Appendix A — Montoya v. United States

Ee ee

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

‘

UNrTED STATES OF AMERICA,

Plaintiff-Appellee, No. 93-5041 1

V.

D.C. No.

CR-92-0572-GT

Rosario Montoya,

Defendant-Appellant.

y

~

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 93-50440

Vv D.C. No.

| CR-92-0572-GT

FILIBERTO E. Montoya, pret

Defendant-Appellant.

a

Appeals from the United States District Court

for the Souther District of California

Gordon Thompson, Ji., District Judge, Presiding

Argued and Submitted

March 9, 1994—Pasadena, California

Filed January 12, 1995

Before: Myron H. Bright,* Charles Wiggins,

and Thomas G. Nelson, Circuit Judges.

Opinion by Judge T.G. Nelson;

Dissent by Senior Circuit Judge Bright

*Honorable Myron H. Bright, Senior United States Circuit Judge for the

Eighth Circuit, sitting by designation.

429

430 UnitTeD STATES V. MONTOYA

SUMMARY

Criminal Law and Procedure/immunity/

Defendants and Accused, Rights of

The court of appeals affirmed a district court judgment of

conviction. The court held that a claimed relationship between

a defendant’s immunized testimony and the decision to prose-

cute him was too tenuous and remote from the criminal pro-

ceeding against the defendant to constitute a non-evidentiary

use of immunized testimony against him.

After the government became aware that certain San Diego

County real properties were connected with the Contreras-

Subias drug trafficking organization, Assistant United States

Attorney (AUSA) Warren Reese was assigned to investigate

the trafficking activities of the organization (the Reese inves-

tigation). Documents obtained as a result of the arrests of

members of the organization and from searches of the proper-

ties led to materials indicating that appellant Filiberto Mon-

toya (Montoya) was involved. Montoya had acted as a real

estate salesperson in transactions whereby members of the

organization, or its nominees, acquired re:! property.

A separate investigation revealed that Montoya was

involved, on behalf of the Contreras family, in a real estate

transaction in Oklahoma. This led to indictments of members

of the drug organization for money laundering in Oklahoma,

and Reese was assigned to assist in the prosecution.

Reese wrote a letter granting Montoya informal immunity,

and Montoya was interviewed. Montoya was formally granted

immunity and ordered to testify before the grand jury in San

Diego and at the Oklahoma tral.

Reese prepared a memorandum to the United States Attor-

ney requesting that authority be sought from the Department

of Justice to prosecute Montoya for conspiracy to commit

Unrrep States v. MONTOYA 431

bank and mail fraud and money laundering, as well as the

substantive offenses. Reese’s request explained that Montoya

appeared to testify falsely before the grand jury and during a

trial, and did not give complete testimony. Permission was

granted by the Attomey General (AG), and AUSA Ed Weiner

was assigned to prosecute Montoya (the Weiner investiga-

tion). Montoya and his wife, appellant Rosario Montoya, were

indicted for conspiracy to engage in money laundering and

bank fraud, and for the underlying substantive offenses.

The Montoyas filed a motion to dismiss the indictment on

the ground it was tainted by immunized testimony. The gov-

emment filed a response, including nine declarations of the

various prosecutors and agents involved in the Reese and

Weiner investigations. The declaration of Agent Chavez, who

was involved in the Reese investigation, described the execu-

tion of search warrants of Montoya’s properties before Mon-

toya was first interviewed. Chavez’s declaration also provided

a detailed time-line for each step he took in the investigation.

The declaration of Agent Gauthier, who was involved in the

Reese investigation and who later accompanied an agent of

the Weiner investigation team on interviews, stated that he

never reviewed reports of Montoya’s interview or transcripts

of his testimony.

The Montoyas filed a motion to cross-examine the nine

declarants after the court indicated that it might not hold a

hearing on the motion (a Kastigar evidentiary hearing). The

district court denied the motion to dismiss the indictment and

the motion to cross-examine, finding that the government

“met its heavy burden of proof that it obtained the evidence

used to indict Montoya from independent sources.”

The district court granted a motion for reconsideration and

again denied the motion to dismiss. The court also denied a

separate motion filed by the Montoyas, requesting that the

court dismiss the indictment based on outrageous government

432 UnrTeD StaTes v. MONTOYA

conduct and vindictive prosecution, and requesting that an

evidentiary hearing be held.

The Montoyas entered conditional guilty pleas, preserving

their right to appeal the district court’s denial of the motion

to dismiss the indictment. The Montoyas appealed their con-

victions, contending that the prosecution was tainted because

of improper use of Montoya’s immunized statements and tes-

timony in violation of his Fifth Amendment right against

self-incrimination.

[1] Chavez’s declaration contained a detailed time-line and

tracing of the investigation, based on information and leads

obtained in the search warrants executed before Montoya

received informal immunity. Montoya’s attack on his declara-

tion did not address the detailed independent sources of infor-

mation obtained in Chavez’s investigation. [2] Gauthier was

never exposed to Montoya’s immunized testimony. The fact

that he attended a number of witness interviews with a mem-

ber of the Weiner investigation team did not demonstrate that

the immunized testimony was in any way used to build a case

against Montoya. [3] In regard to Reese, Montoya advanced

nothing but the most tangential link between the questioning

of a witness before the grand jury in the Contreras-Subias

investigation and the thought processes of Reese during the

questioning. The facts did not give rise to taint or reveal a

lack of an independent source for all of the government’s evi-

dence against the Montoyas. [4] Thus, there was no clear error

in the district court’s findings that the government proved

independent sources for all of its evidence against Montoya.

Despite the Montoyas’ focus on “overlap” and alleged expo-

sure tO immunized testimony, the nine detailed declarations

filed by the government established that the indictment rested

entirely on sources independent of Montoya’s immunized tes-

timony. The district court’s finding that there was no evidenti-

ary use of Montoya’s immunized statements and testimony

was not clearly erroneous.

Unrtep States v. MONTOYA 433

[S}] Montoya argued that the most glaring use of his immu-

nized testimony was the non-evidentiary use of it in deciding

to prosecute him and his wife. He argued that Reese used his

immunized testimony in the application for permission to

prosecute him. [6] However, Montoya’s claimed relationship

between his immunized testimony and the decision to prose-

cute was too tenuous and remote. Reese was not preparing the

indictment, he was seeking the approval of the AG to prose-

cute Montoya. Reese was following internal procedures which

required him to submit a request for authorization to prose-

cute and to obtain the AG’s express written authorization

before prosecution could be initiated. [7] Reese’s application

for permission to prosecute Montoya did not contain a sum-

mary or complete overview of Montoya’s grand jury or trial

testimony. Rather, the application described two incidents

involving Montoya’s testimony which led the government to

believe Montoya was not being completely cooperative or

candid. [8] This information was clearly included to demon-

Strate why prosecution of Montoya was justified. [9] Reese

needed to communicate to his superiors the unusual circum-

stances justifying prosecution. This could not be done by sim-

ply reciting the nontestimonial evidence against Montoya.

Thus, Reese’s involvement in requesting permission to prose-

cute was too remote from the criminal proceeding against

Montoya to constitute non-evidentiary use of the immunized

testimony against him. [10] The report prepared or relied

upon by Weiner, describing how Reese was convinced Mon-

toya was not being truthful, did not involve improper use of

immunized testimony.

[11] The Montoyas also contended that the district court’s

refusal to grant a Kastigar hearing involving

cross-examination of the government’s declarants deprived

them of their right to procedural due process and their right

to confront the witnesses against them. [12] However, a hear-

ing was unnecessary because no issues were left to resolve.

The declarations filed by the government were exhaustive,

detailed, nonconclusory in form, and uncontradicted. [13] To

434 Unrtep STaTes v. MONTOYA

the extent that the Montoyas suggested that the government’s

declarations were contrived, false, or even tainted, the Mon-

toyas’ argument was rejected. [14] Alleged intemal inconsis-

tencies in the declarations did not call into question the

govemmment’s proof by a preponderance of the evidence that

all evidence utilized in the indictment of the Montoyas was

obtained from independent sources and that the Weiner prose-

cution team had no access to the immunized testimony.

