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In re Grand Jury Proceedings

*fn* submitted: November 9, 1993.

IN RE GRAND JURY PROCEEDINGS; KIMBERLY TRIMIEW, WITNESS-APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE.



Appeal from the United States District Court for the Eastern District of Washington. D.C. No. MAG-93-330-WFN. William Fremming Nielsen, District Judge, Presiding

Before: Schroeder, D.w. Nelson and Thompson, Circuit Judges

INTRODUCTION

Appellant Kimberly Trimiew appeals from the district court judgment holding her in contempt for refusing to testify before the grand jury. This court reviews the district court's adjudication of civil contempt for abuse of discretion. United States v. Grant, 852 F.2d 1203, 1204-1205 (9th Cir. 1988). This court has jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 1826(a). We affirm.

BACKGROUND

On or about July 7, 1993, appellant Kimberly Trimiew was subpoenaed to testify before a grand jury in Spokane, Washington. On August 9, 1993, the district court signed an order granting Trimiew immunity, pursuant to 18 U.S.C. § 6002. On August 10, 1993, Trimiew appeared before the grand jury. The Assistant United States Attorney attempted to question Trimiew regarding her alleged participation in bombings and other actions of the animal rights movement which occurred in jurisdictions other than the Eastern District of Washington. Trimiew invoked her Fifth Amendment privilege against self-incrimination and refused to testify.

Trimiew argued that because she is a target in a multi-district investigation, use and derivative use immunity were insufficient to protect her Fifth Amendment rights. Trimiew requested that the district court order the Justice Department to "can" the evidence it now has against Trimiew, and present it at an in camera hearing. Alternatively, Trimiew suggested that the government agree to give Trimiew transactional immunity. The government refused to agree to additional safeguards as requested by Trimiew.

The district court denied Trimiew's request for procedural safeguards to protect her Fifth Amendment privilege, and indicated that it believed that Trimiew's rights would be protected through the provisions of a hearing pursuant to Kastigar v. United States, 406 U.S. 441, 453, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). We agree.

After Trimiew confirmed that she would not testify before the grand jury, the district court held Trimiew in contempt and placed her in the custody of the United States Marshal.

ANALYSIS

18 U.S.C. § 6002 states in pertinent part:

Whenever a witness refuses, on the basis of his privilege against self-incrimination to testify . . . before or ancillary to - a court or grand jury of the United States, . . . no testimony or other information compelled under the order . . . may be used against the witness in any criminal case. . . . (emphasis added).

The Supreme Court has held that the United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against self-incrimination by conferring use immunity, as provided by 18 U.S.C. § 6002. Kastigar, 406 U.S. at 453 (1972).

The Court further held that if a witness is indicted after testifying before a grand jury, the district court should hold an evidentiary hearing. At this hearing (a Kastigar hearing), the government would have the burden of showing, by a preponderance of the evidence, that the evidence it proposed to use was derived from a legitimate source wholly independent of the compelled testimony. Id. at 460, 461.

In Kastigar, the Supreme Court held that use immunity alone is coextensive with the scope of the privilege against self-incrimination. Kastigar, 406 U.S. at 453. The Court stated that "The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.'" Id. The Court also stated, "The statute provides a sweeping proscription of any use, direct or indirect, of the compelled ...


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