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PILLSBURY CO. ET AL. v. CONBOY

decided: January 11, 1983.

PILLSBURY CO. ET AL
v.
CONBOY



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, and Rehnquist, JJ., joined. Marshall, J., filed a concurring opinion, post, p. 264. Brennan, J., post, p. 271, and Blackmun, J., post, p. 272, filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion, in which O'connor, J., joined, post, p. 282.

Author: Powell

[ 459 U.S. Page 249]

 JUSTICE POWELL delivered the opinion of the Court.

Pursuant to the federal use immunity provisions, 18 U. S. C. §§ 6001-6005, a United States Attorney may request an order from a federal court compelling a witness to testify even though he has asserted his privilege against self-incrimination. Section 6002 provides, however, that "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case . . . ." The issue presented in this case is whether a deponent's civil deposition testimony, repeating

[ 459 U.S. Page 250]

     verbatim or closely tracking his prior immunized testimony, is immunized "testimony" that can be compelled over the valid assertion of his Fifth Amendment privilege.

I

Respondent John Conboy is a former executive of a defendant in In re Corrugated Container Antitrust Litigation, M. D. L. 310 (SD Tex.). In January 1978, United States Department of Justice attorneys interviewed Conboy following a promise of use immunity. Conboy subsequently appeared before a grand jury investigating price-fixing activities and, pursuant to 18 U. S. C. § 6002, was granted formal use immunity for his testimony.

Following the criminal indictment of several companies, numerous civil antitrust actions were filed in various United States District Courts. Those actions were consolidated for discovery in the District Court for the Southern District of Texas. Petitioners here are purchasers of corrugated containers who elected to opt out of the class-action proceedings and pursue their own causes of action against manufacturers. The District Court ordered that portions of the immunized Government interview and grand jury testimony of certain witnesses, including that of Conboy, be made available to lawyers for the class and opt-outs.*fn1

Pursuant to a subpoena issued by the District Court for the Northern District of Illinois, Conboy appeared in Chicago for a deposition at which he, his counsel, and petitioners' counsel had copies of his immunized testimony. The transcripts were marked as deposition exhibits so that all could follow the intended examination. The questioning fell into the following pattern: a question was read from the transcript; it then was rephrased to include the transcript answer (i. e.,

[ 459 U.S. Page 251]

     "Is it not the fact that . . ."); finally, Conboy was asked if he had "so [testified]" in his immunized interview and grand jury examination.*fn2 Conboy refused to answer each question, asserting his Fifth Amendment privilege against self-incrimination.

The District Court granted petitioners' motion to compel Conboy to answer the questions.*fn3 When Conboy continued to claim his privilege, the District Court held him in contempt, but stayed its order pending appeal. A panel of the Court of Appeals for the Seventh Circuit affirmed the contempt order, holding that, "[because] the questions asked in this deposition were taken verbatim from or closely tracked the transcript of Conboy's grand jury testimony, we believe that his answers at the deposition would be 'derived from' the prior immunized [testimony] and therefore unavailable for use in any subsequent criminal prosecution." In re Corrugated Container Antitrust Litigation, Appeal of Conboy, 655 F.2d 748, 751 (1981).

On rehearing en banc, the Court of Appeals reversed the District Court. 661 F.2d 1145 (1981). It first determined that Conboy's alleged fear of prosecution was more than "fanciful," id., at 1152, and that Conboy therefore was entitled to assert his Fifth Amendment privilege unless his deposition

[ 459 U.S. Page 252]

     testimony could not be used against him in a subsequent criminal action, see id., at 1153.*fn4 The court then held that under § 6002, absent a separate and independent grant of immunity,*fn5 a deponent's civil deposition testimony that repeats verbatim or closely tracks his prior immunized testimony is not protected. While acknowledging that verbatim questions "of course [would be] derived" from the immunized testimony, the court reasoned that the answers to such questions "are derived from the deponent's current, independent memory of events" and thus "necessarily create a new source of evidence" that could be used in a subsequent criminal prosecution against Conboy. Id., at 1155 (emphasis in original).

We granted certiorari to resolve the conflict in the Courts of Appeals,*fn6 454 U.S. 1141 (1982), and now affirm.

II

It is settled that government must have the power to compel testimony "to secure information necessary for effective law enforcement." Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 (1964).*fn7 For many years, however, a person who was compelled to testify under a grant of governmental

[ 459 U.S. Page 253]

     immunity could not be prosecuted for any conduct about which he had testified. See New Jersey v. Portash, 440 U.S. 450, 457 (1979). Prosecutors therefore were reluctant to grant such "transactional" immunity to potential targets of criminal investigations. See S. Rep. No. 91-617, p. 53 (1969).

