United States of America Ex Rel. Gerardo Catena v. Albert Elias, Superintendent of Youth Reception and Correction Center at Yardville, N. J , 449 F.2d 40 ( 1971 )

VAN DUSEN, Circuit Judge

(dissenting).

I respectfully dissent because I believe that the immunity granted by N.J.Stat. Ann. § 52:9M-17 (1970), as construed and applied by the New Jersey authorities does not violate the provision that “no person * * * shall be compelled in any criminal case to be a witness against himself” in the Fifth Amendment to the United States Constitution. Two basic principles of the federal judiciary form the background of decision in a case such as this.

First, a state statute should be construed by federal courts as constitutional if this is possible. See Rescue Army et al. v. Municipal Court of City of Los Angeles, 331 U.S. 549, 569, 67 S.Ct. 1409, 91 L.Ed. 666 (1947); cf. Stefanelli v. Minard, 342 U.S. 117, 121, 72 S.Ct. 118, 96 L.Ed. 138 (1951). As noted below at pages 9 and 10 (see notes 11 and 12), the New Jersey law enforcement authorities, as well as the New Jersey Supreme Court,¹ have given a broad construction to the immunity granted by this statute which comes very close to transactional immunity. As so construed, there is clearly “immunity from * * * use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying,”² which is the requirement of the most recent opinion of the Supreme Court of the United States construing this language of the Fifth Amendment. See Gardner v. Broderick, 392 U.S. 273, 276, 88 S. Ct. 1913, 20 L.Ed.2d 1082 (1968).

Second, there is a “longstanding public policy against federal court interference with state court proceedings.”³ See Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). In Stefanelli v. Minard, 342 U.S. 117, 120-121, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the Court said: “* * * the federal courts should refuse to intervene in State criminal proceedings * * *. [T]he Court’s lodestar of adjudication has been that the statute ‘should be construed so as to respect the proper balance between the States and the federal government in law enforcement.’ [Citing case.].” The New Jersey Supreme Court has made clear that the decision of the majority will have a significant impact on the administration of the criminal law in New Jersey, where problems with organized crime are extensive. In In re Zicarelli, 55 N.J. 249, 261 A.2d 129, at 137 & 142 (1970), the court said:

“ * * * a commission to inquire into performance in public office, to trace the tentacles of crime in the public and private sectors, * * * [p. 137]

****** “Here the questions relate to an allegedly massive criminal organization, and to the witness’s associations in that context. The subject matter is incontestably criminal and the interest of the State is manifest.”

In Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), the Supreme Court held that a grant of immunity is constitutionally sufficient only if it is coextensive with the scope of the privilege against self-incrimination. The majority concludes that a statute must at minimum grant immunity from prosecution for the offense to which the compelled testimony relates in order to be coextensive with the privilege against self-incrimination, relying principally upon the following language from Counselman to support this conclusion:

“In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.” ⁴ In Counselman the Court held unconstitutional a federal immunity statute which prohibited the use of compelled testimony, but which did not prohibit the use of evidence derived from such testimony. The majority rejects the conclusions that the Court followed the traditional practice of deciding constitutional cases on the narrowest possible ground, and that, accordingly, the Court held the statute unconstitutional because of the omission of a prohibition on the use of evidence derived from compelled testimony. Instead, the majority concludes that the Court “elected to rule comprehensively” regarding the minimum requirements of a valid immunity statute. Little more needs to be said on the issue whether the language in Counselman relied upon by the majority constitutes holding in the traditional sense or mere dictum,⁵ for the Supreme Court will reconsider the question this Term.⁶

The controlling conceptual basis for the decision in Counselman is that “legislation cannot abridge a constitutional privilege, and that it cannot replace or supply [sic] one, at least unless it is so broad as to have the same extent in scope and effect.” 142 U.S. at 585, 12 S.Ct. at 206.⁷ In Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the Court held that a rule prohibiting the federal government from using testimony compelled by a state from an unwilling witness through a grant of immunity, and prohibiting as well the use of evidence derived from such testimony, would leave “the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.”⁸ If a grant of immunity which prohibits the use of compelled testimony, as well as evidence derived from such testimony, places a witness “in substantially the same position as if the witness had claimed his privilege,” the grant of immunity meets the requirement of Counselman that “legislation cannot abridge a constitutional privilege, and that it cannot replace or supply [sic] one, at least unless it is so broad as to have the same extent in scope and effect.” I thus conclude that the grant of immunity provided by the New Jersey statute is coextensive with the privilege against self-incrimination and therefore constitutionally sufficient.⁹

