United States v. Bryant L. Hampton, 775 F.2d 1479, 11th Cir. (1985)
United States v. Bryant L. Hampton, 775 F.2d 1479, 11th Cir. (1985)
United States v. Bryant L. Hampton, 775 F.2d 1479, 11th Cir. (1985)
2d 1479
Bruce Hinshelwood, Robert Stanley Powell, Asst. U.S. Attys., Orlando, Fla.,
for appellee.
Appeal from the United States District Court for the Middle District of Florida.
course of the investigation was appellant Bryant L. Hampton, a local real estate
broker whose name appeared on county records as the trustee of a residence at
31 McGlaughlin Street, a residence which had been found to contain a large
amount of marijuana.
7
Later, on May 15, 1980, Mr. Hampton gave additional immunized testimony
pursuant to a subpoena from the State's Attorney's office. This testimony, given
in response to interrogation from Lee County Investigator William McQuinn
and Assistant State's Attorney Stephen B. Russell, also discussed matters not
covered in the investigator's summaries of Hampton's prior unimmunized
statements. This time Hampton's testimony was recorded on audio cassette
tape. Because Hampton enjoyed state transactional immunity, he was never
charged in connection with the state investigation. The state narcotics charges
against Musselwhite were ultimately dismissed.
11
12
In July, 1981, Mr. Hampton was subpoenaed to appear before the federal grand
jury in Orlando. Mr. Hampton appeared before this grand jury on July 14,
1981, and upon advice of counsel invoked his Fifth Amendment privilege
against self-incrimination. Assistant United States Attorney Donald Christopher
and Department of Justice Attorney Patricia Pilleggi were responsible for the
1981 grand jury investigation.6 While Mr. Christopher denied having read any
transcript or listened to any tape of immunized testimony, he acknowledged that
Ms. Pilleggi may have.7 Moreover, Mr. Christopher admitted that in preparing
his own interrogations of the various grand jury witnesses, he relied heavily
upon case summaries and outlines prepared by the federal investigative agents,8
who admittedly had access to the state investigative files,9 presumably
including the immunized testimony contained therein, and who had admittedly
consulted with state investigative officials about the case, all without any
cognizance of the fact that some of the materials and information conveyed by
state officials may have been derived directly or indirectly from Hampton's
immunized testimony.10 The record further indicates that the federal agents
assisted in the preparation and issuance of subpoenas to various grand jury
witnesses, and that in doing so the agents relied upon information gleaned from
the state investigative files.11
13
14
15
16
Subsequently, Mr. Hampton was again subpoenaed to testify before the federal
grand jury in Orlando on January 11, 1984. In response to this subpoena, Mr.
18
19
20
Several federal prosecutors were responsible for the 1983-84 grand jury
investigation that culminated in Hampton's indictment. AUSA Robert Powell
denied having ever read Hampton's immunized statements or having personally
developed any leads from them.22 However, Mr. Powell admitted that he relied
throughout the investigation upon investigative summaries prepared by state
officials23 and upon briefings by Agent Altif and Special Deputy Barr,24 each of
whom admittedly had access to the immunized materials and other information
collected by the state after the immunized testimony was given.25 Powell also
conceded that the federal agents upon whom he relied had received the state
materials and used them to work up leads in the case some two years before the
agents became aware that there were immunity problems with some of the state
information. 26 Consequently, during the course of the federal investigation
prior to the discovery of the immunity problem and up until November of 1983,
it is undisputed that federal investigators utilizing state briefings and materials
had no special procedures or instructions to shield themselves from the
immunized testimony (or information derived therefrom by state investigators),
and made no effort to do so.27
21
22
Proceedings Below
23
Following his indictment, Mr. Hampton filed several pretrial motions seeking
dismissal of the indictment on the grounds that (1) the government had failed to
produce a sample of the alleged marijuana for defense testing; (2) the
prosecutor had stampeded the grand jury; and (3) Counts Three and Four were
barred by the statute of limitations. Each of these motions was denied by the
district court without a hearing.
24
event, the federal prosecution was barred by the state grant of transactional
immunity. After an evidentiary hearing which lasted a day and a half, the trial
court denied these motions as well. As to the question of improper use of
immunized testimony, the trial court, ruling from the bench, summarized its
holding as follows:
25[T]he Court is satisfied that the statements made in [March] of '79 were free and
...
voluntary, not protected by the Fifth Amendment and not immunized. For the
purpose of a Motion to Dismiss and for the purpose of going forward, I think the
Government has shown that they do have a completely independent source and that
no immunized statements were either used or that the leads that they had received
prior to the immunized statements have not been tainted by the statements. So, the
Motion to Dismiss will be denied.
