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Tl!E FlFYf PBTVl:LEG§ AAAZN"ST S LF

lJNI:r"ED STATES DISTRICT COURT ?OR THE DISTRICT OF COLOMBIA

' Judicial Watch, <nc .. '

' Plaintiff. '

' ' C.A. No. 95-0l:l3 {RCL) (JM,-)

' United States Depa trnent of '

commerce. ' '

Def nd2nt. '

NON-FART1l DEPONEN"r'S MEMORANDUM IN SlJ>'PORT OF ASS !<TION

0>' >lT LNCRIMINATION

Pursuant to the request of l1ag'1strate Judge Facciola,

non-party deponent John Huac.g respectfully s\Obmits this

Memorandu 1n support of his constit tional right to in""ke the

did ot waive his Fifth Amendment rights in a prior d osition,

'.i.'here£ore, this Court should perm10 Mr. h"uan9 to invoke t Fi=th

Joiul Hllang is a non-pa;;ty witness

11av>ng oe°""'d as Deputy Asoist nt seoretary

ll <>n<>1'.iC Policy unde" termer Secretary

1."he distri ct c0>urt authori ed JUdicial

in this matter,

fc Inte:<r.a ional

of <;0>moerc e Roi"'. Br<>wc ..

Watch to take Huans's

deposit on in O<otober 1996, and he was deposed on October 2>,

1996. 1./ Di.ssatiSfied with Huang'• answe,,s, Judicial wa ch

sought to ecure additional te•timony from Huang by Tn'3 an of a

motion filed Jun<> 4, 1997. l<hile that m<>t1on was pend!.ng,

variouo new facts and Allegations conce=">i.ng the Depart;IT,ent' responses to plaintiff's FOrA reg>oeat• aurfac d, and ir. light <>f

those developments, both pl,,intiff and the district court have

ccuaed F.uang of various acts tfiat could su:t>ject him to criminal

making perjur1ou.s staoements.

The dis trict court grant ed Judicial Watch's mot i.on to

secure a&lCtion l testi,nony on December 22, l S8 -- without

op position from the oepartment of Coromerce -- but the court n<>t•tl

tfiat ""plaintit;f' • request to r depose !!u°'"'J has not been oerved

:i,.J On Oci;ober 3i, 1996, th@ d istr!.<0t court ordered <;h«t l·!r. HUahg's oral ciepos1tion be ce=inated, a .d that furtb r eX21mi.na,ion b in he orm o" wri.t,en questions. Thac order w s vacated by the court'• - prCl O, 1•99 order.

- ' -

1'lftcl!...ll,

,-,,,dicial Watqh r,

sli-p op. at 18 n.4.

>!r. RUang thus n<.d "-"'opportunity prior to the court's ruling to

present his objections to the ccus tions that were beicng made

about him or to the attemp to re-open his dcpoBition. 7he

discr ct court alyzed the wotion s a reqctest to take a second

depositJ.on o'." Mr. RUang, 90\'erned by ed. R. Civ. P. :io (a) ( 2 I and

20 (bJ (: ) . Th.e court de<;erm>ned th t "(b] ecause

• * * Will b o limited scope and conducted

i the presence of a Magistrate Judge, Wl;tatev r burden [is]

imposed on the deponent[] will not outweigh t;,., benefits of tr.e

new testimony." I>\. a 20.

Adopting Judicial watch' a one-aidt;,d -- and unsuP<'o ted

recitaCion of Mr. Huang•s previouo tesci,,,ony, the court's

d cision was heavily influenced by its View that r. Huang had

earlier p:;-ovided "What can at P,.so i;.,, "ermed ""est>onable

tBstimony.• slip op. at 11.

13 ldecidJ.ng on b._sis ol; plai.tiff's rapr eentations that "lit le

of [Huang"s) deposition testimony is particularlv c edible"I

Thus, i n grant>ng addirional discovery a s to HcLO.ng and oc_e othe"

witru>so, the court o se1'"Ved th t "[h)ad the dep nents been

forthrighc J.n t _eir i itial d position$ (and it app ars that they

wera not], a second deposition may not be nec ssa::y, but nder

."1lldic1a' !!,,slip anew. Wo.tch op. at 20.

