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TABLE OF CONTENTS
The 5th Amendment privilege against self-incrimination is personal, applying only to natural individuals. For documents, it protects only the compelled production of self-incriminating documents which are the personal property of the person claiming the privilege or papers in the person's possession in a purely personal capacity.(1) For testimony, it applies only to a compelled testimonial communication by the person claiming the privilege that incriminates that person. It does not prescribe the compulsion of all incriminating evidence.(2) Corporations have no 5th Amendment privilege.(3) The number of owners or operators and the structural organization of a corporation do not alter its rights under the 5th Amendment. Courts have denied the availability of the 5th Amendment privilege to corporations with a sole stockholder(4) subchapter S corporations(5), professional corporations(6), and dissolved corporations.(7) The custodian of corporate records may be required to testify as to the authenticity of documents produced in response to a subpoena duces tecum and that the documents produced are those called for by the subpoena.(8) A custodian of corporate records may not assert the 5th Amendment privilege on the ground that the act of production of the documents is itself incriminatory.(9) However, he cannot be compelled to testify as to the current location of documents not produced and not in his possession if such testimony would be incriminating.(10) In general, partnerships and other collective entities have been denied the use of the privilege against self-incrimination.(11) The ultimate determination is whether, based on all the circumstances, the particular organization "has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interest only."(12) Non-personal business records of a sole proprietorship are treated differently because of the lack of a collective entity apart from the owner. In United States v. Doe, 465 U.S. 605 (1984), the Supreme Court differentiated between the contents of the documents and the act of producing them. There is no 5th Amendment privilege as to the contents of voluntarily-prepared business documents as there is no compelled self-incrimination. However, the act of producing these documents could, in some circumstances, be privileged.(13) When a sole practitioner submits documents in response to a subpoena, he is asserting that the documents exist and that he has possession and control. It also reveals the sole proprietor's belief that the documents are those called for by the subpoena.(14) The majority opinion in Doe suggests that even in cases where the production of business records by a sole proprietor is privileged, the Government could obtain the documents by granting immunity limited to the act of production, or by introducing evidence to establish that the documents called for by the subpoena exist and are in the possession of the person who received the subpoena.(15) In cases where immunity has been granted, attorneys would need an outside source to authenticate the documents if they intend to introduce them at trial.(16)
The privilege against self-incrimination can be claimed in any proceeding whether it is civil or criminal, administrative or judicial. The privilege may also be asserted at a deposition taken in a civil case.(17) However, the compelled testimony must expose the claimant to possible criminal prosecution.(18) A witness may not refuse to answer a question because it would place him in danger of physical harm(19), degrade him(20), or incriminate a third party.(21) A person may invoke his 5th Amendment privilege when he has a good faith belief that a direct, truthful answer would either furnish evidence of a crime or lead to the discovery of evidence needed to prosecute him.(22) The witness need not demonstrate that a prosecution based on the incriminating answer would be successful. It is enough if it would "furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime"(23) or a state crime.(24) The claimant must face a real and substantial hazard of self-incrimination, not an imaginary or insubstantial one.(25) This is an easy standard to satisfy in the context of most antitrust grand jury investigations involving conspiracies to restrain trade since conspiracies can be proved by a "course of conduct,"(26) and only a single act is needed to connect an individual to a conspiracy once its existence is shown.(27) No appellate court has explicitly decided the constitutional question of whether a witness granted immunity may refuse to testify based on a real and substantial fear of foreign prosecution. In the cases litigated to date, the lower courts have held that the fear of foreign prosecution was "remote and speculative," i.e., the witness claiming the privilege had failed to show any real or substantial risk of foreign prosecution.(28) A judge, not the witness, makes the final determination of the availability of the 5th Amendment based upon the facts of the case and the "implications of the questions in the setting" in which asked.(29) If the witness' basis for asserting the 5th Amendment is not clear from the questions posed or types of documents demanded, the claimant may be required to establish in camera the basis for the assertion by describing the nature of the criminal charge for which he would be providing evidence or by allowing a judge to examine the documents to determine whether they are of the type protected by the privilege.(30) If an attorney believes that, based upon the questions posed or documents demanded, a claimant is not entitled to assert the 5th Amendment or has asserted a claim that is broader than necessary to protect his rights, the attorney may challenge the assertion by a motion to compel. A Government attorney should not accept the word of the claimant but should make an independent evaluation based upon the facts of the particular case.(31)
In general, the assertion of the privilege against self-incrimination must be made as to specific questions or document requests.(32) Blanket refusals are usually not acceptable and a witness subpoenaed to testify before a grand jury cannot refuse to appear because he intends to assert the 5th Amendment.(33) In some cases where the witness was a potential target, courts have allowed a blanket refusal to testify or produce documents because the claimant appeared to have a valid 5th Amendment claim as to virtually all questions or documents.(34) As a rule, a witness appearing before a grand jury should supply his name, home address, and place of business. In some cases, supplying a business address may provide a link connecting the person with the criminal activity under investigation and would, therefore, properly be protected by the 5th Amendment.(35) In many cases, a witness or his attorney will inform the Government attorney that the witness intends to assert his 5th Amendment privilege. After the nature and extent of the claim is discussed, the Government attorney can decide whether to call the witness, waive his appearance or consider a grant of immunity. If the Government intends to challenge the assertion of the privilege,(36) the witness must be called. The witness need not be asked all questions, but once he asserts the privilege, the Government attorney should ask if the witness intends to assert the privilege as to all questions on the same topic or about the same transaction. Once it is clear the witness does not intend to answer any other questions, he may be excused.
A witness who fails to invoke the 5th Amendment as to questions to which the privilege would have applied has waived the privilege as to all questions on the same subject.(37) Once a witness voluntarily reveals incriminating facts, he may not refuse to disclose the details related to those facts.(38) Once the waiver has occurred, for each question asked, the appropriate determination for a court is whether the answer demanded would subject the witness to a "real danger of further incrimination".(39) A witness who has previously discussed facts relevant to a grand jury investigation with an FBI agent, investigator or Government attorney may still assert the 5th Amendment privilege before the grand jury as to testimony concerning those same facts.(40) Such statements do not constitute a waiver of the privilege since intervening events may have created apprehension of potential criminal prosecution or the statements before the grand jury may be an independent source of evidence against the witness.(41)
In a criminal trial, a defendant's failure to testify based on the 5th Amendment cannot be used as evidence against him.(42) Likewise, Government attorneys should advise grand jurors that they are not to infer anything from the fact that a witness has refused to answer questions based upon his privilege against self-incrimination. Once a subpoenaed witness asserts an intent to refuse to testify based on the 5th Amendment and is, therefore, excused from testifying, the grand jurors should be informed not to infer any guilt based upon the witness' excusal.
