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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Grand Jury
Box: 27
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jury
II
99TH CONGRESS
1ST SESSION
S.1562
To amend the False Claims Act, and title 18 of the United States Code regarding
penalties for false claims, and for other purposes.
IN THE SENATE OF THE UNITED STATES
AUGUST 1 (legislative day, JULY 16), 1985
Mr. GRASSLEY (for himself, Mr. DECONCINI, and Mr. LEVIN) introduced the
following bill; which was read twice and referred to the Committee on the
Judiciary
A
BILL
To amend the False Claims Act, and title 18 of the United
States Code regarding penalties for false claims, and for
other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That section 3729 of title 31, United States Code, is
4 amended by-
5
(1) inserting "(a)" before "A person";
6
(2) striking out "$2,000" and inserting in lieu
7
thereof "$10,000";
8
(3) striking out "2 times the amount of damages"
9
and inserting in lieu thereof "3 times the amount of
2
1
damages in addition to the amount of the consequential
2
damages"; and
3
(4) adding at the end thereof the following:
4
"(c) For purposes of this section, the terms 'knowing'
5 and 'knowingly' mean the defendant—
6
"(1) had actual knowledge; or
7
"(2) had constructive knowledge in that the de-
8
fendant acted in reckless disregard of the truth;
9 and no proof of intent to defraud or proof of any other ele-
10 ment of a claim for fraud at common law is required.".
11
SEC. 2. Section 3730(b) of title 31, United States Code,
12 is amended-
13
(1) in paragraph (1), by striking out the fourth
14
sentence and inserting in lieu thereof "The action may
15
be brought in the judicial district where the defendant,
16
or in the case of multiple defendants, where any one
17
defendant is found, resides, or transacts business, or
18
where the violation allegedly occurred.";
19
(2) in paragraph (2), by striking out "if the Gov-
20
ernment-" through the end of the paragraph and in-
21
serting in lieu thereof "if the Government by the end
22
of the 60-day period does not enter, or gives written
23
notice to the court of intent not to enter the action.";
24
(3) in paragraph (3), by striking out "action is
25
conducted only by the Government" and inserting in
3
1
lieu thereof "person bringing the action shall have a
2
right to continue in the action as a full party on the
3
person's own behalf"; and
4
(4) by striking out paragraph (4) and inserting in
5
lieu thereof the following:
6
"(4) If the Government does not proceed with the action
7 within the 60-day period after being notified, the court, with-
8 out limiting the status and rights of the person initiating the
9 action, may nevertheless permit the Government to intervene
10 at a later date if the Government demonstrates to the court
11 that it came into possession of new material evidence or in-
12 formation not known by the Government within the 60-day
13 period after being notified of such action.
14
"(5) Unless the Government proceeds with the action
15 within 60 days after being notified, the court shall dismiss the
16 action brought by the person if the court finds that-
17
"(A) the action is based on specific evidence or
18
specific information the Government disclosed as a
19
basis for allegations made in a prior administrative,
20
civil, or criminal proceeding; or
21
"(B) the action is based on specific information
22
disclosed during the course of a congressional investi-
23
gation or based on specific public information dissemi-
24
nated by any news media.
4
1 If the Government has not initiated a civil action within six
2 months after becoming aware of such evidence or informa-
3 tion, or within such additional time as the court allows upon
4 a showing of good cause, the court shall not dismiss the
5 action brought by the person. The defendant must prove the
6 facts warranting dismissal of such case.".
7
SEC. 3. Section 3730(c) of title 31, United States Code,
8 is amended to read as follows:
9
"(c)(1) If the Government proceeds with the action
10 within 60 days after being notified, and the person bringing
11 the action has disclosed relevant evidence or information the
12 Government did not have at the time the action was brought,
13 such person shall receive at least 15 percent but no more
14 than 20 percent of the proceeds of the action or settlement of
15 the claim. Any such payment shall be paid out of such pro-
16 ceeds. If the person bringing the action substantially contrib-
17 utes to the prosecution of the action, such person shall re-
18 ceive at least 20 percent of the proceeds of the action or
19 settlement and shall be paid out of such proceeds. Such
20 person shall also receive an amount for reasonable expenses
21 the court finds to have been necessarily incurred, in addition
22 to reasonable attorneys' fees and costs. All such expenses,
23 fees, and costs shall be awarded against the defendant.
