Mills v. Louisiana

PETITIONER:Mills
RESPONDENT:Louisiana
LOCATION:Calvert’s Tavern

DOCKET NO.: 74
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 360 US 230 (1959)
ARGUED: Apr 22, 1959
DECIDED: Jun 08, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – April 22, 1959 in Mills v. Louisiana

Earl Warren:

Number 74, Henry J. Mills and Osmond J. Litolff, Petitioners, versus State of Louisiana and August J. — number 75, August J. Mills, Sr., Petitioner, versus State of Louisiana.

Mr. Stanley.

Eugene Stanley:

Mr. Chief Justice and may it please the Court.

The petitioners in case number 74, Henry J. Mills and Osmond J. Litolff at a time when the United States grand jury was investigating the question of violations of the income tax laws and other felonies under the laws of United States, in reference to certain officers of the police department of the City of New Orleans, these particular applicants, petitioners were called before the state grand jury for the Parish of Orleans, State of Louisiana and interrogated by the state district attorney for the Parish of Orleans, State of Louisiana and during the course of that investigation and interrogation before the state grand jury were asked certain questions concerning their individual connection and operation of lotteries in the City of New Orleans, were asked with whom they had been associated in the lottery business in the City of New Orleans, whether they had ever paid bribe money to the New Orleans Police Department with or anybody had paid it with their knowledge and that the grand jury was investigating the subject of bribery and graft on the part of the police department of the City of New Orleans.

Presenting to the district attorney in the sanctum of the grand jury room and before the grand jury a written statement, each petitioner respectfully declined to answer the questions claiming the benefit of the Fifth Amendment expressing the specific fear of federal prosecution for a violation of a federal income tax laws and other federal laws as such answers might incriminate them or intend to incriminate them, or might furnish a chain of evidence, or link in a chain of evidence which could become the basis of subsequent prosecutions under the laws of the United States.

Each petitioner specifically claimed that he was in actual and immediate danger of federal prosecution by the United States under the income tax laws and other federal laws or all felonies as he was under investigation by the investigating officers of the United States of America, particularly the United States officials concerning the Internal Revenue Service concerning their income tax returns for the year ’48 to ’56 inclusive.

That they had been required by the officers of the United States Internal Revenue Service to sign waivers against prescription for the statute of limitations concerning their income tax returns for the years ’48 to ’51 so as to afford the federal officers an opportunity to proceed against petitioner should any violation of the law be discovered.

At the period of criminal — statute of limitations on criminal prosecutions arising under the federal income tax laws a period of six years had not expired.

The record contains the four documents as to each petitioner consent fixing period of limitation which was required by the federal officers for the petitioners to sign in which they sign, so as to permit the assessment of any penalties or fines or forfeitures which might be found be owed and due in by the petitioners.

That the — at that time these petitioners were being interrogated federal indictments had been returned by the United States grand jury against the members of the New Orleans police department, three for income tax evasions and eight for perjury.

Now the specific contention and the —

Potter Stewart:

Where these men, where these men ever indictment themselves —

Eugene Stanley:

No sir, these men will not under indictment either in the State Court or in the Federal Court.

Now the specific basis for an appeal Your Honors —

Felix Frankfurter:

Were they notoriously designated or intended to be accused?

Eugene Stanley:

I cannot say that but they were —

Felix Frankfurter:

Does the record show that they were in the mind of prosecutor equal to be prosecuted?

Eugene Stanley:

Well the record does show this, it bears out this fact, but doesn’t show exactly what Your Honor Mr. Justice Frankfurter asks, but it is an admitted fact that these two men had been engaged in the operation of lotteries for years.

That was why they were called before the state grand jury to find out whether they had been permitted to operate with the permission of the police department and had paid bribes for that purpose.

However neither one of these two men claimed any fear of any state prosecution, my two clients, but they did base their contention exclusively and solely on the fact that they might be prosecuted under the federal laws for felonies which might arise as a result of testimony forced from their lips.

But the basis of their appeal to Your Honors is this, that there exists and the record bears this out, the contention made in the written statement that there exists collaboration and cooperation between the district attorney for the Parish of Orleans and the United States attorney for the Eastern district of Louisiana and the Internal Revenue Service of the United States and its investigators for the — regarding public bribery and income tax evasions, record Page 46.

William J. Brennan, Jr.:

Do they say what that collaboration, cooperation consisted of?

Eugene Stanley:

They said this, they did not know if Your Honor please the details of that collaboration and assistance, but they did say this that the state district attorney for the Parish of Orleans Mr. Hubert had held conferences with the United States attorney regarding public bribery on the part of members of the New Orleans police department, the record bears that out.

Well naturally what the details of those particular conferences, well my clients would be in no position to know.

Felix Frankfurter:

What is the bearing of that fact on the issue that you are presenting here?

Eugene Stanley:

Well the bearing of that fact is this if Your Honors please that I would just if Your Honor would just permit me to make the statement.

Felix Frankfurter:

You just go your own way?

Eugene Stanley:

I will just say this Your Honor please, their pleas were denied and they were fined a $100 in 10 days and exhausted all remedies in the State Court.

Now I am not unmindful of the fact that Your Honors have held in a number of cases that under the doctrine of two sovereignties rule, the privilege against self incrimination provided for by the Fifth Amendment protects only against the invasion of civil liberties by the government and has no application, and in those instances wherein a witness is asked questions in a State Court which might incriminate him in a federal — for a federal offense Your Honors in Feldman versus United States and Barron versus Baltimore and Brown versus Walker and a number of cases said in my brief have held that such a witness could not claim the benefits of the Fifth Amendment.

However it is a significant fact that in those cases which have a approved the two sovereignties rule wherein Your Honor have held, that Your Honors indicated that that rule applied, Your Honors have indicated that there was in fact no danger of federal prosecution in that jurisdiction and that where such a threat did exist, one way or another, the witness was protected from incriminating himself in the second jurisdiction.

Felix Frankfurter:

Where was that held?

Eugene Stanley:

That held if Your Honor please in Ballmann v. Fagin, 200 United States, Page —

Felix Frankfurter:

That was held there?

I said held?

Eugene Stanley:

I beg your pardon.

Felix Frankfurter:

I asked you whether that was held?

Eugene Stanley:

I — that’s on Page 2 of my supplemental brief.

To my knowledge the rule if Your Honor please in Ballmann versus Fagin, United States versus Saline Bank Henry (Inaudible) versus United States 196 Fd and 117 Fd was to the effect that if there was a possibility of a prosecution in the second jurisdiction.

Felix Frankfurter:

That’s minority rule.

Eugene Stanley:

That was — minority rule.

Now —

Felix Frankfurter:

I thought we still differentiate between a court decision and a dissent.

Eugene Stanley:

I beg your pardon sir.

Felix Frankfurter:

I thought we still differentiate between court decision and dissent, but apparently not?

Eugene Stanley:

I am at little hard at hearing if Your Honor please.

Felix Frankfurter:

You say it’s the minority view and then don’t assert it was held here so I want to know which it is or are they all the same.

