*1 v. due-process rights. United States is to late departures purpose of (D.C.Cir. 1105, 1110-12 Spencer, 25 characteris F.3d special where adjustment allow 1994). so are or the offender crime tics of just unjust an otherwise toas render unusual See, e.g., guidelines. under sentence above, we affirm reasons discussed For the 347, 887 F.2d Aguilar-Pena, v. States United his case but remand Thompson’s conviction Cir.1989). Thus, Sentencing (1st If of his sentence. for further consideration should that courts indicated Commission a court on remand finds “reason- the district case, atypical only in “an departures consider Thompson, properly probability” able linguisti guideline particular a to which one way as to advised, in such would acted have significantly where conduct cally applies but 3-point under for a reduction qualify 1, Pt. Ch. norm”. U.S.S.G. from the differs 3E1.1, § sentence then it should U.S.S.G. 4(b). impact disparate racial A, if the § Yet 34 instead of if his offense level were him as offenses ranges for “crack” guideline 35. ease, would departure warranted every One case. departure warrant So ordered. only justify granting departures hardly could for and not defendants African-American for races, same other since
defendants punish then lead different would
offense race. solely on the defendant’s
ments based constitutional, it this scheme were Even if Sentencing Commission’s
would violate America relevant UNITED race is STATES “not policy statement See aof sentence”. the determination v. Thus, though Cyrus es § 5H1.10. U.S.S.G. KILROY, Appellant. J. William punish relatively severe tablishes policy serve rational crack offenses ments for No. 92-3201. be legitimate differences reflect goals and Appeals, Court United States cocaine, the courts powder crack and tween of Columbia Circuit. District applicable effectively reduced would board, using a ranges across the guideline 11, 1994. Argued Jan. to cut the atypical cases power devised 8, July Decided join several typical ones. We sentence Thompson’s rejecting circuits our sister 16, Sept. Rehearing Denied Bynum, v. United States argument. See (4th Cir.1993); United 774-75 F.3d (2d 65, 70 Cir. Haynes, 985 F.2d v. States Pickett, 1993); 941 F.2d v. Cir.1991). (6th
417-18 Issues Remaining
C. remaining argu
Thompson’s two law. The circuit are foreclosed
ments Attorney for the ability of the U.S.
unique whether to determine
District of Columbia or in local in federal prosecution
launch depar grounds for a downward
court is Clark, 8 F.3d States
ture. United (D.C.Cir.1993). of And the “career
842-43 sentencing guide provisions of
fender” consti
lines, Thompson, neither applied to nor vio- punishment cruel and unusual
tute *2 Atty., Bohling, Asst. U.S. Wash-
James C. DC, appellee. ington, argued the cause for Holder, him Eric H. on the briefs were With Jr., Fisher, Atty., John R. Thomas J. U.S. Renner, Tourish, Jr., Harry R. Asst. *3 Attys., Washington, DC. U.S. SILBERMAN, SENTELLE, Before and HENDERSON, Judges. Circuit filed Opinion for the Court Circuit Judge SENTELLE. Judge
Dissenting opinion filed Circuit SILBERMAN.
SENTELLE, Judge: Circuit Kilroy appeals from a criminal William J. judgment upon plea his conditional entered alia, preserved, in inter guilty which he the indictment the issue of whether immu- him had obtained violation of been agreement in nity promised plea him in a only on prior He raises issue case. agree appeal. As we with the district court has met its burden prosecution establishing that its was untaint- by improper ed use of immunized we affirm.
I.
Facts
1985,
organized
and
Between 1981
Department
force of the
of Justice
crime task
broker,
Kilroy,
on
investigated
an insurance
(and others)
fraud-
he
had sold
suspicion that
pension
coverage to a union
ulent insurance
'
June, August
In
and
Vegas.
fund
Las
1983,
investiga-
agents
FBI
and
November of
Department of Labor inter-
tors from the
cooperative by
Kilroy,
proved
viewed
who
On
disclosing
facts and documents.
relevant
26,1985,
jury
Vegas grand
a Las
March
Kilroy’s
synopsis of
1988 state-
had heard a
against him
indictment
ments returned an
arising
charging offenses
out
and others
fiduciary liability insurance to
the sale
company.
through a
culinary union
sham
to further interro-
acquiesced
then
2,
agents;
August
gation by FBI
1985,
had em-
them that he
informed
held in trust for
Warner,
pension funds
Washington,
(appoint-
bezzled
Alan
DC
G.
(NCSC),
Court)
Council of Senior Citizens
argued
cause and filed National
by the
ed
District
corporation located
briefs,
nonprofit
appellant.
14, Kilroy
concerning Kilroy,
told
August
agreed
On
Pitt with records
of Columbia.
admission;
guilty
Kaspar
plead
to one count of the Las
Pitt of
added the
testify
prosecu-
and to
warning
indictment
related
the admission fell within the
tions;
return,
government, among
grant
immunity. By
oth-
government’s
late
things, purported
grant
er
him “retroac-
Pitt had finished his civil
immunity”
use
for his
statements
report
tive
compiled
that recommended
FBI, including his
to the
confession
legal
against Kilroy.
February
action
embezzlement and his disclosures
NCSC
Kilroy’s im-
Pitt obtained records of
FBI
munized statements from the Baltimore
office;
kept
Pitt
apparently
these documents
March
a short article in the
In late
investigatory
separately from the civil
file he
pages
reported
interior
of the Baltimore Sun
*4
developed.
previously
had
Kilroy
had been indicted and described
charges.
