United States of America Ex Rel. Gerardo Catena v. Albert Elias, Superintendent of Youth Reception and Correction Center at Yardville, N. J

open question, we believe that re the fifth amendment quires any jurisdiction which seeks compel a witness to full immunity13 and that Con gress powerless under the Constitu requirement

tion to detract from that legislation. judgments are reversed. rel. ex

UNITED STATES America CATENA, Appellant, Gerardo ELIAS, Superintendent

Albert Youth Reception Center Correction Yardville, N. J.

No. 18855. Appeals, States Court . Third Circuit

Argued Oct. 1970. May 11,

Reargued 1971. Sept.

Decided 1971.

Stay Granted Oct. See 92 S.Ct. 111. Congress, creed must be affirmed I believe that the Fifth Amendment’s privilege against Court before this court re- self-incrimination quires any jurisdiction asked to do so. that com- pels a man to incriminate himself expressed Mr. Justice Brennan him absolute its laws similar view in his dissent from the transaction testimony. dismissal of certiorari in Piccirillo in that revealed York, (1971): pre- compelled self-incrimination

tion of requiring a witness from cludes a state investigating one of to agencies before after, pursuant ato statute granted state, immuni- he has been any testimony or any ty against him from it derived evidence any proceeding. subpoenaed to Appellant Catena was Jersey State appear the New before Investigation Commission organized investigation into anof course to an- refused He that state. crime in him, put to questions most swer pleading his pursu- against Then self-incrimination. 52.-9M-17 ant to N.J.Stat.Ann. § having “from he was * * * given by responsive answer [s] *** responsive evidence him or by him, derived produced or evidence expose him to criminal therefrom used to prosecution * * He nevertheless to answer to refuse continued pounded Following hearing, questions. Jersey found Weinberg, Superior Robert Court New L. Con- Williams & nolly, into C., Beckerman, contempt him Washington, and remanded D. him in Newark, J., custody as he should Cohen, until such time Franzblau & relator-appellant; for N. Thereafter, questions. answer the S. M. Chris Franz- blau, Newark, J., Court for District Fraen- United N. Osmond K. kel, peti- Jersey denied City, of New New York Bennett District Edward appeal fol- Williams, Washington, corpus. C., This tion for habeas D. counsel. lowed. George Doyle, Trenton, J., P. for N. appellee, Investiga- It the New State conceded Commission of tion, Trenton, J., preclude the does not N. H. statute Wilbur Mathesi- us, any Trenton, J., appellant con- for transaction N. counsel. testify. cerning That he shall Argued protects Oct. the use him him of Before McLAUGHLIN, FREEDMAN In our evidence which lead. DUSEN, Judges. VAN Circuit Jersey stat- failure of view the Reargued May 11, 1971 called ute to has come what prosecu- “transactional” HASTIE, Judge, Before Chief and Mc inadequate tion makes it an compelling basis LAUGHLIN, SEITZ, DUSEN, VAN in- ALDISERT, ROSENN, ADAMS and criminate himself. Judges. Circuit early Supreme

As fully elaborately discuss- OF considered and OPINION THE COURT Hitchcock, ed issue. Counselman HASTIE, Judge. Circuit 35 L.Ed. 1110. appeal presents cases, reviewing This After earlier state some whether prohibi- requiring the Fifth Amendment’s prosecution. holding comprehensive Brown al less

