In re Kilgo

• Decision Date: 06 September 1973
• Docket Number: No. 73-2015.,73-2015.
• Citation: 484 F.2d 1215
• Parties: In re Robert Reginald KILGO.
• Court: U.S. Court of Appeals — Fourth Circuit

484 F.2d 1215 (1973)

In re Robert Reginald KILGO.

No. 73-2015.

United States Court of Appeals, Fourth Circuit.

Argued August 30, 1973.

Decided September 6, 1973.

Henry L. Belsky, Baltimore, Md., (London, Potler & Belsky, Baltimore, Md., on brief) for Robert Reginald Kilgo.

Charles L. Weintraub, Sp. Atty., U. S. Dept. of Justice (George Beall, U. S. Atty., D. Md., on brief) for the U. S.

Before BUTZNER, RUSSELL, and WIDENER, Circuit Judges.

BUTZNER, Circuit Judge:

In this appeal, Robert R. Kilgo challenges certain aspects of the procedure followed by the district court in adjudicating him to be in civil contempt under the General Immunity Act of 1970 18 U.S.C. §§ 6001-6005. After Kilgo refused to answer questions before a grand jury investigating gambling, the district court, on application of the government, granted him immunity and ordered him to testify. Because Kilgo persisted in his refusal, the court adjudged him to be in contempt and ordered his confinement pursuant to 28 U.S.C. § 1826(a).¹ On appeal, Kilgo asserts that the immunity order, on which the contempt citation rests, is invalid for the following reasons: the government failed to disclose why his testimony was necessary to its investigation of organized crime; neither he nor the court was apprised of the basis of the United States attorney's conclusion that his testimony was necessary to the public interest; he was entitled to be told the nature of the inquiry before the grand jury in more detail than by a mere reference to the statutes pertaining to gambling; he was entitled to counsel and to be advised of his right to counsel at the immunity hearing; and 18 U.S.C. § 6003 is unconstitutional. Finding no merit in any of these assignments of error, we affirm.

I

In 1970, Congress enacted a general immunity statute which has been codified as 18 U.S.C. §§ 6001-6005. Section 6003, dealing with court and grand jury proceedings, provides that a district court shall issue an order requiring a witness to testify before a grand jury upon application of the United States attorney made with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, when, in the judgment of the United States attorney, the testimony may be necessary to the public interest and the witness has refused, or is likely to refuse to testify on the basis of his privilege against self-incrimination.² Section 6002 grants the witness use immunity—that is, neither his testimony, nor any information directly or indirectly derived from his testimony, may be used against him in any criminal case other than in a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.³

In the application for an order granting Kilgo immunity and compelling him to testify before the grand jury, the United States attorney alleged that in his judgment the testimony of the witness was necessary to the public interest, that Kilgo—after having been advised of his privilege against self-incrimination—had refused to testify on the basis of this privilege, and that the application was made with the approval of the Assistant Attorney General in charge of the criminal division of the Department of Justice.⁴

A

Kilgo's contention that the government was obligated to show that his testimony was necessary to the government's investigation of organized crime warrants only brief comment. Although Sections 6001-6005 were enacted as a part of Title II of the Organized Crime Control Act of 1970,⁵ the provisions of the Act dealing with immunity are not limited to investigations of organized crime. Title II was enacted to provide a general immunity statute, and it replaced numerous disparate immunity laws scattered throughout the United States Code.⁶

Section 6003 refers to "any individual who has been . . . called to testify . . . at any proceeding before . . . a grand jury . . .." emphasis added There is no clause in the statute requiring the government to show that the grand jury's inquiry is related to organized crime or that the witness's testimony is necessary for an investigation of this limited scope. Nor is there any justification in the legislative history for restricting the statute. Indeed, the legislative history is to the contrary; the statute was intended to be available for the investigation of any crimes for which designated prosecuting authorities certified its utility.⁷ We hold, therefore, that the district court did not err by entering the immunity order without requiring the government to show that Kilgo's testimony was necessary to an investigation of organized crime.

