TITLE II OF THE ORGANIZED CRIME
. CONTROL ACT OF 1970 IS UNCONSTITUTIONAL,
JOHN E, RAPIER
TITLE II OF THE ORGANIZED CRIME
CONTROL ACT OF 1970 IS UNCONSTITUTIONAL '
On January 11, 1972, the United States Supreme -Court ,
heard arguments in two cases on a question that has divided
the circuit and state courts concerning the necessary scope of
lmrnunl ty that should be granted 1n e xchange for compelled self-
incrimination. l In the first case, Zlc a relll 'v . .'New Jersey Commission
of Investlgat"lon, 2
petltl~ner, z.lcarelll. was held "In, contempt
for failing to answer, questions propounded to him after the
Commission had granted him immunity.
The New Jersey statute 3
under which Zicarelli , was granted immunity afforded him only
"testimonial immunity
,I:
i.e., protection ~
ag ,alnst
the use of
compelled testimony and the fruits ,thereof ' leaving him subject
to prosecution upon the basis of independent evidence.
Zica-
rell1 argued that only "transactional lrnmunlt y l1-- whlch affords
the witness complete immunity from prosecution for any act to
of the fifth ·,
which he testlfles--can , replace the protection
,
amendment.~
The second case, Kastlgar v. United States,S concerned
two witnesses imprisoned for contempt of court after having
,
been granted immunity under Title II of the Organized Crime
Control Act of 1970,6 (hereinafter referred to as Title II
immunity) during an investigation of possible violation of the
selective service laws.
Petitioner Kastigar and Stewart
argued. as did Zicarelli, that "testimonial
imrnunit~'t
is
unconstitutional in that its scope of protection is substantially
less than the scope of protection offered by the fifth amendment privilege.
The seventh circuit 1n the case of In re Korman and
~,7 the third circuit in Caten a v. Elias ,S and the United
States District Court for the Southern District of New York in
In re Kenoy T~stimOny9 have held Title II immunity to be un constltutlonalj however, an application for writ of
ce~tiorar1
has not been filed as of this :wri t ing and probably will not be
if Title II is declared unconsti,tutional by the Supreme Court
in Zic'arel1i or KastiPjo,r • .
The New Jersey immunity statute ' considered in Zicare11i
has almost the exact wordinr, as Title II immunity; therefore,
this paper will only concern itself with Title II im)llunI ty
and assume that, shouid the . Supreme Court declare Title II
immunity unconstitutional, it will also declare the New Jersey
statu·b e unconstitutional on the basis of Malloy v. Hogan , 10
which extends the federal standards of the fifth amendment
.I
to ' the states.
Title II immunity provides
.~hat:
• • • [NJo testimony o~ other information
compelled under the order (or ~ny lnfor- ·
mati on directly or indirectly derive d from
such testimony or other information) may
be used against the witness in any criminal
case. except in a prosecution for perjury,
giving a false statement, or othe1yise
failing to comply with the order.
It is the position , of this paper that Title II immunity
2
is un constitutional 1n that the immunity granted 'is not coextensive with the privilege against se lf-incrimination granted
by the fifth amendment.
In other words , for an
immu~ty
statute
to be an adequate statutory repl a cement of the fifth amendment
privilege , it must afford the witpess not only protection
against the use of compelled testimony and its fruits but , in
lmmun~ty
addit i on, it must afford absolute
cution from
~Qe
.'
offense or acts to
whl~h
from future prose-
the witness has
testified.
Reliance is placed on th e case of Counselman v .· Hitch-
~ .1 2 the pivotal language' of which is as follows:
We are clearly of .the opinion that no statute
which leaves the party or witness subject to
prosecution after he answers the criminat ing
question put to' him can have the effect of
supplanting th e privilege conferred by the
constitution of the United States . * * * In
view of the constituti onal provision , a statuto r y enactment , to be : valid , must afford
absol ute immunity against future prosecution
fo r thi30ffense to which the question relates .
•••
It is the contention of the gove rnment that the lmmuryity
,I
.
....
afforded by Title II is co-extensive with the witnesses ' pri vilege because use - restriction
by Counselman .
two gr ounds.
immunit~
is all that is required
The government sppports this contention on
,
Fi r st , the pivotal
l~n g uage
of Counselman is
mere. dictum and not the holding of ·Counselman and , second . that
if that language is the holding, it has been sub silentio
,
overr uled or e r oded by Murphy v. Wate rfront Commission.
3
l~
.
There is no question that Congress ', in 7nacting Title II
immunity, was aware of the distinction between transactional
inununi,t y, use immunity, and use-pIus-restrictions immunity.
It is also clear that Congress intended to enac t a statute to
reflect the alleged uGc-restriction immunity concept of MUrphy ,15
In order to fully rebut the position of Congress and, the government 1n Kasti'gar,' Zica'rillo, Kinoy, and Korman, a complete review of the, statutes and
decis~on's
leading to
Murph~
and beyond
fs necessary.
The first compulsory immunity statute was passed by
Congress in 1857. 16 in aid of an investigation into changes
that congressmen were extorting money from private persons
interested in legi slation.
The statute automatically protected
wi tnesses from prosecution concerning .!D1L matte.r aeout which the
,
.
'
witness tesbified before Congress. This type of immunity
Boon l e d to widespread abuses l7 and Congress rep'e aled the
statute by replacing it with the Immunity Statute of 1862. 18
A similar statute
wa~
enacted in
~868
for use in grand jury
proceedings and it was this statute that Counselman struck down
as unconstitutional. 19 The statute provided:
[N]o p leading of a par~y. nor any discovery
or evidence obta~ned from a party or witness
by means of a judicial proceeding in this
or a ny foreign county , sha ll be given in
evidence, or in any manner shall be used
against him or his property or estate, in
any court of the United States in any criminal
proceeding or for the enfo~cement of any
penalty or forfeiture.
4
In r eaching the decision that the stat ute was not coextensi ve with the fifth amendment privilege J .the court noted
and relied heavily on Em'e'rt"s case , 20, 'Cull-en V. "C'orrimo-nwe'aTth,21
and Pe'opTe' V, ' 'KeTly , 22 which he l d that an i mmunft y' statute
must comple tely bar future prosecution before it could be r e garded as an adequate substitute for the privile ge aff orded
by the constitution of the particular state ,2 3
The statute
before the co.u rt in Counselman plain ly did not bar future prosec ution. ' As the court had pointed, out , the only thin g the
!
•
s~atute did was to bar the di 'r ect use of the witness '!ls testimony.
It did not " bar its indirect use.
would n ot. prevent the use of his
"It could not. an d
t~sti"l0ny
to ,search out
other testimony to, be us ed in evide n ce aga i nst him o r hi s pro.
'\ 2~
perty. in a criminal proceeding * * *:'
,
It could not prevent
the ob t ai ning and the ' use of "/i~,nesses and evidence "Which
should be attributable di re'ctly tq the
test~mony
he might g ive
under c omp ulsion, and on which he might be convicted where
otherw1 se , and 1f he had refus ed to an swe r, he coul d no t poss1bly have been conv1cJ:ed ,
"In short , the s t at ute d1d not pro-
tect the witn ess from be1n g compelled to be a witness against
h1mself. H25
The 'Courlse'lman dttc i s iorl l ed to. the enactment of the
Immunity Act of 1893 , 26
This stat ute gr anted absolute immu-
nit y fr om future prosecution instead of immunity from use of
compelled testimony .
Four years ,afte r Counse lman in 1896
the court susta,1 ned the 1893 immunity statute 1n
5
~
v.
Walker. 27
The court in: Br o\'Tn set forth what it ' called the It g ist"
of its decision iri 'Co\in'se'l'man.
In dOing so, the court quoted
the precise language cited above with respect to the ineffec. tiveness or the old statute to bar the use of the fruits of
compelled testimony and the language relied on by the witness
to support her claim that any immunity statute must provide
"absolute immunity" from future pro s ecution. 28
"
Itlf .the 'absolute immunityt , from prosecution
~anguage
in Counselman was mere ctictum, l then it took on the new life in
"
Brown as settled do~trine.tt29 •
In discussing the fifth amendment, the court in Brown
said that it was susceptable of two interpretations.
ItFirst.
it can be construed literally as aut'horizing a witness to
refuse to incriminat~ himself.- 30 In practical effect, such a
literal construction would mean that no one could be compelled
to testify to a material fact in criminal cases unless he
chose to do so, or unless it was entirely clear that the privi-
lege was not set up in, good faith.
Second, the fifth amendment
could be interpreted as a bar to prosecution of a . witness
which might have been aided directly, or indirectly
ness's own disclosure.
b~
the wit-
The court adopted the latter interpre-
,
tation because it felt that the
f~fth
amendment was undoubtedly
~,
des,igned -to effect a practial and beneficent purpose--not
'"
necessarily to protect witnesses against every possible detrl-
ment which might result from their testimony, nor to unduly
impede, hinder, or obstruct the administration of Justice.- 3l
6
To bolster its reasonin g the court cites several exceptions to the fifth amendment \'lhich demons trated its purpose.
Among the exceptions were the examples of the situations where
the statute of limitations has run as to a crime or if the
witness has been granted a ··pC!-rdon. such a witness may not rely
on the fifth amendment for the simple reason that he ca·n not
thereafter be pl\osecuted.
Having established the · purpose of
t he privilege; the court in Brown. uphe.l d the statute . as suffi!
.
32
ciently broad to displace the cQnstitutional privilege.
The transactional immunity standards announced in
Counselman and reaffirmed in
~
r eaffirmed by the Supreme Court.
the scope of an
immuni~y
ha ve
be~n
Eve r y case
consi.stently
th~t
has considered
statute from Counselman and
~.
to
and including Murphy , ha~ cited wit..h approval transacti"onal
immunity as co-extensive with Tifth
~mendment priv~ lege .
In
addition, cases which specifically considered restrictive-use
immunity after Mu rphy have relied on Counselman in holding
restribtive-use immunity unconstitut~onal. ~.
Hale v . Henke1 33 was the first cas e after Brown 1n
which the court considered an immunity statute.
The court
recognized that Counselman ,had declared .that absolute immunity
from future prosecution is required; the court then upheld a
contempt citation stating that:
If the testimony relate to criminal acts
long since past, and against ·the prosecution
of which the statute of limitations has run,
or for which he has already re ceived a pardon or is guaranteed an iromun·i ty, the
7
amendment does not apply . 3 4
Unit'e'd 'St'a:te's' "Y. ' 'Mur 'deck 35 r eviewed the precedents and stated
that:
The principle established is that ful l and
complete immunity a~ainst prosecution by the
go vernmen t compelling the witness to answer
is equivalent to the prote ctio n furnished
by the rule against compulsor y se l f - incrimination .
Ceunse'lman' V .. HgS'chcock) Brown v. Wa l ke r. and .
Hale v.' Henkel.
In McCarthy v. Arn dstein 37 the 'court held that ..Congress
could not require a bankrupt to ,! testifY before the special
c ommissioner unless it provided th.e
with a "complete
immunity from prose cuti on ." ' In United States v. f<1onia 38 the
b~nkrupt
court again reaffirmed that "Counselman r eq uired transactional
immunity) stating that Counselman "indica'ted clearly that
nothing s hort of absolut'e immunity would J,ustify ,c ompelling
the 'witnes s to testify if he claimed his privilege." Again,
in Smith v. United Stat'es 39 the court upheld a full transactional immunity statute while stating that" {T]his r emi ssion of
responsibility f or criminal
acts met the ' abso lute' test or.
,
the constituti onal prOVision against sel f-incrimination." In
Adams v. Mary land lf O the court said tl)at in Counselman "this
Court held that an act not p r ovirling 'complete' immunit y from
,.
prosecution was not broad enough tp permit a federa l grand
Jury to compel witnesses to give incriminat ing testimony."
