United States v. Rosario Montoya, United States of America v. Filiberto E. Montoya

1286 motion to reconsider is not considered ade- of the bar date did not excuse

to mail notice quate summary exhausting preservation the issue at from its administrative ITM stage. judgment See Hall v. Gus Constr. properly court claims. The district declined (8th Cir.1988). Co., 1010, F.2d 1017 We date and dismissed to toll the claims bar process argu- due decline to consider ITM’s claim. ITM’s ITM, party raising an ment because issue Estoppel D. motion, opposition summary judgment ato preserve its failed to meet burden argues that the FDIC is ITM adequately appeals. for the court of issue asserting the bar date in de estopped from Corp. v. See Directed Placement Control not file its motion for fense because it did Self (9th Cir.1990). 462, Corp., Data 908 F.2d summary issue until March judgment on this 29, nearly years May two after the III. CONCLUSION However, filing passed. 1990 bar date had compliance We hold that with FIRREA’s claim before the bar date an administrative requirement mandatory exhaustion jurisdictional requirement ITM. was a pre- post-receivership cases. ITM both objection Estoppel may prevent an receiver, appointment knew of the FDIC’s subject jurisdiction, matter because such an failed to exhaust the administrative but jurisdiction may objection subject matter by filing process claims a claim before the time, by any party be raised at or the expiration agree of the bar date. We Dev., Brady court. 14 F.3d at 1007 See subject the district court that it mat- lacked (finding by accepting RTC an jurisdiction ter over ITM’s claims. The complaint did not vest the district amended negligent failure to mail FDIC’s notice to jurisdiction, since doctrines “[t]he court with of the claims ITM bar date neither conferred estoppel apply do not to sub of waiver and jurisdiction upon the court nor tolled the determinations”); ject jurisdiction matter claims bar date. (“the Bueford, can [FDIC] not, otherwise, its own conduct be AFFIRMED. subject estopped raising the issue of jurisdiction”); v. matter Feise Resolution (C.D.Cal. Corp., F.Supp.

Trust

1993) (subject jurisdiction matter cannot be

waived) States, (citing Augustine v. United (9th Cir.1983)); 1074, 1077 America, Glenbor UNITED STATES

ough Corp., Plaintiff-Appellee, N.M. Assoc. v. Resolution Trust (D.N.M.1992) (“doc F.Supp. n. v. estoppel apply trines of waiver and do not MONTOYA, Rosario Defendant- subject jurisdictional requirements matter Appellant. jurisdiction subject lack matter can be court”) (cita time, raised even America, UNITED STATES of omitted). tions Plaintiff-Appellee, E. Due ITM’s Process Claim MONTOYA, Filiberto E. Defendant- Last, that, ITM contends even Appellant. though put the FDIC it on actual notice of its 93-50411, Nos. 93-50440. thereby in receivership appointment and date, quiry notice of the claims bar the FDIC Appeals, United States Court of process rights by failing still violated its due Ninth Circuit. provide it with actual notice of the claims Argued and March Submitted argument

bar date. ITM raised this in its Decided Jan. granting motion to reconsider the order sum mary judgment, response but not original summary judg

FDIC’s motion for Raising the first in a

ment. issue for time aiding abetting, in

application and viola- 1014,18 § § 2. The tion of 18 U.S.C. U.S.C. Montoyas’ guilty pleas preserved conditional appeal court’s right the district denial indictment on of the motion to dismiss the ground allegedly that this as an immunized tainted Filiberto’s status investigation focusing on drug in a witness drug organization. the Contreras-Subias properly court conclude that the district We indictment the motion to dismiss the denied ground not tainted on the that was Montoya; grant immunity to that a earlier Cuneo, Brooks, & R. McKenna Juanita hearing Kastigar evidentiary was not com- Potter, CA, Potter, Co- Diego, Paul E. San case; circumstances of this pelled under the CA, Pasadena, Samulon, for defen- hen & did not err in and that the district court dants-appellants. refusing indictment on to dismiss of outra- grounds that it was not the result Weiner, Atty., San Asst. U.S. Edward J. prosecutorial geous government conduct or CA, plaintiff-appellee. for Diego, vindictiveness. II. HISTORY FACTS AND PROCEDURAL BRIGHT,* WIGGINS, and T.G.

Before: NELSON, Judges. Circuit May became In properties in aware that a niimber of real NELSON; Dissent by Judge T.G. Opinion Diego County connected with the San Judge BRIGHT. Circuit Senior trafficking organiza- drug Contreras-Subias Attorney tion. Assistant United States

