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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5925
Appellant, ) Trial Court No. 3AN-S92-8602CR
)
v. ) O P I N I O N
)
PETER A. SCHWIN, )
) [No. 1535 - May 30, 1997]
Appellee. )
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: Eric A. Johnson, Assistant Attor-
ney General, Office of Special Prosecutions
and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee. Margi
Mock, Assistant Public Defender, and Barbara
K. Brink, Public Defender, Anchorage, for
Appellant.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
In November 1992, an Alaska grand jury charged Peter A.
Schwin with first-degree murder, robbery, and various other crimes
stemming from a drug related homicide committed in January 1991.
Schwin moved to dismiss, claiming that his state prosecution was
barred by a federal grant of use and derivative use immunity he
received in April 1992, when he was compelled to testify in a
federal drug conspiracy prosecution arising from the January 1991
homicide. Following an evidentiary hearing, Superior Court Judge
Karen L. Hunt found Schwin's prosecution barred by Alaska's
constitutional guarantee against compulsory self-incrimination.
Alaska Const. art. I, ? 9. Accordingly, Judge Hunt dismissed
Schwin's charges. The state appeals the superior court's dismissal
order. We reverse.
On January 22, 1991, the Anchorage Police Department
began investigating the recent disappearance of William E. Koch.
Early on, it became clear that Koch had likely been the victim of
a homicide arising from a cocaine transaction involving seven or
eight conspirators. Suspicion focused on two members of the
conspiracy as the persons responsible for the homicide: Peter
Schwin and Tim Donnelly.
The Alaska State Troopers soon joined the Anchorage
Police Department in investigating the case; the Federal Bureau of
Investigation also began to participate; and ultimately, the
investigation took shape as a federal-state task force headed by
prosecutors from the offices of the Anchorage District Attorney and
the Alaska United States Attorney. By June 1991, Schwin had
confessed to a federal investigator that he and Donnelly had
murdered Koch. Schwin's description of the murder, and a map he
drew for the investigator, led to the discovery of Koch's body.
Even before this, state and federal prosecutors had
determined to focus initially on developing and prosecuting federal
drug conspiracy charges, then on pursuing state homicide charges.1
A federal grand jury convened on the case in October 1991 and
indicted Schwin and Donnelly on conspiracy charges on January 28,
1992. An attorney was appointed to represent Schwin on the federal
charge; by March 1, 1992, Schwin had entered into a plea bargain
with the United States Attorney's office.
Under the terms of the bargain, the government promised
certain sentencing concessions in return for Schwin's plea of
guilty to the federal conspiracy charge and his agreement to
testify truthfully against his codefendant, Donnelly. At Schwin's
insistence, the plea agreement included a provision stipulating
that his testimony against Donnelly would be compelled by a formal
grant of use and derivative use immunity.2
Donnelly stood trial in federal district court in April
1992. Schwin appeared as a prosecution witness; after invoking his
privilege against self-incrimination, he was formally granted use
and derivative use immunity, and, in accordance with 18 U.S.C. ?
6002, the court ordered him to testify.3 Schwin testified pursuant
to that order.
Seven months later, in November 1992, the state indicted
Schwin for murder, robbery, and related charges arising from the
Koch homicide. Schwin moved to dismiss the charges, claiming that
they were barred by his federal immunity grant.
Schwin based his motion to dismiss primarily on State v.
Gonzalez, 853 P.2d 526 (Alaska 1993), in which the Alaska Supreme
Court interpreted the Alaska Constitution's privilege against self-
incrimination to require that transactional immunity be given
before the state can compel an unwilling witness to testify. In
Gonzalez, the court expressed "doubt that workaday measures can, in
practice, protect adequately against use and derivative use" of the
compelled testimony, id. at 530 (emphasis in original), and
concluded that use and derivative use immunity "cannot meaningfully
safeguard against nonevidentiary use of compelled testimony." Id.
at 531.4
In moving to dismiss, Schwin argued that, under Gonzalez,
the federal immunity he had been given to testify against Donnelly
should be treated as a grant of transactional immunity, since only
transactional immunity could shelter him from the dangers of
nonevidentiary use of his testimony.