Mr . Justice Frankfurter in Ullman v. United States lfl
reviewed the above cases and upheld a transactional immunity
statute. stating that the 1893 statute which was enacted in
8
response to 'Counselman and upheld by Brown " "bas become part
"2
of our constitutional fabric. 1I
Finally , il1 'Reina 'Vo" 'United
1l3
States
the appe ll ant , as do the petitioners in 'Zlc:a:r ,el li
and Kast1:gar, a r gued that immunity granted was not co-extensive
with th e fifth amendment it ,.sought to repl ace .
To
this argu-
ment th e court responded :
The c omplete answer to this is that i n safeguardin g him ( witness] a gainst future federa l
and state prose cution for or ~n account of any
transaction , matter or thin g concerning
which he is compel l ed to t~stlfY , the st atute
grant s him 1mmunity fully co- ex t ensive with
the con sti tutional privile·ge . Some language
in Drown v . Walke r to which p'etitioner refers ,
compares immunity statutes to the traditional
declarations of amnesty or pardon . But neither
in that opi ni on nor elsewhere is it . sugges ted
that immunity statutes , to escape invalidity
under the f1fth amendment , need do mo re thaqll
protect a witness from futur e prose cutions .
In Re ina and the other cases cited above , the court has
based its dec1sion concerning the cons~ltutionality of a n
immunity state on the concept of ful l transactional immunity.
" While many of the decisions state merely that to provide a
valid immunity statut e Co?gress need nQt do more than pr ote ct
a witness fr om future prosecution," '15 the inference is clear
that Congress must do at l east as much as to grant transactional
immunity .
Therefore. it i s illogical
, if ryot unreasonable .
,
f or the government to argue as it has'in Zlcarelli. Kastigar ,
Karman •. and
~.
that the Sup r eme Court has never held that
transactional immunity is the minimal
rnent.
9
~ onstit utional
require-
Aside from the question of whether or not the
\,.J ~
lan~ua ge
.... ,...
in 'Counselman requires transactional immunity, are the considerations of the purposes and policies of the
self-incrimination ~
r;g~t
against
In Murphy , the court identified Borne of
the complex of values which the privile ge serves:
[ O]ur unwillingness to subject those suspected
of crime to the cruel trilemama of self- accusation" perjury, or contempt; 0ur preference for
an accusatorial rather than an inquisitorial
system of criminal justice ; our fear that selfincriminating statements will be elicited by
inhumane treatment ana abuses ; our sense of fair
play which dictates 'f·a fair state -individual
balance by requiring the go vernment to leave
the !ndividual alone until good cause is shown
for disturbing him and by requiring the gove rnment in its contest with the ind.i vidual. to .
shoulder the entire 10ad ll ; our- respect for the
inviolatbility of the human personality a nd
of the -right of each individual to a private
enclave where he may lead a pri ",ate life"; our
distrust of self- deprecato ry st~tements ; and
our realization that the privile ge , while
.
sometimes "a shelte,r to 'the guilty,': " 4Ss
"often a protection to the innocent.'1
This summary is quoted at length to demonstrate that most, if
not all. the values delineated above are severely infringed
by compelling an indivi dual to testify under any circumstances.
Justice Brennan in his dissenting opinion 1n Piccirillo v. New
~q7 (majority held writ of certiorari improvidently granted)
said that in light of xalues'expres~ed in Murphy it was clear
that anything short of
transac~ional
immunity in exchange for
government-compelled testimony is insufficient.
He fUrther
stated that it had been argued that restrictive-use immunity
places the in4ividual and government 1n the same position as
10
if the witness had not testified.
liAs the
~1u"rphy
:statement
of values shows, from the standpoint of the indi vidual (which
is also the standpoint of the Fifth Ame ndme nt) th a t is 's i mp l y
not true. n48
,
It must be reme mbered that
a witness has . been compelled
.
to incrimina te himse lf. und it IIH iu Kl'unt e d onl y
r ~ utr!ot1 v ft -
use immunity. he ·has been compelled to divulge "
m atters for
which he may be ultimately prosecuted.
,
If the witness
" ~lalms
his fifth amendment privile ge. then he 1s not only as~ured that
the government cannot "prosecute him" with the aid of his own
testimony directly or indirectly. but
a~so
?e is not forced to
possibly divulge crimes to which the , government has no knowledge.
If the government learns of othef crimes, this knowledge
could lead to an investi gation in order to ' find independen.t
evidence.
Solicitor General Griswolq admitted before the
Supreme Court that the government investi gates persons claim-
ing their fifth amendment prIvilege. 49
the government would
i~westigate
Thus i t follows that
for,independent evidence con-
cerning matters testified to by a witness immunized under
Title II immunity.
Even the government, ~s not in the same posi:tion that it
would have been had it "not compelled the witness to testify.
It has obtained information which may aid its general investigation. as well as its specific
inv~sti g ation
of others.
Whe-
ther that information will enable the government to gener"ate
"independent" eVidence incriminating the witness originally
11
compelled to testify is an open question.
In short, restrictive-
use immunity does not offer the protection as the fifth amendment
right to be silent. 50
In addition to the violence restrictive-use immunity
does to the values underlying the, right to be silent is the
shortcomings of the fact-finding process.
The Supreme Court
has recognized \hat "there is always in litigation a margin of
error, representing error in factfihding, which both parties
muet take into account.,,5 1
In dealing with a single Jurisdiction, we ought
to recognize the enor.mous difficulty in attempting
to ascertain whether a subseouent prosecution
of an individual, who has
prevlou~ly
been Com-
pelled to criminate nimself in regard to the
offense in question derives from a compel15~
testimony or fr;om an "lndependen~ s~urce.1I
•
The reasons for such a recogn
ition are many.
First, 'all rele-
vant information 1s 1n the hands of the government.
Second,
law enforcement officers working 1n the same department ex-
change information without recording carefully how they obtained
certain information (if they were f?rced to do so, it would add
a great burden on the enromous volume of pol1ce investigational
work) i it 1s often impossible to reo'a ll months later how or
when or from whom information
was obtained.
,
Thlr~.
the possl-
bl11ty of subtle inferences drawn -from the action or non-action
of 'fellow law enforcement pe rsonnel would be difficult if not
impossible to prove or disprove.
This danger t substantial
when a single jur1sdiction both compels incriminating testimony
and brings a later prosecution, is greatly reduced in the cross12
Jurisdictional aspect of the scope constitutionally required of
an immunity statute (discussed infra).
There are many commen-
tators who believe that this is the only reason
the . c~urt
approved of restrictive-use immunity 1n the croBs-jurisdictional
situation. 53
.'
However. Dean Griswold, when face d with these arguments
by opposing counsel. still argued that the witness was even 1n
a better position with restrictive-use . immunity because the
burden 1s on the government to prove. that its eVidence is untainted. 54
To this a rgument Korman responded that a wltness t s
compelled testimony may be used to indict him and his only recourse
would be to move at trial thllt the ind1ctme'nt should be quashed
or that the fruits of his testimony be suppressed. Korman con,
tended that as a practical ma~ter a witnes~, if indicted and
tried, will be forced to'bear the impossible burden of proving
that evidence offered by the ' go vernm~nt 1s tainted. 5S •
Murphy
indicates that the burden is on the gove rnment; but neither
Murphy nor Tl tIe II makes cle ar the extent of the government's
f
...
burden--whether or not it must show freedom from taint beyond
a reasonable doubt. or by a mere prep,onderance of the evidence.
Whatever the government's burden ,of proof. there is the danger
that the government' 6 asse~t1on that its evidence was lndependent~y
obtained will. as a practical matter. not be subject to
challenge because all of the evidence is in the hands of the
government and because it is impossible to tell what subtle
influences the government's knowledge of a witness's compelled
13
testimony had. 56
Both the fifth amendment privilege and transactional
immunity raise none of these problems.
If a witness alalms his
fifth amendment privilege and is later prosecuted for the
same crime he was questlone"(j about. there 1s no doubt that the
government must use independent evidence.
transactional
im~unity
By the same .token,
involve s no question of tracing the use
or non-use of information gleaned , from the witness t 5 c.ompelled
testimony.
liThe sole
q.ue'~tlon J?~esented
to the
cour~
1s
whether the subsequent prosecution is related to the substance
of the compelled testimony. ,,57
government know
prec~sely
Both the witness and the
where they starid.
Respect for law
is furthered when the ,indivi d ual knows his
,
, pos iti on and is not
left suspicious that a l'ater prosecution may actually ' be the
fruit of his compelled testimony.
Surely the first contention
of the government, in support of Title II immunity, that the
transactional immunity requirement of Counselman 1s mere dictum
mU3t fall in light of the above cited and discussed cases and
the policies on which they draw support.
However, notwithstanding the qutcome of their first
contention, the government stando on the proposition that
,
8
r.turphy v. Waterfront CommissionS sub silentio overrules
Counselman.
Both courts in Korman and Kinoy spoke at length
on this contention and both came to the conclusion that ·Mur\lhy
does not overrule Coun se lman.
l~
" "MUrphy was decided on th e same day as" "Malloy "v. "ltoGan. 59
It held that the :federal standards of the privilege agalnst
self-incrimination are applicable to the states thr ough the ~
fourteenth amendme nt.
It i s on this "ho lding that Dean Griswold
relies in his argument before . the court in support of Title II
immunity which will be discussed later.
The
petit~oners
in
Murphy had been grant e d immunity from pr ose cution under state law
,
but refused to testify on the ground that their answers' might
.
!
tend to incriminate them under fe'deral law to which il'nmunity
did not purport to extend.
At that " time a state could
immunity from federal prosecution but
had the power to grant i mmunity from
th ~
f~deral
n~t
grant
government
"stat~ " prosecution.60
The New Jersey Supreme Court he ld ;that although it was
wi thout power to grant im.mun1 ty :froip fede:ral prose ,c ution. 1. t
could constituti onally compel "
a witness
to give testlmOny.6l
On appeal. the Murphy court said :
Since a grant of immunity is valid only if
it is coextensive with the scope of the privil ege against self..l.oincrimination (c~.!.:hng
Couns e lmaN . we must now decide the rUndamental
const itutional question of whe ther. absent an
immunity provision, one jurisdiction 1n our
federal structure may compel a witness t o give
testimony which might incr+minate him unde r
the laws of another ~ uri sdiction •. The answe:r
to this question must depend of course on
whether such an applicati on of the pri vile ge 62
promotes or de feats its po licies and purposes.
It is clear from this excerpt th a t the court 1n Murphy was only
considering the scope of .d.mmunity in
efrec~not
" term s ~ ; of
cross-jurisdictional
1n terms of a constitutional requirement needed to
15
displace the fifth amendment.
It is to be remembered that this same court considered
the policies and purposes of the fifth amendment
inB~d~n
es
discussed earlier and has rererred to those findings 1n each
succeeding case concerning the .fifth amendment and immunities.
The Mur phy court made the same findin g and concluded (citing
Ullman) that the privilege 1s defeated when a "witness can be
whipsawed into ' incriminatin g himself und",r both state ,!-nd
federal law even though,,63 the
con~ t1tutional
privilege , appli,e s
to both.
The difficulty of Murphy appears
portion of the opinion that considers
could have on existing
s~ate
~o
~he
c~me
that
fro~
~ts
effect
immunity legi$lation.
i
bolding
The New
Jersey statute provided fo~ protectl~n from future ~tate ~ro­
secution in accordance with Coun's elman .but it did not and
could not protect the witness from federal prosecution. "The
court, therefore, extended the fifth amendment's protection to
federal authorities in SU9h a
situatio~
of such testimony and its fruits.
a rid prohibited the use·
Murphy, consequently, broad-
ened rather than restricted the protect'ion of the fifth 'amend-
ment."6~
The re ason the court
of the
, ext~nded the. protection
,
privilege in a cross-jurisdictional
~i tuation
only to the use
of the ' compelled testimony and its fruits and not to prosecu_ _ _ _ _ _ _ - - - - , ••• - - -
F
___
.
