United States v. Mahler

• Decision Date: 26 April 1983
• Docket Number: Civ. No. 82-1545.
• Citation: 567 F. Supp. 82
• Parties: UNITED STATES of America, Plaintiff, v. Russell W. MAHLER, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

567 F. Supp. 82

UNITED STATES of America, Plaintiff, v. Russell W. MAHLER, Defendant.

Civ. No. 82-1545.

United States District Court, M.D. Pennsylvania.

April 26, 1983.

Michael Steinberg, Environmental Defense Section, Washington, D.C., David C. Shipman, Asst. U.S. Atty., Harrisburg, Pa., for plaintiff.

Morey M. Myers, William W. Warren, Jr., Scranton, Pa., for defendant.

MEMORANDUM AND ORDER

CONABOY, District Judge.

This is a civil action instituted by the United States pursuant to section 311(f)(2) of the Federal Water Pollution Control Act, 33 U.S.C. § 1321(f)(2),¹ to recover the cost of removing oil discharged into the Susquehanna River. The matter is presently before the Court on the motion of the Plaintiff, United States of America, for an order granting the Defendant Russell Mahler immunity under 18 U.S.C. §§ 6002-6003, and requiring him to answer interrogatories and provide other information in this civil action. For the reasons set forth herein, the motion will be granted.

I

The facts relevant to the instant motion may fairly be summarized as follows. Subsequent to the filing of the Complaint in this case, the Plaintiff served upon the Defendant a set of twenty-five (25) interrogatories for answer pursuant to Fed.R.Civ.P. 33(a). The major substance of these inquiries concerned Mahler's knowledge of and relationship with the various corporations allegedly involved in the discharge of the oil.²

To all but one of these questions, the Defendant replied:

"Without waiving any other objection he may have to this question, the defendant objects to answering this interrogatory on the ground that to do so may violate his Fifth Amendment privilege against self-incrimination."

See Document # 17. Thereafter, on March 21, 1983, the Plaintiff filed a motion seeking an immunity order, pursuant to the provisions of 18 U.S.C. §§ 6002-6003, to compel the Defendant to provide discovery information and other testimony in this case. The Defendant Mahler opposes the motion on two grounds: (1) that the government has no authority to grant immunity in a proceeding for civil remedies only; and (2) that a grant of immunity would not be co-extensive with his Fifth Amendment right in that his present testimony may expose him to criminal prosecution for perjury based on past untruthful sworn statements. We will consider each of these objections in turn.

A

Title 18 U.S.C. § 6003 provides in relevant part:

(a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States ..., the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.³

(b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment —

(1) the testimony or other information from such individual may be necessary to the public interest; and

(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

The immunity statute was added as part of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 927, the major purpose of which was "to provide the criminal justice system with the necessary tools to ... strengthen the evidence gathering process and insure that the evidence will then be available and admissible at trial." Pillsbury Co. v. Conboy, ___ U.S. ___, 103 S.Ct. 608, 612, 74 L.Ed.2d 430 (1983), quoting from 116 Cong.Rec. 35,200 (1970) (statement of Rep. St. Germain). It superseded and repealed over fifty separate federal immunity statutes and was designed "to bring about uniformity in the operation of immunity grants within the federal system." United States v. Apfelbaum, 445 U.S. 115, 122, 100 S.Ct. 948, 952, 63 L.Ed.2d 250 (1980). See Kastigar v. United States, 406 U.S. 441, 447, 92 S.Ct. 1653, 1657, 32 L.Ed.2d 212 (1972). In opposing the grant of immunity here, the Defendant first argues that there is "no language in either the Organized Crime Control Act of 1970 or the legislative history of the Act which suggests that Congress intended or expected that the provisions of the Act be applied in situations ... which are civil proceedings and which are wholly distinct from and unrelated to organized crime prosecutions." Brief of Defendant (Doc. # 33) at 3.

In considering this issue of statutory construction, the Court is mindful that our analysis "must begin with the language of the statute itself", Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 187, 100 S.Ct. 2601, 2609, 65 L.Ed.2d 696 (1980), and "absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). See Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982); United States v. Apfelbaum, supra, 445 U.S. at 121, 100 S.Ct. at 952. As previously set forth, section 6003(a) empowers the district court to issue an immunity order against "any individual" who has invoked his privilege against self-incrimination "at any proceeding before or ancillary to a court of the United States." (emphasis added). This underscored phrase is defined as including:

"... the Supreme Court of the United States, a United States court of appeals, a United States district court established under chapter 5, title 28, United States Code, a United States bankruptcy court established under chapter 6, title 28, United States Code, the District of Columbia Court of Appeals, the Superior Court of the District of Columbia, the District Court of Guam, the District Court of the Virgin Islands, the United States Claims Court, the Tax Court of the United States, the Court of International Trade, and the Court of Military Appeals."

18 U.S.C. § 6001(4). This same terminology is utilized in § 6002(1). See footnote 3, supra. Therefore, assuming, as we must, "that the legislative purpose is expressed by the ordinary meaning of the words used", Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962), we can discern nothing in the wording of the pertinent provisions of the immunity statute which would support the Defendant's contention that it cannot be employed in civil proceedings. Moreover, as the Plaintiff points out, the Act expressly authorizes immunity grants in proceedings before several courts which have jurisdiction exclusively of civil matters, i.e., the Bankruptcy Court, the United States Claims Court, the Tax Court and the Court of International Trade. See 18 U.S.C. § 6001(4). In view of such authorization to these civil courts, there is no sound reason for believing that when Congress used the term "United States district court" in that same definitional section, it intended to restrict the use of the immunity statute to solely criminal proceedings arising therein. Additionally, the Defendant has referred to nothing in the reported legislative history of this statute, nor has our independent research revealed anything, which would permit such a limited construction of the scope of 18 U.S.C. §§ 6002-6003. See 1970 U.S. Code Congressional and Administrative News, pp. 4007-91.

Turning to a consideration of the decisional law on this issue, we note at the outset that the United States Supreme Court has yet to directly address the question. Pillsbury v. Conboy, supra, 103 S.Ct. at 616 n. 20.⁴ Those federal courts that have passed upon similar defense contentions, however, have uniformly approved, whether implicitly or explicitly, of the use of the immunity statute in civil proceedings. See Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 541-42 (7th Cir. 1977), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978); Patrick v. United States, 524 F.2d 1109, 1120-21 (7th Cir. 1975); United States v. Cappetto, 502 F.2d 1351, 1359 (7th Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975). In Cappetto, an action brought by the United States under the civil remedies provision of the federal racketeering statutes, the Seventh Circuit provided the following persuasive reasoning:

Since this was a civil proceeding, plaintiff was entitled to discovery as in any other civil case, and the court had the authority granted by the Federal Rules of Civil Procedure to enter appropriate discovery orders and to enforce those orders. Defendants have no more right to refuse to be sworn or to refuse to submit to questioning than any other party in a civil case. A defendant of course has the right under the Fifth Amendment to refuse to answer a specific question on the ground that the answer may tend to incriminate him. This right disappears, however, if use immunity is granted under 18 U.S.C. §§ 6002 and 6003, as it was to the defendant .... The immunity granted is coextensive with the privilege against self-incrimination, Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653 1665, 32 L.Ed.2d 212 (1972), and therefore may be invoked only against criminal proceedings. Accordingly, testimony given by a party in a civil case under a grant of immunity may be used against that party in that case, although it cannot be used in any criminal proceeding against him.

502 F.2d at 1359. We concur in this reasoning and therefore conclude that the first ground...