*1 PLAINTIFF-APPELLANT, JERSEY, STATE OF NEW KENNY, JOHN DEFENDANT-RESPONDENT. J.
Argued July 8, March 1975 Decided *2 Mr. Matthew P. Boylan, Director, Division of Criminal F. Justice, for the William (Mr. the cause argued appellant Hyland, Mr. Attorney New Jersey, attorney; General Luciani, J. General, of counsel and Deputy Attorney Alfred Baime, on the brief; Henning Messrs. David S. H. George sen, Genati, D’Ilalia, J. Russell Attorneys Robert Deputy General, on the brief).
Mr. Donald A. Robinson the the cause for argued Robinson, respondent at- Wayne and Greenberg, (Messrs. Robinson, Riccio, Donald torneys; Messrs. A. Ronald J. Gladstone, Stuart M. brief.) on the
The opinion was by court delivered the Schreiber, J. John J. indicted a State Kenny by was Grand and convicted for Jury extortion misconduct a Hudson Freeholder County out his arising demanding $50,000 the sum modify to some receiving restrictions a contained in deed County from Hudson to Eeinauer the Land one Company. Upon Division, the appeal, Appellate The Judge dissenting, reversed. State has as of appealed R. right. 2:2-1 (a).
Kenny had testified in a criminal previously federal law, under the of a O. cloak federal 18 U. 8. 2514. The Appellate Division held that State of deprived Kenny its to and that the right try prosecutor’s remarks his and summation con- opening stituted reversible error. The issue before con- primary us cerns the effect statute we the- shall direct our attention to that question. are as follows: facts
Briefly pertinent stated some purchased Land Company 1954 the Reinauer The deed con- County. Secaucus Hudson acreage use the grantee’s which limited tained numerous restrictions were land sell property. attempts Subsequent have and efforts frustrated because of the restrictions failed. remove the limitations County Hudson was entered the sale of property In 1965 for contract to re- Corporation, Mackman Realty into agree- terms of the moval of deed restrictions. Under the had 6 months to effect Land ment, Reinauer Company unsuccessful, and, if then the restrictions, elimination of the within which had one Realty year Mackman Corporation failed. efforts Company’s The that result. accomplish Land aMack, B. principal over. H. took Realty Corporation it advised Reinauer the Realty Corporation, from the of the restrictions $50,000 obtain release cost was Hudson who then price Kenny, This County. and the Freeholder, Company The Land had fixed. County which was money paid put up Angelo Realty Company Kenny. There- money in turn delivered who Sarubbi voted to eliminate restrict- of Freeholders the Board upon delivered to Reinauer Land A deed was quitclaim tions. December and the sale from Reinauer on Company Realty Corporation to Mackman was con- Company Land December on summated Kenny’s facts led to indictment foregoing *4 Jury September Grand extortion
State A. J. and in J. S. misconduct office 2A.105-1) (N. (N. A. 2A: 85-1). S. were and eleven others indicted
Kenny by federal grand 15, 1970. The on November indictment contained The gravamina some 34 of the federal counts. counts were bribe, extort and and extortion in connec- conspiracies with construction of public projects tion Hudson County
21 involved the Reinauer matters of the None City. and Jersey transaction. was severed trial Kenny’s proceedings he was granted trial During their of
that the codefendants. G. with 18 U. 8. accordance immunity § transactional of Details of the government. 2514 behalf and testified court of colloquy and and cross-examination the direct opinion Division in the Appellate are set counsel forth cross- that on say it to Suffice repeated. need ato series Kenny responded was asked and examination in- State which covered the questions dictment.1 in an opinion Division of the Appellate majority before Kenny’s testimony that found Bischoff
Judge the finding contrary was compelled, federal court argu- At oral opinion. the dissenting trial judge Kenny’s that conceded this Court the State ment before re- own Upon independent our compelled. to the same conclusion we have come view the evidence analysis respect in this essentially agree Judge opinion. BischofE’s contention that transactional
The State’s
tes
only
18 U.
2514
applies
under
S. C.
granted
substantially
trial which
adduced at the federal
timony
has
related
offense for which transactional
A
for
related
been
State
offenses
granted.
prosecution
would
impermissible.
to use
be entitled
other statements
passing
evidentiary
1In
we note that
rule
Third Circuit
sanctions within the discretion of the trial court cross-examination
prior
concerning
Sweeney,
misconduct
United
witness.