Eugene Stanley:

I would say, I would stand corrected and say that that is a minority rule sir.

Now I am going, if Your Honor please, to attempt to differentiate the factual situation in this case from the situation in Knapp versus Schweitzer which I know Your Honors are thoroughly familiar with, it was decided in July of ‘58 and Your Honors held in Knapp versus Schweitzer and his Honor Mr. Justice Frankfurter had delivered the opinion of this honorable court, Your Honors held in that case that Knapp could not claim the benefits of the Fifth Amendment for the reason that there did not exist in the record — that there did not exist in the record any factual situation comparable to this whereby Knapp was in danger of any federal prosecution.

And Your Honor Mr. Justice Frankfurter pointed out on Page 1508 on the advance sheets, of course the federal government may not take advantage of this recognition of the state’s autonomy that’s under the two rules in order to evade the bill of rights.

If a federal officer should be a party to the compulsion of testimony by state agencies, the protection of the Fifth Amendment would come into play such testimony is barred in a federal prosecution citing Byars versus United States and there are a number, there are number of other decisions such as the Macanese case, in support of what his Honor Mr. Justice Frankfurter enumerated in his opinion.

Now one of the case is cited in support of the Two Sovereignties Rule is that Feldman versus United States, 322 United States 487 and if my memory serves to be correct and if I not I hope Your Honors will just know that its an unintentional error, I think his honor Mr. Justice Frankfurter also stated as dictum in that case on page 494, “If that Federal agency want to use a state court as an instrument for compelling disclosures for Federal purposes the doctrine of the Byars case as well as the McNabb versus United States case of what adequate resources against such an evasive disregard of the privilege against self incrimination citing some of the minority cases originally, United States versus (Inaudible) and so forth.

Now if Your Honors please–

Felix Frankfurter:

Well it’s because of that I think my brother Brennan asked you what preciously was what you call collaboration between state and federal officials and you said that that you didn’t know about that.

Eugene Stanley:

I said.

Felix Frankfurter:

Before you said a constitutional right you must have some basis in the record.

Eugene Stanley:

Well if Your Honor please this is the, this is my position briefly in a nutshell where a state official collaborates with the federal officials in an effort to obtain — obtain testimony and where that state official visits that federal official and collaborates and confers with him and cooperates with him in an investigation with said federal official is conducting and wherein he had already secured indictment that that state official is to all intents and purposes acting as a federal official and is barred by the same restrictions and the same limitations which the federal laws drape around the shoulders of the federal official himself.

Felix Frankfurter:

You mean that the only way in which you can avoid this is that state prosecutors, United States attorney insulate themselves against one another, is that it?

Eugene Stanley:

Well I say this, if Your Honor please, no deference in respect to Your Honor that the only way you could avoid it if the federal prosecutor is seeking to obtain evidence for the purpose of prosecuting men in the federal court, he should obtain this evidence through the investigating officials of the proper United States department.

He couldn’t force these defendants, the United States attorney for the eastern district of Louisiana.

He could not have forced these defendants into the federal court or before the federal grand jury and compel them to incriminate them through their own way.

Felix Frankfurter:

I am not suggesting that you are not right.

What I am suggesting that you must allocate, you must show that it was reference to these defendants that the federal prosecutor tried to use the state prosecutor as a tool to get indirectly when he couldn’t get directly that’s all I am suggesting.

Eugene Stanley:

Well if Your Honor please I know that nobody can show what went on between the United States attorney and the United – and state attorney —

Felix Frankfurter:

Only that case is here and that was shown, you then held that the federal authorities use the state authorities engaging and then hide themselves behind them, so that’s merely a sham and a front.

So you got a plenty of cases and several decisions.

Eugene Stanley:

Yes.

Felix Frankfurter:

We held the testimony thus secured, or in fact secured by the federal authorities in violation of the Fifth Amendment, but a buck-shot charge that federal attorneys and state attorneys talk to each other that he made lunch together therefore invalidate every action by the state authority to something else.

Eugene Stanley:

Well that’s a matter that Your Honors are going to have to eventually determine.

Felix Frankfurter:

Well we can only determine it on the basis of the record.

Eugene Stanley:

Well we might, we made the record as we best could.

We could not put the state attorney on the stand and find out from him exactly what conferences he had with the United States attorney, nor would the United States attorney had to divulge what conference that he had claiming privilege under the – by which – by virtue of their office.

Now if Your Honor please I am not optimistic enough to plead that was my limited capacity and with my limited ability that I can come here and break down verbatim or break down all together the doctrine of the Two Sovereignties Rule.

His Honor Mr. Justice Black in Knapp v. Schweitzer pointed out the splendid Articles in the UCLA law review by the law professor who traced the whole idea of the Two Sovereignties Rule and who respectfully pointed out as he impressed Judge Black with that — Justice Black with that fact who respectfully pointed out that in his opinion there was no solid base or foundation for the Two Sovereignties Rule.

That a man should not, should be compelled that it finds no support in the common law decisions and that it finds no support in the English law decisions which up until that time had been believed to be the truth.

Felix Frankfurter:

They did not have Federalism (Inaudible).

Eugene Stanley:

Beg your pardon sir?

Felix Frankfurter:

They did not have a constitutional federal result holding this the basis of holding (Inaudible)

Eugene Stanley:

Well some of the, well I won’t detail with your honor please.

Felix Frankfurter:

That’s true isn’t it?

Eugene Stanley:

Yes that’s correct, yes there as no federalism, there was no federalism in the two (Inaudible) in the British empire.

Felix Frankfurter:

And the chancellor, they exercise the chancellor’s discretion.

Eugene Stanley:

Right sir.

Felix Frankfurter:

It’s another thing, but you are making a constitutional claim.

Eugene Stanley:

Now there are a number of a state cases what effect those state cases have on Your Honor, will have on Your Honors I am unable to say, which have held that a defendant in a contempt proceeding cannot be, say — of contempt if the evidence to forge was served as a basis for a federal prosecution.

It was so held in Michigan, it was so held in Watson, the Florida case and then my own case the State of Louisiana in the case of state versus Dominguez, and the Louisiana Supreme Court itself, gave Dominguez the right to play the Fifth Amendment against the divulging testimony concerning his operations of lotteries for the reason that Dominguez was actually under federal charges for violating the income tax law of the United States at that time.

Now if it be true that the testimony elicited in a state procedure could not or can be used in a federal prosecution the fact that a man is under indictment justified the Louisiana Supreme Court in their opinion although that’s stretching it, in granting Dominguez immunity.

But I say this that went to well known lottery operators some before a state grant jury and testimony is sought to be elicited out of their mouths and from their lips which could not be compelled in the federal inquiry before the federal jury or before the federal courts that those men with the basis that is laid in this record of the actual waiver of immunity against federal prosecution should be permitted to claim the benefits of the Fifth Amendment.

William J. Brennan, Jr.:

Well this argument does not rest on any collaboration then between the state and federal officials, but —

Eugene Stanley:

I wish —

William J. Brennan, Jr.:

Only the fact that they were in their affairs or actually under enquiry by the federal authority?

