designate the country to which he wishes to be deported. As the Eleventh Circuit reasoned in Gecas, however, Balsys's right to designate the country to which he would be sent "is subject to the Attorney General's discretionary conclusion 'that deportation to such country would be prejudicial to the interests of the United States.'" Id. (citing 8 U.S.C. § 1253(a)). Even if the Attorney General were to approve Balsys's country designation, that country could refuse to accept him because he is a suspected Nazi collaborator. If rejected by his designated country, Balsys would be sent to the country of which he is a citizen. See 8 U.S.C. § 1253(a). Thus, there is no guarantee that Balsys would be deported to the country of his choice.
Accordingly, under the Flanagan factors, the Court is persuaded that Balsys faces a "real and substantial" danger of prosecution by Lithuania and Israel. The Court must now consider whether Balsys may assert his Fifth Amendment privilege to avoid testifying.
B. Application of the Fifth Amendment
The Courts of Appeals which have considered the constitutional question of whether the Fifth Amendment privilege provides protection for a witness once it has been determined that he has a reasonable fear of foreign prosecution have reached different conclusions. The Fourth Circuit and the Tenth Circuit have held that a fear of foreign prosecution is not a sufficient basis for invoking the Fifth Amendment privilege. See United States v. (Under Seal) (Araneta), 794 F.2d 920, 926-28 (4th Cir.) (the Fifth Amendment may not be invoked by a witness who fears foreign prosecution unless that foreign country also honors the privilege against self-incrimination), cert. denied, 479 U.S. 924 (1986) [hereinafter Araneta]; In re Parker, 411 F.2d 1067, 1069-70 (10th Cir. 1969) (holding that Fed.R.Crim.P. 6(e) would prevent disclosure of witness's testimony to foreign officials, thereby negating fear of foreign prosecution, and, alternatively, that "the fifth amendment provides no shelter . . . against incrimination in a foreign jurisdiction" where federal domestic immunity has been granted), vacated as moot sub nom. Parker v. United States, 397 U.S. 96, 25 L. Ed. 2d 81, 90 S. Ct. 819 (1970).
In Araneta, the daughter and son-in-law of former Philippine president Ferdinand Marcos asserted the Fifth Amendment privilege and refused to testify before a grand jury investigating possible corruption in arms contracts with the Philippines. The Aranetas claimed that although they had been granted use and derivative use immunity (18 U.S.C. §§ 6002, 6003) and were thus protected from domestic prosecution, their answers to the grand jury would incriminate them in a pending prosecution in the Philippines. Applying the factors set forth by the Second Circuit in Flanagan, the court concluded that the Aranetas had established a real fear of prosecution in the Philippines.
Despite the Aranetas' reasonable fear of foreign persecution, the court held that they could not claim the Fifth Amendment privilege before the grand jury "since the Fifth Amendment would not prohibit the use of compelled incriminating testimony in a Philippine court." Araneta, 794 F.2d at 926. In so ruling, the court reasoned that just as "comity among nations dictates that the United States not intrude into the law enforcement activities of other countries conducted abroad," the United States' own sovereignty would be compromised if it were required "to forego evidence legitimately within its reach solely because a foreign power could deploy this evidence in a fashion not permitted within this country." Id.
The Eleventh Circuit, on the other hand, has held that the Fifth Amendment may be asserted by an individual on the basis of a fear of foreign prosecution. See United States v. Gecas, 50 F.3d 1549 (11th Cir. 1995). In Gecas, the defendant, also an alleged Nazi collaborator, claimed that the answers sought by the OSI in a deportation proceeding would incriminate him under the laws of Germany, Israel and Lithuania. Reversing the lower court's decision that the Fifth Amendment protection was not applicable to the defendant, the Eleventh Circuit "rejected the district court's contention that the privilege only protects an individual's freedom from government overreaching . . . " Id. at 1564, finding instead that "the Fifth Amendment privilege supports two goals: constraining the government from overzealous prosecution of individuals and securing individual liberties." Id. at 1562. The court based its holding on the notion that the Fifth Amendment privilege is "a personal right; [and] . . . a matter of individual dignity." Id. at 1564.
