Appendix — Schmidgall v. United States

Supreme Court, U.S.

FILED

) 941101 DEC 2 0 199

Oe pee. me ten

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

APPENDIX TO 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

INDEX TO APPENDIX

Item Page

} 8 Opinion, United States v. Schmidgall,

25 F.3rd 1533 (11th Cir. 1994)

eee eu ia as oh ou dae eso sis aes 3

II. Opinion, United States v. Schmidgall,

25 F.3rd 1523 (11th Cir. 1994)

(opinion in companion case).................. 17

III. Memorandum Opinion of District Court of

au he oad Fa ke chee da be abe ne 41

IV. Magistrate Judge’s Report and

Recommendation of February 20, 1992....... 67

¥i Memorandum Opinion of District Court of

| gag A lng ea ar 82

VI. Order of District Court of March 13,1992... 85

VII. Order of United States Court of Appeals for

the Eleventh Circuit denying Petition for

Rehearing and Suggestion for Rehearing

RE ae eee a re 86

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

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Christian SCHMIDGALL,

Defendant-Appellant.

No. 92-6449.

United States Court of Appeals,

Eleventh Circuit.

July 14, 1994.

The United States District Court for the Northern

District of Alabama, No. CR90-PT-261-S, Robert B. Propst,

J., rejected defendant’s argument that any investigator

exposed to defendant’s immunized information regarding

drug smuggling venture was per se tainted, and he

appealed. The Court of Appeals, Anderson, Circuit Judge,

held that: (1) venture participant’s statement used before

grand jury was tainted by defendant's immunized

testimony, and (2) although participant’s statement was

tainted, use of statement before grand jury was harmless,

such that indictment would stand.

Affirmed.

1. Criminal Law —42

Conclusory denials regarding use of defendant's

immunized testimony alone were not enough to carry

governments burden under Kastigar. U.S.C.A.

Const.Amend. 5.

2. Criminal Law -—393(1)

Any investigator exposed to immunized information

was not per se tainted for purposes of defendant’s claim

that his Fifth Amendment right against self-incrimination

was violated because law enforcement authorities used his

immunized testimony in obtaining indictment against him.

U.S.C.A. Const.Amend. 5.

3. Criminal Law —42

Proof of reliance on information gathered prior to the

taking of immunized testimony generally is sufficient for

government to carry its burden under Kastigar of proving

that evidence proposed to be used is derived from

legitimate source independent of immunized testimony.

U.S.C.A. Const.Amend. 5.

4. Criminal Law —42

Defendant’s immunized testimony regarding his

participation in drug smuggling venture did not provide

information that allowed law enforcement authorities to

elicit description from venture’s organizer of another

participant in venture who, in turn, identified defendant as

venture’s radio operator; defendant’s testimony never

mentioned participant, evidence supported finding that

defendant did not know participant as the two had only a

brief meeting and no person who was present at

defendant’s interview, including defendant himself,

asserted that defendant identified participant. U.S.C.A.

Const.Amend. 5.

5. Criminal Law —393(1)

Information elicited from participant in drug

smuggling venture and used before grand jury was not

tainted by defendant's immunized testimony so as to

violate defendant’s Fifth Amendment right against self-

incrimination; defendant’s participation in smuggling

venture was well-documented before any immunized

testimony was taken and participant added only minor

points and these additional details added little to

information known to prosecution before any immunized

statements were taken. U.S.C.A. Const.Amend. 5.

6. Criminal Law —42

Government is not required to negate every abstract

possibility of taint from defendant’s immunized testimony.

U.S.C.A. Const.Amend. 5.

7. Criminal Law —42

Because burden of disapproving taint from defendant’s

immunized testimony regarding drug smuggling venture

was allocated to the government, lack of evidence as to

whether government used defendant’s immunized

testimony to shape interrogation of venture participant

whose statements were used before grand jury led to

finding that participant’s statement was tainted within

meaning of Kastigar. U.S.C.A. Const.Amend. 5.

8. Indictment and Information —144.1(3)

Dismissal of indictment is not required when use of

immunized testimony was harmless beyond reasonable

doubt.

9. Indictment and Information —144.1(3)

Although drug smuggling participant’s statement used

before grand jury was tainted by defendant’s immunized

testimony, graud jury indictment would stand because

participant’s identification of defendant as being present at

hunting camp where operation was conducted was

harmless in view of the overwhelming untainted evidence

of that same fact and the other details provided by

participant were insignificant and harmless. U.S.C.A.

Const.Amend. 5.

Philip M. Gerson, Miami, FL, for appellant.

Robert J. McLean, Jack W. Selden, John E. Ott, Asst.

U.S. Atty., Dept. of Justice, U.S. Attorney's Office,

Birmingham, AL, for appellee.

Appeal from the United States District Court for the

Northern District of Alabama.

Before KRAVITCH, ANDERSON and EDMONDSON,

Circuit Judges.

ANDERSON, Circuit Judge:

This case involves another claim by Defendant-

Appellant Christian Schmidgall that his Fifth Amendment

right against self-incrimination was violated because law

enforcement authorities used his immunized testimony in

obtaining an indictment against him. This claim relates to

an indictment in the Northern District of Alabama. Many

of the relevant facts and much of the applicable law are

discussed in an opinion, issued simultaneously with this

opinion, regarding Schmidgall’s similar challenge to an

indictment returned in the Middle District of Florida.

United States v. Schmidgall, 25 F.3d 1523 (11th Cir.1994).

The indictment at issue here was based on

Schmidgall’s participation in a venture that resulted in the

importation of 512 kilograms of cocaine into Sumter

county, Alabama in December of 1985. The venture was

organized by William Wood. Schmidgall served as a radio

specialist: monitoring law enforcement transmissions,

maintaining contact with the small airplane carrying the

Wipes

Wa

cocaine from Colombia, and communicating with the

ground crew at a rural airstrip where the plane was to

land. He operated from a mobile home on a hunting camp

owned by some of the co-conspirators. The cocaine was

flown to a landing strip on another hunting camp,' then

transported to the camp at which Schmidgall was located.

The cocaine was then taken by automobile to Florida,

where it was distributed.”

THE SEQUENCE OF INTERVIEWS

The first account of Schmidgall’s participation in this

venture came from a November 11, 1987 interview with

David Carlson, one of William Wood’s pilots in smuggling

ventures. Carlson told Customs Agent Donald Schmidt?

that he flew a person he knew only as “Chris” from Florida

to Alabama. Carlson identified Chris as a former

commercial airline pilot and a _ counter-surveillance

specialist. Chris loaded a large piece of equipment onto the

plane, which he told Carlson was a spectrum analyzer that

aided in monitoring law enforcement frequencies.

Further details of the Alabama operation were

provided by Wood himseif during his initial interview at a

federal penitentiary in Kentucky on November 19, 1987.

Wood was the coordinator of the importation, as well as

serving as one of the pilots who flew the cocaine from

Colombia to Alabama. He stated that Schmidgall

(identified by his full name) “ran radios” for this operation

1The owner of the hunting camp with the airstrip had no knowledge

that his property was being used in a drug-smuggling operation.

2The smugglers brought the drugs into the country via Alabama

because of increased law enforcement presence in Florida.

3Schmidt worked out of the Middle District of Florida and was the

primary investigator in the early stages of the Wood case. He conducted

all the relevant interviews before the January 26, 1988 Schmidgall

interview.

by using spectrum analyzers to monitor law enforcement

frequencies.

The next statement came from Howard Carrell,

Wood’s brother-in-law and another conspirator, on

December 29, 1987. Carrell identified Schmidgall as the

radio operator for marijuana airdrops in Florida; he also

gave details of the Alabama importation, but did not

identify Schmidgall as a participant in that venture.

Wood was debriefed again on January 12, 1988,

providing yet more details about the Alabama venture. He

related that he and his copilot were in constant radio

contact with Schmidgall, who was at the hunting camp in

Sumter County.

On January 26, 1988, defendant Schmidgall was

interviewed in Miami by several law enforcement agents

from the Southern District of Florida (not including Agent

Schmidt). Although no formal report of this interview was

made, the record includes five pages of handwritten notes

apparently made by an Internal Revenue agent present at

the debriefing. The government concedes that Schmidgall

was granted use and derivative use immunity for this

interview.

As the investigation into the Wood conspiracy

progressed, information was gathered from dozens of

sources. An increasing number of jurisdictions became

involved. We will briefly describe those events relevant to

this appeal.

Beginning in April 1988, Wood was extensively

debriefed by many government agents pursuant to a plea

agreement. The interviewers included Agent Schmidt,

Customs Agent Ronald Ingleby from the Southern District

of Florida, and Customs Agent Mike Holt from the

Northern District of Alabama. Ingleby had been present at

the January Schmidgall interview. Schmidt had been given

a copy of the notes of that interview prior to the April Wood

interviews. Three reports were produced from these

extensive interviews of Wood: one from Schmidt, one from

Ingleby, and a third produced by Customs Agent Thomas

Coram. The Coram report was the result of a debriefing of

Agent Holt in September of 1988; prior to that time, Coram

had taken over the investigation in the Northern District of

Alabama upon Holt’s promotion.

On October 20, 1988, Agent Coram interviewed Tony

Chambless, an Alabamian who was involved in the

December 1985 importation. Chambless had initially been

identified (by first name only) by Wood in the April

interviews. The Coram report stated that Wood identified

“Tony .. . from Demopolis” as a white male in his mid-

30s, five feet ten inches tall, weighing 180 pounds, with

dark hair and a beard, who worked for a paper company in

the Demopolis area. This detailed description led to

Alabama _ authorities identifying Chambless, who

eventually entered a plea and gave a_ statement.

Chambless did not known Schmidgall, but was able to

identify him through a photo lineup as the radio operator

at the hunting camp during the December 1985

importation. He gave authorities a few details about the

setup of Schmidgall’s equipment.

Agent Coram and others conducted an interview of

Schmidgall on December 5, 1988. The district court in this

case found that Schmidgall was granted use and derivative

use immunity for statements made at this interview; the

government does not challenge that finding. Schmidgall

had traveled to Birmingham pursuant to a subpoena. He

gave details regarding the December 1985 venture, but

apparently provided nothing not revealed in his January

1988 statement. Schmidgall was scheduled to return the

following day, but failed to show up after a dispute over

immunity arose.

On August 23, 1989, Agent Coram interviewed Steve

Purvis, who had been involved in the Alabama smuggling.

Purvis had first been identified by Wood on January 12,

1988. In the interview, Purvis confirmed previously

revealed aspects of Schmidgall’s participation and added a

few details, such as the use of a stripped copper wire

strung in a tree as an antenna.

[1] Agent Coram testified before the grand jury on

December 4, 1990, relating details of the Alabama venture

including Schmidgall’s participation.* The grand jury

returned the indictment that is now challenged by

Schmidgall.

DISCUSSION

The district court held a Kastigar® hearing to

determine whether Schmidgall had been granted

4Coram, the sole grand jury witness against the defandant, had

participated in the December 5, 1988 interview of Schmidgall and thus

plainly had been exposed to immunized testimony. In addition, Coram

had reviewed certain investigatory reports—such as those of Agents

Ingleby and Schmidt—that might have been indirectly tainted by

Schmidgall’s January 26 interview. Coram was unaware of any

potential Kastigar problem until immediately before his grand jury

testimony, when Assistant United States Attorney Joe McLean—who

questioned Coram before the grand jury and also had been exposed to

immunized testimony—told Coram not to divulge any information

learned from Schmidgall. The conclusory denials of Coram and McLean

regarding the use of immunized testimony alone are not enough to carry

the government’s burden under Kastigar. United States v. Hampton, 775

F.2d 1479, 1489 (11th Cir.1985). However, as we explain infra, our focus

must be on the evidence actually presented to the grand jury.

5Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d

212 (1972). A detailed explanation of Kastigar is included in our opinion

addressing Schmidgall’s Florida indictment. See 25 F.3d at 1528.

10

immunity during the December 5, 1988 interview and, if

so, whether evidence derived from that interview was used

to obtain his indictment. The court also considered

Schmidgall’s allegation that information obtained during

his immunized January 26, 1988 interview in Florida had

been used against him. As we have noted, the court

concluded that both interviews were given under use and

derivative use immunity.

{2] The court held that the relevant issue “is whether

the government has met its burden of showing that its

evidence presented to the grand jury is not tained.” United

States v. Schmidgall, No. CR90-PT-261-S (N.D.Ala.

Jan. 13, 1992), at 4 (emphasis in original). As we have

explained in the companion to this case, the focus on the

evidence actually used by the government in obtaining the

indictment is a correct application of Kastigar and the

cases interpreting its principles in this Circuit. We

therefore affirm the district court in rejecting Schmidgall’s

argument that any investigator exposed to immunized

information is per se tained.

[3] After examining Agent Coram’s grand jury

testimony, the district court found that the majority of the

information presented was known to investigators before

Schmidgall gave his first immunized statement in January

1988. Proof of reliance on information gathered prior to the

taking of immunized testimony generally is sufficient for

the government to carry its burden under Kastigar. See

United States v. Byrd, 765 F.2d 1524, 1529 (11th Cir.1985).

Upon our own review of Coram’s grand jury testimony, we

agree with the district court. Most of the information

presented was first revealed in interviews with Carlson,

Carrell, and Wood (in the two interviews of Wood prior to

January 26, 1988). With regard to this evidence, the

government has proven that there is no taint.