States v.
(3
;
1959)
Farries,
Supp.
F.
2d
Cir.
States
F.
(M.
1971), aff’d,
(3 Cir.),
D. Pa.
to 18 U. S. must look to O. 2514. Por answer we the act, legislative decisions. history prior
Title 18 U. S. O. as follows: reads judgment attorney “Whenever in the testi- a United States any mony witness, papers, production hooks, or or other by any witness, any any proceeding grand evidence jury case or before involving any or court violation United States chapter any any or of the offenses in section or enumerated conspiracy chapter any to violate this or of the offenses enumerated public interest, necessary in section to the such United States upon attorney, approval Attorney General, shall make application testify to the court that the witness shall be instructed to produce subject provisions section, or evidence of this upon testify- order of the court such witness shall not excused be ing producing books, papers, ground or from or other evidence required may that the or evidence of him tend to incriminate penalty him or him ato or forfeiture. No such shall prosecuted subjected any penalty or or forfeiture for or on any transaction, thing concerning account of matter or he compelled, having privilege against after claimed his self-incrimina- tion, testify produce evidence, or nor shall so any proceeding (except proceed- used as evidence criminal in a ing sentence) against described in the next him in court. No exempt prosecution witness jury per- shall be under this section from contempt giving testimony producing or committed while or evi- compulsion provided dence under in this section.” four precedent statute conditions prescribes (1) effective the decision of immunity grant: the United Attorney States the evidence is necessary pub- interest; lic approval that decision the Attor- (2) by repealed Organized 2This statute was as of December 1974 91-452, 227(a), 260, Crime Control Act of 1970. Pub. L. §§ Stat. a violation relates to evidence the desired ney’General; (3) such of- to violate or conspiracies or 2516 of sections *6 United of the fenses; upon application the court (4) and testify. the witness orders Attorney States the im- grant the conditions precedent Once prose- satisfied, witness shall not-he have been munity con- transaction, matter or thing of any “on cuted account . nor shall . . testify he is ... 'cerning compelled crim- any used as evidence in testimony compelled so (Emphasis . . him court.” any inal . against proceeding im- broad, The and on its face the is supplied). language transaction to be munity appear applicable any about which he forced to testify. no 2514 throws in- history of 18 U. 8. G.
Legislative However, historical terpretative light the statute.3 some background helpful. is is
In the that review it essential dif process of use and immunity. ferentiate between transactional Eifth against compulsory Amendment self-incrim privilege . in any . . be compelled shall person ination is that “[n]o himself”. Immuniza against to be witness case criminal with that privilege contemplates coextensive tion or in testimony directly and information derived not be against from evidence shall used directly as “use” witness. protection commonly That is referred pro Transactional affords the witness immunity. the offense tection from for or conviction of prosecution use of It limited to the testimony. related or the fruits thereof. particular Kastigar made in was pointedly The differentiation Ed. 441, 92 32 L. 2d 1653, 406 U. S. Ct. S. 212 where the Court wrote: (1972), part as Control 3Section 2514 was enacted of the Omnibus Crime hear and Safe Act 1968. Neither the Senate Streets House ings reports congressional any explanation nor debates contain granted. scope and effect of it been after has 24 immunity, “. Transactional full from . . which accords prosecution compelled testimony relates, for the offense to which the protection considerably affords the witness broader than does privilege. privilege Fifth Amendment has never been construed subsequently prosecuted. mean that one who invokes it cannot protection against being give Its sole concern is to afford ‘forced to testimony leading “penalties to the infliction of affixed to . . crim- . ’ Immunity compelled testimony, inal from the use of acts.” as well directly indirectly therefrom, evidence derived affords protection. prohibits prosecutorial using It authorities the* compelled testimony respect, and it therefore insures that penalties cannot lead to the infliction of criminal on the 453, 1661, S.
witness.”