An immunized witness cannot refuse to testify on the ground that his testimony will incriminate him. Immunity is a useful investigative tool, particularly in antitrust conspiracy cases where there is usually little probative physical evidence and few, if any, uninvolved witnesses. All Division attorneys should have a working knowledge of the relevant law and internal Department and Division policies and procedures before seeking immunity for any witness. Two broad categories of immunity have been used in the federal system: "transactional" immunity and "use" immunity. Transactional immunity precludes the Government from prosecuting a witness for any offense (or "transaction") related to the witness' compelled testimony. Use immunity precludes the Government from using, directly or indirectly, a witness' compelled testimony in a prosecution of that witness. Before 1970, prosecutors of antitrust offenses (as well as most other federal crimes) relied on transactional immunity to compel self-incriminating testimony.(43) Transactional immunity was of only limited usefulness to prosecutors because it provided no incentive for witnesses to be fully cooperative. Once a witness testified about any matter relating to an offense, he achieved full protection from prosecution for that offense, and had little to gain from providing additional details about it. Recognizing that problem, in 1970, Congress repealed the pre-existing federal antitrust immunity statute and other transactional immunity statutes, and adopted a general use immunity statute for all federal crimes. The new statute, commonly called the Witness Immunity Act of 1970, was part of the Organized Crime Control Act of 1970. It is codified at 18 U.S.C. §§ 6001-05(44) and should be read by all Division attorneys staffing grand jury investigations. The constitutionality of the new immunity statute was upheld in Kastigar v. United States, 406 U.S. 441 (1972). The Supreme Court held that the statute was compatible and coextensive with the 5th Amendment because it provided immunized witnesses with substantially all the protection accorded by the 5th Amendment privilege. A witness testifying under the statute cannot incriminate himself by his testimony because the statute absolutely proscribes any direct or indirect use of the witness' testimony against the witness. Hence, the prosecutor is left in precisely the same position vis-a-vis the witness as if the witness had not testified. The Court observed that transactional immunity provides considerably broader protection than the 5th Amendment, and thus was not constitutionally required. The Court emphasized, however, that if an immunized witness is later prosecuted, the Government has the affirmative duty of proving that the incriminating evidence it proposes to use is "derived from a legitimate source wholly independent of the compelled testimony."(45) The federal immunity statute is an attempt by Congress to accommodate two crucial yet competing interests: the Government's need to obtain testimony from culpable individuals to prosecute more culpable individuals, and the witness' right to refrain from incriminating himself. It grants the prosecutor a powerful tool for obtaining testimony, and imposes stringent limits on the use of such testimony.
18 U.S.C. §§ 6001-6005 is the only immunity statute used by the Division. Its constitutionality is settled beyond any doubt. Requests for transactional immunity should be opposed automatically. Use immunity is much more useful to prosecutors than transactional immunity. As noted above, witnesses testifying with transactional immunity have little incentive to provide detailed incriminating testimony concerning offenses for which they have exposure.(46) Use immunity, however, gives the witness an incentive to be as forthcoming as possible because the witness is guaranteed only that the information he supplies cannot be used against him. For every new piece of information he supplies, it may become more difficult for a prosecutor to demonstrate that a future prosecution of the witness is based entirely on independent evidence. If this is properly explained to immunized witnesses, considerable detailed inculpatory testimony can often be elicited.(47) Use immunity is also useful to prosecutors because, unlike transactional immunity, it permits prosecution of immunized witnesses based on independent evidence. The Division is undertaking such prosecutions with increasing frequency. For example, where an immunized witness denies involvement in a conspiracy but is subsequently linked to the conspiracy by other evidence, the Division has prosecuted the witness both for the substantive offense and perjury.(48) The immunity statute specifically states that immunized testimony cannot 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." Clearly, a witness who testifies falsely under an immunity order can be prosecuted for perjury or other false statement offenses. The perjury is not compelled testimony about a past crime that is subject to 5th Amendment protection. Rather, the false testimony is itself the crime, and is not subject to any conceivable constitutional protection. However, if a witness testifies with immunity and confesses that he committed perjury on a previous occasion, his confession cannot be used to prosecute him for the previous testimony. It should be noted that the immunity statute not only bars use of a witness' testimony as substantive evidence against that witness but also bars use of the immunized testimony to impeach the witness at trial.(49) The immunity statute only protects a witness from prosecution for offenses committed before the date of the witness' immunized testimony.(50) The witness' immunized testimony can always be used to prosecute him for crimes committed after the date of his testimony. A grant of immunity before a federal grand jury will preclude use of that testimony in a state criminal prosecution just as a grant of state immunity will foreclose use by federal criminal prosecutors.(51) The second prosecution may, however, go forward, provided the second prosecutor is able to establish that all of the evidence he had against the defendant was derived from sources independent of the earlier immunized testimony.(52) The best practice to follow when there is a state criminal grand jury investigation running simultaneously with the federal antitrust grand jury investigation is to erect a "Chinese wall" to ensure that Division attorneys are not foreclosed from prosecuting an individual immunized by the state by having access to any of the state's evidence.
Division attorneys are bound by the Attorney General's Guidelines, dated January 14, 1977, concerning use of federal immunity statutes. The guidelines are reprinted in the United States Attorneys' Manual, 9-23.000, et seq., and should be consulted by every Division attorney seeking an immunity order. A request for an immunity order must be authorized by the Assistant Attorney General or any Deputy Assistant Attorney General.(53) An order may not be sought unless two preconditions are satisfied: First, that the testimony or information sought may be in the public interest; and, second, that the potential witness has refused or is likely to refuse to testify or provide information based on the privilege against self-incrimination.
The Attorney General's immunity guidelines set out six standards to be used in evaluating whether an immunity order would be in the public interest. Those standards are not considered to be all-inclusive and should not be applied slavishly, but they are a concise statement of the factors the Assistant Attorney General or Deputy Assistant Attorney General will apply in weighing an immunity request.(54) A brief discussion of the six standards follows.
Violation of the Sherman Act is a felony and obviously is considered a serious crime. However, care should be taken not to seek immunity orders to pursue de minimus secondary violations.
This is one of the most crucial factors, because an immunity order will foreclose prosecution of the witness in the majority of cases. Thus, for the immunity order to be in the public interest, the expected value of the testimony must outweigh the likely damage of allowing a culpable individual to escape prosecution. This requires delicate balancing, and the decision often must be made based on incomplete information. It is usually helpful to obtain a "proffer" of the witness' expected testimony from the witness' counsel, or, if counsel will permit, from the witness himself.(55) If a proffer is unavailable, the Division attorney must scrutinize the witness' position, job responsibilities, known involvement in the conspiracy, and all other available information to gauge the witness' knowledge and likely degree of cooperation with the investigation. Prior to calling a to-be-immunized witness, it is advisable to gather as much information about the witness as possible through voluntary interviews with others, public sources, subpoenaed documents, and the prior testimony of less culpable individuals. Such information greatly facilitates substantive questioning, and frequently enables the questioner to know at an early stage if the witness is lying or holding information back.
If the witness has a history of lack of cooperation, seeking a compulsion order against him could greatly delay the investigation and provide little useful information.
This is essentially the "flip side" of the second factor, in the sense that the witness' relative culpability must be weighed against the likely value of his testimony in deciding whether immunity would be in the public interest. The Attorney General's Guidelines state that, in the absence of "unusual circumstances," it would not be in the public interest to compel the testimony of a high-level or extremely culpable witness to convict a lower-level or less culpable individual. However, in appropriate investigations, immunizing such a witness can be justified if the witness offers his cooperation at an early stage of the investigation, or is an unattractive potential defendant because of factors such as advanced age or demonstrably poor health. The staff should be aware of the pitfalls of immunizing a highly culpable individual. If the investigation culminates in an indictment and the case goes to trial, an extremely culpable immunized witness is not likely to incur the jury's sympathy, and may severely damage the Division's case. The jury may, with defense counsel's help, focus on the inequity of giving the witness a pass while less involved individuals stand trial. A perceived inequity of that sort can often facilitate a jury's search for a reasonable doubt. As the Guidelines emphasize, it is far preferable that guilty individuals plead guilty to their crimes. If a factual basis for a guilty plea exists and if the individual may be involved in other violations, the possibility of a plea agreement that contains appropriate cooperation and non-prosecution provisions should be considered.(56)
This is closely related to the fourth factor. For example, a witness may be highly culpable, even a ringleader, but if his involvement is entirely outside the statute of limitations period, an immunity order may be warranted.