This conclusion is strengthened by the decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1961), decided the same day as Murphy, in which the Court held that the Fifth Amendment privilege against self-incrimination was made binding on the states by the Fourteenth Amendment. Malloy thus, it seems to me, renders insignificant the fact that Murphy was an inter-jurisdiction immunity decision (involving the question what effect one jurisdiction’s grant of immunity has upon subsequent prosecution in another jurisdiction) while Counselman was an intra-jurisdiction immunity decision (involving the question what scope of immunity must be given by the jurisdiction compelling testimony), for the governing substantive constitutional guarantee in both cases was that of the Fifth Amendment. The Court in Malloy rejected the notion that different standards govern the scope of substantive guarantees of the Bill of Rights, depending upon whether the claimed guarantee is asserted in a state or federal proceedings. Since the lesser standard of immunity from the use of compelled testimony and evidence derived therefrom was held to satisfy the requirements of the Fifth Amendment in Murphy, there is little reason to believe that the stricter standard of immunity from prosecution referred to in Counsel-man is constitutionally required.¹⁰

The majority insists that a grant of immunity from prosecution is the minimum immunity coextensive with the scope of the privilege against self-incrimination. As noted above, the Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The grant of immunity from prosecution to an unwilling witness affords the witness greater protection than the Fifth Amendment affords him, for the Fifth Amendment affords no one protection from criminal prosecution. On the other hand, the grant of immunity from use of compelled testimony and evidence derived from such testimony affords the witness the same protection that the Fifth Amendment affords him, namely protection from being “forced to give testimony leading to the infliction of ‘penalties affixed to * * * criminal acts * * *.’ ” Ullman v. United States, 350 U.S. 422, 438-439, 507, 76 S.Ct. 497, 100 L.Ed. 511 (1956). If the state may not use compelled testimony and evidence derived from such testimony, that testimony cannot lead to the infliction of criminal penalties upon the witness.

Of course immunity from the use of compelled testimony and evidence derived therefrom affords less protection to an unwilling witness than immunity from prosecution for the offense to which the compelled testimony relates. While I do not believe that the latter immunity is constitutionally required, I do agree that courts should be diligent to protect the rights of persons from whom testimony has been compelled pursuant to a grant of immunity. I believe, however, that this can be accomplished through a broad definition of the concept of “evidence derived from compelled testimony,”¹¹ as well as by placing a heavy burden of proving that there was an independent, legitimate source for any disputed evidence on the prosecutorial authorities.¹² Courts have dealt with the “fruit of the poisonous tree” concept for many years, and I see no reason why that experience will not suffice to protect the rights of persons from whom testimony has been compelled pursuant to a grant of immunity.

I would affirm the district court Judgment or, at the least, stay the decision in this case pending action by the Supreme Court of the United States in Zicarelli v. New Jersey State Comm’n of Investigation, No. 69-4, 1971-72, Docket of the Supreme Court of the United States, supra at n. 3.

McLAUGHLIN, J., Joins in this dissenting opinion.

1 . In construing N.J.Stat.Ann. 52:9M-17 (1970), the Supreme Court of New Jersey used this language in In re Zicarelli, 55 N.J. 249, 270-271, 261 A.2d 129, 140 (1970) :

“Nor do we see substance to the complaint that our statute protects the witness only with respect to ‘responsive’ answers or evidence. The limitation is intended to prevent a witness from seeking undue protection by volunteering what the State already knows or will likely come upon without the witness’s aid. The purpose is not to trap. Fairly construed, the statute protects the witness against answers and evidence he in good faith believed were demanded.”

55 N.J. at 270-271, 261 A.2d at 140.

2 . The complete sentence from which this quotation is taken (392 U.S. at 276, 88 S.Ct. at 1915) reads:

“Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.”

Decisions of the Supreme Court of the United States subsequent to the Murphy decision, discussed at page 8 below, have agreed with this view; see, for example, Marchetti v. United States, 390 U.S. 39, 58-59, 88 S.Ct. 697, 19 L.Ed.2d 889 (1967) ; In re Gault, 387 U.S. 1, 47-48, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1966).

