*2 for his claim of the procedure raising KERN, FERREN, Before MACKand As- of use” the government’s “inevitable Judges. sociate at his testimony own compelled, trial, of we affirm his conviction criminal FERREN, Associate Judge: contempt. murder, awaiting burglary, trial While on charges, robbery appellant granted and or- use and derivative use I. earlier, testify separate dered to the trial and two charged appellant Indictments Appellant of a codefendant. tes- refused to murder, D.C.Code felony codefendants tify, and the court him in criminal held (1973), burglary, degree 22-2401 first id § that his
contempt. appeal, argues On he id, 22-1801(a), and 22-2901. robbery, § § only conviction cannot the stand because and scheduled The three cases were severed way safeguard could adequately for trials. Before separate against Fifth Amendment self-in- privilege and obtained an government sought the crimination was to We disa- remain silent. the District Court order from United States gree. dulyA of im- authorized assurance granting the District him of Columbia is sufficient the Fifth munity supplant to and derivative use ex- use privilege Amendment it proscribes because the earlier testimony for his trial change use—direct or any indirect —of testimony codefendant, the witness. Brown.1 against Larry of his case, prose- any except immunity pursuant a 1. The court to 18 witness statement, (1976). giving perjury, U.S.C. 6002-6003 a false §§ cution for failing comply with the Immunity or otherwise order. generally § proceedings grand jury refuses, 6003. Court and Whenever a witness on the basis self-incrimination, (a) privilege against individual who has In the case of provide pro- may provide or in a be or other information been or called ceeding ancillary any proceeding or before before to— other information at (1) grand ancillary jury or court or United to a of the United States of the or States, States, jury grand the United of the United judicial (2) agency district an United or States district court for the may Congress, joint proceeding held com- or be shall either House which the issue, (b) Houses, subsection mittee of the two a committee or in accordance with or section, House, upon request United a subcommittee of either this district, attorney person proceeding presiding order States for such over give testimony requiring or to the an order issued such individual communicates witness part, may provide he refuses other information which under this the witness not refuse provide privilege comply give or the basis of his with the order on the basis of his on self-incrimination; self-incrimination, against against such order to be- but no provided in section 6002 of or other un- come effective as information (or any directly part. the order or this der information attorney may, (b) indirectly with the or A United derived from such States General, information) Attorney Dеputy may approval other be used dismissing later, stipu- After jury day following on first months Several Brown’s the court summoned appel- trial to its order to show pursuant lated lant and his counsel to the courtroom to should not be held why appellant cause determine whether contempt, appellant guilty the court found when government. called Counsel “refus[ing] of criminal stated that appellant’s decision was “not *3 refusing] testify” to at sworn and Brown’s in this testify case.” Counsel asserted that appellant was trial.2 court found that appellant’s testimony inevitably be would immunity grant, the fully apprised of against case, “used” in pending him his own testify he had to be sworn and to refused and grant thus the of was not full being by “after advised counsel with a coextensive his with Fifth Amendment the understanding proceeding,” and privilege against self-incrimination. “contemptuous were ... appellant’s actions hearing prosecutor’s
After the argument beyond reasonable doubt.” appellant’s testimony could be under the the immunity, II. trial court asked whether defense counsel the appeal, On cites fact that he appellant had advised appellant “as to the nature and had indicted but not tried at the yet been extent of the immunity granted, and what the the testify it time court ordered him to at means.” affirmatively Counsel answered and also Brown that he was scheduled to stated he had and appellant advised that, event, in the any prosecutor, to be tried the same before assert his Fifth Amendment privilege judge, tried He appellant argues at least same who Brown. must be sworn that, and then personally result, invoke as a it was “simply