In 1868 enacted which pro of a shall testimony vided that the not be used in criminal wit any proceeding against as evidence such in court. 15 Stat. 37. In Counselman v. any ness Hitch cock, 547, 195, 142 U. S. 12 35 L. Ed. S. Ct. 1110 (1892), Court nullified that act because Supreme the fruits could be used against the witness. It held be legislative immunity constitutionally permissible must be coextensive with Fifth Amendment privilege self-incrimination, against position recently which has States, Kastigar been reaffirmed. v. United supra. Counselman by enacting reacted to the decision Congress law, immunity Compulsory Testimony transactional 443, 1893, 27 Stat. support Act investigatory Interstate Commerce Commission. Thereafter power statutes, enacted than 50 immunity more includ Congress 2514, in 18 U. S. C. which were the one ing question, modeled insofar as concerned after the scope is Compulsory Act. It been said that: “The 1893 statute Testimony has
25 has become of our constitutional part fabric and has been bn included substantially terms, the same in all virtually of the major enactments of the regulatory Federal Govern- ment.’ v. Shapiro 6, 68 1, U. S. S. Ct. 1375, 1378, 92 Ed. 1787, L. 1792.” Ullmann v. United States, 350 422, 438, 497, U. S. 506, S. Ct. 100 L. Ed. 511, 524 For a (1956). history immunity acts, Comment, see “The Federal Witness Acts Immunity Theory Practice: Treading Tight- Constitutional 72 Yale L. rope,” J. 1568 (1963). Walker,
In Brown v.
U. S.
S. Ct.
L. Ed. 819
(1896),
Supreme Court
the consti
upheld
tutionality
Compulsory
Act
Testimony
made the following pertinent
comment:
question
suggestion
applied
“The act
contains no
that it is to
only
declares, broadly,
person
to the Federal courts. It
that ‘no
shall
attending
testifying
be excused from
. . . before the interstate
ground
commerce commission
on the
.
. that
...
.
required
may
him,’
per
. . .
himof
tend to incriminate
etc. ‘But no
prosecuted
subjected
any penalty
son shall be
or
or
for
forfeiture
any transaction,
thing concerning
or on account of
matter or
which
may testify,’
prosecuted
he
etc. It
is not that he shall not be
concerning
may testify,
or on account
crime
which he
which
might possibly
urged
apply only
crimes
under the Federal
crimes,
passing
money,
law
not to
such as the
of counterfeit
etc.,
cognizable
laws;
which are also
under state
but the
any transaction, matter,
thing concerning
may
or
which
extends
he
clearly
testify,
indicates that
intended
to be
general
applicable
and to be
whenever and in whatever court such
prosecution may
607-608,
be had.”
A review of the comprehensive federal immunity statutes was made by the National Commission on Reform of Fed- eral Criminal Laws. This led to the of repeal the Compul- Act, 18 U. C. and other com S. Testimony
sory § Con statutes. Crime Organized federal parable et seq. of 18 U. C. trol Act on Re- Commission The ihe National Working Papers of com- 1970), Federal Criminal Laws II (Vol. form of Act noted: Testimony on the menting Compulsory “Perhaps gave unknowingly, Congress the the 1893 statute the protections present witness two nullified distinct not in the statute key phrase in the Counsebnan reads one which ‘No case. The is the prosecuted transaction, person any shall . . . on of for or account thing concerning may testify matter or . .’ first which he . . protection, flowing necessarily protect phrase, from this was the against any prosecution only his actual future based not on tips prosecu- any gained testimony leads or the but also based on broad, protection, testimony. far was more tion from second that prosecution logically any related future to shield the witness any compelled testimony. no need to show actual his There was compelled testimony gained leads there- connection between the techniques sup- particular investigative from, and the evidence prosecution. porting future the incriminating phrase literally, key bar use “Read future independent prosecution already evidence hands of disclosure, provided only to show time witness be able of relationship logical compelled his did bear prosecution. In this transaction of the future phrase key im- sense the in the Interstate Commission Commerce ‘immunity munity truly operate could be said to bath.' statute n “Since date of Brown Walker in which sustained the statute, constitutionality Congress of the 1893 has enacted more Although very they in some re- [sic] than statutes. spects, key phrase all of the retain statutes the ICC statute: person prosecuted shall . for or account ‘no tion, . . transac- thing concerning may testify [sic] . . manner or . .’ which he Further, recently, virtually very been has no discussion until there immunizing only apparent key phrase effect of and its giving but also of the witness an ‘fruits’ ‘immunity independent bar evidence also.” bath’ which will use 1412-1413). (Yol. II at needed reforms of various recommending statutes, Papers the National Com- Working like 18 U. 8. C. are mission that statutes recognized broadly too worded:
27 immunity, acting pardon. . . like a for all offenses Absolute . testimony, only related exonerates the witness for Ms being agency offense under the statutes administered con- ferring immunity, also him exonerates for Ms offenses but under where, other Federal or State statutes in all instances the offense concerning relates the area which he testified. Under absolute im- munity, granting immunity very costly society.” a mistake in (Vol. 1431). II at 53, 18, 1969, Senate No. 91-617 which Report December S. the bill which accompanied proposed repeal Act and Compulsory Testimony limitation of the life of 18 S. C. U. 2514 to four years after the date of § effective act, to transactional statutes of this referred type as follows: Normally, . “. . will extend to all sub- matters
stantially any responsive related to in a revealed answer.” (Emphasis supplied). Judicial interpretation the extent of the transactional immunity granted Work- supports view in the expressed ing Papers the National Commission and the Senate Report. in Marcus v. United issue discussed precise F. 1962), 310 2d 143 Cir. cert. den. 372 U. S. (3 L. Ct. 9 Ed. 2d 969 Mar- (1963). S.