Retaliation against a witness can be both economic and physical, and can occur even when investigating antitrust or other white-collar crimes. Where serious potential harms exist, Division attorneys should seriously consider taking advantage of the Department's Witness Security Program. Clearly, it is preferable to err on the side of excess caution.(57) In addition, the obstruction of justice statutes, which prohibit attempts to influence or intimidate witnesses and retaliation against witnesses, are available to deter abuse of witnesses.(58)
The second criteria for the grant of immunity is that the witness has refused or is likely to refuse to testify on the basis of his privilege against self-incrimination. Accordingly, requests for authorization should only be made when there is a reasonable expectation that the witness will assert the privilege (or has already done so) and when there is a reasonable expectation that the court would recognize assertion of the privilege. Thus, attorneys should not merely accept at face value an assertion of privilege. Rather, an independent assessment should be made, based on the law and the known facts, as to whether the privilege is available. If the attorney believes there is no sound basis for invocation of the privilege, consideration should be given to have the validity of the assertion determined by the court. In short, requests for authorization to immunize a witness should not be made solely as a matter of "insurance" to cover a remote contingency.
As previously indicated, the statutory framework authorizes the grant of immunity for witnesses who indicate that they will invoke their 5th Amendment privilege if called to testify. These "likely to refuse", or prospective immunities are subject to the same standards and procedures as immunities for witnesses who have already invoked their privileges before the grand jury.(59) There is one situation in which attorneys should be cautious in using prospective immunity. When two witnesses from the same company have been subpoenaed and each is in a position to implicate the other in criminal activity, the first witness to appear should assert his privilege before the grand jury, and be immunized by the court, before any action is taken with respect to immunity for the second witness. If the attorney decides that the first witness' testimony was strong enough to justify cancelling the appearance of the second witness and, instead, seeking his indictment, the second witness will have no grounds on a motion to dismiss to claim that he believed that he had already been granted immunity.(60) Another question that may arise in connection with a witness who has indicated that he will invoke the privilege if called before the grand jury is whether the prosecutor may call that individual before the grand jury without granting that witness immunity. The ABA Standards on Criminal Justice, Standard 3-3.6(e), provides as follows: (e) The prosecutor should not compel the appearance of a witness before the grand jury whose activities are the subject of the inquiry if the witness states in advance that if called he or she will exercise the constitutional privilege not to testify, unless the prosecutor intends to seek a grant of immunity according to law. The Department's position is that this standard is overbroad, making it too convenient for witnesses to avoid testifying truthfully to their knowledge of relevant facts. Moreover, once compelled to appear, the witness may be willing and able to answer some or all of the grand jury's questions without incriminating himself. Accordingly, the Department's policy is that a non-target witness may be called before the grand jury even if the prosecutor is unwilling to grant that witness immunity. The Department's policy with respect to "targets", as defined in U.S.A.M 9-11.150, is that if both the target and his attorney signify in writing that the target will assert the privilege if called, then ordinarily, the target should be excused from testifying.(61) However, the attorney may insist on an appearance by the target if the information sought from the target is not subject to the 5th Amendment. In determining the desirability of insisting on such an appearance, the attorney should consider the factors which justified issuing a subpoena to the target in the first place, i.e., the importance of the expected testimony, its unavailability from other sources and the possible applicability of the 5th Amendment.(62) Under the statutory framework for formal immunity, the Attorney General is given authority to approve all requests for authority to immunize witnesses. In 28 C.F.R. § 0.175(b), the Attorney General's authority has been specifically delegated to the Assistant Attorney General or any Deputy Assistant Attorney General of the Antitrust Division. This regulation imposes a requirement that the Assistant Attorney General or Deputy Assistant Attorney General may not approve an immunity request without obtaining the approval of the Criminal Division (commonly referred to as "Criminal clearance"). Finally, the U.S. Attorney for the district in which the grand jury is sitting must sign the application for the necessary court order.
All requests for statutory immunity must be reviewed by the Director of Operations and the appropriate Deputy Assistant Attorney General. Requests for immunity must be forwarded to the Office of Operations more than two weeks before the date that the staff wants to have the authorization letter available for use, i.e., physically in the staff's possession.(63) The staff should prepare an original and one copy of Form OBD-111 for each witness and submit them to the Office of Operations, together with a memorandum (and one copy) stating the status of the investigation and a detailed statement of the reasons why immunity is being requested for the witness. The memorandum should include: (a) a statement of the witness' present position and position(s) held during the period under investigation; (b) identification of the witness' superiors and subordinates and a summary of the testimony they gave, if any; (c) a statement describing any proffer the witness or counsel has given, or if none has been obtained, a statement of whether arrangements have been made to obtain a proffer; (d) a description of any particular circumstances justifying immunity, such as age, health and personal problems, and any equity considerations; and (e) additional information as to how the witness can further the investigation. In cases where the individual may have engaged directly in the conduct under investigation, Operations usually will require that the witness or counsel give a proffer and that the substance of the proffer be communicated to Operations before the witness' testimony is compelled. Finally, the staff should include with its package a letter from the appropriate Deputy Assistant Attorney General to the U.S. Attorney in the appropriate district, requesting that the U.S. Attorney apply to the court for an immunity order. The text of the letter is as follows: Dear ______________: Pursuant to the authority vested in me by 18 U.S.C. § 6003(b)
and 28 C.F.R. 0.175(b), you are authorized to apply to the United
States District Court for the District of ______________ for [an order] [orders]
pursuant to 18 U.S.C. §§ 6002-6003 requiring [name of
witness or witnesses] to give testimony or provide other information
in the above matter and in any further proceedings resulting therefrom
or ancillary thereto.
There should be a separate authorization letter for each witness, unless the practice of the local U.S. Attorney's office is to include all witnesses for whom immunity will be requested at a particular session in one letter.(64)
The Office of Operations will handle obtaining Criminal Division clearance for the staff. Clearance is based on the information contained in the OBD-111s which are sent from Operations to the Witness Records Unit of the Criminal Division. Witness Records transmits the relevant information to approximately ten other law enforcement organizations, including the FBI and the Tax and Criminal Divisions for their approval. Only after all of those other organizations have searched their investigative files and have signified their approval will Witness Records prepare a memorandum to the Assistant Attorney General in charge of the Antitrust Division, clearing the witnesses for immunity.(65) The rationale for this process is to ensure that the Antitrust Division does not immunize someone who is a target or subject of another group's criminal investigation. The difficulty in the system is that it is time-consuming. The Witness Records Unit requires a full ten working days (exclusive of holidays) to process the OBD-111s. Attorneys in the field offices must allow a few extra days for mailing. In extraordinary circumstances, a request may be processed through Witness Records on an emergency basis. The procedures for handling emergencies are detailed in U.S.A.M. 1-11.101. However, if immunity is being sought for a low level employee, it is the Division's practice to use informal immunity in those situations where shortness of time does not permit regular Criminal Division clearance.(66) All Division attorneys should be aware that OBD-111s cannot be processed without, at a minimum, the witness' full name (nicknames and initials are not adequate), an address that includes at least the city and state in which the witness works or resides, and a date of birth. A Social Security number is helpful, but it is not an adequate substitute for the date of birth.
In a few circumstances, clearance from the Witness Records Unit is not required. Any attorneys who are unsure whether clearance is required should consult with the Office of Operations.
If a witness has been cleared and immunized in an investigation, new clearance is not required if the witness is being recalled. The attorney should simply read the old immunity order into the record, or, if the old order is not available, state clearly on the record that the witness is appearing under his original compulsion order. This rule applies whether it is the original grand jury hearing the testimony or a successor grand jury.
If a witness was cleared and immunized for the grand jury phase of a matter, new clearance is not required for the witness' appearance as a trial witness in a case that stems from that grand jury investigation. However, the attorney must obtain a new DAAG letter, application and order for use at trial. The witness' name should be included in the immunity request memorandum sent to Operations with a notation that Criminal Division clearance is not required. A copy of the Criminal Division clearance memorandum should be attached to the immunity request memorandum.
If a witness was cleared for immunity but not in fact immunized, e.g., staff decided not to call the witness at that time or the witness appeared but did not assert the 5th Amendment privilege, new clearance will be required if the witness is being called more than six months after the original clearance was granted. In other words, a clearance lapses after six months if it is not "perfected" by the grant of immunity.
