*2 GARTH, Circuit Judge. appeal requires
This us tо determine whether a defendant who has been tried and convicted but yet sentenced, and post-trial whose motions were still pending the government time sought his tes- timony codefendants, at the trial of his compelled to testify grant under a immunity. Upon his refusal to testify, the district court entered an order of contempt pursuant and confinement to 28 U.S.C. Although 1826. the government § contends termination of the trial at which he testify moot, was to renders this appeal we Nevertheless, disagree. we hold that Pisci- otta’s could be compelled. We therefore affirm the order of contempt confinement. and I.
Vito N. Pisciotta was one of five defend- ants indicted for violation U.S.C. 1962 § (racketeering) 7206(1)(sub- and U.S.C. § mitting false income tax returns). Three separate jury trials were scheduled. Pisci- trial was otta’s severed from the trial of his codefendants, and he was tried to a jury on and convicted November 1975. Marston, Atty., David W. U. (Collitt) S. Walter S. Another defendant sep- was tried Jr., Atty., Chief, Batty, Appel- Asst. U. S. arately acquitted. and The trial of the Division, Pa., Philadelphia, appellee. late defendants, remaining Frumento, three Millhouse and Sills commenced March Peruto, Rose, A. Charles Burton A. Phila- Pisciotta, who at that time had not Pa., delphia, for appellant, Vito N. Pisciot- post-trial and whose been sentenced mo- ta. pending, tions were still subpoenaed testify on March Argued March at the trial his three codefendants. Af- SEITZ, Judge, Befоre Chief and RO- quash the subpoena ter his motion GARTH, Judges. and Circuit SENN denied, Pisciotta invoked Fifth Amend- Reargued Nov. privilege and to testify. refused court, SEITZ, Judge, government, Chief and VAN district on motion Before DUSEN, ALDISERT, ADAMS, GIBBONS, thereupon granted un- ROSENN, HUNTER, GARTH, der WEIS 18 U.S.C. 60021 and directed § him to Pisciotta, Judges. answer. consulting Circuit after with his provides: provide pro- 1. 18 U.S.C. or other information in a ancillary Immunity ceeding generally to— refuses, (1) grand jury on a witness the basis Whenever court of the United self-incrimination, privilege stay dismissed as moot the motion for a ques- to answer attorney, refused still custody. Thus re- the direct his continued refus- Upon put to him. tions mained. Pisciotta in con- found al, district 1826(a)2 or- 28 U.S.C. §
tempt
the trial
The end of
of Pisciotta’s code
custody of
in the
confined
him
dered
consequent
release
fendants
proceedings
until the
Marshal
(see
1826(a)(1),
custody
U.S.C. §
*3
of
purged himself
until he
or
terminated
héaring
supra) prompted
panel
note
the court’s
complying with
contempt by
direct appeal
require briefing
to
Pisciotta’s
order.
appeal
the issue mootness. The direct
on
panel
23,
argued
on March
1976.
was
stay
for a
immediately applied
Pisciotta
Subsequently,
filing
panel
before
of confinement.
1976 order
the March
it was ordered pursuant
to this
opinion,
filed a
was denied. He then
application
His
Operating
Internal
N. 4
Procedure
Court’s
stay of custo-
sought
a
appeal
notice
case be listed for
rehearing
in
appeal
оf his
from
the outcome
pending
dy
banc.4
panel
A
this
order.
court’s
the district
stay by
motion for
denied
II.
Pisciotta
1976.
March
dated
order
The panel,
that decision.
sought review
has
contended
as a re-
“Motion for Review”
treating his
from the district
appeal
court’s order of
reconsideration, denied his
panel
quest
adjudicated
1976 which
March
Pisciotta
Pisciotta
Finally,
on March
motion
contempt and which ordered
to be in
his
the court
in banc.
review
sought
is now moot because the court
confinement
at which he was
proceeding
testify
to
for in banc con-
Pisciotta’s motion
While
and he has been
terminated
released from
appeal of
sideration, along with his direct
agree.
cannot
custody. We
3,1976 order,
March
court’s
the district
States,
Court,
trial of
this
In
Pierre v. United
St.
before
Therefore,
910, 911,
on
ended.3
Engineering
law
(1974);
40
1
denied. Our
should not be that
115, 125,
rigid.
