United States v. Kordel

PETITIONER:United States
RESPONDENT:Kordel
LOCATION:Symphony Cinema, Boston, Massachusetts

DOCKET NO.: 87
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 397 US 1 (1970)
ARGUED: Nov 20, 1969
DECIDED: Feb 24, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – November 20, 1969 in United States v. Kordel

Warren E. Burger:

Number 87, the United States against Kordel and others.

Mr. Wallace, you may proceed whenever you’re ready.

Lawrence G. Wallace:

Mr. Chief Justice and may it please the Court.

This is a criminal prosecution under the federal food and drug laws.

Respondents and Detroit Vital Foods Incorporated, the corporation of which they were officers were convicted after a jury trial on five counts of an indictment charging them with misbranding of drugs.

The corporation is not before this Court on present petition.

The sentences imposed by the District Court are summarized in our brief on pages 2 and 3.

The evidence showed that respondent Kordel was President of the corporation and the author of books and leaflets promoting its products and that he traveled across the country delivering lectures which were advertised and open to the public.

The writings and lectures claimed that specified ailments could alleviated by the consumption of certain foods and food elements and that the best sources of these were the products offered for sale by the corporation.

These products were sold in booths and/or near the lecture halls and were also available in health food stores generally.

Respondent Feldten acted as Kordel’s assistant selling products at the lectures and taking orders for shipments from Detroit.

The criminal charges were that as to some of the products certain of the books and leaflets constituted part of the labeling and contained false and misleading statements.

And as to all of the counts on which respondents were convicted, the products which they claim to be merely food supplements were in fact drugs because they were intended by the defendants to be used for the prevention and treatment of various diseases and health conditions, and that the labeling of these products failed to set forth adequate directions for the uses for which they were intended as required by the act.

Since the oral representations made in respondent Kordel’s public lectures were relevant in showing the uses for which the products were intended, tape recordings of his public lectures were introduced into evidence by the Government at the trial.

At this point, I believe a summary of the relevant procedural chronology will be helpful to the Court.

The indictment in this case was returned in the summer of 1963.

Previously, in June of 1960, the Government had filed a libel proceeding under Section 334 of the Act to condemn quantities of the corporation’s products as misbranded.

The corporation appeared as claimant in this in rem proceeding and filed an answer denying the material allegations of the complaint.

The parties then served interrogatories upon each other, pursuant to Rule 33 of the Rules of Civil Procedure.

The Government’s interrogatories were served in January and April of 1961 and sought among other things detailed information about the labeling, testing, manufacture, and composition of certain of the products and about Kordel’s oral representations concerning the efficacy of these products made during public lectures that he gave in Detroit.

In late January 1961, shortly after service of the Government’s initial interrogatories, the corporation received a notice from the Government pursuant to Section 335 of the Act, indicating that criminal prosecution of the corporation and of respondents was contemplated in part for the same conduct that was the subject of the libel.

The corporation then in April 1961 moved that the District Court extend its time to respond to the interrogatories until final disposition of any criminal prosecution that might be brought.

The District Court denied this motion in June 1961, holding that their was no certainty, when or whether a criminal prosecution would be brought and that there is no prejudice in requiring the corporation to answer the interrogatories since the same information would otherwise become available to the Government in any event from the trial of the libel proceeding.

Pursuant to the Court’s order, the corporation then filed answers to some of the interrogatories in September 1961 and filed specific objections to others.

In subsequent proceedings, some of the objections were sustained and some are overruled and the Government withdrew some of the interrogatories.

The corporation then answered the remaining interrogatories in September 1962.

Respondent Feldten subscribed to all of the corporation’s answers as Vice President and stated that they were true to the best of his knowledge and belief, but that not all of the answers were known to him personally.

The libel proceeding thereafter terminated in a consent decree, entered in November 1962.

In June 1962, after service of the interrogatories and after the corporation’s initial answers, but prior to its supplemental answers, the Food and Drug Administration referred the matter to the Department of Justice with the recommendation for criminal prosecution.

The indictment was returned in August 1963.

Lawrence G. Wallace:

In March 1965, defendants in the criminal case moved to suppress any evidence obtained by the Government as a result of the corporation’s answers to the interrogatories in the libel proceeding or in the alternative for a hearing to determine the Government’s motive in bringing the civil action and serving the interrogatories.

The District Court granted the alternative request for a hearing which lasted three days.

The transcript of the hearing, set forth in the appendix at pages 58 to 290, showed that at the time the civil case was filed, the Food and Drug Administration already had evidence sufficient in its judgment to establish all the elements of the criminal violations, but had not yet decided whether to recommend criminal prosecution that the agency determined that the in rem seizure proceeding should be commenced promptly in order to prevent harm to the public from continued distribution of the misbranded drugs.

And that the interrogatories were designed solely for the purposes of the civil suit and were submitted as they are routinely in such suits in an effort to narrow the issues for trial and in the hope of laying the foundation for a motion for summary judgment or possibly inducing the corporation to agree to a consent decree by demonstrating the insubstantiality of its case which is what eventually happened.

The District Court held on the basis of this hearing that the governmental decisions to commence the civil suit and to serve the interrogatories were made in good faith and not for the purpose of procuring evidence for a criminal prosecution, and the conviction followed.

And while not disagreeing with these findings, the Court of Appeals reversed respondent’s convictions on the ground that the Fifth Amendment privilege against self-incrimination of the individual criminal defendants have been violated by requiring the corporation to answer the interrogatories in the civil proceeding.

The Court held that it was constitutionally insufficient that the Government had acted in good faith in the civil proceeding and that none of the answers to the interrogatories had been introduced into evidence in the criminal case.

It held that the Government must also prove that it had not in anyway utilized for purposes of the criminal case, information or leads obtained from the answers to the interrogatories.

