In the Matter of Samuel Louis Goldberg v. United States , 472 F.2d 513 ( 1973 )

OAKES, Circuit Judge

(concurring):

I concur in the majority opinion.

I share the fears of Mr. Justice Marshall expressed in his dissent in Kasti-gar v. United States, 406 U.S. 441 at 469, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), that the “heavy burden” on the prosecuting authorities to prove that their evidence is untainted may often prove illusory. I therefore am reluctant to extend either the immunity statute (18 U.S.C. §§ 6002, 6003) or Kastigar to the present case where the witness before the grand jury has already been arrested. Neither in logic nor in legislative history nor in practical effect, however, is there any legitimate distinction between a witness who has not yet been arrested and one who already has been. Thus, with reluctance I feel bound by Kastigar to concur in the majority opinion. I do so, seconding with enthusiasm the suggestion made in footnote 5.