Several weeks later —before
1986,
Department
In December
of La-
Kilroy
his
at
confessed
embezzlement
opened
investigation
bor
a criminal
of the
Kim,
controller,
NCSC—James
NCSC’s
supervision
affair under the
of Robert
NCSC
asked accountant Robert Williams to audit
Wagner
Wagner. At the outset Benner told
7,
pension plan.
NCSC’s
On June Williams
FBI
not to seek information from the
offices
reported to
that he had
to
NCSC
reason
Vegas
in Las
or Baltimore and told him to
Kilroy
pen-
believe
embezzled from the
warn those he interviewed not to reveal to
fund; by
September
sion
late
Williams had
knowledge
him
derived from immunized tes-
missing
determined that
amount was
timony. Wagner interviewed NCSC staff
$573,000 and advised NCSC that
it must
and,
1986,
at the end of
reviewed the civil
report
Department
the events to the federal
compiled by
files then
Pitt.
Informed
Throughout
of Labor.
this time Williams
financial and tax records obtained from these
ignorant
Kilroy’s
of
confession
Las
sources, Wagner
Kilroy’s
testified about
em-
Vegas.
grand jury Washing-
bezzlement before a
1,
ton, D.C.,
31,
Department
On October
of
March
1987 and on Febru-
Labor
23,
ary
9,
opened
Wag-
a civil
March
of the NCSC
March
Department’s
investigator,
only
testify
affair.
The
ner was the
witness to
and did
Pitt,
and,
any Kilroy’s
with
not relate
of
James
met
NCSC staff
in late
immunized state-
October, reported
findings
Kilroy,
ments.
to Assistant
See United States v.
769
(D.D.C.1991)
6,10
Attorney
F.Supp.
Harry
(describing
& n. 7
Benner of
Attorney’s
Wagner’s testimony).
U.S.
office in the District of
sources
content of
Co-
telephoned Stanley Parry,
lumbia. Benner
26, 1990,
On March
of
District
Colum-
team,
special prosecutor
Vegas
with the Las
grand jury
pres-
bia
returned the indictment
copy
Kilroy’s
who sent Benner a
Las
ently
Kilroy
under review.
moved to dismiss
Vegas plea agreement. Parry also told Ben-
grounds.
indictment on several
Perti-
the.
ner that
had confessed to the NCSC
present appeal,
sought
nent
he
either
embezzlement,
provided
no further de-
quash
suppress
the indictment or
substan-
October,
tails. At the end of
Benner met
tially
against
all of the evidence
him on
Pitt,
plea agree-
informed him of the
grounds
directly
that it was derived either
ment,
him
investiga-
and warned
to base his
indirectly
imparted
from information he had
independent
tion on sources
Vegas
of the Las
government’s promise
under the
im-
use
investigations.
munity, in
Kastigar
violation of the rule of
1986, however,
States,
Sometime
Pitt contacted United
406 U.S.
92 S.Ct.
(1972).
Agent
Kaspar,
FBI
Mark
in charge
Wagner
of the L.Ed.2d 212
Benner and
Vegas investigations,
Las
Kilroy’s
and one of two read all
immunized statements
agents
to whom
had confessed his
the FBI files in Las
and Baltimore.1
Kaspar
provide
Judge
rejected
embezzlement.
refused to
Jackson
all of
mo-
ruling
packets
containing only
After
district court rendered the
receive
of information
arranged
prosecutor
issue Benner
for a new
independent
information derived from
sources.
trial;
prosecutor
take the case to
the new
would
witness,
Kilroy,
objection
opinion. See
of an immunized
the court
published
tions in
hearing in
“heavy
Kasti- must hold a
which the
reference to the
F.Supp. at 6. With
burden” is on the
appeal, that is Kil-
demon
ground preserved for
gar
strate “that it obtained all of
was obtained
the evidence
roy’s claim that the indictment
proposes to use
from
[or
.in violation of the
using
used]
“tainted” evidence
sources
independent
compelled testimony.”
judge
district
found
immunity agreement, the
North,
entirely
parties
and,
proper
is.
addressed
what
brief,
Therefore,
briefing
principal
retroactivity
supplemental
its
unlike
we directed
requested
to which the court had directed
parties.
specifically
We
following question:
response.
Fortunately,
supplemental
parties to address the
defendant/appellant
and our inde-
brief
and a criminal
When the United States
helpful. It
pendent research have been more
plea bargain
into a
defendant have entered
initially applicable
appears
now
that the
stan-
immunity to
purporting to afford use
state-
Santobello,
as to the
dard is stated
agreement,
made
and
ments
before
any differ-
ultimate result it will not make
immunity agree-
in the
made
absence
ence.
coercion, and a
ment or other
“use”
allegedly
be-
been made of the statement
Santobello,
alleged that
In
a defendant
voluntary
the time of its then
mak-
tween
plea agreement by ar-
state had violated its
ing
entry
agreement,
is the
and the
guing a maximum
after
favor of
sentence
adjudi-
allegation
improper
properly
use
having agreed that no sentence recommenda-
cated under the standards set forth
prosecutor. Upon
tion would made
be
States,
441,
Kastigar v. United
406 U.S.
showing
promise
had been made
1653,
(1972),
32 L.Ed.2d
as a
S.Ct.
broken,
Supreme
Court vacated the
compliance with the Fifth
substitute
remanded,
judgment
holding
that “when
Amendment, or under the standards set
plea
any significant degree
on a
rests
York,
forth in
v. New
404 U.S.
Santobello
promise
agreement
prosecutor,
so
(1971),
92 S.Ct.
The United States chose instead to ad- faces a rather end, dress the of whether an “informal” obstacle —in the an insurmountable one. immunity agreement governed by plea agreement provide Kilroy the The did not is, Kastigar immunity as if it a formal standard were transactional —that § immunity promise pros- order of under 18 U.S.C. would pertinent question, While that is a it is one ecute the instant offense.2 See United States bargain Kilroy any dealings did The in fact afford transac- in connection with or activities in immunity Specifical- tional as to some offenses. which he was involved with Louis Ostrer....” ly, agreement provided Kilroy appeal has abandoned on a claim raised prosecute preserved plea would "not Mr. for his conduct below and in his conditional
685
(D.C.Cir.
