Petition for Writ of Certiorari — Schmidgall v. United States

} Supreme Court, U.s.

(1 ) FILED

941101 DEC 20 19%

SEH CLERK

CASE NO.

in the

Supreme Court

of the

Gnited States

OCTOBER TERM, 1994

CHRISTIAN W. SCHMIDGALL,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PHILIP M. GERSON

Counsel of Record for Petitioner

LAW OFFICES OF PHILIP M. GERSON, P.A.

Miami Center, Suite 1310

100 Chopin Plaza

Miami, Florida 33131

Telephone: (305) 371-6000

QUESTIONS PRESENTED FOR REVIEW

I.

DID THE COURT OF APPEALS ERRONEOUSLY

AFFIRM THE DENIAL OF SCHMIDGALL’S MOTION TO

DISMISS THE INDICTMENT FOR A KASTIGAR

VIOLATION WHERE BOTH THE PROSECUTOR AND

THE CASE AGENT AGAINST SCHMIDGALL HAD

BEEN EXPOSED TO SCHMIDGALL’S IMMUNIZED

STATEMENTS BY VARIOUS MEANS BUT HAD FAILED

TO SEGREGATE THEMSELVES OR THE IMMUNIZED

STATEMENTS FROM THE INVESTIGATION OF THE

CASE AGAINST SCHMIDGALL?

Il.

DID THE TRIAL AND APPELLATE COURTS APPLY AN

INCORRECT STANDARD FOR DETERMINING

HARMLESS ERROR WHEN THEY CONCLUDED THAT

THE INTRODUCTION BEFORE A GRAND JURY OF

INFORMATION TAINTED BY A KASTIGAR VIOLATION

COULD BE HARMLESS?

TABLE OF CONTENTS AND AUTHORITIES

TABLE OF CONTENTS

Item Page

Questions Presented for Review .................... i

Table of Contents and Authorities.................. ii

Report of Oninion Below .........ccccccscccscsesece 1

Statement of Jurisdiction.......................005. 1

Applicable Constitutional Provisions ............... 1

OS GE GE GID oo ioe on cans cc Seen oewenasas 2

TID oko oc cde as dncnuvccsuesensene eee 7

RIND ns < viv cnansaunenduaadveus se uae 20

TABLE OF AUTHORITIES

CASES

Case Pages Cited

Arizona v. Fulminante,

— § fe: ) re 17, 18, 20

Chapman v. California,

8 17

Kastigar v. United States,

SE 4, 5, 7, 8, 10,

11, 12, 13, 14,

15, 16, 17, 19

Sullivan v. Louisiana,

ra 18, 20

United States v. Hampton,

775 F.2d 1479 (11th Cir. 1985)........ 9, 10, 12, 16

United States v. Harris,

973 F.2d 333 (4th Cir. 1992) .......... 10, 11

United States v. Hinton,

543 F.2d 1002 (2nd Cir. 1976) ........ 19

United States v. Jones,

542 F.2d 186 (4th Cir. 1976) .......... 12

United States v. McDaniel,

482 F.2d 305 (8th Cir. 1973) .......... 11, 12, 15, 16

United States v. North,

910 F.2d 843 (D.C. Cir. 1990)

opinion on rehearing,

920 F.2d 940 (D.C. Cir. 1990),

cert. denied, 500 U.S. 941 (1991)...... 8, 9, 10

Inited States v. Schmidgall,

25 F.3rd 1523 (11th Cir. 1994)........ 1, 8, 16

United States v. Schmidgall,

25 F.3rd 1533 (1ith Cir. 1994)........ 1, 16

TABLE OF AUTHORITIES— (Continued)

OTHER AUTHORITIES

Case Pages Cited

ee es Os ED 5 k's a dh sh ob ea kW aon eeeees 1

ee ie iis nb vis Cae be esbein 6

Rule 11(aX(2), Federal Rules of

CUUIIINE FPIIIIID gk a oo cc cc ceeec dcccdeccs 6

United States Constitution,

po a_i or ar a ee ea 1

iv

REPORT OF OPINION BELOW

The opinion below is reported as United States uv.

Schmidgall, 25 F.3rd 1533 (11th Cir. 1994). The opinion in

the companion case to the case below, reference to which

may be necessary in deciding this petition, is reported as

United States v. Schmidgall, 25 F.3rd 1523 (11th Cir.