Eugene Stanley:

The basis of petitioners’ appeal Your Honor Mr. Justice is not only the collaboration between two officials at the state official for intents and purposes were the federal officials.

But it is also based on the contention, the respectful contention, that the collaboration which existed between those two officials plus the fact that these men were under investigation by the United States attorney as well as the offices of the United States internal revenue forces that those two factors in this case justify these defendants in pleading, in pleading the benefits of the Fifth Amendment.

Now if Your Honor please the time allotted to me is very brief and I don’t here to take too much time, as it has to be split, one hour has to be split around between myself and this gentlemen who represents the other petitioner, there has been since Knapp versus Schweitzer quite a fit of jurisprudence I mean not jurisprudence but quite of bit of review of Your Honors’ opinion in Knapp versus Schweitzer and the Yale law review, the UCLA law review, the Cornell Law review, and the Harvard Private law review and for what it is worth, the offices of those Articles pointed out that if a factual situation was presented to Your Honors wherein it was shown that a real basis of Federal prosecution existed or collaboration, they used the collusion, I won’t use the word collusion it’s a rather harsh word, but when — where there was collaboration and cooperation between the state officials despite Feldman decision and of course as pointed out in Knapp versus Schweitzer that is very probable it would be held that the petitioners were entitled to claim the benefits of the Fifth Amendment.

Now with this brief discussion on behalf of my clients I apologize for my lack of ability to give you honors more concrete and more valuable assistance in the determination of the principles involved in this matter, and in this writ.

We express to Your Honors individually and collectively our thanks on behalf of the petitioners for having been permitted to make oral argument on our application for certiorari.

Earl Warren:

Mr. Williams.

Milo B. Williams:

Mr. Chief Justice and the Members of the Court.

I want to point out at the inception that there are differences in facts between Mr. Stanley’s case and mine, but I’d like to call Your Honor’s attention to the fact that all of the facts on which we stand are stipulated in the record and in an agreed statement of facts and with regard to record number 75, that agreed statement of facts begins on page eight, a stipulation of facts and in that stipulation of facts are the facts on which we predicate our case, and on page five of my brief appears that he was compelled to answer certain questions, under circumstances and surroundings existing at the time that were propounded that they would be an infringement and denial of his rights under the amendments 5, 9 and 14 of the Constitution of the United States.

That is substantially the same as Mr. Stanley’s contention expect that I have to inserted amendment nine.

On page six of my brief, under subparagraph B, petitioner and his wife, and these are admitted facts, admitted by the District Attorney of the Parish of Orleans, that they were under investigation by the United States Revenue Service and that already 11 indictments had been returned against the members of the police department of the City of New Orleans for bribery, income tax evasion and perjury of false statements.

Felix Frankfurter:

May I – my I interrupt you?

Milo B. Williams:

Yes sir Judge (Inaudible)

Felix Frankfurter:

When you say stipulations to fact, one would have to read the stenographic minutes to find out what actually transpired the Grand Jury, would one not?

Milo B. Williams:

No, in the stipulation of facts Your Honor at page —

Felix Frankfurter:

Where is that?

Milo B. Williams:

Of my printed record.

Felix Frankfurter:

Page eight?

Milo B. Williams:

At page nine, ten you will find the entire proceedings with regard to my client before the Grand Jury, the questions and the answers.

Felix Frankfurter:

The questions and answers printed there are — constitutes the material to which we must go in order to find out what took place before the Grand Jury.

Milo B. Williams:

Yes sir.

Felix Frankfurter:

It has not been put in narrative form reform by stipulation, is that correct?

Milo B. Williams:

Yes it has been put in narrative form —

Felix Frankfurter:

Where, that’s what I want to know, where?

Milo B. Williams:

It has put in narrative form in my —

Felix Frankfurter:

I don’t mean in your brief — I don’t mean in your brief, but in the record, is it in narrative form?

Milo B. Williams:

Not in the record.

Felix Frankfurter:

That’s what I’m asking, all right.

Milo B. Williams:

Not in narrative form.

No in actual form it is in the record, but not in narrative form and in my brief and in Mr. Stanley’s brief we refer to the printed pages of the record wherein certain things can be found.

Now on page six of my brief, I’m a little different from Mr. Stanley, in that I call attention of Your Honors to the fact that immunity was extended to my client as was his clients, but then it was a restrictive immunity.

Milo B. Williams:

Our immunity laws give you immunity solely for offences against public bribery and things of the sorts, you will find them cited adequately in the brief, and doesn’t take into consideration any other thing that might be admitted in interrogation before a Grand Jury after this cloak of supposed immunity had been extended.

Your Honors can well appreciate that it might take a Philadelphia lawyer after you read these immunity statutes to understand after District Attorney says now I understand sir, you have been granted immunity.

He might think that he has immunity for a lot of things that are not stipulated by that statute whereas a matter of fact, he only has one.

Felix Frankfurter:

But that only would relate, the point you are now making relates to the extent of immunity for prosecution by Louisiana in the state courts, in any event it wouldn’t go to federal immunity?

Milo B. Williams:

Yes, we say this because throwing that aside would be a violation of his rights of due process of law under the Fourteenth Amendment sir, plus what those un-enumerated rights listed in the Ninth Amendment, which there is jurisprudence to the effect applies to these states as well as the federal government, as you know there is jurisprudence to the affect that only the first eight amendments apply solely to the federal government.

However, to continue sir, number D on page six, subparagraph D, is an admission in the agreed statement of facts that there was cooperation, collaboration between the federal government and its various branches including the District Attorney’s office in New Orleans, including the internal revenue, they admit in this agreed statement of facts Your Honor —

Felix Frankfurter:

Now would you been good enough —

Milo B. Williams:

Justice Frankfurter you have suggested that where, on what to do we hinge our collaboration, they admit it.

Felix Frankfurter:

Now what you got enough to give me the page on which this admission was.

Milo B. Williams:

This submission in the —

Felix Frankfurter:

Or what it was?

Milo B. Williams:

— transcript of record 15 and 16.

On that printed transcript of the record 14, it starts with paragraph three, paragraph four on page 15, paragraph six —

Felix Frankfurter:

Now wait a minute.

Would you break it to us and say what there is as to this petition, what is there to be good enough to point out in the record, activities between the federal authorities and the state authorities relating to this petition?

Milo B. Williams:

Paragraph seven is the closest we come sir.

That’s on the bottom of page 15, that there had existed, now mind you this is an agreed statement of facts, and now exists cooperation and collaboration between the District Attorney for the Parish of Orleans and the United States Attorney for the Eastern District of Louisiana and the Internal Revenue Service of the United States of America and its investigators, as well as the Police Bureau of Investigation, in reference to members of the New Orleans Police Department regarding public bribery and income tax evasion and that the Honorable Leon D. Hubert has held conferences with the United States Attorney regarding public bribery on the part of certain members of the New Orleans Police Department and income tax evasion, felonies under the laws of the State of — United States of America and the State of Louisiana.

