US v. Gecas

Decision Date11 August 1993
Docket NumberNo. 93-50179-RV. Misc. No. 1/8313-92-01.,93-50179-RV. Misc. No. 1/8313-92-01.
Citation830 F. Supp. 1403
PartiesUNITED STATES of America, Petitioner, v. Vytautas GECAS, Respondent.
CourtU.S. District Court — Northern District of Florida


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

Ivars Berzins, Ivars Berzins, P.A., Babylon, NY, pro hac vice, for Vytautas Gecas.


VINSON, District Judge.

Pending is the United States' petition to enforce its administrative subpoena. (Doc. 2) For the reasons set out below, that petition is GRANTED.


Respondent, Vytautas Gecas, is a resident alien living in Sunny Hills, Florida. Documents from his Immigration and Naturalization Service file show that he was born on September 25, 1922, in Naumiestis, Taurage Province, Lithuania. Gecas entered the United States on October 23, 1962, pursuant to Section 221 of the Immigration and Nationalization Act of 1952 8 U.S.C. § 1201.

In connection with his immigration to the United States, Gecas stated in his application for an Immigrant Visa that, during the years 1938 through 1944, he was a "pupil" in Lithuania. Gecas swore that this information was true. The petitioner now claims to have evidence that, during this period, Gecas, in fact, assisted the Nazi forces then occupying Lithuania, and that he participated in the persecution of persons because of their race, religion, and/or political opinion. Had this information been known to petitioner at the time of Gecas's immigration, he would have been disqualified from entering the United States. In furtherance of its investigation into Gecas's wartime activities, the petitioner, through its Office of Special Investigations ("OSI"), issued an administrative subpoena commanding Gecas to give testimony and to produce documents relating both to his immigration to the United States, and to his activities in Europe between 1940 and 1945.1

On September 12, 1991, Gecas and his attorney appeared before OSI investigators in Tallahassee, Florida. After being placed under oath, Gecas provided his name and current and immediate past addresses. He also produced his alien registration card, No. A12 950 903, for inspection. Gecas then refused both to answer all other questions and to produce the documents described in the subpoena.

The questions Gecas refused to answer fall into three general categories. The first category consists of questions directed at eliciting general biographical information, such as his date of birth, various places of residence during the war years, and questions relating to the information contained in his application for and immigration visa. Questions asking Gecas to identify copies of his immigration documents also fall into this category. The second category consists of questions relating to Gecas's association with various organizations, their publications, and their individual members during the period 1940-1945. This category also includes questions relating to his military service. The third category is related to the second, and includes questions dealing with Gecas's knowledge relative to the treatment of Jews in Lithuania after the Nazi occupation.

Gecas does not challenge the validity of the administrative subpoena. Nor does he argue that OSI is without the power to issue such subpoenas. Finally, it is undisputed that, although he faces the possibility of deportation, Gecas faces no threat of criminal prosecution in the United States. His only complaint is that his answers to the investigator's questions, along with the production of the requested documents, would expose him to possible criminal prosecution in a foreign country. Gecas argues that the Fifth Amendment to the Constitution of the United States protects him from such compelled self-incrimination.

In its motion to compel, petitioner argues that fear of incrimination under foreign law is not sufficient to invoke the protections of the Fifth Amendment. In the alternative, petitioner contends that Gecas has failed to show that the danger of foreign prosecution is real and substantial enough to trigger the Fifth Amendment privilege against self incrimination. Finally, the government contends that, by voluntarily responding to the questions contained in the application for an Immigrant Visa, Gecas has waived any Fifth Amendment right to refuse to answer questions relating to his previous immigration. Accordingly, petitioner requests that I compel Gecas to comply with the OSI subpoena.

As set out below, I find that Gecas does in fact face a real and substantial danger of foreign prosecution. However, because I also conclude that the Fifth Amendment privilege does not protect against fear of incrimination under foreign law, I need not reach the question of waiver.


