Respondents Brief — Dunn v. United States

Supreme Court brief1979

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FOR ARGUMENT

Sepreme Coert, 0. &

| FILED

No. 77-6949 MAR & 1979

* |} MICHAEL ROBAK, JR.CLERK

Ju the Supreme Court of the Unit a

OCTOBER TERM, 1978

ROBERT DUNN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

WILLIAM C. BRYSON

Assistant to the Solicitor General

SIDNEY M. GLAZER

KATHLEEN A. FELTON

Attorneys

Department of Justice

Washington, D.C. 20530

CI CRUE Sistine cee

FE avastacretcitaehicsininin Rea

I I oceiscc ecsiiinccccsiniaumaiactitias

Constitutional and statutory provisions in-

Baa R RRM Se RR BL HOS 9 8 Dey See HON lB

TERI is tsetse ecinsid. Lidscnticemneteameaie oiciatas

ey. ec GNNNE ok

ao gece

I. The proof established, and petitioner

was convicted of, the offense charged in

hb SS. cs te

A. The September 30 “Canges State-

ment” was made in a proceeding

aay 366 Ge

B. Petitioner’s conviction cannot be

sustained on the theory that it was

the product of a non-prejudicial

VER ies

1. The indictment was not

LE a aS NATE COR sc OPO

2. There was no variance between

the charges in the indictment

and the proof at trial _............

II. Petitioner’s immunized grand jury tes-

timony was properly introduced against

him in his false declarations prosecu-

I sicciccchsincsclicolesontiusteonppatacnitaone anced

Argument—Continued

The Fifth Amendment permits the

use of immunized testimony to

prove the falsity of subsequent,

non-immunized testimony ...........---

FesbnR ei ii ccsciconsesniinian

A grant of immunity must be

as broad as, but need not be

broader than, the privilege it

GGIROOD — oisescscpcetcnnestcisivsovenatocrnse

The privilege, and thus the im-

munity granted in its place,

ordinarily does not extend to

crimes the witness may commit

fn Ge TRIO aneencctrrstsecticeichsonens

Petitioner’s receipt of immu-

nity did not bar the use of his

testimony to prove the falsity

of his subsequent sworn state-

ROTI . ccicctissipnticnnatcntpeneenpscnstommunnitnes

The federal immunity statute does

not prohibit the use of truthful,

immunized testimony to prove

the falsity of subsequent, non-

immunized testimony ..................----

1. The legislative history of the

immunity statute shows that

Congress intended to provide

only such immunity as is con-

stitutionally required ................

Page

Conclusion

III

Argument—Continued Page

2. Prosecutions under Section 1623

were intended to be among the

prosecutions for “giving a false

statement” under the immunity

Cases:

enh as eel 64

PEPE O Ree en Hele Oe OD OPES OAR OO 69

CITATIONS

Bain, Ex parte, 121 U.S. 1 .............. 28, 29, 31, 32

Bartell v. United States, 227 U.S. 427...... 32 ©

Berger v. United States, 295 U.S. 78........ 31, 32

Bronston v. United States, 409 U.S. 352.. 21

Brown v. Walker, 161 U.S. 591 ............ 41, 43, 48

Butler v. McKey, 138 F.2d 373, cert. de-

i NS I a aa 21

Cameron v. United States, 231 U.S. 710.. 50

Cole v. Arkansas, 333 U.S. 196 ................ 34

Counselman v. Hitchcock, 142 U.S. 54’... 52

De Jonge v. Oregon, 299 U.S. 353 _........... 34

Dunbar v. United States, 156 U.S. 185...... 32

Eaton v. City of Tulsa, 415 U.S. 697 ...... 34

Ely Valley Mines, Inc. v. Lee, 385 F.2d

aia a 21

Gaither v. United States, 413 F.2d 1061.. 31

Gardner v. Broderick, 392 U.S. 278 ........ 48

Garner v. Louisiana, 368 U.S. 157 .......... 34

Giordanello v. United States, 357 U.S.

BERET kt re rc on 33-34

Glickstein v. United States, 222 U.S. 139.. 39, 43,

62, 63

Grand Jury Proceedings, In re, 509 F.2d

ID aacicliataceiee a cn ee SIS ee a 49

Hamling v. United States, 418 U.S. 87 .... 33

: V

Cases—Continued Page Cases—Continued Page

Heike v. United States, 227 U.S. 1381 ....-- 41, 48,

54, 62

Heisler v. United States, 394 F.2d 692...... 30, 31

Hoffman v. United States, 341 U.S. 479.... 41, 42

Kastigar v. United States, 406 U.S. 441.. 41, 42,

51, 52, 54, 58

Kotteakos v. United States, 328 U.S. 750.. 31

Kronick v. United States, 343 F.2d 436.... 50

Marchetti v. United States, 390 U.S. 39.... 41, 43,

44, 45, 46

Mason v. United States, 244 U.S. 362...... 41, 42

Murphy v. Waterfront Commission, 378

ie RG meni: 42-43, 47, 51, 52, 54, 58, 60

People v. Woodson, 309 Mich. 391, 15

PR EE eile nendenseomnenenies 54

Piemonte v. United States, 367 U.S. 556.. 48

Pillo, In re, 11 N.J. 8, 93 A.2d 176 .......... 42

Regina v. Boyes, 121 Eng. Rep. 730 -....... 41

Rogers v. United States, 340 U.S. 367...... 41, 50

Russell v. United States, 369 U.S. 749...... 28, 32

Salinger v. United States, 272 U.S. 542... 29

Shotwell Manufacturing Co. v. United

TE ) aN | | insane eee een eens 12

Smith v. United States, 337 U.S. 187 -..... 48

Stewart v. United States, 395 F.2d 484.... 29-30

Stirone v. United States, 361 U.S. 212...... 28, 29

Ullmann v. United States, 350 U.S. 422... 48

Uniformed Sanitation Men Ass’n v. Com-

missioner of Sanitation, 392 U.S. 280.... 48

United Federation of Postal Clerks v.

Blount, 325 F. Supp. 879, affirmed, 404

Oe SE RS SS SOE noe SA 21

United States v. Addonizio, 451 F.2d 49,

cert. denied, 405 U.S. 936 -.................... 34

United States v. Alter, 482 F.2d 1016...... 49, 61

United States v. Antonelli, 489 F.2d 1068.. 31

United States v. Anzalone, 555 F.2d 317.. 39,

57-58

United States v. Apfelbawm, 584 F.2d

1264, petition for cert. pending, No. 78-

972 ichihsaacclatucaaSaldapsiadpst elie aimee liad tik at horas 39, 56

United States v. Berardelli, 565 F.2d 24.. 55, 56,

57, 61

United States v. Birrell, 470 F.2d 113...... 21

United States v. Bryan, 339 U.S. 323....48, 62, 63

United States v. Burr, 25 F. Cas. 38 (No.

PIED sichsessertnitaecenttnnca miele 42

United States v. Cirami, 510 F.2d 69,

cert. denied, 421 U.S. 964 0.002000... 29, 31

United States v. Critchley, 353 F.2d 358.. 30

United States v. D’Amato, 507 F.2d 26.... 21

United States v. Dawson, 516 F.2d 796,

cert. denied, 423 U.S. 855 00000... 29, 31

United States v. Debrow, 346 U.S. 374.... 34

United States v. Denny, 165 F.2d 668,

cert. denied, 333 U.S. 844 WW... 30

United States v. Evans, 398 F.2d 159 ...... 31

United States v. Freed, 401 U.S. 601 ...... 43, 44,

45, 46, 50

United States v. Fruchtman, 421 F.2d

1019, cert. denied, 400 U.S. 849 30

United States v. Gibson, 513 F.2d 978 ...... 34

United States v. Haldeman, 559 F.2d 31,

cert. denied, 431 U.S. 933 21

United States v. Harvey, 428 F.2d 782... 29

United States v. Hockenberry, 474 F.2d

pp USAR s eaten SDs NERA ea ed 39

United States v. Holt, 529 F.2d 981 29

United States v. Housand, 550 F.2d 818,

cert. denied, 431 U.S. 970............ 49, 55, 56, 57

VI VII

Cases—Continued Page

United States v. Huff, 512 F.2d 66 ........ 30 Constitution, statutes and rules—Continued Page

United States v. Kahan, 415 U.S. 239...... 40) 5 U.S.C. 2903 (C) (2) --------neeeeeeeeeeeneeneeeee aa

United States v. Kline, 366 F. Supp. 994.. 21 18 USC, 1621 20, 21, 22, 65, 66

United States v. Krogh, 366 F. Supp. 18 U.S.C, 1623 nn nnneen erence passim

St ES ein lesa PRD rane 23 a Me PRED oS oes passim

United States v. Mandujano, 425 U.S. 18 U.S.C. 1962 nn nneeennne erence 20

<r Cee ere 88 39, 42 BD Wiis I aecsceloeceannass 4, 5, 17, 37, 57, 58, 63

United States v. McCrane, 527 F.2d 906, 21 U.S.C. 844 nner 7-8

cert. denied, 426 U.S. 906 -.-...-.0.----------- 29 Federal Rules of Criminal Procedure:

United States v. Moss, 562 F.2d 155, cert. DY OND ee 33

denied, 435 U.S. 914 —-----nnnesesessoeeeseeoe 40 meee F808) (4) 22

United States v. Neff, 525 F.2d 361 ........ 30 Settion 47 22

United States v. Patrick, 542 F.2d 381, meas TRS 31

cert. denied, 480 U.S. 931 -..... 39, 55, 56, 57, 61

United States v. Prior, 546 F.2d 1254 -..... 29

United States v. Schrenzel, 462 F.2d 765,

cert. denied, 409 U.S. 984 .............-..---- 31

United States v. Stassi, 583 F.2d 122 -..... 22

United States v. Tramunti, 500 F.2d 1334,

cert. denied, 419 U.S. 1079 ................ 40, 48, 63

United States v. Washington, 431 USS.

BO case Ronn Serre FOES, eter Meee Hae 38

United States v. Watkins, 505 F.2d 545.. 49

United States v. Williams, 341 U.S. 58.... 21

United States v. Wong, 431 U.S. 174 ...... 38

Constitution, statutes and rules:

United States Constitution, Fifth Amend-

RE OSS A SOT RT NTT OTT passim

Organized Crime Control Act of 1970,

Pub. L. No. 91-452, 84 Stat. 922 et

seq.:

Section 201(a), 84 Stat. 927 -........... 58

Section 401(a), 84 Stat. 932-933 __... 24, 64

Miscellaneous:

Comment, The Federal Witness Immunity

Acts in Theory and Practice: Treading

the Constitutional Tightrope, 72 Yale

Bs I IE ia edie ceceiect winanin 42

115 Cong. Rec. 5879 (1969) 00. 60

115 Cong. Rec. 5880 (1969) —0..000 oe. 65

116 Cong. Rec. 35291 (1970) -2000 eo... 60, 61

116 Cong. Rec. 35292 (1970) ...0.. 66

Goldstein, The State and the Accused:

Balance of Advantage in Criminal Pro-

cedure, 69 Yale L.J. 1149 (1960) _...... 30

H.R. Rep. No. 91-1549, 91st Cong., 2d

SEG ,. ) ae eee eae ......20, 59, 62, 65

Korman, The Use of Testimony Compelled

Under a Grant of Use Immunity, 44

Brooklyn L. Rev. 935 (1978) 00... 48

L. Levy, Origins of the Fifth Amendment

(1968)

EEE OO ew

VIII

Miscellaneous—Continued Page

Measures Relating to Organized Crime:

Hearings on S. 30, ete. Before the Sub-

comm. on Criminal Laws and Proce-

dures of the Senate Comm. on the Judi-

ciary, 91st Cong., 1st Sess. (1969) ....24, 25, 59

8 Moore’s Federal Practice (2d ed. 1978).. 29

S. 30, 91st Cong., Ist Sess. (1969) -......... 24, 60

S. 1861, 91st Cong., 1st Sess. (1969) -..... 25

S. Rep. No. 91-617, 91st Cong., 1st Sess.

SINNED. iiineniscesdetngeankenacn 21, 24, 26, 59, 60, 62, 65

VIII J. Wigmore, Evidence (McNaughton

SS ia ia cine ectieannenoes 42,48

Il Working Papers of the National Com-

mission on Reform of Federal Criminal

BE ERIE ecient eenetenene 59, 60

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-6949

ROBERT DUNN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (A. 70-80) is

reported at 577 F.2d 119.

JURISDICTION

The judgment of the court of appeals was entered

on June 5, 1978. The petition for a writ of certiorari

was filed on June 20, 1978, and was granted on

December 11, 1978 (A. 82). The jurisdiction of this

Court rests upon 28 U.S.C. 1254(1).

(1)

QUESTIONS PRESENTED

1. Whether the sworn statement that was alleged

to be inconsistent with petitioner’s grand jury testi-

mony was made in a “proceeding * * * ancillary to a

court,” within the meaning of 18 U.S.C. 1623(c).

