures on an accused to speak. This concern is entirely inapposite to undercover elicitation statements. A suspect who is in immediate and non-transit control of a non-governmental authority who also at the same makes its interest at eliciting a statement apparent, might naturally believe that he has no right to speak because the... the authorities' power to eventually get what it wants is immediately suggested by its power of restraint. And even if the subject is not subjected to any further incarceration, additional incarceration, above and beyond that of general incarceration itself, other potential pressures remain because the suspect will still... the inmate will still understand that speaking will accommodate an inquiring government that not only has the proven power of incarceration but also has future control over his physical environment, his prosecution and other aspects of his life. Now, where a suspect doesn't know that he's encountering a governmental agent, he can feel absolutely none of these pressures, and any concern in Miranda for perceived governmental domination by the questioner which could even conceivably be reinforced by the governmental's power of incarceration is dispelled by the deception itself.
Sandra Day O'Connor: Well, Ms. Friedl, now, if the undercover agent had physically beaten the prisoner up in order to obtain the information, do you think the Fifth Amendment might preclude the use of that information?
Marcia L. Friedl: Clearly the due process clause test for that would be available in the--
Sandra Day O'Connor: Do you think the Fifth Amendment would preclude it?
Marcia L. Friedl: --This Court has never held the Fifth Amendment to specifically apply. In Hoffa the Court assumed that the Fifth Amendment applies in undercover contacts. This Court has never specifically held the Fifth Amendment to apply in the undercover context. But the due process test is precisely the same as the Fifth Amendment. So, the due process clause for certain would be available to remedy that.
Sandra Day O'Connor: But there is a concern in the Fifth Amendment for voluntariness, isn't there?
Marcia L. Friedl: For compelled... the privilege against self--
Speaker: Right.
Marcia L. Friedl: --self-incrimination.
Sandra Day O'Connor: And you think if the undercover agent beat it out of him, it might be considered compulsion?
Marcia L. Friedl: Oh, of course.
Speaker: Uh-huh.
Marcia L. Friedl: Of course.
Sandra Day O'Connor: Now, was there a lawyer appointed here--
Marcia L. Friedl: There's nothing in the record--
Sandra Day O'Connor: --for the Defendant in the aggravated battery charge?
Marcia L. Friedl: --There's nothing in the record to indicate whether a lawyer was appointed or not. The Defendant Perkins had not yet appeared before the court.
Sandra Day O'Connor: There had been no initial appearance for the aggravated battery--
Marcia L. Friedl: Correct.
Sandra Day O'Connor: --when this occurred?
Marcia L. Friedl: He first appeared on that... the... this questioning took place on a Sunday evening and he appeared on Monday morning for the first time on the aggravated battery charge, and it was at that time--
Sandra Day O'Connor: I see.
Marcia L. Friedl: --that he was arrested for the murder.
Sandra Day O'Connor: Uh-huh.
Marcia L. Friedl: Not only Miranda's concern for governmental domination doesn't exist in undercover context, and the goal of deception further renders under... other forms of pressure less likely since neither the undercover agent nor identified police personnel are going to act in a manner that would risk disclosure of their identity.
Thurgood Marshall: Just one point. This man wasn't an undercover agent, he was a policeman, wasn't he?
Marcia L. Friedl: Correct. He... the... Agency Parisi--
Thurgood Marshall: Isn't there a difference?
Marcia L. Friedl: --was an undercover police officer and then Charlton was--
Thurgood Marshall: Don't you draw a line between policemen and undercover agents?
Marcia L. Friedl: --There's no reason to... in the context of this particular case there is really no difference between the way Agent Parisi was acting and the way Informant Charlton was acting. There's... that the... focus has got to be on the perceptions of the suspect, and the suspect... if the suspect doesn't believe... perceive that someone is a governmental agent, then it makes no difference if he really is a police officer or just an informant, like Informant Charlton in this case.
Thurgood Marshall: You don't see any difference between a policeman and an informer?
Marcia L. Friedl: No, Your Honor. Not if they--
Thurgood Marshall: I thought... I thought a policeman represented the state, officially sworn to duty, and an informer was not.
Marcia L. Friedl: --Well, the informer in this case was clearly--
Thurgood Marshall: Is that... is that correct? That a policeman represents the state as an officer of the state, sworn as an officer of the state to uphold the Constitution of the United States? Is that correct?
Marcia L. Friedl: --Yes, Your Honor.
Thurgood Marshall: And this man was sworn to uphold the Constitution of the United States?
Marcia L. Friedl: Yes.
Thurgood Marshall: And violated it?
Marcia L. Friedl: Your Honor, we... it's not our position that the Fifth... either the Fifth Amendment or due process clause could have conceivably been violated, and certainly even... even Miranda, of course, has not been violated here because the suspect, Defendant Perkins, in no way could perceive the governmental dominance, the... in his speaking with Agent Parisi and Informant Charlton. There was no... there's no purpose for... reason to apply Miranda in this context and most certainly the Constitution of the United States has not been violated vis-a-vis either the Fifth Amendment or the due process clause.
Sandra Day O'Connor: Well, do you think that trickery can ever amount to coercion?
Marcia L. Friedl: There could be situations where trickery amounts to coercion. My point is that in your normal everyday undercover situation the deception itself is going to actually take away the coercion that... that the police domination type coercion that Miranda was concerned with.
William H. Rehnquist: Well, did you... I would have answered that question from Justice O'Connor perhaps a little differently. Do you think trickery is a subspecies of coercion?
Marcia L. Friedl: There... trickery can constitute... it would be trick and not merely trickery. For the most part, trickery will never come close to any kind... even present pressure. And, again, in this... the undercover context here the very trickery of not allowing the suspect to know that you are acting as a governmental... governmental agent... that very trickery takes away all of the concerns that Miranda had for police domination.
William H. Rehnquist: I would think trickery might pose other questions. But it certainly doesn't... it isn't the same thing as coercion.
Marcia L. Friedl: Certainly not, and Hoffa made that clear. In Hoffa, which was not... did not occur in the prison... but this Court stated that because an undercover agent was involved, there was absolutely no potential for coercion at all.
Thurgood Marshall: Why did they give this man Miranda rights afterwards?
Marcia L. Friedl: Because afterwards--
Thurgood Marshall: Well, I mean, if they didn't have to give them before, why... what... what period was there when they decided they gave him Miranda rights?
Marcia L. Friedl: --Well, when... after the... after the questioning occurred in this case on a Sunday evening and he went to court. Then he was charged with the murder to which he had confessed the evening before.
Thurgood Marshall: And then they gave him Miranda rights?
Marcia L. Friedl: They gave him his Miranda rights because--
Thurgood Marshall: After.
Marcia L. Friedl: --at that point he was having an encounter with the police officer.
Thurgood Marshall: They gave him Miranda rights after he was brought to court?
Marcia L. Friedl: Yes.
Thurgood Marshall: Is there any case that supports that?
Marcia L. Friedl: There's the... Miranda has never been applied outside the context for which it was designed, and this case certainly... and any undercover case... does not present those inherently compelling circumstances that require the prophylactic Miranda warning.
Thurgood Marshall: What was the difference between the conditions in Miranda and the conditions here?
Marcia L. Friedl: The conditions in Miranda were... were... you had... you have... Miranda contemplated a police officer interrogating a suspect in custody and there is... there is a potential interplay there between the perception of the suspect in terms of the government... the governmental power of incarceration and the governmental power--
Speaker: Well--
Marcia L. Friedl: --over future events which there is that very distinct interplay that does--
Speaker: --The governmental--
Marcia L. Friedl: --not exist in--
Thurgood Marshall: --power of incarceration was the same in both, wasn't it? He was in jail.
Marcia L. Friedl: --But he didn't perceive the government's power--
Thurgood Marshall: It wasn't... it wasn't the same jail, but it was a jail.
Marcia L. Friedl: --It was a jail. But where the suspect doesn't perceive that he's being incarcerated by... where he doesn't perceive a connection between the governmental power of his questioner and the government's power of incarceration, then there's no interplay. And without that interplay Miranda is wholly unnecessary. The entire basis of Miranda is to provide... was to give directions--
Thurgood Marshall: Well, in... in case you don't know it, incarceration is incarceration.
Marcia L. Friedl: --Yes, but it--
Thurgood Marshall: You are in jail--
Marcia L. Friedl: --of course, and we are--
Thurgood Marshall: --And I don't... I don't know of any difference. Jails are jails.
Marcia L. Friedl: --We aren't disputing the fact that the Defendant Perkins in this case was incarcerated. The question is whether he was... whether he was in custody for purposes of Miranda, interrogated for purposes of Miranda and whether in general he was subjected to any kind of--
Thurgood Marshall: Well, what was the difference between the interrogation here and in Miranda?
Marcia L. Friedl: --The difference is the suspect was able to... that in Miranda, Miranda contemplated the situation where the police officer is a known police officer... is interrogating a suspect.
Thurgood Marshall: Is there any... is there any difference between the known police officer and the unknown police officer?
Marcia L. Friedl: Absolutely. A world of difference.
Thurgood Marshall: Is that... well, what is the other difference?
Marcia L. Friedl: The... the difference is that when a suspect doesn't perceive that he's speaking to a governmental agent then the... those pressures that Miranda was talking about, the pressures of police domination, can't occur.
Thurgood Marshall: Well, why did they insist that he be in custody in Miranda?