1994).

STATEMENT OF JURISDICTION

The Petitioner CHRISTIAN W. SCHMIDGALL seeks

certiorari review, pursuant to Title 28, United States Code,

Section 1254(1), of the opinion and judgment of the United

States Court of Appeals for the Eleventh Circuit of July 14,

1994. The Eleventh Circuit affirmed the Petitioner’s

conviction and sentence. The Petitioner timely filed both a

petition for rehearing and a suggestion for rehearing en

banc. The Eleventh Circuit denied both rehearing and

rehearing en banc by its order of September 23, 1994.

(A. 86).

APPLICABLE CONSTITUTIONAL PROVISIONS |

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty or property, without

due process of law; nor shall private property be

taken for public use, without just compensation.

U.S. CONST. amend. V.

STATEMENT OF THE CASE

The Petitioner CHRISTIAN W. SCHMIDGALL gave

statements to government agents on January 26, 1988 in

Miami, Florida and on December 5, 1988 in Birmingham,

Alabama. (Appendix 8, 9-10, 24, 26). Both statements

concerned, among other topics, a drug smuggling venture

that had taken place in Sumter County, Alabama in

December of 1985. (App. 6, 8, 9, 71). SCHMIDGALL acted

as a radio operator for the smugglers during this venture.

(App. 9). The government below conceded that

SCHMIDGALL had received use and derivative use

immunity for the January 1988 statement. (App. 8, 24).

The government at first asserted that SCHMIDGALL had

not received immunity for his December 5, 1988 statement.

(App. 58). The district court eventually found, however,

that SCHMIDGALL had received use and derivative use

immunity for the December 1988 statement as well as for

the January 1988 statement. (App. 59, 60).

The prosecutor below, Assistant United States

Attorney Robert J. McLean, was present when

SCHMIDGALL gave his December 1988 statement.

Thomas Coram, the case agent and the eventual grand jury

witness against SCHMIDGALL, was aiso present. (App. 9,

61). Coram prepared a written report summarizing

SCHMIDGALL’S December 1988 statement.

Coram and McLean had not been present when

SCHMIDGALL gave his first statement in January of

1988. During the period between SCHMIDGALL’S first

and second statements, however, Coram and McLean did

communicate with other government agents who had keen

present when SCHMIDGALL gave the first statement.

Coram discussed SCHMIDGALL’S involvement in the case

with United States Coast Guard Lieutenant David Hume

and with United States Customs Service Agent Ronald

ee ne oe

Ingleby, both of whom had been present when

SCHMIDGALL gave his first statement. (App. 10n.4,

61-62). McLean discussed the case with Ingleby. McLean

also discussed the case with United States Customs

Service agent Donald Schmidt. (App. 10n.4, 62). Schmidt

had not attended SCHMIDGALL’S first statement in

person, but had reviewed handwritten notes of it. (App. 25,

31). Coram reviewed reports of witness interviews Schmidt

had made after reviewing the notes of SCHMIDGALL’S

first statement. (App. 10n.4).

During the period between SCHMIDGALL’S first and

second statements McLean and Coram investigated and

prepared a case against SCHMIDGALL. They continued

their investigation after SCHMIDGALL gave his second

immunized statement in December of 1988. For example,

Coram interviewed witness Steven Purvis in August or

September of 1989, months after SCHMIDGALL had given

his second statement. (App. 10).

McLean did not at first realize that he had given

SCHMIDGALL immunity at the December 5, 1988

interview or that SCHMIDGALL had received immunity

for the January 1988 statement. McLean did not realize

that SCHMIDGALL might have immunity until August of

1989. At that time he testified at a Kastigar hearing in

Mobile, Alabama in another case against SCHMIDGALL.

Only after testifying at the hearing in Mobile did McLean

realize that use of information derived from

SCHMIDGALL’S statements might be prohibited and that

he might have to segregate information derived from

SCHMIDGALL’S statements from other information in the

case.

Coram received no instructions from McLean about

the use of SCHMIDGALL’S statements until December of

1990, immediately before he appeared before a grand jury

to testify against SCHMIDGALL. Only then did McLean

advise Coram not to use any information derived from

SCHMIDGALL’S statements. (App. 10n.4, 61). Thus,

Coram did not know that SCHMIDGALL might have

immunity for a period of almost two years after

SCHMIDGALL gave his second immunized statement.