others immunity Walker, 1896, Amend- the Fifth satisfied con- opinion decision ment, 40 L.Ed. 819. The Brown the court continued anything implication less no tains follows: immunity would than full transactional “ * ** In view the constitutional Indeed, majority opin- have sufficed. statutory enactment, provision, a to be language quoted approval ion immunity valid, must afford absolute be of Counselman that the witness must against prosecution the of- future for immunity against fu- afforded “absolute question fence to which the relates.” prosecutions ture for the offense 142 U.S. at relates,” which the as well immunity hurtful use of testi- from his explicit language used this mony. dissenting And four Justices immunity deciding that an statute which took the not even a trans- that against arguably protected a witness immunity empower actional can statute subsequent introduction testi- of his compel the state to mony against in evidence him con- was to incriminate himself. 161 U.S. stitutionally inadequate. could The Court 628, 16 S.Ct. 644. adopted interpreta- have this restrictive tion and rul- confined itself to a narrow years Over the since the Counselman ing inadequate that the statute be- decisions, Brown Justice after Jus- protect it did not cause from the witness concept tice that trans- restated using testimony “fruits” immunity prosecution actional against presented him. The Court was safeguard that is coextensive with argument questioned with an guarantee of the Fifth Amendment. prohibited any proof later Frankfurter, example, For Mr. during Justice elicited facts course com- pelled testimony, dissenting issue, pointed proof on another out even made compelled testimony. no use of the “prosecutor’s insistence 558-559, Supple- U.S. at 12 S.Ct. 195. which, disclosure but for Appellee mental Brief of at 16-18. But prosecution, could be withheld is that for adopted the Court neither a broad in- given.” which alone terpretation of the statute nor stated Monia, United States whether such a statute would suffice. 424, 447, 409, 419, L.Ed. Instead, comprehen- to rule elected Mr. Justice observed that Stewart has sively that, beyond leaving the witness century more than half a it has “[f]or vulnerable hurtful use of testimo- im- been settled [transactional ny, inadequate the statute was in that munity] statute confers might prosecuted the witness still be consti- wrongdoing coextensive with some about which he had Thus, though against testified. privilege a narrower rul- tutional self-incrimina- * * ing might made, have been the Court tion Brown v. used deciding this case as a vehicle for U.S. nothing less than full transactional L.Ed.2d 609. To the same would suf- effect, see the observation of Mr. Jus- fice. That properly decision cannot Murdock, tice Butler in United States disregarded inconsequential dictum, though that to be the seems view the L.Ed. 210. present appellee. York, recently, Most in Picirillo v. New years Counselman, Four after Court considered and sanctioned a new Douglas, 2d Bren Messrs. Justices testimony required statute that under protection explicitly, and Mr. nan and Marshall of a of full transaction- Jersey (1) New had inferentially,1 that once indicated Black Justice might must the United judgment States in their testimony fruits its to a wit- use the transactional witness, against but if, with the ness consistent prosecute him could against self-incrimination, to be United still contempt, to the trans- crime for a federal related able, pain under concerning grand had testify action which New compel before him to wrong- concerning any suspected him to jury then doing. immunity, The Court “Mere use might require only against the ac- concluded that tects the individual though he testify, even the witness tual use of his against guaranteed another sov- fruits, neither the satisfies values, ereign protection no more nor the itself Constitution incriminating privilege use of New purposes, policies what and that compelled say. designed him to historically and to had serve was country.” that a free it must serve argues appellee now that because The (Bren- 563, 91 at 528 U.S. Murphy Fifth establishes that nan, J.). decided The other five Justices requires sov- Amendment of a second ground and avoided another case on ereign person more that it accord a no any of their this con- indication views on testimony origi- immunity than use question. stitutional sovereign, nally by no another immunity required of more is now foregoing The items from the record sovereign granting confer than that it Supreme has done and what the immunity place. To us in the use first various Justices have said over almost non-sequitur. ais eighty years seem to the conclu- warrant sion that it has become authoritative recognized long It has been doctrine that no less constitutional govern a a close whether grant of full transactional consti ment should be able to avoid compelling justify can witness who prohibition self- tutional asserted undertaking by any im incrimination testify suspected about Brown v. munize the coerced witness. wrongdoing. Walker, U.S. this, courts L.Ed. 819. Mindful appellee However, the asks that we re- reluctantly the immuni sanctioned have ject teaching of this line of eases be- ty device, doing in so minimized but have implications cause of said to inhere protec the erosion of Fifth Amendment Murphy Commission, 1964, v. Waterfront coercing insisting by that the tion L.Ed.2d protect possi the witness appellant 678. The there a recalci- bility completely consequent harm as trant testify witness who had refused to itas can. despite in a inquiry grant of full transactional Full His contention was that he inade- prosecution provides maximum quately safeguarded and could not be by protection afforded tection. Less required testify because the New Jer- coerced testi- from use of the sey immunity protect statute could not mony witness and fruits. For its him from or from incrimi- im- prosecuted after a nating testimony federal munity, serious confronted with he is problems proof inherent authorities. Court ruled that are testimony. compelling Douglas Ull Messrs. Justices Black had and device for that, made clear in an earlier ease like man v. United States 422, Brown, they 100 L.Ed. dissenters not could accept any immunity a valid statute as likely to de- a second state is not fact need to establish whether anything way prive it of it otherwise testimony any influenced coerced independent might prosecute have obtained its and whether the decision to damaging inquiry. Therefore, any provided evi- the considerations lead to other policy bureaucracy that a in the that have dictated involved dence. and investigation crime be transactional terms major com- usually many persons. in local effect are It will offset consists of peting difficult, impossible, effect of considerations when the often be sometimes any- satisfactorily elsewhere inis issue. whether determine how, testimony, or used the coerced one Analytically, is a decision consequence. Recollection or with what adequacy reaffirmation of the of trans- process investigative of details recognized actional decision-making of administrative coupled Brown, Counselman preceded can indictment or trial become supplementary ruling sov- that another unintentionally, occasionally convenient- ereign respect only much, must so so but vague. Thus, way ly, to make much, prohibits of that the use incriminating