In its initial opinion, the Court of Appeals also reversed the corporation’s conviction, but on the Government’s petition for rehearing, it modified its opinion in judgment so as to affirm that conviction on the ground that the privilege against self-incrimination is available under this Court’s decisions only to natural persons and not to a corporation.

A petition for certiorari by the corporation was denied by this Court and a petition for rehearing is presently pending.

We contend, first, that the Court of Appeals aired in holding that respondents privilege against self-incrimination had been violated.

Neither of the respondents had interposed any claim to the seized drugs, nor did either of them have a personal property interest in the drugs.

Neither of them was party to the civil action.

Neither of them was obligated or required to answer any of the interrogatories served on the corporation in that proceeding, and indeed, respondent Kordel supplied no answers.

And respondent Feldten who did submit answers on behalf of the corporation stated therein that the truth of the answers was not known to him personally, so the answers did not constitute an admission on his part.

And finally, neither respondent in anyway claimed that his privilege was being violated when respondent Feldten submitted the answers on behalf of the corporation.

The explicit language of Rule 33 dealing with interrogatories and the decisions implementing the rule make clear that when a corporation is the party served with interrogatories, the corporation is obligated to appoint an agent who without fear of self-incrimination can furnish such requested information as is available to the corporation.

No claim was made in the libel proceeding that answers to any of the questions were not available to the corporation within the meaning of the rule because the only repositories of the information were individuals who might incriminate themselves by disclosing it.

No individual is required under the rule to submit any answer on the corporation’s behalf that might tend to incriminate him personally.

But the corporation which under this Court’s decisions has no privilege against self-incrimination and cannot invoke the privilege of any individual on its behalf remains obligated under the rule to provide such requested information as is available to it.

To the extent that this obligation with the attendant risk that failure of the corporation to comply might result in a judgment forfeiting the corporation’s property constitutes compulsion.

It is compulsion of the corporation which has no privilege and not of the respondents as officers or shareholders of the corporation.

To hold otherwise would be to overrule Campbell Painting Corporation against Reid in volume 392 U.S. and its predecessor decisions because compulsion of a corporation to provide possibly incriminating information can always be said to amount to compulsion of its individual officers or shareholders.

They cannot utilized the corporate form of doing business and yet claim a personal interest in the corporation’s property only for purposes of the Fifth Amendment privilege.

That is the meaning of these Court’s decisions and it was error in our view for the Court of Appeals to hold to the contrary.

Byron R. White:

Was there any room to pierce a corporate veil in the Fifth Amendment cases?

Lawrence G. Wallace:

Well, I think that that was the issue in Campbell Painting Corporation against Reid.

Certainly, the dissenting opinion is base on the view that that would have been an appropriate occasion for piercing the corporate veil, that was the closely held corporation.

Byron R. White:

Well, it may or may not have been there, but would it ever be?

Lawrence G. Wallace:

It would be a departure from the holding that we’ve had consistently that non-personal entities do not enjoy a privilege against self-incrimination.

Byron R. White:

Would there be in your view a violation of Fifth Amendment if these people had not been doing business in the corporate form but as a partnership and the same thing happened?

Lawrence G. Wallace:

Well, they certainly could have claimed the privilege against self-incrimination as individuals, even though they were doing business as a partnership.

Byron R. White:

Yes.

Lawrence G. Wallace:

And —

Byron R. White:

So assume a civil action started, interrogatories to the parties and the strap was that if they can’t answer them, their property would be forfeited, compulsion?

Lawrence G. Wallace:

Now, that that’s always a possible sanction under the civil rules.

Byron R. White:

That would be —

Lawrence G. Wallace:

They could have claimed the privilege against self-incrimination providing it was adequately founded as to particular questions.

Byron R. White:

But wouldn’t the —

Lawrence G. Wallace:

Just as respondent Feldten could have claimed in this case.

So —

Byron R. White:

Wouldn’t — in order to —

Lawrence G. Wallace:

As to resolve the answering.

Byron R. White:

Even then that the compulsion, wouldn’t that have to be that the forfeiture would occur as a result of a failure answers interrogatories rather than the strengths of the Government’s case in the civil suit?

Lawrence G. Wallace:

Well, that is true.

There might be some question as to whether the mere failure to answer the interrogatories and the possible sanctions that —

Byron R. White:

Because I think not automatic at all?

Lawrence G. Wallace:

Compulsion.

Byron R. White:

That is not automatic at all, but you lose your suit because you refuse to answer?

Lawrence G. Wallace:

It’s certainly is not especially if you have a well founded claim of privilege as the basis for your refusal.

Warren E. Burger:

I suppose many civil cases have been lost because of the disinclination of the defendant in the civil case answer some question which might incriminate him, is that not so?

Lawrence G. Wallace:

To the best of my belief it is so.

But as I said, to the extent that there was compulsion under the civil rules in this case.

It was compulsion on the corporation which has no constitutional privilege not to be compelled to submitting incriminating information, that’s what the Court has held.

The rumor starts —

Warren E. Burger:

It could easily happen in a tax, civil tax case, that a defendant might assert the Fifth Amendment that he would take the risk of jeopardizing his case possibly by doing so and he might suffer the consequence.

Lawrence G. Wallace:

That is correct Your Honor.

We have —

Potter Stewart:

It is actually corporation was the — well, it’s a libel — the things were in effect —

Lawrence G. Wallace:

It was an in rem proceeding, the corporation being the claimant was the other party.

Potter Stewart:

Corporation was a claimant and the —

Lawrence G. Wallace:

We have also addressed our brief to the broader concern which seems to underlie the decision of the Court of Appeals the question of fairness in the administration by Government agencies in this and other fields of their responsibilities under statutes which provide for the possibility of both civil and criminal remedies against defending corporations or individuals.

Our brief discusses the practices and experiences of several agencies and articulates some general criteria which seem to us to be suggested by the leading cases in this field.

And we also discuss the matter to which I would now like to turn our contention that there was no unfairness in the administration of the food and drug laws in this case.