24
"(2) If the Government does not proceed with the action
25 within 60 days after being notified, the person bringing the
5
1 action or settling the claim shall receive an amount the court
2 decides is reasonable for collecting the civil penalty and dam-
3 ages. The amount shall not be less than 25 percent and no
4 more than 30 percent of the proceeds of the action or settle-
5 ment and shall be paid out of such proceeds. Such person
6 shall also receive an amount for reasonable expenses the
7 court finds to have been necessarily incurred, in addition to
8 reasonable attorneys' fees and costs. All such expenses, fees,
9 and costs shall be awarded against the defendant.".
10
SEC. 4. Section 3730 of title 31, United States Code, is
11 amended by adding at the end thereof the following new
12 subsections:
13
"(e) Any employee who is discharged, demoted, sus-
14 pended, threatened, harassed, or in any other manner dis-
15 criminated against in the terms or conditions of such employ-
16 ment by his employer in whole or in part because of the
17 exercise by such employee on behalf of himself or others of
18 any option afforded by this Act, including investigation for,
19 initiation of, testimony for, or assistance in an action filed or
20 to be filed under this Act, shall be entitled to all relief neces-
21 sary to make him whole. Such relief shall include reinstate-
22 ment with full seniority rights, backpay with interest, and
23 compensation for any special damages sustained as a result of
24 the discrimination, including litigation costs and reasonable
25 attorneys' fees. In addition, the employer shall be liable to
S
1562 IS
6
1 such employee for twice the amount of back pay and special
2 damages and, if appropriate under the circumstances, the
3 court shall award punitive damages.
4
"(f) In any action brought under this section, or under
5 section 3729, or 3731, the United States shall be required to
6 prove all essential elements of the cause of action, including
7 damages, by a preponderance of the evidence.
8
"(g) Notwithstanding any other provision of law, the
9 Federal Rules of Criminal Procedure, or the Federal Rules of
10 Evidence, a final judgment rendered in favor of the United
11 States in any criminal proceeding charging fraud or false
12 statements, whether upon a verdict after trial or upon a plea
13 of guilty or nolo contendere, shall estop the defendant from
14 denying the essential elements of the offense in any action
15 brought by the United States pursuant to this section, or sec-
16 tion 3729, or 3731.
17
SEC. 5. (a) Paragraphs (A), (B), and (C) of Rule 6(e)(3)
18 of the Federal Rules of Criminal Procedure are amended to
19 read as follows:
20
"(A) Disclosure, otherwise prohibited by this rule,
21
of matters occurring before the grand jury, other than
22
its deliberations and the vote of any grand juror, may
23
be made to-
S 1562 IS
7
1
"(i) any attorney for the government for use
2
in the performance of such attorney's duty to en-
3
force Federal criminal or civil law; and
4
"(ii) such government personnel (including
5
personnel of a State or subdivision of a State) as
6
are deemed necessary by an attorney for the gov-
7
ernment to assist such attorney in the perform-
8
ance of his duty to enforce Federal criminal law.
9
"(B) Any person to whom matters are disclosed
10
under subparagraph (A)(ii) of this paragraph shall not
11
utilize such grand jury material for any purpose other
12
than assisting an attorney for the government in the
13
performance of such attorney's duty to enforce Federal
14
criminal or civil law. Such an attorney for the govern-
15
ment shall promptly provide the district court, before
16
which the grand jury whose material has been SO dis-
17
closed was impaneled, with the names of the persons
18
to whom such disclosure has been made, and shall cer-
19
tify that the attorney has advised such persons of their
20
obligation of secrecy under this rule.
21
"(C) Disclosure of matters occurring before the
22
grand jury, otherwise prohibited by this rule, may also
23
be made-
S 1562 IS
8
1
"(i) when directed to do so by a court, upon
2
a showing of particularized need, preliminarily to
3
or in connection with a judicial proceeding;
4
"(ii) when permitted by a court at the re-
5
quest of the defendant, upon a showing that
6
grounds may exist for a motion to dismiss the in-
7
dictment because of matters occurring before the
8
grand jury;
9
"(iii) when the disclosure is made by an at-
10
torney for the government to another Federal
11
grand jury;
12
"(iv) when permitted by a court at the re-
13
quest of an attorney for the government, upon a
14
showing that such matters may disclose a viola-
15
tion of State criminal law, to an appropriate offi-
16
cial of a State or subdivision of a State for the
17
purpose of enforcing such law; or
18
"(v) when SO directed by a court upon a
19
showing of substantial need, to personnel of any
20
department or agency of the United States and
21
any committee of Congress (a) when such person-
22
nel are deemed necessary to provide assistance to
23
an attorney for the government in the perform-
24
ance of such attorney's duty to enforce Federal
25
civil law, or (b) for use in relation to any matter
as
1562
9
1
within the jurisdiction of such department,
2
agency, or congressional committee.".
