United States v. McBreairty

• Court: Court of Appeals for the First Circuit
• Decided: February 20, 2026
• Docket: 25-1009
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 25-1009

UNITED STATES,

Appellee,

v.

DANIELLE MCBREAIRTY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Stacey D. Neumann, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Kayatta, Circuit Judges.

Tyler J. Smith, with whom Libby O'Brien Kingsley & Champion, LLC was on brief, for appellant.

Brian S. Kleinbord, Assistant United States Attorney, with whom Craig M. Wolff, Acting United States Attorney, was on brief, for appellee.

February 20, 2026 BARRON, Chief Judge. Danielle McBreairty ("McBreairty")

was called by the government to testify in a criminal trial in the

United States District Court for the District of Maine. Invoking

her privilege against self-incrimination under the Fifth Amendment

of the United States Constitution, she refused to do so. The

District Court granted her statutory immunity for her testimony,

but she continued to refuse to testify. The District Court found

McBreairty in criminal contempt as a result, and she appeals the

criminal contempt order. We affirm.

I.

On December 9, 2024, the government filed a memorandum

in United States v. Corbett, No. 1:22-cr-00023-SDN (D. Me. Judgment

entered on Oct. 30, 2025) (hereinafter "the Corbett trial"), that

informed the District Court that it planned to call McBreairty as

a witness in the upcoming criminal trial in that case and that she

intended to invoke her Fifth Amendment privilege against

self-incrimination. McBreairty's counsel received a copy of this

memorandum. It stated that, if McBreairty invoked her privilege,

then it would move for the District Court to order McBreairty to

testify pursuant to 18 U.S.C. §§ 6002-6003. In relevant part, 18

U.S.C. § 6002 provides that "[w]henever a witness refuses, on the

basis of his privilege against self-incrimination, to testify" and

the presiding judge "communicates to the witness an order issued

- 2 - under this title, the witness may not refuse to comply with the

order on the basis of his privilege against self-incrimination,"

but "no testimony or other information compelled . . . 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."1 We see no indication in the record that counsel

for McBreairty responded to or otherwise objected to the

government's proposed procedure.

As planned, the government called McBreairty to testify

in the Corbett trial on December 11, 2024. During direct

examination, after answering a few questions, McBreairty invoked

her Fifth Amendment privilege against self-incrimination. The

government continued to ask questions, and McBreairty continued to

invoke her Fifth Amendment privilege in refusing to answer them.

Specifically, 18 U.S.C. § 6003(a) states that the district 1

court judge in the relevant jurisdiction "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." Subsection (b) then makes clear the conditions under which a United States attorney may make such a request, namely when the request has been approved by the "Attorney General, the Deputy Attorney General, the Associate Attorney General, or any designated Assistant Attorney General or Deputy Assistant Attorney General," and when the United States attorney finds "in his judgment" that "the testimony . . . may be necessary to the public interest" and "such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination." Id. § 6003(b).

- 3 - In response to the District Court's inquiry, McBreairty confirmed

her intention to assert her Fifth Amendment privilege in response

to all further questions from the government. The government then

requested that, pursuant to its memorandum, the District Court

order McBreairty to testify.

The District Court followed suit. In ordering

McBreairty to testify, it explained that "no testimony or other

information compelled . . . or any information directly or

indirectly derived from such testimony or other information may be

used against Danielle McBreairty in any criminal case except in a

prosecution for perjury or giving a false statement or for

otherwise failing to comply with the order." In response,

McBreairty's attorney stated on the record that it was his position

that the statutory immunity granted was not coextensive with

McBreairty's Fifth Amendment privilege.

After hearing from both McBreairty and the government on

this point, the District Court noted that it had ordered McBreairty

to testify and found that "the statutory immunity encompasses the

Fifth Amendment." The District Court warned McBreairty that

further refusals could be met with criminal contempt. McBreairty

continued to refuse to testify, and the District Court held

McBreairty in criminal contempt. McBreairty appeals the order of

criminal contempt. We affirm.

- 4 - II.

We review a district court's order of criminal contempt

for abuse of discretion when the challenge to the order is

preserved. United States v. Winter, 70 F.3d 655, 659 (1st Cir.

1995) (citing In re Grand Jury Proceedings, 943 F.2d 132, 136 (1st

Cir. 1991)). We review factual findings for clear error and legal

questions de novo. Id.

III.

McBreairty acknowledges that the statutory immunity she

received prevents the government from prosecuting her for prior

perjury that comes to light during her immunized testimony. See

United States v. Cintolo, 818 F.2d 980, 988 n.5 (1st Cir. 1987)

("The law is settled that a grant of immunity precludes the use of

immunized testimony in a prosecution for past perjury . . . .").

