This is an appeal from an order holding appellant, Phillip Fleischacker, in civil contempt for refusing to answer questions asked at a deposition in a civil antitrust action about his involvement in a price-fixing scheme in the corrugated paper container industry.

In 1977 Fleischacker was subpoenaed to appear before a federal grand jury which was investigating alleged antitrust violations in the corrugated paper container industry. Fleischacker invoked his privilege against self-incrimination when questioned about his involvement in an alleged price-fixing conspiracy, and refused to testify. Thereupon the United States Attorney for the Southern District of Texas applied for an order pursuant to 18 U.S.C. § 6003 (1976)1 granting Fleischacker use immunity in order to compel his testimony. Chief Judge John V. Singleton of the United States District Court for the Southern District of Texas issued the order on August 27, 1977, and shortly thereafter Fleischacker testified before the grand jury. The grand jury returned several criminal indictments against persons other than Fleischacker involved in the price-fixing scheme; Fleischacker has not been criminally prosecuted.2

The criminal antitrust charges generated a number of private antitrust actions which were filed in various district courts throughout the country. These actions were consolidated pursuant to 28 U.S.C. § 1407 (1976) by the Judicial Panel for Multidistrict Litigation as In re Corrugated Container Antitrust Litigation, M.D.L. No. 310, and assigned to Judge Singleton for pretrial proceedings.

In the course of discovery, the plaintiffs subpoenaed Fleischacker to testify in New York City as a non-party witness. In preparation for Fleischacker's civil deposition, deposing counsel reviewed questions and answers contained in the transcript of Fleischacker's immunized testimony, which Judge Singleton previously had ordered released to the plaintiffs.3 The questions posed to Fleischacker at his civil deposition were limited to questions taken verbatim from, or based directly on, his immunized testimony. Even though he had previously responded to questions concerning the same substantive matters under a grant of use immunity, Fleischacker again invoked the self-incrimination privilege and refused to testify. Judge Singleton, exercising the power of a judge of the Southern District of New York pursuant to 28 U.S.C. § 1407(b) (1976), ordered Fleischacker to answer the questions. Relying on 18 U.S.C. § 6002 (1976),4 Judge Singleton found that deposing counsel's use of Fleischacker's immunized grand jury testimony in developing the civil deposition questions would render his answers so clearly and thoroughly "derived from" the immunized testimony that § 6002 would preclude its use against him in any future criminal proceedings. Thus, Judge Singleton concluded that Fleischacker's assertion of the self-incrimination privilege was unfounded and that he would have to testify. When Fleischacker persisted in his refusal to reply, an order of civil contempt was issued under 28 U.S.C. § 1826 (1976). Thereafter, the order was stayed pending the outcome of his appeal.

Fleischacker was understandably confused about where to appeal. Judge Singleton was a district judge of the Southern District of Texas, and the order of contempt had been issued in connection with multidistrict litigation consolidated within the Fifth Circuit; yet, Judge Singleton had "exercise(d) the powers" of a district judge of the Southern District of New York. Thus, in an eminent display of pragmatism, Fleischacker appealed simultaneously to the Second and Fifth Circuits. This Court dismissed the appeal without prejudice to reinstatement, exercising its discretion to allow the Fifth Circuit to determine whether it had jurisdiction to decide the appeal. In re Corrugated Container Antitrust Litigation, No. 80-1090 (2d Cir. Apr. 7, 1980). The Fifth Circuit consolidated Fleischacker's appeal with those of Charles J. Franey and Alex Hopkins, also non-party witnesses in the Corrugated Container litigation.5 The appeals of Franey and Hopkins were identical to that of Fleischacker, except that the former had been deposed in Texas and the latter in New York. Like Fleischacker, Franey and Hopkins had previously testified under an immunity grant before a grand jury and had later asserted that their privilege against self-incrimination when questioned at civil depositions about their involvement in the price-fixing conspiracy. The Fifth Circuit vacated the contempt orders against Franey and Hopkins "(b)ecause the district court's orders (were) supported by neither the immunity statute nor any authority inherent in the court." In re Corrugated Container Anti-Trust Litigation, 620 F.2d 1086, 1094 (5th Cir. 1980). The Fifth Circuit concluded, however, that Fleischacker's appeal should be heard by the Second Circuit. After examining the language of 28 U.S.C. § 1407 and Federal Rules of Civil Procedure 37 and 45, the court concluded that hearing Fleischacker's appeal "would defeat the Rules' strong policy of minimizing inconvenience to non-party witnesses (by requiring) Fleischacker and others in his position to travel thousands of miles to appeal a Rule 37(b)(1) contempt order." Id., at 1091. Following this ruling by the Fifth Circuit, Fleischacker reinstated his appeal before us and we now rule on it.6