testi- sure prose- in a fruits mony part plays of a no in his cution under its law. does subsequent sovereign prosecution by the imply may grant that the first state less prohibit that made him is to than transactional coercing prosecuting state from him. of violation its criminal laws. Until decided, even hand, On the other additional se required or a state had witness a rious considerations of federalism arise exchange to incriminate in for himself a immunity and to when the extent grant immunity of un- granted impinges a witness state one law, sovereign der a second was held independent power of another totally grant disregard to be free to prosecute to state him. For no state Murdock, immunity. United States v. grantor immunity than the other has 1931, 72 L.Ed. S.Ct. opportunity had an to elect whether 210; States, 1944, Feldman v. United forego prosecuting a will 88 L.Ed. price paying testimony. worth for his Thus, Murphy the ef- broadened judgment And states well differ grant fect aof state’s of transactional importance desirability to the immunity imposed and for the first time prosecuting particular participant a immunity testimony upon use as to such wrongdoing. Thus, deprive to a jurisdictions. non-consenting other right prosecute to a violation of posi support appellee’s for its criminal law on basis another tion that we find in is an ob state’s would be servation, collateral to under the matter gravely derogation sovereignty of its discussion, concurring opinion in a and obstructive of its administration of White, Mr. Justice Mr. Jus whom justice. my joined, tice view Stewart “[i]n merely prevent But possible to a state from it is for a federal using the or text the fruits of coerced to be on after based untainted evidence testimony exchange another obtained a of federal likely much testimony is less intrusive less for to in a in federal criminal vestigation.” obstruct the normal administration justice. unwillingness However, For the same to at 1618. it merits mention testify led subsequent to case, first state in a here that Stevens always Marks, 1966, would almost make the S. testimony reluctant witness un- Ct. Justice Mr. any government. Harlan, available to other with whom Justice Stewart Mr. Thus, imposition suggested joined, proper use case e., ease, i. prosecutor’s context of might appropriate to reconsider can prosecution’s evidence These indica whether Counselman. the reach given testimony willing to to the be traced are Justices tions that three immunity. grant of under Counselman defendant the rationale of reexamine dis- of such effect proper what about But do not make it and Brown to long defense defendant’s reject on the so to closures inferior court doctrine charges? applied repeatedly the criminal declared and Accord, Matter Court. case, most one of In F.2d 32. Korman, Cir., 7th must a defendant important decisions F.Supp. S.D.N.Y.1971, Kinoy, In re testify. indi- If an to is whether make States, 407; contra, v. United Stewart immunity, being vidual, after grant Cir., 1971, F.2d cert. 9th the same prosecuted for subsequently Kastigar ed, nom. v. United sub and elects transaction a related or 1668, L.Ed.2d behalf, he testify own his trial Men Sanitation Uniformed cf. cross- subject himself to of course must Commissioner, Ass’n, Cir. 2d Inc. v. prosecutor is obvious- examination. 426 F.2d 622-624. questions, tailor ly in a additional For and the these reasons otherwise, basis consciously on the concurring opinion in the reasons stated prior knowledge defendant’s Judge hold Chief Seitz we without testimony do so and can given to the reference overt enough justify comprehensive circumstances, In these contempt of the coercive sanction of object effectively defense counsel could he compel appellant after ground that on the claimed had his constitutional In- not. thereby I think violated? It follows self-incrimination. judge other deed, do could trial how way that he entitled to relief representa- accept prosecutor’s corpus. habeas faith, good tion, might well be corpus judgment denying by habeas inspired questions not were appears And will be reversed. since given by the defendant deprived appellant has been Furthermore, immunity? this liberty year for more than a adversely because influence possibility same testify, man- right of his lawful refusal entirely forego a defendant date of though this court shall issue forthwith. even in behalf his own prior disclosures that his is advised he against him. SEITZ, Judge used cannot be (concurring). Chief largely course, important here, The ultimate issue Based on the above, compatible subjective I whether use mentioned factors rights. practical say Fifth assurance Amendment with reasonable cannot importance immunity places de- an individual is that the answer that use prosecution is position termines whether criminal substantially the same in ever of immuni- consistent with though previously testified. not he had ty. dictates I the Fifth Amendment believe in favor the doubt be resolved clearly Use offends if, im- later criminal Amendment in transactional the defendant and that prosecution, a defendant such munity the minimum must considered in the same requirement the Consti- consistent with though he had not In other testified. tution. words, immunity granted must leave the Court I conclusion concur the substance of the Fifth Amendment Court judgment District right nat- There been undiluted. tendency ural to discuss issue should be reversed. ADAMS, Judge (concurring). Circuit possible. Army if this is See Rescue et Municipal City al. v. Court of Los totally Were we free to consider Angeles, 331 U.S. 67 S.Ct. Fifth Amendment in its literal form as (1947); 91 L.Ed. 666 v. Stefanelli case, expressed it relates to cf. this view Minard, 117, 121, 342 U.S. by Judge appear Van Dusen would to be (1951). As noted below at appropriate However, we are one. pages (see 12), 9 and 10 Jeannette, Douglas City 319 3. v. of In only respect ‘responsive’ ness to 877, 1324 L.Ed. 63 87 S.Ct. answers or evidence. The limitation is (1943), the Court said: prevent intended to ing a witness from seek- adopted legislation, “Congress, has protection by volunteering undue policy, well defined with certain the already what the State knows or will leaving generally statutory exceptions, of likely come without the witness’s of criminal the trial to the state courts purpose trap. Fairly aid. The is not to subject laws, arising under state cases construed, protects the statute the wit- any federal this Court of to review against ness answers and evidence he in questions involved.” good faith believed were demanded.” Supreme pending in Court the has Catena N.J. 55 at 261 at A.2d application for an United of the States appellate complete the The the denial state sentence from review of which this challenge quotation (392 this New 276, to is of his taken court U.S. at 88 Jersey, 1915) No. v. New S.Ct. at See Catena reads: statute. (40 may L.W. compelled regardless Docket the “Answers on 1971-72 70-84 of expedite 3006), of privilege consideration the motion to if there is from 952, denied, appeal 91 S.Ct. compelled and 401 federal testimony the The Su- L.Ed.2d 235 28 or its fruits in connection has preme States the against with a criminal Court jurisdiction person probable testifying.” of a 1969 noted chal- appeal similar Supreme of a the denial from Decisions Court lenge statute. subsequent the same to United States to the