L.Ed.2d
94 S.Ct.
Board,
Pregnancy often comes
Parole
429 U.S.
more than
Kentucky
once to
Scott v.
woman,
general
and in the
(1976)
same
pop-
60, 97 S.Ct.
ulation,
survive,
if man is to
This
will al-
J., dissenting).
ap
(Stevens,
Pregnancy provides
us.
ways
standard,
seeming
in
despite
plied
justification for a
сlassic
conclusion of
Schiavo,
in United States v.
applicability,
truly
It
could be “capable
nonmootness.
banc)
denied,
Cir.) (in
cert.
(3d
F.2d 1
504
repetition,
yet
evading
review.”
42
688
95
L.Ed.2d
S.Ct.
419 U.S.
ICC,
Terminal
Southern Pacific
Co.
of a
we considered
merits
(1974), where
498, 515,
279, 283,
U.S.
31 S.Ct.
55 L.Ed.
although
trial to
press
order”
“silence
(1911).
Ogilvie,
Moore v.
See
pertained had been com
which the
1493, 1494,
U.S.
held that
pleted. This Court
(1969);
L.Ed.2d 1
Carroll v. Princess
be dismissed
moot even
should not
175,178-179,
Anne,
89 S.Ct.
longer
existed
re
though there
(1968);
L.Ed.2d
newspapers
reporter.
straints
Co.,
629, 632-633,
v. W. T. Grant
345 U.S.
dispute
said in Schiavo
894, 897-898, 97 L.Ed.
yet
repetition
evading review”
“capable of
because
at 712.
moot,
were deemed
it is
If this case
*5
Super
Engineering
Tire
Co. v.
McCor-
of the press
that members
who
unlikely
kle,
115,
1694,
416 U.S.
94 S.Ct.
had been appeal as Pisciotta’s moot. been lifted. Press had in Nebraska straints in each discussed, instances While Supreme these each of instances Yet in Supreme Court has determined that repetition caрability found existed, repetition” “capability we are of mootness, pro- suggestion of rejected that such capability perceived view controversy. the merits of the ceeding to satisfy the governing true consider- so as perceive no difference example, we For the Court’s decision—that of ation behind exposure to future Pisciotta’s between having significant review available when proceedings and the or court grand jury are at stake. We are interests satisfied by foreseen circumstances pursuant Pisciotta’s confinement to an in the event a new Press in Nebraska contempt, whether order or not gag a new was ordered repetition within the exact capable same Indeed, speculate we need not imposed. framework, must not escape desired review grand to Pisciotta’s future respect “gag more than should orders” where involvements, for has government jury exists; for the “gag” longer the reason give subpoenaed Pisciotta once to already where pregnancies pregnancies, have testimony, terminated; and has indicated an grand strikes, dispute where the Further, again.8 call him we Indeed, intention settled. conceding been by appeals may be taken economic, mindful importance are Amend- First codefendants, ment, which result personal discussed, interests we proceedings at which Pisciotta’s that even weighty in new trial more and deliber- believe Hence, required. the cir- given will consideration should be to in- ate giving rise to Pisciotta’s con- personal liberty where has been de- cumstances stances Hence, repeti- even “capable “capable rep- at least as if the prived. finement are criterion here, those circumstances which could not be satisfied tion” as etition” subpoena calling government by Pisciotta to 8. The blazed in the the trail lower courts DeFunis grand jury quashed before permit subsequent petitioners suffering motion Pisciotta. the district alleged deprivation same to arrive Although appealed the district timely in a more fashion. the Court action, Pisciоtta No. court’s contrast, Here, proba- Pisciotta can —and *7 July 1976), (3d this Court Cir. 76-1275 will, bly supra testify note 8 to see —be called government’s granted to dis- own motion the again, distinguishes a fact which his case from appeal as moot. not- The miss the ground The second in DeFunis DeFunis’. is subpoena again in Pisciotta its intention ed inapposite: equally Pisciotta’s case reached brief, Supplemental Brief for see in banc dispatch, yet by with the time it this Court Appellee this intention at at and reiterated completed argued trial was and his confine- the argument. oral Nothing in lower ment had ended. the opinion Supreme the not view Court’s 9. We do proceedings here will review of facilitate future Odegaаrd, in DeFunis anyone of or of confinements else. mandating (1974), 40 L.Ed.2d