holding that the government failed to carry burden of proving an independent source of immunized statements where such statements may have been used to shape the questioning of proffered alternative sources of information
How later courts described this case
- holding that the government failed to carry burden of proving an independent source of immunized statements where such statements may have been used to shape the questioning of proffered alternative sources of information
- reviewing cases involving use of immunized testimony and concluding that "[i]n every case ordering outright reversal, the opinion indicated that there was a clear use of immunized testimony and that further proceedings would be futile”
- holding that the government States v. Schmigdall, 25 F.3d 1523, 1528 (11th Cir. 1994) (citing Kastigar, 406 U.S. at 460, 92 S. Ct. at 1665); United States v. Hampton, 775 F.2d 1479, 1485 (11th Cir. 1985) (citing United States v. Seiffert, 501 F.2d 974, 982 (5th Cir. 1974
- explaining that a conviction “may be upheld on a finding that the use of such tainted evidence was harmless beyond a reasonable doubt”
Written by the judges who cited it.
The opinion
KRAVITCH, Circuit Judge,
concurring in part and dissenting in part:
I agree that the government failed to disprove taint as required by Kastigar, and I join the court’s opinion to that extent. I disagree, however, with the majority's disposition of the case, remanding to the district court for a further evidentiary hearing. Another Kastigar hearing serves only to afford the government a second opportunity to carry a burden it did not bear the first time around.
The cases cited by the majority do not, in my view, lend support for an additional hearing in this case. In United States v. Harvey, 869 F.2d 1439 (11th Cir.1989) (en banc), we remanded for a hearing because “the record reveal[ed] that the magistrate did not permit the government to show the independent sources of its evidence against Harvey.... [The district court's dismissal of the indictment] was premature without giving the government the opportunity to meet its burden under Kastigar.” Id. at 1445. Similarly, in *1533 United States v. North, 910 F.2d 843 (DiC.Cir.1990), the court remanded for a hearing because of its “great[ ] concern [over] the District Court’s decision not to hold a full-blown, item-by-item Kastigar hearing.” Id. at 872 .
Here, by contrast, the magistrate judge held a full and fair, three-day Kastigar hearing at which the government was given every opportunity to present evidence that Agent Schmidt’s grand jury testimony was wholly uninfluenced by Schmidgall’s immunized statement. The government concedes that at this hearing “Agent Schmidt testified as to the source of every fact that had been presented to the grand jury regarding the defendant.” Brief of Appellee at 3. The government also presented documentary evidence and the testimony of Agent Dunn and witnesses Wood and Hutchinson. In my opinion, therefore, this case is aldn to United States v. Hampton, 775 F.2d 1479 (11th Cir.1985), in which we declined to order a further Kastigar hearing, holding that “[t]he government had ample opportunity to attempt to satisfy its burden under Kastigar in the lengthy hearing in the court below.” Id. at 1491 n. 54.
I would remand the case solely for the district court to perform a harmless error analysis, the government having failed to establish that it did not violate Schmidgall’s rights under the Fifth Amendment as construed in Kastigar. *
If the Kastigar error is determined to be harmless, I concur in the court's treatment of the sentencing issue in this case.