While serving a sentence for a federal narcotics offense,
petitioner was summoned before a federal grand jury and asked
questions concerning his crime, particularly as to the persons
involved with him and their activities in smuggling narcotics into
this country from Europe. He invoked his privilege against
self-incrimination under the Fifth Amendment and refused to answer.
Acting pursuant to 18 U.S.C. § 1406, which grants immunity from
prosecution to a witness compelled to testify before a grand jury,
the United States Attorney, with the approval of the Attorney
General, obtained a court order directing petitioner to testify. He
again refused to do so, and was adjudged guilty of criminal
contempt.
Held: the conviction is sustained. Pp.
364 U. S.
508-515.
1. The immunity provided by § 1406 covers state, as well as
federal, prosecutions. P.
364 U. S.
510.
2. As so construed, § 1406 is constitutional, since the grant of
immunity from state prosecution is necessary and proper to the more
effective execution of the undoubted power of Congress to enact the
narcotics laws. Pp.
364 U. S.
510-512.
3. The grant of immunity from future state and federal
prosecution was at least coextensive with petitioner's
constitutional privilege against self-incrimination, and it was not
necessary that he be pardoned or granted amnesty covering the
unserved portion of his sentence and his fine for the offense of
which he had previously been convicted. Pp.
364 U. S.
512-514.
4. Since the District Court provided that petitioner's sentence
to two years' imprisonment for criminal contempt should be vacated
if petitioner should purge himself of his contempt by appearing
before the grand jury and answering the questions within 60 days
from the date of the judgment, and this Court construes the 60-day
period as running from the effective date of this Court's
Page 364 U. S. 508
mandate, it is not necessary to pass on the questions whether
the sentence was excessive or whether the conviction was invalid
because the District Court did not advise petitioner of the extent
of the immunity conferred by § 1406. Pp.
364 U. S.
514-515.
273 F.2d 234, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The Narcotic Control Act of 1956, [
Footnote 1] 18 U.S.C. § 1406, legislates immunity from
prosecution for a witness compelled under the section by court
order to testify before a federal grand jury investigating alleged
violations of the federal narcotics laws. The questions presented
are, primarily, whether the section grants immunity from
Page 364 U. S. 509
state, as well as federal, prosecution, and, if state immunity,
whether the section is constitutional.
The petitioner was serving a five-year sentence for a federal
narcotics offense [
Footnote 2]
when, on December 5, 1958, he was subpoenaed before a federal grand
jury sitting in the Southern District of New York. A number of
questions were asked him concerning his crime, particularly as to
the persons involved with him and their activities in the smuggling
of narcotics into this country from Europe. The petitioner invoked
the provision of the Fifth Amendment against being compelled to be
a witness against himself, [
Footnote 3] and refused to answer any of the questions.
The United States Attorney, with the approval of the Attorney
General, obtained a court order pursuant to § 1406 directing him to
answer. When he returned before the grand jury, he again refused to
testify. Proceedings against him in criminal contempt resulted in
the judgment under review adjudging him guilty as charged.
170 F.
Supp. 592. The Court of Appeals for the Second Circuit
affirmed. 273 F.2d 234. Because of the importance of the questions
of the construction and constitutionality of § 1406 raised by the
case, we granted certiorari, 362 U.S. 939.
Petitioner's main argument in both courts below and here
challenges § 1406 as granting him only federal immunity, and not
state immunity, either because Congress meant the statute to be
thus limited or because the statute, if construed also to grant
state immunity, would be unconstitutional. Both courts below passed
the question whether the statute grants state immunity because,
Page 364 U. S. 510
assuming only federal immunity is granted, they held that
United States v. Murdock, 284 U.
S. 141, settled that the Fifth Amendment does not
protect a federal witness from answering questions which might
incriminate him under state law. 170 F. Supp. at 595; 273 F.2d at
235. Petitioner contends that
Murdock should be reexamined
and overruled. We have no occasion to consider this contention,
since, in our view, § 1406 constitutionally grants immunity from
both federal and state prosecutions.
We consider first whether the immunity provided by § 1406 cover
state, as well as federal, prosecutions. We have no doubt the
section legislates immunity from both. The relevant words of the
section have appeared in other immunity statutes have been
construed by this Court to cover both state and federal immunity.
