APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION
544 N.E.2d 974, 188 Ill. App. 3d 451, 136 Ill. Dec. 199 1989.IL.1367
Appeal from the Circuit Court of Cook County; the Hon. John W. Crilly, Judge, presiding.
JUSTICE LaPORTA delivered the opinion of the court. McNAMARA and QUINLAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA
Defendant, Leonard Gaines, was charged by three separate indictments with conspiracy, theft, unlawful possession of a stolen motor vehicle, misrepresentation of the identity of a motor vehicle, and perjury. Defendant moved to dismiss the indictments, contending that prosecution was barred by virtue of a grant of immunity entered in the United States District Court for the Northern District of Illinois, and the trial court sustained defendant's motion. On appeal, the State contends that the trial court erred in dismissing the indictments against defendant.
The record reveals that the indictments against defendant were returned by a Cook County grand jury on July 18, 1984. While these indictments were pending, defendant was called to testify as a witness in the case of United States of America v. James Basile, et. al., No. 84--Cr--727, in the United States District Court for the Northern District of Illinois, Eastern Division. Defendant refused to testify, asserting his right to remain silent under the fifth amendment to the United States Constitution. (U.S. Const., amend. V.) On February 20, 1985, the district court Judge presiding over the Basile trial granted defendant immunity pursuant to section 6002 of Title 18 of the United States Code (18 U.S.C. § 6002 (1970)) and compelled defendant to testify. Much of defendant's immunized testimony concerned facts and circumstances surrounding the crimes charged in the indictments then pending in the circuit court of Cook County. Defendant denied his guilt of these charges.
On May 9, 1985, defendant filed a motion in the State court to dismiss the indictments against him, alleging that the subject matter of the case against James Basile in Federal court was relevant to these indictments and that by that court's grant of immunity he is immune from further prosecution relating to those charges in the State indictments. The prosecution objected to the dismissal of the indictments, asserting that the Federal court had accorded defendant only use and derivative use immunity rather than transactional immunity as provided by the Illinois immunity provision. (Ill. Rev. Stat. 1985, ch. 38, pars. 106-1, 106-2.) The prosecutor also indicated that he did not intend to utilize any evidence resulting from defendant's testimony before the Federal court because the State's evidence had been developed from sources and leads other than the defendant's immunized testimony in the Federal court and because defendant had been indicted before he was called as a witness in the case against James Basile.
The trial court found that the language in the Federal court's order granting immunity was similar to the language employed by the Illinois immunity provision and made a finding of fact that transactional immunity had been granted as opposed to use immunity. The court did not, however, dismiss the indictments at that time, and the case was continued for trial. The prosecution brought a motion to reconsider the court's finding of transactional immunity, which was denied. The defendant requested that the case be set for trial, and the prosecution sought a ruling on defendant's original motion to dismiss. The trial court then granted the defendant's original motion and ordered the indictments against him dismissed. The State has appealed the entry of this order.
The State asserts that the trial court's dismissal of the indictments against defendant was erroneous because the immunity granted under the Federal court's order afforded defendant use and derivative use immunity rather than transactional immunity. The Federal witness immunity statute provides in pertinent part:
"o testimony or other information compelled under the [court's] order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." (18 U.S.C. § 6002 (1970).)
"In any investigation before a Grand Jury, or trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce." Ill. Rev. Stat. 1985, ch. 38, par. 106-1.
"Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence except for perjury committed in the giving of such testimony." (Ill. Rev. Stat. 1985, ch. 38, par. 106-2.)
These provisions have been held to confer transactional immunity upon a witness compelled to testify in an Illinois court. People ex rel. Cruz v. ...