2. Whether a witness who has testified before a

grand jury under a grant of immunity and subse-

quently gives contradictory non-immunized testimony

in a proceeding before or ancillary to a court may

have his immunized testimony used against him in a

false declarations prosecution based on the inconsis-

tent statements theory of 18 U.S.C. 1623(c).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Consti-

tution provides, in pertinent part:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, * * * nor

shall be compelled in any criminal case to be a

witness against himself * * *.

18 U.S.C. 1623 provides:

(a) Whoever under oath (or in any declara-

tion, certificate, verification, or statement under

penalty of perjury as permitted under section

1746 of title 28, United States Code) in any pro-

ceeding before or ancillary to any court or grand

jury of the United States knowingly makes any

false material declaration or makes or uses any

other information, including any book, paper,

document, record, recording, or other material,

knowing the same to contain any false material

declaration, shall be fined not more than $10,000

or imprisoned not more than five years, or both.

(b) This section is applicable whether the con-

duct occurred within or without the United

States.

tion of this section alleging that, in any proceed-

ings before or ancillary to any court or grand

jury of the United States, the defendant under

oath has knowingly made two or more declara-

tions, which are inconsistent to the degree that

one of them is necessarily false, need not specify

which declaration is false if—

(1) each declaration was material to the

point in question, and

(2) each declaration was made within the

period of the statute of limitations for

the offense charged under this section.

In any prosecution under this section, the falsity

of a declaration set forth in the indictment or

information shall be established sufficient for

conviction by proof that the defendant while un-

der oath made irreconcilably contradictory decla-

rations material to the point in question in any

proceeding before or ancillary to any court or

grand jury. It shall be a defense to an indict-

ment or information made pursuant to the first

sentence of this subsection that the defendant at

the time he made each declaration believed the

declaration was true.

(d) Where, in the same continuous court or

grand jury proceeding in which a declaration is

made, the person making the declaration admits

such declaration to be false, such admission shall

bar prosecution under this section if, at the time

the admission is made, the declaration has not

substantially affected the proceeding, or it has

not become manifest that such falsity has been or

will be exposed.

(e) Proof beyond a reasonable doubt under

this section is sufficient for conviction. It shall

not be necessary that such proof be made by any

particular number of witnesses or by documen-

tary or other type of evidence.

18 U.S.C. 6002 provides:

Whenever a witness refuses, on the basis of

his privilege against self-incrimination, to testify

or provide other information in a proceeding be-

fore or ancillary to—

(1) a court or grand jury of the United

States,

(2) an agency of the United States, or

(3) either House of Congress, a joint com-

mittee of the two Houses or a commit-

tee or a subcommittee of either House,

and the person presiding over the proceeding

communicates to the witness an order issued

under this part, the witness may not refuse to

comply with the order on the basis of his privi-

lege against self-incrimination; but no testimony

or other information compelled under the order

(or any information directly or indirectly de-

rived from such testimony or other information)

may 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.

STATEMENT

1. On June 16, 1976, petitioner testified before a

federal grand jury under a grant of immunity (see

18 U.S.C. 6002). The grand jury was investigating

illegal drug activity at the Colorado State Peniten-

tiary, where petitioner had been confined (Tr. 48-

51). Petitioner’s testimony implicated a fellow in-

mate, Phillip Musgrave, in various drug-related of-

fenses at the penitentiary. Specifically, petitioner

testified that he obtained drugs in the penitentiary

from Musgrave (A. 27) ; that he made telephone calls

to one of Musgrave’s girl friends and gave her coded

messages concerning Musgrave’s drug activities (A.

29-30); and that Musgrave subsequently gave him a

list of chemicals used to manufacture methampheta-

mine, a controlled substance, and asked him to obtain

the chemicals for him (A. 32; Tr. 53). Following

petitioner’s testimony, the grand jury indicted Mus-

grave and others on felony charges of conspiring to

manufacture and distribute methamphetamine (Tr.

45, 54).

Approximately three months later, on September

30, 1976, petitioner went to the office of Michael

Canges, Musgrave’s attorney, where he gave a state-

ment under oath in which he recanted his grand jury

testimony implicating Musgrave (A. 33-42). He testi-

fied at that time that Musgrave had never given him

drugs in the penitentiary (A. 37); that he had not

given Musgrave’s girl friend any telephone messages

regarding Musgrave’s drug activities (A. 38); and

that Musgrave had never given him a list of chemi-

cals to obtain for any purpose (A. 39). Musgrave’s

attorney filed a transcript of petitioner’s statement in

the district court where Musgrave’s prosecution was

pending and moved to dismiss the indictment, alleging

that it was based on perjured testimony (Tr. 56).

The statement was entitled an “affidavit,” although it

was submitted to the court in transcript form (ibid.).

On October 21, 1976, an evidentiary hearing on

Musgrave’s motion was held in the district court.

Petitioner testified at the hearing and adopted the

sworn statement he had given at Canges’ office. On

examination by Canges, petitioner testified as follows

(A. 46):

Q. At that time did I ask you certain questions

and did you make certain answers to those

questions?

Yes, sir, I did.

And at that time did you tell the truth, the

whole truth, and nothing but the truth?

I did, sir.

Q. Mr. Dunn, have you had occasion to review

that certain transcript or affidavit of the con-

versation or colloquy that transpired on Sep-

tember 30th?

A. Yes, sir, all but about the last five or ten

pages.

Q. And referring to that affidavit—

MR. CANGES: For the record, that would be

the affidavit that was tendered to this Court,

a copy of which has been tendered to both the

United States and to co-counsel.

Q. Mr. Dunn, with reference to that affidavit,

and now having had the occasion to again re-

view it, are the contents of that affidavit

true?

Yes, sir.

Q. With reference to your testimony before the

grand jury, as I understand it, your testi-

mony encompassed acts over a period of some

several years with reference to certain state-

ments that you made concerning alleged dis-

tribution of methamphetamines on behalf of

Mr. Musgrave and other co-defendants, am I

correct?

Yes, sir.

Was what you told the grand jury true?

No, sir.

Was any part of it true?

Yi © P

Possibly ten percent.

This testimony was volunteered by petitioner, who

had received no grant of immunity with respect to

any statement he made at the hearing.

As a result of petitioner’s sworn statement and his

testimony at the evidentiary hearing, the government

reduced the charges against Musgrave to possession

of methamphetamine, a misdemeanor (see 21 U.S.C.

844) (Tr. 76-77). Musgrave agreed to plead guilty

to that charge (7bid.).

2. Petitioner was then indicted in the United States

District Court for the District of Colorado for making

false declarations in a proceeding before or ancillary

to a grand jury or a court, in violation of 18 U.S.C.

1623 (A. 3-11). The indictment charged that his

testimony before the grand jury was inconsistent

with various statements he had made “on September

30, 1976, while under oath as a witness in a pro-

ceeding ancillary to United States v. Musgrave, et al.,

* * * to the degree that one of said declarations was

false and known by him to be false when made” (A.

4). In response to petitioner’s motion for a bill of

particulars, the government indicated it would rely

on the inconsistent statements theory authorized by

subsection (c) of Section 1623 in proving its case

(A. 17-18). The government’s reliance on the incon-

sistent statements theory was also made clear to the

trial court and to the jury (A. 56-58). At trial the

government introduced the relevant portions of peti-

tioner’s grand jury testimony, his sworn statement to

Musgrave’s attorney, and his testimony at the evi-

dentiary hearing (A. 72).

Petitioner objected to the introduction of his grand

jury testimony on the ground that the use of that

testimony would violate the grant of immunity that

he had been given prior to testifying before the grand

jury (Tr. 41). He objected also to the introduction

of the transcript of the October 21 evidentiary hear-

ing on various grounds including relevance (Tr. 81).

The court overruled both objections (Tr. 41, 86).

At the close of the government’s case, petitioner

moved for judgment of acquittal on all counts, again

arguing that his testimony before the grand jury

could not be used to establish the corpus delicti of a

false declarations prosecution (Tr. 96). He also

moved for judgment of acquittal on the ground that

the September 30 statement in Canges’ office was not

made in a proceeding ancillary to or before a federal

court or grand jury (Tr. 97). The court denied the

motion, ruling that petitioner’s grand jury testimony

could properly be used to prove perjury (Tr. 107)

and that the September 30 statement was made in a

proceeding ancillary to a grand jury, at least as of

the time he reaffirmed that statement at the October

21 hearing in district court (Tr. 108-109).

In summation, petitioner’s counsel argued to the

jury that although the September 30 statement was

made under oath, it was not made in a proceeding

ancillary to a grand jury, but instead was merely “a

statement made to a private attorney that had some

bearing on this case” (Tr. 151). The prosecutor

responded that the September 30 statement was made

in a proceeding ancillary to a court because it was

made in connection with the Musgrave prosecution

and because it was made the subject of the October 21

evidentiary hearing in district court (Tr. 167).

The court instructed the jury that it had to find

that petitioner’s declarations were made in a proceed-

ing before or ancillary to a court (Tr. 179). The

court, however, was not requested by either party to

define those terms, and it did not do so.’ The jury

returned a verdict of guilty on three of the five counts

in the indictment (A. 72). Petitioner was sentenced

to concurrent five-year terms of imprisonment on each

count (S. Tr. 19).’

3. On appeal, petitioner contended that the sworn

recantation given in Canges’ office could not form the

basis for a false declarations prosecution under 18

U.S.C. 1623, and that, in any event, the prosecution

could not use petitioner’s immunized grand jury testi-

mony in a false declarations prosecution based upon

an inconsistent statements theory.

As to the first contention, the court of appeals

agreed with petitioner that his sworn statement in

Canges’ office on September 30, 1976, was not a state-

ment “in any proceeding before or ancillary to any

court or grand jury” within the meaning of Section

1623 (A. 75). Nevertheless, the court held that peti-

tioner’s subsequent affirmation of the recantation dur-

ing the hearing on Musgrave’s motion to dismiss on

October 21, 1976, could sustain the prosecution. AlI-

1 Petitioner objected to the court’s use of the phrase “in

any proceeding before or ancillary to a court or jury,” but

only because it suggested that the jury “may select certain

statements which may have been made in a proceeding

ancillary to or before a U.S. Court or grand jury proceeding,

and suggests that not all statements or declarations need to be

made in any such proceeding” (Tr. 116-117).

2“S Tr.” refers to the transcript of the sentencing hearing

on May 23, 1977. It is identified as Volume V of the record in

the court of appeals.

though the indictment specified September 30 as the

date of the ancillary proceeding rather than October

21, the court of appeals concluded that this discrep-

ancy constituted simply a variance between the indict-

ment and the proof at trial. The variance was not

fatal in this case, the court held, because petitioner’s

testimony in the October 21 hearing was “inextricably

related” to his September 30 statement (A. 76), and

he could have anticipated that the evidence of his

testimony at the October 21 hearing would be pre-

sented against him at trial (ibid.).

As to the second contention, the court of appeals

held that it was not error for the government to use

petitioner’s immunized grand jury testimony against

him. The court stated that although truthful testi-

mony given under immunity cannot be used to in-

criminate the witness for crimes about which he

testifies, perjured testimony is not protected by the

grant of immunity and may be used to prove the

witness’s perjury or false declarations (A. 77-78).

The court also accepted the proposition that im-

munized testimony may not be used to establish the

corpus delicti of an inconsistent declarations prosecu-

tion without a prior showing that the immunized

testimony is false (A. 79). The court found, however,

that petitioner’s “subsequent testimony in his Canges

affidavit and in the Musgrave motion hearing not

only [was] inconsistent with his immunized grand

jury testimony, but, significantly, contained [peti-

tioner’s| admission that he had in fact testified falsely

before the grand jury” (ibid.; emphasis in original).

The court concluded that petitioner’s “unequivocal

admission that his immunized testimony before the

grand jury was false justified the use of such im-

munized testimony to establish the corpus delicti of

the present prosecution” (A. 80). Petitioner had

“orossly abused” the grant of immunity, the court

reasoned, and his recantation “in legal effect left him

in no better position than he would have been in had

the Government formally withdrawn its offer of im-

munity before he testified before the grand jury”

(ibid., citing Shotwell Manufacturing Co. v. United

States, 371 U.S. 341, 349-350 (1963) ).

SUMMARY OF ARGUMENT

It is clear in this case that petitioner lied under

oath, either before the grand jury or in his September

30 statement. It is also clear that his false testimony

has adversely affected the administration of justice,

either by falsely accusing Musgrave before the grand

jury or by falsely exonerating him in a manner that

resulted in a substantial reduction of the charges

against him. Petitioner contends, however, that his

conviction for false swearing should be overturned

because his September 30 statement was not made in

a proceeding covered by the false declarations statute

and because his immunized grand jury testimony was

improperly used to prove that he lied, either before

the grand jury or in his subsequent statement on

September 30.

