Commonwealth v. Fattizzo
| Citation | 299 A.2d 22,223 Pa.Super. 378 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Alfred Mario FATTIZZO. |
| Decision Date | 11 December 1972 |
| Court | Pennsylvania Superior Court |
Arlen Specter, Dist. Atty., James D. Crawford Deputy Dist. Atty. for Law, Milton M. Stein, Asst. Dist Atty., Chief, Appeals Div., Martin H. Belsky, Philadelphia for appellant.
Vincent J. Ziccardi, Defender, Francis S. Wright, Chief, Appeals Div., Jonathan Miller, Philadelphia, for appellee.
Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING CERCONE and PACKEL, JJ.
The issue presented by this case is whether the immunity conferred on a federal grand jury witness under 18 U.S.C. § 2514 [1] protects him from further proceedings under a state gambling prosecution in which he had been indicted prior to his federal testimony, the witness having replied affirmatively in his federal testimony to a question as to whether he was self-employed in the numbers business at the time of his state arrest. We agree with the lower court that the statute protects him from further proceedings in the state prosecution.
On January 29, 1970, the defendant, Alfred Fattizzo, was arrested by Pennsylvania authorities as the result of alleged numbers activities. He was indicted on February 18, 1970, for being a common gambler and for setting up and maintaining an illegal lottery. Prior to trial on these charges, defendant appeared before a federal grand jury in Philadelphia investigating gambling and invoked his privilege against compulsory self-incrimination. Judge John B. HANNUM, of the United States District Court for the Eastern District of Pennsylvania, on June 22, 1970, issued an order compelling his testimony, pursuant to 18 U.S.C. § 2514; the language of the order, with regard to the witness' immunity from prosecution and use of his testimony, largely followed that of the statute. [2] It read: '(The witness) shall not, however, be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is asked and compelled to testify or produce evidence under this Order, nor shall his testimony so compelled be used as evidence in any criminal proceeding Federal or State, against him in any court except in a prosecution for perjury or contempt committed by him while giving testimony or producing evidence under compulsion of this Order.'
As a result of the order, defendant testified. He was questioned concerning his numbers activities and his relationship with and knowledge of various people, including one Pasquale Monzelli. On a number of occasions, the questions concerned defendant's criminal activity occurring a few months prior to his arrest on state charges. At one point, he was questioned directly about his activity at the time of his arrest: It is clear from an examination of previous questions and answers that defendant's statement that he was working for himself at the time of his arrest referred to his status in the numbers business; prior testimony elicited from him frequently concerned whether he was self-employed or working for another in numbers operations.
Following his testimony, on August 19, 1970, defendant moved for dismissal of the state indictments pending against him. On November 5, 1970, the motion was granted by Judge Emanuel W. Beloff of the court below. This appeal by the Commonwealth followed.
A resolution of the issue presented by this case requires a resolution of a number of sub-issues. In the order in which they will be discussed, they are: (1) What type of immunity did Congress intend to legislate under 18 U.S.C. § 2514? (2) Did Congress intend the immunity to be effective in state courts? (3) Should this Court's interpretation of the statute, in either of these respects, be affected by a recent case [3] in which the United States Supreme Court held a limited form of immunity to be constitutionally sufficient for the compulsion of testimony? (4) To what type of statements by a witness was the immunity intended to apply? (5) Did Congress intend the immunity to be effective in a case in which an indictment had been procured prior to the occurrence of immunity? And (6) does Congress have the constitutional power to foreclose a state criminal proceeding in order to obtain testimony concerning gambling, when a lesser degree of immunity would have been constitutionally sufficient to compel the testimony?
With regard to the type of immunity legislated under 18 U.S.C. § 2514, it is clear that both 'transactional' and 'use' immunity are contemplated--that is, both immunization against prosecution for an offense, or transaction, to which compelled testimony relates [4] and immunization against use of compelled testimony in criminal proceedings against the witness. [5] Federal immunity statutes incorporating the broad type of protection known as transactional immunity were passed in response to a declaration in Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892), that 'no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the constitution of the United States.' See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896). The expansive language of Counselman must serve as the measure of the type of immunity Congress intended in 18 U.S.C. § 2514.
As to whether immunity from prosecution was intended to apply in state criminal proceedings, an examination of legislative history and case law indicates that it was. The Senate Report on the Omnibus Crime Control and Safe Streets Act of 1968, [6] of which 18 U.S.C. § 2514 is a part, states that the immunity provision was [7] The two cases cited as representative of existing law, Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960), and Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), both held that identically worded immunity provisions [8] were designed to foreclose state prosecutions. Furthermore, the existence of such a design in 18 U.S.C. § 2514 would be inferred even if it had not been expressed. 'Where the legislature, in a later statute, uses the same language as used in a prior statute which has been construed by the courts, there is a presumption that the language thus repeated is to be interpreted in the same manner such language had been previously interpreted when the court passed on the earlier statute (citations omitted).' Commonwealth v. Sitkin's Junk Co., 412 Pa. 132, 137, 194 A.2d 199, 202 (1963). See also Reina v. United States, supra.
The assertion by the Commonwealth that an application of the statute's transactional immunity section to the states would render its use immunity section superfluous is not convincing. It rests upon the premise that any protection afforded by use immunity would be included within transactional immunity; since both immunities must have had a purpose, it is argued that use immunity was intended to apply to the states, transactional immunity to the United States. But the premise is faulty--transactional immunity does not provide every protection that use immunity does. [9] And the plain words of 18 U.S.C. § 2514 do not support the distinction for which the Commonwealth contends. See In re Ullman, 128 F.Supp. 617 (S.D.N.Y.), aff'd, 221 F.2d 760 (2d Cir. 1955), aff'd, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (). [10]
The question of whether the recent decision in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), should affect the foregoing conclusions regarding § 2514 is a matter of statutory construction. Kastigar held that a form of use immunity, which included a prohibition on the use of evidence derived from a witness' testimony, was sufficiently protective of one's privilege against self-incrimination to justify compelling his testimony. The declaration in Counselman v. Hitchcock, supra, indicating a constitutional requisite of transactional immunity was not followed.
However, it would not be wise for a court to reinterpret a statute each time a decision occurs which might have affected the legislature's enactment had it been foreseen. As the Supreme Court noted in interpreting a different immunity provision, 'a court decision subsequent to an act's passage does not usually alter its original meaning.' Adams v. Maryland, 347 U.S 179, 182, 74 S.Ct. 442, 445, 98 L.Ed. 608 (1954) (). Furthermore, any reinterpretation of § 2514 so as to make only its use immunity provision applicable to state prosecutions would raise serious doubts as to its constitutional validity, inasmuch as the provision contains no express prohibition on the use of evidence Derived from compelled testimony. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A...
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