No. 00-1598
In the Supreme Court of the United States
CHARLES I. COVEY, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
THEODORE B. OLSON
Solicitor General
Counsel of Record
MICHAEL CHERTOFF
Assistant Attorney General
MARC I. OSBORNE
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the government violated petitioner's rights under the Fifth Amendment
by introducing at trial documents that petitioner produced in response to
a grand jury subpoena.
In the Supreme Court of the United States
No. 00-1598
CHARLES I. COVEY, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 232
F.3d 641.
JURISDICTION
The judgment of the court of appeals was filed on November 16, 2000. A petition
for rehearing was denied on January 17, 2001 (Pet. App. 19a). The petition
for a writ of certiorari was filed April 17, 2001. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
After a jury trial, petitioner was convicted in the Western District of
Missouri of conspiracy to commit money laundering, in violation of 18 U.S.C.
1956(h); aiding and abetting money laundering, in violation of 18 U.S.C.
2, 1956(a)(1)(B)(i); and criminal forfeiture under 18 U.S.C. 982 (1994 &
Supp. V 1999). Pet. App. 1a-2a; Pet. C.A. Br. Add. 1. Petitioner was sentenced
to 57 months of imprisonment, to be followed by three years of supervised
release, and a $19,118.44 fine. Id. at 2-5. The court of appeals affirmed
petitioner's convictions and sentence. Pet. App. 2a, 13a.
Petitioner was an officer and shareholder of MCM Enterprises, Inc. (MCM).
Pet. App. 2a. In 1993, petitioner, on behalf of MCM, loaned $50,000 to Gary
and Darrell Hart to start a motorcycle business. Ibid. For collateral, petitioner
took $70,000 in cash, which the Harts told him was drug proceeds. Id. at
2a-3a. When the Harts failed to make loan payments after the first seven
months, petitioner deducted the remaining pay-ments from the cash collateral.
Id. at 3a-4a.
In 1997, a grand jury subpoenaed MCM's records of the loan and related dealings
from petitioner as custodian of the corporation's records. See Subpoena
to Testify Before Grand Jury 1; C.A. App. 22-23 (7/28/97 Grand Jury Tr.
3-4). When petitioner appeared before the grand jury, the government advised
him that "[y]ou need not make a statement or testify or answer any
question you feel may tend to incriminate you" and that he could consult
with his attorney, who was waiting outside, before answering any question.
Id. at 21-22. Petitioner, the government, and petitioner's attorney (Bruce
Simon) then met outside the presence of the grand jury, after which the
government questioned petitioner:
Q.
Mr. Covey, I indicated to Mr. Simon that what you said in the Grand Jury
for the United States Attorney for the Western District of Missouri would
not be used against you in any subsequent prosecution; is that correct?
A.
As what you said or what I said? I don't understand what you said.
Q.
Did I just indicate to Mr. Simon in your presence that the Government would
not use what you said against you in any subsequent prosecution; what we
granted you, in effect, was use immunity?
A.
Okay.
Q.
Is that correct?
A.
To the best of my understanding.
Q.
It's my understanding from speaking with your counsel that as custodian
of records you are willing to produce today those records requested in the
subpoena; is that correct?
A.
Yes. Sure.
Id. at 24. Petitioner then turned over the documents. Petitioner did not
at any time assert any Fifth Amendment privilege before the grand jury.
Id. at 20-25.