3 . In Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), the Court said:

“Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved.”

Catena has pending in the Supreme Court of the United States an application for review of the denial by the state appellate court of his challenge to this New Jersey statute. See Catena v. New Jersey, No. 70-84 on the 1971-72 Docket (40 L.W. 3006), motion to expedite consideration of appeal denied, 401 U.S. 952, 91 S.Ct. 966, 28 L.Ed.2d 235 (1971). The Supreme Court of the United States has noted probable jurisdiction of a 1969 appeal from the denial of a similar challenge to the same state statute. See Zicarelli v. New Jersey State Commission of Investigation, 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213 (1971). This is the fourth case listed on the 1971-72 Docket of the Supreme Court of the United States (No. 69-4, 40 L.W. 3005). Also, the Supreme Court of the United States has denied an application for bail in Zicarelli, 401 U.S. 952, 91 S.Ct. 966, 28 L.Ed.2d 235 (1971), after its notation of probable jurisdiction. A similar application for bail pending appeal in Angelo Bruno v. New Jersey State Comm’n of Investigation was submitted to Justice Brennan on March 6, 1971, resubmitted to Chief Justice Burger, and denied by the Chief Justice on March 9, 1971.

4 . 142 U.S. at 585-586, 12 S.Ct. at 206. Similar language can be found in Brown v. Walker, 161 U.S. 591, 595, 16 S.Ct. 644, 40 L.Ed. 819 (1896), and Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 50 L.Ed. 652 (1906). Brown and Hale, however, involved statutes which provided full immunity from prosecution “for or on account of any transaction, matter or thing, concerning which he may testify or produce evidence * * 161 U.S. at 594, 16 S.Ct. at 645 ; 201 U.S. at 66, 26 S.Ct. 370. Ullman v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), relied on by relator, also involved a statute which provided full immunity from prosecution. In Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), some of the Counselman language relied upon by relator was again quoted. But Albertson, like Counselman, involved an immunity statute which was held unconstitutional for failure to prohibit the use of “investigatory leads” and other evidence derrived from compelled admissions. 382 U.S. at 80, 86 S.Ct. 194.

5 . See Murphy v. Waterfront Comm’n, 378 U.S. 52, 104-106, 84 S.Ct. 1594, 12 L.Ed. 2d 678 (1964) (White, J., concurring). Although the majority opinion in Murphy cited or discussed Counselman in four different places, Counselman was never cited for the proposition urged by the majority in this case. In Ullman v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), the Court interpreted the decision in Counselman in the following manner:

“[I]n Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, a unanimous Court had found constitutionally inadequate the predecessor to the 1893 statute because the immunity granted was incomplete, in that it merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony.” 350 U.S. at 436-437, 76 S.Ct. at 506.

6 . See the notation of probable jurisdiction on question 2 in Zicarelli v. New Jersey State Comm’n of Investigation, 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213 (1971).

7 . The Court in Murphy v. Waterfront Comm’n, 378 U.S. 52, 54, 78, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), cited this as the principle established by Counselman, without citing Counselman for the proposition urged by the majority in this case.

8 . 378 U.S. at 79, 84 S.Ct. at 1610.

9 . The Supreme Court of New Jersey reached the same conclusion in In re Zicarelli, 55 N.J. 249, 261 A.2d 129 (1970), prob. juris, noted sub nom. Zicarelli v. New Jersey State Comm’n of Investigation, 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213 (1971). The United States Court of Appeals for the Ninth Circuit has reached the same conclusion on the constitutional issue in Stewart v. United States, 440 F.2d 954 (9th Cir.), cert. granted sub nom. Kastigar v. United States, 402 U.S. 971, 91 S.Ct. 1668, 29 L.Ed.2d 135 (1971) (No. 1562, 1970 Term; renumbered No. 70-117, 1971 Term). The Supreme Court of California and the New York Court of Appeals have also reached the same conclusion on the constitutional issue. Byers v. Justice Court, 71 Cal.2d 1039, 80 Cal.Rptr. 553, 458 P.2d 465 (1969), vacated and remanded on other grounds sub nom. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971) ; People v. LaBello, 24 N.Y.2d 598, 301 N.Y.S.2d 544, 249 N.E.2d 412 (1969), writ of cert. dismissed sub nom. Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971). Contra, In re Kinoy, 326 F.Supp. 407 (S.D.N.Y.1971). See also Uniformed Sanitation Men Ass’n, Inc. v. Commissioner, 426 F.2d 619 (2nd Cir. 1970), petition for cert. filed, 39 U.S.L.W. 3001 (U.S., June 25, 1970) (No. 316, 1970 Term; renumbered No. 69-6, 1971 Term).

