(Slip Opinion) OCTOBER TERM, 1999 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. HUBBELL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 99­166. Argued February 22, 2000- Decided June 5, 2000 As part of a plea agreement, respondent promised to provide the Inde- pendent Counsel investigating matters relating to the Whitewater Development Corporation with information relevant to his investiga- tion. Subsequently, the Independent Counsel served respondent with a subpoena calling for the production of 11 categories of documents before a grand jury in Little Rock, Arkansas. Respondent appeared before that jury, invoked his Fifth Amendment privilege against self- incrimination, and refused to state whether he had the documents. The prosecutor then produced an order obtained pursuant to 18 U. S. C. §6003(a) directing respondent to respond to the subpoena and granting him immunity to the extent allowed by law. Respon- dent produced 13,120 pages of documents and testified that those were all of the responsive documents in his control. The Independent Counsel used the documents' contents in an investigation that led to this indictment of respondent on tax and fraud charges. The District Court dismissed the indictment on the ground that the Independent Counsel's use of the subpoenaed documents violated 18 U. S. C. §6002- which provides for use and derivative-use immunity- be- cause all of the evidence he would offer against respondent at trial derived either directly or indirectly from the testimonial aspects of respondent's immunized act of producing the documents. In vacating and remanding, the Court of Appeals directed the District Court to determine the extent and detail of the Government's knowledge of re- spondent's financial affairs on the day the subpoena issued. If the Government could not demonstrate with reasonable particularity a prior awareness that the documents sought existed and were in re- spondent's possession, the indictment was tainted. Acknowledging that he could not satisfy the reasonable particularity standard, the 2 UNITED STATES v. HUBBELL Syllabus Independent Counsel entered into a conditional plea agreement pro- viding for dismissal of the indictment unless this Court's disposition of the case makes it reasonably likely that respondent's immunity would not pose a significant bar to his prosecution. Because the agreement also provides for the entry of a guilty plea and a sentence should this Court reverse, the case is not moot. Held: The indictment against respondent must be dismissed. Pp. 6­18. (a) The Fifth Amendment protects a person from being "compelled in any criminal case to be a witness against himself." The word "wit- ness" limits the relevant category of compelled incriminating com- munications to those that are "testimonial." In addition, a person such as respondent may be required to produce specific documents containing incriminating assertions of fact or belief because the crea- tion of those documents was not "compelled" within the meaning of the privilege. See Fisher v. United States, 425 U. S. 391. However, the act of producing subpoenaed documents may have a compelled testimonial aspect. That act, as well as a custodian's compelled tes- timony about whether he has produced everything demanded, may certainly communicate information about the documents' existence, custody, and authenticity. It is also well settled that compelled tes- timony communicating information that may lead to incriminating evidence is privileged even if the information itself is not inculpatory. Pp. 6­10. (b) Section 6002 is constitutional because the scope of the "use and derivative-use" immunity it provides is coextensive with the scope of the constitutional privilege against self-incrimination. Kastigar v. United States, 406 U. S. 441. When a person is prosecuted for mat- ters related to immunized testimony, the prosecution has an affirma- tive duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of that testimony. Id., at 460. This ensures that the grant of immunity leaves the witness and the Government in substantially the same position as if the witness had claimed his privilege in the grant's absence. The compelled testi- mony relevant here is not to be found in the contents of the docu- ments produced, but is the testimony inherent in the act of producing those documents. Pp. 10­13. (c) The fact that the Government does not intend to use the act of production in respondent's criminal trial leaves open the separate question whether it has already made "derivative use" of the testi- monial aspect of that act in obtaining the indictment and preparing for trial. It clearly has. It is apparent from the subpoena's text that the prosecutor needed respondent's assistance both to identify poten- tial sources of information and to produce those sources. It is unde- niable that providing a catalog of existing documents fitting within Cite as: 530 U. S. ____ (2000) 3 Syllabus any of the 11 broadly worded subpoena categories could provide a prosecutor with a lead to incriminating evidence or a link in the chain of evidence needed to prosecute. Indeed, that is what happened here: The documents sought by one grand jury to see if respondent had violated a plea agreement led to the return of an indictment by another grand jury for offenses apparently unrelated to that agree- ment. The testimonial aspect of respondent's act of production was the first step in a chain of evidence leading to this prosecution. Thus, the Court cannot accept the Government's submission that respon- dent's immunity did not preclude its derivative use of the produced documents because its possession of the documents was the fruit only of the simple physical act of production. In addition, the Government misreads Fisher v. United States, 425 U. S., at 411, and ignores United States v. Doe, 465 U. S. 605, in arguing that the communica- tive aspect of respondent's act of production is insufficiently testimo- nial to support a privilege claim because the existence and possession of ordinary business records is a "foregone conclusion." Unlike the circumstances in Fisher, the Government has shown no prior knowl- edge of either the existence or the whereabouts of the documents ul- timately produced here. In Doe, the Court found that the act of pro- ducing several broad categories of general business records would involve testimonial self-incrimination. Pp. 13­18. 