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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                      Court of Appeals No. A-11552

                            Petitioner,              Trial Court No. 3AN-10-3656 CR


                     v.
                                                                OPINION
DEMETRIUS J. FINLEY,

                            Respondent,
                     and                              No. 2433 — November 14, 2014

THOMAS B. DICKSON,

                     Real Party in Interest.


              Petition for Review from the Superior Court, Third Judicial
              District, Anchorage, Gregory Miller, Judge.

              Appearances: 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. *

              Judge MANNHEIMER.


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              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, 1609; 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


                                           –2–                                        2433

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.




                                            –3–                                      2433

              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 privilege against self-
incrimination (and could properly refuse to testify at Finley’s trial) unless the federal
government granted Dickson transactional immunity for the crimes he testified about.
              The State petitioned this Court to review the superior court’s ruling. This
Court granted the State’s petition, ordered formal briefing, and stayed the criminal
proceedings against Finley.
              (Because Finley and Dickson have joined in a single brief, we do not need
to resolve the question of whether Finley has standing to participate in this litigation,




                                           –4–                                       2433

given that the litigation is concerned solely with the scope of Dickson’s privilege against
self-incrimination.) 1


       The two types of witness immunity recognized under American law


              Both the Fifth Amendment to the United States Constitution and Article I,
Section 9 of the Alaska Constitution guarantee a right against self-incrimination.
Likewise, under both federal law and Alaska law, a witness whose testimony would be
self-incriminating can nevertheless be forced to testify if the government grants the
witness immunity. 2
              But federal and state law differ as to the type of immunity that is required
before a witness can be forced to give self-incriminating testimony.
              Under federal law and the law of about half the states, 3 the government
must grant “use” immunity to the witness — i.e., protection against (1) direct use of the
witness’s testimony and (2) any derivative use of the testimony (e.g., use of any evidence
or investigative leads developed as a result of the testimony). See Kastigar v. United
States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
              On the other hand, under Alaska law 4 and the law of the other half of the
states, the government must grant “transactional” immunity to the witness — i.e.,




   1
       See State v. Corbett, 286 P.3d 772, 775 (Alaska App. 2012).
   2
       See 18 U.S.C. § 6002 and AS 12.50.101.
   3
       Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal
Procedure (3rd ed. 2007), § 8.11(b), Vol. 3, p. 274. See also the synopsis of the case law
contained in Commonwealth v. Swinehart, 664 A.2d 957, 965-67 (Pa. 1995).
   4
       State v. Gonzalez, 853 P.2d 526, 533 (Alaska 1993).

                                           –5–                                        2433

complete immunity from prosecution (no matter where the government’s evidence comes
from) for any criminal offense that the witness is compelled to testify about.
              As this Court explained in State v. Corbett, 286 P.3d 772, 779 (Alaska App.
2012), the requirement of transactional immunity is essentially a supplement to the rule
of use immunity — “an added protection to make sure that witnesses truly are protected
from the derivative use of their immunized testimony.”


       The legal problem presented in this case: cross-jurisdictional immunity


              If a person’s conduct subjects them to criminal liability in only one
jurisdiction — i.e., liability only under federal law, or only under the law of a single state
— then the law of that jurisdiction will prescribe the type of immunity that the person
must receive before they can be forced to relinquish their privilege against self-
incrimination. But the situation is more complicated if a person’s conduct potentially
subjects them to criminal liability in more than one jurisdiction.
              The United States Supreme Court initially took the position that American
jurisdictions (both state and federal) were not bound by the immunity granted to a
witness by the authorities of another jurisdiction. Thus, any other jurisdiction was free
to use the witness’s compelled testimony as a basis for a criminal prosecution.
              This principle was first enunciated in 1931 in United States v. Murdock, 5
where the Supreme Court held that a person who was called to testify in federal court
could not claim the privilege against self-incrimination based solely on the danger that
their testimony might subject them to criminal liability under state law.
              The Supreme Court noted that, in earlier decisions, it had ruled that (1) a
person who was granted immunity by federal prosecutors could properly be compelled


   5
       284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931).

