The opinion of the court was delivered by: Marovitz, District Judge.
Motion of Defendant Klehman to Dismiss.
This is a ten-count information charging violations of the
Federal Hazardous Substances Labeling Act, Sec. 1263(a), Title
15, U.S.C. In essence, it is charged that the named
defendants, Wilmington Chemical Corporation, and its
president, Joseph S. Klehman, caused to be introduced into
interstate commerce a number of cans containing X-33 water
repellant, a substance defined as "hazardous" under Section
1261(f)(1)(A)(v), and "extremely flammable" within the meaning
of Section 1261(1), which cans were misbranded in violation of
the requirements set forth in Sections 1261(p)(1)(B), (C),
(E), (F), and (1), and in Regulation 21 C.F.R. § 191.7(b)(3),
promulgated pursuant to Section 1262(b).
On January 28, 1963, this Court overruled defendants' motion
to dismiss, and, at the same time, granted leave to the
individual defendant, Klehman, to file an additional motion to
dismiss based on the immunity provisions of Section 32, Title
15, U.S.C. That section reads in pertinent part:
Relying on his subpoenaed testimony before the Federal Trade
Commission in connection with a complaint entitled, In the
Matter of Wilmington Chemical Corp. and Joseph S. Klehman, an
individual and as an officer of said corporation, Docket No.
8548, defendant asserts that he is immune from prosecution
This court must conclude that defendant has failed to meet
the burden imposed upon him. In Heike v. United States,
227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450 (1931), the Supreme Court
of the United States refused to immunize a defendant against
a revenue fraud indictment relating to illegal importation of
raw sugar after he testified before a federal grand jury
investigating antitrust violations as to the amount of sugar
melted annually by each of several refineries. In applying the
statute which preceded Section 32 now before us, the Court
reasoned that the compelled testimony given in the prior
hearing must relate in a "substantial" way to the subject
matter of the indictment. That is, even though "sugar" was
involved in both proceedings, the subject matter of the two
inquiries, monopoly and tax fraud, were not sufficiently
related so as to activate the immunity statute.
From the papers submitted by the parties herein we must hold
that such "substantial relationship" is absent here, as well.
That is, while X-33 water repelant provides a common subject,
the F.T.C. hearing dealt with defendants' sales practices and
unfair competition as they related to Section 5 of the Federal
Trade Commission Act, such as representations that defendant
was connected with E.I. DuPont de Nemours & Co., and the
instant indictment concerns violations of the Federal
Hazardous Substances Labeling Act. The failure to include
certain mandatory warnings on a label cannot be said to
substantially relate to the "unfair trade practices" recited
in the F.T.C. complaint. See Himmelfarb v. United States (9th
Cir., 1945) 175 F.2d 924, cert. den. 338 U.S. 860, 70 S.Ct.
103, 94 L.Ed. 527 (1949); United States v. Greater Kansas City
Retail Coal Merchants Assn. (D.C.Mo., 1949) 85 F. Supp. 503,
While defendant has gone to great lengths to criticize the
"small minded bureaucratic practices" of the F.T.C. and the
prosecutive arm of the United States Government, he has very
sketchily outlined the similarities between the two
proceedings. We are satisfied that the government has
sufficiently countered these assertions. That is, while
defendant baldly contends that he testified before the F.T.C.
with regard to labeling, the government points out that said
testimony dealt with defendant's use of the DuPont name on
labels alone. Similarly, while defendant points to testimony
"relating to X-33," the prosecution asserts that Klehman merely
discussed waterproofing qualities of X-33, and not its
hazardous nature with which we are concerned.
Finally, Defendant refers to testimony relating to seizure
of X-33 by the F.D.A. This the government asserts, was
voluntarily introduced by defendant over strenuous and
repeated objections by the F.T.C. attorney. Surely such
voluntary evidence cannot be considered "compelled testimony"
giving rise to immunity. Just as a defendant may waive his
Fifth Amendment privilege against self-incrimination, Raffel
v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054
(1926); Smith v. United States, 337 U.S. 137, 150, 69 S.Ct.
1000, 93 L.Ed. 1264 (1949), so a defendant cannot cry
"compulsion" and seek immunity when he voluntarily offers
information. The "immunity is as broad as the compulsion and
no broader." May v. United States (1949) 84 U.S.App.D.C. 233,
175 F.2d 994, 1001. To hold otherwise would be to permit a
witness who was called to testify about a minor offense to
read off a list of his unrelated transgressions, and thus
acquire absolution for his sins. The immunity statute was not
intended to serve the function of a confessional, and cannot
be construed in that manner.
In the face of the government's detailed rebuttal,
defendants' unsupported assertions
can not satisfy the burden the law has dictated he must carry
on a motion to dismiss. Nor do his assertions that the
government be required to produce the F.T.C. transcript lend
support to his cause. Defendant was, and is, free to secure
that record and to itemize the "substantial relationship"
which he claims to be present. The government cannot in a
situation as this be required to subject itself to discovery
when the items sought were not obtained from the defendant as
required by Rule 16 of the Federal Rules of Criminal
On the record before us, it is the opinion of this Court
that defendant has failed to demonstrate applicability of
Section 32, Title 15, U.S.C. to the instant indictment. The
motion of defendant to dismiss is denied.
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