In re Ullman

• Decision Date: 31 January 1955
• Citation: 128 F. Supp. 617
• Parties: In re William Ludwig ULLMAN.
• Court: U.S. District Court — Southern District of New York

128 F. Supp. 617

In re William Ludwig ULLMAN.

United States District Court, S. D. New York.

January 31, 1955.

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J. Edward Lumbard, U. S. Atty., New York City, for United States of America, L. E. Broome, B. Franklin Taylor, John H. Davitt, Sp. Assts. to the Atty. Gen., Washington D. C., of counsel.

Nathan Witt, and Leonard B. Boudin, New York City, for respondent.

WEINFELD, District Judge.

This is the first proceeding involving the immunity statute passed at the last session of the Congress.¹ The United States Attorney has presented to this Court an application for an order directing William Ludwig Ullman to answer before a grand jury questions which he has heretofore refused to answer, upon the assertion of his privilege against self-incrimination under the Fifth Amendment to the Constitution of the United States. The application sets forth that the grand jury was inquiring into matters involving interference with and endangering of the national security and defense of the United States by espionage and conspiracy to commit espionage in time of war in the Southern District of New York and elsewhere. The petition further avers that in the judgment of the United States Attorney the testimony of the aforesaid William Ludwig Ullman is necessary in the public interest and that the application is made with the approval of the Attorney General, whose letter of approval is attached.

The statute in question provides a procedure in investigations and cases involving the national defense or security whereby a witness, having asserted his constitutional privilege against self-incrimination, may be compelled to testify in return for immunity from future prosecution as to any matter concerning which his testimony is so compelled. The act provides for a grant of immunity in two separate and distinct categories, one, in investigations before the Congress or its authorized committees and the other, in any proceeding or case before grand juries or courts of the United States. We are here concerned only with that part of the statute relating to witnesses before grand juries and courts. So far as pertinent, the statute provides:

"* * * (c) Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving any interference with or endangering of, or any plans or attempts to interfere with or endanger, the national security or defense of the United States by treason, sabotage, espionage, sedition, seditious conspiracy, violations of chapter 115 of title 18 of the United States Code, violations of the Internal Security Act of 1950 (64 Stat. 987), violations of the Atomic Energy Act of 1946 (60 Stat. 755), as amended, violations of sections 212(a) (27), (28), (29) or 241(a) (6), (7) or 313(a) of the Immigration and Nationality Act (66 Stat. 182-186; 204-206; 240-241), and conspiracies involving any of the foregoing, is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in subsection (d) hereof) against him in any court."²

The witness opposes the application upon various grounds. He urges that (1) the statute is unconstitutional and in contravention of his rights under the Fifth Amendment by requiring him "to be a witness against himself"; (2) the statute is invalid in that the grant of immunity is not sufficiently protective to compensate for his privilege against self-incrimination; (3) assuming arguendo the statute does grant full immunity, it is invalid in that the court is called upon to perform a non-judicial function; (4) further, assuming it is valid, the application fails to set forth facts establishing that it is in the public interest to grant immunity; (5) certain of the questions as to which the application is made are improper even under a valid immunity statute.

With respect to the first ground, the witness recognizing that the power of Congress to enact immunity statutes has been upheld in and since Brown v. Walker,³ cites the dissenting opinions in that case and urges reconsideration in the light of the punitive sanctions and the social and economic consequences which follow self-exposure under a grant of immunity. The nub of his position is that the constitutional privilege against self-incrimination cannot be met by a statutory substitute no matter how broad the immunity. If Brown v. Walker is to be reconsidered and overruled, obviously that is to be done by the Supreme Court and not the District Court. In passing it may be noted that as recently as Smith v. United States similar objections were advanced before the Supreme Court and rejected.⁴ Moreover, immunity statutes have been before the Supreme Court in seven cases subsequent to Brown v. Walker.⁵ Its authority remains unimpaired and its principle is firmly imbedded in our constitutional law.

Immunity statutes have a long history as a means of forcing out evidence necessary to law enforcement which absent such legislation cannot be compelled where a witness asserts his privilege against self-incrimination.⁶ The constitutional elements necessary to the validity of an immunity statute are clear. While Congress has the power to enact legislation to compel a witness to answer incriminating questions upon a grant of immunity, the immunity tendered must provide a full and complete substitute for the privilege against self-incrimination.⁷ The constitutional equivalent of the privilege must be absolute immunity from prosecution for any criminal offense arising out of the compelled testimony.⁸ The witness urges that the present statute is invalid in failing to meet these tests. Thus a basic question is whether the protection afforded by the statute is coextensive with the constitutional privilege.

The witness' primary contention here is that the statute fails to give complete immunity because it leaves him subject to prosecution for state crime. He argues (1) that Congress is without the constitutional power to bar state prosecutions, and (2) assuming such power, the statute literally read only prohibits the use of testimony in a state prosecution but does not immunize the witness against prosecution in any state court so long as the testimony itself is not used.

The short answer to both contentions is Murdock v. United States.⁹ There the Supreme Court held that the privilege against self-incrimination could not be invoked before a federal tribunal where the incrimination feared was under state law. If the privilege does not extend to possible crimination under state law and the immunity need only be as broad as the privilege, then it is not an objection to the statute that it does not protect the witness from possible state prosecution.¹⁰ While the Murdock case, whatever objections may be raised to its rule,¹¹ is a sufficient answer to the witness' contention as long as its authority remains unimpaired, I am of the view that Congress has the constitutional power, certainly with respect to matters touching upon the national defense or security, to provide for a grant of immunity in exchange for compelled testimony which is broad enough to prohibit state prosecutions.

The power to provide for the common defense of the United States is, under the Constitution, expressly granted to the Congress.¹² A "necessary and proper"¹³ incident of that power is authority to enact legislation to secure evidence from those allegedly possessing knowledge of actions aimed at undermining the security of the government and to protect it against its enemies, domestic or foreign. By their very nature crimes of subversion, treason, espionage and the like, and conspiracies to commit such crimes, are aimed generally at the federal government representing the totality of the forty-eight states. While such criminal pursuits may also have their impact upon individual states, Congress, since they are matters of paramount national concern, may in passing laws to deal with them conclude the field. Conceding the right of a state, absent federal action, to protect itself against seditious and like activity,¹⁴ if Congress enacting legislation essential to the national defense or security, determines that immunity granted to a witness on the basis of his compelled testimony shall also extend to state prosecutions, it is within its power to do so. Such congressional legislation under the Constitution is then "the supreme Law of the Land" and state interests must yield to the paramount national concern.¹⁵

The immunity provided under the act and the intended corelative bar to state prosecution go no further than necessary to effectuate the legitimate congressional purpose. It cannot be said that the means are not "appropriate" and "plainly adapted to that end".¹⁶ The act does not cover inquiries into all crime. Its stated purpose is to secure evidence of federal crimes effecting the national defense or security by means of an effective grant of immunity. It is specifically restricted to offenses involving treason, sabotage, espionage, sedition, and conspiracy to commit any of the foregoing; it...