OPINION (AUSA) in- assigned to Warren Reese was trafficking activities of this or- vestigate the NELSON, Judge: Circuit T.G. (the investigation”). Ear- ganization “Reese ly investigation, in documents obtained I. of the arrests of members the result OVERVIEW organization and from Contreras-Subias properties, Diego led the San searches.of prosecution of a involves the This case Montoya indicating that Filiberto materials and his wife. formerly immunized witness Montoya as a real involved. had acted was salesper- Montoya is a real estate Filiberto whereby salesperson in transactions estate laundering money son who was accused organization, or its nomi- of the members drug by making investments alien lords nees, May acquired property. From real Montoya appeals his in local real estate. were col- through August documents guilty following his conditional conviction grand the issuance lected as a result of monetary in conspiracy engage plea to subpoenas. jury administrative and speci- from property in derived transactions separate investigation revealed A activity to commit bank unlawful and fied involved, 371, Montoya on behalf §§ was fraud, in violation of U.S.C. transaction family, in a real estate 1957(a), Montoya appeals Contreras and 1344. Rosario to indictments of This led guilty in Oklahoma. following her conditional conviction her money drug organization ‍​​​​​​​​‌​‌​‌​‌​​​‌​​​​‌‌‌‌‌​‌​‌​‌​‌​​‌​‌​​​​‌​​‍members of the on a loan making a false statement plea * designation. Myron Bright, Senior United States H. Honorable Circuit, sitting by Judge Eighth Circuit for the Oklahoma, prosecutors agents Reese various involved laundering in prosecution. assigned investigations. to assist the Reese and Weiner Montoyas subsequently, filed a motion to Fall of Reese was contacted In the cross-examine the nine declarants after the Montoya, attorney on behalf of might court indicated that it not hold a hear- Montoya possibility of discussed the (a Kastigar evidentiary ing on the motion investigation. Reese cooperating in the hearing). November wrote a letter dated Montoya immunity. The granting informal The district court denied the motion to Montoya place took first interview with dismiss the indictment and the motion to 18, 1988. He was also inter- November cross-examine on November 1992. The February, May January, viewed government, court found that in its “[t]he Discussions with led Reese response opposition, heavy met its bur- to conclude that would be called as den of that it obtained the evidence formally granted witness. to indict used immunity testify and ordered to before the sources.” The court concluded: January Diego San May trial in and at the Oklahoma overlap There was some between the February prepared Reese a mem- investigation Reese and the Weiner inves- Attorney re- orandum to United States tigation, as the defense contends. Howev- questing authority sought from that be er, prove the Government must that it had prosecute Montoya Department of Justice to independent prior sources for the informa- conspiracy to and mail fraud commit bank indictment, Montoya’s tion that lead to money laundering, and as well as the sub- overlap. that there was no The searches request explained: stantive offenses. Reese’s property August weighing public prosecu- In interest subpoenas for records from escrow tion, it should be noted 'that the witness companies and financial institutions as a testify falsely appeared to before the searches, separate result of these and the grand jury, then recanted when confronted Morris, investigations Agents Young contradictory evidence. He is also and all Grover indicate that the Govern- falsely during believed to have testified enough independent ment had more than (although peijury prosecution trial could Montoya. evidence to indict sustained), give and he did' not be complete testimony, explained below. filing Instead a motion for reconsidera- tion, Montoyas petitioned the Ninth Cir- ultimately granted by was Permission General, Meza, compel cuit for a writ of mandamus to Attorney Amalia order, Weiner, district court to vacate its conduct a assigned Ed to then AUSA were (the motion, prosecute Montoya investiga- hearing including “Weiner on the cross-exami- tion”).1 Montoyas May declarants, were indicted on nation of the nine and file discov- money conspiracy engage ery documents.2 The Government filed a fraud, laundering and bank and for the un- motion for reconsideration with the district derlying substantive offenses. court, requesting permit filing of the material, material, discovery review the filed a motion to dismiss the by reconsider the motion dismiss. The court ground indictment on the it was tainted granted the motion and reconsidered the mo- The Government filed light response, including nine declarations of the tion to dismiss in of the new material. day hearing 1. Meza took over for Reese after Reese had re- 2. On the of the on the motion to dismiss, quested permission prosecute Montoya, be- Montoyas attempted to file volumi- exposure Montoya's of Reese’s immun- cause discovery judge’s nous at the documents cham- participat- Meza ized statements and bers. The court refused to allow the documents Montoya investigation approxi- ed in the from to be filed because were late. mately May July July assigned project, Meza was to another investigatiоn turned the over to Weiner. Montoya while he was an immunized wit- again de- E. February the court On investigation court noted ness in an earlier so tainted the to dismiss. The the motion nied “actually sup- discovery require a Fili- documents instant case as to dismissal.” that the the evi- forty-one assertion that Government’s berto was sentenced to port the derived indict years used to dence months of incarceration and three sources,” then de- supervised suspended The court release. rejected The court the documents. scribed Montoya’s two-year sentence and Rosario discovery argument that the Montoyas’ years placed supervised pro- her on three inconsistent with the decla- documents timely appeal. We bation. The by and that the Government rations filed jurisdiction pursuant have to 28 U.S.C. evidentiary hearing re- therefore an § 1291. explained: quired. The court point out that certain dec-

The defendants III. did not that the declarants larations state Montoya’s immun- about STANDARD OF REVIEW have information testimony. But re- ized statements clearly review erroneous ‘We under declarants, make reference ports, finding that the standard the district court’s believed the fact government’s untainted evidence was jury grand before grant immunity.” Lipkis, United States to be untruthful. The in Oklahoma Cir.1985). (9th The dis argue this means defense seems trict court’s denial of a motion for an eviden- knowledge con- the declarant tiary hearing for an abuse of is reviewed Montoya’s statements and testimo- tents of States v. Navarro- discretion. See United reports, how- reading of the ny. A closer Cir.1991). Garcia, F.2d just ever, that the declarants are reveals prose for vindictive The standard of review generalized opinion that the reiterating a is unsettled in the Ninth Circuit. The cution believed lied Government variously applied of discre court has abuse jury. in the voluminous grand Nowhere tion, erroneous, clearly stan and de novo court are submitted to the documents Garza-Juarez, v. dards. See United States declarants, implications that there (9th 896, Cir.1993), 903 cert. de knowledge of had no which swore - 724, nied, -, 114 126 S.Ct. U.S. testimony, Montoya’s or knew statement (1994). The district court’s re L.Ed.2d 688 or the content of statements the indictments on basis fusal to dismiss a Importantly, absent such not outra government’s that the conduct was contradiction, for an evi- thеre is no need v. geous de novo. United States is reviewed dentiary hearing. (9th Cir.1994). Sobrio, 454, F.3d 457 37 separate court also denied The district defendants, requesting motion filed IV. the indictment based that the court dismiss vin- outrageous government conduct and DISCUSSION requesting prosecution, dictive Testimony A. Immunized evidentiary hearing be held. Montoyas argue that this condi- The Subsequently, entered improper use of Filiber- is tainted because of pleas,3 preserving right guilty tional statements and tes- of the motion to appeal the court’s denial Fifth Amendment indictment, timony in violation of his conten- “based on the dismiss the See Kasti- right against self-incrimination.4 from Filiberto information obtained tion that 1993, argues 8, Rosario Government standing February filed a 4. 3. On appeal on the basis of her lacks against superseding Rosario Monto- information rights. assertion of constitutional husband's plea of ya, entered a to which she conditional However, specifically Government has guilty. Montoya prevail agreed that should Filiberto breached, immunity arguments that his his 1292 States, 441, person compelled testify A 92 406 U.S. S.Ct.