In December of 1990, Coram appeared before a grand

jury to testify against SCHMIDGALL. (App. 10, 61). He

attributed the information about which he testified to

Steven Purvis, Tony Chambless, and others. (App. 11-12,

77-78). Coram testified about a drug smuggling venture

that took place at a hunting camp near Sumter, Alabama

in December of 1985. Coram attributed to all three

witnesses testimony that SCHMIDGALL was present at

the hunting camp as a radio operator during the smuggling

operation. Only the testimony Coram attributed to Purvis

and Chambless, however, contained specific details about

SCHMIDGALL’S actions as a radio operator. For example,

Coram attributed to Chambless and Purvis, but not to

Wood, testimony that SCHMIDGALL was seen setting up

an antenna and other equipment at a mobile home located

at the hunting camp. (App. 14, 16, 78).

The grand jury indicted SCHMIDGALL on

December 5, 1990. On February 26, 1991, SCHMIDGALL

filed a motion to dismiss the indictment and for other relief

based en Kastigar v. United States, 406 U.S. 441 (1972). He

argued in the motion that he had received use and

derivative use immunity for his January, 1988 and

December, 1988 statements. He also argued that the

government’s case against him was based, at least in part,

on evidence derived from those two _ statements.

(App. 60-63).

The government conceded that SCHMIDGALL had

received use and derivative use immunity for the January

1988 statement, but not that he had received immunity for

the December 1988 statement. (App. 8, 24, 58). The

government also did not concede that it had used either

statement within the meaning of Kastigar and its progeny.

The parties litigated those issues.

After holding Kastigar hearings on August 21, 1991

and August 27, 1991, the district court issued a

Memorandum Opinion on January 13, 1992. In this

Memorandum Opinion, the district court found that

SCHMIDGALL had indeed received use and derivative use

immunity for the December 1988 statement as well as for

the January 1988 statement. (App. 59-60). The court

concluded, however, that the government had not used any

evidence derived from SCHMIDGALL’S statements with

the possible exception of evidence obtained from Purvis

and Chambless. (App. 65-66).

The district court rejected SCHMIDGALL’S argument

that the prosecutor McLean and case agent Coram had to

have used information derived from SCHMIDGALL’S

statements in preparing the case against him because they

had both been personally present when he gave his

December 1988 statement and had been exposed in various

ways to his January 1988 statement. The court recognized

that Coram was present at the time SCHMIDGALL gave

his December 1988 statement and hence was “definitely”

aware of the contents of that statement. (App. 64). The

court concluded, however, that “it is not enough to merely

suggest that Coram was somehow tainted by his mere

presence,” thereby placing a burden on SCHMIDGALL to

trace evidence to establish how Coram’s knowledge of

SCHMIDGALL’S statement tainted evidence Coram

acquired later or tainted his grand jury testimony.

(App. 64). The district court referred the case to a

Magistrate Judge for the purpose of determining whether

SCHMIDGALL’S statements had either led to the

Government’s discovery of Purvis or Chambless or had

tainted any evidence the Government obtained from Purvis

or Chambless. (App. 65-66).

The Magistrate Judge found in the referral

proceedings that the government’s use of information

obtained from Steve Purvis had violated Schmidgall’s

derivative use immunity but that the tainted information

from Purvis had been harmless beyond a reasonable doubt.

(App. 78, 80).

On March 13, 1992, the trial court issued a second

Memorandum Opinion and order adopting’ the

recommendations of the Magistrate Judge and denying

SCHMIDGALL’S motion to dismiss. (App. 82-85). On

May 8, 1992, SCHMIDGALL entered a conditional plea of

guilty under Rule 11(a)(2), Federal Rules of Criminal

Procedure, and thereby reserved his right to appeal the

denial of his motions to dismiss and suppress. The trial

court then sentenced SCHMIDGALL and entered a

judgment of conviction. SCHMIDGALL timely appealed

the judgment.

The United States Court of Appeals for the Eleventh

Circuit took jurisdiction over the appeal under Title 28,

United States Code, Section 1291, since SCHMIDGALL

was appealing a final judgment of a district court. The

court of appeals affirmed the ruling of the district court

that the only tainted information the government used was

the information obtained from Purvis. (App. 14, 15). The

court also affirmed the ruling that the government’s use of

the tainted information from Purvis was harmless.