Felix Frankfurter:

Was this petitioner a member of the police force of New Orleans?

Milo B. Williams:

No sir, I anticipate that.

But we have in here that publicity on page 15, paragraph five, that publicity carried through daily newspapers, television and radio has been carried on for several months regarding the investigation embarked upon by the federal authorities into the income tax returns of some members of our New Orleans Police Department and that was a matter of public knowledge as Mr. Stanley has pointed out, that these defendants had since time immemorial been engaged in the business of operating lottery companies, but I want to point out to Your Honors there is a difference with my man.

My man at the time, he was fined and found in contempt of court.

I better I explain to you our method of finding in contempt of court with reference to questions before a Grand Jury.

You are subpoenaed before a Grand Jury, certain questions are propounded, you invoke your real offensive constitutional rights.

Then you are brought back in later, at a later date before the judge, who has charge of this particular Grand Jury, and then you are asked in effect the questions again, Mr. Mills do you still invoke your constitutional guarantees and refuse to answer these questions?

So in effect those questions are asked again.

Then if he says then as he did here, my stand is the same he is then adjudged in contempt.

Now between the time these questions were originally asked and the time he was adjudged in contempt, lo and behold he was indicted by — no not by the federal, he was indicted by a state Grand Jury.

And then while under that indictment, he was in effect asked these questions again, and he still invoked his constitutional privileges, particularly that Fourteenth Amendment in which he says that he was deprived of his due process of law.

The Fifth Amendment —

Earl Warren:

For what offense was he indicted?

Milo B. Williams:

He was indicted for public bribery, the public bribery for which he was granted immunity in the so called — in this Grand Jury proceeding.

Now Your Honors may say that his testimony under our statues can’t be used against him, that’s true that it can’t be used against him in a public bribery case, but what about the testimony of others, that his testimony reveals that had connection with, that lays the door wide open.

He can say – he can say certainly you can’t use my testimony, but how about the testimony of the other individuals whom he mentions, who are not covered by that immunity, and they can put him smack slap in jail, on the testimony of the others, and —

Felix Frankfurter:

Where is your immunity statute printed in your briefs?

Milo B. Williams:

You’ll find it —

Felix Frankfurter:

What I want to know is it might old immunity statute which this Court held inadequate for federal purposes in Counselman versus Hitchcock, that the evidence can’t used or that he can’t be prosecuted for any matter of things regarding which he gave testimony.

Milo B. Williams:

We have three Your Honor —

Felix Frankfurter:

Where are they?

Milo B. Williams:

— we have three, and if you will look at the printed record at page 21, you will find that Section 13 of Article 19 of our Louisiana constitution reads as follows.

Felix Frankfurter:

21 of your record?

Milo B. Williams:

21 of the printed record in record 75.

Felix Frankfurter:

Alright.

Milo B. Williams:

Any person may be compelled to testify in any lawful proceeding against any one who maybe charged with having committed the offense of bribery.

Incidentally I call Your Honor’s attention to fact that nobody has been charged with bribery when he was being interrogated before a Grand Jury.

This says testify before — against anyone who may have been charged and shall not be permitted to withhold his testimony on the grounds that it maybe incriminating.

Now at the bottom of the page, we have Louisiana revised statute.

The offender under the public bribery, bribery of voters or corrupt influencing Articles, who states the facts under oath to the District Attorney charged with the prosecution of the offense, which is not the case here, this was before a Grand Jury, and who gives evidence tending to convict, may in the discretion of the District Attorney be granted full immunity.

That’s not an immunity, that’s within the discretion of the District Attorney.

And then at the bottom of page 22 of that printed record, any person may be compelled to testify in any lawful proceeding against another charged with public bribery or commercial bribery, et cetera, and shall not be permitted to withhold his testimony, on the ground that it might expose him to public infamy, but such testimony shall not afterwards be used against him in any judicial proceeding, expect for perjury in giving such testimony.

Felix Frankfurter:

Is this a prosecution of what you speak alive?

It is alive?

Milo B. Williams:

Which prosecution, you are speaking the matter which is before Your Honors?

Felix Frankfurter:

No that’s not a prosecution.

Milo B. Williams:

No —

Felix Frankfurter:

The state prosecution for bribery, for public bribery, is that prosecution of —

Milo B. Williams:

I cannot — my positive knowledge answer that.

I think some of them were dismissed, I’m not sure.

Felix Frankfurter:

Might make a difference then — since your argument.

Milo B. Williams:

I really don’t know, but at the time my brief was written, it was alive, but I believe that they have, some of them have been dismissed.

Felix Frankfurter:

What you say is that under your constitution, and indeed under the Fourteenth Amendment, in view of the circumstances that you narrate these — in view of the testimony he was compelled to give, not only the testimony can’t be used against him, but he is going to be prosecuted for the subject matter of that testimony.

Milo B. Williams:

Provided it wasn’t —

Felix Frankfurter:

So that if this an alive prosecution and he is convicted, then you have a case as to invalidity on your claim of that conviction.

Milo B. Williams:

But here we — excuse me sir.

Felix Frankfurter:

That’s the (Inaudible) —

Milo B. Williams:

Well in this particular case, in number 75, we ask Your Honors to consider something else, and that is the civil aspect of it and therein lies the difference between Mr. Stanley’s case and mine.

In the admitted state of facts, the stipulation of facts, in the printed record, on page 16, that at the time this Grand Jury interrogation, there was on file in the Criminal District Court for the Parish of Orleans the following cases, involving alleged violations of Louisiana revised statute 51281 and I list them, then at the time of this Grand Jury investigation, the Civil District Court had on file in New Orleans the following cases for occupational licenses, for occupations similar and identical with the occupation suggested to these to have been the defendants at the time of the Grand Jury investigation.

Now our point is this.

That if he had answered the question, which he refused to answer, he would have laid himself liable for prosecution under a state statute not covered by the immunity statutes, which requires that any individual operating under a trade name is required to register Milo B. Williams operating as the XYZ company, and none of these men had done that, and if they had been compelled to answer the questions propounded to them in the Grand Jury, then they would have laid themselves liable to a prosecution under the state law for that.

Now if Your Honors will look at page — how is that?

Hugo L. Black:

What does RA 51281 prohibit?

Milo B. Williams:

Prohibits the operation of a company.

Hugo L. Black:

Any company?

Milo B. Williams:

By an individual operating under a company name.

Let us say that I, Milo B. Williams, decided to operate a lottery company under the name of the Golden Bell, I would be required by our law to register that Milo B. Williams is operating a company under the name of Golden Bell.

Hugo L. Black:

Well the charges in these indictments were that, that they had failed to register, although they are operating a lottery?

Milo B. Williams:

Yes sir.

Now if Your Honors will looks a page 15 of my brief.

Hugo L. Black:

Is RA 51281 quoted in here?

Milo B. Williams:

Yes sir, I have it at page — it is not quoted, no sir, I referred to it, but I tell you what it is in my brief.

Hugo L. Black:

Well is it just for operating an illegal company or —

Milo B. Williams:

No, it’s just for operating any company.