There was in the first place an important need to protect the public from harm here as is frequently true in food and drug or in securities fraud cases for that matter, by commencing the civil proceedings promptly.

It was at the very least reasonable for the responsible officials to decide that this protection of the public should not await determination of whether a criminal prosecution would also be appropriate, let alone final disposition of any criminal proceeding that might be instituted.

Moreover, it was important to proceed to judgment in the condemnation case because Congress has for good reasons referred to in our brief, provided in Section 334 of the Act set forth at pages 26 and 27 of our brief that the Government must obtain a favorable judgment in a forfeiture case before it can proceed by multiple seizures against traditional quantities of the drugs being marketed elsewhere.

The interrogatories served on the corporation were found after a hearing to have been designed in good faith for the legitimate purpose of expediting the civil suit to judgment.

The questions asked were relevant to the issues in the civil proceeding even though, the Court of Appeals seem to believed that some of them were not apparently because it did not appreciate the bearing of respondent Kordel’s oral representations of the public lectures on the theory of the Government civil case, which dependent on proof of the uses for which the products being marketed by the corporation were intended.

In their brief, the respondents suggest a lack of fairness because the Government could have utilized an alternative procedure of seeking interim injunctive relief instead of the libel in rem.

But the same interrogatories would have been equally irrelevant to establishing the Government’s case in an injunctive proceeding.

Moreover, a judgment in an in rem proceeding provides more effective protection of the public because it enables the Government expeditiously to prevent further dissemination of the misbranded drugs by anyone holding them for sale.

A final indication of the Government’s fairness in this case is to be found in the fact that shortly after service of the initial interrogatories and prior to the corporation’s answering of them, the Government notified the corporation pursuant to Section 335 of the Act, that criminal prosecution of respondents and the corporation was being considered.

Respondents could thus judge whether providing answers to the interrogatories on behalf of the corporation might tend to incriminate them and indeed the not very revealing answers actually furnished and set forth in the appendix suggests that this consideration did not escape their attention.

Hugo L. Black:

Was that notice of the criminal proceedings required by the statute or was it?

Lawrence G. Wallace:

It is required by the statute in Section 335, Title 21 Your Honor.

We do not rest, however, on a contention that the Government learned nothing from these answers, a matter as to which it is generally difficult to sustain a burden of proof such as the Court of Appeals here imposed.

Our position is that because the interrogatories were used properly and fairly in a good faith civil suit for the legitimate purposes of that suit, there is no more reason for preventing the Government from basing a criminal investigation on information learned thereby, than there would be for preventing it from basing an investigation on information legitimately revealed in the course of any other good faith civil proceeding whether between private parties or similarly involving the Government as a party.

Exclusionary rules in their various permutations have after all been held by this Court to be required only where otherwise relevant and competent evidence has been illegally or improperly obtained.

And in our view, it would ill serve the cause of justice for the Court now to depart from that principle and we therefore ask that the judgment below be reversed.

What you considered there, I think in new cases of corporate privilege that causes involvement or absence to the Court’s privilege is about when the rationality of the Court of Appeals’ decision here could be brought on neglect or certification in this with that —

Lawrence G. Wallace:

Well, the case has been relied upon in litigation.

In securities fraud cases for example.

I’d been informed by the staff of the Securities and Exchange Commission, I think that the food and drug and the securities areas are the ones in which the problem is most likely to arise because they are the areas in which the Government agencies most frequently find it necessary to proceed quickly with civil proceedings before a determination can be made as to whether criminal prosecution is warranted.

Well, by that I didn’t make myself clear.

What elements that are not present in this case would justify the lower courts — it would have been necessary to justify the lower Court’s decision in your favor?

Lawrence G. Wallace:

Well surely, the result would have been justified if the in rem proceeding had been brought in bad faith merely as a device for securing evidence to be used in the criminal proceeding or as an improper instrument of criminal investigation.

I think if the hearing had showed that and there had been a finding to that effect, then the result would have been justified, although, we can’t accept the rational that the violation was of the Fifth Amendment privilege against self-incrimination.

Byron R. White:

What case to this Court indicates that there would be, aside from Fifth Amendment problems put those aside, and what case in this Court do you suggest would for preclude the Government from bringing a civil suit deliberately for the purpose of using compulsory processes of the civil suit to gather evidence for a criminal case?

Lawrence G. Wallace:

Well, I don’t think there is a precise holding to that effect, but there certainly is in the Procter and Gamble case concern expressed in the opinion.

Byron R. White:

Would that be a constitutional question?

Lawrence G. Wallace:

It need not rise to that level in order for a relief to be granted in a federal prosecution of course, but we believe that it would present a question under the Fifth Amendment’s Due Process Clause.

William J. Brennan, Jr.:

Surely, Procter and Gamble I thought turned on the policy of the statute —

Lawrence G. Wallace:

That is correct.

William J. Brennan, Jr.:

Depositions in these cases be open in the public and therefore in Camera grand jury, but that seemed to turn rather on the policy of the statute?

Lawrence G. Wallace:

Well, that is correct and I should think —

William J. Brennan, Jr.:

I, I, —

Lawrence G. Wallace:

There — there —

William J. Brennan, Jr.:

— where do you get the notions of due process problem, constitutional due process?

This is no case that this Court has ever said that.

Lawrence G. Wallace:

Well, it amounts to a forum of the due process violation if the specified criminal —

Byron R. White:

Constitutional due process?

Lawrence G. Wallace:

If the specified procedures in a criminal case are not followed as they were intended to be followed with the safeguards provided for the securing of criminal evidence elsewhere in the Bill of Rights.

Byron R. White:

Yes, but the —

Lawrence G. Wallace:

I’m not — I don’t think civil interrogatories of the sort provided for in the civil rules would necessarily pass muster in the ordinary processes of criminal procedure.

Byron R. White:

We’re postulating the Fifth Amendment problem.

