Plaintiff, Judicial Watch, Inc., by counsel, respectfully submits this memorandum of points and authorities regarding non-party witness John Huang’s attempted invocation of the Fifth Amendment privilege against self-incrimination at the continuation of his deposition on Tuesday, April 13, 1999.

MEMORANDUM OF LAW

Despite the Court’s admonition in its April 9, 1999 Memorandum Opinion that "the memory of [non-party witness John Huang’s] October 1996 shenanigans has not faded, and a repeat performance will not be tolerated," the saga of Plaintiff’s efforts to obtain testimony from Huang continues. After the Court held that Huang’s continued deposition must go forward, Huang filed a last-minute motion to quash rather than simply appear and testify. Incredibly, Huang claimed in this motion that he still had not been served and that this case was on appeal, despite the fact that there had been no certification of an interlocutory appeal under Fed.R.Civ.P. 54(b) or 28 U.S.C. § 1292(b). Nowhere in his prior motion for reconsideration or in this last-minute motion did Huang indicate that he was even thinking about invoking the Fifth Amendment privilege against self-incrimination. Instead, he forced Plaintiff and the Court to go to the considerable expense of preparing for and appearing at the April 13, 1999 deposition, only to have Huang appear in Chambers to make an improper blanket assertion of the Fifth Amendment right against self-incrimination.

Specifically, after the Court summarily disposed of the baseless "arguments" raised in Huang’s last-minute filing at the start of the deposition, Huang attempted to invoke the Fifth Amendment privilege against self-incrimination in response to Plaintiff’s very first substantive question. Plaintiff merely asked Huang whether he had testified truthfully in all respects during his first day of testimony on October 29, 1996. See Transcript of April 13, 1999 Deposition at 16. Huang invoked the Fifth Amendment and refused to respond. Plaintiff next asked Huang whether he had previously responded to a subpoena in attending his October 29, 1996 deposition. Id. at 20. Huang again invoked the Fifth Amendment and refused to respond. Huang’s counsel then intoned that his client "intends not to answer any substantive questions and assert his Constitutional privilege which applies to Asian-Americans as well as all Americans." Id. at 20 (emphasis added).

Plaintiff next asked Huang whether he was producing documents for the first time at the continued deposition. Id. at 21. Although this was clearly a non-substantive question, Huang nevertheless invoked the Fifth Amendment and refused to respond again. Plaintiff then asked Huang where he found documents his counsel previously indicated were being produced, and whether the documents were in response to the subpoena which required his attendance on October 29, 1996. Id. at 22. In response to both of these non-substantive questions, Huang again invoked the Fifth Amendment privilege and refused to respond.

It thus became clear that Huang was asserting a blanket privilege against self-incrimination in order to frustrate Plaintiff’s efforts to obtain his testimony. This baseless and untenable attempted invocation must fail. Huang must, respectfully, be required to testify and he and his counsel should be held accountable for this latest discovery abuse.

In SEC v. Parkersburg Wireless Limited Liability Co., 156 F.R.D. 529 (D.D.C. 1994), the Court set forth the law governing the Fifth Amendment privilege against self-incrimination. That decision makes clear that "[i]t is left for the Court to determine the propriety of the assertion of the Fifth Amendment privilege," and the burden is on the claimant to prove that the danger of self incrimination exists. Id. at 535. In order to meet that burden, a witness must demonstrate that he reasonably believes that the sought-after testimony would "furnish a link in the chain of evidence needed to prosecute" him for a crime. Hoffman v. United States, 341 U.S. 479, 486 (1951). A "witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself." Id.

In assessing the claimed privilege, "the Court must ‘make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well founded.’" Parkersburg Wireless, 156 F.R.D. at 535, quoting, United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). "As to each question to which a claim of privilege is direct, the court must determine whether the answer to that particular question would subject the witness to a ‘real danger’ of further . . . crimination." Rogers v. United States, 340 U.S. 367, 374 (1951).

Plaintiff believes -- although it is not possible to tell from his blanket attempt to assert the Fifth Amendment privilege -- that there are two (2) allegations underlying Huang’s attempted invocation of the privilege: (1) that truthful testimony by Huang at his continued deposition might place him at risk of criminal prosecution for perjury arising from false testimony at his prior deposition; and (2) that any further testimony might subject him criminal prosecution based upon the substance of the underlying testimony itself. Neither alleged bases supports application of the privilege.

A. Perjury Charges.

Huang has not met his burden of demonstrating that his continued testimony could "furnish a link in the chain of evidence needed to prosecute" him for perjury at his deposition. Hoffman, 341 U.S. at 486. Rather than providing any detailed basis from which the Court could assess Huang’s claim of privilege, Huang simply made the bald, conclusory statement that:

Transcript at 16, 20-24.

