dissenting:
Today the court sanctions under the harmless error rule the government’s use of evidence derived from a defendant’s pri- or immunized grand jury testimony. Because such use of tainted evidence in a criminal prosecution of a defendant violates the federal immunity statute, 18 U.S.C. §§ 6002-03, and the self-incrimination clause of the fifth amendment, I respectfully dissent.
BACKGROUND
As the majority relates, in 1980, defendant Miron, head of a number of building supply companies in the New York metropolitan area, was compelled to testify as a witness before a grand jury investigating former labor official John Cody and his ties to organized crime. In exchange for his compelled testimony, Miron was given a general grant of immunity pursuant to 18 U.S.C. § 6003. Miron testified before the grand jury about his relationship with Cody and Cody’s relationship with Paul Castella-no, who was then the reputed leader of the Gambino organized crime family. Although Miron did not testify against Cody at the 1982 trial which resulted in Cody’s conviction for labor racketeering, Miron’s prior grand jury testimony that Cody and Castellano were in contact concerning the prices to be charged for various building materials did corroborate other information provided by FBI informants as to the Cody-Castellano relationship.
By 1983, the Brooklyn Strike Force’s investigation into the activities of Castellano had led them to Castellano’s home on Staten Island. The government previously had obtained a series of wiretap orders authorizing the interception of conversations relating to violations of the RICO conspiracy statute — specifically regarding predicate acts of loansharking, extortion and murder. When the FBI was finally able to gain access to the Castellano residence to install an eavesdropping device, the intercepted conversations revealed that Castellano and his cohorts also were involved in labor racketeering.
The government promptly applied to Judge Bramwell for an extension and expansion of the wiretap order to include labor racketeering. The FBI deponent noted in his affidavit that he had learned as early as 1982 that the Gambino family was “engaged in labor racketeering and the corrupt control of labor unions.” 671 F.Supp. 124, 126 (E.D.N.Y.1987). He explained that the Gambino family’s participation in labor racketeering took the form of “supply[ing] ‘muscle’ ... for corrupt union officials [who] in turn extort money ... from *1093construction company contractors ... for labor peace.” Id. To establish the connection between Castellano, labor officials and construction company contractors, the FBI agent cited two reliable informants who revealed that Cody was closely associated with Castellano in the activities for which the former was convicted in 1982, and directly referred to Miron’s immunized grand jury testimony indicating that Castellano, Cody and Miron met to work out prices for building materials. Id. at 126-27. As further evidence to support the government’s assertion that there was probable cause to believe labor racketeering discussions were being held at the Castellano residence, the FBI deponent reported the results of physical surveillance and previously authorized electronic surveillance of the Castellano residence. Physical surveillance revealed repeated observations of automobiles registered to Local 282 officials and, on two occasions (March 24, 1983 and April 2, 1983), of an automobile registered to defendant Miron. Electronic surveillance revealed, among other things, that Miron had called Castellano to make an appointment to see him on March 24, 1983. Id. at 128.
On April 8, 1983, based upon the FBI agent’s affidavit, Judge Bramwell authorized a wiretap to cover labor racketeering. The April 8, 1983 wiretap order led to the interception of conversations at the Castel-lano residence implicating defendant, Cas-tellano and others in an illegal labor payoff scheme. The 1981-83 scheme involved payments to Castellano and Miron by a company which was awarded a multi-million dollar contract to restore Mobil Oil Corporation’s deep water terminal and pipeline facility at Port Mobil, New York. The payments were made to get a pipeline welders’ union to look the other way while the company hired outside non-union workers at lower wages. The intercepted conversations authorized pursuant to the April 8, 1983 order — characterized by the district court as “devastatingly incriminatory” — resulted in defendant’s subsequent indictment, prosecution and conviction for labor racketeering. Id. at 129.
DISCUSSION
The majority concedes that the government used defendant’s immunized grand jury testimony in violation of the fifth amendment to obtain the wiretap authorization that provided the evidence to convict him of labor racketeering. Nevertheless, the majority concludes that because there were " 'wholly independent legitimate sources’ ” for the granting of the April 8, 1983 extension order, ante at 1081 (quoting 671 F.Supp. at 136), and because the government’s use of Miron’s immunized testimony was " 'of no ... significance,’ ” id. at 1080 (quoting 671 F.Supp. at 137), the violation of Miron’s statutory and constitutional rights does not require dismissal of the indictment. I disagree.
