# Appendix A — Montoya v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1844%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix A - **Published:** January 1, 1995 - **Citation:** 516 U.S. 814 ## Text 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 eel atte Oy cad nbd