11

Before the grand jury, Coram also referred to Tony

Chambless and Steve Purvis. The district court found this

more problematical because Chambless was not

interviewed until October 20, 1988 (after the first

immunized Schmidgall interview) and Purvis was not

interviewed until August 23, 1989 (after the second

Schmidgall interview). In addition, Chambless and Purvis

were interviewed by Agent Coram, who had access to

materials that were possibly tained by the first Schmidgall

interview and who conducted the second Schmidgall

interview himself. The district court correctly observed

that Kastigar prohibits the use of immunized testimony as

an “investigatory lead,” Kastigar, 406 U.S. at 460, 92 S.Ct.

at 1664-65; therefore, if Schmidgall first identified

Chambless or Purvis, or if information from Schmidgall

was used to shape the interrogation of either witness,

Coram’s grand jury testimony would be tainted. The

district court referred consideration of the evidence

regarding Chambless and Purvis to a magistrate judge. We

first will discuss and review the findings relating to

Chambless, then turn to Purvis.

A. Chambless

[4] The magistrate judge conducted a thorough

review of the voluminous record in this case. He

determined that the initial lead to the identity of

Chambless was provided by Wood during his extensive

debriefings in April 1988. We agree with the magistrate

judge’s finding. Wood first identified Chambless by first

name only in April 1988, but also provided a detailed

description of him, including physical attributes, area of

residence, and type of employment. Because this interview

came after the first Schmidgall interview, the magistrate

®The record—which we have also given a complete review—includes

lengthy transcripts of Kastigar hearings from several districts, as well

as many investigative reports and other mateirals.

12

judge considered whether anything Schmidgall said was

used to prompt Wood’s identification of Chambless. The

notes of the January 26, 1988 Schmidgall interview never

mention Chambless. As the magistrate judge noted, the

evidence supports the findings that Schmidgall did not

know Chambless; the two had only a brief encounter at the

hunting camp in December 1985. No person who was

present at the Schmidgall interview — including Schmidgall

himself—asserted that Schmidgall identified Chambless.’

The lack of reference to Chambless in the notes of the

Schmidgall interview is additional evidence rebutting any

inference that Schmidgall provided information that

allowed authorities to elicit the description of Chambless

given by Wood. We agree with the magistrate judge that

the government proved it had wholly independent sources

leading to the identification of Chambless.

[5,6] The magistrate judge then considered whether

any of the statements obtained from Chambless and used

before the grand jury were tainted. He found, and the

district court agreed, that the Chambless interview was

not tainted. Upon our examination, we conclude that the

government has proven that the use of information elicited

from Chambless before the grand jury did not violate

7Present at both Schmidgall interviews was Coast Guard Lt. David

Hume, to whom Schmidgall had been providing information on

unrelated smuggling operations. Hume testified that he made notes at

both interviews; however, these notes were seized by the Coast Guard

and classified as national security information. At oral argument,

Schmidgall’s counsel argued that Hume’s notes show that Schmidgall

identified both Purvis and Chambless in his January interview. Counsel

claimed to have moved the district court to order production of the

Hume notes, and argued that we should direct the district court to rule

on this motion. This argument was not raised in Schmidgall’s brief, so

we decline to address it. American Steel Building Co. v. Davidson &

Richardson Const. Co., 847 F.2d 1519, 1522 n. 4 (11th Cir.1988). In any

event, identification of Purvis would be irrelevant because he was earlier

identified by Wood.

13

Schmidgall’s Fifth Amendment right against self-

incrimination. As we have pointed out, Schmidgall’s

participation in the smuggling venture was well

documented before any immunized testimony was taken.

Chambless added only minor points: that Schmidgall*® was

in a back bedroom of the mobile home at the hunting camp

hooking up radios and scanners and talking on the radio,

and that a scanner was placed on a television in the den.

These additional details add little to the information

known to the prosecution before any immunized

statements were taken. It is true, however, that Chambless

actually saw Schmidgall at the site, although there was

ample other evidence that he was there. We need not

decide whether Chambless added so little to the

evidentiary picture as to be harmless, because we conclude

in any event that Chambless’ identification of Schmidgall

was not tainted. We noted above that nothing in the

Schmidgall notes led the investigators to Chambless.

Furthermore, none of the few details that Chambless

added to the investigative knowledge are present in the

notes of the January Schmidgall interview, suggesting that

none of the information elicited from Schmidgall was used

directly or indirectly to influence the statement of

Chambless. The government is not required to negate

every abstract possibility of taint. United States v. Byrd,

765 F.2d 1524, 1529 (11th Cir.1985). The prosecution has

carried its burden of proving an absence of taint by a

preponderance of the evidence. Id.

B. Purvis

The magistrate judge found that, like the identification

of Chambless, the identification of Purvis was first

provided by Wood in April 1988. However, we point out

8We again note that Chambless did not know Schmidgall; he merely

told authorities what the radio operator did, then identified Schmidgall

as the operator from a photo array.

14

that Purvis in fact was first identified as a participant in

the Alabama smuggling by Wood on January 12, 1988—

before the first immunized Schmidgall interview. Therefore

the identification of Purvis clearly was free of any taint.

[7] As the magistrate judge noted, analysis of the

Purvis statement for potential taint presents a more

difficult problem. Purvis was. interviewed after

Schmidgall’s December 1988 Birmingham statement. In

addition, the Purvis interview was conducted by Agent

Coram, who had also led the December Schmidgall

interview. The actual interrogation of Purvis was not

recorded, so we are unable to compare the information

elicited from Schmidgall with the questions posed to Purvis

to determine if the former shaped the latter. The

magistrate judge therefore compared Coram’s reports of

the Schmidgall and Purvis interviews, finding a great deal

of similarity between them. Details such as the use of a

partially stripped copper wire thrown into a tree as an

antenna appear in both reports. Of course, the similarity

simply may be due to the fact that Schmidgali and Purvis

were independently recalling the actual facts of the

venture. However, the government has the burden of

proving that it did not impermissibly use Schmidgall’s

statement. The magistrate judge noted that the record

simply contains no direct evidence regarding whether the

government used Schmidgall’s testimony to shape the

interrogation of Purvis. Because the burden of disproving

taint is allocated to the government, the lack of evidence

would lead to a finding that the Purvis statement was

tainted within the meaning of Kastigar.

[8, 9] The inquiry does not end at this point,

however. Dismissal of the indictment is not required when

use of the immunized testimony was harmless beyond a

reasonable doubt. United States v. Byrd, 765 F.2d 1524,

1529 n. 8 (11th Cir.1985). The magistrate judge found that

15

Purvis’ testimony was used only to establish that

Schmidgall was at the hunting camp during the smuggling

venture, a fact that was also established by the

independent, untainted testimony of several witnesses:

Carlson, Wood (in his two interviews preceding the first

immunized Schmidgall statement) and Chambless. We

agree that Purvis’ identification of Schmidgall as being

present at the hunting camp is harmless beyond a

reasonable doubt, in view of the overwhelming untainted

evidence of that same fact. Moreover, we agree with the

magistrate judge that the other details (e.g. stripped

copper wire) provided by Purvis were insignificant and

harmless beyond a reasonable doubt. Therefore, the

indictment may stand.

CONCLUSION

In sum, we find that the bulk of the evidence presented

to the grand jury was known to investigators prior to the

taking of Schmidgall’s first immunized statement on

January 26, 1988. Of the evidence offered to the grand jury

that was gathered after that date, we find that the

information taken from the statement of Tony Chambless

was not tainted. The government has failed to prove that

the statement of Steve Purvis was not tainted; however,

the limited use of this information before the grand jury

was harmless beyond a reasonable doubt.

AFFIRMED.

16

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Christian SCHMIDGALL,

Defendant-Appellant.

No. 91-4161.

United States Court of Appeals,

Eleventh Circuit.

July 14, 1994.

Defendant was convicted in the United States District

Court for the Middle District of Florida, No. 89-179-CR-T-

10(A), Wm. Terrell Hodges, J., pursuant to conditional plea

of guilty to two counts of conspiring to violate federal law

by unlawfully importing cocaine, and he was sentenced to

two concurrent six-year terms. Defendant appealed. The

Court of Appeals, Anderson, Circuit Judge, held that:

(1) government failed to meet burden of proving by

preponderance of evidence that none of defendant’s

immunized testimony was used in obtaining indictment

against him, and (2) district court did not make prohibited

“groundless inference” when court based its sentencing

decision on undisputed fact that sentence would be

parolable, along with assumption that parole might in fact

be granted.

Vacated and remanded.

Kravitch, Circuit Judge, filed concurring and

dissenting opinion.

1. Criminal Law —42

When presented with Kastigar challenge, court’s task

is to determine whether any of evidence used against

17

defendant was in any way derived from his compelled

immunized testimony; once defendant shows that he has

testified under immunity, prosecution has burden of

showing that its evidence is not tainted, which is done by

establishing existence of independent, legitimate source for

disputed evidence. U.S.C.A. Const.Amend. 5.

2. Criminal Law —393(1)

Fifth Amendment standard applies to informal grants

of immunity. U.S.C.A. Const.Amend. 5.

3. Criminal Law —42

To establish source of evidence “wholly independent”

from defendant’s compelled immunized _ testimony,

government must demonstrate that each step of

investigative chain through which evidence was obtained is

untainted, which includes affirmative showing that none of

evidence presented to grand jury was derived directly or

indirectly from immunized _ testimony. U.S.C.A.

Const.Amend. 5.

See publication Words and Phrases for other

judicial constructions and definitions.

4. Criminal Law -—393(1)

Protection against self-incrimination is_ violated

whenever prosecution presents witness’ testimony that has

been shaped, directly or indirectly, by immunized

testimony, regardless of how or by whom witness was

exposed to that testimony; prohibited indirect derivation

includes using immunized testimony to help shape

questioning of another witness. U.S.C.A. Const.Amend. 5.

18

5. Criminal Law —42

Government agent’s denials that he made use of

immunized testimony, standing alone, are generally

insufficient to meet government’s burden of establishing

“wholly independent” source, even if such denials are made

in good faith. U.S.C.A. Const.Amend. 5.

6. Criminal Law —42

Government is required to prove that evidence relied

upon has not been tainted by compelled immunized

testimony only by preponderance of evidence; negation of

all abstract possibility of taint is not necessary. U.S.C.A.

Const.Amend. 5.

7. Criminal Law —1169.1(8)

Even if immunized testimony was in fact used,

indictment or conviction may be upheld on finding that use

of such tainted evidence was harmless beyond reasonable

doubt. U.S.C.A. Const.Amend. 5.

8. Criminal Law —42

Government failed to prove that Customs special

agent did not use notes of immunized interview with

defendant to shape his questioning of defendant’s

coconspirator or other witnesses, or prove that agent did

not obtain and use tainted information from other agents,

as required to show that agent’s grand jury testimony was

not tainted within meaning of Kastigar, particularly given

confusion as to time period during which another district

was responsible for prosecuting matter. U.S.C.A.

Const.Amend. 5.

19

9. Criminal Law —42

Use of immunized testimony to _ corroborate

independently obtained information does not violate

Kastigar. U.S.C.A. Const.Amend. 5.

10. Criminal Law —42

Government agent’s testimony can be sufficient to

establish that immunized testimony was not used against

defendant when such testimony is adequately supported,

i.e., consistent with facts and circumstances of case.

U.S.C.A. Const.Amend. 5.

11. Criminal Law —42

Failure of agents either to rely solely upon information

obtained before immunized statement was given or to

adopt procedures to ensure that there is no use of

immunized statement or evidence derived therefrom does

not establish per se Kastigar violation. U.S.C.A.

Const.Amend. 1.

12. Criminal Law -—986.2(1)

Sentencing court did not make prohibited “groundless

inference” when court based its sentencing decision on

undisputed fact that sentence would be parolable, along

with assumption that parole might in fact be granted.

See publication Words and Phrases for other

judicial constructions and definitions.

20

13. Criminal Law —1208.3(2)

Sentence within statutory limits will not be questioned

on appeal absent showing of arbitrary or capricious action

amounting to gross abuse of discretion.

14. Criminal Law -—986.2(1)

Defendant may not be sentenced based on groundless

inferences.

Philip M. Gerson, Miami, FL, for appellant.

Gary Montilla, Tampa, FL, for appellee.

Appeal from the United States District Court for the

Middle District of Florida.

Before KRAVITCH, ANDERSON and EDMONDSON,

Circuit Judges.

ANDERSON, Circuit Judge:

Defendant-Appellant Christian Schmidgall was

indicted in the Middle District of Florida for conspiring to

violate federal law by unlawfully importing cocaine

through Rock Sound, Bahamas on Christmas Eve, 1985 in

violation of various provisions of Title 21 of the United

States Code. He moved to dismiss the indictment, claiming

an improper use of his immunized testimony in violation of

his Fifth Amendment right against self-incrimination. See

Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32

L.Ed.2d 212 (1972). After a three-day hearing before a

magistrate, Schmidgall’s motion was denied. He then

entered a conditional plea of guilty to two counts pursuant

21

to Fed.R.Crim.P. 11(a)(2). Schmidgall was sentenced to two

six-year terms, to run concurrently.

Schmidgall now appeals his conviction and his

sentence. He argues that the district court erred in

determining that his indictment was obtained without any

use of his immunized testimony. In addition, he argues

that the district court erred in considering the availability

of parole when imposing his sentence. We will address

these issues in turn.

FIFTH AMENDMENT KASTIGAR CLAIM

I. Factual Background

Law enforcement authorities throughout’ the

Southeast United States conducted a widespread

investigation into drug importation activities coordinated

by William Wood.! The investigation of Wood’s activities in

the Middle District of Florida was dubbed “Operation

Timber” and initially was spearheaded by Customs Special

Agents Donald Schmidt and Daniel Dunn. The

investigation began in January 1987, after a small jet of

Wood’s was seized and became the subject of a civil

forfeiture proceeding. After the forfeiture was concluded,

Agents Schmidt and Dunn worked together in Operation

Timber until the spring of 1988, when Dunn was promoted

to a supervisory position and Schmidt became the sole case

agent.

One of Wood’s co-conspirators was Defendant-

Appellant Christian Schmidgall, a former commercial

airline captain whose specialty was “running radios”:

monitoring law-enforcement frequencies and maintaining

1The account of the investigation is drawn from the transcripts of

the Kastigar hearing before U.S. Magistrate Charles Wilson in Tampa,

Florida on February 5, 6, and 13, 1991.

