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April 23, 1992



The opinion of the court was delivered by: KENNETH R. FISHER


(Kastigar Motion)

 Defendants Raggi, Harloff, Mazzeo and Alessi move to dismiss the indictment as against them on the ground that they gave immunized testimony to the Rochester Police Department Professional Standards Section (PSS) in connection with incidents which are the subject of Counts 1, 18 and 19 of the indictment. They contend that their immunized testimony was given, with one exception, prior to the return of the indictment and that the government made improper use of their immunized testimony while they procured the indictment from the grand jury.

 The motion was prompted by an October 28, 1991, letter from Department of Justice Attorney Cathleen M. Mahoney, Esq., to Harloff's counsel, John R. Parrinello, Esq., which revealed that the only statement given after the return of the indictment, Harloff's immunized statements to the PSS on September 20, 1991, came into the possession of RPD Lt. Michael Berkow, who was assigned to work with federal government investigators on this case. Berkow read a portion of the statement (the cover page only, according to his affidavit) and realized he should not be exposed to it. He sealed the statement in an envelope, and then mailed it to the Department of Justice in Washington where it was reviewed by a legal assistant not assigned to the case and thereafter maintained for safekeeping. Defendants also refer to another statement in the Mahoney letter which revealed that "PSS had previously provided us with use of force reports and subject resistance reports authored by your client which were produced to you on September 17, 1991." Defendants' motion papers, Exhibit J. From this, defendants conclude that there was a "channel from the Professional Standards Section to the federal investigation" and that the government cannot meet its burden to show that the indictment was obtained from sources independent of their immunized PSS testimony because there was no "Chinese-Wall" separating government investigators from exposure to the immunized statements. They cite United States v. Schwimmer, 882 F.2d 22, 26 (2d Cir. 1989), appeal after remand, 924 F.2d 443 (2d Cir. 1991).

 In response to the motion, the government submitted affidavits of each of its attorneys and investigators who participated in the investigation. Although not an original basis for defendants' motion, the government's papers revealed that Rochester Police Department Captain Robert Duffy, who was intimately involved in the investigation leading to the indictment, had been exposed to Raggi's and Harloff's PSS testimony in the Fall of 1988 concerning an incident at 20 Barron Street, which is one of the many subjects of Count 1. According to Duffy's affidavit, he "sat on the complaint Investigation Committee ("CIC") in 1988 that reviewed the PSS investigation of the incident at 20 Barron Street and in that capacity I was exposed to the statements of defendants Raggi and Harloff." Duffy affidavit at P 4. But Duffy maintains in his affidavit that the federal investigative team began their investigation resulting in the indictment well after 1988, and that it learned of the 20 Barron Street incident initially from an officer Robert Johanson on November 26, 1990; Duffy only recalled his role in the CIC some time thereafter and his recollection of the testimony was only that Raggi and Harloff denied the allegations. *fn1" Duffy could not then recall, and he still cannot recall, any details of the PSS testimony of either defendant. Duffy also states in his affidavit that he "did not provide any information derived from my participation on the CIC review of the 20 Barron Street incident to the investigators interviewing the officers for August, 1988, and I did not direct or aid their inquiry in any way." Duffy affidavit at P 10.

 Duffy provided a similar scenario in regard to Raggi's testimony in May of 1988 to the PSS concerning an incident at 65 Prospect Street. Duffy states that the investigative team learned of this latter incident in June of 1991, during their debriefing of informant William Morris. Morris revealed the name of the victim which, when called to the attention of Duffy, "triggered my memory and I recalled that this was the same incident that I had reviewed on the CIC in 1988." Duffy affidavit at P 16. Similarly, however, Duffy denied specific recollection of the PSS testimony other than that he believed the officers generally denied the allegations. *fn2"

 The other affidavits submitted by the government attorneys and investigators demonstrate no exposure whatsoever to the immunized PSS testimony. These affidavits reveal in particularized fashion the source of the investigative team's first knowledge of each incident that was the subject of the immunized testimony. In each case, the government's evidence is claimed to be independent from the immunized testimony.

 The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." Under the rule in this circuit, Uniformed Sanitation Men Association v. Commissioner of Sanitation of the City of New York, 426 F.2d 619 (2d Cir. 1970) (Friendly, J.), cert. denied, 406 U.S. 961, 32 L. Ed. 2d 349, 92 S. Ct. 2055 (1972); see also, Asherman v. Meachum, 932 F.2d 137, 145 (2d Cir. 1991); United States v. Oliveras, 905 F.2d 623, 627 n.6 (2d Cir. 1990), the immunity these four defendants received when testifying before the Professional Standards Section must be coextensive with the scope of the Fifth Amendment privilege against self-incrimination. Although by judicial construction only, New York confers immunity co-extensive with the privilege in the circumstances presented here. Matter of Matt v. LaRocca, 71 N.Y.2d 154, 524 N.Y.S.2d 180, 518 N.E.2d 1172 (1987), cert. denied, 486 U.S. 1007, 100 L. Ed. 2d 197, 108 S. Ct. 1734 (1988).