(App. 16). The court expressly rejected SCHMIDGALL’S

argument that the government had failed to prove nonuse

of SCHMIDGALL’S statements because McLean and

Coram had failed to segregate themselves from the

investigation after being exposed to SCHMIDGALL’S

statements. (App. 11, 36).

ARGUMENT

I.

DID THE COURT OF APPEALS ERRONEOUSLY

AFFIRM THE DENIAL OF SCHMIDGALL’S

MOTION TO DISMISS THE INDICTMENT FOR A

KASTIGAR VIOLATION WHERE BOTH THE

PROSECUTOR AND THE CASE AGENT AGAINST

SCHMIDGALL HAD BEEN EXPOSED TO

SCHMIDGALL’S IMMUNIZED STATEMENTS BY

VARIOUS MEANS BUT HAD FAILED TO

SEGREGATE THEMSELVES OR THE IMMUNIZED

STATEMENTS FROM THE INVESTIGATION OF

THE CASE AGAINST SCHMIDGALL?

In Kastigar v. United States, 406 U.S. 441 (1972), this

Court held that in order to compel a witness to make

potentially self-incriminating statements under a grant of

immunity, the government had to grant an immunity

coextensive with the protection against self-incrimination

in the Fifth Amendment to the Constitution. The minimum

required level of immunity was that which would place the

witness in the same position as one who invoked the

privilege against self-incrimination and declined to speak.

Kastigar, 406 U.S. at 453.

The minimum required level of immunity under

Kastigar is use and derivative use immunity. If the

government chooses to prosecute a witness despite a grant

of use and derivative use immunity, it may use only

evidence from “a legitimate source wholly independent of

the compelled testimony.” Kastigar, 406 U.S. at 460. In

addition to being unable to use the immunized statement

itself against the witness, the government also may not use

any evidence it has derived from the immunized

statement. The government may use the immunized

statement neither as an “investigatory lead” nor as a

means of “focusing investigation on a witness as a result of

his compelled disclosures.” Id. As the court below

acknowledged in the companion case to the case under

review, the forbidden uses of a witness’s immunized

statement include its use to shape the questioning or

testimony of other witnesses. United States v. Schmidgall,

25 F.3rd 1523, 1528 (11th Cir. 1994); see United States v.

North, 910 F.2d 843, 856, 860 (D.C.Cir.), petition for

rehearing granted in part on other grounds, 920 F.2d 940,

942 (1990), cert. denied, 500 U.S. 941 (1991) (use of the

immunized testimony of a witness to refresh the

recollection or focus the thoughts of other witnesses is a

prohibited use under Kastigar).

The Court in Kastigar placed the burden of proof on

the issue of the use of an immunized statement on the

government. Once the existence of use and derivative use

immunity is established or conceded, the government has

“the affirmative duty to prove that the evidence it proposes

to use is derived from a legitimate source wholly

independent of the compelled testimony.” Kastigar, 406

U.S. at 460.

Where a prosecutor or case agent has read, heard, or

otherwise been exposed to immunized testimony, it is

logical to infer that the immunized testimony will influence

later investigation and case preparation. If the prosecutor

and case agent participate in the investigation of a witness

after being exposed to that witness’s immunized testimony,

they may use the testimony as a lead indicating what

witnesses to question and what documents to obtain and

review. They may also use the immunized testimony to

assist in obtaining evidence from witnesses about whom

they already know. See North, 910 F.2d at 863, 866 (in

determining whether a Kastigar violation has occurred, a

court must consider not only whether the immunized

testimony has assisted the government in identifying

witnesses but also whether it has influenced the content of

those witnesses’ testimony). The investigators may, for

example, use the immunized testimony to select new topics

about which to question witnesses and to frame questions

to ask witnesses. They may also use the immunized

statement as a guide to interpreting the testimony or

statements of other witnesses. Indeed, the prosecutor and

investigators will view every piece of evidence they acquire

after being exposed to the immunized statement through

the lens of the statement. All these problems are

compounded when the prosecutor and agents directly

exposed to the immunized statement communicate with

other governmen‘ agents about it and thereby influence

their investigations.

