GREGORIO ARANETA, III AND IRENE MARCOS ARANETA, PETITIONERS V. UNITED STATES OF AMERICA No. 86-172 In The Supreme Court Of The United States October Term, 1986 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-17a) is reported at 794 F.2d 920. The order of the district court holding petitioners in contempt (Pet. App. 18a-19a) is unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 1a) was entered on June 18, 1986, and a petition for rehearing was denied on July 3, 1986. On July 19, 1986, the Chief Justice stayed the mandate of the court of appeals pending further order of this Court, conditioned on the filing of a petition for a writ of certiorari on or before August 5, 1986 (Pet. App. 26a). The petition was filed on August 4, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioners may assert their Fifth Amendment privilege, despite a grant of use immunity, and refuse to testify before a federal grand jury on the theory that their testimony might eventually be used in a foreign prosecution. STATEMENT Petitioners were held in civil contempt in the United States District Court for the Eastern District of Virginia for refusing to testify before a grand jury. The court of appeals affirmed. 1. Petitioners are the daughter and son-in-law of Ferdinand E. Marcos, the former President of the Philippines. They entered the United States with Marcos and other friends and family members on February 26, 1986, aboard a United States Air Force plane. They have been granted parole status in the United States pursuant to 8 U.S.C. 1182(d)(5). After petitioners left the Philippines, the Solicitor General of the Philippines recommended that criminal charges be filed against them, alleging conspiracy and violations of the Anti-Graft and Corrupt Practices Act and Articles 210-221 of the Philippines Penal Code. At the time petitioners arrived in this country, a federal grand jury in the Eastern District of Virginia was investigating possible corruption in arms contracts with the Philippines (Pet. App. 3a). Approximately two months after their arrival, the grand jury subpoenaed petitioners to testify in connection with this investigation. Petitioners refused to testify, asserting their Fifth Amendment privilege against compulsory self-incrimination, and they moved to quash the subpoenas. On May 20, 1986, following a hearing on the motion to quash, the district court granted petitioners use immunity pursuant to 18 U.S.C. 6002 and 6003 and ordered them to testify. Pet. App. 4a. The court held that petitioners could not avoid testifying by claiming the Fifth Amendment privilege on the basis of contemplated criminal charges in the Philippines. Because there is no extradition treaty between the United States and the Philippines, the court concluded that the possibility that petitioners would be returned to the Philippines for prosecution was "speculative" (Tr. 23). /1/ Moreover, the court stated that it would eliminate any remaining risk of prosecution by "fashioning an order that would ensure that this information would not be divulged and could not in any way incriminate them by prosecution in any foreign government (sic)" (Tr. 23). The court explained that it would order that petitioners' testimony could be released only to specifically named federal prosecutors and investigators (Tr. 24-27). Petitioners nevertheless persisted in their refusal to testify (Tr. 31-32). The court accordingly held petitioners in contempt for refusing to testify and committed them to the custody of the Attorney General "until such time as they purge themselves of contempt or for the life of this grand jury." Pet. App. 18a-19a. /2/ The court stayed its commitment order to permit petitioners to appeal the contempt citation. Ibid. 2. The court of appeals affirmed. On appeal, petitioners argued that despite the grant of use immunity, their testimony would violate their Fifth Amendment privilege against compulsory self-incrimination because their testimony might be given to the Philippine government for use in a criminal prosecution in that country. Despite the district court's contrary finding, the court of appeals determined that "petitioners' fear of prosecution (in the Philippines) is real and substantial, rather than speculative and remote." Pet. App. 8a. The court pointed out that criminal charges are contemplated against petitioners in the Philippines, and "the likelihood of foreign prosecution really depends on the likelihood that the (petitioners) will find themselves under the jurisdiction of the Philippine government either voluntarily or otherwise" (ibid.). Although the court recognized that the United States has no extradition treaty with the