McLaughlin, Freedman and Van Dusen, Circuit Judges. On Reargument: Hastie, Chief Judge, and McLaughlin, Seitz, Van Dusen, Aldisert, Adams and Rosenn, Circuit Judges. Seitz, Chief Judge (concurring). Adams, Circuit Judge (concurring). Van Dusen, Circuit Judge (dissenting).
This appeal presents the question whether the Fifth Amendment's prohibition of compelled self-incrimination precludes a state from requiring a witness to testify before one of its investigating agencies after, pursuant to a statute of that state, he has been granted immunity from any use of that testimony or any evidence derived from it against him in any criminal proceeding.
Appellant Catena was subpoenaed to appear before the New Jersey State Commission of Investigation in the course of an investigation into organized crime in that state. He refused to answer most of the questions put to him, pleading his Fifth Amendment privilege against self-incrimination. Then pursuant to N.J.Stat.Ann. § 52:9M-17 (1970), he was granted immunity "from having * * * responsive answer[s] given by him or * * * responsive evidence produced by him, or evidence derived therefrom used to expose him to criminal prosecution * * *." He nevertheless continued to refuse to answer the propounded questions. Following a hearing, the Superior Court of New Jersey found him in contempt and remanded him into custody until such time as he should answer the questions. Thereafter, the United States District Court for the District of New Jersey denied his petition for habeas corpus. This appeal followed.
It is conceded that the New Jersey statute does not preclude the prosecution of the appellant for any transaction concerning which he shall testify. That statute protects him only from the use against him of his testimony and any evidence to which it may lead. In our view the failure of the New Jersey statute to grant what has come to be called "transactional" immunity from prosecution makes it an inadequate basis for compelling an unwilling witness to incriminate himself.
As early as 1892, the Supreme Court fully considered and elaborately discussed this issue. Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110. After reviewing earlier state cases, some requiring transactional immunity and others holding that less comprehensive immunity satisfied the Fifth Amendment, the opinion of the court continued as follows:
"* * * In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates." 142 U.S. at 586, 12 S. Ct. at 206.
The Court used this explicit language in deciding that an immunity statute which arguably protected a witness only against the subsequent introduction of his testimony in evidence against him was constitutionally inadequate. The Court could have adopted this restrictive interpretation and confined itself to a narrow ruling that the statute was inadequate because it did not protect the witness from using the "fruits" of his testimony against him. The Court was presented with an argument that the questioned statute prohibited any later proof of facts elicited during the course of compelled testimony, even if the proof made no use of the compelled testimony. 142 U.S. at 558-559, 12 S. Ct. 195, 35 L. Ed. 1110. Supplemental Brief of Appellee at 16-18. But the Court neither adopted a broad interpretation of the statute nor stated whether such a statute would suffice. Instead, it elected to rule comprehensively that, beyond leaving the witness vulnerable to hurtful use of his testimony, the statute was inadequate in that the witness still might be prosecuted for some wrongdoing about which he had testified. Thus, though a narrower ruling might have been made, the Court used this case as a vehicle for deciding that nothing less than full transactional immunity from prosecution would suffice. That decision cannot properly be disregarded as inconsequential dictum, though that seems to be the view of the present appellee.
Four years after Counselman, the Court considered and sanctioned a new statute that required testimony under protection of a grant of full transactional immunity from prosecution. Brown v. Walker, 1896, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819. The Brown decision contains no implication that anything less than full transactional immunity would have sufficed. Indeed, the majority opinion quoted with approval the language of Counselman that the witness must be afforded "absolute immunity against future prosecutions for the offense to which the question relates," as well as immunity from hurtful use of his testimony. And four dissenting Justices took the position that not even a transactional immunity statute can empower the state to compel an unwilling witness to incriminate himself. 161 U.S. at 594, 16 S. Ct. 646, 40 L. Ed. 819.
Over the years since the Counselman and Brown decisions, Justice after Justice has restated the concept that transactional immunity from prosecution is the safeguard that is coextensive with the guarantee of the Fifth Amendment. For example, Mr. Justice Frankfurter, dissenting on another issue, pointed out that the "prosecutor's insistence upon disclosure which, but for immunity from prosecution, could be withheld is that for which alone the immunity is given." United States v. Monia, 1943, 317 U.S. 424, 447, 63 S. Ct. 409, 419, 87 L. Ed. 376, Mr. Justice Stewart has observed that "for more than half a century it has been settled that this [transactional immunity] statute confers immunity from prosecution coextensive with the constitutional privilege against self-incrimination * * *." Brown v. United States, 1959, 359 U.S. 41, 45-46, 79 S. Ct. 539, 543-545, 3 L. Ed. 2d 609. To the same effect, see the observation of Mr. Justice Butler in United States v. Murdock, 1931, 284 U.S. 141, 149, 52 S. Ct. 63, 76 L. Ed. 210.
Most recently, in Piccirillo v. New York, 1971, 400 U.S. 548, 91 S. Ct. 520, 27 L. Ed. 2d 596, Messrs. Justices Douglas, Brennan and Marshall explicitly, and Mr. Justice Black inferentially,*fn1 indicated that in their judgment a state must grant transactional immunity to a witness if, consistent with the privilege against self-incrimination, it is to be able, under pain of criminal contempt, to compel him to testify before a grand jury concerning any suspected wrongdoing. "Mere use immunity, which protects the individual only against the actual use of his compelled testimony and its fruits, satisfies neither the language of the Constitution itself nor the values, purposes, and policies that the privilege was historically designed to serve and that it must serve in a free country." 400 U.S. at 563, 91 S. Ct. at 528 (Brennan, J.). The other five Justices decided the case on another ground and avoided any indication of their views on this constitutional question.
The foregoing items from the record of what the Supreme Court has done and various Justices have said over almost eighty years seem to warrant the conclusion that it has become authoritative constitutional doctrine that no less than a grant of full transactional immunity can justify compelling a witness who has ...