Nor does the Court’s recent remand In re conclusion. DeFunis the Court different Kentucky Board, in Scott v. Parole 429 yet evading “capable repetition jected the (1976), con- n First, exception for De- two reasons. review” The result. decision of the Scott trol our ma- student, Funis, soon:to-be-graduated law simply jority a remand to consider the alleged again subjected the be never could dissenters, question; see id. three mootness which had denied him admission discrimination 343-45, 60-64, have found would S.Ct. at school, graduation as since his law before the then the on record nonmootness again applying that he would never sure Court. Second, speculаted admission. Fifth could not countenance dis- Amendment privilege we nevertheless remained avail- appeal Pisciotta’s able. missing moot. dilemma, That Pisciotta contends, con- aware that Pisciotta’s confine- We are sists of the if following: his testimony is civil ment resulted from order of con- (i.e., untruthful exculpatory as him), he
tempt charges rather than from criminal subject prosecution will be for perjury; subject appeals of the which were yet, if the is truthful (i.e., incul- However, Pierre both St. and Sibron. when patory), against it can be used him to personal fundamental liberties are issue impeach at any subsequent and review an order confinement as a prosecution. But imposes § no such avаilable, matter is not there practical is dilemma, choice, mandates no and, such as a logic and no for distinguishing little basis result, permits no such consequences. between character the underlying have caused The threat of a perjury prosecution, events which the defendant to as it implicated is Compare half of imprisoned. Bursey supposed United dilemma, is real (9th enough. 466 F.2d 1088-89 Cir. United States Hockenberry, 474 1972) (3d F.2d 247 (appeal contempt from 1973), order under 28 Cir. held that: 1826 for U.S.C. refusal to § grand jury not though quite moot even apart term from question of self incrimination, grand jury expired) witness who testifies be- Schrimsher, required F.2d fore a grand 843-44 is and sworn (5th 1974) to tell truth. (appeal grant Cir. from criminal con- of immunity superimposed upon is tempt order not moot even though requirement. confine- granted Protection terminated.). ment for two hours had inju- future rious use incriminating- truth that reject government’s contention is required the witness to speak, not may not that we review order March against prosecution for or the use of any of Pisciotta’s release 1976 because from exculpatory falsehood that he utter custody, we hold required to avoid admission of wrong- is not moot. that order Hence, doing. the immunity statute permits properly prosecution for perjury III. committed in an otherwise immunized statement also introduction in right Pisciotta claims a constitutional not evidence of so much the statement as despite grant testify, immunity.10 to establishing essential corpus de- regard argues He that due for his Fifth licti. rights requires reversal of the Amendment Id. at 249. This conclusion has recently He contempt. district court’s order bas- by echoed been the Court of Appeals for the argument alleged es his on an disparity Seventh Circuit: scope protection guaranteed between the witness perjury commits in giving privilege against [I]f by the self-incrimination compelled testimony, grant immunity provid- that afforded immunity will protect him from a (See U.S.C. supra). ed note perjury prosecution since at- whether We must determine 6002 immu- *8 taches to false testimony given pursuant nity is coextensive with Pisciotta’s Fifth immunity order. privilege Amendment it whether results posed by in the dilemmа Patrick, Pisciotta which 381, United v. States 542 F.2d 385 Pisciotta claims he would not (7th 1976).11 confront if his Cir. Similarly, the Court of regard, complaint In this is similar immunity could not be the basis an “in- rejected Liddy, that considered and in In re 165 prosecution consistent declaration” under 18 254, U.S.App.D.C. (1974). F.2d 506 1293 held, however, 11. The Patrick court that incon- testimony given grants sistent under different
542
privilege
coextensive with
and suffic-
has stated
Circuit
Appeals for
Second
it.
