The opinion of the court was delivered by: Robson, Chief Judge.
MEMORANDUM AND ORDER ON GRAND JURY WITNESS' MOTION TO VACATE
The witness, William J. Lysen, moves this court to vacate its
order granting immunity under 18 U.S.C. § 6002, 6003 on February
26, 1974.*fn1 As a background for this motion, it should be
noted that this witness was convicted in 73 CR 265, in January,
1974, of 22 counts of violations of 18 U.S.C. § 1341 and § 2315.
Lysen is presently appealing that conviction, although he has
already commenced serving the sentences imposed by Judge Bauer.
The witness' first argument ignores two important facts. First,
the defendant's appeal is based upon alleged errors in the trial
record. Matters that may now be disclosed to a grand jury cannot
be made a part of the record on appeal by the government. Second,
grand jury testimony that may be given by this witness would be
protected by the traditional veil of secrecy that protects all
matters before a grand jury from disclosure. Rule 6(e),
F.R.Crim.Proc. This witness' claims that his rights on appeal
would be prejudiced by his compelled testimony before the grand
jury are without merit.
The second argument set forth by this witness is premature on
its face. The witness apparently fears that matters that may be
disclosed to the grand jury may expose him to certain tax
liabilities. However, the witness' brief implicitly acknowledges
that the Internal Revenue Service has not yet asserted any liens
or made any jeopardy assessments. Brief of Witness Lysen, pp. 2
and 5. Thus, the court need not decide this issue.
The witness' final argument in support of his motion is that if
any immunity is granted it should be granted under 18 U.S.C. § 2514,
which provides "transactional" immunity, as opposed to
18 U.S.C. § 6002, which provides for a more limited "use" immunity.
The argument is based on the witness' contention that the
petition for an order granting immunity presented to this court
stated that the grand jury was investigating possible violations
of 18 U.S.C. § 1951 and that "§ 2516(1)(c) specifies that an
investigation of § 1951 is a ground for the issuance of
transactional immunity under § 2514." Brief of Witness Lysen, p.
6. The court's review of § 2514 and § 6002 does not reveal that
the use of one section as opposed to the other is mandated in any
particular type of investigation. It would appear that Congress
intended prosecutors to have sole discretion in determining which
type of immunity, if any, would be sought in a particular case.
The fact that § 2514 will no longer be a part of Title 18 after
December 15, 1974,*fn3 may indicate that Congress
preferred the "use" immunity conferred in § 6002 to the
"transactional" immunity of § 2514. The court is of the opinion
that a prosecutor seeking an order conferring immunity upon a
witness has sole discretion to determine the type of immunity to
The court has considered the other arguments raised by the
witness and found them to be without merit.
Accordingly, the witness Lysen's motion to vacate the immunity
order entered by this court February 26, 1974, shall be, ...