The opinion of the court was delivered by: Reggie B. Walton, United States District Judge
This matter comes before the Court on a petition entitled Defendant's Motion to Reconsider Kastigar Remedy Pursuant to Subsequent D.C. Circuit Authority ("Def.'s Mot."), filed on January 23, 2003, following the defendant's conviction.*fn1 Prior to the defendant's trial, this Court conducted a hearing to determine whether a Kastigar evidentiary hearing was necessary in light of the defendant's contention that the government improperly used inculpatory statements that he made to the prosecutor during a debriefing that was conducted after he received an informal grant of immunity from the government. See Kastigar v. United States, 406 U.S. 441, 460 (1972) (once a defendant has been compelled to testify pursuant to a grant of immunity, the government has the burden of establishing that the evidence was derived from a source independent of the defendant's statements); United States v. Kilroy, 27 F.3d 679, 683 (D.C. Cir. 1994) ("Kastigar . . . provides the framework for analysis applicable to prosecutions of previously immunized witnesses: for a prosecution to proceed over the objection of an immunized witness, the court must hold a hearing in which the `heavy burden' is on the government to demonstrate `that it obtained all of the evidence it proposes to use [or has used] from sources independent of the compelled testimony.'") (quoting United States v. North, 910 F.2d 843, 854, reh'g granted in part, 920 F.2d 940 (D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991)). At the conclusion of this hearing, the Court determined that while the defendant's attorney at the time of the debriefing had given the defendant incorrect advice as to the scope of the immunity he had been granted, a Kastigar hearing was nevertheless unnecessary. The Court reached this conclusion because although it found that the defendant's waiver of his Fifth Amendment privilege against self-incrimination, as related to the government's ability to use information it derived from the statements he made during the debriefing, was not knowing or intelligent, this defect in the waiver was solely the product of his attorney's incorrect advice that his statements could not be used against him in any manner. Thus, the Court reasoned at that time that there was no remedy available to the defendant under Kastigar, even assuming arguendo that the government used the information the defendant provided to acquire other inculpatory information that the government intended to use in its prosecution of the defendant, which the government denies was the case. The defendant's motion for reconsideration has led the Court to re-examine the language of the debriefing agreement, which informally purported to grant the defendant only use immunity regarding the statements that he made during his debriefing, and the Court now concludes that the language of this debriefing agreement, coupled with the incorrect advice given to the defendant by his attorney about the scope of this grant of informal immunity, requires that a Kastigar hearing be conducted.*fn2
The events giving rise to the issues now before this Court began on July 16, 2001, when the defendant was arrested and charged with criminal offenses involving the possession and distribution of heroin. Government's Memorandum in Opposition to Defendant's Motion to Reconsider Kastigar Remedy ("Gov't. Mem.") at 1. Several weeks later, on July 30, 2001, the defendant participated in a debriefing session with government officials pursuant to a Debriefing Letter that had been drafted by the government,*fn3 which states, in pertinent part:
(1) First, except for paragraphs two and three
below, no statements made by or other information
provided by your client during the "off-the-record"
debriefing(s) will be used directly against your
client in any criminal proceeding. (2) Second, the
government may make derivative use of and may pursue
any investigative leads suggested by any statements
made by or other information provided by your client.
(This provision is necessary in order to eliminate the
necessity for a Kastigar hearing at which the
government would have to prove that the evidence it
would introduce at trial is not tainted by any
statements made by or other information provided by
Def.'s Mot., Exhibit ("Ex.") A. The defendant alleges that during the debriefing session he "admitted to having participated in illicit activities with an individual previously unknown to the prosecutor in this case . . . who [subsequently] testified at trial and before the grand jury . . ." and that as a result of his statements the government was able to charge him with additional crimes. Def.'s Mot. at 3. The government, however, disputes this contention and represents that it knew about the witness prior to the debriefing and that any evidence used to obtain the indictments*fn4
and used at the defendant's trial was acquired independent of the statements made by the defendant during the debriefing session. Gov't. Mem. at 13-14.
In February 2002, as mentioned above, this Court conducted an evidentiary hearing during which the defendant's counsel at the time of the debriefing session, Stanley Foshee, testified. Mr. Foshee, who had been replaced as the defendant's attorney by the Court, testified that he discussed the contents of the Debriefing Letter with the defendant prior to the debriefing session for "no less than a half hour and no more than an hour." Def.'s Mot., Ex. B (Transcript Testimony of Stanley Foshee) at 8. With regard to paragraph (2) of the Debriefing Letter, which addressed the topic of "derivative use" and sought to qualify paragraph (1) which indicated that the defendant's debriefing statement would not "be directly used against [him] in any criminal proceeding[,]" Mr. Foshee testified that he told the defendant:
`Derivative Use' meant that the statements that he
made to the government, if they contained information
of criminal activity that was or was not the subject
matter of this particular case and did or did not
involve him, that the government could take that
information, investigate that information, and if it
developed, they could bring charges against him for
that information that contained criminal activity that
he may have participated in.