22

contact with pilots flying illegal drugs into the country. As

early as April 1987, investigators had evidence linking

Schmidgall with Wood, in the form of reports indicating

that Schmidgall, Wood, and others had flown from the

Bahamas into the United States in late 1985. On

November 11, 1987, Agent Schmidt and others interviewed

David Carlson, another player in the Wood conspiracy. He

identified Schmidgall (by first name only) as a participant

in a venture that smuggled cocaine into Alabama in

December of 1985;? however, Carlson gave no information

regarding the transaction involved in this case.

Eight days later, on November 19, 1987, Schmidt,

Dunn, and others interviewed William Wood, who was

incarcerated in federal prison in Ashland, Kentucky. In

this interview, Wood identified Schmidgall as a “radio

runner” in general and gave a few details about the

Alabama importation. Subsequent to this interview with

Wood, Schmidt compiled additional evidence regarding

Schmidgall, including more reports of flights entering the

country from the Bahamas. These reports indicated that

Schmidgall had flown with a person named Jeffrey

Hutchinson. Other investigation included interviews with

Wood associates who confirmed Schmidgall’s role in the

Alabama importation; none of these persons gave

information regarding the cocaine importation through

Rock Sound, Bahamas on Christmas Eve, 1985, the

transaction that is the basis of Schmidgall’s conviction in

this case.

Wood was interviewed for a second time on

January 12, 1988 in the Sarasota (Florida) County Jail.

Wood was brought to Florida pursuant to a pending

agreement in which Wood would become a government

2The Alabama importation is the subject of another Kastigar appeal

by Schmidgall. See United States v. Schmidgail, 25 F.3d 1533 (11th Cir.

1994), issued simultaneously with the instant case.

23

witness, providing detailed information about the

importation of thousands of kilograms of illegal drugs. In

the January interview, Wood provided a few details of the

Rock Sound venture, including the involvement of

Schmidgall, the amount of cocaine involved, and the fact

that various problems beset the venture resulting in only

partial success.

On January 21, 1988, Agents Dunn and Schmidt—

accompanied by Ronald Ingleby and C.C. Savage, also

Customs agents—visited Schmidgall’s home in Lighthouse

Point, Florida. The purpose of the visit was to convince

Schmidgall to cooperate in the government’s investigation.

No substantive information was obtained at this time, and

Schmidgall makes no Fifth Amendment claim regarding

this transaction.

Before January 26, 1988, the government had general

knowledge of the Rock Sound venture and Schmidgall’s

involvement, but lacked specific details. Schmidgall

submitted to an interview on January 26, 1988 in the office

of William Shockley, Assistant United States Attorney for

the Southern District of Florida. Also present were

Customs Agent Ingleby, Internal Revenue Service Agent

Rodney Clark, and United States Coast Guard Lt. David

Hume. Neither Schmidt nor Dunn participated in this

interview. The government has stipulated that Schmidgall

was granted “use” and “derivative use” immunity, but not

“transactional” immunity. In other words, the government

agreed that nothing Schmidgall said could be used in any

manner that would incriminate Schmidgall; however, he

was not guaranteed that he would not be prosecuted for his

participation in the smuggling conspiracy. During this

interview, Schmidgall recounted details of the Rock Sound

venture that previously had not been disclosed to the

government.

24

Agent Sehmidt was in the Miami area during the first

week of February 1988. During that trip, Schmidt visited

Agent Ingleby’s office. Ingleby gave Schmidt a copy of the

handwritten notes IRS Agent Clark had made during the

immunized January 26 Schmidgall interview.® At the time,

Schmidt had no idea that the information in the notes was

protected by immunity. He testified that he “briefly

perused” the notes and then filed them away. Schmidt also

testified that he never again read the notes, because

sometime in the early summer of 1988 it was decided that

the Rock Sound importation would be prosecuted in the

Southern District of Florida.

Before that decision was made, however, Schmidt

participated in an extensive debriefing of William Wood.

Wood had reached a tentative plea agreement, following

which he was debriefed in great detail for about 60 hours

from April 22-29, 1988. Schmidt was the primary

questioner. From this series of interviews, Schmidt

produced a 31-page report summarizing Wood’s account of

many different smuggling ventures. Wood described the

Rock Sound project in greater detail than he had in his

January 12 statement; included were facts similar to

information revealed by Schmidgall in his immunized

January, 1988 interview in the office of the U.S. Attorney

for the Southern District of Florida, which information was

also included in the interview notes given to Schmidt.

Following the detailed Wood interviews, Schmidt

continued to investigate the smuggling ring, including the

Rock Sound venture. In May 1988, he requested and

3It is not entirely clear that Clark is the person who made the notes;

however, the identity of the note-taker is not germane to the resolution

of this case.

4Between the early summer of 1988 (when most of the prosecution

was shifted to the Southern District of Florida) and the fall of 1989

(Footnote continued on next page)

25

received more detailed accounts of flights between the

Bahamas and Florida made by Wood, Schmidgall, and

others. In September of that year, Schmidt received a

report indicating that an aircraft associated with

Schmidgall had been abandoned at an airfield in Rock

Sound on Christmas Eve, 1985. From July 26 through

September 6, 1988, Schmidt had a series of interviews with

William Davis, the pilot of the plane that flew the cocaine

from Columbia to Rock Sound. Davis recounted details

including Schmidgall’s participation in the venture.

Schmidt also had ongoing contact with investigators

from other districts who were working on the Wood

conspiracy. Agent Ingleby, who had been present at the

January 1988 Schmidgall interview, continued to exchange

information with Schmidt; Ingleby had conducted

extensive debriefings of Wood after Schmidt’s April 1988

Wood interviews. Ingleby placed his summary of the Wood

debriefings in a Customs database, where it was later

retrieved by Daniel Dunn, Schmidt’s former colleague and

current supervisor. Dunn discussed the case with Schmidt

after reading Ingleby’s report, but testified that he made a

“concerted effort” not to discuss the report with Schmidt

because Dunn was aware of potential Kastigar problems.

Finally, Schmidt discussed the Wood conspiracy with

investigators from Alabama, who had conducted a second

immunized interview of Schmidgall on December 5, 1988.

Schmidgall gave no new information on Rock Sound in this

second interview.

By sometime in the fall of 1989, authorities in the

Southern District of Florida had decided to prosecute

(Footnote continued from previous page)

(when the decision was made to prosecute the Rock Sound venture in

the Middle District), the Middle District of Florida prosecutors

anticipated prosecuting only William Davis and Thomas Barko, other

Wood conspirators, in the Middle District of Florida.

26

importations made by the Wood conspiracy dating back

only to January of 1986; because the Rock Sound venture

was before this date, prosecution of the Rock Sound matter

was taken over by Schmidt and others in the Middle

District. Schmidt testified that he did not read the notes of

the January 1988 Schmidgall interview after he resumed

active investigation of the Rock Sound venture. Schmidt

interviewed Jeffrey Hutchinson on December 29, 1989;

Hutchinson, who previously had been identified as an

associate of Schmidgall, gave further details of

Schmidgall’s participation in the Rock Sound smuggling.

On February 9, 1990, Schmidt testified before a grand

jury regarding Schmidgall’s role in the smuggling

conspiracy. Schmidt testified again before the same grand

jury on June 1, 1990; however, very little new information

was elicited. Schmidt was the only witness to give evidence

regarding Schmidgall’s participation in the Rock Sound

venture. Subsequently the grand jury returned an

indictment against Schmidgall for his role in the Rock

Sound smuggling.

II. The Kastigar Hearing

Pursuant to Schmidgall’s challenge of his indictment

on Fifth Amendment self-incrimination grounds, a hearing

was held before a magistrate judge on February 5, 6, and

13, 1991. Testimony was heard from several witnesses, the

most crucial being Agent Schmidt. Upon _ direct

examination, the government had Schmidt explain the

source of each piece of information from his grand jury

testimony regarding Schmidgall. For each fact, Schmidt

testified that the source was wholly independent from any

immunized statement of Schmidgall. However, Schmidt

did admit that he received and “briefly perused” notes of

the January 1988 immunized Schmidgall interview; that

he was unaware of any potential self-incrimination issues;

27

and that a majority of the information he presented to the

grand jury was learned after early February 1988, when he

received the notes of the Schmidgall interview.

On cross examination, Schmidgall’s attorney also

focused on the facts Schmidt presented to the grand jury.

In contrast to the government’s approach, he pointed out

that many of the facts presented by Schmidt were first

divulged to the government in Schmidgall’s January 1988

statement.

After the hearing, the magistrate judge issued a report

and recommendation finding that the government had met

its burden of proving that each piece of information

presented to the grand jury was derived from a source

wholly independent from Schmidgall’s immunized

statements, and that the information was in no way

tainted by the derivative use of immunized testimony. The

district court adopted the report and recommendation, and

denied Schmidgall’s motion to dismiss the indictment. This

appeal followed.

III. The Law and its Application to the Facts

A. Kastigar and Self-Incrimination Law

[1, 2] When the government seeks to prosecute a

witness who previously has given self-incriminating

testimony pursuant to a grant of immunity, serious Fifth

Amendment questions are raised. In Kastigar v. United

States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972),

the Supreme Court held that such a prosecution was

allowable, but the prosecution is prohibited from “using the

compelled testimony in any respect” that would “lead to the

infliction of criminal penalties on the witness.” Kastigar,

406 U.S. at 453, 92 S.Ct. at 1661 (emphasis in original).

The Court rejected the position that once compelled

28

immunized testimony was given, the witness must be

granted full transactional immunity. Therefore, when

presented with a Kastigar challenge, a court’s task is to

determine whether any of the evidence used against the

defendant was in any way derived from his compelled

immunized testimony.® Once a defendant shows that he

has testified under immunity, the prosecution has the

burden of showing that its evidence is not tainted; this is

done by establishing the existence of an independent,

legitimate source for the disputed evidence. Kastigar, 406

U.S. at 460, 92 S.Ct. at 1665.

[3-5] To establish a “wholly independent” source, the

government must demonstrate that each step of the

investigative chain through which the evidence was

obtained is untainted. United States v. Hampton, 775 F.2d

1479, 1489 (11th Cir.1985). This includes an affirmative

showing that none of the evidence presented to the grand

jury was derived directly or indirectly from the immunized

testimony. Id. at 1486. The protection against self-

incrimination is violated whenever the prosecution

presents a witness whose testimony is shaped—directly or

indirectly—by immunized testimony, regardless of how or

by whom the witness was exposed to that testimony.

United States v. North, 920 F.2d 940, 942 (D.C.Cir.1990),

cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477

(1991). Prohibited indirect derivation includes using

immunized testimony to help shape the questioning of

another witness. See Kastigar, 406 U.S. at 460, 92 S.Ct. at

1664-65 (use of compelled testimony as an investigatory

lead or in focusing the investigation on a witness is

5Schmidgall’s testimony was not compelled or granted pursuant to

18 U.S.C. § 6002, the statute involved in Kastigar. However, the Fifth

Amendment standard applies to informal grants of immunity such as

the one at issue in this case. See United States v. Harvey, 869 F.2d 1439,

1450-51 (11th Cir.1989); Rowe v. Griffin, 676 F.2d 524, 527 (11th

Cir.1982).

29

barred). A government agent’s denials that he made use of

the immunized testimony, standing alone, are generally

insufficient to meet the government’s burden, even if made

in good faith. Hampton, 775 F.2d at 1485.

[6, 7] Although the government’s task has been

characterized as a “heavy burden,” it is clear that the

government is required to prove an absence of taint only by

a preponderance of the evidence. United States v. Byrd, 765

F.2d 1524, 1529 (11th Cir.1985). Negation of all abstract

possibility of taint is not necessary. Jd. Further, this

Circuit has adopted the “evidentiary” interpretation of

Kastigar: that the focus of a challenge on self-incrimination

grounds should be on the direct and indirect evidentiary

uses of immunized testimony, rather on non-evidentiary

matters such as the exercise of prosecutorial discretion.

Byrd, 765 F.2d at 1529-31 (disagreeing with United States

v. Semkiw, 712 F.2d 891 (3d Cir.1983), and United States v.

McDaniel, 482 F.2d 305 (8th Cir.1973) ). Finally even if

immunized testimony was in fact used, an indictment or

conviction may be upheld on a finding that the use of such

tainted evidence was harmless beyond a reasonable doubt.

United States v. Byrd, 765 F.2d 1524, 1529 n. 8 (11th

Cir.1985).

B. Application of Law to Facts

[8] 1. Notes of the Schmidgall interview.—

Schmidgall’s most forceful claim is that the government

has failed to prove that Schmidt did not use the notes of

the Schmidgall interview supplied by Ingleby to shape the

questioning of other witnesses, whose testimony in turn

was used by Schmidt in front of the grand jury. The

Kastigar hearing included a line-by-line, item-by-item

examination of Schmidt’s grand jury testimony. However,

in this examination, Schmidt only pointed to his interviews

with witnesses other than Schmidgall; he did not show that

30

the questioning of these witnesses was not influenced by

the notes of the Schmidgall interview.

Schmidt did testify that he merely “perused” the notes

upon receiving them in February 1988, garnering no

substantive information from them, and thereafter never

retrieved the notes from his files. The magistrate judge

accepted this testimony, noting that it was corroborated by

the fact that “at that time” (presumably February 1988,

when Schmidt received the notes), Schmidt “was not aware

that the Rock Sound incident would be prosecuted in the

Middle District of Florida.” Magis. R & R at 11.