                                            –6–                                         2433

to testify even though this grant of immunity did not protect the person against state
prosecution; and likewise (2) a person who was granted immunity by state prosecutors
could properly be compelled to testify even though these state officials had no power to
give the witness protection against federal prosecution. Id., 284 U.S. at 149, 52 S.Ct. at
65.
                The rule established by these decisions, the Supreme Court declared, was
that the privilege against self-incrimination was fully satisfied if the person was granted
complete immunity from prosecution under the laws of “the government [that was]
compelling the witness to answer”. Ibid.
                Thirteen years later, in Feldman v. United States, 322 U.S. 487, 64 S.Ct.
1082, 88 L.Ed. 1408 (1944), the Supreme Court held that when a person was compelled
to give testimony in state court under a state grant of immunity, that person’s testimony
could be used by federal authorities to prosecute the person for a violation of federal
law. 6
                (See also Knapp v. Schweitzer, 357 U.S. 371, 374-75; 78 S.Ct. 1302, 1304­
05; 2 L.Ed.2d 1393 (1958), which held that state authorities could compel a person to
testify by granting the person immunity from state prosecution, even though the person’s
testimony would be incriminating under federal law.)
                The approach to witness immunity and self-incrimination expounded in
Murdock and Feldman — i.e., the principle that no jurisdiction is bound by the immunity
granted to a witness by another jurisdiction — was the controlling law in Alaska when
Alaska was a federal territory. More significantly, it was the law in Alaska in 1955-56,
when the Alaska Constitution was drafted. 7



      6
          322 U.S. at 493, 64 S.Ct. at 1084-85.
      7
          http://en.wikipedia.org/wiki/Constitution_of_Alaska.

                                             –7–                                      2433

               But in 1964, in Murphy v. Waterfront Commission of New York Harbor,
378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the United States Supreme Court
altered course and declared that the federal government and the several states were bound
to recognize the immunity granted to a witness by authorities in another jurisdiction.
               The petitioners in Murphy were called to give testimony about a work
stoppage at New York Harbor. 8 They were given immunity for their testimony under
the laws of New York and New Jersey, but they still refused to answer questions, on the
ground that their answers would subject them to federal criminal liability. 9 Because the
petitioners’ legal argument had already been rejected in Murdock and Feldman, the
petitioners were held in contempt — and their case ultimately made its way to the
Supreme Court. 10
               The Supreme Court was re-thinking its decisions in Murdock and Feldman
because the Court was getting ready to rule (in Malloy v. Hogan 11) that the Fifth
Amendment privilege against self-incrimination was binding on the states (under the due
process clause of the Fourteenth Amendment). Because of its impending decision
broadening the reach of the Fifth Amendment, the Supreme Court granted review in
Murphy v. Waterfront Commission to re-examine the question of “whether, absent an
immunity provision, one jurisdiction in our federal structure may compel a witness to
give testimony which might incriminate him under the laws of another [American]
jurisdiction.” 12


   8
        Murphy, 378 U.S. at 53, 84 S.Ct. at 1596.
   9
        Id., 378 U.S. at 53-54, 84 S.Ct. at 1596.
   10
        Id., 378 U.S. at 54, 84 S.Ct. at 1596.
   11
        378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
   12
        Murphy, 378 U.S. at 54, 84 S.Ct. at 1596.

                                             –8–                                    2433

               In Murphy, the Supreme Court concluded that the Fifth and Fourteenth
Amendments required cross-jurisdictional recognition of any grant of immunity made
by the federal government or by any state government. 13 14
               But this holding raised yet another question: what kind of cross-jurisdic­
tional recognition did the federal constitution require?
               Murphy was decided in 1964. At that time (that is, eight years before the
Supreme Court adopted a rule of use immunity in Kastigar v. United States 15),
the accepted view was that a person could not be compelled to give up their privilege
against self-incrimination unless they received transactional immunity — full immunity
from prosecution for any crime that they were compelled to testify about. (Indeed, the
petitioners in Murphy had been granted transactional immunity by the States of New
York and New Jersey before they were ordered to testify.) 16




