120 F.3d 1419 (11th Cir. 1997), 93-3291, United States v. Gecas

Docket Nº:93-3291.
Citation:120 F.3d 1419
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Vytautas GECAS, Defendant-Appellant.
Case Date:August 26, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1419

120 F.3d 1419 (11th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Vytautas GECAS, Defendant-Appellant.

No. 93-3291.

United States Court of Appeals, Eleventh Circuit

August 26, 1997

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[Copyrighted Material Omitted]

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Ivars Berzins, Babylon, NY, for Defendant-Appellant.

E. Bryan Wilson, Asst. U.S. Atty., U.S. Dept. of Justice, Tallahassee, FL, Robert G. Seasonwein, Joseph C. Wyderko, U.S. Dept. of Justice, Office of Special Investigations, Washington, DC, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

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Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and KRAVITCH [*], Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Appellant, Vytautas Gecas, is a Lithuanian national who has lived in the United States as a resident alien for thirty-four years. The United States subpoenaed oral and written testimony from Gecas concerning allegations that he participated in the persecution of persons because of their race, religion, or political opinion during World War II. Such conduct would render Gecas deportable. See 8 U.S.C. § 1251(a)(4)(D) (1994). Gecas refused to testify and instead invoked the Fifth Amendment's privilege against self-incrimination. See U.S. Const. amend. V, cl. 2.

The United States petitioned the district court for an order to enforce its subpoena, and the district court granted the Government's petition. See United States v. Gecas, 830 F.Supp. 1403, 1423 (N.D.Fla.1993). Gecas appealed, claiming that his silence is protected by the constitutional privilege against self-incrimination. A divided three-judge panel reversed the district court's order, see United States v. Gecas, 50 F.3d 1549, 1567 (11th Cir.1995), and held that Gecas was entitled to the equitable relief provided by the privilege because he had a real and substantial fear of conviction under foreign law. 1 We granted rehearing en banc, 2 and now affirm the district court's order compelling Gecas to testify.

We examine the underlying facts in part I. We determine in part II that the conduct with which Gecas is charged could form the basis of a criminal conviction under foreign law. We also find that Gecas faces a real and substantial risk of actually being convicted under foreign law based on the alleged conduct. Therefore, in part III we turn to the issue of whether a real and substantial fear of foreign conviction is a valid basis for the invocation of the privilege against self-incrimination.

We start with the language of the Fifth Amendment's Self-Incrimination Clause and find it ambiguous. We then turn to precedent, and discover that the Clause, as currently interpreted, does not apply to Gecas. Because Gecas argues that the original intent of the Self-Incrimination Clause authorizes his invocation of the privilege, we discuss in part IV the history of the privilege against self-incrimination. We conclude in part V that the privilege against self-incrimination was not intended to apply here.

I.

According to Gecas' immigration file, he was born on September 25, 1922, in Naumiestis, a town in the Taurage district of Lithuania. On August 2, 1962, Gecas applied at the American Consulate in Liverpool, England, for a visa to enter the United States. Gecas stated in his application that from 1938 to 1944 he lived in Naumiestis as a "pupil," and that from 1944 to 1947, he lived in Lubeck, Germany, in a camp for "displaced persons"--a refugee camp. The application also stated that he moved to England in 1947, where he obtained employment first as a farm worker and then as a miner.

Gecas obtained a four-month visa from the Consulate on August 2, 1962. On October 23, 1962, at the age of thirty-nine, Gecas arrived in New York City on the Queen Elizabeth and was admitted to the United States. Upon entry, Gecas apparently went to Chicago, Illinois, to live with his cousin, a naturalized American citizen. In 1964, Gecas moved to a separate residence in Chicago, where he lived until October 1989. Gecas

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then moved to Sunny Hills, Florida, where he has since resided.

