FERDINAND E. MARCOS AND IMELDA R. MARCOS, PETITIONERS V. UNITED STATES OF AMERICA No. 87-34 In the Supreme Court of the United States October Term, 1987 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 Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 817 F.2d 1108. The order of the district court (Pet. App. 11a-12a) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 5, 1987, and the petition for a writ of certiorari was filed on July 6, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a foreign state can waive head-of-state immunity for a former ruler. 2. Whether petitioners may assert privileges allegedly available under Philippine law as a ground for refusing to produce documents subpoenaed by a federal grand jury. 3. Whether petitioners may assert their Fifth Amendment privilege, despite a grant or act-of-production immunity, and refuse to turn over documents subpoenaed by a grand jury. STATEMENT Petitioners were held in civil contempt in the United States District Court for the Eastern District of Virginia for refusing to comply with a subpoena duces tecum issued by a grand jury. The court of appeals affirmed. /1/ 1. Petitioners are the former President of the Philippines and his wife. In early 1986, Corazon Aquino replaced petitioner Ferdinand Marcos as President. Petitioners entered the United States 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 filed criminal charges against them, alleging, inter alia, conspiracy and violations of the Anti-Graft and Corrupt Practices Act and Articles 210-221 of the Philippine 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. /2/ In January 1987, petitioners were each served with subpoenas compelling them to produce before the grand jury specified documents that they held in a custodial and individual capacity (E.R. 1-11). /3/ Petitioners filed a motion to quash the subpoenas on the ground that they were shielded from compulsory process under the doctrine of head-of-state immunity and the privilege against compulsory self-incrimination in the Philippine and the United States Constitutions. On February 3, 1987, the Aquino government formally waived "any residual sovereign, head of state, or diplomatic immunity (petitioners) may enjoy under international and U.S. law * * * by virtue of their former offices in the Government of the Philippines" (Pet. App. 13a). Without appearing before the grand jury, petitioners submitted the documents required by the subpoenas to the exclusive custody of the district court pending "the ultimate judicial resolution of (petitioners') claims of privileges and immunities with respect to th(e) documents" (E.R. 112-114). /4/ 2. The district court denied petitioners' motion to quash the subpoenas. Pet. App. 11a. Upon the government's motion, the district court then gave petitioners act-of-production immunity under 18 U.S.C. 6002-6003 with respect to the production of documents other than Philippine government documents. When counsel for petitioners informed the court that petitioners would nevertheless withhold the documents from the grand jury (E.R. 229, 331), the court held petitioners in civil contempt pursuant to 28 U.S.C. 1826(a) and ordered that they be confined. The confinement order was stayed pending the resolution of petitioners' appeal. Pet. App. 11a-12a. 3. The court of appeals affirmed. First, the court rejected the petitioners' claim that they were entitled to head-of-state immunity, holding instead that the waiver submitted by the government of the Philippines should be given full effect. As the court explained (Pet. App. 4a-5a): Head-of-state immunity is founded on the need for comity among nations and respect for the sovereignty of other nations; it should apply only when it serves those goals. In this case, application of the doctrine (to petitioners) would clearly offend the present Philippine government, which has sought to waive (petitioners') immunity, and would therefore undermine the international comity that the immunity doctrine is designed to promote. * * * (H)ead-of-state immunity is primarily an attribute of state sovereignty, not an individual right. Respect for the Philippine sovereignty requires us to honor the Philippine government's revocation of the head-of-state immunity of (petitioners). The court noted that pursuant to the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, art. 32(1), 23 U.S.T. 3241, foreign states can waive diplomatic immunity for their diplomatic agents. It would be anomalous, the court concluded, "if a state had the power to revoke diplomatic immunity but not head-of-state immunity." Pet. App. 5a. The court also rejected petitioners' claim that 28 U.S.C. 1782(a) forbids the government from compelling petitioners to give evidence to the grand jury in violation of the Philippine privilege against compulsory self-incrimination. The court noted (Pet. App. 7a-8a) that that statute applies only to testimony