Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1990)

MEMORANDUM^** 

John Leslie Vouk appeals the district court's judgment holding him in civil contempt for refusing to testify before the grand jury subsequent to a grant of immunity.¹  We affirm the district court's adjudication of contempt.

Vouk contends that his refusal to testify is justified because (1) the Fifth Amendment protects him from being compelled to give testimony that may later be used against him in a state prosecution and (2) the Fifth Amendment protects him from testifying on matters that were the subject of his criminal conviction while the appeal of that conviction is pending. These contentions lack merit.

Vouk argues first that he cannot be compelled to testify because the federal grant of immunity does not adequately protect him against the use of his testimony in a state prosecution. Under Washington law, the state must grant transactional immunity to overcome the privilege against self-incrimination. See State v. Runions, 100 Wash. 2d 52, 665 P.2d 1358 (Wash.1983); State v. McCullough, 49 Wash. App. 546, 744 P.2d 641 (Wash.Ct.App.1987).

A grant of use immunity pursuant to 18 U.S.C. § 6003 clearly prohibits the use of compelled testimony in state courts. See In re Grand Jury Proceedings (United States v. Mena), 662 F.2d 532, 533-34 (9th Cir. 1981) (per curiam). "The federal grant of use immunity is sufficient to overcome the Fifth Amendment privilege against self-incrimination." See United States v. Rose, 806 F.2d 931, 932 (9th Cir. 1986). The fact that a state sees fit to provide broader transactional immunity is irrelevant where the question arises in federal court in response to federal charges. See id.² 

Accordingly, Vouk's argument that the Compulsion Order did not protect him from the use of his statements in a state prosecution is meritless.³ 

Vouk next contends that his Fifth Amendment privilege survives because the Fifth Amendment prohibits compelling a convicted defendant, through a grant of use immunity, to testify to matters which are the subject of an appeal filed by that defendant. Vouk's argument is based on the fear that should his conviction be overturned, any testimony he might have given before the grand jury could be used to imperil his chances in any subsequent retrial.

The Ninth Circuit has recently held that "a witness whose appeal is pending may be compelled to testify by a grant of use immunity." See In re Grand Jury Proceedings (Garcia-Rosell v. United States), 889 F.2d 220, 222 (9th Cir. 1989) (per curiam). " [S]o long as the Government proves that its evidence at any subsequent retrial is derived from sources independent of the immunized testimony, the grant of use immunity to obtain the testimony from a convicted defendant whose appeal is pending does not violate the Fifth Amendment." See id. (citing United States v. Schwimmer, 882 F.2d 22 (2d Cir. 1989)). Garcia-Rosell controls this case and, accordingly, Vouk's argument lacks merit.

The district court's judgment of contempt is AFFIRMED.