dissenting:
In my view, a simple restatement of the facts will point out, as clearly as any legal argument, why I cannot join the majority in affirming appellant’s conviction for criminal contempt.
Appellant was indicted with Larry Brown and another codefendant for felony murder and related crimes. The cases against all three men were severed for separate trials. Larry Brown was brought to trial first and appellant, while awaiting trial on the same offense before the same judge and the same prosecutor, was granted immunity by the government (18 U.S.C. § 6002) and ordered to testify at the trial of Brown. When appellant, relying on his constitutional privilege against self-incrimination, refused to be sworn or to testify he was convicted for criminal contempt.
Appellant argued in the trial court, and he argues here, that under this factual pattern it is inconceivable that the purported grant of immunity could protect him against compulsory self-incrimination. I agree.
The majority, in finding appellant’s argument to be premature under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), disregards two cardinal tenets of decisionmaking which Kastigar expressly recognizes—(1) that facts determine precise issues (id. at 457, 92 S.Ct. at 1663) and (2) that consistency of holdings on a conceptual basis is desirable (id. at 453, 92 S.Ct. at 1661).
This case is not Kastigar. Kastigar, in holding that testimony could be compelled when its use or derivative use was prohibited in any criminal case was contemplating future prosecutions or subsequently prosecuted cases (id. at 452-53, 92 S.Ct. at 1660-1661) at which time the government, pretrial, would have the affirmative duty to prove that the evidence it was proposing to use was derived from a legitimate source wholly independent of the compelled testimony (id. at 460, 92 S.Ct. at 1664). Kastigar was decided in the factual context of unwilling witnesses held in civil contempt (28 U.S.C. § 1826) before a grand jury. “The appellants [there] were not parties to any judicial proceeding. They were witnesses called upon to give evidence, if any they had of possible violations of laws of the United States.” Stewart v. United States, 440 F.2d 954, 957 (1971), aff’d, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (emphasis added). In that factual context, the risk of self-incrimination was so speculative that it could not outweigh the need for obtaining information, when coupled with a grant of immunity and the requirement that the government show an independent source in the event of future prosecution.
Kastigar is not and could not be controlling in the instant case because of the difference between the threat of use and the fait accompli. Here, in a basic criminal context we are not faced with conjecture.1 Indeed, the facts here are such that the purported grant of immunity was nothing more than a formal gesture with minimal substance. At the time appellant was sub*404poenaed to testify in his codefendant’s trial, the Assistant United States Attorney prosecuting that case was scheduled to prosecute appellant at his pending trial before the same judge. The testimony the government sought to compel formed the basis for appellant’s pending prosecution. Once the appellant took the stand in this first trial, the risk of self-incrimination would become more than a risk; incrimination would enter the realm of reality. Putting aside for the moment the substance of the evidence, it strains credulity to believe that a good prosecutor could or would not “use” this testimony in focusing on further investigation, or in nonevidentiary ways such as deciding whether to pursue plea negotiation, preparing cross-examination, or planning trial strategy. See United States v. Anderson, 450 A.2d 446, 452 (D.C.1982). But more important, the prosecutor’s exposure alone constitutes “use,” which eliminates the need for a Kastigar hearing. This is the rationale of United States v. McDaniel, 482 F.2d 305 (8th Cir.1973) (the prosecutor’s reasoning of immunized grand jury testimony by a defendant prior to trial was a per se use of his testimony obviating any need for a Kastigar hearing). See also our decision in United States v. Warren, 373 A.2d 874, 877 (D.C.1977) (citing with approval the McDaniel analysis, in concluding that the government did not and impliedly could not, meet its burden of proof of an independent source under Kastigar). Also instructive is the case of United States v. Kember, 208 U.S.App.D.C. 380, 648 F.2d 1354 (1980), where the circuit court, while accepting the government’s ripeness argument on the basis of the facts before it2 and distinguishing the McDaniel case on other grounds3 also noted:
In cases such as United States v. McDaniel ... the witness prevailed at the subsequent proceeding without an evidentiary hearing because, under the facts of those cases, there was no conceivable showing that the Government could make to prove an absence of taint. All of these cases involved circumstances in which use admittedly had been made of immunized testimony. Therefore, there was no set of facts the Government could possibly adduce to discharge its burden of showing a lack of taint.... In McDaniel, the same federal prosecutor who had seen defendant’s immunized testimony was now prosecuting him.... Where the taint has been established, there is no point in holding an evidentiary hearing on its existence vel non.
United States v. Kember, supra, 208 U.S.App.D.C. at 389, 648 F.2d at 1363 (emphasis supplied). See also United States v. Dornau, 359 F.Supp. 684 (S.D.N.Y.1973), rev’d on other grounds, 491 F.2d 473 (1974) (the reading of immunized testimony was a use).
Compounding the problem of use here by the prosecutor is the problem of use by the trial court. That court, having heard appellant’s testimony, could not have avoided “using” it in the discretionary rulings necessary to the conduct of appellant’s trial.4 As a practical matter, had appellant testified at his codefendant’s trial, his compelled testimony would have become part of his own prosecution — testimony, ironically, which the government could not have compelled absent the fact of severance.