gar v. United (1972). immunity grant himself under a 1653, Kastigar, 212 32 L.Ed.2d only that he in order “to need show testified upheld constitutional- Supreme Court heavy government shift ‘the burden’ of immunity stat- witness use ity of the federal proving an source for all its 6002, ute, prose- § and held that 18 U.S.C. Mapelli, v. 971 evidence.” United States immunized witness is previously of a cution (9th Cir.1992) 284, (citing Kastigar, F.2d 288 allowable, emphasized “[t]he statute but 1665). at at “This U.S. S.Ct. use, sweeping proscription of provides a proof nega ... burden of is not limited to a indirect, testimony direct taint; rather, imposes prose tion of on the Id. any information derived therefrom.” duty prove cution the affirmative that the 1664; also id. at at see at S.Ct. proposes evidence it to use is derived from a at 1661. S.Ct. legitimate wholly independent of source immunity provides statute compelled testimony.” Kastigar, 406 part that: relevant 1665; 461, 92 see also United States S.Ct. (9th testimony Koon, information Cir.1994); or other com- [N]o F.3d (or any Crowson, information pelled good under the order 828 F.2d at 1429. faith “[A] directly indirectly allegation derived such that the evidence is not the fruit of information) may sufficient; testimony be other the immunized is not criminal acquired used the witness the Government must show how it case, Block, perjury, giv- except prosecution all of the evidence.” 535 F.2d at 1169. statement, ing failing government рrove indepen or otherwise “The must a false preponderance comply dent source of the evi with the order. dence, uphold and we will a district court’s provides § thus 6002. The statute 18 U.S.C. findings clearly unless erroneous. This court immunity, which use and derivative use permitted has to meet its “grants immunity from the use of the com burden of as to the existence of inde derived there pelled and evidence pendent, prior through sources affidavits.” Consino, from.” Block v. (citation omitted).6 F.2d at 1429 denied, Cir.), cert. 429 U.S. 1167 n. 3 (1976). 165, 50 L.Ed.2d 140 97 S.Ct. per requiring is no “[T]here se rule immunity use and derivative “[S]uch .from prosecutor gov the withdrawal of a or other scope privi use is coextensive with the may exposed ernment official who have been lege against Kastigar, self-incrimination.” 1430; testimony.” to immunized Id. at see 453, at 1661. “The 406 U.S. at 92 S.Ct. Mapelli, prose also 971 F.2d at 287. If the privilege has never construed to mean been exposed cution team has been to the immun subsequently it cannot testimony, may that one who invokes ized still use Government prosecuted.” immunity does be Id. “Use the evidence if it meets its burden of protect the substance of testi indepen the evidence is derived from Crowson, mony, only protects against it the use of dent sources. 828 F.2d at compulsory testimony 1430; Mapelli, question as a source of evi 971 F.2d at 287-88. The Crowson, prosecutor 828 F.2d “is not whether the dence.” United States v. aware (9th Cir.1987) (internal quota testimony, 1428-29 the contents of the immunized but denied, omitted), any way tion 109 whether he used the cert. (1988). 102 L.Ed.2d 63 build a case the defendant.” Crow S.Ct. standard, 'heavy' that Rosario will also receive a dismissal. There- fore, not because of the standing argument. we need not address but because of the constitutional standard: proof only by to meet has hand, immunity, 5. Transactional on the other “is evidence, any preponderance of the but failure to immunity full from offense to meet that standard must result in exclusion of United which relates.” States North, testimony.” United States v. Plummer, (9th Cir.1991). 843, 873, (D.C.Cir.1990) modified, 920 F.2d 940 denied, banc), (en cert. 111 S.Ct. 500 U.S. ‍​​​​​​​​‌​‌​‌​‌​​​‌​​​​‌‌‌‌‌​‌​‌​‌​‌​​‌​‌​​​​‌​​‍Appeals 6. As the Court of District (1991). 114 L.Ed.2d 477 observed, "the burden is Columbia has declaration, (internal Agent quotation a. Chavez’s son, F.2d at omitted). may protect The Government involved the Reese Agent Chavez was assigning of indirect use “against a claim investigation, and his declaration describes barring exposed and others not the case to warrants of Mon- the execution of the seаrch prose them and the between communication May August toya’s properties in compelled testimo who obtained (before cutors interviewed in No- Montoya was first 288; see also 1988). 971 F.2d at ny.” Mapelli, the district court ob- vember As served, F.2d at 1429-30. great recited in detail the Chavez and leads found as result

documents searches, resulting sub- these as well as evidentiary use of Alleged poenas to financial institutions. Con- issued the immunized statements characterization, trary Montoya’s nowhere that he does Chavez state his declaration in both the Reese and Weiner was involved found that the Gov district court investigated investigations.7 Chavez While used to indict the evidence ernment obtained acquisition proper- purchase Con Montoya from sources. Montoya prosecution was ties with which the dis Montoyas’ portrayal of the trary to the concerned, part of the Contr- it was done as order, find the district court did trict court’s and re- prosecution, and the evidence eras overlap the Reese between there was some before sulting leads were obtained dis investigations. As the and the Weiner interviewed. was first however, observed, correctly trict court that “the in his declaration required to show that Chavez states is not Government majority pursued that I of financial leads overlap, but that “all of the no there was any contact already prior obtained been proposes to use was derived evidence Montoya.” provides a Filiberto Chavez Kastigar, sources.” legitimate independent step he took detailed time-line for each 1665; 461-62, see also 92 S.Ct. 406 U.S. investigatory investigation. He lists seven Koon, arguing Simply F.3d at 1432. (interviews, and issu- actions conversations an investigations overlapped does not after the Novem- subpoena) ance of a taken legiti question of the existence swer the Montoya, but ties ber interview for all of the evi independent sources mate that, to a obtained well before each one lead Montoya’s attack on the declarations dence. date. Chavez, Agent David Gau Agent Roman thier, Reese therefore misses the and AUSA con declaration does While Chavez’s agents prosecutors actu mark. Even no conelusory “[a]t if tain the statement investigations, ally in both participated provided I information time did ever exposed to immunized testimo pursuing and/or leads asso by Filiberto requiring their ny, per is no se rule there investiga ciated with the Contreras-Subias Crowson, 828 from the case. withdrawal tion,” much more than this: it also contains inquiry under The focus of the F.2d at 1430. tracing of the investi detailed time-line the immunized testimo is whether and leads ob on information gation, based a ease ny any way in used to build executed be was in tained the search warrants immunity. in Montoya. this focus Montoya Id. With received informal fore not mind, Montoyas’ specific com does Montoya’s attack on this declaration we address of attempt independent sources address the detailed plaints concerning the Government’s investiga- in Chavez’s information obtained proof in this case. its burden of to meet prior to the first tigative to a time Montoya leads back stated at oral 7. Counsel for Rosario Furthermore, de- Montoya. it also of Agent participated both interview argument Chavez in that segregated sealed all docu- tails how Chavez investigations. indictment, to dismiss the In motion "having anything to do with interviews Agent ments Cha- noted that Montoya by the case agent conducted with Filiberto the “case initiation” as an vez is listed on turning agent” prior the case file over to to his investigation. we Even if involved in the Weiner investigation team in Agent Young of the Weiner Agent both Chavez was involved in assume that investigations, his inves- October his declaration ties all of Agent exposed declaration was not “limited Gauthier was never tion. Chavez’s negation Kastigar, Montoya’s of taint.” to a See The fact investigation 92 S.Ct. at 1665. this Reese team member