Upon a preliminary consideration of Schwin's motion, the
superior court decided that the Alaska Constitution applies in a
limited number of cases involving grants of immunity by other
jurisdictions -- "only in those cases where the degree of
cooperation between the two jurisdictions creates risks similar to
[the risks of nonevidentiary use] outlined by the Gonzalez court."
According to the superior court, "[u]nder this approach, the
nature and scope of the interjurisdictional investigative contacts
regarding an individual who was compelled to testify in the other
jurisdiction would determine whether that individual would be
entitled to transactional immunity in a subsequent Alaska
prosecution."
By way of clarification, the superior court explained:
Where the state's contacts with the compelling
jurisdiction are limited and at arms-length,
the policy concerns of Gonzalez are not
implicated and an individual's right against
self-incrimination is adequately protected by
use/derivative use immunity. Where the
state's contacts with the compelling juris-
diction are more substantial, the concerns
outlined by Gonzalez can only be addressed by
affording an individual transactional immunity
from state prosecution.
The superior court took pains to distinguish this inquiry
into interjurisdictional contacts from a "taint" hearing of the
kind traditionally held in cases involving use and derivative use
immunity:
Unlike a Kastigar/Murphy[5] taint hearing, such
a hearing would focus on the nature and scope
of interaction between the two jurisdictions
rather than on the source of the prosecuting
state's evidence. In the course of such a
hearing, the state would have to reveal, inter
alia, the nature and scope of its joint
activities, the identities of those partici-
pating, the number of meetings and/or other
contacts, and the documents prepared and/or
shared in the course of these activities.
The superior court went on to find that the burden of
proving the nature of the interjurisdictional investigative
contacts in any given case properly belonged to the state, and so
ordered an evidentiary hearing at which the state was required "to
establish by a preponderance of the evidence that its investigatory
relationship with federal authorities did not compromise the
defendant's right against self-incrimination."
Following an extensive evidentiary hearing into the
state/federal investigation in Schwin's case, the superior court
found that "the contacts between state and federal prosecutors,
between state and federal investigators, and between state
prosecutors and federal investigators were too numerous and too
extensive for the higher constitutional protection of Gonzalez not
to apply."
The court made clear that it based this finding
"especially . . . on the nature and extent of the interactions
between the state and federal authorities after it became known
that defendant was going to be compelled to testify and was going
to be given immunity for his testimony." After considering and
rejecting a number of legal arguments advanced by the state, the
superior court concluded that, under Gonzalez, Schwin was entitled
to transactional immunity and that dismissal of Schwin's charges
was therefore required.6
The state then filed this appeal. On appeal, the state
renews the legal arguments it advanced below: that Schwin's case
should be governed by the federal grant of use and derivative use
he was actually given, that this level of immunity is adequate to
protect Schwin's privilege against self-incrimination, that
Schwin's federal testimony was not actually compelled, and that he
has forfeited his right to claim anything more than he was
expressly promised. In short, the state insists that the Alaska
Constitution's guarantee of transactional immunity does not extend
to Schwin's federal testimony.7
In response, Schwin emphasizes the limited scope of his
argument: he does not, strictly speaking, contend that the Alaska
Constitution actually required that he be given transactional
immunity instead of use and derivative use immunity in return for
his federal testimony; rather, according to Schwin, Gonzalez
establishes that he can never adequately be protected from
nonevidentiary use of his compelled federal testimony, and so, to
meet the demands of the Alaska Constitution's privilege against
self-incrimination, dismissal is necessary to shield him from
derivative nonevidentiary use of his federal testimony.
Schwin's argument chases its own tail; for it quickly
circles back to its own point of origin: the question whether
Alaska's broad constitutional privilege applies in any way to
Schwin's federal testimony. However put, this question must be
answered, no.