Marcia L. Friedl: Because... because interrogation is not sufficient. It's clear that... that it's not an inherently... although it does create pressures for a... for an individual to go into the police station and speak with the police officer. That's going to always create pressure. But it's not the type of inherently compelling pressure that Miranda is talking about. I mean, that's why Miranda also requires, and this Court has subsequently interpreted Miranda to require both custody and interrogation. The... the... the... the only risk of pressure that is... necessarily accompanies undercover questioning in the jailhouse arises from the psychological... that... that was noted by this Court in Henry... the psychological need to reach for aid when a person is in confinement. Now, even in the Sixth Amendment context where the very concern of... is interference with an indicted suspect's right to protection from his own ignorance in confrontations with the government. Even there, this Court in Coleman v. Wilson held it permissible for an undercover cellmate to be placed in a cell to act as a listening post. Now, for an undercover agent to further guide that conversation by crafty questioning would establish a confrontation in which the suspect's Sixth Amendment right to counsel would be violated... would be... clearly have been circumvented. But that same conduct, this guiding of the conversation which occurred in this present case, can't... doesn't place any pressure whatsoever on the suspect and much less the inherently compelling pressures that were contemplated by Miranda. I'd like to reserve the remainder of my time for rebuttal.
William H. Rehnquist: Thank you, Ms. Friedl. Mr. Evers. No, I'm sorry. Mr. Larkin. I should have resorted back to my chart. I'm sorry.
Dan W. Evers: He's a government agent.
William H. Rehnquist: Yes. [Laughter]
Paul J. Larkin, Jr.: But the question is are you going to interrogate me.
Antonin Scalia: Well, we know you're a government agent.
Paul J. Larkin, Jr.: Thank you, Mr. Chief Justice, and may it please the Court: As my colleague has pointed out, the police practice at issue in this case is categorically different from the one that the Court addressed in Miranda. Miranda addressed and was primarily concerned with the classic police stationhouse interrogation. And the later cases have also been concerned with the functional equivalent of that... interrogation in the squad car or at the scene of the crime after a person has been arrested and handcuffed.
Speaker: How about Mathis?
Paul J. Larkin, Jr.: Mathis involved the situation in which the person was in custody and questioned by a known government agent. It's the latter fact that is absent here. Now, we've also taken the view in Point A in our brief that the mere fact that someone is in jail does not automatically mean he must be given Miranda warnings because the context in which there is some type of questioning should also be considered. But in this case the primary difference between the factual situation we have and what you had in Mathis was this was an undercover agent. As my colleague has pointed out, that really distinguishes this case greatly. In fact, the fact that Respondent was in jail was really significant in this case for only two reasons. One, it allowed the police to find him. After all, the police tried to put Charlton and Respondent together outside of jail, at a motel, in order to find out if Respondent was responsible for the Stevenson murder, but Respondent was nowhere to be found. They found him in a jail and then they had to try something else. Secondly, the fact that Respondent was in jail meant that Officer Parisi could approach him with a phony escape plan rather than use some other type of ruse, such as the ruse they would have used if they had found Respondent at the motel. But the fact that he was in jail did not in any way coerce him into confessing. Look at the case from his perspective and look at the setting in which he found himself. Did Respondent confess in order to avoid having the book thrown at him by a known police officer? No. Respondent thought he was hatching an escape plot with two fellow prisoners. Did Respondent confess because he believed that the agent had some authority to force him to confess? Respondent confessed because he believed that the agent was in fact vito bianco, a fellow hit man, who could be trusted with Respondent's secret.
John Paul Stevens: Mr. Larkin, let me give you another hypothetical. Supposing he's in the interrogation room and they brought in a police officer and they passed him off as a newspaper reporter. So this newspaper reporter, he wants to interview you for some future story, and they sold him a bill of goods in selling the book rights, or something, to his story. Would that be permissible?
Paul J. Larkin, Jr.: It would... it would depend because it's... it's the part of your hypo that would have to be elaborated. If you don't have any real break, unlike here where you really do, then, as a practical matter, you could say that some of the intimidating presence of the police officer would immediately carry over. I mean, for example, if they brought a police officer disguised as a reporter in immediately after the defendant--
John Paul Stevens: Oh, no. I say before any of that happens. So, there's... there's no... no... they just... he's in custody. The only... he's, as a matter of fact, in custody but he's not been threatened in any way or no intimidating circumstances other than the fact that he's in custody, just as this man is in custody. And you just... instead of using a fellow inmate, you just use somebody dressed up as a reporter or a... or a... how about a priest? And say he's... come in and say, I'd like you to tell me what really happened.
Paul J. Larkin, Jr.: --Well, those are two different--
John Paul Stevens: A police... a police officer dressed as a priest, I mean.
Paul J. Larkin, Jr.: --Yeah. They're two different hypos and I would give different answers to each one. I would say that Miranda wouldn't apply to either one, but the latter one, with the priest, would violate due process. Not the newspaper reporter. And so for purposes of this case, they would... since this involves only Miranda, they would be treated the same. There's no intimidating presence there. I mean, in that sort of circumstance, unlike... you know, unlike this case--
John Paul Stevens: But why is the... why is the priest... phony priest a violation of due process?
Paul J. Larkin, Jr.: --Well, it would be a violation of due process because it would be... it would fit within one half of the two concerns the Court has in confession cases. One half on the due process is whether or not the police practice is likely to elicit a false confession.
John Paul Stevens: Well, but that certainly wouldn't elicit false confessions.
Paul J. Larkin, Jr.: That's right.
Speaker: You don't--
Paul J. Larkin, Jr.: This fits in the second half--
Speaker: --No.
Paul J. Larkin, Jr.: --which is whether or not the practice is one that is offensive to civilized standards of decency.
John Paul Stevens: Well, why is that so offensive? I mean, why is that any more offensive than sending in another fellow saying, I want to... let's go out and escape together? I mean, why... I don't know why a phony priest is any more offensive than a phony prison break.
Paul J. Larkin, Jr.: Well, there are... one, dealing with someone who's about to commit a crime isn't one that society is unwilling to allow the police to do. It's an essential part of law enforcement. It's like sending in an undercover officer to... to purchase narcotics in a crack house. In the case of a priest, society, I think, is unwilling to allow the police to do that because it may prey on a person's peculiar sensibilities. It's one that, you know, society has always recognized. That's why, for example, society generally would, I guess, recognize a communication in confidence in that context. But communications, like the ones here that are designed to put together an escape plot and to beat up an elderly prison guard in the process, don't even remotely fall into that for the circumstance. So I don't think society would put this type of practice that we have here out of bounds. In fact, but for the fact that this was a jail cell--
Anthony M. Kennedy: Well... well, the fact... the fact, Counsel, that he agreed that he was going to beat up a prison guard... your case really doesn't turn on that.
Paul J. Larkin, Jr.: --Well,--
Anthony M. Kennedy: Your case turned on the fact that he's not in custody.
Paul J. Larkin, Jr.: --Well, it--
Anthony M. Kennedy: Or that... that he... that there is no coercive environment.
Paul J. Larkin, Jr.: --It doesn't turn on the fact that he agreed to... to beat up a prison guard. What it does, I think, is add a little context to what happened.
Anthony M. Kennedy: It adds a little color, but it adds nothing legally significant, correct?
Paul J. Larkin, Jr.: Well, the coloring is important. I mean, after all, the reason for having a police officer there is a big distinction, a crucial one, we believe... is that it was essential to Miranda that the suspect would know that the person sitting across the table from him in a police interrogation room was a police officer. The police officer is the one who holds the suspect's fate in his hands. The police officer is the one who may instill in the suspect the belief that unless he confesses he'll never be released, or that if he is silent and stands on his rights, he is likely to pay a very dear price for it. So there... that... these sort of facts are important. And undercover officer, by definition, can't use the fact that he's a police officer as a means of intimidation. An undercover officer obviously can't threaten someone who is already in jail when the officer is posing as a fellow prisoner, with having the authority to keep that other person in custody until he confesses. The only weapon open to an undercover officer is guile. And that, as the Court has recognized in cases such as Hoffa, in cases such as Atchley, in cases such as Frazier v. Cupp--
Thurgood Marshall: There was another difference in Hoffa. Hoffa was not in custody.
Paul J. Larkin, Jr.: --Correct. This--
Thurgood Marshall: Well, why say it's the same as Hoffa?
Paul J. Larkin, Jr.: --Well, at the... at that level that doesn't distinguish this case from Atchley. It--
Speaker: [inaudible]
Paul J. Larkin, Jr.: --Well, in Atchley--
Thurgood Marshall: Just ignore the fact that Hoffa was not in custody.
Paul J. Larkin, Jr.: --Hoffa was not but Atchley was. Atchley was questioned by an undercover, by an insurance agent who was wired.
Thurgood Marshall: And in custody.
Paul J. Larkin, Jr.: No, Atchley was in prison and he was questioned by--
Thurgood Marshall: He was in prison?
Paul J. Larkin, Jr.: --Yes. Prison or jail. He was questioned by an insurance--
Thurgood Marshall: Hoffa was in his office in his home.
Paul J. Larkin, Jr.: --No, no. I didn't say Hoffa. I said Atchley. In--
Thurgood Marshall: Well, I'm talking about Hoffa.
Paul J. Larkin, Jr.: --No, I agree. There's that difference between this case and Hoffa.
