Petition for Review from the Superior Court, Third Judicial District, Anchorage, Gregory Miller, Judge. Trial Court No. 3AN-10-3656 CR.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Petitioner.
Kevin G. Brady, Law Office of KeriAnn Brady, Anchorage, for the Respondent. Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Real Party in Interest.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
The State of Alaska is prosecuting Demetrius J. Finley for a drug offense, and the State wishes to call Thomas B. Dickson as a witness at Finley's trial. The State concedes that Dickson's testimony would be self-incriminatory, so the State has granted " transactional" immunity to Dickson -- promising him that he will not be prosecuted by the State of Alaska for any crime he is compelled to testify about. The Alaska Constitution requires this complete immunity when a witness is compelled to give self-incriminating testimony. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).
But Dickson's testimony would also be self-incriminatory under the federal drug laws -- and that is the source of the legal controversy in this case.
Under the Fifth and Fourteenth Amendments to the federal constitution, whenever one state grants immunity to a witness and compels the witness to give self-incriminating testimony, all other American jurisdictions (state and federal) are forbidden from using the witness's testimony against them. The witness is protected from either
direct or " derivative" use of their testimony (such as using the testimony to develop new evidence or new investigative leads). Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678; 378 U.S. 52, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678; 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).
But this " use" immunity does not completely prevent these other jurisdictions from prosecuting the witness for the crimes revealed by their testimony. Other states and the federal government remain empowered to prosecute the witness, so long as their evidence is derived wholly independently of the witness's compelled testimony.
The witness in this case, Dickson, argues that the transactional immunity required by the Alaska Constitution (as construed in State v. Gonzalez ) covers not only criminal prosecutions initiated by the State of Alaska and its political subdivisions, but also criminal prosecutions initiated by any other American jurisdiction. Thus, Dickson contends, he can refuse to testify at Finley's trial as long as he faces any possibility of prosecution by the federal government (or by any other state) for the drug offense that he will be compelled to testify about.
According to Dickson, the State can not compel him to testify unless the State guarantees that he will receive transactional immunity -- not just the use immunity guaranteed by Murphy v. Waterfront Commission -- from every other American jurisdiction where he might face criminal liability because of his testimony.
The superior court agreed with Dickson and ruled that he could not be compelled to testify unless the State obtained a guarantee of transactional immunity for Dickson from the federal government.
For the reasons explained in this opinion, we hold (as a matter of Alaska constitutional law) that the result reached by the United States Supreme Court in Murphy v. Waterfront Commission is the correct resolution of this problem of inter-jurisdictional immunity. Dickson is entitled to transactional immunity from prosecution by the State of Alaska, but he is only entitled to use immunity from prosecution by other American jurisdictions.
We therefore reverse the ruling of the superior court: Dickson can be compelled to testify because of the State of Alaska's grant of immunity.
The procedural history of this litigation
Demetrius Finley stands accused of second-degree controlled substance misconduct -- more specifically, delivery of heroin. Thomas Dickson was involved in the heroin transaction with Finley, and Dickson ultimately pleaded guilty to fourth-degree controlled substance misconduct (possession of heroin). As part of his plea bargain, Dickson agreed to testify against Finley.
Later, however, Dickson announced that he would not testify against Finley -- that, instead, he intended to assert his privilege against self-incrimination.
The State declared that it was willing to grant transactional immunity to Dickson -- that is, complete immunity from prosecution by the State of Alaska for any crimes he was compelled to testify about. And, as we have already explained, if Dickson is compelled to testify under the State of Alaska's grant of immunity, he is automatically entitled to immunity from any use of his testimony (either direct use or derivative use) in any federal court or in the courts of any other state.
But Dickson argued that this use immunity was not a sufficient protection against his potential federal prosecution for drug offenses. He asserted that his rights under the Alaska Constitution would not be satisfied unless he received transactional immunity from the federal government.
The superior court agreed with Dickson. The court noted that the use immunity guaranteed by Murphy v. Waterfront Commission did not amount to a complete immunity from federal prosecution for his drug offense. And the court ruled that, as long as Dickson faced potential prosecution by any other jurisdiction for the crimes revealed by his testimony, it would violate the Alaska Constitution to compel him to testify. Thus, the court declared, Dickson could continue to assert his ...