The answer is foreshadowed by the first two cases of the
Hazelwood trilogy.8 Hazelwood was convicted of negligent discharge
of oil. The investigation that led to his conviction was launched
by his own radioed report of an oil spill, a report that Hazelwood
claimed was covered by a grant of use and derivative use immunity
set out in a federal statute. On appeal to this court, Hazelwood
claimed that virtually all of the prosecution's evidence at trial
had derived from his immunized report and thus should have been
excluded. The state responded, in relevant part, that even if its
investigative evidence derived from Hazelwood's immunized report,
it would inevitably have been discovered and was thus admissible
under the inevitable discovery doctrine.
In Hazelwood I, this court observed that, although the
inevitable discovery doctrine was well entrenched in federal law,
it had never been adopted as a matter of Alaska law. Mistakenly
assuming that Alaska law governed the procedural enforcement of
Hazelwood's federally granted immunity, we went on to apply case
law dealing with Alaska's constitutional privilege against self-
incrimination, and we concluded, as a matter of state
constitutional law, that the inevitable discovery doctrine could
not be extended to immunity cases. On this basis, we reversed
Hazelwood's conviction.
In Hazelwood II, the Alaska Supreme Court disabused us of
our mistaken assumption; the court held in no uncertain terms that
because Hazelwood had been granted immunity under federal law, both
the substantive scope and the procedural enforcement of his
immunity right were issues to be decided under federal law, not
state law:
The scope of immunity under [the federal
statute], and its constitutionally permissible
exceptions, are issues of federal law. Thus
United States Supreme Court precedent, rather
than our own precedent, controls our resolu-
tion of this case.
Hazelwood II, 866 P.2d at 829 n.1.
The supreme court's decision in Hazelwood II finds
reinforcement in Hazelwood III, the third case of the Hazelwood
trilogy. Shortly before reversing in Hazelwood II, the Alaska
Supreme Court had issued its decision in State v. Gonzalez,
adopting transactional immunity as a matter of state constitutional
law. The timing of Gonzalez precluded any consideration of its
ramifications in Hazelwood II. On remand to this court, however,
Hazelwood argued for the first time that he was entitled to
transactional immunity under Gonzalez. Hazelwood's argument was,
in relevant part, a virtual analog of Schwin's argument here:
Hazelwood points out that in deciding that the
Alaska Constitution requires transactional
immunity, Gonzalez expressly concluded that
use and derivative use immunity can never
adequately protect against the potential
danger of nontestimonial use of immunized
statements. 853 P.2d at 532. Hazelwood thus
reasons that under Gonzalez, the danger of
nontestimonial use must always preclude a
finding of inevitable discovery.
Hazelwood III, 912 P.2d at 1270 n.4.
We rejected this argument in Hazelwood III on two
separate grounds, one being that it was foreclosed by the Alaska
Supreme Court's decision in Hazelwood II. Id.
When read together, the Hazelwood trilogy seems
preclusive of Schwin's argument here. Schwin received use and
derivative use immunity from the federal government in a federal
proceeding; under the Hazelwood trilogy the scope of his immunity
and its constitutionally permissible implementation "are issues of
federal law." Hazelwood II, 866 P.2d at 829 n.1.
We arrive at the same result through straightforward
application of principles commonly deemed implicit in the privilege
against self-incrimination. The privilege has recently been held
to regulate only state action. See Colorado v. Connelly, 479 U.S.
157 (1986). As Schwin himself recognizes, Alaska's constitutional
privilege does not control the conduct of private citizens or
others not engaged in state action. Thus, Alaska has no clearly
defined interest in enforcing the privilege's more rigorous Alaskan
requirements against persons carrying out the laws of other
jurisdictions -- that is, against persons involved in "state
action" only on behalf of other states or jurisdictions. See,
e.g., State v. Bradley, 719 P.2d 546 (Wash. 1986); State v. Olsen,
317 P.2d 938 (Or. 1957).
Alaska's duty to recognize and enforce grants of immunity
conferred by other jurisdictions emanates uniquely from the federal
constitution's privilege against self-incrimination. See Murphy v.
