Citation. United States v. Hubbell, 167 F.3d 552, 334 U.S. App. D.C. 315, 99-1 U.S. Tax Cas. (CCH) P50,219, 83 A.F.T.R.2d (RIA) 632 (D.C. Cir. Jan. 26, 1999)
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Brief Fact Summary.
The defendant, Webster Hubbell (the “defendant”), asserted his privilege against self incrimination when he was subpoenaed to produce documents. The government granted him immunity but then proceeded to use the documents to obtain an indictment against him from the Grand Jury.
Synopsis of Rule of Law.
The government may not make derivative use of the testimonial act inherent in the production of documents to obtain an indictment of the subpoenaed individual.
The defendant, after pleading guilty to crimes arising out of his involvement with the Whitewater scandal, entered into a plea agreement with the Independent Counsel in which he agreed to provide full and accurate information regarding those matters. While incarcerated, the defendant responded to a subpoena duces tecum and appeared before a grand jury, where he promptly asserted his Fifth Amendment constitutional right not to incriminate himself. The Independent Counsel produced an order obtained pursuant to 18 U.S.C. Section:6002 granting the defendant immunity “to the extent allowed by law,” but thereafter used the documents that the defendant then produced before a Grand Jury to obtain a 10-count indictment against him. The District Court dismissed the indictment on the grounds that it violated 18 U.S.C. Section:6002. The Court of Appeals vacated the judgment and remanded the case for further proceedings to determine whether the Independent Counsel knew, with reasonable particularity,
that the documents it sought existed prior to their production by the defendant.
Whether the Fifth Amendment constitutional privilege against compelled self-incrimination and 18 U.S.C Section:6002 allows a witness to withhold disclosure of incriminating documents that the Government is unable to describe with reasonable particularity?
The constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence without first obtaining immunity under 18 U.S.C. Section:6002.
In analyzing the meaning of the Fifth Amendment of the United States Constitution (“Constitution”) at the time of the founding, Justice Clarence Thomas (“J. Thomas”) found historical evidence for the proposition that the privilege against self incrimination applied to the production of all incriminating evidence, not just to the production of incriminating testimony, based on the old definition of a witness as someone who produced evidence, not just someone who testified in open court.
Because the act of production carries with it a testimonial quality, in that the witness must attest to the fact that he has possession of the documents, and that they are accurate, and a complete response to the subpoena, a subsequent indictment would be using that testimony to produce additional evidence in violation of the use immunity granted under federal statute.