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IN RE BUONACOURE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


March 18, 1976

IN RE: GRAND JURY INVESTIGATION AMERICO BUONACOURE, A WITNESS UNITED STATES OF AMERICA ex rel., GRAND JURY INVESTIGATION
v.
AMERICO BUONACURE, A WITNESS

The opinion of the court was delivered by: DITTER

DITTER, J.

 This case involves an immunized witness who was jailed for contempt and subsequently indicted for activities related to those about which he refused to testify. *fn1" He has petitioned the court for release from incarceration or, in the alternative, to have the indictment dismissed. I conclude that he is not entitled to either remedy, and therefore relief must be denied.

 On March 24, 1975, petitioner Americo Buonacuore was called before the grand jury sitting on Mondays in this district to testify about organized gambling activities which possibly constituted violations of 18 U.S.C. §§ 1955 and 371. *fn2" Invoking his Fifth Amendment privilege against self-incrimination, Buonacuore refused to provide any information. The Government thereafter moved, pursuant to 18 U.S.C. § 6001 et seq., for an order of immunization compelling his testimony. Buonacuore countered with a petition to quash his grand jury subpoena and to deny immunization. Following a hearing, I granted the Government's motion and refused Buonacuore's. He thereafter persisted in his refusal to answer questions propounded to him before the grand jury, and the Government moved for a contempt citation. *fn3" After several hearings, at which considerable testimony relating to Buonacuore's health was received, on September 4, 1975, I found him to be in civil contempt, *fn4" and directed that he be committed to the custody of the Attorney General. On November 19, 1975, a different grand jury than that before which Buonacuore had been summoned to appear *fn5" returned a two-count indictment charging him and five other individuals with violations of 18 U.S.C. §§ 1955 and 371. *fn6"

 Two petitions now are before the court. *fn7" Although seeking essentially identical relief, namely Buonacuore's release from custody, they are premised upon dramatically different claims. In the first, a habeas corpus petition, Buonacuore alleges that he is being held unlawfully because his "medical condition is such that his life is endangered by being in custody." The thrust of his second petition for release is that "where a defendant faces trial on an indictment and has not been given transactional immunity, he cannot be called as a witness before a Grand Jury and held in contempt for failure to testify." *fn8" Accordingly, he posits that either his indictment must be dismissed, a remedy which lies properly within the province of Judge Green, see note 6 supra, or he must be released from custody.

 I need not tarry long on Buonacuore's habeas petition -- it seeks release on grounds which I carefully considered and rejected prior to ordering his incarceration in the first place, i.e., his health. Before holding Buonacuore in contempt, I received evidence at length about his gall bladder surgery and alleged coronary problems. Disposition of the Government's motion was delayed until I was satisfied that recuperation following the surgery was complete and that incarceration would not endanger him. Nevertheless, as soon as he was ordered to prison, Buonacuore's complaints about his health accelerated in what I believe was a contrived campaign to regain his freedom. No objective evidence of any coronary difficulty was reported to me, but the nature of Buonacuore's symptomatology, though only subjective, made special examination and precautions necessary. Finally, I suggested that he be sent to the Medical Center for Federal Prisoners, Springfield, Missouri, where a full range of diagnostic and treatment services are available. He remains there at this time. *fn9"

 Federal law, 28 U.S.C. § 1826, plainly contemplates a relatively broad latitude in which a district judge may exercise his discretion in deciding whether to incarcerate a recalcitrant witness. Here, because of the demonstrated need for Buonacuore's testimony, his refusal to testify in the face of a grant of immunity, and my conviction that whatever medical problems he might have could more than adequately be dealt with in the medical facilities in which I could direct that he be incarcerated, I opted to order his confinement. Under such circumstances, my decision did not constitute an abuse of discretion and the habeas petition raises no new question in this regard.

 Central to the resolution of petitioner's other claim -- i.e., that he cannot remain jailed for contempt while under indictment for the activities about which he refused to testify -- is a proper appreciation of the distinction between use immunity and transactional immunity. The former, of course, immunizes a witness against the use of his compelled testimony and evidence derived therefrom, while the latter precludes prosecution for offenses to which such testimony relates. Kastigar v. United States, 406 U.S. 441, 443, 92 S. Ct. 1653, 1655, 32 L. Ed. 2d 212, reh. denied, 408 U.S. 931, 92 S. Ct. 2478, 33 L. Ed. 2d 345 (1972). In Kastigar, the Supreme Court held that use and derivative use immunity as provided by 18 U.S.C. § 6002 are substantially co-extensive with the scope of the privilege against compulsory self-incrimination embodied in the Fifth Amendment, and as such are sufficient to compel testimony over a claim of privilege. Id. at 453, 92 S. Ct. at 1661. *fn10" Transactional immunity, on the other hand, the Court reasoned, affords broader protection than the Fifth Amendment and is not constitutionally required. Id.11 An individual accorded use immunity "is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities," since the statute imposes upon the prosecution the affirmative duty to prove that any evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. Id. at 460, 92 S. Ct. at 1665. *fn12"

 Here not only was the indictment against Buonacuore obviously based upon evidence derived from sources wholly independent of anything he said -- since he said nothing -- but it was returned by a different grand jury than that before which he was contumacious. Neither prior nor subsequent to his indictment has he been called to testify before the grand jury which indicted him. No possibility exists, therefore, that the grand jury which indicted Buonacuore might in any way have been prejudiced by his refusal to testify. Indeed in Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972), it was held that where a grand jury returned an indictment naming two witnesses as co-conspirators subsequent to their refusal to testify, post-indictment questioning of those individuals before the same grand jury with a view toward discovery of alleged "unknown persons" did not constitute an improper use of the grand jury for discovery purposes, notwithstanding the fact that identical questions were posed on both occasions.