When, therefore, people exposed to an immunized

statement remain involved in the investigatory process, it

becomes quite difficult to determine which evidence has

come from lines of investigation derived from the

immunized statement and which has not. Prosecutors and

investigators acting in good faith are still unlikely to have

memories reliable enough to reconstruct all of their past

states of knowledge and to sort out all of the subtle

investigatory trails leading to each piece of evidence. If

investigators or prosecutors exposed to an immunized

statement remain involved in the investigation, there is a

strong probability that they have in some manner used the

statement in their gathering of evidence, or have

influenced others who then indirectly used it. This is so

even if the prosecutors and investigators in good faith can

not recall having used the immunized statement. See

Hampton v. United States, 775 F.2d 1479, 1491 and n.53

(11th Cir. 1985).

Since under Kastigar the burden of proof is on the

government, the government must bear the risk that

imperfect memories or records will render it unable to

prove nonuse. As the court in North put it, “the

government always bears the burden of proof and [a court]

may not infer findings favorable to the government.” North,

910 F.2d at 867 (emphasis in original).

In light of the practical difficulties of proving that

prosecutors and investigators exposed to immunized

testimony have not used it in some manner to derive

evidence, some courts have concluded that the government

can not meet its burden of proof under Kastigar when the

prosecutor or government investigators have read or heard

the contents of an immunized statement but then have

failed to segregate themselves reliably from the later

investigation of the immunized witness. In Hampton, for

example, the United States Court of Appeals for the

Eleventh Circuit stated that

Unless the government relies solely upon evidence

obtained prior to the immunized testimony,

[citation omitted] the principles of Kastigar

generally require (as a practical matter) a showing

that prosecuting officials and their agents were

aware of the immunity problem and followed

reliable procedures for segregating the immunized

testimony and its fruits from officials pursuing

any subsequent investigations.

Hampton, 775 F.2d at 1490.

The United States Court of Appeals for the Fourth

Circuit, in United States v. Harris, 973 F.2d 333 (4th Cir.

1992), while declining to adopt a per se rule requiring

recusal of a prosecutor exposed to immunized testimony,

did note that the continued participation of a prosecutor

10

exposed to immunized testimony made the government’s

burden of proof under Kastigar more difficult. Harris, 973

F.2d at 337. In affirming a district court finding that the

government had not proved independent sources under

Kastigar, the court commented that

The usual precautions, not followed in this case,

are for the government to insulate a prosecutor

and/or investigator who is familiar with the

immunized statement from subsequent

prosecution of the compelled witness or to seal the

incriminating documents.

Id.

In United States v. McDaniel, 482 F.2d 305 (8th Cir.

1973), the United States Attorney who later prosecuted

McDaniel in a federal case against him read transcripts of

McDaniel’s testimony before a state grand jury. The

testimony McDaniel gave before the state grand jury

pertained to matters relevant in the federal case as well.

McDaniel had received automatic immunity under a state

statute before giving his state grand jury testimony, but

the prosecutor did not know about this grant of immunity

when he read the grand jury transcript. He therefore took

no precautions to insulate himself from the federal

investigation of McDaniel or to segregate information

derived from the grand jury transcript from the other

sources of information in the case. The court concluded

under those circumstances that the “testimony could not be

wholly obliterated: from the prosecutor’s mind in his

preparation and trial of the case.” McDaniel, 482 F.2d at

312. The government’s failure to segregate the immunized

testimony and the persons exposed to it from the

investigation made its burden of proving nonuse under

Kastigar “insurmountable.” McDaniel, 482 F.2d at 311.

11

The court in McDaniel, in addition to imposing a

segregation requirement, took the position that the

prohibited uses of immunized testimony included

nonevidentiary uses such as planning trial strategy.

McDaniel, 482 F.2d at 311. A court imposing a segregation

requirement need not, however, also accept the principle

that Kastigar prohibits nonevidentiary uses of immunized

testimony. The court in Hampton, for example, imposed a

segregation requirement even though it accepted the

Eleventh Circuit position that Kastigar prohibited only

uses of immunized testimony leading to the introduction of

evidence. If those exposed to immunized testimony do not

segregate themselves reliably from the investigation of the

immunized witness, the government’s burden of proving

that the immunized testimony did not influence the

gathering of evidence will be just as insurmountable as its

burden of proving that the immunized testimony did not

influence trial strategy in some other respect.

The segregation requirement of McDaniel and

Hampton creates a bright line rule that benefits the

government as much as it benefits immunized witnesses.