Poindexter,
859 F.2d
219
omission of the word
v.
“derivative”
1988). Rather,
government only prom
agreement unambiguously bespoke
the nar
immunity for all
give
immunity against
“use
rower
ised
the direct use of the
ap
provided
However,
information
to his
other
declarant’s statements.
the Ninth
jury.”
ques
pearance
The
before
years
Circuit observed that in the
since Kast-
first
district court and now
tions before
igar, a
understanding”
“common
of the term
(1)
agreement
did the
this court are: What
immunity”
“use
has arisen “in the criminal
(2)
by
immunity”? and
Did the
mean
“use
justice
expanding
world”
the term to encom
protection
violate the
afforded
pass
immunity.
derivative use
941 F.2d at
immunity”?
that “use
agree.
804. We
the world since Kasti-
.In
gar, including our decision in
the term
question,
As to the first
as the Ninth
immunity”
commonly
“use
been used to
Plummer,
Circuit noted
encompass
concept.
the broader
For exam
(9th
Cir.1991),
phrase
941 F.2d
ple,
immunity
we stated in North “use
con
immunity”
subject
“use
to at least
two
ferred under the statute is ‘coextensive with
immunity”
interpretations.
“Use
can mean
scope
privilege against
incrimination-
self
protected against
the communicant is
(emphasis
F.2d at 854
communication; or,
only direct use of his
it
added),
specifying
without
that we intended
protected against
can
that he is
even
mean
immunity.”
“derivative use
Consistent with
concept generally
“indirect” use under a
understanding,
that same
agree
with the
immunity.” Statutory
called “derivative use
nothing
Ninth
appearing,
Circuit that
else
immunity
§
under
6002 includes derivative
immunity
by agree
informal use
afforded
testimony or other information
use.
“No
ment, e.g,,
bargain,
plea
includes derivative
(or
[immunity]
compelled under the
order
immunity equivalent
use
to that afforded
directly
indirectly
any information
de
the statute.
testimony or
rived from such
other informa
”
tion) may
be used
the witness....
said,
That
we can discern no other stan-
added).
§
(emphasis
18 U.S.C.
judge
dard
which we would
whether or
Kastigar
held that
Supreme Court
applica-
not a
breach
occurred than the
said,
precisely
statute meant
what
explicated
tion of the
rule as
that, therefore,
immunity
unlike some earlier
Accordingly,
though
North.
even
the defen-
statutes,
precisely
it is constitutional
because
dant has the theoretical burden of establish-
*7
immunity
provides
it
the
“from use and de
breach,
ing
we will
if
examine the evidence as
rivative use is coextensive” with the Fifth
burden,
government
the
had the
because it
privilege against
Amendment
self-incrimina
said,
promise
has in effect
a
entered
that
“we
tion.
The fact that the statute affords derivative
applied.”
Kastigar requires
gov-
As
the
not, however,
immunity
compel
use
does
a
ernment will not use
evidence as to
plea agreement
conclusion that the
afforded
proving
which it cannot meet the burden of
immunity.
more than a direct use
As the
independent
Plummer,
that it was obtained
of the de-
Ninth Circuit observed in
“the
self-incriminating
a
fendant’s
Supreme
thorough
Court’s
discussion of use
grant
agreement purporting
Santobello
immunity Kastigar carefully distinguishes
immunity effectively places Kastigar
use
a
immunity
between use
and the broader de-
agree-
government
burden on the
when that
immunity,”
rivative use
claimed
the defen-
allegedly
by Kilroy
ment has
been breached. There-
dant
Plummer and
this case.
Plummer,
fore,
judge
apply
peculiar
to the
facts
The district
unlike the
Santobello
case,
case,
judge in the instant
of
must
how Kasti-
held
the
this
determine
"merely
testimony
use
this case that
the embezzlement from NCSC
because it
forbade the
of
prohibition.
came within that
given
protect
and failed to
a witness
future
from
prosecution
knowledge
and sources of
based
States,
422, 437,
3.
Ullmann v. United
350 U.S.
Cf.
compelled testi-
information obtained from the
497, 506,
(1956) (striking
76 S.Ct.
L.Ed.
100
5.11
mony”).
immunity
down as unconstitutional an
statute
only to
item-by-item”
specifically
be
alleged use of
and
apply
the same
gar
would
involved
“necessary.” That case
where
done
evidence.
concededly exposed to
who were
witnesses
Application
III.
defendant,
testimony of the
the immunized
testimony
further
involved
and
Kastigar,
the court under
The
task
widely
through the
disseminated
that was
North,
easily
often more
applied in
is
as
The
This one does not.
district
news media.
controlling
accomplished. The
than
stated
grand
single
finding here as to the
court’s
government
the
its
question is: Has
met
witness,
finding to
reviewed under
jury
demonstrating ‘“that
it
“heavy
burden”
standard,
the
establishes
clearly erroneous
proposes
it
to use
the evidence
obtained all
necessity
inquiry.
further
lack of
independent of
from sources
used]
[or
” North,
testimony.’