Id. at 11. Mr. Foshee also testified that he had recently reviewed notes that he had purportedly made on his copy of the Debriefing Letter when he had explained the contents of the immunity agreement to the defendant, and his notes indicated he informed the defendant that "the `derivative use' issue indicates that the government may pursue any investigative leads per any statements that the defendant gives . . .[,]" which he asserted corroborates his recollection of his explanation of `derivative use.' Id. at 14. Mr. Foshee stated that he went through the contents of the letter with the defendant several times prior to the debriefing session "because [he] wanted to make sure that [the defendant] understood what [he] was talking about." Id. at 15-18.
However, the Court was highly suspect about the accuracy of Mr. Foshee's testimony because it directly conflicted with the position he had taken at an earlier hearing.*fn5 During the earlier hearing on January 24, 2002, when Mr. Foshee was still representing the defendant, he had argued to the Court that "we assumed, your honor, that any information or evidence will — given by my client at that time would not be used against him in terms of it showing up as an actual charge in a superseding indictment as it has done." Id. at 25 (emphasis added). Mr. Foshee also stated at that time that "we interpreted the language in 2 and 3 [of the Debriefing Letter] as to indicate — first of all, we assumed that nothing he provided in those debriefings would be used against him in any shape, form or fashion." Id. at 27 (emphasis added). Mr. Foshee further explained that his "client was under the impression, first of all, that anything he told them would not be used against him in any shape, form or fashion. The derivative use of the information that he provided he thought would be provided as it related to other people." Id. at 27-28.
When questioned about the inconsistency between the position he was taking at the February hearing regarding what he allegedly informed the defendant prior to the debriefing session about what "derivative use" meant, as compared to the position that he had taken earlier at the January hearing on the same subject, Mr. Foshee simply explained that he "misspoke" at the earlier hearing when he used the term "we" when indicating what he intended to convey about his client's understanding of the Debriefing Letter. Id. at 29-34. He further alleged that at the earlier hearing he was merely advocating on behalf of his client and attempting to advance his client's position, and that he had in fact given the defendant a correct interpretation of the term "derivative use." Id. In response to the Court's observation that "the responses that [he] gave at the last hearing at least suggested that [he] had an interpretation of the agreement consistent with [the defendant's,]" which was glaringly incorrect, Mr. Foshee responded
Yes, I understand that, your honor. And that's what I
am saying. After I reflected on that incident, I went
back and consulted my notes that I had done in the
debriefing session with [the defendant], the
explanation of the letter. What I guess I did was to
assume the posture that he had taken at the time I
made the statements to the Court, but, in actuality,
at the time that I interviewed [the defendant] and
explained the contents of the debriefing letter, it
was to tell him the things that I indicated earlier in
this session about how the information could be used
against him. And I felt that he understood that
because he said he understood it.
Id. at 32. On this point, the Court finds it important to note that on redirect examination of Mr. Foshee, the defendant's new attorney returned to the notes that Mr. Foshee had allegedly made on the Debriefing Letter while explaining it to the defendant, and which Mr. Foshee allegedly relied upon to refresh his memory about what exactly he explained to the defendant about this agreement. These notations, according to Mr. Foshee, indicated that he explained that "the `derivative use' issue indicates that the government may pursue any investigative leads per any statements that the defendant gives . . ." Id. at 14. The defendant's new attorney, however, pointed out that the notations that were made on the Debriefing Letter were from two different pens, as demonstrated by two different ink colors, and he argued that Mr. Foshee had actually added some of the notations at some point after the meeting with the defendant. Id. at 59-60.
The defendant also testified during the evidentiary hearing. He began by stating that he was born in Nigeria, that he came to this country in 1986, and that he went to Texas Southern University for two years. Def.'s Mot., Ex. B (Transcript Testimony of Sorenson Oruche) at 11. The defendant stated that Mr. Foshee explained to him that paragraph (1) of the Debriefing Letter indicated that "anything that [the defendant] said in th[e] debriefing [was] off the record and nothing that [he] said would be used against [him] in anything at all." Id. at 15. With regards to paragraph (2) of the Debriefing Letter, which contained the "derivative use" language, the defendant testified that he had difficulty understanding its language and that he "was concerned about a Kastigar hearing and derivative use of information." Id. He then stated that as a result of his discussions with Mr. Foshee, he understood that the only limitations on the immunity he had been granted was that if he changed his testimony during future proceedings when he was providing assistance to the government in connection with the investigation of other individuals, the government could prosecute him for changing his testimony. Otherwise, the defendant said Mr. Foshee told him that the government would not use the statements against him. Id. at 16-18. He also stated that Mr. Foshee led him to believe that a Kastigar hearing described what amounted to a bench conference during a trial to determine the admissibility of evidence. Id. at 16.
The Court held at the conclusion of the evidentiary hearing that the defendant's waiver of his Fifth Amendment privilege against self-incrimination was not knowing and intelligent because his statements were the product of incorrect advice given by his attorney. The Court also held that his statements were made voluntarily, and thus, the defendant was not entitled to a Kastigar hearing. The defendant now seeks reconsideration of the Court's previous ruling based on a recent ruling by the District of Columbia Circuit in United States v. Hylton, 294 F.3d 130 (D.C. Cir. 2002).
(A) The District of Columbia Circuit's ...