holding that the government had met its Kastigar burden and that the defendant’s “exculpatory, non- incriminating testimony did not contribute in any conceivable manner to his being indicted”
How later courts described this case
- holding that the government had met its Kastigar burden and that the defendant’s “exculpatory, non- incriminating testimony did not contribute in any conceivable manner to his being indicted”
- noting that Bartel’s contention that his compelled grand jury testimony might have been considered by the grand jurors that issued his indictment as corroboration for other evidence lacked merit because the government satisfied its burden of proving that the evidence presented to the grand jury was derived from legitimate, independent sources
- applying Kastigar to evaluate the defendant’s contention that the indictment against him should have been dismissed because it was obtained by using immunized testimony
- explaining the determination of venue “involves subtle considerations 20 and is best left to the discretion of the trial judge”
Written by the judges who cited it.
The opinion
MERRITT, Chief Judge,
dissenting.
I do not agree with the Court that the government has carried its heavy burden of showing that none of the 23 grand jurors who heard the defendant’s compelled grand jury testimony used it in any way in returning the later indictment against him. In his compelled grand jury testimony, the defendant corroborated in many ways the government’s theory of the case against him. He admitted that he knew the Christunas family well, and he also admitted that two key witnesses had seen either marijuana or large sums of money stored at the defendant’s house.
The simple fact that there was other independent uncompelled testimony upon which the same grand jury could indict the defendant does not, as the Court seems to think, show that the grand jury did not also use against him the compelled testimony. Not only must the government show that there was independent testimony upon which the grand jury could have acted; it must also demonstrate that the grand jury did not use any of the compelled testimony against the defendant. The court summarily dismisses the latter requirement and fails to negate the defendant’s argument that members of the grand jury would naturally have used that part of his testimony which corroborated the government’s case against him. Both the Fifth Amendment and the use immunity statute assure “that the compelled testimony can in no way lead to the infliction of criminal penalties.” Kastigar v. United States, 406 U.S. 441, 461 , 92 S.Ct. 1653, 1665 , 32 L.Ed.2d 212 (1972) (emphasis added). As the D.C. Circuit noted in United States v. North,
what is prohibited and unconstitutional under the Fifth Amendment and Kastigar is the very presentation of the immunized testimony. Where immunized testimony is used before a grand jury, the prohibited *1115 act is simultaneous and coterminous with the presentation; indeed, they are one and the same. There is no independent violation that can be remedied ... [T]he grand jury process itself is violated and corrupted, and the indictment becomes indistinguishable from the constitutional and statutory transgression.
United States v. North, 910 F.2d 843, 869 (D.C.Cir.1990) (emphasis in original).
Because it is very difficult to show that a grand juror did not use compelled testimony, the Second Circuit established a firm presumption, if not a rule, that the same grand jury cannot indict a citizen who has previously given immunized testimony. United States v. Hinton, 543 F.2d 1002, 1010 (2nd Cir.1976). Hinton specifically noted that a “juror can draw an inference of a witness’s guilt from either a confirmation of, or a denial of participation in, acts about which he is questioned.” Id. at 1009 . Moreover, if the witness “had kept silent, or had been permitted to assert his Fifth Amendment privilege, those negative inferences would have been precluded.” Id. The justification for the North and Hinton principles is clear. By presenting incriminating evidence to the same grand jurors who previously heard defendant’s compelled corroborative testimony, the defendant’s right not to incriminate himself is presumptively violated.
Because our court’s “independent evidence” rule violates the holdings in North and Hinton with which I agree, and implicitly violates the Kastigar rule “that compelled testimony can in no way lead” to punishment, I respectfully dissent.