The "major purpose" of the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922, of which § 6002 was a key provision, was "to provide the criminal justice system with the necessary legal tools to . . . [strengthen] the evidence gathering process and [insure] that the evidence will then be available and admissible at trial." 116 Cong. Rec. 35200 (1970) (statement of Rep. St Germain). Congress sought to make the grant of immunity more useful for law enforcement officers through two specific changes. First, Congress made the grant of immunity less expansive*fn8 by repealing the authority for transactional immunity and providing for the less comprehensive use immunity authorized in § 6002.*fn9 Second, Congress gave certain officials in

[ 459 U.S. Page 254]

     the Department of Justice*fn10 exclusive authority to grant immunities.*fn11

The Court upheld the constitutionality of the use immunity statute in Kastigar v. United States, 406 U.S. 441 (1972). The power to compel testimony is limited by the Fifth Amendment, and we held that any grant of immunity must be coextensive with the privilege. We were satisfied, however,

[ 459 U.S. Page 255]

     that § 6002 provided this measure of protection and thus "removed the dangers against which the privilege protects." Id., at 449. In rejecting the argument that use and derivative-use immunity would not adequately protect a witness from various incriminating uses of the compelled testimony, we emphasized that "[the] statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom . . . ." Id., at 460. We added that once a defendant establishes that he has testified under a grant of immunity, "the prosecution [has] the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Ibid. Thus, "immunity from use and derivative use 'leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege' in the absence of a grant of immunity." Id., at 458-459 (quoting Murphy, 378 U.S., at 79).

III

With the foregoing statutory history and relevant principles in mind, we turn now to this case. It is not disputed that the questions asked of Conboy were directly or indirectly derived from his immunized testimony. The issue as presented to us is whether the causal connection between the questions and the answers is so direct that the answers also are derived from that testimony and therefore should be excluded under the grant of immunity.

Petitioners' argument is based on the language of § 6002 and on a common understanding of the words "derived from." The questions formulated on the basis of immunized testimony are clearly "derived from" the prior testimony. Thus, the answers that repeat verbatim or closely track a deponent's testimony are necessarily also "derived from" and "tainted by" such testimony. Petitioners therefore find no basis for the distinction made by the Court of Appeals between questions and answers responsive to those same questions.

[ 459 U.S. Page 256]

     An answer by its very nature is evoked by and responds to information contained in a question.

Conboy's position is also straightforward: Questions do not incriminate; answers do. Unlike the questions, answers are not directly or indirectly derived from the immunized grand jury or interview transcripts, but from the deponent's current, independent memory of events. Even when a deponent's deposition answers are identical to those he gave to the grand jury, he is under oath to tell the truth, not necessarily as he told it before the grand jury, but as he knows it now. Each new statement of the deponent creates a new "source." In sum, the initial grant of immunity does not prevent the prosecutor from prosecuting; it merely limits his sources of evidence.

Although the parties make their arguments in terms tracking those of the statute -- whether the deposition testimony is "derived from" the prior testimony -- it is clear that the crux of their dispute is whether the earlier grant of immunity itself compelled Conboy to talk.*fn12 Petitioners contend that the prior grant of immunity already had supplanted Conboy's Fifth Amendment privilege at the time of the civil deposition. Petitioners would limit this immunity, of course, to testimony that "closely tracks" his prior immunized testimony. It is argued that this would not threaten the Government's need for admissible evidence or the individual's interest in avoiding self-incrimination. In the absence of such a threat, admissible evidence should be available to civil antitrust plaintiffs. But we cannot accept the assumptions upon which petitioners' conclusion rests. In our view, a District Court cannot compel Conboy to answer deposition questions over a

[ 459 U.S. Page 257]

     valid assertion of his Fifth Amendment right, absent a duly authorized assurance of immunity at the time.*fn13

We note at the outset that although there may be practical reasons for not testifying,*fn14 as far as the deponent's Fifth Amendment right is concerned he should be indifferent between the protection afforded by silence and that afforded by immunity. A deponent's primary interest is that the protection be certain. The Government's interest, however, may be affected seriously by whether the deponent relies at the civil deposition on his Fifth Amendment privilege or on his prior grant of immunity. With due recognition of petitioners'

[ 459 U.S. Page 258]

     need for admissible evidence, our inquiry then is whether this need can be met without jeopardizing the Government's interest in limiting the scope of an immunity grant or encroaching upon the deponent's certainty of protection.

A

Questions taken verbatim from a transcript of immunized testimony could evoke one of several responses from a deponent: (i) he could repeat or adopt his immunized answer;*fn15 (ii) he could affirm that the transcript of his immunized answers accurately reflects his prior testimony; (iii) he could recall additional information responsive to the question but not disclosed in his immune testimony; or (iv) he could disclose information that is not responsive to the question. Petitioners do not contend, nor could they, that the prior grant of use immunity affords protection for all self-incriminating information disclosed by the immunized witness on any occasion after the giving of the immunized testimony. Rather, petitioners argue that only the first three responses would be "derived from" his immune testimony and therefore would be unavailable for use against the deponent in any subsequent criminal prosecution.