The Fifth Amendment to our Constitution states that "(n)o person shall ... be compelled in any criminal case to be a witness against himself." U.S.Const. Amend. V. In United States v. Apfelbaum, 445 U.S. 115, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980), the Supreme Court reaffirmed that the "central standard" for application of the privilege against self-incrimination is whether " 'the claimant is confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.' " Id. at 128, 100 S.Ct. at 956 (quoting Marchetti v. United States, 390 U.S. 39, 53, 88 S. Ct. 697, 705, 19 L. Ed. 2d 889 (1968)). There is no doubt that the answers requested of Fleischacker at his deposition concerning his price-fixing activities could tend to prove elements of crimes for which he could face prosecution. The pivotal issue, however, concerns whether Fleischacker's answers might be used against him in any subsequent criminal proceeding, not whether he might be prosecuted for acts which his answers may touch upon.7 The resolution of this issue necessarily turns upon the extent to which a previous grant of immunity shields a witness from prosecutorial use of statements made in a civil proceeding that are similar or identical to those made under the grant of immunity. In the absence of any risk of prosecutorial use of such statements against the witness, no basis for invoking the self-incrimination privilege would exist. See United States v. Apfelbaum, supra. For the reasons stated below, we conclude that when immunized testimony is the source of questions asked in a subsequent civil proceeding, responsive answers to such questions may not later be used against him in a criminal proceeding. However, to prevent undue interference with criminal prosecutions, district courts should not compel witnesses to respond to questions that do not concern subjects actually touched upon by questions appearing in the transcript of the prior immunized testimony.

In United States v. Tramunti, 500 F.2d 1334, 1342 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S. Ct. 667, 42 L. Ed. 2d 673 (1974), this Court stated:

The theory of the immunity statutes is that in return for his surrender of his fifth amendment right to remain silent lest he incriminate himself, the witness is promised that he will not be prosecuted based on the inculpatory evidence he gives in exchange.

To preserve the witness' privilege against self-incrimination, the prosecution is precluded from using against the defendant any responsive testimony elicited from him or any evidence subsequently derived therefrom. Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). In Kastigar, the Supreme Court rejected the contention that full transactional immunity is the only constitutionally sufficient substitute for the Fifth Amendment right to remain silent,8 but emphasized that witnesses who are forced to testify over an assertion of their Fifth Amendment privilege must be immunized against both direct and indirect use of the compelled testimony. The Court declared that the immunity statute is constitutional only because "(i)t prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." Id. at 453, 92 S.Ct. at 1661 (emphasis in original).9 The Court reaffirmed that the burden is on the government, in any subsequent criminal proceeding, to demonstrate that it has relied solely on evidence from legitimate independent sources, stating:

This burden of proof ... is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

Id. at 460, 92 S.Ct. at 1665. Thus, in United States v. Nemes, 555 F.2d 51 (2d Cir. 1977), this Court ruled that a prosecutor's heavy burden was not satisfied by a mere demonstration that "he (had) had no direct or indirect access to the grand jury minutes." Id. at 55. The Nemes panel declared that the "Government's burden is a 'heavy one' and properly so lest it become 'the loose net to trap tainted evidence' of which Mr. Justice Marshall warned in dissenting as to the constitutionality of use immunity." Id. (quoting Kastigar v. United States, supra, 406 U.S. at 461, 467, 92 S. Ct. at 1665, 1668). See also United States v. Kurzer, 534 F.2d 511 (2d Cir. 1976). Thus, it is clear that when a prosecutor uses immunized testimony to obtain evidence against a defendant, such evidence cannot be used against the defendant because it is derived from the immunized testimony. The question remains, however, whether evidence obtained by a private litigant in the same manner may be used subsequently by a prosecutor against the witness.

Fleischacker argues that where a civil litigant, rather than a prosecutor, uses immunized testimony as the source of his questions, noncompelled10 answers to such questions may freely be used in a subsequent prosecution against the witness. Fleischacker claims that prosecutorial use of testimony elicited in a civil action from a witness in this manner "is not the type of derivative use prohibited by Section 6002 as anticipated in Kastigar," because the connection between the immunized testimony and the civil testimony "is wholly unrelated to any criminal prosecution or investigation." In other words, Fleischacker argues that if a nonprosecutor obtains immunized testimony and uses it to develop evidence, § 6002 does not preclude a prosecutor from using such evidence. Thus, Fleischacker contends that his assertion of the self-incrimination privilege was proper and that Judge Singleton's order holding him in contempt must be reversed. But we believe that to permit a prosecutor to use such laundered testimony would violate the constitutional requirement that a witness' compelled testimony "can in no way lead to the infliction of criminal penalties," Kastigar v. United States, supra, 406 U.S. at 461, 92 S. Ct. at 1665.11 The position advanced by Fleischacker is supported neither by precedent nor by the language of § 6002, which comprehensively precludes prosecutorial use of "any information directly or indirectly derived" from immunized testimony. Therefore, we reject Fleischacker's position.