The federal immunity statute provides that “no testimony or other information compelled ... (or any information directly or indirectly derived from such testimony or other information) may be used against the [defendant] in any criminal case." 18 U.S.C. § 6002 (emphasis added). The government must show that all the evidence that it uses against a defendant is “derived from ... legitimate source[s] wholly independent of the compelled testimony.” Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972) (emphasis added); see In re Sealed Case, 791 F.2d 179, 181-82 (D.C.Cir.) (Scalia, J.) (all evidence government seeks to introduce against immunized defendant must be “untainted”), cert. denied, 479 U.S. 924, 107 S.Ct. 331, 93 L.Ed.2d 303 (1986).
At both the pre- and post-trial hearings concerning defendant’s motion to dismiss the indictment, the district court recognized that it was “clearly a violation of the immunity granted to use” Miron’s prior grand jury testimony and that the government “shouldn’t have done it.” In the court’s judgment, however, “such use was not in and of itself dispositive,” 671 F.Supp. at 137, unless the effect of that use was to create a “substantial” and “real” risk of incrimination. Since the district court found that Judge Bramwell would have granted the April 8, 1983 extension order *1094even without the benefit of Miron’s testimony, the improper use of that testimony by the government was, according to the court, of “no constitutional significance if it hdd no effect at all on events.” 671 F.Supp. at 137.
Judge Weinstein believed, and the majority apparently accepts, that a “de minimis” use of compelled testimony does not “taint” what is derived therefrom. I am unwilling to accept the proposition that a “de minimis” violation of the fifth amendment is “inconsequential.” Ante at 1082.
In 1980, Miron was given general “use” immunity to testify before a grand jury investigating organized crime’s control over labor unions in the construction industry about his ties to Cody and Castellano. Seven years later, Miron was convicted, inter alia, of a RICO conspiracy involving his participation as an “associate” in the Gambino family enterprise and the conduct of that enterprise through a pattern of criminal activity consisting of labor racketeering. See 18 U.S.C. § 1962(d). I fully agree with Judge Winter, Part 1. ante, that Miron’s post-immunization activities were part of a “continuing course of ... criminal activity.” United States v. Quatermain, 613 F.2d 38, 42 (3d Cir.), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980).1 Consequently, once Miron was given blanket immunity under 18 U.S.C. § 6003 for his testimony concerning activities relating to a continuing course of criminal conduct, I believe the protections afforded by the self-incrimination clause of the fifth amendment required the government to demonstrate that all the evidence it offered against Miron at trial was “derived from legitimate independent sources.” See Kastigar, 406 U.S. at 461-62, 92 S.Ct. at 1665-66 (immunity statute is “coextensive with the privilege” against self-incrimination); accord Pillsbury Co. v. Conboy, 459 U.S. 248, 254-55, 103 S.Ct. 608, 612-13, 74 L.Ed.2d 430 (1983); United States v. Apfelbaum, 445 U.S. 115, 122-23, 100 S.Ct. 948, 952-53, 63 L.Ed.2d 250 (1980); see also H.R.Rep. No. 1549, 91st Cong., 2d Sess. 42, reprinted in 1970 U.S. Code Cong. & Admin.News 4007, 4017. This the government could not do since practically all the evidence offered against *1095defendant was derived from the FBI agent’s affidavit including the reference to Miron’s immunized testimony.
The government’s unlawful use of defendant’s grand jury testimony cannot be saved by the majority’s invocation of the harmless error rule. Neither the Supreme Court nor this court, until now, has ever held that the harmless error rule applies when, as in this case, there is a violation of the privilege against self-incrimination. Cf. United States v. Mariani, 851 F.2d 595, 600-01 (2d Cir.1988) (upholding conviction based upon evidence derived from sources independent of immunized testimony and where there was no direct or indirect use made of that testimony); United States v. Nemes, 555 F.2d 51, 54 n. 3 (2d Cir.1977) (“[i]f the indictment had been obtained by direct or derivative use of immunized testimony, it would have been subject to dismissal”); United States v. Kurzer, 534 F.2d 511, 515 (2d Cir.1976) (dismissal of indictment was not required because it was “uncontested that none of the testimony or information given by [defendant] while immunized was itself used in obtaining his indictment”). The majority’s reliance on the Supreme Court’s recent decision in Murray v. United States, — U.S. -, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) is misplaced. The Murray holding is merely another example of the Supreme Court’s attempts to limit the reach of the exclusionary rule in the fourth amendment context —a holding which the majority concedes is of limited relevance in the fifth amendment context. Cf. Kurzer, 534 F.2d at 516 (“[t]he Fifth Amendment, in contrast, is by its terms an exclusionary rule”) (emphasis added). In any event, it is difficult to understand how the government’s error in this case can be deemed harmless when in fact all of the “devastatingly incriminatory” evidence offered against Miron at trial was derived from the unlawful use of his immunized testimony.