Philippines, it observed that such a treaty had been drafted with the former government of the Philippines in 1981, and that the treaty would take effect if it were ratified by the Senate. Accordingly, the court of appeals concluded that it was possible that the Senate would ratify the treaty in the future for the very purpose of facilitating petitioners' extradition. Id. at 8a-9a. The court also found it significant that petitioners are in the United States pursuant to the discretionary authority of the Attorney General, and that the Attorney General can revoke their right to remain in this country at any time. Id. at 9a. Finally, the court of appeals found that the protective order entered by the district court sealing any testimony that petitioners might give before the grand jury did not adequately protect them from disclosure of the testimony to prosecutors in the Philippines. The court speculated that there might be inadvertent disclosure, or that derivative evidence might be turned over to the Philippine government. Id. at 9a-10a. The court also noted that if the grand jury returns an indictment, petitioners may be called as witnesses at the ensuing trial. For all of these reasons, the court held that Rule 6(e), Fed. R. Crim. P., would not adequately protect petitioners from disclosure of their testimony. Pet. App. 10a-11a. Because the court found the risk of prosecution in the Philippines "sufficiently great" (Pet. App. 11a), it addressed the constitutional issue: whether the threat of a foreign prosecution allows petitioners to assert the Fifth Amendment privilege before a federal grand jury. The court began by noting that the Fifth Amendment does not bind other countries. Pet.App. 11a-12a. The court further observed that before the Fifth Amendment privilege was held applicable to the states by the Fourteenth Amendment (see Malloy v. Hogan, 378 U.S. 1 (1964)), this Court had ruled that the protection afforded by the Fifth Amendment "did not forbid the United States from compelling testimony from a witness that would incriminate him under state law." Pet. App. 12a. By analogy, the court of appeals concluded, since the Fifth Amendment does not apply to foreign nations, it does not give petitioners the right to refuse to testify before the grand jury. /3/ The court rejected petitioners' claim that Murphy v. Waterfront Commission, 378 U.S. 52 (1964), allows them to assert the privilege on the basis of a potential foreign prosecution, because Murphy held only that "the Fifth Amendment protects a witness against self-incrimination under state and federal law if either jurisdiction compels his testimony." Pet. App. 15a. The court of appeals acknowledged that in its discussion of the principles underlying the privilege, the Court in Murphy had noted that English courts had interpreted the privilege to protect against incrimination in foreign countries. The court of appeals, however, concluded that that observation was not a substantial basis of the Court's holding. Instead, the court interpreted Murphy as "a logical consequence of the holding in Malloy v. Hogan, supra, that the Fifth Amendment privilege against self-incrimination is fully applicable to the states." Pet. App. 15a. Because the court of appeals concluded that the Fifth Amendment did not protect petitioners against the possible use of their immunized testimony in a foreign prosecution, the court affirmed the order holding petitioners in civil contempt. The court of appeals denied a petition for rehearing (Pet. App. 20a), and it subsequently denied a motion to stay its mandate pending the filing of a petition for a writ of certiorari (id. at 21a). On July 9, 1986, the district court ordered petitioners to appear on July 22, 1986, to be committed to the custody of the Attorney General or to purge themselves of contempt by testifying before the grand jury on that day. See id. at 22a. 3. On July 19, 1986, the Chief Justice recalled the mandate of the court of appeals and stayed the contempt order of the district court to allow petitioners to seek review of their Fifth Amendment claim in this Court. Pet. App. 26a. The Chief Justice concluded that "four Justices will likely vote to grant certiorari on the issue * * * whether the privilege against self-incrimination protects a witness from being compelled to give testimony that may later be used against him in a foreign prosecution." Id. at 24a. The Chief Justice noted that "substantial confusion exists on this issue" and that in Zicarelli, 406 U.S. at 480, the Court had voted to consider the Fifth Amendment question but did not reach it because the subpoenaed witness there "was never in real danger of being compelled