The courts have previously rejected such boilerplate assertions based on alleged concern that future, truthful testimony will put a witness at risk of prosecution for perjury by reason of past, false testimony. In In re Morganroth, 718 F.2d 161 (6th Cir. 1983), for example, the court was confronted with a witness who refused to answer questions at a deposition on the grounds that his proposed truthful testimony might provide evidence that he had perjured himself in earlier proceedings. The witness thus answered each deposition question with the conclusory statement: "I refuse to answer on the ground that the answer might tend to incriminate me." Id. at 166-67. The Court rejected the claimed privilege:

Id. at 167. "[U]nless some additional showing beyond the mere assertion of the privilege is required," the Court continued, "no witness would ever have to testify twice regarding the same subject matter because the possibility of perjury would always exist in theory." Id. at 170. Because Huang’s alleged invocation of the Fifth Amendment privilege was nothing more than a nearly identical, boilerplate incantation, he has failed to meet his burden of demonstrating that the privilege even applies.

Moreover, Huang simply cannot demonstrate that he reasonably believes his continued testimony could put him at risk of prosecution for perjury because he previously represented to this Court that his prior testimony was truthful. After the Court issued its December 22, 1998 Memorandum Opinions and Orders, which contained credibility findings about Huang’s October 29, 1996 testimony, Huang moved for reconsideration and asked that the Court’s credibility determinations be vacated. In his motion for reconsideration, Huang vehemently claimed that the Court had been "led into error" by Plaintiff, who allegedly "mischaracterized" his previous testimony, provided only "snippets" of that testimony, and "wrongly paraphrased" other portions. However, it is entirely inconsistent, if not frivolous, for Huang to claim, on the one hand, that the Court’s credibility findings should be vacated because his prior testimony was truthful, only to now claim, on the other hand, that he may be subject to prosecution for perjury if he is forced to testify truthfully. If Huang’s motion for reconsideration is to be believed, then he has no good faith basis for asserting a Fifth Amendment privilege against self-incrimination. If Huang’s assertion of the Fifth Amendment privilege is to be believed, then he and his counsel had no good faith basis for challenging the Court’s credibility determinations in his motion for reconsideration. Either way, Huang and his counsel have apparently violated Fed.R.Civ.P. 11, Fed.R.Civ.P. 37 and/or 28 U.S.C. § 1927, among other relevant provisions governing court submissions and discovery.

In sum, any claim by a witness such as Huang that he will be at risk of criminal indictment for prior perjury if he is compelled to testify truthfully must, respectfully, be subject to a very careful and very thorough inquiry. In order to discern whether there is a "sound basis for the witness’ reasonable fear of prosecution," the Court and Plaintiff’s counsel must be able to conduct a voir dire of Huang, on a question-by-question basis, about what particular aspect(s) of his prior testimony he now claims may subject him to risk of prosecution for perjury. See, e.g., In re Morganthau, 718 F.2d at 167. Otherwise, and as the Court in In re Morganroth found, witnesses such as Huang who seek to avoid further testimony can effectively thwart legitimate questioning by crying perjury. That cannot be, and is not, the law.

Nonetheless, even assuming Huang has a non-frivolous argument (which he does not), there are obviously questions Huang can be asked that do not implicate any concerns about prosecution for perjury. First of all, subjects he previously testified about truthfully cannot, by definition, be the subject of criminal prosecution for perjury. In addition, subjects he did not testify about previously also cannot, by definition, subject Huang to criminal prosecution for perjury. There are numerous examples of the latter. For example, since Huang’s prior testimony, Plaintiff has obtained additional information about which Huang has not previously testified, not the least of which is Huang’s desk calendars. As the Court found in its April 9, 1999 Memorandum Opinion, "[t]his calendar was not produced to plaintiff at the October 1996 deposition, and questions concerning it may reasonably be expected to lead to admissible evidence which plaintiff has had no previous adequate opportunity to explore." April 9, 1999 Memorandum Opinion at 3. Other questions such as what documents Huang might be producing, obviously do not implicate any perjury concerns, or any other concerns about self-incrimination. Thus, there are substantial areas about which Huang can be questioned that do not even implicate his alleged invocation of the Fifth Amendment privilege.

B. Other Criminal Charges.

With respect to any allegation that Huang might, by reason of further testimony, subject himself to criminal prosecution based upon the substance of the testimony itself, Huang has again failed to meet his burden of proof. In 1997, Huang admitted to Congress, in response to inquiries about whether he would testify before the Senate Governmental Affairs Committee, that he had no concern about being prosecuted criminally:

See Letter from Ty Cobb, Esq., to the Hon. John Glenn, dated July 8, 1997, attached as Exhibit 1 (emphasis added).

In addition, Huang has since been granted immunity from prosecution by the Independent Counsel Kenneth Starr. Although Plaintiff does not know the precise grant of immunity that Huang was offered, the Court has ordered him to submit documents concerning this grant of community ex parte and under seal, any grant of immunity obviously substantially lessens any concern, however disingenuous, about being subject to criminal prosecution. Thus, based on Huang’s own admission to Congress and his subsequent grant of immunity, he simply cannot now claim that he reasonably believes his testimony could "furnish a link in the chain of evidence needed to prosecute" him for a crime or subject him to any "real danger" of self-incrimination. See Hoffman, 341 U.S. at 486; Rogers, 340 U.S. at 374.