Waterfront Comm'n of New York Harbor, 378 U.S. 52, 79 (1964). No
portion of Alaska's constitutional privilege purports to recognize
or require enforcement of extrajurisdictional grants of immunity,
nor has Alaska's privilege been construed to prohibit the use of
statements compelled by private citizens or by persons who are not
themselves subject to its strictures. Cf. Macouly v. State, 734
P.2d 1020, 1023 & n.2 (Alaska App. 1987); see also D'Antorio v.
State, 837 P.2d 727 (Alaska App. 1992); Pooley v. State, 705 P.2d
1293 (Alaska App. 1985).
For this reason, we fail to see how the Alaska
Constitution's requirement of transactional immunity can properly
be deemed to extend in any manner to Schwin's federal grant of use
and derivative use immunity without, at a minimum, some threshold
showing that his grant of federal immunity involved state action --
that is, conduct engaged in by the State of Alaska; by its
officers, employees or agents; by persons acting in concert with
them or at their behest; or by persons somehow otherwise acting
under color of state law. Cf. State v. Mollica, 554 A.2d 1315
(N.J. 1989); State v. Knight, 661 A.2d 298 (N.J. Super. App. Div.
1995), aff'd, 678 A.2d 642 (N.J. 1996); State v. Hudson, 849 S.W.2d
309 (Tenn. 1993); State v. Johnson, 879 P.2d 984 (Wash. App.
1994).9
Nevertheless, relying on the close strategic interconnec-
tion of the state and federal investigations in his case and on the
superior court's finding of substantial interjurisdictional
contacts, Schwin argues that state conduct has in fact been shown.
We reject this argument.
The superior court did not find that federal prosecutors
acted at the state's behest in deciding to grant Schwin immunity.
Indeed, the superior court's substantial interjurisdictional
contacts findings belie any such conclusion, since those findings
repeatedly emphasize the court's impression that federal
prosecutors acted independently of the state and in furtherance of
federal prosecutive interests when they granted Schwin immunity.
The superior court's findings likewise repeatedly emphasize that
substantial interjurisdictional contacts occurred only after the
federal decision to grant immunity had already been made.
Even if it were otherwise -- that is, even if the
evidence adduced below clearly showed that federal prosecutors did
act at state behest in granting Schwin immunity -- we would be
constrained to hold that transactional immunity is not justified
under the facts of Schwin's case. For even if there were evidence
demonstrating that federal prosecutors allied themselves with the
state in granting Schwin immunity, and even if Alaska thereby
acquired a legitimate constitutional interest in preventing the
federal prosecutors from violating Schwin's state-defined privilege
against compulsory self-incrimination, Alaska could have no
legitimate interest in giving Schwin more protection than he freely
bargained for.
Here, Schwin's formal grant of immunity devolved from a
federal plea bargain, an integral part of which entailed Schwin's
agreement to testify truthfully in federal court as a government
witness against Donnelly. In return, the federal government
committed itself to grant Schwin immunity and to formally compel
his testimony. Schwin's acceptance of the plea agreement was
presumably knowing and voluntary: he was represented by counsel; he
obviously knew of the state's interest in prosecuting him for
Koch's murder; and he has evidently never sought to withdraw his
federal guilty plea as involuntarily entered.
What Schwin specifically agreed to -- all that he agreed
to -- was a grant of use and derivative use immunity. Nothing
more. Had Schwin wanted to hold out for transactional immunity
from state prosecution when he engaged in federal plea bargaining,
he could have done so and should have done so. Cf. State v. White,
773 P.2d 824, 825 (Or. App. 1989) ("[White] may not now transform
the immunity that he accepted into something that he would have
preferred."); see also State v. Graf, 835 P.2d 934, 937 (Or. App.
1992), aff'd, 853 P.2d 277 (Or. 1993). He did not. In prosecuting
Schwin for murder, the state seeks only to hold Schwin to the
terms of his federal bargain.