3
(b) The first sentence of paragraph (D) of Rule 6(e)(3) of
4 the Federal Rules of Criminal Procedure is amended to read
5 as follows:
6
"(D) A petition for disclosure pursuant to clause
7
(i) or (v) of subsection (e)(3)(C) shall be filed in the dis-
8
trict where the grand jury convened.".
9
SEC. 6. (a) Section 286 of title 18, United States Code,
10 is amended by striking out "$10,000" and inserting in lieu
11 thereof "$1,000,000".
12
(b) Section 287 of title 18, United States Code, is
13 amended by striking out "$10,000, or imprisoned not more
14 than five years" and inserting in lieu thereof "$1,000,000, or
15 imprisoned for not more than ten years".
16
SEC. 7. This Act and the amendments made by this Act
17 shall become effective upon the date of enactment.
o
THE WHITE HOUSE
WASHINGTON
February 24, 1986
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE REFERENCE DIVISION
FROM:
JOHN G. ROBERTS, JR.
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
DOJ Testimony on H.R. 1407 the
"Grand Jury Reform Act of 1985"
As requested, this office has reviewed the above-referenced
testimony and has no legal objection to it.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o OUTGOING
H INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Dreg ganer
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
DOJ testimony on H. R. 1407 the "Drand
Juney Reform act of 1985"
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUNOLL
ORIGINATOR 86,07,21
/ /
Referral Note:
Cuat 18
R 86,02,21
5 86102124
Referral Note:
430,0m
/ /
/ /
i
Referral Note:
/
/
/
/
-
Referral Note:
/ /
/
/
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I - Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D Draft Response
S. For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
3
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Take necessary action
TO
Karen Wilson
Approval or signature
John Roberts
Comment
John Cooney
Prepare reply
Discuss with me
For your information
See remarks below
one]
FROM Greg Jones 2/21/86
DATE
REMARKS
Please give me your comments on the
attached by 4:30 PM on 2/24.
(Looks fine to me.)
Thanks.
CC: Jim Murr
OMB FORM 4
Rev Aug 70
02/20/86
14:52
?
NO. 001
002
Testimony of DAAG Jim Knapp
before House Subcommettee an
Creminal Justice
2/26/86
Chairman Conyers and members of the Subcommittee:
I appreciate the opportunity to appear before you on behalf
of the Department of Justice to discuss H.R. 1407, the "Grand
Jury Reform Act of 1985." The bill would make sweeping changes
to the institution of the grand jury and its proceedings. For
example, it provides the right for a witness before a grand jury
to be accompanied by counsel during the witness' appearance,
substitutes transactional immunity for use immunity as a basis
for compelling testimony of a witness who asserts the privilege
against self-incrimination, and requires notice to persons who
are targets of a grand jury investigation.
Let me begin with some general comments about the role of
the grand jury and the effect which this bill would have on it.
The grand jury occupies a central position in the federal crimi-
nal justice system since by virtue of the Fifth Amendment a grand
jury indictment is (unless specifically waived) the sole means by
which the United States may institute felony charges. The grand
jury is a charging -- not a guilt-determining -- entity. Yet in
/
many respect, H.R. 1407 seeks to transform grand jury proceedings
into adversary affairs more appropriate to the guilt-determining
function of trials. The delays and other problems occasioned by
this transformation would trouble an already heavily burdened
criminal justice system and would pose enormous obstacles to the
efficient operation of the grand jury and to the successful
investigation of many federal offenses. Accordingly, the Depart-
ment of Justice strongly opposes the enactment of H.R. 1407.
02/20/86
14:53
?
NO. 001
003
- 2. -
Initially, we point out that there is a clear lack of
demonstrated need for the revolutionary changes to the grand jury
system incorporated in H.R. 1407. While any institution operated
by human beings may occasionally produce abuses, and certainly
any abuse is regrettable, the federal grand jury system over the
years has functioned, and is now functioning, remarkably well.
