U.S. v. Byrd, 84-9001

• Decision Date: 23 July 1985
• Docket Number: No. 84-9001,84-9001
• Citation: 765 F.2d 1524
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Thomas E. BYRD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1524

765 F.2d 1524

UNITED STATES of America, Plaintiff-Appellant, v. Thomas E. BYRD, Defendant-Appellee.

No. 84-9001.

United States Court of Appeals, Eleventh Circuit.

July 23, 1985.

Jere W. Morehead, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellant.

Charles W. Byrd, Butler, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE and HATCHETT, Circuit Judges, and LYNNE, ^* District Judge.

LYNNE, District Judge:

The United States appeals from the district court's order of September 25, 1984, dismissing the indictment returned by a grand jury of the Northern District of Georgia against appellee, Thomas E. Byrd,

on July 11, 1984, and from its subsequent order of November 14, 1984, denying the government's motion for reconsideration. Concluding that the Court below misapplied the test articulated in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), we reverse.

I. BACKGROUND

Appellee Byrd testified before a federal grand jury in Atlanta, Georgia, on June 16, 1983. This grand jury (the first grand jury) was investigating possible bribery, extortion, and other unlawful acts by several members of the Georgia Department of Labor (Department). At that time, Byrd was an employee of the Department. He and other Department employees testified before that grand jury. During questioning by Assistant United States Attorney (AUSA) Robert S. Stubbs, Byrd invoked the Fifth Amendment. At that point in time, Byrd was not a specific target of the investigation, but he was warned in advance of his testimony that the government might seek an indictment in the future based on information the government had previously obtained.

Following his invocation of the Fifth Amendment, the federal prosecutors sought and obtained a grant of "use and derivative use immunity" for Byrd pursuant to 18 U.S.C. Secs. 6002, 6003. Thereafter, he was compelled to testify to certain matters which incriminated him and other Department officials.

Byrd's immunized testimony before the grand jury was recorded and transcribed and in approximately July of 1983, copies of the transcription were given to the U.S. Attorney's office and to Joseph Coleman, the lead FBI agent on the case.

On February 6, 1984, as a result of the testimony of Byrd and various other witnesses, elicited by AUSA Stubbs, the first grand jury returned indictments against Byrd, Commissioner Sam Caldwell, and other officials of the Department. Thereafter, on March 22, 1984, AUSA Stubbs shredded and destroyed all copies of Byrd's immunized testimony, except the original, which was presented to the lower court for in camera inspection.

In May, 1984, AUSA Jere W. Morehead, was assigned to the Department case. He was assigned responsibility for assisting Stubbs in the prosecution of the Caldwell case and primary responsibility for prosecuting Byrd. He apparently had neither heard Byrd's immunized testimony nor had access to a transcript thereof.

Shortly thereafter, the lower court, on recommendation of Magistrate John Dougherty, dismissed the first indictment against Byrd because it had been returned by the same grand jury which had heard his immunized testimony. The order of dismissal was unopposed by the government.

On July 11, 1984, a different grand jury (the second grand jury) returned a new indictment against Byrd. He thereupon moved to dismiss this indictment, contending that it was based upon evidence and information derived from his immunized testimony before the first grand jury. An evidentiary hearing thereon was held on August 9, 1984, before Magistrate John Dougherty. At such hearing, FBI Agent Coleman testified that the only evidence presented to the second grand jury was his own testimony, which included (1) oral summaries of the testimony of various witnesses, excluding Byrd, who had appeared before the first grand jury, and (2) testimony concerning the contents of reports of witness interviews by FBI agents and other investigators which had been conducted prior to June 18, 1983. Coleman further testified that, although he had read a transcript of Byrd's immunized testimony prior to March 22, 1984, he had not had access to any transcripts since then. ¹ He testified that he did not present any evidence to the second grand jury which was derived from his reading of Byrd's immunized testimony, nor did he in any way refer to such testimony.