cus had refused to testify grand before with respect the use of telephones transmit gambling information. The moved government for order to compel Marcus to for U. S. C. testify exchange immunity under 47 That section same C. (Z). reads the U. S. § except that it authorizes respect violations of the Communications Act of 1934 instead of offenses under C. U. S. 2516. The court ordered Marcus testify. refusal, After he was tried convicted for contempt. held: judgment contempt, the Circuit Court upholding testifies, compulsion “. . . But so soon as he under of the Court’s order, automatically immunity, he will from both federal and receive thing concerning prosecution, which he matter or State testifies, long is elicited is not volunteered but as his fact so by questions This him to the Court has ordered answer. *10 liability any affecting mat- his tax other matters income or include brought part grand jury inquiry. out as It is of ters course attorneys government to ensure task of the is expedient immunity given necessary broader is than to not objectives grand investigation.” important jury’s advance the of the (Emphasis supplied). F. at 310 2d 148. dictum, The Marcus and un- language, although clearly immunity states that once has been equivocally granted, any witness is entitled to to facet protection respect of his compelled testimony.
In United v. Cir. 1970), States 426 F. 2d 965 (9 Gebhard, the defendant, after been under immunity having granted U. at 47 S. C. 409 had to as a witness (Z), testify refused trial. perjury affirming, was In contempt. He held Circuit Court wrote: original jury investigation Thus, grand “. . . at which since the clearly violations, §409 Gebhard testified Title 47 his was based on
immunity prevents any type any prosecution transaction, based on thing (Emphasis supplied). matter or 426 which he testified.” F. 2d at 967. The Court of Petition Supreme Pennsylvania 439 Specter, 404, Pa. 268 A. 2d 104 held that (1970), Pennsylvania transactional should be con- immunity statute strued in the same manner as the federal Compulsory Testimony Act. It held that: things immunity transactions, matters or “. . . The relates to the specific merely concerning compelled, which immunity Jury investigate. crimes the Grand was called States, given, Marcus v. 310 extensive as the United 1962) ‘any penalty (3d ; by or F. its it 2d 143 Cir. terms extends thing’ any transaction, matter, or for or on account of forfeiture testify. coverage concerning which he is Thus the any enough crimes disclosed statute is or the by broad include offense compelled testimony.” A. 2d 268 29 four The State relies cases for the principally proposi- tion before is available there must be a substantial between the matter of the relationship federal trial and witness’ the initial the offense testimony at None at that trial. granted properly for which hold. of these decisions so Vericker, States, v. supra; Marcus United
It relies on re Harris, F. v. Cir. United States 1971); 446 F. 2d (2 382 U. S. Cir. on other 1964), grounds, rev’d (2 2d Heike L. (1965); Ct. Ed. 2d S. States, L. Ed. 450 226, 57 United 227 U. S. 33 S. Ct. (1913).