taken pursuant to letters rogatory issued by a foreign or international tribunal, while the contested subpoenas were issued as part of a grand jury investigation that began before petitioners arrived in the United States. The court found (Pet. App. 8a) that there was no evidence that the Philippine government issued letters rogatory or otherwise requested that the subpoenas issue. Finally, the court of appeals held that the Fifth Amendment privilege against compulsory self-incrimination could not be invoked to block the production of documents despite the grant of act-of-production immunity, whether or not that immunity will shield petitioners from prosecution in the Philippines. The court reaffirmed its prior ruling in United States v. Under Seal (Araneta), 794 F.2d 920, 925-928 (4th Cir. 1986), cert. denied, No. 86-172 (Oct. 6, 1986), that the "Fifth Amendment privilege against self-incrimination provides no protection from self-incrimination under foreign law." Pet. App. 8a. ARGUMENT 1. Petitioners first contend (Pet. 6-15) that the current government of the Philippines cannot waive petitioners' head-of-state immunity. As petitioners concede, no other United States court has addressed the question whether a foreign state can waive head-of-state immunity for a former ruler (Pet. 7). The issue is therefore plainly not a recurring one. For that reason alone, petitioners' claim does not deserve the attention of this Court. In any event, the decision below is correct. Petitioners cite no constitutional or statutory source for their claim of head-of-state immunity. /5/ To the extent that head-of-state immunity exists, it is no broader than the sovereign immunity generally accorded foreign states. See Note, Resolving the Confusion Over Head of State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169, 171 (1986) (noting that the courts have not treated head-of-state immunity as distinct from sovereign immunity). Any immunity enjoyed by a present or former head of state inheres exclusively in the foreign sovereign, and not in the individual. /6/ Restatement (Second) of Foreign Relations Law Section 66, at 201 (1965). The recognition of foreign sovereign immunity is a matter of grace and comity on the part of the United States; it is not constitutionally mandated. Verlinden B.V. v. Central Bank, 461 U.S. 480, 486 (1983). /7/ The question whether a particular sovereign is required to submit to the jurisdiction of the United States courts was until recently a matter committed to the Executive Branch, which conducts foreign relations (id. at 486); Republic of Mexico v. Hoffman, 324 U.S. 30, 35-36 (1945). In 1976, however, Congress defined the scope of foreign immunity in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1602-1611. Pursuant to that Act, there is no sovereign immunity "in any case * * * in which the foreign state has waived its immunity either explicitly or by implication" (28 U.S.C. 1605(a)). Diplomatic immunity can also be waived. Although it has no constitutional or statutory basis, diplomatic immunity is recognized in international law. See Vienna Convention on Diplomatic Relations, supra. In the United States, it generally shields a foreign state's diplomats from criminal and civil liability for acts done in this country. But there is no question that the foreign state can waive diplomatic immunity, thereby subjecting one of its agents to the jurisdiction of the United States courts. Id. art. 32(1). Since the government of the Philippines can waive sovereign immunity and diplomatic immunity, it likewise can waive head-of-state immunity. Petitioners advance no sound justification for treating head-of-state immunity differently from sovereign and diplomatic immunity. Accordingly, the court below correctly held that petitioners were not immune from giving evidence to the grand jury merely by virtue of their former status as President and First Lady of the Philippines. Contrary to petitioners' claim (Pet. 7-8), recognition of the waiver filed by the Philippine government will not "undermine U.S. international relations and lead to attempted interference by other nations with the immunities accorded under U.S. law to our own former heads of state." First, as the court of appeals observed (Pet. App. 5a), "(r)espect for Philippine sovereignty requires us to honor the Philippine government's revocation of the head-of-state immunity" for petitioners. International relations will therefore be advanced, not impeded, by accepting the waiver. Similarly, recognizing the decision of the Philippine government to waive petitioners' immunity can scarcely lead to foreign interference with the immunities of former United States Presidents. Instead, accepting the Philippine Government's waiver simply establishes the precedent that waiver decisions are the prerogative of the government affected. Just as the Philippine government can decide whether