10 . See Gardner v. Broderick, supra at 276; Adams v. Maryland, 347 U.S. 179, 181 (1954). But see Piccirillo v. New York, 400 U.S. 548, 552, 91 S.Ct. 520, 27 L.Ed. 2d 596 (1971) (per curiam dismissing writ of certiorari) (Brennan, J., dissenting). The Court in Murphy apparently desired so to limit Counselman, for passages from that opinion which suggest that immunity from use is sufficient are quoted extensively, while there are no references to passages which appear to require immunity from prosecution. See The Supreme Court, 1963 Term, 78 Harv.L.Rev. 179, 230 (1964).

In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Court analyzed the application to the states of the individual guarantees of the Bill of Rights through the Fourteenth Amendment. In holding that the scope of the privilege under the Fourteenth Amendment in state prosecutions was the same as the scope of the privilege under the Fifth Amendment in federal prosecutions, the Court noted that it had:

“rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’ * * *

Sjí íjí

“It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified.” 378 U.S. at 10-11, 84 S.Ct. at 1495.

This reasoning leads to the conclusion that immunity from use of compelled testimony and evidence derived therefrom is coextensive with and sufficient to supplant the privilege against self-incrimination secured against infringement by the states by the Fourteenth Amendment, since the Court in Murphy held that immunity from use of compelled testimony and evidence derived therefrom was coextensive with the privilege against self-incrimination secured against infringement by the federal government by the Fifth Amendment. Otherwise stated, this reasoning leads to the conclusion that, when the same guarantee of the Bill of Rights is involved, there is no basis for a different rule for different jurisdictions regarding the extent of protection afforded by the guarantee. But see Piccirillo v. New York, 400 U.S. 548, 552, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971) (Per curiam dismissing writ of certiorari) (Brennan, J., dissenting) ; In re Kinoy, 326 F.Supp. 407 (S.D.N.Y.1971).

11 . Viewed against the background of constitutional decisions in the immunity cases, as well as in the search and seizure and wiretap cases, I believe that “evidence derived from compelled testimony” must be construed to prohibit the use of “investigatory leads” obtained from compelled testimony, as well as the results of those leads. Cf., e. g., Albertson v. Subversive Activities Control Board, 382 U.S. 70, 80, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965) ; Murphy v. Waterfront Comm’n, 378 U.S. 52, 103, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) (White, J., concurring) ; Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Counsel for the New Jersey State Commission of Investigation took this view of the New Jersey statute at oral argument before the original panel, where he took the position that “evidence derived” from compelled testimony comprehended all evidence obtained by virtue of focusing investigation on a witness as a result of his compelled disclosures. He further stated that “once you compel [a witness] to give an answer anything that flows even remotely from it must be protected.”

It is noted that the grant of immunity afforded by this statute so construed is as broad in scope as the “testimony and its fruits” requirement of the Fifth and Fourteenth Amendments, and as the grant of immunity afforded by the Organized Crime Control Act of 1970, Pub.L.No. 91-452, § 201(a) (Oct. 15, 1970), 39 U.S.L.W. 33, 34 (approved by the Judicial Conference of the United States at its March 16-17, 1970, meeting, Report of the Proceedings of the Judicial Conference of the United States 18 [March 16-17, 1970]). See Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

12 . Counsel for the New Jersey State Commission of Investigation took the position in his brief and at oral argument before the original panel that once a criminal defendant demonstrates that he has testified under a grant of immunity from the Commission to matters related to his subsequent criminal prosecution, the New Jersey prosecutorial authorities would have the burden of showing that their evidence was not “evidence derived” from the compelled testimony, and that they had an independent, legitimate source for the disputed evidence. See Brief for Appellee at 8-10; cf. Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 n. 18, 103, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).