United States of America, Plaintiff-appellee, v. Jon Joseph Kelly, Defendant-appellant, 464 F.2d 709 (5th Cir. 1972)

This appeal is from a judgment of contempt and order of confinement entered January 3, 1972, by the district court under 28 U.S.C. § 1826.¹  This Court vacated the judgment by an abbreviated order dated February 3, 1972, but we stated that we would file an opinion at a later date explaining the reasons for our order.² 

On May 22, 1972, the United States Supreme Court decided Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 and Zicarelli v. New Jersey State Comm. of Investigation, 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234. These decisions overrule this Court's interpretation of the Fifth Amendment privilege against compulsory self-incrimination in immunity cases. Accordingly, we withdraw our order of February 3, 1972, and substitute this opinion and judgment. See United States v. Cropper, 5 Cir. 1971, 454 F.2d 215.

On August 19, 1971, a jury found Jon Joseph Kelly guilty on four counts³  of violating 18 U.S.C. § 2511(1) (a) which prohibits unlawful interception of wire communications. On September 9, 1971, Kelly was sentenced to three years imprisonment. His conviction was affirmed by this Court on June 12, 1972.⁴ 

On December 6, 1971, the Government subpoenaed Kelly to appear before a federal grand jury on December 9, 1971. Kelly appeared at the appointed hour and was questioned by an Assistant United States Attorney. The grand jury was investigating possible violations of 18 U.S.C. § 2511, and the questions propounded to Kelly concerned the acts which led to Kelly's substantive conviction for violating 18 U.S.C. § 2511(1) (a).⁵  Kelly refused to answer, asserting his privilege against self-incrimination.

On the same day, the Government filed, under 18 U.S.C. § 2514,⁶  an "Application for Order Compelling Testimony". On December 13, 1971, after two hearings, the district court issued an order requiring Kelly to answer the Government's questions before the grand jury and granting him immunity.⁷  Kelly appeared before the grand jury the same day and again refused to answer questions, asserting his privilege against self-incrimination.

The Government filed with the district court a "Motion to Confine Recalcitrant Witness". On January 3, 1972, the district court pursuant to 28 U.S.C. § 1826 found Kelly in contempt of court and ordered him confined during the term of the grand jury or until he agreed to testify. The district court stayed its own order until January 11, 1972. A notice of appeal was filed on January 4, 1972, and, on January 7, 1972, this Court stayed the district court's order pending appeal.

28 U.S.C. § 1826 requires the Court to decide Kelly's appeal within thirty days. On February 3, 1972, this panel, Judge Godbold dissenting, issued an order announcing its decision.

On appeal, Kelly argued that the district court's order did not grant him full transactional immunity in that it did not preclude the Government from retrying him-in the event of reversal of his substantive conviction. The Government's brief does indicate that the grant of immunity would not necessarily have protected Kelly from retrial. Kelly contended that a grant of immunity which did not protect him from retrial was in reality only a grant of "use immunity" rather than "transactional immunity", which was required to protect his Fifth Amendment privilege against selfincrimination.⁸ 

In Kastigar v. United States, supra, the Supreme Court granted certiorari to determine "whether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony."⁹  92 S. Ct. 1653. The Supreme Court held:

We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of 'penalties affixed to . . . criminal acts."' [Ullmann v. United States, 350 U.S. 422, 438-439, 76 S. Ct. 497, 100 L. Ed. 511 (1956), quoting Boyd v. United States, 116 U.S. 616, 634, 6 S. Ct. 524, 29 L. Ed. 746 (1886)]. Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.

92 S. Ct. 1661.

We hold that the immunity order issued by the district court in the present case was, under Kastigar, sufficient to protect Kelly's Fifth Amendment privilege.

We emphasize, however, as the Supreme Court did in Kastigar, that the Fifth Amendment requires not only that the compelled testimony not be used against the witness but imposes a "total prohibition on use . . . barring the use of compelled testimony as an 'investigatory lead,' and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosure." 92 S. Ct. 1664.

A person accorded this immunity . . . and subsequently prosecuted, is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities. As stated in Murphy [Murphy v. Waterfront Comm., 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678]:

"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 378 U.S., at 79, n. 18 [84 S. Ct. at 1609].