Is the postulating no Fifth Amendment’s issue, so what other Bill of Rights and provision is violated by using a civil processes for this?

Lawrence G. Wallace:

Well, there may will be no constitutional violation in that situation.

All we say in our brief is that, it seemed to us that the Due Process Clause provided the more appropriate framework for considering this issues than the self incrimination provision of the Fifth Amendment in this case.

I don’t — we didn’t mean to concede that the Due Process Clause would be violated in such a situation.

I’d like to reserve the balance of my time please.

Warren E. Burger:

Mr. Friend.

Solomon H. Friend:

Mr. Chief Justice and may it please the Court.

Before addressing myself to the two basic arguments of the Solicitor, I’d like to take just a moment to highlight certain critical salient facts which I think were minimized by the Solicitor’s presentation, which support our contention that there here is involved an extraordinary example of unfair inquisitorial authority exercised by the Food and Drug Administration in a manner which we contend is adherence to civilized procedures in the administration of criminal justice.

Hugo L. Black:

Do you rely on any statutory prohibition against, what you call unfair?

Solomon H. Friend:

Your Honor, yes I do.

I would rely upon the McNab Doctrine that this Court and the federal Courts have supervision over the fair administration of criminal justice which as I understand the Government’s argument rises to the level of a constitutional right of due process.

Hugo L. Black:

I thought you — didn’t the Court below decide this on the question of Constitution?

Solomon H. Friend:

They decided — it would appear that they decided that the question on two grounds.

One of which they articulated out, I believe more specifically than the second ground and the Solicitor apparently agrees with that.

Solomon H. Friend:

Firstly, on the Fifth Amendment and secondly, because of some of the cases which they cited in their statement of the — of what actually had occurred in the complete and total co-mingling of the civil function and criminal investigation by the same individual at the same time.

That that somehow moved the Court to rely upon certain cases which they did rely upon to support the element decision that —

Hugo L. Black:

Are you relying on the constitutional point or the other or both?

Solomon H. Friend:

Both — both Your Honor.

Both, Mr. Justice Black.

Hugo L. Black:

And your idea is that that something in Court thinks is unfair is prohibited by law?

Solomon H. Friend:

I would say it’s a violative of constitutional due process and also comes within the authority of this Court to supervise with fair administration of criminal justice other than McNab Rule.

Now —

Warren E. Burger:

Now, let me while we have you stopped for the moment Mr. Friend, suppose you’ve tried the civil case, in the civil case instead of eliciting these answers by discovery, the same answers were — the same questions were put to the individual officers here involved.

Solomon H. Friend:

Yes, Mr. Chief Justice —

Warren E. Burger:

Would they not at that time have had the choice to decline to answer on Fifth Amendment grounds or answer as they did?

Solomon H. Friend:

I think Your Honor the answer to that question is that at that point, they would have been a choice which they could make.

If they had testified, they would have been deemed to have waived their privilege.

In the instant case, they sought relief in the form of a protective order and then were ordered, that is to say as they would argue the corporation which happens to be the same two individuals, the corporation was ordered to answer the questions

Warren E. Burger:

Well, how is that different from having a question, refusal made in the Court room sitting on the witness chair, other than on Fifth Amendment grounds and then having a order from the Court directing him to answer the question?

Solomon H. Friend:

Mr. Chief Justice, in all of the cases that I’ve found on this, what has happened in the usual case and in almost every case is that the civil Court will stay the trial of that case pending the outcome of the criminal case if in fact the criminal case is either pending or eminent.

Now —

Warren E. Burger:

But what if it’s neither?

Solomon H. Friend:

There are cases would say that if it’s neither, if the Government does not have under contemplation of bringing of a criminal case, then there are cases which say that while the defendant must answer the question the civil case in the interests of fairness and to avoid abuse, the Government may not use those answers in the criminal case.

Byron R. White:

Let’s assuming if it gets to background of the Fifth Amendment problem?

Solomon H. Friend:

No.

No, Mr. Justice White.

The cases go on the broader theory that it is inherently unfair for either the defendant in a civil case to try and get the Government’s evidence by use of the Federal Rules of Civil Procedure where there is a threatened criminal case or a pending criminal case.

And for the Government to interpose, propose interrogatories to the defendant to try to get the defendant’s defense or evidence which will support the prosecution.

And as a matter of fact, in the cases cited on our brief, in our brief, under the anti trust laws and as well as under the Internal Revenue Service laws, the case United States against Linen Supply Institute of greater New York, the Government had moved to extend its time and sought a protective order, just as we did, from being required to answer interrogatories which had been propounded to it by the defendant in the civil case and argued the very the same argument which we make, at least one of the arguments which we make here, namely that the Federal Rules of Civil Procedure should not be used by either side, where there is a criminal case pending, so as to draw from the use of the federal rules information which they would not be entitled to under the criminal rules.

Now, we don’t say and nor did the Court find, in fact the Court of Appeals specifically held that the Government may bring a civil and a criminal case simultaneously if the statute so provides.

But as we read the Court of Appeals’ holding, they are saying that the strike a fair bounce between the need of the Government to obtain answers to interrogatories to pursue its remedies civilly, while that would be sufficient.

They could use the answers in a civil case.

They should not be allowed to use those answers in the criminal case.

They may bring their criminal case but they should not be allowed to use those answers because then we have a virtually uncontrolled situation where both sides, where there is a–

William J. Brennan, Jr.:

Whether this is a really an argument that to the extent that there maybe discovery in a criminal prosecution.

It maybe, only that discovery which the criminal rules permit, you can’t use the civil rules and they don’t — discovery in the criminal case or vice versa, is that it?

Solomon H. Friend:

That would be opposition Mr. Justice Brennan.

Now, —

Byron R. White:

What would you say though, if the interrogatories here had not been signed by either one of these two men but had been signed by some other officer of the corporation?