In
Adams v. of Maryland, 347 U. S. 179, a
like provision in 18 U.S.C. § 3486, that the compelled testimony
shall not "be used as evidence in
any criminal proceeding
against him in
any court," was held to cover both federal
and state courts. (Emphasis supplied.) The "Language could be no
plainer," 347 U.S. at
347 U. S. 181.
In
Ullmann v. United States, 350 U.
S. 422,
350 U. S.
434-435, 18 U.S.C. § 3486(c), added by the Immunity Act
of 1954, of which § 1406 is virtually a carbon copy, was given the
same construction. Moreover, the adoption of § 1406 followed close
upon the
Ullmann decision. That decision came down on
March 26, 1956. Section 1406 was reported out of the House Ways and
Means Committee only three months later, on June 19, 1956,
H.R.Rep.No.2388, 84th Cong., 2d Sess. It became law on July 18,
1956. 70 Stat. 574. We cannot believe that Congress would have used
in § 1406 the very words construed in
Ullmann to cover
both state and federal prosecutions without giving the words the
same meaning.
We turn then to the petitioner's argument that, so construed, §
1406 encroaches on the police powers reserved
Page 364 U. S. 511
to the States under the Tenth Amendment. The petitioner
recognizes that, in
Ullmann, the Court upheld the
authority of Congress to grant state immunity as "necessary and
proper" to carry out the power to provide for the national defense;
and in
Adams v. Maryland upheld the power of Congress to
preclude the States from using testimony that was compelled under
former § 3486 before a congressional investigating committee. He
insists, however, that the congressional authority to enact
narcotics laws -- rested on the Commerce Clause,
Brolan v.
United States, 236 U. S. 216,
236 U. S. 218;
Yee Hem v. United States, 268 U.
S. 178; or the taxing power,
United States v.
Doremus, 249 U. S. 86;
Alston v. United States, 274 U. S. 289;
Nigro v. United States, 276 U. S. 332,
276 U. S.
351-354;
United States v. Sanchez, 340 U. S.
42 -- is not broad enough to encompass the legislation
of immunity against state prosecution under state narcotics laws,
"a subject that has traditionally been within the police power of
the state." But the petitioner misconceives the reach of the
principle applied in
Ullmann and
Adams v.
Maryland. Congress may legislate immunity restricting the
exercise of state power to the extent necessary and proper for the
more effective exercise of a granted power, and distinctions based
upon the particular granted power concerned have no support in the
Constitution.
See Brown v. Walker, 161 U.
S. 591, in which the Court upheld a federal immunity
statute passed in the name of the Commerce Clause and construed
that statute to apply to state prosecutions. The relevant inquiry
here is thus simply whether the legislated state immunity is
necessary and proper to the more effective enforcement of the
undoubted power to enact the narcotics laws.
It can hardly be questioned that Congress had a rational basis
for supposing that the grant of state, as well as federal, immunity
would aid in the detection of violations and hence the more
effective enforcement of the narcotics
Page 364 U. S. 512
laws. The Congress has evinced serious and continuing concern
over the alarming proportions to which the illicit narcotics
traffic has grown. The traffic has far-reaching national and
international roots.
See S.Rep.No.1997, 84th Cong., 2d
Sess., pp. 3-6. The discovery and apprehension of those engaged in
it present particularly difficult problems of law enforcement. The
whole array of aids adopted in 1956, of which immunity is but one,
was especially designed to "permit enforcement officers to operate
more effectively." H.R.Rep.No.2388, 84th Cong., 2d Sess., p. 10.
The grant of both federal and state immunity is appropriate and
conducive to that end, and that is enough. Even if the grant of
immunity were viewed as not absolutely necessary to the execution
of the congressional design,
"[T]o undertake here to inquire into the degree of . . .
necessity, would be to pass the line which circumscribes the
judicial department, and to tread on legislative ground."
McCulloch v. of
Maryland, 4 Wheat. 316,
17 U. S. 423.
And the supersession of state prosecution is not the less valid
because the States have traditionally regulated the traffic in
narcotics, although that fact has troubled one court.
