Appeals from the Superior Court of the District of Columbia (FEL-6206-00 & FEL-6219-00) (Hon. Judith E. Retchin, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and STEADMAN, Senior Judge.
In 2001, appellant Kenneth Aiken was convicted of committing a series of felony and misdemeanor offenses against his former girlfriend, Patricia Parker, in 2000. On appeal to this court, he sought relief from those convictions on a number of grounds, including that his trial counsel provided ineffective assistance by failing to request a so-called Kastigar*fn1 hearing, at which the government would be required to prove that its evidence at trial would not include evidence derived from immunized testimony that appellant gave at a hearing on Parker's petition for a civil protection order ("CPO"). We concluded that appellant had made "a more than colorable showing of deficient performance" by his counsel in failing to request a Kastigar hearing, and we held that appellant was entitled to a hearing to determine whether the government had made use of his immunized testimony at trial and, if so, whether the use "was harmless beyond a reasonable doubt in light of the strength of the government's case." Aiken v. United States (Aiken I), 956 A.2d 33, 49-50 (D.C. 2008).
The trial court held the Kastigar hearing in December 2008. Afterward, in an April 27, 2009 order ("Order"), the trial court ruled that the government had met its burden of proving that "none of the government's evidence was tainted by [appellant's] CPO testimony." Appellant now appeals from that ruling, arguing that the trial court clearly erred in so finding. We agree with appellant that the government did not meet its burden to prove by a preponderance of the evidence that no use was made of his immunized testimony. We also conclude that as to three of appellant's convictions - his conviction of an alleged August 22, 2000 felony threat (Count 6) and two of his misdemeanor destruction of property convictions (Counts 8 and 9) - the use made of his immunized testimony was not harmless beyond a reasonable doubt. Accordingly, we conclude that appellant is entitled to reversal of his convictions of those charged offenses.
I. Procedural History and Background
This case arose from a series of threats, harassing telephone calls, and assaults allegedly committed by appellant against Parker beginning in March 2000. On September 26, 2000, a hearing was held on Parker's request for a CPO. At the conclusion of the CPO hearing, at which both appellant and Parker testified, the trial court issued a CPO directing appellant to stay away from Parker.
In December 2000, appellant was indicted for escape from a halfway house, and on January 3, 2001, he was charged in a separate 15-count indictment with numerous offenses against Parker (including some that were committed after issuance of the CPO).*fn2 The cases were joined for trial. On January 30, 2001, a jury found appellant guilty of felony threats (three counts), felony destruction of property, stalking, and simple assault. The court found appellant guilty of simple assault, five counts of misdemeanor destruction of property, and two counts of violating a protective order. Appellant was sentenced to an aggregate term of 14 years of imprisonment.
There followed appellant's direct appeal, his D.C. Code § 23-110 motion alleging ineffective assistance of counsel, his appeal from the trial court's denial of that motion, and this court's decision in Aiken I remanding for the Kastigar hearing. In its Order issued on April 27, 2009 (as amended nunc pro tunc on May 19, 2009), the trial court found that appellant's immunized testimony "was not used to refresh memories, focus thoughts, organize testimony, or alter witnesses' statements," was "not used for non-evidentiary purposes such as focusing an investigation, refusing to plea bargain, interpreting evidence, planning trial strategy, or planning cross-examination,"and"did not alter, shape, or affect witness testimony or [appellant's] prosecution."
In his appeal from that Order, appellant asserts that the government failed to prove that the prosecution of his case was not tainted by the police detective's and the prosecutor's exposure to (or exposure to information about) his immunized testimony. He also argues that the evidence the government presented at trial - primarily through the testimony of Parker, who heard his testimony at the CPO hearing - contained new facts, details, and explanations that were prompted by that immunized testimony and that "added depth to [Parker's] story," "significantly strengthened the credibility of her allegations," ascribed a motive to appellant for one of the alleged offenses, and bolstered the testimony of the government's witnesses by pre-empting defense challenges to their credibility. He contends that he was prejudiced by these impermissible uses of his immunized testimony (which, he asserts, would have been excluded had his counsel provided effective representation and requested a pre-trial Kastigar hearing) and that he therefore is entitled to reversal of his convictions.
We begin with a discussion of the law that guides our analysis. At the time of the CPO hearing, D.C. Code § 16-1002 (c) provided in pertinent part that "[t]estimony of the respondent in any civil proceeding under this subchapter [including a CPO hearing] and the fruits of that testimony shall be inadmissible as evidence in a criminal trial except in a prosecution for perjury or false statement."*fn3 In Aiken I, we reasoned that even though § 16-1002 (c) did not compel testimony by the respondent in a CPO proceeding, its purpose was "to enable (if not to compel) witnesses to testify (in CPO hearings) without losing, in effect, the benefits of the privilege against self-incrimination." 956 A.2d at 44. We noted that in Kastigar, the Supreme Court held that where a statutory grant of immunity affords a protection "coextensive" with the protection furnished by the Fifth Amendment privilege against self-incrimination, it "imposes on the prosecution the affirmative duty to prove that the evidence it propose[s] to use is derived from a legitimate source wholly independent of [a defendant's] compelled testimony." Kastigar, 406 U.S. at 453, 460; see Aiken I, 956 A.2d at 44. We held that the government bore the same burden under § 16-1002 (c) - i.e., that the government had the burden of proving that it did not make direct or derivative use of a defendant's immunized testimony by "demonstrat[ing] that it obtained all of the evidence it . . . use[d] from sources independent of the compelled testimony." Aiken I, 956 A.2dat 45 (quoting United States v. North (North I), 910 F.2d 843, 854 (D.C. Cir. 1990)) (internal quotation marks omitted).