Solomon H. Friend:

Our position would be that if the Government had at that time a pending criminal proceeding, they should not seek to elicit through the use of interrogatories in a case which is identical to the criminal case.

Mr. Justice White, the case, the civil case was identical with the counts in the criminal case and —

Byron R. White:

Oh I know that.

But in the criminal case, let’s assume that they had a criminal case going and they subpoenaed the files of the corporation not the files of the individual defendants, the files of the corporation.

I suppose they could get it, couldn’t they?

Solomon H. Friend:

Well, I would agree with Your Honor that they could under the White case and —

Byron R. White:

Well, alright that they were getting no more, putting the Fifth Amendment aside, they were giving no more by getting corporate evidence then they could get in the criminal case?

Solomon H. Friend:

Well, I most respectfully disagree with that suggestion Mr. Justice White because even the District Court felt and the Court of Appeals made express findings with respect to this point that what they sought was not corporate documents, but what they sought was admissions concerning activities of Kordel.

Now as Your Honor we’ll recall the Solicitor made the point that the acts which misbranded these drugs were books which have been writing by Kordel, lectures which he had given.

There wasn’t anything intrinsically wrong with the label itself.

The drug was not adulterated.

There was not a non-safe or poisonous substance being sold and what they did is that they choose the pierce the corporate veil themselves by the interrogatories which they answered.

Hugo L. Black:

Who answered?

Solomon H. Friend:

The other defendant in this case, Mr. Feldten.

Hugo L. Black:

Kordel answer?

Solomon H. Friend:

Kordel — Kordel did not sign the interrogatories but the Court of Appeals says, that he undoubtedly and definitely participated in the decision to answer the questions which they were required to do after the Court have order them to answer the question.

Hugo L. Black:

Did he claim any immunity on the ground of the Fifth Amendment?

Solomon H. Friend:

Mr. Justice Black, when the motion for protective order was made before the District Court in a civil case, while they did not plea the Fifth Amendment, the motion for the protective order clearly spelled out the dilemma which confronted the two officers of the corporation.

Hugo L. Black:

Did they claim immunity?

Solomon H. Friend:

That —

Hugo L. Black:

Under the Fifth Amendment?

Solomon H. Friend:

They did not claim the Fifth Amendment.

They claimed that evidence to be given in the case.

He did not spell out the Fifth Amendment in those terms.

They said however, that incriminating information would be revealed.

Hugo L. Black:

Then didn’t claim it, did they?

Solomon H. Friend:

Well, I would say they did not claim it in the technical sense, but I would not suggest that constituted a waive of —

Hugo L. Black:

I understand it.

Solomon H. Friend:

Yes.

Hugo L. Black:

I understand that.

Solomon H. Friend:

Yes.

Hugo L. Black:

That’s why I was asking to follow, did they claim it?

Solomon H. Friend:

They didn’t claim specifically, but their failure to have claimed that in my judgment would not be deemed the waiver because of the form in which they did ask to be excused from answering the questions.

Now, —

Warren E. Burger:

Let me ask you a question.

Suppose you had a civil case started, no criminal case in completion or investigation and the testimony in the trial of the civil case satisfied the prosecutor that there was a criminal case which could be made out and then he got an indictment after the disposition of the civil case.

Would you make these same claims?

Solomon H. Friend:

I would not make that argument under those facts Your Honor and I do not believe that that would — those facts would have moved the Court of Appeals to reverse.

Warren E. Burger:

But then does the constitutional question you’re arguing depend upon the motivation of the prosecutor in pressing the civil case first?

Solomon H. Friend:

Mr. Chief Justice, I do not believe a pursuit of the motive or the good faith or the lack of good faith is a fruitful inquiry for this reason.

In every case, where there was a criminal case pending or threatened that’s parallel to a civil case.

It can always be argued by the Government that at least one of the motives in serving the interrogatories is to lay the ground work for summary judgment or narrow the issues and indeed, the filing of a civil case under the food and drug law is a relatively simple and common place function.

As a matter of fact, what happened in this case is after they filed the civil case, they did nothing to protect the public interest either by an injunction and of course if they had all the evidence anyway which they say had to bring a criminal case, they most certainly could have moved in with the temporary restraining order to restrain shipments which would have dried up the source of materials they wouldn’t have to make multiple seizures.

Secondly, they never made multiple seizures.

The case was settled by a consent decree containing Exculpatory Clause in which they admit it that nothing within the — within that civil case would be deemed as an admission against defendants that they violated the law, and then by using the interrogatory, the answers to the interrogatories, I’d like to talk about that for a moment, by using the interrogatories, they accomplished exactly that which they said would not be implied by the end of the year of the consent decree namely the admission of guilt or evidence or leads to/from evidence concerning guilt.

Now, —

William J. Brennan, Jr.:

Mr. Friend, may I just add?

Solomon H. Friend:

Yes, Mr. Justice.

William J. Brennan, Jr.:

Suppose there’s been no proceeding against the individuals either the civil case or in the criminal case, but the defendant in each, the civil case or in the criminal case, but the defendant in each, the civil and the criminal case had been the corporation only, would you be making the same argument?

Solomon H. Friend:

Your Honor, the corporation was a defendant in both —

William J. Brennan, Jr.:

I know it was, but then — along with the individuals, but suppose it was a sole defendant in the civil case and the sole defendant in the criminal case?

Solomon H. Friend:

Sir, I would not make the argument on Fifth Amendment grounds but I would make the argument on the McNab or under reasonable and fair administrative procedures indeed —

William J. Brennan, Jr.:

And under the rules, I guess?

Solomon H. Friend:

And under rules.

I think its Rule 41 (b) —

Byron R. White:

You think in that the Court of Appeals was wrong in affirming the judgment against the corporation?

Solomon H. Friend:

The Court of Appeals — I do as a matter of fact, I have a petition for rehearing of that denial the petition for certiorari as to the corporation which was filed in June and which is still pending before the Court.