See
Tedesco v. United States, 255 F.2d 35. Madison said,
"Interference with the power of the States was no constitutional
criterion of the power of Congress. If the power was not given,
Congress could not exercise it; if given, they might exercise it,
although it should interfere with the laws, or even the
Constitutions of the States."
II Annals of Cong. 1897 (1791). Or, as the Court has said
concerning federal immunity statutes,
". . . since Congress, in the legitimate exercise of its powers,
enacts 'the supreme Law of the Land,' state courts are bound by [§
1406], even though it affects their rules of practice."
Adams v. of Maryland, supra, p.
347 U. S.
183.
The petitioner urges that, in any event, he should not have been
ordered to answer the grand jury's questions
Page 364 U. S. 513
unless he first received a "general pardon or amnesty" covering
the unserved portion of his sentence and his fine. This is a
surprising contention in light of the traditional purpose of
immunity statutes to protect witnesses only as to the future. It
suggests that the witness who has been convicted is entitled to ask
more of the Government than the witness who has not, but who may be
compelled under § 1406 to reveal criminal conduct which, but for
the immunity, would subject him to future federal or state
prosecution. Yet the petitioner in his brief says that
"the ordinary rule is that, once a person is convicted of a
crime, he no longer has the privilege against self-incrimination,
as he can no longer be incriminated by his testimony about said
crime. . . ."
There is indeed weighty authority for that proposition.
United States v. Romero, 249 F.2d 371; 8 Wigmore, Evidence
(3d ed. 1940), § 2279;
cf. Brown v. Walker, supra,
161 U. S.
597-600. Under it, immunity at least from federal
prosecution, need not have been offered the petitioner at all.
The petitioner does not argue that remission of his penalty was
his due as a
quid pro quo for further exposing himself to
personal disgrace or opprobrium. That reason would not be tenable
under
Brown v. Walker, supra, in which the Court rejected
the argument that the validity of an immunity statute should depend
upon whether it shields "the witness from the personal disgrace or
opprobrium attaching to the exposure of his crime." 161 U.S. at
161 U. S. 605.
Nor does he support his contention with the argument that the
prison sentence imposed for disobedience of the order directing him
to testify is actually an additional punishment for his crime. His
argument is the single one that the
"said order was not a proper basis upon which to bottom a
contempt proceeding in the face of a claim of privilege against
self-incrimination,
as it did not grant this petitioner
immunity coextensive with the
Page 364 U. S. 514
constitutional privilege it sought to replace. . .
."
(Emphasis supplied.) The complete answer to this is that, in
safeguarding him against future federal and state prosecution "for
or on account of any transaction, matter, or thing concerning which
he is compelled" to testify, the statute grants him immunity fully
coextensive with the constitutional privilege. Some language in
Brown v. Walker, 161 U.S. at
161 U. S. 601,
to which petitioner refers, compares immunity statutes to the
traditional declarations of amnesty or pardon. But neither in that
opinion nor elsewhere is it suggested that immunity statutes, to
escape invalidity under the Fifth Amendment, need do more than
protect a witness from future prosecutions. This § 1406 does.
The petitioner complains finally that his sentence is excessive.
The District Court sentenced him to two years' imprisonment to
commence at the expiration of the sentence he was then serving.
However, the court also allowed the petitioner 60 days from the
date of the judgment to purge himself of his contempt by appearing
within that period before the grand jury and answering the
questions. It was further provided that, if he did so, "the
sentence imposed herein shall be vacated." The District Court took
this action because it found in effect that the petitioner asserted
his legal position in good faith, and was not contumaciously
disrespectful of the court's order or obstinately flouting it.
170 F.
Supp. at 596. There is no occasion for us to consider the claim
of excessiveness of the sentence, or the petitioner's companion
claim that the conviction was invalid because the District Court
did not advise him of the extent of the immunity conferred by §
1406. We construe the 60-day purge period as running from the
effective date of this Court's mandate, and the petitioner may
avoid imprisonment by answering. Now that this Court has held that
his fears of future state
Page 364 U. S. 515
or federal prosecution are groundless, he knows that the only
reason he gave for claiming his privilege has no substance. No
question of an admixture of civil criminal contempt having been
raised below or here, we do not reach the issues it might
present.