 In Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), the Supreme Court held that 18 U.S.C. § 6002, which is also coextensive with the scope of the Fifth Amendment privilege, "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." Id. 406 U.S. at 453, 92 S. Ct. at 1661 (emphasis in original). Even "before Kastigar, the Court held in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964), that the Fifth Amendment bars the use in a subsequent federal prosecution of compelled testimony obtained in state proceedings." United States v. Helmsley, 941 F.2d 71, 81 (2d Cir. 1991), cert. denied, 112 S. Ct. 1162 (1992). Under the rule of Murphy and Kastigar, a defendant "'need only show that he or she testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence was derived from legitimate independent sources." Braswell v. United States, 487 U.S. 99, 117, 108 S. Ct. 2284, 2295, 101 L. Ed. 2d 98 (1988) (quoting Kastigar, 406 U.S. at 461-62, 92 S. Ct. at 1665). See United States v. Tantalo, 680 F.2d 903, 907 (2d Cir. 1982) ("the fact that the appellant testified to matters related to his federal prosecution cast upon the Government the burden of establishing that the evidence to be used to prove his guilt was derived from legitimate sources.") "Whether the Government made use of immunized grand jury testimony is an issue of fact, . . ." United States v. Rivieccio, 919 F.2d 812, 814 (2d Cir. 1990).

 On the other hand, "it is well established that such a witness may be prosecuted for such illegal acts if the prosecution is based solely on evidence obtained from independent sources." United States v. Mariani, 851 F.2d 595, 599 (2d Cir. 1988). As summarized in Mariani,


Where as witness is later prosecuted for an offense which was the subject of his testimony given under immunity, it is recognized that the government bears a heavy burden to show that the evidence it uses in the subsequent prosecution was not derived directly or indirectly from the witness' immunized testimony. To sustain this burden, we have held that the government must prove that it "relied solely on evidence from legitimate independent sources." In re Corrugated Container Antitrust Litigation, 644 F.2d 70, 76 (2d Cir. 1981) (citing Kastigar v. United States, 406 U.S. at 460, 92 S. Ct. at 1664); see United States v. Catalano, 491 F.2d 268, 272 (2d Cir.), cert. denied, 419 U.S. 825, 95 S. Ct. 42, 42 L. Ed. 2d 48 (1974).

 United States v. Mariani, 851 F.2d at 599-600. Dismissal of the indictment is not an available remedy, however, except in limited circumstances. It is clear that, at least where the federal immunity statute is concerned, misuse of immunized testimony in the procurement of an indictment will not result in dismissal of the indictment except in two carefully defined circumstances: (1) dismissal will be appropriate if a defendant testified under immunity before the same grand jury which returned the indictment or the immunized testimony is made known to the indicting grand jury; and (2) dismissal may be ordered when "the government concedes that the indictment rests almost exclusively on tainted evidence." United States v. Rivieccio, 919 F.2d at 816-17 n.4. Compare United States v. Pelletier, 898 F.2d 297, 303 (2d Cir. 1990) (collecting cases). Under the clear holding of Rivieccio, "a violation of either the privilege against self-incrimination or 18 U.S.C. § 6002 requires only the suppression at trial of a defendant's compelled testimony." United States v. Rivieccio, 919 F.2d at 816 (emphasis supplied) (adding that, in regard to "immunized testimony before a grand jury, generally the remedy for the violation is the suppression of the tainted evidence at trial, not a dismissal of the indictment"). Compare United States v. Poindexter, 292 U.S. App. D.C. 389, 951 F.2d 369, 377 (D.C. Cir. 1991); United States v. North, 920 F.2d at 947-48 (D.C. Cir. 1990) on rehearing from id. 910 F.2d 843 (D.C. Cir. 1990); United States v. Pelletier, 898 F.2d at 303. Accordingly, it is my Report and Recommendation that the motion to dismiss the indictment be denied. The proper focus of defendants' Kastigar motion is thus whether there is any evidence available to the government for use at trial which may be deemed "tainted evidence that is subject to suppression" because of alleged misuse, directly or indirectly, of defendants' immunized testimony before the PSS. Id. 919 F.2d at 817.

 In the peculiar circumstances of this case, particularly in view of the extensive affidavits submitted by the government lawyers and investigators considered together with my in camera review of defendants' immunized testimony, I find that the government has met its "heavy burden" of showing independent source and that defendants raise no issue of fact warranting a pre-trial Kastigar hearing. Of course, this determination is without prejudice to a renewed motion for a hearing if the trial of this matter suggests evidence to the contrary. *fn3"

 First, defendants' immunized testimony concerning the alleged excessive force incidents generally denied wrongdoing and otherwise did not contain details which would not be in the RPD criminal files applicable to each incident, or in any of the police informant and victim debriefings. In United States v. Gallo, 863 F.2d 185 (2d Cir. 1988), the court found from the "nature of Gallo's . . . [immunized] testimony" that "any claim of its direct or indirect use [was] untenable." Id. 863 F.2d at 190 (testimony consisted of denials and ambiguous answers" showing that "there was nothing to use"). The same approach has merit here. Second, in regard to the alleged overtime and work shift counts, there has been no showing that the substance of the PSS testimony on this issue came to the attention of any of the federal investigators. United States v. Stockwell, 743 F.2d 123, 127 (2d Cir. 1984) ("the extent of the government's access to the defendant's statements would certainly be a factor to be considered in determining whether a Kastigar -type hearing is necessary to investigate the use made of the statements").

