Appeal from the United States District Court for the Northern District of Illinois, No. 75-CR-397 Prentice H. Marshall, Judge.
Hastings, Senior Circuit Judge, Tone, Circuit Judge, and Noland, District Judge.*fn*
This appeal arises from appellant Leonard Patrick's conviction of the charge of criminal contempt of court, pursuant to 18 U.S.C. § 401*fn1 and Rule 42 of the Federal Rules of Criminal Procedure. Patrick was found guilty after a trial by jury for his refusal to obey a court order directing him to answer questions during the course of a criminal trial in which he had been granted immunity under 18 U.S.C. §§ 6002-6003 in exchange for his testimony. Upon his conviction Patrick was sentenced to a term of four years. We affirm the conviction below.
The record herein discloses that on January 31, 1974, Patrick was granted immunity pursuant to 18 U.S.C. §§ 6002-6003 and ordered to testify before the Special January 1974 Grand Jury for the Northern District of Illinois. On two prior occasions Patrick had appeared before the grand jury but had refused to testify on the basis of his Fifth Amendment privilege against self-incrimination. After receiving immunity Patrick appeared before the grand jury on February 6, 1974, and gave testimony concerning his knowledge of gambling activities in the Chicago area and his past relationship with Lieutenant Ronald O'Hara of the Chicago Police Department. Patrick also testified before the grand jury on February 27, 1974, and December 17, 1974, concerning the same inquiry. Primarily as a result of Patrick's testimony, O'Hara was charged in January 1975, under a three count indictment, two of which counts alleged that O'Hara had failed to report money received from Patrick on his 1968 and 1969 federal income tax returns.
The O'Hara trial commenced on June 9, 1975, before Judge Marshall in the United States District Court for the Northern District of Illinois. Prior to his being called to the stand on June 10, 1975, as the government's first witness, Patrick was again granted immunity pursuant to 18 U.S.C. §§ 6002-6003 for any testimony he might give at such trial. The court then ordered Patrick to testify and advised him that no testimony compelled under such immunity order could be used against him in any criminal case, except for a prosecution for perjury, giving a false statement, or otherwise failing to comply with the court's order under §§ 6002-6003.
After being duly sworn as a witness, Patrick stated his name and that he resided in Chicago but refused to answer any questions concerning his connection with gambling activities during 1968-1969 and of his relationship with O'Hara during those years. Patrick consistently justified his refusal to answer such questions by stating:
"I respectfully decline to answer on the ground that my answer may tend to incriminate me and on any other ground presented or to be presented by my counsel."
Upon further inquiry by the court and a re-reading of the immunity order, Patrick stated that he understood the order but he continued to refuse to answer the government's questions. The court then found Patrick to be in civil contempt and remanded him to the custody of the United States Marshal.
On June 11, 1975, Patrick was returned to court and given a chance to purge himself of civil contempt and avoid further prosecution for criminal contempt. Again Patrick was advised of the immunity order entered by the court but he continued to assert the same objections and refused to answer the government's questions. Patrick was again held pursuant to the civil contempt order and a petition was filed for a rule to show cause why Patrick should not be held in criminal contempt, pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure. Trial was thereafter held upon Patrick's plea of not guilty, and upon conviction he was sentenced to a term of four years.
The first issue raised by Patrick is whether immunity conferred pursuant to 18 U.S.C. §§ 6002-6003 prohibits the use of the compelled testimony in an "inconsistent declarations" prosecution under 18 U.S.C. § 1623(c)*fn2 and is, therefore, co-extensive with the privilege against self-incrimination under the Fifth Amendment. Patrick argues that notwithstanding his immunization prior to testifying before the grand jury and again prior to being called as a witness in the O'Hara trial, he still could have been prosecuted under § 1623(c) if his testimony at trial was materially inconsistent with his testimony before the grand jury.*fn3 Therefore, Patrick alleges his assertion of the privilege against self-incrimination was proper and that the court erred in denying his motion to dismiss the order to show cause on such ground. The government responds that Patrick's immunity would extend to protection from prosecution under § 1623(c) because the use of any immunized testimony to demonstrate Patrick's having made inconsistent declarations would be forbidden by the immunity statute as interpreted in Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972).