The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself. ..." From the outset, I want to make it clear that this case does not involve the extraterritorial application of this privilege. The Fifth Amendment has never been interpreted to have extraterritorial reach. See Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950). Rather, the question in this case is whether the privilege against compelled self incrimination prevents agents of the federal government from forcing a witness in a civil proceeding in the United States to give testimony, in the United States, that cannot lead to criminal prosecution in this country, but which might expose the witness to criminal prosecution under the laws of a foreign sovereign.

A. Fear of Foreign Prosecution.

Neither the Supreme Court of the United States, nor the Eleventh Circuit, has ruled on whether a fear of incrimination under foreign law is within the scope of the Fifth Amendment privilege against self incrimination. See, e.g., Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972); In re Application of President's Comm'n on Crime, 763 F.2d 1191, 1198 (11th Cir.1985). In Zicarelli, supra, the Supreme Court noted probable jurisdiction to consider a witness's claim that a grant of immunity cannot supplant the Fifth Amendment privilege with respect to an individual who has a real and substantial fear of foreign prosecution, but expressly declined to reach the constitutional issue. Instead, it assumed for the sake of its analysis that the fear of incrimination under foreign law was within the scope of the privilege, but held that the petitioner had failed to meet his burden under the Fifth Amendment of showing that the danger of incrimination was real and substantial as opposed to speculative or imaginary. Id. at 478, 92 S.Ct. at 1675, 32 L.Ed.2d at 240. See also Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889, 901 (1968); Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 817, 95 L.Ed. 1118, 1123 (1951).

Such danger must be judged with reference to the ordinary operation of the law in the ordinary courts, and not to some "extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct." Murphy v. Waterfront Comm'n, 378 U.S. 52, 63 n. 8, 84 S.Ct. 1594, 1601 n. 8, 12 L.Ed.2d 678, 686 n. 8 (1964) (citing Brown v. Walker, 161 U.S. 591, 608, 16 S.Ct. 644, 651, 40 L.Ed. 819, 825 (1895) (citing Queen v. Boyes, 1 B & S 311)). Moreover, it is not the witness's opinion that establishes the hazard of incrimination. Rather, "it is for the court to say whether his silence is justified ... and to require him to answer if it clearly appears to the court that he is mistaken." Hoffman, supra, 341 U.S. at 486, 71 S.Ct. at 817, 95 L.Ed. at 1123 (citation omitted). In putting the witness to his burden, the court must be careful not to force the witness to surrender the very protection which the privilege is designed to guarantee. Therefore, the witness need not meet any of the traditional standards of proof (i.e. preponderance of the evidence, clear and convincing evidence and proof beyond a reasonable doubt).

Instead, the witness's burden is minimal. To sustain the privilege

it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.

Hoffman v. United States, 341 U.S. at 487, 71 S.Ct. at 818, 95 L.Ed. at 1124. If, after careful consideration of all the circumstances, it is not "perfectly clear ... that the witness was mistaken, and that the answers cannot possibly have a tendency to incriminate," the court must uphold the exercise of the privilege. Id. 341 U.S. at 488, 71 S.Ct. at 819, 95 L.Ed. at 1125 (emphasis in original) (citation omitted).

In Zicarelli, the New Jersey State Commission of Investigation had subpoenaed the witness to testify concerning organized crime, racketeering, and political corruption in Long Branch, New Jersey.2 Notwithstanding a grant of use and derivative use immunity, the witness invoked his privilege against compelled self incrimination, and persisted in refusing to answer the Commission's questions. At a hearing on an order to show cause issued by the Superior Court of Mercer County, New Jersey, the witness challenged the order on the ground (among others) that his testimony would expose him to the danger of foreign prosecution. Therefore, the witness argued that the grant of immunity was inadequate to protect his Fifth Amendment right.

In an effort to substantiate his fear, the witness pointed to a number of magazine and...

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3 cases
  • U.S. v. Gecas
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 26 Agosto 1997
    ...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 divid......
  • U.S. v. Gecas
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 13 Abril 1995
    ...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 sov......
  • Huckaby v. East Alabama Medical Center
    • United States
    • U.S. District Court — Middle District of Alabama
    • 1 Septiembre 1993

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