Thurgood Marshall: Well, why do you keep bringing it up?
Paul J. Larkin, Jr.: Well, because--
Thurgood Marshall: Do you promise not to bring it up again?
Paul J. Larkin, Jr.: --I promise I won't bring it up again. [Laughter] But that... that sort of fact... even though I won't mention the name of the case... is... is crucial to looking at this sort of problem. As we've explained in our brief and as the state has explained in its brief and at oral argument, the fact is really that he was not subject to a custodial interrogation, which is a concept. It's not simply custody, it's not simply an interrogation in its entire concept. This scenario here doesn't engage the types of concerns that gave rise to Miranda, and obviously it can't be regulated by the same ground-rules without simply forbidding it altogether. For the reasons we've given in our brief and that I've tried to summarize here, because this is not the same type of setting and can't be regulated in the same way, the police shouldn't be made to try to act in the same way. Unless the Court has any further questions--
John Paul Stevens: Let me just summarize it. Your... your basic position is this is not a Miranda case, this is a due process case, and there's nothing offensive about the practice?
Paul J. Larkin, Jr.: --Correct.
William H. Rehnquist: That's your... yeah, okay. Thank you, Mr. Larkin. Now it's your turn, Mr. Evers.
Dan W. Evers: Mr. Chief Justice, and may it please the Court: I represent the Respondent, Lloyd Perkins, in this case. We come before this Court today requesting Your Honors to affirm the judgments of the courts below. The judgment of the Appellate Court of Illinois, Fifth Judicial District, which affirmed the order of the Circuit Court of St. Clair County suppressing statements made by my client, Lloyd Perkins, to the undercover agent, John Parisi. It is our contention that the well-settled law and principles of Miranda apply to this case.
Speaker: Well, what's your closest case?
Dan W. Evers: Our closest case?
Byron R. White: What's... what's... what case here gives you most support do you think?
Dan W. Evers: I believe almost every Miranda case decided by this Court--
Byron R. White: Well, which one... which one is closest?
Dan W. Evers: --In terms of the facts of the case, I would have to say Mathis, followed by United States v. Henry.
Byron R. White: Well, Mathis... you don't think it makes any difference that the person being interrogated didn't know that... that there was... that he was dealing with a police officer in this case, whereas in Mathis he did?
Dan W. Evers: No, Your Honor. I don't believe it makes any difference because the Fifth Amendment is not only a right to the people, but a limitation upon the government and it's directed as a limitation to the government--
Byron R. White: Yeah, but what--
Dan W. Evers: --government, and--
Byron R. White: --What was Miranda aimed at anyway? Was it a prophylactic rule against coercion?
Dan W. Evers: --It's a prophylactic rule against coercive governmental action. In our case here we will contend, and we do contend, that there is governmental action which can be coercive. And that coercion is found in the trickery, deceit, cajoling or the ruse used by the undercover agent here, John Parisi.
William H. Rehnquist: Well, but coercion... if you look up coercion in the dictionary, it means something quite different from trickery or ruse or deceit. Coercion means, you know, overwhelming the person with the threat of government force in some way. Trickery or deceit may have equally significant consequences for his decision, but they're... they're not the same thing.
Dan W. Evers: Well, I would suggest that trickery and deceit is a subspecies of coercion.
Antonin Scalia: Are you-- --But it's... but it's not true. I recommend you to the nearest English dictionary. [Laughter] It's the difference between the con man who tricks you out of the money and somebody who says, give me your money or I'll break your leg. I mean, you don't see the difference between those two? You consider both of those to be... to be coercion?
Dan W. Evers: Well, in--
Antonin Scalia: I mean, one--
Dan W. Evers: --terms of how you present the trickery, I think that it can be coercion because if--
Antonin Scalia: --In one case you give your money over voluntarily. In the other case it's exacted under... under threat of harm.
Dan W. Evers: --The form of the trickery can lead towards the coercion by compelling the person to believe that he has to do something when his free will would not so incline him to do. I believe that you're looking at coercion as merely physical force. I would suggest that coercion can be psychological and mental force also. I believe that it's important to look at this case in terms of what the procedural posture of it is and what happened in the courts below because the facts of the case are this. The Defendant Lloyd Perkins was charged with murder in the Circuit Court of St. Clair County.
Harry A. Blackmun: Where--
Dan W. Evers: He filed--
Harry A. Blackmun: --Where is that? Belleville.
Dan W. Evers: --That's Belleville, East St. Louis.
Harry A. Blackmun: It isn't... it isn't Mt. Vernon?
Dan W. Evers: No, Your Honor. Mt. Vernon is Jefferson County and it's several miles to the east. After the charge was made, the Defendant filed a motion to suppress the confession. A hearing was held before the Circuit Court of St. Clair County at which evidence was presented. This evidence is the facts upon which the circuit court based its decision. Its decision was to take those facts and apply the settled law of Miranda to it and conclude whether Miranda had been violated or whether it had not been violated. The circuit court determined as a factual matter that Miranda had been violated. It concluded that the Defendant was in custody, he was in jail. It concluded that he'd been interrogated or questioned. Parisi and Charlton specifically questioned the Defendant, Lloyd Perkins. And it concluded that Parisi and Charlton were law enforcement agents and they initiated that questioning. Those are the facts found by the circuit court. When the state filed the notice of appeal from that decision, it went to the Appellate Court of Illinois and in the Appellate Court of Illinois the state had to bear the burden of showing that those factual determinations were incorrect, were manifestly erroneous. The decision of the Appellate Court of Illinois is nothing more than a statement that those facts were not manifestly erroneous. And I would suggest that before this Court... after the state loss in the Fifth District Appellate Court, a petition for leave to appeal to the Illinois Supreme Court, and that court denied leave to appeal and the state brought this cert petition which this Court grated... I would suggest that this Court also look at what happened below as findings of fact which need to be given due deference because they are not manifestly erroneous.
Antonin Scalia: Mr. Evers, if trickery is just as bad as... as... as what... what we normally call coercion, why... why should Miranda only apply to trickery when... when the person tricked is in custody? Why... why isn't it just... why isn't the trickery just as offensive, and why isn't there just as much coercion, if you want to call trickery coercion +/? If Parisi had... had approached your client in the hotel room instead of in jail, would you apply Miranda to that as well?
Dan W. Evers: I would agree that Miranda--
Speaker: You would?
Dan W. Evers: --would not apply for the very important reason--
Antonin Scalia: Would... would not apply? Would not apply?
Dan W. Evers: --Miranda would not apply to the hotel situation--
Antonin Scalia: Why?
Dan W. Evers: --because he is not in custody. He is where he can leave. He is where he has control to get up and leave whenever he wants.
Antonin Scalia: But he's being tricked. That's just to say that he isn't being coerced. But he's being tricked just as much. You say trickery is coercion. He's being tricked just as much whether he's tricked in the jail or out of the jail.
Dan W. Evers: I would agree with that.
Speaker: What's the difference?
Dan W. Evers: But I believe the key difference is that in a jail he is in a police-dominated, police-controlled, government institution that--
Antonin Scalia: That has nothing to do with this case.
Dan W. Evers: --would keep him from--
Antonin Scalia: He was tricked. He wasn't coerced, he was tricked. But you say that's enough, tricking is enough. But it seems to me it follows from... from what you want us to... to hold here that you should apply Miranda everywhere when... when there is trickery.
Dan W. Evers: --I would not say that, Your Honor. I would say that jails are different. Jails are where people are incarcerated, they're deprived of their liberty, and the government has an obligation to treat them with due respect towards constitutional principles. And one of those principles, I would suggest, is that they not be compelled to be witnesses against themselves and--
Antonin Scalia: I think it's worse--
Dan W. Evers: --against their free will.
Antonin Scalia: --worse to be tricked in my home than I do in jail. I would... I would get much more annoyed at a government that comes to my house and tricks me than... than one that tricks me when I'm... when I'm in the police custody. You just feel differently about it?
