U.S. v. De Diego

• Citation: 511 F.2d 818,167 U.S.App.D.C. 252
• Decision Date: 16 April 1975
• Docket Number: No. 74--1769,74--1769
• Parties: UNITED STATES of America, Appellant, v. Felipe DE DIEGO.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 818

511 F.2d 818

167 U.S.App.D.C. 252

UNITED STATES of America, Appellant, v. Felipe DE DIEGO.

No. 74--1769.

United States Court of Appeals, District of Columbia Circuit.

April 16, 1975.

Henry S. Ruth, Jr., Sp. Prosecutor, Watergate Special Prosecution Force, Peter M. Kreindler, Counsel to the Sp. Prosecutor, and Kenneth S. Geller, Asst. Sp. Prosecutor, were on the brief for appellant.

William Bradford Reynolds, Washington, D.C., filed a brief as amicus curiae appointed by this court.

Before RIVES, ^* Senior Circuit Judge, and WRIGHT and McGOWAN, Circuit Judges.

Opinion for the court filed by Senior Circuit Judge RIVES.

Dissenting opinion filed by Circuit Judge McGOWAN.

RIVES, Senior Circuit Judge:

On March 7, 1974, a grand jury presented an indictment to the United States District Court for the District of Columbia which charged Felipe De Diego, five co-defendants, and three persons named as co-conspirators but not as defendants with the crime of conspiracy in violation of 18 U.S.C. § 241 (1970). ¹ As part of the conspiracy the indictment charged that the conspirators, without De Diego moved to dismiss the indictment on the ground, inter alia, that under grants of immunity from the States of Florida and California he had, on May 10, 1973, provided testimony which discussed his involvement in said conspiracy, which testimony admittedly came into the hands of the Government.

lawful authority, would covertly and unlawfully enter the offices of Dr. Lewis J. Fielding, a psychiatrist located in Beverly Hills, California, with intent to search for confidential information concerning Daniel Ellsberg, one of Dr. Fielding's patients.

In a pretrial hearing based on an offer of proof, the District Court, on May 22, 1974, granted De Diego's motion and dismissed the indictment as to De Diego with prejudice. ² On June 18, 1974 the United States appealed from the order dismissing the indictment as to De Diego. ³ We reverse and remand for further proceedings not inconsistent with this opinion.

After the pretrial hearing, in dismissing the indictment as to De Diego, the trial judge stated:

* * * Although the prosecutors had independent evidence of Mr. De Diego's admitted involvement in this matter, and have proceeded at all times in good faith, there is no practical way at this stage of the proceeding to establish whether or not a taint has occurred without hearings which would last over several days. There is not time to accomplish this before trial; and a preliminary review of the Prosecutor's proof and investigatory methods would at best generate additional pretrial publicity of a particularly unfortunate kind.

Severance, the only remaining alternative, walks squarely into the speedy trial obstacle.

* * * The prospects that taint can be removed by hearing are also, in the Court's opinion, dim. The immunized testimony was detailed and taken at an early stage of the investigation.

It is important to note that the District Court's order of dismissal (quoted at note 2 supra) is based on the ground 'that the Special Prosecutor has not met his burden of establishing that such immunity has not or will not taint the case.' Consideration of this appeal may be clarified by recognizing as precisely as we can the extent of the burden resting on the United States. We agree with the District Court's holding that

(o)nce immunity is shown, the prosecutor has the burden of demonstrating that its use of the immunized testimony has not tainted any aspect of the case up to indictment and will not do so during trial.

De Diego is entitled to the full protection of his Fifth Amendment privilege against self-incrimination. That privilege is now fully applicable to the States On the other hand, such a grant of immunity cannot afford broader protection that the Fifth Amendment privilege without infringing upon both the great common law principle that 'the public has a right to every man's evidence,' and the duty to testify 'recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor.' Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A grant of immunity broader than the Fifth Amendment privilege against self-incrimination might also infringe upon the right of another sovereignty, whether the Federal Government or another State, to enforce its laws.

as well as to the United States, whether the testimony is compelled under a grant of immunity by one or more of the States or by the Federal Government. In any event such a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 83 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

No balancing is required because the several rights, privileges, and duties, while co-terminal, are not conflicting. Each is accommodated by placing the accused in the same position as if he had claimed his privilege and refused to testify in the absence of a grant of immunity. Kastigar, supra, 406 U.S. at 441, 92 S.Ct. 1653.