The instances of alleged (much less proven) abuses have been few,
given the fact that federal grand juries hear tens of thousands
of matters each year, and that the conviction ratio on indict-
ments returned is high (approximately 80 percent). [GET RESPONSE
FROM MCCAFFERTY, AO, 633-6095 ON NO. OF GRAND JURY PROCEEDINGS
AND CONVICTION RATIO)
Moreover, the law now provides an important safeguard
against potential overreaching by prosecutors which did not exist
in the mid to late 1970's when grand jury reform last received
considerable congressional attention. In 1979 Rule 6 of the
Federal Rules of Criminal Procedure was amended to mandate the
recording of all matters occurring before the grand jury (other
than its deliberations or voting), including not only the exami-
nation of any witness, but the making of any remarks by the
prosecutor. The existence of such recordings (theretofore
required in only a few districts), coupled with the opportunity
for subsequent review by the court, operates as a significant
deterrent to improprieties.
Finally, the Department of Justice in the past decade has
substantially improved its grand jury practices, by promulgating
in late 1977 (and thereafter refining) a series of provisions in
02/20/86
14:53
?
NO. 001
004
- 3 -
the United States Attorneys' Manual requiring federal prosecutors
to accord to grand jury witnesses warnings and other procedural
benefits well beyond those mandated by law. We are unaware of
any alleged pattern of abuse since these improvements were
instituted. Thus, whatever may have been the situation before
these internal guidelines were adopted, the case for fundamental
changes in grand jury practice such as are embodied in H.R. 1407
is today particularly weak.
While H.R. 1407 includes numerous provisions significantly
affecting federal grand jury proceedings, I shall largely confine
our specific comments to three aspects of the bill that are most
objectionable from the Department's standpoint. These are the
provision permitting counsel to accompany a grand jury witness to
in the grand jury room, the substitution of transactional immuni-
ty for use immunity as a means to compel the testimony of a
witness who asserts the privilege against self-incrimination, and
the providing of remedies, particularly the extreme sanction of
dismissal of an indictment, for failure to abide by the bill's
procedural requirements.
COUNSEL IN THE GRAND JURY ROOM
H.R. 1407 adds a new provision to title 18, United States
Code providing that a witness before a grand jury "shall have the
right to be accompanied by counsel during such witness' appear-
ance before the grand jury n (Proposed 18 U.S.C. $3326 $3326(a).)
The section further provides that counsel shall not address the
- 4 -
grand jury, raise objections, make arguments or disrupt the
proceedings. Finally, proposed section 3326 provides that if the
court determines that counsel has exceeded the limitations
imposed by the provision, the court shall take such action as
necessary to ensure compliance and may exclude the offending
counsel from the grand jury room.
It has been the prevailing practice and tradition in the
federal criminal justice system, as reflected in Rule 6(d) of the
Federal Rules of Criminal Procedure, that a witness may not be
accompanied by counsel inside the grand jury room. The Depart-
ment of Justice has consistently taken the position over a number
of years that the traditional rule serves the vital function of
preserving the grand jury as an effective investigatory institu-
tion. We remain firmly of the view that enactment of legislation
like H.R. 1407 would be seriously detrimental to the interests of
federal law enforcement.
A number of considerations support this view, which we note
also is shared by the Judicial Conference of the United States
speaking on behalf of the federal judges who, of course, are
responsible for administering the federal grand jury system.
[CITE STATEMENT OF JUDICIAL CONFERENCE ON H.R. 1407 BEING SENT BY
PAUL SUMMITT.] First, allowing counsel to accompany a witness
before a grand jury would result in a significant loss of sponta-
neity in the testimony. The sole purpose of calling a witness
before the grand jury is to elicit whatever facts the witness
knows that may be pertinent to the grand jury's investigation.
If a witness were accompanied in the grand jury room by counsel,
98/02/20
14:54
?
NO. 001
006
- 5 -
with whom he or she could consult before answering questions, in
our view the fact-finding process would be severely impaired
because of the tendency for the witness to become dependent upon
the lawyer and to repeat or parrot responses discussed with the
lawyer, rather than to testify fully and frankly in his or her
own words. See Silbert, Defense Counsel in the Grand Jury - The
Answer to the White Collar Criminal's Prayers, 15 Amer. Cr. L.