910 F.2d
compelled
government
not
did
A conclusion
461-62,
Kastigar,
at
(quoting
406 U.S.
at 854
obtaining an indict-
use tainted evidence
1665-66). The district court was
at
92 S.Ct.
course,
is,
necessarily dispositive
ment
hearing’
‘Kastigar
“a
for the
required to hold
as to wheth-
remains
of ease.
allowing
government to dem
purpose
guilt
government could establish
be-
er the
it had met
that burden.
onstrate” that
use of
yond a
doubt without the
reasonable
(internal
parentheti
witness
court held that the
the district
*8
grand jury
appearances
in his four
before it.
and
did “have available to it both testimonial
evidence,
jury
that
As to the
we hold
prove” its
documentary evidence sufficient to
finding
that
this is a sufficient
to establish
appellant
against
case
“which would
government
the
has met its burden of estab
(and did)
Kilroy
light
come to
never”
lishing by
greater weight of the evidence
the
testimony. But he con
given his immunized
that it
the
test.
survived
findings
by the
tends these
and conclusions
North,
inquiry
that the
In
we directed
to meet
the
district court are insufficient
witness;
by
“proceed witness
remand would
“pre
requirements of North because of the
line-by-line
necessary,
proceed
it will
and
employed by
court.
liminary” language
the
item-by-item.”
at 872. Insofar as
910 F.2d
all, Kilroy might
the end of
Had this been
Kilroy
suggest
the
intends to
district
compelling argument. But the matter
have a
standard,
not
the North
we
court did
follow
does not end there.
witness,
disagree.
there is but one
the
When
North,
may
“a trial court
inherently
by
As we noted
finding is
witness
witness.
North,
Kastigar hearing pre-trial, post-trial,
proceed “line-by-line hold a
our direction to
(as
offered),
may
Labor,
evidence is
or it
out of the referral
mid-trial
the retroactive
employ
immunity bargain
some combination of these methods.”
Kilroy’s
was entered.
the-
Judge
Here
Jackson
ory
910 F.2d
obvi-
is that because the
about
employ
ously intended to
a combination of
embezzlement,
matters unrelated to the
Having made a final deter-
those methods.
government purported
retroactively
evidence,
grand jury
mination as to the
he
plea agreement
immunize in the
led to the
question
preliminarily determined the
of trial
indictment on the
charges;
unrelated
and
evidence, deciding,
wisely,
no doubt
to take
because that
reported
indictment was
in the
question up
again when the
once
record
Sun;
Baltimore
and because the
merely predictive.
became concrete and not
(now
present
cannot
Kim
direct evidence that
plead
guilty
thus had the choice to
deceased) did not read the
article
reopen
and face a trial at which he could
Sun,
triggering
curiosity
Baltimore
thus
question,
guilty plea
or to
a conditional
enter
honesty
Kilroy;
about the
investiga-
preserve
question
appeal
on the
ultimately
tion that
charges
led
in the
then-existing
Having
record.4
chosen the
present case was based on a “use” of the
second, he takes the record as to trial evi-
disagree.
immunized statement. We
it,
dence as he finds
is stuck with the
North,
recognizing,
Even
as we did in
preliminary finding,
adequate
which is
government’s
the burden is the
to establish
present
determination.
“that no
any
use whatsoever was made of
Thus, unless the district court erred
testimony,”
in its determination that there had been no
Wagner
met its burden here.
testified be-
use, Kilroy’s appeal fails. We examine that
grand jury
fore the
that “at
point
in 1984
question
“clearly
under the
erroneous” standard.or
plan
partici-
’85” the NCSC
reached 100
North,
Un
ited
States
910 F.2d at
pants,
Department
which under the
of Jus-
finding
‘clearly
“A
is not
erroneous’
regulations required
tice
NCSC to retain an
reviewing
unless the
court is left with the
accounting
outside
firm
plan.
to audit the
definite and firm conviction that a mistake On a record silent as to Mr. Kim’s residence
finding
has been made —the
either is not
undisputed
Washing-
he worked in
clearly
supported
weight
or is
ton, D.C.; again silent as to whether or not
evidence,
or induced
an erroneous
day
he read the Baltimore Sun on the
Sheard,
view of the law.” United States v.
for that matter ever —the dis-
—or
(D.C.Cir.1972).
473 F.2d
Here this
finding
trict
court’s
met
finding
is not the case. The district court’s
establishing by
greater
its burden of
supported
well
on the record.