[15] The Montoyas were incorrect in contending that the

district court should have dismissed the indictment because it

was based on outrageous government conduct and vindictive

prosecution due to the government’s dissatisfaction with

Montoya’s immunized testimony. [16] A presumption of vin-

dictiveness did not arise in this case. [17] There was no evi-

dence in this case that would satisfy the “extremely high”

burden to establish a claim of outrageous government con-

duct.

Senior Circuit Judge Bright dissented, stating that the pros-

ecutors improperly used Montoya’s immunized testimony to

initiate a Case against the Montoyas. In addition, the evidence

indicated a realistic likelihood of personal pique and personal

frustration which gives rise to a presumption of prosecutorial

vindictiveness.

COUNSEL

Juanita R. Brooks, McKenna & Cuneo, San Diego, California;

Paul E. Potter, Potter, Cohen & Samulon, Pasadena, Califor-

nia, for the defendants-appellants.

Edward J. Weiner, Assistant United States Attomey, San

Diego, Califomia, for the plaintiff-appellee.

Unrtep States v. MonToYA 435

OPINION

T.G. NELSON, Circuit Judge:

I.

OVERVIEW

This case involves the prosecution of a formerly immu-

nized witness and his wife. Filiberto Montoya is a real estate

salesperson who was accused of laundering money for alien

drug lords by making investments in local real estate. Mon-

toya appeals his conviction following his conditional guilty

plea to conspiracy to engage in monetary transactions in prop-

erty derived from specified unlawful activity and to commit

bank fraud, in violation of 18 U.S.C. §§ 371, 1957(a), and

1344. Rosario Montoya appeals her conviction following her

conditional guilty plea tu making a false statement on a loan

application and aiding and abetting, in violation of 18 U.S.C.

§ 1014, 18 U.S.C. § 2. The Montoyas’ conditional guilty pleas

preserved the right to appeal the district court’s denial of the

motion to dismiss the indictment on the ground that this pros-

ecution is allegedly tainted by Filiberto’s status as an immu-

nized witness in a drug investigation focusing on the

Contreras-Subias drug organization. We conclude that the dis-

trict court properly denied the motion to dismiss the indict-

ment on the ground that it was not tainted by the earlier grant

of immunity to Montoya; that a Kastigar evidentiary hearing

was not compelled under the circumstances of this case; and

that the district court did not err in refusing to dismiss the

indictment on grounds that it was not the result of outrageous

goverment conduct or prosecutorial vindictiveness.

I.

FACTS AND PROCEDURAL HISTORY

In May 1988, the Government became aware that a number

of real properties in San Diego County were connected with

436 Unrtep States Vv. MONTOYA

the Contreras-Subias drug trafficking organization. Assistant

United States Attomey (AUSA) Warren Reese was assigned

to investigate the trafficking activities of this organization (the

“Reese investigation”). Early in the investigation, documents

obtained as the result of the arrests of members of the

Contreras-Subias organization and from searches of the San

Diego properties, led to materials indicating that Filiberto

Montoya was involved. Montoya had acted as a real estate

salesperson in transactions whereby members of the organiza-

tion, or its nominees, acquired real property. From May

through August 1988, documents were collected as a result of

the issuance of grand jury and administrative subpoenas.

A separate investigation revealed that Montoya was

involved, on behalf of the Contreras family, in a real estate

transaction in Oklahoma. This led to indictments of members

of the drug organization for money laundering in Oklahoma,

and AUSA Reese was assigned to assist in this prosecution.

In the Fall of 1988, Reese was contacted by an attomey on

behalf of Montoya, and they discussed the possibility of Mon-

toya cooperating in the investigation. Reese wrote a letter

dated November 17, 1988, granting Montoya informal immu-

nity. The first interview with Montoya took place on Novem-

ber 18, 1988. He was also interviewed in January, February,

and May of 1989. Discussions with Montoya led Reese to

conclude that Montoya would be called as a witness. Montoya

was formally granted immunity and ordered to testify before

the grand jury in San Diego in January 1989, and at the Okla-

homa trial in May 1989.

In February 1990, Reese prepared a memorandum to the

United States Attorney requesting that authority be sought

from the Department of Justice to prosecute Montoya for con-

spiracy to commit bank and mail fraud and money laundering,

as well as the substantive offenses. Reese’s request explained:

In weighing the public interest in prosecution, it

should be noted that the witness appeared to testify

Unrtep States v. MonToYA 437

falsely before the grand jury, then recanted when

confronted with contradictory evidence. He is also

believed to have testified falsely during a trial

{although a perjury prosecution could not be sus-

tained), and he did not give complete testimony, as

explained below.

Permission was ultimately granted by the Attorney General,

and AUSA Amalia Meza, then AUSA Ed Weiner, were

assigned to prosecute Montoya (the “Weiner investigation’)."

The Montoyas were indicted on May 7, 1992, for conspiracy

to engage in money laundering and bank fraud, and for the

underlying substantive offenses.

The Montoyas filed a motion to dismiss the indictment on

the ground it was tainted by immunized testimony. The Gov-

ernment filed a response, including nine declarations of the

various prosecutors and agents involved in the Reese and

Weiner investigations. The Montoyas subsequently filed a

motion to cross-examine the nine declarants after the court

indicated that it might not hold a hearing on the motion (a

Kastigar evidentiary hearing).

The district court denied the motion to dismiss the indict-

ment and the motion to cross-examine on November 30,

1992. The court found that “[t]he government, in its response

and opposition, met its heavy burden of proof that it obtained

the evidence used to indict Montoya from independent

sources.” The court concluded:

‘Meza took over for Reese after Reese had requested permission to

prosecute Montoya, because of Reese’s exposure to Montoya’s immu-

nized statements and testimony. Meza participated in the Montoya investi-

gation from approximately May 1990 to July 1991. In July 1991, Meza

was assigned to another project, and turned the investigation over to

Weiner.

438 Unitep STATES v. MoN7OYA

There was some overlap between the Reese investi-

gation and the Weiner investigation, as the defense

contends. However, the Government must prove that

it had prior independent sources for the information

that lead to Montoya’s indictment, not that there was

no overlap. The searches of Montoya’s property in

August of 1988, the subpoenas for records from

escrow companies and financial institutions as a

result of these searches, and the separate investiga-

tions of Agents Morris, Young and Grover all indi-

cate that the Government had more than enough

independent evidence to indict Montoya.

Instead of filing a motion for reconsideration, the Montoyas

petitioned the Ninth Circuit for a writ of mandamus to compel

the district court to vacate its order, conduct a hearing on the

motion, including cross-examination of the nine declarants,

and file discovery documents.* The Government filed a

motion for reconsideration with the district court, requesting

that it permit filing of the discovery material, review the

material, and reconsider the motion to dismiss. The court

granted the motion and reconsidered the motion to dismiss in

light of the new material.

On February 2, 1993, the court again denied the motion to

dismiss. The court noted that the discovery documents

“actually support the Government’s assertion that the evi-

dence used to indict Montoya was derived from independent

sources,” and then described the documents. The court

rejected the Montoyas’ argument that the discovery docu-

ments were inconsistent with the declarations filed by the

Government and that therefore an evidentiary hearing was

required. The court explained:

On the day of the hearing on the motion to dismiss, the Montoyas

altempted to file voluminous discovery documents ai the judge’s cham-

bers. The court refused to allow the documents w be filed because they

were late.

Unrtep States v. Montoya 439

The defendants point out that certain declarations

State that the declarants did not have information

about Montoya’s immunized statements or testi-

mony. But reports, by the declarants, make reference

to the fact that the Government believed Montoya’s

testimony before the grand jury and in Oklahoma to

be untruthful. The defense seems to argue that this

means the declarant had knowledge of the contents

of Montoya’s statements and testimony. A closer

reading of the reports, however, reveals that the

declarants are just reiterating a generalized opinion

that the Government believed Montoya lied to the

grand jury. Nowhere in the voluminous documents

submitted to the court are there implications that the

declarants, which swore they had no knowledge of

Montoya’s statement or testimony, knew the content

of Montoya’s statements or testimony. Importantly,

absent such a contradiction, there is no need for an

evidentiary hearing.