Under prior practice, clearances were obtained on a district-by-district basis. For example, an attorney conducting an investigation in two judicial districts that involved significant overlap, had to clear witnesses twice, once for each district. Similarly, if the investigation was moved to a different district, all the witnesses had to be re-cleared. Those procedures were recently revised. Clearance is now granted for the investigation as a whole, regardless of where the grand jury is sitting. Accordingly, if a witness has been cleared and immunized, the witness does not have to be re-cleared if, for example, the investigation moves from one district to another.(67) However, the staff will need to submit to the Office of Operations all of the other necessary paperwork for obtaining immunity for that witness (excluding the OBD-111), including a copy of the Criminal Division clearance memorandum.
Division attorneys are responsible for notifying the U.S. Attorney in the district in which the grand jury sits of their intention to seek immunity authorization. Attorneys should send a copy of each OBD-111 to the U.S. Attorney at the same time as the immunity package is sent to the Office of Operations. This will afford the U.S. Attorney an adequate opportunity to make his own independent assessment, as is required by the statute, that it is necessary and desirable for him to seek a compulsion order.(68) It is also convenient, though not necessary, to send the U.S. Attorney all the applications and orders at the same time as the OBD-111s.
After obtaining clearance from the Criminal Division and authorization from the appropriate Deputy Assistant Attorney General, the staff attorney must prepare a written application under 18 U.S.C. § 6003, to obtain a compulsion order and a form of proposed order to be signed by the judge assigned to the grand jury matter. 18 U.S.C. § 6003(b) authorizes only the United States Attorney for the district in which the order is to be issued to file the application. Thus, the application should be prepared for the U.S. Attorney's signature. It is wise to include the staff attorney's signature under the U.S. Attorney's signature block. The application is sent to the U.S. Attorney along with the letter of authorization from the Deputy Assistant Attorney General to that U.S. Attorney to apply for the order. It is also suggested that you provide the U.S. Attorney with the proposed order and a copy of the Criminal Division clearance memo. Moreover, certain judges may want to review all the above papers before signing the immunity order. Note also that the judge who is assigned to a particular grand jury is not necessarily the same judge who empanelled the grand jury. For example, in the Eastern District of Pennsylvania, they are routinely different. Consequently, upon receiving a grand jury number, check with the clerk's office to see what judge has been assigned to your matter. It is that judge to whom you will submit your application and proposed order after the U.S. Attorney has signed and returned them to you. If that judge is unavailable at the time you need your order signed, then the papers should be presented to the designated emergency judge for that day. After first checking with the local U.S. Attorney to find out what practice he wishes you to follow, you should find out what particular practices and procedures the judge follows in issuing compulsion orders.
18 U.S.C. § 6003 describes generally the content of the application and form of proposed order you should submit to the court.(69) 18 U.S.C. § 6003(b)(2) authorizes the U.S. Attorney to seek a compulsion order when the witness (1) "has refused" or (2) "is likely to refuse" to testify on the basis of his privilege against self-incrimination. Thus, the statute authorizes seeking and obtaining a compulsion order prospectively, as well as after the witness has already refused to testify. The language of your application and proposed compulsion order should reflect whether the witness "has refused" or "is likely to refuse" to testify.
If you are satisfied in advance that the witness will not testify voluntarily (such as when you have been advised by the witness or his counsel that he will invoke his 5th Amendment privilege before the grand jury), you usually should seek the compulsion order in advance to avoid disruption of the grand jury proceedings. If you wait until the witness appears before seeking the compulsion order, you must then postpone that witness' appearance to a later date or suspend the proceedings to try to get the order signed (assuming one is prepared). In either case, the grand jury proceeding will be disrupted. Sometimes this is unavoidable, such as when you have been advised that the witness will not assert his 5th Amendment privilege and you have no reason to believe otherwise or because of some local practice against seeking immunity orders prospectively. If you have other witnesses scheduled, you may still be able to proceed with a minimum of disruption.(70)
18 U.S.C. § 6003 requires a court to issue a compulsion order upon proper application of the U.S. Attorney. The sole function of the court is to ascertain that there has been compliance with the statute; the court is not empowered to inquire into the merits of the application.(71) Accordingly, once Departmental authorization has been obtained, the matter of actually seeking a compulsion order lies in the discretion of the Division attorney and the U.S. Attorney.
The staff attorney presents the application (signed by the U.S. Attorney for that district), the proposed order, and the authorization (from the DAAG of the Antitrust Division to that U.S. Attorney) to the judge assigned to that grand jury matter.(72) This is normally done ex parte, as contemplated by the statute. In situations where you are satisfied in advance that the witness "is likely to refuse" to testify, these papers should be presented sufficiently in advance of the witness' grand jury appearance to allow the judge to review the papers and sign the order. In situations where the witness already "has refused" to testify, the papers should be presented as soon as practicable. In both situations, the aim is to avoid disruption of the grand jury proceedings. How quickly you can get an order signed once the papers have been presented to the judge depends in part on the personality of the judge and what other matters he has before him. A good rapport with the judge's law clerks can prove invaluable.(73) Moreover, although the orders contemplated by 18 U.S.C. § 6003 are ex parte in nature and although the court really has no discretion whether or not to sign them once it is satisfied as to compliance with the statute, some judges routinely require hearings on immunity orders. Further, a witness can sometimes obtain a hearing by filing a motion or having his counsel informally attempt to have the order changed. Any such hearings should be in camera and the records should be sealed to prevent any breach of grand jury secrecy.
Any attempt by counsel to challenge the validity of a compulsion order should be vigorously opposed. Set forth below are some arguments which might be raised and some suggested answers.
After obtaining the immunity order from the judge, the next step is compelling the testimony of the witness in return for the grant of use immunity. The record must clearly reflect this process. The suggested procedure follows.
Where you have obtained the compulsion order prospectively or where you anticipate a witness asserting his 5th Amendment rights at the outset of his testimony, it is wise to advise the witness of his rights on the record. Inquire whether he is represented by counsel; the attorney's name; whether counsel has explained his rights, privileges and duties before the grand jury; whether he has been advised of his 5th Amendment rights and whether he understands them; that he has a right not to answer incriminating questions but that if he does answer, anything he says may be used against him; and that he has a duty to testify truthfully.
Immunity may be conferred in one of two ways. First, the Government attorney may state that it is his understanding that the witness intends to assert his 5th Amendment rights in response to any questions asked and then ask the witness to affirm that. The foreperson of the grand jury then reads the order to the witness. Alternatively, the witness may be asked questions until he refuses to answer on the basis of his 5th Amendment rights. You may consider asking the witness if his answer would be the same to any other questions asked of him. You can then have the foreperson read the compulsion order. In general, the second method is usually preferable both for you and the witness since it is more in line with the literal language of the statute. If you have a hostile witness or if there is any thought that you may have to seek a contempt order, then the second method is clearly preferred. The immunity authorized by the statute is not self-executing. The witness must physically appear and claim the privilege and be advised of the order before he can be held in contempt for refusing to testify.(79)
After the immunity order has been read to the witness, it is advisable to inquire whether he understands it. Specifically, ask whether he understands that he no longer has a right to refuse to answer any questions, but that what he does say cannot be used against him; that he does not receive immunity for anything about which he does not testify; and that, notwithstanding the order, he may still be prosecuted for perjury or giving a false statement if he does not testify truthfully. This last provision is normally part of the immunity order, but it is wise to repeat it.
In certain jurisdictions, the immunity order is made an exhibit to the witness' grand jury testimony. Of course, the order is part of the record by virtue of the foreperson reading it into the record. Once the order is used, it is filed with the clerk of court under seal.
