# Appendix — Schmidgall v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1128

## Text

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

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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?

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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 w

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1027%3A2. Public record. Not legal advice.