PICCIRILLO v. NEW YORK
No. 97
Supreme Court of the United States
Argued November 9, 1970—Decided January 25, 1971
400 U.S. 548
Stanley M. Meyer argued the cause for respondent. With him on the brief was Eugene Gold.
PER CURIAM..
The occasion for granting the writ in this case was to resolve the important question whether it is necessary to accord “transactional” immunity, see Counselman v. Hitchcock, 142 U. S. 547 (1892), to compel a witness to give testimony before a state grand jury over his claim of the privilege against self-incrimination, or whether mere “use” immunity suffices to that end, see, e. g., Murphy v. Waterfront Comm‘n, 378 U. S. 52 (1964); Uniformed Sanitation Men Assn. v. Commissioner of Sanitation of the City of New York, 426 F. 2d 619 (CA2 1970).
After considering the briefs and oral arguments of the parties on this writ, we have reached the conclusion that the decision of the New York Court of Appeals in Gold v. Menna, 25 N. Y. 2d 475, 255 N. E. 2d 235 (1969), which makes clear that transactional immunity is required in New York and also indicates that such court‘s earlier
With the intervening decision in Gold, no controversy any longer exists between the parties as to the question which impelled us to grant the writ: whether, in the circumstances involved in this case, Piccirillo was entitled to “use” or “transactional” immunity. While it is true that, technically speaking, issues remain in the case concerning the kind of immunity required by federal law and, if it be “transactional” rather than “use” immunity in such a case as this, the proper scope of such immunity, both issues arise only against the sterile background of agreement between the parties that Piccirillo is entitled to “transactional” immunity under state law. Thus, our determination upon the fundamental constitutional question underlying this case would be in no sense necessary to its resolution in this instance.
In this posture of affairs, we conclude that the writ of certiorari should be dismissed as improvidently granted.
It is so ordered.
MR. JUSTICE BLACK dissents from the dismissal of this writ as improvidently granted. He would vacate the judgment below and remand the case to the New York Court of Appeals for reconsideration in light of its later opinion in Gold v. Menna, 25 N. Y. 2d 475, 255 N. E. 2d 235.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting.
I do not approve dismissal of this writ as improvidently granted.
Petitioner was indicted for assault committed by the use of tire irons. He pleaded guilty and was sentenced
After refusing to testify, petitioner was granted immunity. He then testified to the assault which he had perpetrated by the use of tire irons. Four days later a police officer testified before the grand jury that after a chase, he had arrested petitioner and another, and thereupon had taken the tire irons from them. The officer also testified that following petitioner‘s arrest petitioner had offered the officer a bribe to change his testimony. Petitioner was subsequently indicted by the grand jury for bribery, and, following an unsuccessful motion to dismiss based on the grant of immunity, he pleaded guilty to attempted bribery. The New York Court of Appeals held four-to-three that the New York immunity statute only prohibited use of testimony and the fruits of the testimony in a subsequent criminal proceeding and that the police officer‘s testimony was in no way derived from anything petitioner said. 24 N. Y. 2d 598, 249 N. E. 2d 412.
Counselman v. Hitchcock, 142 U. S. 547, held that once immunity was granted, it protected the witness against prosecution not only for a crime that relates to the precise testimony given but also for the fruits of such testimony. Id., at 564-565. But the Court went further: “In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates.” Id., at 586. In Brown v. Walker, 161 U. S. 591, which involved another federal prosecution, the immunity statute provided that the witness would be protected “on account of any transaction . . . concerning which he may testify.” Id., at 594. The Court held that the immunity offered was coterminous with the privilege and that the witness could therefore be compelled to testify. Thus, “transactional immunity” became part of the fabric of our federal constitutional law. See Ullmann v. United States, 350 U. S. 422, 438.