47 constitutionally sufficient Minard, 342 U.S. In Stefanelli scope is coextensive with 138 96 L.Ed. 72 S.Ct. * “* * against self-incrimina- (1951), said: the Court majority a concludes tion. to intervene refuse federal courts should * * immuni- at minimum *. statute must proceedings criminal State ty to prosecution for the offense adjudication lodestar Court’s [T]he relates which the con- ‘should be statute has been that privi- order to be coextensive with respect proper bal- so as to strued lege self-incrimination, relying against and the federal ance between the following principally upon the [Citing government in law enforcement.’ support Counselman this conclu- Jersey Supreme Court The New case.].” sion: decision made clear significant impact majority will have provi- “In constitutional view law the criminal on the administration sion, statutory enactment, to be val- or- Jersey, problems with where New id, must afford absolute ganized re In In are extensive. crime prosecution for the of- future Zicarelli, A.2d 261 55 N.J. fense to relates.” which (1970), court said: & 142 Counselman In Court held uncon- “ * * * inquire in- a commission stitutional a federal office, performance public prohibited which pub- of crime trace tentacles prohibit testimony, but did which * ** [p. sectors, private lic and from such use of evidence derived 137] testimony. majority rejects the con- ****** clusions that Court followed the tra- alleg- questions to an deciding “Here the relate practice constitution- ditional organization, edly possible ground, massive on the al cases narrowest in that accordingly, witness’s associations that, held the Court subject context. The matter is incon- because of statute unconstitutional testably interest criminal and the prohibition the omission of on the use the State manifest.” testi- evidence derived mony. Instead, majority Hitchcock, concludes In 142 U.S. Counselman v. (1892), compre- the Court “elected to rule S.Ct. 35 L.Ed. 1110 regarding Supreme hensively” the minimum re- Court held Hale, (1906). Brown how- Commission L.Ed. Zicarelli State ever, provided Investigation, full involved statutes 401 U.S. or on “for ac- L.Ed.2d 213 This thing, transaction, matter or the fourth case listed on the count of 1971-72 Supreme concerning Docket of the of the Unit- which he Court * * (No. 69-4, 3005). U.S. at ed States duce evidence 40 L.W. ; Also, at 645 the United application bail v. United States has denied 370. Ullman Zicarelli, by relator, (1956), on also involved after its notation relied jurisdiction. ap- probable provided A similar a which full statute plication pending appeal Angelo prosecution. In in Albertson v. Subver- for bail Jersey Board, v. sive 382 U.S. Bruno New State Comm’n of Activities Control Investigation 70, 194, (1965), L.Ed.2d 165 submitted to Justice S.Ct. 15 86 1971, language 6, Brennan the Counselman relied on March some of resubmitted by again quoted. Burger, upon But Chief and denied relator was Justice 9, Albertson, Counselman, like involved an the Chief Justice on March 1971. held uncon- which was statute prohibit 585-586, 4. the for 142 U.S. at 12 S.Ct. 206. stitutional failure at “investigatory language and evidence can be found in Brown leads” other Similar 591, 595, Walker, v. admissions. 382 161 U.S. 16 S.Ct. derrived from 644, (1896), 80, v. 86 194. 40 819 and Hale U.S. at S.Ct. 43, Henkel, 67, 370, U.S. 26 50 201 S.Ct. 48

