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December 19, 1989


The opinion of the court was delivered by: GREENE

 The issue before the Court is whether it should dismiss the indictment on account of what defendant claims to be the government's failure to comply with the requirements of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d. 212 (1972).


 Factual Background

 In the spring of 1987, defendant was subpoenaed to testify and to provide documents to the congressional committees investigating the so-called Iran-contra affair. Prior to that time, the Office of Independent Counsel had convened a grand jury which was investigating the same subject in a criminal context. When called by the congressional bodies, defendant asserted his Fifth Amendment privilege against self-incrimination. Upon application by the congressional committees, the District Court issued orders compelling defendant to testify, at the same time granting him what is called "use immunity" with respect to that testimony. 18 U.S.C. § 6002. In compliance with these orders, defendant testified for several days before the committees in executive session and for several more days in public. The public sessions were widely broadcast and televised, and they were the subject of extensive coverage in the print media.

 Following his indictment here, defendant, together with two of his co-defendants who had also received immunity -- Oliver North and Albert Hakim -- requested that Judge Gesell of this Court, who was then presiding over all the Iran-contra cases, dismiss the indictment pursuant to Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d. 212 (1972). Ultimately, as discussed below, that request was denied, and it has now been renewed to this Court.

 In Kastigar, the Supreme Court was faced with the issue whether an individual may be compelled over his objection to give testimony, consistently with the Fifth Amendment's privilege against self-incrimination, when the government provides him with use immunity pursuant to 18 U.S.C. § 6002. The Court answered that question in the affirmative, but in so doing it held that, to be effective, the immunity grant must prohibit the prosecutorial authorities from using the compelled testimony in any respect. In that vein, the Court ruled that the prohibition on use includes use of the compelled testimony as an investigatory lead and of evidence obtained by focusing investigation on the immunized witness as a result of compelled disclosures. However, said the Supreme Court, neither the Fifth Amendment nor the immunity statute precludes the government from prosecuting such a witness by the use of evidence from independent sources.

 When the Kastigar issue was first raised before Judge Gesell by the defendants, including Poindexter, he held an evidentiary hearing, at which Lawrence Walsh, the Independent Counsel appointed with respect to these cases, testified regarding the precautions he had taken to prevent exposure of the attorneys on his staff to the congressional testimony of Poindexter, North, and Hakim -- the three Iran-contra defendants who had been granted immunity. *fn1" Judge Gesell also reviewed the entire transcript of the grand jury proceedings that led to the indictment of these persons in order to determine whether impermissible use had been made of the immunized testimony by and before that body; he reviewed related documents; and he ordered a severance of the defendants based in part on the possibility that a defendant might want to make use at trial of the immunized testimony of a co-defendant. On June 16, 1988, the Judge issued a thoughtful and comprehensive Opinion, detailed findings, and an order that denied defendants' motion to dismiss on Kastigar grounds. United States v. Poindexter, 698 F. Supp. 300 (D.D.C. 1988). *fn2"

 On August 25, 1989, defendant Poindexter filed with this Court a "Renewed Motion to Dismiss" on Kastigar grounds. After briefing by both parties of the issue, and after hearing legal argument, this Court ordered that two evidentiary hearings be held. At one of these, testimony was taken from the two members of the Independent Counsel's professional staff who had not been exposed to the early prophylactic measures adopted by the Independent Counsel, and at the other, testimony was heard from five prospective trial witnesses. *fn3" See Parts IV and V, infra. The motion is now ripe for decision.


 Legal Principles

 As will be seen below, the decisions which have interpreted and applied Kastigar are by no means unanimous in their approach to the immunity problem. In that circumstance, to the extent that this Court is not bound by precedent (i.e., decisions from the Court of Appeals for this Circuit), it is useful to consider general jurisprudential principles as guideposts for decision.

 It is also clear, however, that, as is so frequently true in the law, care must be taken that a doctrine designed as a shield is not transformed into a sword. As applied to the situation here, this means that the defendant is entitled only to be free from being confronted at a criminal trial with evidence which stems, in one form or another, from the testimony he gave at the immunity proceeding, here the congressional hearing. The defendant is not entitled, however, to be free from any and all prosecutions relating to the subject matter of his immunized testimony, even those which are untainted by that immunized testimony and are independent of it. Such complete immunity, generally called transactional immunity, is not available to the defendant here: it was never granted to him. *fn4"


 Test Applied by the Court

 With this background, it now becomes appropriate to delineate the test the Court is applying pursuant to the decided cases with respect to the government's burden to demonstrate the absence of taint from the immunized testimony, and its corollary, the existence of independent knowledge by witnesses for the government. The Kastigar Opinion states that use immunity "prevents the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." 406 U.S. 453, 92 S. Ct. 1653, 32 L. Ed. 2d 212.