Mr. Huo.ng moved for reconsideration on Janu ry 7, lS99,

diatriot court granted is motion. he court, .owaver, denied

the reJ.ief n equested and determined tba 1t •1ould "perm:ct che

deposi.tion of Mr. Huang to continue as scl1eduled by tl;e

Magi trate Judge" on April 13, 1999.

instances," it "decline[d] to substantially revise its

credibility findings" adverse to Mr. Huans. Mem. at 2-3.

contrary t o its e'1rlier stacements, the dis<:l'."icc court new stated

th t those credibili ¥ determir.a::ions "l-.a·.ce little effecc on the

court's decision to permit the plaintiff to resume his

<leposition." llj_. at ; ,

requiric.g examinati.on by Written questions and permitted cral

exami tion of Mr. Huang. gJ

;! Tl'.e cl<:rified that. · hile its ea,,-li<or opinions hadcourt "some · at inarcfully referred to t.'>e continued deposition o± Mr. :!uang as a 'redeposicion, • '• 9lai,-,tiff was requesting -- and was gi·anted -- tfl@ opport nity co con<:inue an earli.,r deposition. M e m . at 4-5-

A th Aprill>, 1999, deposition, Mr. Huang, after

objections prev ously rai"ed, i voked th Fifth A""'ndment in

cou:c_sel for the plaintiff. On each occasion, he stated'

On th<! advice of counsel, I exerc1s my right under the constitution of tl1e Unit d states to refuse to answer on the ground th t my answer may tend to nc iouna10e me and, tc the

tent the question is related to ny sta @ment I h2ve mo.de previously that is found to hav been incrirni=ting, answering the qu stion places me in danger of further criminatior..

S _ortly into the deposition and based upon the then-

existing record, the Magistrate Judge then reque ted briefs,

specifically seeki -g positior.s on c1-10 issues' ( ) whether,

m<>rely by being deposed previously in this matter over two and a

half years go, Mr. Ruang waived his constitutional r;ghts under

the Fifth Arr.endrrt<>nt, nd (2) the nature and e tenc of tb.e

authcrity of the Mag>strate Ju e to ev luate arui adjudge the

propri ty Of Mr. Huang's reliance on th<> Fifth i>mendm nt on a

1/ Although the Magistrate Judge only requested memoranda addressing issu<>s related- to the Fifth Amendment pl:"ivilege, >Ir. Hu ng speCLf!.cally prese.-Ves all prior objectio11s to his redeposition, including h;s conte Oion hat ohe dist ict cou t no longer has jurisdiction over th;\s matter. :rh.e Commerce

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Rcg<>•s U"ited

co>irse

"-"--" United States Wj)cox,

Rogers Perkins

privil ge against se10-incriminaticn.

Ralying on v. Scates, 340 U.S. 367, 373

ll Sl), :;./for the p=position that "(1l" [a] wJ.tn ss himself

el•cts to waive his privilege • * * and discloses his criminal

conru.ctions, he is r_ot pe:rn.itt"d to stop, but rn\.\st go on and n>a e

a l'.ull <:'1sclos1're." tl°'-'< defend£nts argued befor<e tb-" Ci>:cuitD.C.

that tha wit ne ss had w ived the privilege. Se 133 ;.3d at:

2S. (quotation orru ted). Despite the fact that the witness had

obviously gi,,..n i=riminating testimony, the Cour<: d<>terrr,1ned

that he had '""" waived the privilege. As the Court made clear.

"[t]he P"ivilege remains as to matters tha' would

sulojeco ohe witness tc a •real danger' of further crimination."

lii- (quotation omit<:ed) (emphasis added) Eecause the witness

ever disclosed at trial that the testimony he was offering was

false. ac.y furth x- cesti.11'.ony 10ould call into question thethat

Thus, his p""vious "testimony [could not) be

const>o"Lted a.s a waiveoc of the priv•l ge he l ter invoked." !!;\;

v. 450 F.2d 1131, 1141, (St;h Cir.

/ Although JUd;cial Watcb cite >n its brief, it neglected Oc bring to the atte t,on of tbis Court.

ert. deni d,

l 711 {"!\.nd so wh<!n· a witness is aoked a ques tion tl--'<t could sr_ow

that he h d al::"eady committe d · a crime, ' perjury at a prior

trial, his refu£al to answer is peX'!Oissible almost by the

He is still criminally

accO"=-cable iooc his perjury, but b_e ""'Y .oe be co:ovicted 0>0t of

his own mouth over his claim of 9rivilege."I, 405

US. 917 {1972).