Now that the Self-Incrimination Clause of the
Subsequent to petitioner‘s case the New York Court of Appeals unanimously concluded that their statute provides transactional immunity. Gold v. Menna, 25 N. Y. 2d 475, 255 N. E. 2d 235. Nevertheless, that court also concluded that petitioner would not have benefited from the change of law because he gave no testimony which related to the offense for which he was prosecuted. Id., at 481 n. 1, 255 N. E. 2d, at 238 n. 1. That approach to the problem is not in keeping with the generous interpretations which the
Petitioner had just testified to the grand jury concerning facts which provided the underlying basis for the bribery charge. The grand jury knew petitioner had assaulted a man with tire irons because petitioner himself told them so. The tire irons were the “evidence” which according to the police officer petitioner had tried to bribe him “to get rid of.” They were the same tire irons used in the assault for which he was convicted and sentenced, not tire irons used to commit another assault. Moreover,
Accordingly, I would reverse the decision below.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.
This case presents the question of the limitations required by the
I
Petitioner and a codefendant were arrested on March 19, 1964, by a New York police officer, William Sewell, for assaulting one Graham, a housing contractor. Patrolman Sewell recovered the tire irons used in the assault from petitioner and the codefendant at the time of the arrest. The following day, the two defendants were arraigned and released on bond. But before leaving the courthouse, they approached Patrolman Sewell and offered him $1,000 or $1,500 to dispose of the seized weapons. The honest Sewell refused the offer and immediately notified the district attorney of the bribe attempt. At the request of the prosecutor, Sewell later attended a meeting with petitioner to confirm the bribe offer. The relevant narrative skips a year during which petitioner and his codefendant were indicted for attempted assault,
“I am going to ask this grand jury to vote on the question of giving you immunity and under Penal Law Section 2447 for the testimony that you will give in this grand jury and that means anything that I ask you and any answers that you give in answer to my questions if it connects you with the crime you cannot be prosecuted for it. That‘s immunity, do you understand that?” App. 33.
When the grand jury voted to grant immunity, the petitioner said that he would answer the prosecutor‘s questions, but that he would like to consult his lawyer. The prosecutor refused permission, stating:
“Under these circumstances you are not a defendant, you are a witness, you have been given immunity. That means you cannot be prosecuted. Your rights are fully protected and there is no reason for your conferring with your attorney, do you understand that?” App. 34.1
Petitioner then answered all questions admitting, inter alia, that he and his codefendant had been hired to assault and had in fact assaulted Graham; that the tire irons in the possession of the police were the instruments they had
Four days later, Patrolman Sewell appeared before the same grand jury and testified about the bribe attempt. Several months thereafter, the grand jury indicted petitioner and his codefendant for offering a bribe. Petitioner moved to dismiss the indictment on the ground that the crime charged involved subject matter for which petitioner had been granted immunity, as required by the Federal Constitution. When the trial court denied the motion, petitioner pleaded guilty. The New York Court of Appeals affirmed the conviction, three judges dissenting. People v. La Bello, 24 N. Y. 2d 598, 249 N. E. 2d 412 (1969). The New York court interpreted the New York immunity statute to prevent only “the use of the witness’ testimony and any evidence derived therefrom.” 24 N. Y. 2d, at 604, 249 N. E. 2d, at 416. After holding that this “use” immunity satisfied the requirements of the
Seven months after its decision in petitioner‘s case, the New York Court of Appeals on December 4, 1969, in a case wholly unrelated to petitioner‘s, reversed itself on the proper interpretation of the New York immunity statute, holding that the New York statute granted “immunity from prosecution for any crime revealed by a witness’ testimony before a Grand Jury.” Gold v. Menna, 25 N. Y. 2d 475, 481, 255 N. E. 2d 235, 238. In a footnote to Gold, the New York court stated that
II
The fact that the New York Court of Appeals has reversed itself and changed its interpretation of the New York immunity statute to grant “transactional” immunity, and not merely “use” immunity as that court held when it affirmed petitioner‘s conviction, provides no basis for dismissing the writ of certiorari as improvidently granted. The state court‘s interpretation of state law is at best only tangentially related to the federal constitutional question presented in this case. The petitioner here, upon being told “[Y]ou have been given immunity. That means you cannot be prosecuted,” proceeded to testify and answer all questions put to him about the Graham assault. Subsequently, he was indicted and convicted for the bribery attempt which arose out of that assault. The New York courts have affirmed petitioner‘s conviction for bribery, holding that the immunity granted by the state statute did not bar the present conviction. At that point, the relevance to the constitutional question of the scope of immunity afforded by the state court‘s interpretation of state law ended. The question for this Court is whether the