However, the testimony at the Kastigar hearing casts

doubt upon this finding. Schmidt did testify that he did not

review the notes after his initial perusal because it had

been agreed earlier that the smuggling ventures overseen

by Fabio Ochoa, of which Rock Sound was one, would be

charged in the Southern District of Florida. On cross-

examination, however, Schmidt stated that it was after the

Wood interviews of April 1988 that it was decided to assign

responsibility to the Southern District of Florida. Schmidt

stated: “It was after the Wood debriefings. It was probably

in May or even after May of ’88; early summer, I'm pretty

sure it was.” Kastigar Hearing, Feb. 13, 1991, at 13. There

have been no findings of fact in the district court as to the

precise time a decision was made to turn over to the

Southern District of Florida the relevant prosecution.® If

the decision to prosecute the matter in the Southern

District was not made until May or June of 1988, then this

fact cannot corroborate Schmidt’s testimony that he had no

interest in the Rock Sound episode or in Schmidgall as of

the time he conducted the Wood interviews in April 1988.

6We decline to read into the magistrate judge’s opinion an implied

- finding that such decision had been made by February 1988 in light of

the very specific testimony of Schmidt on cross-examination that it was

after the April 1988 interviews of Wood.

31

Moreover, our review of the current record reveals no other

corroboration.

The government must demonstrate that its

questioning of Wood during the April 1988 interviews was

not derived from immunized testimony, and the

uncorroborated testimony of Schmidt would not generally

be sufficient to carry the burden. Thus, the government

must point to some other evidence to corroborate Schmidt’s

position that he did not utilize the notes of the immunized

Schmidgall testimony in his April 1988 questioning of

Wood. It is clear, of course, that Schmidt did have access to

those notes at that time. Moreover, in the April 1988

interviews Wood apparently did testify concerning matters

that had been first revealed to the government during the

previous immunized Schmidgall interview.’ Based on the

record as it currently stands, we are unable to sustain the

finding that the government met its burden of proving that

Schmidt did not use the notes of the immunized

Schmidgall interview to shape his questioning of Wood in

April 1988.

[9] The record does provide partial corroboration for

Schmidt’s testimony. During the period of time that

Schmidt thought the Rock Sound matter would be

prosecuted in the Southern District of Florida—i.e., from

May or June of 1988 until the fall of 1989, when

prosecution was turned back over to the Middle District of

Florida—it does make sense that Schmidt’s interest in

Rock Sound and Schmidgall would be diminished.

7At the Kastigar hearing, the government did not attempt to

demonstrate that its questions to Wood in April 1988 were not derived

from the prior immunized testimony. The record on appeal contains only

summaries of the interviews with Wood and thus does not reveal the

precise questions that were asked.

32

However, we find no evidence corroborating Schmidt’s

diminished interest either before that time or after.®

2. Continued contact with other agents.—

Schmidgall’s second allegation of taint involves Schmidt’s

continuing contact with other investigators who were

directly or indirectly exposed to immunized testimony. He

claims that these investigators may have discussed with

Schmidt matters they first learned from protected

testimony, and that Schmidt later used this information to

shape his further investigation. Therefore, Schmidgall

claims, Schmidt’s “fund of information” was _ tainted,

leading to the derivative use if immunized testimony.

The magistrate judge found that Schmidt testified

convincingly that he relied upon wholly independent

sources during his investigation, and that there was no

evidence to support Schmidgall’s contention of taint. As we

have explained, Schmidt was able to identify sources other

than immunized statements for his grand jury evidence at

the Kastigar hearing. However, the government made no

showing that the questioning of these other sources was in

no way influenced by immunized testimony. The burden of

proof remains with the government; the defendant is not

required to present evidence that the grand jury testimony

was in fact tainted. As with the allegation regarding the

Schmidgall notes, the record is insufficient to support a

finding of absence of taint.

8Schmidgall also claims that the government impermissibly used

the immunized testimony to corroborate Wood’s information—that is, to

assure itself that Wood was telling the truth. It is alleged that this type

of mere corroboration violates Kastigar. See United States v. Carpenter,

611 F.Supp. 768, 779-80 (N.D.Ga.1985). We do not agree. Carpenter

apparently adopted the type of “non-evidentiary” interpretation of

Kastigar that subsequently was disapproved by this court in United

States v. Byrd, 765 F.2d at 1529-31. This argument of Schmidgall fails

because it does not focus on the source of the evidence actually used to

obtain the indictment.

33

[10] For the foregoing reasons, we conclude that the

judgment of the district court must be vacated and the case

remanded for further proceedings. As we have observed, in

general a government agent’s bare denials that he used the

immunized testimony are insufficient to meet the

government’s burden. United States v. Hampton, 775 F.2d

1479, 1485 (11th Cir.1985). Considering the explanatory

nature of Agent Schmidt’s testimony, this case is not a

“bare denial” case, however. And, the government is not

required to negate every possibility of taint. United States

v. Byrd, 765 F.2d 1524, 1529 (11th Cir.1985). The

government’s burden of proof is by a preponderance of the

evidence. Jd. Nothing in this opinion is intended to imply

that the government must produce more than a

government agent; for example, an agent’s testimony can

be sufficient when it is adequately supported by (that is,

consistent with) the facts and circumstances of the

particular case. But in the case before us, some confusion

in the record concerns us, especially confusion arising from

the inconsistent evidence about the period in which the

Southern District was responsible for prosecuting the Rock

Sound matter, thus leaving little evidence in the present

record to establish for that period of time anything more

than Agent Schmidt’s mere denial.

C. Further Proceedings

Due to our holding that the government has not

carried its burden of proving that Schmidt did not use the

notes of the January Schmidgall interview to shape his

questioning of Wood or other witnesses, nor of proving that

Schmidt did not obtain and use tainted information from

other agents, we are unable to sustain the finding that

Schmidt’s grand jury testimony was not tainted within the

meaning of Kastigar. We therefore vacate and remand this

case. See United States v. Harvey, 869 F.2d 1439, 1445

(11th Cir.1989); United States v. North, 910 F.2d 843, 872-

34

73 (D.C.Cir.1990); cf. United States v. Hampton, 775 F.2d

1479, 1491 n. 54 (11th Cir.1985) (declining to remand after

reversing the district court’s finding of no taint, “[gliven the

peculiar circumstances of this case”). On remand, if the

prosecution is to continue, the district court must inquire

whether Schmidt’s questioning of witnesses was in any

way shaped by his exposure—through the Clark notes or

contacts with other agents—to Schmidgall’s immunized

statement of January 26, 1988.9 If the government is

unable to disprove taint by a preponderance of the

evidence, the court must then determine if any tainted

evidence was actually used by Schmidt during his grand

jury testimony. See United States v. Byrd, 765 F.2d 1524,

1530-31 (11th Cir.1985). Finally, if tainted evidence was

presented to the grand jury, the district court must

consider whether its use was harmless beyond a

reasonable doubt.’ Jd. at 1529 n. 8.

°Of course, the government must prove a lack of taint from the

second Schmidgall statement of December 5, 1988 as to any evidence

gathered after that date and used by Schmidt during grand jury

proceedings.

10Judge Kravitch suggests that this case should be remanded only

for the limited purpose of a harmless error analysis because the

government has been given every opportunity to disprove taint. Of all

the Kastigar cases in courts of appeals, only a handful are outright

reversals with directions to dismiss the indictment or reverse the

conviction without allowing further proceedings. See, e.g., United States

v. Hampton, 775 F.2d 1479 (11th Cir.1985); United States v. Poindexter,

951 F.2d 369 (D.C.Cir.1991); United States v. Palumbo, 897 F.2d 245

(7th Cir.1990). In every case ordering outright reversal, the opinion

indicated that there was a clear use of immunized testimony and that

further proceedings would be futile. This type of circumstance does not

apply in the instant case. The question of whether the government

carried its burden of showing lack of taint is close, e.g. hinging upon

inconsistent evidence about the period of time for which the Southern

District was responsible for prosecuting the Rock Sound matter. As we

note in the body of the opinion, there are several viable issues that the

district court must address: the existence of taint, whether such tainted

(Footnote continued on next page)

35

[11] Schmidgall alleges that agents seeking to avoid

a Kastigar violation must either rely solely upon

information obtained before the immunized statement was

given or adopt procedures to ensure that there is not any

use of the immunized statement or evidence derived

therefrom. Because Agent Schmidt did neither, Schmidgall

claims that the inevitable result was a Kastigar violation.

If this argument is accepted, a remand clearly would be

futile.

In support of this contention, Schmidgall cites this

court’s opinion in United States v. Hampton. Hampton does

state that when the government uses information that was

gathered after an immunized statement was given, the

government as a practical matter usually must show 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

prosecuting officials. Hampton, 775 F.2d at 1490. Because

the relevant authorities in this case were not aware of a

potential Kastigar problem until sometime in 1990,

Schmidgall claims that the resulting failure to insulate the

immunized testimony presents a per se case of taint.

We do not interpret Hampton as laying down such an

inflexible rule. That case involved widespread circulation of

immunized testimony over a long period of time; the court

noted that it was practically impossible for the government

to trace each piece of information to an independent source.

Hampton, 775 F.2d at 1490. Faced with a situation such as

that in Hampton, the government is forced to rely either on

information obtained before the immunized statement or

on a reliable insulating procedure. Here, however, we have

(Footnote continued from previous page)

evidence was used by Schmidt before the grand jury, and whether any

such use was harmless. Obviously, if the government does not think that

the required proof can be made, the proceedings will be dropped.

36

a much closer case. The amount of information contained

in the immunized statement and its circulation were not so

widespread as to make the government’s burden of tracing

“virtually insurmountable,” Hampton, 775 F.2d at 1490.

Indeed, Schmidgall’s counsel admitted at oral argument

that it was possible the evidence used before the grand jury

was untainted (although he strenuously argued that the

government had failed to prove this). We therefore find

that Hampton—from which this case is distinguishable—

did not establish a per se rule of taint.

CONSIDERATION OF PAROLE

DURING SENTENCING

[12] Schmidgall was sentenced to concurrent six-

year terms on the two counts to which he pleaded guilty.

This sentence was, on its face, longer than that imposed

upon co-conspirators. However, the court noted that the co-

conspirators were sentenced under the United States

Sentencing Guidelines and would serve the full terms of

their sentences (with a small allowance for good behavior),

whereas Schmidgall was sentenced under pre-Guidelines

law and would be eligible for parole. Taking this difference

into account, the court termed any apparent disparity in

sentencing “illusory.” Schmidgall claims that the court

made a “groundless inference” that Schmidgall would be

paroled, necessitating resentencing.

[13, 14] We find Schmidgall’s claim without merit.

The six-year sentence is well below the applicable

statutory maximum of twenty years. See 21 U.S.C. §§ 841,

960 (as in effect at the time of the offense). A sentence

within the statutory limits will not be questioned on appeal

absent a “showing of arbitrary or capricious action

amounting to a gross abuse of discretion.” United States v.

Giltner, 972 F.2d 1563, 1564 (11th Cir.1992), cert. denied,

___ U.S. ___, 113 S.Ct. 2383, 124 L.Ed.2d 286 (1993). A

37

defendant may not be sentenced based on groundless

inferences. United States v. Lopez, 898 F.2d 1505, 1512

(11th Cir.1990).

Schmidgall claims that the “groundless inference” in

the present case is that he will in fact be paroled. A review

of the transcript of the sentencing hearing reveals that the

district court based its decision on the undisputed fact that

the sentence will be parolable, along with the assumption

that parole may in fact be granted. This is not the type of

groundless inference that a sentencing court is prohibited

from making. The Seventh Circuit has held that a

sentencing court may consider the availability of parole.

United States v. Plain, 856 F.2d 913, 918 (7th Cir. 1988);

United States v. Neyens, 831 F.2d 156, 162 (7th Cir.1987).

Schmidgall proposes no compelling reason for differing

from the Seventh Circuit’s holdings. We find that the

sentencing court did not abuse its discretion.

CONCLUSION

On the record before us, we are unable to agree that

the United States met its burden of proving by a

preponderance of the evidence that none of Schmidgall’s

immunized testimony was used in obtaining the

indictment against him. We therefore vacate the district

courts holding and remand for future proceedings

consistent with this opinion. Provided the government

carries its burden, we find no error in the imposition of the

sentence.

VACATED AND REMANDED.

KRAVITCH, Circuit Judge, concurring in part and

dissenting in part:

38

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 United States v. North,

910 F.2d 843 (D.C.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 akin 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

39

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.

40

0) Oe ee SON re Pe ae TF eg et ee OL ee ee. ee me Ae

[FILED JAN 13 1992]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CR90-PT-261-S

NORTHERN DISTRICT OF ALABAMA

UNITED STATES OF AMERICA,

Plantiff,

Vv.

CHRISTIAN SCHMIDGALL,

Defendant.

MEMORANDUM OPINION

This cause comes on to be heard on what has

apparently become universally known as a Kastigar

hearing.’ The Kastigar case involved the claim of the

defendant that the grant of “use” immunity pursuant to 18

U.S.C. § 6002 was not co-extensive with the scope of the

Fifth Amendment privilege against compulsory self-

incrimination. In the course of determining that the

statute is constitutional and that its provision for use and

derivative-use immunity is coextensive with and suffices to

supplant the Fifth Amendment privilege, the Court

enunciated the type protection to which a defendant who

has been granted “use” immunity is entitled.’

1Kastigar v. United States, 406 U.S. 441 (1972).

*Barlier, these hearings could have been called “Counselman”

hearings. Counselman v. Hitchcock, 142 U.S.547 (1892), established the

principle that a witness compelled to give testimony under immunity

must be protected “from future prosecution based on knowledge and

sources of information obtained from the compelled testimony.” Jd. at

(Footnote continued on next page)

41

Although this case involves neither 18 U.S.C. § 6002

nor compelled testimony, the Government appears to

acknowledge that, if immunity was promised, at least use

immunity must be given.’ It is thus appropriate to list

some of the principles which can be gleaned from Kastigar.