1. The false declarations statute, 18 U.S.C. 1623,

proscribes the making of false statements under oath

“before or ancillary to any court or grand jury.” A

violation of the statute can be established without the

need to prove that a particular statement is false if

the prosecution can show that the defendant made at

least two sworn statements that are so clearly incon-

sistent that at least one of them must be false. See

18 U.S.C. 1623(c). The government in this case

charged and proved that petitioner’s testimony before

the grand jury was irreconcilably inconsistent with

his September 30 statement. Petitioner’s grand jury

testimony was clearly covered by the statute. The

first question presented by the case is whether his

September 30 statement was also within the reach of

the statute.

Petitioner’s September 30 statement was a sworn —

statement taken by Musgrave’s lawyer in connection

with the criminal action against Musgrave, whom

petitioner had implicated before the grand jury. The

statement was submitted in the form of an affidavit

to the district court in support of a motion to dismiss

the indictment against Musgrave. Petitioner subse-

quently testified in an evidentiary hearing on the

motion to dismiss, and he affirmed the truth of his

September 30 statement at that time.

Section 1623 does not define the term “proceeding

* * ancillary to any court,” but the legislative

history of the statute suggests that the term was

included in the statute to bring within the reach of

the statute statements such as affidavits, depositions,

and certificates prepared for use in connection with a

court proceeding. The September 30 proceeding clear-

ly fit within that description. Petitioner’s statement

was taken in connection with the criminal proceeding

against Musgrave and for use in that proceeding, a

use in which petitioner actively participated by testi-

fying at the October 21 evidentiary hearing and re-

affirming the truth of his sworn statement. Accord-

ingly, petitioner’s September 30 statement was made

in a proceeding ancillary to a court.

2. We do not agree with the court of appeals that

if the September 30 statement was not made in a pro-

ceeding ancillary to a court, petitioner’s conviction

ean nonetheless be affirmed. The court of appeals

noted that the October 21 hearing was indisputably a

proceeding “before * * * a court” within the meaning

of Section 1623 and that petitioner’s adoption of the

September 30 statement at that time subjected him to

prosecution for making inconsistent declarations be-

fore the grand jury and at the October 21 hearing.

From that premise, the court concluded that there

was simply a non-prejudicial variance in this case be-

tween the charge in the indictment and the proof at

trial. In our view, this case presents neither a vari-

ance nor, as petitioner contends, an impermissible

amendment of the indictment, because the charge in

the indictment, the government’s theory at trial, and

the jury’s verdict were all based on an inconsistency

between petitioner’s grand jury testimony and his

September 30 statement. The fact that the proof also

showed that petitioner made an inconsistent statement

at the evidentiary hearing on October 21 cannot sup-

port his conviction, however, since the conviction was

not based on that charge. Therefore, if the Court dis-

agrees with our contention that the September 30

statement was made in a proceeding ancillary to a

court, we submit that petitioner’s conviction cannot

be upheld on the ground employed by the court of

appeals.

II.

We also disagree with the court of appeals in its

analysis (although not its disposition) of the sec-

ond question presented by this case: whether peti-

tioner’s immunized grand jury testimony was prop-

erly used to prove that he lied under oath, either

before the grand jury or subsequently in his Septem-

ber 30 sworn statement. The court of appeals held

that because petitioner had stated that his grand jury

testimony was false, it could be used under the theory

that false immunized testimony is unprotected and

may be used for any purpose. The problem with this

analysis is that under the inconsistent declarations

theory of proof used at trial, a conviction could have

rested on a finding that petitioner’s grand jury testi-

mony was true and his subsequent sworn statement

false. The grand jury testimony was therefore not

used for its falsity, and the jury’s verdict did not

establish that it was false. For that reason, petition-

er’s conviction can stand only if his grand jury testi-

mony could properly be used at trial even if it were

truthful.

1. It is our basic submission that the scope of the

immunity acquired when a witness is compelled to

testify over a claim of privilege is precisely =

ent with the scope of the privilege. Since the privi-

lege did not entitle petitioner to refuse to testify on

the ground that truthful testimony might be used

against him in the event he subsequently decided to

give false, inconsistent testimony, he acquired no im-

munity from such use of his compelled testimony.

After a valid claim of the privilege against com-

pulsory self-incrimination, the government can compel

a witness to testify by granting him immunity. In

order to supplant the privilege, the immunity granted

must be as broad as the privilege it displaces, but it

need not be any broader. It is therefore necessary to

determine the scope of the privilege at the time the

witness’s testimony is compelled in order to determine

the scope of the immunity that is conferred.

The privilege protects a witness against being com-

pelled to give testimony that subjects him to real and

substantial risks of incrimination; it does not pro-

tect him against risks that are speculative or remote.

In particular, the privilege ordinarily does not protect

against the danger of incrimination for crimes the

witness may choose to commit in the future. In this

case, petitioner’s privilege against compulsory self-

incrimination entitled him to refuse to testify about

the drug offenses that the grand jury was investi-

gating until he was given a grant of immunity in

sive

exchange for his testimony. Similarly, if petitioner

had previously given a false sworn statement about

the matters that were the subject of the grand jury

questioning, he could validly have asserted his privi-

lege not to testify because of the risk that his truthful

testimony before the grand jury would generate evi-

dence that could be used against him in a prosecution

for false swearing on the prior occasion. But if he

had asserted his privilege on the ground that his

grand jury testimony would be incriminating if he

should later choose to give materially inconsistent

testimony, his claim would not have been upheld. The

use of the privilege in that context would serve simply

to give the witness increased freedom to perjure him-

self in the future, an interest the privilege plainly

was not designed to protect.

Because petitioner could not have made a valid

assertion of the privilege with respect to a possible

future act of false swearing, the immunity he was

granted to displace the privilege does not protect him

from the use of his testimony to prove that he made

a false declaration, either before the grand jury or

in a subsequent sworn statement. The Fifth Amend-

ment therefore does not prohibit the use of petitioner’s

immunized grand jury testimony to prove the false

declarations offense charged in this case.

2. The federal immunity statute, 18 U.S.C. 6002,

does not prohibit the use of petitioner’s grand jury

testimony in this case. The statute, by its terms,

permits the use of immunized testimony in any prose-

cution for “perjury” or “giving a false statement,”

the latter of which plainly includes prosecutions for

false declarations before a grand jury or a court.

Petitioner’s contention that the statute should be con-

strued to exclude false declarations prosecutions based

on the inconsistent declarations theory of proof is un-

supported either by the language of the statute or its

legislative history.

Petitioner argues that the language of the statute

suggests a congressional intention to prohibit the use

of immunized testimony in all cases except those in

which the witness is charged with lying in the course

of his immunized testimony or with violating the

immunity order. The legislative history of the im-

munity statute, however, clearly shows that it was

designed to confine the scope of the immunity to that

required by the Constitution, and no more. The

legislative materials further show that the statutory

language on which petitioner relies was included not

to limit the uses of immunized testimony more strictly

than the Constitution permits, but simply out of cau-

tion, so that the statute would not be construed to

prohibit the use of immunized testimony for the

listed purposes.

The same policies that underlie the “perjury” ex-

ception to the use immunity statute apply as well to

the use of immunized testimony in inconsistent decla-

rations prosecutions. Perjury under a grant of im-

munity renders the compelled testimony worthless to

the grand jury, and barring the government from

using a witness’s immunized testimony to prove that

it is false would permit grand jury witnesses to lie

with impunity and chus to undercut the investigative

function of the grand jury. Similarly, when a witness

repudiates his grand jury testimony under oath he

impairs the value of his testimony and subverts the

grand jury’s investigative efforts. Yet under petition-

er’s argument, unless the government has some relia-

ble way of proving which of the two statements is

false, a witness is free to repudiate his immunized

grand jury testimony with impunity. We submit that

neither the immunity statute nor the Fifth Amend-

ment compels that unpalatable result.

ARGUMENT

THE PROOF ESTABLISHED, AND PETITIONER WAS

CONVICTED OF, THE OFFENSE CHARGED IN THE

INDICTMENT

A. The September 30 “Canges Statement” Was Made in

a Proceeding Ancillary to a Court

Section 1623 of the Criminal Code makes it an

offense for a person knowingly to make a false ma-

terial declaration under oath in any proceeding before

or ancillary to any court or grand jury of the United

States. Subsection (c) of Section 1623 provides that

a violation of the statute can be established by proof

that, in any proceeding before or ancillary to a court

or grand jury, the defendant has made two or more

declarations that are inconsistent to the degree that

at least one of them is necessarily false. The govern-

ment used this “‘inconsistent declarations” method of

proof in establishing a violation of Section 1623 in

this case.

With respect to each count, the indictment charged

that petitioner’s grand jury testimony and his sworn

statement of September 30, 1976, were inconsistent.

Prior to trial the government made it clear to the

court and defense counsel that it intended to rely on

the inconsistent declarations method of proof permit-

ted by Section 1623(c) to shew that with respect to

each count in the indictment at least one of the two

conflicting sworn statements was false. The court

properly charged the jury on the inconsistent declara-

tions theory that the government relied upon.

Petitioner contends (Br. 10-13) that his September

30 sworn statement was not made in a “proceeding

* * * ancillary to a court” and that the testimony he

gave at that time therefore cannot supply a part of

the corpus delicti of the false statements offense.

Thus, petitioner argues, the indictment failed to

charge an offense under Section 1623, at least in the

absence of proof that it was his grand jury testi-

mony, rather than his testimony at the September 30

proceeding, that was false.

The term “proceeding * * * a to any court

or grand jury” is not defined in Section 1623 or else-

where in the Criminal Code. Nor had it been con-

strued in any appellate court decision prior to this

case. But the legislative history of the provision, the

experience under the federal perjury statute, 18

U.S.C. 1621, and the few court decisions touching on

the issue support the proposition that sworn state-

ments prepared outside the court are within the reach

of Section 1623 if the sworn statements are prepared

for the purpose of submission to the court or grand

jury.

The purpose of the false declaration statute, like

the purpose of the federal perjury statute, is to pro-

tect courts and grand juries from the contamination

of false swearing.* See Bronston v. United States,

409 U.S. 352, 357 (1973) ; United States v. Williams,

341 U.S. 58, 68 (1951); S. Rep. No. 91-617, 91st

Cong., Ist Sess. 58-59 (1969). False swearing in an

affidavit that is submitted to a court subjects the court

to the same abuse as false testimony in open court,

since a court often relies on sworn documentary evi-

dence in the same fashion that it relies on sworn

testimony.

For that reason, it is clear that false swearing in an

affidavit authorized to be filed in a judicial proceeding

violates Section 1621. See, e.g., United States v.

D’ Amato, 507 F.2d 26, 29 (2d Cir. 1974); United

States v. Birrell, 470 F.2d 113 (2d Cir. 1972); Ely

Valley Mines, Inc. v. Lee, 385 F.2d 188 (9th Cir.

1967); Butler v. McKey, 138 F.2d 373 (9th Cir.

1943), cert. denied, 321 U.S. 780 (1944). Thus, con-

trary to petitioner’s assertion (Br. 12), he could

* The federal perjury statute, 18 U.S.C. 1621, also serves to

protect other entities from false swearing. See, e.g., United

States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. denied,

431 U.S. 933 (1977) (Congress) ; United States v. Kline, 366

F. Supp. 994 (D.D.C. 1973) (SEC); United Federation of

Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C.), affirmed,

404 U.S. 802 (1971) (Postal Service).

have been prosecuted for perjury under Section 1621

for making the September 30 sworn statement, if the

government had been able to prove that the contents

of that statement were actually false rather than

merely irreconcilably inconsistent with his grand jury

testimony.*

False swearing in affidavits and other out-of-court

statements has been held to violate Section 1623 as

well. For example, in United States v. Stassi, 583

F.2d 122 (3d Cir. 1978), the defendant was convicted

on a false declarations charge for making inconsistent

declarations in a Rule 11 proceeding before a court

and in a subsequent affidavit filed in support of his

Section 2255 motion to vacate his sentence. The court

of appeals had no difficulty finding that the Section

2255 affidavit constituted a statement in a proceeding

“before or ancillary to” a court. As the court of ap-

peals noted, “[a] false material declaration, know-

ingly made, in a § 2255 affidavit or hearing offends

the administration of criminal justice as much as a

* Petitioner’s September 30 statement was submitted to the

court as an affidavit in support of Musgrave’s motion to dis-

miss the indictment, as is authorized by Fed. R. Crim. P.

12(b) (4) and 47. His statement was taken under an oath

given by an individual authorized by Colorado law to ad-

minister oaths (Tr. 24, 97; G. Ex. 2). And federal law per-

mits persons so authorized by local law to administer oaths

where the oath is authorized or required under the laws of

the United States. 5 U.S.C. 2903(c) (2). Thus, the oath re-

quired for submission of the affidavit supporting Musgrave’s

motion to dismiss was taken “before a competent * * * person,

in [a] case in which a law of the United States authorizes an

oath to be administered,” as is required by 18 U.S.C. 1621.

false material declaration made in any other ‘pro-

ceeding before or ancillary to any court’” (id. at

127). Similarly, in United States v. Krogh, 366 F.