As we noted in Aiken I, "[m]ost courts following Kastigar have imposed a 'preponderance of the evidence' evidentiary burden on the government." 956 A.2d at 45 (citation and internal quotation marks omitted).*fn4 This is a "heavy" burden, Kastigar, 406 U.S. at 461, because of the "difficulty of proving a negative." Aiken I, 956 A.2d at 45 n.39. Nevertheless, the government is not required to "negat[e] . . . all abstract possibility of taint." United States v. Schmidgall,25 F.3d 1523, 1529(11th Cir. 1994).
The "total prohibition on use" of an individual's immunized testimony described in both Kastigar and Aiken I affords "very substantial protection," since it "bars the use of such testimony 'as an investigatory lead,' and also bars 'the use of any evidence obtained by focusing investigation on a witness as a result of' such testimony." Aiken I, 956 A.2d at 45 (quoting Kastigar, 406 U.S. at 460). Courts have held that to prove that its investigation was unaffected by a defendant's immunized testimony, the government must "document or account for" "[e]ach step of the investigative chain by which the evidence presented was obtained." United States v. Hampton, 775 F.2d 1479, 1490 (11th Cir. 1985).
Further, a prohibited use of immunized testimony occurs "if a witness's recollection is refreshed by exposure to the defendant's immunized testimony, or if his testimony is in any way shaped, altered, or affected" by such exposure, "even where the witness testifies from personal knowledge," and "regardless of the prosecutor's fault." Aiken I, 956 A.2d at 45 (quoting United States v. Poindexter, 951 F.2d 369, 373 (D.C. Cir. 1991), and United States v. North (North II), 920 F.2d 940, 942 (D.C. Cir. 1990) (other citations and internal quotation marks omitted)). A witness's testimony also must be excluded if it "was motivated by" exposure to the immunized testimony. North II, 920 F.2d at 942 (internal quotation marks omitted and emphasis removed) ("[E]ven where the witness testifies from personal knowledge, use within the meaning of Kastigar may occur . . . if the immunized testimony influenced the witness' decision to testify."); see also United States v. Hylton, 294 F.3d 130, 134 (D.C. Cir. 2002) (noting that "if Hylton's statements were a cause of Wright's decision to plead and testify against Hylton, Wright's testimony was impermissible").
The failure of the government to meet its burden under Kastigar "can have most drastic consequences," including entitling the defendant to a new trial. Aiken I, 956 A.2d at 46 (citations and internal quotation marks omitted). However, even if immunized testimony was impermissibly used, "vacation of the conviction is not necessary where the use is found to be harmless beyond a reasonable doubt." North I, 910 F.2d at 854; see also Schmidgall, 25 F.3d at 1529 (explaining that a conviction "may be upheld on a finding that the use of such tainted evidence was harmless beyond a reasonable doubt").
In reviewing a trial court's ruling as to whether the government met its burden under Kastigar, we review the court's legal conclusions de novo, but the trial court's "determination that the government has carried its burden of showing independent sources is a factual finding that is subject to review under the 'clearly erroneous' standard." North I, 910 F.2d at 855; see also United States v. Nanni, 59 F.3d 1425, 1433 (2d Cir. 1995) ("Whether the government made use of immunized testimony, and, if it did, whether it would have taken the same steps entirely apart from the motivating effect of the immunized testimony, are questions of fact, and the district court's findings on those questions will be affirmed unless they are clearly erroneous.").
Recognizing the government's heavy burden, we stated in Aiken I that "[t]he government's ability to surmount such a difficult obstacle in this case" was "doubtful." 956 A.2d at 41-42. Appellant contends that government has not surmounted that obstacle; we agree that it has not fully done so.
A. The Investigation and Prosecution
Appellant emphasizes that Kastigar requires the government to show "that prosecuting officials and their agents were aware of the immunity problem and followed reliable procedures for segregating the immunized testimony and its fruits from officials pursuing any subsequent investigations." Hampton, 775 F.2d at 1490 (citations and internal quotation marks omitted). Appellant asserts that in this case, the government did not make the required showing as to the investigation and the prosecution of his criminal case because the record from the Kastigar hearing makes clear that the government did not follow reliable procedures to separate the immunized testimony from subsequent investigation and trial preparation. We are constrained to agree.
At the Kastigar hearing, the government presented the testimony of Detective Pamela Herndon*fn5 and former Assistant United States Attorney Pamela Satterfield, the trial prosecutor. The evidence showed that Herndon, who was the leadinvestigator assigned to appellant's case, attended the CPO hearing and thus was exposed to appellant's immunized testimony. The government therefore was required to account for each step of the investigative chain in order to prove that Herndon's dealings with witnesses and other investigative tasks were unaffected by the immunized testimony. See Hampton, 775 F.2d at 1490. Since it appeared that her investigatory activities "could have been motivated by both tainted and independent factors," the government needed to ...