Petitioners' premise is that the deposition of Conboy is designed not to discover new information,*fn16 but to obtain evidence

[ 459 U.S. Page 259]

     that simply repeats the statements in the immunized transcript.*fn17 Because there will be little opportunity for the grant of immunity to sweep in statements on direct examination that the Government did not intend to immunize, or for the deponent to give responses that may fall outside of the grant of immunity and later be used against him in a subsequent criminal prosecution, petitioners argue that Conboy's deposition will yield only a carbon copy of the grand jury transcript. In such a situation, it would be desirable for civil plaintiffs, particularly those bringing private suits that supplement the criminal enforcement of the federal antitrust laws, to have access to the available, probative information.

But even if the direct examination is limited to the questions and answers in the immunized transcript, there remains the right of cross-examination,*fn18 a right traditionally relied upon expansively to test credibility as well as to seek the truth. Petitioners recognize this problem, but maintain that the antitrust defendants "would be entitled to test the accuracy

[ 459 U.S. Page 260]

     and truthfulness of Conboy's repeated immunized testimony without going beyond the confines of that testimony." Reply Brief for Petitioners 14-15. Regardless of any limitations that may be imposed on its scope,*fn19 however, cross-examination is intended to and often will produce information not elicited on direct. We must assume that, to produce admissible evidence, the scope of cross-examination at the deposition cannot easily be limited to the immunized testimony. This assumption implicates both the Government's and the individual's interests embodied in § 6002.

B

Use immunity was intended to immunize and exclude from a subsequent criminal trial only that information to which the Government expressly has surrendered future use. If the Government is engaged in an ongoing investigation of the particular activity at issue, immunizing new information (e. g., the answers to questions in a case like this one) may make it more difficult to show in a subsequent prosecution that similar information was obtained from wholly independent sources. If a district court were to conclude in a subsequent civil proceeding that the prior immunity order extended to civil deposition testimony closely tracking the immunized testimony, it in effect could invest the deponent with transactional immunity on matters about which he testified at the immunized proceedings. This is precisely the kind of immunity Congress intended to prohibit. The purpose of § 6002 was to limit the scope of immunity to the level that is constitutionally required, as well as to limit the use of

[ 459 U.S. Page 261]

     immunity to those cases in which the Attorney General, or officials designated by him, determine that gaining the witness' testimony outweighs the loss of the opportunity for criminal prosecution of that witness.*fn20

C

Petitioners' interpretation of § 6002 also places substantial risks on the deponent.*fn21 Unless the grant of immunity assures a witness that his incriminating testimony will not be used against him in a subsequent criminal prosecution, the witness has not received the certain protection of his Fifth Amendment privilege that he has been forced to exchange. No court has authority to immunize a witness. That responsibility, as we have noted, is peculiarly an executive one, and only the Attorney General or a designated officer of the Department of Justice has authority to grant use immunity. See 18 U. S. C. §§ 6002, 6003. Nor should a court, at the time of the civil testimony, predetermine the decision of the court in a subsequent criminal prosecution on the question whether the Government has met its burden of proving that "the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Kastigar, 406 U.S., at 460. Yet in holding Conboy in contempt for his Fifth Amendment silence, the District Court below essentially predicted that a court in any future criminal prosecution of Conboy will be obligated to protect against evidentiary use of the deposition testimony petitioners seek. We do not think such a predictive judgment is enough.

[ 459 U.S. Page 262]

     Petitioners' interpretation of § 6002 imposes risks on the deponent whether or not the deposition testimony properly can be used against him in a subsequent criminal prosecution.*fn22 Accordingly, the District Court's compulsion order in this case, in the absence of statutory authority or a new grant of immunity by the United States Attorney, cannot be justified by the subsequent exclusion of the compelled testimony. As JUSTICE MARSHALL notes in his concurring opinion: "Whatever justification there may be for requiring a witness to give incriminating testimony in aid of a criminal investigation after the Government has granted use immunity, there is no similar justification for compelling a witness to give incriminating testimony for the benefit of a private litigant when the Government has not chosen to grant immunity." Post, at 267.

The result of compelling testimony -- whether it is immunized or excluded -- is that the Government's interests, as well as the witness', suffer. Reliance on judicial exclusion of nonimmunized testimony would be inconsistent with the congressional policy of leaving the granting of immunity to the Executive Branch.

As the Court stated in Maness v. Meyers, 419 U.S. 449 (1975), compelling a witness to testify in "reliance upon a later objection or motion to suppress would 'let the cat out' with no assurance whatever of putting it back." Id., at 463. We believe Conboy acted properly in maintaining his silence in the face of the District Court's compulsion order and by testing the validity of his privilege on appeal.

IV

This Court has emphasized the importance of the private action as a means of furthering the policy ...


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