In re Baldinger

• Decision Date: 14 March 1973
• Docket Number: Crim. Misc. No. 3016 (WF).
• Citation: 356 F. Supp. 153
• Court: U.S. District Court — Central District of California
• Parties: In re Grand Jury Witness Sara BALDINGER.

356 F. Supp. 153

In re Grand Jury Witness Sara BALDINGER.

Crim. Misc. No. 3016 (WF).

United States District Court, C. D. California.

March 14, 1973.

Stark H. King, Sp. Atty., U. S. Dept. of Justice, Washington, D. C., Wm. D. Keller, U. S. Atty., Los Angeles, Cal., for petitioner.

Michael J. Lightfoot, Deputy Public Defender, Barrett S. Litt, Los Angeles, Cal., H. Peter Young, Venice, Cal., for respondent.

OPINION

FERGUSON, District Judge.

In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court held that the use immunity statute, 18 U.S.C. §§ 6001-6005, on its face does not violate the Fifth Amendment. This action presents the issue of whether, under the factual context of this case, the granting of an immunity order under the statute would violate the Fifth Amendment rights of a witness called to testify before a grand jury. The court finds that it does.

The relevant facts presented are as follows:

1. On January 5, 1971, a fire bombing was committed at Claremont Men's College.

2. The Federal Bureau of Investigation assumed jurisdiction and began an investigation.

3. On at least five occasions, Sara Baldinger made statements to special agents of the FBI concerning the fire.

4. Based upon that information provided to the special agents, a federal grand jury was convened to investigate the matter.

5. Miss Baldinger was served with a subpoena to appear before the grand jury.

6. When she appeared, she asserted her Fifth Amendment privilege against self-incrimination.

7. The government applied to the court to grant her transactional immunity under 18 U.S.C. § 2514.

8. The government then withdrew that application and petitioned for a grant of use immunity pursuant to 18 U.S.C. § 6002 (see Appendix).

Miss Baldinger has raised a number of issues relating to the subpoena, the composition of the grand jury, and electronic surveillance. The court does not reach those issues in light of its determination regarding the constitutionality of the use immunity order requested by the government.

The use immunity statute was enacted as part of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 201, 84 Stat. 922, 926. 18 U.S.C. § 6002 provides:

"§ 6002. Immunity generally

"Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—

"(1) a court or grand jury of the United States,

"(2) an agency of the United States, or

"(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,

and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."

The Act repealed or made a conforming amendment to over 50 federal immunity statutes, although retaining in effect for four years one of them, 18 U.S.C. § 2514. Those statutes provided transactional, as opposed to use, immunity in an attempt to conform to the Supreme Court's statement in Counselman v. Hitchcock, 142 U.S. 547, 585-586, 12 S. Ct. 195, 206, 35 L.Ed. 1110 (1892):

"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 . . . . In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates. . . ."

Illustrative of the statutes enacted pursuant to Counselman, and conformed when § 6002 was enacted, is the Compulsory Testimony Act of 1893, which provided that with respect to testimony before the Interstate Commerce Commission,

"no person shall be excused from attending and testifying . . . on the ground or for the reason that the testimony . . . required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify . . . . Provided, that no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying." Act of Feb. 11, 1893, ch. 83, 27 Stat. 443.

The language of § 6002 was designed to conform to the Supreme Court's holding in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L. Ed.2d 678 (1964). In that case, the petitioners had been granted immunity from prosecution under state laws, but refused to testify on the ground that their testimony might incriminate them under federal laws, to which the grant of immunity did not extend. Relying upon the principle that "a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock supra . . .," 378 U.S. at 54, 84 S.Ct. at 1596, the Court held the constitutional rule to be that

"a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. . . ." 378 U.S. at 79, 84 S.Ct. at 1609.

Section 6002 was "designed to reflect the use-restriction immunity concept of Murphy . . . rather than the transaction immunity concept of Counselman . . . ." H.R. Rep. No. 91-1549, 91st Cong., 2d Sess., in 1970 U.S. Code Cong. & Admin. News 4007, 4018; S. Rep. No. 91-617, 91st Cong., 1st Sess. 145 (1969). Among the congressional motivations in enacting the use immunity statute was to preclude a "gratuity to crime," Shapiro v. United States, 335 U.S. 1, 15, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), or an "immunity bath," United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943), by drafting a statute that would provide narrower immunity against prosecution than that afforded by existing statutes but would still satisfy constitutional requirements.

In Kastigar the Court held that on its face the use immunity provided by 18 U.S.C. § 6002 is coextensive with the scope of the Fifth Amendment privilege and is sufficient to compel testimony over a claim of the privilege:

"While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. . . . The sole concern of the privilege is to afford protection against being `forced to give testimony leading to the infliction of "penalties affixed to . . . criminal acts.'" Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.

* * * * * *

"We conclude that the immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it. . . ." 406 U.S. at 453, 462, 92 S.Ct. at 1661, 1666. (Footnote omitted.)

Kastigar does not foreclose the inquiry presented in this case: may the granting of an immunity order pursuant to the use immunity statute fail to provide immunity coextensive with the scope of the Fifth Amendment privilege in a particular instance? Kastigar was directed solely to the issue of the statute on its face and did not reach the issue presented here. This case is squarely within the admonition contained in Seagram & Sons v. Hostetter, 384 U.S. 35, 52, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966), and reaffirmed in California v. LaRue, 409 U.S. 109, 119 n. 5, 93 S.Ct. 390, 397 n. 5, 34 L.Ed.2d 342 (1972):

"Although it is possible that specific future applications of the statute may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that, so considered, the legislation is constitutionally valid."

The operative clause in § 6002 which is the cornerstone of the litigation here, paralleled by similar language in the proposed immunity order which the government has submitted to the court, is that which states that when immunity is conferred, no testimony or information may be used against the witness in any criminal case, "except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." (Emphasis added.) Miss Baldinger contends that if she is required to testify pursuant to the proposed order, her Fifth Amendment rights will be violated, because her testimony before the grand jury could be used to incriminate her in a prosecution for making false statements to the FBI agents under 18 U.S.C. § 1001. The government, by contrast, contends that the phrase "giving a false statement" was intended by Congress to mean only "false statements made during the course of one's testifying before a grand jury," and that it would not apply to Miss Baldinger's prior statements to FBI agents.

In determining whether the proposed immunity order in this case violates the...