Supp. 1255, 1256 (D.D.C. 1973), the district court

held that a sworn deposition taken in an office in the

Department of Justice was “a proceeding ancillary to

the Watergate Grand Jury inquiry” because it was

intended as a substitute for the defendant’s testimony

and was in fact subsequently read to the grand jury

in lieu of live testimony by the defendant.

The practice of submitting sworn statements to a

grand jury or in a court proceeding in place of or in

addition to live testimony is, of course, a common one

and one that is essential in many circumstances to the

efficient disposition of the business of courts and

grand juries. It would defeat the purposes of Section

1623 if an individual could escape the sanctions of

that statute simply by submitting his false sworn

statements to a court or a grand jury in documentary

form rather than through live testimony. In order

to guarantee that the penalties of perjury or giving

false declarations would be available in such cases,

the parties would have to call the declarant to the

stand to reaffirm or repeat his sworn statement, thus

wholly undercutting the advantages of proceeding on ~

sworn statements taken other than in open court.

Accordingly, Section 1623 is properly construed to

reach not only sworn statements made before a court,

but also sworn statements made outside the court for

submission to the court in connection with a pending

court proceeding, i.e., sworn statements made in pro-

ceedings “ancillary to [a] court.”

The legislative history of Section 1623 confirms this

interpretation of the statute. Section 1623 was en-

acted as part of the Organized Crime Control Act of

1970, Pub. L. No. 91-452, 84 Stat. 932-933. The bill,

as initially introduced, early in 1969, contained a

version of Section 1623 that would have reached only

those false statements made “in any trial, hearing, or

proceeding before any court or grand jury.” S. 30,

91st Cong., 1st Sess. 12 (1969), reprinted in Measures

Relating to Organized Crime: Hearings on S. 30, ete.

Before the Subcomm. on Criminal Laws and Proce-

dures of the Senate Comm. on the Judiciary, 91st

Cong., lst Sess. 15 (1969) (hereafter “Senate Hear-

ings”). The Department of Justice was asked for its

comments on the bill, and among the comments was

a criticism that the language of proposed Section 1623

was too narrow. The Department pointed out that, as

drafted, proposed Section 1623 “is not as inclusive as

the present Federai perjury statute in that [it] is

limited specifically to ‘any trial, hearing, or proceed-

ing before any court or grand jury’ and thus not only

are pretrial depositions, affidavits, and certificates ex-

cluded but also administrative and legislative hear-

ings or proceedings.” Senate Hearings, supra, at 372,

379-380. See also S. Rep. No. 91-617, 91st Cong., 1st

Sess. 110-111 (1969). In his testimony before the

Committee, Assistant Attorney General Will Wilson

summarized this point by stating, ‘“[ w]e favor includ-

ing other testimony, preliminary testimony and other

statements, in the perjury field” (Senate Hearings,

supra, at 389).

Senator McClellan, on behalf of the Subcommittee,

responded shortly after Mr. Wilson’s testimony with

a letter noting the Justice Department’s criticism of

the limited scope of Section 1623 and proposing a

change in the language of that Section to solve that

problem. Senator McClellan wrote (Senate Hearings,

supra, at 409):

You also read Title IV not to cover “pre-trial

depositions, affidavits and certifications.” This

was not our intent in drafting the bill. We had

hoped that it would be applicable, for example,

to situations such as [the] kind of pre-trial

depositions that the enforcement of S. 1861

would present. If we included in the statute the

phrase “‘proceedings before or ancillary to any

court or grand jury” do you feel that this intent

would be adequately expressed?

In response, the Department of Justice agreed that

the inclusion of the proposed language would have the

effect that the Committee intended. Senate Hearings,

supra, at 411.’

The committee reports embody this understanding

and reflect that by covering proceedings “ancillary

to” a court or grand jury, Congress intended to in-

clude, for example, pretrial deposition hearings. See

° The “pre-trial depositions” mentioned in Senator McClel-

lan’s letter apparently referred to depositions for use in civil

proceedings under 18 U.S.C. 1962, which were proposed as

part of S. 1861, 91st Cong., Ist Sess. (1969).

S. Rep. No. 91-617, supra, at 145, 149; H.R. Rep. No.

91-1549, 91st Cong., 2d Sess. 42 (1970). The refer-

ence to pretrial depositions in the committee reports

was not meant to be exhaustive; in both reports pre-

trial depositions were listed as only an example of

the kind of ancillary proceedings that were meant to

be included. In light of the statement in Senator Mc-

Clellan’s letter that it was the intent of the Commit-

tee in drafting the bill to cover “affidavits and certifi-

cations” as well as pretrial depositions, and in light

of the adoption of statutory language designed to

cover those situations, it is proper to include within

the reach of the statute affidavits or sworn statements

such as that given by petitioner on September 30.

If there were any doubt that petitioner’s Septem-

ber 30 sworn statement was made in a proceeding

that was ancillary to a court, that doubt is dispelled

by the fact that the statement was submitted to the

court with petitioner’s knowledge and that petitioner

specifically reaffirmed the statement under oath at

the October 21 hearing. Thus, even if the Septem-

ber 30 proceeding could be said to be independent

of the Musgrave criminal action as of September 30,

it plainly became ancillary to a court when the state-

ment was introduced and adopted by petitioner in

open court (with the consequence that the felony

charges against Musgrave had to be reduced to one

misdemeanor count). The indictment therefore prop-

erly charged petitioner with having made one of his

two inconsistent declarations in the September 30

sworn statement.

B. Petitioner’s Conviction Cannot Be Sustained on the

Theory that it Was the Product of a Non-prejudicial

Variance

The court of appeals held that even though, in its

view, the September 30 statement was not made in

a proceeding ancillary to a court, petitioner’s con-

viction should nonetheless be affirmed. The court

concluded that because the October 21 hearing was

held before a court and thus was clearly within the

ambit of 18 U.S.C. 1623, and because petitioner

adopted his September 30 statement at that hear-

ing, the disparity between the charge in the indict-

ment and the proof at trial that would have sup-

ported a conviction was merely a “variance.” The

variance was tolerable in this case, the court fur-

ther concluded, because it did not prejudice peti-

tioner. Moreover, because “it cannot be said that

Dunn could not have anticipated that [the evidence

of the October 21. hearing] would be presented

against him at his perjury trial,” the court held

that the failure of the indictment to refer to that

hearing did not render the indictment insufficient

(A. 76).

We disagree with the court of appeals that peti-

tioner’s conviction can be affirmed if the Court con-

cludes that the September 30 statement was not

made in a proceeding ancillary to a court. Yet

while we agree with petitioner that the conviction

cannot be sustained on the ground set out by the

court of appeals, we reach that conclusion by a dif-

ferent route. Petitioner argues (Br. 13-19) that the

court of appeals both amended the indictment and

sanctioned a fatal variance between the charges in

the indictment and the proof at trial. But the in-

firmity in the court’s ruling does not fall comfortably

within either of these categories. Instead, as we view

the case, after the court of appeals concluded that

the September 30 statement was not made in a pro-

ceeding ancillary to a court, it improperly held that

petitioner could be convicted of a charge that was

neither alleged in the indictment nor submitted to

the jury.

1. The indictment was not amended

An indictment is amended when the court or the

prosecutor makes a change in the language of the

indictment. Amending indictments was strictly pro-

hibited at common law, see Ex parte Bain, 121 U.S.

1 (1887), and even today it is generally said that an

indictment may be amended only as to matters of

form, see Russell v. United States, 369 U.S. 749,

770 (1962). The purpose of the rule against amend-

ing indictments is to protect the defendant’s Fifth

Amendment right to be indicted by a grand jury.

If the indictment is materially amended, the de-

fendant is forced to trial on charges different from

those returned by the grand jury, which in effect

permits him to be tried on an indictment brought

by the prosecutor rather than by the grand jury.

See Stirone v. United States, 361 U.S. 212, 217

(1960).

When a court submits a case to the jury on a

theory different from that set out in the indict-

ment, the effect of the court’s action may be treated

as a constructive amendment to the indictment, even

though there is no formal change in the indict-

ment’s language. In such cases, the reviewing court

must inquire whether the theory on which the case

was submitted to the jury differed with respect to

an essential element of the offense and in a manner

not fairly comprised within the charge returned by

the grand jury. Stirone v. United States, supra,

361 U.S. at 218-219.°

* Although the Court stated in Stirone (361 U.S. at 217)

that the strict prohibition against amendments to indictments,

as set forth in Ex parte Bain, supra, has never been disap-

proved, it is plain that the rule is no longer as rigid as it

was at common law. The courts uniformly permit indictments

to be amended when the effect of the amendment is to with-

draw one or more of the charges from the jury or other-

wise to narrow the charges against the defendant. See Salinger

v. United States, 272 U.S. 542, 548-549 (1926) ; United States

v. Prior, 546 F.2d 1254, 1257 (5th Cir. 1977) ; United States

Vv. Holt, 529 F.2d 981 (4th Cir. 1975) ; United States v. Cirami,

510 F.2d 69 (2d Cir.), cert. denied, 421 U.S. 964 (1975);

United States v. Dawson, 516 F.2d 796 (9th Cir.), cert. denied,

423 U.S. 855 (1975). See 8 Moore’s Federal Practice © 7.05

[3] (2d ed. 1978).

In addition, although with less uniformity, courts have

sanctioned amendments or “constructive amendments” to in-

dictments to remove surplusage, including allegations that

require the government to prove more than is required under

the statute at issue. See United States v. Cirami, supra;

United States v. McCrane, 527 F.2d 906, 912-913 (8d Cir.

1975), cert. denied, 426 U.S. 906 (1976); United States v.

Harvey, 428 F.2d 782 (9th Cir. 1970). Courts have also

permitted amendments to alter the date of the offense, Stewart

In this case, the indictment was not amended at

any point in the proceedings. Petitioner was tried

and convicted on the same charges that were returned

by the grand jury. Neither the prosecutor nor the

court in any way altered those charges before trial

or before verdict, and the jury was properly in-

structed wholly in accordance with the allegations in

the indictment. It is therefore incorrect to state

that the error committed by the court of appeals

was to “amend” the indictment, since the objection

to amending an indictment is that the charge as

submitted to the petit jury is different from the

charge as returned by the grand jury. If the fact-

finder is given the case on the basis of the original

indictment, as here, there is no fatal “amendment.”

See Heisler v. United States, 394 F.2d 692, 696

(9th Cir. 1968).

v. United States, 395 F.2d 484, 487-489 (8th Cir. 1968) ; the

serial number of a gun, United States v. Neff, 525 F.2d 361,

363 (8th Cir. 1975) ; the nature of the proceeding at which the

defendant was alleged to have obstructed justice, United

States v. Fruchtman, 421 F.2d 1019 (6th Cir.), cert. denied,

400 U.S. 849 (1970): and the name of the defendant, United

States v. Denny, 165 F.2d 668 (7th Cir. 1947), cert. denied,

333 U.S. 844 (1948). But see United States v. Huff, 512 F.2d

66, 69 (5th Cir. 1975) (technical error in name of drug can-

not be cured by amendment) ; United States v. Critchley, 353

F.2d 358 (3d Cir. 1965) (permitting government to prove

offense occurred on a different day from that alleged in the

indictment constitutes impermissible amendment). None of

these amendments or “constructive amendments” would have

been permitted at common law. See Goldstein, The State and

the Accused: Balance of Advantage in Criminal Procedure,

69 Yale L.J. 1149, 1174-1176 (1960).

2. There was no variance between the charges in the

indictment and the proof at trial

A variance arises when the evidence offered at

trial proves facts different from those alleged in the

indictment. Berger v. United States, 295 U.S. 78,

81 (19385) ; Gaither v. United States, 413 F.2d 1061,

1071-1072 (D.C. Cir. 1969). Unlike an amendment

of the indictment, which is reversible error except

in limited circumstances, a variance is subject to the

application of the harmless error rule, Fed. R. Crim.

P. 52(a), and thus results in reversal only if it

affects the defendant’s substantial rights. Berger v.

United States, supra, 295 U.S. at 82: Kotteakos v.

United States, 328 U.S. 750 (1946); United States

v. Schrenzel, 462 F.2d 765 (8th Cir.), cert. denied,

409 U.S. 984 (1972); United States v. Antonelli,

439 F.2d 1068 (1st Cir. 1971); United States v.

Evans, 398 F.2d 159 (8d Cir. 1968).’

* The traditional distinction between variances and amend-

ments has caused great confusion, as a number of courts have

observed. See, e.g., United States v. Dawson, 516 F.2d 796,

801-804 (9th Cir.), cert. denied, 423 U.S. °55 (1975) ; United

States v. Cirami, 510 F.2d 69 (2d Cir.), cert. denied, 421 U.S.

964 (1975); Heisler v. United States, 394 F.2d 692, 695-696

(9th Cir. 1968) (‘‘the progeny of Bain are out of joint’’). In

an appropriate case, we believe that this Court should re-

consider these doctrines and the principles governing their

application.