The district court also denied a separate motion filed by the

defendants, requesting that the court dismiss the indictment

based on outrageous government conduct and vindictive pros-

ecution, and requesting that an evidentiary hearing be held.

Subsequently, the Montoyas entered conditional guilty

pleas,” preserving their right to appeal the court’s denial of the

motion to dismiss the indictment, “based on the contention

that information obtained from Filiberto E. Montoya while he

was an immunized witness in an earlier investigation so

tainted the instant case as to require a dismissal.” Filiberto

Montoya was sentenced to forty-one months of incarceration

and three years of supervised release. The court suspended

Rosario Montoya’s two-year sentence and placed her on three

°On February 8, 1993, the Government filed a superseding information

against Rosario Montoya, to which she entered a conditional plea of

guilty.

440 Unrtep States v. MonTOoYA

years of supervised probation. The Montoyas timely appeal.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

Ill.

STANDARD OF REVIEW

“We review under the clearly erroneous standard the dis-

trict court’s finding that the govemment’s evidence was

untainted by a grant of immunity.” United States v. Lipkis,

770 F.2d 1447, 1450 (9th Cir. 1985). The district court’s

denial of a motion for an evidentiary hearing is reviewed for

an abuse of discretion. See United States v. Navarro-Garcia,

926 F.2d 818, 822 (9th Cir. 1991). The standard of review for

vindictive prosecution is unsettled in the Ninth Circuit. The

court has variously applied abuse of discretion, clearly errone-

ous, and de novo standards. See United States v. Garza-

Juarez, 992 F.2d 896, 903 (9th Cir. 1993), cert. denied, 114

S. Ct. 724 (1994). The district court’s refusal to dismiss the

indictments on the basis that the government’s conduct was

not outrageous is reviewed de novo. United States v. Solorio,

37 F.3d 454, 457 (9th Cir. 1994).

IV.

DISCUSSION

A. Immunized Testimony

The Montoyas argue that this prosecution is tainted because

of improper use of Filiberto Montoya’s immunized statements

and testimony in violation of his Fifth Amendment right

against self-incrimination.* See Kastigar v. United States, 406

“The Government argues that Rosario Montoya lacks standing to appeal

on the basis of her husband’s assertion of constitutional rights. However,

the Government has specifically agreed that should Filiberto Montoya pre-

vail in his arguments that his immunity was breached, that Rosario will

also receive a dismissal. Therefore, we need not address the standing argu-

ment.

eee

Unrtep States v. Montoya 44]

U.S. 441 (1972). In Kastigar, the Supreme Court upheld the

constitutionality of the federal witness use immunity statute,

18 U.S.C. § 6002, and held that a prosecution of a previously

immunized witness is allowable, but emphasized that “[t]he

Statute provides a sweeping proscription of any use, direct or

indirect, of the compelled testimony and any information

derived therefrom.” /d. at 460; see also id. at 453.

The use immunity statute provides in relevant part that:

[NJo testimony or other information compelled

under the order (or any information directly or indi-

rectly derived from such testimony or other informa-

tion) may be used against the witness in any criminal

case, except a prosecution for perjury, giving a false

Statement, or otherwise failing to comply with the

order.

18 U.S.C. § 6002. The statute thus provides use and derivative

use immunity, which “grants immunity from the use of the

compelled testimony and evidence derived therefrom.”* Block

v. Consino, 535 F.2d 1165, 1167 n.3 (9th Cir.), cert. denied,

429 U.S. 861 (1976). “[SJuch immunity from use and deriva-

tive use is coextensive with the scope of the privilege against

self-incrimination.” Kastigar, 406 U.S. at 453. “The privilege

has never been construed to mean that one who invokes it

cannot subsequently be prosecuted.” /d. “Use immunity does

not protect the substance of compelled testimony, it only pro-

tects against the use of compulsory testimony as a source of

evidence.” United States v. Crowson, 828 F.2d 1427, 1428-29

(9th Cir. 1987) (internal quotation omitted), cert. denied, 488

U.S. 831 (1988).

‘Transactional immunity, on the other hand, “is full immunity from

prosecution for any offense to which the testimony relates.” United States

v. Plummer, 941 F.2d 799, 803 (9th Cir. 1991).

442 UNiteD STATES V. MONTOYA

A person compelled to testify against himself under a grant

of immunity need only show that he testified in order “to shift

to the government ‘the heavy burden’ of proving an indepen-

dent source for all its evidence.” United States v. Mapelli, 971

F.2d 284, 288 (9th Cir. 1992) (citing Kastigar, 406 U.S. at

461). “This burden of proof . . . 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.” Kastigar, 406 U.S. at 461; see also United States

v. Koon, 34 F.3d 1416, 1432 (9th Cir. 1994); Crowson, 828

F.2d at 1429. “[A] good faith allegation that the evidence is

not the fruit of the immunized testimony is not sufficient; the

Goverment must show how it acquired all of the evidence.”

Block, 535 F.2d at 1169. “The government must prove the

independent source by a preponderance of the evidence, and

we will uphold a district court’s findings unless clearly erro-

neous. This court has permitted the government to meet its

burden of proof as to the existence of independent, prior

sources through affidavits.” Crowson, 828 F.2d at 1429 (cita-

tion omitted).®

“[T]}here is no per se rule requiring the withdrawal of a

prosecutor or other government official who may have been

exposed to immunized testimony.” /d. at 1430; see also

Mapelli, 971 F.2d at 287. If the prosecution team has been

exposed to the immunized testimony, the Government may

still use the evidence if it meets its burden of proof that the

evidence is derived from independent sources. Crowson, 828

F.2d at 1430; Mapelli, 971 F.2d at 287-88. The question “is

not whether the prosecutor was aware of the contents of the

*As the Court of Appeals for the District of Columbia has observed,

“the Kastigar burden is ‘heavy’ not because of the evidentiary standard,

but because of the constitutional standard: the government has to meet its

proof only by a preponderance of the evidence, but any failure to meet that

standard must result in exclusion of the testimony.” United States v. North,

910 F.2d 843, 873, modified, 920 F.2d 940 (D.C. Cir. 1990) (en banc),

cert. denied, 500 U.S. 941 (1991).

a

Unrtep States v. MonTOYA 443

immunized testimony, but -vhether he used the testimony in

any way to build a case against the defendant.” Crowson, 828

F.2d at 1430 (internal quotation omitted). The Government

may protect “against a claim of indirect use by assigning the

case to others not exposed and barring communication

between them and the prosecutors who obtained the com-

pelled testimony.” Mapelli, 971 F.2d at 288: see also Crow-

son, 828 F.2d at 1429-30.

1. Alleged evidentiary use of the immunized statements

and testimony.

wit Ana Dola ORE t h SP a SO at ARMY a il Rei Be OMT

i The district court found that the Government obtained the

| evidence used to indict Montoya from independent sources.

Contrary to the Montoyas’ portrayal of the district court’s

order, the district court did find there was some overlap

between the Reese and the Weiner investigations. As the dis-

trict court correctly observed, however, the Government is not

required to show that there was no overlap, but that “all of the

evidence it proposes to use was derived from legitimate inde-

pendent sources.” Kastigar, 406 U.S. at 461-62; see also

Koon, 34 F.3d at 1432. Simply arguing that the investigations

overlapped does not answer the question of the existence of

legitimate independent sources for all of the evidence. Mon-

toya’s attack on the declarations of Agent Roman Chavez,

Agent David Gauthier, and AUSA Reese therefore misses the

mark. Even if agents and prosecutors actually participated in

H both investigations, and/or were exposed to immunized testi-

mony, there is no per se rule requiring their withdrawal from

the case. Crowson, 828 F.2d at 1430. The focus of the inquiry

under Kastigar is whether the immunized testimony was in

any way used to build a case against Montoya. /d. With this

focus in mind, we address the Montoyas’ specific complaints

concerning the Government’s attempt to meet its burden of

proof in this case.

