ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Crim. Nos. 76-00164-01 and 76-00164-11)
Before Adams, Hunter and Higginbotham, Circuit Judges.
The principal issue presented on this appeal is whether a prosecutor's knowledge of immunized grand jury testimony, obtained after a first trial conviction but prior to a remand and a second trial, tainted the second trial in violation of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).
In these consolidated cases, Albert Pantone and John Kumer, former state court magistrates serving in Pittsburgh, appeal from judgments of sentence imposed following a second jury conviction of (1) a conspiracy to participate in a bribery scheme, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d), and of (2) the underlying substantive offense, defined by 18 U.S.C. §§ 1961, 1962(c) and 1963.
The government's chief witness was Stephen Levitt, who had pleaded guilty to a violation of 18 U.S.C. § 1962(d). Levitt testified that he operated a bail bond agency in Pittsburgh from February 1970 through May 1975, writing surety bonds for persons charged with crimes in Western Pennsylvania. Early in 1970 he made arrangements with various magistrates to pay a fifty percent kickback of the surety bond premium, if they referred bond business to Levitt's new agency. Levitt usually posted an invalid bond-either a worthless property bond or a surety bond without an appropriate power of attorney-for persons referred to him at the time of arraignment. By means of such an arrangement, Levitt avoided making any premium payment to Stuyvesant Insurance Company, the principal surety. Inherently, this scheme encouraged the magistrate to require a surety bond at an amount as high as but no higher than the accused party could afford. The magistrate and Levitt benefitted from the dismissal of cases, for the cost of a valid power of attorney, which was required if the case was held for trial, was thereby eliminated. Also, surreptitious reductions of bonds were made without any refund to bond clients, a procedure that enabled Levitt and the magistrates to obtain an extra profit. Levitt testified to the regular payment of kickbacks in the form of cash payments placed in envelopes that were delivered by him to the magistrates. On occasions when Levitt did not personally pay the magistrate, envelopes containing cash were delivered by his employees or picked up by the magistrates.
We are already familiar with appellants Kumer and Pantone. On an earlier appeal, the Court reversed the grant of motions by the district court to suppress evidence and to dismiss indictments that were pending against them. United States v. Forsythe, 560 F.2d 1127 (3d Cir. 1977). Also, after the original trial ended with a jury verdict against Kumer and Pantone and their co-defendants, we concluded on appeal that the erroneous admission of rebuttal testimony required a reversal, vacation of judgment, and remand for a new trial. United States v. Pantone, 609 F.2d 675 (3d Cir. 1979).
Central to the present appeal is the fact that prior to the remand, Pantone gave immunized testimony before a grand jury under a court order compelling testimony in accordance with 18 U.S.C. § 6002. Pursuant to the grant of immunity, Pantone, on May 10, 1979, testified that he had performed extra justice-of-the-peace work for Paul Landau, head of the Pennsylvania Cigarette & Beverage Tax Bureau. Although Pantone's relationship with Landau was entirely independent of his connections with Levitt, the service rendered at the request of Landau was subject to a bond-splitting arrangement somewhat analogous to that in issue in the instant appeal.
Before the second trial, Pantone moved to dismiss the indictment or in the alternative, to disqualify the United States Attorney who had prosecuted the first trial, conducted the grand jury proceedings at which Pantone testified under an immunity grant, and was scheduled to prosecute the retrial. Following a full hearing, the district court denied the motion. The second jury trial began on December 3, 1979, and it is from the second guilty verdict returned on both RICO counts that Kumer and Pantone now appeal. We affirm.
These appeals present several issues which we have addressed in previous related proceedings. The claim that the evidence relative to the bribery element of the offense was insufficient to support a guilty verdict was examined and found without merit in United States v. McCann, United States v. Herman, 589 F.2d 1191 (3d Cir. 1978) and United States v. Pantone, 609 F.2d 675 (3d Cir. 1979). Similarly, appellants' contention that the district court erred in refusing to instruct the jury on a lesser included state law misdemeanor offense was held to lack validity in United States v. Forsythe, 594 F.2d 947 (3d Cir. 1979), a case which explicitly noted that a state law felony is a necessary predicate for a RICO violation. In addition, we now conclude that appellants' assertion of a statutory and constitutional violation of their speedy trial rights is lacking in merit.
It is appropriate, we believe, to address the Kastigar question, which applies only to Pantone's appeal, in some detail inasmuch as the precise issue presented here has not yet been dealt with by this Court. Pantone claims that the participation by the United States Attorney in the grand jury proceedings at which Pantone gave compelled testimony and the same Attorney's subsequent prosecution of Pantone at the retrial inevitably resulted in an indirect, subjective use of the immunized testimony in violation of Kastigar's "sweeping proscription of any use, direct or indirect, of the compelled testimony and information derived therefrom." Kastigar v. United States, 406 U.S. 441, 460, 92 S. Ct. 1653, 1664, 32 L. Ed. 2d 212 (1972). Pantone admits that the government did not make any direct use of the grand jury testimony. Instead, he contends that the prosecutor's mere exposure to compelled testimony renders virtually impossible a showing by the government of the absence of indirect use of the testimony. In essence, Pantone argues for the creation of a per se rule, which would require the withdrawal of a prosecutor who may be privy to compelled testimony.
Immunity statutes have deep historical roots in Anglo-American jurisprudence and have been accepted as "part of our constitutional fabric."*fn1 They seek to preserve the delicate balance between the privilege against compulsory self-incrimination and the government's recognized power to compel testimony-a traditional source of information in an ordered society*fn2 and an essential tool in the effective enforcement of criminal laws.*fn3 Prior to Kastigar, federal immunity statutes conferred on immunized witnesses a broad transactional immunity, that is, full immunity from prosecution for the offense to which the compelled testimony relates. The scope of transactional immunity was based on the reasoning, as further explicated in the 1892 Supreme Court Counselman decision, that in order to supplant effectively the Fifth Amendment privilege, a statute "to be valid, must afford absolute immunity against future prosecution for the offense to which the (criminating) question relates." Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S. Ct. 195, 206, 35 L. Ed. 1110 (1892). In Kastigar, however, the Court held that a grant of immunity which accorded protection commensurate with that afforded by the constitutional privilege was more accurately delineated by the concept of use and derivative use. Kastigar therefore placed a substantial burden on the ...