Use-and-Derivative-Use Immunity Compels Testimony Despite Fear of a Future Perjury Charge

1. Introduction

United States v. McBreairty (1st Cir. Feb. 20, 2026) addresses the intersection of a witness’s Fifth Amendment privilege against self-incrimination and the federal government’s ability to compel testimony through statutory immunity under 18 U.S.C. §§ 6002–6003. During the criminal trial of United States v. Corbett in the District of Maine, the government called Danielle McBreairty as a witness. She invoked the Fifth Amendment and refused to answer. The district court granted statutory immunity and ordered her to testify. She still refused. The court then held her in criminal contempt.

The appeal presented a narrow but significant question: whether a witness may continue to refuse to testify—even after receiving immunity—on the theory that truthful compelled testimony might be disbelieved and lead to a future perjury prosecution (i.e., perjury allegedly committed in the very testimony being compelled).

2. Summary of the Opinion

The First Circuit affirmed the criminal contempt order. It held that:

  • Immunity under 18 U.S.C. §§ 6002–6003 is coextensive with the Fifth Amendment as to compelled testimony that might reveal past wrongdoing.
  • A witness has no Fifth Amendment privilege to refuse to testify merely to avoid the risk that the government may later accuse her of perjury in the immunized testimony itself.
  • A newly raised theory at oral argument—suggesting the district court had accepted a Fifth Amendment privilege against prospective perjury liability—rested on a faulty premise and did not undermine the contempt finding.

3. Analysis

3.1. Precedents Cited

  • United States v. Winter, 70 F.3d 655 (1st Cir. 1995) and In re Grand Jury Proceedings, 943 F.2d 132 (1st Cir. 1991): cited for the standard of review in criminal contempt appeals—abuse of discretion for the contempt order, clear-error review for factual findings, and de novo review for legal questions. This framework matters because McBreairty’s challenge turned largely on a legal claim about the scope of immunity versus the Fifth Amendment.
  • United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987): used to underscore a key point McBreairty conceded: immunized testimony cannot be used to prosecute “past perjury” that comes to light because of the immunized testimony. The opinion relied on this “settled” principle to narrow McBreairty’s remaining argument to fear of future perjury prosecution.
  • In re Grand Jury Proceedings, 644 F.2d 348 (5th Cir. 1981): central to the court’s rejection of McBreairty’s reframed oral-argument theory. The First Circuit highlighted the district court’s understanding—consistent with this case—that the § 6002 perjury exception permits prosecution for prospective perjury (lying in the immunized testimony), while simultaneously foreclosing prosecution for prior perjury based on immunized testimony.
  • In re Grand Jury Subpoena, 739 F.2d 1354 (8th Cir. 1984): invoked by McBreairty for the proposition that inconsistent statements can create perjury exposure. The First Circuit discounted its force because, as the government noted and the opinion emphasized, the witness there had not been granted immunity.
  • United States v. Pizarro-Berríos, 448 F.3d 1 (1st Cir. 2006): cited for waiver principles—arguments raised for the first time at oral argument are typically waived absent extraordinary circumstances. The court nevertheless addressed and rejected the new argument on the merits.

3.2. Legal Reasoning

The court’s reasoning proceeds in two steps.

  1. Coextensiveness of immunity and the Fifth Amendment (as to past wrongdoing): Under § 6002, once an order is communicated, the witness “may not refuse to comply” on Fifth Amendment grounds, and the statute supplies use-and-derivative-use immunity: neither the compelled testimony nor information “directly or indirectly derived” from it may be used against the witness in a criminal case—except for prosecutions for perjury/false statements/failure to comply with the order. The court accepted (and McBreairty conceded) that this protects against using immunized testimony to prosecute past perjury revealed by the compelled testimony (reinforced by Cintolo).
  2. No privilege to refuse testimony to avoid a potential future perjury accusation: McBreairty’s core argument was that the immunity was not “coextensive” because it would not prevent the government from prosecuting her if it concluded she lied in the immunized testimony—potentially using prior statements to show falsity. The First Circuit rejected this as a matter of constitutional “fit”:
    • She cited no authority establishing a Fifth Amendment right to refuse testimony because one might lie and thereby face a perjury charge.
    • She did not explain why the Fifth Amendment—aimed at preventing compelled self-incrimination for past crimes—would protect a witness from the risk of prosecution for new criminal conduct (perjury) committed while testifying.
    In short, the court treated her claim as an attempt to convert the privilege against self-incrimination into a privilege against the consequences of giving false testimony—something the Fifth Amendment does not supply.

3.3. Impact

The decision strengthens (and clarifies within the First Circuit) the practical enforceability of federal immunity orders:

  • Witness compliance: Once §§ 6002–6003 immunity is granted, a witness cannot resist compelled testimony by speculating that truthful answers might be disbelieved or that inconsistencies might trigger a perjury theory regarding the immunized testimony.
  • Contempt litigation: The opinion narrows a potential line of attack on contempt findings—namely, arguments that immunity is not “coextensive” unless it also eliminates any risk of a perjury charge stemming from the compelled testimony itself.
  • Trial administration: The ruling supports district courts’ ability to keep trials moving when a witness refuses to testify after immunity is conferred, by confirming that “fear of perjury prosecution” is not an all-purpose Fifth Amendment escape hatch.

4. Complex Concepts Simplified

  • Fifth Amendment privilege against self-incrimination: A right to refuse to answer questions when truthful answers could be used to prosecute you for a crime.
  • Use-and-derivative-use immunity (18 U.S.C. § 6002): The government cannot use your compelled testimony—or evidence derived from it—against you in a criminal case. This is designed to be sufficient to replace (i.e., be “coextensive” with) the Fifth Amendment privilege.
  • Perjury exception in § 6002: Immunity does not grant permission to lie. If you commit perjury while testifying under immunity, you can still be prosecuted for that perjury.
  • Past vs. prospective perjury: “Past perjury” is lying in earlier testimony or statements. “Prospective perjury” is lying in the compelled testimony given under the immunity order. The opinion treats immunity as blocking prosecutions for past perjury based on immunized testimony, but not blocking prosecution for new perjury committed during immunized testimony.
  • Criminal contempt: A punitive sanction for disobeying a court order (here, the order to testify after immunity was granted).
  • Waiver (appellate procedure): Arguments generally must be raised in the opening brief (and often in the trial court) or they may be treated as waived.

5. Conclusion

United States v. McBreairty affirms that once a witness receives immunity under 18 U.S.C. §§ 6002–6003, she may be compelled to testify and may be held in criminal contempt for refusing. Most importantly, the First Circuit rejects the notion that the Fifth Amendment allows a witness to withhold testimony because the witness fears a future perjury prosecution based on the immunized testimony itself. The decision reinforces the core bargain of immunity: protection against self-incrimination for past conduct, not protection against the consequences of lying under oath.