weight of the evidence that it obtained the
Kilroy’s argument
contrary
to indictment without
tainted use survives
North,
rather
forth
convoluted. He sets
certain
review. See
NCSC, assume, pen directed an audit of the As we did NCSC plan. Ultimately, deciding, prosecutor sion the internal audit led without “that a cannot *9 $573,000 nonevidentiary to the determination that was miss make use of immunized testi use, ing, obligated mony,” report any evidentiary a fact that NCSC was more than with Department running immunity. to the of Labor. Some time out afoul of use Id. at doing, recognize, after the In in commencement the audit but 860. so we as we did investigation grew Kastigar compels immunity befóte the criminal which 11(a)(2). plea option required ap- 4. The conditional ernment. Fed.R.Crim.P. proval gov- of the court and the consent of the implicating Times article read a New York Fifth Amendment” with the “coextensive be scheme; the in tax avoidance her the state demands. satisfy constitutional in order to Times article rekindled information However, Kastigar nor neither at 859. Id. previous tip reporter’s interest the Post authority which we any with North nor other by corporate funds the misuse that the use about compels a conclusion familiar are husband; publish- Post Helmsley and her by immunity under statute conferred Helmsleys had stating an article that afford- ed broadly exceed agreement must pay personal expenses used false invoices Neither are we Fifth Amendment. ed funds; triggered corporate that article interpretation with with authoritative familiar Attorney investigation by the United States holding that de- Fifth Amendment of the and of New York wholly for the Southern District unrelat- cannot indicted on fendant authorities, in- which led to a federal wholly other unrelat- charges on evidence ed based 77-78, confession, dictment. See id. simply compelled because ed to after a first indictment occurs the second challenge to rejecting Kastigar in violation of the defen- that was obtained indictment, Helmsley’s on the new conviction rights. Fifth Amendment dant’s triggering of held that the the Second Circuit has done more Kilroy would claim that he independent party to “re of an the decision hoc, post ergo propter hoc establish a than investigation” on “his open based his earlier ” relationship the second indictment between ‘morality and his perception of a connection’ first, the sec- and therefore between and the incriminating as a witness happening upon testimony. use of the prosecution and the ond use. Id. at did not constitute a tainted result premise that argument rests on the His nothing existing 83. The court held relationship a “but for” between there is authority6 “suggested] the Fifth relation- indictment and the first5 —a second in which the applies to situations Amendment speculation dependent upon pure ship testimony concerning publicity immunized underlying present that the purely private investigation into an triggers a occurred but would never have indictment solely entirely matter because each different would not have the first indictment which dishonest conduct.” Id. We matter involved immunized, statements. occurred but Applying the agree Circuit. Second nothing more than a re- speculation That record, reasoning present Helmsley to the temporal order ar- formulated recital of the suspi generically Kim became even Mr. already rejected. gument quality employer’s of his cious of the moral fiduciary fiduciary came under because analogous actual case we have The nearest statements based on immunized indictment Kilroy’s concept is the one of “use” found matter, con it tortures the in an unrelated Helmsley, 941 rejected in v. United States regularity to cept of “use” out of all semantic Cir.1991). (2d case, In that F.2d 71 suppose that the tainted statement appel- accepted arguendo an Circuit Second obtaining the second indictment. “used” appeared of fact that she had lant’s recitation Accordingly, conclude that the district juries give im- we state twice before err, certainly not clear- court did not did testimony concerning a state tax munized err, scheme; ly finding that there was no use of reporter its a New York Post avoidance simply by be violated the fact that been shown to dissent seems to think that our use 5. The referencing ap appellant's phrase testimony for” "but and some subse both the immunized “ask[ing] proach that we are whether means quent prosecution in the same universe. exist ap adequate evidence to convict the there was argument appellant’s "but for” Our contrast of drawing upon pellant the immunized without simple post or at most hoc with the co-existence point testimony...." 689. At no do Dissent at evidence, temporal is not order shown implying, imply, or read the district court imply, nor do we think that it intended us However, because the law of that this is the test. sufficiency imply, any holding does testimony under both evidence is relevant. the non-immunized requires that for the defen the Fifth Amendment protection amend dant to benefit from the Kerser, Specifically citing immunity agreement, the ment of an *10 (2d Cir.1976). him, rights not F.2d 511 “used” his must be
689
ment,
testimony
present
legitimate right
immunized
and he has a
to assert
fully
it
case.7
this court.
I therefore do not
why
understand
majority
comes so
grudgingly,
maj.
685,
op.
posi-
see
at
to this
IV. Conclusion
tion.
above,
For the reasons set forth
we con-
clude that
the district court committed no
may,
Be that as it
I do not think the
denying Kilroy’s
error in
motion to dismiss.
government has met its burden. The district
judgment appealed
from is therefore
judge’s finding that it did—insofar as it could
finding
clearly
described as a
of fact —is
Affirmed.
erroneous,
(and
but I think the district court
majority)
incorrectly
decided the issue
as
SILBERMAN,
Judge, dissenting:
Circuit
a matter of law. Both the district court and
my
agree
colleagues
I
with
that when the
majority
seem to ask whether there was
government promised
appellant
“retroac-
adequate evidence to convict
appellant
14,
immunity”
part
August
tive use
drawing
without
upon the immunized testi-
plea bargain,
agreed,
it
1985
as matter of
or,
mony
put
way,
require
another
that the
contract,
any
not to use
of his immunized
appellant must show that there is a “but for”
against appellant
just
statements
as would
—
indictments,
relationship between the two
see
government
if
be so
had obtained his maj. op.
approach
at 688. That
seems to me
testimony
§
under 18 U.S.C.
6002. It seems
(the
majority’s
reverse the burden
initial
straightforward
rather
obvious
me
suggest
discussion does
that it believes that
government, again
as a matter of
properly belongs
appellant
the burden
contract,
therefore assumed the burden of
government)
rather than the
and moreover
any
showing
subsequent prosecution
ex-
applies a
Kastigar
standard not called for in
actly
it would have to
what
show had the
apply
and which we did not
in North. The
granted by
immunization been
order rather
question is not whether the use of immunized
part
plea agreement.
than as
That
testimony,
defendant,
prejudicial
to a
government
“heavy
shoulders the
bur-
was,
any
rather was
use
If
made.
than the
North,
den,”
843,
910 F.2d
regard
loses—without
to wheth-
(D.C.Cir.1990),
854
under
v. United
the use was outcome
er
determinative.
