May 29, 1985, who explained to the auditor that NCSC's premium payments were made payable to his company, Nationwide Family Plans, Inc., and that he would then remit the annuity premiums due to Hartford by checks drawn on his own company accounts. Kilroy did not reveal the shortages in the payments he had made to Hartford at the entrance interview, but within approximately a week thereafter the auditor became aware that Hartford had received considerably less than Kilroy was supposed to have remitted, and he reported the fact to NCSC.
In early July, 1985, without actually admitting his embezzlements, Kilroy referred the auditor to his Maryland attorneys then involved with the Las Vegas plea negotiations, who, when informed by the auditor of his findings and estimate of the amount of the shortage, obliquely confirmed the amount. By late September, 1985, the auditor was sufficiently certain of his figures to cause NCSC to report the shortage to the U.S. Department of Labor ("DOL") which opened a civil investigation of the matter on October 1st.
Although the evidence does not show precisely when Kilroy first disclosed his thefts from NCSC to his Maryland attorneys, it is clear that they were aware of it by the time Kilroy's plea agreement had been reached. Kilroy had, in fact, already revealed it in the course of his debriefings by the F.B.I.
On October 17, 1985, DOL's civil investigator met with NCSC's auditor, assistant comptroller, and general counsel, following which, believing he had sufficient information to suspect criminal wrongdoing by Kilroy, he reported his suspicions to Assistant U.S. Attorney ("AUSA") Harry R. Benner of the U.S. Attorney's Office in Washington, D.C. The civil investigator was by then aware Kilroy had been indicted in Las Vegas, and told AUSA Benner about it.
Benner promptly called the Las Vegas Strike Force, confirmed Kilroy's status there, and learned that Kilroy was a "cooperating witness" with whom a plea agreement had been made calling for "some sort of immunity" for him. Shortly thereafter Benner learned that the Las Vegas Strike Force had been informed of "the NCSC situation," but was told "nothing substantive." From that point forward Benner cautioned everyone involved in the DOL's investigation of the need for an "independent source" of evidence against Kilroy should they decide to prosecute him for his embezzlement from NCSC, and to avoid any "taint" resulting from exposure to information derived in any fashion from Kilroy's debriefings or immunized testimony.
The District of Columbia indictment returned in March, 1990, was supported entirely by the testimony of a single witness before the grand jury, DOL's criminal investigator, who commenced his inquiries in December, 1986. At no time was the criminal investigator privy to information developed by the government from Kilroy himself, and thus he imparted none to the grand jury in his four appearances before it.
The leading case in this jurisdiction as to the dimensions of the Kastigar protection afforded an immunized accused against consequences of his own inculpatory statements is United States v. North, 285 U.S. App. D.C. 343, 910 F.2d 843, reh'g. granted in part and denied in part, 920 F.2d 940 (D.C. Cir. 1990), cert. denied, 114 L. Ed. 2d 477, 111 S. Ct. 2235 (1991). Given its most expansive interpretation, North imposes upon the government the burden of proving that the evidence it proposes to use against an accused is neither derived from, nor motivated, affected or influenced, or shaped in any way, directly or indirectly, by the information imparted by the accused once having been promised immunity for having imparted it. The character of the government's case must, in other words, be as pristine as if the accused had never broken silence about the crime for which he is being prosecuted. See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964). It is clearly a heavy burden that Kastigar, as interpreted by North, places upon the government.
In this case, the Court finds that the government has, at least preliminarily, demonstrated the virtue of the case it proposes to offer against Kilroy. It appears to have available to it both testimonial and documentary evidence sufficient to prove a prima facie case against Kilroy which would have (and did) come to light had Kilroy never spoken on the subject of his dealings with the NCSC funds.
It is undoubtedly true that the prosecutor currently assigned to the case, and one or more possible prosecution witnesses, know of the fact -- and only the fact -- that Kilroy is purported to have confessed to his embezzlement. The government represents that responsibility for prosecution will be handed over to another Assistant United States Attorney who will be screened from even that knowledge, as well as the substance of any information Kilroy may have imparted. The case can, it appears, be proved without resort to witnesses who have knowledge of the issues raised by these pre-trial proceedings probing the extent to which the government case may have been tainted by immunized information given by Kilroy himself. It is, thus, premature to conclude that there is insufficient evidence to convict presently in the possession of the government which has not been acquired or affected in any way by Kilroy's own revelations.
Therefore, it is, this 19th day of July, 1991,
ORDERED, that defendant's motions to dismiss the indictment are denied; and it is
FURTHER ORDERED, that the defendant's motion to suppress evidence is denied without prejudice; and it is
FURTHER ORDERED, that this case is scheduled for a status conference at 9:30 a.m. on July 29, 1991, to set a date for trial.