United States v. Henderson

• Decision Date: 19 August 1975
• Docket Number: Crim. A. No. 74-160.
• Parties: UNITED STATES of America, Plaintiff, v. Earl H. HENDERSON, Defendant.
• Court: U.S. District Court — District of Delaware

406 F. Supp. 417

UNITED STATES of America, Plaintiff, v. Earl H. HENDERSON, Defendant.

Crim. A. No. 74-160.

United States District Court, D. Delaware.

August 19, 1975.

COPYRIGHT MATERIAL OMITTED

W. Laird Stabler, Jr., U. S. Atty., Wilmington, Del., for plaintiff.

Arthur Inden of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendant.

OPINION

STAPLETON, District Judge:

This case presents questions of the scope of the protection afforded to an individual who is compelled, under a grant of immunity, to testify over his claim of the Fifth Amendment privilege against self-incrimination.

On November 12, 1974, Earl H. Henderson appeared, pursuant to subpoena, before a federal grand jury in this District. When asked certain questions, he refused to answer on the ground that his answers might tend to incriminate him. The government then applied to the Court for an order compelling Henderson to testify under the federal witness immunity statute, 18 U.S.C. § 6003.¹ The Court issued the order, as required by the statute.²In re Grand Jury Proceedings (Earl H. Henderson), C.A. 74-240 (D.Del., Order of Nov. 12, 1974). Henderson then testified before the grand jury — under threat of being held in contempt of court if he refused to do so — on four separate occasions: November 12, 13, 20 and 26, 1974. His testimony filled nearly 800 pages of transcript.

At the same time as it applied for an order to compel Henderson's testimony, the government submitted to the Court an envelope containing copies of certain documents which were said to contain evidence of violations of federal law by Henderson. The government requested the Court to receive and seal this envelope so as to preserve a record of its possession of this evidence prior to Henderson's compelled testimony.³ The Court ordered the envelope to be sealed and filed. In re Grand Jury Proceedings (Earl H. Henderson), supra.

On December 17, 1974, Henderson was indicted by a different grand jury on three counts of racketeering offenses, 18 U.S.C. §§ 1951, 1952(a)(3), all involving transactions about which he had been compelled to testify.

Section 6002 of the immunity statute provides that a witness who is presented with an order issued under Section 6003 must testify, but 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, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

Henderson has moved to dismiss the indictment against him on the grounds that it was obtained in violation of this section, and of the Constitution, through the use of his compelled testimony. The motion raises questions of law and of fact.

I.

The initial issue presented by Henderson's motion is whether, assuming that the indictment against him was obtained with the use of his compelled testimony, it should be dismissed. He argues that this is necessary to accomplish the complete prohibition on use which he contends the statute, and the Constitution, require. He notes that dismissal of such an indictment has been ordered in United States v. McDaniel, 352 F.Supp. 585 (D.N.D.1972), aff'd, 482 F.2d 305, 312 (8th Cir. 1973), and in United States v. Dornau, 359 F.Supp. 684, 687 (S.D.N.Y.1973), reversed on other grounds (but see n. 15, at 481), 491 F.2d 473 (2nd Cir.), cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974).

The government's response is that the question has been decided to the contrary by United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), which stated:

An indictment valid on its face is not subject to challenge . . . on the basis of information obtained in violation of a defendant's Fifth Amendment privilege against self-incrimination, Lawn v. United States, 355 U.S. 339 78 S.Ct. 311, 2 L.Ed.2d 321, (1958).

414 U.S., at 345, 94 S.Ct., at 618. Henderson correctly points out that this statement of the Calandra court is merely dictum.⁴ However, the Lawn case, upon which the statement relies, involved a situation much like the one here presented. The significant facts of Lawn are not complex. Petitioners showed that they had been compelled to testify before a grand jury in violation of their privilege, and that an indictment later returned by another grand jury in the same district had charged them with the crime about which they had testified. The court held that they were not entitled to a pre-trial hearing to show that the indictment was secured on the basis of evidence obtained in violation of the Fifth Amendment. Implicit in that holding was a determination that even if such evidence was put before the indicting grand jury, dismissal of the indictment would not be required. A number of commentators have, with some justification, tried to read this implication out of Lawn.⁵ What counts, however, is that the Supreme Court, both in United States v. Blue, 384 U.S. 251, 255 n. 3, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966), and in Calandra, has read Lawn as standing for that proposition.