petitioners should be granted immunity, so the United States government can decide whether former United States Presidents are to be granted immunity. /8/ Petitioners do not explain their assertion (Pet. 8) that accepting the waiver could "embarrass the United States in its international relations (by denying) * * * flexibility to deal with unexpected shifts in foreign political alignments." We are aware of no potential "embarrassment"; the grand jury investigation that generated the disputed subpoenas was clearly not instigated by the current Philippine government, since the grand jury investigation was initiated in October 1984, while petitioner Ferdinand Marcos was still President. That investigation is not politically motivated; it is entirely independent of the political situation in the Philippines. The Department of Justice, in conjunction with the grand jury, retains the discretion to choose which persons and actions should be investigated and prosecuted in this country. Recognition of the Philippine government's decision to waive any residual head-of-state or diplomatic immunity petitioners might otherwise have may facilitate an appropriately authorized domestic United States investigation, but the Philippine government certainly cannot either instigate or terminate such an investigation. Finally, petitioners attempt to draw support for their claim of head-of-state immunity from cases in which a United States President sought to claim some sort of immunity. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982) (immunity from civil liability predicated on official acts); Nixon v. Administrator of General Services, 433 U.S. 425 (1977) (presidential privilege). But not even a former President of the United States enjoys the broad immunity claimed by petitioners. Indeed, as a general rule, our President must comply with subpoenas to produce relevant evidence in a criminal case. Nixon v. Fitzgerald, 457 U.S. at 760 (Burger, C.J., concurring); United States v. Nixon, 418 U.S. 683, 705-713 (1974) ("(t)he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial" (id. at 713)). Clearly, petitioner Ferdinand Marcos is entitled to no greater immunity in United States court by virtue of his position than is a President of the United States. In short, petitioners' former positions in the Phlippines furnish no basis for their refusal to comply with the grand jury subpoenas. 2. Petitioners next contend (Pet. 15-18) that pursuant to 28 U.S.C. 1782, they may assert before the grand jury the privilege against compulsory self-incrimination that is provided for in the Philippine Constitution. Section 1782, however, is wholly inapplicble to this case. As its title shows, that section relates only to "(a)ssistance to foreign and international tribunals and to litigants before such tribunals." It provides that a district court may order an individual to give testimony or evidence "for use in a proceeding in a foreign or international tribunal" pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or any interested person. In complying with such a district court order "(a) person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege." By its plain terms, Section 1782 does not apply to subpoenas for documents to be used in a federal grand jury investigation. A federal grand jury investigation is not a "proceeding in a foreign or international tribunal." Section 1782 simply does not purport to allow witnesses summoned before a grand jury to assert privileges that may exist in some other country. Petitioners incorrectly assert (Pet. 17) that the court of appeals interpreted the Mutual Legal Assistance Agreement (Pet. App. 15a-18a), to "by-pass" Section 1782. The Agreement, which was signed on June 11, 1986, by representatives of the United States Department of Justice and the Presidential Commission on Good Government of the Republic of the Philippines, establishes procedures by which the United States and the Republic of the Philippines may assist each other in their respective investigations regarding transactions between the Philippine government or its citizens and American companies or citizens (Pet. App. 15a). It facilitates the sharing of evidence, an aim entirely consistent with Section 1782. But the existence of the Agreement does not render the federal grand jury investigation a sham or a tool of the Philippine government. The grand jury is conducting a criminal investigation into violations of this country's federal criminal laws. This investigation began in 1984, while petitioner Ferdinand Marcos was President of the Philippines. Moreover, as the court of appeals found, the grand jury subpoenaed the documents in petitioners' possession on its own initiative, not at the behest or suggestion of the Philippine government (Pet. App. 8a). Despite the protections against disclosure provided by Fed. R. Crim. P. 6(e) (prohibiting disclosure of matters occurring