attended a of number witness interviews with investigation a member of the Weiner team Agent b. declaration. Gauthier’s does not demonstrate that the immunized specifically in As the district court noted any way inwas used to build a declarations, synopsis Agent Gau- against Montoya. ease See investigation, thier involved in the Reese F.2d at 1430. Agent accompanied later Morris of but also investigation team in- when she Weiner c. The Reese declaration. witnesses involved in the real terviewed property transactions. The con- Montoyas argue that AUSA Reese’s “overlap” tend demonstrates declaration reveals that even after However, therefore establishеs taint. Gau- trial, testimony at the Oklahoma Reese con- in- thier’s declaration states that he “never investigation Montoya by his calling tinued of wife,” Montoya or his “never re- terviewed grand jury Roberto Guerra before the any reports of in- [the] viewed or discussed questioning regarding him a Tuscon real es- transcripts terview of of his testi- involving Montoya. They tate deal then take mony,” anyone “impart[ ] and had not had issue with Reese’s declaration statements purportedly derived [him] information rely that he “did not information [he] Furthermore, statements.” compose questions obtained from explained motivation to accom- Gauthier his Guerra,” investigative but instead used an pany Agent follows: Morris as report reflecting interviews conducted July accompanied 1989 I and November Agents Gauthier and Morris. Agent in Linda Morris a number of inter- Guerra was called before the views of witnesses involved certain real part investigation Montoya, an investigating. transactions estate she during but of an course additional investi- Agent questioning. Morris did most of the gation drug organization. of the Contreras accompany I was motivated to her superseding A indictment in the Contreras hope that I could information con- obtain September case was returned thereafter cerning drug trafficking suspects whose Independent investigation had dis- whereabouts remained unknown to us at Guerra, acquaintance closed that who was the time. Montoya, purchaser was the nominal Agent explained in Morris her declaration property, Arizona but that the beneficial May that sometime after she told owner was a Contreras. advances Agent findings involving Gauthier her nothing tangential but the most link between businesses, Montoyas and two and Gauthier questioning Guerra the Contreras- August informed her that search investigation thought process- Subias and the warrants had on the been served businesses during questioning. es Reese More properties belonging Montoya. and two importantly, give these facts do not rise to Gauthier mention taint or reveal a lack of an been interviewed. Morris confirmed that she source for all of the Government’s evidence people Gauthier interviewed a number of Montoyas. property identified with the transactions question, Montoya but also stated that she had “never next attacks Reese’s failure to given any by anyone been Department guidelines information con- follow of Justice con- cerning Montoya’s cerning interviews and preservation ability testimo- 8 ny.” an indict immunized witness. He cites the Reese, According totally independently 8. to the declaration of of information ob- point some near the himself,” end of Reese informed Montoya light tained from of his Morris that "it was essential that the case immunized status. [against Montoya] be based on evidence obtained