inconceiva- privilege. ble,” despite express immunity, his compelled testimony would not When the clerk called appellant and told in subsequent prosecu- have been “used” his hand, however, him raise to his appellant Merely by hearing appellant’s tion. testi- said, “I don’t happening understand what’s inevitably use mony, prosecutor would here.” At that point, the grant- trial court focusing investigation, it “in on further ed a five minute recеss so that counsel could plea in deciding pursue negotia- whether again consult appellant. with The court cross-examination, tions, in his or planning reconvened and stated, defense counsel “I strategy.” Additionally, says, other trial he spoke Graves, to Mr. again advised him of have judge trial “could not avoided” what about, this was hearing all and told his being by, using, him influenced and thus what was required, and is his deci- sion, making at in testimony and not the Brown trial my advice, let the record that, rulings be on own discretionary appellant’s clear that he won’t even take short, the oath.” murder trial. appellant The court then states appellant read “impossible order that it be as a matter of compelling his testimony and granting immunity. When human nature” for the and the asked to stand hand, and raise his right trial to erase their appellant knowledge stood “No, it; thus, and replied, Ma’am.” use compelled testimony Brown’s trial and not resumed without testimony. immunity granted him was eoexten- General, Attorney any designated privilege against or Assist- on self- tion the basis Attorney General, request ant an order under incrimination. (a) subsection of this when in his section appellant’s grant of on judgment— Between testimony trial and his (1) at Brown’s testimony or other information refusing later trial for own may necessary from such individual to the testify, appellant separately interest; tried before public and chаrges likely the same court —and convicted —on such individual has or is refused murder, robbery, burglary. provide to refuse to or other informa- privilege, using sive with his Fifth Amendment rial authorities from testify. and he therefore could refuse to “any respect,” the statute is scope coextensive with the of the argument is the Underlying appellant’s self-incrimination and “therefore is premise no short of way, other compel testimony sufficient to over a claim pre- refusal at Brown’s Id. at privilege.” S.Ct. at compelled testimony vent the use of his (emphasis original).3 disagree. per- his own trial. We We are that, suaded once recognized The Court immunity pursuant to 18 U.S.C. 6002- §§ id. power compel testimony, “essential” 6003, he was obligated only for often the develop codefendant’s trial. As we in Part give who can useful are persons below, III appellant’s premise contrary in the offense. implicated those who are he would have had a full fair opportu- power Id. at at 1656.4 This *4 later, in nity to raise connection with that principle stems from the common law own the government’s alleged inabili- public right every person’s has a ty comply with the use and derivative satisfy evidence. It also serves to the Sixth use proscription. requirement Amendment that a defendant ap- We therefore do not decide whether against able to all witnesses be confront is, not, in pellant asserting or is correct 443-44, at him or her. Id. at 92 S.Ct. prosecutor inevitably, subconsciously, if DeDiego, v. 167 1655-1656. United States earlier, would have used 818, 252, 256, 822 U.S.App.D.C. 511 F.2d preparing appel- (1975). (thus necessitating lant’s murder trial dis- indictment). merely
missal of the
We hold
power
The
to com
however;
that his
his refusal to
argument, supporting
absolute,
testimony is not
pel
premature.
at the Brown
the Fifth Amendment
yield
privi
must
States,
Under
v. United
406 U.S.
lege against compulsory self-incrimination.
441,
1653,
(1972),
92 S.Ct.
III.
proper
1656. The
accommodation
these
449, 92
is achieved when the witness is
Kastigar, supra,
In
406 U.S. at
interests
if,
in the
position
Court confront
in the same
as
Supreme
placed
S.Ct. at
grant,
im
he or she
question
statutory
ed the
whether the
absence
claimed the
and refused
munity
conferred
18 U.S.C.
6002- had
§§
458-59,
Id. at
testifies
burden,
under an immunity grant
holding
to its
—and
subsequently to
“Kastigar hearing”
prosecuted
for an of-
Court instructs
fense about which the witness
“sweeping proscription
testified—
to enforce the
stands in the same position
indirect,
as if he
use,
or she
direct or
had invoked the
Fifth
privi-
Amendment
compelled testimony.”
