“[w]e reiterate our adherence to this principle; except as the basis for a prosecution for perjury a witness’s immunized testimony may not be used against him”
How later courts described this case
- “[w]e reiterate our adherence to this principle; except as the basis for a prosecution for perjury a witness’s immunized testimony may not be used against him”
- witness held in civil contempt for refusing to testify; he was incarcerated until he purged the contempt or until the proceedings at which he did not testify were terminated; he took all possible action to get judicial reconsideration of the contempt decision; appellate review deemed appropriate even though the proceedings had terminated and the witness had been released from confinement
- reading Liddy as premised on fact that witness had been granted immunity
- prisoner on parole remains “in (3d Cir. 1977) (en banc). In Frumento, custody” for purposes of 28 U.S.C. § we noted that “an appeal is not moot 2254
Written by the judges who cited it.
The opinion
JAMES HUNTER, III, Circuit Judge,
concurring:
I concur in the majority’s affirmance of the district court’s order of contempt and confinement. I concur also in Part II of the majority opinion to the extent that it finds the legality of Pisciotta’s confinement justiciable; persons in Pisciotta’s position can, I think, present problems “capable of repetition, yet evading review.” I do not believe, however, that in reviewing the legality of Pisciotta’s confinement it is either necessary or proper for this court to decide the question of statutory and constitutional 1 interpretation that Pisciotta raises. I would affirm the order of the court below simply because neither here nor in the district court did Pisciotta raise any legal issue that could have had any bearing on the legality of his refusal to testify; that refusal, remaining legally unjustified, was therefore punishable by a contempt order.
By claiming that his uncertainty about the meaning of section 6002 with respect to future impeachment uses justified his refusal to testify, Pisciotta in effect asks this court to render an advisory opinion: no matter how we resolve the statutory and constitutional question Pisciotta raises, our resolution can have no impact on the outcome of the only issue before us, which is the legality of Pisciotta’s refusal to testify. That is, if we follow the excellent (but, I think, abstract) analysis of the majority opinion and hold that section 6002 forbids future impeachment uses, then we must conclude that Pisciotta had no fifth amendment claim at all; therefore, his refusal to testify was illegal. If, on the other hand, we hold that section 6002 and the fifth amendment permit future impeachment uses, then again we must conclude that Pisciotta had no fifth amendment claim and that his refusal to testify was illegal. In short, diametrically opposed results on the merits of the statutory and constitutional question raised by Pisciotta would not dif *545 fer in their effect upon his rights in this case. 2
The only possible conclusion, then, is that Pisciotta has failed to raise any legal argument that has any bearing on the decision of the issue before us — the legality of his refusal to testify. That failure leaves his refusal unjustified and therefore punishable. It is unnecessary for us to decide the irrelevant issue that Pisciotta did raise; indeed, because it entails the rendering of an advisory opinion, decision of that issue is improper. See, e.g., Local No. 8-6, Oil Workers Unions v. Missouri, 361 U.S. 363, 371 , 80 S.Ct. 391 , 4 L.Ed.2d 373 (1960) (issue not properly justiciable where decision either way cannot effect rights of parties).
Moreover, even if the argument raised by Pisciotta could in some abstruse way be considered part of this case, it could in no sense be considered ripe for judicial resolution. Whether Pisciotta wins a retrial, whether he will testify at that retrial, whether that testimony will diverge from the inculpatory, immunized testimony he apparently would have given at his confederates’ trial and — ultimately—whether the Government would have attempted to introduce that immunized testimony to impeach him at his retrial, were all conjectural matters when Pisciotta refused to testify. They remain conjectural. I see no reason to decide the statutory and constitutional question until the occurrence of those contingencies renders its resolution necessary to the disposition of a case. See, e.g., 13 C. Wright § A. Miller, Federal Practice & Procedure § 3532 (1975). Had Pisciotta testified as ordered, and had the Government later attempted to impeach him with the compelled testimony, the decision of the statutory and constitutional question he raises here would, of course, have been essential to the disposition of his objection to the Government’s action. Until such a case is presented, the question raised here will not be ripe.
. The majority interprets § 6002 to preclude future impeachment uses of immunized testimony, but it does so because of its conclusion that the fifth amendment requires that statutory reading.
. I can envision only one alternative to this view. If we were to hold that § 6002 permitted future impeachment uses but violated the fifth amendment for that reason, then Pisciotta’s refusal to testify would have had a valid grounding in the fifth amendment. This possibility seems foreclosed, however, by the holding, in Kastigar v. United States, 406 U.S. 441, 462 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972), that the protections of § 6002 are congruent with those of the fifth amendment.