Moreover, even accepting Huang’s non-meritorious legal argument, there are obviously areas of testimony Huang can provide that do not incriminate him in any way. Huang can, for example, obviously testify about the conduct of others. Testimony about his observations of other persons activities clearly cannot subject Huang to criminal prosecution. Production of documents is yet another example.

C. Huang Has Waived Any Fifth Amendment Privilege.

Finally, Huang has waived any Fifth Amendment privilege he may have been able to assert. In contrast to United States v. Perkins, 138 F.3d 421 (D.C. Cir. 1998), which is relied upon by Huang and which concerned whether a witness had waived his right to invoke the Fifth Amendment privilege in a post-trial proceeding by reason of his allegedly perjurious testimony in a prior criminal trial, this deposition is merely the continuation of Huang’s October 29, 1996 deposition. With counsel present, Huang previously answered questions about numerous subjects without invoking any Fifth Amendment claims. Consequently, he has waived any right to assert the Fifth Amendment privilege about these subjects because "[d]isclosure of a fact waives the privilege as to details." Roger, 340 U.S. at 373. As the Supreme Court declared further in Rogers:

340 U.S. at 374 n.16, citing, 8 Wigmore, Evidence, § 2276 (1940); see also Ellis v United States, 416 F.2d 791, 805 (D.C. Cir. 1969). "The Fifth Amendment cannot be used after later rumination as a sword to sever incriminating statements which were voluntarily made at the time of the deposition." Parkersburg Wireless, 156 F.R.D. at 536. "A civil deponent cannot choose to answer questions with the expectation of later asserting the Fifth Amendment." U.S. v. White, 846 F.2d 678, 690 (11th Cir. 1988). A Fifth Amendment objection "must be set forth in a timely manner; otherwise, the Fifth Amendment privilege can be waived." SEC v. College Bound, Inc., 849 F. Supp. 65, 67 (D.D.C. 1994) (Lamberth, J.).

Huang cannot claim that his waiver of any Fifth Amendment privilege was not knowing and voluntary. Huang has been represented in this matter by "high-powered," Washington DC counsel. Surely, counsel would not have allowed him to testify previously without discussing with him the Fifth Amendment implications of his testimony.

To answer the questions posed by the Court on April 13, 1999, Huang cannot avoid answering Plaintiff’s questions simply by invoking the Fifth Amendment privilege against self-incrimination. Hoffman, 341 U.S. at 486. Rather, the Court must, respectfully, assess the claimed privilege by making a "particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well founded." Parkersburg Wireless, 156 F.R.D. at 535. The Court must determine, as to each question to which a claim of privilege is directed, "whether the answer to that particular question would subject the witness to a ‘real danger’ of . . . crimination." Rogers, 340 U.S. at 374.

However, Plaintiff respectfully submits that Huang’s attempt to invoke the Fifth Amendment privilege -- which fell far short of the burden imposed on him to satisfy the privilege -- is simply yet another attempt to frustrate Plaintiff’s legitimate discovery and this Court’s process. Huang had ample opportunity to assert the privilege, or at least to advise Plaintiff and the Court in advance that he intended to try to invoke the privilege so that a framework could have been set up to address any such claim. Instead, after failing to raise the issue in his motion for reconsideration -- in which he asserted that his prior testimony was truthful and, as a result, cannot now claim that further testimony might subject him to risk of prosecution for perjury -- Huang failed to raise it again in his twelfth-hour motion to quash. Clearly, the manner and lack of procedural and substantive bases of Huang’s feeble attempt to invoke a blanket Fifth Amendment privilege against self-incrimination is nothing more than yet another one of the "shenanigans" the Court warned him against in its April 9, 1999 Memorandum Opinion. His Fifth Amendment claims must, respectfully, be rejected.

Respectfully submitted,

JUDICIAL WATCH, INC.

________________________

Larry Klayman, Esq.

DC Bar No. 334581

_________________________

Paul J. Orfanedes, Esq.

DC Bar No. 429716

___________________________

Brett Wood, Esq.

DC Bar No. 142299

_________________________

Deborah E. Berliner, Esq.

DC Bar No. 422238

Suite 725

501 School Street, S.W.

Washington, D.C. 20024

(202) 646-5160

Attorneys for Plaintiff

I hereby certify that on April 14, 1999 a true and correct copy of the foregoing PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES REGARDING JOHN HUANG’S ATTEMPTED INVOCATION OF FIFTH AMENDMENT PRIVILEGE was served by hand on the following:

Attorneys for Defendant U.S. Department of Commerce:

Assistant United States Attorney

Judiciary Center Building

Room 4237

555 Fourth Street, N.W.

Washington, DC 20001

Attorneys for Non-Party Witness John Huang:

John C. Keeney, Jr., Esq.

Ty Cobb, Esq.

HOGAN & HARTSON, L.L.P.

555 13th Street, N.W.

Washington, DC 20004-1109

__________________________

Paul J. Orfanedes