U.S. v. Garrett

• Decision Date: 24 July 1986
• Docket Number: No. 85-1528,85-1528
• Citation: 797 F.2d 656
• Parties: 21 Fed. R. Evid. Serv. 381 UNITED STATES of America, Appellee, v. Edward E. GARRETT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 656

797 F.2d 656

21 Fed. R. Evid. Serv. 381

UNITED STATES of America, Appellee, v. Edward E. GARRETT, Appellant.

No. 85-1528.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 15, 1986.

Decided July 24, 1986.

Michael R. Salamo, Fayetteville, Ark., for appellant.

Steven N. Snyder, Asst. U.S. Atty., Fort Smith, Ark., for appellee.

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and MURPHY ^* District Judge.

JOHN R. GIBSON, Circuit Judge.

Edward E. Garrett appeals his conviction following a jury trial on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1982), and one count of false declarations before a grand jury (perjury) in violation of 18 U.S.C. Sec. 1623 (1982). Garrett's principal contention on appeal is that the district court erred in not dismissing the conspiracy count in the indictment because the grand jury which returned the indictment heard him testify on related matters under a grant of use and derivative use immunity, in violation of his fifth amendment privilege against self-incrimination. Garrett also contends that the district court erred in not dismissing the indictment because the prosecution failed to respond adequately to a motion for a bill of particulars granted by the court, and thereby improperly withheld information necessary to enable him to prepare an effective alibi defense. Finally, Garrett contends that the district court improperly limited his cross-examination of an unindicted coconspirator to show bias, in violation of his sixth amendment rights. We reverse and remand for an evidentiary hearing on the grand jury issue, and affirm the district court in all other respects.

In the fall of 1983, the Federal Bureau of Investigation arrested Don Louis Church in northwest Arkansas in possession of a substantial quantity of cocaine. An address book found on Church at the time of arrest listed Garrett's name and phone number.

On January 5, 1984, a grand jury, impaneled to investigate cocaine trafficking in northwest Arkansas involving Church and other named and unnamed individuals, called Garrett as a witness to inquire why his name appeared in Church's address book, and to determine his relationship with Church and another target of the grand jury, John Wesley Cooper, Jr. The grand jury informed Garrett of its charge, and advised him that he had been granted use immunity. The grand jury inquired into Garrett's relationship with Church and Cooper, and specifically asked whether Church or Cooper had ever discussed cocaine dealings with him. Garrett stated that both were merely friends, and that neither had ever discussed cocaine with him. ¹ The transcript of Garrett's entire testimony before the grand jury, all of it self-exculpatory, totalled thirty-nine pages.

Some seven months later, in July 1984, Church and Cooper agreed to cooperate with the government. In their statements to the authorities, Church and Cooper disclosed that they had conspired to obtain and distribute twenty kilograms of cocaine. Cooper contacted Garrett, who met with both Cooper and Church at Cooper's home, to discuss the sale of a portion of the cocaine. According to Church and Cooper, Garrett met them at Cooper's home in Bella Vista, Arkansas, purchased and took delivery of two kilograms of cocaine, and paid the one hundred thousand dollar purchase price over a period of approximately five weeks.

In November 1984, Special Agent Hardin, who had been involved in the investigation, appeared before the grand jury which had heard Garrett's immunized testimony. Hardin informed the grand jury of Garrett's role in the conspiracy, at times reading from statements Church and Cooper had supplied the FBI. The grand jury thereafter returned a two-count indictment against Garrett: count one charged him with conspiring to distribute cocaine with Cooper and Church; count two charged him with providing perjurious testimony to the grand jury.

Before trial, the defendant filed a motion to dismiss the substantive conspiracy count of the indictment on the ground that the grand jury which heard his immunized testimony was incompetent to return an indictment charging him with substantive violations relating to matters on which he had testified. In its response, the government provided the district court with a copy of the grand jury testimony of Agent Hardin, which contained the inculpatory statements of Garrett's co-conspirators; Garrett's grand jury testimony was already part of the trial court record. The district court, without holding a hearing to determine if the indictment was based in any way on Garrett's immunized testimony, denied the motion to dismiss. Garrett was convicted at trial on both counts. This appeal followed.

I.

Garrett's principal contention on appeal is that the government acted improperly in securing his indictment on the substantive charge of conspiracy to distribute cocaine from the same grand jury which had heard his immunized testimony on related matters. Garrett contends that the grand jury necessarily used his immunized testimony in returning the indictment, thus violating his fifth amendment privilege against self-incrimination, and the district court erred in not dismissing the conspiracy count of the indictment. Alternatively, he argues that the district court erred in not holding an evidentiary hearing to ensure that the indictment did not rest, directly or indirectly, on his immunized testimony.

The federal use immunity statute, 18 U.S.C. Sec. 6002 (1982), provides that no testimony or other information which a witness is compelled to disclose to the grand jury under the immunity order may be used against him, directly or indirectly, in a criminal prosecution except for perjury. ² In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court held that compelling testimony from a grand jury witness granted use immunity does not violate the witness's fifth amendment privilege against self-incrimination. The Court reasoned that the immunity provided by section 6002 is at least coextensive with the scope of the fifth amendment privilege, id. at 448-58, 92 S.Ct. at 1658-63; an immunized witness therefore is left in " 'substantially the same position as if the witness had claimed his privilege' in the absence of * * * [the] grant of immunity." Id. at 458-59, 92 S.Ct. at 1663-64 (quoting Murphy v. Waterfront Commission, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964) ). The Court further held, however, that to enforce the statutory prohibition on any use of the immunized testimony and adequately protect the witness's fifth amendment privilege, an immunized witness subsequently prosecuted "need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources." Id. at 461-62, 92 S.Ct. at 1665. This burden, the Court explained, provides a "very substantial protection," id. at 461, 92 S.Ct. at 1665; it "is not limited to a negation of the taint, rather it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S.Ct. at 1664.

Garrett contends that in the unique situation where the grand jury which has heard a witness's immunized testimony later indicts the witness, the government cannot carry its affirmative burden prescribed in Kastigar by simply submitting grand jury transcripts to the district court for inspection in camera. ³ Garrett points out that the two federal courts of appeals which have addressed this question have disapproved of this practice, and, acting under their general supervisory powers, have mandated either outright dismissal of the indictment, United States v. Hinton, 543 F.2d 1002 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976), or a full evidentiary hearing be held to ensure that the grand jury made no direct or derivative use of the immunized testimony, United States v. Zielezinski, 740 F.2d 727 (9th Cir.1984).

The government argues that under United States v. Costello, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), and subsequent cases, courts may not dismiss or question an indictment, valid on its face, on the ground that the grand jury considered incompetent evidence, including evidence obtained in violation of an individual's fifth amendment privilege. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). The government further argues that even if the courts are not forbidden from looking behind an indictment under these specific circumstances, it clearly carried its burden of proving that all evidence which supported the indictment was derived from sources wholly independent of Garrett's immunized testimony, and no evidentiary hearing was required.

A.

In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, the Supreme Court held that the fifth amendment's grand jury clause ⁴ does not require the dismissal of an indictment based solely on hearsay evidence. Relying primarily on the historical practices of the English grand jury, id. at 362, 76 S.Ct. at 408, the Court held that a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence, whether based on the Constitution or their supervisory powers, "would run counter to the history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules." Id. at 364, 76 S.Ct. at 409. The Court concluded, "[a]n indictment returned by a legally constituted and unbiased grand jury * * *, if valid on its face, is enough...