Pillsbury Company v. Conboy, 81-825

• Court: United States Supreme Court
• Writing for the Court: POWELL
• Citation: 103 S.Ct. 608,74 L.Ed.2d 430,459 U.S. 248
• Parties: The PILLSBURY COMPANY, et al., Petitioners v. John CONBOY
• Docket Number: No. 81-825,81-825
• Decision Date: 11 January 1983

459 U.S. 248 103 S.Ct. 608 74 L.Ed.2d 430 The PILLSBURY COMPANY, et al., Petitioners

v.

John CONBOY.

No. 81-825. Argued Oct. 6, 1982. Decided Jan. 11, 1983. Syllabus

Title 18 U.S.C. § 6002 provides that "no testimony or other information compelled under the order [of a federal court] (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case." When respondent appeared before a grand jury investigating price-fixing activities in the corrugated container industry, he was granted use immunity pursuant to § 6002 for his testimony. Subsequently, in civil antitrust actions brought in Federal District Court by petitioner purchasers of corrugated containers, respondent appeared, pursuant to a subpoena, for a deposition. At the deposition, questions were read from the transcript of his immunized grand jury testimony and rephrased to include the transcript answer, and then respondent was asked if he had "so testified" before the grand jury. He refused to answer each question, asserting his Fifth Amendment privilege against self-incrimination. Granting petitioners' motion to compel respondent to answer, the District Court held him in contempt when he continued to claim his privilege. The Court of Appeals reversed, holding that respondent was entitled to assert his Fifth Amendment privilege, since his deposition testimony was not protected under § 6002 but could be used against him in a subsequent criminal action.

Held: A deponent's civil deposition testimony, such as that in question in this case, repeating verbatim or closely tracking his prior immunized testimony, is not, without duly authorized assurance of immunity at the time, immunized testimony within the meaning of § 6002, and therefore may not be compelled over a valid assertion of his Fifth Amendment privilege. Pp. 252-264.

(a) To construe § 6002, as petitioners urge, so as to hold that the grant of immunity compelled respondent to give testimony at the civil deposition that repeats verbatim or closely tracks his prior testimony sweeps further than Congress intended and could hinder the Government's enforcement of its criminal laws by turning use immunity into a form of transactional immunity for subjects examined in the immunized proceeding. Use immunity is intended to immunize and exclude from a subsequent criminal trial only that information to which the Government expressly has surrendered future use. The purpose of § 6002 is to limit the scope of immunity to a constitutionally required level, as well as to limit the use of immunity to those cases in which the Government determines that gaining the witness' testimony outweighs the loss of the opportunity for criminal prosecution of that witness. Pp. 255-261.

(b) Petitioners' proposed construction of § 6002 also could put the deponent to some risk unless he receives an assurance of immunity or exclusion that the courts cannot properly give. Silence, on the other hand, preserves the deponent's rights and the Government's interests, as well as the judicial resources that otherwise would be required to make the many difficult judgments that petitioners' interpretation of § 6002 would require. Pp. 261-263.

661 F.2d 1145 (7th Cir.1981), affirmed.

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Francis J. McConnell, Chicago, Ill., for petitioners.

Michael W. Coffield, Chicago, Ill., for respondent.

Justice POWELL delivered the opinion of the Court.

Pursuant to the federal use immunity provisions, 18 U.S.C. §§ 6001-6005 (1976), a United States Attorney may request an order from a federal court compelling a witness to testify even though he has asserted his privilege against self-incrimination. Section 6002 provides, however, that "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. . . ." The issue presented in this case is whether a deponent's civil deposition testimony, repeating

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verbatim or closely tracking his prior immunized testimony, is immunized "testimony" that can be compelled over the valid assertion of his Fifth Amendment privilege.

I

Respondent John Conboy is a former executive of a defendant in the In re Corrugated Container Antitrust Litigation, M.D.L. 310 (S.D.Tex.). In January 1978, United States Department of Justice attorneys interviewed Conboy following a promise of use immunity. Conboy subsequently appeared before a grand jury investigating price-fixing activities and, pursuant to 18 U.S.C. § 6002, was granted formal use immunity for his testimony.