Dan W. Evers: I would, Your Honor. In line with this discussion, I would like to point out to the Court that this case does not involve a non-custodial setting. And I believe that's important because I believe the jail setting is the most important point. This... this case does not involve simply an informant who hears something in the jail and then goes tells the government. This case involves a specific designed plan to elicit incriminating remarks from the Defendant, Lloyd Perkins. And this is not just something that was on the spur of the moment by the police. This is a thought-out plan to get at Lloyd Perkins. It's been thought out for several weeks. And when they discovered that he was at the Montgomery County Jail in which he was incarcerated at the time for aggravated battery, they made the specific decision to get Agent Parisi. And I think that if you look at the plain holding of Miranda, you will see that this case falls squarely within the plain holding of Miranda in which Your Honors stated that these confessions or statements cannot be used unless there is demonstrated a knowing waiver of the Fifth Amendment privilege against self-incrimination. It's not that they were not able to go and talk to the Defendant Lloyd Perkins. They were able to go and talk to him. It's that they were not able to use that information unless they got a valid voluntary waiver. I don't think the state would contend at all that if a uniform police officer went to Lloyd Perkins in his cell and said, I want to talk to you, that he had to give Miranda to the Defendant. We see no difference between the uniformed police officer and the undercover agent. They are both agents, law enforcement agents of the state. They both have to follow the dictates of Miranda. Under Miranda there has to be questioning or interrogation. I would suggest to this Court that that is amply demonstrated by the record. What happened is that Charlton and Parisi went to Lloyd Perkins, spun this tale and then started asking him questions specifically designed to grab the information that they wanted. They did not sit around and just talk about the weather or talk about anything that was of no consequence and Lloyd Perkins blurted this out. They talked about and they questioned specifically to get to what they wanted. And when Lloyd Perkins might become quiet, they would chime in and ask another question designed specifically to bring something else out, something to be more incriminating. And, of course, Miranda is concerned with their being a law enforcement agent involved. It's not just the Fifth Amendment that is important because there was questioning and there was custody. It's important because there's a governmental agent involved, not some private citizen. The key concern in Miranda is that the government has to be circumscribed in its conduct towards its citizens. Here we definitely do have a law enforcement agent. He was an undercover agent in the narcotics trade. He was a police officer, and he was sworn to uphold the laws of the State of Illinois and the Constitution of the United States. The former Department of Corrections inmate, Charlton... by this time he had become a law enforcement agent because he was working hand-in-hand with the police. He was following the dictates and plans of the police and his only purpose within this ruse was to trick and cajole Lloyd Perkins into the confidence of Agent Parisi. We would also suggest that the concerns of the Court in Miranda, concerns that powered the decision of that Court, are present in this case. In Miranda this Court was concerned about trickery. It was concerned about deceit. It was concerned about the police-dominated atmosphere of custody and jails. In Miranda this Court talked about the psychological ploys that could be employed and was very concerned about the psychological coercion exerted by the environment in custody. To touch upon a concern of Justice Marshall a little while ago, if this case is ripped out from the cover of Miranda, then you will simply have the police circumventing Miranda by using undercover agents in the old Mutt and Jeff technique in which now, instead of Jeff being the good cop, he has become the good companion, the good inmate, while Mutt is the terrifying police officer who sets up and produces the mental coercion in the defendant, in the accused, in which he becomes susceptible to the ploys and trickery of the undercover agent. If this Court removes the protections of Miranda from these situations, then you will simply have the forms of psychological coercion being moved into this arena. Finally, I'd like to note that this Court has noted that this is a factual matter. In Patterson v. Illinois, this Court noted that surreptitious conversations between an undercover police agent could be interrogation under Miranda and Miranda would apply. Under footnote 9 of Patterson, the issue is not whether Miranda applies. The issue is the factual question of whether there is custody, whether there is interrogation and whether there is a police officer. We have all three elements in this case. And that's what this Court has to focus upon, is those three elements of Miranda. Custody, interrogation and questioning, and the law enforcement officer initiating that questioning. Consequently, if Your Honors do not have any other questions--
John Paul Stevens: Let me ask you just one question, if I may. Would the case be different in your view if the law enforcement officer said nothing and the other inmate did all the questioning?
Dan W. Evers: --Charlton?
John Paul Stevens: I don't have the names in my--
Dan W. Evers: In my view it would not because under my view of the case Charlton is a law enforcement agent by this. He is acting under the authority and orders of the police. If you're asking whether the undercover agent is sitting around with somebody who was not working with him and he just listened to a conversation between those two, I would say that would be different, that there was no interrogation between the police officer, the law enforcement agent, and these two inmates. I think that would be the difference between a listening post and an interrogator.
Speaker: --Thank you.
Dan W. Evers: Consequently, Your Honors, we would ask that you affirm the judgments below and affirm the suppression of the statements.
William H. Rehnquist: Thank you, Mr. Evers. Ms. Friedl, you have six minutes remaining.
Marcia L. Friedl: Well, Your Honors, if there aren't any questions, for all the reasons presented by the State of Illinois and by the Solicitor General's Office, we request that the Illinois Appellate Court's extension of Miranda be reversed.
William H. Rehnquist: Thank you, Ms. Friedl. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.


Warren E. Burger: We will hear arguments next in United States against Baggot. Mr. Wallace.
Lawrence G. Wallace: Mr. Chief Justice, and may it please the Court: This case which is here on the government's petition to the Seventh Circuit presents a question concerning court authorized and court supervised disclosure of grand jury materials to the Internal Revenue Service pursuant to Rule 6(e) of the Rules of Criminal Procedure. Several issues were litigated below, but we confined our petition for certiorari to a single issue, not because we agree with the Court of Appeals' decision regarding all of the other issues, but because we wanted to present the Court with the issue of greatest importance administratively and the issue that reflects a long-standing practice of many years in the issuance of Rule 6(e) orders by district courts. The case arises out of a special grand jury investigation of commodity futures trading transactions before the Chicago Board of Trade. The grand jury was investigating related criminal violations of the Commodities Exchange Act and of the Internal Revenue Code and was assisted by Internal Revenue Service agents as well as other personnel to help in the analysis of the information that was being secured. The grand jury proceedings itself with respect to Mr. Baggot culminated in a guilty plea, which was accepted... a plea of guilt to misdemeanors for violations of the Commodities Exchange Act, violations that involved participation in rigged commodity trades that produced substantial paper losses, which he deducted in preparing his tax return, and yet he recovered most of those losses in the form of cash kickbacks from his trading partners. So, the guilty plea was based on a theory of violations that have implications for tax purposes. After some preliminary proceedings which are not important for purposes of what is before this Court, the United States Attorney sought disclosure at the request of the chief of the Examination Division of the Internal Revenue Service of the grand jury materials for their use by the Service in determining whether there was a deficiency in Mr. Baggot's tax return. And, the question we have presented is a question that arises under Rule 6(e)(3)(C)(i) whether the disclosure that was requested here that would be permitted in the absence of authorization by the Court is disclosure that would be directed by a court preliminarily to or in connection with a judicial proceeding. The answer is to be secured principally from analysis of the language in legislative history of this provision as it was reenacted with a textural rearrangement in 1977. Before proceeding to that, I wish to make a few observations to put the question in some perspective in assessing the language in legislative history. The first is, perhaps the too obvious point, that we are not dealing here with a situation that involves any taint or impropriety on the part of the government. The investigation of the grand jury was conducted as it was authorized to be conducted, and the participation of the Internal Revenue Service agents was in no way improper. It is specifically provided for in Rule 6(e), and, as a matter of fact, because this grand jury investigation commenced before the recent amendment of Rule 6(e)... the 1977 amendment, there was an order by the court authorizing the Internal Revenue Service agents to participate, to assist the grand jury and the United States Attorney in analyzing the evidence that was being secured. And, no use for any other purpose was attempted to be made of this information except upon application to the court to secure the proper court order under Rule 6(e). So, we are not dealing with any sort of taint or improper conduct from that standpoint. Nor, is there a basis in this case for what has been referred to as abuse of the grand jury, whether or not it is a term of art. The fact that there had been a guilty plea accepted in the case certainly indicates that the grand jury was not being used as a subterfuge for a non-criminal purpose. Nor, on the face of it is there any injustice in the idea that when evidentiary materials have come forth which indicate not only a violation of criminal law but also a deficiency in the payment of taxes that are owing. Nor, there is certainly no injustice in taking steps to see to it that those taxes are paid by Mr. Baggot as they would be by any other taxpayer. From the standpoint of what seemed to be the concern of Congress in 1977 when it recodified this Rule, a concern that a safeguard be included against a cat's paw type of use of the grand jury to obtain evidence for civil purposes and only for civil purposes in ways that were not authorized to the agencies to obtain their evidence--
Byron R. White: Mr. Wallace, I notice the way you put that. I would suppose you would think you could use the grand jury for dual purposes as long as you had a bona fide criminal investigation going on that you could conduct a parallel civil investigation using grand jury material?
Lawrence G. Wallace: --That is my understanding.
Byron R. White: That is the government's position?
Lawrence G. Wallace: It is also my understanding of what this Court said in Proctor & Gamble. It said much the same thing in a case called United States against Kordel, 397 U.S. 1, where the complaint was made the other way around that the civil investigation was being used to secure information that would be used in the prosecution--
Warren E. Burger: Has it not some times happened that information from one of the civil... one of the non-criminal divisions not secured by discovery but just their own investigation, then might be referred to the Criminal Division for prosecution when some lawyers in the Division make a judgment that there is criminal conduct involved?
Lawrence G. Wallace: --It happens quite frequently, and I believe it is the duty of those lawyers when they see evidence that a crime has occurred to turn it over to the prosecuting attorneys--
Warren E. Burger: Is it not a fact that they might be violating some federal statute if they didn't, is that not so?