The court will assume that the principles apply to

promised or equitable immunity as well as immunity

which is specifically granted pursuant to 18 U.S.C. § 6002.

These principles include:

The privilege has never been construed to mean

that one who invokes it cannot subsequently be

prosecuted. Its sole concern is to afford protection

against being “forced to give testimony leading to

the infliction of ‘penalties affixed to. . . criminal

acts.” Immunity from the use of compelled

testimony, as well as evidence derived directly

and indirectly therefrom, affords this protection.

It prohibits the prosecutorial authorities from

using the compelled testimony in any respect,

and it therefore insures that the testimony

cannot lead to the infliction of criminal penalties

on the witness.

(Footnote continued from previous page)

437. In dictum, Counselman suggested, perhaps more broadly than

intended, that “transactional” immunity must be given to compel

testimony. It was this suggested principle which Kastigar rejected.

3’The Government has conceded that the defendant here is entitled

to use and derivative-use immunity for his Miami (Jan. 26, 1988)

statement(s). It also agreed that he is entitled to use, but not use-

derivative immunity, for his Birmingham (December 5, 1988)

statement(s). The Government takes the position that the December 5,

1988 statements are governed only by Rule 11 of the Federal Rules of

Criminal Procedure. Any protection to which the defendant may be

entitled may fall under the 5th and 14th Amendment due process

provisions as well as the self-incrimination provision.

42

Id., at 441 (emphasis in original).

But both the reasoning of the court in Murphy

and the result reached compel the conclusion that

use and_ derivative-use immunity is

constitutionally sufficient to compel testimony

over a claim of the privilege. . . . As the Murphy

Court noted, immunity from use and derivative

use “leaves the witness and the Federal

Government in substantially the same position as

if the witness had claimed his privilege” in the

absence of a grant of immunity.

Id., at 458-59.

In rejecting the defendant’s argument that the use and

use-derivative prohibition would be impossible to enforce,

the Court stated,

This total prohibition on use provides a

comprehensive safeguard, barring the use of

compelled testimony as an “investigatory lead,”

and also barring the use of any evidence obtained

by focusing investigation on a witness as a result

of his compelled disclosures.

A person accorded this immunity under 18 U.S.C.

§ 6002, and subsequently prosecuted, is not

dependent for the preservation of his rights upon

the integrity and good faith of the prosecuting

authorities. As stated in Murphy:

Once a defendant demonstrates that he

has testified, under a state grant of

immunity, to matters related to the

federal prosecution, the federal

authorities have the burden of showing

43

that their evidence is not tainted by

establishing that they had an

independent, legitimate source for the

disputed evidence.” (Emphasis added).

378 U.S. at 79 n. 18.

This burden of proof, which we reaffirm as

appropriate, is not limited to a negation of taint;

rather, it imposes on the prosecution the

affirmative duty to prove that the evidence it

proposes to use is derived from a legitimate

source wholly independent of the compelled

testimony. (Emphasis added).

Id., at 460.

The statute, like the Fifth Amendment, grants

neither pardon nor amnesty. Both the statute

and the Fifth Amendment allow the government

to prosecute using evidence from legitimate

independent sources. (Emphasis added).

Id., at 461.

One raising a claim under this statute need only

show that he testified under a grant of immunity

in order to shift to the government the heavy

burden of proving that all of the evidence it

proposes to use was derived from legitimate

independent sources. (Emphasis added).

Id., at 461-62.

We conclude that the immunity provided by 18

U.S.C. § 6002 leaves the witness and the

prosecutorial authorities in substantially the

same position as if the witness had claimed the

44

Fifth Amendment privilege. The immunity

therefore is coextensive with the privilege and

suffices to supplant it. The judgment of the Court

of Appeals for the Ninth Circuit accordingly is

Affirmed.

Id., at 462.

Kastigar establishes that the real issue here, as to any

statements arguably obtained on promise of immunity, is

whether the Government has met its burden of showing

that its evidence presented to the grand jury is not tainted.

It can do this only by meeting its affirmative duty to prove

that the evidence it has used (and proposes to use) was

derived from a legitimate source wholly independent of the

statements of the defendant given pursuant to a promise of

immunity. The key word is “use.” The precluded use would

include not only use of the statements but also its use as an

investigatory lead which leads to other evidence against

the defendant or in a manner which causes it to focus its

investigation on the defendant. Kastigar does not suggest

that law enforcement officers or prosecutors who receive

the statements, directly or indirectly, somehow become so

individually “tainted” that they cannot stay involved if

they restrict the use of immunized statements. To the

contrary, in rejecting the defendant’s argument that the

prohibition on use cannot be enforced, the Court implicitly

rejected such a position.*

“The Court paraphrased Kastigar’s argument as follows: It

will be difficult and perhaps impossible, the argument goes,

to identify, by testimony or cross-examination, the subtle

ways in which the compelled testimony may disadvantage a

witness, especially in the jurisdiction granting the

immunity.

Id., at 459.

Since the defendant here relies significantly on U. S. v.

Hampton, 775 F.2d 1479 (11th Cir. 1985), the court will

quote selected portions of that opinion.

Pursuant to the subpoena, Mr. Hampton testified

before the grand jury on November 5, 1979.

Under Florida law, since this testimony was

given pursuant to a subpoena, it resulted in

automatic transactional immunity from state

prosecution. See § 914.04, Florida Statutes.

Id., at 1480.

On June 23, 1981, the Lee County Grand Jury

transcripts, including transcripts of Hampton’s

immunized grand jury testimony, were turned

over to a federal grand jury in Orlando as part of

the ongoing federal investigation. Thereafter, the

state materials were accessible to numerous

federal attorneys and agents, including IRS

Agent Thomas Altif, and were used as a basis for

further investigation by federal authorities. In

addition, federal authorities were briefed by state

investigators on several occasions as to the

information collected during the _ state

investigation. State investigators discussing the

case with federal agents did not inform the

federal agents that the state investigation and

portions of the materials transferred included

immunized testimony, nor did they attempt to

separate immunized testimony and its fruits from

other information in briefing federal officials.

46

Consequently, as they reviewed the information

and materials conveyed by state officials and

used them as a basis for further investigation, the

federal authorities were unaware that portions of

the state materials included immunized

testimony, and that some of the other evidence

and information conveyed by state officials may

have been derived therefrom.

Id., at 1480-81.

While Mr. Christopher [Assistant U.S. Attorney]

denied having read any transcript or listened to

any tape of immunized testimony, he

acknowledged that Ms. Pilleggi may have.

Moreover, Mr. Christopher admitted that in

preparing his own interrogations of the various

grand jury witnesses, he relied heavily upon case

summaries and outlines prepared by the federal

investigative agents, who admittedly had access

to the state investigative files, presumably

including the immunized testimony contained

therein, and who had admittedly consulted with

state investigative officials about the case, all

without any cognizance of the fact that some of

the materials and information conveyed by state

officials may have been derived directly or

indirectly from Hampton’s immunized testimony.

The record further indicates that the federal

agents assisted in the preparation and issuances

of subpoenas to various grand jury witnesses, and

that in doing so the agents relied upon

information gleaned from the state investigative

files.

47

Id., at 1481.

AUSA Robert Powell denied having ever read

Hampton’s immunized statements or having

personally developed any leads from them.

However, Mr. Powell admitted that he relied

throughout the investigation upon investigative

summaries prepared by state officials and upon

briefings by Agent Altif and Special Deputy Barr,

each of whom admittedly had access to the

immunized materials and other information

collected by the state after the immunized

testimony was given. Powell also conceded that

the federal agents upon whom he relied had

received the state materials and used them to

work up leads in the case some two years before

the agents became aware that there were

immunity problems with some of the state

information.

Id., at 1483.

(The court goes on to mention other prosecutors

agents who had used various immunized statements

summaries related thereto.)

Thus, even though the Murphy court held that a

federal prosecution was not automatically barred

by a state grant of transactional immunity, it

emphasized that the burden lay on the federal

authorities to show “that their evidence is not

tainted by establishing that they had an

independent, legitimate source for the disputed

evidence.” Id., at 79 n. 18, 84 S.Ct. at 1609 n. 18.

Thus, in the case at hand, in order to sustain

Hampton’s indictment, the government had the

48

burden of establishing that all of the evidence

presented to the grand jury (and ultimately all of

the evidence to be utilized at trial) was derived

from _ legitimate, independent sources... .

Although Kastigar notes that this is a “heavy”

burden in practical terms, 406 U.S. at 461,

92 S.Ct. at 1665, subsequent cases controlling in

this circuit have made it clear that, in legal

terms, the government is only required “to

demonstrate by a preponderance of the evidence

an independent source for all evidence

introduced.”

Id., at 1485.

The Kastigar decision itself emphasized that a

previously immunized defendant “is not

dependent for the preservation of his rights upon

the integrity and good faith of prosecuting

authorities.” 406 U.S. at 460. Moreover, the

government’s burden is not limited to such

“negation of taint”; rather, the government must

go further and affirmatively prove legitimate

independent sources for its evidence and |

affirmatively establish that none of the evidence

presented to the grand jury was derived directly

or indirectly from the immunized testimony.

(Emphasis added).

Id., at 1485-86.

A review of the state investigators’ summaries of

Hampton’s unimmunized statements, which

constitute the only evidence available on this

record of the contents of those statements, shows

that several important matters and details

discussed in the immunized testimony of

49

November 5, 1979, and May 15, 1980, are not

reflected in the statements from the preceding

March.

These are just a few examples of the new

information contained in the immunized

testimony which may have furthered the state

and the federal investigation.

Id., at 1486.

Therefore, unless other legitimate, independent

sources for all of the evidence presented to the

indicting grand jury were established on the

record, Hampton’s motion to dismiss the

indictment should have been granted.

Since the federal authorities admittedly relied

upon the state materials both to further the

federal investigation and in presenting the facts

to the indicting grand jury, it was incumbent

upon the appellee in this case to demonstrate not

only that Hampton’s immunized testimony was

not used by federal officials either directly or as

an investigatory lead, but that any other

information or materials conveyed by state

officials and utilized either directly or indirectly

by federal officials was not derived in whole or in

part, directly or indirectly, from Hampton’s

immunized testimony.

50

Id., at 1487.

Where the testimony of an immunized witness

enables the government to build a case against

his co-conspirator, who consequently strikes a

plea bargain with prosecutors and agrees to

testify against the immunized witness, the

testimony of the co-conspirator must be deemed

to have been indirectly derived from the

testimony of the immunized witness in violation

of Kastigar.

Id., at 1488.

Kastigar and its progeny require dismissal of an

indictment of a previously immunized witness

unless the government can demonstrate that

“none of the evidence presented to the grand jury

is derived, directly or indirectly, from the

immunized testimony. . . . (Emphasis added).

Id., at 1489.

Neither speculation nor conclusory denials of use

or derivative use by government officials will

substitute for the affirmative showing of an

independent source required for each and every

item of evidence presented to the indicting grand

jury. Each step of the investigative chain by

which the evidence presented was obtained must

be documented and accounted for. The prosecutor

who obtained the indictment may never have

seen the immunized testimony and may believe

in good faith that no one associated with the

federal prosecution has utilized it but that is not

enough. Such a disclaimer does not preclude the

possibility that someone who has seen the

51

Se ee ee ~~.

ew oer R., ; ,

—_— Se

—_——_

compelled testimony was thereby led to evidence

that was furnished to federal investigators.”

Id., at 1489-1490.

Unless the government relies solely upon

evidence obtained prior to the immunized

testimony, cf. United States v. Byrd, supra, 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. In the case at

hand, no such showing was made, and the

government’s burden of affirmatively proving

independent sources therefore appears to have

been virtually insurmountable. (Emphasis

added).

Id., at 1490.

Defendant also significantly relies upon U.S. uv.

Harvey, 869 F.2d 1439 (11th Cir. 1989). This court will not

quote from Harvey the general principles already quoted

from Kastigar and Hampton, but will quote only additional

principles enunciated in Harvey and some of the

circumstances related thereto.

The magistrate did not allow the government to

show that it had derived the evidence it

presented to the grand jury—or that it intended

to introduce at _ trial—from legitimate

independent sources.

* * *

52

Even though she had refused the government the

opportunity to demonstrate that the evidence

against Harvey came from a source independent

of the immunized testimony, the magistrate

concluded that the evidence presented to the

grand jury was “tainted.”

* * *

Informal grants of immunity are by their very

nature less certain than formal grants, and thus

are much more likely to create confusion for the

government and for the courts in the future. As

long as prosecutors continue the practice of

unwritten grants of immunity, they open the door

for subsequent litigation such as this, and for

adverse decisions as well. (Emphasis added).

Id., at 1443.

Although federal law no longer provides for

formal statutory grants of transactional

immunity, a prosecutor may, as in this case,

informally grant transactional immunity to a

witness in return for his cooperation in a criminal

case. Similarly, although 18 U.S.C. §§ 6002-6003

provide for court-supervised grants of use

immunity, prosecutors may extend such

immunity informally as well. .. .

[W]e apply the same rules and method of analysis

to an informal grant of use or transactional

immunity as we would to a formal grant... .

In contrast to transactional immunity, use

immunity does not prohibit the government from

prosecuting the witness for crimes about which

53

he testified, provided the government proves that

it has other evidence to support the prosecution

that “is derived from a legitimate source wholly

independent of the compelled testimony.”

Id., at 1444.

The government contends that it derived the

evidence it used to secure Harvey’s indictment by

the grand jury and the evidence it intended to use

at trial from an independent source. In essence,

the government claims that while investigating

someone else the Criminal Tax Division of the

Justice Department came upon a trail of evidence

that led to Harvey’s bank account in the Cayman

Islands.

For the same reason, any conclusion that tainted

evidence sufficient to justify dismissing the

indictment was presented to the grand jury was

also premature because the government may

have been able to demonstrate that the evidence

was not tainted at all. (Emphasis added).

Id., at 1145.