before the grand jury), petitioners assert (Pet. 15) that any documents they provide to the grand jury will be turned over to the Philippine government pursuant to the terms of the Agreement. That speculative assertion does not alter the legitimacy of the grand jury investigation. /9/ In sum, Section 1782 has no application to this case and does not permit petitioners to assert before the grand jury privileges that are available under Philippine law. 3. Petitioners contend (Pet. 18-23) that act-of-production immunity is inadequate to protect them against the risk that the documents will be used against them in a prosecution in the Philippines. Last Term, this Court denied a certiorari petition filed by petitioners' daughter and son-in-law making the identical argument. Araneta v. United States, No. 86-172 (Oct. 6, 1986). There is no reason for a different disposition here. As in Araneta, the question whether the Fifth Amendment protects an immunized witness from testifying before a federal grand jury is not squarely presented here. Petitioners have not sustained their burden of showing that they face a "substantial risk" that the subpoenaed documents will be used in a prosecution in the Philippines. See Zicarelli v. New Jersey Investigation Comm'n, 406 U.S. 472, 478 (1972) (finding no Fifth Amendment privilege in the absence of a substantial risk). Accord In re Sealed Case, No. 87-5208 (D.C. Cir. Aug. 7, 1987), slip op. 6-7. The Fifth Amendment only "protects against real dangers, not remote and speculative possiblities" (Zicarelli, 406 U.S. at 478 (footnote omitted)). Petitioners argue (Pet. 19) that they face a greater risk of being returned to the Philippines than the Aranetas faced, because petitioners "are the principal targets of the Philippine prosecution." As we explained in our brief in opposition (at 7) in Araneta v. United States, supra, however, it remains the case that the United States has no present intention of returning petitioners to the Philippines against their will, and there is no extradition treaty between the United States and the Philippines that entitles that country to seek their return. Moreover, although the Aranetas are free to leave this country if they wish to do so, the United States has recently taken steps to restrict the ability of petitioner Ferdinand Marcos to leave this country voluntarily. On July 6, 1987, the Immigration and Naturalization Service issued a departure control order prohibiting Ferdinand Marcos from departing from the United States. On the same day, the INS imposed additional conditions on his parole status that require him to obtain written permission before leaving the Island of Oahu. See App., infra, 1a. /10/ Petitioners also have failed to show that they face a substantial risk that the subpoenaed documents will be turned over to the Philippine government. Under the terms of the Mutual Legal Assistance Agreement, the United States is obligated to turn over documents only as permitted by the "law, practice and procedure(s)" of the United States. Pet. App. 16a. /11/ The law of the United States includes rules protecting grand jury secrecy. See Fed. R. Crim. P. 6(e). There is no reason to believe that Rule 6(e) will be ignored. Petitioners have not sought the further assurance of a protective order. It is for the district court to determine, in the first instance, whether such an order would be appropriate in the circumstances of this case. 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 against the risk that the compelled testimony may be used in a foreign prosecution. See, e.g., United States v. Joudis, 800 F.2d 159, 161-164 (7th Cir. 1986); In re President's Commission on Organized Crime, 763 F.2d 1191, 1199 (11th Cir. 1985); In re Grand Jury Proceedings (Chevrier), 748 F.2d 100, 104-105 (2d Cir. 1986); In re Grand Jury proceeding 82-2 (Nigro), 705 F.2d 1224, 1227 (10th Cir. 1982), cert. denied, 461 U.S. 927 (1983) (collecting cases). /12/ In short, petitioners have not shown that they face a "substantial risk" that the subpoenaed documents will someday be used against them in a foreign prosecution. A lawful grand jury investigation may not be impeded unless concrete risks are identified. Zicarelli v. New Jersey Investigation Comm'n, supra. The act-of-production immunity will sufficiently protect petitioners' privilege against compulsory self-incrimination in all United States courts. On the record made by petitioners, no further protection is required. Even if petitioners had met their burden of showing that they face a substantial risk of foreign prosecution in which their compelled disclosures may be used against them, the Fifth Amendment question does not warrant review by this Court at this time. The decision of the court below does not conflict with any decision of this Court. In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964), on which petitioners rely, the Court held