Lawrence G. Wallace: --I would not want to go that far, but an argument could be made to that effect. But, it certainly is a common practice not only for attorneys within the Department of Justice but in the agencies and departments to do that. And, this Court has many times referred to the fact that the Internal Revenue Service refers matters to the Department of Justice for criminal prosecution. It has been a criterion used in cases dealing with the enforcement of Internal Revenue summonses which are to be used prior to these referrals and not subsequently. But, the discussion always assumed that it was a proper function to make the referrals to criminal prosecution when evidence of wrong-doing was found. The fact is many statutes impose law enforcement duties, both criminal and civil, on attorneys and others for the government. And, while I do not wish to denigrate the concern that Congress had in the safeguard that it wanted to provide that the grand jury not be subverted to uses wholly for a civil purpose. I think the danger of that can easily be exaggerated. From where I stand within the government, the complaint that we hear most of the time from the departments and agencies is that they cannot get the U. S. Attorneys to use the grand jury as often as they would like to pursue the criminal violations that the departments and agencies think they have uncovered because grand juries are time consuming and resources are limited and the use of the grand jury has to be rationed. While we do not in any way advocate not observing the safeguard that Congress intended in this Rule, we do not think there is a great danger that the United States Attorneys are subject to manipulation for use of the grand jury for civil purposes. In most instances, they have all they can do to use it for all of the criminal cases that might warrant its use. That is the experience we are having these days, at least. The other... before we proceed to the language and legislative history at issue here... the other perspective that I think is useful to keep in mind is whether the application that was made by the Internal Revenue Service here poses any of the dangers to the integrity and efficacy of the grand jury process itself that this Court has observed from time to time. We set forth on pages 31 and 32 of our brief, the five standards of the Rose case that this Court twice approved. Because the grand jury proceeding had been completed here and particularly because it had been concluded with a guilty plea, it is only the fourth of these standards that could possibly have any relevance here, the encouragement of free and untrammeled disclosure by witnesses, by persons who have information with respect to the commission of crimes, or as the Court said in Proctor & Gamble, to encourage all witnesses to step forward and testify freely without fear of retaliation. There are two possible impediments to look toward under this criterion. One is whether the danger of personal liability might discourage a witness from testifying freely, and that seems unlikely in this context if a witness, even himself not the target, were to disclose that he was a party to tax fraud, or engaged in tax fraud himself. Regardless of whether that information could be disclosed to the IRS for civil purposes, it could possibly lead to criminal proceedings against that witness for tax fraud. It is hard to see that there is a substantial additional deterrent placed on the witness if he knows that it might also lead to an assessment of a tax deficiency against him for collection purposes. With respect to the possible retaliation from employers or other persons because the witness disclosed a wrong-doing that he knew about, this is something that has already been disclosed in the grand jury to attorneys for the government, and because under 6(e) the further disclosure would be under the protection of a court order and would be requested by the United States Attorney himself who has an interest in protecting witnesses against retaliation. Protective provisions could be included in the court order. There could be deletions made from what is disclosed. There is because of the participation of the court--
John Paul Stevens: Mr. Wallace, why do you say that it would always be at the request of the United States Attorney? Couldn't the IRS go in independently and ask for it?
Lawrence G. Wallace: --They do not have authority to go into court... into the district courts. They have to ask the Department of Justice to handle that for them. They lack the statutory authority to do that. It is not that they would not have authority under the Rule.
John Paul Stevens: I see. Since I have interrupted you, what about an independent agency, like the Federal Trade Commission or the Labor Board. They cannot get any of this material, can they?
Lawrence G. Wallace: Well, they could request it. Of course, the judge himself would be aware of any sensitive material of this sort, and the United States Attorney could participate. There are cases that have held that requests by administrative agencies for materials to be used in an administrative hearing are not within the coverage of 6(e). We do not think the correctness of those cases is really at issue here.
John Paul Stevens: As I read your brief, you assumed those cases were correctly decided?
Lawrence G. Wallace: We have assumed it for purposes of argument, but I do want to caution the Court that the lower courts are by no means unanimous on this. There is a very recent decision by the District Court in the Northern District of Oklahoma, which I should bring to the Court's attention, United States against Robert Sutton, Civil Docket No. 1069B, in the Northern District of Oklahoma, which upheld the propriety of a Rule 6(e) order giving the Department of Energy materials from a grand jury investigation of failure to observe price controls on gas which would be used in an administrative hearing in the Department of Energy, and which subsequently have been put to use in a civil enforcement proceeding by the Department of Energy to disgorge the unlawful profits that were secured. But, that is not a de novo proceeding of the kind that you have in a tax case in the court. It is a proceeding on the administrative record with deference to the findings of the agency. That is in our view an open question that need not be decided in this case. We have here a request for materials to determine a tax deficiency which then would be contested in either the Tax Court or the District Court or the Court of Claims in a de novo proceeding in which the findings would be made judicially--
John Paul Stevens: Unless the taxpayer paid his bills. Unless--
Lawrence G. Wallace: --Well, unless the taxpayer pays the bills. But, of course, any case could be settled even after it is brought. We are dealing here with a provision textually which speaks to preliminarily to or in connection with a judicial proceeding. If the preliminarily to language is to have any independent meaning or use, there has to be some time prior to the actual instigation or certainty that litigation will be instituted, that it will apply to. We think that in this context the legislative history might clearly ratify what had been a long-standing practice under Rule 6(e) particularly with respect to disclosure under court order of these materials to the Internal Revenue Service for their use for determining tax deficiencies, something that to the best of our ability to ascertain it has been done hundreds of times every year under Rule 6(e) in district courts, usually ex parte without any recorded decision and since long before litigation about this kind of thing became fashionable and there were reported cases. In looking at the legislative history before--
John Paul Stevens: --Mr. Wallace, can I interrupt you right there? Can you tell me what the clearest written evidence of that long-standing practice is?
Lawrence G. Wallace: --Well--
John Paul Stevens: I do not really... I do not see it documented here.
Lawrence G. Wallace: --We do not have it documented. It is hard for us to document it. We have found forms in the Internal Revenue Service regional manuals... forms indicating how 6(e) orders should be applied for. We do have in this particular legislative history, the very thing I was about to turn to, testimony before the House Committee which is the only one that held hearings that while it doesn't document it completely, it does indicate that this has been the general practice. I think the Committee report takes on new meaning if read in light of this testimony which I would like to now turn to... testimony by Judge Becker of the eastern district of Pennsylvania, who was really the star witness at these hearings, and I say that advisedly because Congress was not in this instance satisfied with the draft of the Rules that the Advisory Committee had submitted, and instead rebuilt its own draft on the basis of testimony and again and again Judge Becker's testimony was referred to. Just to give the Court a flavor of what it was that the Committee was building on, I would like to read a few paragraphs--
Warren E. Burger: Where do we put our finger on that, Mr. Wallace?
Lawrence G. Wallace: --It is in the hearings that we have cited in our brief. We do not have it reprinted for you, which is why I want to read it to the Court.
Warren E. Burger: Oh, very well.
Lawrence G. Wallace: I am reading from page 36 of the printed report of the House hearings, and this is during Judge Becker's testimony. He says, "I will say this"... and this is as close as I can come to answering Justice Stevens question... "that in my district all of the 6(e) orders or most of the 6(e) orders have been in IRS cases. " "We have them in IRS cases because the IRS has requested the 6(e) order for its own protection. " This has been in order to enable the IRS attorneys to participate in assisting the U. S. Attorney as well as then submitting another request that the materials be turned over, and he gets to that as I go on. "When you are dealing with agency access. " --and I am reading from Judge Becker again... "the problem is not the problem of later prosecutions but the problem of later civil use. " "The agencies feel that if they had a 6(e) order they are protected against claim of abuse in the event they later use the information civilly. " "In response to a question posed about the question of later civil use, the case law in that area, which includes the 1956 grand jury case, which Mr. Seigel referred to, the Seventh Circuit Case, and my Pflaumer case, have made the availability of later civil use by the agency turn on the question of bad faith in pursuing the grand jury investigation. " If the Court finds that the grand jury was really a subterfuge to obtain this information for the agency or for civil use, then the Court has the power to say you cannot use it civilly. You cannot proceed against this individual. On the other hand, if the Court finds that there was no bad faith, then they can use it civilly. There are investigations such as the one Mr. Seigel described where they pursue a criminal tax investigation with the aid of the IRS. If the investigation was in good faith or for a valid criminal purpose, and it does not turn up in the final analysis sufficient evidence of criminality, I think the prevailing case law is that it can be used civilly if there was no bad faith. In light of that and there were repeated references to the IRS in his testimony and other testimony and repeated references to his other opinion, the Hawthorne case as well as the Pflaumer case, he was a witness because he was the author of two of the more extensive opinions at the time. In light of that, there is added significance to the portion of the Senate Committee report based on these same hearings because the Senate relied on these hearings and did not conduct its own hearing that we have reproduced on pages 28 and 29 of our brief in which they said quite explicitly there was no intent to preclude the use of grand jury developed evidence for civil law enforcement purposes. On the contrary, there is no reason why such use is improper assuming that the grand jury was utilized for the legitimate purpose of the criminal investigation. And, then at the conclusion of the paragraph the two cases cited are Proctor & Gamble and Hawthorne. The Hawthorne citation which we have discussed in some detail in our brief takes on added significance in the fact that Judge Becker repeatedly referred to it. It is his opinion and in context it is suggestive that Judge Becker's views themselves were being endorsed including the views that he gave to the Committee in testimony. And, the citation of Proctor & Gamble is on pages 683 and 84 which is only the concluding paragraph of the opinion. It is not the portion of the opinion that is generally looked at, but it is the portion that approves of the civil use of the grand jury materials in this particular anti-trust investigation because there was no finding that the grand jury proceeding was used as a short cut to goals otherwise barred and more difficult to reach. The Court was quite explicit in saying what was occurring here, that the suit was filed on the heels of a grand jury investigation in which no indictment was returned. The government is using the grand jury transcript to prepare the civil case for trial, and appellees who are defendants in that suit desire the same privilege. It was denied to them partly on the rationale that there was nothing wrong with the government's doing that and that a private party, and the Court was very careful to limit its discussion to a private party, has to make a showing of particularized need in those circumstances even though obviously the government which needed the materials pretty much in whole because the civil suit was the mirror image of the criminal prosecution that aborted--
Sandra Day O'Connor: Mr. Wallace, under your view what was the purpose of Congress putting in this preliminary to language at all?
