U.S. v. Quatermain, Drax, 79-1253

• Citation: 613 F.2d 38
• Decision Date: 14 January 1980
• Docket Number: No. 79-1253,79-1253
• Parties: UNITED STATES of America, Appellant, v. QUATERMAIN, DRAX.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 38

613 F.2d 38

UNITED STATES of America, Appellant, v. QUATERMAIN, DRAX.

No. 79-1253.

United States Court of Appeals Third Circuit.

Argued Nov. 15, 1979.

Decided Jan. 14, 1980.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief Appellate Div., James J. Rohn, Asst. U. S. Atty. (Argued), Philadelphia, Pa., Kathleen A. Felton, Crim. Div., Dept. of Justice, Washington, D. C., for appellant.

Douglas Riblet (argued), Alan Turner, Asst. Defender, Defender Association of Philadelphia, Federal Court Div., Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, ALDISERT, Circuit Judge, and TEITELBAUM, District Judge. ^*

OPINION OF THE COURT

SEITZ, Chief Judge.

The government has filed a timely appeal from a pre-trial order of the district court excluding the testimony of a government witness and any evidence derived from that witness. Our jurisdiction is based on 18 U.S.C. § 3731 (1976).

I.

In 1977, appellee Drax Quatermain agreed to assist the government in an investigation concerning the illegal manufacture of methamphetamine. Instead of receiving formal witness immunity under 18 U.S.C. § 6002 (1976), Quatermain negotiated an informal immunity agreement with government lawyers that was put in written form in a letter dated June 7, 1977. Under this arrangement, Quatermain agreed to testify in exchange for:

immunity from prosecution for your participation and involvement with Zelman A. Fairorth and others relating to the manufacture of methamphetamine.

Fairorth subsequently was convicted for illegally manufacturing methamphetamine and was sentenced to a four-year prison term.

While on bail pending appeal, Fairorth became an informant against Quatermain in connection with a government investigation of Quatermain's alleged illegal manufacture of a gun silencer. This illegal conduct allegedly occurred in July and August of 1978, thirteen or fourteen months after Quatermain entered into the immunity agreement relating to the methamphetamine investigation. The government concedes that Fairorth's cooperation was motivated, at least in part, by Quatermain's prior testimony against him. Fairorth bought, with government funds, the materials needed to make a silencer and delivered them to Quatermain. Based on evidence obtained from Fairorth, Quatermain was indicted for possession of a firearm by a person previously convicted of a felony and for four other offenses relating to the manufacture, possession, and transfer of the silencer.

On November 22, 1978, Quatermain filed a motion to dismiss the indictment, alleging that it was based almost entirely on evidence obtained from Fairorth and that such evidence was derived from Quatermain's prior testimony against Fairorth in violation of the immunity agreement. Because the district court could not determine from the record before it what evidence the grand jury had relied on in returning the indictment, it treated the motion to dismiss as a motion to suppress Fairorth's testimony and any evidence derived from that testimony. It held that Fairorth's testimony was derived from Quatermain's prior cooperation with the government and ordered the testimony and all evidence derived from it excluded. The government subsequently filed the present appeal.

II.

Much of the controversy before the district court centered on the meaning of the immunity agreement between Quatermain and the government that granted Quatermain "immunity from prosecution" for his involvement with Fairorth "relating to the manufacture of methamphetamine." Witness immunity generally is characterized as either transactional immunity or use and derivative use immunity. Transactional immunity "accords full immunity from prosecution for the offense to which the compelled testimony relates." Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972). Use and derivative use immunity prohibits the use of compelled testimony or any evidence derived from that testimony against the witness in a criminal prosecution. See id. at 452-53, 92 S.Ct. 1653. Under this latter type of immunity, the witness still may be prosecuted for crimes about which he testifies if the government proves that it has other evidence that is derived from a source wholly independent of the compelled testimony.

Quatermain argued in the district court that his immunity agreement granted use and derivative use immunity. The government's position is more difficult to ascertain. It characterized the immunity as both transactional and use immunity, but asserted that whatever title was used, the immunity was limited to immunity from prosecution for Quatermain's participation in the manufacture of methamphetamine.