As against De Diego the United States bears the 'heavy burden' (id. at 461, 92 S.Ct. 1653) of proving that all of the evidence used or to be used was derived from legitimate independent sources. Further, 'the compelled testimony can in no way lead to the infliction of criminal penalties' on the witness. Id. The prosecution must show that it did not and will not use against De Diego his immunized testimony or its fruits 'in any respect.' Id. at 453, 92 S.Ct. 1653 (emphasis by the Court). In the taint hearing the trial judge does not weigh the evidence he finds untainted. His function is exhausted when he separates the tainted from the untainted. The decision as to continuing the prosecution is the prosecutor's.

The very fact that the burden on the United States is 'heavy' emphasizes the necessity of granting an evidentiary hearing to determine taint, as required by Murphy v. Waterfront Commission, supra, 378 U.S. at 79, 84 S.Ct. 1594, and Kastigar, supra, 406 U.S. at 461--462, 92 S.Ct. 1653. Admittedly no evidentiary hearing was afforded the Government in this case. The trial court dismissed the indictment 'after oral argument' based on an offer of proof. District Court Order, supra, note 2. The prosecution made it clear, however, that if the judge was not prepared to begin the trial of the case on the basis of the offer of proof, an evidentiary hearing would be required. The trial court was of the view that '(a)lthough the prosecutors had independent evidence of Mr. De Diego's admitted involvement in this matter,' there was no way 'to establish whether or not a taint has occurred without hearings * * *.' That being so, it had no discretion to dismiss the case without giving the Government an opportunity to prove lack of taint. ⁴

The Government investigation in this case was begun before appellee was We were united with the three men from Miami, and I believe--that evening we familiarized them with the area under the nighttime operating conditions.

granted immunity after giving his statement to the Florida authorities on May 10, 1973. The record, even without an evidentiary hearing, fully confirms the trial court's judgment that 'the prosecutors had independent evidence of Mr. De Diego's admitted involvement' at that time. The record further shows that this evidence was not insignificant. The record reveals that prior to May 10, 1973 the United States was in possession of substantial evidence implicating De Diego in the break-in of Dr. Fielding's office, including extensive testimony to a grand jury in the District of Columbia given by E. Howard Hunt on May 2, 1973. Hunt's testimony would directly implicate De Diego in the alleged conspiracy, even though Hunt did not specifically identify De Diego by name as one of the two men who actually broke into Dr. Fielding's office. Hunt did testify that De Diego was one of 'the three men from Miami' he had met there when they were being recruited by Barker, another conspirator, to participate in the Fielding break-in. JA 21A. He testified further:

We rented cars, if I'm not mistaken, either that day or the following day. Each man was instructed in his duties for that target of the operation that night.

JA 22A.

We wanted a pretexted entry, a fact that was obtained by equipping two of the men from Miami with delivery men's clothing and a large green suitcase which actually carried the camera equipment inside it.

JA 23A.

* * * (W)e only had two sets of disguises, and they were used by two of the men, by the two men who made the pretexted entry earlier that evening.

Q. Who were they?

A. It would have to be two of the three. I am honestly not sure. I don't know, sir. It is just removed.

JA 25A. Among the overt acts charged in the indictment, Hunt's testimony would connect De Diego with No. 17. ⁵ As to overt act No. 18, ⁶ Hunt's testimony would indicate that two of the three actually searched the office and the third was a party to the conspiracy to search.

In addition to this pre-May 10, 1973 evidence, the prosecution argues that 'any conceivable taint which the federal government's access to (De Diego's immunity statement) might have produced was completely dissipated on June 18, 1973 when, on his own initiative and under no inducement whatsoever by the government, De Diego arrived at the office of Principal Assistant United States Attorney Earl J. Silbert and, in the presence of Silbert, Assistant United States Attorneys Seymour Glanzer and Donald Campbell, and Special Assistant to the Special Prosecutor James F. Neal, admitted his participation in the Fielding break-in.' Brief for appellant at 20. Thus the Government maintains that, wholly apart from the untainted evidence which it had accumulated prior to May 10, 1973, these admissions by appellee on June 18 establish another ...