322 U.S. 487 (1944), 193, Feldman v. United States

Docket Nº:No.193
Citation:322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408
Party Name:Feldman v. United States
Case Date:May 29, 1944
Court:United States Supreme Court

Page 487

322 U.S. 487 (1944)

64 S.Ct. 1082, 88 L.Ed. 1408



United States


United States Supreme Court

May 29, 1944

Argued December 17, 1943




The Fifth Amendment does not forbid the use in evidence against a defendant in a criminal case in a federal court of self-incriminating testimony theretofore compelled -- under a state immunity statute and without participation by federal officers -- in proceedings in a state court. P. 492.

136 F.2d 394 affirmed.

Certiorari, 320 U.S. 724, to review the affirmance of a conviction, under § 215 of the Criminal Code, for using the mails to defraud.

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This is an indictment under Section 215 of the Criminal Code, 18 U.S.C. § 338, for using the mails to further a fraudulent scheme. Petitioner's conviction was affirmed

Page 488

by the Circuit Court of Appeals, one judge dissenting. 136 F.2d 394. We brought the case here, 320 U.S. 724, to consider the single question whether the admission of testimony previously given by petitioner in supplementary proceedings in a state court deprived him of the protection of the Fifth Amendment against being "compelled in any criminal case to be a witness against himself."

In accordance with New York procedure, known as supplementary proceedings, designed to aid in the discovery of assets of a debtor, N.Y. Civil Practice Act, art. 45, Feldman, a judgment debtor, was called as a witness in such proceedings on several occasions between March 31, 1936, and September 29, 1939. Up to March 14, 1938, the New York immunity statute merely provided that a debtor might not be excused from testifying because of self-crimination, but that his testimony could not be used in evidence in a subsequent criminal proceeding against him. N.Y.Laws, 1935, c. 630, § 789. By an Act of March 14, 1938, New York broadened the debtor's immunity so as to free him from prosecution on account of any matter revealed in his testimony. N.Y.Laws 1938, c. 108, § 17, N.Y. Civil Practice Act, § 789. While the earlier provision was in effect, Feldman testified that he was unemployed, paid rent of $250 a month from funds supplied by his family, owed about $340,000, and contemplated immediate bankruptcy. He further testified that, about once a month, his father sent him a book of signed checks, he sent large sums of money to his father by Western Union and destroyed whatever evidence the receipts might offer -- in short, that he was "kiting" his father's checks by sending the proceeds of the later checks to cover those cashed earlier. After March 14, 1938, and down through September, 1939, Feldman again [64 S.Ct. 1083] testified in New York supplementary proceedings, giving further details of his bizarre "kiting" practices.

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The federal charge was the use of the mails in a scheme to defraud executed by "kiting" checks. In the trial, the Government introduced Feldman's testimony in the New York supplementary proceedings. He did not take the stand. The Government contends that it is unnecessary to decide whether the claim of privilege duly made bars the admission of this testimony. It suggests that testimony given prior to the Act of March 14, 1938, was not compellable, and therefore Feldman waived any privilege in that the New York statute prior to March 14, 1938, did not grant an immunity coextensive with the privilege available under New York law. People ex rel. Lewisohn v. O'Brien, 176 N.Y. 253, 68 N.E. 353. As to testimony under the later New York statute, the Government suggests that it either was not incriminating or was merely repetitive of the earlier voluntary testimony, making its admission, in any event, not prejudicial.

We put to one side all these subtler issues, because we think they cannot dispose of the case. And so we come directly to the main question -- namely, whether the Fifth Amendment prohibited the admission against Feldman upon his trial in a federal court of the earlier testimony given by him in the state courts. While the point has not been formally decided, we deem the answer to be controlled by a long series of decisions expressing basic principles of our federation.

The effective enforcement of a well designed penal code is, of course, indispensable for social security. But the Bill of Rights was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law, and that, in its attainment, other social objects of a free society should not be sacrificed. We are immediately concerned with the Fourth and Fifth Amendments, intertwined as they are and expressing as they do supplementing phases of the

Page 490

same constitutional purpose -- to maintain inviolate large areas of personal privacy. See Boyd v. United States, 116 U.S. 616, 630.

The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles [of the Fourth and Fifth Amendments] established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.

Weeks v. United States, 232 U.S. 383, 393.

We have already noticed the intimate relation between the two amendments. They throw great light on each other. For the "unreasonable searches and seizures" condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment, and compelling a man "in a criminal case to be a witness against himself," which is condemned in the fifth amendment, throws light on the question as to what is an "unreasonable search and seizure" within the meaning of the fourth amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.

Boyd v. United States, supra, at 633.

But, for more than one hundred years, ever since Barron v. Baltimore, 7 Pet. 243, one of the settled principles of our Constitution has been that these Amendments protect only against invasion of civil liberties by the Government whose conduct they alone limit. Brown v. Walker, 161 U.S. 591, 606; Jack v. Kansas, 199 U.S. 372, 380; Twining v. New Jersey, 211 U.S. 78. Conversely, a State cannot, by operating within its constitutional powers, restrict the operations of the National Government within its sphere. The distinctive operations of the two governments within their respective spheres is basic to our federal constitutional system, howsoever complicated and

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difficult the practical accommodations to it may be. The matter was put in classic terms in what Chief Justice Taft called "the great judgment," Ponzi v. Fessenden, 258 U.S. 254, 261, of Chief Justice Taney in Ableman v. Booth, 21 How. 506, 516:

[64 S.Ct. 1084]

the powers of the General Government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court as if the line of division was traced by landmarks and monuments visible to the eye.

This principle has governed a series of decisions which, for all practical purposes, rule the present case. When this Court for the first time sustained an immunity statute as adequate, it rejected the argument that, because federal immunity could not bar use in a state prosecution of testimony compelled in a federal court, the immunity falls short of the constitutional requirement. Brown v. Walker, supra, at 606. And when the reverse claim was made as to a state immunity statute, that a disclosure compelled in a state court could not assure immunity in a federal court, the argument was again rejected because

The state [antitrust] statute could not, of course, prevent a prosecution of the same party under the United States [antitrust] statute, and it could not prevent the testimony given by the party in the state proceeding from being used against the same person in a Federal court for a violation of the Federal statute, if it could be imagined that such prosecution would be instituted under such circumstances.

Jack v. Kansas, supra, at 380. When the matter was here last, it was thus summarized:

This court has held that immunity against state prosecution is not essential to the...

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