LOCATION: Calvert’s Tavern
DOCKET NO.: 74
DECIDED BY: Warren Court (1958-1962)
CITATION: 360 US 230 (1959)
ARGUED: Apr 22, 1959
DECIDED: Jun 08, 1959
Facts of the case
Media for Mills v. Louisiana
Audio Transcription for Oral Argument - April 22, 1959 in Mills v. Louisiana
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. 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 --
Where these men, where these men ever indictment themselves --
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 --
Were they notoriously designated or intended to be accused?
I cannot say that but they were --
Does the record show that they were in the mind of prosecutor equal to be prosecuted?
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?
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.
What is the bearing of that fact on the issue that you are presenting here?
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.
You just go your own way?
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.