In Re Corrugated Container Antitrust Litigation. Appeal of John Conboy, Deponent

CUMMINGS, Chief Judge,

dissenting.

For the reasons so ably presented in Judge Swygert’s majority panel opinion, 655 F.2d 748 (7th Cir. 1981), I cannot agree with the majority en banc opinion. I merely wish to add a few words to Judge Swygert’s prior opinion herein.

The en banc opinion faults both the panel opinion and the Second Circuit’s similar analysis in In re Corrugated Container Antitrust Litigation, Appeal of Fleischacker, 644 F.2d 70 (2d Cir. 1981), for failing to grasp that under 18 U.S.C. § 6002 only the deposition questions would be derived from Mr. Conboy’s earlier immune testimony, while any answers would come from his independent recollection. This is an arid distinction: it rests on an unduly restrictive reading of the statutory language and on a misconception about the effect of repetition of testimony.

Section 6002 prevents both state and federal prosecutors from using “testimony or other information compelled under [a Section 6002 grant of immunity] (or any infor *1160 mation directly or indirectly derived from such testimony or other information) * * * against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order [granting immunity].” The panel majority would have treated Mr. Conboy’s answers as falling within the category of “information directly or indirectly derived” from his immune testimony, where the questions were asked so as to afford Mr. Conboy the choice of (1) repeating his originally immunized answer, (2) adopting his immunized answer when it was repeated to him, or (3) affirming that the transcript of his immunized answer was his prior testimony. See note 2 supra.

The en banc majority admits that the questions asked of Mr. Conboy were “information directly or indirectly derived from [the immunized testimony],” but argues that the answers, no matter how closely they replicated the earlier responses, cannot be. No explanation is offered for giving the general word “information” in Section 6002 such a particularized meaning, but there seems to be an almost metaphysical notion that the mere repetition or acknowledgment by Mr. Conboy of his earlier testimony constitutes new and independent evidence.

In no case cited in the en banc majority’s discussion, pages 1154-1155 and note 14 supra, does a witness who had been granted immunity in one proceeding forfeit it simply by testifying in another proceeding. Thus United States v. Kuehn, 562 F.2d 427 (7th .Cir. 1977), does not suggest that “the defendant had created independent testimony by repeating his immunized testimony as a witness in another trial,” page 1154 supra. It makes two less controversial points: (1) that a state prosecutor, who began his investigations before federal immunity was granted and took the results to a grand jury without knowledge of the immunized testimony, did not use information “directly or indirectly derived” from the immunized testimony, 562 F.2d at 430 ; and (2) that the witness, by talking voluntarily to a newspaper reporter, had “created independent evidence legitimately available to the state prosecutor,” id. at 432 . United States v. First Western State Bank of Minot, 491 F.2d 780 (8th Cir. 1974), certiorari denied sub nom. Thompson v. United States, 419 U.S. 825 , 95 S.Ct. 42 , 42 L.Ed.2d 49 , holds only that defendants who had been granted transactional immunity for state grand jury proceedings could be prosecuted on federal charges if the federal prosecutors could show independent and untainted sources for their evidence. Repetition of testimony was not a problem since defendants had given no testimony in the interval between the state grand jury appearance and the federal criminal case. In United States v. Miranti, 253 F.2d 135 (2d Cir. 1958), defendants had never been granted immunity for their grand jury testimony and were therefore entitled to interpose the Fifth Amendment in subsequent proceedings where repetition of the earlier testimony was sought.

In contrast to these factually inapposite cases, Judge (now Justice) Stevens’ strong dictum in Patrick v. United States, 524 F.2d 1109 (7th Cir. 1975), is directly on point. There the Internal Revenue Service had approved a jeopardy assessment against the taxpayer based on his immunized grand jury testimony about his gambling activities and income. The taxpayer argued that forcing him to resort to a refund suit would burden-his Fifth Amendment rights. He would be put to a Hobson’s Choice: he must either repeat his grand testimony and lose his immunity or forego his refund claim. Judge Stevens’ answer to Mr. Patrick’s plight applies equally to Mr. Conboy’s: “[0]n the facts alleged by Patrick, such later testimony would be elicited only because the government could use the grand jury testimony as a basis for the assessment. Thus, any testimony elicited in the tax proceeding would be ‘information . . . indirectly derived from . . . testimony’ compelled under the original immunity grant and thus could not be used against Patrick in any criminal proceeding.” 524 F.2d at 1120 .

The method of the en banc majority is first to read the use immunity statute to afford only parlous and nugatory protection *1161 and then, of necessity, to find such protection an inadequate substitute for Fifth Amendment rights. In my opinion, the district court’s contempt order should be affirmed.