At Mr. Huan g • s April lS, l9 9 deposition, the first

substantive question directed to him required him to comment on

the veracity o" th<! t®stimany he p'ov ded at his prior

depo.sition. As noted, zhe district court

adop d Judicial Watch"• unfounded charaGceriza ions of Mr.

Huang's prior testimony and has es•entially branded HcM.'1g a l ar.

"-• a result , Mr. Hua g feared rhat -- should he re at tt'U hful

responses he gave at his prior depcsition. or give truthful

r sponses to n w incru>ries - - he would be refle ively di believed

and he district court might well refe the matter to the U.S.

Attorney for a periucy investigation. And Mr. Huang's fear wae

entirely legitimate.

hesCoaoion i retsrring m tters to the U.S. Attornl!!y fer such

investis<>tiOM whBn it has suspected witn sses of perjury. .,,hus.

any testimony corrcerni g the veracity of Mr. Huang's prior

unless

lif;Garthv fil:ndstejn,

U))Lted Sca es l< cClaske_y,

State

dgnjed,

testionony posed "a 'real Q,,nger' of f rther criminat1on." Like

right against self-inc=irnJ.nation.

More fundamentally. it is w ll s ttled tb.at a witness

who test fies under oath does not waive his Fifth Amendment rOght

against self,ineri•o naoJ.o:n he adm.i.ts an inc,.1nin..ting

fact. . . v. 0!62 U.S. 355, >59 11923)

(" {S] inca oe find tha.; ""'-"" of the "'--""""'"'""" had been "h ch

volunta 1ly g1v.,n < amounted to an adm1ss on oz: showing cf

g ilt, we a"e 0£ the opinion that [the witn ss] was entitled co

decline to answer further queseions when to do so might tend to

incriminate him."); v_ 6B2 F .2d 46S,

478 r.. 18 (4th Cir. 982) ("The :act that [the Witn..ss] teoti!ied

at the V"Oir dire h aring do • not, by >tself, Ol€!an that she

only it l'r1or testimony r aJ. d i'1 rim1!'.at 1ng facts. ") ; tl'.e

United v. Jame , 009 P.2d J , 5 (2d Cir. 1979), cert_

4 5 U.S. 905 (l980) {no waiver of privilege where witness

did not disclose anything that might be c._""-r cterized as

1ncr1rninating) A witness who has not disclos ny

in<0:cim1nat1n9 testimony may "stop short [l in his testimony

M Cartb.\o,

see

criminal activity.

whenever ie may fairly te<ld to incriminate him." 202

U.S. at 35S. Mr. Huang did just that.

At his o toher 29 1996 OeposiCion, Huang was que.stioneC

about " n<.>m.ber of subjects beyond the district coe>rt' s intended

scope of the. deposition, Oct. 2S, 1996 Order at>, including

whethe:c he had engaged in fundraising after leaving t"_e

Department o:O Corr,me;:cce. HUang responded candidly to these

questio""; none of his responses could implicate him n any

Not aurpriSiP_gly, Judicial Watch =a ls to

specifically ide"t fy =earlier testiffiony tl1at contained """'

incriminating statement. The predicate for the waiver argci--nenc

on whicn JUdicial Watch r lies is therefore ab en ­

AS discussed, since Mr. H""ng's octob r 2 . l 96

deposit on. certai facts and allegations have surfac d that have

caused beth plai tiff and the d>strict court to ccuue Mr. Huang

of -•a>oioUs actions that could well subject him to crimi""l

proaeoution. When quastioned at his April 13, 1999 deposition,

therefore, Huang asserted his privilege ag inat self­

•ncriminaoion "nenever t.e belie<red that his answe;;s mig .t t t'.d "o

incr>min2te hirn -- 2 possibili y that was articul rly """'ifest

i . l2ght of the inte;;V ning v.,nts and che conclc: ions,

• lO •

United

�ssert g

eonducc . Because Huang has never waived his P1fth Am@ _ctment

privilege, he was well within his rights oo asser it. If this

C°"rt directs Mr. h"\lang to te stify, he will be re<J;"ired to

e- ercise C.is con•titutio al right to once ag in invoke his

priv1lego against el -incrirninat1on. Should this Court

thereafter hold Mr. h-U&ng i contempt, Mr. Huang will be forced

to bring this matter before the 4"'1ted states court of Appeal•

Oor the D.C. C1r<: it, whicn will then be permitted o cons,der

the full e'°'tGnt of Ml;'. "uan;:i's jurisdicticnal <L'ld const:Ctution«l

obJ Ctions.