Why Alaska should have any interest in giving Schwin
something more remains shrouded in mystery.10 Schwin argues that,
in the face of a federal court order compelling him to testify in
exchange for use and derivative use immunity, it would have been
futile for him to demand more. Schwin insists that, as a matter of
federal law, he was entitled to receive only use and derivative use
immunity, and federal prosecutors had no authority to grant him
transactional immunity.11
But Schwin shoots his arrows at the wrong target. At
issue here is not whether Schwin was entitled to hold out for more
when the federal district court ordered him to testify at
Donnelly's trial after the government had formally granted him use
and derivative use immunity. Rather, the issue here is whether
Schwin was free to hold out for more than use and derivative use
immunity at an earlier juncture: when he engaged in plea bargaining
with his federal prosecutors and ultimately accepted a bargain for
use and derivative use immunity.12
The record provides no reason to suppose that Schwin
could not have held out for more than use and derivative use
immunity at this earlier juncture. In this regard, it seems
utterly beside the point to argue, as does Schwin, that federal
prosecutors had no authority to formally grant transactional
immunity from federal prosecution. What Schwin presumably wanted
most was transactional immunity from state, not federal,
prosecution. While federal prosecutors had no direct authority to
grant him that, state prosecutors -- who by Schwin's own account
were working hand-in-glove with his federal prosecutors --
unquestionably did.
Hence, no insuperable legal obstacle prevented Schwin
from bargaining for transactional immunity from state prosecution
as part of his federal plea agreement. Had he asked for
transactional immunity from state prosecution as part of his
federal plea agreement and been denied, the denial would not have
come from lack of authority but from lack of state or federal
willingness -- a risk inherent in any bargaining situation. And
even if denial were inevitable, Schwin would not have been -- and
in fact never has been -- under any legal compulsion to accept an
unsatisfactory plea bargain or to engage in federal plea bargaining
at all.13
We thus conclude that, regardless of whether federal
prosecutors in this case engaged in state action of the kind
sufficient to trigger the protections of the Alaska Constitution's
privilege against self-incrimination, Alaska has no constitutional
obligation to ensure Schwin any higher level of protection than
that which he freely bargained for and accepted: a grant of use and
derivative use immunity, enforceable under prevailing federal law.
To hold otherwise would have the paradoxical effect of
applying Alaska's constitution more rigorously to federal grants of
immunity than to state grants. There can be little doubt that if
Schwin and Donnelly had initially faced state, rather than federal,
drug charges, state prosecutors would have been free to offer
Schwin a plea bargain including a provision for use and derivative
use immunity, rather than transactional immunity, in return for
testimony against Donnelly.14 Faced with this offer, Schwin would
certainly have been entitled to hold out for more -- or to reject
the plea bargain altogether and face trial. But if he accepted the
offer without bargaining for more, he could hardly be heard to
later claim that the Alaska Constitution entitled him to
transactional immunity. Yet in the present case, apart from the
fact that Schwin struck his plea bargain with federal prosecutors
instead of state prosecutors, this is precisely Schwin's situation
and precisely his argument.
In summary, we hold that the superior court erred in
applying the Alaska Constitution's requirement of transactional
immunity to Schwin's case. Schwin's federal immunity must be
enforced in accordance with applicable federal law.15 This level
of enforcement may not afford Schwin sufficient protection against
nonevidentiary use to meet the more rigorous standards imposed by
the Alaska Constitution, but it will meet the less demanding
requirements of the United States Constitution. In the unique
circumstances presented here, Alaska owes Schwin no greater
protection than the United States Constitution demands.
The superior court's order of dismissal is REVERSED, and
this case is REMANDED for further proceedings consistent herewith.
1 As reflected in a prosecution exhibit entitled "The Peter
Schwin Chronology," the task force decided that "[o]nce Schwin
confesses to the murder and Koch's body is located, it then is
agreed that the U.S. Attorney's Office will first prosecute the
drug conspiracy case to be followed by the State homicide
prosecution."
