530 U.S. 27, 35–36 (2000)
In August 1994, an Independent Counsel was appointed to investigate possible violations of federal law relating to the Whitewater Development Corporation.1
In December 1994, Webster Hubbell pleaded guilty to charges of mail fraud and tax evasion arising out of his billing practices as a member of an Arkansas law firm from 1989 to 1992.2
He was sentenced to 21 months in prison.3
As part of the plea agreement, Hubbell promised to provide the Independent Counsel with full, complete, accurate, and truthful information about matters relating to the Whitewater investigation.4
While Hubbell was incarcerated in October 1996, the Independent Counsel served him with a subpoena duces tecum calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas.5
Hubbell appeared before the grand jury and initially invoked his Fifth Amendment privilege.6
After being granted immunity pursuant to an order under 18 U.S.C. § 6003(a), he produced 13,120 pages of documents and records.7
The documents provided the Independent Counsel with information that led to a second prosecution.8
On April 30, 1998, a grand jury in the District of Columbia returned a 10-count indictment charging Hubbell with tax-related crimes and mail and wire fraud.9
The District Court dismissed the indictment on the ground that the Independent Counsel's use of the subpoenaed documents violated 18 U.S.C. § 6002.10
The Court of Appeals vacated the judgment and remanded for further proceedings to determine the extent of the Government's independent knowledge of the documents.11
On remand, the Independent Counsel acknowledged that he could not satisfy the reasonable particularity standard and entered into a conditional plea agreement with Hubbell.12
The Supreme Court granted certiorari to determine the precise scope of a grant of immunity with respect to the production of documents in response to a subpoena.13
Whether the Fifth Amendment privilege protects a witness from being compelled to disclose the existence of incriminating documents that the Government is unable to describe with reasonable particularity?14
The Fifth Amendment privilege against self-incrimination protects against compelled testimonial communications, including the act of producing documents in response to a subpoena when that act implicitly communicates the existence, possession, or authenticity of documents whose existence and location are not a foregone conclusion already known to the government with reasonable particularity.15
Yes. The established facts establish that an Independent Counsel investigating Whitewater served Webster Hubbell with a broad subpoena duces tecum for eleven categories of documents while Hubbell was incarcerated following his first guilty plea.16 Hubbell initially invoked the Fifth Amendment privilege, received a grant of immunity under 18 U.S.C. § 6003(a), and then produced 13,120 pages of documents.17 On remand after the Court of Appeals decision, the Independent Counsel acknowledged inability to demonstrate with reasonable particularity any prior government knowledge of the documents' existence, authenticity, or Hubbell's possession of them.18
The act of production therefore conveyed testimonial information that the government used to obtain the subsequent indictment.19
The Fifth Amendment privilege therefore protects a witness from compelled disclosure of the existence of such documents.20
Related opinions on this issue
Joined by Scalia, J.
Justice Thomas joined the opinion of the Court.21 He wrote separately to note that the act-of-production doctrine applied in the case may be inconsistent with the original meaning of the Fifth Amendment's Self-Incrimination Clause.22 A substantial body of evidence from the founding era suggests that the term witness meant a person who gives or furnishes evidence.23
This broader meaning would protect against the compelled production of any incriminating evidence rather than only its testimonial aspects.24 Thomas remained open to reconsidering the scope and meaning of the Self-Incrimination Clause as well as Fisher and its progeny in a future case.25
Chief Justice Rehnquist dissented and would reverse the judgment of the Court of Appeals in part, for the reasons given by Judge Williams in his dissenting opinion in that court.26
Whether, if the witness produces such documents pursuant to a grant of immunity, 18 U.S.C. § 6002 prevents the Government from using them to prepare criminal charges against him?27
Under 18 U.S.C. § 6002 as construed in Kastigar v. United States, use and derivative-use immunity is coextensive with the Fifth Amendment privilege.28 It bars the government from using compelled testimony or any information directly or indirectly derived from it to prepare criminal charges unless the government proves the evidence came from a wholly independent legitimate source.29
Yes. The established facts show that the documents Hubbell produced after receiving immunity supplied the Independent Counsel with the information that led directly to the April 30, 1998 ten-count indictment charging tax-related crimes and mail and wire fraud.30 The District Court found that all evidence the government would offer derived either directly or indirectly from the testimonial aspects of the immunized production.31 The Independent Counsel conceded on remand that he could not satisfy the reasonable-particularity standard needed to establish an independent source.32
Because the government made substantial use of the produced documents in the investigation leading to the indictment, the statutory immunity prohibits that derivative use.33
Therefore 18 U.S.C. § 6002 prevents the Government from using the documents to prepare criminal charges against him, and the indictment must be dismissed.34