26
(Vol. V, p. 77).
27
Following the denial of Hampton's pretrial motions, the trial court (with the
assent of the government) accepted a conditional plea of guilty from Hampton
as authorized by Fed.R.Crim.P. 11(a)(2). Pursuant to the plea agreement,
Counts One, Two and Three of the indictment were dismissed by the
government. Mr. Hampton's plea of guilty to Count Four, as specifically
recognized by the court below, permitted Hampton to appeal the denial of the
above-described pretrial motions. See Fed.R.Crim.P. 11(a)(2). Following entry
of the plea, the lower court sentenced Hampton to three years in prison with a
special parole term of two years. This appeal followed.
DISCUSSION
28
In this appeal, Hampton challenges the rulings of the lower court on each of his
pretrial motions. Because we find that the lower court was clearly erroneous in
overruling the motion to dismiss premised upon the government's alleged use of
Hampton's immunized testimony, we need not address Hampton's arguments
with respect to the other pretrial motions.
29
immunity, to matters related to the federal prosecution, the federal authorities have
the burden of showing that their evidence is not tainted by establishing that they
have an independent, legitimate source for the disputed evidence.
31
Murphy, 378 U.S. at 79, n. 18, 84 S.Ct. at 1609, n. 18. In Murphy, the Supreme
Court held the constitutional rule to be that
32a state witness may not be compelled to give testimony which may be
...
incriminating under federal law unless the compelled testimony and its fruits may
not be used in any manner by federal officials in connection with a criminal
prosecution against him. We conclude, moreover, that in order to implement this
constitutional rule and accommodate the interests of the State and Federal
Governments in investigating and prosecuting crime, the Federal Government must
be prohibited from making any such use of [state-immunized] testimony and its
fruits.
33
Murphy, 378 U.S. at 79, 84 S.Ct. at 1609. Thus, even though the Murphy court
held that a federal prosecution was not automatically barred by a state grant of
transactional immunity, it emphasized that the burden lay on the federal
authorities to show "that their evidence is not tainted by establishing that they
had an independent, legitimate source for the disputed evidence." Id., at 79 n.
18, 84 S.Ct. at 1609 n. 18.
34
In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212
(1972), the Supreme Court further explained the scope and effect of such "use
and derivative use" immunity:
36
37
38
In the instant case, the government plainly did not carry its burden. Although
the government argues (and the court below held) that the unimmunized
statements of March 7 and March 12, 1979, constituted a legitimate
independent source for all of the information contained in the subsequent
immunized testimony, the record will not support such a finding. A review of
the state investigators' summaries of Hampton's unimmunized statements,
which constitute the only evidence available on this record of the contents of
those statements, shows that several important matters and details discussed in
the immunized testimony of November 5, 1979, and May 15, 1980, are not
reflected in the statements from the preceding March. For instance, the
November and May statements contain Hampton's first discussions of his
contacts with Warren Musselwhite, "Sonny" Wilson, and "Hooker" Brown.
Contacts with other key figures in the Bonita Springs investigation, including
numerous real estate and property transactions with Cindy Laughlin, the
girlfriend of Sonny Wilson who had ties to various other persons and property
involved in the Bonita Springs operation, are also discussed in detail for the
first time in the immunized materials. In addition, as noted above, the
immunized testimony contains the first references to the use of cashier's checks
to purchase the house at 31 McGlaughlin Street,36 an item of information that
prosecutors appear to have used (for all that is discernible from the record) to
build a case against Musselwhite, and information that may well have been
utilized by state and federal officials as an investigatory lead in the case
generally. These are just a few examples of the new information contained in
the immunized testimony which may have furthered the state and the federal
investigation.37
39
Nor was the evidence presented during the grand jury proceedings which
culminated in Hampton's indictment limited to information revealed in the
March 7 and March 12 statements. For instance, even aside from the new
information revealed in the grand jury testimony of Warren Musselwhite,
Agent Altif testified before the indicting grand jury on March 7, 1984, to the
use of the cashier's checks in the purchase of the house at 31 McGlaughlin
Street, the participation of "Sonny" Wilson and others in this transaction, and
the fact that Hampton "handled" the sale of this residence.38 Altif also testified
that
40
41
42
43
The appellee in this case did not meet its burden. Indeed, aside from conclusory
allegations of reliance upon the unimmunized statements of March 1979 and
conclusory denials of use or derivative use by various state and federal officials,
the government made little effort to affirmatively trace each item of evidence
that may have been considered by the indicting grand jury to legitimate, wholly
independent sources. Obviously, the government's conclusory denials of direct
or derivative use are insufficient even to "negate taint," much less to carry the
government's affirmative burden of tracing all evidence presented to wholly
independent sources. Cf. Kastigar, 406 U.S. at 460, 92 S.Ct. at 1664. And while
the government did establish that state investigators knew certain aspects of
some of the real estate transactions prior to any immunized testimony from
Hampton, 43 there was no attempt to systematically establish an independent
source for each and every item of evidence which may have been considered by
the indicting grand jury, such as the relationship between Hampton and Wilson
and the use of 23 cashier's checks purchased in fictitious names to cancel the
source of the funds used to purchase one of the "stash" houses. Hampton's
participation in such a questionable transaction, together with his relationship to
Wilson, may well have been considered by the grand jury as evidence of his
knowing involvement with the marijuana later found in the house at 31
McGlaughlin Street. 44 The government never attempted to trace step by step the
manner in which Hampton's unimmunized statements supposedly led to such
additional information.