In Appeal of Starkey, 600 F.2d 1043 (8th Cir. 1979), the Eighth Circuit addressed this issue in an action strikingly similar to the case at bar. Carlos Starkey testified before a grand jury under a grant of use immunity about a price-fixing conspiracy in the dairy business in central Arkansas. Thereafter, the State of Arkansas brought a civil antitrust action against members of the conspiracy and summoned Starkey to appear at a civil deposition. Prior to the deposition, the transcript of Starkey's immunized testimony was released to the State of Arkansas. Starkey invoked his self-incrimination privilege when questioned about the price-fixing conspiracy at the civil deposition but was nonetheless ordered to testify. On appeal, observing that the state had relied upon the grand jury testimony for the questions it posed to Starkey at the civil deposition, the Eighth Circuit declared that the "deposition testimony would be tainted and unavailable for criminal prosecution of Starkey." 600 F.2d at 1047. Thus, the court concluded that since there was no risk that the civil testimony would be used against Starkey, he could not properly invoke his Fifth Amendment privilege and could be compelled to testify.

We agree with the Eighth Circuit and hold that where a transcript of a witness' immunized testimony constitutes the source of questions posed to the same witness in a civil proceeding, responsive answers to such questions are necessarily "derived from" the immunized testimony, and thus unavailable for subsequent prosecutorial use. Since answers to questions derived from immunized testimony cannot be used against the witness in any criminal proceeding, it follows that, in such cases, the Fifth Amendment privilege against self-incrimination cannot be properly invoked. Therefore, once a court determines that immunized testimony has provided the source of the questions posed, the court may compel the witness to respond without infringing the Fifth Amendment.

The majority of the panel in the Fifth Circuit companion case, In re Corrugated Container Anti-Trust Litigation, 620 F.2d 1086 (5th Cir. 1980), reasoned that it would be inappropriate for a court presiding over a civil deposition to consider whether a witness' testimony might be "derived from" prior immunized testimony and thus unavailable for future prosecutorial use. Id. at 1093. According to the Fifth Circuit, the only occasion on which the trial judge should make such a determination is where a previously immunized witness has been indicted and the government is seeking to introduce evidence to secure his conviction.12 In all other cases, the court concluded, the previous grant of immunity should be disregarded and the trial court should uphold the assertion of privilege if (i) the "answers to the questions might tend to reveal that the witness has engaged in criminal activities" and (ii) "there is a risk, even a remote risk, that the witness will be prosecuted for the criminal activities that his testimony might touch on." Id. at 1091 (citing Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1087 n.5 (5th Cir. 1979)). Thus, under the Fifth Circuit's reasoning, the dispositive issue in determining whether an assertion of the privilege should be upheld in all cases is whether there exists a risk of criminal prosecution for acts which the testimony might concern, not whether there is a risk that the testimony might be used against him.

The Fifth Circuit's principal concern was that compelling testimony over a witness' assertion of privilege would result in "de facto" grants of immunity, since such testimony cannot subsequently be used in a criminal proceeding against the party compelled.13 The court feared that the "resulting proliferation of 'immunized' testimony would make it almost impossible for the Government, in a subsequent criminal trial, to sustain its heavy burden of proving that its prosecution is untainted." Id. at 1094. Thus, the Fifth Circuit concluded, the trial judge's inquiry concerning whether to compel testimony should be limited to a determination of whether the answers might tend to reveal criminal activity for which the witness faces possible criminal prosecution.

We cannot agree with the Fifth Circuit's formulation. As Judge Johnson observed in his dissent, courts traditionally have ruled upon the correctness of invoking the privilege and thus the propriety of compelling a witness to testify over its assertion. See Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951); Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344 (1951). In deciding whether to uphold a witness' assertion of the self-incrimination privilege in cases such as this, the district judge need only determine whether prior immunized testimony has served as the source of the questions being asked. If so, any responsive answer by the witness to such questions necessarily will "derive from" the immunized testimony and thus be unavailable for future use against the witness in a criminal prosecution. Moreover, we do not agree that compelling a previously immunized witness to testify over an assertion of his privilege will result in a proliferation of de facto grants of immunity. We are satisfied that compelling a witness to answer questions a second time that were previously answered under a grant of immunity does not result in an expansion of the original grant of immunity. Rather, such responses would come within the original statutory immunity grant because, by necessity, they would derive from the original immunized testimony. Thus, no de facto grant of immunity will have occurred.

