IMMUNIZING GRAND JURY WITNESSES
Even where a witness asserts a valid Fifth Amendment privilege, the prosecution may nevertheless seek to compel their testimony by granting the witness immunity.
Where a witness asserts his or her Fifth Amendment privilege, Title 18 U.S.C. §§ 6002 & 6003 provides for a grant of “use” as opposed to transactional immunity thereby compelling the witnesses’ testimony over any claim of Fifth Amendment privilege.
Under “transactional” immunity, prosecution of the witness would be precluded for any criminal conduct or transactions about which the witness gave testimony. See 10 U.S.C. § 2514 (repealed (1974)).
“Use” immunity, on the other hand, prohibits only the “use in any respect, either direct or indirect, of the compelled testimony”. And while the government has a “substantial” and heavy burden of showing it has made no such “use” of any compelled testimony, it is otherwise free to prosecute the witness. 18 U.S.C. § 6002.
Kastigar v. U.S., 406 U.S. 441, 461 (1972).
Zicarelli v. New Jersey Commission, 406 U.S. 472 (1972);
U.S. v. Dorman, 359 F. Supp. 684 (D.C. N.Y. 1973); reversed on other grounds by 491 F.2d 473;
U.S. v. Hampton, 775 F.2d 1479 (11th Cir. 1985) (holding that government failed to establish an independent source for each link in the investigative chain leading to indictment and therefore defendant was entitled to dismissal).
The continued viability of what had been described as “pocket immunity” or “informal immunity”, accomplished by informal agreement has been put in question.
U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984);
U.S. v. Kilpatrick, 594 F. Supp. 1324 (D. Colo. 1984); reversed by 821 F.2d 1456
U.S. v. Skalsky, 857 F.2d 172 (3d Cir. 1988) (stating an “informal immunity” agreement was not a grant of full use and derivative use testimony but merely agreement not to prosecute; breached by witness’ misleading testimony).
While Texas has no general statutory scheme for conferring immunity upon a witness, it has been held that only the prosecution and court have the authority to grant the judicially created creature:
State v. Huff, 491 S.W.2d 216, 221 (Tex.Civ.App.–Amarillo, 1973);
Tischmacker v. State, 176 S.W.2d 188 (Tex.Cr.App. 1946).
USE IMMUNITY STATUTE [28 U.S.C. § 6002] PROHIBITS USING COMPELLED TESTIMONY IN “ANY RESPECT”
Section 6002 “prohibits the prosecutorial authorities from using the compelled testimony in any respect” except a prosecution for perjury, giving false statement, or otherwise failing to comply with the compulsion order.
Kastigar v. U.S., 406 U.S. 441, 453 (1972);
U.S. v. Patrick, 542 F.2d 381 (7th Cir. 1976);
Goldberg v. U.S., 472 F.2d 513, 516 (2d Cir. 1973) (noting that the government’s “burden of showing that it is not using the compelled testimony (or any information directly or indirectly derived from such testimony or other information) in ‘any respect’ will be substantial”).
But see U.S. v. Crowson, 828 F.2d 1427 (9th Cir. 1987) (holding that the Government is not prevented from use of substantive immunized testimony through previous independent sources).
CAVEAT: Use immunity can be lost if the defendant will not cooperate.
U.S. v. Doe, 671 F. Supp. 205 (E.D.N.Y. 1987).
Cf. U.S. v. Henderson, 406 F. Supp. 417, 421-27 (D. Del. 1975).
CERTIFICATION OF EVIDENCE OBTAINED INDEPENDENTLY OF GRAND JURY TESTIMONY
Since section 6002’s “use-of-immunity” protects a witness against even direct “use” of any compelled testimony, including any evidence come at by exploitation of that compelled testimony, some courts have indicated the Government should be required to itemize and certify5 any, independent evidence the Government has compiled prior to compelling any testimony. This procedure will insure the integrity of such process and prevent exploitation of the compelled testimony in violation of 18 U.S.C. § 6002.
Goldberg v. U.S., 472 F.2d 513, 516 n.5 (2d Cir. 1973).