Rev. 293, 302 (1978). For similar reasons, we point out, wit-
nesses at trial and in other proceedings are not permitted to
consult with their counsel before responding to questions, save
in rare instances. 1/
Second, we believe that allowing counsel to accompany a
witness before a grand jury would fundamentally transform the
federal grand jury process into a proceeding of an adversary
nature inconsistent with the function of the grand jury as a
charging (rather than a guilt-determining) body. At the core of
our deep-seated concern in this respect is our belief that
counsel for the witness will act -- inevitably even if not
intentionally -- in a manner that will disrupt and delay the
grand jury's investigation. It is naive to expect that counsel
for a witness facing a grand jury will fail to do everything in
1/ A witness may be permitted to confer with counsel with regard
to whether or not to invoke the Fifth Amendment. The infrequent
instances in which such advice is needed as to a grand jury
witness are met by the universal practice of permitting the
witness, without prejudice, to leave the room for a brief period
for that purpose.
- 6 -
his or her power to seek to protect the client from questions
counsel regards as irrelevant, overbroad, or in some way techni-
cally defective. While the bill attempts to limit counsel's role
by precluding him or her from addressing the grand jurors,
raising objections, or making arguments, counsel could still as a
practical matter speak through the witness. In this way objec-
tions predicated upon various rules of evidence and procedure
that have been held inapplicable to grand jury proceedings could
be raised despite the bill's limitations on the role of counsel.
In contrast to a court proceeding or a congressional committee
hearing, there is no official present, such as a judge or commit-
tee chairman, to rule authoritatively on such objections. To
deal with any obstreperous witness would require a break in the
proceedings in order to obtain the aid of a court to control the
witness under penalty of contempt. We are concerned that the
incidence of problems of this kind would escalate if the long-
established prohibition against the presence of counsel in the
grand jury room were abandoned.
We also doubt the practicality of mechanisms for dealing
with the problem, e.g., by exclusion of the offending counsel
from the grand jury room. To begin with, the very act of seeking
a judicial hearing on the matter would likely consume several
days; and it is our belief that courts would be extremely reluc-
tant to order a witness's counsel removed for a breach of the
bill's provisions. There may be, in addition, at least in the
case of a witness who has retained his or her own counsel, a
- 7 -
substantial constitutional difficulty in ordering the witness to
obtain other counsel against his or her wishes.
A number of judges have echoed our concerns about the
practical effects of admitting defense counsel into the grand
jury. Thus, for example, five judges of the United States Court
of Appeals for the Second Circuit, in a memorandum accompanying
their letter to the then Chairman of the House Subcommittee
considering similar grand jury reform legislation in 1977,
observed that:
In practice, however, admitting counsel to the grand
jury room poses the serious risk that the proceedings
will be protracted and disrupted, with the court being
forced to intervene repeatedly. Experience in criminal
trials demonstrates that many lawyers simply would not
adhere to the idealistic conception that they would
limit themselves to advising their clients in sotto
voce. Once in the grand jury room, many counsel,
unimpeded by the presence of the court, would seek to
influence the grand jury, using tactics of the type
frequently employed in criminal trials, e.g., lengthy
objections to questions, in which counsel refers to
irrelevant prejudicial material as the basis for an
objection. Advice to a witness could be given in tones
that would be overheard by every grand juror. A
witness' answers would be those of the attorney rather
than of the witness himself. Judges would inevitably
be invoked to rule on preliminary objections as to the
relevancy and materiality of questions, to discipline
or remove counsel from the grand jury room, and to
substitute new counsel. Moreover, should a judge
discipline or remove a witness' counsel, a serious
question would then arise as to whether he had inter-
fered with the witness' constitutional or statutory
right to counsel of his own choice.
[CITE ALSO MOST RECENT STATEMENT OF JUDICIAL CONFER-
ENCE.)
In short, the delays inevitably occasioned by permitting
defense counsel inside the grand jury room promise to be lengthy
and to spawn an entire, new wave of costly litigation. These
02/20/86
14:55
?
NO. 001
009
- 8 -
effects are inconsistent with the goal adopted by the Congress in
the Speedy Trial Act of 1974 of reducing crime and the danger of
recidivism by requiring speedy trials. In our view the marginal
benefits to witnesses which this proposal might generate are far
outweighed by the disadvantages (to defendants as well as to the
government) of causing the wheels of the federal criminal justice
system to grind even more slowly.