Earl Warren:

Any kind of —

Milo B. Williams:

Any kind of company.

It might be a perfectly legitimate business, but if I as an individual operate under a company name, in other words, conceal who the true owner of the business is, it’s my duty and under the law I have to register that I, Milo B. Williams is operating under the name of the XYZ Company.

Hugo L. Black:

Well this is a misdemeanor.

Milo B. Williams:

It’s a misdemeanor, yes sir.

Charles E. Whittaker:

A fictitious name registration law.

Milo B. Williams:

Yes sir, that’s what it is Justice Whittaker.

No in addition to that, or let me go back to this page 15 of my brief and I cite you, it goes back a long way, and that is Ehrenberg, that in the question be of such description that the answer to it may or may not criminate the witness according to the (Inaudible) order of that answer it must rest with himself who alone can tell what it would be to answer the question or not.

If in such a case he say upon his own that his answer would criminate him, the court can demand no other testimony of the fact and that was Justice Marshall way back in Ehrenberg case.

Milo B. Williams:

Now I am going to show you if you gentlemen will permit me, by these, on page 15 by these hypothetical cases what could take place under the hope of (Inaudible) immunity.

Example one, witness X before a Grand Jury investigation, investigating public bribery, is told that he has immunity under those statutes which I read to Your Honors and the following ensues.

Question – Do you know officers, police officers A and B, answer yes.

Question – Did you ever give them any money, answer, yes.

Question – For what purpose?

So they wouldn’t raid my gambling house.

What happens now?

X is not charged with bribery for which he has immunity under those statutes, but he is charged with a revised statute 1490, the gambling statute.

His testimony is not used against him, but the testimony of A and B is used against him.

And how did they get the A and B as witnesses, only as a result of that grand jury investigation on something else, where he was cloaked with this set of bribe immunity.

The result he is convicted of an offense of which the grand jury had no knowledge until drawn from him under that pretext of immunity.

Now example two is even more serious, policeman A has been shot by person or persons unknown.

Witness X appears before a grand jury investigating public bribery just as this one.

Witness, he is loaned into a sense of security with the immunity routine and this ensues.

Question – Did you pay any money to any policeman.

Yes sir; To whom, policeman A; Why, so he wouldn’t raid my handbook.

What did he do with the money?

He didn’t do anything but raised hell that it wasn’t enough.

Did you give him anymore?

No.

He started to arrest me and I shot him.

If anything more he added to say, but to observe that but except for this blanket of spurious immunity well for which the grand jury wrapped this witness X of, if you are a policeman A, would still be a policeman or no.

Now example three is drawn from actual questions before the grand jury and I have already called Your Honor’s attention to that fact.

The question as it appears on page 17 on my brief will be exactly as was propounded by the assistant district attorney Mr. Nelson and the answer will be as it might have been, had my client accepted that spurious cloak of immunity.

The question, Mr. Mills as you already know, this jury is inquiring into the lottery operation from 1950 to 1955, and that is what we would like to talk to you about.

What was your employment from 1950 to 1955?

Well then the grand jury investigation he invoked the Fifth and the Fourteen Amendments.

Supposing if Louisiana said we are going to get rid of the privilege against self incrimination entirely under our constitution, does that raise a federal question?

Milo B. Williams:

I think so under the Fourteenth Amendment that’s depriving you of due process of law and I think that it’s been very aptly pointed out Your Honors, its in the, its in the Feldman case.

Here it is, it was very aptly pointed out in Justice Black’s —

Hugo L. Black:

That was a dissent.

Milo B. Williams:

That was a dissent I understand that Justice, but what you said in that encoding Boyd versus United States I think still stands.

In Boyd versus United States that any compulsory discovery by starting the party’s oath is contrary to the principles of free government, it is a bar to the instincts of America.

It may suit the purpose of dissipating power but it cannot abide the pure atmosphere of personal and political freedom and I think those words were well said.

But Justice Frankfurter has cited with approval what was said in the Murdoch case, the principle established answering Justice Harlan is a full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self incrimination.

But the immunity statutes of the Louisiana don’t give you that full and complete immunity and if Justice Harlan as you suggested we had none then that exactly would be violation of the due process of law guaranteed to us under the Fourteenth Amendment.

But if Your Honors, I didn’t go any further on that, the answer of Mr. Mills a hypothetical answer to that question that was actually propounded to him, I had Golden Bell lottery and what happens on page 17 I suggest that what happens actually did happen.

I cited to you those cases that were actually filed for the violation of that particular fictitious name registration and I cite them now.

We believe though that this particular judgment with regard to my client Mills is contrary to amendment 9 of the United States Constitution which reads the enumeration and the constitution of certain rights shall not be construed to deny or disparage others routine by the people.

Now I am sure that Justice Clark is well acquainted with Mr. Bennett Patterson.

I don’t know if you are familiar with the very illuminating book that he wrote called The Forgotten Ninth Amendment and I quote that, part, relative to part that is applicable to our case on page 19 of my brief and I also cite that the Ninth Amendment applies to states which this Court has held in (Inaudible) versus District Court and in Falco versus Connecticut.

Now what are some of these unenumerated rights?

It must be conceded, now this is Savings and Loan versus Topeka and Everson v. Board of Education, it must be conceded that there are such rights in every free government beyond the control of the State a government which recognizes no such right, which held the lives of liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power is after all but a despotism.

Now suppose the Louisiana or any other states should enact a statute enabling one with a fancy claim against another to require that other person to disclose to him, Justice Black that’s on page 20, to disclose to him detail — all details of that transactions prior to the filing of a suit.

There is no probation in any constitution against any really — such ridiculous procedure, but the right of privacy as to business transactions until added by due process of law in inherent in all individuals.

Will there be any doubt what Your Honors would do with such a statute, yet that is exactly the situation with regard to my client in number 75.

If this petitioner were forced under the provisions of the Louisiana constitution and revised statutes to answer the question about his occupation during 1950 to 1955, the one that I read to Your Honors, and other questions that would inheritably have followed the provisions right upon by the grand jury would in effect become just such as hypothetical statute as suggested above.

But petitioner might then lay himself liable to a multiplicity of suits and actions, including suits by the United States Government, for income tax, gambling tax, gambling stamp and so on, none of which would have ever been instituted, but for that answer extracted for him under the cloak of fancied immunity.

Now that’s not a hypothetical case that I’m suggesting.

It actually happened in New Orleans and as I show you on page 21 of my brief, as substantiated by the admitted state of the facts, in the printed record, these suits were filed for occupational licenses by the City of New Orleans against men engaged in similar businesses as was my client.

In fact one of them was his son, August J. Mills Jr. I won’t take anymore of Your Honor’s time, except to thank you for the privilege of having this oral argument and to point out once more that, that forgotten Ninth Amendment is worthy of considerable thought and is applicable to both states and the federal government, thank you sir.

Earl Warren:

Mr. Culligan.

M. E. Culligan:

Mr. Chief Justice and Members of the Court.