5In the alternative, a request might be made for such certification to be submitted to the Court in camera to be sealed and made a part of the record in order to afford a meaningful appellate review. See US v. Henderson, 406 F. Supp 417 (D. Del. 1975). The Court noted:
“[t]he government [has] submitted to the court an envelope containing copies of certain evidence of violations of federal law by Henderson. The government requested the court to receive and seal this envelope so as to preserve a record of its possession of this evidence prior to Henderson’s testimony…………………………………………………. ”
This prophylactic procedure was suggested in Note, Standards for Exclusion in Immunity Cases After Kastigar and Zicarelli, 82 YALE L.J. 171, 182 (1977) and endorsed in Goldberg v. US, 472 F.2d 513, 516 (1973).
See also Note, Standards for Exclusion in Immunity Cases after Kastigar and Zicarelli, 82 YALE L.J. 171 (1972); see also 86 HARV. L. REV. 187-89 (1972):
“[w]e would think that prosecutors, both in their own interest and in fairness to the defendant, would do well to consider the certification of evidence available prior to the compulsion of testimony.” Goldberg v. U.S., 472 F.2d 513 (2d Cir. 1973).
Courts have noted that “[i]f the government has any thought of one day prosecuting [a grand jury] witnesses, the requested certification [of presently existing evidence implicating the witnesses] would certainly aid it in establishing its burden of demonstrating that no use had been made” or derivative use was made of the compelled testimony”.
In re Grusse, 402 F. Supp. 1232, 1237 (D. Conn. 1975) (noting that the “government today elected to file, under seal, the evidence presently available against the [grand jury] witnesses”);
In re Weir, 377 F. Supp. 919, 924 (S.D. Cal. 1974).
Moreover, courts have indicated “that any future prosecution [of a grand jury witness who has given compelled testimony] is limited to the evidence so certified”.
In re Weir, 377 F. Supp. 919, 924 (S.D. Cal. 1974).
Even the “indirect use” of an immunized witness’ compelled grand jury testimony in obtaining an indictment, should warrant its dismissal.
U.S. v. McDaniel, 352 F. Supp. 585 (N.D. 1972), aff’d., 482 F.2d 305, 312 (8th Cir. 1973);
U.S. v. Dornau, 359 F. Supp. 584, 687 (S.D. N.Y. 1973), rev’d. on other grounds, 491 F.2d 473 (2nd Cir. 1973).
See also New Jersey v. Portash, 440 U.S. 450 (1979) (prohibiting the use of such compelled testimony even for impeachment).
Contra U.S. v. Henderson, 406 F. Supp. 417, 421-27 (D. Del. 1975).
GRAND JURY HEARING COMPELLED TESTIMONY SHOULD NOT THEREAFTER INDICT THE WITNESS
Accordingly, the prosecution should not seek an indictment of a witness before the same
grand jury that heard his or her compelled testimony,
U.S. v. Hinton, 543 F.2d 1002, 1011 (2d Cir. 1976);
Goldberg v. U.S., 474 F.2d 513, 516 n.5 (2d Cir. 1973);
given “consideration of the immunized testimony by that jury is a virtual certainty”,
U.S. v. Hinton, 543 F.2d 1002, 1008 (2nd Cir. 1976)
in violation of the mandate of Kastigar v. U.S., 406 U.S. 441 (1972).
To allow otherwise, violates a witness’ constitutionally protected rights to “due process” and “fundamental fairness” guaranteed under the Fifth Amendment. Furthermore, the Canons of Ethics would be contravened [A.B.A. Standards for Criminal Justice Relating to the Prosecution Function. Quality and Scope of Evidence before the Grand Juries, Section 3.6(d)].”
However, see U.S. v. Zielezinski, 740 F.2d 727 (9th Cir. 1984), where the Court held that such prohibition is not constitutionally mandated. Nonetheless, where an immunized witness has been indicted by the same grand jury before which (s)he testified, the Government has an affirmative duty to establish its independent source for the evidence upon which it claims the indictment rests.
US v. Zielezinski, 740 F.2d 727 (9th Cir. 1984).
The grant of immunity also expressly exempts perjury. It follows that courts have refused to apply the prohibition where the immunized testimony used by the grand jury is that which forms the basis for the indictment for perjury before the grand jury.
