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United States v. Kenny

decided: May 30, 1972.

UNITED STATES OF AMERICA
v.
JOHN V. KENNY ET AL. APPEAL OF STATE OF NEW JERSEY AND GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, ACTING FOR AND ON BEHALF OF THE STATE OF NEW JERSEY



Seitz, Chief Judge, Hunter, Circuit Judge and McCune, District Judge.

Author: Seitz

Opinion OF THE COURT

SEITZ, Chief Judge:

This is an appeal from a district court injunctive order providing, in part, that:

"the State of New Jersey and its Attorney General are hereby permanently and forever enjoined and restrained from continuing to prosecute defendant, John J. Kenny, under an Indictment entitled State of New Jersey v. John J. Kenny, State Grand Jury No. SGJ2-70-8J . . . or under any other indictment relating to involving or on account of any transactions matters or things concerning which defendant, John J. Kenny, was compelled to testify or produce in evidence in this Court in the United States of America v. John V. Kenny, et al., (Criminal No. 570-70)."

The order issued after a hearing held pursuant to defendant's motion. Originally, defendant had been named as a co-defendant in the federal criminal action, United States v. John V. Kenny, et al., Criminal No. 570-70. The defendants there were charged with violating provisions of the United States Criminal Code involving racketeering. 18 U.S.C. §§ 1951, 1952. Defendant was severed from the federal case and, after being granted immunity pursuant to 18 U.S.C. § 2514, testified as a Government witness at the trial of the remaining defendants.

Prior to return of the federal indictment against defendant and the others, a New Jersey Grand Jury had issued a state indictment against defendant alone, charging him with unlawfully accepting money for the performance of his public duties as a Hudson County Freeholder. He also was charged with official misconduct in connection with the modification of a certain county deed. The State voluntarily delayed trial on this indictment until completion of the federal proceedings.

As a witness for the Government at the federal trial defendant was questioned several times, both on direct and cross-examination, concerning matters covered by the State indictment, a copy of which was before the district court judge. Defendant responded to each inquiry only after being assured by the court that the immunity conferred under § 2514 applied. On the basis of these assurances defendant's counsel petitioned the court for an order specifically enjoining the prosecution of defendant under the pending state indictment. The court directed the State to show cause why an injunction should not issue and a hearing was held. Thereafter, the order requested was entered and this appeal by the State followed.

The State takes the position that defendant's immunity from state prosecution rests solely on his responses to a limited series of cross-examination questions posed by one of the co-defendants' counsel. It acknowledges that defendant's answers to these questions directly concerned the state prosecution. But it contends that defendant "could not receive [immunity from state prosecution] by volunteering on cross-examination (or direct examination) testimony, unsought and unneeded by the Government, about a transaction totally unrelated to any[thing] involved in the Federal case, although he was called to the stand under a grant of Federal immunity in order to offer information pertinent to the Federal prosecution." Thus, the issue before us apparently is viewed by the State to be whether defendant's responses constituted "compelled" testimony within the meaning of § 2514.

We do not feel, however, that we are in a position to reach the issue of whether defendant's responses were compelled. We say this because, even assuming that defendant's testimony was covered by transactional immunity, we must first determine whether the district court had the right to enjoin the state prosecution.

Section 2283 of Title 28 provides:

"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

The district court determined that it had such right, reasoning that:

"by implication the immunization statute [18 U.S.C. § 2514] expressly authorized conferring of immunity upon a witness; and by implication it authorizes effective action on the part of district courts to give effect to the congressional enactment; and further that, having entered judgment of immunization, a stay is necessary, not only in aid of the ...


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