44
45
Based upon a review of the entire record on appeal, and particularly the
transcripts of the Kastigar hearing, it appears that the government labors under
the misapprehension that it can satisfy its obligations under Kastigar merely by
establishing independent sources for a portion of the evidence that may have
been considered by the indicting grand jury and utilizing conclusory denials of
use or derivative use mouthed by state and federal officials to fill in the
numerous evidentiary holes that remain. We take this opportunity to disabuse
the government of this faulty notion. Kastigar and its progeny require dismissal
of an indictment of a previously immunized witness unless the government can
demonstrate that "none of the evidence presented to the grand jury is derived,
directly or indirectly, from the immunized testimony...." See United States v.
Byrd, 765 F.2d at 1530 (emphasis supplied).51 Moreover, neither speculation
nor conclusory denials of use or derivative use by government officials will
substitute for the affirmative showing of an independent source required for
each and every item of evidence presented to the indicting grand jury. See
Byrd, 765 F.2d at 1529; United States v. Seiffert, 463 F.2d 1089, 1092 (5th
Cir.1972) (Seiffert I ). See also Kastigar, 406 U.S. at 460, 92 S.Ct. at 1664.
Compare United States v. Gregory, 730 F.2d 692, 697 n. 2 (11th Cir.1984)
(specific independent sources adequately proven for some items of evidence,
but not for others). Each step of the investigative chain by which the evidence
presented was obtained must be documented or accounted for. The prosecutor
who obtained the indictment may have never seen the immunized testimony
and may believe in good faith that no one associated with the federal
prosecution has utilized it, but that is not enough.
47
Such a disclaimer does not preclude the possibility that someone who has seen
the compelled testimony was thereby led to evidence that was furnished to
federal investigators. Only by affirmatively proving that his evidence comes
from sources independent of the immunized testimony can the prosecutor
assure that the witness is in the same position he would have enjoyed had his
self-incrimination privilege not been displaced by [a grant of] immunity.
48
United States v. Nemes, 555 F.2d 51, 55 (2d Cir.1977); accord, United States v.
Tantalo, 680 F.2d 903, 908 (2d Cir.1982).
49
Even in the ordinary case, the government's affirmative burden under Kastigar
is in practical terms a heavy one. See Kastigar, 406 U.S. at 461, 92 S.Ct. at
1665. Unless the government relies solely upon evidence obtained prior to the
immunized testimony, cf. United States v. Byrd, supra, the principles of
Kastigar generally require (as a practical matter) a showing 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. In the case at hand, no such
showing was made, and the government's burden of affirmatively proving
independent sources therefore appears to have been virtually insurmountable.
After all, the record clearly shows that state investigators obtained Hampton's
immunized grand jury testimony in November of 1979, and continued to
investigate the case and assimilate information for two years thereafter.