quirements testimony, a valid rived statute. from such would leave the is- more needs to said on “the witness Little and the Federal Govern- position Counselman substantially in ment in whether the sue same majority privi- as if relied constitutes the witness had claimed his lege holding grant mere in traditional sense or of a absence dictum,5 Supreme immunity.”8 re- for the Court will If a question prohibits consider this Term.6 the use of tes- timony, well as as derived from evidence controlling conceptual basis testimony, places such a “in sub- witness “leg- Counselman the decision in stantially same the wit- as abridge islation cannot constitutional privilege,” ness had claimed his privilege, replace and that it cannot or require- meets supply one, at least unless it is so [sic] “legislation ment of Counselman broad have the same extent abridge privilege, cannot a constitutional scope 585, and effect.” 142 12 U.S. replace and that supply it cannot [sic] Murphy S.Ct. at 206.7 In v. Waterfront one, at least it is so unless broad as to 52, 1594, Comm’n, 378 U.S. 84 12 S.Ct. have scope same extent and ef- (1964), L.Ed.2d 678 Court held I fect.” thus conclude that prohibiting govern- a rule the federal immunity provided by Jersey the New using testimony ment from is coextensive with the self-incrimination and therefore through immunity, constitutionally hibiting sufficient.9 well the use evidence de- Jersey Murphy 9. The Comm’n, Court New reach See v. Waterfront 378 Zicarelli, 52, 104-106, 1594, ed the same in In U.S. conclusion re 84 S.Ct. 12 L.Ed. (1964) 249, prob. (1970), J., concurring). 55 (White, 2d N.J. 261 678 A.2d 129 juris, Although majority opinion noted sub nom. v. Zicarelli New Investigation, cited or State discussed Comm’n Counselman in four 933, places, 916, 401 91 different Counselman U.S. (1971). S.Ct. was never proposition urged by cited 213 Court of for the United States majority Appeals for the reached this case. In Unit Ninth Circuit has Ullman v. States, 497, 422, ed same conclusion 350 U.S. on constitutional 76 S.Ct. 100 States, (1956), interpreted Stewart v. United 440 L.Ed. 511 issue the Court (9th Cir.), granted the ing F.2d 954 cert. decision in Counselman in sub the follow Kastigar nom. v. United 402 manner: Hitchcock, 91 U.S. S.Ct. 29 L.Ed.2d 135 “[I]n Counselman v. 142 (No. 1562, Term; renum U.S. 12 1970 35 L.Ed. Term). bered No. preme The Su Court 1971 unanimous had found constitu- tionally inadequate predecessor Court California Appeals York have reached 1893 Court also statute because the incomplete, conclusion same on constitutional in that merely Byers Court, Cal.2d issue. 1039, v. Justice forbade the use of the Cal.Rptr. 553, given protect 458 P.2d 465 and failed to a witness (1969), other vacated and remanded on future based on knowl- grounds edge Byers, sub nom. California v. sources of information obtained compelled testimony.” 29 L.Ed.2d 9 (1971) ; People LaBello, 24 N.Y.2d v. 76 S.Ct. at 506. 301 N.Y.S.2d 249 N.E.2d jurisdiction probable See notation of (1969), writ of dismissed sub nom. cert. on in2 Zicarelli v. New York, v. New Piccirillo Investigation, State Comm’n L.Ed.2d Contra, Kinoy, F.Supp. In re (S.D.N.Y.1971). 7. The Waterfront also Uniformed Comm’n, Ass’n, Men Inc. Commis Sanitation 1970), (2nd sioner, L.Ed.2d 678 cited this 426 F.2d 619 Cir. Counselman, principle petition filed, established U.S.L.W. 3001 for cert. 39 citing prop- 1970) (U.S., (No. without Counselman for the 1970 June by majority urged Term). Term; osition the in case. this No. 1971 renumbered at 84 378 S.Ct. at 1610.