Lawrence G. Wallace: --Well--
Harry A. Blackmun: Which you have not really mentioned very much in this argument.
Lawrence G. Wallace: --They did not specify what the purpose was. The language was carried over from the earlier draft of the Rule, of the 1946 draft, where it was really designed for a somewhat different purpose. It was designed to be a means of bringing court supervision into the picture because defendants were trying to interview grand jury members to get information with which to attack the grand jury's constitution, or what occurred before the grand jury. An effort was made to bring all of this under court supervision. It was simply carried forward and takes on whatever additional meaning can be found in the context of the policies being approved in this Committee report and the response to the testimony at the hearing. They did not really state what criterion they meant to use by the words preliminary to. But, they did indicate that they were knowledgeable about the fact that 6(e) orders had traditionally been used to turn over materials to the IRS for tax assessment purposes. There has to be--
Byron R. White: That is a rather broad purpose. There are all sorts of stages that the IRS goes through. Do you say that your position covers all of those stages?
Lawrence G. Wallace: --Our position covers the use, yes, at any stage of an IRS investigation to determine--
Byron R. White: So, if in connection with an audit of a tax return they want the material, they can get it?
Lawrence G. Wallace: --Well, we would take that position--
Byron R. White: Or even if they have not decided on an audit, if they are just reviewing... if they are just looking at a return, just looking at a return, and maybe they wanted to decide whether to do it or not.
Lawrence G. Wallace: --If there has been a grand jury investigation conducted that is related to tax--
Byron R. White: So, anything the IRS wants to do is preliminary to litigation, I think.
Lawrence G. Wallace: --If the grand jury materials are relevant to a tax investigation, then there is a sufficient likelihood that a deficiency will be assessed and that litigation will ensue that the standard is met as we understand it.
Byron R. White: But, litigation will ensue only if the taxpayer chooses to have it ensue?
Lawrence G. Wallace: That is correct.
Harry A. Blackmun: That is entirely within his discretion?
Lawrence G. Wallace: It is always within the discretion of one side to a controversy to agree to the position that the other side is taking, if the IRS has made a deficiency assessment.
Harry A. Blackmun: Mr. Wallace, one other question. Could Mr. Baggot have made a similar request for these grand jury materials under your theory and obtain them?
Lawrence G. Wallace: Well, I think that is very similar to the situation in Proctor & Gamble where this Court did distinguish between the particularized need a private party must show and the fact that it was proper for the government to be using the materials without any showing of a particularized need to be using the entire transcript for criminal law enforcement purposes. And, in the Douglas Oil case precisely--
Byron R. White: That would not have... Proctor would not have permitted use of the grand jury minutes by IRS people.
Lawrence G. Wallace: --No, it would not, but it permitted them--
Byron R. White: Without a court order--
Lawrence G. Wallace: --Without a court order, but it did permit the use by government attorneys for civil law enforcement purposes of the entire grand jury materials without a showing of particularized need, and the Douglas Oil opinion very carefully referred to the fact that it was a private party's request that was being considered there.
Sandra Day O'Connor: --Mr. Wallace, in a sense, if particularized need has to be established by the government, we do not know that, that is part and parcel of the other case, but if it does, then isn't the inquiry about preliminary to judicial proceedings part and parcel of that same test, in effect. The closer it is to a judicial proceeding or the more involved it is with it, the more the particularized need has been established. Isn't kind of part of a the same inquiry?
Lawrence G. Wallace: Well, I do think that in the context of showing of particularized need that a private party must make, the eminence of the court proceeding is what enables the private party to show that the kind of particularized need the court has specified to impeach a witness, to--
Sandra Day O'Connor: All right. If the government is held to a particularized need standard of some kind, the same might be true.
Lawrence G. Wallace: --Well, we, of course, have taken the position that it is not--
Speaker: Yes, I know.
Lawrence G. Wallace: --although the question is premature in this case. But, the need that the government has is the mirror image for civil enforcement proceedings of what was needed to conduct the grand jury investigation of the criminal violation here just as it was in Proctor & Gamble.
William H. Rehnquist: Of course, Proctor & Gamble did not need to deal with a particularized need of the government. It dealt with a particularized need of the defendant.
Lawrence G. Wallace: But it did approve the fact that the government was using the materials in toto and said that there was no impropriety there, therefore, not a basis for the defendant to claim a right to the same thing.
Warren E. Burger: Mr. Betar?
Samuel J. Betar, Jr.: Mr. Chief Justice, and may it please the Court: I read with interest and pleasure the tribute to the late Justice Fortas that was recently presented to this Court. Solicitor General Lee remarked, that Justice Fortas warned that the Court should be chary of overreaching. He quoted Justice Fortas thusly, "The Courts may be the principal guardians of the liberties of the people. " "They are not the chief administrators of its economic destiny. " The government argues in its briefs that they need this material so they can protect the public fist, the public revenue. We have no quarrel with the duty of IRS to collect taxes, but there is nothing to collect here. We are not here to decide the most efficient or the most expeditious way for IRS to collect those taxes. I think we are here for a very narrow purpose to decide whether under the facts of Baggot the government may pay sufficient showing to penetrate the historic rule of grand jury secrecy. What the Court of Appeals did in this case was balance the competing public interests, that of grand jury secrecy against a civil tax examination, and they properly held for grand jury secrecy. The Court recognized that a liberal disclosure policy would facilitate tax collection, but they decided that the interest in grand jury secrecy outweighed that. This case arose, Your Honors, from a letter that was sent by an IRS civil examination head to the United States Attorney, and he requested grand jury testimony--
Speaker: Who was that?
Samuel J. Betar, Jr.: --His name was--
Byron R. White: No, but what was his office?
Samuel J. Betar, Jr.: --He was chief of the Civil Audit Division in Chicago, Your Honor.
Byron R. White: This was in connection, then, with an audit?
Samuel J. Betar, Jr.: Well, no. That is what I am getting to. He requested these grand jury testimony and these documents to determine whether there is civil tax liability. They were going to have an examination to see if there should be a deficiency.
Byron R. White: But, he was in the process of auditing?
Samuel J. Betar, Jr.: No, sir, he was not.
Byron R. White: He was deciding whether to audit?
Samuel J. Betar, Jr.: Well, to be honest with you, what happened is the U. S. Attorney choned this information out of the Civil Tax Audit Division. What had happened, Your Honor, was there were three different requests for disclosure, all of which were denied by the Court below. Then what happened is the United States Attorney transferred over to the chief of the Civil Audit Division matters of public record. And, there is nothing wrong with that. He sent over the information, the plea sentencing transcript, and the day that they took the plea. He, then, said, oh my goodness, it looks like there might be something here, and he sent a letter back and said, would you please send us anything that you might have that would bear on the civil tax liability of this taxpayer. His letter is appended to our brief, Your Honor.
Byron R. White: Do you know how the matter ever got to the chief of the Audit Division?
Samuel J. Betar, Jr.: By virtue of the fact that the U. S. Attorney sent the matters of public record to him. They did not have an independent audit going against this taxpayer. Now, it is important to remember that the taxpayer, Mr. Baggot, did not plead to any tax-related violation. He plead to two commodity violations, and that information is set forth at page 3A in our appendix. There is no tax-related violation, and the Solicitor General is wrong when he says that there was. There were two commodity violations for bid rigging or what they call wash trades. Now, one reason the government does not qualify under the preliminary to exception arises from the unique statutory provisions of IRS. Congress provided that IRS has no right or no ability to initiate litigation over a civil tax liability. That right belongs exclusively to the taxpayer. Even if IRS wanted to go to court and sue somebody for paying their taxes, they cannot do it by statute. The procedure arises thusly. Normally, not in this case, an examination takes place of a return, and IRS decides whether they may compute a proposed deficiency. If they decide there is a proposed deficiency a preliminary notice of that proposed deficiency is sent to the taxpayer, and he then has an opportunity to come in and talk to that examiner and settle or pay, or he can appeal within the IRS administrative procedure to their appeals office. If he is unsuccessful there in negotiating and if he does not want to pay, IRS then issues what is called a 90-day notice of deficiency and that officially determines the amount of the deficiency. A letter goes out to the taxpayer, and it says, you owe 90 days to pay it or else. That letter of deficiency, that 90-day--
Harry A. Blackmun: The or else being to go to the Tax Court?
Samuel J. Betar, Jr.: --No, sir.
Harry A. Blackmun: Either to pay it... With a 90-day letter either to pay it or go to the Tax Court.
Samuel J. Betar, Jr.: No, it is not or go to the Tax Court because if the taxpayer decides not to go to the Tax Court, Justice Blackmun, IRS can go seize his assets. But, what happens with that 90-day letter, that notice of deficiency, it triggers the right of the taxpayer to initiate litigation. He has two choices. He can go to the Tax Court and ask them to redetermine that deficiency, or he can pay the amount owed, then file a suit in the federal district court for a tax refund.
Harry A. Blackmun: He has to file a claim for a refund first?
Samuel J. Betar, Jr.: Pardon, sir?
Harry A. Blackmun: He has to file a claim for a refund first?