States,
406 U.S.
92 S.Ct.
(1972), proving
negative—
L.Ed.2d 212
question
The first
which the
prosecution
that the
Kilroy targeted
used the “com- bound to address is:
Was
”
lead,’
pelled
‘investigatory
investigation by
as an
Department
the Labor
be-
any
nor used
focusing
testimony?
“evidence obtained
cause of his
immunized
question
on a
as a
parts:
witness
result of his This
breaks down into two
disclosures,”
compelled
id. at
S.Ct.
Was Kim’s decision to audit
funds
NSCC’s
part
protection given
by knowledge Kilroy’s
1664-65—is
influenced
Las Ve-
indictment, and,
appellant
not,
gas
immunized witness. The
even
was DOL’s
(and
granted
legal position by
govern-
Attorney’s)
the U.S.
decision to focus an
specific argument
steering away
makes a more
from tainted evidence.
In other
impermissible
words,
made an
noneviden-
the conduct
Benner was not a use of
tiary
testimony,
evidence,
endeavor,
use of his immunized
in that
the tainted
it was rather an
directly
seeking
"Mr. Benner
successful,
admitted to
out and
apparently
accidentally
to avoid
mak-
asking guidance from those individuals who had
ing
nonevidentiary
such a
use.
knowledge
extensive
of Mr.
past
We
”assume[ed]
have in the
without de-
purpose
advising
statements for the sole
him
ciding
prosecutor
that a
cannot make noneviden-
locating
untainted witnesses and evidence.”
tiary
testimony,”
use of immunized
Appellant’s
Although appellant’s
Br. at 18.
as-
F.2d at 843. As we determine in this case that
sertion is made without citation to the record
us,
nonevidentiary
no
use is
we once
before
plainly
up
and does not
match
factual
court,
again
finding
need not decide the
of whether
made
the trial
our review of the
Kastigar prohibitions encompass
entire record leads us to believe that what
noneviden-
tiary
evidentiary
generally
referring
really
steering
id.
to is not
toward
as well as
use. See
tainted,
by persons
untainted evidence
but a
at 856-60.
*11
against
right
on his
if he had insisted
“wholly independent”
been
Kilroy
investigation on
self-incrimination.
knowledge
the indictment.
confessed
of its
concedes
government
the
respect,
however,
if
majority,
opines that even
The
that,
agreement, the first
plea
the
because of
Kilroy
investigation of
an
Kim had directed
are treat-
Kilroy’s interviews
indictment
indictment
he learned
because
Kilroy had
package.
immunized
The
ed as an
have been violated.
Kastigar would not
that,
was indicted
apparently
before he
under
majority’s
interviewed
view
been
circumstances,
after,
were
it cannot be said
of his statements
but all
such
well as
was “used”
Kilroy’s immunized statement
pre-indictment state-
And his
immunized.
Kilroy.
frankly do not understand
I
indict-
have led to his
ments are deemed
Kim
certainly cannot be because
why.
It
parties
That what the
Vegas.
in Las
ment
official; we crossed
not a
then,
was
If,
immunity.
an
by retroactive
mean
con-
analytical bridge in North when we
Vegas had
Attorney in Las
Assistant U.S.
it mat-
Kastigar purposes
that for
cluded
investiga-
Pitt,
Department
the Labor
called
testimony
immunized
not that North’s
tered
Kilroy’s
Pitt to
Washington, to “alert”
tor in
(wit-
-government persons
“used”
non
was
indictment,
no
there would
counsel)
interests
their
whose
nesses and
been vio-
Kastigar test would have
to the defen-
at least somewhat adverse
were
lated.
entirely
dant,
prosecutors were
if the
even
Instead,
was con-
Department
the Labor
testimony.
In-
the immunized
unaware of
Williams,
independent auditor
tacted
deed,
thought that this case is a
it could be
$573,000
up
missing
audit turned
knowledge
whose
North because Kim’s
fortiori
(at
Kilroy’s responsibility.
directly
fact of
least under
and the
leads
the indictment
Kim,
was,
turn,
told
James
to the
and hence to
hypothesis)
Williams
audit
investigation
audit
in North
comptroller,
government’s
to conduct the
whereas
NSCC’s
vigorously that the witnesses’
argued
indicted.
It is
shortly after
had been
testimony
af-
immunized
did not
wheth-
use of the
government’s brief
not clear from the
government at all. The focus of
fect the
Kim
that if
had learned
er it concedes
uses the immunized
“use” is not on who
word
prompted to ask
and thus was
indictment
it was used
testimony but rather on whether
audit, Kastigar
conduct
Williams
by anyone. Put an-
against the
But, I
violated.
believe
would have been
defendant —
way
Supreme
did in
way,
Court
other
by Kastigar
itself—
question is answered
immunized witness been
Kastigar, has the
calls this sort of use
or not one
whether
position than he would
put in a
favorable
less
“non-evidentiary.”1
said
Fifth
pleaded
been
he
have
placed in a
witness must not be
immunized
testify?
and refused to
See
Amendment
testimony that is
position by reason of his
462, 92
at 1665-
Kastigar, 406 U.S. at
S.Ct.
advantageous
if he had invoked
than
less
surely means
Fifth
That
Amendment.