And one of the arguments we made in the petition rehearing is, that if we’re right on this other point of unfairness, that is to say if the Court of Appeals is sustained on grounds broader perhaps than what they specifically articulated, then that would justify a reversal of the Court of Appeals’ affirmance with respect to the corporation and I suspect that perhaps, that’s one of the reasons why our motion petition for rehearing is still pending because there is a relationship between the two cases.

Hugo L. Black:

We have to decide this on basis perhaps.

Would you mind of telling me upon what model principle you rely?

Solomon H. Friend:

Yes.

Hugo L. Black:

All of it.

Biblical principles or religious principles you rely?

Solomon H. Friend:

Well, I don’t know Mr. Justice Black, if I could slaughter into anyone of those categories, but I think I would rely upon the principle that was stated in US against Boyd, that no Court should decree a discovery which will tend to convict a person or corporation of a crime.

William J. Brennan, Jr.:

But that was a Fifth Amendment?

Solomon H. Friend:

But Mr. Justice Brennan, —

Hugo L. Black:

And by motivation of fairness as my brother says, that’s Fifth Amendment?

Solomon H. Friend:

As I read Boyd, Mr. Justice Brennan, the holding of Boyd or the language in Boyd is somewhat broader than the Fourth or Fifth Amendment.

Indeed, it goes to the point that there’s even a possible Fourth Amendment violation.

It’s an unreasonable search and seizure and the District Court and I know —

Warren E. Burger:

But did not — but did not this Court in the Boyd case emphasized with great particularity that it was private papers, private papers that were being seized and cited a British Judge from a couple of 100 years before that man’s private papers are among his most — that his dearest possession, some language of that kind.

Now, you don’t have private papers here, do you?

Solomon H. Friend:

Mr. Chief Justice, the case did deal with private papers.

But there is language in the Boyd case which the District Judge in our case, who ruled against the us on this motion to suppress by the way, felt, suggests that the Boyd holding is broader than a Fifth Amendment or private papers in that, it’s basically unfair.

It’s violative of the public policy which is rooted, this is their language, rooted in historical and several concepts of Anglo-Saxon criminal jurisprudence that a defendant or a prospective defendant should not be required to disclose evidence to sustain the prosecution against them in a criminal case or his evidence of defense and in the fair case and in any number of cases, they make the point that this is not a manner of Fifth Amendment.

It’s broader than the possible violation of a privilege of self-incrimination and that the issue is also whether the methods employed —

Hugo L. Black:

What?

Solomon H. Friend:

— whether the methods employed in obtaining such an information show such unfairness that the evidence should be inadmissible apart from Fifth Amendment consideration.

Hugo L. Black:

Then determining it on fact is what I’m interested is what’s my standards, what guides me if no constitutional provision and no law?

Solomon H. Friend:

Well, Mr. Justice Black, I think the standard here would be when one views the facts.

No different from what the standard was in the McNab case or in the Reid case.

What happen here, I think this should be stressed, is that the interrogatories were prepared by Mr. Josh Randolph of the Food and Drug Administration at the same time that he prepared a notice, notifying the defendants, all of the defendants including the corporation that their investigation revealed defendants’ responsibility for criminal violations of the Act.

Now this notice said, just that it, it didn’t say we have it under considerations.

It says, our investigation, this is on page 105 in our appendix in the brief, investigation by this administration indicates your responsibility for violation of the act, and then they spell out the violation.

Now, the same individual who was investigating and this was Mr. Randolph’s testimony, he was in charge of the investigation the criminal case and he was in charge of preparing the interrogatories in a civil case.

Warren E. Burger:

Did that notice get delivered before the interrogatories were answered?

Solomon H. Friend:

The notice was sent out on December 29.

There were received on January the 15h, the interrogatories were received on January the 9th.

They were virtually simultaneous.

Warren E. Burger:

Well, had the interrogatories been answered by the 15?

Solomon H. Friend:

No, sir.

No, mister — the interrogatories were answered in September, but because the motion had been made in the meantime to stay the answering of these interrogatories.

But what happened was, when he got the answers, he then made a recommendation, his second recommendation to indict that the defendants be indicted and to refer the matter to the Department of Justice, this within a matter of a week or two and as the record shows in discussing the matter with the Food and Drug Administration official in Detroit, Mr. Randolph being in Washington, he made it a point of telling the FDA official in Detroit who was handling the civil case on the local scene to be sure to send him the answers to the interrogatories.

And when he said he would, and did, he then called Mr. Fowler in Detroit and told Mr. Fowler the he’d liked the send out another notice of criminal violation which is the fourth notice which they sent out, which now broadened the first three, they actually sent three out almost at the same time but the fourth one was sent out after they’ve had the answers and a second recommendation was made to indict these defendants.

Warren E. Burger:

I think, I may have diverted you from responding to Justice Black’s question about the standards that he, so I tell you that —

Solomon H. Friend:

I would answer Mr. Justice Black this way that the standard is a standard which depends upon the facts in any given case.

I’m not asking this Court nor the —

Hugo L. Black:

But the standard, when you get to the facts, is it a natural law standard, something that’s above the law?

Solomon H. Friend:

I would say, it’s a standard of fairness in the administration of criminal justice and I was —

Hugo L. Black:

Who’s to define the fairness?

Solomon H. Friend:

I would say the Court should decide on the basis of the facts whether under our form of free Government, whether drawing upon the concepts of criminal jurisprudence which have come to us through the ages, whether it is inherently unfair —

Hugo L. Black:

Through the ages you say?

Solomon H. Friend:

Through the ages, yes sir.

Mr. Justice.

Hugo L. Black:

That’s — [Attempt to Laughter] [Inaudible] standard, isn’t it?

Solomon H. Friend:

Well, the Boyd case which is still as vital as it was in the 19 Century seems to require that the courts to decide these — some of these cases on the McNab case —

Hugo L. Black:

As noted, but decided on the Fifth Amendment?

