United States v. Lee Cropper,defendant-Appellant

454 F.2d 215

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 12, 1971
• Docket: 71-2703
• Status: Published

Opinions

LEWIS R. MORGAN, Circuit Judge:

This appeal from a contempt citation challenges the constitutionality of the recently revised federal immunity statute 18 U.S.C. § 6001 et seq., passed as part of the Organized Crime Control Act of 1970. Appellant Lee Cropper, a Texas resident, was subpoenaed by the United States to appeal before a federal Grand Jury in Atlanta, Georgia in connection with an investigation of possible criminal income tax violations on the part of Michael Thevis and his wife, Joan Thevis. Cropper appeared before the grand jury and after having been sworn, stated his name and residence, but refused to answer further questions invoking the Fifth Amendment privilege against self-incrimination.

Shortly thereafter, the United States Attorney, along with Cropper and his counsel, appeared before the district judge. By letter from the Assistant Attorney General of the United States, the government requested a grant of immunity under 18 U.S.C. § 6001. After a hearing, the district judge granted immunity to Cropper and ordered that he return to the Grand Jury and testify. Upon his return to the Grand Jury, Cropper once again refused to testify and invoked his privilege against self-incrimination whereupon the district judge sentenced him to confinement for the duration of the term of the Grand Jury.

Cropper argues on appeal that the Fifth Amendment precludes the federal government from requiring him to testify before a federal Grand Jury under an immunity statute which bars only the use of the compelled testimony (or its fruits) against him but does not bar his future prosecution regarding transactions about which he may testify. Cropper contends that he cannot be required to testify unless the statutory grant of immunity is coextensive with the privilege against self-incrimination. He argues that a statute granting mere “use” immunity is constitutionally deficient and that only a grant of “transactional” immunity would accord him his full Fifth Amendment rights.¹

The statute involved in this case concededly grants only use immunity. Title 18 U.S.C. § 6001 et seq. provides that a witness who invokes his Fifth Amendment privilege may not refuse to testify on that basis if the person presiding over the proceeding communicates to the witness an order granting him immunity in accordance with the statute. The immunity provided by the statute is as follows:

* 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.²

By the terms of the statute, the government is barred only from using the witness’ testimony or the fruits of that testimony against him in a future criminal prosecution. If independent evidence of guilt is adduced, the witness can be convicted of a crime about which he testified under the grant of immunity. In our view the failure of this statute to grant “absolute immunity against future prosecution for the offense to which the question relates” makes it a constitutionally impermissible basis for compelling a witness to testify over a claim of privilege under the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).

Four recent federal cases have considered the validity of immunity statutes which grant only use immunity. The Seventh Circuit,³ the Third Circuit,⁴ and the District Court for the Southern District of New York⁵ **have all recently held that use immunity statutes are an inadequate basis for compelling a witness to testify over a claim of privilege. In contrast, the Ninth Circuit has upheld the statute here in question.⁶ The validity of such immunity statutes is also currently pending before the Supreme Court and is likely to be authoritatively adjudicated this term.⁷

This Court is precluded by time from exhaustively discussing the issues presented by this appeal.⁸ The erudite opinions of the Seventh and Third Circuits and of the District Court for the Southern District of New York fully state our own views. After a review of the authorities, we can only conclude that Counselman v. Hitchcock, supra, is still the binding, authoritative standard by which the adequacy of immunity statutes must be measured. We find nothing in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), which erodes the vitality of Counselman on the precise issue here in question of the constitutional restrictions upon the interrogating jurisdiction when seeking to compel testimony under a grant of immunity.

The statute in question grants the Appellant a diluted immunity which is far less than that mandated by the Constitution. Accordingly, it is an inadequate basis for compelling him to testify. The order of the district court holding Appellant Lee Cropper in contempt of court is reversed.

Reversed.

1 . The phrase “use immunity” is shorthand used to describe a statute under which the grant of immunity to the witness guarantees only that his testimony (or other information derived from that testimony) will not be used against him in any future criminal prosecution. Use immunity statutes do not, however, prohibit future cx-iminal prosecutions. If independent evidence of guilt is found by the government, the witness can be tried and convicted of the crime about which he was questioned under the grant of immunity. Transactional immunity statutes, on the other hand, grant an absolute immunity from any future prosecution for cx'imes arising fronx any transaction about which the witness is questioned and testifies.

2 . 18 U.S.C. § 6002.

3 . In re Korman, 7 Cir., 1971, 449 F.2d 32.

4 . United States ex rel. Catena v. Elias, 3 Cir., 1971, 449 F.2d 40.

5 . In re Kinoy, D.C., 326 F.Supp. 407 (1971).

6 . Stewart v. United States, 9 Cir., 1971, 440 F.2d 954.

7 . Ziearelli v. New Jersey State Commission of Investigation, 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213 (1971) (probable jurisdiction noted). See also, Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971).

8 . This appeal is taken pursuant to 28 U.S.C. § 1826(b) which requires that appeals from certain contempt citations be decided within 30 days after the notice of appeal is filed. Consequently, this Court has been called upon to decide this appeal within a few days after receipt of the briefs.