PARR ea Bea wh bwemer or ai hietear

Ble DY RY pte Pans Tea hin SSP

444 Unitep STATES Vv. MonTOYA

a. Agent Chavez’s declaration.

Agent Chavez was involved in the Reese investigation, and

his declaration describes the execution of the search warrants

of Montoya’s properties in May and August 1988 (before

Montoya was first interviewed in November 1988). As the

district court observed, Chavez recited in great detail the doc-

uments and leads found as a result of these searches, as well

as the resulting subpoenas issued to financial institutions.

Contrary to Montoya’s characterization, nowhere does Cha-

vez state in his declaration that he was involved in both the

Reese and Weiner investigations.’ While Chavez investigated

the purchase and acquisition of the properties with which the

Montoya prosecution was concerned, it was done as part of

the Contreras prosecution, and the evidence and resulting

leads were obtained before Montoya was first interviewed.

Chavez states in his declaration that “the majority of finan-

cial leads that I pursued had already been obtained prior to

any contact with Filiberto Montoya.” Chavez provides a

detailed time-line for each step he took in the investigation.

He lists seven investigatory actions (interviews, Conversations

and issuance of a subpoena) taken after the November 18,

1988, interview of Montoya, but ties each one to a lead

obtained well before that date.

7Counsel for Rosario Montoya stated at oral argument that Agent Cha-

vez parucipated in both investigations. In their motion to dismiss the

indicument, the Montoyas noted that Agent Chavez is listed on the “case

initiation” as an agent involved in the Weiner investigation. Even if we

assume that Agent Chavez was involved in both investigations, his decla-

ration ties all of his investigative leads back to a time prior to the first

interview of Montoya. Furthermore, it also details how Chavez segregated

and sealed all documents “having anything to do with interviews with Fili-

berto Montoya conducted by the case agent” prior to his turning the case

file over to Agent Young of the Weiner investigation team in October

1990.

Unrrep States v. Montoya 445

[1] While Chavez’s declaration does contain the conclusory

Statement that “[ajt no time did I ever use any information

provided by Filiberto Montoya in pursuing leads associated

with the Contreras-Subias investigation,” it also contains

much more than this: a detailed time-line and tracing of the

investigation, based on information and leads obtained in the

search warrants executed before Montoya received informal

immunity. Montoya’s attack on this declaration does not

address the detailed independent sources of information

obtained in Chavez’s investigation. Chavez’s declaration was

not “limited to a negation of taint.” See Kastigar, 406 U.S. at

460.

b. Agent Gauthier’s declaration.

As the district court specifically noted in its synopsis of the

declarations, Agent Gauthier was involved in the Reese inves-

tigation, but also later accompanied Agent Morris of the

Weiner investigation team when she interviewed witnesses

involved in the real property transactions. The Montoyas con-

tend that this demonstrates “overlap” and therefore establishes

taint. However, Gauthier’s declaration states that he “never

interviewed Montoya or his wife,” “never reviewed or dis-

cussed any reports of [the] interview of Montoya or tran-

scripts of his testimony,” and had not had anyone “impart[ ]

to [him] any information purportedly derived from Montoya’s

Statements.” Furthermore, Gauthier explained his motivation

to accompany Agent Morris as follows:

In July and November 1989 I accompanied Agent

Linda Morris in a number of interviews of witnesses

involved in certain real estate transactions she was

investigating. Agent Morris did most of the question-

ing. I was motivated to accompany her by the hope

that I could obtain information concerning drug traf-

ficking suspects whose whereabouts remained

unknown to us at the time.

446 Unrtep States v. MONTOYA

Agent Morris explained in her declaration that sometime

after May 19, 1989, she told Agent Gauthier of her findings

involving the Montoyas and two businesses, and Gauthier

informed her that in August 1988, search warrants had been

served on the businesses and two properties belonging to

Montoya. Gauthier did not mention that Montoya had been

interviewed. Morris confirmed that she and Gauthier inter-

viewed a number of people identified with the property trans-

actions in question, but also stated that she had “never been

given any information by anyone conceming Montoya’s inter-

views and testimony.”

[2] Agent Gauthier was never exposed to Montoya’s immu-

nized testimony. The fact that this Reese investigation team

member attended a number of witness interviews with a mem-

ber of the Weiner investigation team does not demonstrate

that the immunized testimony was in any way used to build

a case against Montoya. See Crowson, 828 F.2d at 1430.

c. The Reese declaration.

The Montoyas argue that AUSA Reese’s declaration

reveals that even after Montoya’s testimony at the Oklahoma

trial, Reese continued his investigation of Montoya by calling

Roberto Guerra before the grand jury and questioning him

regarding a Tuscon real estate deal involving Montoya. They

then take issue with Reese’s declaration statements that he

“did not rely on any information [he] obtained from Montoya

to compose questions to Guerra,” but instead used an investi-

gative report reflecting interviews conducted by Agents

Gauthier and Morris.

*According to the declaration of AUSA Reese, at some point near the

end of 1989, Reese informed Morris that “it was essential that the case

{against Montoya] be based on evidence obtained totally independently of

any information obtained from Montoya himself,” in light of his immu-

nized status.

Unrrep States v. Montoya 447

[3] Guerra was called before the grand jury not as part of

an investigation of Montoya, but during the course of an addi-

tional investigation of the Contreras drug organization. A

Superseding indictment in the Contreras case was returned

thereafter in September 1989. Independent investigation had

disclosed that Guerra, who was an acquaintance of Montoya,

was the nominal purchaser of the Arizona property, but that

the beneficial owner was a Contreras. Montoya advances

nothing but the most tangential link between the questioning

of Guerra in the Contreras-Subias investigation and the

thought processes of Reese during the questioning. More

importantly, these facts do not give rise to taint or reveal a

lack of an independent source for all of the Government’s evi-

dence against the Montoyas.

Montoya next attacks Reese’s failure to follow Department

of Justice guidelines concerning the preservation of the ability

to indict an immunized witness. He cites the failure to prepare

a signed and dated memo summarizing the evidence concerm-

ing Montoya prior to his interview and testimony; the failure

to ensure all of his testimony was recorded verbatim and

maintained in a secure, restricted access location: and failure

to maintain a record of subsequently received evidence

against him.

However, failure to strictly comply with the United States

Attomeys’ Manual creates no enforceable rights. United

States v. Lorenzo, 995 F.2d 1448, 1453 (9th Cir.), cert.

denied, 114 S. Ct. 225 (1993). The lack of a memorandum of

evidence available to charge Montoya as of November 17,

1988, made more work for the Government in this case; how-

ever, it was still able to create an adequate history of what

information was obtained through which of the various

sources and at what time. The Government showed the

Weiner prosecution team was aware of the immunity problem

44% Unrtep States v. MonTOYA

and followed reliable procedures for segregating the immu-

nized testimony.’

d. Conclusion.

[4] The district court made the proper inquiry in this case,

and we find no clear error in its findings that the government

proved independent sources for all of its evidence against

Montoya. The Montoyas’ focus on “overlap” and alleged

exposure to immunized testimony does not answer the ques-

tion that we must ask in deciding this appeal. The nine

detailed declarations filed by the Government establish that

the indictment rested entirely on sources independent of Mon-

toya’s immunized testimony. We are satisfied that the district

court’s finding that there was no evidentiary use of Montoya’s

immunized statements and testimony was not clearly errone-

ous.

2. Alleged non-evidentiary use of the immunized state-

ments and testimony.