lege, the Court
procedure
envisioned a
necessarily
at 1664. This task
includes
would serve as a “comprehensive safeguard
ways
of even “the subtle
consideration
barring the use of compelled
which the
disad
testimony.”
compelled testimony may
Id. witness,”
S.Ct. at 1664.5
vantage
thereby
providing
Once the
*5
government
initiates
prosecution
commensurate
against
“very
protection,
substantial
individual on charges
the
resulting
invoking
privi
related to the with that
from
subject matter
459-61, 92
of the testimony, a
Id. at 1664-
pretrial
lege itself.”
hearing is the appropriate
carry
vehicle for chal-
1665.7 If the
is unable to
government
lenging
the
burden,
compliance with
to ei
respect
its affirmative
Kastigar, supra,
460,
5. In
406 U.S. at
appropri-
92 S.Ct. at
motion to dismiss the indictment is
1664,the Court elaborated:
ate.
person
A
immunity
accorded this
under 18
6002,
Congress
provided
7.If
the broader
subsequently prosecuted,
U.S.C.
transac-
and
immunity i.e., immunity
prose-
dependent
tional
is
rights
from all
preservation
not
for the
—
relating
subject
upon
cutions
to the
integrity
good
matter of the
the
and
faith of
testimony
prosecutor
prosecuting
immunized
the
would
authorities. As stated in
—the
amnesty despite indepen-
Murphy
Comm’n,
have to
blanket
52,
[v. Waterfront
378 U.S.
evidentiary
1594,
dent
sources sufficient to convict
(1964)
84 S.Ct.
12 L.Ed.2d 678
]:
immunity
the witness. Such
the
afford
“Once a defendant demonstrates that he has
protection
testified,
individual more
than the
immunity,
Fifth
under a state
to
does,
Amendment,
Amendment
like the narrower
since the Fifth
grant
рrosecution,
matters related to the federal
of use and derivative
the federal authorities have the burden of
immunity, permits
prosecutor
pro-
showing
use
the
that their evidence is not tainted
against
establishing
legitimate
ceed
dence.
62,
the witness with untainted evi-
they
independent,
had an
453,
Kastigar, supra,
ther direct or indirect
trial
charges.8
must dismiss the
cannot
government
assures that the
witness can
testimony,
use immunized
the
focus, therefore,
The
is on the
critical
refusing
held in
fact
compelling
an individual
trial under an
earlier
not,
itself,
under
does
violate a
govern
grant.10
possibility
constitutional
constitutional vi
right. Any
not
may
drop
charges
ment
have to
its
does
using
olation would lie in
Buo
justify appellant’s contumaciousness.
Before
testimony against
the individual.
nacoure,
at 908. The
supra,
not
Kastigar hearing,
possible
require
prosecutor
does not
Constitution
determine
will
whethеr
a defendant
prosecuting
to choose between
pursue tes
prosecution using compelled
right
to valuable
“forfeit[ing]
while
Kember,
timony. United
v.
States
U.S.
knowledge
may possess”
compelling
App.D.C.
389, 648
F.2d
forfeiting
right
but
curiam). Thus,
(per
there can be no
there is a sufficient
prosecute, even when
concluding
basis for
that a constitutional
the defendant derived from
case
govern
violation has occurred unless the
wholly independent
sources
ment
individ
actually takes
Instead, dis
testimony.
Id.
ual,
appellant,
such as
to trial.9 Until that
who
placed
prosecutor,
cretion is
with the
time,
ripeness argument
“the Government’s
immun
may
compel
choose to
a defendant’s
Kember,
must
prevail.”
U.S.
at his codefendant’s earlier
ized
1363;
App.D.C. at
648 F.2d at
In re
being
thus run the risk of not
able
254, 266-67,
Liddy,
U.S.App.D.C.
burden of demon
carry
the substantial
(1974) (en banc).
