The opinion of the court was delivered by: BRYAN
This is a proceeding to hold respondent in criminal contempt of court, pursuant to 18 U.S.C. § 401. The contempt charged is the alleged refusal of respondent to answer certain questions propounded to him as a witness before a Grand Jury, after a grant of immunity conferred on him pursuant to 18 U.S.C. § 1406.
A hearing was held before me and testimony was taken. Evidence was offered on behalf of the United States and received. No evidence was offered on behalf of respondent.
There is no dispute as to the facts. The uncontradicted evidence offered by the United States at the hearing established the facts to be, and I find them to be, as follows:
1. On January 15, 1959 respondent Pasquale Pagano duly appeared before a Grand Jury in this district pursuant to a subpoena.
2. The Grand Jury before which Pasquale Pagano appeared was duly constituted and fully empowered to investigate matters relating to alleged violations of the Federal Narcotics Laws and other violations of federal law.
3. Pasquale Pagano was asked questions which were relevant and pertinent to matters pending before the Grand Jury, and Pagano refused to answer on the ground that his answers might tend to incriminate him, relying on his rights under the Fifth Amendment to the Constitution of the United States.
4. After authorization by letter from the Attorney General of the United States, the United States Attorney for the Southern District of New York applied to this court on January 20, 1959 for an order directing Pasquale Pagano to testify pursuant to the provisions of 18 U.S.C. § 1406.
5. On January 28, 1959 the Honorable Archie O. Dawson, a judge of this court, after a hearing at which Pasquale Pagano and his counsel were present, duly issued an order directing Pagano to return before the Grand Jury on February 9, 1959 and to answer the questions propounded to him, subject to the provisions of 18 U.S.C. § 1406.
6. On February 9, 1959 Pasquale Pagano appeared before the Grand Jury and was asked the same questions propounded to him on January 15, 1959, except that several questions asked at Pagano's first appearance were not asked him on February 9, 1959.
7. On February 9, 1959 Pagano refused to answer the questions so put to him on the ground that the answers might tend to incriminate him and again relied on his rights under the Fifth Amendment to the Constitution of the United States.
8. On February 9, 1959 this court ordered Pagano to show cause why he should not be adjudged in contempt of this court for failure to answer such questions before the Grand Jury on said day.
The authenticity of the minutes of the proceedings before the Grand Jury on January 15 and February 9, 1959 are admitted and respondent also concedes that the procedures followed have been in compliance with the statutory requirements of 18 U.S.C. § 1406. Respondent offered no evidence at the hearing and he raises only questions of law.
18 U.S.C. § 1406 provides in effect that when in the judgment of a United States Attorney testimony of a witness before a Grand Jury concerning the violation of certain of the narcotic laws is in the public interest, upon the approval of the Attorney General he may apply for an order of the court that the witness shall be instructed to testify. The entry of such an order removes the witness' privilege against self-incrimination. The statute, however, provides the witness with immunity from subsequent prosecution in the following language:
'* * * no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used ...