U.S. v. Gecas

• Decision Date: 13 April 1995
• Docket Number: No. 93-3291,93-3291
• Citation: 50 F.3d 1549
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vytautas GECAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1549

50 F.3d 1549

63 USLW 2679

UNITED STATES of America, Plaintiff-Appellee, v. Vytautas GECAS, Defendant-Appellant.

No. 93-3291.

United States Court of Appeals, Eleventh Circuit.

April 13, 1995.

Ivars Berzins, Babylon, NY, for appellant.

E. Bryan Wilson, Asst. U.S. Atty., U.S. Dept. of Justice, Tallahassee, FL, Robert G. Seasonwein, U.S. Dept. of Justice, Office of Special Investigations, Washington, DC, for appellee.

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

Before BIRCH and DUBINA, Circuit Judges, and JOHNSON, Senior Circuit Judge.

BIRCH, Circuit Judge:

This case requires us to determine whether a witness may invoke the Fifth Amendment privilege against self-incrimination for fear of foreign prosecution. The district court held that the Fifth Amendment privilege was not a "personal 'right' conferred upon persons within the protection of American law," United States v. Gecas, 830 F.Supp. 1403, 1421 (N.D.Fla.1993), and thus could not "protect a witness who fears incrimination or prosecution under the criminal laws of a foreign sovereign," id. at 1423. The district court ordered the witness to testify, and he appealed. Because we conclude that the witness-appellant has a real and substantial fear of foreign prosecution and that the Fifth Amendment privilege is a personal right that may be asserted by this witness, we AFFIRM in part and REVERSE in part the district court's order and REMAND this case for proceedings in accordance with this opinion.

I. BACKGROUND

In 1991, appellee Office of Special Investigations (OSI), an arm of the Criminal Division of the Department of Justice, ¹ issued a subpoena to appellant Vytautas Gecas to appear before an OSI attorney to testify and to produce documents relating to Gecas's immigration to the United States and his activities in Europe, concentrating on the years 1940 to 1945, during World War II. ² According to immigration documents, Gecas, a resident alien, was born in 1922 in Naumiestis, Taurage Province, Lithuania. In 1962, he immigrated to the United States from Great Britain. Gecas now resides in Florida. OSI believes that Gecas entered the United States illegally, and it is investigating Gecas for the purpose of deportation. OSI specifically contends that Gecas lied in his immigration application about his activities during World War II and that he assisted Nazi forces occupying Lithuania in committing atrocities during the war and participated in the persecution of persons because of their race, religion, or political opinion. ³ If these allegations are true, then Gecas should not have been allowed to enter the United States. ⁴

At the deposition, OSI attorneys placed Gecas under oath and asked him to identify documents and to answer questions regarding (1) his background, such as date of birth, residence in Europe during the war, and information on his immigration application; (2) his association with Lithuanian military units and political groups, his relationship to the certain political groups' publications and his familiarity with specific individuals in the military or the political groups during the war; and (3) his participation in and knowledge of the adverse treatment of Jews during the war. Gecas stated his name and his current and former addresses; he refused to answer all other questions by stating, "I decline to answer on the ground that the answer might tend to incriminate me." R1-2-Exh. D at 7, passim. Of the documents requested, Gecas produced only his alien registration card.

In early 1992, OSI petitioned the Northern District of Florida to enforce the administrative subpoena. After receiving information from both parties, the court held that, although Gecas had a "real and substantial fear of foreign prosecution," Gecas, 830 F.Supp. at 1406, the Fifth Amendment does not protect a witness from being compelled to give testimony that may incriminate him under the laws of a foreign country. The court ordered Gecas to comply with the subpoena; this appeal ensued.