F.2d
1305-06
See
of such evi
strating independent sources
also
v.
Goldberg United
for use at the defendant’s later
dence
Wilson,
(2d Cir.1973);
United States
Diego, supra,
De
See
Cir.1973),
(2d
F.2d 1231
rev’d on other
That choice is
proposes IV. wholly independent source ” Co., testimony.’ Pillsbury supra, 103 S.Ct. Court’s Appellant Supreme cites the Co., supra, 103 (quoting Kastigar, supra, Pillsbury at 616 406 U.S. at decision in recent that, instead 608, for the 1664). proposition 92 S.Ct. at time, previously approved not have to the trial court’s 9. At that the individual does 8.We have evi- used tainted show that of an indictment for an offense relat dismissal showing Upon she testified that he or dence. subject im ed to the matter of a defendant’s immunity grant, burden shifts to under Warren, testimony. United States v. munized case is derived to show that the (D.C. 1977) (“the govеrnment 373 A.2d sources. See note 5 wholly independent from not meet its burden under did supra. Cir.1973)] (8th McDaniel [482 F.2d 305 proposed proving evidence it to use testifying “only under an alternative” to 10. The any way against appellee not derived United contempt immunity grant is a citation. respect provided from the information he Leonard, States offenses.”) charged to the (1974). 494 F.2d 972-73 of reading Kastigar to make contempt all Fifth conviction: “a District Court can- Amendment premature claims until compel Conboy deposition answer time of the witness’ own Fifth analy- questions, a “risk over a valid assertion his sis” is required when a authorized right, duly witness is to be Amendment absent compelled to Id. at testify. Pursuant to such аssurance of at the time.” analysis, if the danger (footnote omitted). of incrimination is 614 only “remote and speculative,” the witness assertion, Contrary must testify, but if the danger is “real” the immunity grant- Court did not hold that the witness stand may on the Fifth Amendment ed 6002 was insufficient to pursuant § Thus, and refuse testify. ap- Rather, protect Conboy. it held that Con- pellant contends, despite a facially valid was not boy’s deposition civil immunized. grant of immunity, the inquiring court Conboy pro- had not been afforded “certain must make a case-by-case analysis before tection” Fifth Amendment privilege holding a defendant re- because he not have a authorized “duly did fusing to testify. immunity.” assurance of Id. at Co.,
Pillsbury contrast, does not mandate In assurance appellant received such case, a result. In that respondent protected against that he was use of Conboy,under grant of use given and derivative of im- compelled testimony, use immunity, testified before a grand jury munity right under 6002 and his to a investigating price-fixing activities. In civ- pretrial “Kastigar hearing.” il antitrust actions concerning the same Appellant also relies on two cases from events, the District made Conboy’s Court the United for the Appeals States Court grand jury testimony par- available to the Kember, District of su- Columbia Circuit: ties’ attorneys, including counsel for peti- Kember, pra, In Liddy, supra. tioner Pillsbury Co. subpoe- Pursuant to a defendants had been сonvicted of one of- na, Conboy appeared for a deposition, fense, agreement but an made with they where Pillsbury Co.’s counsel sought the government permitted prosecution their question him about his immunized grand other offenses if first conviction was jury testimony. Asserting his Fifth appeal. overturned on In Liddy, de- Amendment privilege, Conboy refused to fendant had been convicted but awaited answer. The District granted Court Pills- sentencing testify. when ordered to bury Co.’smotion to compel Conboy to an- both cases the defendants had refused to swer, but he persisted in his silence. The even though immunity be- court held him in contempt. The Court of cause, contended, they they were not ade- Appeals reversed. from use of quately protected subsequent
In the Supreme Court,
parties
debat-
compelled testimony.
their
The Court of
*7
ed whether Conboy’s deposition
that
testimony Appeals ruled
each instance
(if he
testified)
had
would have
arguments
derived defendants’
about
inevitable
from his immunized grand jury
their
were not
government
use of
and thus been
Kember,
unavailable for use in subse-
208
at
ripe.