I first want to present the compliments of my Attorney General Mr. Jack Gremillion and express his regret for not being able to be with you gentlemen today.

On my behalf I again appreciate the honor and privilege of once again addressing you in a short period of less than a year.

In this particular case, if Your Honors please, I don’t find any case that is exactly a positive.

I start with the premise that from the case of Brown versus Walker, right up until the present moment, the self incrimination has never been held to be a fundamental right under the constitution of the United States, nor has it held to be a privilege in immunity, under the Fourteenth Amendment.

Now that has been a unanimity of opinion in the decisions, but not necessarily the unanimity of opinion among the various members of the Court over a period of years since Twining versus New Jersey up until today.

In Brown versus Walker, the rule is clearly stated that self incrimination was merely a rule of evidence in England.

It became close in this country with impregnability of a constitutional amendment and that constitutional amendment as Your Honors will know was put in by four states of the original (Inaudible) as a restriction on the power of the federal government — from tyranny by the federal government against the state government’s citizenship.

M. E. Culligan:

The principle of the law is annunciated, without question, in Wigmore versus — Wigmore in evidence in the third edition which Your Honors have quoted in Knapp versus Schweitzer and which the rule of law is distinctly stated the Federal Fifth Amendment of course, and notice wording of Professor Wigmore’s evidence.

The Federal Fifth Amendment of course applies in federal trials only, nor does the Federal Fourteenth Amendment make the provisions of the Fifth Amendment in the present respect to the privilege and immunity of citizens of the United States, so as to be protected and reviewable by the Federal Supreme Court as against a violation by the state.

Mr. Stanley in a supplementary brief here today and in his argument talk about a very wonderful Article written by Dr. Grant.

Dr. Grant is the Dean of Division of social Science in the UCLA.

That’s been a pet theory of Dr. Grant’s for 25 years.

He wrote his first Article on that in the Tampa Law Review back in 1935.

This is more or less a revamping of his original Article.

However, as Justice Frankfurter called attention, he himself, talking now about Dr. Grant, in his own Article says this.

The most remarkable fact is that not one of the cases, now he has reviewed Fagan and all the other cases Mr. Stanley referred to, he referred — took over the Sicily cases, all of the jurisprudence up until 1958, the most remarkable fact is that not one of the cases involving British federalism, has so much as discussed the issue from a dual sovereignty angle.

In fact this maybe due to the (Inaudible) of the English common law, even as applied to foreign nations.

He himself admits that the issue has never been discussed for a good and sufficient reason, that you only have one sovereign.

We certainly have two sovereigns.

In fact in our own state was where the issue first came up with dual sovereignty in the slaughterhouse cases.

Since that time there has been innumerable cases that arose of the State of Louisiana, in civil as well as in criminal law.

Davidson versus New Orleans, (Inaudible) versus Louisiana in a case that I argued here about four years ago, State of Louisiana ex rel. Francis against Resweber, in which that same principal of dual sovereignty upheld by this Court.

There have been cases all over the United States, where the dual sovereignty theory has been upheld.

To say that the Fourteenth Amendment wound encompass the Fifth Amendment, would throw out the entire constitutional theories of dual sovereignty.

Absolutely throw it out.

No state in the United States could possibly administer its own criminal justice, if that was correct law there was no such thing as dual sovereignty, if there is, on which all of these cases have been based.

As to the Fifth Amendment itself, Your Honors have specifically held and in at least 30 cases to my knowledge, that the Fifth Amendment does not and cannot apply to the states.

As to the Fourteenth Amendment, Your Honors have held in Twining versus New Jersey, Palko versus Connecticut, Adamson versus California, the last case Knapp versus Schweitzer that the Fourteenth Amendment has not encompassed the Fifth and has no regulatory power on self incrimination insofar as the state itself is concerned.

As to the use of the testimony in the State Courts, I mean use in the federal courts from the state sources, I think Your Honors have definitely decided that in the Feldman case, the Bryar’s and McNabb cases, that wherever there is actually collusion, Mr. Stanley said he didn’t want to use that word collusion, if there is actually collusion of courts, federal judges would throw it right out the window.

In other words, the District Attorney in this particular case, the Honorable Leon Hubert, was a former Assistant United States District Attorney, a Professor of Criminal Law and is still Professor at one of universities at Tulane, Mr. (Inaudible) is a high class gentleman, the United States District Attorney, the two federal judges in New Orleans, one of whom is my classmate, (Inaudible) and the other who was my sponsor before this Court, Judge Wright, certainly wouldn’t tolerate any such unethical comic by United States District Attorney, now our State District Attorney and Mr. Stanley knows those gentlemen and their reputation as well as I do.

Again I call Your Honor’s attention to the fact, this is strictly a Grand Jury proceeding, and we are very particular about our Grand Jury proceedings.

We weren’t so particular in our selection and we got thrown out on that nine to nothing, but as far as — I reported the last case if Your Honor please, State versus (Inaudible), I always believe in taking about my law as well as my (Inaudible) [Laughter], but there is no attack in this case on our Grand Jury.

There is no attack on the charge given to our Grand Jury and our Grand Jury must charge, our judges must charge that Grand Jury, as soon as they sworn in, the law of bribery including Article 121, which is an immunity granted by the legislature far beyond the constitution itself, talking about immunity.

Now I’d like to just briefly touch on this.

Louisiana is one of two states that you don’t have a privilege of self incrimination at all in a bribery case.

We don’t give it to you.

We don’t give it to you at all in our constitution.

M. E. Culligan:

In other words, Louisiana and Pennsylvania have exactly the same constitutional provisions.

Our Article I, Section 11, is the same as Pennsylvania’s Article I, Section 9, which is the same as the Fifth Amendment.

Our Article 19 which is cited by both gentlemen in their briefs our Article 19, Section 13 is exactly the same as Pennsylvania’s Article III, Section 32 except that they combine in their Article 32, our Sections 12 and 13.

Our Section 12 and the Article 19 defines what is bribery.

We give you no privilege against self discrimination on bribe.

We do give you in the constitution itself the right to that testimony alone cannot be used against you, then the legislature to complement and implement.

The Constitution is going further they give you immunity from prosecution under Article 121.

Felix Frankfurter:

May I ask as to the matter of curiosity whether the provision in your constitution regarding immunity, what was the date of your constitution?

M. E. Culligan:

That provision constitution date judge is, constitution of 1921, although you will find —

Felix Frankfurter:

It runs back to —

M. E. Culligan:

It runs back to 1879.

Felix Frankfurter:

That was before this court held that that was inadequate so far as this —

M. E. Culligan:

Yes that was way back in 1879, is when this provision was in our constitution and was placed —

Felix Frankfurter:

That was in 1890.

M. E. Culligan:

I was just going to mention the Hitchcock case if Your Honor please.

The Pennsylvania constitution was in 1874 and the wording is exactly similar where it simply uses the words that the evidence cannot be used.

Later on this Court developed the theory of evidence (Inaudible) prosecution.