_
~
ticn immunity was out of consideration of federalism.
_
• •_ _ _ . _
The misinterpretation of the Murphy opinion can be
clearly seen in a review of the arguments presented to the
16
Supreme Court in the cases of Kas tiga r and Z1carelli',
Phelan 1n his respondent's
a~gument
Andrew
(for the State of New Jersey)
1n the Zl'c'a:rel11 case acknowledged that the witness mU,s t , be
placed 1n no worse position than he would have if the witness
claimed his fifth amendment prlvlleg~.
But, Phelan argued, i f
none of the testimony the ' witness gives' can be used against
him, then the witness can be in no worse pbsit10n.
He cited
Counselman as considering only a "uBe n ' immun1ty statute and
--, . - ,-~
.
I
: , ..
--- -
..
stated that of course such a statut:e al'lowing use of 't he fru1ts
'.
of compelled testimony is unconstit'utlonal and it would be
"r1diculous" to argue otherwise '.
The transactional immunity
statute, however, he said, gives too much of'a gratuity to the
criminal," and is not in the best interest of the citizenry,
But, he suggested, under a
~odern
use~plus-fruits
statube
(Title 'II), the witness is ' in a bette~ position, for the heavy
burden is on the government to prove that the prosecution is
.
6
untainted. 5
Solicitor General Erwin
Griswold
also argued 1n Kast1gaT
I
.
that testimonial use immunity plus protection from use of the
fruits of such testimony is constitutionally adequate to , take
the place of the fifth amendment.
,
fifth amendment is clear and the
Oriswold stated that the
stat~te
confusion is attributable to' Counselrnan.
is clear, but that the
He then quoted Mr.
Just1ce White's concurring opinion in 'Murphy in which he
stated that "Murphy is not affected by' ·the fact that two jurisdictions were involved there,
There were two jurisdictions,
17
but there 1s only one fifth amendment."
66
In both these cases opposing counsel, Hugh R. Manis for
Kastigar and Michael A. Querquis for Zicarelli. respondl'd with
the argument that use-restriction immunity is simply not equal
to the protection of the fifth amendment. 67 Mr. Manis argued
that Title II protection 1s a mere procedural right--excluslon-
ary rule--when co~pared to the substantive right or: the fifth
amendment.
He.
referred to the case of United States v. Jackson
68
and People v. Ditson 69 in which the attenuation concept for
'.
stultifying the exclusionary rule is. demonstrated.
In D1tson
the California Supreme Court rejected the but-for test and
held that even though police did not discover the evidence
independent of the "poisonous tree," the evidence was admissable
begu9se
it could have been Independ~ntly discovered.
' .
Both the courts 1n Korman and Kincy agree with counsel
for the petitioners in Kastigar and Zicarelli.
The Kinoy
court concluded that Murphy "minimized interference with the
law enforcement prerogatives of the non-questioning jurlsdlc A
J
,
tlon,,7 0 and this must be characterized as an exclusionary
rule as the Murphy oourt characterized, its own holding.?l
Korman stated:
tl
I n reaching its conclusion. the Court care-
fully avoided language which would conflict with Counselman's
requirement" of transactional immunity.72
Further. Korman
pointed out that· Murphy avoided any comment on the scope of the
immunity the questioning Jurisdiction must grant.
However,
even more persuasive is the language of the Murphy court itself:
18
[W]e hold the constitutional rule to be that a
state witness may not be compelled to give testimony which may be incriminating under federal law
unles s the compe lled t est imony and its fruits
cannot be used in any manner by federal offiqi~ls
in conne ction with . a criminal prosecution against
him. We con c lude , moreove r, that in order to
implement this c onst i t uti ona l rule and accommodate
the intere s ts of t he ·.· State and Fe de ral Governmen t s in inve st i gating . and p rosecut ing crime,
the Fede ral Government must be prohibited fr om
makin g any s uch use of compel l ed testimony and
its fruita. ThIs' exc'l us ionary rtrle , while permitting the States t o secur e information neces sary f or effective law enforcement , l eaves the
·~"i· tn·e·s· :3" · ·a:n:d the' Fe'deral Gove rnment in substan- .
tla l ly the 's ame position as if. the witness had
. ·cla1me·d h1·s pr1vlle·~j 1n t he absence of a state·
grant' 'of immunl ty.
.
Not only did the court not indicat e 1n any manner that it was.
overruling Co·u·n·s·eTtTian. but the court a year I later in Albertson
v. Sub'lersi've' ·A"c·tiv'i"t·i es Control Boa;d
the requirements of Counselman .
rq
specifically reaffirmed
The statute which
Alb~rtson
struck down was a federat stat4te p~oviding only a limited
'use immunity.
The same type of statute was declared unconstl.. tut1onal 1n Stevens v. Marks 75 1n 1966 1n wh1ch the court
stated:
!
•
We ' need not stop to determine whether the
immunity said to be conferred here--which
merely prevents the use of the ,defendant 's
testimony or its fruits in any 'subsequent
prosecution but does not Pf,ec lude prosec ution based on "ind ep~ndent ' evidence * * *
constitutes that "absolute immunity against
further prosecuti on ," about which the court
spoke in Counselman v. Hitchcock, and
which the court said was ne cessary if the
pr1v11ege were to be const1tut10?Slly
supplanted. (C1t1ng ·Alberhoc)
Both ·S·t ·e·Vena and 'A'lhe'y"t 's'on held that· COll:n'se'l"man remained the
contZ'olling decision and neither cited Murphy as ,authority for
the constitutional requirements of an immunity statute ,
There-
f ore. the government t s contention that'· 'MurphY has' "s'ub\ 's'lTe-ntl0
o1Verruled "Go'u'ris'e'lnian must also fall under l. the weight of the words
of the S upreme Court itself.
As evidence that the gove rnment has recognized
~nd
anti-
cipated constitutional "problems" with 'Title II iinmunity, the
Ju stice Department circulated a memorandum to all United States
,
Attorneys advising them of the arguments that could p,e used in
support of Title II immunity.77
First , the memor andum argues
that Congress i n the past had assumed that the "dictum" of
Counselman required absolute immunity from prosec ution as the
minimal constitutional, requirement t o s\lPp~ant the fifth amendme nt.
Second, the Departme nt argu; s that 'Murphy hoids· that the
fifth amendment may be constitutiona.lly displaced by a statute,
providing a prohibition against the use of both the witness ' s
testimony and the fruits of s uch t es timony (Title II).
Third ,
the Department argues that since th~ Murphy decision support
for the restrictive-use immuni ty concept has appea red 1n
several Supr eme Court decisions.
Th'e second argument has been
disp r oved (supra). render,,-ng the "assumption of C~mgresstt 1n
the first argume nt correct.
The cases 1n which the alleged
support appears for the Department ' s third argument are Garrity
v. New Je r sey ,7 8 Spevack v, ' Klien,79 Marchetti v . United States , 80
Grosso v. 'UnHed States , 81 'Haynes v. United Stat'es , 82 Gar diner
·V. BroderiCk. 83 and Unifo rmed Sanitat ionmen v . Commissioner
20
of Sa:n'ft"a:t"i"onl 8~
No mention was made of A"l b"e rt"s"on VI " "S"ubve"rs"1"ve
Acti'v'iU'e'. Gent'rel Bea:rd 85 or 'St'eVens' 't, ' 'Ma:rks 86 which specifi-
cally, as discussed above, re affirme d "Cdun"s"e"l man and
~I
•
The memorandum referred the reader to Volume II of the
"Working "Pap"ers" "df "the "Na t "fo na l Commi ss ion on Reform df "Fede"ral
Crimin:al "r;aws 87 (hereinafter referre d to as the Commission)
which contains
,
a~
.
'
analysis of the above cited cases used by the
Justice Department in defending the 'constitutional1ty of Title
,
II.
It was indicated that the It"w orkin g papers lt were l~nstru~
mental in convincing Congress of the correctness of Title II.
The working papers start from the
. premise
,
was not based on the power of state
against federal
prosec~tion
~egislatures
t~at
Murphy "
to immunize
but rather op tpe operation of the
fifth amendment itself, t he effect "of which was the e5t~blish­
ment of an exclusionary rule similar to the exclusionary rule
in Mapp VI Ohio. S8 The Department argued that under recent
fifth amendment jurisprudence developed in such cases as
Garrity v. New Jersey89 ,. and Spevack v. Klein 90 the due process
Itcoerced confession" line of<,', cases. the fourth amendment cases,
and the fifth amendment line of cases'. seem to coalesce in
resultl 9l The Commission admitt~d. however, that ~'there may
,
.
be underlying doctrinal differences. 92
The reasomthis argument must fail are twofold.
Just~ce
Goldberg in Murphy
specific~llY
First,
stated on the second
page of that opini"on, after <?iting Counselman as representing
the constitutional requirements of an immunity statute, that
21
the issue in Murphy was "the fundame ntal constitutional question
of whether, absent an immunity provision, one jurisdiction 1n
our federal structure may compel a witnes s to 'give tes'timony
which might incriminate him unde r the l aws of another jurisdiction. ,,93
Furthe r, 'Mur'phY ~uoted Counselman at length 1n the
last few pages of the opinion for the purp os e of demonstrating
the effect that Murphy would have on exlsting state immunity
legiSlation. 94 . That effect was to bro aden the state invnunity
,
legislation to include protection for an immunized ,w itness
~n
the form of a prohibition on any other ,jurisdiction from using
the compelled testimony or its fru i ts against t he witness in
a criminal proceeding.
Second, 'Oa:rrity v. Ne . ., Jersey95' did ryot, as the Commis-
sion states. hold that a public official (police offi·c'e r)
ncoul~d not be criminally convicted on ~ the basis of information
he had divulged under the threat of dismissal if he invoked
the privilege against self-incrimination and remained silent. n96
The issue in Garrity was, clearly set ""out in the majority opinion .
by Douglas when he stated that n[O]ur question is whether a
State, contrary to the requireme nt Of '.the fourteenth amendment,
can use the threat of discha
, rge to secure
dence against an employee. 1197
incrimin~tory
evi-
Garrity had nothing to do with
immunity statutes or the scope required of an immunity statute
by the fifth amendment.
Garrity simply held that a coerced
waiver of the fifth amendment privilege is unconstitutional.
If the Commission is correct in representing the holding of
22
Garrity to be that coerced
statemen~s
cannot' be used in a
criminal proc eeding against an accused and that this holdin g
is applicable to the immunity situation , then ' it is ' direct l y
in conflict with 'Cour1s'elman which
sp ecifica~i y
held that me r e
use immunity is not co-extensive with fifth amendment protection.
Thus' Garrity is not applicable to the considerations
of the necessary , constitutional scope of~an immunity statute.
It must be remembered that in the
~mmun~ty
ment is offering the witness a II d¢a l."
situation the govern-
In other words'" the '
witness waives his rlg':t to be silent al'}d testifies, in effect,
on behatf of the government in' reliance on a
,promis~
from the
government that it will not prosecute him for transactions
to which he testifies.
In the Garrity sit}lat,ion the witness
cannot be coerced in waiving his, right to be ' silent; he must'
wa1 ve his right, i ,f at all ~ voluotarily.
On the other hand,
a witness who is offered immunity does not have a choice; he
must accept immunity , waive his ri gh t to be silent and incriminate himself, or suffer the
t sanctions
.
, contemp
.
,
For this
reason a higher sbandard than an exclusionary rule must be
set .
Counselman set the higher standard',at transactional'
immunity and Murphy expanded the scope of
,
t~ansaction~l
immu-
nity to include restrictive-use immunity to protect the witness
in all other jurisdictions.