Obviously the state investigators had no reason to segregate the immunized
testimony during the course of their investigation or to be concerned about
whether evidence obtained thereafter was derived from the immunized
testimony, since Hampton enjoyed transactional immunity as far as the State of
Florida was concerned. The record also shows beyond peradventure that when
state investigators turned their complete investigative files over to federal
authorities in mid-1981 and subsequently briefed federal officials on the
information they had accumulated in the course of the state investigation, they
neither informed federal officials that the investigation was predicated in part
upon immunized testimony nor sought to differentiate between information
learned or derived from Hampton's immunized testimony and other evidence
derived from wholly independent sources.52 Thereafter, numerous federal
officials had access to Hampton's immunized statements and studied and used
the state information and materials in furtherance of their own investigation for
nearly three years, without even realizing that some of Hampton's statements
were immunized, much less that some of the other evidence contained in the
state files may have been derived directly or indirectly therefrom. In these
circumstances, the prospect of tracing all of the evidence accumulated during
the course of the investigation and used as investigatory leads to sources wholly
independent of Hampton's immunized statements would seem unrealistic at
best. Moreover, the statements of Agent Altif and other government officials to
the effect that no direct or derivative use was made of such statements, even
aside from their legal insufficiency, must be viewed with considerable doubt
given the peculiar history of this case.53
CONCLUSION
50
One compelled through a grant of immunity to testify against himself has the
legitimate expectation, engendered by the Fifth Amendment itself, that his
testimony will not be used to obtain other evidence or testimony against him,
and that he will not be prosecuted absent a clear demonstration that each item of
evidence used to obtain his indictment is traceable to a legitimate, wholly
independent source. Under Kastigar, the risk that misinformation, procedural
inadvertence or the lapse of time will make it difficult or impossible to establish
a completely independent source for all of the evidence presented to the
indicting grand jury is a risk that falls upon the government, and not upon the
previously immunized defendant. In this case, that risk has come home to roost.
We conclude that the district court was clearly erroneous in finding that
Hampton's unimmunized statements constituted an independent source for all
of the evidence that may have been considered by the indicting grand jury. Our
review of the record reveals no other basis on which to sustain the district
court's ruling on the immunity issue. We conclude that Hampton's motion to
dismiss the indictment under the principles of Kastigar should have been
granted. We therefore reverse the district court's ruling on this motion and
remand to the district court. On remand, the district court shall vacate
appellant's conviction and sentence and dismiss the indictment.54
51
Honorable Seybourn H. Lynne, U.S. District Judge for the Northern District of
Alabama, sitting by designation
The record shows that federal officials were not aware that Florida law
automatically conferred transactional immunity on witnesses subpoenaed to
testify before a state grand jury, and the grand jury transcripts of Hampton's
November 5, 1979, testimony do not reflect the fact that the testimony was
immunized. See Vol. IV, p. 157
See Vol. IV, pp. 148-50, 157-58, 235-37; Vol. V, pp. 36-40
The record indicates that it was not until November of 1983 that federal
authorities first became aware that the information assimilated by virtue of the
state investigation derived in part from immunized testimony. (Vol. IV, pp.
160-61, 246-47) (testimony of Agent Altif and AUSA Robert Powell at
Kastigar hearing)
6
Vol. IV, p. 87
10
See, e.g., Vol. IV, pp. 113-14, 149-50, 156-57 (testimony of IRS Agent Altif at
Kastigar hearing)
11
12
See Defendant's Exhibit 2, pp. 182, 203 (Hampton's immunized grand jury
testimony of November 5, 1979); Government's Exhibit 3, pp. 22-23
(Hampton's immunized interview of May 15, 1980)
13
14
15
Agent Barr was at all times relevant to this case acting as a Special Deputy U.S.
Marshal
16
17
18
19
20
Vol. IV, pp. 125-26; Vol. V, pp. 16-17; Exhibit 12M, pp. 4-7
21
Id
22
23
24
25
Vol. IV, pp. 53, 102-09, 115, 129, 139, 142, 145-52, 155-58, 220, 226-28, 23237, 242, 247, 269, 272-74 (testimony of various state and federal officials at
Kastigar hearing)
26
27
See Vol. IV, pp. 56-57, 60-61, 98-99, 113-14, 138, 144, 146-51, 158, 168, 23237, 239, 241-44, 247, 269-70, 272-77; Vol. V, pp. 36-41, 60-61
28
29
30
31
32
Vol. V, p. 23
33
Vol. V, p. 19
34
35
The Fifth Amendment, after all, is by its own terms an exclusionary rule of a
very broad scope; therefore, when a previously immunized witness is
prosecuted, the principles of that express constitutional exclusionary rule
require not merely that evidence be excluded when such exclusion would deter
wrongful police or prosecution conduct, but that the witness be left "in
substantially the same position as if he had claimed the Fifth Amendment
privilege." See United States v. Kurzer, 534 F.2d 511, 516 (2d Cir.1976),
quoting Kastigar, 406 U.S. at 462, 92 S.Ct. at 1665. Accord, United States v.
Tantalo, 680 F.2d 903, 908 (2d Cir.1982)
36
See Defendant's Exhibit 2, pp. 182, 203 (Hampton's immunized grand jury
testimony of November 5, 1979); Government's Exhibit 3, pp. 22-23
(Hampton's immunized interview of May 15, 1980). Compare Government's
Exhibit 1 (summary of Hampton's unimmunized testimony of March 7, 1979);
Government's Exhibit 2 (summary of Hampton's unimmunized testimony of
March 12, 1979)
37
These examples are not exhaustive of the facts and inferences deducible from
Hampton's immunized testimony nor of the ways in which such testimony
could conceivably have been used to obtain other information or evidence.