In Heike v. before Heike testified supra, Sher- grand breaches alleged investigating pro- act contained Act. investigatory man Anti-Trust transaction on account for automatic visions *11 anti-trust 904.4 The he 32 Stat. which testified. concerning Sugar American of the involved transactions proceedings an officer. Before which Heike was Company, Refining Company’s about the Heike testified grand jury the was He and some records. Company formation produced for revenue frauds because of reporting indicted subsequently anti- matter of the subject sugar weights. general false different” than the individual “wholly was trust investigation areas Heike had testified criminal matter. The' specific the were at best connected with jury remotely to before grand In that trans- which he was charged. holding fraud with the Mr. did not Justice Holmes con- immunity actional apply, cluded that: only subject investigation general . former “. . was the the Not things wholly specific different, connection but testified to had the no proof dealings than that all the facts now much closer were with sugar company.” 227 U. S. at S. Ct. at same the
L. Ed. at 4Repealed Organized by the Crime Control Act of 18 77. 8. O. seq. et § 6001
Heilce for a stands the that there must be sub- proposition stantial connection between matter initially the testified and the for which claimed is immunity subsequent crime In trial. it the instant case beyond peradventure is related substantially subject matter of State indictment.
Marcus, Veriker Harris wit refusal of involved In before testify grand juries. grand jury pro nesses necessary to between relationship it is ascertain ceedings, which and the offense on statutory basis question none, immunity If there then may granted. immunity Bursey operative. cannot become act of the provisions 1972). F. Cir. the court in 2d 1059 As (9 stated: Bursey so aptly application, upon passing court is con- “. . . application and the ac- documents
fined an examination deciding purpose companying' only whether or it for the requirements procedural application of the substantive meets the authorizing F. 2d at 1073. statute.” held in met, If the is not the witness cannot be requirement if the to answer. On the other hand for refusal contempt of the subject is so related to the matter sought information which immunization was prop for grand investigation a contempt refusal erly justify answer granted, Marcus, Veriker that, citation. Harris simply hold before the anointed jury investigation, grand may and forced or testify contempt, face offense which must be investigated one being is available questions *12 must be to that offense. related may
Grand are a number juries often investigating offenses, of different some of which not may have the protec- tive cloak of To not immunity. jury, a which is permit grand under control, to obtain whatever court information it desires even unrelated to listed offenses the with though respect which was immunity granted, in effect the enlarge of the a far a scope provision. This is cry trial, here, as where the the conditions precedent such have and the been satisfied witness’ grant examination, control, court is conducted. subject properly trial is limited offense (for At the evidence charged has been and to related relevant granted) manner, matters. there is an that immunity this assurance is extended to not relevant matters proceeding. Second Circuit Court
There dictum the of the opinion Harris, which is in dictum in Appeals quoted Second in Vericker the effect im Circuit’s decision that “insofar as that munity extends to the compelled testimony matter subject a testimony bears substantial relation to Harris, supra, United States immunity provision.” Harris Heike v. United F. cites 2d at 462. The case But as noted authority proposition. supra, between relationship with above, Heike was concerned which the and the offense with testimony charged. was subsequently trans immunity, being intended
Congress The United States conferred. actional, be lightly should not neces determining after Attorney, General, had Attorney approval and receiving sary in in the first approval That approval. court to obtain contemplated unless the would not be given stance pursued by subject being was relevant Thus, at a a or trial. grand jury whether before government, at either properly, immunized could a witness purportedly trial, or a to be relieved seek jury investigation a grand ab because such relevance was from answering question situation) (in and the court sent, reviewing grand in rul trial court would be that standard guided by or the on the matter. ing
However, a witness ordered directly once court assurance of the im statutory to answer questions one in-a trial which the matter is munity only *13 32 applicable,
for which is he does so in obedi of the under ence order fear no contempt, longer he lack of relevance between the subject peril question subject proceeding respect of which he immunity. The witness granted having was answer, been to compelled obviously it to contrary statutory intent him the full dimensions of deny v. Marcus supra, See immunity. stipulated of 18 U. C. repeal S. history re legislative and the § 2514, supra. a un precedent grant
