920 F.2d 940 (D.C. Cir. 1990), 89-3118, U.S. v. North

Docket Nº:89-3118.
Citation:920 F.2d 940
Party Name:UNITED STATES of America v. Oliver L. NORTH, Appellant.
Case Date:November 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 940

920 F.2d 940 (D.C. Cir. 1990)



Oliver L. NORTH, Appellant.

No. 89-3118.

United States Court of Appeals, District of Columbia Circuit.

November 27, 1990

Page 941

As Amended Nov. 30, 1990.

Lawrence E. Walsh, Independent Counsel, was on the petition for rehearing and/or suggestion for rehearing en banc.

Brendan V. Sullivan, Jr., Barry S. Simon, Paul Mogin, Nicole K. Seligman and John D. Cline were on the opposition to the petition for rehearing and/or suggestion for rehearing en banc.

Before WALD, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges.



On consideration of appellee's petition for rehearing filed September 4, 1990 and appellant's opposition thereto, it is

ORDERED, by the Court, that the petition for rehearing be granted in part and denied in part, and that Section II of our prior opinion be withdrawn and replaced by Section IV of the opinion filed herein, and point (2) of the Summary relating thereto be withdrawn and replaced by the following: "(2) The District Court's jury instructions on Count 9 did not, taken as a whole, pose a genuine risk that the jury would be confused." The reasons are set forth more fully in the opinion of the court filed herein this date.

Opinion dissenting as to Parts I, II & III filed by Chief Judge WALD.


In its petition for rehearing, the Independent Counsel ("IC") has raised several new issues regarding our original disposition. As we explain below, we believe that all but one of the IC's claims lack merit. We therefore grant in part and deny in part the petition for rehearing and modify our original opinion, 910 F.2d 843, accordingly.

  1. Immunized Testimony at Trial

    The IC claims that we misapplied United States v. Rinaldi, 808 F.2d 1579 (D.C.Cir.1987), in remanding "for a massive inquiry into 'the taint of the testimony and the derivation of the testimony.' " Petition for Rehearing at 7-8 ("Pet. for Reh'g") (quoting Majority Opinion 910 F.2d at 866 ("Maj. Op.") (emphasis in original)). The IC's argument rests on the ipse dixit that "the prosecution's freedom from taint establishes that its evidence was necessarily derived independently" and therefore that the inquiry mandated by Rinaldi would be "superfluous." Pet. for Reh'g at 8. This bold proposition, however, would convert Kastigar 's total prohibition on use, Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1973), to a mere ban on significant prosecutorial exposure

    Page 942

    to the immunized testimony. It simply does not follow that insulating prosecutors from exposure automatically proves that immunized testimony was not used against the defendant. Kastigar is instead violated whenever the prosecution puts on a witness whose testimony is shaped, directly or indirectly, by compelled testimony, regardless of how or by whom he was exposed to that compelled testimony. Were the rule otherwise, a private lawyer for a witness sympathetic to the government could listen to the compelled testimony and use it to prepare the witness for trial. The government would presumably thereby gain the advantage of use of the immunized testimony so long as it did not actually cooperate in that effort. This interpretation of Kastigar ("Look ma, no hands") pressed by the IC, if accepted, would enormously increase the risk of providing immunized testimony. To reject it, it is unnecessary to decide whether, as North asserts, particular significance should be placed on the fact that other government personnel in the legislative and executive branches outside the Independent Counsel's office were, after exposure to immunized testimony, actively involved in preparing witnesses.

    Indeed, Rinaldi explicitly recognizes that witnesses' exposure to immunized testimony can taint their trial testimony irrespective of the prosecution's role in the exposure and that an inquiry is therefore necessary into whether the content of witnesses' testimony was derived from or motivated by the immunized testimony. It specifically mandates an inquiry into what a witness knew prior to exposure to the immunized testimony and what information she gleaned from that exposure: "[t]here is accordingly a question of fact as to how much Reardon [the witness] knew prior to that meeting [at which she was exposed to the immunized testimony] and what additional knowledge, if any, she may have gained as a result of listening to Rinaldi's testimony." 808 F.2d at 1583. And even where the witness testifies from personal knowledge, use within the meaning of Kastigar may occur, as Rinaldi points out, if the immunized testimony influenced the witness' decision to testify. Rather than recognizing, as the IC claims, that a Kastigar hearing may not focus on the "psychological processes of witnesses," Pet. for Reh'g at 7 n. 4, Rinaldi directed inquiry into whether a witness' testimony "was motivated by, and therefore indirectly derived from, Rinaldi's immunized statements to the police." 808 F.2d at 1584 n. 7 (emphasis added). 1 Our opinion is thus entirely consistent with Rinaldi in calling for an inquiry on remand into the content and circumstances of witnesses' testimony.