167 F. 3d 552, affirmed. STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. REHNQUIST, C. J., filed a dissenting statement. Cite as: 530 U. S. ____ (2000) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 99­166 _________________ UNITED STATES, PETITIONER v. WEBSTER L. HUBBELL ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 5, 2000] JUSTICE STEVENS delivered the opinion of the Court. The two questions presented concern the scope of a witness' protection against compelled self-incrimination: (1) whether the Fifth Amendment privilege1 protects a witness from being compelled to disclose the existence of incriminating documents that the Government is unable to describe with reasonable particularity; and (2) if the witness produces such documents pursuant to a grant of immunity, whether 18 U. S. C. §6002 prevents the Gov- ernment from using them to prepare criminal charges against him.2 - - - - - - 1 "No person . . . shall be compelled in any criminal case to be a wi t- ness against himself." U. S. Const., Amdt. 5. 2 Section 6002 provides: "Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to- "(1) a court or grand jury of the United States, "(2) an agency of the United States, or "(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, "and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to 2 UNITED STATES v. HUBBELL Opinion of the Court I This proceeding arises out of the second prosecution of respondent, Webster Hubbell, commenced by the Ind e- pendent Counsel appointed in August 1994 to investigate possible violations of federal law relating to the Whitew a- ter Development Corporation. The first prosecution was terminated pursuant to a plea bargain. In December 1994, respondent pleaded guilty to charges of mail fraud and tax evasion arising out of his billing practices as a member of an Arkansas law firm from 1989 to 1992, and was sentenced to 21 months in prison. In the plea agre e- ment, respondent promised to provide the Independ- ent Counsel with "full, complete, accurate, and truthful information" about matters relating to the Whitewater investigation. The second prosecution resulted from the Independent Counsel's attempt to determine whether respondent had violated that promise. In October 1996, while respondent was incarcerated, the Independent Counsel served him with a subpoena duces tecum calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas. See Appendix, infra. On Novem- ber 19, he appeared before the grand jury and invoked his Fifth Amendment privilege against self-incrimination. In response to questioning by the prosecutor, respondent initially refused "to state whether there are documents within my possession, custody, or control responsive to the Subpoena." App. 62. Thereafter, the prosecutor produced an order, which had previously been obtained from the - - - - - - comply with the order on the basis of his privilege against self- incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." Cite as: 530 U. S. ____ (2000) 3 Opinion of the Court District Court pursuant to 18 U. S. C. §6003(a),3 directing him to respond to the subpoena and granting him imm u- nity "to the extent allowed by law."4 Respondent then produced 13,120 pages of documents and records and responded to a series of questions that established that those were all of the documents in his custody or control that were responsive to the commands in the subpoena, with the exception of a few documents he claimed were shielded by the attorney-client and attorney work-product privileges. The contents of the documents produced by respondent provided the Independent Counsel with the information that led to this second prosecution. On April 30, 1998, a grand jury in the District of Columbia returned a 10-count indictment charging respondent with various tax-related crimes and mail and wire fraud.5 The District Court dismissed the indictment relying, in part, on the ground that the Independent Counsel's use of the subpoenaed documents violated §6002 because all of the evidence he would offer against respondent at trial derived either directly or indirectly from the testimonial aspects of re- spondent's immunized act of producing those documents. 6 - - - - - - 3 Section 6003(a) authorizes a district court to issue an order requi r- ing an "individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self- incrimination." The effect of such an order is covered by §6002, quoted in n. 2, supra. 4 In re Grand Jury Proceedings, No. GJ­96­3 (ED Ark., Nov. 14, 1996), App. 60­61. 5 Several of the counts in the indictment also named three other d e- fendants. Those charges are not relevant because (a) they have been dismissed with prejudice, and (b) the Fifth Amendment privilege asserted by respondent would not, in any event, affect the charges against those other defendants. 6 As an independent basis for dismissal, the District Court also co n- cluded that the Independent Counsel had exceeded his jurisdiction under the Ethics in Government Act of 1978, as amended by the Ind e- 4 UNITED STATES v. HUBBELL Opinion of the Court 11 F. Supp. 2d 25, 33­37 (DDC 1998). Noting that the Independent Counsel had admitted that he was not inve s- tigating tax-related issues when he issued the subpoena, and that he had " `learned about the unreported income and other crimes from studying the records' contents,' " the District Court characterized the subpoena as "the quintes- sential fishing expedition." Id., at 37. The Court of Appeals vacated the judgment and r e- manded for further proceedings. 167 F. 3d 552 (CADC 1999). The majority concluded that the District Court had incorrectly relied on the fact that the Independent Counsel did not have prior knowledge of the contents of the su b- poenaed documents. The question the District Court should have addressed was the extent of the Government's independent knowledge of the documents' existence and authenticity, and of respondent's possession or control of them. It explained: "On remand, the district court should hold a hearing in which it seeks to establish the extent and detail of the [G]overnment's knowledge of Hubbell's financial affairs (or of the paperwork documenting it) on the day the subpoena issued. It is only then that the court will be in a position to assess the testimonial value of Hubbell's response to the subpoena. Should the Independent Counsel prove capable of demo n- strating with reasonable particularity a prior awar e- ness that the exhaustive litany of documents sought in the subpoena existed and were in Hubbell's posse s- sion, then the wide distance evidently traveled from the subpoena to the substantive allegations contained in the indictment would be based upon