to disclose information that might incriminate him under foreign law." Pet. App. 24a. In granting the stay, the Chief Justice also relied on the fact that petitioners' argument was supported to some degree by dictum in Murphy v. Waterfront Commission, supra. Pet. App. 24a-25a. ARGUMENT This Court has expressly reserved the question whether the Fifth Amendment protects an immunized witness from testifying before a federal grand jury where there is a "substantial risk" that his testimony will be used against him in a foreign prosecution. Zicarelli, 406 U.S. at 478-481. We submit, however, that this question is not presented in this case because petitioners, like Zicarelli, do not in fact face a substantial risk that their testimony will be used in a prosecution in the foreign jurisdiction. In any event, the decision of the court of appeals is not at odds with this Court's decision in Murphy v. Waterfront Commission, supra, and there is no conflict among the circuits on the question presented. There is therefore no compelling reason for this Court to grant certiorari to resolve the issue at this time. 1. In Zicarelli, 406 U.S. 478, this Court held that the Fifth Amendment privilege "protects against real dangers, not remote and speculative possibilities." In the instant case, the district court correctly found that the possibility that petitioners will be tried in the Philippines is speculative at best, and the chance that their grand jury testimony would be used in such a prosecution is practically non-existent. Accordingly, petitioners are not entitled to refuse to testify before the grand jury. There is no extradition treaty between the United States and the Philippines. Although one was drafted in 1981, it has never been submitted to the Senate for ratification, and the Executive Branch has no present intention of submitting it. Nor has the current government of the Philippines asked that it be submitted or otherwise expressed an interest in drafting a new treaty. Consequently, the possibility that there will be an effective treaty between the two countries in the foreseeable future is remote. For that reason, petitioners do not face a substantial risk of extradition to the Philippines. See In re Grand Jury Subpoena of Flanagan, 691 F.2d 116, 122 (2d Cir. 1982) (no substantial risk of foreign prosecution because extradition treaty did not include offense under investigation); In re Gilboe, 699 F.2d 71, 76-77 (2d Cir. 1983) (extradition improbable because of requirement in extradition treaty that extradition be deferred until completion of punishment in sending state). Nor is it likely that the Attorney General will revoke petitioners' parole status and send them back to their native country. /4/ Petitioners were invited to the United States by President Reagan, who informed the Marcos family that they could stay in the United States as long as they wished. They were initially admitted to the United States pursuant to the Attorney General's parole authority, 8 U.S.C. 1182(d)(5), for a six-month period, which expired on August 26, 1986. The grant of parole to the Marcos entourage has been extended for an additional year. Thus, as soon as petitioners report to the Immigration and Naturalization Service in Hawaii, their parole status will be extended to August 25, 1987; this parole is, of course, subject to further extension. In light of the President's invitation to the Marcos family and the decision to extend petitioners' parole status, their fear that the Attorney General might revoke their paroles and send them back to the Philippines for prosecution is without foundation. See United States v. Murff, 260 F.2d 610, 614 (2d Cir. 1958). In any event, the protective order signed by the district court will prevent the unwarranted disclosure of petitioners' grand jury testimony and effectively eliminates the risk that their testimony will ever be used in a prosecution in the Philippines. The courts of appeals have consistently considered protective orders and rules governing grand jury secrecy to be sufficient to protect a witness who gives compelled testimony. See, e.g., Application of President's Commission on Crime, 763 F.2d 1191, 1199 (11th Cir. 1985); In re Grand Jury Proceedings (Chevrier), 748 F.2d 100, 104-105 (2d Cir. 1984); In re Grand Jury Proceedings 82-2 (Nigro), 705 F.2d 1224, 1227 (10th Cir. 1982), cert. denied, 461 U.S. 927 (1983) (collecting cases). The Mutual Legal Assistance Agreement between the United States and the Philippines provides for the exchange of information only when consistent with applicable law. The applicable law includes, of course, Fed. R. Crim. P. 6(e) and protective orders issued