Fifth Amendment nor the immunity statute. Gallo, 859 F.2d at 1081.
Relying upon Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968), the court rejected the Government's argument for the imposition of an inflexible "chronological formula." Instead, the court adopted Marchetti's "substantiality of the risks of incrimination" test as the proper standard. Gallo, 859 F.2d at 1081 (citing Marchetti, 390 U.S. at 54, 88 S. Ct. at 706). In Marchetti, the Supreme Court had held that the registration provisions of the gambling tax statutes were unconstitutional on the ground that "prospective registrants can reasonably expect that registration . . . will significantly enhance the likelihood of their prosecution for future acts, and that it will readily provide evidence which will facilitate their convictions." Id. (emphasis added) (quoting Marchetti, 390 U.S. at 54, 88 S. Ct. at 706).
Although a concurring opinion, Judge Van Graafeiland's discussion of this issue is also instructive.
In Judge Van Graafeiland's opinion, "[Gallo] squarely presents the issue whether Justice Powell's broad language in Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), was intended to mean that a grant of immunity under section 6002 will provide derivative use immunity for crimes not yet committed or even contemplated when the grant was made." Gallo, 859 F.2d at 1087. Judge Van Graafeiland noted that "the traditional, long-settled constitutional rule was that the privilege against self-incrimination 'has relation only to past acts, not to future acts that may or may not be committed.'" Gallo, 859 F.2d at 1087 (quoting United States v. Kahriger, 345 U.S. 22, 32, 73 S. Ct. 510, 515, 97 L. Ed. 754 (1953)). Although Judge Van Graafeiland acknowledged that in Marchetti the Supreme Court had abandoned the rigid chronological distinction between past and future criminal actions, he noted that the Marchetti Court also had recognized that "'prospective acts will doubtless ordinarily involve only speculative and insubstantial risks of incrimination.'" Gallo, 859 F.2d at 1087 (quoting Marchetti, 390 U.S. at 54, 88 S. Ct. at 705 (other citations omitted)). Thus, Judge Van Graafeiland concluded that "the only hazards of incrimination that are likely to be considered substantial and real are those which relate to existing or past misdeeds or a continuing course of criminal activity." Gallo, 859 F.2d at 1088 (emphasis added) (citing United States v. Quatermain, Drax, 613 F.2d 38, 42-43 (3d Cir.), cert. denied, 446 U.S. 954, 100 S. Ct. 2923, 64 L. Ed. 2d 812 (1980)).
In the present case, there is no evidence to suggest that Mr. Andrello contemplated the crimes for which he was convicted in the present case at the time he gave his testimony to the grand jury and at the Minicone trial. Nor is there any indication, other than Mr. Andrello's bald assertion to that effect, that the crimes for which he was indicted in the present case are related to the activities involved in the RICO prosecution such as to constitute a "continuing course of criminal activity." In fact, the only evidence which the court has concerning this issue is to the contrary.
In support of its position that the statements of Agent Lawrence and Mr. Muscarella were not derived from Mr. Andrello's immunized testimony, the Government submitted the affidavit of AUSA Kevin McCormack. Mr. McCormack was responsible for interviewing Mr. Andrello prior to his testimony at the Minicone trial. With respect to the October 2, 1989, purchase about which Mr. Muscarella testified, Mr. McCormack asserts that
the 1987 cooperation agreement did not provide Andrello with immunity for the 1990 [sic] Ruger transaction.
That agreement expressly related only to crimes committed prior to August 27, 1987. That Andrello was not immune is demonstrated by the fact that ATF investigated the matter and forwarded a report to my office for prosecution.