This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

92 S. Ct. 1665.

Kelly contended, next, that the immunity order, even if use immunity is constitutionally acceptable, was insufficient to protect his Fifth Amendment privilege against self-incrimination in that it did not even provide for use immunity. He argued that the Government may not, even under a grant of use immunity, compel a witness to testify about acts which led to a substantive conviction which is on appeal at the time the witness is compelled to testify. Kelly contended that in effect he would be forced to aid the prosecution in preparing its appellate case against him. This, Kelly argued, is what the Fifth Amendment privilege was designed to prevent, citing Frank v. United States, 1965, 120 U.S.App.D.C. 392, 347 F.2d 486, 491, cert. dismissed 382 U.S. 923, 86 S. Ct. 317, 15 L. Ed. 2d 338.

Kelly's argument, and his reliance on Frank v. United States, supra, is precluded by footnote 3 in Katz v. United States, 1967, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576. Footnote 3 reads in pertinent part:

We find no merit in the petitioner's further suggestion that his indictment must be dismissed. After his conviction was affirmed by the Court of Appeals, he testified before a federal grand jury concerning the charges involved here. Because he was compelled to testify pursuant to a grant of immunity, 48 Stat. 1096, as amended, 47 U.S.C. § 409(l), it is clear that the fruit of his testimony cannot be used against him in any future trial. But the petitioner asks for more. He contends that his conviction must be vacated and the charges against him dismissed lest he be "subjected to [a] penalty . . . on account of [a] . . . matter . . . concerning which he [was] compelled . . . to testify . . .." 47 U.S.C. § 409(l). Frank v. United States, [120 U.S.App. D.C. 392], 347 F.2d 486. We disagree. In relevant part, Sec. 409(l) substantially repeats the language of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, which was Congress' response to this Court's statement that an immunity statute can supplant the Fifth Amendment privilege against self-incrimination only if it affords adequate protection from future prosecution or conviction. Counselman v. Hitchcock, 142 U.S. 547, 585-586, 12 S. Ct. 195 [206-207], 35 L. Ed. 1110, 1121, 1122. The statutory provision here involved was designed to provide such protection, see Brown v. United States, 359 U.S. 41, 45-46, 79 S. Ct. 539 [543-544], 3 L. Ed. 2d 609, 613, 614, not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Reina v. United States, 364 U.S. 507, 513-514, 81 S. Ct. 260 [264-265], 5 L. Ed. 2d 249, 255.

389 U.S. at 349, 88 S. Ct. at 510.

Footnote 3, when read in the context of this Court's treatment of the Katz case, refutes Kelly's contention. After his substantive conviction in California, Katz was subpoenaed to testify before a federal grand jury in the Southern District of Florida. He claimed the privilege against self-incrimination and was granted immunity under 47 U.S.C. § 409(l). When Katz refused to answer questions before the grand jury, he was brought before the district court, where his counsel insisted, relying on Frank v. United States, that Katz was entitled, under the grant of immunity, to an assurance or stipulation by the Government that the Ninth Circuit conviction be vacated and the indictment be dismissed with prejudice. The district judge ruled to the contrary and judged Katz in contempt. On appeal, this Court, to which Frank v. United States was cited and to which arguments identical with those made in the present case were made, denied a motion for a stay. When the grand jury was dissolved, Katz was released and after a new grand jury was impaneled, he was again summoned to appear. This time, he appeared and testified under the previous grant of immunity. On appeal from the substantive conviction to the United States Supreme Court, Katz again relied on Frank v. United States. The Supreme Court answered with footnote 3. See also Federal Trade Commission v. Gladstone, 5 Cir. 1971, 450 F.2d 913.

Because our decision relies upon a Supreme Court decision at odds with the previous law of this Circuit, we suggest to the district court that it consider giving Kelly an opportunity to purge himself of contempt by answering the Government's questions before the grand jury.

The Court's order in this cause dated February 3, 1972, is vacated. The Appeal is dismissed and the district court's order of January 3, 1972, reinstated.