 Based on this Kastigar language, defendant argues that dismissal is here required as a matter of law because the government "faces the impossible prospect of tracing all of the evidence accumulated during the course of the investigation and used as investigatory leads to sources wholly independent of the immunized testimony. Each step of the investigative chain by which the evidence presented was obtained must be documented or accounted for." *fn5" Defendant goes on to claim that, if the Court chooses not to dismiss the indictment outright, the government must "at the very least, call each witness, all grand jury and trial witnesses, all grand jurors, and each member of the prosecution staff who has assisted in this case." *fn6" As counsel has explained several times at oral argument, in defendant's view the government must, in essence, prove a negative: that, whatever instruction may have been given to grand jurors or witnesses, or whatever the evidence may indicate with respect to the independence of a witness' testimony in relation to Poindexter's immunized testimony in Congress, the government must demonstrate affirmatively that the immunized testimony did not, somehow, in some way, come to the attention of the witnesses, prosecuting attorneys, or grand jurors, and had an influence on their thinking, even one for which they cannot at this time consciously account.

 The Court rejects this absolutist approach. There is no question but that language can be found in a few isolated decisions, particularly in United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973), to support defendant's position. *fn7" However, with respect to its broad language, McDaniel stands alone. Even the Eighth Circuit has since 1973 abandoned the McDaniel standard. *fn8" Similarly, the other Courts of Appeals have criticized McDaniel and have refused to follow it. Typical in that regard is the recent decision of the First Circuit in United States v. Serrano, 870 F.2d 1, 17-18 (1st Cir. 1989). There, the Court stated flatly that it "disagree[d] with the Eighth Circuit's statement in McDaniel, 482 F.2d 311, that, where the prosecutor has been exposed to the immunized testimony, 'the government is confronted with an insurmountable task in discharging the heavy burden' of proving no nonevidentiary use," and it suggested that the McDaniel approach "amounts to a per se rule that would in effect grant a defendant transactional immunity," 870 F.2d at 17, in contravention of Kastigar.

 A number of recent decisions which have discussed the Kastigar rule in detail mandate application of the rule in a manner that falls short of the broad view espoused by the defendant. Most important for present purposes is the decision of the Court of Appeals for this Circuit in United States v. Rinaldi, 257 U.S. App. D.C. 298, 808 F.2d 1579 (D.C.Cir. 1987). The court made it clear in that case that where a witness is approached and developed independently of the immunized testimony, or where the law enforcement authorities would have inevitably learned from that independent witness the information that was to be the subject of his trial testimony, no breach of use immunity occurs even if the witness was exposed to the immunized statements. 808 F.2d at 1583. The court further concluded that, if the trial judge could properly find as a fact that a non-immunized witness would inevitably have led the government to yet another witness, the second witness could testify at trial even though he was also identified through immunized statements. Finally, where it appears that the government contacted a witness prior to the grant of immunity, that witness may testify as to what he knows, unless his testimony was influenced by immunized statements that are not "essentially irrelevant to the government's case." 808 F.2d at 1584. Other Circuits are in agreement with the Rinaldi rulings or they further expand upon them, as indicated below. Accordingly, the following principles may be distilled from the appellate rulings.

 The Court must satisfy itself, and it must be able to find as a fact, that prophylactic measures were taken which, as a practical matter, as distinguished from absolute theoretical certainty, ensure that the evidence to be used at trial was untainted. See United States v. Byrd, 765 F.2d 1524, 1528-32 (11th Cir. 1985). If in spite of proper precautions, there is some evidence of taint, the indictment will not be dismissed if the untainted evidence is beyond a reasonable doubt substantial. Serrano, 870 F.2d at 15-16; Byrd, 765 F.2d at 1530-31 & n.8; United States v. Gregory, 730 F.2d 692, 698 (11th Cir. 1984). Moreover, even if the evidence of taint is substantial, the validity of the indictment and of any conviction secured thereunder will still be sustained if the evidence provided by the government's witnesses was derived independently of the immunized testimony. See Rinaldi, 808 F.2d at 1583; Byrd, supra; United ...

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