49 guarantee strengthened by in the claimed is asserted This conclusion is proceedings. Hogan, lesser Malloy the federal Since decision in 378 U.S. immunity (1961), the use of of from de- standard 12 L.Ed.2d 653 compelled testimony Murphy, day derived in and evidence cided the which same satisfy the re- therefrom held to the the Fifth Amend- Court held that quirements privilege against of the Amendment Fifth ment self-incrimination binding Murphy, to the there little reason believe on the was made states immunity thus, Malloy that the stricter standard Fourteenth Amendment. prosecution me, insignificant in Counsel- from referred to seems to renders constitutionally required.10 inter-jurisdic- Murphy man is fact that an immunity (involving tion decision majority The that insists question jurisdiction’s what effect one prosecution immunity from is the mini- upon subsequent immunity immunity mum with the coextensive jurisdiction) another scope privilege against self-in- intra-jurisdic- while Counselman anwas above, crimination. As noted the Fifth immunity (involving tion decision provides person Amendment no immunity scope of must be what “shall be criminal case given by jurisdiction compelling tes- against abe witness himself.” The timony), governing for the substantive from guarantee constitutional cases both the witness affords was that of the Fifth Amendment. greater protection the Fifth Malloy rejected Court in notion him, Amendment for the Fifth affords govern different scope standards protection Amendment affords no one guarantees substantive of the Bill of prosecution. from criminal On the oth- Rights, depending hand, er from use whether Broderick, supra 276; privilege See Gardner v. of a claim of on based the same Maryland, prosecution, depending Adams v. 347 U.S. feared on whether York, But Piccirillo v. see the claim was asserted in state or Therefore, federal court. the same (1971) (per dismissing 2d 596 curiam writ standards must whether an determine certiorari) dissenting). (Brennan, J., accused’s silence in either a federal or justified.” apparently proceeding Court desired Counselman, passages so to limit S.Ct. at 1495. opinion suggest reasoning This which leads to the conclusion quoted from use is sufficient are extensive- ly, pas- while there are no and evidence derived therefrom is coexten- references to sages appear require supplant sive with and sufficient prosecution. against privilege See The self-incrimination secured Court, Term, against infringement by the states Harv.L.Rev. Amendment, Fourteenth since Court Malloy Hogan, In held that compelled testimony and evidence de- analyzed application rived therefrom was coextensive against guarantees privilege states of the individual self-incrimination secured Rights through infringement by gov- Bill of the Fourteenth the federal holding scope In Amendment. the Fifth ernment Amendment. Other- privilege stated, reasoning under Fourteenth wise leads to Amend- prosecutions that, guarantee ment in state was the same conclusion when the same scope Rights involved, as the of the Bill there is prosecutions, Amendment for a federal no basis different rule for different jurisdictions regarding Court noted that had: the extent “rejected guarantee. the notion that the Fourteenth tection afforded But applies York, to the see Piccirillo v. New subjective ‘watered-down, version (Per certiorari) guarantees dismissing the individual of the Bill of curiam writ of * * * (Brennan, Rights.’ J., dissenting) ; Kinoy, re In F.Supp. (S.D.N.Y.1971). Sjí íjí incongruous “It would dif- to have validity ferent determine the standards