Samuel J. Betar, Jr.: Yes, sir. You are right. I was just talking about the triggering of the litigation. The only, as I said, only the taxpayer has the right to file suit and that is because IRS does not have any need for litigation. If the taxpayer does not go to court, the Internal Revenue Service determination is final and an assessment was made. Now, the Solicitor General Wallace said, oh, we are here to find out about an assessment. We are a long way of an assessment. We are not any where near an assessment. Now, if the taxpayer does not pay what the assessment says, IRS can seize and sell his assets without a court order. In General Motors Leasing, this Court said that a tax assessment is given the force of a judgment. Now, here the first step has not been taken yet. There has not been an examination. There is no proposed deficiency. There is no notice of deficiency, and there is no assessment. All we have is the desire, the bear, naked desire of IRS to see if there is a tax liability. Now, the government motion here sought disclosure for use preliminary to or in connection with a judicial proceeding relating to the tax liability of the Respondent. There is no tax liability. There is not even a proposed tax liability. The Seventh Circuit, I think, rightly held that Mr. Baggot's possible tax liability was too embryonic, was too speculative, and was too uncertain--
Warren E. Burger: Well isn't it possible for any one of us to have a "tax liability" that we do not even know about?
Samuel J. Betar, Jr.: --I would certainly hope that I would know about mine, Mr. Chief Justice. I suppose that is possible under certain interpretations that IRS might make, yes sir.
Warren E. Burger: It is almost unknowable at a certain stage. If you are using the term, I take it, in a narrow sense that a liability which has been at least asserted or suggested by someone.
Samuel J. Betar, Jr.: At least suggested. We do not even have that, Your Honor.
Warren E. Burger: But you agree that any one of us could have a tax liability without knowing it?
Samuel J. Betar, Jr.: As I say, I suppose that is possible.
Warren E. Burger: In other words, the--
Samuel J. Betar, Jr.: But that is certainly--
Warren E. Burger: --Internal Revenue might take a different view of the way we have treated an item and say that it is not capital gain, it is income.
Samuel J. Betar, Jr.: --Yes, sir. I understand, and I agree with that, but that is certainly not our situation here. At best we have--
Warren E. Burger: But it goes to the meaning... perhaps the meaning of this preliminary aspect, does it not?
Samuel J. Betar, Jr.: --Yes, sir. In that regard... Now, there was a dissent in this case by Judge Pell, and I am willing to accept the definitions that Judge Pell gave for preliminary to. He said, preceding the main business or lying before, or leading to. Now, I suggest to the Court that the main business of a tax examination is the calculation of a deficiency. That is not a judicial proceeding. The calculation is an administrative function, and it is not preparatory to a law suit.
William H. Rehnquist: Mr. Betar, supposing the government had just that IRS had continued to investigate and not sought the grand jury material at this time. How far along before the filing of a deficiency notice or beyond that you say they would have to be before they could request the grand jury material and have it comply with the preliminary to requirement?
Samuel J. Betar, Jr.: First of all, I would correct you because when you say continue to investigate, they have not conducted any investigation of this taxpayer. They first made their request for these materials in March of 1978. That is over five years ago, Your Honor. And, they have not yet conducted their own investigation, and I am getting to their power. They have enormous power--
William H. Rehnquist: Let me change my question--
Samuel J. Betar, Jr.: --I will get specifically to your question. It is cited in our brief, Professor LaFave testified before the House Committee that was considering the 1977 amendments to the 6(e) rule, and the concern was not as Solicitor Wallace says, the concern was if we give administrative agencies this information for criminal purposes as they are allowed to do, the concern was that there would be leakage back to those agencies so that they would use it for unrelated civil purposes. When questioned about that, Professor LaFave said unless it was a matter most critical to their undertaking and unless they could demonstrate that they had no other comparable way of obtaining this evidence, they could not get to the evidence under the preliminary to exception.
William H. Rehnquist: --So, does that, then, embody both kind of a showing of particularized need, your answer, as well as the description of when it would be preliminarily to?
Samuel J. Betar, Jr.: Yes, sir. I think it is a two-prong test. Number one, is it preliminarily to, which involves the balancing of a competing interest among other things, and the second test is particularized need, which has been set forth by this Court.
Byron R. White: Well, you have never... I would not mind the rest of the answer to Justice Rehnquist's question about when in this process would the government be entitled to seek these materials because they have reached a stage preliminary to litigation? When in a tax case would the government ever be entitled to these--
Samuel J. Betar, Jr.: I do not know if ever, Your Honor. That is what I am saying. I suppose... I do not want to say that the preliminary--
Byron R. White: --Would you have to wait until the taxpayer sued them till they knew that the taxpayer had brought--
Samuel J. Betar, Jr.: --No, sir, but I think at a minimum they would have to use their own investigative procedures--
Byron R. White: --When is that?
Samuel J. Betar, Jr.: --They have done nothing in this case, and--
Byron R. White: That is not the question--
Samuel J. Betar, Jr.: --I do not know when that is, Your Honor. I do not know when that is. I don't think that we can... I think we can--
Byron R. White: --It isn't late enough now any way, it isn't... That stage has not been reached in this case.
Samuel J. Betar, Jr.: --Certainly not in this stage, and I do not think--
Byron R. White: It may be they would never be able to--
Samuel J. Betar, Jr.: --That is right, Your Honor.
Harry A. Blackmun: --Certainly if Mr. Baggot filed a petition to the Tax Court the point has been reached, has it not?
Samuel J. Betar, Jr.: Perhaps--
Byron R. White: But not as a preliminary--
Samuel J. Betar, Jr.: --I would say yes. That would be in connection with--
Byron R. White: --With litigation, but there would never be any preliminary to for the IRS?
Samuel J. Betar, Jr.: --I would not say never because, I was taught a long time ago that that is a bad, bad word-- [Laughter]
Thurgood Marshall: Counsel, let me give you a-- --That is not the way you win arguments. There is a man that pleads guilty to embezzling a million bucks--
Samuel J. Betar, Jr.: Yes, sir.
Thurgood Marshall: --during the calendar year of 1981, and Internal Revenue looks at his income and he reported a gross income of $2.50, would that entitled IRS to move then?
Samuel J. Betar, Jr.: Not under those facts alone. If they see that in the newspaper, they can certainly start their own Internal Revenue Service investigation. They have massive powers. They have subpoena powers--
Thurgood Marshall: When could they go for the grand jury minutes?
Samuel J. Betar, Jr.: --If there were grand jury minutes in that case, I do not think they could go for them unless they have shown that they have used their own powers.
Thurgood Marshall: I would assume that a man who pleads guilty to embezzling a million dollars that there are grand jury minutes.
Samuel J. Betar, Jr.: If you are talking, Your Honor, about a criminal case, they can have them.
Thurgood Marshall: Well, I cannot imagine the man pleading guilty to anything but a criminal case.
Samuel J. Betar, Jr.: But, you said he plead guilty to embezzlement, not to income tax violations. If we are talking about civil purposes, the primary reason for the grand jury, and it is in the Fifth Amendment, is that it is an accusatory body to bring criminal matters, felony criminal matters. It is not to be used for civil matters. This Court said in Proctor & Gamble, it would be flouting the purpose of the law if it were used solely for civil matters. I will go along with Justice White who asked Solicitor General--
Thurgood Marshall: Well, this is not solely. The man has pleaded guilty. It was used to get him to plead guilty, so that is the criminal part. That is over with.
Samuel J. Betar, Jr.: --I understand that.
Thurgood Marshall: That is over with.
Samuel J. Betar, Jr.: That is over with, but they still had no right to those grand jury minutes. What they do if they do that is they circumscribe the intent of Congress when it is an improper use of the grand jury.
Warren E. Burger: Well, suppose finally this is referred to the Department of Justice. It goes to the Tax Division, maybe sent downstairs to the Criminal Division... if it is still down-stairs... then what? You mean the Criminal Division or the Tax Division cannot use it?
Samuel J. Betar, Jr.: If there is a criminal case, Your Honor, the matter becomes public knowledge. There is testimony. It is public knowledge--
Warren E. Burger: At that stage, they may not be sure whether there is criminal liability, but on the hypothesis Justice Marshall suggested to you, there surely is an incipient potential civil liability for tax on the million dollars.
Samuel J. Betar, Jr.: --Okay, and I am suggesting incipiency is not enough. I think at a minimum you need a controversy, a case or a controversy at the administrative level. At the administrative level, under that you really have nothing. In your mind you know pretty well if this guy only reported $2.50, he has got a big tax liability if he embezzled a million. But, technically as far as the Rule is concerned, as far as IRS procedures are concerned, there is nothing determined until there is a notice of deficiency.
Thurgood Marshall: Well, couldn't the IRS get the U.S. Attorney's work papers who handled the case before the grand jury?
Samuel J. Betar, Jr.: No, sir.
Thurgood Marshall: They could not get that?
Samuel J. Betar, Jr.: No, sir.
Thurgood Marshall: They get it every day. It is work papers.
Samuel J. Betar, Jr.: If the work papers are the direct product of the grand jury, I would still stick to my answer. No, sir, Justice Marshall. If the work papers are generated outside of the grand jury, yes, they can get them.
John Paul Stevens: Mr. Betar, you rather reluctantly conceded that if a law suit had been filed, for instance, by the taxpayer? then the government could establish that it was preliminary to the judicial proceeding, but the Rule says that if it is preliminary to or in connection with a judicial proceeding, certainly then it would be in connection with?