U.S. v. Pisani, 590 F. Supp. 1326 (S.D. N.Y. 1984).
See also U.S. v. Garrett, 797 F.2d 656 (8th Cir. 1986) (stating a Defendant’s challenge to indictment returned by grand jury against defendant who had testified under a grant of immunity before same grand jury was proper).
HEARING REQUIRED PRIOR TO ISSUANCE OF ORDER GRANTING IMMUNITY?
Some courts have required a hearing conducted by the court from which immunity has been sought prior to the grant of immunity.
In re Evans, 452 F.2d 1239 (D.C. Cir. 1971), cert. denied, 408 U.S. 930 (1972);
In re Vericker, 446 F.2d 244 (2d Cir. 1971);
U.S. v. DiMauro, 441 F.2d 428 (8th Cir. 1971);
In re Bart, 304 F.2d 631 (D.C. Cir. 1962);
In re Tierney, 465 F.2d 806 (5th Cir. 1972);
In re Grand Jury Investigation (Frank), 317 F. Supp. 792, 796 (E.D. Pa. 1970).
“[Tlhe witness is entitled to notice and must be given an opportunity to be heard before being compelled to testify.” In re Bart, 304 F.2d at 637.
Contra U.S. v. Weinberg, 439 F.2d 743 (9th Cir. 1971);
But see U.S. v. Alter, 482 F.2d 1016 (9th Cir. 1973) (holding where the Ninth Circuit more recently held that the notice provisions of FED. R. CRIM. PRO. Rule 6 must be followed in connection with contempt proceedings and by analogy to grant of immunity as well).
JUSTICE DEPARTMENT OFFICIAL MUST EXPRESSLY APPROVE GRANT OF IMMUNITY
Title 18 U.S.C. § 6002(b) expressly requires that approval for a grant of immunity be given by “the Attorney General, the Deputy Attorney General” or a “designated Assistant Attorney General”.
Under a similar requirement of the Federal Wiretap Statute [18 U.S.C. § 2516(1)], the Supreme Court in U.S. v. Giordano held that such power must be specifically delegated.
U.S. v. Giordano, 416 U.S. 505 (1974). But, how specific Congress must be is a different matter. Amendments to the wiretap statute since Giordano was decided have acknowledged the legitimacy of delegating the power to authorize wiretaps to nonpolitically accountable officials such as assistant attorneys general or deputy assistant attorneys general. U.S. v. Anderson, 39 F.3d 331, 340 (D.C. Cir. 1994), overruled on other grounds by Richardson v. United States, 526 U.S. 813, 816 (1999).
See U.S. v. Acon, 513 F.2d 513 (3d Cir. 1975).
“Here the matter of delegation is expressly addressed …and the power of the Attorney
General in this respect is specifically limited to delegating his authority to ‘any Assistant Attorney General’ Congress does not always contemplate that the duties assigned to the Attorney General may be freely read delegated….. [W]e think [the statute] fairly read, was intended to limit the power to authorize to the Attorney General himself “……………………………………………………………………………………………. “and to any Assistant Attorney General he might designate.” U.S. v. Giordano,416 U.S 505, 514 (1974).
Like the wiretap statute, the “matter of delegation is expressly addressed” in the immunity statute [18 U.S.C. § 6003(b)] and therefore should be similarly limited.
DISTRICT COURT HAS DISCRETION TO DENY AN ORDER WHERE SAME WOULD INFRINGE UPON CONSTITUTIONAL RIGHTS
While the Court may have no discretion to deny an order [for immunity] on the ground that the “public interest does not warrant it”, In re Lochiatto, 497 F.2d 803, 804 n.2 (1st Cir. 1974); In re Kilgo, 484 F.2d 1215 (4th Cir. 1975); U.S. v. Leyva, 513 F.2d 774, 776 (5th Cir.1975); it does have authority to consider whether the grant of immunity would pass Constitutional muster.
In re Baldinger, 356 F. Supp. 153 (C.D. Cal. 1973);
Matter of Doe, 410 F. Supp. 1163 (E.D. Mich. 1976).