2 The plea agreement stated, in relevant part:
MUTUAL AGREEMENTS
The parties agree as follows:
A. It is the contemplation of both
parties that as part of this plea agreement,
Peter Schwin shall be compelled to provide
complete and truthful testimony in [Donnelly's
case] pursuant to an immunity order under 18
U.S.C. ? 6002.
3 18 U.S.C. ? 6002 (1994) states in pertinent part:
Whenever a witness refuses, on the basis of
his privilege against self-incrimination, to
testify or provide other information in a
proceeding before or ancillary to - (1) a
court or grand jury of the United States, . .
. and the person presiding over the proceeding
communicates to the witness an order issued
under this title, the witness may not refuse
to comply with the order on the basis of his
privilege against self-incrimination; but no
testimony or other information compelled under
the order (or any information directly or
indirectly derived from such testimony or
other information) may be used against the
witness in any criminal case, except a
prosecution for perjury, giving a false
statement, or otherwise failing to comply with
the order.
4 Nonevidentiary use, which in Gonzalez the state conceded
is prohibited under the Alaska Constitution, "'include[s]
assistance in focusing the investigation, deciding to initiate
prosecution, refusing to plea-bargain, interpreting evidence,
planning cross-examination, and otherwise generally planning trial
strategy.'" Gonzalez, 853 P.2d at 531-32 (quoting United States v.
McDaniel, 482 F.2d 305, 311 (8th Cir. 1973)).
5 Kastigar v. United States, 406 U.S. 441 (1972); Murphy v.
Waterfront Comm'n of New York Harbor, 378 U.S. 52 (1964).
6 In reaching this conclusion, the superior court again
stressed that its decision was based on post-immunity state/federal
contacts, that none of the pre- or post-immunity contacts had been
per se impermissible or made in bad faith, and that no proof of
evidentiary taint had been established:
In this case state and federal law
enforcement officials jointly investigated the
circumstances surrounding the death of Koch.
State and federal prosecutors worked together
during the investigation. These co-operative
efforts were permissible. However, once the
defendant testified in federal court, under
the Alaska [C]onstitution as set forth in
Gonzalez, the state prosecutors meeting with
the federal prosecutors to learn their theme
of the federal case, their trial tactics, and
their evaluation of whether witnesses were
good or bad for the prosecution was not
permissible. Even though the content of
defendant's federal testimony was kept from
the state prosecutors, they were exposed to
the nonevidentiary uses of his testimony.
Under Gonzalez, 853 P.2d at 531-32, such
exchange is constitutionally prohibited. It
would not be possible for a state court to
identify the nonevidentiary uses of defen-
dant's immunized federal testimony, or to
enforce a ban against such uses. As the
supreme court articulated in Gonzalez, 853
P.2d at 530, "Even the state's utmost good
faith is not an adequate assurance against
nonevidentiary uses because there may be
'nonevidentiary' uses of which even the
prosecutor is not aware." (Footnote omitted.)
7 Indeed, the state maintains that, given the procedural
context of Schwin's constitutional claim, this is not even an
immunity case. According to the state, this is not a case in which
Schwin asserts that he is entitled to transactional immunity before
he can be compelled to testify; rather it is a case in which Schwin
alleges a violation that has already occurred and seeks to remedy
that violation after the fact. The state maintains that the notion
of "transactional immunity" has no bearing in this context, and
that, instead, traditional harmless error analysis applies. Our
resolution of this case makes it unnecessary to consider this
intriguing legal theory.
As an alternative to its various legal arguments, the
state also argues that, even under the "substantial interjuris-
dictional investigative contacts" test adopted by the superior
court, the evidence adduced at the evidentiary hearing established
that the state's contacts with the federal government were minimal
-- at least for purposes of the concerns addressed by the
constitutional privilege against self-incrimination. Our
resolution of this case likewise makes it unnecessary to consider
this issue.
8 See Hazelwood v. State, 836 P.2d 943 (Alaska App. 1992)
(Hazelwood I); State v. Hazelwood, 866 P.2d 827 (Alaska 1993)
(Hazelwood II) (reversing Hazelwood I); and Hazelwood v. State, 912
P.2d 1266 (Alaska. App. 1996) (Hazelwood III) (on remand from
Hazelwood II).