But she argues that nothing in the text of 18 U.S.C. §§ 6002-6003

ensures that prior statements "cannot be used to prove the alleged

falsity of testimony given under a grant of immunity." She argues

on that basis that the statutory immunity she was given does not

protect her from a situation in which, "armed with two competing

statements, the Government could potentially prosecute McBreairty

for perjury given in the Corbett trial under the theory that the

prior statements were true and the immunized statements were

false." In other words, McBreairty argues, her Fifth Amendment

- 5 - privilege is not coextensive with the statutory immunity she was

given because that immunity does not protect her from the risk

that the government will think she is lying under oath.2

But McBreairty fails to cite to a single case that

confers on a witness -- under the Fifth Amendment or any privilege

or immunity -- the privilege to not testify to avoid the risk that

the government could prosecute the witness for committing perjury

in giving the testimony that is subject to the grant of immunity.3

She also does not attempt to explain why the risk that the

prosecution might claim that her testimony is false is even a risk

against which the Fifth Amendment protects. We therefore do not

see how the District Court abused its discretion in finding that

the statutory immunity granted was coextensive with the Fifth

Amendment privilege against self-incrimination, insofar as

2 We note that there is precedent that 18 U.S.C. § 1623(c), which allows for a perjury conviction when a defendant "under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false" without requiring that a jury decide which of the statements is false, does not apply when a defendant receives statutory immunity for one of the statements. See In re Grand Jury Proceedings, 644 F.2d 348, 350 (5th Cir. 1981). McBreairty does not suggest otherwise. 3 McBreairty cites to an Eighth Circuit case for the proposition that "a witness's truthful testimony that was contradicted by prior testimony could expose the witness to a prosecution for perjury based on testimony given in the latter proceeding." (Citing In re Grand Jury Subpoena, 739 F.2d 1354, 1360 (8th Cir. 1984).) But, as the government correctly points out, the defendant in that case had not been granted immunity. In re Grand Jury Subpoena, 739 F.2d at 1360.

- 6 - McBreairty argues that the immunity, to be coextensive, must

immunize her from being prosecuted for perjuring herself in the

testimony she refused to give.

McBreairty did advance at oral argument a distinct and

novel ground for challenging the District Court's criminal

contempt order which she did not raise to the District Court. She

argued that the District Court accepted as valid her assertion of

the Fifth Amendment privilege based on the possibility that she

could be prosecuted for perjuring herself in the testimony for

which she had been granted immunity and not only for having

perjured herself in prior testimony based on inconsistencies that

the immunized testimony might reveal. She contends on that basis

that the District Court was obliged to explain how the grant of

immunity was coextensive with that purported claim of privilege.

But, she argues, the District Court failed to do so and so abused

its discretion in issuing the order of criminal contempt based on

her refusal to testify.

Even treating this argument as preserved, we see no merit

to it. See United States v. Pizarro-Berríos, 448 F.3d 1, 5 (1st

Cir. 2006) ("We have consistently held that, except in

extraordinary circumstances, arguments not raised in a party's

initial brief and instead raised for the first time at oral

argument are considered waived."). The premise of this argument

is that the District Court accepted as valid McBreairty's

- 7 - invocation of the Fifth Amendment privilege insofar as she was

claiming a privilege against being prosecuted for perjuring

herself in her Corbett trial testimony. McBreairty seems to be

contending that the District Court must be understood to have done

so because it granted McBreairty immunity under 18 U.S.C.

§§ 6002-6003, which issues when, among other requirements not in

dispute here, an individual refuses to testify "on the basis of

his privilege against self-incrimination." 18 U.S.C. § 6003. In

other words, McBreairty seems to be assuming that because the

District Court granted the statutory immunity, it must have agreed

that McBreairty had a valid Fifth Amendment claim of privilege

that protected her from a perjury charge based on her perjuring

herself in the sought-after Corbett testimony.

In fact, though, the District Court explicitly noted in

granting the immunity that it was "ordering that no testimony or

other information compelled from Danielle McBreairty or any

information directly or indirectly derived from such testimony or

other information" may be used "against Danielle McBreairty in any

criminal case except in a prosecution for perjury or giving a false

statement or for otherwise failing to comply with the order."

(Emphasis added.) Furthermore, the District Court, in a colloquy

with the government, confirmed that "of course, there's no Fifth

Amendment privilege to submit false testimony before the Court.

- 8 - So if anything today were to be false, that would be outside of

the asserted privilege anyway."

Thus, there is every indication that the District Court

understood McBreairty's asserted Fifth Amendment privilege to

cover testimony that would highlight and expose her to criminal

prosecution for past wrongdoing. Indeed, the District Court

pointed out that, when it referred both parties to In re Grand

Jury Proceedings, that "the immunity granted does not cover any

prospective, potential perjury or false statements, but [covers]

any alleged past perjury or false statements." See 644 F.2d 348,

350 (5th Cir. 1981) ("[I]t is well established that the exception

under the immunity statute, 18 U.S.C. § 6002, which authorizes

prosecution for perjury, as construed by this Court and elsewhere

forecloses the government from prosecuting an immunized witness

for perjury based upon prior false statements.").

Thus, this ground for challenging the order of criminal

contempt rests on an unsupported factual premise about what the

District Court did when it granted McBreairty statutory immunity.

We therefore reject it, even assuming that it is properly before

us.

IV.

The judgment entering the order of criminal contempt is

affirmed.

- 9 -