In a similar manner 'Sp'eva'ck 'to' Kl'ien 98 does not aid the
Commission .
Sp'evack simply holds as Garrity that a person ,
be he a police,m an, lawyer, or cr!minal, cannot be coerced into
23
waiving his right to remain silent by the threat ' of a penalty
or forfeiture. " Sp"e"v'ack is even a clearer case of non-applicabili ty to the immunity situation than Garrity.
Fir,s~, "
Spev.ack
never incriminated himself, and, second, he was not tried for
a cr1:minal offense; he was """d isbarred.
,
As noted earlier, the "Commission relies on "Marchet"ti
v. United "States 99 "and Grosso "V; United _States lOO :for support
of the constitutionality of Title I~ immunity.
Marchetti and
Grosso only concerned whether or ! not. the required reg,i "stration
statute for wager acceptors constituted a violation of fifth
amendment right against self-incrimination.
that the statute forced a
wa~ver
The court held
of the fifth amendment privi-
lege and reversed the "petitioner's conviction for the failure
to file.
In other words' l a pe;t.'son could 'not be convi"c ted 170r
correctly claiming his ri-ght to be silent.
In both cases the
court held that it would be improper for the Supreme Court to
impose restrictions on the use of the information obtained
through registration and occupational tax payments lOl because.
,
'
the constitutional violation was the required registration,
not the use or non-use of information 9btained from registraticn.
Thus these cases have no application to the issue of the
constitutionally:' required scope of an immunity statute,
Finally the Commission cites Ga rdiner v, Broderick l02
and Uniformed Sani"tat"ionmen "V, " "Commis s ioner of Sani tation l03
as Bupporting a restrictive-use immunity.
These two cases
were decided solely "on the strength of Garrl ty and Spevack,
24
However , Justice Fortas in Gardiner did make the 'statement
that" A:J1swers may be compelled regardless of the privilege
if there is immunity from federal and :;;tate use of ,the · compelled testimony or its fruits in connection with a criminal
prosecution agalln.st the person testifYing,,,104 citing Counsel!!!!!.!!
and MUrphy .
This statement would aid the cause of the
Commission if it had any relation whatever to the .ho l ding in
Gardiner .
Gardiner ·had not been gran ted i mmunity; he Dad1 been
compelled to waive his fifth amerdment privilege or . lose his
job .
Gardiner chose .to lose his ' job rather than waive his
right to r emain silent .
The ' court reversed the lower decisions
,
hold i ng that Gardiner could not be deprived of
merely claiming his constitutional rights ·.
statement by Just i ce Fortas is.
mer~
emp~oyment
for
Therefore, the above
dictum .
Thus the 'government cannot sustain Title II immunity by
lega l precedent .
,
However, the memorandum to United States
Attorneys stressed that Title II immunity has two p r ime . p r actical advantages over transactional immunity .
,
,
First , under a Use restriction statute more
information is likely to be obtained from
an immunized witness . * * * Under * * * a
transaction immunity statute . a w1tness
will often relate ,1ust eno,ugh information
so th a t immunity w1l.J. attach , but · will then:
become evasive and divulge n.o more of any
substance. Under a use immunity statute.
however , once a well advised witness is
compelled to reveal an offense. he will
have a strong incentive to disclose as
many of the details (and accomplices) as
possible in order that the government might
be precluded , fo r all practical purposes ,
from using them against him.
25
Second, there ha s been a n unders t andable
reluctance by ~overnme nt attorne ys to utilize
transaction immunity · statutes--even where
the testimony of a witness is vitally needed
in an important criminal case--for fear that
the witness granted blanket immunity against
prosecution may turn out to be far more deservin~O~f prosecution than had been anticipated.
,
There is no doubt that both of these alleged
pr~ctical
advantages inflyenced Congress in passing Title II immunity.
However. a close examination will show that both arguments
are based on a series of assumpt10ns
. . whlch result in ,a. "pyramid"
.
argument or a "boot-s,trap" argument;:. First, the statement that
the witness will relate only ' enough information so that immunity attaches but then become eva.sive 1s based on pure assumption.
The Justice Department offered 'no empirical data to
support the statement.
'l!he st.atement further assumes 'that , wit-
ness~s possess the acumerl . to know ~xactlY when immunity
attaches so that he can then become evasive.
In addition,
the assumption fails to take into account that the examiner
(prosecutor) controls the examination and could ask the court
,
to instruct the witness to be cooperative and l that if the witness is uncooperative the contempt sanction is
the judge:'",s discretion.
availa~~e
at
,.
Second, whether or not the witness discloses every detail of the offense. Title II immunity does not preclude the
government from prosecuting the witness if it can show that
the prosecution is based on independent evidence.
Suppose '
the government can prove a case against one of two principals
26
of a crime but needs testimony of one principal ,to prove its
case against the other
pr~ncipal.
The government
gra~ts
immunity to the former in order to convict the latter.
A& a
later date the government prosecutes the immunized principal
because its case was devel0p.ed before immunity attached, thUB
independent of th~ witnessts testi~ony while under immunity.
,
The second alleged prime advantage concerning the
reluctance of a government attorney t .o utilize tran:;;antional
1
immunity only demonst r ates that' the government is concerned
that with transactional immunity it may not be able to prosecute an immunized witness (as
demonst~ate4
in
th~
hypothesis)
should they make a mistake concerning the culpability of
a witness in relation, to the defendant .:
In the second alleged
advantage, as in the first, the g~vernment failed to produce
any data to show how many cas'es exi& ted in which the government felt the re al culprit escaped through transactional
immunity.
Thus the government has
'fail~d
to show legal precede"nt
for Title II i mmunity or that the constitutionality of
restrictive-use immunity is a questi'on of first impression,
and it has failed to sUbs\B:ntiat!e the p,racti cal advantages of'
Title II immunity.
Therefore, the conclusion that Title II
i mmunity is unconstitutional stands in li ght of all the
government arguments to the
contra~y.
27
NOTES
1•
10 Cr . L. Ren . 4131 (Jan. 19, 1972).
2.
S> N. J. 249, 261 A. 2d 129 (1970).
3.
N. J. St a t . Ann. 52:'
911- 1" s ubd. 6 .
4. Zicarel11 v. Ne w J e r s ey Commission
55 N • .r • 249, 257! 261 A.2d 129, 137 (l:9:r,).
5.
440 F. 2,{ 954 (9th Cir . 197'1) .
6.
18 U. S. C.
7.
449 F. 2d 32 (7th Cir . 1971).
8.
44~
9.
326 F. Supp . 407 (S . ~.N.Y. 1971);
§
or
Investigation,
6002 (1970)~
F. 2d 40 (3rd Cir. 1971) .
u.s.
10.
376
11 •
18 U.S . C• • 60b?, (1970) .
1?
142 U. S, 547 (1892).
13.
1~2
14.
378 U. S. 52 (1964) .
1 (1964) .
U.S. at 585- 586 . '
15 . lilt is designe d to r efl e ct t he u se-re s t ri ction inununlty
conc ep t of Murphy v. \oIat orfront Conmi $ sion, 378 U. S. 52 ( 1964:)
rath0 r than t he transaction immunity conc e p t of Counselrl1an v .
Hi tchcoclc, 1 4 2 U. S . 54 7 ( 189 2 ) . " Ho"s e Repo r t No . 91-1549 , 91st
Cong r ess , 2nd Sess ., p . 42; House 'Re.pQ"rt-f{O:-91"':1"10ts , 91 s t Congo
~~e-g-::;. ,
c aYr"Cu"l.rre d in 1970-0. $ . C o71];~dlnin. News
4/0o;~'enate Re por t No . 91-617 , 9 1st
pp-:---zrro-.;, .
Con&., ~.!!...t Sess . , pp . 1441 88 ; 11 'iFC15'rt'l . Rec~9 6 0 5,( dai1 y ec-;-Oc,t". ~,Y(01T-116 ~ ~n§j
Rec . H. 9743 ,dauy ed. Oct. 7, 19 70); 116 Con.", .. Re c. S. 3 - 3
\aaiTyed. J an . 21,1970); 1 66 9~ru; . 'Re c. s . 4Z"~:42 j , 479. 4 tl1
(da ily ed. J a n . 23, 1970); He arinf, s on-S:-30 Before t ho SuE-.
Com."1l . 'o n the Judici a r y"
( 1969 ) •
91 slj LOong .
I at Sess~6,
j05- 306
16. Act of Jan . 24, 1857, ch. 19; s 2, 11 Stat . 155, which
r e ad ::'n part : nAnd be i t f~rht e r enacte d, tha~p:O p e ~ e~arn.:l. ned
and testifying before eithe r House of Congr e ss, or any comm~tt:eee
of' ei ther House. shall be held to Sl1S\.Jer criminally in any cou'rt
of justice, or "subject to any p enalty or forfeiture for any fa9t
or act touching which he shall be required to testify before either
Ho~se of Congress or any committee of eith~r House as to which he
shall have testified whether before or nfter the da te of this Act ,
and t hat no statement made or p aper produced by any witness in any
court of justice; and no Hitness shall hereafter be a;LIQ ...,ed to
r efuse to testify to any fact or to produce any paper touching·
vlhich he shall be examined by either House of ConBress, or any
comrni ttee of ai ther House, for. the reason that hi s testimony touching.
s~ch fact or the production of' such pap er may tend to disgrace him
or otherlri.se render him infamouS' •• l' It should be emphasized that
,the first compulsory federal immunity s"tatute immunized "any fact
or ac t ll about which the witness was forced to te s tify, ie.. "the first
piece of federal immunity legislation was
transactional immunity
statute .
'
a
1 7. One individual, 1rtho . had stplen two million dollars in bonds
from the Interior Department had himself called before Congress,
"there he testified to a matter rela.ting to the bonds and: 1rlaS .
thereupon automaticlly immunize d fron · an~ p rosecution concerning
the theft of the bonds~ See generall y Hendel, Compulsory Irr.munity
Le ~ islation and the Fift h t.men dme nt privil e ~New Developments
and l~eH Conf'usi on , 10 St ~ LoUl.s. O ~ L ~ J~ 32~( ~ 1 ..:f:3J-35 -(1970).
18. Act of Jan. 24; 1862:1 Ch. 11 :1 12 sta t. ' 332, Hhich read
in part : "(T)he testimony of a Hitness exa.nli=n0d c.nd testifyir,g
before either House of Co..i.gress, or any cOnimi t tee of ei.t her
House of Congress, shall not be used as evidence in any cpiminal
proceedi.ne; against · such witness in ani court of justice: Provided,
however, that no official paper df record, produced by such
.
witness on such ex~Jination~ shall be held or taken to be included
within the privilege of said evidence so as to protect such witness
from any criminal proceeding as aforesaid
It
19.
Act of Feb . 25, 1868,ch. 13, 15
20.
107 Mass . 172 (1871).
,
~.
37.
-21 -.-2q:-Graot~24-r'1873 i(l -
22.
23 .
24 N. Y. 74(1861) .
,
.
. ,
COWlselman v. Hitchcock, 142 U.S . 547, 577 (1891);
~
also Boyd v . United States, 116 U.S. ' 616 (1886) and 1 Burri s
Trial 244 (1d07), opinion of Chief Justice Marshall on the scope
of the privilege.
24. COWlS elman, 142
25.
~
U.S. at 585 • .
Kinoy, 326 F. SuPP. 407, 414 (S.D.N. Y. 1971).
26. The new immunity law provided in its most ~portant
section: (N)o person shall be excused from attending and t e stifying
• • • for the reason that the testimony or evidence, documentary
29 .
47 .
400 U.S . 54tl (1971).
48 .
Piccirillo v. NeH York, 400 U. S . 54tl, 562 (1971) .
49 .
10 Cr . L. Rep•. 4135 ,Jan. 19; 1972).
50 .
Piccirillo , 400
51.