testimony
Kilroy’s
is deemed
that if
sure,
in United
To be
the Second Circuit
(2nd
and to have led to his indict-
been immunized
Helmsley,
691
logic
alytical powers,
investigators public
private
I confess that his
here
explore
—
—to
gives
hypothetical
a
escapes
directly germane
me. He
ex- matters not
to transactions
reasons,
following:
ample, from which he
the
questioned.
about which a witness was
Kast-
igar
grand jury
testifying
a
made clear that
constitutionality
If a
witness
under
the
of
grant
immunity
recognized by
depended
of
were
a
section 6002
being
on a witness not
grand juror
perpetrator
put
of a
position by
as the
bank
a worse
grant
reason of a
before,
robbery committed the week
an
immunity
of use
than he would have been
link
undeniable causal
between the immun-
passage
to
of the statute. And the
testimony and á conviction
ized
for bank
emphasized
court
focusing
an investiga-
exist,
robbery
plausible
would
but a
Fifth
tion on the witness because of his immunized
argument
Amendment
could not made.
be
testimony
just
would result in
worsening
position.
Kastigar,
of
See
at
U.S.
Helmsley,
United States v.
disproving The civil embezzlement. of that to the NSCC Pitt was informed concedes that ment meeting formally opened investigation by Pitt was the October 1985 indictment management. 1985.4 the NSCC December Williams October, Pitt received early investiga- criminal Wagner commenced *13 Williams, outside accoun- NSCC’s letter from and testified before in December of 1986 tion tant, an audit stating that he had conducted in March of jury the first time grand a sponsored pension funds of certain solely on based That was 1987. missing. funds there were and that NSCC report. For some rea- and Pitt’s conclusions meeting Pitt requested a with Williams record, govern- son, clear from the not meeting findings, was and discuss his quite pursue an indictment ment did 17, 1985, Pitt between for October scheduled three more Wagner appeared some time. Williams, hand, Mozer and on the one jury, and an grand in a times 1990 before (NSCC counsel), assistant and NSCC’s closely thereafter. indictment followed meeting, At the the other. comptroller on is, years February two before In that Pitt the find- discussed with participants testimony, jury Pitt Wagner’s Williams, namely that funds ings reached all and reviewed had travelled to Baltimore they had been taken missing and that were Kilroy’s relating de- FBI records Kilroy’s Pitt that by Kilroy. told Williams relating to the briefings, including those attorney the amount of funds had confirmed embezzlement, tainting thus himself NSCC from Significantly, Pitt received missing. summary irretrievably. of his He drafted a Kilroy’s copy a of participants one of placed apparently conclusions and new-found Vegas. in Las indictment envelope in summary in manila a file that a afternoon, in- conducting an without That Wagner. not accessible to Benner, own, Pitt called vestigation of his below, however, hearing At the Attorney, arranged to and Assistant U.S. following trip to Balti- Pitt that his testified possible him a criminal meet with to discuss Wagner in he had a conversation with more following they investigation. When met summary “gave him a of some which he copy Kilroy’s Las day, brought a Pitt only specif- I looked at.” Pitt could indictment, the stuff Vegas on the indictment. Based ically telling Wagner that Mozer’s recall in Parry, the AUSA Las Ve- Benner called suspected in racke- appeared had name determine, immunity part, whether gas, to incriminating possibly piece teer’s rolodex —a Kilroy regarding pos- granted to had been lawyer that was of information about in- Benner was sible NSCC embezzlement. given pursued. As the cross-examination Kilroy only been never that had formed clarifies, testify that that dealings Pitt Pitt did not immunity for with Ost- transactional Wagner; simply could not was he told he not involved all erer and that Osterer was specifically.5 anything else Benner was also told recall NSCC embezzlement. gave mistakenly My is I him a sum- majority that the civil A: mary best recollection states 4. The I at. I did not some looked investigation opened was in October stuff accountability listing give detailed or him a as to what I reviewed. [sic] Q: testimony, part, in relevant was as exact Pitt's you your best recollection of what What’s follows: you Agent Wagner had discovered in told Direct February your trip of '88? Baltimore you Q: Did conversations thing specifically only recall is A: The I Agent Wagner following your trip Baltimore ap- hallway office in the outside of his were proximately your you've of these records that review days after I returned. three-or-four described? specifical- inquired I do as to how it went. He Yes, Sir. A: mentioning Mozer's ly to him that Mr. recall all, you give you Q: telephone tell him—first of did you brought up Did in either a name had turned listing copies listing of the documents that him an individual or a rolodex from Buffalo, figure out of back? crime who was known No, York, assassinated. A: Sir. New who had been Wagner any- telling Agent you you you Q: Q: tell what documents had Do recall Did him thing you had learned in Baltimore? copied up else there? seen investigate Kilroy procedures If Pitt’s decision was tablish what DOL were. For knowledge part Kilroy on the example, based always opened if DOL formal inves- dishonesty indicted of various crimes of tigations complaint whenever a involving Vegas if that Las indictment was more than given arrived, dollar amount testimony, turn based on might thing. be one precipitous Pitt’s then Pitt’s decision to focus might influenced, decision well have been (in indirectly Kilroy part) resulted from Kil- however, by suspicions was a roy’s putatively compelled testimony. Kasti- crook, suspicions grounded Vegas on the Las would, therefore, gar have been violated. indictment. And Benner himself testified words, Kilroy placed decidedly other in a he was told an assistant United position inferior because of his immunized attorney States in Las testimony. actually confessed to the NSCC embezzle- *14 ment government investigator actually his second When conversation with Pitt before potentially incriminating authorizing investigation obtains information and that he con- (in indictment) Vegas veyed this