In Re Grand Jury Matter. Appeal of United States of America

*695 SLOVITER, Circuit Judge,

concurring in all except footnote 12.

I concur in all of Judge Rosenn’s opinion except for footnote 12. I write separately only because of the inclusion of that footnote.

I believe the issue of court awarded use-fruits immunity should not be reached in this case because no party requested the district court to award such immunity, nor did either party in its appellate brief or argument address the issue of whether the district court has such power or whether its use would be appropriate in the circumstances before us. 1 Indeed, as Judge Rosenn points out in his opinion, the government retreated in the trial court from its apparent willingness to promise use-fruits immunity, and promised only not to use the wife’s testimony directly against the husband. At 690. The government continues to adhere to this position on appeal. The only issue considered by the district court and the parties was the scope of the marital privilege.

In this posture of the case, I believe any suggestion that the district court might have inherent power to award use-fruits immunity to override the marital privilege is akin to an advisory opinion, and suffers from the objections which have been recognized as attending advisory opinions. See, e.g., United States v. Fruehauf, 365 U.S. 146, 157 , 81 S.Ct. 547, 553 , 5 L.Ed.2d 476 (1961). Also, neither the government nor the counsel for the witness have been heard on the practical problems which the court’s assumption of such power might present. Thus, I see no good reason to reach to address a difficult legal issue in a vacuum, particularly when the conclusion is, at least for me, far from clear.

The legal difficulties with the course which Judge Rosenn suggests are formidable. Congress has provided for a grant of immunity when a witness invokes his or her privilege against compulsory self-incrimination. 18 U.S.C. §§ 6001-05 . It has made no comparable provision when a witness invokes one of the other testimonial privileges protected under Federal Rule of Evidence 501. We do not know whether the omission was deliberate. It might be possible to argue that some of the common law privileges protected by that Rule are designed to protect against disclosure itself rather than use. Many of the common law privileges, such as the doctor-patient, attorney-client, and priest-penitant privileges, are designed to protect the relationship from the mistrust and lack of candor which might follow were disclosure of confidential communications compelled. See Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906, 912 , 63 L.Ed.2d 186 (1980). If so, use-fruits immunity would not adequately substitute for the compulsion of disclosure. One could debate whether the marital privilege stands in the same class as the above-mentioned privileges. In United States v. Doe, 478 F.2d 194 (1st Cir. 1973) the court *696 held that the government’s agreement not to prosecute the non-witness spouse satisfied the purpose of the privilege, but in that case the government itself granted transactional immunity and the court merely ordered the witness spouse to testify. In In re Snoonian, 502 F.2d 110 (1st Cir. 1974), the government had agreed to provide use-fruits immunity to the spouse and had also advised the court that the non-witness spouse was not a target, causing the court to denominate the threat to the spouse as “speculative”. The situation here is not analogous, since the government has conceded that the husband is in fact a target.

Since the government is unwilling to grant either transactional immunity or the lesser use-fruits immunity in this case, I am concerned that Judge Rosenn’s suggestion may be construed as an invitation for the courts to intrude into an area which should be more appropriately left to prosecutorial discretion. A decision as to whom to immunize in order to elicit testimony inculpatory of anothér has traditionally been considered part of the prosecutorial, not judicial, function.

I share Judge Adams’ view that the decisions of this court in Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), and United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), cert. denied, 441 U.S. 913 , 99 S.Ct. 2014 , 60 L.Ed.2d 386 (1979), where we affirmed the inherent power of the court to immunize a witness whose testimony is essential to an effective defense, stemmed from the need to protect the due process rights of a defendant. No comparable right is suggested in this case or in this situation. Instead this case merely illustrates the dilemma which the prosecutor often faces in selecting which defendant to prosecute when, for reasons of public policy, certain testimony is shielded by a privilege.

I do not suggest that a court has no inherent power to grant immunity in appropriate circumstances, nor am I willing at this time to hold that it does. It is possible that it would be more appropriate to wait for Congress to decide that the same strong public interest which impelled it to provide for statutory immunity when testimony is needed of a witness who claims the Fifth Amendment privilege warrants a similar statute when a witness claims marital privilege. There may be compelling arguments which would persuade us that it is appropriate for the court to act even in the absence of such a statute. If so, they can await resolution until the appropriate case.

. The only reference at all by the government in its appellate brief to any hearing is in its suggestion that “the factual questions regarding the applicability of the marital privilege” could be decided at a Kastigar hearing at which the court could determine if the information used to indict the non-witness spouse was tainted. Government Brief at 15. This is on its face not the issue referred to in the text above, or in Judge Rosenn’s footnote 12.