## Facts

- Frank DeSalvo, a lawyer associated with a personal-injury firm under criminal investigation, testified in 1987 before a New York state grand jury under a grant of transactional immunity.
- In 1989, he was subpoenaed by a federal grand jury investigating the same firm; a federal court granted him use-and-derivative-use immunity under 18 U.S.C. § 6002, and he testified multiple times.
- During the subsequent federal trial of other firm participants, DeSalvo again testified under a § 6002 immunity order; his trial testimony was essentially identical to his federal grand jury testimony.
- Federal prosecutors later charged DeSalvo with four counts of perjury under 18 U.S.C. § 1623(a) and four counts of obstruction of justice under 18 U.S.C. § 1503, based on allegedly false statements made to the federal grand jury and at the trial.
- The government’s proof included comparing DeSalvo’s various immunized statements to demonstrate falsity and using additional evidence from sources asserted to be independent.
- A jury convicted DeSalvo on all counts in the Eastern District of New York.
- The district court sentenced him to 30 months’ imprisonment, including a three-level enhancement for “substantial interference with the administration of justice” under U.S.S.G. §§ 2J1.2(b)(2) and 2J1.3(b)(2).

## Issues

1. Whether 18 U.S.C. § 6002 and the Fifth Amendment bar the government from using a witness’s immunized testimony to prove that other, noncontemporaneous immunized testimony was false in a prosecution for perjury and obstruction.
2. Whether the district court erred in applying a three-level Guidelines enhancement for “substantial interference with the administration of justice” to perjury and obstruction convictions.

## Decision

- The Second Circuit affirmed the convictions and sentence.
- The court held that using DeSalvo’s immunized testimony to establish the falsity of other immunized testimony did not violate § 6002 or the Fifth Amendment because the prosecution fell within the statute’s perjury/false-statement exception.
- The court rejected the argument that prior state transactional immunity barred or limited the federal prosecution, emphasizing that the federal case targeted false testimony in federal proceedings, not underlying substantive offenses.
- The court upheld the three-level “substantial interference” enhancement based on the obstructive effect of DeSalvo’s false statements on a significant federal investigation and prosecution.

## Legal Principles

- Use-and-derivative-use immunity under 18 U.S.C. § 6002 is coextensive with the Fifth Amendment as to substantive offenses, but it expressly permits prosecutions for perjury, false statements, and related obstruction arising from immunized testimony.
- In a perjury or obstruction prosecution based on immunized testimony, the government may use the immunized testimony in context, including comparisons among multiple immunized statements, to prove falsity, so long as the prosecution is for the false statements themselves rather than for underlying criminal conduct.
- A state grant of transactional immunity does not bind the federal government; federal § 6002 immunity does not confer transactional immunity and does not preclude perjury-based federal charges tied to immunized federal testimony.
- For evidence beyond the immunized statements, the government must rely on sources independent of compelled testimony consistent with Kastigar requirements.
- A “substantial interference with the administration of justice” enhancement is warranted where perjury or obstruction materially impedes an important investigation or prosecution.

## Conclusion

The Second Circuit held that § 6002 does not protect a witness from prosecution for perjury or obstruction committed in immunized federal proceedings and permits the government to use immunized statements, including by cross-comparison, to prove falsity; it also affirmed a Guidelines enhancement where the false testimony substantially interfered with a major federal case.


United States v. DeSalvo, 26 F.3d 1216 (2d Cir. 1994)