It is the policy of the Antitrust Division to try to obtain full and candid proffers of expected testimony concerning culpable subjects or potential targets prior to seeking immunity authorization. This permits the Deputy Assistant Attorney General and the United States Attorney for the district to make an independent judgment that the grant of immunity is necessary to the public interest. During the proffer procedures, Division attorneys should be careful not to indicate to counsel for the potential witness that immunity will be granted since that decision must ultimately be made by the Deputy Assistant Attorney General and the United States Attorney. Proffers may be taken from the attorney representing the individual or from the individual himself. Usually, the best practice is to obtain an attorney proffer first which then must be confirmed in its essential details by the individual before immunity is sought. This practice protects both the individual and the Government from becoming involved in inadequate proffers. It also has the advantage of establishing a degree of trust between opposing counsel that is essential for successful negotiations. Before engaging in such proffers, the attorney for the Government should make clear to opposing counsel that immunity will not be sought unless the attorney proffer is confirmed. Frequently, the attorney will proffer by giving hypothetical facts which form the basis of the expected testimony. If this approach is taken, it is vital that the proffer encompasses all the relevant facts to which the witness can testify and that it be given in sufficient detail so that the attorney for the Government is fully able to evaluate the nature and quality of the expected testimony. As part of this procedure, the attorney for the Government should also review all relevant documents that the witness can identify and obtain outlines of the expected testimony as to each. Lastly, counsel for the Government and opposing counsel should discuss and agree upon the ground rules under which the witness' confirming proffer will be taken, for absent a legally binding contrary agreement, the witness' statements may be used as substantive evidence against him.(80) This would also be the case if the initial proffer was taken directly from the individual. The ground rules for the witness proffer should be reduced to letter form and signed by the attorney for the Government, counsel for the witness, and the witness. Generally, such letters permit the Government only to make use of the information for the purpose of pursuing leads or as a basis for cross-examination or rebuttal, should the witness in any subsequent proceeding to which the United States is a party testify inconsistently with the information provided.(81) Such written assurances are legally binding upon the Government.(82) It is essential that culpable subjects or potential targets give interviews prior to a grant of immunity. The interview assures the prosecution that the witness will in fact confirm an earlier attorney proffer. It also permits the attorney for the Government to judge the credibility of the witness, expand the factual basis of earlier proffers and fully review appropriate documents. During the interview, the witness should be asked if he has given any statement concerning his testimony to other counsel involved in the investigation or has testified or given a sworn statement concerning the matters under investigation in any other proceeding.
Although there are often strong reasons for using statutory immunity, judicious use of informal immunity can enhance the effectiveness and efficiency of our investigations and curtail the use of grand jury time. This section sets forth the situations in which informal immunity may be appropriate and the procedures for obtaining authority to grant informal immunity.
There are two general categories of situations in which it may be appropriate or necessary to use informal immunity as an alternative or adjunct to the statutory immunity process.
Oftentimes, the staff may wish to conduct interviews with witnesses before determining whether it is appropriate or necessary to subpoena them to testify. Conducting such interviews may permit the staff to assess more accurately the need to take sworn testimony from a witness, or it may permit the staff to determine the scope of a witness' knowledge of relevant facts. During grand jury investigations, for example, such interviews can be valuable in selecting witnesses to appear before a grand jury or in limiting the scope of interrogation of a witness, thereby conserving grand jury time. In addition to the interview situation, it may also be appropriate, in some situations, to grant informal immunity to a witness for his testimony, either before a grand jury or at trial. Some witnesses may be willing to testify before a grand jury if they receive assurances from the prosecution that their testimony will not be used against them in subsequent criminal proceedings. Similarly, some trial witnesses, particularly those who have received statutory immunity for their prior grand jury testimony, may be willing to testify at trial with informal immunity.
There are a number of situations in which time constraints make obtaining statutory immunity impossible. Some examples include:
The procedures for obtaining authority to grant informal immunity to witnesses in Antitrust Division investigations and cases are designed to make the investigative and litigation process more effective and efficient, without reducing the necessary safeguards to assure adequate review. The considerations in balancing efficiency against more detailed, formal review vary depending upon the position of the individual witness in his organization and the likelihood that individuals at higher levels might be more culpable in a given case. Accordingly, both the procedure for obtaining authority to grant informal immunity and the level of approval required under these Guidelines vary depending upon the position of the witness in his organization.
This group includes secretaries, other people with essentially clerical or routine administrative positions, and sales department employees with "order taking" or "price quoting" responsibilities but no authority to grant discounts, adjust prices or submit bids. Section and field office Chiefs and Assistant Chiefs have authority to approve staff requests for informal immunity to low-level employees after receiving such approval from the Office of Operations. Such approval, generally given on a category-by-category basis rather than for specific individuals, may be obtained orally from Operations by calling the Special Assistant who will convey the request to the Director of Operations. If oral approval is obtained, a confirming written memo should be sent to Operations. Thereafter, no further authority is necessary unless unusual circumstances arise.
This group includes non-management employees who might have some input into price determination, but no final pricing or bidding authority. It includes most salesmen, estimators and project engineers. As with low-level employees, Chiefs and Assistant Chiefs may approve staff requests for informal immunity to mid-level employees after receiving approval from Operations, using the procedures outlined above. In some cases, the Director of Operations may withhold approval for certain categories of people, such as sales managers and chief estimators or for specific individuals in this mid-level group. For those persons for whom approval has been reserved, Chiefs should seek approval for the specific individuals within the group on a case-by-case basis. In all but emergency situations, that request for approval should be in writing.
This group includes officers, directors, owners or management-level employees likely to be identifiable targets of an investigation, regardless of official title, who have bidding or pricing authority for, or culpable knowledge of the illegal acts under investigation. Ordinarily, staffs should seek only statutory immunity authority for these individuals because of their significance in the investigation. In some situations, however, such as the emergency situations described above, the use of informal immunity may be appropriate, but only with the approval of the Assistant Attorney General or the appropriate Deputy Assistant Attorney General. The procedures for obtaining authority to grant informal immunity to high-level employees is the same as for obtaining statutory immunity authority. Unless time constraints are such to preclude it, a written memorandum must be submitted to Operations. If a request for oral approval is unavoidable, a confirming written memorandum must be submitted.
The informal immunity conferred under these Guidelines will be in the form of a letter addressed to the witness and signed, in most cases, by the appropriate Chief or Assistant Chief.(84) In emergency situations, where by reason of the location of the witness or other factors making it impossible for the Chief or Assistant Chief to sign the letters, a staff attorney may sign an immunity letter, when specifically authorized to do so and in an approved form.
In the normal case, the letter conferring immunity will contain the following provisions:
The witness and his counsel should sign and date our file copy of the letter. No proposed immunity letter containing substantive provisions different from those outlined above shall be issued by, or under the authority of, a Chief or Assistant Chief without express, prior approval of the Director of Operations.
Section and field office Chiefs or Assistant Chiefs or the lead staff attorney should notify the appropriate U.S. Attorney or his designated representative in advance of conferring informal immunity. We will not be circulating the usual copy of the OBD-111 to the U.S. Attorneys, as we do when seeking statutory immunity. Therefore, to avoid conferring immunity upon individuals who are subjects of local criminal investigations, the U.S. Attorney or his designated representative in the relevant district (which ordinarily would be the district in which the witness will appear before the grand jury) should be contacted and advised that we propose to confer informal immunity on the witness(es). Ordinarily, this advance notification should be in writing. In certain circumstances, where time is an important consideration, oral notice may be given, but this oral notice should be confirmed by a brief written letter or memorandum. Where we have also applied contemporaneously for statutory immunity clearance for the same witness, the U.S. Attorney will receive copies of the OBD-111 in connection with the formal immunity clearance procedure. In these situations, no additional notice will be necessary.