II. DISCUSSION

A. The Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment provides in part: "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V. ⁵ The right against self-incrimination extends to any compelled testimony which may be used directly against the witness in a subsequent criminal prosecution or any compelled testimony which may lead to discovery of any evidence later used against him in a criminal prosecution. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951); see also Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653 (1964) ("Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured and may not by coercion prove a charge against an accused out of his own mouth."). "[The privilege] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory...." Kastigar v. United States, 406 U.S. 441, 444-45, 453, 92 S.Ct. 1653, 1656, 1661, 32 L.Ed.2d 212 (1972) (holding that grant of immunity from use and derivative use is sufficient to supplant the privilege because no criminal prosecution could then be feared). The witness, however, may invoke the privilege only if he reasonably believes that the information sought could lead to criminal prosecution of him. Id., 406 U.S. at 444-45, 92 S.Ct. at 1656. This belief cannot be speculative or the product of mere conjecture; it must be supported by reason or cause. Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968) ("The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination."); Hoffman, 341 U.S. at 486, 71 S.Ct. at 818 (holding that the privilege applies only when a witness has "reasonable cause to apprehend danger from a direct answer"); United States v. Cuthel, 903 F.2d 1381, 1384 (11th Cir.1990) ("A witness may properly invoke the privilege when he 'reasonably apprehends a risk of self-incrimination, ... though no criminal charges are pending against him ... and even if the risk of prosecution is remote.' " (quoting In re Corrugated Container Anti-Trust Litigation, 620 F.2d 1086, 1091 (5th Cir.1980) (omissions in original))).

Resident aliens may invoke the Fifth Amendment privilege against self-incrimination to the same extent that American citizens may invoke the privilege. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 & n. 5, 73 S.Ct. 472, 477 & n. 5, 97 L.Ed. 576 (1953). ⁶ But see United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 1064, 108 L.Ed.2d 222 (1990) (limiting Kwong Hai Chew to holding that a "resident alien is a 'person' within the meaning of the Fifth Amendment," and holding that Fourth Amendment prohibition against unlawful searches and seizures does not apply extraterritorially to aliens). The government and Gecas agree that he has no fear of domestic criminal prosecution on the basis of the testimony sought by OSI; rather, OSI is seeking to deport him, which is a domestic civil proceeding. ⁷ Yet, Gecas charges that forcing him to testify regarding his activities during World War II and his immigration to the United States could subject him to prosecution by the governments of Israel, Lithuania and Germany. ⁸ Thus, the issue is whether Gecas can avoid complying with the OSI subpoena by asserting his Fifth Amendment privilege against self-incrimination for testimony he claims may subject him to foreign prosecution.

B. Fear of Foreign Prosecution

Neither the Supreme Court nor this court has decided the constitutional question of whether a witness may invoke his right against self-incrimination for fear of foreign prosecution. The Supreme Court has established that, before the constitutional question may be reached by any court, the witness must demonstrate (1) that the testimony would tend to incriminate him under foreign law and (2) that he has a "real and substantial fear" of foreign prosecution. Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 478-80, 92 S.Ct. 1670, 1675-76, 32 L.Ed.2d 234 (1972); In re Application of President's Comm'n on Crime, (Scaduto) 763 F.2d 1191, 1198 (11th Cir.1985) [hereinafter Scaduto ]. This is essentially the same test that a witness must pass if he asserts a fear of domestic criminal prosecution. See Marchetti, 390 U.S. at 53, 88 S.Ct. at 705; see also In re Grand Jury Proceedings (Samuelson), 763 F.2d 321, 323-24 (8th Cir.1985) (setting forth tests found in Marchetti and Zicarelli for fear of a state prosecution).

1. Incrimination under Foreign Law

Gecas charges that the testimony sought by OSI would incriminate him under the laws of Israel, Lithuania and Germany, because OSI is seeking to prove that Gecas was a Nazi collaborator. ⁹ In light of the testimony sought by OSI, we review the pertinent criminal provisions from each sovereign to determine whether, in general, Gecas's answers could tend to incriminate him under them.

Israel punishes Nazi war criminals under its Nazis and Nazi Collaborators (Punishment) Law, 3710-1930 (1950) (Isr.). ¹⁰ This law is applicable extraterritorially and punishes persons for crimes committed against Jews during World War II. Simply stated, the responses sought from Gecas by OSI could show that Gecas engaged in conduct punishable under this law. See supra note 9.

In 1992, Lithuania enacted a statute punishing Nazis and Nazi collaborators for actions taken against the Lithuanian people during World War II. ¹¹ Punishments range from five years imprisonment to death. Law Concerning Responsibility for Genocide of the People of Lithuania, Num. 1-2477 (1992) (Lithuania), as translated in R2-19-Supp.Aff.App.-24. The law is retroactive and places...