Samuel J. Betar, Jr.: Yes, ma'am.
Sandra Day O'Connor: Right, so preliminary to means something else otherwise it would not be there. So, you have got to back up beyond the filing of a suit obviously.
Samuel J. Betar, Jr.: Yes.
Sandra Day O'Connor: And the question is at what point? After the filing of a deficiency notice?
Samuel J. Betar, Jr.: I do not think we can draw a bright-line test. I have thought a great deal about this. The easy answer, I think, is if you file a deficiency notice that should be a sufficient time for them to come in and say it is preliminary to. But, what I think will happen if this Court establishes that kind of test is IRS will run right around end. And, they will crank out... it will be an open invitation for them to crank out deficiency notices just like popcorn. So, I think what you have to do is take it on a case-by-case basis, use the flexibility of the court. It is a discretionary matter... 6(e) is a discretionary matter. It is not mandatory, and I think you have to talk about the tests that were set forth in Douglas Oil and balance the competing interest against the relevant circumstances and against the standards that were set and see if--
Byron R. White: On an ad hoc basis, case by case?
Samuel J. Betar, Jr.: --Yes, sir. As I say, I do not think you can establish a bright-line test here.
Sandra Day O'Connor: That is pretty unsatisfactory, isn't it, from the standpoint of any effective administration of the system, and you surely ought to be able to come in here and suggest something better than that to us.
Samuel J. Betar, Jr.: Justice O'Connor, I think my answer lies with Congress and they way that they set forth that statute.
Sandra Day O'Connor: I think it lies with us in interpreting it.
Samuel J. Betar, Jr.: No, I do not, because the Seventh Circuit said that they would not fashion a special judicial exception to 6(e) for the benefit of IRS. And, that is what the government is asking you to do here. And, Justice White put his finger on it in his question earlier. They are not saying, well at this point we have established preliminary to. They are saying everything is preliminary to. They are asking for automatic access.
Byron R. White: You say just the reverse. The logic of your position is just the reverse. Until litigation actually occurs, they are never going to get it.
Samuel J. Betar, Jr.: No, sir, what I am saying is that what Congress said because of--
Byron R. White: Congress must have meant something by preliminary to.
Samuel J. Betar, Jr.: --Yes. What they said, number one, it takes a court order. Number two, they said they did not want any leakage back. Number three, they said--
Byron R. White: Unless it is preliminary to, you cannot even get a court order.
Samuel J. Betar, Jr.: --Oh, yes, you can. That is what the Rule says, Your Honor. That is what the Rule says. You can have disclosure preliminary to or in connection with.
Byron R. White: But you have to reach that stage before you can even get a court order. You have to reach the state of being preliminary to litigation.
Samuel J. Betar, Jr.: Yes, sir.
Byron R. White: And, your position suggests... the logic of your position is that you never reach that stage in a tax investigation.
Samuel J. Betar, Jr.: No, I am saying that that stage may be reached at some critical stage within IRS procedures, but I cannot define... but we certainly have not reached it in Baggot.
Byron R. White: And, you say you never could define it except on a case-to-case basis?
Samuel J. Betar, Jr.: Yes, sir.
Byron R. White: Well, I do not want to get you mixed up on the prior case, but if your position is correct, and if the government loses Sells, the Civil Division could never get grand jury matters for the purpose of determining whether to bring litigation.
Samuel J. Betar, Jr.: Your Honor, I am not qualified to speak to the facts of Sells. But, again, never is a bad word. I think if the Civil Division, one, showed that it was preliminary to, and number two showed a particularized need--
Byron R. White: All the Tax Division, all the Civil Division would say, we are investigating. We do not know whether we are going to sue or not.
Samuel J. Betar, Jr.: --Then, I do not think that is sufficient. An investigation is not sufficient.
Byron R. White: In their own investigation aside from the grand jury they would have to have reached a decision to litigate. They have not filed yet, and they may just want to confirm. That would be your position in Sells, I think. And you would force the government to file suit against people with less than adequate preparation perhaps, which would put people in a worse position.
Samuel J. Betar, Jr.: Justice O'Connor, you are getting me into the Sells case, and I do not know the Sells case. The only thing I know about Sells is that if this Court accepts any lessened standard of particularized need that they opt for in Sells, i.e. rationally related, and if this Court adopts the position that they are taking here and giving administrative agencies automatic access to grand jury materials, you signal the death bell of the grand jury because there would be no more secrecy at all. Secrecy will be gone, and the vital function of the grand jury as a criminal accusatory body in the criminal justice system will be devastated.
Byron R. White: You think if the government wins in this case, the law will have been substantially changed?
Samuel J. Betar, Jr.: Yes, sir. I think--
Byron R. White: And, that practice will have to be--
Samuel J. Betar, Jr.: --I think the law will be changed. The practice will change. Fifty percent of the test for disclosure is gone. --the preliminary to. The judge's action below will be purely ministerial. They want automatic access. They will render the--
Byron R. White: --You don't think the testimony that your opponent referred to is the least bit meaningful about the use of grand jury minutes by agencies?
Samuel J. Betar, Jr.: --I am not sure what you have. If you are talking about what he says, oh, it has been routine and we have done this all. Your Honor, that is certainly not true. He talked about Judge Becker, and what I suggest you do is look at the Pflaumer case and look at the Hawthorne case, both of which were written by Judge Becker--
Byron R. White: You think Mr. Wallace is wrong and also Judge Becker?
Samuel J. Betar, Jr.: --No, I did not say Judge Becker was wrong. Just hear me out, please. If you remember, Justice Stevens asked Mr. Wallace can you document it. And he said, no we cannot. Judge Becker agonized over those two decisions. He talked about how unclear 6(e) was. He asked this Court to clear up the confusion created by 6(e), and that is what lead to the 1977 amendments. And those 1977 amendments said, yes, give it to IRS for criminal purposes, but when that access is gone, it stays with the U. S. Attorney and they have to come in for an order under the preliminary to or connection with exception before they can have any of this material. That was the whole purpose of the 1977 amendment, and there was not any routine disclosure at all. The preliminary to rule has remained unchanged since it was promulgated in 1946. Mr. Wallace is right when he says there is nothing in the history or nothing in the Advisory notes that gives you any indication what Congress thought about. All they said in the Advisory notes is we intend to continue the traditional practice of grand jury secrecy. And I suggest to this Court... and they cited three cases, none of which had anything to do with disclosure to an administrative agency. And, I suggest to this Court that the traditional practice of grand jury secrecy did not include turning the stuff over to IRS to use for civil purposes. If it did, it was changed by the 1977 amendment.
Byron R. White: You certainly have broadened your position already. You are saying, then, that as far as some agency outside the Department of Justice is concerned, preliminary to litigation is utterly meaningless?
Samuel J. Betar, Jr.: No, sir.
Byron R. White: You generally say, you may not turn this material over to an agency for civil purposes.
Samuel J. Betar, Jr.: That is right. Even in Judge Becker's--
Byron R. White: That was your position. Well, that means there is no preliminary to at all.
Samuel J. Betar, Jr.: --Your Honor, even in Judge Becker's opinion in Hawthorne, which the government relies on, he said if the IRS... and we are talking about IRS there... had access for criminal purposes, their future access... those were his words... would follow as though there had been no access at all. That gets difficult, and the Chief Justice asked a question earlier. He said, well how can he take it out of this side of their mind and put it over in the other side of their mind. And, the quick answer is, they cannot, but I think Congress was trying to do the best they could to see that they would so there would not be any abusive practices in the grand jury. Another thing I would like to speak to is he said his experience is that U. S. Attorneys cannot be manipulated. I was a federal prosecutor, both with the Anti-trust Division and the Strike Force for ten years, and I have been handling grand jury matters for another 18 years. Manipulation is as easy as an IRS saying to the United States Attorney, subpoena the records from this bank. It may have nothing to do with his Title 18 investigation, but it would certainly help the civil investigation. As a normal matter, a U. S. Attorney could care less, and I use that very advisedly, about tax violations. He is interested in Title 18 violations. For example, let's take an extortion case, or let's take a bribery case. His questions are who did you pay, and how much did you pay him, and why did you pay him. If a witness knows that IRS is going to be listening at the door and get all of those grand jury secrets, he is going to be very reluctant to speak, and that goes to the fourth reason for secrecy, the impact on the testimony of witnesses should be full and frank. Because he does not have any problem saying maybe, or at least he has reached a point saying, alright I am involved in a crime, and I will tell you about this bribery. I paid this public official. But, if he thinks IRS is going to carry his house and his car away, he is going to be very reluctant to talk about that. And, that holds over to all grand jury actions that involve money. What you are doing is giving IRS a partnership in the grand jury proceeding, and I suggest that traditional grand jury history and secrecy as set forth by this Court in many, many cases, Colandra and U. S. v. Johnson, Blair, and Proctor & Gamble, and Pittsburgh Plate Glass, never contemplated such a thing. Let me make one more point. General Motors filed an amicus brief here, and if you will look... I have the page marked, but I cannot... there is a long footnote, I think it is page... it is footnote 18. IRS asked General Motors for all kinds of documents, and they said, we will give them to you. We kept copies. You do not need a 6(e) order. Here you are government--
Warren E. Burger: We will look at footnote 18, counsel.
Samuel J. Betar, Jr.: --Thank you, Your Honor.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The honorable court is now adjourned until Monday at 10:00.