 Here, should petitioner even at this late date elect to purge himself of the contempt, under the teaching of Kastigar, the Government would have to prove in any subsequent criminal proceeding, including the one he presently faces, that any evidence it seeks to introduce was neither directly nor indirectly a product of his grand jury testimony. *fn13" To decide, as petitioner would have me do, that he cannot be held as a contemnor while under indictment for the activities about which he will not testify, would all but render the concept of use immunity a nullity. Such a holding would require the Government either to grant a witness transactional immunity, which was held in Kastigar not to be constitutionally mandated, and thus allow him to elude conviction on the basis of evidence derived from a legitimate source wholly independent of his compelled testimony, or to indict him and forfeit the right to valuable knowledge he may possess concerning individuals and conduct within the scope of a grand jury's investigation. Neither the Constitution nor the law as enacted by Congress and interpreted by the courts, demands that a prosecutor make such a distasteful election. The compromise embodied in Section 6002 is fully adequate to protect Buonacuore's rights.

 In support of his request for relief, Buonacuore points out that in Testa v. United States, 379 U.S. 843, 85 S. Ct. 83, 13 L. Ed. 2d 49 (1964), and Pappadio v. United States, 384 U.S. 364, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966), the Government voluntarily dismissed pending indictments rather than discharge from custody witnesses being held in civil contempt. On the basis of these cases, Buonacuore apparently theorizes that the Government would have to dismiss the indictment against him if he now chose to testify. Since the indictment has not been dismissed, he reasons that his refusal to testify is justified and cannot support a contempt citation. Whatever the validity of his first premise may be, *fn14" his second in no fashion flows so smoothly from it. The possibility that the Government might have to drop its charges against him does not at all admit the propriety of his unwillingness to testify. On the contrary, his theory is viable if and only if he decides to purge himself of contempt. As long as he persists in refusing to answer questions before the grand jury, his arguments as to what should happen if he did so are premature.

 Petitioner's reliance upon Judge VanArtsdalen's decision in In re Grand Jury Proceedings (Vito N. Pisciotta), (E.D. Pa., filed Jan. 20, 1976), is misplaced. There the Government proposed to elicit the testimony of a witness, under a grant of immunity if necessary, relating to the subject matter of an indictment upon which he had been convicted. In characterizing the double-edged sword facing the witness there, Judge Van Artsdalen said:

 

If, after a grant of immunity he refuses to testify, contempt proceedings will be initiated. If he testifies in a manner that would exculpate him as to the offenses of which he stands convicted, the government confirms that it would proceed to prosecute him for perjury, based on the testimony of the witnesses and the evidence presented against him in the trial. If he inculpates himself and Sills, the government will call petitioner as a witness in the Sills trial. Thus the government will be able to utilize the grand jury proceedings as a "dress rehearsal" for possible trial testimony of petitioner against Sills. Finally, if petitioner's present conviction is ever set aside or invalidated, either by the trial judge or an appellate court, and a retrial is ordered, petitioner would be faced with his grand jury testimony in the event he wanted to testify in his own behalf [emphasis added]. *fn15"

 Quite clearly, Judge Van Artsdalen's rationale for quashing the subpoena in Pisciotta was the prevention of abuse of the grand jury by the Government. See, e.g., United States v. Dionisio, 410 U.S. 1, 12, 93 S. Ct. 764, 770, 35 L. Ed. 2d 67 (1973), citing Branzburg v. Hayes, 408 U.S. 665, 707-08, 92 S. Ct. 2646, 2669-70, 33 L. Ed. 2d 626 (1972); In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 91 (3d Cir. 1973); Beverly v. United States, supra, 468 F.2d at 743. By contrast, in the matter sub judice, no evidence of any improper motive on the part of the Government is apparent. To the contrary, since the outset of the proceedings before me, the Government's stance has been that Buonacuore possesses information which "may be necessary to the public interest" and that his testimony is of potentially sufficient value to justify a grant of immunity pursuant to Section 6002. *fn16" Petitioner has proffered no evidence that he was indicted as a means of harassment or for any other impermissible purpose. On the facts here presented, I find no basis for concluding that the Government has attempted to abuse the grand jury.

 Piemonte v. United States, 367 U.S. 556, 81 S. Ct. 1720, 6 L. Ed. 2d 1028 (1961), and In re Liddy, 165 U.S. App. D.C. 254, 506 F.2d 1293 (1974), equally are of no avail to petitioner. The Supreme Court in Piemonte upheld a contempt conviction where the contemnor after imposition of sentence was indicted by the same grand jury before which he had refused to testify. *fn17" And in Liddy the court merely questioned, by way of dicta, the propriety of calling a witness facing trial to testify before the same grand jury which indicted him. 506 F.2d at 1299-1300; but see Beverly v. United States, supra. Inasmuch as petitioner has never been called to testify before the indicting grand jury, I need not reach the question adverted to in Liddy.

 For the foregoing reasons, then, Buonacuore's second petition for release from custody in Misc. No. 75-84 and his petition for a writ of habeas corpus in Civil No. 75-3472 will be denied.

 AND NOW, this 18th day of March, 1976, for the reasons expressed in the foregoing opinion, the petition of Americo Buonacuore for a writ of habeas corpus is hereby denied.

 BY THE COURT:

 J. William Ditter, Jr. / J.

 ORDER

 AND NOW, this 18th day of March, 1976, for the reasons expressed in the foregoing opinion, the second petition of Americo Buonacuore for release from custody is hereby denied.

 BY THE COURT:

 J. William Ditter, Jr. / J.


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