[5] Montoya argues that the most glaring use of his immu-

nized testimony was the non-evidentiary use of it in deciding

to prosecute him and his wife. First, he argues that Reese used

Montoya’s immunized testimony in his application for per-

mission to prosecute Montoya. Next, he argues this taint was

compounded when AUSA Meza saw this application. Finally,

Montoya points to a report/document “either prepared by or

definitely used by” AUSA Weiner in the prosecution of the

Montoyas, which states that Reese had been “convinced that

Montoya was not being truthful and Mr. Reese submitted his

*The transcripts of Montoya’s grand jury and trial testimony were not

made available to the Weiner team investigators. The transcripts and

reports of interviews with Montoya after immunity was conferred were

collected and sealed. A different Assistant United States Attorney was

assigned to prosecute the case so that he would be isolated from the immu-

nized tesumony and the interviews with Montoya.

Unitep States v. MonTOYA 449

request to prosecute Montoya to the Attorney General . . .

[who later] approved the prosecution.”

Non-evidentiary use of immunized testimony could include

the decision to prosecute an immunized witness. Crowson,

828 F.2d at 1430. Kastigar did not expressly discuss the pro-

priety of non-evidentiary use. See Kastigar, 406 U.S. at 453,

460. In Crowson, we assumed that non-evidentiary use was

prohibited. Crowson, 828 F.2d at 1430 (“A more difficult

question is what proof or procedures the govemment must

employ to carry its burden of showing that it made no non-

evidentiary use of the immunized testimony.”). Compare

United States v. North, 910 F.2d 843, 856 (assuming without

deciding that a prosecutor cannot make non-evidentiary use of

immunized testimony), modified, 920 F.2d 940 @.C.. Cir.

1990) (en banc), cert. denied, 500 U.S. 941 (1991); and

United States v. Byrd, 765 F.2d 1524, 1531 (11th Cir. 1985)

(“It is our view that the privilege against self-incrimination is

concerned with direct and indirect evidentiary uses of com-

pelled testimony and not with the exercise of prosecutorial

discretion.”). Crowson did not answer the question of whether

or not the Government meets its burden of showing no non-

evidentiary use by establishing prior, independent sources for

all of the evidence because there were “other indications that

the government did not indirectly use [the immunized] testi-

mony for non-evidentiary purposes despite its admitted access

to that testimony.” Crowson, 828 F.2d at 1431.

As pointed out above, this circuit has not specifically

decided whether non-evidentiary use comes within the prohi-

bition of the statute. We need not decide that general issue in

this case, either, but will assume that some non-evidentiary

uses could come within the ban of the statute.

Section 6002 does not prohibit all use of immunized testi-

mony. It proscribes its direct or indirect use against the wit-

ness. 18 U.S.C. § 6002.

450 Unrtep States v. MONTOYA

[6] Montoya’s claimed relationship between his immunized

testimony and the decision to prosecute is too tenuous and

remote. AUSA Reese was not preparing the indictment, he

was seeking the approval of the Attorney General to prosecute

Montoya. Reese was following internal procedures which

required him to submit a request for authorization to prose-

cute and to obtain the express written authorization of the

Attorney General before prosecution could be initiated. See

United States Attorneys’ Manual, Title 9, Section 23.400

(1990). As part of the departmental policy, Reese was to sub-

mit a memorandum indicating:

(a) the unusual circumstances which justify prosecu-

tion, (b) the method by which he/she will affirma-

tively establish either that all evidence necessary for

a conviction was in the hands of the government

prior to the date of the defendant’s compelled testi-

mony or that it came from sources independent of

the witness’s testimony and was not the result of

focusing an investigation on the witness because of

compelled disclosures, and (c) how he/she will show

affirmatively that no other “non-evidentiary” use has

been or will be made of the compelled testimony in

connection with the proposed prosecution (for ex-

ample, by having the prosecution handled by an

attorney unfamiliar with the substance of the com-

pelled testimony).

Id. Assistant United States Attorneys are instructed that,

[i]n weighing the public interest in prosecuting a per-

son for an offense first disclosed in, or closely

related to, his/her compelled testimony, the attorney

for the government should take into account, inter

alia, the importance of encouraging free and full dis-

closure by witnesses whose testimony is compelled.

He/she should also take into account the extent to

which the potential defendant had testified freely and

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Unitep StaTEs v. MonTOYA 451

fully in compliance with the order. . . . [Less than

Complete testimony should not appear to be

rewarded by a declination of prosection in a case

where independent evidence clearly exists and the

Situation otherwise warrants prosecution.

Id.

[7] Reese’s application for permission to prosecute Mon-

toya does not contain a summary or complete overview of

Montoya’s grand jury or trial testimony. It does not detail the

real estate transactions that were later used in the instant

indictment. Rather, the application describes two incidents

involving Montoya’s testimony which led the Goverment to

believe Montoya was not being completely cooperative or

candid. First, before the grand jury Montoya initially denied

knowledge conceming the leader of the drug organization.

The memorandum then details why it was believed that Mon-

toya deliberately withheld information about his acquaintance

with the drug ring leader, thus prompting the suspicion that

Montoya would tell the Government only what he believed

was already known. Second, while testifying at the Oklahoma

trial, Montoya effectively denied knowledge of certain sum-

maries of expenses of the properties which had been found

during the course of the investigation. Apparently, Montoya

had previously given the Government more information about

the realities underlying preparation of the summaries, which

tended to demonstrate management and control of the proper-

ties by the Contreras family, rather than the nominal owners.

Reese characterized Montoya’s trial testimony as thus becom-

ing “essentially neutral.”

[8] This information was Clearly included to demonstrate

why prosecution of Montoya was justified. Reese explained

that “[iJn sum, it appears that immunity has not encouraged

complete testimony from Montoya and he should not be

rewarded by declining prosecution where independent evi-

dence exists, and the situation otherwise warrants

452 Unrtep STATEs v. MonTOYA

prosecution.” While this memorandum does contain a one

paragraph, basic overview of the Montoyas’ scheme, the

memo then goes on to detail the independent sources of evi-

dence necessary to prosecute Montoya.

As the DOJ instructions point out, there is a public interest

component to the decision to prosecute an immunized wit-

ness. The Government is interested in “encouraging free and

full disclosure.” Thus, the AUSA is exhorted to consider “the

extent to which the potential defendant had testified freely

and fully in compliance with the order.” But after considering

these factors, “less than complete testimony should not appear

to be rewarded... .”

The requirement of a showing to the Attorney General that

sufficient independent evidence exists to support a prosecu-

tion addresses the question of whether a witness could be suc-

cessfully prosecuted. Absent some analysis of the witness’s

actual testimony and how it squares with what the Govern-

ment knew of the ability of the witness to say more, there

would be no analysis of whether there should be a prosecu-

tion. In addition to constraining the Attorney General’s exer-

cise of her discretion, a rule that foreclosed her consideration

of whether a prosecution should take place would not be in

the best interest of immunized witnesses in general, and con-

trary to the public interest identified in the DOJ manual.

[9] Reese needed to communicate to his superiors the

unusual circumstances justifying prosecution. Cf. Byrd, 765

F.2d at 1530 (“Kastigar made no mention of any burden on

the government to erect an impenetrable barrier between the

prosecutors who hear or read the immunized testimony and

those who decide to indict, even though the potential problem

was an obvious one.”). This could not be done by simply

reciting the nontestimonial evidence against Montoya. We

conclude that Reese’s involvement in requesting permission

to prosecute was too remote from the criminal proceeding

UniteD STATES v. MONTOYA 453

against Montoya to constitute non-evidentiary use of the

immunized testimony against him.

The fact that AUSA Meza read the application for permis-

sion to prosecute, even if it had contained an actual summary

of Montoya’s testimony, would not mean she would have had

to withdraw from participation in the case. See Crowson, 828

F.2d at 1430. Nor does it demonstrate anything other than a

remote and tenuous connection to the decision to initiate a

prosecution against Montoya. That Meza read the application

does not demonstrate that the Goverment made non-

evidentiary use of Montoya’s immunized testimony.

[10] The report prepared or relied upon by AUSA Weiner,

describing how Reese was convinced Montoya was not being

truthful, did not involve improper use of immunized testi-

mony. As the district court pointed out, the various reports in

the Montoya case “are just reiterating a generalized opinion

that the Government believed Montoya lied to the grand

jury.” This does not in any way indicate that Weiner had

access to the contents of Montoya’s statements and testimony.