The second class of cases, represented by the present one, involves cases in which an individual is granted immunity, proceeds to testify, and is then prosecuted and convicted for an offense related to that testimony. Once the conviction is upheld under the immunity statute, the question in these cases becomes, not whether the statute grants adequate immunity, but, rather, whether the conviction involved, given the substance of the compelled testimony, falls within the constitutionally required immunity. This decision, of course, must be made on the basis of federal standards under the
Since the present case falls into the second group of cases, any uncertainty over the interpretation of the state immunity statute has little bearing on the question whether this Court, having agreed to hear the case, ought to decide the merits. What is relevant is that the pres-
Unlike most of the cases in which this Court has considered the scope of immunity required by the
In the nature of a confession and avoidance, the per curiam concedes that the issues “concerning the kind of immunity required by federal law and, if it be ‘transactional’ rather than ‘use’ immunity in such a case as this, the proper scope of such immunity” are presented by petitioner‘s case, but offers three statements in support
The Court then suggests that the “agreement between the parties that Piccirillo is entitled to ‘transactional’ immunity under state law” (emphasis added) somehow renders this case an inappropriate one for our decision on the federal constitutional question. The phrase “transactional” immunity is just that—a phrase or shorthand symbol. Something labeled “transactional” immunity by a state court may or may not coincide with the constitutional “transactional” immunity defined by decisions of this Court. Indeed, the petitioner vigorously argues that the state immunity granted in this case falls far short of the “transactional” immunity defined by federal constitutional standards. Thus it is fair to describe the “agreement” between the parties to which the Court refers, as merely an agreement that the New York Court of Appeals, in describing the immunity granted by the state statute, used the label “transactional” immunity. Moreover, since the State has finally affirmed petitioner‘s conviction in this case, the precise formulation of the immunity granted by state law does not, in any event, have any relevance to our consideration of the constitutional validity of petitioner‘s conviction.5 The Court makes no reference to what is relevant—the
Finally, the Court asserts that “our determination upon the fundamental constitutional question underlying this case would be in no sense necessary to its resolution in this instance.” This is simply not so. If the Court resolves this case, it must make a “determination upon the fundamental constitutional question.” Indeed, the per curiam has already conceded that. The issue is why resolution of this case, and hence decision on the constitutional question, is being withheld. In my judgment, the Court has yet to articulate a reason for not deciding this case.
In sum, the Court attempts, none too successfully in my judgment, to create a smokescreen by focusing on questions of state law. Petitioner‘s conviction, without more, squarely raises the federal constitutional question on a concrete, factual record which provides an excellent basis for constitutional adjudication. Under these circumstances, there exists no basis upon which the Court can justify dismissal of the writ of certiorari as improvidently granted. I therefore turn to the merits.
III
Only one sovereignty, New York State, is involved. Thus the case raises the basic question of the constitutional restrictions upon the power of a state government to prosecute an individual for matters related to incriminating testimony which that State has compelled the individual to give. Unlike, for example, Murphy v. Waterfront Comm‘n, 378 U. S. 52 (1964), there is no problem here of limitations imposed on other jurisdictions by New York‘s act of compelling petitioner to testify against himself. And “where there is only one government involved, be it state or federal, not only is the danger of prosecution more imminent and indeed the likely purpose of the investigation to facilitate prose-
I believe that the
The
“By 1776 the principle of the nemo tenetur maxim was simply taken for granted and so deeply accepted that its constitutional expression had the mechanical quality of a ritualistic gesture in favor of a self-evident truth needing no explanation.” L. Levy, Origins of the Fifth Amendment 430 (1968).
Not only the Federal Constitution, but every State guarantees the individual the privilege against self-incrimination, all States save two by provision in the state constitution.8 This Court has repeatedly emphasized its role as guardian against even inadvertent or gradual erosion of the guarantee. “This provision must have a
The words of the
Implicitly, of course, “in any criminal case” suggests a limitation upon the reach of the privilege, although
“[I]f [a man‘s] testimony operate[s] as a complete pardon for the offence to which it relates—a statute absolutely securing to him such immunity from prosecution would satisfy the demands of the clause in question.” Brown v. Walker, 161 U. S., at 595.