supra,
U.S.App.D.C.
quent
389;
proceedings
1363;
against him.
at
165
Liddy, supra,
F.2d
Court,
The
however,
265-67,
focused on the “crux U.S.App.D.C. at
Appellant emphasizes
that the federal cir
the trial
record demonstrates
appellant
advised
cuit
and the
expressly
question
reserved the
and testi-
court that he must be sworn
open
“whether an indicted
opposed
defendant as
on the record
fy. Defense counsel stated
tо a convicted
one,
could be compelled to
he
told
“what was re-
appellant
Kember,
supra,
testify....”
U.S.App.
“it
decision ...
quired”
[appellant’s]
is
1362;
Liddy,
accord
D.C. at
at
F.2d
even take the oath.” When
that he won’t
U.S.App.D.C.
506 F.2d at
are in-
appellant,
“You
the court said
1380. We are not
the circuit
constrained
testify
in this
structed to be sworn and
court’s references to situations not before
appellant ex-
contempt,”
case or be held in
event,
it.
In
we believe
rule
any
stated
is sufficient
refused. The evidence
pressly
in those cases is
in the
equally applicable
refusal
finding
appellant’s
support
present
duly
situation. Once
au
beyond
and thus contumacious
was wilful
an
immunity,
thorized assurance of
indicted
reasonable doubt.
testify,
but untried defendant must
as or
dered, and then
challenge
government’s
VII.
Kastigar compliance
at a later
be
sum,
testify
refusal to
appellant’s
fore his or her own trial.11
privi
his Fifth Amendment
justified by
Because he was assured
lege.
V.
to 18 U.S.C.
immunity pursuant
Appellant
argument
advances
re
him
protect
6002-6003 was sufficient
§§
lated to his Fifth Amendment concern. He
testimony,
use of his
from
stresses that
if he is
were pre
at the Brown trial
arguments
his
inevitably
before his
he
will reveal his
have awaited a Kasti
They
mature.
should
trial strategy
give
government
gar hearing before
trial of the criminal
preview
responses
and demeanor.
charges
him.
This,
contends,
amounts to a violation of
argument
use”
appellant’s
If
“inevitable
to the effective
right
Sixth Amendment
dissenting colleague
our
persuasive
is
—as
counsel. See United States
assistance of
if
presumably,
reasons it is—then
Levy,
(3d Cir.1978).
poenaed trial, in his on other also grounds3 codefendant’s the McDaniel case the Assistant United Attorney рrose States noted: cuting that case prosecute was scheduled to In cases such as v. McDan- United States appellant pending at his trial before the prevailed iel ... the witness at the subse- judge. same The testimony govern quent proceeding without an evidentiary ment sought to compel formed the basis for because, under the facts of those appellant’s pending prosecution. Once the cases, there no conceivable showing appellant took the in stand this first make to prove Government could the risk of self-incrimination would become an All absence of taint. of these cases risk; more than a incrimination would en involved cirсumstances in which use ad- ter the realm of reality. Putting aside for had made of immunized mittedly been evidence, the moment the substance of the Therefore, there was no testimony. set it strains credulity to believe that a good possibly of facts the Government could prosecutor or could would not “use” this discharge adduce to its burden of show- testimony focusing in on further investiga McDaniel, a lack ing of taint.... tion, or nonevidentiary ways such as de prosecutor same federal who had seen ciding whether to pursue plea negotiation, testimony defendant’s immunized cross-examination, preparing planning or now Where the prosecuting him.... trial strategy. See United v. Ander States established, taint has been there is no son, 450 A.2d (D.C.1982). 452 But more point holding evidentiary hearing important, prosecutor’s exposure alone on its non. existence vel “use,” constitutes which eliminates the need Kember, United States U.S. for a Kastigar hearing. This is the ration at 1363 App.D.C. (emphasis F.2d McDaniel, ale of United States v. 482 F.2d supplied). also United v. Dor See States (8th Cir.1973) (the prosecutor’s reason nau, F.Supp. (S.D.N.Y.1973), rev’d
ing
grand
jury testimony by
(the
grounds,
on other
2. The court in Kember found
situa-
sentencing,
before
at the trial of a
Liddy’s (see
infra)
tion to be closer to
note 3
presided
codefendant
over
the same
awaiting
than to that of an indicted defendant
appel
sentencing
who would be
Wilson.