Without significant exposure, Meza and Weiner “could not

have made significant nonevidentiary use, permissible or

impermissible.” See North, 910 F.2d at 860.

B. The Denial of a Kastigar Hearing

[11] The Montoyas argue alternatively that if their indict-

ments are not dismissed on the basis of improper use of

immunized testimony, or because of vindictive prosecution or

Outrageous government conduct (discussed below), their case

Should be remanded for a full Kastigar hearing. They contend

that the district court’s refusal to grant a Kastigar hearing

involving cross-examination of the Government’s declarants

deprived them of their right to procedural due process and

their right to confront the witnesses against them. After con-

Sidering the additional discovery material provided by the

Montoyas, the district court stated:

454 Unrtep States v. MONTOYA

Nowhere in the voluminous documents submitted to

the court are there implications that the declarants,

which swore they had no knowledge of Montoya’s

Statement or testimony, knew the content of Mon-

toya’s statements or testimony. /mportantly, absent

such a contradiction, there is no need for an eviden-

tiary hearing.

While ordinarily the district court should hold a Kastigar

evidentiary hearing, see Trimiew v. United States, 9 F.3d

1388, 1390 (9th Cir. 1993), the Government may meet its

Kastigar burden of proof as to the existence of independent,

prior sources through affidavits. Crowson, 828 F.2d at 1429

(citing United States v. Rogers, 722 F.2d 557, 560 (9th Cir.

1983) (“exhaustive” sworn declarations), cert. denied, 469

U.S. 835 (1984)).

In United States v. Zielezinski, 740 F.2d 727, 734 (9th Cir.

1984), we held that when the same grand jury that hears a per-

son’s immunized testimony then indicts the person, a

Kastigar-style hearing is necessary to determine the indepen-

dent grounds for the indictment. “Even if proper, such an

indictment appears tainted.” Lipkis, 770 F.2d at 1451 (citing

Zielezinski, 740 F.2d at 733). On the other hand, in Lipkis, we

held that a Kastigar hearing was not compelled once the

defendant stipulated that there were only minimal differences

between his nonimmunized and immunized statements. We

held that “a subsequent hearing would have served no

purpose” and “‘was unnecessary because no issues were left to

resolve.” Id.

[12] Although the Montoyas cite Zielezinski for the propo-

sition that a Kastigar hearing is mandated, their case differs

factually because Filiberto Montoya was not indicted by the

same grand jury that heard his immunized testimony.” Fur-

The Montoyas also cite United States v. North, 920 F.2d 940, 943

(D.C. Cir. 1990) (en banc) (“North II”), cert. denied, 500 U.S. 941 (1991),

UNiTeD States v. MONTOYA 455

thermore, while Montoya did not make the kind of stipulation

the defendant did in Lipkis, in this case we agree with the dis-

trict court that a hearing was unnecessary because no issues

were left to resolve. The declarations filed by the Govemment

were exhaustive, detailed, nonconclusory in form, and uncon-

tradicted. They did not simply ask the court to rely on the

Govemment’s good faith. See Block, 535 F.2d at 1169.

The Montoyas argue that the declarations served only to

put issues in dispute and did not avoid, but rather required, an

evidentiary hearing. The Montoyas contend that a hearing is

necessary to resolve various alleged inconsistencies and mis-

leading and inaccurate statements in the declarations. How-

ever, their attempt to create inconsistencies misses the mark.

First, they contend AUSA Meza states in her declaration

that she had not been exposed to any of Montoya’s statements

or immunized testimony, while also admitting that she saw a

copy of the request for authority to prosecute Montoya. Meza

in fact stated in her declaration that “[{a}lthough I saw a copy

of the U.S. Attorney’s request for authority to prosecute Mon-

toya, I have never seen transcripts of Montoya’s testimony or

reports of his interviews.” As we have described, Meza’s

exposure to the request for authority to prosecute would not

require her to withdraw from the case, did not constitute non-

evidentiary use, and likewise does not necessitate a Kastigar

hearing. The Montoyas’ contentions with regard to the Meza

declaration do not raise an issue of fact warranting a Kastigar

hearing.

Second, the Montoyas contend that AUSA Weiner was in

possession of at least one report which referenced and dis-

in support of their argument that they were entitled to a hearing. In North

Il, the court stated that “[mJost important, the defendant is entitled to a

hearing at which he would be able to challenge the prosecution’s case for

non-use.” Jd. at 943. The situation in North was unique in that the defen-

dant’s immunized testimony before Congress was televised and therefore

potentially exposed to all of the witnesses for North’s subsequent criminal

trial.

ca ii

456 Unrtep STATES v. MONTOYA

cussed Montoya’s testimony, in conflict with Weiner’s state-

ment in his declaration that he had “carefully reviewed the

materials that Ms. Meza had assembled in connection with the

investigation and determined that none of these materials

included any reference to prior testimony or prior interviews

with Filiberto E. Montoya.” However, the one example of

such a report that the Montoyas point to on appeal, entitled

“Filiberto Montoya-Esparaza Real Estate Investigation,” does

not discuss Montoya’s immunized testimony. The closest it

comes to the immunized testimony is the reference to the fact

that in the Contreras-Subias investigation, Reese “was con-

vinced that Montoya was not being truthful.”

The Government conceded in its brief that the Reese report

(the application for permission to prosecute) was in the

Weiner team materials. While Meza’s declaration states that

she read the application, Weiner’s declaration does not specif-

ically address whether or not he read the application." Even

if Weiner, or members of his investigation team, were

exposed to the application, as we have explained, given the

content of the application, it would not constitute significant

exposure such that it constituted non-evidentiary use.

[13] Finally, the Montoyas contend that had the district

court granted an evidentiary hearing and cross-examination, it

would have learned that Reese assisted the other eight declar-

ants in preparing their declarations. Reese explained at an ear-

lier hearing before a magistrate judge that he managed the

collection of the declarations and did make some suggestions

as to form and content. To the extent that the Montoyas sug-

gest that the Government’s declarations were therefore con-

trived, false, or even tainted, we reject the argument. Reese’s

involvement in the preparation and collection of the declara-

"Weiner’s declaration states that he “carefully reviewed the materials

that Ms. Meza had assembled in connection with the investigation and

determined that none of these materials included any reference to prior

testimony or prior interviews with Filiberto E. Montoya.”

j

i

3

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4

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(al ea ink ascii am reece

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UNITED STATES v. MONTOYA 457

tions did not necessitate the Cross-examination of the other

eight declarants.

[14] In this case, the district court’s careful review of all of

the declarations and discovery documents complied with due

process, and the refusal to allow cross-examination was an

appropriate exercise of judicial discretion. The alleged inter-

nal inconsistencies in the declarations do not call into ques-

tion the Government’s proof by a preponderance of the

evidence that all evidence utilized in the indictment of the

Montoyas was obtained from independent sources and that the

Weiner prosecution team had no access to the immunized tes-

timony.

C. Vindictive Prosecution and Outrageous Govemment

Conduct

[15] The Montoyas also contend that the district court

should have dismissed the indictment because it was based on

Outrageous government conduct and vindictive prosecution

due to the Government’s dissatisfaction with Filiberto Mon-

toya’s immunized testimony. We disagree.

“To establish a prima facie case of prosecutorial vindictive-

ness, a defendant must show either direct evidence of actual

vindictiveness or facts that warrant an appearance of such.”

United States v. Sinigaglio, 942 F.2d 581, 584 (9th Cir. 1991).

