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In re Korman

May 20, 1971

IN THE MATTER OF JACK KORMAN AND ROBERT W. LIKAS, WITNESSES BEFORE THE SPECIAL FEBRUARY 1971 GRAND JURY, APPELLANTS


Swygert, Chief Judge, and Fairchild and Cummings, Circuit Judges.

Author: Per Curiam

This is an appeal from judgments of civil contempt and concomitant orders of commitment entered pursuant to 28 U.S.C. § 1826*fn1 on April 20, 1971 upon a finding by the district court that appellants had declined to answer one or more questions propounded to them before the Special February 1971 Grand Jury for the Northern District of Illinois.*fn2 The district court determined that appellants had relied upon the fifth amendment privilege against self-incrimination despite the previous entry of an order pursuant to section 201 of the Organized Crime Control Act of 1970, 18 U.S.C. § 6001 et seq.,*fn3 commanding them to answer and granting them immunity from the use in a criminal case*fn4 of any evidence obtained by their answers. We reverse.

At the hearing on the Government's motions for orders holding appellants in contempt for failure to comply with the orders commanding them to answer and immunizing them, the only evidence submitted to the district court tending to establish that appellants had not complied with the immunity orders was the unsworn statement by the Government attorney that they had reappeared before the grand jury and refused to answer questions. Appellants' brief, however, states that subsequent to the entry of the immunity order "the witnesses were again taken before the Grand Jury and persisted in their refusal to answer the inquiries." Accordingly, we need not reach the question raised by appellants as to whether the failure of the district court to conduct an evidentiary hearing with regard to noncompliance with the immunity orders invalidates the judgments of contempt as violative of the due process clause of the fifth amendment.

Appellants' continued refusal to answer the questions put to them before the grand jury was based on their expressed belief that the use-restriction immunity granted by 18 U.S.C. § 6002 is inadequate to supplant their fifth amendment privilege.*fn5 The question presented to us is whether the statements in Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S. Ct. 195, 206, 35 L. Ed. 1110 (1892), to the effect that a valid immunity statute 'must afford absolute immunity against future prosecution for the offense to which the question relates" have been so undermined by subsequent Supreme Court decisions that they can no longer be considered binding on the lower federal courts. The Government contends that such statements in Counselman were mere dicta and that, in any event, they have been limited or overruled, sub silentio, by Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). We disagree. We hold that Counselman remains the binding authoritative exposition of the minimal constitutional requirements for immunity statutes. Those minimal constitutional requirements prohibit the federal government, absent a grant of absolute immunity from prosecution for any transaction to which his compelled testimony relates, from committing for contempt a witness who relies on his fifth amendment privilege and refuses to testify.

The statements in Counselman that full transactional immunity is a constitutional prerequisite to compelling a witness to testify cannot be regarded as dicta. Admittedly, the holding of Counselman was that a statute prohibiting only the direct use of compelled testimony was insufficient to displace the constitutional immunity, but the ground for that holding was that the Court was "clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege * * *." 142 U.S. at 585, 12 S. Ct. at 206. The Court did observe, 142 U.S. at 586, 12 S. Ct. at 206, that: "Section 860 [the immunity statute there considered], moreover, affords no protection against the use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party"; but we believe that observation, at most, states an alternative ground for the Court's holding which does not detract from the force of the ground more specifically relied on.

Moreover, we need not look solely to Counselman in deciding whether complete transactional immunity is the constitutional standard. Four years later in Brown v. Walker, 161 U.S. 591, 594, 16 S. Ct. 644, 646, 40 L. Ed. 819 (1896), the Court considered Counselman and stated that "the gist of that decision" is found in the following language:

We are clearly of opinion that no statute which leaves the party or witness subject to prosecution, after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecutions for the offence to which the question relates. [Quoting from Counselman, 142 U.S. at 585-586, 12 S. Ct. 195 at 206, 35 L. Ed. 1110].*fn6

In upholding a complete transactional immunity statute, the Court relied on the fact that under the challenged statute a witness' testifying under compulsion "operates as a pardon" for any crimes revealed by his testimony. Again, as in Counselman, the Court based its decision on the ground that absolute immunity from prosecution must be granted before the Government can compel a witness to testify.*fn7

The complete transactional immunity standard announced in Counselman has been consistently reaffirmed by the Supreme Court. In Hale v. Henkel, 201 U.S. 43, 67, 26 S. Ct. 370, 376, 50 L. Ed. 652 (1906), the Court recognized that Counselman had declared that absolute immunity from future prosecution is required; the Court there 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 received a pardon or is guaranteed an immunity, the amendment does not apply.

United States v. Murdock, 284 U.S. 141, 149, 52 S. Ct. 63, 65, 76 L. Ed. 210 (1931),*fn8 reviewed the precedents and stated that:

The principle established is that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination. Counselman v. Hitchcock, 142 U.S. 547, [12 S. Ct. 195, 35 L. Ed. 1110]. Brown v. Walker, 161 U.S. 591, 606, [16 S. Ct. 644, 40 L. Ed. 819]. Jack v. Kansas, 199 U.S. 372, 381 [26 S. Ct. 73, 50 L. Ed. 234]. Hale v. Henkel, 201 U.S. 43, 68 [26 S. Ct. 370, 50 L. Ed. 652].

In McCarthy v. Arndstein, 266 U.S. 34, 42, 45 S. Ct. 16, 69 L. Ed. 158 (1924), the Court held that Congress could not require a bankrupt to testify before a special commissioner unless it provided the bankrupt with a "complete immunity from a prosecution." In United States v. Monia, 317 U.S. 424, 428, 63 S. Ct. 409, 411, 87 L. Ed. 376 (1943), the Court again reaffirmed that Counselman required transactional immunity, stating that Counselman "indicated clearly that nothing short of absolute immunity would justify compelling the witness to testify if he claimed his privilege." Again in Smith v. United States, 337 U.S. 137, 147, 69 S. Ct. 1000, 1005, 93 L. Ed. 1264 (1949), the Court upheld a full transactional immunity statute. The Court stated that, "This remission of responsibility for criminal acts met the 'absolute' test of the constitutional provision against self-incrimination." In Adams v. Maryland, 347 U.S. 179, 182, 74 S. Ct. 442, 445, 98 L. Ed. 608 (1954), the Court said that in Counselman, "this Court held that an act not providing 'complete' immunity from prosecution was not broad enough to permit a federal grand jury to compel witnesses to give incriminating testimony."

In 1956, Mr. Justice Frankfurter, writing for the Court in Ullmann v. United States, 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511 (1956), reviewed the decisions we have referred to above and upheld a transactional immunity statute. Justice Frankfurter stated that the 1893 transactional immunity statute, 27 Stat. 443, which was enacted in response to Counselman and was upheld in Brown v. Walker, "has become part of our constitutional fabric." 350 U.S. at 438, 76 S. Ct. at 506. Finally, one further decision illustrating the Supreme Court's consistent interpretation of Counselman and Brown v. Walker is Reina v. United States, 364 U.S. 507, 81 S. Ct. 260, 5 L. Ed. 2d 249 (1960). The petitioner there argued, as ...


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