50 believe, however, that I testimony de- compelled and evidence through accomplished a broad testimony the this can be affords from such rived concept “evidence the definition protection that same witness testimony,”11 compelled as namely him, derived affords heavy by placing burden give as well being protection “forced independent, proving an there was that leading infliction of testimony to the * * * disputed evi- legitimate source criminal ‘penalties affixed ” * * prosecutorial authorities.12 on the dence v. United *.’ Ullman acts of the “fruit 507, dealt Courts have States, 422, 76 many years, poisonous concept for tree” (1956). If 497, L.Ed. 511 100 why experience that testimony and I see no reason compelled not rights protect not suffice to will testimo- from such derived and evidence testimony persons been from whom testimony in- ny, cannot lead to grant compelled pursuant of im- to a penalties upon criminal fliction of munity. witness. Judg- I district court would affirm the immunity from use of Of course least, stay or, ment at the the decision compelled testimony and evidence deriv- pending action Su- case protection to ed therefrom affords less preme Court of the United States Jersey Zicarelli Comm’n State v. for the offense to which 69-4, 1971-72, Investigation, Docket No. compelled testimony I do relates. While Court of the United immunity is not believe the latter States, supra at n. 3. constitutionally agree required, I do diligent protect courts should be rights testimony persons McLAUGHLIN, J., from whom this dis- Joins compelled pursuant senting opinion.