Defendant also cites U. S. v. Carpenter, 611 F.Supp.

768 (N.D. Ga. 1985). Pertinent quotes from that case

follow.

In divining the terms of the government’s

promise of immunity, the court is guided by the

principle that “any ambiguity over the terms of

such a promise should be resolved in favor of the

criminal defendant.” Rowe, 676 F.2d at 526 n. 4.

54

See also United States v. Quatermain, 613

F.2d 38, 46-47 (3rd Cir.1980) (Aldisert, J.

Dissenting). Moreover, it is clear that any

evidence of guilt induced by an equitable grant of

immunity, although not compelled by court order

as in the case of testimony given pursuant to the

federal use immunity statute, is “coerced”

testimony for fifth amendment purposes.

Id., at 776.

There is no reason to impose any requirement

that is less stringent than that set out in Kastigar

simply because the grant of immunity herein at

issue was informal and not pursuant to statute. It

is inappropriate to require Carpenter to show

that he has been “prejudiced” once he has given

compelled testimony pursuant to an immunity

agreement.

Id., at 777.

The government has failed to carry the heavy

burden mandated by Kastigar. The Fifth

Amendment protects an individual who has

provided immunized information form having

that information used against him “in any

respect.” Kastigar v. United States, 406 U.S. at

453, 92 S.Ct. at 1661 (emphasis in the original).

The mere existence of a so-called “independent”

source for the government’s evidence does not end

the inquiry; the source must be “wholly”

independent. id. at 406, 92 S.Ct. at 1665. Thus, if

the information developed from the so-called

“independent” source was obtained even

indirectly as a result of “focusing” the inquiry

made to that source, then there has been

55

derivative use of the immunized information in

violation of the defendant’s fifth amendment

rights.

Another indirect use proscribed by Kastigar is

the fact that immunized information may confirm

what the government already knows. United

States v. Dornau, 359 F.Supp. 684, 687 (S.D.N.Y.

1973), notes that even though the government

may have already known everything which the

immunized witness provided, the mere fact that

the immunized witness corroborated previous

information and assured the government that its

case was “complete,” was a type of indirect use

from immunized information which the

government would not have otherwise enjoyed.°

While the government’s identification of Larson,

Davidson and Kincaid as potential witnesses may

not be easily traced to Carpenter’s immunized

information, the government cannot say with the

same assurance that the questioning of these

witnesses, at least as it related to Carpenter, was

not “focused” by the information which had been

provided by Carpenter. Trial attorney Abbott has

admitted that when he questioned Larson,

Davidson and Kincaid, he already knew from the

immunized information that Carpenter had given

in East St. Louis that Carpenter had been

involved in the making of bonds for various

Company individuals, including the bonds that

were made in South Carolina to release Davidson

and Kincaid.

*This court does not glean such a holding in Kastigar.

56

se es ee

Id., at 779-80.

Knowing precisely the defendant’s explanation of

what happened is of invaluable assistance in

focusing the investigation, deciding what

questions to ask witnesses, determining what

plea bargain to offer, interpreting evidence,

planning cross examination, and otherwise

generally planning trial strategy.

Id., at 779.

The mere fact that the immunized witness

corroborated previous information and assured

the government that its case was “complete” was

a type of indirect use from immunized

information which the government would not

have otherwise enjoyed.®

Id., at 779.

Pertinent quotes from Rowe v. Griffin, 676 F.2d 524

(11th Cir. 1982), follow. The case has particular pertinence

with regard to the possible ambiguity appertaining to the

December 5, 1988 conference.

Ambiguity over the terms of such a promise

should be resolved in favor of the criminal

defendant. The District Court found, and we

agree, that at the time Rowe gave information to

the state officials he had a reasonable expectation

that he would be immune from prosecution. If the

promise is binding on the state, it is binding

according to those terms. (Emphasis added).

®This court does not glean such a holding in Kastigar.

57

Id., at 526 n. 4.

We note that, under the self-incrimination clause

of the fifth amendment, evidence of guilt induced

by a government promise of immunity is

“coerced” evidence and may not be used against

the accused.

Id., at 527.

The question which this court must answer are the

following:

1. In obtaining the indictment, did the Government

use, directly or derivatively, any of the information

provided to the Government by defendant Christian

Schmidgall on January 26, 1988 in Miami?

2. Was defendant Christian Schmidgall’s information

which he supplied to the Government on December 5, 1988

so supplied under promise of use immunity?

3. If the answer to 2 is “yes,” the court must answer

the same question as to the December 5, 1988 information

as is posed in 1 above with reference to the January 26,

1988 information.

Of course, as to the December 5, 1988 information, the

Government concedes that, in any event, pursuant to

Rule 11 of the Federal Rules of Criminal Procedure, it

could not have appropriately used the statements of the

defendant in obtaining the indictment. It does not concede

that the defendant is entitled to derivative use exclusion on

said basis.

After considering the cited n. 4 in Rowe, supra, and the

admonition at page 1443 of Harvey, and the evidence at the

58

hearing, this court concludes that the defendant, who was

not represented by counsel at the December 5, 1988

meeting, is also entitled to equitable use immunity with

regard to his statements made at the December 5, 1988

meeting. In view of all the circumstances, including what

had occurred in Miami in January 1988, this court cannot

conclude, from a preponderance of the evidence, that

defendant could not have reasonably felt that he was in the

same status with reference to the December 5, 1988

meeting.

While Schmidgall was advised that statement

wouldn’t be used against him, there is no clear evidence

that he was sufficiently advised with reference to “use

derivative” concerns or that he could have clearly

understood or should have understood that the conference

was different from thai in Miami. The fact that he was

denied “absolution” does not mean that he should have

understood that he was denied use derivative immunity.

The court cannot find, from a preponderance of the

evidence, that Schmidgall was given transactional

immunity at any stage.

The difference between use of statements and use

immunity could well be ambiguous to an unrepresented

person. It is not asking too much for the Government,

when seeking Rule 11 “proffers,” to have a taped oral

agreement or signed written agreement which clearly

reflects the understanding. To fail to do so “open[s] the door

for subsequent litigation such as this, and for adverse

decisions as well.” Harvey, at 1443.’

7This court is not unmindful of U.S. v. Rutkowski, 814 F.2d 594

(11th Cir. 1987), and U.S. v. Cusack, 827 F.2d 696 (11th Cir. 1987).

Those cases do not address a situation in which the circumstances could

suggest a promise of use immunity.

59

The court having concluded that defendant is entitled

to both use and derivative use immunity as to the January

and December 1988 meetings, the court must next apply

Kastigar and its progeny to the facts of this case.* At the

hearing, the court requested that the defendant suggest to

the court what, if any evidence was presented to the grand

jury for which the Government did not have a legitimate,

wholly independent source. A summary of defendant’s

suggestions in this regard are as follows:

1. Agent Coram’s use of defendant’s testimony given

at the Birmingham December 1988 interview. US.

8This court can perceive no significant differences between the

January 1988 and December 1988 statements of the defendant.

While the court has concluded that both use and use derivative

immunity attach to the December 1988 statements of the defendant, it

may be a decision without any significance. The court is totally satisfied

that the Government had legitimate sources totally independent of the

December 1988 statements and that those statements neither brought

focus on defendant nor provided investigatory leads which implicate him

other than the possibilities with reference to Purvis and/or Chambliss

hereinafter addressed.

The focus on Schmidgall began with the Wood and Carlson

interviews. There is no indication that anything learned from

Schmidgall caused any change in the investigation of him unless,

somehow, he provided information with regard to Purvis and/or

Chambliss and that the Government took advantage of this information

in pursuing Chambliss and/or Purvis without a prior legitimate,

independent source for pursuing Chambliss and/or Purvis. There is no

question that the Northern District of Alabama offices had initially

undertaken a significant independent investigation of Schmidgall and

others with reference to the West Alabama operation.

It would appear that the primary purpose of the December 1988

meeting was to attempt to plea bargain and, perhaps, obtain evidence

against persons other than defendant. It is not clear that the defendant

was aware of the purpose. The court cannot conclude that Schmidgall

could have reasonably thought he was given transactional immunity in

December 1988. His request to be absolved was clearly rejected. This is

somewhat manifested by his decision to abort the interview.

60

Customs Agent Coram was present when defendant was

interviewed in the Northern District of Alabama in 1988.

Coram was also a witness before the grand jury which

indicted Schmidgall in 1990. Coram had been told not to

use defendant’s statements made at the 1988 interview or

any other non-independent sources in his testimony before

the grand jury; however, he was not given this warning

until immediately before appearing before the grand jury.

Therefore, defendant claims that Coram used defendant’s

statements in preparing his grand jury testimony and in

interviewing other witnesses. Specifically, defendant

claims:

a. Coram stated he used his notes in preparing his

grand jury testimony without indicating whether he could

or did separate defendant's remarks made at the

Birmingham interview. Therefore, defendant’s statement

was part of the “fund” of information which Coram used in

preparing his grand jury testimony.

b. Coram used defendant’s statements. in

questioning other witnesses in preparation for the grand

jury testimony in violation of Kastigar. The defense

concludes that Coram used defendant’s statement in

questioning these witnesses since he covered the same

topics in his interview with defendant.

2. Agent Coram and AUSA McLean’s use of

defendant’s testimony given at the January, 1988 Miami

interview. Defendant claims that the agents present at the

January 1988, Miami meeting failed to segregate the

immunized testimony presented at that interview from

Agent Coram and McLean, the assistant United States

attorney in the Northern District of Alabama who

presented testimony to the Alabama grand jury.

Consequently, defendant states that Coram and McLean

may have relied on information derived from defendant’s

61

statements at the Miami meeting in preparing the case to

go to the grand jury in the Northern District of Alabama.

Specifically, defendant claims:

a. Lieutenant Hume and Ronald Ingleby of the

S Coast Guard who were present at the Miami meeting,

discussed Schmidgall’s testimony with Coram. Hume and

Ingleby also discussed defendant’s case with Officer Odom,

an officer of the State of Alabama Department of Public

Safety in the Southern District of Alabama. Odom

allegedly worked closely with Coram and McLean in their

investigation of defendant. Therefore, defendant contends

that both McLean and Agent Coram may have used

information derived from their discussions with Hume and

Odor in preparing their case against the grand jury.

b. Officer Ingleby prepared a report of interviews

with Wooe the leader of the smuggling venture for which

defendant is being prosecuted. Ingleby placed the report on

Customs’ database. Ingleby used defendant’s statement

made at the Miami interview in this report to corroborate

Wood’s statement, a derivative use allegedly prohibited by

Kastigar. Ingelby also allegedly used defendant’s

statement to lead Woods to believe that defendant was

cooperating with the government, another derivative use

allegedly prohibited by Kastigar. Coram obtained a copy of

Ingleby’s report. Therefore, defendant contends that the

information in the report which was indirectly derived in

violation of Kastigar reached Coram and Coram may have

used it in preparing his grand jury testimony.

c. Customs Officer Schmidt, who was not present

at the Miami interview, was also involved in investigating

the Wood organization’s drug smuggling incident. Schmidt

reviewed the notes of the Miami meeting. He allegedly

communicated frequently with AUSA McLean. Defendant

therefore claims that Schmidt would most likely have

62

ee

passed on information he derived from his notes and of the

Miami interview to McLean. In turn, defendant claims

Coram and McLean may have used this information in

preparing their grand jury testimony.

In summary, defendant contends that McLean and

Coram may have used information which was indirectly

derived from defendant’s Miami and Birmingham

statements in preparing their grand jury testimony.

Prior to either of the 1988 meetings with defendant

Schmidgall, the Government had learned of incriminating

evidence against him. This evidence grew out of a multi-

state investigation of William Wood and the drug venture

led by him. David Carlson was interviewed in November

1987, at which time he told Agent Schmidt of a former

airline pilot named Chris who, in December 1985, flew to

Alabama with Carlson bringing equipment to monitor

radio frequencies. Schmidgall had discussed with Carlson

the significance of the equipment which was set up at a

ranch in a west Alabama county.

In a November 19, 1987 interview, Wood advised

agent(s) of Schmidgall’s involvement in the December 1985

West Alabama incident. Wood advised the agent(s) of

Schmidgall’s operation of equipment to monitor customs,

and perhaps other law enforcement frequencies. Wood tied

the use of the equipment to the transporting of cocaine to a

West Alabama airstrip.

On December 29, 1987, agent(s) interviewed Howard

Carrell. Carrell also gave information concerning the West

Alabama operation(s) and identified Schmidgall as a radio

operator.

Wood was again interviewed on January 12, 1988 and

reiterated Schmidgall’s monitoring of radios and staying in

63

contact with Wood as he flew in. The various witnesses

discussed above had also, prior to January 26, 1988, given

statements involving Schmidgall in other drug ventures in

Florida. Schmidgall’s January 26, 1988 statement did

confirm the foregoing. Some of his December 1988

Birmingham statements did the same.

The issue to be decided by this court is whether the

Government used any of the information given by

Schmidgall in obtaining the subject indictment. Prior to

the grand jury hearing, the Government was aware of the

possibility that the defendant would seek to claim a

Kastigar violation. In view of this, the Government

instructed Coram, the only grand jury witness who

testified with reference to Schmidgall, to restrict his

testimony to matters learned from witnesses independent

of any statements of Schmidgall.

The court is satisfied that the Government has met its

burden of providing by a preponderance of the evidence

that it had independent, legitimate sources which predated

the January 26, 1988 and the December 5, 1988 meetings.

Further, that as to the December 5, 1988 meeting, Coram’s

presence did not somehow taint him or his testimony

before the grand jury. As to the December 5, 1988

statements which Coram was definitely aware of, the

Government followed reliable procedures for segregating

the immunized testimony and its fruits. There is

substantial evident that by December 5, 1988, the only

focus on the defendant had occurred and that no

investigatory leads were developed from that interview. It

is not enough to merely suggest that Coram was somehow

tainted by his mere presence. The very fact that the

°The only possible exception would be if the Northern District of

Alabama authorities first learned of Tony Chambliss and/or Steve

Purvis through one of the meetings (January 1988 or December 1988).