The district court found that the immunity agreement was ambiguous on its face and therefore considered the context surrounding the agreement to interpret its meaning. The court relied on several factors in making its decision. First, it found no evidence that Quatermain had been informed of the scope of his fifth amendment privilege against self-incrimination or that he had knowingly and intelligently waived it. Second, it noted that Quatermain was not represented by counsel when he negotiated the immunity agreement with government lawyers. Third, the agreement gave Quatermain "immunity from prosecution" without specifically excluding use and derivative use immunity. Finally, it relied on the fact that the government had referred to the immunity as use immunity in its answer to the motion to dismiss and had refused to withdraw this characterization when questioned in open court.

Based on these considerations, the district court found that Quatermain agreed to testify in exchange for the minimum immunity required by the Constitution to compel a witness to testify. Relying on the Supreme Court's holding in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), that use and derivative use immunity was constitutionally sufficient to compel testimony over a claim of the privilege against self-incrimination, the district court concluded that Quatermain had been granted use and derivative use immunity.

On this appeal, the government argues that Quatermain's testimony against Fairorth was not compelled because Quatermain volunteered to help the government in its methamphetamine investigation. Therefore, it contends that use and derivative use immunity is not required in this case by the fifth amendment, which prohibits only the use of compelled testimony, See Fisher v United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and that the district court erred in finding the immunity agreement granted the constitutional minimum. It argues that the immunity conferred in this case was narrower, limited to immunity from prosecution for participation in the methamphetamine scheme.

In view of our conclusions, however, we deem it unnecessary to decide whether, under the procedure used by the government here, Quatermain's testimony was in any way compelled or whether he knowingly and intelligently waived his privilege against self-incrimination by agreeing to testify in exchange for immunity that was not commensurate with his fifth amendment privilege. Instead, we will assume, without deciding, that the district court correctly found that the informal agreement conferred the minimum immunity required by the Constitution to compel a witness's testimony after the witness has claimed the privilege. Therefore, we now must consider whether it follows from this assumption that Fairorth's testimony and evidence derived from it must be excluded in this case.

III.

After holding that the immunity agreement conferred use and derivative use immunity on Quatermain, the district court concluded that Fairorth's testimony against Quatermain was a derivative use of Quatermain's immunized testimony because it was motivated, at least in part, by Quatermain's previous testimony that had resulted in Fairorth's conviction. See United States v. Kurzer, 534 F.2d 511 (2d Cir. 1976). Therefore, it ordered the exclusion of Fairorth's testimony.

The government does not contest the district court's finding that Fairorth's testimony was motivated by Quatermain's prior cooperation with the government in its prosecution of him. However, it contends that the district court improperly extended the scope of the immunity granted in this case. It argues that the scope of Quatermain's fifth amendment privilege against self-incrimination does not extend to crimes that he might commit in the future and that are unrelated to his prior immunized testimony. Therefore, it asserts that the immunity given Quatermain, which was granted to remove the danger of self-incrimination, did not require exclusion of Fairorth's testimony relating to the manufacture of the silencer.

In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court held that to compel testimony over a claim of the privilege against self-incrimination, "a grant of immunity must afford protection commensurate with that afforded by the privilege, (but) it need not be broader." Id. at 453, 92 S.Ct. at 1661. The Court upheld the constitutionality of the federal immunity statute, See 18 U.S.C. § 6002 (1976), which provides for use and derivative use immunity, because it found that "such immunity . . . is coextensive with the scope of the privilege against self-incrimination." 406 U.S. at 453, 92 S.Ct. at 1661.

We are not presented in this case with the question whether a grant of use and derivative use immunity can afford a witness protection against self-incrimination that is broader than the protection provided by the constitutional privilege because here the district court construed the parties' agreement to confer the minimum immunity required by the Constitution. Under this construction, the purpose of the grant of immunity was to afford protection against self-incrimination to the same...