Speic e r v. Randall,. 357 'U. S . 513, 525 (1 95tl) .
52 .
Piccirillo, 400
,
u.s.
u. s.
at 562 .
a t 562.
53 . Figus " Compul sory Immun5tv~eR~slati0F- : Title II of the
Orrpnized Crime Contro l Act or 1970, "97', U. Il l . L , F . 91 \ 1971) ;
Hilli ams , T:ttle II - Or ganized Crime Contr'Ol ';~~'t of~70 - 14itne ss
I:nr.nmi tv P!'o vi ~:io n s Un CO::1.S t i tutiona l Becaus e !~o t Coextensi v a \>It th
?i!"';:;:: .!.: : en d:~: e:1t ?:-.:. vi l e:: e , 1 7 " '.'f:~'?~_ L. ;ie v. '1 3.3'! ( '191'1) j
:io.f 'stade r
a.."1.c. ~ e vi~,;a.'"'l , L ._ J..L"'lit: y a.."1.d ;:;he- .....:>itil..~) a ir.. s t Seli'-Incrinin.' ltion
Too Little and To o Huch, 39 }~.!..t.~.!.B .}~. 105 l '! 96'rl i Sobel, The :
Privi le e A ainst S e lf-I ncrimrn.ar;-~"Feder alized " ., 31 Brooklm
L.
Rev. 1
19
).
54.
10 gr . L. Rell . 413' ") 41 33 (Jan • .-19, 1972).
55.
In re Korman,' ~9 F. 2d 32, 38 nth Cir . 1971,)'
56.
Piccir,i llo, 40Q
57 .
Id. at 558.
5tl .
378 U. S. 52 (1 964 ).
59 .
37tl
60 .
Murphy v. Waterfront Commission, 37tl U. S . 52 (1964).
61.
(1963).
62 .
·63.
u.s.
u.s.
at 542.
1 (1964) • .
Hurphy v. Waterfront Commission, 35 N.J. 62, 171 A. 2d 295
Hurphy, 378
Id. a t 55.
u. S . at 54 ••
... .
(,4 .
~
65 .
10 Cr . L. Reg •. 4 1 31 , 4133 (Jan. 19, 1972 \ .
66.
Id. at 4134 .
67 .
Id. at 4134, 4136 .
6tl .
448 F. 2d 970 (9th Cir. 1971) .
Kinoy, 326 F. Sup P. at 4, 6 .
31
, 69 . 57 Cal . 2d 415. 369 P. 2d 714. 20 Cal . Rptr. 165 (1971).
70. In re Kinoy. 326 F.Sup p. at '416 .
71 . Murphy.37t3 U. S. at 79.
72 .
~ Ka~non.
449 F.2d at 38 .
' 73 . Murphy. 37(J U.S. at',, 79 .
74. 382 U. S. 70 (1965) .
75. 38,3 U.S . , 234 ( 1966).
76. Stevens ;;. Marks, 383 U.S. 2,34. 237 (1966).
77. Department ot: Justice. M'Imo . ,No. 595. Supp. " . iSept . 2
1971 ) .
'
7t3 . 385 U.S . 493 (1967 ) .
79 . 385 U.S. 511 (1967) .
!:l0 . 390 U.S . 39 (196t3 ) •
81 . 390 U. S. 62 (19,6!:l) .
82. 390 U.S . 85 (1968•) .
,
I
83. 392 U. S. 273 (19 6!:l) .
tl4. 392 U. S. 28 0 (1 968 ).
8 5 . 382 U.S . 70 (1965) .
86 . 383 U.S . 234 (1 966) .
87 . II Horking Pape r s . Nati on al Commis s ion on Ret:orm of
Fede ral Cr i minal La\1s 789 . 1423 \ 1968).
86. 367 U.S . 643 ( 1961) .
89 . Horking Pa:ee r s , supt-a note ~3. 1424.
90. 385 U. S. 493 (1967) .
91 . 385 U. S. 511 (1967).
92.
g.
93. Hurphy. 378 U. S. at
94.
g.
54.
a t 78. 79.
95. 385 U. S . 493 (1967) .
32
Paoers, supra note 83~ 1425.
96.
Workin~
97.
Garrity v. New Jersey, 385 U. S. 493, 499 (1967). ,
9tl.
385
99.
390
100.
u.s.
u.s.
511 (1967).
39 (1968).
390 U.S. 62 (1968) •
101. Marchetti v. ' United States, 390 'U. s. 39, 58. (1968 )';
Grossov. United St,! ltes, 390 U.s. , 62, 70 (1961:1).
102.
392 U.S, 273, (1968).
103.
392 U.S. 2tlO (1968).
..1.2l6
Gardiner v.
105.
Department of JusticeI' supra note 73, 4. 5.
,
Brpder;l.cl~,__392
33
U.S. ,273, 276 (196tl).
..
DEPART~IEN T
OF JUSTICE
' WASHINGTON, D. C. 2053q
Sept. 2, 1971
'Memo. No. 595
Supp. 1
To:
' ......
.All••.•'Uiilt"ed
"StatesAttorneys,;
... '- - •. ..'..
- . ,',
'. ;.- •. ;.r:
"'~
~
- ~'.
Subject: .General Witness Immunity Statute "~ " Title II?,
·:of the Organized Crime Control Act of 1970:';'
..
,
1 •. The General Immunity Statute
.
,
.
The Organiz ed Crime Control Act of 1970, Pub. L. 91-452,
·· enacted October 15, 1970, conta i ns .;, broad new Federal witness
immunity statute added. by Title II to Title 18 of the United
States Code as Sections 6001-60.05. Its basic immunity provision,
Section 6002, reads as follows:
.
·Whenever a witness refuses, on the 6asis of his
privilege against self-incrimination, to testify
or provide other information in ·a proceeding
before or anci11~ry to --, .
OJ
a court or grand
(2 an agency of the
(3
jury of the United States,
United States, or
.
either House· of Congress, a joint committee
of the two Houses, or a subcommittee of either
House,
and the person presiding over the proceeding
·commu nicates t() the witness an... order issued under .this
·. part, the witness may not refuse t o comply with the
. . order on the basis of his privilege against selfincrimination; but no -teslimoi\V"or 'o'ther iri"formatioij,5
>compelled under the order (or any information direct'l T
'or indirectl y derived from such testimony or other'.... .
fnfor mation ). may b~.useda·gainst t~e witness io a nY]'
,:cr:imi nal casif,except- a- "prosecutian- f'or 'perjl:frY;-cliv'; n9
a false-sfatement, or otherwise failing to comply with
the order.
The statute represents a significant departure from
traditional Federal immunity laws in that it immunizes a witness who
testifies (or produces documents) und er its compulsion a ga inst · the
use of his testimony (or documents) or the fruits . thereof in· any
Distribution : U::;A-.3i .F-l · (eM only)
- 2 criminal prosecution, but does not immunize him from a subsequent
. prosecution based on entirely independent evidence .of the ...
:
transaction as to which he testifies . , The immunity it affara~,-5
~is intended to be as broad i s ,- but not "waste full y broader " th~'f
. the Fifth Amendment, privilege against self-incri mination . ." - " , ,,
'I..:..----~------ .• --...- - ---- ---- ~
.
.
.
.~..
.,.. ~
.
The new "use" i mmunity statute embodi ed in Title II
provides the government with an important and useful prosecutorial
tool possessing significant advantage s over previous "transaction"
immunity statutes,. Its selective , use is encouraged, under' the
conditions set for.th belO\oJ, ·in cases where there are sauna reasons
to obtain an order compelling testimony or documentary evidence
..
from a prospective witness . . JJ
2. Relationship to Previou·$ Federal Immunity Statutes
The enactment' of Titl e II accomplished a number of changes
in Federal immunity law in additlon to the adoption of use immunity
as opposed to transaction immunity. The most impprtant of these
are:
<al In place of the multitude of ·existing statutes based
upon the nature and subject matter of the inquiry', there is substituted
.one general immunity provision for court and grand jury, department. and
~genc.y, and c?n~r,ess;o na l proceedings: ., ~irtual~y all pr~--e :(i ~~5_~g~~~,:{~'
!:'lrmm)m ty pravl Slon5 are ' repea 1ed, a s 1nd1ca t ed 1IT Append 1x I l ;
. _.
.:._ _ _ _ • . .. , __
_
• .
•• _ , ........
• • _ _ _ . • . _ .. .
'.~
~_ l
•.ffowever, '18 u. 5 .C.: 251 4', ~;h"j -;;h ' ~~'n't-a'i ~s-th~ '''i rr;;;u;; itY i!tL ...
-provision s add ed by the "Omn ibu s Cri me Con trol and .. Sa fe Streets Act'"!
':of 1968" is not re peal ed until October 15, 1974 :-'-- fciur- years ' after
-en'a ctment of "the new statute. The reason for the delayed repeal is to
allow the courts ample time to rule upon the vali.dity of the general ' .
statute . ""~.tch. v!Jl.l thereafter re place .i t . ' . Unt il ther e' lia s 'hee n .. _~
·.'Su reme Court rulin u holdin " t he cons titu tiona lity of the ne\·/ statute, "'t' .
•t e De par tment '111
con tinu e t o ut l H e 8 . 5 . . 514 and t o grant ~ _
~trans a et1 e n l mmunit in li eu of use l mmu nit
in most ca ses and reee edin
··to W l eh t ha t sec t l on 1 5 app l ea e .,,:- The of enses lnc u"ed wlthin Sectlo'n
2514 are llsted 1n AppendlX III. Nevertheless, in requesting approval of
Immunity applications under Sec'tion 2514, the instructions 'set out in Part
5, infra, should be followed.
JJ "
Although the "Comprehen's ive Drug Abuse Prevention and Control Act
of 1970," Public Law 91-513, enacted October 27, 1970,also contains a
use immunity statute, appl icabl e only to narcotics prosecutions, the
Department intends to rely instead upon the general immunity provisions .
of Title II.
-3-
A few existing immunity provisions >lhich confer only limited
immunity, as oppos ed to absolute transaction immunity, have been retained
·and amended to conform >lith the use restriction afforded by the ne>l 2/
statute. The amended immunity provisions are listed in Appen~ix IJ."All provisions of la\ll inc onsistent \·lith the nevi statute are
repealed to the extent of the .inconsi stency by Section 259 of Title II . .
It should be noted, ho'!ever, that the ,registrat ion statutes · and the
notification provision of the Federal ~Iater Pollution Control Act of 1970
(33 U.S.C . 1151 et ~.) contained in 33 U.S.C. 1161(b)(4), which confer
only immu nity from toe use of information required to be .disc1osed, are
.
not affected sinc~ these are not inconsistent.
i
The new immunity provisions . and all repeals and amenpments effected
by the Act, >lith the excepUon of the repeal of 18 U.S .C. 2514 as noted above,
became effective on Oecember 14, 1910. .
.
...
(b) The ne>l ·statute will not provide automatic "immunity baths."
!A c1aim ·against ··se1f-incrimination is a prerequisite f o· co·n ferra1 ·oft
'immunity in all cases and pl'oc eedings to '!hic~_ it i s applicable, inc1udirt9'
,.those ari s iEs ..!!!ld.eLthLfedera 1. regu1 atori .1al,5': ' - The so"ca11 ed . "au·tomatic "
.
.