The district courts which have considered this issue have also varied in their conclusions. Several district courts have found that a fear of foreign prosecution is a valid basis for applying the Fifth Amendment. See Mishima v. United States 507 F. Supp. 131, 134-35 (D. Alaska 1981) (privilege available to Japanese seaman being investigated in grounding of vessel); United States v. Trucis 89 F.R.D. 671, 673-74 (E.D.Pa. 1981) (privilege may be applied only "to those questions posing a real threat of incrimination," but not to questions about entry into the U.S. or naturalization proceedings); United States v. Kowalchuk, Civil Nos. 77-118 and 77-119 (E.D.Pa. October 20, 1978) (privilege applicable in denaturalization proceedings against brothers alleged to have achieved citizenship by concealing their participation in persecution of Jews in Poland on their visa application).
In a recent case in the District of Massachusetts, however, Judge Stearns held that "the government's purpose and need in seeking to compel a witness's testimony" must be examined in order to determine whether the witness may invoke the Fifth Amendment privilege based on a fear of foreign prosecution. United States v. Lileikis, 899 F. Supp. 802, 809 (D. Mass. 1995). In that case, the government commenced a civil action to rescind the defendant's citizenship. In his answer to the complaint, the defendant, who was accused of committing acts of genocide in his native Lithuania, invoked the Fifth Amendment privilege against self-incrimination and refused to admit or deny the government's substantive allegations. Borrowing from both the Araneta and the Gecas opinions, the court concluded that:
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 that 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. . . . On the other hand, I agree that a court of the United States should not bend the Constitution solely to promote the foreign policy objectives of the executive branch, however laudable, by compelling the cooperation of a witness in a proceeding that does not have as its fundamental purpose the vindication of the domestic laws of the United States.
Lileikis, 899 F. Supp. at 809.
Within the Second Circuit, Judge Newman, then sitting in the District of Connecticut, held in In re Cardassi, 351 F. Supp. 1080 (D. Conn. 1972), that the Fifth Amendment privilege is applicable where a witness fears foreign prosecution. That case involved a grand jury witness who had been granted use immunity pursuant to 18 U.S.C. § 6003. The witness claimed the right to invoke the Fifth Amendment privilege based on her fear that, despite domestic use immunity, her testimony could be used against her in a foreign prosecution. The court reasoned that since the Supreme Court has construed the Fifth Amendment privilege to have the same scope under the United States Constitution as it has in England, where it applies to fear of foreign prosecution, the privilege can be claimed in proceedings in the United States by a witness who fears prosecution abroad. Id. at 1086.
With deference, this Court declines to follow the Eleventh Circuit's decision in Gecas. The Court is not unmindful of the Fifth Amendment's role in preserving an individual's privacy and dignity. See Gecas, 50 F.3d at 1564-65. This Court is of the opinion, however, that the Gecas holding allows foreign law to unreasonably infringe on domestic activity. This Court is similarly not persuaded by In re Cardassi. Instead, the Court finds the reasoning set forth by Judge Stearns in Lileikis persuasive given the facts of this case.
Balsys is a resident alien who allegedly entered the United States under false pretenses. The OSI seeks testimony from Balsys in conjunction with its investigation as to whether, on his application for an entry visa, he lied about his activities during World War II. Thus, the specific issue before the Court is whether an individual who was granted entry into the United States based on the government's reliance on the truthfulness of the sworn statements on his visa application can now take refuge in the Fifth Amendment privilege and escape verifying the answers he gave on the document that served as his passport to America.
The Fifth Amendment is not applicable extraterritorially. See Johnson v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255, 70 S. Ct. 936 (1950). It serves to regulate the relationship between federal and state governments and their citizens. The Supreme Court has stated that the privilege against self-incrimination reflects
our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load."
Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 55, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964) (citation omitted). This Court agrees with the Fourth Circuit that these values would not be vitiated by a decision declining to extend the privilege against self-incrimination in the present case. See Araneta, 794 F.2d at 926 ("Our decision that the Aranetas cannot find shelter in the Fifth Amendment does not imperil [the] values [underlying the Fifth Amendment]."). Balsys does not face the possibility of domestic prosecution, thus there is no incentive for the government to elicit self-incriminating statements from Balsys by "inhumane treatment and abuses." Murphy, 378 U.S. at 55. Moreover, because the United States Constitution is not applicable in Israel or Lithuania, allowing Balsys to invoke the Fifth Amendment privilege will not serve to promote the principles underlying our criminal justice system.