2. During trial, petitioner stipulated to the authenticity of the records
and to their status as business records, see 8/23/99 Stipulation of Facts
Regarding Custodian of Records (Exh. P38), after which the government introduced
the records, but did not introduce petitioner's grand jury testimony. Trial
Tr. 244-247 (Test. of Lucila Rangel). The government also introduced MCM's
certificate of corporate records and annual registration reports, which
established that MCM was a corporation in good standing both at the time
that the documents were prepared and at the time that the documents were
subpoenaed and produced. See Exh. P1; Trial Tr. 245. Petitioner did not
object to the introduction of the documents. See id. at 244-247.1
3. After his conviction, petitioner, represented by new counsel, moved for
a judgment of acquittal or a new trial, arguing that the introduction of
the documents violated his Fifth Amendment rights. Pet. 4. After the motion
was denied, petitioner raised the same Fifth Amendment argument, among others,
on appeal. Pet. C.A. Br. 46-47. Petitioner relied on United States v. Hubbell,
167 F.3d 552 (D.C. Cir. 1999), aff'd, 530 U.S. 27 (2000), which was affirmed
by this Court shortly after petitioner filed his opening brief. See Pet.
C.A. Br. 46-47; Pet. C.A. Rep. Br. 19-20. The court of appeals, relying
on United States v. Doe, 465 U.S. 605, 611-612 (1984), for the proposition
that documents prepared and produced by a criminal defendant may be introduced
against him, rejected petitioner's Fifth Amendment argument. Pet. App. 13a.
ARGUMENT
Petitioner argues (Pet. 6-8) that this Court should vacate the decision
of the court of appeals and remand the case for further consideration in
light of United States v. Hubbell, 530 U.S. 27 (2000). There is, however,
no reason to remand this case in light of Hubbell. Petitioner's Fifth Amendment
claim cannot succeed because, as the custodian of corporate records, he
had no privilege against the compelled production of those records. See
Braswell v. United States, 487 U.S. 99, 117 (1988) ("a corporate custodian
is not entitled to resist a subpoena on the ground that his act of production
will be personally incriminating"). And petitioner's immunity agreement
provided him no more than he was entitled to under Braswell-that the government
would make no evidentiary use of his "individual act" of production
against him. Id. at 118. Petitioner, who did not object to the admission
of the documents at trial, cannot show error, much less plain error. The
Court should therefore deny the petition for a writ of certiorari.
1. The court of appeals rejected petitioner's Fifth Amendment claim on the
ground that "it is generally not unconstitutional to use the contents
of documents prepared and produced by a criminal defendant." Pet. App.
13a (citing United States v. Doe, 465 U.S. 605, 611-612 (1984)). To the
extent that the court relied on Doe for the proposition that the Fifth Amendment
does not prohibit the use of personal documents the production of which
has been compelled, that proposition is not consistent with this Court's
decision in Hubbell. See 530 U.S. at 40-43.
In Hubbell, the defendant invoked his Fifth Amendment privilege before a
grand jury and refused to produce personal documents that the government
had subpoenaed. See 530 U.S. at 31. In response, the government obtained,
pursuant to 18 U.S.C. 6002-6003, an order that compelled the production
of the documents and granted him immunity "to the extent allowed by"
those provisions. See 530 U.S. at 31 (citation omitted). This Court held
that the act of producing the personal documents could be compelled only
if the defendant was granted immunity pursuant to 18 U.S.C. 6002-6003. See
530 U.S. at 38, 45. The Court also
held that those statutory provisions provide immunity coextensive with the
Fifth Amendment privilege against self-incrimination, id. at 45, and therefore
prohibit not only the "use" of the act of production but also
the "derivative use of the produced documents." See id. at 38,
43.
Although Hubbell establishes that the government cannot use the contents
of documents produced under compulsion and a statutory grant of immunity,
the judgment of the court of appeals rejecting petitioner's Fifth Amendment
claim is correct, because petitioner neither had nor asserted before the
grand jury any Fifth Amendment right to resist production of the documents
at issue here. Those documents are corporate documents of MCM. See 8/23/99
Stipulation of Facts Regarding Custodian of Records 2; Trial Tr. 246. As
the government established at trial, MCM was a corporation organized under
the laws of Missouri and in good standing both at the time that the documents
were created and at the time that they were subpoenaed and produced. See
Exh. P1; Trial Tr. 245. The documents were subpoenaed from petitioner in
his capacity as custodian of corporate records. See Subpoena to Testify
Before Grand Jury 1; C.A. App. 23, 24. Petitioner, as custodian of the records
of a collective entity, therefore lacked any Fifth Amendment privilege to
resist production of those documents. See Braswell, 487 U.S. at 117, 119.