'immunity provisions are repea1ed.,lj
\
(c) Immunity orders may be obtain~d prospectively under
'. proFedures prescri bed in Secti ons 6003, 6004" and 6005 for court and
grand jury, agency, and congressional proceedings. The procedure ·insofar
as "court and grand jury proceedings are co ncerned does not materially
differ from that prescribed in 18 U.S.C .. 2514. Strict adherence to the .
statutory requireme nts, >lhich are set out in part 4 below, is essential
to the validity of an immunity grant and the institution of contempt
sanctions. A district court requested by the government to issue an order
Most important f~om the Department's viewpoint· is the ·amended
bankruptcy immunity provision, 11 U.S.C. 25(a)(1O). Prior to amendment,
this provision directed that the testimony of a bankrupt given at the
first meeting of his creditors could not be used as evidence aga ·inst
him in a crimina1 trial. Sit:,ce amendment. n~;ther the tes'timony of the
bankrupt nor any leads therefrom can be used in the preparation of a crimina,
prosecution against him or as evidence' at trial. The United States attorney
in. a criminal case against a bankrupt must be prepared to show affirmatively
that such testimo ny of the bankrupt was not · uti1ized as a lead for
.
. deve1oping evidence. See Memorandum to All United States Attorneys, No. 744,
dated April 6,1971.
.Y
~ The only exception is the bankruptcy immunity provision, ·11 U.S.C. ·
25(a)(10), noted in the preceding footnote.
- 4 . to compe l testimony or the production of informat ion..is not' empo\'/ered
to inquire into the merits of the request, but is empowered, only ,to
ascertain that there has been compliance with the statute. See
Senate Report No. 91-617, 91st Cong., 1st Sess. 145 (1969); H.R . .
Report No. 91-1549, 91st Conq" 2nd Sess. 43 (]9701. In view of, the
limited nature of t he role of the court, it is contemplated t~at.
a p~ l1cat1on to the court \'1111 be ex parte, unless the court requlres
that a head,ng be held , ,, . .-... --.. - ...__._- .•: ".-- - ....- __ ~ _____._oo~,.~
3. Lega l and Pract i cal 'Aspec ts ,of . ~se. _Re.st(ic;.ti.9n..a.s )
~_ Oppo sed to .Transac,t ion:.. Immunity-i
- _. - - - .
(a) The purpose of any immunity statute is, of co ur se, to
provide a prospective witness with a lega l prot~ction sufficient to supplan~
his Fifth Amendment privilege against self-incrimination, and thus
to permit the co.mpelling of his testimony for use against others ... Since
the decision of the Supreme Court in Copnselman v. Hitchcock, 142
U.S,.547 (1892), holding unconstitution.1 a 'use immu n1ty statut~
which precludec! direct but.'1o t ind;r.ect~ use of_ ~ ...'I'IiJness' testimony,'
\th·. Congress had prciceeiled' upon the' assu mp ti on t ha t , -as ""ugges ted ' by·t. .
roictum in Counsel man , absolute imml{nity against prosecution I-las req~t~~.~
I-to supplant the . fjfth Ame nd me nt privilege . In 1954, hmo/ever, the (~
.
<Supreme Court indicated in r'lur~hY v . Haterfront· Comm ., 387 U.S. 52 .,..
{1964}, that a witness ' s pr,lVl eg e ' aqainst self -incr imination migh1;~
adequately be supplanted by a statute. provIding immunity against us~-'"
'both of the 'litness's testimony and of the leads developed from sucW
~~esJjj1l<jni1 Since that date: s,upporn'or "theus " ' immu,iTtyco ncepra:ppeared
1" several additional Supreme Court decisions. ~i,r(iY v. New Jerse¥,
385 U.~. 493 (1967); Spevack Y. Klein, 385··U.S.
907) ; flarchett1 v.
United States, 390 U.S. 39 (1968};"Grosso v. United States, 390 U.S. 62
(1968 ); H?nel v. United States, 390~85'(l968); Gardiner v. 8roderick,
392 U.S. 73 1968; Unl ormeo Sanitationmen v . Commissloner of Sanltatlon,
392 U.S. 280 1968 '. "'(l\ijSeru1 ana1ys1s of these dec1s10ns 1S Prlntedt...
1'iirYolume II of the ~lorking Papers of the National ~a mm ission on Reformj'
( of Fe~ '2ral .Crimi na 1 La".s , pag~sl~0_S.thcoug0.· 1548Y It 'was in the ' above
'cases that the Congress found the co nst1tut1 ~na l support for the conceptof use i~~unity which it later enacted as 18 U.S.C . 6001-6005. Since the
enactment of the stat ute, the use i mmu nity concept has been upheld agai nst
constitutional attack by the Ninth Circuit (Stel',art v. United States and
' Kastigar v. United States, C.A. 9 Nos. 71-1212 and 71-1213, dec1ded March
29, 1971), but has been held to be unconstitutional by the Seventh
Circuit (In The Matter of Korman .and Lik'as, C.A . .7 No . ' 71-1328, decided
May 20; 197: ). The Supreme Court has rece ntly granted certiorari in cases
raising the constitu tiona lity of the use immunity concept, and a
.
definitive decision by the Court ie expected in late 1971 or early 1972.
__.:_" , _.. ~{bJ :Ii;:use-~l ii,"iiiin:rstattjte- f'-as~tw6 'jifinie-"practWn -'a~va~tag~v
l m~unl ~Y s~atu~e.
F1rst, ~nd er a use, r ~strl:tlOn " t­
·s~atute reorE: . .1nfOrmatlon 15 11Ke1y to be .obtalned fro,n ,an lmmun .l?ed \'J1 the:S~
~Transac t i,oO ·immun.i ty sta cutes ,encourage .a wi tnes s to re 1a te h.i 5 . tes t i r;1,o ·njl.:, ~ ..
t;o?er , a , trans'1~tl0n
.~o ,~:~~~t,Jb~(~Q,S"i~.)J.oP9. ?:;i.!> l i; ' i,n ,ord ec 5q _se;;ur~ .planket_ Jonffiun i tj.:aga i_nst
:?
·5·
(proseciil i on;---"i tFlouCencoui'a'iF ng- ' hi m- fo" -give' dota'-i 1s --6f 'these'offen~e?'
. -.which might be useful to thegove<nme nt in the , prosecutictnofo~hers/'
Un-der- slich-a,- -trans-acti on- 'firimu ni ty' 5 tatute-; -a --w-i tn'ess- w
"ill -- often -relate
just enough information so that immunity will attach, but will then
become eVasive and divulge no more of any sub stance.
Under a use immunity
statute, hONever , once a we l.1 ad vised witness is compelled to reveal
an offense, he will have a strong incentive to disclo se as many of the
details (a nd accomplices) as possible in order that the government might
be precluded, for all practical purposes , from using · them against him. .
.Th·;; -m"i'e 'he d'lv ufges',' tho. -m'or e 'difficu1t i't becomes Tor the governmen17
,:to proceed aga i nst him on the subjec.t .. ma_tter .,oJ..h.i~ _ testimonyt 41' --"··
For" thi s "reason,- government "a ttorneys should assure that. both tne
counsel for an i mmunized \'litness and ,the witness hi msel f fully understand
and appreciate this aspect of use immunity.
'.
,.., ., - ,-., '--' .,,-,--...~ " - .. .." ..
.•.
,._ ...,--_ _, ~. __ . Second ; ·t here has been an unders t andable. reluctance by goverl)mg~.",
"ra-ttorneys' to uti1ize ._t r:a!"!.~a~tjon i mmun ity statutes"~ -:~ even \,Ihere ,tf1{ "- - . ( test imony of a \<d tness is vitally needed in q,n important criminal caS'E!:~-­
.:tor fear . that the \<Jitness granted · b1anket ';mrnunity against" pros·e.C4~i-.qii"
(may turn out to, be.. f.ar.. more deserving of prosecution than had been
"an.ticipat~d~ :~ There is always the chance t ha t, after a "itness has been
. granted immunity again st prosecution, important evidence may be developed
by Fede ral or s ta te authorities i ndependent1 .y connect i ng ·the ,Ii tnes s to
serious cri mes not preyious1y suspected. The ris k is often considered
.' too high t o justify t he compelling of thewitness's testimony, Such
problems are considerably r educed und"r a use immu nity statute, since
a testifying witness may still be pros ec uted for offenses r evea led in
his testimony 'if it oao be clearl y established that independent evidence
s~!!.(Hng al one is in fact t he sol e basis of. the.. contemp1ated prosecution.
t'lt should be clearl y understood , howe'!er, that it is" the 'policy of the ":'"',_
.
·!bepartment under the nevi use immunity statute to avo id futur·e .prosecutfonO'"
'~f witnesses for offe nses d;~clo sed ~y . su.~~ . ~"'_i~ne ~ se ~ i_n their .r:'es-pori·s es.j
t :to que st i ons after a grant of use i mmunitYi such a prosecution · shal1...r.?,t ( be fni t ia ted unl.ess .. t he matter i s first refer·red to the appropria~~)1
Di vision of the Department in a v/ritten communi cati on recommendin9'~~
, { pros ecut i on and expl.a.ining the unus ual . circumstances \'I hich .. ar~ f.e.1.f '(dr
;fustify . pr os~cut.i.<irT; - uiiTess t he Assistant" Atto r ney Ge:nera1 in chargE,--of
such Divis io·n- expressly recommends in a written cOlTUTlunication to the ·
'. Attorney General that the prosecution be auth oriz ed, and un less the
Attorney General personally signs an authorization permitting the
. undertaking of the prosecution.
- ,--- , _
-
,., ..
,,~
!/'.".
..
-~ ~.-
....- - --. -, ..., ... -.. -.- . , -----... _---- ---.--..
.-...
""-'_""'--'-,,,,,
-- -- - - -.- - ~ .- > ~;-,--- -~,~~. ~.-'.-
--.....
Although ·the government may ·prosec.ute the vlitness .on· t h~ .basls OT: ..;
~~imi1ar evi? ence obt a;ne~ ;nc:lp. p e nd~ntly of th2 witnes5's t estim~ny ~n · a .. V1
rare case \':n::re such o:n 1ndepe:1der:~ SOUr-Ct: d2vel l)ps I as a prc.ct1cal ;{ - . . .. .
jrJatte.r it \,d11 be diff icul t for the government to provri! an independenf."'1,.
:del- i Vq ti on '.je_~e~~J.~JJ.Y. ,! r ,t.b.' t ,i.'lfQ!ma;.t. i ,~I].o fi rs t \'I~ s. d i yu1geq. .i.~ ~the . wi tne.s~··..s ;~""·
. .~.~,.,t. J. ~.9.Q.r.~ .~.
..
.
.-.
0._.
-
-.--
., ..:.....~-';. ; ·~ I.~ · ;:.:.!;'-'.! c "
- 6 ee) In two important respects the new immunity statute
wi11 not differ in its 3 Pplication fro m, the, pr~viou? .tra~sacti.R2
invnunity statutes. First, the statute ".11 11 preclude State a.s .:,...
',wel l as Fedel"g.' use agains t the ~'Iitness of t he information ~.­
\ compe ll ed. §j: just as previous Fedetal tran sacti on immuni~t.statute s ,precluded State a'S \'/ell as Federal prosecu.tion . "/B I
~:Second, the use i tr.munity statute, li ke ,tne privilege against~
=.s"elf-incrimination and li ke past transaction i mmunity statute'S ,
. ,~extends only to pas'~ offenses, not to future -offenses vlh'; ch ·i·
~.·may be committed by'the \'Iitnes s' ij or to contempt or perjur-Y
;commi
tted . in , the. cour:se
of the .campe 11;._-09_.. -of,._-'-_.-'
. the ~es
t~ I!Iqify. -8/
-!.;..,
",
_._
---- _ ..- _.-.• _ .. -•
-'. -- '
,
4. Statutory Procedural Regu]rements
(a) Under the procedure established by Section 6003, pertaining
to proceedings "before or anci1lar.y t o a cour't or grand jury of the
United States, " y orders to compel . the test imo ny of witnesses or the
f'OrehY"v
, 5/
See
:' ii;te~fro~rC;;.;m:5, 378 V,S, 52 P964 );
( Ullmann v, nlted States,' 35Q U.S. 422 (1956); Adams' v:' fraryTanQ¥
~ 179 (1954}.-"
.
"
'. ' . '
".