1295 evidentiary deciding prosecute it in memo use of signed and dated prepare failure concerning First, Monto- summarizing argues the evidence him his wife. he that and testimony; and ya prior to his interview Montoya’s testimony immunized Reese used testimony was all to ensure of his failure application permission prosecute in his in a se- maintained verbatim and recorded Next, Montoya. argues he this taint was location; cure, and failure access restricted ap- compounded when AUSA Meza saw this subsequently received a record of to maintain Finally, plication. Montoya points to a re- him. evidence port/document prepared by “either or*defi- nitely by” prosecu- used AUSA Weiner in the However, comply strictly failure to Montoyas, tion of the which states that Reese Attorneys’ Manual States with the United “convinced was not rights. United States had been no enforceable creates (9th Cir.), Lorenzo, 1453 being v. and Mr. his truthful Reese submitted — denied, 225, 126 U.S. -, 114 S.Ct. cert. prosecute request to the Attor- (1993). a memoran The lack of L.Ed.2d ney approved [who ... later] General charge of available to dum evidence prosecution.” 17, 1988, work made more as November however, case; in this for the Government Non-evidentiary immunized use of history of adequate create still able to was prose testimony could include the decision to through information was obtained what Crowson, an immunized cute witness. at what of the various sources and which expressly F.2d at The Government showed Weiner time. non-evidentiary propriety of use. discuss the immunity team was aware of the Kastigar, 406 U.S. at 92 S.Ct. See procedures and followed reliable problem 1661, 1664-65. In we assumed testimony.9 the immunized segregating non-evidentiary prohibited. use Crow son, (“A F.2d at 1430 more difficult d. Conclusion. question procedures is what proper The district court made the carry government employ must its burden case, in this we find no clear inquiry non-evidentiary showing that it made no findings government error in its testimony.”). Compare use of the immunized its independent for all of proved sources North, F.2d United States Montoyas’ against Montoya. The evidence prosecutor (assuming deciding without that a “overlap” exposure to alleged focus on non-evidentiary use of immun cannot make testimony not answer the immunized does testimony), modified, 920 F.2d 940 ized deciding this question that we must ask (en denied, (D.C.Cir.1990) banc), cert. filed appeal. The nine detailed declarations 114 L.Ed.2d 477 S.Ct. that the indict by the Government establish (1991); Byrd, 765 F.2d and United States v. entirely on sources ment rested Cir.1985) (“It is our view are We immunized privilege that the self-incrimination finding that that the district court’s satisfied evidentia- with direct and indirect concerned no use of there was testimony and not ry uses of testimony was not immunized statements and discretion.”). prosecutorial exercise of clearly erroneous. question Crowson did answer Alleged non-evidentiary use of or not the meets whether Government the immunized statements non-evidentiary showing no use burden establishing sources for prior, indeрendent were “other of the evidence because there all Montoya argues glaring most that the indi- did not testimony non- indications that his immunized was the Attorney transcripts Montoya's different Assistant United States 9. The prosecute would assigned not made available the case so that he trial investigators. transcripts and team Weiner be isolated from reports of interviews with after immuni- Montoya. the interviews with A ty and sealed. was conferred were collected testimony rectly weighing public prose- for [the immunized] [i]n interest in non-evidentiary purposes despite cuting person its admit- for an offense first dis- in, to, testimony.” closely closed ted access to that related com- his/her pelled testimony, attorney gov- F.2d at 1431. for the account, ernment should take into inter above, pointed circuit As out has alia, importance encouraging free non-evidentiary specifically decided whether by and full disclosure witnesses whose tes- prohibition use comes within the of the stat- timony compelled. should also He/she general ute. We need not decide issue take into account the extent to which the either, case, in this but will assume thаt some potential freely defendant had testified non-evidentiary could come within the uses fully compliance with the order.... ban of the statute. testimony than complete [L]ess should not appear by prohibit to be rewarded 6002 does not all use of declination of Section prosecution independent in a proscribes It case where its di- clearly evidence exists and the situation rect indirect use witness. 18 prosecution. § otherwise warrants U.S.C. Id. relationship claimed be application permission pros- Reese’s tween his immunized and the deci summary ecute does not contain a prosecute sion to is too tenuous and remote. complete Montoya’s grand overview of preparing Reese was not the indict jury or trial It does not detail ment, seeking approval he was of the the real estate transactions that were later Attorney prosecute Montoya. General Rather, used the instant indictment. following procedures Reese was internal application two involving describes incidents required request which him to submit a for Montoya’s testimony which led the Govern- prosecutе authorization to and to obtain the being ment to believe was not com- express Attorney authorization written of the pletely First, cooperative or candid. before prosecution General before could be initiated. grand jury Montoya initially denied Manual, Attorneys’ See United States Title knowledge concerning drug the leader of the (1990). 23,400 part depart Section As of the organization. The memorandum then details policy, mental Reese was to submit a memo why it was believed that deliberate- indicating: randum ly withheld acquain- information about his (a) justi- the unusual circumstances which leader, drug ring tance with prompt- thus (b) fy prosecution, the method which ing suspicion would tell the affirmatively will establish either only Government he/she what he believed was al- necessary that all evidence Second, conviction ready testifying known. while at the government prior the hands of the trial, Montoya effectively Oklahoma denied compelled date the defendant’s knowledge of expenses certain summaries of testimony or that it came from properties sources which had been found dur- of the witness’s ing investigation. Appar- the сourse of the focusing was not investiga- the result of an ently, Montoya previously given the Gov- tion on the witness because of ernment more information about the realities (c) disclosures, and how will show underlying preparation summaries, he/she affirmatively that no other “non-evidentia- management which tended to demonstrate ry” use has been or will be made of the properties by control of the the Contrer- compelled testimony in connection with the family, rather than the nominal owners. (for proposed prosecution example, by hav- Reese characterized trial testimo- ing attorney handled ny becoming “essentially as thus neutral.” unfamiliar with the substance of the com- clearly This information was includ testimony). pelled why prosecution toed demonstrate of Monto Attorneys ya justified. Id. Assistant explained United States are Reese that “[i]n that, sum, appears instructed immunity has not en- Montoya non-evidentiary of the couraged complete testimony from constitute use immun- testimony against by declining ized him. he not be rewarded and should independent evidence ex- prosecution where fact Meza The that AUSA read thе ists, warrants and the situation otherwise prosecute, application permission to even this memorandum does prosecution.” While summary if it contained an actual of had paragraph, basic overview of contain a one Montoya’s testimony, not would mean she scheme, goes then Montoyas’ the memo the partic would to from have had withdraw independent sources of evi- on to detail the ipation in case. the 828 F.2d See Montoya. necessary prosecute to dence anything does 1430. Nor it demonstrate out, is point As the instructions there other DOJ than a remote and tenuous connection component prosecution the public a interest decision to to a the decision initiate The prosecute Montoya. appli an immunized witness. Gov- read That Meza “encouraging free ernment is interested cation that the does demonstrate Govern .in Thus, non-evidentiary and full AUSA ment use of disclosure.” made testimony. exhorted to consider “the extent which the immunized freely potential defendant had testified report prepared upon The relied fully in order.” But compliance with the Weiner, describing how Reese was factors, “less considering these than after truthful, being convinced was not appear complete to be should of improper did not involve immunized rewarded....” out, pointed As the district court showing to At- requirement of a reports various case “are torney that sufficient just reiterating generalized opinion General a that the support prosecution ad- evidence exists to a Government believed lied to question dresses the witness grand jury.” way whether This not in indi does successfully prosecuted. be Absent could cate to the that Weiner had access contents actual analysis some of the witness’s testimo- statements ny squares with what the Govern- and how it significant exposure, Without Meza ability say witness to significant ment knew of the of the Weiner “could not made non have more, analysis of use, be whether permissible there would no impermissi prosecution. North, there be a addition should at 860. ble.” See constraining Attorney General’s exer- discretion, cise of a rule foreclosed Kastigar her Hearing B. The Denial her consideration whether Montoyas argue alternatively if place should tаke would not be the best their not dismissed on the indictments are general, immunized interest of witnesses improper basis of use of testimo- contrary public to the interest identified ny, prosecution or of vindictive because in the manual. DOJ (discussed outrageous government conduct below), remanded for a their ease should be his supe- Reese to communicate to needed hearing. They contend that the full justifying unusual riors the circumstances grant Kastigar district court’s refusal to Byrd, prosecution. Cf. involving hearing cross-examination (“Kastigar made no burden mention deprived Government’s declarants them impenetrable to erect an process procedural due right their prosecutors who hear or barrier between right to confront witnesses the immunized and those who read considering the additional dis- them. After indict, potential though even decide to Montoyas, covery provided by the material one.”). This could problem was obvious the district court stated: by simply reciting the nontesti- not be done against Montoya. Nowhere in the voluminous documents monial We con- evidence implica- there requesting are submitted court clude that Reese’s involvement declarants, which swore permission prosecute too tions that remote knowledge Montoya’s statement proceeding against no the criminal 1298 testimony, Block, good

or knew the content of Monto- Government’s faith. See 535 ya’s Important- statements F.2d at 1169. contradiction, ly, absent such a there is no Montoyas argue The that the declarations evidentiary hearing. need an for only put served to in dispute issues and did ordinarily While the district ‍​​​​​​​​‌​‌​‌​‌​​​‌​​​​‌‌‌‌‌​‌​‌​‌​‌​​‌​‌​​​​‌​​‍court avoid, not required, but rather Kastigar evidentiary should a hearing, hold hearing. Montoyas The contend that hear- States, 1388, see Trimiew v. 9 United F.3d ing necessary alleged is to resolve various (9th Cir.1993), may 1390 misleading inconsistencies and and inaccu-