All conditions 2514 to had Kenny U. S. C. been satisfied at der 18 on cross- testified trial. The questions time he his responses which involved miscon examination and his of the on in connection removal deed restrictions duct the Reinauer Land Com property the Secaucus owned constituted com pany proper admittedly were inquiries Thereafter subjected he could not be to State pelled. pros which he was concerning of the “transaction” ecution because The sub testimony related testify. compelled im The transactional prosecution. to the State stantially C. 2514 under U. S. applies. munity granted necessary it is not con- view of determination projected. the other grounds sider affirmed. judgment Quite im apart Clifford, J. (concurring). reach the same result as majority I would issue munity Divi Appellate holding alternative upon based 94, 108-11 Div. 1974), N. J. Super. (App. sion, beyond here the evidence went prosecutor that “[t]he his statement and his sum in both opening the indictment defendant, highly prejudicial mation. departure J. reversal.” N. justify alone standing sufficient views forth on this were set My Super. lack length, their given conspicuous at too (probably great in .a State Di of dissents influence) couple term, last J. Paglia, 64 N. J. (N. State v. 1974); Perry, N. J. 55 (N. J. and I will 1974), enlarge *14 them here in of Bischoff’s light Judge perceptive analysis of the matter below. ' With respect the I immunity have some con- question cern about what the says and what is unsaid. majority left I understand the Court’s be that position to transactional extensive as the given, regardless is as immunity testified to falls within the ambit of whether the crime of either the immunity provi- the matter statute’s subject for made the by sions or the application the by Attorney and General Attorney approved States States. runs counter to rational position the United This between the Eifth Amendment and legiti- accommodation the mate demand of to obtain informa- government necessary tion criminal to be about conduct which intended Congress U. S. O. as 18 furnished such statutes by to aid in the Immunity statutes are designed gathering reason of by of information otherwise unreachable the priv self-incrimination. Common sense ilege against compelled therefore dictates lack a for of more illuminat should ing history, be deemed legislative prosecutorial tool with deliberation the designed used govern ment in compelling testimony subject gov the ernment believes necessary the rather than public good, in exclusively device the control of defendant or the his counsel. Judicial sights should be trained on the “grant” or authorization signed the name the United States v. United Bursey F. 2d 1059 Attorney General. an excellent issue. analysis 1972), presents Cir. (9th a substantial relationship exists between As there long Attorney or the General’s “grant” matter of subject crime to which testimony relates, letter approval from any subsequent is immunized prosecu witness then the tion. Firstly, approach. flow from this advantages three
At least bath” “immunity is prevented taking irrelevant extraneous on the crimes record stating Secondly, which he testifies. proceeding 18 U. S. C. enumerated in offenses many of the §§ reason another, one no relation little bearing interest the public believed Congress to assume exists for transactional served by having request would be also to crimes one other apply crime immunity pertaining testified therein, let to those crimes apply alone listed because but could not Comment, 48 See statutory language. not included N. Y. L. Rev. And finally, ap U. (1973). trial better suited for received proach during case rather on whose during than grand inquiries law Whereas majority leans. broad pro the inordinately *15 tection in might conferred well be majority opinion order because wide potential range any grand it should not probe, ipso be extended a trial pro facto has which ceeding prescribed bounds defined issues which immunized witness not even may defend ant. Bursey, 466 F. supra, See 1076. 2d at
However, that would nor advantages position mally accrue to the State in instant sort prosecutions are not available here. The letter of from the As approval Attorney Attorney sistant the United States General “grant” authorized the extending only C. in 18 U. S. 2516(1) crimes delineated In (e) and (g). § reference in corporated by is 18 C. 2516(1) (c) U. S. § alia, inter forbids, 1952(a) use of in any facility commerce to “promote, interstate manage, establish [and], * * * carry unlawful activity.” “Unlawful ac tivity,” turn, embraces extortion in violation of the laws of the State in which committed. C. U. S. 1952(b)(2). subject matter between the relationship New crime Jersey of extortion charged the indictment herein and the provisions is obvious. The “grant” State prosecution therefore on this barred ground. ' result. J., concurring
Clifford, Fo-r Justice Justices Moun- Hughes, affirmance —Chief P tain, and Schreiber Sullivan, ashman, Clifford Judge Conford — 7.
For reversal —None. MONMOUTH, PLAINTIFF-APPELLANT, COUNTY OF v. ROB WISSELL, WIFE, ERT AND BARBARA J. J. WISSELL HIS ROGERS, AND EDGAR DEFENDANTS-RESPONDENTS. May Argued July 11, 1975 Decided