Rather, to allow Balsys to invoke the privilege would unreasonably impinge on the government's ability to monitor and verify immigration and visa applications. As stated by the court in Lileikis, "the United States cannot be deterred by the threat of a prosecution by a foreign sovereign from gathering evidence for its own purposes." 899 F. Supp. at 807. The government has a strong interest in determining whether or not an individual misrepresented information on his visa application. In seeking to compel Balsys's testimony, the government's primary purpose is "the vindication of the domestic laws of the United States." Id. at 809. Although Balsys does indeed have a real and substantial fear of prosecution by Lithuania and Israel, the laws of the United States should not be sacrificed where the government has established an independent and legitimate need for his testimony.
In declining to extend the Fifth Amendment privilege in the present case, the Court concludes that the fundamental purpose of the privilege is to protect individuals against governmental overreaching. Balsys seeks to assert the privilege as a means to thwart the enforcement of domestic law. This is contrary to the values the Fifth Amendment was intended to protect. Although Balsys may suffer harm as a result of the incriminating nature of the disclosure, the government has a valid purpose. There is no indication that the government's motive is malicious, or that the government is engaging in "overzealous prosecution."
A contrary decision by this Court would allow individuals attempting to immigrate to the United States to misrepresent their personal histories and other relevant information in order to gain access to this country, leaving the government without recourse and seriously eroding domestic law enforcement. Accordingly, the Court concludes that Respondent is not entitled to invoke the Fifth Amendment privilege against compelled self-incrimination.
Although this holding is limited to the facts of the present case, the Court is of the opinion that the Fifth Amendment was intended to preserve a witness's individual privacy only in the context of a criminal prosecution by our state or federal government and for the sole purpose of preventing governmental overreaching. This Court therefore believes that the Fifth Amendment privilege cannot be asserted by a witness who fears prosecution under the criminal laws of a foreign sovereign.
III. Waiver of Fifth Amendment Privilege
Even if Balsys were entitled to the protection of the Fifth Amendment, the Court finds that he waived any such privilege when he first applied for immigration and answered questions posed to him by government officials.
Voluntary statements on a given subject constitute an implied waiver of any subsequent Fifth Amendment claim related to that subject. Rogers v. United States, 340 U.S. 367, 371, 95 L. Ed. 344, 71 S. Ct. 438 (1951); United States v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942). Statements made in one proceeding, however, cannot constitute a waiver of the privilege at a separate proceeding. See United States v. Housand, 550 F.2d 818, 821 n.3 (2d Cir.), cert. denied, 431 U.S. 970, 53 L. Ed. 2d 1066, 97 S. Ct. 2931 (1977).
The Court finds that the present case does not involve two separate proceedings. In 1961, Balsys initiated immigration proceedings which remain open today. When he first applied for an immigrant visa in 1961, officials at the United States Consulate in Liverpool, England made inquiries into his prior record of employment and his activities during World War II. At that time Balsys voluntarily responded to such questioning, and testified under oath regarding the nature of his wartime activities in Europe and his immigration to the United States. Balsys's answers to questions about his whereabouts and activities from 1934 to 1944, whether given in 1961 or today, are part of the same proceeding. Therefore, this Court concludes that Balsys's representations to immigration authorities constituted a waiver of any Fifth Amendment privilege which he now claims in response to questions posed by the OSI concerning his procurement of a United States immigrant visa.
IV. Production of Documents
Balsys has also invoked the Fifth Amendment privilege in refusing to produce the documents described in the subpoena. Although the privilege generally does not apply to requests to produce documents, the very act of producing the documents may have "communicative aspects which rise to the level of a testimonial communication, as where merely acknowledging possession of the documents would be an incriminating admission." Matter of Grand Jury (Markowitz), 603 F.2d 469, 477 (3d Cir. 1979). See also United States v. Doe, 465 U.S. 605, 612, 79 L. Ed. 2d 552, 104 S. Ct. 1237 (1984) (noting that act of production may be testimonial). Balsys has made no showing, however, that the production of such documents would be testimonial in nature. See Matter of Grand Jury (Markowitz), 603 F.2d at 476 ("A witness who produces preexisting documents pursuant to subpoena does not testify as to all facts which the documents themselves may reveal.").
For the reasons stated above, the government's motion for an order compelling compliance with its administrative subpoena is hereby GRANTED with respect to both the deposition questions the OSI wishes to ask of the Respondent and the documents described in the subpoena.
Sterling Johnson, Jr.
Dated: March 5, 1996
Brooklyn, New York