The opinion of the court was delivered by: Campbell, Chief Judge.
The United States Attorney has filed an affidavit and orally
represented to me that he, for and through the Grand Jury, is
presently conducting an investigation which includes, but is not
necessarily limited to, violations of the Federal Communications
Act (Title 47 U.S.C.) — more specifically § 203 of that Act. The
United States Attorney has further represented to this Court that
the testimony of the witness now presented before me by the Grand
Jury, Marty Lane, is necessary to the proper fulfillment of this
A record of the Grand Jury transcript submitted to me shows
that the witness, Marty Lane, has on her previous appearances
before the Grand Jury claimed her constitutional privilege
against self-incrimination and has refused to answer most of the
questions asked of her. The United States Attorney has not
claimed, as indeed he could not, that this reliance on her
constitutional rights was improper or unjustified.
However, the United States Attorney now desires to offer
immunity to the witness under § 409(l) of the Federal
Communications Act. Before me now is a petition to this effect
which also seeks an order directing the witness to testify and
produce evidence before the Grand Jury.
Witness's counsel in a memorandum opposing the Government's
present petition calls the Court's attention to United States v.
Portell, (In re Portell) found in 7 Cir., 245 F.2d at page 183
(not page 193 as cited in the memorandum). I fail to find any
relationship between Portell and the present situation, there was
no immunity sought, offered, or even mentioned in Portell.
Likewise, a review of the other cases cited in the witness's
memorandum reveal an absence of discussion relative to immunity
statutes. Moreover, the memorandum's quote from Hoffman v. United
States, 341 U.S. 479, at 486, 71 S.Ct. 814, at 818, 95 L.Ed.
1118, to the effect that the privilege against self incrimination
extends to answers which would "* * * furnish a link in a chain
of evidence * * *", not only is unrelated to the present issue,
but, had witness's counsel continued on and read the very next
line in Hoffman he would have noted that self incrimination "* *
* protection must be confined to instances where the witness has
a reasonable cause to apprehend danger from a direct answer. * *
*" The action of the government in this case, in offering
immunity to the witness, negates the possibility of her having "*
* * reasonable cause to apprehend danger * * *" from her
The Government relies on, and I adopt the reasoning of the 3rd
Circuit Court of Appeals in Marcus v. United States, 310 F.2d 143
(1962). The facts in Marcus were the same as those presently
before me with one minor exception — there the Government's
general investigation related to gambling and racketeering. The
same Federal Communications Act immunity statute was involved,
and the same representations were made by the U.S. Attorney —
that he was investigating violations of the Federal
Communications Act. The witness in Marcus was held to fall within
the ambit of the class of witnesses to whom § 409 (l) statutory
immunity attaches. The witness there was directed to answer
questions in exchange for immunity.
Based upon the representations made by the United States
Attorney, I find, that he and the Grand Jury are presently
investigating violations of the Federal Communications Act, and
that it is in the public interest and necessary to the
investigation that this witness receive immunity and tesify.
Accordingly, I now order the witness, Marty Lane, to testify
and produce evidence before the Grand Jury convened for that
purpose tomorrow afternoon, July 3, at 2:00 P.M. This should give
her an opportunity to confer with her counsel prior to her
required appearance. I further instruct her that any testimony,
or evidence, which she may give or produce before the Grand Jury
can never result in her being subjected to any subsequent
prosecution whatsoever, penalty or forfeiture except for perjury
committed in so testifying. In other words, and I want to call
the Government attorney's particular attention to this, by
testifying, she will obtain for herself an immunity which will
extend to any crime whatsoever which she testifies to or about. I
wish to make it clear and the Government is hereby warned that
such immunity is in no way limited to violations of the Federal
Communications Act but embraces any and every possible crime
about which she may testify before this Grand Jury.
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