Or, as the Court put it more succinctly 10 years later,
“if the criminality has already been taken away, the Amendment ceases to apply.” Hale v. Henkel, 201 U. S. 43, 67 (1906).
It is clear, of course, that mere “use” immunity does not “operate as a complete pardon for the offence,” nor does it take the criminality away from the testimony in question. If the individual is only promised that the Government will not actually use his compelled testimony or its fruits to convict him, he is still being compelled to testify against himself “in [a] criminal case,” in clear contradiction of the constitutional command. He is still being forced by the State to admit criminal conduct for which he may be punished, albeit not on the basis of his compelled testimony.
The policies and purposes which the privilege serves are promoted by the transactional immunity standard. Mr. Justice Frankfurter‘s oft-quoted remark that “[t]he privilege against self-incrimination is a specific provision of which it is peculiarly true that ‘a page of history is
“[O]ur unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load‘; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life‘; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.‘” Id., at 55 (citations omitted).
I quote this summary of some of the values and purposes served by the privilege at such length because I think it is noteworthy that many, if not most, of them are severely infringed by compelling an individual to testify under any circumstances. I do not seek to reopen the debate of Brown v. Walker, supra, and Ullmann v. United States, supra, whether the
In light of those values, it seems clear to me that mere “use” immunity is insufficient when the government involved is the one that has compelled the incriminating testimony. It has been argued that if the State is prohibited from using testimony or information obtained by compulsion, then both the government and the individual are in the same position as if the witness had not testified. As the Murphy statement of values shows, from the standpoint of the individual (which is also the standpoint of the
Finally, the uncertainties of the factfinding process argue strongly against “use” immunity and in favor of transactional immunity. This Court has recognized that “[t]here is always in litigation a margin of error, repre-
Transactional immunity raises none of these problems. It provides the individual with an assurance that he is not testifying about matters for which he may later be
The transactional immunity standard was first articulated by this Court in Counselman v. Hitchcock, supra, in 1892; it has consistently been reaffirmed and reiterated in both holding and dicta ever since, and has never been seriously questioned in a case involving the actions of a single jurisdiction. In Counselman, the Court held that the immunity granted by an 1868 federal statute was inadequate to supplant the right of the witness to rely on his constitutional privilege: “In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates.” 142 U. S., at 586 (emphasis added). Four years later, the Court in Brown v. Walker, supra, upheld a contempt conviction for a witness’ refusal to answer a question after he had been granted immunity under a new 1893 federal statute enacted after the Counselman decision. The 1893 statute provided,
“[N]o person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify.”
Act of February 11, 1893, 27 Stat. 443 ,49 U. S. C. § 46 .
Finding that under this statute a witness’ testimony “operate[s] as a . . . pardon” for criminal conduct to which it relates, the Court held that the statute “fully accomplished” the
In Hale v. Henkel, supra, the Court sustained a contempt citation for refusing to answer questions after transactional immunity had been granted under a federal immunity statute, resting on the proposition that “if the criminality has already been taken away, the Amendment ceases to apply.” 201 U. S., at 67. In 1924, Mr. Justice Brandeis, speaking for a unanimous Court, held the privilege was available to a bankrupt subpoenaed before a special commissioner for examination
“because the present statute fails to afford complete immunity from prosecution. If Congress should hereafter conclude that a full disclosure of the bankrupt estate by the witnesses is of greater importance than the possibility of punishing them for some crime in the past, it can, as in other cases, confer the power of unrestricted examination by providing complete immunity. Compare Brown v. Walker, 161 U. S. 591; Glickstein v. United States, 222 U. S. 139, 142; Ensign v. Pennsylvania, 227 U. S. 592.” McCarthy v. Arndstein, 266 U. S. 34, 42.
See also United States v. Monia, 317 U. S. 424, 428 (1943) (Counselman “indicated clearly that nothing short of absolute immunity would justify compelling the witness to testify if he claimed his privilege“); Smith v. United States, 337 U. S. 137, 147 (1949) (transactional immunity “met the ‘absolute’ test of the constitutional provision against self-incrimination“).
