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IN RE HEIMERLE

March 4, 1992

In re Subpoena of James Heimerle; UNITED STATES against JOHN GOTTI and FRANK LOCASCIO, Defendants.


The opinion of the court was delivered by: I. LEO GLASSER

AMENDED MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 James Heimerle moves to quash a subpoena commanding him to appear as a witness at trial. Heimerle, who is currently on probation, argues that the grant of statutory immunity he anticipates receiving is inadequate to protect his fifth amendment rights; specifically, Heimerle fears that his immunized testimony may be used against him in a future probation revocation proceeding. In the alternative, he argues that he should not be compelled to appear when the government refuses to provide him in advance with the minutes of his grand jury testimony. In addition, Heimerle argues that even if the subpoena is allowed to stand, he should be furnished with a transcript of his prior testimony.

 I. HEIMERLE'S FIFTH AMENDMENT CLAIM

 A. Section 6002

 Section 6002 of Title 18, under which Heimerle expects to receive immunity, reads in pertinent part:

 Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify . . before . . . a court or grand jury of the United States, . . . and the person presiding over the proceeding communicates to the witness an order issued under this part [i.e., section 6003], the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony . . . compelled under the order [or information derived therefrom] may be used against the witness in any criminal case, except a prosecution for perjury . . . .

 In Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), the Supreme Court found section 6002 constitutionally consistent with the fifth amendment prohibition against self-incrimination. Specifically, the Court held that section 6002 immunity "is coextensive with the privilege and suffices to supplant it." Id. at 462. Indeed, the Court also stated that such immunity "leaves the witness . . . in substantially the same position as if the witness had claimed the Fifth Amendment privilege." *fn1" Id.; accord United States v. Bell, 902 F.2d 563, 565 (7th Cir. 1990); In re Grand Jury Proceedings, 860 F.2d 11, 14 (2d Cir. 1988).

 Heimerle attempts to deny that the holding of Kastigar controls in this case, and argues instead that the reach of the fifth amendment extends beyond the protection afforded under section 6002. At the outset, he notes correctly that while the language of the fifth amendment refers only to "criminal" cases, it has been liberally construed to protect against the compulsion of testimony that could be used against the witness in "quasi-criminal" proceedings. See, e.g., In re Gault, 387 U.S. 1, 49, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) (juvenile delinquency proceedings); Boyd v. United States, 116 U.S. 616, 638, 29 L. Ed. 746, 6 S. Ct. 524 (1886) (forfeiture proceedings).

 Heimerle then asserts that only a literal reading of section 6002 -- which also refers only to "criminal" cases -- is permissible, since (unlike the fifth amendment) section 6002 is merely a statute. Specifically, Heimerle contends that "the use of the phrase 'criminal case' is clear and unambiguous and, thus, the inquiry must end there, resulting in a determination that this statute cannot protect a witness against use of his testimony in a 'quasi-criminal' or 'hybrid' proceeding." Mem. at 17-18. As Judge Posner has remarked in a different context, however, statutory construction does not turn on such simplistic assertions:

 A sheep is more like a goat than it is like an ostrich; but if a statute regulating sheep had been applied to goats, an attempted application to ostriches could not be defeated simply by pointing out that an ostrich is not a sheep. If "attorney" in the fee statute can mean something different from attorney, then maybe one of the other things "attorney's fee" can mean is the fee paid an expert witness or consultant.

 Friedrich v. City of Chicago, 888 F.2d 511, 513 (7th Cir. 1989).

 A reading of the cases interpreting section 6002 makes clear that it applies equally to proceedings which are not technically "criminal" in nature:

 Appellants have argued at some length that section 6002 is unconstitutional because, while it prohibits the use in "any criminal case" of any evidence obtained under the compulsion of an immunity grant, it does not expressly proscribe the use of compelled testimony or its fruits in proceedings to impose fines, penalties or forfeitures. That argument is without merit. The language of the statute simply repeats verbatim the language of the fifth amendment in that regard and must be read as incorporating the attendant judicial glosses on the constitutional language. Accordingly, the statute as written prohibits the ...


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