meet its burden of as to the rate in statements the declarations. Howev- prior independent, existence of sources er, attempt to create inconsistencies through affidavits. F.2d misses the mark. (citing Rogers, United States v. First, they (9th Cir.1983) (“exhaustive” contend 557, AUSA Meza states in F.2d her declaration declarations), denied, that she had not been ex- sworn cert. 469 U.S. posed (1984)). any Montoya’s statements or 105 S.Ct. 83 L.Ed.2d 70 testimony, immunized admitting while also Zielezinski, In United States v. that copy rеquest she saw a for au- Cir.1984), we held that when thority prosecute Montoya. inMeza fact grand jury person’s the same that hears a in “[a]lthough stated her declaration that I person, immunized then indicts the copy saw a Attorney’s request of the U.S. for Kastigar -style hearing necessary is to de authority prosecute Montoya, I have never grounds termine the in transcripts seen Montoya’s testimony proper, dictment. “Even if such an indict reports of his interviews.” As we have de- appears Lipkis, ment tainted.” 770 F.2d at scribed, exposure request Meza’s 733). (citing 740 F.2d at Zielezinski authority prosecute require would not her hand, Lipkis, On the other we held that a case, to withdraw from the did not constitute Kastigar hearing was not once the non-evidentiary use, and likewise does not stipulated only defendant there were Kastigar hearing. necessitate a The Monto- minimal differences between his nonimmun- yas’ regard contentions with to the Meza . ized and immunized statements. We held declaration do not raise an issue of fact war- subsequent that “a hearing would have ranting Kastigar hearing. purpose” served no unnecessary and “was because no issues were left to resolve.” Id. Second, Montoyas contend that AUSA

Although Montoyas cite Zielezinski for possession Weiner was in of at least one proposition Kastigar hearing report that a which referenced and discussed Mon- mandated, factually toya’s their case differs testimony, because in conflict with Weiner’s Filiberto was not indicted statement his declaration that he had same “carefully that heard his immunized reviewed the materials that Ms. Furthermore, testimony.10 while Meza had assembled connection with the stipulation did not make the investigation kind of and determined that none of Lipkis, defendant agree in this case we these materials included reference to with the district court hearing prior testimony that a prior interviews with Fili- unnecessary However, because no issues Montoya.” were left to berto E. the one exam- resolve. ple The declarations filed report the Gov- of such a Montoyas point that the exhaustive, detailed, ernment were noncon- appeal, to on Montoya- entitled “Filberto form, elusory in They Esparaza uncontradicted. Investigation,” Real Estate does simply did not rely ask the court on thе discuss North, also challenge cite United States v. prosecu- which he would be able to (D.C.Cir.1990) (en banc) Id., tion’s case for non-use.” 920 F.2d at 943. (“North II”), denied, cert. 500 U.S. 111 S.Ct. unique The situation in North was in that the (1991), support 114 L.Ed.2d 477 of their defendant's immunized before Con- argument hearing. gress entitled to potentially was televised and therefore ex- II, impor posed North the court stated that “[m]ost all of the witnesses for North’s subse- tant, hearing quent the defendant is entitled to a criminal trial. C. Prosecution and comes to the immunized testi- Vindictive Outra- The closest it geous Government Conduct fact that in the mony is reference investigation, Reese “was Contreras-Subias also contend the dis- being truth- convinced that trict dismissed indict- court should have ful.” outrageous ment because was based government prosecu- conduct and vindictive in its brief that The Government conceded tion due to the Government’s dissatisfaction (the application permis- report Reese the with immunized testimo- Filiberto prosecute) was in the Weiner team sion to ny. disagree. We Meza’s declaration states materials. While prima “To a ease establish facie application, decla- that she read the Weiner’s vindictiveness, prosecutorial a defendant specifically does not address whether ration must either direct evidence of actual show application.11 if or not he read the Even ap or vindictiveness facts that warrant an Weiner, investigation or members of his pearance Sinigag of such.” United States v. team, we exposed application, were the as lio, (9th Cir.1991). 581, “Evi 942 F.2d 584 ap- explained, given the content of the have indicating dence a realistic reasonable significant it plication, would constitute may give likelihood of vindictiveness rise to non-eviden- exposure such that constituted presumption govern of vindictiveness on the tiary use. Garza-Juarez, 992 at part.” ment’s F.2d Finally, Montoyas contend that had the the However, Supreme 906. the Court has em granted hearing an district court phasized presumption sup that must be “ cross-examination, it have would learned ported, pretrial stage, because at the ‘the eight that Reese assisted other declar- prosecutor’s proper of the extent assessment may crystallized.’” preparing prosecution Reese аnts declarations. not have Goodwin, hearing mag- (quoting Id. v. 457 explained at an earlier before United States 2485, 2493, judge U.S. 73 managed istrate that he the collection S.Ct. (1982)). a presumption L.Ed.2d 74 sug- some Once of the declarations and did make arisen, vindictiveness has the burden shifts to gestions to form and content. To the prosecution “independent that show Montoyas suggest that that extent dispel intervening circumstances reasons were Government’s declarations therefore justify appearance of vindictiveness and contrived, tainted, false, reject we or even Hooton, v. its decisions.” United States argument. Reese’s involvement in the (9th Cir.1981), denied, 628, cert. F.2d preparation and collection of the declarations 1004, 102 71 L.Ed.2d 873 U.S. S.Ct. necessitate cross-examination Garza-Juarez, (1982); at also 992 F.2d see eight the other declarants. case, In this the district court’s prosecution vindictive While most careful review of all of the declarations and defendant, of a cases involve re-indictment discovery pro with complied documents due filing support can the mere an indictment cess, and cross-examina the refusal allow Hooton, prosecution. charge of vindictive judicial appropriate was an exercise tion However, 662 F.2d at 634. alleged discretion. The internal inconsisten improper prosecutorial prove must still into ques in the declarations do not call cies objective any through evidence before motive proof by preponder tion Government’s See presumption of vindictiveness attaches. Goodwin, ance of the that all evidence utilized evidence n. 457 U.S. at 380 102 S.Ct. was ob Despite the indictment the fact were n. internal provided tained from sources with numerous documents, they prove im no unable team had access to Weiner proper motive. the immunized “carefully included that none of these materials declaration states that he determined 11. Weiner's prior testimony prior inter- materials that Ms. Meza assem- reference reviewed the Montoya.” investigation with Filiberto E. views bled connection mentioned, previously As investigation charges the stan being brought” and no prose dard of review for claims of vindictive his wife. cution is unsettled this circuit. See “specifically distinctly Issues not Garza-Juarez, 992 F.2d 903. Even under argued” opening raised and in the brief need review, however, the de novo standard of we not be considered the court. Officers for presumption conclude that the of vindictive Comm’n, Justice v. Civil Serv. Goodwin, ness did not arise in this case. See — (9th Cir.1992), denied, cert. 12; 457 U.S. at 380 n. 102 S.Ct. at 2492 n. -, (1993). 113 S.Ct. 123 L.Ed.2d 267 Lewis, Cir.