Finally, we note that H.R. 1407 fails to address an impor-
tant problem relevant to permitting counsel to accompany a
witness before a grand jury, namely, the representation by one
attorney or closely associated counsel of several witnesses
before the grand jury. Not infrequently, particularly in inves-
tigations of organized criminal enterprises, business frauds,
antitrust violations, and other white collar offenses, one
attorney represents several potential witnesses. At times
counsel is retained by the very business, union, or other organi-
zation or syndicate whose activities are under investigation, to
represent all persons connected with the group. In such situa-
tions, the individual witness may possess relevant information
and would ordinarily be willing to cooperate with the investiga-
tion. Understandably, however, his willingness to cooperate may
be conditioned upon the likelihood that his cooperation will not
become known to his employer, fellow union members, or others
whom the witness knows his attorney represents or with whom his
attorney has been associated. A provision permitting counsel to
accompany such a witness in the grand jury room would have a
chilling effect on his potential cooperation since even a
NO. 001
010
- 9. -
witness' stated preference that counsel not accompany him would
suggest the likelihood of his cooperation to the attorney and
ultimately to others whom the attorney represents.
Multiple representation of witnesses before grand juries
also poses the risk that unscrupulous counsel may thwart a
legitimate investigation. Counsel representing multiple defen-
dants possesses a valuable opportunity to advise witnesses on how
to tailor their responses in light of the testimony given by
earlier witnesses. Such planning and fine-tuning of testimony
can seriously mislead the grand jury in its endeavor to obtain
information. The problems of multiple representation of grand
jury witnesses are so serious that, even in the absence of a
proposal allowing counsel to accompany witnesses before the grand
jury, Congressional attention and action with a view toward
limiting such representation is in our opinion independently
warranted. When counsel is permitted in the grand jury room, the
difficulties are greatly exacerbated.
The multiple representation problem should not be underes-
timated. The Watergate Special Prosecutor, in his report to the
Congress, noted that multiple legal representation before the
grand jury operated "in many cases" to preclude a witness from
"giving adequate consideration to the possibility of cooperating
with the Government." Report, Watergate Special Prosecution
Force, P. 140. This view has also been expressed by other
commentators, see, e.g., Silbert, supra, 15 Amer. Cr. L. Rev., at
296-300; Alan Cole, Time For a Change: Multiple Representation
Should Be Stopped., 2 Nat. J. Crim. Def. 149 (1978), and the
14:56
?
NO. 001
011
- 10 -
Supreme Court of Colorado adverted to the problem in sustaining
that State's statute which prohibits multiple representation of
grand jury witnesses except with the permission of the grand
jury. People ex rel. Lovasio v. J.L., 580 P.2d 23 (1978). See
generally Tague, Multiple Representation of Targets and Witnesses
During a Grand Jury Investigation, 17 Amer. Cr. L. Rev. 301
(1980).
SUBSTITUTION OF TRANSACTIONAL IMMUNITY FOR USE IMMUNITY
Section 3 of H.R. 1407 would amend 18 U.S.C. $6002 to
substitute transactional immunity for use immunity as a means of
compelling testimony or the production of information when a
witness asserts the privilege against self-incrimination.
Currently, section 6002 provides, in part:
no testimony or other information compelled under (an
immunity] order (or any information directly or indi-
rectly derived from such testimony or other informa-
tion) may be used against the witness in any criminal
case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the
order.
This provision applies to the giving of testimony or the provid-
ing of information before a court, grand jury, agency of the
United States, or either House or committee of Congress. The
bill would amend this provision by substituting for the use
immunity language quoted above broad language providing that the
witness shall not be prosecuted or subject to any penalty or
forfeiture on account of the compelled testimony.
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We are vigorously opposed to this aspect of H.R. 1407, which
would reinstate the law on this subject essentially as it existed
prior to the enactment of the current provision in 1970. The
constitutionality of use immunity was upheld by the Supreme Court
in Kastigar V. United States, 406 U.S. 441 (1972). The Court
stated:
We conclude that the immunity provided by 18 U.S.C.
$6002 leaves the witness and the prosecutorial authori-
ties in substantially the same position as if the
witness had claimed the Fifth Amendment privilege. The
immunity therefore is coextensive with the privilege
and suffices to supplant it. 406 U.S. at 462.
