[808] Concededly the Annaloro case is on all fours with Catena, although the Court of Appeals has not yet heard the merits. Mr. Justice BRENNAN took no part in the consideration or decision of the motion or applications. The underlying question in these cases is whether the immunity to which a witness is entitled who refuses to testify because of the Self Incrimination Clause of the Fifth Amendment is 'transactional' immunity or 'use' immunity. The question is one that was stirred last Term in Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596. As Justice Brennan, Justice Marshall, and I concluded in that case, the constitutional requirement calls for 'transactional' immunity. Id., at 550-551, 562 et seq., 91 S.Ct. 520. That plainly is the law as it now stands, ibid; and the Court of Appeals so held. Since applicants were granted only 'use' immunity and refused to testify on that ground, they have wrongfully been imprisoned. They are therefore being held unconstitutionally and should be discharged pending the appeals. We have noted jurisdiction in No. 69-4, Zicarelli v. New Jersey, 404 U.S. 812, 92 S.Ct. 36, 30 L.Ed.2d 42, which raises the same question. But since Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, held, that the Fourteenth Amendment applied the Self Incrimination Clause to the States as fully as to the Federal Government, it will require a reversal in direction by this Court and a dilution of Malloy to say that these applicants are lawfully detained. I would follow settled law until it is changed and meanwhile discharge these prisoners on suitable bail.* ----------* 'A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State or any matter involved in the habeas corpus proceeding.' 28 U.S.Code Ann. § 2251. Lee v. Runge [92SCt197,404US887,30LEd2d169] 92 S.Ct. 197 404 U.S. 887 30 L.Ed.2d 169 Joyce LEE et al. v. Senta Maria RUNGE.

No. 70-263. Supreme Court of the United States

October 19, 1971

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.