“Evidence indicating a realistic or reasonable likelihood of

vindictiveness may give rise to a presumption of vindictive-

ness on the government’s part.” Garza-Juarez, 992 F.2d at

906. However, the Supreme Court has emphasized that this

presumption must be supported, because at the pretrial stage,

“ “the prosecutor’s assessment of the proper extent of prose-

Cution may not have crystallized.’ ” Jd. (quoting United States

v. Goodwin, 457 U.S. 368, 381 (1982)). Once a presumption

of vindictiveness has arisen, the burden shifts to the prosecu-

tion to show that “independent reasons or intervening circum-

stances dispel the appearance of vindictiveness and justify its

458 UnrtepD STATES v. MONTOYA

decisions.” United States v. Hooton, 662 F.2d 628, 634 (9th

Cir. 1981), cert. denied, 455 U.S. 1004 (1982); see also

Garza-Juarez, 992 F.2d at 906.

While most vindictive prosecution cases involve re-

indictment of a defendant, the mere filing of an indictment

can support a charge of vindictive prosecution. Hooton, 662

F.2d at 634. However, the Montoyas must still prove an

improper prosecutorial motive through objective evidence

before any presumption of vindictiveness attaches. See

Goodwin, 457 U.S. at 380 n.12. Despite the fact that they

were provided with numerous internal government docu-

ments, they were unable to prove improper motive.

[16] As previously mentioned, the standard of review for

claims of vindictive prosecution is unsettled in this circuit.

See Garza-Juarez, 992 F.2d at 903. Even under the de novo

standard of review, however, we conclude that the presump-

tion of vindictiveness did not arise in this case. See Goodwin,

457 U.S. at 380 n.12; Jeffers v. Lewis, 38 F.3d 411, 418 (9th

Cir. 1994) (en banc) (“Nor does the prosecutorial practice of

threatening a defendant with increased charges if he does not

plead guilty, and following through on that threat if the defen-

dant insists on his right to stand trial, create a presumption of

vindictive prosecution.” (internal quotation and citation omit-

ted)); cf. Garza-Juarez, 992 F.2d at 907 (presumption arose,

but was rebutted).

Outrageous government conduct is not a defense, but rather

a claim that government conduct in securing an indictment

was so shocking to due process values that the indictment

must be dismissed. See Hampton v. United States, 425 U.S.

484 (1976); United States v. Russell, 411 U.S. 423, 431-32

(1973). Under the “extremely high standard” of this doctrine,

an indictment should be dismissed “only when the govern-

ment’s conduct is so grossly shocking and so outrageous as to

violate the universal sense of justice.” Garza-Juarez, 992 F.2d

eT ee

UnitTep States v. Montoya 459

at 904 (internal quotation omitted): see also Solorio, 37 F.3d

at 458.

Other than a reference to “outrageous govemmental

conduct” in a heading in their opening brief, the Montoyas do

not develop this argument until their reply brief. In their reply

brief, the Montoyas argue that the indictment of Rosario Mon-

toya is a “vindictive outrage,” based on a letter to Filiberto

Montoya from AUSA Weiner. The letter Stated that “[t}he

government would be willing to accept a plea of guilty to one

Or more specific charges by Filiberto Montoya in return for a

conclusion to the government’s investigation and no charges

being brought” against his wife.

{17} Issues not “specifically and distinctly raised and

argued” in the opening brief need not be considered by the

court. Officers for Justice v. Civil Sery. Comm'n, 979 F.2d

721, 726 (9th Cir. 1992), cert. denied, 113 S. Ct. 1645 (1993).

While we decline to consider the argument in any detail, there

is no evidence in this case that would Satisfy the “extremely

high” burden to establish a claim of Outrageous goverment

conduct.

V.

CONCLUSION

There was no error in the district court’s refusal to dismiss

the indictments. The Govemment met its burden of proof

under Kastigar and this court’s precedent. There was no evi-

dentiary or non-evidentiary use, direct or indirect, of Filiberto

Montoya’s immunized testimony. The claim of prosecutorial

vindictiveness as a basis for dismissing the indictments fails.

We decline to remand the case for a full evidentiary hearing

and cross-examination of the nine declarants because under

the circumstances of this case, the Government met its

Kastigar burden of proof without the necessity of a full hear-

ing. We have considered all of the contentions advanced by

460 UNriteED States Vv. MONTOYA

the parties and conclude that no further discussion is neces-

sary. The convictions of Filiberto E. Montoya and Rosario

Montoya are affirmed.

AFFIRMED.

BRIGHT, Senior Circuit Judge, dissenting.

I respectfully dissent from the majority’s opinion which

affirms the convictions of Filiberto E. and Rosario Montoya.

The majority mistakenly rejects the Montoyas’ arguments that

this prosecution is tainted because of improper use of Fili-

berto Montoya’s immunized testimony and that the indict-

ment was based on vindictive prosecution."

Non-evidentiary Use of Immunized Testimony

In this case, the crucial issue is whether the Government

has demonstrated that it did not use the immunized testimony,

directly or indirectly, in prosecution of the Montoyas, as

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

and the precise wording of the applicable statute.” Here, the

‘Technically, Rosario Montoya does not qualify for fifth amendment

relief, as she gave no immunized testimony. The government, however,

agrees that her appeal shall be governed by the resolution on her hus-

band’s fifth amendment claims. Thus, we refer to both Montoyas as mak-

ing the same claims.

218 U.S.C. § 6002 reads, in part:

Whenever a witness refuses, on the basis of his privilege

against self-incrimination, to testify or provide other information

in a proceeding before or ancillary to—

(1) acourt or grand jury of the United States,

and the person presiding over the proceeding communicates to

the witness an order issued under this part, the witness may not

ne ee oe ES AES Oey eS ae”

Unrtep States v. MONTOYA 461

Goverment has failed to meet its burden of proof under

Kastigar and this court’s precedent. To the contrary, the evi-

dence indicates that AUSA Reese, the original prosecutor,

used Filiberto Montoya’s immunized testimony before the

grand jury in January 1989 to compare it to prior information

contained in the investigation report and also to Montoya’s

testimony at the Oklahoma trial in May 1989.

As a result of the comparison, AUSA Reese concluded that

Montoya had testified untruthfully before the grand jury and

in Oklahoma. Rather than prosecuting Montoya for perjury,

AUSA Reese initiated the steps leading to the prosecution of

the Montoyas for the crimes of which they were ultimately

convicted. AUSA Reese’s recommendations were set forth in

the memorandum to the United States Attomey requesting

permission from the Department of Justice to prosecute Mon-

toya for conspiracy to commit bank and mail fraud and money

laundering, in addition to the substantive offenses. AUSA

Meza and AUSA Weiner, the subsequent prosecutor, were

exposed to this recommendation. The prosecutors improperly

used Filiberto Montoya’s immunized testimony to initiate a

case against the Montoyas.

Therefore, the Government could not affirmatively answer

the following question: did the Govemment indirectly use

Filiberto Montoya’s immunized testimony to indict the Mon-

toyas? The decision to initiate prosecution of an immunized

witness may be considered non-evidentiary use of immunized

testimony. United States v. Crowson, 828 F.2d 1427, 1430

refuse to comply with the order on the basis of his privilege

against self-incrimination; but no testimony or other information

compelled under the order (or any information directly or indi-

rectly derived from such testimony or other information) may be

used against the witness in any criminal case, except a prosecu-

tion for perjury, giving a false statement, or otherwise failing to

comply with the order.

18 U.S.C. § 6002 (emphasis added).

462 Unrtep States v. MONTOYA

(9th Cir. 1987) (citing United States v. McDaniel, 482 F.2d

305, 311 (8th Cir. 1973)).°

As construed by the Supreme Court, 18 U.S.C. § 6002

“provides a sweeping proscription of any use, direct or indi-

rect, of the compelled testimony and any information derived

therefrom...” Kastigar, 406 U.S. at 460. “This total prohibi-

tion 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.” Id.

The record indicates that Reese used Montoya’s immunized

testimony as an investigatory lead in deciding to initiate pros-

ecution of the Montoyas which is explicitly prohibited by

Kastigar. The investigatory lead is a significant use of the

immunized testimony. Even if the Government had evidence

derived from legitimate independent source, the Government

significantly used Montoya’s immunized testimony in decid-

ing to initiate prosecution.