None of the cas"s on whi.ch UUdicial 'i!»tch relies

suggests otherwise. In states v. White, e46 F. 2 d 67S, 690

(llth Cir. 1 08), the Eleventh Circuit held that t ..e district

coul;'t erred i n concluding that witnesses who .ad provided what

w s obviously incriminating t sti ony at their depositions had

2<lequat ly ;;>rese °""'d their Fifth Atnend=P.t rights oy scipulat1ng

in their depositions that objections based on the Fifth A't'lendnent

privilege could be made at t ial. Here, by contra$t, Mr. Hll2ng

actually his FCfth Amendment privileg at bi$ de ooition

when ho believed t!>at his responses might be incriminating. .nd

"he o her two cases relied On by Judicial Watch in fact reiterate

- ll -

Roger§ ;rnjted Sj:ates,

BRC

fapt.

Rogers United Stotes,

Sash2gen Un1ted

Ame.."'1.roenC privilege unless he admit$ an incriminating fact- See

v. 340 U.S. 367, J7> (1951) ("(W)her<e

rimi""'-ting fact• have been voluntarily revealed, tll.e Privilege

cannot; Joe inv-<>ked to avo d disclosure of the d.etaila."I; "· Parkersl>uro- wi e le , 156 F.R.D. 529, 536 (D.D.C. 1994) ("The

additional r qu1rement for a valid waiver of th privLleg i

that [the witness's] initial testimony • ' * must have een

incr>-m nating. ") .

Even h d Mr_ Huang d scl<> ed something 1ncriminat1 g at

his October 2 , 1996 deposi ion, he was still entitled to in;-okc

the Fifth Amendroen at hia -Fril 13 lSS9, ds""s tion. An

admio31on of an incriminati"S" face at most ·naives t"-e privilege

as to details surrounding that James, 60 F.2d at 45

l"[W]here criminat1ng factS ha been voluntarily re,,.,aled, the

priv£lege cannot be i voked to avoid disclosure of the details.")

lqUotci g v_ :i O U.S. 367, 373 11 511):

v. States, 283 '- d 345, 352 {9th Cir. 1960)

l"'[i'.]dtoission of a c>:imi:iating fact ""'-Y waivs the p iv1le9e as to

details Cf that fact, so lo'1g as they do not furthor

i.ncriminate."). TC.e Natch to elicit attest,mony .Judioial sought

Huang's April 13, 1999 Ceposition did not pertain co ar:y

"detuils" about th f cto to '"hi h HUang had testified at his

- l:J -

Stores Tho nr.on,

Tlp11,eg States

that it seeks details aurrounding any prev ously dis losed

i crintinating fact-

p aintiff intends to o>ngage in a f<:,;-reach.ins -- ned:::J.y unbounded

search for information. />.ccordinsly, Mr. Euans was justified

in asse,,ting the p_riv1l ge respo.'lseswhenever he beJ. .. v d his

would have been incriminati"9-

II. MR. HUANG PROPER Y INVOKED EIS FIFTE AMENDMlWr

RIG!ITS UN!JEF- THE STANDARDS FOR EVAJ:,UATih'G O'llE

FI?l:H llM'lNDMRNT PHIVJ:LSG1' AGAINST SELF·

INClUMINATION.

Fifth Amend!r.ent should be sustained utlder tne cl.early-stated and

Cioocuit. have consistently used to judge assertiar.o of the

of 1''1 fif th A-,,endmec.t, "(i)t is tl-_e tri2l judge's >:ole and

responsibility to assess the plaus, 1lity of the cl ai m of the

fifth amend enc privilege." L"nited v. 733 F.2ci

Neve>:rheJ. ss, "the cou,;t t11ay not

fo>:ce the Witness to pocove ch<>t he w1ll 1.!.'. incriminate "

himsel by tesoimcc,y." v. Reese, 56l F.2d S . 900

- 13 -

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In l!o fm;on. for

341 U.S. a t 486-87); v. Hgga,,, 3?S U.S. l, ll-12

ll 6•1t v. ;.�ilibell. :!67 F.30. 552, 582 (D.C. Cir.