We do not believe that providing a greater degree of immuni-
ty than that which is constitutionally required would serve any
useful societal purpose. On the contrary, the use immunity
approach embodied in current law has distinct advantages over the
transactional immunity approach. First, it eliminates conferring
unnecessarily broad immunity against criminal liability upon a
witness who has committed a criminal offense. Thus, the use
immunity process does not create the risk that a witness who is
subsequently and independently found to be more deserving of
prosecution than originally thought will be absolutely immune
from prosecution, despite the existence of independent evidence.
Second, use immunity removes the incentive for a witness to give
wide-ranging but incomplete and shallow testimony. Transactional
immunity encourages such testimony, while failing to encourage
complete candor, specificity, and detail since it provides
absolution for every offense touched upon, however lightly. A
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witness compelled to testify under current law and thereby
afforded use immunity no broader than constitutionally required
legally stands to gain little or nothing by his testimony and
lacks motivation to withhold or to fabricate evidence.
Use immunity has built-in protections that make transac-
tional immunity unnecessary to protect a potential defendant's
interests. If a defendant establishes that he or she has testi-
fied under a grant of immunity, the government must prove that
the evidence to be used in a prosecution was derived from an
independent, legitimate source. Kastigar, 406 U.S. at 453, 460.
Moreover, in New Jersey V. Portash, 440 U.S. 450 (1979), the
Supreme Court held that compelled testimony subject to use
immunity may not be used to impeach a defendant at trial.
In sum, given the clearly established constitutionality of
use immunity as a means to compel testimony, the usefulness it
serves to society, and the lack of reasonable arguments to
eliminate it, we cannot accept the amendment of 18 U.S.C. $6002
incorporated in H.R. 1407. Moreover, we see no justification for
the fact that the bill would substitute transactional immunity
for use immunity to compel testimony not only in grand jury
proceedings but also in any of the forums subject to sec-
tion 6002, whether a court, agency, or Congressional proceeding.
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DISMISSAL OF INDICTMENTS FOR PROCEDURAL VIOLATIONS
H.R. 1407 expressly provides the extraordinary remedy of
dismissal of an indictment for violations of several of the
procedural requirements it imposes. For example, proposed
18 U.S.C. $3323 requires the attorney for the government to
disclose to the target, and if feasible to present to the grand
jury, all evidence that "tends to negate one of the material
elements of the crime." In addition, it requires the attorney
for the government to inform the grand jury of the existence of,
and the grand jury's right to call for, evidence that "bears upon
a possible affirmative defense and that raises a reasonable doubt
about the target's guilt." The section provides for the remedy
of mandatory dismissal of an indictment if, upon timely motion of
the defendant, the court finds that the prosecutor knowingly
failed to comply with these provisions. 21
Another provision that provides for dismissal of an indict-
ment for violation of H.R. 1407's procedural requirements is
proposed 18 U.S.C. $3324. This section imposes a duty on the
attorney for the government to advise a person "upon whom such
2/ In the case of the prosecutor's duty to inform the grand jury
about evidence relating to an affirmative defense, there is an
additional requirement before dismissal fo an indictment is
mandated. The court must also find that the grand jury "would
not have been justified in returning an indictment" had the
prosecutor complied with the dictates of the provision. The
burden placed upon the courts to construe these provisions would
be substantial.
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attorney or the grand jury has begun to focus an investigation"
that he or she is a target of the investigation, entitled to a
reasonable opportunity to testify upon waiver of immunity, and
entitled to present the prosecutor with exculpatory evidence.
The bill requires dismissal of an indictment that issues without
the required notice unless the court finds that notification
could not reasonably be accomplished or that there are reasonable
grounds to believe that giving notice "would create an undue risk
of danger to other persons, flight of the target, or other
obstruction of justice.'