Suffice it to say that the unimmunized statements cannot reasonably be deemed
to be coextensive with the later immunized testimony in terms of the possible
value of the latter in the state and federal investigations
38
Exhibit 12P, pp. 4-5. Obviously, these facts could have been considered by the
grand jury in connecting Hampton to the marijuana scheme
39
The fact that Hampton's immunized testimony did not contain an admission of
guilt or of knowledge that the transactions in which he was involved were tied
in with a drug-smuggling operation does not establish that his immunized
statements were without value in the federal investigation. Even denials of
involvement in an illegal conspiracy contained in immunized statements do not
preclude the possibility of improper use of immunized testimony. Cf. United
States v. Hinton, 543 F.2d 1002, 1009 (2d Cir.1976), cert. denied 429 U.S. 980,
97 S.Ct. 493, 50 L.Ed.2d 589 (1976)
40
As noted above, various federal agents and prosecutors who had access to the
materials denied any use of the immunized testimony itself, albeit in a
conclusory fashion insufficient to carry the government's burden under Kastigar
41
42
43
For example, in the Kastigar hearing in the court below, the appellee
established that, as evidenced by a report dated April 10, 1979, state
investigator McQuinn knew prior to any immunized testimony the ownership of
the residence at 31 McGlaughlin Street, the stilt house at Fishtrap Village, and
the house at 1825 Tiller Terrace, which was also involved in the Bonita Springs
investigation. See Government's Exhibit 5. See also Vol. V, pp. 66-67. The
report also establishes that the government knew some aspects of Hampton's
involvement in the sale or leasing of these properties. However, it does not
comprise all of the information contained in the factual description of these
transactions and the relationship of Hampton and his alleged co-conspirators as
The indicting grand jury was told that Wilson financed the purchase of the
residence at 31 McGlaughlin Street. See Exhibit 12N, p. 10
45
46
Cf. Pillsbury v. Conboy, 459 U.S. 248, 264-71, 103 S.Ct. 608, 618-22,
(Marshall, J. concurring), and 282-96, 103 S.Ct. at 627-34 (Stevens and
O'Connor, JJ., dissenting) (use of immunized testimony as a basis for
subsequent questions propounded to a witness constitutes impermissible
derivative use of immunized testimony in prosecution of immunized witness).
Compare Pillsbury v. Conboy, 459 U.S. at 257 n. 12, 103 S.Ct. at 614 n. 12
(majority opinion declining to reach issue)
47
48
49
50
See, e.g., Exhibit 19, pp. 5, 8, 12 (testimony of Agent Altif concerning tracing
of cashier's checks to Musselwhite as a result of state investigators)
51
52
53
Even if such denials were made in good faith, there is in this context a
substantial possibility (if not a strong likelihood) that the federal or state agents
made some unknowing use of the immunized testimony (or its fruits) which
they do not presently recollect. It is also worth noting that several of the federal
investigators who clearly had direct or indirect access to the fruits of the state
investigation, see, e.g., Vol. IV, pp. 60-61 (federal Agent Al Monica and his
partner), Vol. IV, pp. 53, 113-14 (IRS Agent Favis), and Vol. V, p. 37 (FBI
Task Force Agent Moore, DEA Agent Cushing, DEA Agent Dugan, and certain
other unnamed IRS Agents), did not testify at all at the Kastigar hearing in the
court below as to the use they may have made of Hampton's immunized
testimony or its fruits as conveyed to them by state investigators. Indeed, their
possible knowledge and use of the immunized testimony is completely
unaccounted for. Similarly, it does not appear that all state investigators who
may have been exposed to the immunized testimony were present at the
Kastigar hearing. All of this renders it even more likely that portions of the
evidence presented to the indicting grand jury, for which no legitimate
independent sources have been affirmatively proved, may be traceable directly
or indirectly to an investigatory use of Hampton's immunized testimony or its
fruits. Given the breadth of exposure of federal investigators to presumptively
tainted state information, the lack of contemporaneous knowledge of the
Kastigar problem, and the absence of contemporaneous precautions against
intentional or unintentional use of immunized materials in furtherance of the
federal investigation, the task of legitimating all of the government's evidence
after the fact would seem next to impossible
54
The government had ample opportunity to attempt to satisfy its burden under
Kastigar in the lengthy hearing in the court below. Given the peculiar
circumstances of this case, our review of the record leads us to conclude that a
remand for a further evidentiary hearing would be unwarranted if not futile