Ullmann‘s assertion that transactional immunity has become part of our “constitutional fabric” finds support in the action of Congress in the 78 years since Counselman first announced the standard. Congress has written more than 40 immunity provisions into various federal statutes during that time, and with one minor and unexplained exception in 1898 and two exceptions in 1970,11 every provision has provided for transactional immunity.12 Moreover, as reflected by an appendix in petitioner‘s brief, the majority of state immunity statutes provide for transactional immunity, even though the States were not
The wisdom of this consistent view of the protection required by the
This Court emphasized in Brown v. Walker, supra, one of the major evils the Amendment was designed to guard against:
“[I]f an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials . . . made the system so odious as to give rise to a demand for its total abolition. . . . So deeply
did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law.” 161 U. S., at 596-597.
So too in this case: an accused was put in the same position, with the same attendant temptations and pressures upon the prosecutor. That the questioning occurred in the secrecy of the grand jury, does not affect the protection afforded the individual by the Constitution. Only if both prosecutor and witness are clearly on notice that questioning about an incident will relieve the witness of all criminal liability substantially related to that subject can we guarantee that the inquisitorial character of the proceeding will be removed, and still allow the prosecutor to seek out facts relevant to the crimes of others.
IV
Under the transactional immunity standard, I do not believe that petitioner‘s conviction can stand. Mr. Justice Holmes, in Heike v. United States, 227 U. S. 131 (1913), in interpreting a federal immunity statute so as to render it “coterminous with what otherwise would have been the privilege of the person concerned,” 227 U. S., at 142, held that “[w]hen the statute speaks of testimony concerning a matter it means concerning it in a substantial way.” Id., at 144. I agree that immunity attaches only to matters substantially related to the compelled testimony.
Petitioner testified that he had committed the assault on Graham with tire irons. He testified that the tire irons in the possession of the police were the tire irons that he had used. He testified that he was caught immediately after the assault by the police, taken to the station house, booked on the assault charge, and released on bail the next day. His testimony carried
I would reverse the judgment below and remand with instructions to dismiss the indictment.
Notes
Counsel for respondent:
“[I]f transactional immunity is required by the federal Constitution, then the decision of the Court of Appeals that this was or wasn‘t a thing as specified in the New York State statute, is a matter of federal importance, and it is to be decided by a uniform standard.
“On the other hand, if the only thing that the Constitution requires is a use plus fruits immunity, then when New York decided whether this crime, this bribery was one of the things testified to in the grand jury, becomes strictly a matter of the state interpretation of its own statute, and there is no federal constitutional question involved.
“And so it is necessary to decide whether transactional immunity is required by the federal Constitution. Now, the petitioner relies a great deal on the case of Counselman vs. Hitchcock. Now, it is our position that Counselman vs. Hitchcock is not the law any more, that it has been overruled, or if it hasn‘t, it should be . . . .” Tr. of Oral Arg. 24 (emphasis added).
Counsel for petitioner:
“This is the transaction [al] immunity rule that we assert is required under the
“It is our position that this is the rule that first was enunciated in the first case in this Court to deal with the question of immunity and the abrogation of the
“So we feel that there was no question but that there was a substantial relationship [between the compelled testimony and petitioner‘s conviction] and that under the transactional immunity test, which we contend is a federal constitutional test, and as it has been explained by this Court in Heike and applied in other cases, the bribery indictment must be found to have been covered by the transaction[al] immunity to which this petitioner was entitled.” Id., at 11, 15.
5 See supra, at 555-558.“The clause by its terms also protected against more than just ‘self-incrimination,’ a phrase that had never been used in the long history of its origins and development. The ‘right against self-incrimination’ is a short-hand gloss of modern origin that implies a restriction not in the constitutional clause. The right not to be a witness against oneself imports a principle of wider reach, applicable, at least in criminal cases, to the self-production of any adverse evidence, including evidence that made one the herald of his own infamy, thereby publicly disgracing him.
“The state courts of the framers’ generation followed the extension of the right to cover self-infamy as well as self-incrimination, although the self-infamy rule eventually fell into disuse.” L. Levy, Origins of the Fifth Amendment 427, 429 (1968).