Jeffers While argument we decline to consider the 1994) (en banc) (“Nor prosecutorial does the detail, there is no evidence in this case practice threatening a defendant with in satisfy “extremely high” would bur charges plead guilty, creased if he does not den to establish a outrageous gov claim of following through and on that if threat ernment conduct. right trial, defendant insists his to stand presumption create a prosecu vindictive V. (internal quotation tion.” and citation omit ted)); Garza-Juarez, 992 F.2d at 907 cf. CONCLUSION arose, rebutted). (presumption but was

There was no error in the district court’s refusal to dismiss the indictments. The Gov- Outrageous government conduct proof ernment met its burden of under Kast- defense, is not a but rather a claim that igar and precedent. this court’s There was government in securing conduct an indict evidentiary use, no non-evidentiary or direct shocking process ment was so to due values ‍​​​​​​​​‌​‌​‌​‌​​​‌​​​​‌‌‌‌‌​‌​‌​‌​‌​​‌​‌​​​​‌​​‍indirect, Montoya’s of Filiberto immunizеd that the indictment must be dismissed. See prosecutorial The claim of vindic- States, Hampton 484, v. United 425 U.S. 96 tiveness as a basis dismissing the indict- (1976); 48 L.Ed.2d S.Ct. 113 United ments fails. We decline to Russell, remand the case 423, 431-32, States v. 411 U.S. 93 a full hearing (1973). and cross-exam- S.Ct. 36 L.Ed.2d 366 Un ination of the nine declarants because under “extremely high der the standard” of this ease, the circumstances of this doctrine, the Govern- an indictment should be dismissed Kastigar ment met its proof burden of with- “only government’s when the conduct is so necessity out the hearing. of a full We have grossly shocking outrageous and so as to considered all of by the contentions advanced justice.” violate the universal sense of parties Garza-Juarez, conclude that no (internal further dis- 992 F.2d at quo 904 necessary. cussion is The convictions of Fili- omitted); Solorio, tation see also 37 F.3d at Montoya berto E. Montoya Rosario are affirmed. Other than a “outrageous gov- reference to AFFIRMED. ernmental heading conduct” in their brief, opening develop do not BRIGHT, Judge, dissenting. Senior Circuit argument this until reply their brief. In brief, reply Montoyas argue I respectfully majority’s dissent from the the indictment of Rosario is a opinion “vin- which affirms the convictions of Fili- outrage,” dictive based on a letter to Filiber- Montoya. berto E. and majori- Rosario The from AUSA Weiner. ty mistakenly rejects The letter Montoyas’ argu- stated that “[t]he would be will- ments prosecution this is tainted be- ing accept plea guilty to one or improper more cause of Montoya’s use of Filiberto specific charges by Filiberto testimony re- immunized and that the indictment turn for a government’s conclusion to the prosecution.1 based on vindictive Technically, qualify Rosario does not resolution on her husband's fifth amendment relief, gave for fifth amendment as she Thus, no im- claims. we refer to both as Government, however, munized agrees making the same claims. appeal governed by that her shall be

1301 Non-evidentiary testimony to immunized indict of Immunized Use

Testimony prosecu- Montoyas? decision to initiate may tion immunized be of an witness consid- ease, the is whether crucial issue this .non-evidentiary use of testi- ered immunized has demonstrated the Government mony. v. United States directly testimony, use immunized (9th Cir.1987) (citing United Montoyas, as indirectly, of the McDaniel, States States, Kastigar required by v. United Cir.1973)).3 32 L.Ed.2d 212 92 S.Ct. U.S. (1972), precise wording appli of the and the Court, Supreme As сonstrued Here, has statute.2 cable sweeping proscrip- § “provides U.S.C. meet under failed to burden use, indirect, any tion of direct To precedent. court’s information de- contrary, the evidence indicates that AUSA Kastigar, rived therefrom ...” Reese, original prosecutor, used Filiberto prohibition 1664. “This total S.Ct. before the provides comprehensive safeguard, on use January compare it to compelled testimony barring the use of investiga in the prior information contained lead,’ ‘investigatory barring also report Montoya’s testimony and also to tion focusing evidence obtained investi- May in at the trial Oklahoma gation a on a witness as result of his com- comparison, a As result the AUSA pelled disclosures.” Id. Montoya Filiberto had Reese concluded that The record indicates that AUSA Reese grand jury untruthfully before the testified Montoya’s used Filiberto immunized testimo- prosecuting in Rather than and Oklahoma. ny investigatory deciding in to as an lead Montoya perjury, Reese initiated for AUSA prosecution the which initiate leading prosecution of steps the the explicitly prohibited Kastigar. inves- The the of which for crimes were tigatory significant use of im- lead is a the ultimately AUSA Reese’s recom- convicted. testimony. Even if the Government munized in mendations were set forth the memoran- legitimate from inde- evidence derived Attorney request- to dum the United States source, pendent significantly the Government Department ing permission from the of Jus- Montoya’s immunized testimo- used Filiberto prosecute conspiracy to for to tice ny deciding prosecution. initiate in to money fraud and laun- commit bank mail dering, the of- in addition to substantive however, Government, failed show The to Weiner, the fenses. AUSA Meza AUSA prosecution to its decision initiate subsequent prosecutor, exposed to this rely on Reese’s conclusion that prosecutors improp- The recommendation. prosecuted Mr. should be because erly Filiberto immunized tes- used during fully cooperate the of his failure to against timony initiate case the Monto- a grand jury the investigation and at Oklahoma yas. AUSA Reese trial. The record indicates that using Montoya’s question resorted