" Reh,'-Y'-[Jni~'ed
5~7
6/ "
sfato;" 364 V'.S.
(1960); "LiYlffia-no',Y'I
r,1fnTtedStafi?s;' su pra; ~ v. Halkel.,.- 161 ·V.S. 591\lll96T. '
7/
See U,iited'-States' ;;:" i'reed?
U.S .
Sup. Ct. No.
1'45, O.T. 1970 , deCided AprTl5";" ,l 97'!7Mac Rey' v. Vnlt~d ' States~
==-n--..- U. S.
, Sup. Ct , No. 36, O.T. 1970, decided
AprJLS, ,1971; G"c~stein vI. · United State;:;; 222 U,S. )39 (1911);
(Hear; ngs . Befote . SUbCOlT'.rTIl t tee No . 5 Of the ..Comini t tee . QQ ·'the·' 'Jud icia-'7;
{,House of R7Pr~$.~D. tat.ive.$ .. 9J.s_t_.~.9.rtg ... ~f.lAj.~~.~!P.~1 . J~!::.3L~~~_§"6J..:.¢1
·~R.(l9ZQh
L
8/
See 18 V.S.C. 6002; United States v,~, 339 V.S. ,323,
1'40-342 (1950); Cameron v. On l~ed States, 231 U.5..710 (1914);
Glickstein v. Unlted St.ates, suora.
9/
The term "court of the United States" is defined in Section
0001(4) to mea n the V.S . Supreme Court, the' courts of appeals and
distr1ct courts established und er Chapter 5, Title 28. United
States Code. the District of Columbia Court of Appeals, the Superior
Court of the District of Columbia. the district courts of Guam and ',
the Virgin Islands, the U.S. Court of Customs and Patent Appeals,
the U.S. Tax Court. U.S. Customs Court. and the Court of Military
Appeals. Grants of immunity in court-martial proceedings are covered
by Sectio~ 6004. concerning grants by agencies.
.
the production of 'information may be obtained prospectively .from 4
district court by t he United States Attorney for ·the jud ici al district
in which the proceeding is to be held "with t he approval of the .
Attorney Genera l, the Deputy Attorney General, or any designated
Assistant Attorney General .." The United States Attorney must indicate
that in his judgment -.
(1) The wi tness' s testimony or informa t ion may be
,t o the publ ic interest; and ,
n ~c e ssa ry
(2) The witness has refu sed or is likely t o refu se to
testify or provide the information on the bas .i s of his
privilege against
s~ l f- ir cr i mination ..
The court's role in gra nting the 'order is solely to ascertain that
there has bee n compliance >lith the statute.
(b) In agency proceeding s , pursuant to Section 6004 , orders
to compel th e t estimony of \'litnesses or
to
prdvide information may be
issued by an agency >lith the 'approval of the Attorney General when in
the publ ic interest. An "agency of the .United States " inc ludes designated
executive departmen t s. mi litary departments, and certain independent
agencies as defined in Section 6001(1) . The proceedings to >lhich the
i~u nity provi sion s are appl icable ace those of a forma l nature 'with
r~~pect
to Ylhich the age'ncy ; s aut horized to i ssue subpoenas , take
te,s timony, and receive information from witnesses under oath.
(c) . Immunity may be granted upon the order of a district
court in certai n proceed ings pursua nt to Section 6005. In the case
of a proceeding before either House of Congress, the request for an
. order must be based upon an affirmative vote of the majority of members
present; in the case of a proceeding before a committee or subcommlttee
the request must be based upon the affirmative vote of two-thirds of
the members of the full cOrTUllittee.
Ten days or 'more prior notice of an
intention to request an order must be given the Attorney General;
thereafter , the court must defer the order for a period up to twenty
days upon the Attorney Genera]"s r.equest. During th i s ' period, the
Department wi11 have an oPl'Ortunity to express objections to any
,conferral of immunity \·!hich ~'lill int~rfere \>lith an investigation,
prosecut ion, or law enforcement program and to urge Congress or the
·committee to reconsider the request. However, the Attorney General
is not given a veto power, nor is the court given discretion to
further withhold an order if the procedural prerequisites are met·.
~
8 -
5. Instructi ons for Obtaining Approva l fo r Immun ity Reguests.
While applications to the court for immunity orders u'nder
18 U.S .C. 6003 must be made by the United States Attorney for the
district in which th e court i s sitting, requests to the Department
for authorization to apply for immunity orders may be initiated by
any government attorney Nho is conducting the case or grand jury
proceedi ng.
In all cases, hm·/ever , the United States Attorney should
be advised of the impending request .
The Assistant Attorney General in charge of the Criminal .
Division has been authorized to exercise the authority to approve immunity
applications i n cases and proceeding s arising under the la'ls whfch he
administers. 28 C.F.R. 0.175. In addition, the Ass i stant Attorneys
General i n charge of the Antitrust Div.is ion, the Civil Di vi sion, the '
.Civil Rights DiVision, the In terna l Security Di vision, the Land and
Natural Resources Division, and the Tax Divis'ion have been authorized
to exercise such authori ty with respect to cases and proceed ings within
the cogniza nce of their respective Divisions 'subject to the concurre.nce
of the Assistant Attorney General ' in charge of t he Criminal Division to
minimize the danger of inadvertent interference with an on-going
.
investiga tion or prosecuti? n. . Ibid.
I
Requests for ap proval of immunity applic ations in cas'es
within the cognizance of the ,Criminal Division should be addressed
to the Immu ni ty Unit of the Criminal Division , which will coordinate t he
process ing of the matter with the intereste~ Sections. Requests
"for approval of i mmunity applications in cases within the cognizance
df Divisions other than the Crimi na l Division shou ld be referred' to
the appro pria te Division. Where t here is doubt as to the appropriate
Division, such requests should be addressed to the Immunity Unit of
the Criminal Division, whic9 will ' determine the ap propriate Division
and forward the requests accordingly. .
' .'
All requests for approval of immunitv applications must . '
be submitted in writing, allo'llng a least two weeks whenever possible '
for consideration and processing, and should include the fo.l lowl no
information :
.
1. Name of the prospective witness for whom immunity
is reques ted.
2• . . Date and rplace of birth, if known.
3.
FBI and local police number:· If any.
4.
Residence address .
'" - 9 " ,
.- 5. Name of employer or ' company with which he is
associated.
6, Relative importance of the ,witness in the ' criminal '
activity in the area.
, 7. Whether a check of pertinent state and Federal
offices in the area reveals the e~istence of any
-charges pending"against the witness, and, if so,
the nature of the charges.B. 'Whether the witness is curr;nt1y incarcerated, and,
if so, under what conditions and for what length of
time.
I
9. Docket number of the case in which the wi tness' s ,
te.stimonyor information is sought, or matter number
involved in the grand "jury, proceeding.
10. Brief resume of the backgro.und qf the case or ,proceeding .
.
' 11. Reasons for the request, ,i nc 1ud i ng :
(a) the witness's part in the ,matter under, investigation.
(b) the 'testimony or'~ information he is
be able to ,give.
' '
'
exp~cted ' to
(c) why he may be expected to invoke the privilege
against self-incrimination.
(d) how the testimony or information sougbt , may be
necessary
to. . the pub1
ic interest.
J
,
12. Estimation of whether the ;litness i~s likely to testify
or produce information if .Immunity 'is granted.
13. Estimation of what Federal and state offenses on the
part of the witness.may be disclosed if the witness
testifies or' produces information under the grant of
immunity.
Immu'n ity applications must indicate in every . case whether
immunity is sought under Section 2514 or under Section 6003, so that
the Department's records will reflect whether transaction or use
immunity is sought and subsequent1y~onferred •
.
.
- 10 6. Court Procedure to Compel Testimony of Witnesses.
After the United States Attorney receives the approval of
the Attorney General to apply for an order granting immunity, ,h e will
present an application pursuant to Section 6003 requesting the district ,
court to order a witness to give testimony or provide other infonnation
which the witness refuses to give or provide on ,the basisof . his
pr:iv.i.lege against self-incrim'i nation. The court's role in -actiiig -'iiPP:W
'::the application f or an order, as noted previously, is not to inqu;re.o::
"in to the me rits of the re quest , but only to ascertain that there hair
',:been comp li ance_ with _the statu te:r A sample application form, "hich may
be"m'odified to accord with local district c"urt rules, appears in
Appendix IV, together 'lith a sample order.
'
In the event that, the United States Attorney is confronted
,
with a witness 'Iho, after previOUSlY ha~ing t estified pursuant to a
court order, refuses to testify at 'a subsequent ancillary proceeding
or at a trial involving the same matter to "hich the "itness had
earlier testified, it may be necessary, de'pending upon the scope of
the original testi mony and the ' breadth of the initial court order , to
apply for a further orde,'. In making an application for, a further
order, ho"ever, the original letter of approval sent to the United
States Attorney by the Department should be sufficiently broad to
const\tute the requisite approval for the' further order of the court,
thus E\liminating any delay incident to reque:sting additional approva l.
Nevertheless, prior to a re -u se ' of the original letter of approval,
the United States Attorney should verify that no change has occurred
with regard to the information previously supplied (see Part 5, above)
which "ould mil itate against the grantirrg of further immunity t,o the
witness. If in fact such a change has occurred, or, in any event if
more than six months have passed since the date of the letter of
approval, a second request for approval shou ld be initiated to assure
that during the interim there ' have come to the Department's attention
no other matters involvi~g the witness which ,would make any additi6nal
immunization inadvisable .
,
'
,'
'/'
,
7. Information Required after Obtaining Approval for
Immunity Requests.
. '
Under the new use restri~tion statute it will ' be extremely
important for the Department to maintain a complete record of all
immunity transactions in order to minimize the possibility of taint
in future criminal prosecutions and to facilitate proof of the
independent origin of proposed government evidence. Consequently,
at the conclusion of the proceeding with respect to ,which an immunity
- 11
request has been approved, you are requested to supply the Immunity
Unit of the Criminal Division with the following information:
1. Name of the witness,
2. Resid ence address.
3. Date and place
of
the court or grand jury
proceed; n9.
4. 'Oocket number of the case o~ matter number involved
in the grand jury proce~diD9 .
5 . Whether the authori)ty tq request a court order was used.
6. Whether the witness testified or produced
pursuant to a grant of immunity.
i~'fonnation
7. If so, the general na ture Qf the testimo.ny or ·
infonnation re,!:eived.l.Q..J
'
8. If the witness refused to. tes tify I 'v/hether contempt
proceedings . .Jer e instituted, _ and if the witness
testifi ed ,falsely. whether a"perjury prosecution was
initiated.
.
It will . be helpful fo r the purpose of evaluating the use
of immun ity as a prosecutive tool if you wil l thereafter advise
the Department whether the immunized testimony of a witness resu lted
in an indictment or conviction. While such information often will
not be available until someti me after the witness has testified. and
while you should not delay submission of the foregoing informatiun
. While awaiting findl a;spos;tioTi of the case or matter, please inform
the Immunity Unit of the Criminal Division as soon as .the final result
is known .
WILL WILSON
Assistant Attorney General
APPENDIX I
y
Repealed ITmlunity Provisions ,
7 U.S.C. 15 ,
, COTmlodity Exchange Act
7 U.S.C. 87f(f)
U.S, Grain 'Standards Act
7 U.S.C . 499m(f)
Peri shable Agricultural Commodities Act
7 U.S.C.
' C'o tton Research and Promotion Act
2115
,
12 U.S.C. 1820(d) ,
Federal Deposit Insurance Act
15 U.S.C. 32 33;
'Sherman Antitrust Amendments
,
,
, 15 U.S .C. 49
15 U.S.C,
1
'
Federal Trade Commission Act
,
nv(cl;
PI
, PI
Securities Exchange Ac,t of 1934, '
and Securities Act of 1933
78u(d
,
15 U,S.C, 79r(e)
Public Utility Holding Company Act of 1935
15 U.S.C. 80a-41(d)
lnvestment Company Act
15 U.S : C. 8Db-9(d)
Investment Advisors Act
15 U.S.C. 155(c)
China Trade Act, 1922
15 U.S.C. 717m(h)
Natural Gas Act
15 U.S.C. 1714(e)
".
