In Re Deborah A. Hitchings, Appellantunited States of America, Plaintiff-appellee, v. Allegheny Pepsi-cola Bottling Company; James J. Harford;morton Lapides, Defendants, 850 F.2d 180 (4th Cir. 1988)

Deborah Hitchings testified before a grand jury investigating the soft drink industry in the Eastern District of Virginia, as a result of which the criminal defendants in this case were indicted for price fixing under the Sherman Act. Miss Hitchings was an employee of Mid-Atlantic of which defendant Harford is the former president. She testified before the grand jury with use-immunity granted to her under 18 U.S.C. §§ 6002, et seq.

Upon the trial of the criminal case she was called as a witness by the government which declined to offer her immunity and she refused to testify claiming her Fifth Amendment privilege against self-incrimination. Among the innocuous questions asked her was this one:

Q. And did you testify truthfully before the grand jury?

A. Absolutely.

The government did not press the matter any further. Neither did it offer her grand jury testimony into evidence upon a claim that she was not available.

After the government rested its case, Miss Hitchings was called as a defendants' witness whereupon she refused to testify claiming a Fifth Amendment privilege against self-incrimination.

Upon this refusal the district court held that the witness was available. It reasoned that when she answered that she had testified truthfully before the grand jury that she by that answer waived her Fifth Amendment privilege. Upon Miss Hitchings' further declining to testify the district court found her guilty of contempt and committed her to jail. She was released from jail and placed on bail pursuant to an order of a Judge of this court and the appeal in the case was expedited.

We now decide that the district court erred in its holding that Miss Hitchings had waived her Fifth Amendment privilege by her answer that she had testified truthfully before the grand jury.

There is no doubt that, absent a waiver, Miss Hitchings did not lose her Fifth Amendment privilege by testifying before the grand jury with use-immunity. Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S. Ct. 608, 74 L. Ed. 2d 430 (1983), so holds on facts which are indistinguishable from those present here.

That being so the only question is whether she had waived her right to claim the privilege by the answer we have mentioned above that she had testified truthfully before the grand jury. We think that she had not. In United States v. James, 609 F.2d 36 (2d Cir. 1979), a witness had testified much more extensively than had Miss Hitchings on her voir dire in this case. That witness answered in some detail with respect to his background, into the background of the charges which were the subject of the inquiry, admitting that he had given statements to the FBI and to a North Carolina grand jury with respect to the case. But he refused to answer questions involving the contents of his statements to the FBI and whether he had signed a waiver of rights before talking to the FBI. The district court sustained the witness' claim of Fifth Amendment privilege against self-incrimination, which was affirmed on appeal. It stated the rule that where incriminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details, citing Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344 (1951), but the court went on that its examination of the witness' testimony showed that he had not disclosed a statement that might be characterized as incriminating, therefore, he had not waived his privilege. We have followed the rule of James in United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982) in note 18 on p. 478 of that opinion. The cases on this subject all seem to depend on the statement in McCarthy v. Arndstein, 262 U.S. 355, 43 S. Ct. 562, 67 L. Ed. 1023 (1923), where the Court said "... where the previous disclosure by an ordinary witness is not an admission of guilt or incriminating facts, he is not deprived of the privilege of stopping short in his testimony wherever it may tend to incriminate him." 262 U.S. at 359, 43 S. Ct. at 563.

Applying the rule of McCarthy and James to our case, we have examined the testimony of Miss Hitchings and find nothing to indicate in "the previous disclosure ... an actual admission of guilt or incriminating facts." McCarthy at p. 359, 43 S. Ct. at p. 563. Neither do we find that "incriminating facts have been voluntarily revealed." James at p. 45. The mere fact that Miss Hitchings has most recently testified that she previously testified truthfully to the grand jury is not an incriminating fact voluntarily revealed or an admission of guilt. It is, therefore, our opinion that she has not waived the right to assert her Fifth Amendment privilege against self-incrimination. It follows that the conviction of contempt, be there one or more, must be vacated and that Miss Hitchings must be discharged.

The order of the district court appealed from is

REVERSED.¹