Finally, additional procedural requirements are reflected in
H.R. 1407 for which no sanctions are expressly provided. Pro-
posed 28 U.S.C. $1894 3/ requires the court upon impaneling a
grand jury to instruct it on its rights and duties. Such duties
include, for example, the right to call and interrogate witness-
es, the necessity of finding credible evidence of each material
element of the crime charged, and the right to have the prosecu-
tor draft indictments for less serious charges than those origi-
nally requested. The bill does not set forth the effect of a
failure by the court to abide by this notification requirement,
but it can be expected that if H.R. 1407 were enacted, defendants
3/ We assume that this provision should be designated as
section 1879 of title 28, United States Code, so as to follow
numerically the provision on recalcitrant witnesses,
section 1878. We also assume that a provision repealing current
section 1826 on recalcitrant witnesses was inadvertently omitted
from the bill since proposed section 1878 and current
section 1826 cannot logically coexist.
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would assert that dismissal of an indictment is appropriate in
certain cases.
We strongly disagree with the notion that dismissal of an
indictment is an appropriate remedy for violations of the proce-
dural requirements imposed by H.R. 1407. Even where a Sixth
Amendment violation exists, the Supreme Court has refused to
order dismissal of an indictment as the remedy. Thus, in United
States V. Morrison, 449 U.S. 361, 367 (1981), the Court charac-
terized dismissal of an indictment as "drastic relief" inappro-
priate to the alleged violation of the Sixth Amendment right to
counsel, even if the violation had been deliberate, absent
demonstrable prejudice or substantial threat thereof. In
Morrison government agents sought the cooperation for purposes of
a separate investigation of a person indicted of a drug offense
without the knowledge or permission of her counsel. The agents
offered various benefits and disparaged her retained counsel.
The Court assumed, without deciding the issue, that the Sixth
Amendment was violated in the circumstances of the case and
reached the conclusion that dismissal of the indictment was error
in any event. The Court stated, "remedies should be tailored to
the injury suffered from the constitutional violation," 449 U.S.
at 364. The Court noted that the remedy for other constitutional
violations is normally suppression of evidence at trial or the
ordering of a new trial, rather than dismissal of an indictment.
In Costello V. United States, 350 U.S. 359 (1956), the
Supreme Court held that a defendant may be required to stand
trial and a conviction may be sustained where only hearsay
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evidence was presented to the grand jury. The Court made the
following noteworthy observations regarding challenges to indict-
ments:
If indictments were to be held open to challenge on the
ground that there was inadequate or incompetent evi-
dence before the grand jury, the resulting delay would
be great indeed. The result of such a rule would be
that before trial on the merits a defendant could
always insist on a kind of preliminary trial to deter-
mine the competency and adequacy of the evidence before
the grand jury. This is not required by the Fifth
Amendment. An indictment returned by a legally consti-
tuted and unbiased grand jury, like an information
drawn by the prosecutor, if valid on its face, is
enough to call for trial of the charge on the merits.
The Fifth Amendment requires nothing more. 350 U.S. at
363.
We believe that the Supreme Court's concerns apply even more
clearly to attacks on indictments premised on the nonconstitu-
tional procedural violations outlined in H.R. 1407.
Apart from the possibility of unwarranted dismissal of
indictments, we also strongly oppose the bill's codification of
many aspects of grand jury procedure. While some of the safe-
guards incorporated in the bill are not substantively objection-
able and are reflected in principle in the United States Attor-
neys' Manual, codification of these procedures will inevitably
lead to litigation. Even if dismissal were expressly prohibited
as an available sanction, defense counsel can be expected to seek
other relief, such as suppression of evidence, routinely
and
proceedings would be unduly delayed by motions concerning the
alleged denial of procedural protections. We do not believe that
there exists any problem with the functioning of the grand jury
1 Llader as United States V' Carees, 44c U.S. 741 C19 ),
by contrast, comntrance with 2.9 agency's internal 5. idelines, ...
has is not litigable.
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in recent years under the Department's guidelines sufficient to
justify these provisions and the added litigation they would
engender.
CONCLUSION
The provisions discussed above constitute in our view the
most salient features of H.R. 1407. We also object to certain
other provisions of the bill, such as the proposed requirement to
give witnesses notice of the substantive provisions of law the
violation of which is under consideration by the grand jury, the
requirement that all witnesses be advised of certain rights, and
the prohibition against calling before the grand jury any witness
who has notified the attorney for the government that such
witness will invoke the privilege against self-incrimination.
Because of our strongly held objections to the major provisions
discussed above and our concerns regarding other aspects of the
bill, we urge that H.R. 1407 not receive favorable action. The
institution of the grand jury is simply not in need of, and could
not survive effectively, the "reform" embodied in the bill.
I would be pleased to answer any questions you may have.