   13
        Id., 378 U.S. at 77-78, 84 S.Ct. at 1609.
   14
        The Murphy Court also declared that Murdock and Feldman had been wrongly
decided — that those decisions were “unsupported by history or policy”. Murphy, 378 U.S.
at 77, 84 S.Ct. at 1609. But more recently, in United States v. Balsys, 524 U.S. 666, 683-88;
118 S.Ct. 2218, 2228-2230; 141 L.Ed.2d 575 (1998), the Supreme Court repudiated this
portion of the Murphy decision. The Court re-affirmed the principle that the Fifth
Amendment does not protect witnesses from potential criminal liability in jurisdictions
outside the United States (i.e., other countries), and the Court declared that the correct
reading of Murphy was that, for purposes of the Fifth and Fourteenth Amendments, all
American jurisdictions were to be viewed as one regarding the issue of immunity.
   15
        406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
   16
      Murphy, 378 U.S. at 53, 84 S.Ct. at 1596. (This fact is recited more clearly in
Kastigar v. United States, 406 U.S. 441, 457; 92 S.Ct. 1653, 1663; 32 L.Ed.2d 212 (1972).)

                                            –9–                                        2433

                But the Murphy Court did not require the state and federal governments to
extend transactional immunity to witnesses who were compelled to testify under a grant
of immunity in another jurisdiction. Instead, the Supreme Court declared that the federal
constitution required these other jurisdictions to extend use immunity to these witnesses:

                [W]e [declare] the constitutional rule to be that a state witness
                may not be compelled to give testimony which may be
                incriminating under federal law unless the compelled
                testimony and its fruits cannot be used in any manner by
                federal officials [to support] a criminal prosecution against
                him. ... [T]he Federal Government must be prohibited from
                making any such use of compelled testimony and its fruits.

Murphy, 378 U.S. at 79, 84 S.Ct. at 1609.
                The Court declared that it was adopting this rule of use immunity as a
means of achieving two ends: “to implement [the] constitutional [privilege] and [to]
accommodate the interests of the State and Federal governments in investigating and
prosecuting crime”. 17 The Court explained that this “exclusionary rule” — i.e., the rule
of use immunity — “leaves the [state] witness and the Federal Government in substan­
tially the same position as if the witness had claimed his privilege in the absence of a
state grant of immunity”, while at the same time “permitting the States to secure
[testimony] necessary for effective law enforcement”. 18




   17
        Ibid.
   18
        378 U.S. at 79, 84 S.Ct. at 1609-1610.

                                             – 10 –                                  2433

        Why we reverse the superior court’s ruling in this case


              The issue in this case is whether Article I, Section 9 of the Alaska
Constitution requires a different answer to the inter-jurisdictional immunity question that
the Supreme Court addressed in Murphy.
              Our state constitution was drafted in the mid-1950s, when Alaska was still
a federal territory. At that time, the rule under federal law — as illustrated by the
Supreme Court’s decisions in Murdock and Feldman — was that (1) the federal
government and the several states were not required to honor grants of immunity made
by another American jurisdiction, and (2) a person who was granted immunity by one
jurisdiction could not refuse to testify based on the possibility that their testimony might
incriminate them in a different jurisdiction.
              We have found nothing in the record of the Alaska constitutional
convention to suggest that the delegates wished to depart from this rule when they
drafted the self-incrimination provision of Article I, Section 9. 19 We therefore conclude
that Article I, Section 9 — at least as it was originally understood — did not apply to
potential criminal prosecutions under the laws of other jurisdictions.
              However, this conclusion does not necessarily resolve this case.
              In State v. Gonzalez, when our supreme court was asked to decide whether
a grant of use immunity was sufficient to supplant the protection of Article I, Section 9,
the court declared that the answer to this question “[was] not controlled by any one
source of authority, such as United States Supreme Court precedent[,] or an appeal to the
intent of the framers of the Alaska Constitution.” 853 P.2d at 529. The supreme court



   19
      See the discussion of the self-incrimination clause that occurred on Day 44 of the
convention, as well as the commentary to the self-incrimination clause contained in
Appendix V to the convention minutes.