Amendments are said to offend the interest in ensuring

that a defendant is tried for the offense with which the grand

jury charged him, while variances are assessed in light of the

concern that the defendant not be subject to unfair surprise

or to the possibility of further prosecution for the same of-

fense. However, the first two interests are implicated by both

Petitioner argues (Br. 18) that there was a fatal

variance in this case between the charge and the

proof. The trial court permitted a variance, he con-

tends, when it admitted evidence relating to the Octo-

ber 21 evidentiary hearing, and the court of appeals

“committed a prejudicial variance in looking to the

amendments and variances, since each involves a disparity

between the charges returned by the grand jury and the proof

introduced at trial. The third interest does not seem signifi-

cantly implicated by either amendments or variances, since

the entire record of a proceeding is referred to in determin-

ing whether a defendant is being placed twice in jeopardy

for the same offense. See Russell v. United States, supra, 369

U.S. at 764; Bartell v. United States, 227 U.S. 427, 433

(1913); Dunbar v. United States, 156 U.S. 185, 191 (1895).

In light of the substantial conceptual overlap between

amendments and variances and the congruity of the interests

protected by the two doctrines, it is difficult to understand

why the standards for reversal should be different, depending

upon whether a particular case is characterized as presenting

an amendment or a variance. If anything, amendments should

be the preferred course for countenancing a disparity between

the proof at trial and the charge brought by the grand jury,

since an amendment at least gives advance notice of the dis-

parity. Yet under the present state of the law, amendments

are judged more strictly: an amendment, actual or “construc-

tive” (7.e., charging the jury in terms different from those in

the indictment), is cause for automatic reversal, unless the

amendment falls within one of the several narrow exceptions

to the strict prohibition set down in Ex parte Bain, supra; a

variance is cause for reversal only if it affects the defendant’s

substantial rights. See Berger v. United States, supra. In our

view, both doctrines should be subject to the same analysis to

determine whether the error is prejudicial or harmless and

whether there is such a departure from the charge returned

by the grand jury as to constitute a substantial abrogation of

the Fifth Amendment right to indictment.

[October 21 hearing] in concluding that Dunn had

‘admitted he lied to the grand jury’” (Br. 19).

There is no question that the evidence of the

October 21 hearing was properly admitted at trial.

It was admissible under any theory of the case to

show that the September 30 statements were not the

product of any mistake or inadvertence and that

petitioner knew his testimony before the grand jury

and in the September 30 statement were inconsistent

(see Tr. 86-87). Moreover, under our interpreta-

tion of the statute, which was adopted by the trial

court, the evidence of the October 21 hearing was

admissible to show that when petitioner adopted his

September 30 statement at that hearing, the Sep-

tember 30 proceeding became “ancillary to [a] court”

for the purposes of Section 1623(c). For neither

purpose was it necessary specifically to allege or re-

fer to the October 21 hearing in the indictment.

The indictment was sufficient for purposes of Fed.

R. Crim. P. 7(¢) because it alleged all the elements

of the offense with which petitioner was charged

and in particular specified that the September 30

statement was made in a proceeding ancillary to a

court. It was not necessary for the indictment fur-

ther to allege the legal theory under which the gov-

ernment would assert that the September statement

was ancillary to a court or the evidence that the

government would adduce to show that petitioner

knew his sworn statements were inconsistent. See

Hamling v. United States, 418 U.S. 87, 117-118

(1974) ; Giordanello v. United States, 357 U.S. 480,

483 (1958); United States v. Debrow, 346 U.S. 374,

377-378 (1953); United States v. Gibson, 513 F.2d

978, 979 (6th Cir. 1976) ; United States v. Addonizio,

451 F.2d 49, 58-59 (3d Cir. 1971), cert. denied, 405

U.S. 9386 (1972).

In short, there was no variance at trial because the

evidence proved precisely what was alleged in the

indictment. Rather, what the court of appeals did

was to reject the legal sufficiency of the charges as

alleged in the indictment and proved at trial, but

then to uphold petitioner’s conviction on a different

theory—one that was not alleged in the indictment

or presented to the petit jury. If petitioner had been

charged with making inconsistent statements before

the grand jury and before a court on October 21, the

evidence at trial would have supported a jury verdict

against him. But that was not the charge on which

he was tried. Thus, while the court of appeals’

affirmance of petitioner’s conviction on that theory

does not constitute an amendment of the indictment

or a variance in the proof, it does offend the princi-

ple that an appellate court cannot affirm a defend-

ant’s conviction on charges of which the jury did not

find him guilty. See Cole v. Arkansas, 333 U.S. 196

(1948). See also Eaton v. City of Tulsa, 415 U.S.

697, 699 (1974) ; Garner v. Louisiana, 368 U.S. 157,

163-164 (1961); De Jonge v. Oregon, 299 U.S. 353,

362 (1937).

To be sure, in this case the difference between the the-

ory on which the indictment was based and the theory

on which the court of appeals affirmed the conviction

is a purely technical one. The evidence introduced at

trial would support a conviction on either theory, and

it is inconceivable that the jury’s verdict would have

been any different if it had been asked to determine

whether his statement on October 21, adopting his

September 30 statement, was inconsistent with his

grand jury testimony, instead of being asked to de-

termine whether his September 30 statement itself

was inconsistent with his grand jury testimony.

Nonetheless, if the court of appeals is correct that

petitioner’s September 30 statement was not made

in a proceeding ancillary to a court, we believe that

petitioner must be given an opportunity to contest

his guilt of the different charges of making incon-

sistent statements before the grand jury and on

October 21, no matter how confident the court of

appeals may be that the jury would come to the same

result in that case.

We emphasize, once again, that we disagree with

the court of appeals’ conclusion that petitioner’s Sep-

tember 30 statement was not made in a proceeding

ancillary to a court. But if the Court disagrees

with us on that point, we believe that petitioner’s

conviction would have to be reversed.

II.

PETITIONER’S IMMUNIZED GRAND JURY TESTI-

MONY WAS PROPERLY INTRODUCED AGAINST

HIM IN HIS FALSE DECLARATIONS PROSECUTION

The question of more general importance in this

case is whether immunized testimony can be used in

a false declarations prosecution for the purpose of

showing its inconsistency with subsequent, non-

immunized testimony. We note preliminarily that,

even if the Court determines that petitioner’s con-

viction must be reversed on the ground that the Sep-

tember 30 statement was not made in a proceeding

ancillary to a court, petitioner will be subject to

reindictment for making inconsistent statements be-

fore the grand jury and at the October 21 hearing.°

Accordingly, we believe the Court should reach the

second and more important question presented by

* Petitioner contended in his reply to our memorandum in

response to his petition for certiorari (Rep. Br. 3) that his

October 21 testimony was not inconsistent with his grand jury

testimony and that it therefore could not support a prosecu-

tion under 18 U.S.C. 1623(c). He has not made that argu-

ment in his brief on the merits, but in any event the conten-

tion is incorrect. As is reflected in the portion of the Octo-

ber 21 hearing quoted at pages 6-7, supra, petitioner took the

stand specifically to affirm the truth of his September 30

statement. It would be pointless, as well as contrary to the

purpose of the prohibitions against false swearing, to re-

quire that petitioner repeat from the stand each of the decla-

rations in the statement he had just affirmed in order to sub-

ject him to a perjury or false declarations prosecution for

making those declarations in a proceeding before a court.

this case regardless of how it resolves the first

question.

In this case, petitioner was compelled to testify

before a federal grand jury on the subject of illicit

drug dealings in the Colorado prison system. He

plainly had sufficient exposure to possible prosecu-

tion for those criminal activities to justify involing

his Fifth Amendment privilece and refusing to tes-

tify about them. Petitioner testified only after being

immunized against the use of his testimony to in-

criminate him, and, as we discuss below (pages 39-

41, infra), the posture of this case is such that pe-

titioner must be given the benefit of the assumption

that his compelled testimony was truthful.

No one disputes that the immunity petitioner ob-

tained in return for his compelled testimony pre-

cludes the government from making either direct or

derivative use of that testimony to convict him

of complicity in the drug offenses that were the

subject of his testimony. The question here is whether

he also acquired immunity from the use of that testi-

mony to prove a later offense (here, perjury) that

was neither imminent nor even contemplated at the

time the privilege was invoked and the immunity

conferred.

In the argument that follows, we contend that

neither the Constitution nor the immunity statute,

18 U.S.C. 6002, prevents the use made in this case

of petitioner’s immunized testimony. This conclu-

sion follows inevitably if the Court agrees with the

following propositions:

(1) The scope of the immunity conferred in over-

riding an invocation of the privilege is precisely co-

extensive with the right of non-incrimination enjoyed

by the witness at the time the testimony is compelled;

and

(2) A witness may not properly invoke the privi-

lege against compulsory self-incrimination to refuse

to answer questions before a grand jury on the

‘ground that he may subsequently decide to give con-

trary testimony and does not wish his grand jury

testimony to be available as evidence of the falsity of

that testimony.

We now turn to establishing the correctness of these

two propositions.

A. The Fifth Amendment Permits the Use of Immunized

Testimony to Prove the Falsity of Subsequent, Non-

Immunized Testimony

1. Introduction

If this were an ordinary prosecution for perjury

in which the issue was simply whether petitioner’s

testimony before the grand jury was false, there

would be no doubt that his immunized grand jury

testimony could be used against him. The Court has

always permitted prosecutions for perjury committed

under a grant of immunity, even when the immunity

statute in question contains no express exception for

perjury. See, e.g., United States v. Wong, 431 U.S.

174, 178 (1977); United States v. Washington, 431

U.S. 181, 189 (1977); United States v. Mandujano,

425 U.S. 564, 577-578 (1976) (plurality opinion) ;

id. at 584-585 (Brennan, J., concurring in the re-

sult) ; id. at 609 (Stewart, J., concurring in the re-

sult); Glickstein v. United States, 222 U.S. 139

(1911).°

This case is not governed by that settled principle,

however, because of the method of proof used at trial.

As we have noted, the government relied on the “‘in-

consistent declarations’ method of proving a false

declarations offense. See 18 U.S.C. 1623(¢c). Under

this method of proof, the government can establish

a violation of the false declarations statute by show-

ing that the defendant made two inconsistent sworn

statements in proceedings before or ancillary to a

grand jury or a court; there is no need to prove

which of the two statements is false. The jury was

properly instructed on this method of proof (A. 57-

58), and it must be presumed that the verdict was

based simply on the inconsistency between the grand

jury testimony and the statements sworn to on Sep-

tember 30. Thus, unlike the situation in cases like

Glickstein, the governinent was not using immunized

testimony solely to prove its falsity, and the jury’s

verdict of guilty did not necessarily mean that the

° It is less clear how much of the immunized testimony may

be introduced in such a prosecution. At least those portions

alleged to be false may be used. See United States v. Anzalone,

555 F.2d 317, 320 (2d Cir. 1977) ; United States v. Patrick,

542 F.2d 381, 385 (7th Cir. 1976), cert. denied, 430 U.S. 931

(1977) ; United States v. Hockenberry, 474 F.2d 247, 249 (3d

Cir. 1973) (en banc). The question whether other relevant

portions may be used to prove that the charged portions are

false is before the Court in United States v. Apfelbaum, peti-

tion for cert. pending, No. 78-972.

jury had concluded that petitioner’s grand jury tes-

timony was false.

For this reason, we disagree with the rationale

employed by the court of appeals to sustain the use

of petitioner’s grand jury testimony. The court of

appeals first noted, correctly, that a grant of im-

munity protects only truthful testimony. It then

ruled that because petitioner had subsequently stated

that his grand jury testimony was false, that ad-

mission provided a sufficient basis for applying the

principle that false immunized testimony cannot be

used against the witness (A. 79-80). We believe that

this approach would ordinarily be appropriate in

cases in which the prosecution seeks to use the im-

munized testimony only for its falsity. See United

States v. Moss, 562 F.2d 155 (2d Cir. 1977), cert.

denied, 435 U.S. 914 (1978); ef. United States v.

Kahan, 415 U.S. 239 (1974); United States v. Tra-

munti, 500 F.2d 1334 (2d Cir.), cert. denied, 419

U.S. 1079 (1974). Here, however, the prosecution

did not necessarily rest on the theory that petitioner’s

immunized grand jury testimony was false; the jury

may well have concluded that the grand jury testi-

mony was true and the subsequent recantation false,

or that because the statements were irreconcilably

inconsistent, it was unnecessary to determine which

one was false. In view of those possibilities, peti-

tioner’s statement that his grand jury testimony was

false does not, by itself, justify the use of that tes-

timony against him.

In order to sustain the conviction in this case, it is

necessary to conclude that petitioner’s immunized

grand jury testimony could be used against him even

if it was truthful. Although we disclaim reliance

on the rationale of the court of appeals, we nonethe-

less submit that it reached the correct result and that

neither the Constitution nor the immunity statute

bars the use of even truthful immunized testimony

to establish a subsequent perjury.

