Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney's Office and is a member of The Champion Advisory Board. The author wishes to thank Blair Bernholz Berk, a member of his firm, for her invaluable assistance in the preparation of this column.
Eighty-four-year-old Aloyzas Balsys has lived in the United States as a resident alien for the last 36 years, and resides with his family in Woodhaven, New York. The OSI (Office of Special Investigations) section of the Criminal Division of the United States Justice Department, which was created to investigate and conduct denaturalization and deportation proceedings against suspected Nazi war criminals initiated an investigation of Balsys for suspected collusion with the Nazi forces occupying Lithuania during World War II, by his alleged role as a persecutor of Jews and other civilians while a member of the Lithuanian Security Police.
In furtherance of its investigation of Balsys' wartime activities, the Justice Department issued an administrative subpoena late last year commanding Balsys to give testimony and to produce documents related to his activities during the war and regarding his immigration to the United States. Balsys appeared at a deposition and provided his name and address, but refused to answer any other questions, asserting his Fifth Amendment privilege against self-incrimination questions put to him included (1) requests for descriptions of his residence in Europe during the war; (2) his associations with Lithuanian police units and political groups; and (3) his knowledge of and his participation in the adverse treatment of Jews and others during the Nazi occupation of Lithuania.
Although Balsys' assertion of his Fifth Amendment right against self-incrimination was certainly not novel, the United States Supreme Court has to date never clearly addressed whether the Fifth Amendment privilege against compelled self-incrimination may be invoked by one who has a fear of prosecution in a foreign jurisdiction. In its own terms, the Fifth Amendment provides in part: "No person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. art.V. It has long been settled that resident aliens have the same rights under the Fifth Amendment as citizens, yet it has never been resolved whether the phrase "any criminal case" includes those cases which may be brought in foreign jurisdictions.
Although the Supreme Court has had the opportunity to decide the question in the past, (see Zicarelli v. New Jersey State Commission of Investigation, 92 S. Ct. 1670 (1972)(almost identical facts avoiding the question by finding there was not "real and substantial" risk of foreign prosecution)), the closest the Supreme Court has come was a finding that absent immunity, one federal jurisdiction may not compel a witness to give testimony that might incriminate him in a second jurisdiction. See Murphy v. Waterfront, 378 U.S. 52 (1964).
The lower appellate courts that have previously considered whether the Fifth Amendment privilege applies to fear of incrimination in foreign countries have reached conflicting conclusions. In United States v. (Under Seal)(Araneta), 794 F.2d 920 (4th Cir. 1986), the Fourth Circuit held that the Fifth Amendment does not protect a witness facing a substantial risk of foreign prosecution from compelled self-incrimination. It reasoned that when the Fifth Amendment applied only to the federal government, and not to the states, the Supreme Court had held that the amendment did not forbid the federal government from compelling testimony that would incriminate a witness under state law or forbid a state government from compelling a witness that would incriminate the witness under federal law. Finding that the Fifth Amendment privilege applies only "where the sovereign compelling the testimony and the sovereign using the testimony are both restrained by the Fifth Amendment from compelling self-incrimination," the court in Araneta refused to reverse an order of contempt against a Philippine citizen who refused to respond to a subpoena duces tecum issued by a grand jury in Virginia (investigating possible corruption in arms contracts). United States v. Araneta, supra, 794 F.2d at 922.
The Eleventh Circuit has also considered whether the Fifth Amendment protection is available under facts very similar to those facing Aloyzas, discussed supra. See, United States v. Gecas, 50 F.3d 1549 (11th Cir. 1995), rehearing en banc granted, opinion vacated, 81 F.3d 1032 (11th Cir. 1996). Like Aloyzas Balsys, Vytautas Gecas also invoked his Fifth Amendment privilege during a deposition by the OSI investigating Vytautas, once questioned about his activities in Lithuania during World War II. In fact, an Eleventh Circuit panel found that: 1) Gecas' answers to the served subpoena regarding his participation and execution of Lithuanian Jews during World War II would tend to incriminate him under the laws of Israel and Lithuania; 2) a sealing order would not ensure that the information from his testimony would not be disclosed to Israel or Lithuania; 3) there was substantial likelihood that if deported, Gecas would be sent forcibly to a country with the ability and desire to prosecute him; 4) that he had a real and substantial fear of prosecution by Lithuania or Israel; 5) his privilege against self-incrimination may be asserted in response to questions which may incriminate under laws of a foreign country. United States v. Gecas, supra, 50 F. 3d at 1549-50. The Gecas panel remanded the case to the district court, however, to determine whether Gecas had waived his privilege against self-incrimination when he signed certain immigration papers under oath. Id. Nevertheless, the Eleventh Circuit concluded that invocation of the privilege where the fear of foreign prosecution is "real and substantial" promotes an appropriate balance between the purposes of the Fifth Amendment and the important government interests in domestic law enforcement. Id. at 1564-65.