Affirmed.
[
Footnote 1]
Act of July 18, 1956, 70 Stat. 572
et seq.; 18 U.S.C. §
1401
et seq. The relevant portions of § 1406 are as
follows:
"§ 1406. Immunity of witnesses."
"Whenever in the judgment of a United States attorney the
testimony of any witness . . . in any case or proceeding before any
grand jury or court of the United States involving any violation of
[certain federal narcotics statutes] . . . as necessary to the
public interest, he, upon the approval of the Attorney General,
shall make application to the court that the witness shall be
instructed to testify. . . . But no such witness shall be
prosecuted or subjected to any penalty or forfeiture for or on
account of any transaction, matter, or thing concerning which he is
compelled, after having claimed his privilege against
self-incrimination, to testify . . . nor shall testimony so
compelled be used as evidence in any criminal proceeding . . .
against him in any court. . . ."
[
Footnote 2]
United States v. Reina, 242 F.2d 302. When petitioner
appeared before the grand jury on December 5, 1958, he had served
about two years and eight months of his five-year term. He
completed the sentence on November 21, 1959.
[
Footnote 3]
"No person . . . shall be compelled in any criminal case to be a
witness against himself. . . ."
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE concurs,
dissenting.
The Court affirms a conviction for contempt of court upon which
petitioner has been sentenced to imprisonment for two years with
the provision that he can purge himself of the contempt if he
answers the questions propounded to him within 60 days. This is a
strange kind of sentence, apparently combining in one judgment the
elements of both civil and criminal contempt. This fact alone is
sufficient to arouse grave doubts in my mind as to the validity of
the judgment, since civil and criminal contempt procedures are
quite different, and call for the exercise of quite different
judicial powers. Moreover, analysis of this judgment makes it clear
that it rests upon the notion that petitioner has as yet committed
no crime, and is being sentenced for civil contempt for the sole
purpose of coercing his compliance with the demand for his
testimony, but that, if he fails to comply with this demand within
the specified period, he will have committed a criminal contempt.
Thus, the judgment seems to represent a present adjudication of
guilt for a crime to be committed in the future. The fact that the
judgment has not been challenged on this specific ground by
petitioner does not, in my view, bar our consideration of it.
Ordinarily, a judgment invalid on its face can be challenged at any
time. I find it unnecessary, however, to reach a definite
conclusion on this question
Page 364 U. S. 516
because, even assuming that the judgment is not invalid as a
result of its hybrid nature, I still think it should be
reversed.
Petitioner contends that the decision of the Court of Appeals
should be reversed because the two-year sentence is excessive. That
contention is sufficient to bring into issue any ground upon which
the length of the sentence may open the decision to attack.
Cf.
Boynton v. Virginia, 364 U. S. 454,
364 U. S. 457.
I think the imposition of a two-year sentence was beyond the
District Court's power in the summary proceedings it conducted in
this case. In my dissenting opinion in
Green v. United
States, 356 U. S. 165,
356 U. S. 193,
I stated in full the reasons which led me to conclude that, where
the object of a proceeding is to impose punishment, rather than
merely to coerce compliance,
"there is no justification in history, in necessity, or most
important in the Constitution for trying those charged with
violating a court's decree in a manner wholly different from those
accused of disobeying any other mandate of the state."
Id., at
356 U. S. 218.
I adhere to that view and reiterate my belief that the Court's
position rests solely upon the fact that "judges and lawyers have
told each other the contrary so often that they have come to accept
it as the gospel truth."
Id. at
356 U. S. 219.
Thus, I cannot join a decision upholding a two-year sentence for
contempt upon a trial in which the accused has been denied the
constitutional protections of indictment by a grand jury and
determination of guilt by a petit jury. I regard this case as
another ominous step in the incredible transformation and growth of
the contempt power and in the consequent erosion of constitutional
safeguards to the protection of liberty. I see no reason why
petitioner should not have been tried in accordance with the law of
the land -- including the Bill of Rights -- and conclude,
therefore, that the case should be reversed for such a trial.