2. A grant of immunity must be as broad as, but need

not be broader than, the privilege it displaces

The Fifth Amendment privilege against compulsory

self-incrimination protects a person against being

compelled to testify when he reasonably believes his

testimony could incriminate him. Kastigar v. United

States, 406 U.S. 441, 445 (1972). The privilege is

available only if the witness’s answer to a particular

question would expose him to a substantial and real

danger of incrimination; if the testimony could not

incriminate him, or if the threat of incrimination

is merely speculative or remote, the privilege may not

be invoked. See Marchetti v. United States, 390 U.S.

39, 58 (1968); Hoffman v. United States, 341 U.S.

479, 486-487 (1951); Rogers v. United States, 340

U.S. 367, 373-375 (1951); Mason v. United States,

244 U.S. 362, 365-367 (1917); Heike v. United

States, 227 U.S. 131, 144 (1913); Brown v. Walker,

161 U.S. 591, 599-600 (1896).

0 This standard is commonly traced to the English case

of Regina v. Boyles, 121 Eng. Rep. 730, 738 (Q.B. 1861)

(Cockburn, C. J.) (“the danger to be apprehended must be

Even when a witness makes a valid assertion of

the privilege, he can be compelled to testify if the

government grants him immunity in exchange for

his testimony.'' Testimony can constitutionally be

compelled under a grant of immunity as long as the

immunity removes the danger against which the

privilege protects. In order to substitute for the privi-

lege, the immunity must be co-extensive with the

privilege that it supplants, but it need not be any

broader. Kastigar v. United States, supra, 406 U.S.

at 449, 453; Murphy v. Waterfront Commission, 378

real and appreciable * * * not a danger of an imaginary and

unsubstantial character’). See VIII J. Wigmore, Evidence

§ 2260 (McNaughton rev. 1961).

Moreover, the determination whether the risk of incrimina-

tion is sufficiently great to warrant the protection of the

privilege is not left to the witness, but must be made by a

court if the witness’s invocation of the privilege is challenged.

United States v. Mandujano, 425 U.S. 564, 575 (1976) (plural-

ity opinion) ; Hoffman v. United States, supra, 341 U.S. at

486-487; Mason v. United States, supra, 244 U.S. at 366;

United States v. Burr, 25 F. Cas. 38, 39-40 (C.C. Va. 1807)

(No. 14,692e) (Marshall, C. J.) ; In re Pillo, 11 N.J. 8, 19-20,

22, 93 A.2d 176, 181-183 (1952) (Brennan, J.).

11 Granting immunity has long been recognized as an ap-

propriate means of accommodating the right of the public to

demand every man’s evidence and the right of the individual

not to be forced to incriminate himself by his testimony. The

historical background of immunity or “indemnity” statutes is

traced in Kastigar v. United States, supra, 406 U.S. at 443-

446. See also L. Levy, Origins of the Fifth Amendment

328-329, 384-404 (1968); VIII J. Wigmore, Evidence, supra,

at § 2281; Comment, The Federal Witness Immunity Acts in

Theory and Practice: Treading the Constitutional Tightrope,

72 Yale L.J. 1568 (1963).

U.S. 52, 54, 78 (1964); Brown v. Walker, 161 U.S.

591, 595, 610 (1896).

3. The privilege, and thus the immunity granted in

its place, ordinarily does not extend to crimes the

witness may commit in the future

Because a witness is not entitled to assert his Fifth

Amendment privilege with respect to speculative

risks of incrimination, he ordinarily is not permitted

to assert the privilege on the basis of crimes he might

commit in the future. Thus, even if his testimony

would provide the government with information that

could prove useful in prosecuting him for offenses

that he might commit after testifying, he ordinarily

cannot refuse to testify on that ground. See United

States v. Freed, 401 U.S. 601, 606-607 (1971); id.

at 611-612 (Brennan, J., concurring) ; United States

v. Bryan, 339 U.S. 323, 340-841 (1950); Glickstein

v. United States, 222 U.S. 1389, 142 (1911); United

States v. Tramunti, 500 F.2d 1334, 1344 (2d Cir.

1974).

In Marchetti v. United States, supra, the Court

declined to apply a rigid distinction between past

and future offenses in determining whether the privi-

lege is available. The Court noted that “prospective

acts will doubtless ordinarily involve only speculative

and insubstantial risks of incrimination” (390 U.S.

at 54). Nonetheless, it declined to apply that general

principle to the case of a professional gambler en-

gaged in a continuing course of illegal conduct and

faced with a registration scheme designed primarily

for law enforcement purposes. In those circum-

stances, the Court concluded, the risk of incrimina-

tion with respect to future acts was sufficient to

justify upholding the claim of privilege.”

The subsequent decision in United States v. Freed,

supra, made it clear that the Court in Marchetti did

not mean to discard the distinction between past and

future crimes in testing the availability of privi-

lege. To the contrary, the Court in Freed reaffirmed

the past-future distinction and the principle that the

privilege cannot be asserted to protect against in-

crimination for future crimes. Freed thus suggests

that Marchetti may be limited to cases in which the

privilege is asserted to avoid a substantial and non-

speculative risk of incrimination for future acts that

are part of an ongoing criminal enterprise.”

2 The Court also upheld the claim of privilege on the ground

that the registration and tax payment requirements at issue

in the case posed substantial hazards of incrimination with

respect to Marchetti’s current and past activities, because

“satisfaction of those requirements increases the likelihood

that any past or present gambling offenses will be discovered

and successfully prosecuted” (390 U.S. at 52).

18 The risk of incrimination in both Freed and the present

case is vastly different both in kind and degree from the risk

of incrimination facing Marchetti. The statute at issue in

Marchetti required professional gamblers to acquire a federal

gambling tax stamp, which in turn required ‘the declaration

of a present intent to commence gambling activities” and thus

obliged “even a prospective gambler to accuse himself of

conspiracy to violate either state gambling prohibitions, or

federal laws forbidding the use of interstate facilities for

gambling purposes.” 390 U.S. at 53. Petitioner’s compelled

grand jury testimony, by contrast, did not in any way re-

quire him to declare a present intent to commit perjury. Peti-

tioner’s grand jury testimony became incriminating evidence

of a false declarations offense only when he later determined

In Freed, the Court upheld the provision of the

National Firearms Act that requires a detailed report

to be filed upon the transfer of certain classes of fire-

arms. The Act provides that the information fur-

nished in the report could not be used against either

party to the transfer with respect to any present or

past criminal acts. The defendant areued that even

though the information in the transfer registration

forms could not be used to incriminate him for pres-

ent or past acts, it could be used in connection with

any unlawful acts he might commit in the future

and that the statutory immunity was therefore in-

sufficient to displace the privilege. The Court rejected

that argument, concluding that the threat of incrimi-

nation with respect to offenses the defendant might

commit in the future was not “substantial and ‘real’ ”

(401 U.S. at 606). The defendant’s argument, the

Court held (401 U.S. at 606-607),

assumes the existence of a periphery of the Self-

Incrimination Clause which protects a person

against incrimination not only against past or

present transgressions but which supplies insu-

lation for a career of crime about to be launched.

We cannot give the Self-Incrimination Clause

such an expansive interpretation.

to give sworn testimony contrary to the testimony he gave

before the grand jury. Thus, the compelled disclosure in

Marchetti could help incriminate the registrant even if he

never took steps to commit any further gambling offenses.

Petitioner’s grand jury testimony, by contrast, cannot real-

istically be said to have been incriminating with respect to its

truth or falsit; until the time that, by his own devices, he

managed to make it so.

The Court therefore held that the statutory immunity

from the use of the registration materials to prove

any past or current crimes was sufficient to over-

come the defendant’s assertion of his Fifth Amend-

ment privilege.”

In his concurring opinion, Mr. Justice Brennan

expanded on this point, noting that the privilege ‘‘does

not require that immunity be given as to the use of

such information in connection with crimes that the

transferee might possibly commit in the future with

the registered firearm.” United States v. Freed,

supra, 401 U.S. at 611 (Brennan, J., concurring).

The immunity in the statute, prohibiting the use of

information obtained in the registration forms with

respect to past crimes, is “coextensive with the privi-

lege” (401 U.S. at 612), Justice Brennan concluded,

and the information can therefore lawfully be com-

pelled without violating the privilege against com-

pulsory self-incrimination.

The past-future distinction is supported not only

by the inherent speculativeness that attends most

claims of possible future incrimination, but also by

consileration of the policies that underlie the con-

stitu‘ional privilege. The privilege is in essence a

shield designed to protect an actual or potential

criminal defendant from having the government pry

from his lips statements that could be used to convict

1%*The Court also noted that, unlike the information in

Marchetti, the information on the transfer form was not

ordinarily made available to state and federal law enforce-

ment agencies, 401 U.S. at 606, and for that reason as well, the

defendant’s fear of incrimination was insubstantial.

him of crime. Murphy v. Waterfront Commission,

supra, 5378 U.S. at 55. It is the product of a judg-

ment by the Framers that the distastefulness of in-

quisitorial practices designed to produce a suspect’s

confession outweighs the value to the criminal justice

process of requiring an accused to account for his

actions.

As applied to a future offense, however, the privi-

lege becomes a sword rather than a shield, and the

balance of interests is quite different. At the time

he is granted immunity, a witness’s testimony ordi-

narily cannot incriminate him with respect to a crime

he has not yet committed. Thus, the effect of im-

munizing the witness from the use of his testimony

to prove a subsequent offense is simply to permit the

individual to commit that crime free of the risk that

his prior testimony can be used to convict him. There

is nothing in the laudable policies underlying the

privilege that would justify this kind of extension

of its sweep.

4. Petitioner’s receipt of immunity did not bar the use

of his testimony to prove the falsity of his subse-

quent sworn statements

In this case, of course, petitioner did not invoke

the privilege on grounds of possible incrimination as

to any future offense; rather, he presented a valid

claim of privilege based upon the risk of incrimina-

tion as to already consummated offenses. Petitioner

contends that upon making a legitimate claim of the

privilege, he acquired a comprehensive immunity

against any prospective use whatsoever of truthful

testimony given under compulsion.

a. We submit that the immunity acquired is not

so all-encompassing, but instead is precisely co-ex-

tensive with the scope of the privilege available to the

witness at the time the testimony was compelled.

The Constitution does not require that the grant of

immunity protect a witness from dangers that fall

outside the protection of the privilege. Ullmann v.

United States, 350 U.S. 422, 430-431, 438-439

(1956); Heike v. United States, 227 U.S. 131, 142-

143 (1913); Korman, The Use of Testimony Com-

pelled Under a Grant of Use Immunity, 44 Brooklyn

L. Rev. 935, 940 (1978)." Thus, the legitimacy of

any proposed use of the compelled testimony can be

ascertained by determining whether, at the time he

was called upon to give that testimony, the witness

could successfully have invoked his privilege to guard

against that use. If he could, then by compelling the

testimony over a claim of the privilege, the govern-

15 For example, a witness cannot assert the privilege to

escape liability in a civil suit, or disgrace in the community,

or even the loss of a job or some other non-criminal sanction.

Gardner v. Broderick, 392 U.S. 273, 279 (1968) ; Uniformed

Sanitation Men Ass’n Vv. Commissioner of Sanitation, 392

U.S. 280, 284-285 (1968) ; VIII J. Wigmore, Evidence, supra,

at §§ 2254-2255. He cannot even assert the privilege be-

cause he fears for his life if he testifies. Piemonte v. United

States, 367 U.S. 556, 559 n.2 (1961). It is therefore unneces-

sary for the grant of immunity to protect against those con-

sequences in order to displace the privilege. Ullmann V.

United States, supra, 350 U.S. at 430-431; Smith v. United

States, 337 U.S. 137, 147 (1949); Brown v. Walker, supra,

161 U.S. at 605-606.

ment forgoes the ability to make that use of the

testimony. On the other hand, if the use that the

government proposes to make of the immunized tes-

timony could not have been adduced as a valid basis

for claiming the privilege, the immunity does not

protect against that use.

In the present case, as we have noted, petitioner

was privileged to decline to testify with regard to

drug dealings at the Colorado State Penitentiary.

For that reason, the grant of immunity under which

his grand jury testimony was compelled precludes the

use of his testimony or its fruits to help convict him

of any of the activities about which he was questioned.

Similarly, if petitioner had previously given a false

sworn statement about the matters as to which he

was questioned before the grand jury, he could validly

have asserted his privilege not to testify because of

the risk that his truthful testimony before the grand

jury would expose him to a prosecution for perjury

or false declarations. See United States v. Housand,

550 F.2d 818, 823 (2d Cir.), cert. denied, 431 U.S.

970 (1977). For that reason, a grant of immunity

would protect him from the use of his testimony to

prove the prior perjury. Jn re Grand Jury Pro-

ceedings, 509 F.2d 1849, 13851 (5th Cir. 1975);

United States v. Watkins, 505 F.2d 545, 546 (7th

Cir. 1974); United States v. Alter, 482 F.2d 1016,

1028 (9th Cir. 1973).

On the other hand, if petitioner had declined to

testify on the ground that his truthful answers before

the grand jury would be incriminating should he

later choose to give materially inconsistent testimony,

his claim of privilege would not have been sustained.