case the Las di- that information to Pitt. rectly testimony traceable to immunized exposed Pitt So to tainted information investigation then decides to focus on the prior deciding to to focus on witness, protected I rather doubt that the Kilroy, and both Pitt and Benner knew of government prove can ever that that decision Kilroy’s confession of the NSCC embezzle- “wholly independent” of the witness’ tes- ment to the inception formal timony. There is no need for me to so sure, investigation. To be Williams had in- here, however, govern- conclude because the formed Pitt meeting at their first that Kil- testimony ment offered no whatsoever to dis- roy’s attorney had confirmed the amount of prove link between Pitt’s decision to in- missing, funds by and that fact might itself vestigate Kilroy knowledge and Pitt’s that have led Pitt to act as he did. The absence Kilroy had been indicted on insurance racke- any proffered of by government evidence teering Vegas.6 in Las And circumstantial on this matter only specu- leaves me able to suggests may evidence that a link in fact and, hence, questions late on these unable to Pitt, any investigation have existed. without government conclude that has met its part, on his contacted an assistant United Kastigar burden. (Benner) attorney arrange States to an im- I am govern- even more troubled meeting likely mediate discuss criminal inability ment’s to document the case. that extent to procedure Is standard in the De- Wagner which partment was tainted private conversa- Labor when a auditor following tion with complains Pitt the latter’s 1988 Bal- missing funds? in- Would an trip, timore vestigator at and would reverse for that Department always the Labor rea- son attorney determining contact an assistant alone. that there was no violation, solely private based on the accusations of a the district court relied questions, heavily finding auditor? On these there is a com- on its that no “[a]t time was plete proof by government. failure investigator [Wagner] the criminal privy to The developed by offered no es- information information, only thing specifically discussing A: That is the can I recall more is that cor- recall. rect? A: That is correct. Cross-Examination you Q: actually testify So can't as to what pick up Q: To where the left off you your information received from he re- moment, you you when testified that view of the F.B.I. files in Baltimore? Wagner your talked to Mr. about review of the can, yes, A: Within limitations I sir. Baltimore, you F.B.I. case files in stated that
you discussing don't recall more information say nothing 6. To of the fact that both Pitt and you already with him than what testified actually.confessed Benner knew that to, correct? embezzling in Las funds from NSCC Yes, A: sir. they made the formal decision to investi- before Now, Q: you're testifying you not didn't gate Kilroy. you just discuss more information. That don't testimony.” Kastigar, 406 compelled v. Kil- States himself.” United from (D.D.C.1991) (emphasis at 1664-65 (empha- 92 S.Ct. U.S. at roy, F.Supp. added). added). not met this government has government concedes The Even the sis govern- finding erroneous. is- burden. Wagner at least gave ment admits Pitt course, on the my opinion is based Of had discov- that Pitt piece of information one Kastigar, reasoning of proposition tainted files in reviewing after all ered Marshall, applicable is Justice written February in Baltimore —that Mozer’s of 1988 logi- my position follows I believe that law. racke- up suspected in a had turned name reasoning. I take it that the cally from tainted, then, Wagner was rolodex. teer’s dissent, my responding to majority, by not jury appear- three 1990 prior to his logic. operate I essentially its concedes assert, government continues ances. The notwithstanding Justice premise however, exposed to Pitt was that “once legal the essence of famous axiom Holmes’ carefully segregat- he law, logic reasoning, and thus —which and, exception that material ed is, at least theoreti- why I that there believe not ... did relate lapse the one irrelevant (to every case cally, right answer Wagner.” That assertion that information to may al- sure, humans we imperfect above, As set out Pitt the record. distorts it). admit, however, that I ways find must Wagner candidly he told more admitted that *15 justices disagree Supreme Court some one, inconsequen- probably simply this than implicitly, explicitly or propositions, “summary these tial, tidbit, gave Wagner that he opinions reasoning prior writ- and so the That state- I found.” of some of the stuff justices may by not be ment, investigator, ten other followed— government’s own finding Wag- prior opinions are not over- when those the district court’s even renders Instead, any information a case is decided privy to tainted ruled. often ner was inability majority’s present Pitt’s clearly And intu- erroneous. accordance with a any impossible it specifics regard, great respect makes I have recall In that ition. out, important to rule and —more colleagues’ court intuition on the my issues —for possibility disprove, the -indeed, originally I by this presented case— way may myself their intuition well it shared —so government. the burden “used” With as to the ultimate predicator be a reliable memory government, Pitt’s lack is of those issues. Supreme Court resolution fatal.7 inexorably in another di- logic But led me rection. i}:
‡ # where, conclusion I suspect here, contrary to mine is the notion that underlying independent documenta- majority’s Therefore, [*] [*] I respectfully [*] [*] dissent. [*] [*] strong enough, ry guilt evidence of on their own private
where individuals of criminal-
uncovered at least some evidence in-
ity, any governmental reliance on tainted unnecessary, perhaps even
formation was unwarranted.
gratuitous, and thus reversal requires
But
prove far more than it could indeed developed its evidence free of
would have prosecution Kastigar “imposes on the
taint. duty prove that the evi-
the affirmative “derived gathered was in from
dence” fact wholly independent legitimate source partially Pitt Wagner tainted had been at least majority by approving district 7. The court’s — grand jury appear- rejects, finding former's no taint without occurred— government's ances. explanation, concession that