1999) (relying on as the law of this Circuit). In fac<:,

the trial Judge can reject the invoc tion of the privilege o ly

if it i• "nerfectly clear, f;;om a caref·il cons1<>eooati= of all

the circumstances in the cese, that the wit nooss ;s mistaken, and

that the answ r!s] cannot possibly hQve such tendency to

i01c iminate." 3 1 u-.s. at 488 lquOtaticn omitted)

ll..s is readily apparent, " [tJ his ia not an o ..e.rous

burden." United v . 129 F-3d 226, 229 (1st Ci.r.

l997)

privilege agaOnst self-incr;mination as long as ther is

reasonable chartC that the 'nterr<>gation cculd be incriminat1ng

662 F . 2 d at S83.

example, the Court held that eve seemingly innccent \I'-'est ono

c= be >ncriminat;.ing ,__..,light of the totality of the

circumstaru:es of the case. )41 U.S. at 4SB (finding that

ostensibly ..ar<0le•s \I'-'estion., concerning the location of a

wit01ess "co<ild easily have re\I'-'ired a.-i.swe,,-s cb.at woulC foc9e

links 1 a ch in of acts imperili g peOi01oner wic convicOion

of a federal rime" I .

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><o=anroth, !'offmsr;I

J)'dicial 1,'atcb. rnc

U--Uited Dcp't Commette,

nothing

tha court does not need to inquir further as "o tha validity of

tll.e assertion of the pr1v1l e, if it is evident from the

implications of a question, in the sett1r.g in which

i t is as d. that a r oponsive answer might be da-"Sferous o the

'ditness becauoe a..'1 injurious disclosure could reo,,lt."

7la F.2d 161, 167 (lith Cir. l a31 {citing

ln this case, M:c. Huang's aose t;on O the privileg

S2'tis{ies these ler.ient standards with eaoe. Relyir.g entirely on

Pla>ntiff's rcpresentatiar>-S, the d".etrict court has already

ind>cated tl'.at it believes that l r. !! a."'" provided "q estionable

testimony" at his CctoPer 1996 depos tion,

v_ .•tates of No. 5-133, slip op. at 11

ID.D.C- Dec. 2:l. l g8). and tlrat "little of (ID.:a..-,.g'5] deposition

1.<;!,. at l3- Given these

findings, there is M . Huac_g can poseibly say at a

testimony, the court may well refer him Eo prosecutio,, for

9erju y or: the basis that "little" of :1ig t<>stirnony is

"credible." 14 Alt.ernatively, ;_f 11e c angeo hie testirr.ony, c:oe

cou and/or plaintiff are al""'st cer ain to accuse him of lying

The "peculiuri ies" of this case thus nsu e th t

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against him_"). Accordingly. "a careful ccmsideration o all th

circumstances in the case" de"10TIBtrates tr""-t M"- HUang 1s

entit led to invo e the protections of the Fif -;;h Amendment

pr1v1lege ag-ainst self-1ncr minat1on, at tl'.e v ry least, it is

ce tai.nly "perfectly clear • * * Ohat the wit,,..ss is

mist,.ken, and that; [his] 2'1Sh"e<" [s] cennot possibly have sucb.

tendency to inc"imi,,,.te." 341 tJ.S. at 4B3 {quotation

omitted). Indeed, to date both the United States Congress and

the rlepa,,tir.ent of .Justice""-"" re<::ognized and honored Mr. Huang's

refuse constituti.onright Co to testify under the oO the u. i.tcd

States.

CONCLUSION

For the fo egoing ""aeon•, this Court should

permit Mr. Huang t o invo the Fifth hnendmen privile9e aga1n$t

self - r.crimination·.

- ia -

cohb -cf &

Counsel for "''ang

Reopeetfully submitted,

'l:y J0hn Keeney, ;; .

HARTSON L.L.P. Columbia Square 555 Th rt@encll Stre<'-t, N.>I. 'i!ashins on, D.C. 20004

(202) 637-5750

Daoed' April l , 199 Joh_"

- 19 -

J

CBltTIFICATE OF SERVICE

I hereby certify tha on this 14th day o! April, l9i9,

a copy of Joh-'> Huang's Memorandum in support of Eis Asseo:t.\on o!:

the Fiftl> Amendment Privilege Against Self-Incrimination ·as

delivered by hand to:

r;<y Klayman, Esq. JUdicial Watch, rnc. 501 School Stre t, S.W. Suite 7'15 Wsshington, D.C. 2002

>!a.rina Utgoff Braswell, Ssq. Assistant Utlited States Attorney Judiciary center Building 555 Fourth St:ceet, N.W. "-" """ 10-832

Washington, O.C. 20001

John c. Keeney, Jr' ·