Although, under Braswell, the government could not have introduced into
evidence that the subpoena was served on petitioner as custodian of records
and that he produced the documents, 487 U.S. at 118, the government did
not do so. Instead, petitioner stipulated to the authenticity of the records
and to their status as business records, see 8/23/99 Stipulation of Facts
Regarding Custodian of Records, after which the government introduced the
records, but did not introduce petitioner's grand jury testimony. Trial
Tr. 244-247. The introduction of the documents therefore did not violate
petitioner's rights under Braswell.
2. Nor did the introduction of the documents violate the government's promise
to petitioner of "use immunity"-that "what [petitioner] said
in the Grand Jury * * * would not be used against [him] in any subsequent
prosecution." C.A. App. 24. Because petitioner, unlike Hubbell, did
not have and did not assert a Fifth Amendment right to refuse to produce
the documents at issue, petitioner, unlike Hubbell, was not granted immunity
pursuant to 18 U.S.C. 6002-6003. Unlike the grant of statutory immunity
in Hubbell, 530 U.S. at 45, the non-statutory immunity that the government
promised petitioner in this case was not coextensive with the Fifth Amendment
privilege that petitioner would have possessed in his individual capacity,
and it did not encompass protection against derivative use. Rather, the
government promised petitioner only the protection to which he was entitled
under Braswell-that the government would not introduce into evidence that
the subpoena was served on him as custodian of records and that he produced
the documents, see 487 U.S. at 118; or, as the prosecutor phrased it, that
the government would not use "what [petitioner] said in the Grand Jury"
against him. C.A. App. 24. See id. at 21, 23, 24-25 (petitioner's grand
jury testimony that he was present pursuant to a subpoena that was served
upon him in his capacity of custodian of records of MCM and that he produced
the documents in response to that subpoena).2
3. Finally, because petitioner did not object to the introduction of the
corporate documents at trial, his claim may be reviewed only for plain error.
See Fed. R. Crim. P. 52(b); Johnson v. United States, 520 U.S. 461, 465-466
(1997); Pet. C.A. Br. 46 (acknowledging that the plain error standard applies).
The plain error standard requires obvious error that affects substantial
rights; even then, a court should not exercise its discretion to reverse
unless necessary to protect the fairness, integrity, and public reputation
of judicial proceedings. Johnson, 520 U.S. at 467. The introduction of the
documents in this case could not have violated the Fifth Amendment under
Braswell, and petitioner cites no authority indicating that admission of
the documents was "obvious" error; indeed, for the reasons discussed
above, it was not error at all. Under those circumstances, petitioner cannot
meet his burden to show plain error.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
MICHAEL CHERTOFF
Assistant Attorney General
MARC I. OSBORNE
Attorney
AUGUST 2001
1 In conjunction with filing this brief, we are lodging with the Court copies
of the Subpoena, the Stipulation, and Exhibit P1. We have served petitioner
with a copy of the lodging.
2 Although some courts of appeals have construed a non-statutory government
promise of "use immunity" to include a promise of derivative use
immunity, see United States v. Kilroy, 27 F.3d 679, 685 (D.C. Cir. 1994);
United States v. Plummer, 941 F.2d 799, 804-805 (9th Cir. 1991), they have
done so in cases in which the witness possessed a valid Fifth Amendment
privilege. Those cases, unlike this one, did not involve a promise of "use
immunity" to a custodian of corporate records, who is entitled only
to the limited evidentiary protection available under Braswell. Whether
or not a non-statutory promise of "use immunity" should be interpreted
to encompass the full scope of protection provided by the Fifth Amendment
when a witness is entitled to that protection, the phrase should not be
construed in that manner when, as in this case, the witness is not entitled
to that protection.