Now in Counselman versus Hitchcock is the only case that I find where there is any mention at all as what this Court might do, where the proposition was not the extent of immunity offered under a state court statute to compensate for the loss of privilege under the constitution, or where it was actually in the constitution itself.

(Inaudible) in Counselman versus Hitchcock it says the situation would be entirely different where that was done in the constitution and reason for that to me is very (Inaudible).

If the state of Louisiana and the state of Pennsylvania incidentally they set a Philadelphia lawyer to figure these things out but the Philadelphia lawyers figured it out, Commonwealth versus Haynes is the leading case on it in which exactly the same situation took place in the City of Philadelphia, as we had in the city of New Orleans.

Graft running rampant, playoffs for lotteries and rackets to the police department and they did the same thing over there and in their case which is a State Court case, the lottery vendors were charged with lobbying right in time.

Now we say that it, we have a right not to give you the privilege at all then we can abridge it to any extent we feel like it and our constitution does that.

It’s an exception to the general rule in our constitution.

Article 19, Section 13 is the exception to the Article 1, Section 11.

Now insofar as the state court jurisprudence is concerned, Mr. Stanley personally handled State versus (Inaudible) and I congratulate him upon his victory.

We asked for rehearing and case was denied.

The Supreme Court of Louisiana did not follow its original jurisprudence in State versus Rodriguez which was the seven to nothing we have seven members on our Court, unanimous seven and nothing.

State versus Dominguez was four to three.

Now in that four to three, the case next came up which Mr. Stanley did mention State versus Ford, Your Honor will find that in Judge Cox’s decision and State versus Ford was written by the later beloved my former client, Justice Maurice in which State versus Ford although he had been in the majority opinion, in State versus Dominguez he revised the law, but did not come out with a direct reversal of the opinion written in State versus Dominguez and went on a basis of distinguishing the case because in the Dominguez case the man was actually under indictment and in Ford he wasn’t.

In this particular instance here, in State versus Ford, State versus Rodriguez the Chief Justice, Justice Fournet was in a majority opinion, he had been in a minority in state versus Dominguez, he is back in the majority in state versus Ford and he is a minority in this case.

M. E. Culligan:

In other words, Mr. William’s case our courts did five to two and Mr. Stanley’s case five to one and Justice Fournet took no part.

That briefly as far as the legal part of the case, as far I can inform the Court with one other exception the only judicial interpretation that I found Mr. Stanley quoted you a lot of law reviews, but the only judicial interpretation that I have seen by a state court has been to the New York court of appeals just recently handed down the opinion in which —

William O. Douglas:

I notice a concurring opinion in the State versus Ford says that the —

M. E. Culligan:

Justice Caleb says that the Dominguez case is now in the judicial limbo —

William O. Douglas:

Limbo —

M. E. Culligan:

Trying to use, and I asked him what he meant by the term limbo because in certain religions that means stay and (Inaudible) —

William O. Douglas:

He says —

M. E. Culligan:

No he was using the colloquialism there.

William O. Douglas:

He says from which there is little hope of return.

M. E. Culligan:

Yes, that’s Judge —

William O. Douglas:

Has there been anything since State versus Ford?

M. E. Culligan:

This case yes sir, in other words this case came up on —

William O. Douglas:

There is no opinion though from the —

M. E. Culligan:

No sir.

William O. Douglas:

— your court?

M. E. Culligan:

There is a dissent in the granting of — and in the refuse of grant of writs by Judge Fournet in which he said to the Grand Jury investigation is a fishing expedition.

Now I disagree with that statement because to my mind at least, every Grand Jury, it’s an inquisitorial body and that’s what they have to do.

Also Mr. Williams mentioned the passing the word choice used in our constitution, that has also been passed on by our Supreme Court and it’s a matter of our Supreme Court decision on that in which they have already passed on at in States versus Rodriguez.

On the factual situations in the record itself, the Executive Assistant District Attorney, former judge of our District Court, Mr. McNeill.

(Inaudible) Your Honors I would like to thank you for the honor and privilege of being here and I hope you will excuse my (Inaudible) —

Earl Warren:

Mr. McNeill.

J. David McNeill:

Mr. Chief Justice, members of the Court.

Let me say in the beginning that I certainly appreciate also the opportunity of appearing here before the Court and presenting our position.

I think for just a few moments I would like to summarize briefly and a few observations what seems to be the issue in the case here.

I think we’re confronted here with a very narrow issue in a very broad field and the issue seems to be this.

From the holding of the Court in Knapp versus Schweitzer, the door was left open for a situation where there might be such collaboration between the federal and the state authorities as to vitiate any testimony elicited under immunity statutes.

The Knapp case was almost a parallel case in this, Knapp was called before the Grand Jury and declined to testify even though he had been given immunity and he was convicted of contempt, just as the defendants in these cases were convicted, and the doors as I say was left open to determine whether or not in a proper case any collaboration between state and federal authorities would vitiate such testimony.

Now the question we’re confronted with it seems to me is this, there are two phases to it; one assuming that there was such collaboration and I think Mr. Justice Frankfurter described it as illicit acquisition, I think the collaboration or cooperation would have to be of such nature, as to be an illicit acquisition type, in order to vitiate the testimony.

But assuming that there was such collaboration, the question then would be, would the Court here stop the state from compelling the testimony under the immunity granted by the state, or would the Court here simply say that any such testimony elicited under the immunity statute, could not thereafter be introduced in evidence in a federal prosecution.

Now that’s what was done in the Feldman case.

J. David McNeill:

The Court said that evidence elicited in that manner can be used in a subsequent prosecution.

The question before the Court today is, if this testimony, which the defendants Mills and so on declined to give under the immunity granted by the state, if that testimony was obtained by forcing such testimony, would the Court here restrain the State of Louisiana from going on and compelling it or would the Court say that, that testimony possibly might not be used in a subsequent federal prosecution.

Now reviewing the facts on the basis of that proposition, we have a stipulation in the transcript which has been referred to by Mr. Stanley and Mr. Williams, agreed to between the District Attorney and counsel for the defense and the only three points there that I’ll call the Court’s attention to, that in any way relates to the collaboration and cooperation, those three points are these.

One there were conferences admitted between the Federal District Attorney and the State District Attorney with reference not to these defendants, not to these defendants who are lottery operators, but to certain members of the police department of the City of New Orleans, now that’s as far as you go.

There was no collaboration, no cooperation with reference to any information by these particular defendants.

The second thing is there were indictments returned against certain members of the police department, not these defendants and I call Your Honors’ attention to that, but members of the police department, and then the third thing that was suggested was that there was a waiver signed by these defendants in connection with income tax assessments by the federal revenue department.

Now I’ll go in sort of reverse order, take the waiver that was pointed out by counsel.

These defendants had some eight months, at the very earliest and in the case of Mr. Mills it was some 12 months before, signed a waiver with the Federal Revenue Authorities stating that more time would be allowed in effect for them to — for the federal government to determine what tax liability they have.