, Interstate Land
Full DisclOsure Act'.
, Sales
.
16 U.S.C. 825f(g)
Federal Power Act
18 U.S.C. 835(b)
Interstate Trarlsportation of
~xplosives
'y Bya re siduary repealer in Sec. 259 of Title II, in addition to the prOV1Slon
of la" specifically amended or specifically repealed, any other provision of law inconsistent with the provisions of part V of title 18, U.S, Code, is amended or repealed
to the e<tent of the inconsistency. Legislative commentary expressly states, however,
that registration statutes which confer immunity from the use of informat ion furnished
are not inconsistent with Title II, and are not affected by the residuary provision.
PI ,The repeal of the immunity provision Qf this Act effects the repeal of
immunity provisions of other acts which incorporate it by reference . '
18 U.S.C . 895
Extortionate Credit Transactio'ns
18 U.S.C. 1406
Narcotics
18 U.S.C . 1954(b)
Welfare Pension Plans
18. U.S.C. 2514
Omnibus Cri me Control and Safe Streets
Act .M 19§8 . £I
18 U.S.C. 3486
Immunity Act of 1954 (violations of
18 U.S.C . 1751 ) (Presidential
.
Assassination and ~ational security offenses).
19 U.S.C. 1333(e)
Tariff Act of ,1830.
i
26 U.S.C. 4874;
7493
29 U.S.C. 161 (3)
Labor . Management Relations Act. 19~17
33 U.S.C. 506
Navigation Ac t
42 O. S.C. 405(f)
SociaJ Security Act.
42 U.S.C. 2201(c)
Atomic Energy Ac.t
45 u.Sf 157
Internal
.
~evenye
·Code of 1954
Railway Labor Act
45 u.s.~. 362(c}
Railroad Unemp loyment InsuranCe Act
46 U.S.C. 827
Shipping Act of 1916
46 U.S.C. 1124(c)
Merchant Marine Act. 1936
47 U.S.C. 409(1)
Communications Act of 1934
49 U.S.C . 9; 43\; 46;
916(a ; 1017(a)
Interstate Co mmerce Acts
49 U.S.C. 1484(i}
Federa.l AViatioh Act of 1958
50 U.S.C. 792(c}
Internal Security Act of 1950
50 U.S.C . App . 643a
Second War Powers Act of 1942
50 U.S.C. App. 1152(a}(4}
National Defense Contracts Act
,
c/ · The repeal of this statute (see ·Appendix III) is not
. effective until October 15.1974.
APPENDIX II
Conforming Amendments to Exi st i ng Immunity Provisions
7 U.S.C. 135c
Insecticide, Fungi cide, Rodentlc ide
Act
11 U. S. C. 25(a)( 10)
Federal Bankruptcy Act
Amended to pro~ ide use restrlction as to derived
evi dence. '.
.
00
00
00
00
00
00
00
00'
00
00
00
00
00
"
00
00
,
Hazardous Substances Labeling Act
·15 U. S.C . 1271
.
.
l B U. S. C. 2424
.
,
Whit ~ .
Amended to provide use restriction in lieu of
transa c ~ion im
munity .
Sl ave ' Traffi c ACt.
.
.. .
21 U. S. C. 373
Food and Drug and Co sme tic Act
--
..
Amended to provide use restri ction as to derived
'evidence .
APP END I X II I '
Immunity under ' 18 U.S.C. 2514
. Omnibus Cri me Control and Safe Streets Act of 1968
(Effective until October' 15, 1974)
Under 18 U.S.C. 25.14, transaction i mmunity may be 9ranted in
court or grand jury proceedin9s invo,l v1ng :
(Al Any viol ati on of Chapter 11 9 ,'''Wi ':;'- i~t~;c;pt;'~"';-ar;at
(I ntercepticlI; ' o{ Oral Communicat ionS" /,tTIlel,lI, U ~S~. Code , or
.nY- ~nspiracy- to vio1ate· the chapter , or
C
,(6) Any of the offenses enullle rated in Section 251 .Q of title 18
as follo>!s:
.
.
(a) 'anyOf-f;'-"-s;;" P;;~-i si,ab 1e' 6Y -dea):h~oi:'J;i~-i~pi:Ts;,nni;;;;P.'i
.for more than one year und~ii' 42 U. S.C. 2274-.2277
' (Atomic Energy Act of 19541-or unde r 18 U .S,C~
chapter 37 - ( espionag€1~na pter 105 (sabotagej', .
chapter 115
.
. (treason't'i
.-. -.- . -. .or' chapter 102 (riots).i
..~
-' ~- _
. (b)
a violation of 29 U,S,C 186 or 501 .. (c>. .......... _
(restri cti ons on payment's and loans to 1aboP'
~o rgal!,i za ti anSi),'"' or any offense puni"shab 1e ' unoefn l
1j t 1eo:18 \-,h'i ch- i nvo 1ves ..":'!:'r4~_r , _ki dnapiing_.: ." . .
•·ro bbery, or extortlon; :.;
-,- .
"'. . . . ..-." .'''-'' ",_. -. (c) anY offeii.,, · pllnishab'-e/under 18 U,S.C. 201
-{bri bery of public offiCialS ' and ;,itnesse,;:j'; 224
(b ribery.in sporting contestS:); sufis'eCtio n ' (d)'
(e-}, (f), (g) ~- (h), (il of section 844
(u nlaVlfur use of exp l osives) ;'7-1084 (traiismi sslgn
.-.of wageri ng informil.,ti on )?,-'503 (i n f1 uenci ng .or-':i njuri n9 an off; cer j urors , ' or \'d t ness genera"l lj:);
151Q--(obstructio n of criminal invesfigation; ~1511
. (obstruction of state or local la" enforcemni;-) '; 1751
:(Presidental assassi'nations, kidnapping, and assaulf1 ';
1951- ( i nterrerence ~'Ii th cOlI1l1e rce by. .threa ts or. via 1ence"lt :
1952 ( i~t e rs ta te and foreign travel. or transportation-- in' .
~'aid of racketeering ei1tErpri:;e~); 1954 (offer, acceptan.te~
-i'6"r '-so 1 i ci ta tion _fa i nf1 uence opera ti ori's of emp 1oyee-:~'
..
benefit plans)-;:--1955 '(prohibition of business enterpr;-s~s', ·
'of gambling); 659 (theft from interstate shipm enJ:r.~·- ·-· /
664 (embe zzlemen t from pension and ,',elfare fund~);
,231 4 and 23f5- (jnterstate transoortation of stolefi<-.:r
,pto-pertg>}; or 19&:>-(vio lati ons with respect -'tQ.;=-C
racketeer
'infl uenced * and
corrupt organi
zati on 's'f;
' .-."" •..• J'._ .. .,(\_.
_ _;•• __ ... _ ..•.• .•_..
- - - . - •• - ..•.• .'.~::":':":':""--'
1
:'- ~~';. J.'"
~
~
(d) any offense i nvo1 vi ng~o~~teri'eTti~"g?,puni shab1 e
under 18 U.S.C. 471,472, - 473;"-' - ·
.'
Ce) any offense, pun1shab1e under any law of the
United States, involving bankruptcy fraud pr
dhe' man'ufacture; .import~tion, receiving, con~:
"cealment, buying, -selli ng . or other'ltise dealir1g
in narcotic ~TlcJ.gs , . [I1~ r}!ll:lanai. gr.....9,t ~l.~_L ~_a_n.ge.ro,~s
.~~..~~ .----- -- - - . .- . - . - ..-...
.
Cf)
.
any offense including ext ortionaf" 'credit tra~s-~,t
( actions uncre'r 18 U. S.C. -89l,- 893-,- ur894; or-'~'":~
"'.
- ~~'~!
.
.
.
(g) any consp i ract:!o-(0Jrul!!:f.i6i~iirJiiCfo ~.~Orn:9· ,
offen ses ' ·
-.=------- ---- ....
'~-~..
.
'
•...
APPENDIX IV
Sample Form for Motion under 6003
In the United States District Court for the _______________
,District of ________ !
In re Grand Jury Proceeding
_ _ _ _ _ _ _--;-_---'Division
No.
MOT ION
United States Attorney for the
____________--'District of' _________~-'herebY
moves this Court "to issue an order pursuant to the provisions of Title 18,
United States Code, Section 6001 et seq., compelling __________
to give' testimony or pro~;de other information, which
, he refuses to give or'
provide on the basis of his privilege ag?inst self incrimination, as to all
matters about which he may be
inter~ogated
before the gr.and jury of the
United States presently empaneled within t~is District; and respectfully alleges
as follows:
1. The said,_ _ _ _ _ _ _ _ _ _ _[has been] [may be] called
to testify or provide other information' before said grand jury; .
2 . . In the judgment of the undersigned, the testimony or other information
from said witness may be necessary to the public interest.
3:' In the judgment of the undersigned, ' said witness [has refused]
[is likely to refuse] to testify or provide other information on the uasis
of his ' privilege against sel f incri mination.
4.
This ' appl ication is made with the approval of _ _ _ _ _--'_ __
_ _ _ _ _ _ _ _ _ , Assistant Attorney General in charge of the
_ _ _ _-'Oivision ~f the Department of Justice,.pursuant to .. the au't hority
"
vested in him by 18 U.S.C. 6003 and
28 C.F.~. 0.175. A copy of the letter
from said Assistant Attorney General expressiJlg such approval is' attached
,
United States Attorney
Sample Form for Order under 6003
United States District Court for the '______--,_ _ _ _..-_,Oistrict
of_~
____~~___
In re Grand Jury
~roceedi
_ _--,--,-_ _--,-____,_,Oi vi s i on
ng
No. _ _ _~__
.0 ROE R
On motion ' of _ _ _ _ _~--------> United
St~tes
Attorney
. for the _ _ _ _ _ _ _ _ _---'Oistrict of _ _ _ _ _ _ _, filed
in this matter on _ _ _ _~_ _ _ , 19 ___ ,
• And it appearing to the satisfactio'n of the 'Court:
1.
That _ _ _ _ _ _ _ _ _ _ _ _ _[has been called] [may be'
called] to testify or provide other informa tion before the grand jury of the
United States presently empaneled withi n this District; and
,
,
,
' 2. That in the judgme nt of the said United States Attorney, said _ _ _ __
I
'
[has refused] [is likely to refuse] to testify or provide other information on the
basis of his priv ilege against self iQcrimination; and
3.
That in t he judgme nt "
of the sai,d United States Attorney; the testimony
or o,ther informa ti on from said _ _ _ _ _ _ _----'may be necessary t o the
public interest; and
4.
That the ,aforesaid fiotion filed herein has been made wit h' ·the
approval of the Assistant Attorney General in charge of the _ _ _ _ __
Division of the Department of Justice, pursuant to the
~~thority
vested in
him by 18 U.S.C. 6003 and 28 C.F.R. 0. 175:
NOW, THEREFORE , IT IS ORDERED . pursuant to 18 U.S.C. 6002· that the
" give
said _ _ _ _ _ _ _ _ _--"'
~estimony
or provide other information
which he refuses to 9,ive or to provide on the bas.is of his privilege against
self incrimination as 'to all matters about · w~ich he may be interrogated
1
before sa id grand jury.
This order sha11 become effective only if after the date of th is order
the !aid _ _ _ _"-_ _ _ _ _ _ _ _r,efuses to testify or provide other
information on the basis of his prh.ilege against serf incrimination.
Unlted States District Judge
19_ _ .