Under Kastigar, the government must prove a negative

proposition. It must prove that it did not use immunized

testimony against the immunized witness. A definite

prophylactic rule such as the segregation requirement of

McDaniel makes it relatively easy for the government to

meet this burden of proof. The government need merely

assure itself. that the agents listening to or reading

immunized testimony do not participate in any later

investigation of the immunized witness. See, e.g., United

States v. Jones, 542 F.2d 186, 199-202 (4th Cir.), cert.

denied, 426 U.S. 922 (1976) (district court correctly denied

Kastigar motion where the state strike force before which

Jones gave the immunized testimony effectively segregated

itself from all later state and federal investigations of

Jones).

12

In the absence of a segregation requirement, on the

other hand, the government has no clear way of knowing

whether it can meet its burden of proving nonuse. In the

absence of a segregation requirement, agents exposed to

immunized testimony may participate in the later

investigation of the immunized witness. They will then

somehow have to show that they did not use the

immunized testimony despite knowing its contents. They

will have to reconstruct all of their states of knowledge at

various stages of the investigation. Due to the inevitable

imperfections of human memory and the vagaries of any

fact finding process, the government will remain uncertain

until the conclusion of the Kastigar hearing whether its

agents’ reconstructions have successfully proved nonuse.

The absence of a segregation requirement or an

equivalent bright line rule for determining compliance

with Kastigar will therefore lead to uncertainty on the part

of the government as to the procedures required to comply

with Kastigar. Such uncertainty will tend to discourage the

use of immunized witnesses, thus depriving the

government of a _ useful and often essential law

enforcement tool.

Potential immunized witnesses also need to know

where they stand under Kastigar. Potential witnesses,

before making intelligent decisions to give self-

incriminating testimony, must know the exact scope of the

protection they are receiving and the rights they are giving

up. In the absence of a bright line rule such as the

segregation requirement for determining when the

government can prove nonuse, witnesses will not know

exactly what they must esiablish in order to protect

themselves while giving immunized testimony. They will

not know exactly what the “immunity” they have been

promised means. In the absence of a bright line rule

imposing procedures for proving nonuse, there is a danger

13

that a court may impose a burden on the witness to trace

evidence or otherwise to prove the government’s use of the

immunized testimony, even though Kastigar unequivocally

places the burden of proof as to use on the government

rather than the witness. Indeed, this appears to have

happened in the case below, as the following discussion will

show.

In the present case, the prosecutor Robert McLean was

exposed to SCHMIDGALL’S immunized testimony in

several ways. So was the case agent and grand jury

witness against SCHMIDGALL, Thomas Coram. McLean

and Coram were both personally present when

SCHMIDGALL gave his second immunized statement on

December 5, 1988. Coram and McLean therefore both

knew what SCHMIDGALL had said during that

statement. (App. 9, 61).

Coram and McLean were also exposed in various ways

to SCHMIDGALL’S first immunized statement, which he

gave on January 26, 1988. Between January 26, 1988 and

December 5, 1988, Coram discussed the case with United

States Coast Guard Lieutenant David Hume and with

United States Customs Service agent Ronald Ingleby, who

had both been present when SCHMIDGALL gave his first

statement. (App. 10n.4, 61-62). McLean discussed the case

with Ingleby. McLean also discussed the case with

Customs agent Donald Schmidt, who had not attended the

January 26, 1988 interview in person but who had

reviewed notes of it. (App. 10n.4, 25, 31, 62). Coram also

reviewed reports of various witness interviews Schmidt

had conducted after reviewing the notes. of

SCHMIDGALL’S statement. (App. 10n.4). Thus, although

McLean and Coram may not have known the ultimate

source of the information about SCHMIDGALL they

obtained from Hume, Ingleby, and Schmidt, they did

receive information derived in various ways from

14

SCHMIDGALL’S January 26, 1988 statement in addition

to the information they derived by being present at his

December 5, 1988 statement.

McLean did not know there was a potential immunity

problem until August of 1989, almost eight months after

SCHMIDGALL gave his second statement. Only then,

when he was called to testify at a Kastigar hearing

concerning another case against SCHMIDGALL, did

McLean learn of the need to segregate information derived

from SCHMIDGALL’S statements from the other

information in the case. Coram received no instructions

from McLean to insulate himself until just before he went

to the grand jury in December of 1990, almost two years

after SCHMIDGALL’S second statement. (App. 10n.4, 61).