supplant
toes
immunity granted by the Consti
that “[t]he
upon
confer
the witness
does not
tution
establishes,
therefore,
Kastigar
that use
tes
himself or to withhold
perjure
right
immunity
use
derivative
under
6002
§
Tramunti,
States
500
timony.” United
guaran-
for the
satisfactory substitute
is a
denied, 419
cert.
1334,
(2d Cir.),
Indeed,
1343
F.2d
Fifth Amendment.
of the
ties
667,
1079,
contumacy
95 S.Ct.
Kastigar
U.S.
Court conceded
States,
v. United
222
(1974). Cf. Glickstein
justified
protection
if
a lesser
would be
offered,
71,
(1911).
immunity granted
139,
L.Ed. 128
for
32
56
was
U.S.
“[if]
protection
as the
comprehensive
not as
is
immunity
conclude that
6002
petitioners
by
privilege,
were
afforded
protection
the witness the same
offers
answer,
refusing to
justified in
and the
prosecution
perjury
a
for
against
contempt must be
vacated.”
judgments
provide
Amendment
Fifth
—which
S.Ct. at 1659.
Id. at
92
Bonk,
re
none at all. See In
527
say,
Here,
claims that Pisciotta’s
no one
(7th
1975). Pisciotta’s
F.2d
125
Cir.
government’s
could be used in the
responses
un
perjury prosecution
for
fear of
against
subsequent
him at a
chief
case
might
he
make
statements which
truthful
contravene
Clearly, such use would
trial.13
oath is thus well-founded.
in a Kasti
Kastigar,
exposed
and would be
However,
move this
for his “dilemma” to
gar
hearing.14
hearing,
the bur
At such
immunity
not
rule that
6002
does
Court to
to show that
government
den
of Fifth Amend-
the full measure
provide
derived from sources other
evidence
protection, he must demonstrate
ment
testimony is a
immunized witness’s
than
his truthful
immunized statements could
States,
Kastigar v. United
su
heavy one.
he cannot do.
against
used
him. This
1653;
pra, States,
(2d
Goldberg v. United
may give —used —even majority’s I concur in the affirmance of him. court’s order contempt the district of and I concur also in the dis confinement. Part II of the such circumstances Under majority opinion Pisciotta to tes ordered extent that it properly court finds trict immunity, and on his of grant legality justi- of Pisciotta’s confinement after a tify ciable; him held testify, ordered properly persons can, position Pisciotta’s I refusal We think contempt and confined. think, present problems “capable repeti- of entry and of the district court tion, believe, evading actions review.” I do not yet 3,1976 fully justi March were however, orders reviewing that in the legality of States, supra. Kastigar fied. confinement it is either neces- proper for this court to sary or decide the Having concluded statutory and question constitutional1 Pisciotta under U.S.C. § granted that Pisciotta interpretation raises. I and protection coextensive him afforded affirm the order of the court would below Fifth Amendment with his commensurate simply because neither here nor in the dis- of the district that the actions and privilege any legal trict court did Pisciotta raise issue confining properly Pisciotta were any bearing that could on the the district court’s taken, affirm we will legality testify; refusal to thаt refus- of March al, remaining legally unjustified, was there- concurring. ROSENN, Judge, Circuit punishable by contempt order. fore majority, opinion in the concur I claiming that By uncertainty about that inca- exception of dictum meaning respect of section 6002 with would not render repetition pability justified impeachment uses his re- future at 540- majority op. moot. See appeal testify, Pisciotta in effect asks this fusal advisory opinion: court to render demonstrates, statutory we resolve the the cir- matter how Judge As Garth raises, con- question rise to Pisciotta’s Pisciotta our giving constitutional cumstances capable indeed impact release are can have no on the