Solomon H. Friend:

The —

Hugo L. Black:

[Inaudible] or both?

Solomon H. Friend:

Well, I think the narrow — the technical holding of Boyd was the Fifth Amendment and the Fourth Amendment as I read the case Mr. Justice Black and the District Court here apparently felt that it’s even broader than that.

In that there is something unfair in requiring a defendant in a civil case to and —

Hugo L. Black:

What’s unfair if somebody has violated the law and you have no legal standard which says its not unfair, what’s unfair about the Government trying to get facts even by asking a defendant, you said supposed to be to violate the law, outside of the provision to the Constitution, what’s unfair about it?

Solomon H. Friend:

What is unfair about it —

Hugo L. Black:

Yes.

Solomon H. Friend:

— Mr. Justice Black is that where there is a civil case, he is faced with what I would call a cruel trilemma, either a cruel trilemma, he must either —

Hugo L. Black:

Trilemma?

Solomon H. Friend:

Trilemma and the Court of Appeals made this point, he is then confronted with three alternatives.

He can answer the questions and lie in which event he can be guilty of perjury.

Hugo L. Black:

Well, of course this — the law doesn’t assume that a man would lie?

Solomon H. Friend:

That is true, but that’s one of the alternatives which he shouldn’t be required to select.

The second one is —

Hugo L. Black:

Well, he would — he is always required to do it if he asked the question that something when he’s guilty.

Solomon H. Friend:

Well, —

Hugo L. Black:

When the only way he can get out would be to lie, I guess, that will always be the way.

Solomon H. Friend:

Well, he could claim —

Hugo L. Black:

When absent some special privilege granted him under the Constitution, how can we get to what’s fair, so as to make it a law, natural law?

Solomon H. Friend:

I think the problem Mr. Justice Black here is that the Government is arguing a very technical and very mechanical interpretation of the Fifth Amendment.

Hugo L. Black:

Well, that’s different.

Solomon H. Friend:

That is a different question, but it’s related to the question which Your Honor asks for this reason.

Hugo L. Black:

Well, I don’t see that it is because that is a Fifth Amendment which we are sworn to obey and enforce.

Solomon H. Friend:

Well, McNab was not decided on any constitutional provision as I recall the McNab case.

It was decided on the basis that it was inherently unfair for —

Potter Stewart:

But it was decided, was it not, under the criminal, Federal Rules of Criminal Procedure and I should think in answer to Mr. Justice Black, we are of course, sworn to uphold and force the Constitution but there are also are statutes and in with particular reference to this case, there are Federal Rules of Civil Procedure created, promulgated, and laid down by this Court.

And I suppose that there are somewhere irrelevance too and they’re laid down for civil cases and the very specific standard to which it seems to me you can repair in this case is those Federal Rules of Civil Procedure having to do with interrogatories and pretrial discovery that are made for civil cases explicitly, the rules laid down by this Court and are not to be abused or taken advantage of for abuse that wrong use in criminal cases.

You don’t need to refer to the bible of morality or anything else.

You simply —

Hugo L. Black:

I agree with my brother about the rules, but which rule?

I’ve heard nothing viewed by any rules.

Which rules sets up the standard of fairness?

Potter Stewart:

Rule 33 and others.

Solomon H. Friend:

Well, [Attempt to Laughter] thank you Mr. Justice Stewart.

There are rules as I now I understand the point there are rules in the Federal Rules of Civil Procedure which allows certain forms of discovery.

On the other hand, there are —

Hugo L. Black:

But is there one which forbids what was done here?

Solomon H. Friend:

I would say that the Federal Rule of Criminal Procedure which incorporates the McNab Rule, I believe, its 41 (b) into the Federal Rules of Criminal Procedure.

Hugo L. Black:

Does it?

I never knew that before.

Solomon H. Friend:

The rule I’m referring to has the effect Mr. Justice Black as I read the rule of granting the Court authority to supervise the fair administration of criminal justice and the —

Hugo L. Black:

Which one is that?

Solomon H. Friend:

I believe it’s 41 —

Byron R. White:

That’s a search and seizure, no —

Solomon H. Friend:

Your Honors, may I point out in that connection of fairness that in the instant case, an official of the Food and Drug Administration testified, that it was the routine practice over the past 38 years for the Food and Drug Administration to file interrogatories and then take the answers to those interrogatories and use them in the criminal case at the very time that the Court, the FDA was considering a criminal case —

Warren E. Burger:

Well didn’t the Constitution put a barrier up so that was the protection for all the citizens by saying that if a question might, it need not be one which is bound to incriminate you, but if it has tendency to incriminate you, you do not need to answer.

You cannot be forced to answer, isn’t that the protection?

Solomon H. Friend:

That’s — that’s a protection.

Now, they seek to deny us this —

Warren E. Burger:

How can you have a better protection in the matter an absolute right to refuse to answer?

Solomon H. Friend:

Except Mr. Chief Justice that in this case, they would deny us that protection because they say, technically the interrogatories were directed to the corporation which doesn’t enjoy the privilege, and we say, and the Court held below that Kordel was the dominant personality, the corporation was merely a device, an instrumentality through which he sold his products, that the interrogatories would directed in his activities and that since they choose to get this information about him by asking a corporation the questions in effect since they have breeched the corporate veil and the questions that they asked, they shouldn’t be permitted to repair that breech to deny Kordel his Fifth Amendment privilege and —

Hugo L. Black:

Well, had he asserted it?

Solomon H. Friend:

That was I believe Your Honor asked me that question before and he did not assert —

Hugo L. Black:

You said denied his privilege —

Solomon H. Friend:

He did not —

Hugo L. Black:

As you said they denied and I base that on the question, did he assert it?

Solomon H. Friend:

He did not assert it but I think a more complete answer Your Honor would be that he did not waive it either because of the motion that was made at the time to excuse him from being or excuse the corporation from being required to answered the question.