See Kronick v. United States, 343 F.2d 436, 441

(9th Cir. 1965). In effect, his claim would have been

that without the protection of the privilege he would

not be as free to perjure himself in the future, since

he would be subject to prosecution for making a

statement inconsistent with his grand jury testimony.

This impediment to his ability to perjure himself in

the future is not a “real danger of legal detriment

arising from the disclosure.” Roger's v. United States,

340 U.S. 367, 372-373 (1951). A possible future act

of perjury, even a planned one, is not the kind of

criminal exposure that the privilege against com-

pulsory self-incrimination was intended to reach.

The Self-Incrimination Clause does not extend “in-

sulation for a career of crime about to be launched”

(United States v. Freed, supra, 401 U.S. at 607),

even if the “career” is one of perjury.”

16 This Court’s decision in Cameron Vv. United States, 231

U.S. 710 (1914), is not to the contrary. In that case, the de-

fendant was indicted for perjuring himself in two related

bankruptcy proceedings. The prosecution sought to use his

testimony in the first proceeding to prove that his testimony

in the second was false, and vice versa. The Court held that

this was improper under the applicable immunity statute.

Although the statute authorized prosecutions for perjury

committed under a grant of immunity, it prohibited the use

of any immunized testimony “in any criminal proceeding.”

The Court construed the statute to permit the government to

use the allegedly false statements in each proceeding to prove

perjury in that proceeding, but not to use the statements to

prove perjury in the other proceeding. The Court made it

clear that its opinion was based on a construction of the

applicable immunity statute, and not on any constitutional

prohibition. See 231 U.S. at 721, 724.

Accordingly, because petitioner in this case could

have expected no protection from his Fifth Amend-

ment privilege for a possible future act of perjury,

it follows that there is no constitutional barrier to

the use of his immunized grand jury testimony, even

if truthful, to establish the falsity of his subsequent

inconsistent testimony.”

b. Relying on language in Kastigar v. United

States, supra, 406 U.S. at 458-459, and Murphy v.

Waterfront Commission, supra, 378 U.S. at 79, pe-

titioner argues (Br. 22) that his immunized testi-

mony cannot be used “in any respect’? and that the

Constitution requires that the immunity order leave

him “in substantially the same position as if he had

remained silent.”

Petitioner’s construction of the language from

Murphy and Kastigar is far too broad. In stating

that the government could not use testimony com-

pelled under a grant of immunity “in any respect”

(406 U.S. at 453; emphasis in original), the Court

in Kastigar was distinguishing between “use and de-

‘* Our argument is significantly different from that made by

the State in New Jersey V. Portash, No. 77-1489, argued De-

cember 5, 1978. In Portash, the State seeks to use the de-

fendant’s immunized testimony to impeach his testimony at

his subsequent trial for the substantive offenses about which

he had testified before the grand jury. Thus, in that case, the

imumnized testimony would be employed to help the State

establish the defendant’s guilt of the same crime as to which

he initially claimed the privilege and as to which his privilege

was overriden by a grant of immunity. In the instant case, by

contrast, the immunized testimony is being used to prove a

crime that had not occurred at the time petitioner was granted

immunity and as to which he then had no testimonial privilege.

rivative use” immunity, which it held constitutionally

sufficient, and the more limited “use” immunity that

was held insufficient in Counselman v. Hitchcock, 142

U.S. 547 (1892). In order for the immunity to be

commensurate with the privilege, the Court stated in

Kastigar, the government must be denied not only

the right to use compelled testimony as evidence at

trial, but also the right to use the testimony to de-

velop leads and strengthen its case against the de-

fendant in indirect ways.

This is a far cry, however, from petitioner’s sweep-

ing claim that immunized testimony can never be

used against the witness, or that the grant of im-

munity must put him in the same position he would

have been in if he had remained silent. As we have

noted (see page 48, swpra), immunized testimony can

be used for a number of purposes: it can be used

to prove that the testimony was perjured; it can be

used against the witness in civil proceedings; and it

can be used to deny the witness a job or other im-

portant benefits that he might have continued to

enjoy had he remained silent. It is therefore inac-

curate to say that the grant of immunity prohibits

the government from making any use whatever of

the compelled testimony.

What Murphy and Kastigar in fact establish is

that the Constitution prohibits the use of compelled

testimony for any purpose as to which a claim of

privilege would be upheld. Thus, an immunized wit-

ness may be prosecuted for testifying falsely under

a grant of immunity because, if he had claimed the

privilege on the ground that he might lie before the

grand jury, his claim would have been rejected and

he could have been required to testify without im-

munity. In other words, an immunity grant pro-

vides the same protection against prosecution for

contemporaneous perjury that the privilege does:

that is, no protection at all.

Similarly, if petitioner had refused to testify be-

fore the grand jury on the ground that his testi-

mony might be used to incriminate him if he should

choose to perjure himself in some future proceeding,

his claim of privilege would have been rejected, and

petitioner would have been required to testify. He

is therefore in the same position that he would have

been in if he had invoked his privilege on that ground

and his claim had properly been denied. To grant

petitioner any broader protection would depart from

the principle that the secpe of the immunity must be

equal to, but ought not be greater than, the scope of

the privilege.

This point is perhaps best underscored by compar-

ing the protection that petitioner would have ob-

tained under the previous system of transactional

immunity with the protection that he is claiming in

this case. A grant of transactional immunity pro-

vides the witness protection from prosecution for

any offense about which he is required to testify.

Even under transactional immunity, however, the

witness enjoys no protection with respect to testi-

mony as to which he could have asserted no privilege.

In Heike vy. United States, supra, for example, the

government granted transactional immunity to a wit-

ness in an antitrust investigation. The witness was

later indicted on tax fraud charges only remotely

related to the matters at issue in the antitrust in-

vestigation. The Court held that the portions of his

grand jury testimony that related to the fraud

charges were not incriminating, and that the witness

could not have made a valid claim of the privilege

with respect to that testimony. Therefore, the Court

held, the witness’s immunity provided no protection

against his subsequent prosecution for tax fraud.

Similarly, in People v. Woodson, 309 Mich. 391, 15

N.W.2d 679 (1944), a case very similar to this one

except that it arose under a transactional immunity

statute, the court held that the defendant’s immu-

nized grand jury testimony could be used to prove a

later act of perjury. The transactional immunity

statute protected the defendant against prosecution

for any offense concerning which his testimony might

tend to incriminate him, the court held, but the im-

munity did not extend to a later act of perjury be-

cause his immunized testimony did not relate to that

offense at the time it was given.

The Court in Murphy and Kastigar clearly did not

intend to suggest that use immunity is broader in

any respect than transactional immunity. Accord-

ingly, the statements in those cases that immunized

testimony may not be used in “any way” must be

interpreted to apply only to uses that the witness

could have avoided by a timely assertion of the privi-

lege.

ce. Petitioner relies (Br. 27) on dicta from several

court of appeals opinions to support his argument

here. Both United States v. Berardelli, 565 F.2d 24

(2d Cir. 1977), and United States v. Patrick, 542

F.2d 381 (7th Cir. 1976), cert. denied, 430 U.S. 931

(1977), were appeals by witnesses who had been

held in contempt for refusing to testify, despite a

grant of immunity. In both cases, the witnesses gave

as their ground for insisting upon their privilege

against compulsory self-incrimination in the face of

the immunity grant the fear that their answers, if

inconsistent with prior testimony they had given,

might be used to convict them of making false decla-

rations under the inconsistent statements theory of

18 U.S.C. 1623(c). In United States v. Housand,

550 F.2d 818 (2d Cir.), cert. denied, 431 U.S. 970

(1977), a prospective defense witness who had ear-

lier testified before the grand jury under a grant of

immunity refused, in the absence of a new grant

of immunity, to testify at trial. The witness’s re-

fusal was upheld by the district court, and the de-

fendant challenged the correctness of that ruling on

appeal.

The contempt convictions of Patrick and Berar-

delli were affirmed, while Housand’s claim was re-

jected. Each opinion explicitly, although unnecessar-

ily and with little supporting analysis, stated that

no incriminating use of any kind could be made of

truthful immunized testimony, even to prove a later

perjury. See also United States v. Apfelbaum, 584

F.2d 1264 (3d Cir. 1978), petition for cert. pend-

ing, No. 78-972. Thus, the courts each stated that

it would violate the witness’s Fifth Amendment

privilege to use statements he made under a grant

of immunity to prove that he later gave inconsistent

testimony while not immunized.

The results in Berardelli, Housand, and Patrick

were correct without regard to their dicta and are

not inconsistent with the result in this case. In each

of those cases, the witness, having previously testi-

fied, was called to testify on the same subject a sec-

ond time. In each case, he invoked his privilege on

the ground that truthful testimony on the second

occasion might tend to establish the falsity of his

prior testimony, thereby incriminating him. Each

invocation of the privilege was plainly proper and

foreclosed the compulsion of testimony without a

grant of immunity. In each instance, moreover, the

grant of immunity would have precluded the use of

the testimony at the second appearance to establish

the falsity of the ,rior testimony, whether pursuant

to an inconsistent statements theory or otherwise.

Since this is so, there was no necessity for the courts

to express any view about the use that might be

made of any immunized testimony, truthful or other-

wise, given during an earlier appearance.

In the instant case, by contrast, petitioner’s second,

inconsistent testimony was volunteered. He could

have invoked his privilege to refuse to give that tes-

timony without a grant of immunity, but he did not

do so. Accordingly, there wa$ here no potential for

the use of compelled, immunized testimony against

petitioner to incriminate him with respect to prior

unlawful conduct. Berardelli, Housand, and Patrick

thus afford no substantial support for petitioner’s

objection to the use of his immunized grand jury

testimony against him in this false declarations pros-

ecution.

RB. The Federal Immunity Statute Does Not Prohibit the

Use of Truthful, Immunized Testimony to Prove the

Falsity of Subsequent, Non-immunized Testimony

Petitioner argues (Br. 23-30) that even if the use

of his immunized testimony that was allowed in this

case does not violate the Fifth Amendment, it is

nevertheless prohibited by the federal immunity stat-

ute, 18 U.S.C. 6002. Petitioner concedes, as he must,

tha‘ the plain language of the immunity statute

pet. .its the use of immunized testimony in a prose-

cution for perjury or giving a false statement. But

he argues that the language of the statute is meant

to apply only to perjury or false statement prosecu-

tions in which the government has charged that the

false statement was made during immunized testi-

mony.

It is beyond dispute that the statutory reference

to prosecutions for “giving a false statement” in-

cludes prosecutions brought under 18 U.S.C. 1628,

the federal false declarations statute.* See United

18 Petitioner suggests otherwise (Br. 26), but as we shall

show, the legislative history of the Act makes it clear that

the reference to “false statements” was intended to encompass

“false declarations” prosecutions brought under 18 U.S.C.

1623.

States v. Anzalone, 555 F.2d 317 (2d Cir. 1977).

Petitioner can therefore prevail on the statutory is-

sue only if the immunity statute was intended to

exclude those false declarations prosecutions in which

the government proceeds under the inconsistent de-

clarations method of proof authorized by subsection

immunity statute reveals no congressional intent to

carve out an exception for that type of false declara-

tions prosecution.

1. The legislative history of the immunity statute

shows that Congress intended to provide only such

immunity as is constitutionally required

The immunity statute applicable to this case, 18

U.S.C. 6002, was enacted as part of the Organized

Crime Control Act of 1970, Pub. L. No. 91-452, Sec-

tion 201(a), 84 Stat. 927. It was drafted in response

to a reexamination of the constitutional principles ap-

plicable to immunity, prompted in part by the decision

in Murphy v. Waterfront Commission, supra, which

indicated that current federal immunity statutes that

granted broad transactional immunity provided more

protection than was required by the Constitution. See

Kastigar v. United States, supra, 406 U.S. at 452 &

n.36. In both the Senate and House reports on the

proposed legislation, it was made clear that the pur-

pose of the new provision was to narrow the scope

of a grant of immunity to precisely what the Consti-

tution requires, and no more:

This statutory immunity is intended to be as

broad as, but no broader than, the privilege

against self-incrimination. * * * It is designed

to reflect the use-restriction immunity concept

of Murphy v. Waterfront Commission, 378 U.S.

52 (1964) rather [than] the transaction immu-

nity concept of Counselman v. Hitchcock, 142

U.S. 547 (1892).

S. Rep. No. 91-617, supra, at 145; H.R. Rep. No. 91-

1549, 91st Cong., 2d Sess. 42 (1970). See also S. Rep.

No. 91-617, supra, at 107-108 (comments of Depart-

ment of Justice).

The proposal for the federal use immunity statute

derived from a 1969 report of the National Commis-

sion on the Reform of the Federal Criminal Laws.

See II Working Papers of the National Commission

on Reform of Federal Criminal Laws 1445-1448

(1970). The report proposed a general federal use

immunity statute under which “the immunity con-

ferred would be confined to the scope required by the

fifth amendment” (id. at 1405). See also Senate

Hearings, supra, at 326.