out- resolution finemеnt us, this case falls consequently, which repetition; issue before come of gen- exception to a well-established testify. within of Pisciotta’s legality refusal to Therefore, of mootness. principles eral is, (but, if we follow excellent I That appear to be no need for would there abstract) analysis think, majority that, even if the cir- assertion gratuitous hold that section 6002 forbids opinion incap- underlying this case were cumstances uses, then we must impeachment future not be repetition, able that Pisciotta had no fifth amend- conclude significance of the inter- moot because all; therefore, his refusal to claim at enough permit is itself ests at stake hand, If, illegal. on the other testify was important presence review. Whether that section 6002 and the fifth we hold capability of showing interests obviates a permit impeachment future amendment analysis of mootness repetition purposes uses, again we must conclude that then question that should be is a troublesome fifth amendment claim and had no a case only in context of addressed illegal. his refusal to presenting that issue. squarely short, diametrically opposed results on the statutory and constitutional ADAMS, opin- Judge, joins in this merits Circuit would not dif- by Pisciotta raised question ion. requires interprets preclude majority fifth amendment statuto- 6002 to that the 1. The impeachment ry reading. uses of immunized testi- future mony, of its conclusion but it does so bеcause *11 rights presented, effect his in this question their fer in raised here will ripe. case.2 not be then, conclusion, only possible is that legal argu- has failed to raise Pisciotta any bearing decision on the legality issue us—the testify. to leaves his
refusal That failure unjustified punisha- and therefore
refusal unnecessary us to decide the It for
ble. raise; issue that Pisciotta did in-
irrelevant Michael D. Brown, BROWN and Cleata deed, rendering entails the of an because wife, Appellants, opinion, advisory decision of that issue is See, e.g., 8-6, Local Oil improper. No. Missouri, Unions v. 361 U.S. Workers SONS, INC., E. DeVICCHIS & (issue (1960) L.Ed.2d 373 S.Ct. corporation. justiciable where ei- properly decision 76-1696. way cannot No. rights parties). effect ther Moreover, argument even if raised United States Court of Appeals, could in some way abstruse Third Circuit. case, part of considеred this it could in no Argued Jan. 1977. ripe judicial be considered for resolu- sense retrial, Whether Pisciotta tion. wins March Decided he will testify retrial, whether testimony diverge
whether will inculpatory, immunized he
apparently given have at his confed- ultimately—whether
erates’ and — attempted Government would have to intro- impeach
duce that immunized to retrial, conjectural
him at his were all mat-
ters when Pisciotta refused to testify. conjectural.
They remain I see reason the statutory decide constitutional until the
question those occurrence of con- renders its
tingencies necessary resolution disposition See, e.g., a case. 13 C. Miller, A.
Wright § Federal Practice & Pro-
cedure Had Pisciotta testi- ordered, and
fied as had the Government attempted to impeach
later him with the
compelled testimony, decision
statutory and question constitutional he would, course, here been
raises es- the disposition objection of his
sential action. Until such a case
the Government’s foreclosed, bility however, envision one I can alternative seems the hold- permitted If we were to view. hold that ing, Kastigar v. United impeachment future uses but violated the fifth (1972), reason, amendment then Pisciotta’s protections congruent of § 6002 are would have had a valid refusal those of the fifth amendment. grounding possi- in the This fifth amendment.