Chiefs or Assistant Chiefs shall report, monthly, all grants of informal immunity to the Director of Operations. The purpose of this report is to ensure adequate record-keeping for all grants of informal immunity; to permit analysis of the circumstances under which informal immunity has been used in various investigations and cases; and to facilitate evaluation of the informal immunity program. The monthly report shall be on the form "Report of Informal Immunity Grants." This form shall be maintained cumulatively, for each pending investigation, and should be updated each month with the addition of all names of witnesses for whom immunity was cleared and submitted to Operations. Copies of all letters issued under this program should be maintained by each section or field office in a separate file.
The Division has a policy of giving serious consideration to according lenient treatment to corporations voluntarily reporting their illegal activity prior to our detection of it. "Lenient treatment" means not indicting such a firm. (The policy is known variously as the corporate amnesty, immunity or leniency policy.) There are several factors that are weighed in arriving at the decision to grant leniency. First, only the first corporation to come forward will be considered for leniency. If other corporations involved in the same conspiracy subsequently come in to confess wrongdoing, or if all of the involved corporations come forward as a group, they cannot be given the same consideration. Their cooperation can be given some weight, of course, at the sentencing stage. Second, in order to redound to the benefit of the corporation, the voluntary confession of wrongdoing must be truly a corporate act, as opposed to the confessions of individual executives or officials. If individual executives cooperate with the Government in the same manner as the corporation, they may also be given serious consideration for immunity. Other factors that must bear on any decision regarding leniency include the following:
If the attorney who receives the request for amnesty believes the corporation qualifies for, and should be accorded lenient treatment, he should forward a favorable recommendation to the Office of Operations, setting forth the reasons why leniency should be granted. Staff should not delay making such a recommendation until a fact memo recommending prosecution of others is prepared. The Director of Operations will review the request, and forward it to the Assistant Attorney General for final decision. If the staff attorney recommends against lenient treatment, corporate counsel may wish to seek an appointment with the Director of Operations to make his views known. Counsel are not entitled to such a meeting as a matter of right, but the opportunity will generally be afforded.
The Division attorney negotiating immunity or non-prosecution provisions in a plea agreement should be aware of certain principles.(85) Generally, defendants should not be granted immunity absent a plea of guilty to some violation. Plea agreements may provide for no further prosecution of defendants for antitrust, mail fraud, wire fraud or related violations committed prior to the date of the plea agreement involving the subject product or industry within the specific geographic area in which the defendants have admitted to unlawful conduct. If part of that area is within the territory of another Division office or section, that office or section should be consulted prior to any commitment. Where a defendant has provided information as to one or more violations but it is believed that additional information is being withheld, it may be desirable to use a sealed appendix to the agreement. This would set forth all the information provided by the defendant and any immunity given would be limited to that information and information derived therefrom. Where, however, there is specific reason to believe that the defendant has information relating to other violations, the Division should generally not enter into an immunity agreement. Non-prosecution provisions for mail fraud or wire fraud should be specifically limited to violations committed in connection with Sherman Act violations. The agreement should specifically state that the defendant can still be prosecuted for perjury or giving false statements.
Attorneys should consult the U. S. Attorneys' Manual, § 9-23.211, when seeking to immunize an individual to compel that individual to testify about a close family relative. That section describes the factors that should be considered in determining whether to compel an individual to testify against a close family relative. That section reads as follows: Consideration should be given to whether the witness is a close family relative of the person against whom the testimony is sought. A close family relative is a spouse, parent, child, grandparent, grandchild or sibling of the witness. Absent specific justification, we will ordinarily avoid compelling the testimony of a witness who is a close family relative of the defendant on trial or of the person upon whose conduct grand jury scrutiny is focusing. Such justification exists, among other circumstances, where (i) the witness and the relative participated in a common business enterprise and the testimony to be elicited relates to that enterprise or its activities; (ii) the testimony to be elicited relates to illegal conduct in which we have reason to believe that both the witness and the relative were active participants; or (iii) the testimony to be elicited relates to a crime involving overriding prosecutorial concerns. As this provision makes clear, the ordinary course is to avoid compelling the testimony of a close family relative of a grand jury target or trial defendant. However, many of the Division's criminal investigations focus on family-owned businesses, thus it may be necessary to immunize one of the family members involved in the business to testify against another member also involved in the business.(86)
The initial guidelines in this area were set forth in the Attorney General's guidelines, published in January, 1977, which provided: Only in exceptional circumstances will authorization be granted to compel the testimony of a witness who is a close family relative of the defendant on trial or of the person upon whose conduct grand jury scrutiny is focusing.(87) This exceptional circumstances standard was interpreted by the Criminal Division of the Department of Justice in a letter, dated August 9, 1982, from Deputy Assistant Attorney General John Keeney to Assistant United States Attorney Walter Mack in New York City.(88) The Keeney letter set forth certain policy considerations and interpreted the term "relative" to include husbands and wives, despite the lack of blood relationship and the term "'close' family relative" to include grandparents, grandchildren, fathers, mothers, sons, daughters, brothers and sisters. Excluded were aunts, uncles, nephews, nieces, cousins and in-laws. The letter states that the degree of culpability or participation by the witness is an important factor to consider in determining whether the public interest outweighs the family relationship. The present Department of Justice position incorporates this interpretation of "close family relative."
A second letter setting forth a factor to be considered under the "exceptional circumstances" standard was sent on November 23, 1982 from Deputy Associate Attorney General Kenneth A. Caruso to attorney William W. Taylor of Washington, D.C., in connection with Mr. Taylor's representation of a client. The Caruso letter set forth a policy that "where, through a familial relationship, an individual learns of illegal conduct by that individual's close family relative," the Department normally would not compel that individual to testify. However, where an individual, "because of his business or corporate position, becomes aware of illegal conduct by a family business or by a business associate who happens also to be a close family relative," the Department may compel that individual's testimony. The Caruso letter stated that, under such circumstances, there was a likelihood that the Department would compel the individual to testify "as a corporate official of the company under investigation" about "the business activities of business associates who happen to be the witness' close family relatives." The U.S. Attorneys Manual incorporates the rationale of the Caruso letter. Testimony may be compelled when the prospective witness and relative participate, or have participated, during all or part of the period under scrutiny, in a "common business enterprise" and the questions to be asked and expected testimony relate to the common business enterprise or its activities. Thus, the attorney should set forth in a memorandum the reasons for the belief that the witness will be able to testify based on business association with the relative and why the testimony will not be based exclusively on the familial or marital relationship.
The U.S. Attorneys Manual recognizes that when an individual participates with a close family relative in the illegal conduct, such an individual may be compelled to testify. Thus, when an attorney is considering whether it is appropriate to recommend a relative of a target or a subject for immunity under a compulsion order, the attorney should set forth the reason(s) for the belief that the prospective witness will be able to testify about the relative's and the witness' joint participation in a crime. A brief discussion of the marital privileges is useful to understand the current state of the law as to whether joint participation in a crime will override the assertion of the marital privilege.(89) Although there are no general privileges protecting an individual when compelled to testify against a close family relative, when compelling a witness to testify about his spouse, two marital privileges may be asserted. First, the confidential marital communications privilege protects privately disclosed statements or communications made in confidence during the marriage. This privilege may be asserted by either spouse, and the privilege survives the deterioration of the marriage. The communications, however, must be made during the marriage, and not before or after, to come within the privilege. The privilege protects the privacy of the marital communications. Second, the testifying spouse may claim the privilege against adverse spousal testimony which applies to all testimony against the spouse, including testimony on non-confidential matters or matters that occurred prior to the marriage. Although this privilege covers a greater range of potential information, it may be asserted only by the spouse called or compelled to testify and not by the spouse against whom the testimony is sought.(90) Furthermore, this privilege does not survive the deterioration of the marriage, as it is intended to protect the sanctity of the marriage as it exists at the time of the trial or grand jury proceeding. In their attempts to reconcile the policies underlying the privileges against the public interest in obtaining the testimony, the courts have come to a consensus in deciding that there should be a joint participation exception to the confidential marital communications privilege, but are divided on this exception as to the privilege against adverse spousal testimony. The weight of the law is that joint participation in a crime creates an exception to the confidential marital communications privilege.(91) With respect to the privilege against adverse spousal testimony, the courts which uphold the privilege emphasize the public policy of preserving the harmony of the marriage. In In re Malfitano, 633 F.2d 276 (3d Cir. 1980), the court held that there was no joint participation exception to the privilege and upheld the assertion of the privilege, the grant of immunity notwithstanding.(92) Two circuits recognize a joint participation exception to the claim of privilege against adverse spousal testimony because to uphold the privilege would allow one spouse to enlist the aid of the other spouse in a criminal enterprise and, by doing so, protect against having the spouse compelled to testify about the crime.(93)
The U.S. Attorneys Manual also states that a compulsion order may be sought when "the testimony to be elicited [from the prospective witness concerning the relative] relates to a crime involving overriding prosecutorial concerns." Such crimes are not specifically defined. The recommendation will be considered on a case-by-case basis. Thus, the attorney's memorandum should set forth any facts that demonstrate particular prosecutorial concerns.