Coram thus presumably took no precautions to segregate

information derived from SCHMIDGALL’S statements

until then.

McLean and Coram interviewed witnesses and

reviewed documents pertaining to the case against

SCHMIDGALL during the period between

SCHMIDGALL’S first and second statements and after

SCHMIDGALL’S second statement. During most of this

period in the case of McLean and almost all of it in the case

of Coram, they took no precautions to segregate

information derived from SCHMIDGALL’S statements

from other information in the case. The logical inference

from these facts is that, perhaps without realizing it,

Coram and McLean relied in part on information derived

from SCHMIDGALL’S statements in preparing the case

against SCHMIDGALL and presenting it to the grand jury.

A reasonable court should conclude under these facts, as

did the court in McDaniel under similar facts, that the

governments burden oof proving nonuse_ of

SCHMIDGALL’S statements is insurmountable.

15

The Eleventh Circuit in the opinion below, however,

refused to require investigators exposed to the immunized

testimony to be segregated from later investigation of the

immunized witness. Schmidgall, 25 F.3rd at 1537.

(rejecting argument that any investigator exposed to

immunized testimony was per se tainted). The court took a

similar position in the companion opinion. Schmidgall, 25

F.3rd at 1531-32. The district court and Eleventh Circuit

instead placed a burden on SCHMIDGALL to prove that

the government's knowledge of SCHMIDGALL’S

statements tainted some specific piece of evidence it had

obtained. In rejecting the segregation requirement, the

Eleventh Circuit adopted a position inconsistent both with

its own earlier opinion in Hampton and with the view of

the Eighth Circuit expressed in McDaniel. It also

effectively placed a burden of proof on SCHMIDGALL and

hence adopted a burden of proof rule inconsistent with

Kastigar.

Conflict among the circuits concerning the existence of

a segregation requirement will lead to uncertainty

concerning the appropriate burden of proof in Kastigar

proceedings. It will also lead to uncertainty regarding the

procedures required to comply with Kastigar. This

uncertainty will discourage government use of the

immunity procedure and will impair the rights of

immunized witnesses to protection coextensive with the

rights they are giving up. The Court should therefore

accept this case for certiorari review in order to resolve the

intercircuit conflict concerning the segregation

requirement and to clarify the appropriate burden of proof

in Kastigar proceedings.

16

Il.

DID THE TRIAL AND APPELLATE COURTS

APPLY AN INCORRECT STANDARD FOR

DETERMINING HARMLESS ERROR WHEN

THEY CONCLUDED THAT THE INTRODUCTION

BEFORE A GRAND JURY OF INFORMATION

TAINTED BY A KASTIGAR VIOLATION

COULD BE HARMLESS?

The district court concluded that when Coram gave the

grand jury testimony attributed to Steven Purvis, he had

impermissibly used Schmidgall’s immunized statements

within the meaning of Kastigar. It nevertheless concluded

that the use of Purvis’s tainted statements was harmless

beyond a reasonable doubt and refused to dismiss.

(App. 78, 80, 82-85). The court of appeals affirmed the

district court finding that Purvis’s testimony was tainted

but harmless. (App. 16). In doing so the court of appeals

applied a standard for determining the harmlessness of the

error that was inconsistent with the harmless error

jurisprudence of this Court. Application of the lower courts’

standard for determining harmless error in the

introduction of tainted evidence before a grand jury will

likely impair both the preservation of the rights of the

accused under Kastigar and the integrity of the grand jury

process.

In Arizona v. Fulminante, 111 S.Ct. 1246 (1991), this

Court ruled that certain “structural” errors in criminal

proceedings can never be harmless. Structural errors affect

the entire framework of the trial or proceeding rather than

simply leading to the admission or exclusion of particular

evidence or some other particular error in the trial.

Fulminante, 111 S.Ct. at 1265 (Opinion of Rehnquist, C.J.).

Cf. Chapman v. California, 386 US. 18 (1967)

(propounding “harmless beyond a reasonable doubt”

standard applicable to most constitutional errors).