The Government, however, failed to show that its decision

to initiate prosecution did not rely on Reese’s conclusion that

Montoya should be prosecuted because of his failure to fully

cooperate during the grand jury investigation and at the Okla-

homa trial. The record indicates that Reese resorted to using

Montoya’s immunized grand jury and trial testimony to

decide that the prosecution ought to go forward, rather than

initiating a prosecution of Mr. Montoya for perjury which is

permissible under the statute.

The Government initially possessed information regarding

Montoya’s connection to the Contreras family. Therefore, the

*The Crowson court recognized that United States v. Byrd, 765 F.2d

1524 (11th Cir. 1985), suggests the contrary where the immunized testi-

mony does not enter into the subsequent tnal.

Li aaeaceeecensiiaminiiiiiaicidainaniiiiaaiiaiiil

UNiteD STaTEs v. MONTOYA 463

Government did not need to grant Montoya use immunity to

obtain evidence of his participation in alleged criminal activ-

ity. The AUSA sought Montoya’s assistance in arresting and

convicting the alleged drug smuggler, Jose Leonardo

Contreras-Subias. The Government then granted Montoya use

immunity in order to proceed with its case against the

Contreras-Subias organization. As the record shows, AUSA

Reese became dissatisfied with Montoya’s immunized testi-

mony before the grand jury and at trial. Of course, Reese

became dissatisfied with Montoya’s testimony only by an

examination of and comparison to the immunized testimony

with other evidence. Reese’s comparisons and recommenda-

tion to prosecute the Montoyas based on the immunized testi-

mony tainted the entire prosecution of the Montoyas in

violation of their fifth amendment right against self-

incrimination.

The district court and the majority opinion fail to recognize

this important use of the immunized testimony and mistakenly

conclude that Reese’s involvement was too remote from the

criminal proceeding against Montoya to constitute non-

evidentiary use of the immunized testimony. The majority

opinion seems to adopt the rule that as long as the new prose-

cution relies on independent evidence that the Government

previously possessed, the Govemment may use immunized

testimony against an immunized defendant.

Neither Crowson nor United States v. Byrd, 765 F.2d 1524

(11th Cir. 1985), answer the precise question before us. This

court, in Crowson, stated:

We believe the government’s burden of showing

that its evidentiary use of the immunized testimony

was proper should not change merely because mem-

bers of the prosecution team had access to the testi-

mony. “The focus of the inquiry under Kastigar. . .

is not whether the prosecutor was aware of the con-

tents of the immunized testimony, but whether he

464 Unrtep States v. MONTOYA

used the testimony in any way to build a case against

the defendant.’ Caporale, 806 F.2d at 1518.

A more difficult question is what proof or proce-

dures the government must employ to carry its bur-

den of showing that it made no non-evidentiary use

of the immunized testimony. ‘Such [non-evidentiary |

use could conceivably include assistance in focusing

the investigation, deciding to initiate prosecution,

refusing to plea bargain, interpreting evidence, plan-

ning cross-examination, and otherwise generally

planning trial strategy.” McDaniel 482 F.2d at 311.

Crowson, 828 F.2d at 1430 (emphasis added). The Crowson

court concluded:

The goverment has established a prior, indepen-

dent source for all of the evidence introduced before

‘the second’ grand jury and at trial. Even assuming

that this is insufficient to meet the government's bur-

den of showing that there was no non-evidentiary

use of Crowson’s immunized testimony, we feel that

there are other indications that the government did

not indirectly use his testimony for non-evidentiary

purposes despite its admitted access to that testi-

mony.

Id. at 1431 (emphasis added). The emphasized statements

above cannot be made here where Reese used and relied on

the immunized testimony for bringing on the case.

In Byrd, the court recognized the “difficult question”

whether Kastigar “prohibits any use of immunized testimony

for [a] non-evidentiary purpose[.]” Byrd, 765 F.2d at 1528-29.

The court answered that question in the negative as a case of

first impression in that circuit. I reject Byrd as inconsistent

Unitep States v. MONTOYA 465

with the language of Kastigar and the unambiguous wording

of the statute.‘

Vindictive Prosecution

A prima facie case of prosecutorial vindictiveness is estab-

lished if a defendant shows either direct evidence of actual

vindictiveness or facts that warrant an appearance of prosecu-

torial vindictiveness. United States v. Sinigaglio, 942 F.2d

581, 584 (9th Cir. 1991). Evidence indicating a realistic or

reasonable likelihood of vindictiveness may give rise to a pre-

sumption of prosecutorial vindictiveness. United States v.

Garza-Juarez, 992 F.2d 896, 906 (9th Cir. 1993). The major-

ity concludes that the Montoyas were unable to prove

improper prosecutorial motive which would give rise to a pre-

sumption of vindictiveness. I, however, disagree.

In order to decide to initiate prosecution of the Montoyas,

AUSA Reese compared the investigatory records, including

Montoya’s immunized testimony, to determine whether Mon-

toya testified falsely. After Reese determined, in his mind.

that Montoya testified falsely, Reese could either prosecute

Montoya for perjury, which he was apparently unwiiling to

do, or proceed against Montoya in another manner.

Reese decided to use all of the information which was ini-

tially gathered to prosecute Montoya, without giving Montoya

a chance to defend his immunized testimony. Reese was not

willing to prosecute Montoya initially because he wanted

Montoya to testify against targeted defendants. When Reese

became dissatisfied with Montoya’s testimony, Reese decided

to initiate prosecution.

“United States v. Byrd, 765 F.2d 1524, 1531-32 (11th Cir. 1985) (inter-

preting Kastigar as not requiring a court to inquire into a prosecutor’s

mouves in seeking indicument and limiung the privilege against seif-

incnimination to protect only direct and indirect evidenuary uses of com-

pelled tesumony). This writer believes the language in Byrd is directly

contrary to Kastigar.

466 Unrtep STATES Vv. MONTOYA

Reese, in sum, became judge and jury of Filiberto Mon-

toya’s conduct. Reese did not have enough proof to proceed

with perjury charges so he obviously decided to punish

Mr. Montoya with using the information the Government

always had to prosecute him, and then, for extra measure, pro-

ceeding to recommend prosecution of Mrs. Montoya.

The flaw in this scheme is that the Government should have

prosecuted Montoya initially, rather than granting him immu-

nity. Reese, however, resorted to subterfuge. If Montoya lied,

Reese, under the statute, could have initiated a prosecution for

perjury. Instead, he turned Montoya’s fifth amendment privi-

lege against self-incrimination on its head, concluding that

Montoya lied and Reese proceeded on a course to “fix” him.

I would not countenance that prosecutorial excessive zeal.

To me, the evidence in the record indicates a realistic likeli-

hood of personal pique and personal frustration which gives

rise to a presumption of prosecutorial vindictiveness.

Accordingly, I would reverse the Montoyas’ convictions.

APPENDIX B

NOT FOR PUBLICATION

MAY -3 1995

UNITED STATES COURT OF APPEALS

N, CLERK

A CATTERSON os

FOR THE NINTH CIRCUTTOATHY Eater oF.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ROSARIO MONTOYA,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

FILIBERTO E. MONTOYA,

Defendant-Appellant.

No. 93-50411

D.C. No.

CR-92-0572-GT

D.C. No.

)

)

)

)

)

)

)

)

)

)

) No. 93-50440

)

)

) CR-92-0572-GT

)

)

)

)

)

)

Before: BRIGHT,- WIGGINS, and T.G.

NELSON, Circuit Judges.

Judges Wiggins and T.G. Nelson vote

to deny the petition for rehearing and to

* Honorable Myron H. Bright, Senior

United States Circuit Judge for the

Eighth Circuit, sitting by designation

reject the suggestion for rehearing en

banc. Judge Bright votes to grant the

petition for rehearing and recommends

acceptance of the suggestion for

rehearing en banc.

The full court was advised of the

suggestion for rehearing en banc and no

active judge requested a vote on whether

to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing is denied

and the suggestion for rehearing en banc

is rejected.