64

meeting was held as a Rule 11 negotiation suggests that

there was already the focus.!°

The court, after considering all the testimony and

exhibits, has determined that Coram’s testimony

concerning Wood was not tainted and that the only

remaining issue is whether Coram’s grand jury testimony

with reference to statements made by Tony Chambless and

Steve Purvis had somehow become tainted by the

defendant’s immune statements. The court concludes that

unless the Chambless and Purvis statements (or the

obtaining of them) is tainted, there has been no Kastigar

violation. The court has earlier called for additional

briefing on this issue but has not significantly reviewed the

evidence in this regard. The court has determined to

request that a Magistrate Judge assist the court in

bringing “focus” on this final issue.

The Magistrate Judge will be requested to review the

evidence and the briefs and to submit to the court a

detailed report and recommendation with regard to the

following:

1. Did defendant Schmidgall provide leads to the

Government!! which led to the non-independent discovery

of Purvis and/or Chambless by Northern District of

Alabama authorities?

10The court’s reference to Rule 11 is not inconsistent with its

conclusion that the December 5, 1988 meeting involved a use derivative

concept. The court does doubt the Government’s testimony that it was

such a meeting. The court just concludes that the purpose could have

been ambiguous to the defendant.

References to the Government are to the prosecutors and agents

involved in the Northern District of Alabama investigation. Information

received by authorities in other districts not made known to the

Northern District authorities and agents will not be considered.

65

2. Did the Government have legitimate, independent

(of defendant’s statements) sources which led to Purvis

and/or Chambless?

3. Were any statements obtained from Purvis and/or

Chambless tainted by any information gathered from

Schmidgall of which the Government had knowledge?

4. In general, was Coram’s testimony with reference

to Purvis and/or Chambless tainted within the context of

Kastigar?

The attorneys for the parties may be given an

opportunity to further address the issue. With regard to

Purvis and/or Chambless, the Magistrate Judge should

consider any lead attributable to Schmidgall (in January

1988 or December 1988) which was not available from

legitimate independent sources. The Magistrate Judge

need not otherwise consider the Schmidgall statements.

This 13 day of January, 1992.

/s/ Robert B. Propst

ROBERT B. PROPST

UNITED STATES DISTRICT JUDGE

66

(FILED 92 FEB 20 PM 3:33]

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Case No. CR 90-PT-261-S

UNITED STATES OF AMERICA

US.

CHRISTIAN SCHMIDGALL

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

On January 13, 1992, the district judge entered his

memorandum opinion in the above-styled cause ruling on

various issues with respect to the defendant’s motion to

dismiss the indictment pursuant to Kastigar v. United

States, 406 U.S. 441 (1972). Four specific issues were

referred to the undersigned magistrate judge for

consideration and for a _ detailed report and

recommendation to the court. Those four issues, as

identified by the district court, are as follows:

1. Did defendant Schmidgall provide leads to the

Government [footnote omitted] which lead to the non-

independent discovery of Purvis and/or Chambless by

Northern District of Alabama authorities?

2. Did the Government have legitimate, independent

(of defendant’s statements) sources which led to Purvis

and/or Chambless?

67

3. Were any statements obtained from Purvis and/or

Chambless tainted by any information gathered from

Schmidgall of which the Government had knowledge?

4. In general, was Coram’s testimony with reference

to Purvis and/or Chambless tainted within the context of

Kastigar?

Furthermore, the Court offered the following instruction to

assist the undersigned in the analysis of these issues:

With regard to Purvis and/or Chambless, the

magistrate judge should consider any lead

attributable to Schmidgall (in January, 1988, or

December, 1988) which was not available from

legitimate independent sources. The magistrate

judge need not otherwise consider the Schmidgall

statements.

In undertaking to answer these questions from the

district court, the magistrate judge has read in excess of

1,000 pages of transcript from three separate Kastigar

hearings in this district, the Southern District of Alabama,

and the Middle District of Florida. Additionally, the court

has reviewed numerous investigative reports, notes, and

other documents offered as exhibits in one or more of those

separate hearings. Based upon this review of the

evidentiary material before the court, the magistrate judge

finds that the Government’s use of information from Tony

Ray Chambless was not in violation of Kastigar and the

line of cases following from it concerning use and

derivative-use immunity. Furthermore, although the

Government’s use of information obtained from Steve

Purvis did violate Schmidgall’s derivative-use immunity, it

was harmless beyond a reasonable doubt and does not

warrant dismissal of the indictment.

68

I. Did Defendant Schmidgall Provide Leads To the

Government Which Led To the Non-Independent

Discovery Of Purvis and/or Chambless By

Northern District of Alabama Authorities?

The central factual question presented by this issue is

how did the Government come to identify Tony Chambless

and Steve Purvis as participants in or witnesses to the

December, 1985 cocaine-smuggling venture near

Demopolis, Alabama, involving defendant Schmidgall. The

defendant's derivative-use immunity may have been

violated if statements he gave, and known to Northern

District of Alabama authorities, created investigative leads

to these witnesses because statements later taken from

them were used in part to obtain the present indictment of

the defendant.!

The initial leads to the identity of these two witnesses

came during an extensive debriefing of William Wood by

Special Agent Don Schmidt between April 22 and 29, 1988.

At paragraph 3, page 18, of Agent Schmidt’s Report of

Investigation relating to these interviews (Government

Exhibit 2), the following notation of information appears:

In December, 1985 Wood participated in air-

smuggling 521 kilograms of cocaine into

Demopolis, Alabama, for Fabio Ochoa. Wood,

Ochoa, Hartley, DeShaw, Lynn, Merrill,

Schmidgall, Barko, Steve Purvis, Rick LNU (a

radio specialist and friend of Schmidgall’s),

Carlson, Carrell, Craig Keaser, Tony LNU (an

Alabamian from Demopolis) and Maurichio Ochoa

participated in the smuggling venture. Details of

this load are more fully described in S/A Mike

1See Page 10 of the Grand Jury Testimony of Thomas Coram, dated

December 4, 1990.

69

Holt’s (U.S. Customs Service, Birmingham,

Alabama) Report of Investigation.

Testimony at several of the Kastigar hearings indicate that

Customs Special Agent Mike Holt from Birmingham

participated in the debriefing of William Wood on April 26,

1988. Although Agent Holt did not prepare his separate

investigative report, he was later debriefed himself by

Special Agent Thomas Coram on September 19, 1988.

Agent Coram’s report of his review of Special Agent Holt’s

interview of William Wood appears in the record as

Government’s Exhibit 3. Thus, at least as early as April of

1988, William Wood had identified Steve Purvis by name

and Tony Chambless by the name “Tony... from

Demopolis .. . .” Indeed, Wood had given a physical

description of “Tony” as being a white male in his mid-

thirties, five feet ten inches tall, weighing 180 pounds, and

having dark hair and a beard. Wood further indicated that

“Tony” worked for a paper company in the Demopolis area.

Plainly, Wood’s description of “Tony” adequately focused

investigating officials on a particular individual living and

working in and around Demopolis, Alabama.

The extensive debriefing of William Wood in April of

1988 occurred after Schmidgall’s Miami statements in

January of 1988, but before his proffer in Birmingham in

December of 1988. It becomes critical, therefore, to

determine whether any statements made by Schmidgall in

January of 1988 amounted to investigative leads pointing

toward Purvis and Chambless.

The only written record of the Miami meeting consists

of the handwritten notes kept by Agent Rodney Clark

during Schmidgall’s interview, which can be found in the

record as Defendant’s Exhibit 1. Those notes cover

statements made by Schmidgall involving multiple

smuggling ventures in 1984, 1985, and 1986, but only a

70

portion of the notes on page 2 and on pages 4 and 5 relate

to the December, 1985 cocaine shipment to Sumpter

County. At no place are the names Steve Purvis, Tony

Chambless, or “Tony” mentioned, leading to the inference

that Schmidgall did not identify them. It seems clear that

Schmidgall did not know Purvis or Chambless in December

of 1985 and did not subsequently identify them in the

statements he made in January of 1988. Indeed, the

December, 1985 episode was the only time Chambless was

involved in any smuggling activities, and Schmidgall had

never met him before or since. Although Purvis was

involved in othe’ smuggling operations, he worked with

Schmidgall oniy «n the December, 1985 venture, and had

not met him before then or had contact since. See

Transcript of January 3, 1990, Hearing in Southern

District of Alabama, p. 110. It would appear, therefore,

that in January of 1988 Schmidgall did not know Tony

Chambless or Steve Purvis well enough to identify them in

his statements. Nor has Schmidgall (or anyone else)

testified at any time that he identified Purvis and

Chambless during his January, 1988 meeting with

investigators. Consequently, given the absence of

references to Purvis and Chambless in the notes and the

lack of any contrary evidence, the court concludes that

Schidgall did not give investigative leads to them during

the meeting.

Because Schmidgall did not identify either Purvis or

Chambless in the January, 1988 meeting, Woods’

description in April of 1988 was the first time any

investigative lead pointed toward them. Although it

occurred after the January, 1988 meeting, the information

from Wood in April of 1988 was a separate and

independent suurce leading to Chambless and Purvis. In

short, therefore, Schmidgall did not provide leads that led

to the non-independent discovery of Purvis and Chambless

71

by anyone, much less by authorities in the Northern

District of Alabama.

II. Did the Government Have Legitimate,

Independent (Of Defendant’s Statements) Sources

Which Led to Purvis and/or Chambless?

The discussion above answers this inquiry. In his

statements to investigative officers in Miami in January of

1988, Schmidgall did not identify either Purvis or

Chambless. The notes kept by Special Agent Clark do not

refer to either of these participants, although it does refer

to numerous other people involved in the smuggling

activities with Schmidgall, including Joe Alvarez, Jack

Hawes, Bobby Eyster, Floyd Sawyer, “Grice” [Griste?],

“Woody,” Fabio Ochoa, Gus Salazar, “Julius,” “Dana,”

“Dave,” “Mini-Rambo,” “Fat Bill,” “Joey,” Rick Nelson,

David Merrill, and Maurichio Ochoa. It is obvious that

Special Agent Clark was attempting to document all

names identified by Schmidgall during the meeting, yet

neither Purvis nor Chambless appear in any form. None of

the testimony offered in either of the three Kastigar

hearings indicates that Purvis and Chambless were

identified in the meeting although not noted in Agent

Clark’s notes. Given the absence of Purvis and Chambless

from the notes, the court concludes that Schmidgall did not

identify Chambless and Purvis during the January, 1988

meeting.

This conclusion is further bolstered by the absence of

any reference to Purvis and Chambless in Schmidgall’s

December 5, 1988, proffer in Birmingham. Government

Exhibit 8 is Special Agent Tom Coram’s report of

Schmidgall’s December, 1988 proffer, and it nowhere

mentions Purvis or Chambless. Once again, the court can

only conclude that Schmidgall did not mention either of

them during the December, 1988 statement. Because

72

Schmidgall testified at the Kastigar hearing that his

December, 1988 statement was merely a reiteration of

what he had told officers in Miami in Ja:iuary, the absence

of any reference to Purvis and Chambless in the December,

1988 report implies that they were not mentioned during

the January, 1988 discussions.

Because Schmidgall was not the source of

investigative leads to Purvis and Chambless, the earliest

possible source for those leads was the de-briefing of

William Wood during April of 1988. There, Purvis and

“Tony” are clearly identified. Consequently, in answer to

the court’s second issue, the Government did have

legitimate sources, independent of any of Schmidgall’s

statements, that led to the identification of Purvis or

Chambless.

Ill. Were Any Statements Obtained From Purvis

and/or Chambless Tainted By Any Information

Gathered From Schmidgall Of Which the

Government Had Knowledge?

Chambless was de-briefed by investigating officers in

Birmingham on October 20, 1988, a month and one-half

before Schmidgall was questioned on December 5, 1988. If

the Chambless statement was tainted in any way, it would

have been tainted only as a result of Schmidgall’s Miami

statements in January of 1988. The statement given by

Chambless, however, makes plain that he did not know

Schmidgall by that name, although he was able to identify

Schmidgall from a photograph as being one of the persons

involved in the Demopolis episode. Government Exhibit 6

is the investigative report of the Chambless statement in

October of 1988. There, Chambless described going to the

hunting camp and meeting with Lynn, Purvis, Merrill, and

“two individuals he had not seen before that night.”

Furthermore, one of the individuals he had not seen before

73

was in a back bedroom of the mobile home “hooking up

radios and scanners.” Chambless remembered hearing the

unidentified man talk on the radio. Later, during the

statement, Chambless was shown 21 photographs and

asked to identify those that he could. Photograph 16 was a

driver’s license photograph of Schmidgall. Although

Chambless was not able to identify by name the person

depicted in photograph 16, he did state that person was the

radio operator in the December, 1985 smuggling operation.

(See Government Exhibit 6, page 19). Because Chambless

did not know Schmidgall by name, any reference to

statements made by Schmidgall would not have coerced or

persuaded Chambless to make the statements he made.

Moreover, the Government has shown by a

preponderance of the evidence that no Government agent

or prosecutor present during Chambless’s statement knew

of the contents of the statements made by Schmidgall in

Miami. A comparison of the Clark notes of the January,

1988 Schmidgall statement to the October, 1988

Chambless statement reveals that nothing said by

Schmidgall was used to prompt, assist, or refresh

Chambless in the making of his statement. Chambless’s

statement contained specific details of Schmidgall’s

activities at the hunting camp, describing the use of the

“back bedroom” of the mobile home as the radio center and

that one of the scanners had been placed on top of a

television set in the den of the mobile home. Chambless

also described the use of several hand-held radios. None of

these details are reflected in the Clark notes of the

Schmidgall statement. Plainly, Chambless independently

recalled these facts without the assistance or prompting of

any statements from Schmidgall. Consequently, the court

concludes that the information given by Chambless, and in

74

particular his identification of Schmidgall’s photograph,”

was not tainted by any statement Schmidgall made.