Following the criminal indictment of several companies, numerous civil antitrust actions were filed in various United States district courts. Those actions were consolidated for discovery in the District Court for the Southern District of Texas. Petitioners here are purchasers of corrugated containers who elected to opt out of the class-action proceedings and pursue their own causes of action against manufacturers. The District Court ordered that portions of the immunized government interview and grand-jury testimony of certain witnesses, including that of Conboy, be made available to lawyers for the class and opt-outs.¹

Pursuant to a subpoena issued by the District Court for the Northern District of Illinois, Conboy appeared in Chicago for a deposition at which he, his counsel, and petitioners' counsel had copies of his immunized testimony. The transcripts were marked as deposition exhibits so that all could follow the intended examination. The questioning fell into the following pattern: a question was read from the transcript; it then was rephrased to include the transcript answer (i.e.,

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"Is it not the fact that. . . ."); finally, Conboy was asked if he had "so testified" in his immunized interview and grand-jury examination.² Conboy refused to answer each question, asserting his Fifth Amendment privilege against self-incrimination.

The District Court granted petitioners' motion to compel Conboy to answer the questions.³ When Conboy continued to claim his privilege, the District Court held him in contempt, but stayed its order pending appeal. A panel of the Court of Appeals for the Seventh Circuit affirmed the contempt order, holding that, "[b]ecause the questions asked in this deposition were taken verbatim from or closely tracked the transcript of Conboy's grand jury testimony, we believe that his answers at the deposition would be 'derived from' the prior immunized [testimony] and therefore unavailable for use in any subsequent criminal prosecution." In re Corrugated Container Antitrust Litigation, Appeal of John Conboy, 655 F.2d 748, 751 (CA7), rev'd en banc, 661 F.2d 1145 (1981).

On rehearing en banc, the Court of Appeals reversed the District Court. It first determined that Conboy's alleged fear of prosecution was more than "fanciful," 661 F.2d, at 1152, and that Conboy therefore was entitled to assert his Fifth Amendment privilege unless his deposition

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testimony could not be used against him in a subsequent criminal action, see id., at 1153.⁴ The court then held that under § 6002, absent a separate and independent grant of immunity,⁵ a deponent's civil deposition testimony that repeats verbatim or closely tracks his prior immunized testimony is not protected. While acknowledging that verbatim questions "of course [would be] derived" from the immunized testimony, the court reasoned that the answers to such questions "are derived from the deponent's current, independent memory of events" and thus "necessarily create a new source of evidence" that could be used in a subsequent criminal prosecution against Conboy. Id., at 1155 (emphasis in original).

We granted certiorari to resolve the conflict in the Courts of Appeals,⁶ and now affirm.

II

It is settled that government must have the power to compel testimony "to secure information necessary for effective law enforcement." Murphy v. Waterfront Commission, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964).⁷ For many years, however, a person who was compelled to testify under a grant of governmental

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immunity could not be prosecuted for any conduct about which he had testified. See New Jersey v. Portash, 440 U.S. 450, 457, 99 S.Ct. 1292, 1296, 59 L.Ed.2d 501 (1979). Prosecutors therefore were reluctant to grant such "transactional" immunity to potential targets of criminal investigations. See S.Rep. No. 91-617, p. 53 (1969).

The "major purpose" of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 927, of which § 6002 was a key provision, was "to provide the criminal justice system with the necessary legal tools to . . . strengthe[n] the evidence gathering process and insur[e] that the evidence will then be available and admissible at trial." 116 Cong.Rec. 35,200 (1970) (statement of Rep. St. Germain). Congress sought to make the grant of immunity more useful for law enforcement officers through two specific changes. First, Congress made the grant of immunity less expansive ⁸ by repealing the authority for transactional immunity and providing for the less comprehensive use immunity authorized in § 6002.⁹ Second, Congress gave certain officials in

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the Department of Justice ¹⁰ exclusive authority to grant immunities.¹¹

The Court upheld the constitutionality of the use immunity statute in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The power to compel testimony is limited by the Fifth Amendment, and we held that any grant of immunity must be co-extensive with the privilege. We were satisfied, how-

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ever, that § 6002 provided this measure of protection and thus "removed the dangers against which the privilege protects." Id., at 449, 92 S.Ct., at 1659. In rejecting the argument that use and derivative-use immunity...