 Third, defendants raise only an insubstantial and speculative possibility of taint. While it is true that burden shifts to the government in a case such as this to prove independent source, the government may meet its burden with affidavits if they are non-conclusory in form and do not simply ask the court to rely on the government's good faith. "While the Government clearly would not be entitled to rely entirely on one or two conclusory affidavits to carry its burden, see United States v. Nemes, [555 F.2d 51 (2d Cir. 1977)] . . . , the Government made a much more detailed presentation here, and did not attempt to invoke reliance merely on the good faith of the prosecutor, see Kastigar, supra, 406 U.S. at 460, in order to negate taint." United States v. Romano, 583 F.2d 1, 8 (2d Cir. 1978) (adding that "much obviously depends on all the facts and circumstances of a particular case"). Although a hearing was held in Romano, there are enough examples within this circuit of district court denials of Kastigar motions without a pre-trial hearing to illustrate the merit of the view that one should not be ordered here until trial or other evidence is proffered raising an issue of fact concerning the content of the government's affidavits. See e.g., United States v. Helmsley, 726 F. Supp. 929, 933-34 (S.D.N.Y. 1989), aff'd. 941 F.2d 71, 79-83 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 409, 112 S. Ct. 1162 (1992); United States v. Biaggi, 909 F.2d 662, 689-90 (2d Cir. 1990) ("declining, after assessing the entire trial record, to hold a 'Kastigar hearing'"). As observed by the District of Columbia Circuit in North, "to be entitled to a hearing on whether immunized testimony was before the grand jury, a defendant must lay a firm 'foundation' resting on more than 'suspicion' that this may in fact have happened." United States v. North, 920 F.2d at 949 n.9 (quoting Lawn v. United States, 355 U.S. 339, 348-49, 78 S. Ct. 311, 317-18, 2 L. Ed. 2d 321 (1958)). As in Lawn,


The affidavits submitted in support of and in opposition to the motion for the requested hearing disclosed, as found by the trial court and the Court of Appeals, with which findings we agree, that petitioners had no reason, beyond suspicion, to believe that the . . . grand jury considered any of the [immunized] materials . . . These facts make clear that petitioners laid no foundation for the holding of a protracted preliminary hearing (at which they would, in effect, take the depositions of the Government's witnesses) to determine whether there was any substance to their suspicion that some direct or derivative use may have been made . . . of [the immunized] materials . . .

 Lawn v. United States, 355 U.S. at 345-50, 78 S. Ct. at 315-18. The only aspect of the case that gives pause is Duffy's admission that he was exposed to some immunized testimony given three years before the investigation leading to this indictment began. But since Duffy claims "no recollection of the contents of defendant's immunized testimony," he "could [not] possibly make any use of it." United States v. Poindexter, 727 F. Supp. 1488, 1496 (D. D.C. 1989), overruled on other grounds, 951 F.2d 369, 292 U.S. App. D.C. 389 (D.C. Cir. 1991).

 Finally, defendants contend that the government failed to erect a Chinese wall between it and the PSS unit. This contention is without merit. In Schwimmer, the case cited by defendants, the government attorneys were, or would be, familiar with the "substance" of the immunized testimony. This knowledge was the primary ingredient motivating the prudent suggestion that the government "establish a so-called 'chinese wall' between its prosecutors exposed to the present grand jury testimony . . . and those prosecutors who may be assigned to retry defendant." United States v. Schwimmer, 882 F.2d at 26. In this case, on the other hand, there is no showing that the prosecutors and investigators responsible for this prosecution have any knowledge of the substance of the coerced testimony, *fn4" and the government's uncontradicted and unimpeached affidavits clearly show to the contrary. In such a circumstance, the need for a pretrial, as opposed to a trial or post-trial, Kastigar hearing if an issue of fact is raised by defendants upon the trial is not apparent.


 Accordingly, it is my Report and Recommendation that the motion to dismiss the indictment be denied without a hearing; that the motion to suppress unspecified tainted evidence be denied and that the motion for a pre-trial Kastigar hearing be denied without prejudice to renewal of the motion to suppress if trial or other evidence raises an issue of fact that the government misused the PSS testimony.

 The parties should be on notice that, pursuant to 28 U.S.C. § 636(b)(1)(C) and Local Rule 30(a)(3), any objections to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt thereof. Failure to file objections within the specified time waives the right to appeal a District Court Order adopting this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a) and 6(b); Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).



 Dated: Rochester, New York

 April 23, 1992

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