    Our dissenting colleague does not disagree with us on this central point so vigorously disputed by the IC--that the content and circumstances of testimony given by a witness exposed to the defendant's immunized testimony may constitute "use" of the immunized testimony in violation of a defendant's constitutional rights regardless of the prosecutor's "fault." But she does contend that we have extended Rinaldi by insisting that the testimony of any witness exposed to the immunized testimony be "pre-recorded" in much the same way as prosecutors memorialize their investigative material, including witnesses' statements, so as to be able to prove in a Kastigar hearing that the government has obtained no leads from the immunized testimony. We did not, however, set forth such a requirement; we only said this burden "may" be met by "cann[ing]" the testimony beforehand, Maj.Op. at 872-873, just as wise prosecutors meet their burden of showing independent investigation by "canning" the results of the investigation before the defendant gives immunized testi

    Page 943

    mony.. 2

    To be sure, if such steps are not taken, it may well be extremely difficult for the prosecutor to sustain its burden of proof that a witness exposed to immunized testimony has not shaped his or her testimony in light of the exposure, or as the Rinaldi court observed, been motivated to come forward and testify in light of the immunized testimony. But we surely did not mean to preclude the use of any techniques of which we are not aware, nor did we mean to even suggest that the prosecutor was barred from trying to show in any fashion that a witness' testimony was not influenced by the immunized testimony. 3

    What we did insist upon, however--and here we quite definitely part company with the Chief Judge--is that the prosecutor has to prove that witnesses who testified against the defendant did not draw upon the immunized testimony to use it against the defendant; the burden of disproving use cannot, under Kastigar, be shifted onto the defendant, nor can the defendant be required to assume the burden of going forward with evidence that puts in issue the question of use. Most important, the defendant is entitled to a hearing at which he would be able to challenge the prosecution's case for non-use.

    Although our dissenting colleague expresses concern over the special institutional interests of the Independent Counsel, she does not suggest, nor could it plausibly be suggested, that the defendant's constitutional rights are somehow lessened because he was prosecuted by the Independent Counsel rather than a United States attorney or the criminal division of the Justice Department. Therefore, the dissent's rationalization (truly post hoc ) of the district judge's refusal to put the IC to its proof at a hearing must apply to any case in which the defendant gave immunized public testimony to a congressional committee. The dissent's focus is on executive branch misconduct, but congressional committees have held highly publicized hearings into a number of other perceived problems, like the influence of organized crime, corruption in the labor movement, dubious practices on Wall Street, and even, as some will recall, communist influence in Hollywood. We cannot imagine what subjects will be of public and thus congressional interest in the future. We must assume that any American could be compelled to testify in return for use immunity under 18 U.S.C. Sec. 6005 (1988), which authorizes Congress to grant that immunity, even over protests of the prosecutor, independent or otherwise. And thus the novel approach suggested by our colleague would apply to any person who finds him or herself in the position of being prosecuted after having testified publicly before Congress.

    The dissent argues that the district judge was not obliged to hold a hearing to determine whether or not the witnesses changed or shaped their testimony (or, for that matter, offered to testify) because of the immunized testimony. It is not because the question is irrelevant, according to the dissent, but rather because the IC produced something like "a prima facie case" that the witnesses' testimony was not tainted. Dissent on Pet. for Reh'g at 954. We are rather puzzled because we do not perceive that the IC put on any evidence whatsoever

    Page 944

    directed to this issue. Indeed, the district judge (as did our colleague) relied on an in-chambers review, a sort of "self-directed ... inquiry," Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983), to satisfy himself that there was no taint. Of course, this "review" neatly avoided any...

To continue reading