Summary
The First Circuit affirmed a criminal contempt order against Danielle McBreairty after she refused to testify in a criminal trial despite receiving statutory immunity under 18 U.S.C. §§ 6002–6003. The court held that the statutory immunity was coextensive with her Fifth Amendment privilege and did not protect her from prosecution for perjury in the compelled testimony itself. The court also rejected an alternative argument concerning the district court’s explanation of the immunity order.
Topics
Practice areas
Questions Presented
- Whether statutory immunity under 18 U.S.C. §§ 6002-6003 was coextensive with McBreairty's Fifth Amendment privilege insofar as she claimed a privilege against prosecution for perjury in the compelled testimony.
- Whether the district court abused its discretion by holding McBreairty in criminal contempt after she continued to refuse to testify despite the immunity order.
- Whether the district court was required to explain how the statutory immunity addressed McBreairty's newly raised argument concerning prospective perjury prosecution.
Holdings
- The statutory immunity was coextensive with McBreairty's Fifth Amendment privilege to the extent asserted, and the Fifth Amendment does not provide a privilege to refuse immunized testimony merely to avoid the risk of prosecution for perjury committed in that testimony.
- The district court did not abuse its discretion in ordering McBreairty to testify after granting statutory immunity and holding her in criminal contempt when she continued to refuse.
- The argument was waived because it was not raised in the district court or in the appellant's initial brief, and it also lacked merit because it rested on an unsupported premise about the district court's understanding of the immunity order.
Key quotations
“But McBreairty fails to cite to a single case that confers on a witness -- under the Fifth Amendment or any privilege or immunity -- the privilege to not testify to avoid the risk that the government could prosecute the witness for committing perjury in giving the testimony that is subject to the grant of immunity.” (at 5)
“Thus, this ground for challenging the order of criminal contempt rests on an unsupported factual premise about what the District Court did when it granted McBreairty statutory immunity.” (at 8)
Factual background
The government called McBreairty to testify in the Corbett criminal trial, and she invoked her Fifth Amendment privilege against self-incrimination. The district court granted her statutory immunity under 18 U.S.C. §§ 6002-6003, ordered her to testify, and explained that compelled testimony could not be used against her except in a prosecution for perjury, giving a false statement, or failure to comply with the order. McBreairty continued to refuse to answer the government's questions, so the district court held her in criminal contempt.
Procedural history
The government called McBreairty as a witness in the Corbett trial. After she invoked the Fifth Amendment, the district court ordered her to testify pursuant to the federal immunity statutes and warned that continued refusal could result in criminal contempt. McBreairty continued refusing to testify, and the district court entered a criminal contempt order. The First Circuit affirmed.