Once the criteria for deciding that immunity is appropriate under the above guidelines are satisfied, the witness to be immunized should not prevail on a motion to quash the subpoena on the ground of testimonial privilege. There is no recognized privilege that protects a prospective witness from having to testify against a close family relative,(94) other than the confidential marital communications or the adverse spousal testimony privileges.
The refusal of a witness to testify or to produce other information after the issuance of an order of compulsion under 18 U.S.C. § 6002 is punishable by contempt.(95) An immunized witness who refuses to testify before a federal grand jury may be held in civil or criminal contempt.(96)
28 U.S.C. § 1826, a codification of preexisting practices, was enacted in 1970 to provide a statutory basis for the application of summary civil contempt powers to recalcitrant witnesses. It provides that a witness may be held in contempt when he refuses to comply with a court order "without just cause shown."(97) Also pertinent to the contempt power and its exercise, whether civil or criminal, are Rules 17(g) and 42 of the Federal Rules of Criminal Procedure. Ordinarily, the district courts should first consider the feasibility of effecting compliance with compulsion orders through the imposition of civil contempt under 28 U.S.C. § 1826. "The judge should resort to criminal sanctions only after he determines, for good reason, that the civil remedy would be inappropriate."(98) The court, however, is not required to consider civil contempt on the record expressly prior to the institution of criminal contempt proceedings against recalcitrant witnesses.(99) The purpose of civil contempt is not to punish the witness by imprisonment, but rather to secure testimony or other evidence through the creation of an incentive for compliance. On the other hand, the purpose of criminal contempt is to punish the witness for his refusal to obey the court's order, thus vindicating the court's authority.(100) Confinement for civil contempt is limited to the life of the court proceeding or the term of the grand jury, but in no event may the confinement exceed 18 months. When the potential duration of civil coercive confinement is severely limited, a court may consider civil contempt a futile sanction.(101) Moreover, civil contempt may not be sufficient where "the contemnor is already incarcerated and is, therefore, unlikely to respond to a threat of summary civil contempt."(102) A witness can purge himself of civil contempt at any time. Thus, when the witness complies with the order, he must be released. When the grand jury has expired, civil contempt is not available.(103) The witness cannot purge himself before a no-longer-existent grand jury.
Where it is appropriate to impose punishment upon a recalcitrant witness, the court may invoke the provisions of 18 U.S.C. § 401 and Rule 42 of the Federal Rules of Criminal Procedure. Criminal contempt is punishable under 18 U.S.C. § 401, by fine or imprisonment. Courts may not impose both a fine and imprisonment, nor a fine coupled with probation.(104) Unlike civil contempt, the confinement or fine imposed is for a definite period or amount. The witness cannot purge himself of the contempt and thereby avoid the sentence. Sentences of up to and including six months may be given after the notice and hearing required by Fed. R. Crim. P. 42(b). The Supreme Court has ruled, however, that sentences exceeding six months may not be imposed absent a jury trial or waiver thereof.(105) After a jury trial, there is no limit to the length of the sentence as there is no maximum set for punishing criminal contempt under Rule 42(b). The Government cannot know in advance the penalty to be imposed. Nevertheless, the Government should not press in a non-jury hearing for imprisonment in excess of six months and should be certain that the court is aware that any sentence longer than six months requires that the defendant be allowed a jury trial. In one case involving criminal contempt occurring before the grand jury, a sentence of three years was imposed.(106) Prosecution was by grand jury indictment for violation of 18 U.S.C. § 401. A sentence for another criminal offense may be interrupted to compel the witness to serve an intervening contempt sentence so that an adjudication of criminal contempt not be deprived of its efficacy.(107) However, in In re Liberatore, 574 F.2d 78 (2d Cir. 1978), the court held that a federal court does not have the authority to interrupt a preexisting state-imposed criminal sentence during the period of confinement to compel the witness to serve the contempt sentence.
Federal Rule of Criminal Procedure 42 is applicable to both civil and criminal contempt proceedings. However, the summary procedure provided for by Rule 42(a) is not appropriate for a refusal to testify before a grand jury. Rule 42(a) deprives the contemnor of procedural safeguards and is available only when immediate punishment is necessary to put an end to acts disrupting the proceedings. "Rule 42(b) prescribes the procedural regularity for all contempts in the federal regimes [footnote omitted] except those unusual situations envisioned by Rule 42(a) where instant action is necessary to protect the judicial institution itself."(108) Rule 42(b) applies to civil contempt proceedings initiated under 28 U.S.C. § 1826, which permits a court to "summarily" order the confinement of a grand jury witness who refused to comply with an order to testify.(109) Thus, a potential contemnor is entitled to notice, a hearing, and a reasonable time to prepare his defense as prescribed by Rule 42(b), despite the use of the word "summarily" in § 1826(a). It is not required that a potential contemnor have formal notice. Rule 42(b) only requires a reasonable time for the preparation of a defense; that is, to show "just cause" for refusing to respond. The determination of how much time is reasonable is within the discretion of the district court and will vary according to the circumstances of each case. One court, noting that contempt proceedings against grand jury witnesses often present complex issues of law and/or fact, was of the opinion that a five-day notice period should be adopted as the standard, absent a showing of some compelling need to shorten the time or of some reason why a longer time is needed.(110) Two days have been held adequate where no showing of just cause appeared to have been available.(111) Where the issues have been considered at an immunity hearing, the witness may have had adequate time to prepare, even though very little time elapses between the alleged contempt and the contempt hearing. A witness who appears and refuses to testify before a grand jury is not yet in contempt. The refusal must be of a direct order of the court, such as a compulsion order under 18 U.S.C. § 6002.(112) It should be clear, however, that the witness understands his obligation to testify and that, if he refuses, he can be held in contempt. If there is any doubt about this, or if the immunity order was obtained without the witness being present, it may be advisable to present the recalcitrant witness to the court, reading the relevant questions and responses, and secure a direct order of the court with an appropriate warning; thereafter, the witness should be returned to the grand jury and the request renewed. If the witness again refuses, contempt clearly occurs. The hearing required under Rule 42(b) and 28 U.S.C. § 1826(a) may conceivably take place the same day and may depend on the nature of the defense, if any, offered by the witness. It may be advisable to consult with the local United States Attorney to ascertain the court's attitude in this regard. As discussed above, courts generally appear reluctant not to grant notice of at least several days when substantial issues are raised. In that event, the courts require an "uninhibited advisory hearing" that, at the very least, allows the witness to pursue all nonfrivolous defenses to the contempt charge. On the other hand, evidentiary hearings are not required in the absence of solid allegations that raise genuine issues. Material issues that have been raised include electronic surveillance of the witness or his counsel(113) and being subpoenaed for an improper purpose, e.g., to gather evidence in connection with a pending indictment.(114) A defendant is not entitled to a jury trial in a civil contempt proceeding. Whether or not such issues are raised, the Government should be prepared to lay a foundation to establish the contempt, e.g., to establish the presence of a quorum on the date and time in question. This may be shown by an affidavit or testimony of the grand jury foreperson or secretary or by properly authenticated grand jury minutes. In establishing the contempt, it is probably best to read the relevant questions and responses from a properly authenticated transcript of the grand jury proceeding. Section 1826(b) prohibits granting bail while an appeal from an order of confinement is pending if the appeal appears to be frivolous or taken for delay. An appeal from a confinement order under this section is to be disposed of "as soon as practicable" but not later than thirty days from the filing date. These provisions lend a certainty to the sanction consistent with the urgent public need to obtain testimony.(115) Thus, the statute, itself, affords a sound predicate for Government opposition to an application for bond pending appeal.