Finally, Coleman testified that he did not present any evidence to the second grand jury which had been obtained after Byrd's immunized testimony of June 16, 1983.

To corroborate Coleman's testimony before the magistrate, the government submitted the following evidence for in camera review: (1) the evidence against Byrd obtained by the government prior to the grant of immunity, which the government intended to use at trial; (2) Byrd's immunized testimony before the first grand jury, and (3) the transcript of Coleman's testimony before the second grand jury. ² In addition, AUSA Morehead testified that he was the only federal prosecutor present in the grand jury room during the proceedings before the second grand jury, and that he had neither seen a transcript of the immunized testimony nor discussed any aspect thereof with anyone. Finally, AUSA Stubbs testified that, although he had participated along with the Chief of the Criminal Division, in the decision to reindict Byrd, he had not participated in the presentation before the second grand jury.

Following the hearing and review of the evidence submitted in camera, the magistrate found that "all of the evidence was known to the government or its agents prior to June 18, 1983." (R. 235). ³ Nevertheless, the magistrate recommended dismissal of the indictment because (1) AUSA Stubbs, who had heard Byrd's immunized testimony and had access to the transcripts between July, 1983, and March, 1984, had participated in the decision to reindict Byrd, and (2) if the government's pending motion ⁴ to merge Byrd's trial with that of Commissioner Caldwell and others were granted, Coleman and Stubbs, who had primary responsibility for the Caldwell prosecution, "would be seated at the counsel table with AUSA Morehead and free to make suggestions as to the course of conduct of the trial of [Byrd]." (R. 240).

After considering the magistrate's recommendation, the district court decided to dismiss the indictment, but on a much narrower ground. Although the court had before it all of the in camera materials submitted by the government and did not specifically find that Byrd's immunized testimony had been used in any way, the court nevertheless dismissed the indictment because there was "a possibility that Coleman's awareness of the contents of Byrd's testimony may have tainted his summary of the testimony of other witnesses who appeared before the first grand jury." (R. 332) (emphasis supplied). The court further held that Coleman's testimony "that he did not make any use of Byrd's testimony, although made in good faith [was] inadequate" to negate this possibility. (R. 331).

The government then filed a motion to reconsider, insisting that the abstract possibility that Coleman might have incorporated Byrd's immunized testimony into his summaries of the testimony of other witnesses would be conclusively refuted by a comparison of the transcripts of each witness' interview reports and testimony adduced before the first grand jury with the transcript of Coleman's testimony before the second grand jury. Again, although the district court had all of these documents before it in camera and made no specific finding that they revealed any evidence that Byrd's immunized testimony had been used against him in any way, the court nevertheless reaffirmed its dismissal of the indictment "based on its analysis in its previous order." (R. 342). Alternatively, the court held that it was improper to consider in camera evidence in determining whether the government has a legitimate source for its evidence independent

                of the immunized testimony, "except in the most exigent circumstances."    (R. 343)
                

II. KASTIGAR APPLIED

This appeal presents problems of constitutional magnitude concerning the scope and effect of "use immunity" as contrasted with the erstwhile "transactional immunity." In this case, Byrd was afforded "use and derivative use immunity" pursuant to 18 U.S.C. Sec. 6002. ⁵ In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court held that "such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of privilege." 406 U.S. at 453, 92 S.Ct. at 1661. The Court reasoned that the Fifth Amendment privilege against self-incrimination

... has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of 'penalties affixed to ... criminal acts.' " Immunity from the use of compelled testimony, as well as evidence derived directly or indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness ... [I]mmunity from use and derivative use "leaves the witness in substantially the same position as if the witness had claimed his privilege" in the absence of a grant of immunity ... This protection ... is all that the Constitution requires even against the jurisdiction compelling testimony by granting immunity.

406 U.S. at 453, 458-9, 92 S.Ct. at 1661, 1663-4 (footnotes omitted) (emphasis in original). In fashioning this doctrine, however, the Court emphasized that

A person accorded this immunity under 18 U.S.C. Sec. 6002, and...