The Need to Minimize Interference with Criminal Prosecutions

Having determined that a witness may not properly invoke the self-incrimination privilege when asked questions actually derived from his own previously immunized testimony, the issue remains whether answers may be compelled to questions which are broader than those asked in the course of the immunized testimony.

When a prosecutor questions a witness upon whom use immunity has been conferred, he often is constrained to limit his questioning to avoid rendering a future criminal prosecution of the witness practically impossible. The more penetrating and extensive the questioning, the more difficult becomes a prosecutor's burden subsequently to demonstrate that the evidence he "proposes to use is derived from a legitimate source wholly independent of the compelled testimony," Kastigar v. United States, supra, 406 U.S. at 460, 92 S. Ct. at 1665. A civil litigant, unlike a prosecutor, is not concerned about interfering with subsequent prosecutions. If courts were to compel a witness to respond to questions posed by a civil litigant, simply on the ground that they related to the subject matter of the immunized testimony, the testimony often would go beyond the intended scope of the prosecutor who conducted the original examination and possibly frustrate the government's desire to prosecute the witness. Immunized testimony can serve as the source of a plethora of questions that were intentionally withheld by the prosecutor in a calculated effort to contain the scope of the use immunity then being conferred.

In United States v. Starkey, supra, the Eighth Circuit ruled that the previously immunized witness in that case was "required to answer only questions which (were) within the same time, geographical and substantive framework as the grand jury testimony." 600 F.2d at 1048. But we are of the opinion that the scope of examination permitted under the above standard is not sufficiently circumscribed; it would seem to permit courts to compel a witness to answer any question that relates to the subject matter of the immunized testimony and thus allow the scope of the questions asked under the immunity grant to be greatly exceeded.14 The potential for interfering with prosecutions this standard poses, therefore, compels us to reject it in favor of a narrower rule. To prevent prosecutions from being unnecessarily hampered, district courts should not compel witnesses to respond to questions other than ones concerning specific subjects that actually were touched upon by questions appearing in the transcript of the immunized testimony. To make this determination, the district court need only refer to the transcript of the immunized testimony.

In the case at bar, most of the questions directed at Fleischacker at his civil deposition were read verbatim from the transcript of the immunized testimony. Several other questions involved only the substitution of proper names for pronouns, and in these instances, the persons' identities were derived from other portions of the transcript. It cannot be disputed that all of the foregoing questions concerned specific subjects that actually were touched upon by questions appearing in the transcript of the immunized testimony. Therefore, Fleischacker has no Fifth Amendment privilege to refuse to answer those questions, and the order of the district court holding Fleischacker in contempt for refusing to testify as to those matters is affirmed.

Several of the questions directed at Fleischacker at his deposition, however, went well beyond the scope of the immunized testimony. For example, on September 1, 1977, in the course of an immunized interview between Fleischacker and government prosecutors, Fleischacker was asked about certain price communications he had had with Walter A. Trautman. At the civil deposition, after a series of verbatim questions were directed at Fleischacker concerning his dealings with Mr. Trautman, deposing counsel posed the following questions:

Mr. Fleischacker, would you tell me with what employees of other corrugated manufacturers have you had pricing discussions?

App. 402 (emphasis added),

Mr. Fleischacker, would you tell me whether any such price communications with other employees of corrugated manufacturers were by telephone?

Mr. Fleischacker, would you describe the nature of your price communications with employees of other corrugated manufacturers?

App. 408 (emphasis added). These questions obviously went far beyond the scope of the immunized testimony from which they supposedly were derived. The particular subject matter touched upon by the related transcript questions specifically dealt with Fleischacker's pricing communications with one individual, Trautman. The questions set forth above, however, requested information concerning communications Fleischacker might have had with "employees of other corrugated manufacturers." Since the questions clearly went beyond the specific subject covered in the immunized testimony Fleischacker's communications with Trautman that portion of Judge Singleton's order holding Fleischacker in contempt for refusing to respond was improper and is therefore vacated. In a few additional instances, Judge Singleton ordered Fleischacker to respond to similarly overbroad questions,15 and his order holding Fleischacker in contempt for refusing to answer those questions likewise is vacated.

Affirmed in part, vacated in part, and remanded for further proceedings not inconsistent with this opinion. The parties shall bear their own costs of this appeal.