has been to a requirement background 11. Viewed fruits” the Fifth of con and Four- Amendments, stitutional decisions teenth immunity and as the Organized cases, well the search and seizure afforded wiretap cases, 1970, I Crime 91-452, Act of believe that “evidence Control Pub.L.No. 1970), compelled testimony” 201(a) (Oct. 15, derived from must be § prohibit (approved by construed to gatory of “investi U.S.L.W. Judicial its leads” obtained from tes Conference United States at timony, 16-17, 1970, meeting, Report March as well as the results of those Proceedings Cf., g., leads. e. v. of the Judicial Conference of Albertson Subversive Board, the 1970]). [March United States 18 Activities Control Murphy ; v. Waterfront 86 S.Ct. 15 L.Ed.2d 165 Comm’n, Comm’n, U.S. 84 S.Ct. Waterfront (1964). L.Ed.2d 678 (1964) (White, J., concurring) ; Wong Jersey for the New Sun v. United 487- Counsel State Com Investigation position L.Ed.2d mission of took the Jersey argument in his brief and at oral before Counsel for the New State Com- panel original Investigation that once a criminal mission of took this view of argument defendant demonstrates that he has testi the New statute at oral panel, original from the he took fied under before where to matters derived” from Commission sequent related to his sub that “evidence prosecution, comprehended evi- the New all prosecutorial focusing in- authorities would dence obtained vestigation virtue showing have the burden of that their evi on a witness a result of his dence derived” from He “evidence disclosures. further stated they compelled testimony, you compel and that [a witness] “once independent, legitimate give anything had an source for even an answer flows Ap protected.” disputed remotely evidence. See Brief for it must be pellee 8-10; Water It noted cf. Comm’n, n. front so construed is as afforded this statute “testimony scope L.Ed.2d as the broad notes interpreting constrained the Fifth Jersey the New law enforcement authori by pronouncements ties, Jersey Supreme as well as the New Supreme various cases Court,1 given have a broad construction majority opinion. cited in the There- immunity granted fore, reluctantly this statute I concur in the result very which comes close to majority opinion. reached construed, As so there is DUSEN, Judge VAN (dissent- Circuit * * * clearly “immunity from use of ing). compelled testimony its fruits I respectfully I dissent because believe connection with a criminal immunity granted N.J.Stat. person testifying,”2 Ann. (1970), 52:9M-17 § as construed requirement is the of the most recent applied by the New authori- opinion Supreme Court of the ties provision does not violate the construing language United States ** * person “no shall be of the Fifth See Amendment. Gardner case to be a witness Broderick, v. 88 S. against himself” in the Fifth Amend- (1968). Ct. ment to the United States Constitution. Second, pub- “longstanding there ais principles Two basic ju- of the federal policy against lic diciary court interfer- federal background form the of decision in a proceedings.”3 case ence with state court such this. Younger Harris, First, a state statute should be con- strued 91 S.Ct. federal courts as constitutional construing decision, page below, 1. In have discussed N.J.Stat.Ann. 52:9M-17 example, view; agreed see, with this Court New Zicarelli, used this In re Marchetti 58-59, N.J. L.Ed.2d 889 261 A.2d Gault, (1967) ; : In re “Nor do see L.Ed.2d 527 substance we com- plaint protects that our statute the wit-

Case Details

Case Name: United States of America Ex Rel. Gerardo Catena v. Albert Elias, Superintendent of Youth Reception and Correction Center at Yardville, N. J

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 12, 1971

Citation: 449 F.2d 40

Docket Number: 18855_1

Court Abbreviation: 3rd Cir.