Our research has uncovered no cases which clearly resolve the particular challenge brought herein to §§ 6002-6003 immunity. It is well settled, however, that the grant of use and derivative use immunity under §§ 6002-6003 is co-extensive with the Fifth Amendment privilege against self-incrimination, Kastigar v. United States, supra, 406 U.S. at 453; United States v. Cappetto, 502 F.2d 1351, 1359 (7th Cir. 1974), cert. denied, 420 U.S. 925, 43 L. Ed. 2d 395, 95 S. Ct. 1121 (1975), and that the statute "prohibits the prosecutorial authorities from using the compelled testimony in any respect," except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. Kastigar v. United States, supra. This latter qualification recognizes, for example, that if the witness commits perjury in giving the compelled testimony, the grant of immunity will not protect him from a perjury prosecution since no immunity attaches to false testimony given pursuant to the immunity order. United States v. Tramunti, 500 F.2d 1334, 1342-44 (2nd Cir. 1974).
Patrick primarily relies on the case of United States v. Hockenberry, 474 F.2d 247 (3rd Cir. 1973), which held that the immunity statute permits the introduction in evidence of so much of the witness' testimony as is essential to establish the corpus delicti of the offense of perjury, i.e., proving the witness made the statement. Patrick thus argues that it would not be improper for the government to use his immunized testimony in a § 1623 (c) prosecution merely for the purpose of establishing the corpus delicti, i.e., that he made the inconsistent declarations. Since the government would not have to prove which one of the two inconsistent declarations was false, the mere offering of proof that such declarations were made would establish the offense. While we agree with the court in Hockenberry that the witness' immunized testimony may be used to establish the fact that he committed perjury in the giving of such testimony, we do not agree with Patrick's assertion that such testimony could also be used to establish the corpus delicti of an inconsistent declarations prosecution. We believe such use was not intended by Congress to come within the exception found in § 6002 that the compelled testimony may be used in "a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." As recognized by this Court in United States v. Watkins, 505 F.2d 545 (7th Cir. 1974), this exception refers only to "future" perjury, false statements or non-compliance with the court order. To interpret this perjury exception to include a prosecution under § 1623(c) for inconsistent statements, some of which were made prior to the latest grant of immunity, would be too broad of a reading of § 6002.
The effect of inconsistent statements on immunity grants was discussed by the Illinois Supreme Court in the recent case of People v. Denson, 59 Ill.2d 546, 322 N.E.2d 464 (1975). In Denson the witness was held in contempt for refusal to testify at trial despite her being granted immunity for such testimony. The witness refused to testify on Fifth Amendment grounds arguing that such compelled testimony could be used to show inconsistencies with her grand jury testimony and she therefore faced the possibility of prosecution under an inconsistent declarations provision of the state perjury statute.*fn4 The court in relying on the case of People v. Walker, 28 Ill.2d 585, 192 N.E.2d 819 (1963), held that the testimony given under the immunity order could not be used to show inconsistencies with her grand jury testimony. Therefore, her refusal to testify was not justifiable on Fifth Amendment grounds.
Patrick attempts to distinguish the Denson holding on the basis that Illinois has a transactional immunity statute, as opposed to the use immunity statute applicable herein. We do not believe such distinction between the types of immunity afforded in the Denson case and under §§ 6002-6003 to be important. As recognized by the Illinois court in Walker, perjury by inconsistent statements must necessarily be shown through the use of the immunized testimony. We believe such use to be improper under Kastigar and that Congress intended immunity conferred under § 6002 to extend to "inconsistent declarations" prosecutions under § 1623(c).
We therefore conclude that §§ 6002-6003 does not allow use of the immunized testimony to establish the basis for prosecution under 18 U.S.C. § 1623(c) and that Patrick's challenge to his ...