United States v. Oliver L. North
920 F.2d 940, 287 U.S. App. D.C. 146 (1990)
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Rule of Law:
When prosecuting a defendant who has previously given immunized testimony, the Fifth Amendment privilege against self-incrimination requires the prosecution to prove, at an evidentiary hearing, that its evidence is derived from a source wholly independent of the immunized testimony. This burden includes demonstrating that the testimony of any witness exposed to the immunized testimony was not shaped, directly or indirectly, by that exposure.
Facts:
- Oliver North, an official in the National Security Council, was involved in the Iran-Contra affair.
- Congress granted North use and derivative use immunity to compel his testimony before a joint congressional committee.
- North's immunized testimony was broadcast nationally and received extensive media coverage.
- The Independent Counsel (IC) subsequently sought to prosecute North for his role in the Iran-Contra affair.
- Several witnesses who would later testify for the prosecution against North were exposed to his televised immunized testimony.
- One key witness, Robert McFarlane, altered his own testimony before Congress after hearing North's immunized testimony.
Procedural Posture:
- The Independent Counsel indicted Oliver North in the U.S. District Court for the District of Columbia on charges related to the Iran-Contra affair.
- North filed a motion to dismiss the indictment, arguing it was tainted by his immunized testimony before Congress, in violation of Kastigar v. United States.
- The district court denied the motion and declined to hold a full evidentiary hearing on whether witnesses had been tainted by exposure to the testimony.
- A jury convicted North on three counts, including altering and destroying documents (Count 9).
- North, as appellant, appealed his convictions to the U.S. Court of Appeals for the D.C. Circuit.
- A panel of the D.C. Circuit reversed North's convictions, holding that the district court was required to conduct a full witness-by-witness Kastigar hearing.
- The Independent Counsel, as appellee, petitioned the D.C. Circuit panel for a rehearing on its decision.
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Issue:
Does the government's duty under Kastigar v. United States to prove an independent source for its evidence extend to proving that trial witnesses, independent of the prosecution team, were not influenced by their exposure to the defendant's widely-publicized immunized testimony?
Opinions:
Majority - Per Curiam
Yes. The government's duty to show an independent source for its evidence extends beyond the prosecution team and requires it to prove that its witnesses' testimony was not influenced by exposure to the defendant's immunized testimony. Kastigar's prohibition on 'any use' of compelled testimony is violated whenever the prosecution puts on a witness whose testimony is shaped, directly or indirectly, by that compelled testimony, regardless of how the witness was exposed. Merely insulating the prosecution team from the testimony is insufficient because the damage to the defendant is the same whether the prosecutor or a witness uses the immunized information. The burden of proof remains squarely on the prosecution to disprove use, and the defendant is entitled to a full evidentiary hearing to challenge the prosecution's claims of non-use.
Dissenting - Wald, C.J.
No. The majority's opinion extends Kastigar too far, creating an unworkable and practically unattainable standard that effectively transforms limited use immunity into a sweeping transactional immunity for defendants in high-profile cases. A distinction should be made between prosecutorial exposure, which is rightly prohibited, and independent witness exposure, which is beyond the prosecutor's control. The prosecutor should only be required to make a prima facie showing of non-taint, after which the burden should shift to the defense to produce some evidence of actual taint before a full hearing is required. The majority's ruling cripples the ability of the Independent Counsel to prosecute government corruption and allows officials to immunize their colleagues simply by exposing themselves to immunized testimony.
Dissenting - Ginsburg, R.B., J. (from denial of rehearing en banc)
This dissent focuses only on Count 9 and does not answer the main issue. Judge Ginsburg argues that the panel majority erred in finding that the Independent Counsel had conceded that 18 U.S.C. § 2071 requires subjective knowledge of unlawfulness, which would allow a defense based on an unreasonable belief that one's actions were authorized. A careful review of the briefs and oral argument transcript reveals no such concession. The court should not decide significant statutory interpretation issues based on a questionable reading of a colloquy at oral argument, as it creates poor precedent and puts counsel in an untenable position.
Analysis:
This decision significantly heightened the government's burden under Kastigar, making it exceptionally difficult to prosecute individuals after they provide widely publicized immunized testimony. By extending the taint inquiry from the prosecution team to every exposed witness, the court requires a meticulous and often impractical process of proving a negative: that a witness's memory and testimony were not subtly influenced. This ruling forces Congress and prosecutors to make a difficult choice between the public's interest in being informed through televised hearings and the government's interest in pursuing criminal convictions. The decision effectively requires prosecutors in such cases to 'can' or pre-record all potential witness testimony before the immunized testimony occurs, a monumental task that may chill future high-profile prosecutions.
