United States ex rel. Catena v. Elias, 449 F.2d 40 (3d Cir. 1971) (en banc)

Court of Appeals for the Third Circuit, No. 18855, argued October 22, 1970, reargued en banc May 11, 1971, decided September 2, 1971. Chief Judge Hastie wrote for the court; Judge Seitz wrote separately. The respondent was the superintendent of the Youth Reception and Correction Center at Yardville, N.J.

“Appellant Catena was subpoenaed to appear before the New Jersey State Commission of Investigation in the course of an investigation into organized crime in that state. He refused to answer most of the questions put to him, pleading his Fifth Amendment privilege.” Granted immunity under the New Jersey statute from the use of his answers “or evidence derived therefrom,” he still refused; the Superior Court found him in contempt “and remanded him into custody until such time as he should answer the questions,” and the federal district court denied habeas corpus.

The en banc court held that the statute’s use-and-derivative-use immunity was “not comprehensive enough to justify the use of the coercive sanction of contempt,” so “The judgment denying habeas corpus will be reversed. And since it appears that the appellant has been deprived of his liberty for more than a year because of his lawful refusal to testify, the mandate of this court shall issue forthwith.” The Supreme Court later stayed the mandate, and after its 1972 decision in Zicarelli the case returned to the Third Circuit (465 F.2d 765). The opinion says nothing about Catena beyond the subpoena and the contempt; the Commission’s purpose is the court’s description of the investigation, not a finding about him.