Danielle McBreairty was called as a witness in a criminal trial, United States v. Corbett, in the District of Maine. She intended to invoke her Fifth Amendment privilege against self-incrimination to avoid testifying. The government moved for an order compelling her testimony under 18 U.S.C. §§ 6002-6003, which provides for statutory immunity. The District Court granted the immunity, explicitly stating that the compelled testimony could not be used against McBreairty in any criminal case, except for prosecutions for perjury, false statements, or failure to comply with the order. Despite this, McBreairty continued to refuse to testify, arguing that the immunity was not coextensive with her privilege because it did not protect her from a future perjury prosecution based on the truthfulness of her immunized testimony. The District Court found her in criminal contempt, and she appealed.
The First Circuit reviewed the District Court's order for abuse of discretion. The court addressed McBreairty's argument that the statutory immunity was insufficient because it did not protect her from a perjury prosecution based on the possibility that her immunized testimony might be deemed false compared to prior statements. The court noted that McBreairty failed to cite any authority establishing a Fifth Amendment privilege to avoid testifying solely to prevent a perjury prosecution for the testimony itself. The court emphasized that the Fifth Amendment protects against compelled self-incrimination regarding past wrongdoing, not against the risk of being prosecuted for lying while under oath. The court further rejected a secondary argument raised for the first time at oral argument, which claimed the District Court abused its discretion by not explaining how the immunity covered a hypothetical perjury claim. The court found this argument waived and noted that the District Court had explicitly clarified that the immunity did not cover prospective perjury, stating, 'of course, there's no Fifth Amendment privilege to submit false testimony before the Court.' The court concluded that the statutory immunity was coextensive with the Fifth Amendment privilege as it applied to past wrongdoing, and McBreairty's continued refusal to testify truthfully constituted criminal contempt.
The decision reinforces that statutory immunity effectively neutralizes the Fifth Amendment privilege for witnesses ordered to testify. Witnesses cannot refuse to testify on the grounds that they fear a perjury prosecution for the testimony they are compelled to give. The judgment is affirmed, and McBreairty remains subject to the criminal contempt order. The ruling clarifies that immunity protects against the use of testimony in prosecutions for past crimes but does not shield a witness from prosecution for perjury committed during the immunized testimony.
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