See also Legislative History of H.R. 11157 and H.R. 12041.6
“The Court’s duties in granting the requested [immunity] order are largely ministerial and when an order is properly requested the judge has no discretion to deny it However, the court may exercise its discretion in denying an immunity order in the face of a violation of a witness’ constitutional rights.” (emphasis supplied). Matter of Doe, 410 F. Supp.1163, 1165 (E.D. Mich. 1976).
Additionally, the Court “plays a general supervisory role in the fair administration of justice”.
The legislative history of the Federal Immunity of Witnesses Act [with identical form and language as 18 U.S.C. § 6002] reflects that said legislation could not preclude judicial review to insure there is no “…overreaching in the process of immunizing somebody …as a matter of due process hearings on H.R. 11157 and H.R. 12041, Cong., 1st Sess., at 1972.
Matter of Doe, 410 F. Supp. 1163, 1165 (E.D. Mich. 1976);
U.S. v. Rodman, 519 F.2d 1058, 1060 (5th Cir. 1975).
And retains “a residuum of supervisory power and a responsibility to curb its improper use”.
Matter of Doe, 410 F. Supp. At 1165;
U.S. v. Dionisio, 410 U.S. 1, 9 (1973);
Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (stating that “the powers of the grand jury are not unlimited and are subject to the supervision of a judge”);
FEAR OF FOREIGN PROSECUTION
Grant of immunity under § 6002 is not an adequate substitute for the protection offered by the Fifth Amendment, where the witness has a real and substantial fear of foreign prosecution.
This issue was expressly left open in Zicarello v. New Jersey State Commission of Investigation, 406 U.S. 472, 480-81 (1972).
U.S. v. Yanagita, 552 F.2d 940, 946 (2d Cir. 1977).
IMMUNITY STATEMENT EXPRESSLY EXEMPTS “FALSE STATEMENTS” PROSECUTION
Making a false statement to a federal officer is an offense under 18 U.S.C. section 1001.
See U.S. v. Bedore, 455 F.2d 1109, 1110-1111 (9th Cir. 1972);
U.S. v. Adler, 380 F.2d 917, 922 (2nd Cir.), cert. denied, 389 U.S. 1006 (1967);
Neely v. U.S., 300 F.2d 67, 71-2 (9th Cir.), cert. denied, 369 U.S. 864 (1962).
Title 18 U.S.C. § 6002 expressly provides an exception from immunity not only for perjury during the course of the testimony compelled by the immunity order but for “giving a false statement” as well.
“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”. (emphasis supplied). 18 U.S.C. section 6002.
PRIOR STATEMENTS TO FEDERAL OFFICER
Where the witness has given previous statements to federal agents with regard to the very subject matter under investigation by the grand jury several courts have indicated that a grant of immunity under § 6002 will afford no protection from prosecution for “false statements’ under § 1001 [in the event the grand jury testimony is inconsistent with those prior statements].
In re Baldinger, 356 F. Supp. 153 (C.D. Cal. 1973) (holding that the “false statements” exception to § 6002 immunity allows the Government to use compelled Grand Jury testimony as evidence against the witness in a prosecution for violating the “false statement” statute (18 U.S.C. § 1001) where the witness’ compelled grand jury testimony differs or is inconsistent with prior statements to federal officers).
U.S. v. Hoffman, 260 F. Supp. 566, 567 (M.D. Pa. 1966).
“The proposed order in this case would violate the Fifth Amendment rights of the witness. Section 1001 provides for a prosecution for oral statements, which are false. In order to obtain a conviction [the witness’s] statements before a grand jury could be used in evidence against her. Her compelled testimony given under oath and truthful could be used in a prosecution for making statements contrary to her Grand Jury testimony.
Kastigar [406 U.S. 441 (1972)] held that the Fifth Amendment privilege against self – incrimination is violated if the government uses the compelled testimony to prosecute the witness for a past criminal offense. Under the exception to use immunity contained in the proposed order in this case, if the court grants the order compelling [the witness] to testify, the government may use her testimony before the grand jury to prosecute her for having made false statements to the F.B.I. Agents. This is because, under the exception, the grand of immunity does not apply to a prosecution for ‘…giving a false statement’….