A number of federal district courts have considered the issue of under what circumstances the Fifth Amendment protection will extend to situations of fear of prosecution in foreign jurisdictions. The majority of district courts to consider the issue have found the privilege to extend to a "reasonable" fear of foreign prosecution. See, e.g., Moses v. Allard(in re Moses), 799 F. Supp. 857, 970-83 (E.D. Mich. 1991)(refusing in a domestic bankruptcy proceeding to compel the testimony of a debtor who feared prosecution in Switzerland); Yves Farms, Inc. v. Rickett, 659 F. Supp. 932, 939-41 (M.D.Ga. 1987)(holding that a foreign citizen was entitled to invoke the Fifth Amendment privilege against private party defendants seeking testimony on a collateral issue); ,em>Mishima v. United States, 507 F. Supp. 131, 135 (D.Alaska 1981)(relying on the analysis of English common law and Murphy to conclude that the privilege could be invoked where a "real" fear of foreign prosecution exists). In addition, federal district courts have found that the Fifth Amendment privilege is specifically applicable where there is an ongoing justice department war crimes investigation. See, e.g., United States v. Kirsteins, Case No. 87-CV-964 (N.D.N.Y., May 10, 1989)(unpublished)(noting an earlier decision to allow the witness to invoke the privilege); United States v. Trucis, 89 FRD 671, 673 (E.D.Pa. 1981).
Adding a new and weighty voice approving the invocation of the Fifth Amendment privilege when an individual is subject to foreign prosecution, a Second Circuit panel has weighed in on behalf of Balsys, reversing a district court's order enforcing an administrative subpoena issued by the director of the OSI, who had sought to determine whether Balsys was subject to deportation for lying on his immigration application relating to his Lithuanian army activities during World War II. United States v. Balsys, ___F.3d ___ (2d Cir. 1997).
Judge Frederic Block of the United States District Court in the Eastern District of New York originally ordered Balsys to answer questions and had closely followed the signals sent from a district court in Massachusetts (Judge Stearns) which had just prior to the Balsys case rejected the invocation of the Fifth Amendment in such situations. See, United States v. Leleikis, 899 F. Supp. 802 (D.Mass. 1995). According to Judge Stearns' decision, on which the Eastern District trial court relied heavily:
If a governmental interest in enforcing the organic laws of the United States is involved, and the United States has a legitimate need for a witness's testimony in furthering that interest, the privilege must yield if the sole basis for claiming its protections is the fact a resident of the United States faces the likelihood of a foreign prosecution. It would be an unacceptable affront to the sovereignty of the United States if the operation of its laws could be stymied by the desire of a foreign government to prosecute the same witness.
Id. at 809.
Judge Block had held that Balsys could not invoke his privilege since the United States government sought his testimony out of a legitimate interest in a matter of domestic law, namely the investigation of Balsys' statements on his application for entry into the United States. See, United States v. Balsys, 918 F. Supp. 588, 597 (E.D.N.Y. 1996). Judge Calabrese, writing for the Second Circuit panel, however, rejected this reasoning, and held that allowing invocation of the Fifth Amendment in this context advances individual integrity and privacy, protects against the state's pursuit of its goals by excessive means, and promotes the values of our criminal justice system. The court noted:
The "cruel trilemma" of self-accusation, perjury, or contempt is no less cruel nor any less self-imposed by government within the United States merely because the testimony is ultimately used by a foreign country. Nor is the threat to privacy any less serious merely because the compulsion serves the purpose of a foreign government. Finally, the privilege protects the innocent and better ensures reliability of the testimony the United States seeks to compel regardless of whether the witness at issue fears foreign or domestic prosecution because self-incriminating statements are no more reliable in either case.
United States v. Balsys, supra, ___ F.3d at ___.
The panel also disagreed with the district court's finding that because Balsys faced no immediate domestic prosecution, that the government had no incentive to force self-incriminating statements through inhumane treatment. Recognizing that there is a growing "cooperative internationalism" between the United States and other foreign jurisdictions in fighting crime, the Second Circuit underscored that international collaboration with criminal prosecutions has given the United States a significant stake in many foreign criminal cases.
Id. at ___. The Second Circuit panel vacated the district court's order, compelling compliance with the government's administrative subpoena and remanded the case or proceedings consistent with the opinion. In his concurrence, Judge Meskill agreed with the majority's result but disagreed that the decision should be interpreted as honoring a Fifth Amendment privilege against self-incrimination in all domestic proceedings where there exists a well-founded fear of prosecutions.