United States v. Hubbell
530 U.S. 27 (2000)
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Rule of Law:
The Fifth Amendment privilege against self-incrimination protects a witness from compelled production of documents pursuant to a broad subpoena where the act of production itself is testimonial. If the government compels such production through a grant of use and derivative-use immunity, it is barred from using the contents of the produced documents to prosecute the witness when the government had no prior knowledge of the documents' existence or whereabouts.
Facts:
- As part of a plea agreement from a prior prosecution, Webster Hubbell promised to provide an Independent Counsel with 'full, complete, accurate, and truthful information' regarding the Whitewater investigation.
- To determine if Hubbell had violated that promise, the Independent Counsel served him with a subpoena duces tecum demanding the production of documents from 11 broad categories.
- Initially, Hubbell asserted his Fifth Amendment privilege against self-incrimination and refused to state whether he possessed any responsive documents.
- After a court granted him immunity and ordered him to comply, Hubbell produced 13,120 pages of documents.
- The contents of these documents provided the Independent Counsel with information that formed the basis for a new indictment against Hubbell for tax-related crimes and fraud.
- The Independent Counsel conceded that it was not investigating these tax-related crimes when it issued the subpoena and that it could not demonstrate any prior knowledge of the existence or whereabouts of the documents Hubbell produced.
Procedural Posture:
- The Independent Counsel served Webster Hubbell with a subpoena duces tecum to produce documents before a grand jury in the U.S. District Court for the Eastern District of Arkansas.
- Hubbell invoked his Fifth Amendment privilege, but the District Court issued an order compelling production and granting him use immunity under 18 U.S.C. § 6002.
- Based on the contents of the produced documents, a grand jury in the District of Columbia returned an indictment against Hubbell.
- In the U.S. District Court for the District of Columbia, Hubbell moved to dismiss the indictment, arguing that it was based on evidence derived from his immunized act of production.
- The District Court granted Hubbell's motion and dismissed the indictment.
- The Independent Counsel, as appellant, appealed the dismissal to the U.S. Court of Appeals for the D.C. Circuit.
- The Court of Appeals vacated the dismissal and remanded, instructing the District Court to determine the extent of the government's prior knowledge of the documents. Hubbell was the appellee in this appeal.
- On remand, the Independent Counsel acknowledged it could not satisfy the Court of Appeals' standard, and the parties entered a conditional plea agreement that permitted an appeal to the Supreme Court.
- The United States Supreme Court granted the Independent Counsel’s petition for a writ of certiorari.
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Issue:
Does the Fifth Amendment's protection against self-incrimination prevent the government from using the incriminating contents of documents produced by a witness in response to a broad subpoena, when the government had no prior knowledge of the documents' existence or location and compelled their production through a grant of immunity?
Opinions:
Majority - Justice Stevens
Yes. The Fifth Amendment's protection against self-incrimination prevents the government from making derivative use of the information contained in documents produced under a grant of immunity where the act of production itself is testimonial. The act of producing documents in response to a broad subpoena is testimonial because it communicates the existence, possession, and authenticity of the documents, which are facts previously unknown to the government. This testimonial act is the functional equivalent of answering a series of interrogatories. Under the use and derivative-use immunity provided by 18 U.S.C. § 6002, which is coextensive with the Fifth Amendment privilege as interpreted in Kastigar v. United States, the government cannot use information derived from the compelled testimonial act. Here, the government's knowledge of the documents' contents was derived entirely from Hubbell's immunized act of production. The 'foregone conclusion' exception from Fisher v. United States does not apply because the government could not show it knew of the existence, location, and authenticity of the documents with reasonable particularity. Therefore, the indictment, which was a direct result of this derivative use, must be dismissed.
Concurring - Justice Thomas
Yes. While the majority correctly applies the current act-of-production doctrine, that doctrine itself may be inconsistent with the original meaning of the Fifth Amendment's Self-Incrimination Clause. A substantial body of historical evidence suggests the term 'witness' at the time of the founding was not limited to one who gives oral testimony, but included anyone who gives or furnishes evidence of any kind. This broader meaning would protect against the compelled production of any incriminating physical evidence, not just the 'testimonial aspects' of its production. Therefore, the Court's precedent in Fisher v. United States, which narrowed the privilege to only testimonial communications, should be reconsidered in a future case.
Analysis:
This decision significantly strengthens the 'act of production' doctrine, providing robust protection against broad 'fishing expedition' subpoenas. It clarifies that when the government cannot prove prior knowledge of specific documents, the testimonial component of production is substantial, and derivative-use immunity must cover the documents' contents. This ruling effectively shifts the burden to the government to demonstrate with 'reasonable particularity' its pre-existing knowledge of evidence it seeks via subpoena. The case thus limits the government's ability to use immunized document production as a tool to uncover new crimes, reinforcing the principle that immunity must leave the witness in the same position as if they had invoked the privilege.
