The opinion of the court was delivered by: Sand, District Judge.
Defendants Jerry Prusan and David Vives have been charged
with unlawfully transporting into New York, their place of
residence, firearms they obtained outside the state. Defendant
Prusan has also been charged with possession of a firearm
silencer that was not registered or identified by a serial
number, and with improper storage of low explosives. As part
of an omnibus pretrial motion, defendants David Vives and
Jerry Prusan move to dismiss all charges against them, on the
ground that this indictment violates the Double Jeopardy
Clause of the Fifth Amendment. For the reasons stated below,
defendants' motion is granted as to Count One. Defendant
Prusan's motion is denied as to Counts Two, Three and Four.
Defendants Vives and Prusan also move to dismiss the
indictment on the ground that it was the product of their
immunized discussions with law enforcement officials, and so
violates their Fifth Amendment right against
self-incrimination. The Court finds that an evidentiary
hearing under Kastigar v. United States, 406 U.S. 441, 92 S.Ct.
1653, 32 L.Ed.2d 212 (1972), is required to resolve this issue.
All other requests made by the defendants as part of the
omnibus motion are denied.
THE DOUBLE JEOPARDY CLAIM
From February 1991 to April 1991, special agents from the
Bureau of Alcohol, Tobacco, and Firearms ("ATF") conducted an
investigation into suspected violations of federal firearms
laws by David Vives, Jerry Prusan, and other individuals.
See Affidavit of Special Agent Reinaldo Rodriguez in Support of
Search Warrant, attached as Exhibit 1 to Affirmation of Bruce
Ohr (hereinafter "Aff. of SA Rodriguez"). On April 1, 1991, ATF
agents executed a search warrant of the home of Jerry Prusan in
the Bronx, New York. See Affirmation of Daniel Kumor, attached
as Exhibit 1 to Supplemental Affirmation of Bruce Ohr, ¶ 2.
That search uncovered fifty-five firearms, a large quantity of
ammunition, eight pounds of low explosives, and twenty-five
cases of fireworks, as well as a firearm silencer. Id. at ¶¶
2-3. Prusan and Vives were arrested at the scene of the search.
Id. at ¶ 4.
On April 10, 1991, Prusan and Vives were indicted in the
United States District Court for the District of Puerto Rico.
Count One of the Indictment charged Prusan, Vives, and two
other individuals with conspiring to ship firearms, ammunition
and silencers in interstate commerce from New York to Puerto
Rico in violation of 18 U.S.C. § 922(a)(1)(A) and §
924(a)(1)(D) from June 1989 until April 1, 1991. See
Indictment, United States v. Maria E. Sanchez, Jerry Prusan,
David Vives a/k/a Papo, and Susanne Cintron a/k/a Susie, 91 Cr.
157 (D.P.R. Apr. 10, 1991), attached as Exhibit 1 to Prusan's
Brief in Support of Pretrial Motions (hereinafter "Puerto Rico
Indictment"). Prusan and Vives were named in every other count
of the twenty-three count Indictment, in which they were
charged with several specific substantive violations of
firearms laws § 922(a)(1)(A), § 922(a)(1)(B), § 922(a)(3), §
922(a)(5), § 922(e), and § 1715. Id. Defendants Prusan and
Vives pled guilty to several counts of the Puerto Rico
Indictment, including the conspiracy charge, and they were
sentenced on September 10, 1991, and August 30, 1991,
On May 31, 1991, Prusan and Vives were indicted in the
present action in the United States District Court for the
Southern District of New York. Count One of this indictment
charged both defendants with conspiring to transport into New
York, the state in which they resided, firearms obtained
outside the state in violation of 18 U.S.C. § 922(a)(3) from
February 1991 until the filing of the Indictment. The
Indictment also charged defendant Prusan with possessing a
firearm silencer that was not registered or identified by a
and with improper storage of low explosives in violation of
26 U.S.C. § 5861(d), § 5861(i), and 18 U.S.C. § 842(j). On
September 6, 1991, the Government filed a superseding
Indictment, which changed Count One to charge the defendants
with a substantive violation of § 922(a)(3), instead of a
conspiracy to violate that section.
Defendants Prusan and Vives argue that all charges in the
present indictment must be dismissed against them because they
constitute an improper subsequent prosecution in violation of
the Double Jeopardy Clause of the Fifth Amendment.*fn1 The
Double Jeopardy Clause provides three separate protections to
defendants: "It protects against a second prosecution for the
same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it
protects against multiple punishments for the same offense."
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
2076, 23 L.Ed.2d 656 (1969) (citations omitted). Here
defendants argue that double jeopardy bars this indictment
against them because they have been convicted of the "same
offense" in a previous prosecution.
A. The Double Jeopardy Standard
1. The Grady "Same Conduct" Test
Traditional double jeopardy analysis focused on the
statutory provisions at issue in both the initial and
subsequent prosecutions. To determine whether the violation of
two different provisions constituted two distinct offenses or
only one, the court examined "whether each provision required
proof of a fact which the other does not." Blockburger v.
United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.
306 (1932). However, the Supreme Court's decision in Grady v.
Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990),
"significantly altered the jurisprudential landscape of double
jeopardy." United States v. Gambino, 920 F.2d 1108, 1112 (2d
Cir. 1990), cert. denied, ___ U.S. ___, 112 S.Ct. 54, 116
L.Ed.2d 31 (1991).
In Grady, the Court concluded that the Blockburger test was
simply "a guide to determining whether the legislature intended
multiple punishments." Grady, 110 S.Ct. at 2091. However, the
Double Jeopardy Clause was meant to address concerns beyond the
possibility of enhanced punishment. Successive prosecutions
subject a defendant to repeated ordeal and expense, denying him
a sense of finality, and provide the Government with the
opportunity to rehearse and perfect its case. See id. at
2091-92. Blockburger's focus on technical statutory
construction does not adequately protect defendants from these
burdens. Therefore, the Grady Court enunciated a two-stage
inquiry for evaluating whether a subsequent prosecution is
barred by the Double Jeopardy Clause, in which the Blockburger
test served only as the first step. See id. at 2093. If that
test is satisfied, the court must move on to the second stage
of the inquiry. Under Grady, a subsequent prosecution is
prohibited under the Double Jeopardy Clause if "to establish an
essential element of an offense charged in that prosecution,
the government will prove conduct that constitutes an offense
for which the defendant has already been prosecuted." Id. at
2. United States v. Calderone
Grady's "same conduct" standard thus broadens the scope of
protection from multiple trials due to defendants under the
Double Jeopardy Clause. However, the lower courts have had
difficulty discerning the precise boundaries of the Grady
standard, and the circuits have not applied uniformly the "same
conduct" test. Compare, e.g., United States v. Clark,
928 F.2d 639 (4th Cir. 1991) with United States v. Felix, ...