9 This line of cases, all involving lawful federal conduct
allegedly violating stringent state constitutional provisions
governing searches and seizures, adopts a broad definition of
agency to determine the presence of state action triggering state
constitutional protection. The superior court in the present case
categorically rejected this line of cases as irrelevant to Schwin's
situation, because Schwin's case involved the privilege against
self-incrimination whereas the cited cases dealt with search and
seizure claims. We are not convinced that the superior court's
out-of-hand rejection of these cases is warranted. Our holding in
Schwin's case, however, makes it unnecessary to decide the point.
10 We have consistently recognized that "[i]mmunity agree-
ments are contractual in nature and general principles of contract
law apply to the resolution of disputes concerning their
enforcement and breach." Betts v. State, 799 P.2d 325, 327 (Alaska
App. 1990) (quoting Closson v. State, 784 P.2d 661, 664 (Alaska
App. 1989), rev'd on other grounds, 812 P.2d 966 (Alaska 1991)).
11 See, e.g., United States v. Harvey, 869 F.2d 1439, 1443
(11th Cir. 1989); People v. Phillips, 412 N.Y.S.2d 94 (N.Y. App.
1979).
12 We thus readily accept Schwin's contention that the
federal court's order actually compelled him to testify in exchange
for use and derivative use immunity and that the United States
Constitution's privilege against self-incrimination requires Alaska
to honor the federal immunity grant.
13 We emphasize that nothing in the record supports a
conclusion that federal prosecutors would have compelled Schwin to
testify against Donnelly under a grant of federal immunity but for
Schwin's willingness to accept a plea bargain calling on him to
admit his guilt to the federal drug conspiracy charge and testify
truthfully against his codefendant. This situation readily
distinguishes Schwin's case from cases like In re Inzirillo, 542
F.2d 90, 91 (1st Cir. 1976), which at first blush might seem to
support Schwin's position.
Inzirillo was granted use and derivative use immunity by
a federal grand jury in Massachusetts and was ordered by the
federal district court to testify. He nonetheless declined,
asserting that use and derivative use immunity would not protect
him against nonevidentiary use of his federal testimony in an
impending state prosecution. The federal district court held
Inzirillo in contempt. In affirming the contempt order, the First
Circuit held that Inzirillo's "remedy is not to remain silent, but
to raise the issue of his immunity in the state proceeding." Id.
Only if Schwin's situation at the juncture of his plea
bargain had involved true legal futility -- both in terms of his
ability to ask for transactional state immunity and his ability to
decline to engage in plea bargaining -- could he plausibly rely on
Inzirillo to argue that his proper remedy was "to raise the issue
of his immunity in the state proceeding." Id. And we hasten to
add that even then, Schwin's right to claim transactional immunity
in state court would presuppose his ability to show that the
federal grant of immunity somehow amounted to state action.
14 Cf. United States v. Gutierrez, 696 F.2d 753, 756 & n.6
(10th Cir. 1982) (refusing to give use and derivative use immunity
to a person who made a voluntary statement in exchange for police
agreement not to prosecute a specific case).
15 We note that the superior court's factual findings on the
issue of substantial interjurisdictional investigative contacts
strongly suggest that the evidence presented at the evidentiary
hearing would support a finding that the state's homicide
prosecution might actually be tainted by nonevidentiary use of
Schwin's federal testimony. As we have already observed, however,
the superior court expressly declined to characterize the
evidentiary proceedings held below as the equivalent of a "taint"
hearing. The issue of taint has thus not fully been heard.
Moreover, the court's factual findings suggest the existence of
taint only if we assume that potential nonevidentiary use would
suffice to establish taint under current federal law governing
derivative use of immunized testimony. This is a legal issue that
the parties have not briefed; we do not address or express any view
on this issue, which remains to be developed and ruled on in the
superior court.
?20? 1535