B

In its immunity order, the district court found that in the judgment of the United States attorney Kilgo's testimony was necessary to the public interest. Kilgo claims that the court erred because the government offered no evidence pertaining to the public interest.

No case interpreting the public interest provision of the 1970 Act has been called to our attention. However, cases construing analogous requirements in earlier immunity statutes establish that the district court is not empowered to review the United States attorney's judgment that the testimony of the witness is necessary to the public interest. The leading case is Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), which construed the Immunity Act of 1954 18 U.S.C. § 3486⁸ dealing with grand jury inquiries involving national security. That Act also limited grants of immunity to witnesses whose testimony, in the judgment of the United States attorney, was necessary to the public interest. The Court, recognizing the potential constitutional question that would arise if the judiciary reviewed the merits of immunity, construed the statute to withhold from the district court "any discretion to deny the order on the ground that the public interest does not warrant it." 350 U.S. at 432, 76 S.Ct. at 503. It held that the function of the district court was limited to ascertaining whether the application complied with the statutory requirement—that is, had the United States attorney certified that in his judgment the testimony of the witness was in the public interest. Accord: In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631, 635 (1962). A similar interpretation has been given to the public interest provision of 18 U.S.C. § 2514 Omnibus Crime Control and Safe Streets Act of 1968.⁹ In re Shead, 302 F.Supp. 569 (N.D.Cal.1969), aff'd sub nom Carter v. United States, 417 F.2d 384 (9th Cir. 1969), cert. denied, 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970). Correspondingly, § 6005 of the 1970 Act precludes a court from reviewing the propriety of congressional authorization of immunity. In re Application of United States Senate Select Committee on Presidential Campaign Activities, Misc. No. 70-73 (D.D.C., June 12, 1973).

The drafters of the 1970 Act left no doubt that the construction given to the public interest provision in previous immunity acts was to be applied to § 6003,¹⁰ and the legislative history confirms the limited role of the court.¹¹ Because the Act does not authorize the district court to review the United States attorney's judgment that the testimony of the witness may be necessary to the public interest, no evidence pertaining to this judgment need be offered. We hold, therefore, that the court did not err in accepting without proof the government's allegation relating to the public interest.

C

The application for immunity alleges that Kilgo refused to answer questions concerning violations of 18 U.S.C. §§ 371, 1952, and 1955.¹² It did not in any other way identify the inquiry of the grand jury. At the immunity hearing the government offered no other proof or explanation of the scope of the grand jury's investigation. Kilgo complains that the bare statutory reference to the subject matter of the grand jury's investigation is insufficient to advise him of the type of activity the government is inquiring about and involves him in "a guessing game as to whether or not to answer questions."

Kilgo's contention fails to distinguish between use immunity, which is the basic concept of the 1970 Act, and transactional immunity, which was afforded by older statutes. Use immunity prohibits the witness's compelled testimony and its fruits from being used in any manner in connection with criminal prosecution of the witness. See Murphy v. Waterfront Commission of New York, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed. 2d 678 (1964). On the other hand, transactional immunity accords immunity to the witness from prosecution for the offense to which his compelled testimony relates. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

The 1970 Act differs from the older transactional immunity statutes because it does not create a defense to specific criminal charges. Instead, the Act provides a ground for suppressing the direct or indirect use of compelled evidence in any criminal prosecution save those mentioned in the statute, but prosecution may still go forward on legitimate independent evidence. Thus, § 6002 affords protection coextensive with the scope of the fifth amendment privilege against compulsory self-incrimination. After a witness has been granted use immunity under § 6002, both the witness and the prosecutor are left in virtually the same position regarding future prosecutions of the witness as if the witness had been permitted to stand upon his claim of the fifth amendment. Kastigar v. United States, 406 U.S. 441, 462, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

A number of cases dealing with transactional immunity have required the government to show in at least some detail the subject matter of the grand jury investigation. E.g., Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972); In re Vericker, 446 F.2d 244 (2d Cir. 1971); and In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631 (1962). In this respect, these...