641 F.3d 544
D.C. Cir.2011Background
- Garrity-protected statements from Raven 23 members tainted some grand-jury evidence and prosecutions; district court dismissed five-defendant indictment.
- September 16 and 18 statements by defendants were treated as immunized; government conceded September 18 tainted, while September 16 not appealed.
- Indictment followed a joint investigation of five defendants for shootings at Nisur Square in Baghdad; initial grand jury testimony relied on tainted sources.
- Second grand jury indictment relied on tainted statements and news reports; district court conducted Kastigar hearing.
- District court held taint required dismissal of indictment as to all five defendants; government appeals for remand to assess taint on a per-defendant basis.
- Court vacates and remands to determine, for each defendant, whether any tainted evidence was presented and whether harmless beyond a reasonable doubt can be shown across the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred in taint analysis by lumping tainted evidence | Slough's taint rests on immunized statements; non-overlapping tainted content must be segregated | District court improperly excluded non-tainted portions of evidence | Yes; must segregate tainted from untainted evidence line-by-line |
| Whether independent-source analysis was correctly applied under Kastigar | Evidence tainted by immunized sources should flow from legitimate independent sources | Some tainted sources cannot be the sole basis; independent sources may exist | No; requires rigorous, witness-by-witness independent-source assessment |
| Whether non-evidentiary uses of immunized testimony affected indictments | Immunized testimony used to guide investigation or indictments tainted proceedings | Non-evidentiary use should be barred if causally linked to taint | No; need per-defendant showing and context-specific analysis; not per se prohibited |
| Whether taint from immunized statements invalidates indictment of Heard and Ball | Immunized statements motivated prosecutor's decision to indict Heard/Ball | Indictment decisions are prosecutorial discretion, not automatically tainted | No; per-North I framework, taint must be shown for each defendant; not automatic across all defendants |
Key Cases Cited
- Kastigar v. United States, 406 U.S. 441 (U.S. 1972) (immunity requires no use of immunized testimony or its fruits; taint rule)
- Garrity v. New Jersey, 385 U.S. 493 (U.S. 1967) (compelled statements may not be used against individual in criminal case)
- United States v. North, 910 F.2d 843 (D.C.Cir. 1990) (line-by-line taint analysis; independent-source requirement (North I))
- United States v. North, 920 F.2d 940 (D.C.Cir. 1990) (North II; further taint considerations and use limitations)
- United States v. Nanni, 59 F.3d 1425 (2d Cir. 1995) (purpose to determine whether taint would have occurred absent immunized testimony)
- Katz v. United States, 389 U.S. 347 (U.S. 1967) (contextual reference for taint and investigative leads)
- Rinaldi v. United States, 808 F.2d 1579 (D.C.Cir. 1987) (taint and use restrictions on immunized testimony)
- United States v. Cozzi, 613 F.3d 725 (7th Cir. 2010) (post-North I view on prosecutorial discretion and taint)