In the context of this case, the immunity order that the government would have the court grant would do exactly what the Supreme Court held that it must not do. It would allow the Government to use the compelled testimony to prove that the witness may be guilty of having made false statements at a prior point in time, and it would …lead to the infliction of criminal penalties for prior conduct of the witness.
Thus for the very reasons that the court in Kastigar held the use immunity statute on its face to be Constitutional, this Court must hold that granting the proposed immunity order in this case would violate the witness’ Fifth Amendment rights.” In re Baldinger, 356 F. Supp. 153 (C.D. Cal. 1973).
While several courts have held to the contrary,
U.S. v. Alter, 482 F.2d 1016 (9th Cir. 1973);
In re Grand Jury Proceedings, 509 F.2d 1134 (5th Cir. 1975);
Application of Senate Select Committee on Presidential Campaign Activities, 361 F. Supp. 1282 (D.D. Col. 1973),
the Supreme Court has refused to adopt such a position with respect to later non-immunized statements. New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292 (1979).
“We express no view as to whether possibly truthful immunized testimony may be used in a subsequent false declarations prosecution premised on an inconsistency between the testimony and later non-immunized, testimony.” New Jersey v. Portash, 440 U.S. 450 at n.9.
See also U.S. v. Apfelbaum, 445 U.S. 115 (1980).
PRIOR INCONSISTENT STATEMENTS COULD BE USED TO PROVE INCONSISTENT TESTIMONY BEFORE GRAND JURY WAS PERJUROUS:
Likewise, a prior statement to a federal officer, if inconsistent, could be used in a perjury prosecution in the event a grand jury believes the prior statements over the compelled testimony before the grand jury. 18 U.S.C. § 6002 (exempting “perjury” before the grand jury from the scope of the protection provided by the Federal “use immunity” statute).
But see In re Grand Jury Proceedings (Greentree), 644 F.2d 348 (5th Cir. 1981).
THE IMMUNIZED WITNESS
In an attempt to “educate” the grand jurors of their independent role, and to protect the immunized witness against the direct or indirect use of their testimony, their attorney may wish to request the following prior to any appearance before the grand jury.
SEALING OF PROSECUTION’S EVIDENCE PRIOR TO TAKING IMMUNIZED TESTIMONY
- That any and all evidence the prosecution has accumulated be itemized and sealed by the court prior to any testimony by the witness in order to insure that no “use” is made of the immunized witness’ testimony against that witness. See Order in Appendix.
NOT SEEK INDICTMENT FROM SAME GRAND JURY HEARING THAT COMPELLED TESTIMONY
- That the Government be instructed not to seek an indictment of the immunized witness before the same grand jury before whom compelled testimony is sought, as such a grand jury would be hard pressed not to “use” such testimony in its considerations.
RIGHT TO COUNSEL
- That while the grand jury witness may not have a constitutional right to counsel during testimony inside the grand jury room, the grand jury may direct same or hear from counsel in order to insure fairness to the witness during such proceedings.
NO ADVERSE INFERENCE FROM EXERCISE OF RIGHT TO COUNSEL
- That a grand jury witness has a right to consult counsel outside the grand jury room after each question is impounded but prior to any answer and that no adverse inference whatsoever should be taken from the exercise of that right to counsel, and that the awkwardness and time consuming nature necessitated by such procedure is required by the rules governing such proceedings, not by the witness.
CONSEQUENCES TO WITNESS OF COMPELLED TESTIMONY
- That as a consequence of refusing to answer questions, a witness who has been granted immunity may be held by the District Court to be in contempt of the grand jury and be sentenced or required to serve a period of time in jail.
GRAND JURY’S RIGHT NOT TO COMPEL TESTIMONY
- That just as the grand jury has a right to inquire of person’s having knowledge of matters pertinent to an investigation, the grand jury also has a right not to require a witness called by them to testify or go to jail for contempt. Especially where such evidence is available elsewhere or prior statements by the witness to Government agents taking part in said investigation indicate a lack of knowledge as to the specific incriminating matters under consideration.