Now that waiver as I say was signed some seven months in one case and 12 months in the other case, before this case ever came before the Grand Jury, and I call Your Honor’s attention to the letter on page 80 of the transcript of Mr. Stanley’s, the letter by Mr. Blake from the Revenue Department address to Mr. and Mrs. Mills, it’s page 81, and I call Your Honor’s attention to the language of that as indicating that there was no possible basis for Mr. and Mrs. Mills fearing an income tax prosecution on the basis of the kind of letter they received there.

Here is the way the letter closed.

It is desired to assure you that it is the purpose of this office to proceed to a final determination of the tax liability as expeditiously as possible, and your cooperation to that end will be appreciated.

And I submit to Your Honors that doesn’t suggest that the federal tax authorities were in any sense posing an imminent threat of federal prosecution of income tax evasion by Mr. and Mrs. Mills.

Now getting back to the cooperation proposition, I think Your Honors can assume that that in any case, that there will be cooperation between the Federal District Attorney and the State District Attorney.

If there is not that kind of cooperation, somebody is not doing his duty.

Now the federal government is naturally interested in income tax problems, I mean that’s a concern with all of us.

In this particular type of case the men or the people that they were after were the policemen who had received the money, because they wanted to know, they wanted to get the tax from them.

It seems to be a particular problem with federal as well as state authorities.

They are not concerned sometimes as much with the actual crime or violation as with saying that the proper tax is paid on.

Mississippi you know has the only other prohibition statute, but they still tax (Inaudible) law in Mississippi on a black market tax.

Well here it was the same proposition.

Here policeman who presumably have been taking graft money and the federal government, and there’s cooperation between the state and federal district attorney, wanted to know how much money they have been receiving.

There was no suggestion of a threat against the lottery owner because they had given the money, that was the interest that the federal government had in the thing, so that the extent of the cooperation and collaboration in-between the district attorney and the federal district attorney could not amount to illicit acquisition which Mr. Justice Frankfurter has indicated, would be the standard by which the court would determine whether they had been such collaboration between state and federal authorities as to vitiate any testimony elicited under state immunity statute.

Now the third thing the indictment of the policeman which had taken place prior to this, I submit has no connection whatever to the issue that we are talking about here.

Mr. William’s client, he says was actually indicted by this grand jury on the bribery charge, and I have to make reference to that fact because it might play some part in the court’s consideration.

Actually this indictment that he refers to was not an indictment for bribery, but it was an indictment for a conspiracy to commit bribery and a question was asked awhile ago what was the disposition of the case?

The case was disposed by the Supreme Court of Louisiana about two weeks ago on a clear prescription.

In other words, the Supreme Court of Louisiana held that all these cases had long since prescribed in the indictment which was returned by the grand jury against Mr. Mills and the policeman was thrown out on the basis of prescription by the Supreme Court about two weeks ago.

William J. Brennan, Jr.:

What prescription was that?

J. David McNeill:

On the ground that more than two years had elapsed between the time the information relating to this had come to the attention of the district attorney and the time of the indictment.

But at the time when the grand jury asked Mr. Mills these questions, he declined to answer.

J. David McNeill:

The matter was taken into the district judge and he was asked to cite the defendant for contempt.

The case was argued and then a continuance was asked by Mr. William’s client.

Then before the judge can hand down a judgment, I remind you the case had been presented, it was clearly apparent that Mr. Mills was not going to testify to the grand jury, he was not going to take advantage of his immunity, and he was going to take his chance of going to jail for contempt.

After that situation and after a continuance had been granted by the court to Mr. Mills on the basis of his request on account of illness, the grand jury brought in an indictment for this conspiracy to commit public bribery.

And then a few days after that Judge Cox in a decision which is attached to the transcript, made part of the transcript, ruled that they were in contempt and sentenced the defendants to 10 days in jail and a $100 fine, but I’m pointing that out because I think it has no connection whatever to the issue that we’re talking about here.

In other words, the indictment was not something that the Supreme Court referred to in the Dominguez case where Dominguez was actually under indictment at the time he was asked the questions.

At the time these questions were propounded the defendant moved it was not under any indictment and actually indictment didn’t come until after the fact that he was not going to take advantage of any immunity and was going to take his chance of going to jail.

So on the basis of the facts that’s presented by the record, we submit that there is nothing in this case that would distinguish it from the Knapp case or take it out of the ruling of the Knapp case.

We submit that there has not been any such collaboration and cooperation even in the agreed statement of facts that would indicate any illicit acquisition of evidence by the federal government as a basis of this testimony to take it out of the ruling in the Knapp case and we submit in the second place that if the Court would define that as an alternative proposition, the Court should not grant the relief as asked for by these defendants.

In other words, what they are asking for is this.

They are asking to be relieved of any obligation to testify on the basis they might be prosecuted in the future.

Now if the Court does that, the court will be doing what the Court has said it won’t do, to interfere in the state’s administration of its own criminal law, in the interpretation of its own law.

We say even if that situation existed, the remedy would be to deny the use of the evidence and the presentation of the evidence in any subsequent federal prosecution, such was done in the Byars case, but we submit that question is not presented today because the facts in the case don’t suggest that there had been the illicit acquisition of testimony or evidence or that there had been the collision that the Court has said would vitiate any testimony gained by the state or the federal government under immunity statutes.

Thank you very much Your Honors for permitting me to appear here and (Inaudible)

Eugene Stanley:

I think I have about six minutes if Your Honor please, I just want to point to Your Honors respectfully that at the time these interrogations were going on before the state grand jury by the state district attorney that the fear of a federal prosecution in the minds of the witnesses was not anyway doubtful or was real because the statute of limitations for the prosecution for any offenses against those particular people for violating the federal income tax laws or for a conspiracy to help others violate the federal income tax laws had not expired and they could have been subjected to a federal prosecution for those offenses.

Now the Yale Law Journal says that since few states construe their constitutions to permit a witness to remain silent in the face of federal prosecution, Feldman may frequently enable the government to avail the privilege against self-incrimination.

Seeking to exploit that decision federal authorities might prosecute a witness previously called before state proceedings to establish in which answers were compelled, sufficient to establish his guilt in the subsequent federal trial.

The government might even have inspired the state interrogation where cooperation is quite common and collusion not unknown between federal and state officials.

Furthermore the latitude on their own initiative (Inaudible) inquiries designed to support — to design a further federal prosecution and a number of cases under the illegal search and seizure doctrine where state officials had cooperated with the federal officials (Inaudible).

Now we find ourselves in an anomalous position.

If my clients have no benefit for the fifth amendment, it’s just a question for them to determine whether they want to go to the state penitentiary for committing perjury from Louisiana or whether they want to go serve ten days in jail or whether they want to elect to be put in the federal penitentiary at Atlanta by admitting certain violations if for that testimony would be excluded under subsequent prosecution against my clients, but my clients still would have to serve ten days in jail or perhaps be subject to repeated rules for contempt for further refusals to answer the questions.

Thank you Honors very much.

J. David McNeill:

Mr. Justice may I thank the Court for your extreme consideration in having continued this matter so many times as a result of my illness, I neglected to do that and I certainly want to thank you gentlemen.