Finally, I fear that the majority’s acquiescence to the government’s use of immunized testimony in this case will have serious implications for the future. The federal immunity statute, consistent with the privilege against self-incrimination, allows the government to compel the testimony of a witness by granting “use” immunity in exchange for that testimony. This “bargain” ensures that the fifth amendment privilege is preserved. See Apfelbaum, 445 U.S. at 130, 100 S.Ct. at 957; see also Braswell v. United States, — U.S. -, 108 S.Ct. 2284, 2294-95, 101 L.Ed.2d 98 (1988) (noting “serious consequences” that entail when government decides to grant “use” immunity since government must show in any subsequent prosecution that all evidence sought to be introduced was derived from legitimate independent sources). If, however, the government is allowed to violate the “bargain” by using immunized testimony — no matter how innocent, inadvertent or unwitting that use might be, cf. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971)— the constitutional privilege will have been sacrificed. As a practical matter, this means that witnesses granted “use” immunity in the future will think twice about testifying truthfully (or at all) rather than run the risk that the government will later be able to use the “immunized” testimony against them. Absent enforcement of the “very substantial protection” afforded by the federal immunity statute against compulsory self-incrimination, Kastigar, 406 U.S. at 461, 92 S.Ct. at 1665, both law enforcement and the constitutional rights of immunized witnesses will most assuredly be impaired.
CONCLUSION
In my judgment, the government’s use of defendant’s prior immunized testimony was a violation of the federal immunity statute and the fifth amendment and necessarily tainted whatever evidence was derived from that use. The fact that Miron’s testimony had “no effect” on Judge Bramwell’s decision to approve the April 8, 1983 wiretap is irrelevant. What is relevant is that Miron was convicted using tainted evidence in violation of the fifth amendment. Accordingly, because I would reverse the defendant’s conviction and dismiss the indictment, I respectfully dissent.
. With regard to the alternative grounds advanced by the district court summarized in paragraphs numbered (5) and (6) of Judge Van Graafeiland’s concurring opinion, I cannot agree that Miron was not “confronted by substantial and ‘real’ ... hazards of incrimination.” Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968) (citations omitted). While I can understand my colleague’s reluctance to provide Miron with an “immunity bath," ante, 859 F.2d at 1088 (citation omitted), insulating him from prosecution "for a career of crime about to be launched,” United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356(1971), the "risk of incrimination [Miron] f aced whenf orced to testify [before the grand jury in 1980] sufficiently encompassed the activity for which he was ultimately convicted.” Appellant’s Brief at 20. It is undoubtedly true that at the time Miron was given immunity for his testimony he could not have “contemplated the particular crimes of which he was convicted.” Ante at 1088. Nevertheless, Miron’s post-immunization activities were part of a continuing course of criminal conduct, Quatermain, 613 F.2d at 42; see United States v. Apfelhaum, 445 U.S. 115, 129, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980), which Judge Van Graafei-land concedes satisfies the Marchetti "substantial" and “real” hazard of incrimination test. See 390 U.S. at 53-54, 88 S.Ct. at 705-06 (rejecting "rigid chronological” premise that fifth amendment privilege is entirely inapplicable to prospective criminal acts in favor of standard considering substantiality of risk of incrimination).
In support of its determination that the Port Mobil pipeline scheme involved future acts not encompassed by Miron's immunity, the district court noted that “[although the indictment dates 1967 as the beginning of the Gambino Family RICO conspiracy, it charges that Miron joined the RICO conspiracy only in or after January 1981.” 671 F.Supp. at 137. The threat of incrimination was no less "real” or “substantial” because the government subsequently alleged that Miron’s criminal participation commenced after the date of his grand jury testimony. The assertion of a constitutional privilege cannot depend on the government’s choice of dates in an indictment. Although few things about RICO are clear, the statute surely is one aimed at continuing criminal conduct. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985); United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981); United States v. Benevento, 836 F.2d 60, 72 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988); United States v. Persico, 832 F.2d 705, 713-14 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1996, 100 L.Ed.2d 227 (1988).