On July 25, 1991, the Office of Special Investigations (the "OSI") 3 of the United States Department of Justice issued to Gecas an administrative subpoena. 4 See generally 8 U.S.C. § 1225(a) (1994) (authorizing the Attorney General to subpoena the testimony of witnesses and the production of documents "relating to the privilege of any person to ... reside in ... the United States"). The subpoena directed Gecas to testify "relating to [his] residence and activities in Europe (including but not limited to the years 1940-1945)" and to produce documents and photographs "which concern [his] date and place of birth, [his] whereabouts and activities in Europe (including but not limited to 1940-1945), [and his] immigration to and residence in the United States." The OSI claimed to have evidence that Gecas served in the 12th Lithuanian Schutzmannschaft Battalion between 1940 and 1945. According to the OSI, this armed police unit participated in the persecution of persons because of their race, religion, national origin, or political opinion under the direction of the Nazi forces then occupying Lithuania. If Gecas engaged in this prohibited conduct, he would become deportable under 8 U.S.C. § 1251(a)(4)(D).

A United States Marshal served the OSI's subpoena on Gecas on July 30, 1991. On September 12, 1991, OSI investigators interviewed Gecas in the presence of his attorney. Gecas was placed under oath, and provided his name, his current address in Florida, and his previous address in Illinois. The OSI then asked Gecas some 162 other questions. These questions generally concerned Gecas' biographical data, such as alleged alternate spellings of his name, and Gecas' activities during World War II, such as his alleged participation in wartime atrocities against Jewish persons. To each question, Gecas responded as follows: "I decline to answer on the ground that the answer might tend to incriminate me." Gecas produced no documents or photographs other than his alien registration card.

On February 19, 1992, the United States petitioned the district court for an order to enforce the OSI's administrative subpoena. On August 11, 1993, the district court granted the Government's petition. See Gecas, 830 F.Supp. at 1423. The district court found that Gecas faced a real and substantial fear of criminal conviction in Lithuania, Germany, or Israel. See id. at 1411. Each of these states, the court noted, had enacted a law under which Gecas could be convicted. The court found that the OSI had previously provided information to foreign prosecutors of deported war criminals. Therefore, the court concluded that Gecas faced a real and substantial fear of foreign conviction.

Despite the legitimacy of Gecas' fear, however, the district court granted the Government's petition. The district court held that the privilege against self-incrimination contained in the Fifth Amendment to the United States Constitution does not apply to foreign prosecutions. See id. at 1423. The district court examined at length Supreme Court precedent and concluded that the privilege is not a "personal 'right' conferred upon persons within the protection of American law." Id. at 1421. Rather, according to the district court, the privilege was designed to protect the individual from prosecutorial overreaching and inhumane treatment at the hands of government. See id. at 1421-22. The court reasoned that neither purpose would be served by allowing the invocation of the privilege here because "[t]he privilege is a limitation only upon the power of the United States and its component states," not upon foreign governments. Id. at 1422. The court also noted that extending the privilege to foreign prosecutions would severely weaken domestic law enforcement. Therefore, the district court granted the Government's petition to enforce the OSI's administrative subpoena.

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Gecas appeals, arguing that the privilege against self-incrimination is a fundamental right of the individual rather than a mere limitation on the activities of government. The United States cross-appeals the district court's holding that Gecas' fear of foreign prosecution was substantial enough to invoke the equitable relief provided by the privilege.

II.

The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V, cl. 2. To assert this privilege against self-incrimination, as an initial matter, a witness' fear of conviction on the basis of his testimony must be reasonable, real, and appreciable. See Brown v. Walker, 161 U.S. 591, 599, 16 S.Ct. 644, 648, 40 L.Ed. 819 (1896). The witness must face a "real danger" of conviction to invoke the privilege because the privilege does not protect against "remote and speculative possibilities." Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972). If the privilege applies to foreign proceedings, Gecas must demonstrate, first, that the information to be disclosed through his testimony would incriminate him under foreign law and, second, that his fear of foreign conviction is real and substantial rather than merely speculative. See In re Application of the President's Comm'n on Organized Crime, 763 F.2d 1191, 1198 (11th Cir.1985) [hereinafter In re President's Comm'n ].

A.

The district court held that the information sought from Gecas would incriminate him under the laws of Israel, Germany, and Lithuania. See Gecas, 830 F.Supp. at 1408. The...

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