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RESEARCH
The defendant pled guilty to charges of mail fraud and tax evasion. The plea agreement required the defendant to provide the prosecution with “full, complete, accurate, and truthful information” about matters relating to another investigation. The subsequent prosecution of the defendant resulted from the government’s determination that the defendant had violated that plea agreement. While incarcerated, the defendant was served with a grand jury subpoena calling for the production of eleven broad categories of documents. Subsequently, the defendant appeared before the grand jury and invoked his Fifth Amendment privilege against self-incrimination. In response to questioning, the defendant refused “to state whether there [were] documents within [his] possession, custody, or control responsive to the subpoena.” He was then granted “use” immunity under 18 U.S.C. § 6002, and produced documents related to the subpoena. The contents of the documents provided the prosecutor with the information that led to a second prosecution of the defendant.
1. Whether the Fifth Amendment privilege against self-incrimination protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity?
2. Whether “use” immunity under 18 U.S.C. § 6002 prevents the government from using information produced by a witness pursuant to a grant of immunity in preparing criminal charges against that witness?
1. Yes. The constitutional privilege against selfincrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence.
2. Yes. The “derivative use” of the testimonial act of producing the records is covered by the immunity granted under 18 U.S.C. § 6002.
The Court held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Here, the answers to the prosecutor’s questions and the act of production could certainly communicate information about the existence, custody, and authenticity of the documents. In addition, the Fifth Amendment protection extends to compelled statements that lead to the discovery of incriminating evidence, even though the statements themselves are not incriminating and are not introduced into evidence. It is undeniable that providing a catalog of existing documents fitting within any of the eleven broadly worded subpoena categories could provide a prosecutor with a “lead to incriminating evidence” or “a link in the chain of evidence needed to prosecute.” Additionally, it was necessary for the defendant to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena.
530 U.S. 27, 120 S. Ct. 2037 (2000)
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