*405In this state of facts, the solution which the majority advances is no solution at all. Compulsion here does not serve the interest of the government or the witness. The grant of immunity simply could not “ ‘leave[ ] the witness and the ... Government in substantially the same position as if the witness had claimed his privilege’ in the absence of a grant of immunity.” See Pillsbury Co. v. Conboy, - U.S. -, 103 S.Ct. 608, 613, 74 L.Ed.2d 430 (1983) (quoting Kastigar, supra, 406 U.S. at 458-59, 92 S.Ct. at 1663-1664). At a Kastigar hearing the government would have been faced with an insurmountable task of proving “ ‘that the evidence ... [was] derived from a legitimate source wholly independent of the compelled testimony.’ ” Conboy, supra, 103 S.Ct. at 616 (quoting Kastigar, supra, 406 U.S. at 460, 92 S.Ct. at 1664). Moreover, for appellant, “all would [have] be[en] over but the shouting.” The situation is akin to that described in Conboy, supra, 103 S.Ct. at 617:
As the Court stated in Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975), compelling a witness to testify in “reliance upon a later objection or motion to suppress would ‘let the cat out’ with no assurance whatever of putting it back.” Id. at 463, 95 S.Ct. at 593. We believe Conboy acted properly in maintaining his silence in the face of the District Court’s compulsion order and by testing the validity of his privilege on appeal.[5]
As judicial interpretations move the criminal law inexorably on, it is therapeutic on occasion to throw out a harsh reminder. While it is well nigh impossible to rate, in order of importance, the various provisions of the Bill of Rights, it cannot be disputed that the fifth amendment protection against self-incrimination is fundamental to our system of criminal justice. It is, in fact, the reason why we have criminal trials as we know them; the rack and the screw would be much more economical. And granted that the sixth amendment rights of confrontation and compulsory process provide fundamental reasons for compulsion of testimony, “[u]nless the grant of immunity assures a witness that his incriminating testimony will not be used against him in a subsequent criminal prosecution, the witness has not received the certain protection of his Fifth Amendment privilege that he has been forced to exchange.” Conboy, supra, 103 S.Ct. at 616. The purported grant of immunity here did not and could not afford appellant this protection.
I would reverse the conviction for contempt.
. In none of the cases that have held that the grant of Kastigar immunity will protect a criminal defendant had that defendant been awaiting trial. Thus, in In re Liddy, 165 U.S.App.D.C. 254, 506 F.2d 1293 (1974) the use of Liddy’s testimony was speculative because Liddy had previously been convicted of crimes, the outcome of his appeal and a need for retrial was uncertain, and he had not been indicted for further crimes. With respect to his posture as a defendant, the circuit court said:
While we think the analogy between a defendant standing trial and a “defendant” appearing before the grand jury is an imperfect one, we recognize that there is respectable authority for the proposition that one who has been formally charged may not be called before the grand jury to testify about his alleged crimes unless he knowingly consents. However, we need not decide whether we should lend our imprimatur to this proposition, for even if we were to do so, Liddy, would not benefit thereby. Liddy is not in the position of one who has been indicted and, before facing trial, has been called to testify before the indicting grand jury. Rather, Liddy has been indicted and convicted for *404the crimes about which the grand jury now seeks his testimony.
Id. at 260-61, 506 F.2d 1299-1300 (emphasis in original, footnotes omitted).
. The court in Kember found appellant’s situation to be closer to Liddy’s (see note 3 infra) than to that of an indicted defendant awaiting trial. 208 U.S.App.D.C. at 388, 648 F.2d at 1362.
. The court in Kember also made reference to an added distinction between witnesses testifying over objection and witnesses seeking to remain silent.
. In United States v. Wilson, 488 F.2d 1231 (2d Cir.1973), rev’d on other grounds, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975), the Second Circuit upheld a contempt conviction for Wilson’s refusal, after entering a guilty plea but before sentencing, to testify at the trial of a codefendant presided over by the same judge who would be sentencing Wilson. The appellate court noted however that the proper procedure would have been for Wilson to testify and then request sentencing by a different judge.
But see United States v. Kim, 471 F.Supp. 467 (D.D.C.1979), where the District Court for the District of Columbia held that Kim, who *405had already been convicted of a crime but was awaiting sentencing, was within his rights to refuse to answer questions relating to that crime before a congressional committee even though he had been granted immunity. The court found that since his testimony would have come to the attention of the sentencing judge, the grant of immunity could not “insure that the judge would not use” the information once he heard it. The court held that the grant of immunity could not supplant Kim’s fifth amendment privilege and dismissed the indictment charging contempt.
. Iam reminded that a trial judge, in a different factual context, has aptly noted “even our distinguished Court of Appeals cannot unring a bell or unscramble an egg.” United States v. Brown, 212 WashD.L.Rptr. 2101, 2107 (D.C.Super.Ct. Sept. 13, 1983).