The statements of the sponsors of the bill, like the

comments in the House and Senate Reports, reflect

a general understanding that the bill would restrict

immunity to the scope required by the Constitution.

Senator McClellan, the chief sponsor of the bill in the

Senate, emphasized that the bill was designed to

provide only the minimum required immunity. “Giv-

ing immunity where it is not necessary,” he stated,

“is giving an unnecessary gratuity to a crime, a step

no sane society ought ever to take.” 115 Cong. Ree.

5879 (1969). Representative Poff, the chief sponsor

in the House, observed that the bill would give a wit-

ness “all that is guaranteed him under the Constitu-

tion” (116 Cong. Rec. 35291 (1970) ). Quoting Mr.

Justice White’s observation in Murphy v. Waterfront

Commission, supra, 378 U.S. at 107, he added that

“<Ti]mmunity must be as broad as, but not harm-

fully and wastefully broader than, the privilege

19 The language of the statute proposed by the Commission

was largely similar to that found in the present statute. The

pertinent portion of the Commission’s proposal read (II

Working Papers, supra, at 1447):

[N]either the testimony nor other compelled disclosures

of the witness, nor any information or evidence derived

therefrom, shall be used against the witness in any

criminal case, except a prosecution for perjury or any

other offense constituting a failure to comply with such

direction.

The initial draft of S. 30, the bill that ultimately became

the Organized Crime Control Act of 1970, contained a some-

what different immunity provision. Like the Commission’s

proposal, it provided for use and derivative use immunity

rather than transactional immunity. But, among other differ-

ences, it contained a narrower description of the cases in

which immunized testimony could be used than the Commis-

sion’s proposal. The initial S. 30 provision prohibited the use

of immunized testimony in any proceeding “other than in con-

nection with a prosecution for perjury or contempt committed

while giving testimony or producing evidence under com-

pulsion as provided in this section.” S. 30, 91st Cong., 1st Sess.

(1969), reprinted in Senate Hearings, supra, at 14. At the

suggestion of the Department of J ustice, that provision was

discarded in favor of the Commission’s proposal. With minor

language changes, the Commission’s proposal was introduced

as S. 2122 and was ultimately incorporated as part of the Act.

See S. Rep. No. 91-617, supra, at 55.

against self-incrimination’” (116 Cong. Ree. 35291

(1970) ).

These legislative materials make it clear that Con-

gress did not intend to grant any broader protection

to an immunized witness than is required by the

Constitution. The statute therefore should not be

construed, as petitioner seeks, to impose an additional

and more stringent limitation on the uses to which

immunized testimony may be put.

Finding the legislative history “unclear,” petitioner

argues (Br. 24-25) that the wording of the last clause

of the immunity statute suggests a narrow construc-

tion of the uses to which immunized testimony may

be put. That clause prohibits the use of immunized

testimony in any criminal case “except a prosecution

for perjury, giving a false statement, or otherwise

failing to comply with the [immunity] order.” Be-

cause the last of these specified exceptions starts with

the words “or otherwise,” petitioner argues that Con-

gress must have intended all the exceptions to be

limited to cases in which the witness has failed to

comply with the order, either by testifying falsely

or by refusing to testify at all. See United States

v. Berardelli, supra, 565 F.2d at 29; United States

v. Patrick, supra, 542 F.2d at 385-386; United States

v. Alter, 482 F.2d 1016, 1028 (9th Cir. 1973).

While that is certainly a plausible interpretation

of the statutory language,” it is not a necessary one.

2° As petitioner correctly points out, the government has en-

dorsed that construction previously. See United States V.

In light of the strong indication in the legislative

history that Congress meant to permit the use of

immunized testimony to the extent permissible under

the Constitution, and in light of the unpalatable re-

sult that petitioner’s construction produces in cases

such as this, we submit that the statute should not

be given such a restrictive construction.

The fact is that the exceptions clause was not

added for the purpose of limiting the use to which

immunized testimony could be put. The list of ex-

ceptions was added for quite the opposite reason:

to forestall a construction that would unnecessarily

restrict the uses to which immunized testimony could

be put. As both the Senate and House reports stated:

“The exception for perjury, false statements or other

failure to comply with the order is probably unneces-

sary. * * * It is included out of caution to insure that

such immunity is not given.” S. Rep. No. 91-617,

supra, at 145; H.R. Rep. No. 91-1549, supra, at 42.

Congress thus assumed, in accordance with decisions

of this Court, that the ostensibly restrictive language

of use immunity statutes would not preclude uses of

immunized testimony that are not inconsistent with

the Constitution. See United States v. Bryan, supra,

339 U.S. at 338-340; Heike v. United States, supra,

227 U.S. at 141; Glickstein v. United States, supra.

In both Glickstein and Bryan, the Court construed

immunity statutes to permit uses of immunized testi-

mony consistent with the Constitution, but not speci-

fied in the pertinent immunity statute. In Glick-

Alter, supra. We now believe, for the reasons given here, that

the position advanced in Alter is incorrect.

stein, the Court construed a statute that prohibited

the use of immunized testimony “in any criminal pro-

ceeding” to permit its use in a prosecution for perjury

(222 U.S. at 143), and in Bryan, the Court con-

strued an immunity statute that prohibited the use

of immunized testimony “in any criminal proceeding

against [the witness] in any court, except in a prose-

cution for perjury committed in giving such testi-

mony” to permit the use of immunized testimony in

a prosecution for contempt (339 U.S. at 342). The

Court in those cases observed that the term “in any

criminal proceeding” was added “ ‘only from super-

fluous caution and throws no light on the construc-

tion.’”’ United States v. Bryan, supra, 339 U.S. at

342; Glickstein v. United States, supra, 222 U.S. at

143.

Because the “exceptions” clause in Section 6002,

like the even narrower exceptions clauses in Bryan

and Glickstein, was inserted solely as a precaution

against a restrictive reading of the statute, the clause

should not be read to impose restrictions on the use

of immunized testimony that would not have been

imposed in its absence. For that reason, the term

“criminal case” in Section 6002 should be construed

to refer to criminal prosecutions for or relating to

the conduct about which the witness testified, not to

any criminal prosecution that may be brought for

misconduct committed by the witness in the course

of his testimony or afterwards.* See United States

v. Tramunti, supra.

21 Petitioner’s construction of the statute would produce

anomalous results. For example, under petitioner’s construc-

2. Prosecutions under Section 1623 were intended to be

among the prosecutions for “giving a false state-

ment” under the immunity statute

Petitioner contends that although the statute per-

mits the use of immunized testimony in a conven-

tional perjury or false statements prosecution, it pro-

hibits the use of immunized testimony in a false

declarations case based upon the inconsistent state-

ments theory of Section 1623(c). Even if petitioner

can overcome the manifest intent of Congress that

the immunity statute should not be construed to re-

strict any use of immunized testimony that is per-

missible under the Constitution, his contention never-

theless fails because the legislative history of the false

declarations statute, 18 U.S.C. 1623, demonstrates

that the use of immunized testimony in a false decla-

rations prosecution is permissible even when the gov-

ernment uses the “inconsistent declarations” method

of proof.

The false declarations statute, 18 U.S.C. 1623, like

the federal use immunity statute, was enacted as

part of the Organized Crime Control Act of 1970.*

It was designed to make false swearing easier to

prove by doing away with several common law rules

of evidence that traditionally had applied to prosecu-

tion, if a witness committed a crime in the grand jury room,

such as offering the grand jurors a bribe, the testimony that

constituted the offense could not be introduced against him,

even though the Constitution would plainly not forbid that use.

22 The immunity provisions were contained in Title II of

the Act, while the false declarations statute was contained

in Title IV. Pub. L. No. 91-452, Section 401 (a), 84 Stat. 932.

tions under the federal perjury statute, 18 U.S.C.

1621. In order to facilitate prosecutions for false

swearing before or ancillary to a grand jury or a

court, Congress therefore made the common law rules

such as the two-witness rule and the direct-evidence

rule inapplicable to prosecutions under Section 1623.

This step, it was thought, would result in “greater

assurance that testimony obtained in grand jury and

court proceedings will aid the cause of truth.” S.

Rep. No. 91-617, supra, at 57-59; see also H.R. Rep.

No. 91-1549, supra at 33. In addition, in order fur-

ther to ease the traditional difficulties faced by the

prosecution in perjury cases, Congress provided that

contradictory statements under oath could supply

the basis for a perjury prosecution without specific

proof of the falsity of one of the statements. 18

U.S.C. 1623(c); S. Rep. No. 91-617, supra, at 58.

One of the main reasons that Congress sought to

facilitate prosecutions for false swearing was to pro-

vide meaningful sanctions to ensure that immunized

testimony would be truthful. See S. Rep. No. 91-617,

supra, at 58. In explaining the liberalized provisions

for proving a false declarations offense, Senator Mc-

Clellan observed (115 Cong. Rec. 5880 (1969) ):

A subpena can compel the attendance of a wit-

ness before a grand jury or at trial. An im-

munity grant can displace his privilege against

self-incrimination. The threat of imprisonment

for civil contempt can legitimately coerce him

into testifying. But only the possibility of a

perjury prosecution, or some related sanction,

can provide any guarantee that his testimony

will be truthful.

Similarly, during the debate in the House, Repre-

sentative Poff emphasized that the provisions in the

statute facilitating the proof of false declarations

would be equally applicable to prosecutions involving

immunized testimony (116 Cong. Rec. 35292 (1970) ):

The integrity of the criminal trial depends

upon the power to compel truthful testimony and

to punish falsehood. Witness immunity such as

title II will provide can be an effective prosecu-

tive weapon only if the immunized witness testi-

fies truthfully. The infrequency of the use of

perjury sanctions—due to the difficulty of secur-

ing convictions under existing law—has limited

the effectiverw’ss of established criminal sanctions

for false statements under oath.

Thus, far from intending to exclude the use of com-

pelled testimony in false declarations prosecutions,

Congress was concerned with guaranteeing the truth-

fulness of all types of formal testimony, including

that of immunized witnesses, when it introduced the

liberalized proof provisions embodied in Section

1623.** The fact that the language of the immunity

23 Petitioner’s argument (Br. 26) that the cases cited in the

legislative history concern only the traditional type of per-

jury such as that prohibited by 18 U.S.C. 1621, and that

Congress therefore must have intended an exception no

broader than that allowed by earlier statutes, is plainly flawed.

Because Congress was only then enacting the new false dec-

larations statute, there were obviously no cases interpreting

the previously nonexistent offense. What is far more signifi-

statute makes no specific reference to a prosecution

based on the inconsistent statements theory of proof

is neither surprising nor significant. The immunity

statute plainly was intended to permit the use of

immunized testimony to prove a false declarations

offense. The inconsistent statements theory is simply

an alternative method of proving a violation of that

statute, and it could hardly be expected that it would

be mentioned separately from (and redundantly to)

the false declarations offense with which it is as-

sociated.

The basic reason for the traditional rule that the

government can prosecute a witness for lying under

a grant of immunity applies as well to cases in which

the witness makes subsequent sworn statements in-

consistent with his grand jury testimony. Perjured

testimony is, of course, worthless to the grand jury.

Therefore, if there is no effective sanction for perjury,

the grand jury cannot be reasonably assured of get-

ting useful testimony in exchange for the immunity

granted to the witness. Similarly, if an immunized

witness gives one story in the grand jury room and

a contrary story at trial or in some other proceed-

ing, his recantation frustrates the purpose of the

grant of immunity just as much as if he had origi-

nally lied or refused to testify. Once the witness

claims under oath that his previous sworn testimony

cant is that when Congress decided to add the new false

declarations statute to the Act, it added parallel language to

the proposed immunity statute referring not only to “per-

jury,” but to “giving a false statement” as well. See page

60, note 19, supra.

was untrue, it no longer matters which statement is

true and which is false. The value of his testimony

is impaired as effectively as if he had given two con-

tradictory answers to the grand jury in response to

every question.” Under petitioner’s theory, unless the

government has some reliable way of proving which

of his two statements was false, he is free to repudiate

his grand jury testimony with impunity. That, we

submit, was not what the Congress that passed the

false declarations and use immunity statutes had in

mind,

For these reasons, we submit that it is not justi-

fied in this case to ignore the plain language of the

immunity statute, which permits the use of immu-

nized testimony in a prosecution, such as this one, for

“siving a false statement.”

2 Although it would require a particularly brazen witness

to engage in such a practice, his situation would not be ma-

terially different from petitioner’s. If petitioner is correct

that the government cannot employ the inconsistent state-

ments theory of proof to show that one of his two statements

was false, the same argument would apply to the witness who

gave two contradictory answers to every question. The argu-

ment, identical to petitioner’s, would be that neither statement

can be used because either may be true, even though it is

clear that both are not. Thus, unless the government could

establish by independent evidence that one of the statements

was in fact false, it would have no way to punish the witness

in spite of the fact that he, like petitioner here, would indis-

putably have perjured himself.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.