Grand Jury Proceedings, Doe No. 700, In re, 87-5527

• Decision Date: 05 May 1987
• Docket Number: No. 87-5527,87-5527
• Citation: 817 F.2d 1108
• Parties: , 22 Fed. R. Evid. Serv. 1682 In re GRAND JURY PROCEEDINGS, John DOE # 700. UNITED STATES of America, Plaintiff-Appellee, v. (UNDER SEAL), Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1108

817 F.2d 1108

55 USLW 2621, 22 Fed. R. Evid. Serv. 1682

In re GRAND JURY PROCEEDINGS, John DOE # 700.

UNITED STATES of America, Plaintiff-Appellee, v. (UNDER SEAL), Defendant-Appellant.

No. 87-5527.

United States Court of Appeals, Fourth Circuit.

Argued April 6, 1987.

Decided May 5, 1987.

Richard A. Hibey (Timothy M. Broas, Gordon A. Coffee, Thomas P. Steindler, Anderson, Hibey, Nauheim & Blair, on brief), for defendant-appellant.

Vincent L. Gambale, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Theodore S. Greenberg, Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, and WIDENER and PHILLIPS, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Ferdinand and Imelda Marcos appeal from the district court's order holding them in contempt for refusing to produce documents before a federal grand jury. The Marcos' argue that they are shielded from compulsory process by head-of-state immunity and that they are protected from providing evidence by the privilege against self-incrimination under both the Philippine and United States Constitutions. We affirm the contempt order.

I.

Ferdinand Marcos is the former President of the Republic of the Philippines, and Imelda Marcos is his wife. In early 1986, Mr. Marcos' presidency came to an end, and he was replaced by Corazon Aquino. On February 26, 1986, Mr. and Mrs. Marcos left the Philippines and flew to the United States, where they have remained ever since.

In January 1987 a federal grand jury in the Eastern District of Virginia issued subpoenas commanding the Marcos' to testify before the grand jury in February 1987 and to provide certain documents relating to the Marcos government. These subpoenas superseded broader subpoenas issued by the same grand jury in December 1986. The grand jury, which was convened before the Marcos' arrival in the United States, is investigating possible corruption in American companies' arms contracts with the Philippines. The Marcos' moved to quash the subpoenas, invoking head-of-state immunity and the privileges against self-incrimination under both the United States and the Philippine Constitutions. Shortly thereafter, on February 3, 1987, the Aquino government issued a diplomatic note purporting to waive any residual head-of-state or diplomatic immunity enjoyed by Mr. and Mrs. Marcos.

At a closed hearing on February 11, 1987, at which the Marcos' were not present, the district court denied the motion to quash on the grounds that the Philippine government had waived the Marcos' head-of-state immunity and on the grounds that fear of foreign prosecution did not justify invocation of the United States or Philippine privilege against self-incrimination. The government then moved to confer "act of production" immunity on Mr. and Mrs. Marcos in absentia under 18 U.S.C. Secs. 6002-6003. At that time, the government did not seek testimonial immunity. The court granted the government's motion to confer "act of production" immunity, and counsel for the Marcos' then stated that his clients would refuse to produce the documents notwithstanding the grant of immunity. ^* The district court held the Marcos' in contempt, ordered that they be confined, and stayed the confinement order pending this appeal.

II.

We turn first to the contention that Mr. Marcos is entitled to immunity from process as a former head of state and that Mrs. Marcos is entitled to immunity as the wife of a former head of state. Head-of-state immunity is a doctrine of customary international law. Generally speaking, the doctrine maintains that a head of state is immune from the jurisdiction of a foreign state's courts, at least as to authorized official acts taken while the ruler is in power. See, e.g., Kilroy v. Windsor (Prince Charles, The Prince of Wales), Civ. No. C-78-291 (N.D.Ohio 1978), excerpted in 1978 Dig.U.S.Prac.Int'l L. 641-43; Chong Boon Kim v. Kim Yong Shik (Hawaii Cir.Ct.1963), excerpted in 58 Am.J.Int'l L. 186-87 (1964); Hatch v. Baez, 7 Hun. 596 (N.Y.Sup.Ct.1876). Like the related doctrine of sovereign immunity, the rationale of head-of-state immunity is to promote comity among nations by ensuring that leaders can perform their duties without being subject to detention, arrest or embarrassment in a foreign country's legal system. See generally Note, Resolving the Confusion Over Head of State Immunity; The Defined Rights of Kings, 86 Colum.L.Rev. 169, 171-79 (1986).