The statement given by Purvis on August 23, 1989, is

more problematical to assess. Although there is little

indication that Schmidgall’s January, 1988 statement may

have been used to prompt or assist Purvis’s statement,

there is a great deal of similarity between it and

Schmidgall’s December, 1988 proffer. Agent Coram was

present at both and wrote both reports of investigation.

Both referred to Schmidgall’s operation of radios in the

bedroom of the mobile home; both referred to a stripped

copper wire used as an antenna; and both referred to the

use of a scanner on top of a television in the den of the

mobile home. The sequence of events and the phrases used

to describe those events are remarkably similar.

At least one court has held that the use of immunized

testimony or statements to refresh the recollection of other

witnesses or to help those witnesses focus or organize their

testimony violated the immunity doctrine under Kastigar.

See United States v. North, 910 F.2d 843 (D.C. Cir. 1990),

cert. denied, __. U.S. , S.Ct. , 114 1.Ed. 2d

477 (1991); see also Gwillim v. City of San Jose, 929 F.2d

465 (9th Cir. (1991) (dictum). The Circuit Court of Appeals

for the District of Columbia noted that Kastigar prohibits

any use of immunized testimony, either directly or

indirectly. Thus, using a defendant’s statement to refresh

the recollection of other witnesses is an_ indirect,

evidentiary use. The court stated:

?The inclusion of Schmidgall’s photograph cannot be said to be a

product of his statement in Miami because Wood and Carlson both

pointed to Schmidgall as a participant in statements they made in late

1987. Thus, aside from Schmidgall’s interview, investigators had

earlier, independent sources for focusing the investigation on him.

75

If the Government uses immunized testimony to

refresh the recollection of a witness (or to sharpen

his memory or focus his thought) when the

witnesses testifies before a grand jury considering

the indictment of a citizen for acts as to which the

citizen was forced to testify, then the Government

clearly has used the immunized testimony.

United States v. North, 910 F.2d 843, 861 (D.C. Cir. 1990),

cert. denied, ___. U.S. : S.Ct. ___, 114 L.Ed. 2d

477 (1991).

In the context of the case now at bar, the question

becomes whether the Government used Schmidgall’s

December, 1988 statement to refresh, coach, prompt, or

otherwise assist Purvis when he made his August, 1989

proffer. The burden is upon the Government to

affirmatively show that Schmidgall’s statements were not

used to refresh Purvis’s recollection. The fact that Special

Agent Coram attended and largely conducted both

interviews creates a grave problem. That problem is

compounded, as noted above, by the striking similarity of

descriptions contained in Schmidgall’s and Purvis’s

statements. Finally, a careful review of all of the testimony

offered at the Kastigar hearings in this and other districts

fails to reveal any testimony either supporting or

contradicting any conclusion with respect to the use of

Schmidgall’s statements to refresh Purvis’s recollection.

There simply is no direct evidence one way or the other on

this point. Because the Government bears the “heavy”

burden in this regard, the Court must conclude that it has

failed to show that the Purvis statement in August of 1989

was not tainted by Schmidgall’s December, 1988 proffer.

76

IV. In General, Was Coram’s Testimony With

Reference To Purvis and/or Chambless Tainted

Within the Context of Kastigar?

The Court’s analysis of the three previous issues posed

by Judge Propst makes clear that Coram’s Grand Jury

testimony with reference to Chambless was not tainted

within the context of Kastigar. Government agents

uncovered Chambless on the basis of legitimate,

independent sources, and his interview in October of 1988

was not tainted, assisted, or refreshed in any way be either

of defendant’s statements or proffers. Thus, to the extent

that Coram testified concerning statements made by

Chambless, that testimony was not tainted or otherwise

the product of any statements made by Schmidgall.

Equally clear is the conclusion that Coram’s testimony

with reference to Purvis was tainted within the context of

Kastigar. As explained above, the Government has failed to

carry its burden of proving by a preponderance of the

evidence that Schmidgall’s December, 1988 proffer was not

used to refresh the recollection or otherwise assist Purvis

in the making of his August, 1989 statement. If there is

any evidence on that issue, circumstantial evidence

suggests that Schmidgall’s statement was used to refresh

Purvis. In any event, the Government has failed to negate

that possibility. Because, in giving his Grand Jury

testimony, Coram relied upon statements made by Purvis,

there was an indirect use of Schmidgall’s December, 1988

statement. The statement was used to assist Purvis in

recalling the pertinent events and, then, his recollections

were communicated to the jury in Coram’s testimony.

The magistrate judge does not believe, however, that

the indictment is due to be dismissed because Coram

referred to Purvis’s statement during his Grand Jury

testimony. References to Purvis appear twice in Coram’s

77

testimony with respect to Schmidgall. At pages 9 and 10 of

the Grand Jury testimony, the following questions and

answers appear:

Q. During December of 1985 was Chris

Schmidgall observed at the hunting camp

which was owned by Turpin, Deshaw, and

Lynn, doing anything particular?

A. He set up an antenna there. He set up the

equipment there in the mobile home, which

is located at the Lynn, Turpin, and Deshaw

hunting camp.

Q. Who haa observed him doing that?

A. That would have been Tony Chambless and

it would have also been Steve Purvis.

See Grand Jury Testimony of Thomas Coram, pp. 9-10.

Coram also testified that Purvis was a member of the

ground crew employed by Wood to unload the cocaine. (See

Grand Jury Testimony of Thomas Coram, pp. 10-11). Of

these two statement, the latter, Purvis’s employment as a

member of the ground crew, did not rest upon any

recollection refreshed by the use of Schmidgall’s December,

1988 proffer. The former statement, however, that Purvis

had seen Schmidgall setting up an antenna and other

equipment at the hunting camp, might have been the

product of a_ recollection refreshed by Schmidgall’s

statement, and the Government has failed to negate that

possibility.

The use of the Purvis statement, however, does not

justify dismissal of the indictment because it was harmless

beyond a reasonable doubt. As the Circuit Court of Appeals

for the District of Columbia noted in North, “[d]ismissal of

78

the indictment or vacation of the conviction is not

necessary when the use is found to be harmless beyond a

reasonable doubt.” United States v. North, 910 F.2d 843,

854 (D.C. Cir. 1990), cert, __ US. ; S.Ct. ;

114 L.Ed. 2d 477 (1991) (citing United States v. Serrano,

870 F.2d 1 (1st Cir. 1989); United States v. Byrd, 765 F.2d

1524 (11th Cir. 1985); United States v. Gregory, 730 F.2d

692 (11th Cir. 1984), cert. denied, 469 U.S. 1208, 105 S.Ct.

1170, 84 L.Ed. 2d 321 (1985)). Plainly, the only import of

the Purvis statement referred to by Coram in the Grand

Jury testimony was its support for the fact that Schmidgall

was at the hunting camp at the time of the December, 1985

smuggling operation. That fact, however, was also

supported by the legitimate and independent statements of

William Wood and Tony Chambless. Indeed, much of the

remaining description of Schmidgall’s participation in the

operation is drawn expressly from Chambless’s statement.

It is obvious that if Coram had never referred to Purvis, the

evidence provided by Wood and Chambless would have

been more than adequate to support the indictment

returned against Schmidgall. It is, thus, beyond a

reasonable doubt that Coram’s passing reliance upon Steve

Purvis did not cause the Grand Jury to return this

indictment where they otherwise would not. Thus, the use

of Purvis’s possibly tainted statement is harmless beyond a

reasonable doubt, and the indictment need not be

dismissed because of it.

Recommendations

Based upon the foregoing findings of fact and

conclusions of law, the magistrate judge makes the

following RECOMMENDATIONS:

1. That the court find as fact that Schmidgall did not

provide leads to the Government which led to the non-

79

independent discovery of Purvis and/or Chambless by the

Northern District of Alabama authorities.

2. That the court find as fact that the Government

had legitimate and independent sources which led to the

identification and discovery of Purvis and/or Chambless.

3. That the court find as fact that the statement

taken from Chambless was not tainted in any way by

information gathered from Schmidgall of which the

Government had knowledge.

4. That the court find as fact that the statement

taken from Purvis was tainted by information gathered

from Schmidgall of which the Government had knowledge.

5. That the court find as fact that although Coram’s

Grand Jury testimony with reference to Chambless was

not tainted within the context of Kastigar, his testimony

with respect to Purvis was tainted but that it was harmless

beyond a reasonable doubt not justifying dismissal of the

indictment.

Any party may file specific written objections to this

report and recommendation within fifteen (15) days from

the date it is filed in the office of the Clerk. Failure to file

written objections to the proposed findings and

recommendations contained in this report and

recommendation within fifteen (15) days from the date it is

filed shall bar an aggrieved party from attacking the

factual findings on appeal.

The Clerk is DIRECTED to serve a copy of this report

and recommendation upon each attorney of record in this

action.

80

DATED this 20th day of February, 1992.

/s/ T. Michael Putnam

T. MICHAEL PUTMAN

UNITED STATES MAGISTRATE JUDGE

81

[FILED 92 MAR 13 AM 10:31]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

CHRISTIAN SCHMIDGALL, Fi

Defendant.

CR90-PT-261-S

MEMORANDUM OPINION

This cause comes on to be further considered after the

filing of the Report and Recommendation of the Magistrate |

Judge and objections by both parties.

Prior to the reference to the Magistrate Judge, this

court had carefully and extensively considered the '

evidence. Attempting to ascertain who learned what from

whom at which time is not an easy task. After considering a

the evidence, this court determined that, although its [3

sense of an ultimate decision had been framed, a fresh bi

perspective in a particular area might be helpful. The i

Magistrate Judge’s Report and Recommendation has

served only to reinforce this court’s earlier opinions.

It is not necessary to repeat the Magistrate Judge’s

Report and Recommendation. This court will simply state

that it, after a de novo review, agrees with it, and hereby

adopts and incorporates it.

82

Defendant’s Objections

1. David Hume Affidavit. The alleged Hume notes

are not part of the record either in this case or in the

Mobile record where they are alluded to. Contrasted with

the Hume affidavit are the contemporaneous notes of

Special Agent Clark made during the January 26, 1988

meeting. In view of the obvious bias of Hume in favor of

defendant and Clark’s notes as opposed to Hume’s

memory, the court concludes that the Government has met

its strict burden of proving that the name “Tony” was

independently ascertained in an interview of William

Wood. (April 1988).

2. Thomas Coram. As this court has previously

stated, evidence, not witnesses, becomes tainted. Kastigar

itself so holds (see previous opinion of this court). The

Government having met its strict burden with regard to

independent sources as to restricted evidence, the court

cannot conclude that Coram’s role alone taints the

evidence.

3. Harmless error. Even assuming that any

reference to Purvis was “tainted,” the evidence with

reference to the Wood and Chambless statements

(untainted for the reasons stated in this court’s original

opinion and the Magistrate Judge’s Report and

Recommendation) overwhelms any possible reference to

Purvis. The involvement of the defendant here was

basically determined in 1987. Any possibility of a slight

confirmation by Purvis is obviously harmless.

83

Government Objection

The court again adopts the Report § and

Recommendation. The Government did not meet its strict

burden by offering specific evidence that Purvis was not

influenced by any statements of defendant when Purvis

was interviewed in August 1989. The court does not

suggest, however, that the Government did not already

have, independent of any statements of defendant, the

same evidence, with reference to defendant, which may

have been determined from Chambless.

Defendant’s Motion to Suppress and Dismiss the

Indictment (“Kastigar” motion) filed on February 26, 1991

will be denied.

DONE and ORDERED this 13 day of March, 1992.

ENTERED FOR THE COURT:

/s/ Robert B. Propst

ROBERT B. PROPST

UNITED STATES DISTRICT JUDGE

[FILED 92 MAR 13 AM 10:31]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

CHRISTIAN SCHMIDGALL,

Defendant.

CR90-PT-261-S

ORDER

In accordance with the Memorandum Opinion filed

contemporaneously herewith, defendant’s Motion To

Suppress and Dismiss the Indictment filed on February 26,

1991 is DENIED. This cause is set for trial on May 11,

1992 at 9:00 a.m. in Courtroom 5-B, Hugo L. Black U. S.

Courthouse, Birmingham, Alabama. If either party feels

that the trial should be set earlier because of speedy trial

concerns, that party should file a statement so suggesting,

on or before March 30, 1992. If no such statement is filed,

the court will assume that either such trial date is timely

or that, both parties agree that the ends of justice served

by giving the parties until May 11, 1992 to prepare for trial

outweigh the best interest of the public and the defendant

in a speedy trial. Defendant’s counsel is directed to

determine whether his client wishes an earlier trial date.

DONE and ORDERED this 13 day of March, 1992.

/s/ Robert B. Propst

ROBERT B. PROPST

UNITED STATES DISTRICT JUDGE

85

[FILED SEP 23 1994]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTIAN SCHMIDGALL,

Defendant-Appellant.

No. 92-6449

On Appeal from the United States District Court

for the Northern District of Alabama

ON PETITION(S) FOR REHEARING

AND SUGGESTION(S) OF REHEARING EN BANC

Before: KRAVITCH, ANDERSON, and EDMONDSON,

Circuit Judges

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are DENIED.

[] The Petition(s) for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit Judges

who are in regular active service not having voted in favor

of it (Rule 35, Federal Rules of Appellate Procedure;

86

. ~~

eee ee. Ne £18,

Eleventh Circuit Rule 35-5), the Suggestion(s) of

Rehearing En Banc are also DENIED.

[) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ [ILLEGIBLE]

UNITED STATES CIRCUIT JUDGE

87