by courts of competent jurisdiction. There is no reason to believe that the protective order in this case will be dishonored. Petitioners argue (Pet. 12-13) that even if their testimony will not be used in a foreign prosecution, they still cannot be compelled to testify before the grand jury because the Fifth Amendment protects against the involuntary giving of testimony rather than the use of compelled testimony. If that were so, however, no one could ever be compelled to testify under an immunity grant. Yet in Kastigar v. United States, 406 U.S. 441 (1972), this Court ruled that the government can compel testimony from an unwilling witness by conferring use immunity pursuant to 18 U.S.C. 6002. Compelled testimony does not offend the Fifth Amendment where it is unlikely to lead to "the infliction of criminal penalties." Kastigar, 406 U.S. at 461; see also United States v. Apfelbaum, 445 U.S. 115, 124-127 (1980). Consequently, because the possibility that petitioners will be returned to the Philippines for prosecution is speculative at best and because of the district court's protective order, petitioners' grand jury testimony is not likely to lead to the infliction of criminal penalties in the Philippines. For that reason, they cannot refuse to testify before the grand jury. 2. Contrary to petitioners' claim (Pet. 13-18), the decision of the court below is not at odds with this Court's decision in Murphy v. Waterfront Commission, supra, where the Court held that "the constitutional privilege against self-incrimination protects a state witness against incrimination under state as well as federal law." 378 U.S. at 77-78. Although the Court noted that English courts had held that the privilege against compulsory self-incrimination protected against the risk of foreign prosecution (see id. at 58-63), the Court nowhere suggested that the Fifth Amendment protects persons like petitioners from giving immunized testimony before a grand jury because they might someday be forced to stand trial in a foreign country. Significantly, the only discussion in Murphy regarding the application of the Fifth Amendment privilege to prosecutions in a foreign country explains why the reasons for not extending the privilege in that context are inapplicable to the federal-state context there under consideration (378 U.S. at 67). 3. Finally, there is no conflict among the circuits on the Fifth Amendment question. The only other circuit that has addressed the question has agreed with the Fourth Circuit in this case that the Fifth Amendment does not protect a witness against the risk that his testimony may someday be used against him by a foreign government. See Parker v. United States, 411 F.2d 1067, 1070 (10th Cir. 1969), vacated and dismissed as moot, 397 U.S. 96 (1970). The only state court to address the question has reached the same conclusion. Phoenix Assurance Co. v. Runck, 317 N.W.2d 402, 413 (N.D.), cert. denied, 459 U.S. 862 (1982). The only cases that lend any support to petitioners' position are three district court decisions, but those decisions have never been embraced by their respective circuits. See Mishima v. United States, 507 F. Supp. 131, 135 (D. Alaska 1981); United States v. Trucis, 89 F.R.D. 671, 673 (E.D. Pa. 1981); In re Cardassi, 351 F. Supp. 1080, 1085-1086 (D. Conn. 1972). Indeed, as petitioners note (Pet. 11 n. 4), few courts have had to address the constitutional question, because the subpoenaed witness can rarely make the threshold showing of a substantial risk of a foreign prosecution that is required by Zicarelli. In light of the absence of any conflict among the circuits on this issue and the infrequency with which the issue arises, we submit that review by this Court is unwarranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General STEPHEN S. TROTT Assistant Attorney General PATTY MERKAMP STEMLER Attorney SEPTEMBER 1986 /1/ See Zicarelli v. New Jersey Investigation Comm'n, 406 U.S. 472, 478 (1972) ("it is well established that the privilege (against self-incrimination) protects against real dangers, not remote and speculative possibilities"). /2/ As the court had intended, the order also provided that the testimony when given would be placed under seal and released only to eight named federal prosecuting and investigating officials. Pet. App. 18a-19a. /3/ The court also remarked that "to the extent that the Fifth Amendment promotes the criminal justice system established by our constitution, it can have no application to a prosecution by a foreign sovereign not similarly constrained." Pet. App. 13a. /4/ Petitioners disavow any intent to return to the Philippines voluntarily (Stay App. No. A-18, at 16).