                                          – 11 –                                      2433

acknowledged that an appellate court should consider those sources “when appropriate”,
but the court declared that its real task was to “[discern] the intention and spirit” of the
constitutional provision to determine what sort of protection was “necessary for the kind
of civilized life and ordered liberty which is at the core of our constitutional heritage.”
Ibid.
              We therefore believe that we must look beyond the drafters’ original
understanding of Article I, Section 9 to see if evolving standards of “ordered liberty”
require a different reading of the self-incrimination clause.
              We begin by looking at how other “transactional immunity” states have
answered this question — i.e., other states whose law requires a grant of transactional
immunity to supplant a witness’s assertion of the privilege against self-incrimination.
              Massachusetts, Oregon, and Mississippi are transactional immunity states,
and the supreme courts of those states have either held or indicated that when a witness
faces potential criminal liability in another jurisdiction, the use immunity guaranteed by
the Fourteenth Amendment (as construed in Murphy) is sufficient.
              The Massachusetts Supreme Court directly addressed this issue in Baglioni
v. Chief of Police of Salem, 656 N.E.2d 1223, 1226 (Mass. 1995), and again in In re
Vaccari, 955 N.E.2d 266, 269-270 (Mass. 2011). The Massachusetts court held that a
witness called to testify in Massachusetts has no right to insist on transactional immunity
from federal prosecution, even though the witness can demand transactional immunity
from prosecution by Massachusetts authorities.
              See also State v. Soriano, 684 P.2d 1220, 1234 (Or. App. 1984) (en banc),
and Wright v. McAdory, 536 So.2d 897, 904 (Miss. 1988).
              Dickson and Finley have not directed our attention to any cases reaching
a contrary result. The fact that, even among transactional immunity jurisdictions, no
American court has adopted the rule proposed by Dickson and Finley suggests that their


                                          – 12 –                                      2433

expansive view of the privilege against self-incrimination is not an essential component
of the “ordered liberty ... at the core of our constitutional heritage”. Gonzalez, 853 P.2d
at 529.
              We further believe that the rule proposed by Dickson and Finley is
inconsistent with our state’s sovereignty within a federal system.
              If we endorsed the interpretation of Article I, Section 9 that Dickson and
Finley propose (and that the superior court adopted) — the rule that no witness can be
compelled to testify absent a guarantee of transactional immunity from every sovereign
whose laws the witness might have violated — then the Alaska government’s power to
grant immunity would often hinge on the discretionary decision of another sovereign —
or, conceivably, the discretionary decisions of several other sovereigns.
              We live in an age where interstate travel (indeed, international travel) is a
regular occurrence for many, and where the Internet affords people the ability to
communicate instantly across state and national boundaries. Because of this, personal
and business activities often span the borders of several states, and those activities
potentially involve both state law and federal law.
              Thus, there will be many occasions when a criminal activity or enterprise
affects not just the interests of the people of Alaska, but also the interests of one or more
other sovereigns within our federal system. Under the rule that Finley and Dickson
propose, no grant of immunity made by Alaska officials would be constitutionally
sufficient unless every other interested sovereign also voluntarily extended transactional
immunity to the witness. As a consequence, our own state’s interest in compelling the
testimony needed to investigate and prosecute these criminal activities would be held
hostage to the competing interests of other sovereigns.
              For these reasons, even though we have the authority to construe Article
I, Section 9 of our constitution more broadly than the other transactional immunity states


                                           – 13 –                                      2433

have construed their own law, we conclude that those states struck the proper balance
when they endorsed the approach taken by the United States Supreme Court in Murphy
v. Waterfront Commission.
                A witness who is granted immunity, and who is compelled to testify despite
a claim of self-incrimination, is entitled to protection from prosecution in other
jurisdictions — but not an absolute protection that is beyond the power of Alaska
authorities to grant.     As the Supreme Court explained in Murphy, the law must
implement the constitutional privilege against self-incrimination while at the same time
“accommodat[ing] the interests of the State and Federal governments in investigating and
prosecuting crime”. Murphy, 378 U.S. at 79, 84 S.Ct. at 1609. We conclude that the
correct way to balance these interests is the law as it currently stands: under the Alaska
Constitution, the witness receives transactional immunity from prosecution for any
violation of Alaska’s criminal law, while under the Fifth and Fourteenth Amendments,
the witness is guaranteed use immunity for their testimony in every other American
jurisdiction.


       Conclusion


                We hold that Dickson can be compelled to testify under the State of
Alaska’s grant of transactional immunity, even though Dickson will receive only use
immunity from the federal government and from other states whose laws Dickson has
potentially violated.
                The decision of the superior court is REVERSED.




                                           – 14 –                                    2433