only that "the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law" (id. at 77-78). Although the Court noted in dicta 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. Instead, the Court in Murphy carefully distinguished that case from the federal-state case before it (378 U.S. at 67); as the Court's discussion indicated (id. at 67-68), there are differences between the two cases that would justify not extendinig the privilege to protect against incrimination in a foreign prosecution. /13/ The only other circuit that has addressed the question has concluded, like the court below, that the Fifth Amendment does not protect a witness against the risk that his testimony may be used against him by a foreign government. See In re Parker, 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). Three district courts have agreed with petitioners' position on the Fifth Amendment issue, 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). 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. See, e g., In re Sealed Case, supra; United States v. Joudis, supra. In light of the absence of any conflict among the circuits on this issue and the infrequency with which the issue arises, review by this Court is unwarranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General PATTY MERKAMP STEMLER Attorney SEPTEMBER 1987 /1/ The court of appeals stayed its mandate pending the filing of this petition. Pet. App. 10a. /2/ The investigation began in October 1984, while petitioner Ferdinand Marcos was still President of the Philippines (Pet. App. 19a). /3/ "E.R." refers to the Excerpts of Record filed in the court of appeals. /4/ The district court sealed the documents, denying access to anyone until the outcome of this litigation (Pet. App. 3a n.*). /5/ We note at the outset that head-of-state immunity would not extend to petitioner Imelda Marcos. At most, she would be entitled to diplomatic immunity; petitioners do not claim in this Court that diplomatic immunity cannot be waived by a foreign state. See page 7, infra. /6/ Individual officers of a foreign government may invoke sovereign immunity only for acts done in the exercise of governmental authority. Underhill v. Hernandez, 168 U.S. 250, 254 (1897). Thus, a former head of state has no immunity for acts undertaken for his private financial benefit. Jimenez v. Aristeguieta, 311 F.2d 547, 557-558 (5th Cir. 1962). /7/ Petitioners err in stating (Pet. 14) that the purpose of head-of-state immunity is to preserve the proper functioning of the foreign government. Rather, its purpose is to advance foreign relations by showing respect for the actions taken by friendly governments. Sovereign immunity, of which head-of-state immunity is a part, is founded solely on notions of comity. The cases cited by petitioners in support of their assertion have nothing to do with sovereign immunity, head-of-state immunity, or diplomatic immunity. See Spalding v. Vilas, 161 U.S. 483, 498 (1896); Nixon v. Fitzgerald, 457 U.S. 731, 745 (1982). /8/ Indeed, petitioners' position, that immunity decisions are for the state in which the proceeding is held, is far more likely to undermine any protections available to former United States Presidents. /9/ The assertion is not only speculative; it also misreads the Agreement. See page 13, infra. /10/ These new conditions were imposed in part because of a belief that petitioner was intending to leave the United States voluntarily, "in a manner which would be prejudicial to the interests of the United States." App., infra, 3a. /11/ The Agreement also provides that "(a)ll assistance by a requested state will be performed subject to all limitations imposed by its domestic law" (Pet. App. 17a). /12/ Moreover, as petitioners point out (Pet. 5, 16), the Republic of the Philippines also has a constitutional privilege against compulsory self-incrimination, which could lead to the exclusion of compelled evidence in a Philippine court. Therefore, even if there were to be a Philippine prosecution, and even if the subpoenaed documents were turned over to representatives of the Philippines, it is still open to question whether the documents would actually be used to incriminate petitioners. /13/ In arguing that the Mutual Legal Assistance Agreement will render a Philippine prosecution, if one occurs, a "joint venture" between the United States and the Philippines, petitioners assert (Pet. 25) that the decision below is in conflict with Byars v. United States, 273 U.S. 28 (1927), and Lustig v. United States, 338 U.S. 74 (1949). Petitioners' "joint venture" argument is incorrect, for the reasons noted, pages 10-11, supra. Byars and Lustig are simply irrelevant. Those exclusionary rule cases hold that evidence that is legally seized during a joint federal and state investigation is inadmissible in a federal criminal trial. Neither case purports to impose a rule of exclusion for a foreign court. APPENDIX