The crucial before us is whether grand jury testimony to indirectly and trial decide used Filiberto self-incrimination; reads, against part: privilege § tes- in but no 2. 18 U.S.C. timony under or other information refuses, a on the basis of Whenever witness (or directly or indi- the order information self-incrimination, against privilege testi- his rectly or in- derived such other proceed- fy provide other information in formation) may be used the witness ing ancillary to— before case, except prosecution per- any criminal (l) jury grand the a court or United statement, jury, giving or otherwise fail- false States, ing comply the with order. added). (emphasis § 18 U.S.C. recognized proceeding that United person presiding Crowson court over the (11th 1985), F.2d 1524 Cir. Byrd, order communicates to the witness an issued States contrary suggests where the immunized testi part, may witness not refuse to under subsequent mony trial. does not enter into the comply with on the basis his the order forward, prosecution ought go prosecution rather team had access to the testi initiating Mr. mony. than inquiry ‘The focus of the under perjury permissible which is under prosecutor ... is not whether the statute. aware contents of the immun testimony, ized but whether he used the initially possessed The Government infor- way to a case build regarding Montoya’s mation connection to against the [United v.] defendant.’ States Therefore, family. Contreras Gov- Caporale, 806 F.2d [1487] at [ grant ernment did not need to Filiberto Mon- Cir.1986) ]. toya immunity use to obtain evidence his A question more difficult is what participation alleged activity. criminal procedures government em- must sought Montoya’s The AUSA assistance carry ploy showing its burden of arresting convicting alleged drug non-evidentiary made no im- use of the smuggler, Jose Leonardo Contreras-Subias. munized ‘Such [non-evidentia- granted The Government then use ry] conceivably could include assis- immunity proceed in order to with ease focusing investigation, tance decid- organization. the Contreras-Subias ing prosecution, refusing plea to initiate shows, theAs record AUSA Reese became evidence, bargain, interpreting planning dissatisfied with immunized testi- cross-examination, generally and otherwise mony before the and at trial. Of planning strategy.’ McDaniel, trial course, AUSA Reese became dissatisfied F.2d at 311. Montoya’s testimony only an exami- comparison nation of added). to the immunized Crowson, (emphasis 828 F.2d at 1430 testimony with other evidence. AUSA court The Crowson concluded: comparisons Reese’s and recommendation to has prior, established a prosecute Montoyas based on the immun- independent source for all of the evidence testimony prosecution ized tainted the entire introduced before ‘the second’ in violation of fifth assuming at trial. Even is that this right against amendment self-incrimination. government’s insufficient meet the bur- showing den of that there was no non- majority opinion The district court and the evidentiary use of Crowson’s immunized recognize important fail to use of the testimony, we feel that there are other testimony mistakenly immunized con- indications that not clude that AUSA Reese’s involvement was indirectly testimony use his for non-evi- proceeding too remote from the criminal dentiary purposes despite its admitted ac- Mr. to constitute non-evi- testimony. cess to that dentiary use of the immunized majority opinion adopt added). The seems to the rule (emphasis Id. at 1431 empha- long that as as the new relies on sized statements above cannot here be made independent evidence that the Government where Reese used AUSA and relied on the previously possessed, may testimony bringing immunized for testimony against use immunized an immun- сase. ized defendant. Byrd, court recognized the “difficult question” Neither Crowson nor States v. United “prohibits any whether (11th Cir.1985), Byrd, 765 F.2d 1524 answer use of immunized non-evi [a] precise question court, This before us. dentiary purpose^]” Byrd, 765 F.2d in stated: 1528-29. The court question answered that government’s

We negative believe the as a impression burden of case of first showing reject that use of I Byrd that circuit. as inconsistent proper immunized language Kastigar should with the of and the unam change merely biguous wording because members of the of the statute.4 Byrd, privilege United States v. 1531-32 protect self-incrimination to (11th Cir.1985) (interpreting Kastigar only evidentiaiy not re- direct and indirect uses of com- quiring inquire prosecutor's pelled testimony). court into a This writer believes the lan- seeking limiting motives in guage Byrd directly contrary indictment and Kastigar. head, concluding that crimination on its Mon- Prosecution Vindictive toya proceeded Reese on a lied and AUSA prosecutorial vindic A facie case prima to “fix” him. course if a shows defendant tiveness is established vindictiveness of actual direct evidence either prosecutorial I would not countenance appearance prose- that warrant an or facts me, To the evidence excessive zeal. v. United States Sin cutorial vindictiveness. per- indicates a realistic likelihood record Cir.1991). (9th 581, 584 igaglio, 942 F.2d personal which pique sonal frustration reasonable indicating a realistic or Evidence gives presumption prosecutorial to a rise rise may give likelihood of vindictiveness vindictiveness. vindictiveness. presumption prosecutorial Garza-Juarez, v. United States I Accordingly, would reverse the Monto- Cir.1993). majority concludes yas’ convictions. prove im unable to give motive would proper prosecutorial which I, presumption vindictiveness.

rise to

however, disagree. prosecution of to initiate

In order decide compared the Montoyas, Reese AUSA records, including

investigatory testimony, to whether ‍​​​​​​​​‌​‌​‌​‌​​​‌​​​​‌‌‌‌‌​‌​‌​‌​‌​​‌​‌​​​​‌​​‍determine falsely. After AUSA

Mr. testified mind, determined, his Reese America, Plaintiff- UNITED STATES of falsely, could either AUSA Reese testified Appellee, Cross-Appellant, he prosecute Montoya perjury, which was do, unwilling proceed apparently v. against Montoya manner. in another KOON, Defendant-Appellant, Stacey C. to use all of the Reese decided AUSA Cross-Appellee. initially gathered to

information which giving prosecute Montoya, without America, Plaintiff- UNITED STATES his immunized to defend chance Cross-Appellant, Appellee, prosecute willing Reese was Montoya initially because he wanted Monto- targeted

ya testify defendants. POWELL, Defendant- M. Laurence dissatisfied with AUSA Reese became When Cross-Appellee. Appellant, Montoya’s testimony, AUSA Reese decided prosecution. to initiate 93-50561, 93-50608, 93- Nos. sum, 50562 and 93-50609. Reese, judge and became AUSA Montoya’s conduct. AUSA jury of Filiberto Appeals, States Court United enough proceed Reese did have Ninth Circuit. obviously he charges so decided perjury using Montoya with the infor- punish Mr. Jan. prose- always had to mation Government measure, him, then, pro- for extra As Feb'. cute Amended prosecution of Mrs. ceeding to recommend CA, Levine, Encino, Kope- J. Joel William Montoya. Ana, CA, defendants-appel- ny, for Santa the Govern- flaw in this scheme is that lants-cross-appellees. prosecuted initial- ment should have immunity. him ly, granting rather than Atty., Los Clymer, D. Asst. U.S. Steven however, Reese, to subter- resorted AUSA Gornstein, Div., CA, Rights Angeles, Civ. Irv Reese, lied, under fuge. Montoya If DC, Justice, Washington, Dept, of statute, have initiated could plaintiff-appellee-cross-appellant. Instead, he turned perjury. sqlf-in- privilege fifth amendment

Case Details

Case Name: United States v. Rosario Montoya, United States of America v. Filiberto E. Montoya

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 12, 1995

Citation: 45 F.3d 1286

Docket Number: 93-50411, 93-50440

Court Abbreviation: 9th Cir.