Now, what they say Kordel should have done?

They admit Kordel and Feldten had the Fifth Amendment privilege.

They didn’t have to answer, but they say and this is the crux of their case, they say that the corporation should have appointed a third party, some agent, to answer the questions and in effect what they’re saying is, of course the corporation could only act through a human being, they’re saying that Kordel, who would himself had a privilege not to answer, should have appointed that an agent and then supplied him with the information to answer the questions which he himself would have been privileged to withhold.

And they go so far as to say that there is an agent available, why is the corporations’ Attorney, who happens to be me, that what I should do is sign the answers to the — sign the answers to the interrogatories in behalf of the corporation.

But the only way that I could get the information available to the corporation is by asking my client, Mr. Kordel, the President of the corporation as to whom they sought admissions.

Hugo L. Black:

Well, were you his lawyer at that time?

Solomon H. Friend:

Yes, I was Your Honor.

Hugo L. Black:

Did you advise him not to answer?

Solomon H. Friend:

I advised him at that time Your Honor and we did file a motion to be excused from answering the questions temporarily, pending the outcome of the criminal case and when the judge, it was Judge Levin of the District Court, heard the argument, the Government represented to the Court and this is in the record, that there was no certainty when or if or whether or if there would ever be a criminal case so the Court said.

Well at this point, —

Hugo L. Black:

You didn’t take a prosecutor’s word for that order, representing the Court —

Solomon H. Friend:

Well, I admired that in this case Mr. Justice Black.

But what happened is, of course, there might never be a case if the answers to the interrogatories didn’t reveal evidence to support their position, but if they had a case, they should have brought it.

They didn’t need the admissions either to lay the basis for summary judgment or to press forth on the case before it because is — if they have all these evidence, they can go back and retry the case without too much difficulty.

Thank you.

Potter Stewart:

Mr. Friend, I have one question for this.

Solomon H. Friend:

Yes sir.

Potter Stewart:

It’s not, if you don’t mind, it is not — it clear to me, what use was in fact made of the material that was acquired by means of this pretrial discovery in the civil litigation.

What use was made of that material in the subsequent criminal trial?

Solomon H. Friend:

The Court of Appeals answered that question and I’d like to refer to the Court to not only with the Court of Appeals said but the actual transcript.

On page 142 and 143, I asked the question of the witness as to whether they anticipated difficulty in proving interstate commerce with respect to the principle product known as “Korleen” and the answer was that they had difficulty proving interstate commerce with respect to Korleen manufactured by a different manufacturer.

But with respect to the manufacturer that was involved in this case, they wouldn’t have such difficulty because they have the answers to the interrogatories.

Secondly, the fact of the matter is that these answers to the interrogatories, which they say was not necessary to get the indictment, was brought into the grand jury room as part of one file which they had — to which they had put both the civil and the criminal aspects and the results of their investigation, that appears on page 192 and 193 where I asked the witness, and isn’t true that you used to assists you in your testimony with the grand jury almost all the papers that were in that one file which had combined the civil and the criminal case?

Answer: I reviewed the entire file before I went before the grand jury, yes, sir.

I had it with me and I used it in preparing for the grand jury, yes sir.

Potter Stewart:

That was for the indictment?

Solomon H. Friend:

That was for the indictment.

Potter Stewart:

Good.

Right.

Solomon H. Friend:

That the interstate —

Potter Stewart:

That part was directed to the trial?

Solomon H. Friend:

That was prior to the trial but with respect to the interstate commerce.

When we identified the manufacturer of the Korleen, that evidence was introduced into the trial not on the form of answer to the interrogatory, that’s true, but the information which they believe and the final answer is, in the Court of Appeals make straights laid great stress on this, it had been the practice of the FDA for 38 years, a practice by the way which is received a great deal of criticism in the administrative law review journal and other members of a food and drug bar, a practice whereby they bring a relatively simple procedure to follow a civil case, do nothing to protect the public either by summary judgment, multiple seizures or what have you.

And then, put everything in a one case into one file and indict it first and that’s what happened here and as the rights would inure to the benefit of the corporation under these circumstances as well as the individual because it’s inherently unfair and uphold to the form of criminal procedure which we would like to see in our land to allow the Government to use —

Hugo L. Black:

Where do you get that stand because its unhoard to you?

Solomon H. Friend:

I believe I got that from Mr. Justice Black, from a dissenting opinion of Mr. Justice Douglas in the Abel case, US against Abel, and the — I feel very —

Hugo L. Black:

Was that referred to this problem?

Solomon H. Friend:

It’s a related problem in that — the Court there was dealing —

Hugo L. Black:

If you settings view of something to happen in that case, wasn’t it?

Solomon H. Friend:

As I recall that case sir.

That case —

Hugo L. Black:

I think I’d agreed with it, I’m not mistaken it.

Solomon H. Friend:

I believe you did.

I thank you very much Mr. Chief Justice.

Warren E. Burger:

You have two minutes Mr. Wallace.

Lawrence G. Wallace:

The Government did not make multiple seizures eventually in this case and in administering food and drug laws the Government tries to avoid making multiple seizures of products that are not harmful in themselves.

But the availability of multiple seizures as a sanction after in a misbranding case, a favorable judgment is procured and a forfeiture proceeding can served as an inducement to get a consent decree that will eliminate the misbranding which is what we were seeking to do in this case and not to forfeit someone’s property that in the absence of the misbranding should be allowed to be disseminated.

The record does not show to what extent Kordel and the corporation should be considered to be altered egos in the situation that was involved here, but it does show that the corporation never made any claim that the information requested was not available to it within the meaning of Rule 33 because only Kordel knew the information and he didn’t want to disclose it.

The corporation never made that claim.

Thank you.

Warren E. Burger:

Thank you Mr. Wallace.

The case is submitted gentlemen.

Thank you for your submissions.