17

In Sullivan v. Louisiana, 113 S.Ct. 2078 (1993), the

Court held that a constitutionally deficient reasonable

doubt instruction is a structural error requiring automatic

reversal without any harmless error analysis. Sullivan,

113 S.Ct. at 2082-83. A deficient reasonable doubt

instruction does not merely affect a piece of evidence but

instead distorts the way in which the jury views all of the

evidence in the case. Its effects are “necessarily

unquantifiable and indeterminate,” making any harmless

error analysis futile. Jd.

Application of the “harmless beyond a reasonable

doubt” standard to the introduction of tainted evidence

before « grand jury is inconsistent with Fulminante and

Sullivan. In the grand jury process, there is no adversary

procedure. There is no system of cross examination or

opposing argument to encourage jurors to evaluate the

credibility of witnesses or to place pieces of evidence in

their proper context. Each piece of evidence is presented as

the equal of every other piece of evidence. It therefore

becomes extremely difficult to determine what pieces of

evidence or combination of pieces of evidence have

persuaded the grand jurors to indict. As far as anyone can

determine, once the grand jurors have been exposed to

tainted testimony, they view every other piece of evidence

introduced before them through the perspective created by

the tainted testimony, so that it becomes impossible to say

that the grand jurors would have indicted without the

tainted testimony. The precise effect of tainted testimony

on a grand jury is therefore unquantifiable, just as the

effect of the improper reasonable doubt instruction in

Sullivan was unquantifiable.

In addition, any attempt to isolate the effect of a

particular piece of evidence on the grand jurors’ decision to

indict necessarily requires an examination of the grand

jurors’ thought processes. Such an examination will lead to

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second guessing of the grand jurors’ deliberative process

and hence will impair the policy of grand jury secrecy. Cf.

United States v. Hinton, 543 F.2d 1002, 1009-10 (2nd Cir.

1976) (adopting rule that a grand jury before whom an

immunized witness testifies cannot indict that witness;

adopting the rule in order to eliminate the need for an

examination of the grand jurors’ deliberative process and

the consequent threat to grand jury secrecy).

In the present case, the district court and court of

appeals concluded that the use of Purvis’s tainted

testimony was harmless beyond a reasonable doubt

because it merely duplicated other, supposedly untainted

testimony placing SCHMIDGALL at the hunting camp.

(App. 14-16, 78, 80, 82-85). One cannot conclude beyond a

reasonable doubt that Purvis’s testimony had such a

limited effect, however. Coram testified to the grand jury

that two witnesses, Chambless and Purvis, saw

SCHMIDGALL setting up radio equipment at the hunting

camp. Without the tainted testimony of Purvis, there was

only one uncorroborated witness, Chambless, who saw and

could describe in detail SCHMIDGALL’S activities at the

hunting camp. (App. 14, 78). One cannot say beyond a

reasonable doubt that the reference tc two seemingly

independent witnesses who saw SCHMIDGALL setting up

equipment at the hunting camp, rather than just to one

uncorroborated witness, did not influence the grand jury’s

decision to indict.

More importantly, the court of appeals applied a

standard inconsistent with the precedents of this Court

when it analyzed whether the Kastigar violation in

introducing Purvis’s tainted testimony before the grand

jury was harmless. Any attempt to isolate the effect of

Purvis’s testimony on the grand jurors would require an

analysis of the grand jurors’ thought processes such as that

contained in the opinion beiow or in the preceding

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STERN SAUNT! NES

paragraph. In order to avoid this invasion of the grand

jury’s deliberative process, the introduction of tainted

evidence before a grand jury should be treated as a

structural error inherently warping the entire grand jury

process. The court below deviated from the principles of

Fulminante and Sullivan when it treated the introduction

of tainted evidence before the grand jury as a

nonstructural error which could be evaluated under the

ordinary rules for evaluating the prejudicial effect of an

error.

CONCLUSION

In light of the foregoing arguments, the Court should

accept this case for certiorari review and should reverse

the Eleventh Circuit’s affirmance of SCHMIDGALL’S

conviction and sentence.

Respectfully submitted,

LAW OFFICES OF PHILIP M. GERSON, P.A.

100 Chopin Plaza, Suite 1310,

Miami, Florida 33131

Telephone: (305) 371-6000

Attorneys for Petitioner

CHRISTIAN W. SCHMIDGALL

By: /s/ PHILIP M. GERSON

PHILIP M. GERSON

Florida Bar Number 127290

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