648 F.2d at
proper proce
late court noted however that the
dure
have been for Wilson to
request
sentencing by
judge.
then
different
in Kember also made reference to
3. The court
Kim,
But see United States v.
testify-
an added
distinction between witnessеs
ing
objection
(D.D.C.1979),
seeking
over
the District
and witnesses
where
Court
Kim,
remain silent.
the District of Columbia held that
who
*10
facts,
In this state of
the solution
disputed
which
of the Bill of
it
be
Rights,
cannot
protection
fifth
amendment
majority
is no
advances
solution at all.
against self-incrimination
fundamental
Compulsion here does not serve the interest
is,
system
justice.
our
of criminal
It
of
or the witness. The
fact,
we have criminal trials
why
the reason
grant
“
of
immunity
could not
simply
them;
as we know
the rack and the screw
the witness and the ... Govern
‘leave[ ]
would
much more
And
economical.
ment in substantially the same position as if
rights
that the sixth amendment
of
the witness had
privilege’
claimed his
in the
compulsory process pro-
confrontation and
grant
absence of a
of immunity.”
Pills
See
vide fundamental
compulsion
reasons
-
bury
-,
Co. v. Conboy,
U.S.
testimony,
grant
immunity
“[u]nless
608, 613,
S.Ct.
(1983) (quot
L.Ed.2d 430
incriminating
assures a witness that his
tes-
ing Kastigar, supra,
406 U.S. at
timony
will not be used
him in a
1663-1664).
At a
subsequent
prosecution,
wit-
the government would have been faced
ness has not received the certain protection
with an insurmountable task of proving
of his Fifth Amendment
privilege
“ ‘that the evidence ...
derived from
[was]
has
exchange.” Conboy,
been forced to
su-
source wholly independent of
pra,
purported grant
S.Ct. at 617:
As the Court stated in Maness v. Mey
ers, 419 U.S. 95 S.Ct. 42 L.Ed.2d
574 (1975), compelling a witness to upon “reliance objection later or mo HARRISON, Petitioner, John tion to suppress would ‘let the cat out’ with no assurance whatever of putting back.” Id. at DISTRICT OF COLUMBIA DEPART- S.Ct. at 593. We SERVICES, MENT believe OF HUMAN Conboy acted properly in main Respondent. taining his silence in the face of the Dis trict compulsion Court’s order and 82-844, 82-1429, Nos. 82-1620 and 83-239. testing the validity privilege on Appeals. District of Columbia Court of appeal.[5] Nov. 1983. Submitted judicial As interpretations move the crim- Decided Feb. 1984. inal inexorably on, law therapeutic it is on occasiоn to throw out a harsh reminder.
While it is nigh impossible rate, well
order of importance, the various provisions already supplant been convicted of a crime but was could not Kim’s fifth awaiting sentencing, rights was within his amendment and dismissed the indict- questions relating charging contempt. refuse to answer to that ment congressional crime before a committee even judge, in different Iam reminded that a trial though granted immunity. he had been context, aptly dis factual has noted “even our found that since his tinguished Appeals unring a Court of cannot sentencing have come to the attention of the egg.” United States v.
judge, bell or unscramble could not “insure Brown, (D.C. WashD.L.Rptr. that the would not use” the information Super.Ct. Sept. 1983). once he heard it. The court held that the