The exact contours of head-of-state immunity, however, are still unsettled. The cases do not make clear, for example, whether a state can waive one of its former ruler's head-of-state immunity, as the current Philippine government has endeavored to do here. Indeed, not one of the cases cited by the Marcos' even addresses the issue. See O'Hair v. Wojtyla, Civ. No. 79-2463 (D.D.C.1979), excerpted in 1979 Dig.U.S.Prac.Int'l L. 897 (holding that suit against the Pope was prohibited by the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 1602 et seq.); Kilroy v. Windsor, supra (holding Prince Charles immune in accordance with a State Department Suggestion of Immunity); Psinakis v. Marcos, Civ. No. C-75-1725 (N.D.Cal.1975), excerpted in 1975 Dig.U.S.Prac.Int'l L. 344-45 (honoring a Suggestion of Immunity for then-President Marcos); Chong Boon Kim v. Kim Yong Shik, supra (honoring a Suggestion of Immunity for a Korean foreign minister). The effect of the Philippine government's "waiver" therefore appears to be a question of first impression.

We think the waiver should be given full effect. Head-of-state immunity is founded on the need for comity among nations and respect for the sovereignty of other nations; it should apply only when it serves those goals. In this case, application of the doctrine to Ferdinand and Imelda Marcos would clearly offend the present Philippine government, which has sought to waive the Marcos' immunity, and would therefore undermine the international comity that the immunity doctrine is designed to promote. Our view is that head-of-state immunity is primarily an attribute of state sovereignty, not an individual right. Respect for Philippine sovereignty requires us to honor the Philippine government's revocation of the head-of-state immunity of Mr. and Mrs. Marcos.

Related principles of diplomatic immunity support the conclusion that head-of-state immunity can be waived by the sovereign. The Vienna Convention on Diplomatic Relations, to which the United States is a party, provides that diplomats of the sending state generally are immune from criminal and civil process of the receiving state, that they are "not obliged to give evidence as a witness," and that their persons are "inviolable." Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95, Articles 31(1), 31(2), 29. But the Convention also provides that "[t]he immunity from jurisdiction of diplomatic agents [and their families] ... may be waived by the sending State." Id. Art. 32(1) (emphasis added). That waiver must be "express." Id. Art. 32(2). Clearly, an individual enjoys diplomatic immunity only at the pleasure of that individual's state. It is true that this provision of the Vienna Convention applies only to diplomats, but we see no reason that its rationale should not also apply to heads of state. It would be anomalous indeed if a state had the power to revoke diplomatic immunity but not head-of-state immunity.

The Marcos' contend that honoring the Philippine government's waiver will establish a system that is not "civilized," since "political enemies [will be] entitled to expunge international legal protections from their adversaries once they have been removed from office--peacefully or otherwise." This prospect does not change our view of the case. As we see it, a fundamental characteristic of state sovereignty is the right to determine which individuals may raise the flag of the ship of state and which may not. This system may indeed be somewhat "uncivilized," as the Marcos' suggest, because it may degrade ex-rulers who happen to fall out of favor with their former constituents or political successors. But the system suggested by Mr. and Mrs. Marcos would be at least as uncivilized, for it would allow disfavored ex-rulers to mock the existing government by claiming immunity in the name of that government.

Finally, the Marcos' argue that the "more appropriate approach" to this issue is that taken by the Supreme Court in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), in which the Court held former President Nixon immune from civil liability for his official acts. The issue in this case, however, is not whether the Marcos' may be civilly liable, but whether they are wholly immune from process. Moreover, as the government points out, an ex-President may be subpoenaed "to produce relevant evidence in a criminal case," id. at 760, 102 S.Ct. at 2707 (Burger, C.J., concurring), and even a sitting President may not claim immunity from a criminal subpoena....