Rule 42 of the Federal Rules of Criminal Procedure governs the procedures as to notice and hearing for both criminal and civil contempt. These procedures are discussed above under civil contempt. Bail for a defendant found in criminal contempt of court is controlled by the provisions of Fed. R. Crim. P. 46. The obstruction of justice statute (18 U.S.C. § 1510) was designed to deter coercion or intimidation of potential witnesses or informants from giving information to federal criminal investigators prior to initiation of judicial proceedings. It is not used in connection with contempt proceedings.
The provisions of 18 U.S.C. §§ 6001-6003 are not to be used to compel testimony or production of other information on behalf of a defendant except in extraordinary circumstances where the defendant would be deprived of a fair trial without such testimony or other information. Attorneys for the Government should almost always oppose attempts to use compulsion statutes on behalf of defendants.(116) The immunity statute gives the prosecutor sole discretion to grant immunity. The court's role in the immunity process is purely ministerial, and a court may neither grant statutory immunity nor force the prosecutor to grant immunity.(117) Defendants frequently seek immunity for their witnesses from the court. The most common arguments in favor of such grants are that denial of immunity would violate the due process clause of the 5th Amendment or the compulsory process clause of the 6th Amendment. Although there is general agreement among the circuits that defense witness immunity is justified in a few exceptional cases, there is a strong presumption against such immunity. First, judicial immunity decisions inevitably involve encroachment into areas of prosecutorial discretion. An immunized witness can still be prosecuted, but the Government bears a heavy burden of showing that the evidence is not derived from immunized testimony.(118) Thus, granting defense witnesses immunity may seriously impair the Government's ability to prosecute these witnesses later. Second, defense witness immunity would invite cooperative perjury by enabling codefendants to obtain immunity for each other and then exonerate each other in their testimony. For these reasons, courts have held there is no general right to defense witness immunity.(119) The only case in which a guilty verdict has been reversed for failure to grant immunity to a defense witness is United States v. Morrison, 535 F.2d 223 (3d Cir. 1976). However, Morrison involved highly unusual circumstances, including allegations of prosecutorial abuse. Other circuits have also held that there may be cases in which Government abuse justifies dismissal if the witness is not immunized.(120) Three circuits have indicated that courts may have the inherent power to grant use immunity in cases of Government abuse.(121) None of these courts has ever ordered that such judicial immunity be granted. The Sixth and Tenth Circuits, while rejecting any inherent power on the part of the courts to grant immunity, have left open the question of whether prosecutorial misconduct might require the Government to choose between granting immunity to a defense witness and acquittal.(122) In addition to situations involving prosecutorial misconduct, the Third Circuit in Government of the Virgin Islands v. Smith, 615 F.2d 964, 970-74 (3d Cir. 1980), held that defendants have a due process right to present exculpatory evidence and that judicial immunity may be granted to a witness who will provide exculpatory testimony.(123) Defense witness immunity is proper under Smith where immunity is properly sought in the district court, the witness is available to testify, the proffered testimony is essential and clearly exculpatory, and there is no strong Governmental interest against granting immunity.(124) The court stated that granting immunity is usually "virtually costless" to the Government because it can still prosecute the witness if it segregates the existing evidence against the witness or seeks a delay in the defendant's trial until sufficient evidence against the witness can be gathered.(125) The only other circuit to hold that defense witness immunity can be used to make exculpatory evidence available to the defendant is the Second. Under the Second Circuit standard, immunity can be granted to defense witnesses if the Government has made discriminatory use of immunity to gain tactical advantage, and the testimony is material, exculpatory and not available elsewhere.(126) If the witness is a current or potential target of prosecution, there is no discrimination.(127)
A witness who has provided testimony at a grand jury or trial pursuant to a grant of immunity under 18 U.S.C. § 6001, et seq. or pursuant to a promise of informal immunity or in a state investigation pursuant to a state grant of immunity may nonetheless be prosecuted, even for a crime about which the witness testified. The witness can be prosecuted only if the Government can affirmatively prove that it did not use the witness' immunized testimony against the witness, for example, as direct evidence of the witness' involvement; and that it did not use information directly or indirectly derived from the testimony, for example, as a lead to developing evidence against the witness or in focusing the investigation on the witness.
The protection granted to the witness by 18 U.S.C. § 6002, has been upheld as constitutional in the face of a challenge that use and derivative use immunity was violative of a witness' 5th Amendment privilege against self-incrimination. The Court in Kastigar v. United States, 406 U.S. 441 (1972), held that "immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of privilege."(128) Prior to the passage of 18 U.S.C. § 6001, et seq., a witness was protected by transactional immunity. Under transactional immunity, a witness could not be prosecuted for the events about which he testified, even if the Government had independent evidence of the witness' participation in the crime. The use and derivative use immunity statute, however, confers a less sweeping protection. A witness may be prosecuted for the very activities about which he testifies if the Government can prove that it did not use the testimony.(129) In Kastigar, the Court stated that the witness should be "in substantially the same position" after testifying under immunity as that witness would have been had the 5th Amendment privilege been claimed.(130) The key term here is "substantially." The immunity protection does not mean that "in order for a grant of immunity to be 'coextensive with the 5th Amendment privilege,' the witness must be treated as if he had remained silent."(131) As the Court pointed out in United States v. Apfelbaum, 445 U.S. 115, 124-25 (1980), the statutory grant of immunity does not "bar the use of the witness' statements in civil proceedings, but only protects against use in subsequent criminal proceedings. Thus, testimony given under a statutory grant of immunity may be used against the witness in a subsequent civil proceeding. Further, the immunity granted for testimony before the grand jury or at the criminal trial does not cover the same individual if he is subpoenaed to testify at a civil deposition.(132) Thus, a private litigant cannot compel a witness' testimony at a civil deposition if the witness
By its very language, the immunity statute does not protect the witness from a prosecution for perjury, 18 U.S.C. § 1621, or false statements to the grand jury or court, 18 U.S.C. § 1623.(133) The untruthful statements which form the basis of the indictment, the corpus delicti, may be used against the witness in the perjury or false statement prosecution.(134) In addition, uncharged statements in the immunized testimony of the witness may be used, for instance, to place the charged statements in context. As the Supreme Court stated in United States v. Apfelbaum, 445 U.S. 115, 131 (1980): "neither the immunity statute nor the 5th Amendment precludes the use of [the witness'] immunized testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence." Furthermore, the immunity statute may not protect a witness who "otherwise fail[s] to comply with the order [of immunity]." In one case, a witness who testified falsely, both to the grand jury and at trial under a grant of immunity, was charged with not only false statements but a conspiracy to commit other crimes, to obstruct justice and to give false testimony. The court upheld the conspiracy count, stating that "the sweep of the exception against the use of immunized testimony . . . extends to any conduct aimed at frustrating the purpose of the grant of immunity."(135) Division attorneys should be aware that if they intend to prosecute an immunized witness for perjury or false statements, only the regular case approval procedures must be met. If the prosecution is for a substantive offense, attorneys must follow the procedures for obtaining the Attorney |