Unless Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the case which upheld the constitutionality of the immunity statute used to compel Henderson's testimony here, requires a different result, I think Lawn is controlling. Kastigar, as the defendant points out, held that the immunity statute there at issue and here employed was constitutional because, and only because, the protection it afforded to a witness who asserted his Fifth Amendment privilege was "coextensive" with the protection afforded by the privilege itself. 406 U.S., at 449, 459, 92 S.Ct. 1653. Henderson argues that indicting a person based on testimony compelled from him certainly does not leave him in "substantially the same position", 406 U.S., at 462, 92 S.Ct. 1653, as he would have been in had he been permitted to remain silent. The quoted observation of the Kastigar court must be read in context, however. In order to determine whether the protection granted by immunity is "coextensive" with the protection afforded by the privilege one must examine the scope of the protection of the privilege. The Supreme Court has repeatedly recognized that the "sole concern of the privilege against self-incrimination is, as its name indicates, with the danger to a witness forced to give testimony leading to the inflicting of `penalties affixed to the criminal acts . . ..' Boyd v. United States, 116 U.S. 616, 634 6 S.Ct. 524, 534, 29 L.Ed. 746 1886." Ullman v. United States, 350 U.S. 422, 438-9, 76 S.Ct. 497, 507, 100 L.Ed. 511 (1956).⁶ This recognition has played a significant role in a long line of Supreme Court cases relating to immunity, of which Kastigar is only the most recent. Kastigar expressly reaffirmed Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), and Ullman v. United States, supra, and in both of those cases the court rejected the argument that an immunity statute, in order to pass constitutional muster, must grant protection from the consequences of compelled testimony beyond protection against conviction for crime. In Brown, for example, the petitioner attacked the constitutionality of a transactional immunity statute partly on the ground "that the constitutional safeguard goes towards relieving the witness from the danger of an accusation being made against him while the statutory immunity forces him to supply evidence leading to an accusation and provides only a means for defense and; that the statute puts a heavy burden on petitioner, if he is indicted, to prove that he had testified concerning the matter for which he was indicted . . .." Ullman v. United States, supra, 350 U.S. at 437, n. 13, 76 S.Ct., at 506 (describing the arguments rejected in Brown). The Brown court answered these arguments as follows:

The same answer i. e. that the danger relied upon "was never the object of the Fifth Amendment to obviate" may be made to the suggestion that the witness is imperfectly protected by reason of the fact that he may still be prosecuted and put to the annoyance and expense of pleading his immunity by way of confession and avoidance. This is a detriment which the law does not recognize. There is a possibility that any citizen, however innocent, may be subjected to a civil or criminal prosecution, and put to the expense of defending himself; but, unless such prosecution be malicious, he is remediless, except so far as a recovery of costs may partially indemnify him. . . .

161 U.S., at 608, 16 S.Ct., at 651.

Given this context, I cannot conclude that Kastigar requires a result different from that dictated by Lawn as construed in Calandra and Blue. Defendant's present motion could be denied as a matter of law solely on the authority of Lawn. Recognizing, however, that other authorities suggest the contrary conclusion,⁷ I consider it appropriate to pass upon the government's alternative factual contention that none of the evidence presented to the indicting grand jury was tainted by Henderson's compelled testimony.

II.

In Kastigar v. United States, supra, the Supreme Court stated the method by which a witness would be protected against the use of his compelled testimony:

Once a defendant demonstrates that he has testified, under a . . . grant of immunity, to matters related to the . . . prosecution, the . . . authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. Quoting from Murphy v. Waterfront Comm'n., 378 U.S. 52, at 79 n. 18, 84 S.Ct. 1594, at 1609, 12 L.Ed.2d 678 (1964).

406 U.S., at 460, 92 S.Ct., at 1665. Out of an abundance of caution, an evidentiary hearing has been held in this case to allow the government to attempt to demonstrate that the evidence presented to the indicting grand jury was derived solely...