United States of America v. Oliver L. North, Appellant

No. 89-3118

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

910 F.2d 843

 
February 6, 1990, Argued  
July 20, 1990, Decided

Wald, Chief Judge, Silberman and Sentelle, Circuit Judges.

Opinion for the Court PER CURIAM

Introduction

In November of 1986, a Lebanese newspaper reported that the United States had secretly sold weapons to Iran. Two months later, Congress established two committees charged with investigating the sales of arms to Iran, the diversion of proceeds therefrom to rebels (or "Contras") fighting in Nicaragua, and the attempted cover-up of these activities (controversial events popularly known as "the Iran/Contra Affair"). In July of 1987, Lieutenant Colonel Oliver L. North, a former member of the National Security Council ("NSC") staff, testified before the Iran/Contra congressional committees. North asserted his Fifth Amendment right not to testify before the committees, but the government compelled his testimony by a grant of use immunity pursuant to 18 U.S.C. § 6002. North testified for six days. His testimony was carried live on national television and radio, replayed on news shows, and analyzed in the public media.

Contemporaneously with the congressional investigation, and pursuant to the Independent Counsel statute, 28 U.S.C. §§ 591-599, the Special Division of this Court, see 28 U.S.C. § 49, appointed Lawrence E. Walsh as Independent Counsel ("IC") and charged him with the investigation and prosecution of any criminal wrongdoing by government officials in the Iran/Contra events. As a result of the efforts of the IC, North was indicted and tried on twelve counts arising from his role in the Iran/Contra Affair. After extensive pretrial proceedings and a twelve-week trial, North was convicted in May of 1989 on three counts: aiding and abetting an endeavor to obstruct Congress in violation of 18 U.S.C. §§ 1505 and 2 ("Count 6"); destroying, altering, or removing official NSC documents in violation of 18 U.S.C. § 2071 ("Count 9"); and accepting an illegal gratuity, consisting of a security system for his home, in violation of 18 U.S.C. § 201(c)(1)(B) ("Count 10"). North now appeals his convictions on these counts.

Summary

Because of the length and complexity of our disposition of North's appeal, we summarize our holdings.

(1) The District Court erred in failing to hold a full hearing as required by Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), to ensure that the IC made no use of North's immunized congressional testimony. North's convictions on all three counts are therefore vacated and remanded to the District Court for a Kastigar proceeding consistent with this opinion.

(2) The District Court's jury instructions on Count 9 were erroneous in that they allowed the jury to convict without unanimously concluding that North committed any one of the criminal acts charged in Count 9. The instructions therefore violated United States v. Mangieri, 224 U.S. App. D.C. 295, 694 F.2d 1270 (D.C. Cir. 1982). This error mandates reversal of North's conviction on Count 9.

(3) The District Court did not err in refusing to instruct the jury on the defense of authorization purportedly recognized in United States v. Barker, 178 U.S. App. D.C. 174, 546 F.2d 940 (D.C. Cir. 1976). The District Court did err, however, in limiting the jury's consideration of authorization evidence as that evidence was relevant to the issue of intent in Count 9. North's conviction on Count 9 is therefore reversed.

(4) The District Court did not err in quashing North's subpoena of former President Reagan, and the quashal did not violate North's Sixth Amendment rights.

(5) The District Court erred by instructing the jury that, as a matter of law, a congressional inquiry was "pending," a necessary element of 18 U.S.C. § 1505 that must be found by the jury in order to convict. We conclude, however, that this error was harmless.

(6) Although the prosecution made highly improper remarks during closing argument, the District Court did not err in refusing to grant a new trial on that basis.

(7) The District Court's rulings with regard to the Classified Information Procedures Act ("CIPA") did not violate the Due Process Clause and were not otherwise erroneous.

(8) The credit given by the District Court to a juror's denial of bias, even though the juror made false statements on the juror questionnaire, was not erroneous and in no way prevented North from exercising his peremptory challenges. 

(9) The District Court did not err in declining to allow into evidence an edited videotape of the congressional testimony of Admiral John Poindexter, North's former superior at the NSC.

(10) The District Court did not violate the Jury Selection and Service Act ("JSSA").

(11) Although the District Court may have been better advised to use a different verdict form, the District Court did not improperly foreclose a general verdict of guilty or not guilty on Counts 6 and 9.

(12) Other than with respect to the element of intent in Count 9, the District Court committed no reversible error in its jury instructions concerning the critical elements of each offense.

(13) Venue in the District of Columbia was proper for Count 10.

(14) The District Court committed no error in allowing North to be tried as an aider and abettor on Count 6.

Therefore, North's convictions on Counts 6, 9 and 10 are vacated and remanded for a Kastigar hearing. His conviction on Count 9 is reversed. Chief Judge Wald dissents from our holdings numbered (1) and (2). She also dissents from our holding numbered (3) insofar as we reverse North's conviction on Count 9. Judge Silberman dissents from our holdings numbered (4), (5) and (7), and concurs dubitante in our holding number (6). He also dissents from our holding number (3) insofar as we do not reverse North's conviction on Count 6.

I. USE OF IMMUNIZED TESTIMONY

 

A. Introduction

 

No person . . . shall be compelled in any criminal case to be a witness against himself. . . .

U.S. Const. Amend. V.

North argues that his Fifth Amendment right against self-incrimination was violated, asserting that the District Court failed to require the IC to establish independent sources for the testimony of witnesses before the grand jury and at trial and to demonstrate that witnesses did not in any way use North's compelled testimony. North further argues that his Fifth Amendment right was violated by the District Court's failure to determine whether or not the IC made "nonevidentiary" use of the immunized testimony.

North's argument depends on the long-recognized principle that a predicate to liberal constitutional government is the freedom of a citizen from government compulsion to testify against himself:

 

And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.

Boyd v. United States, 116 U.S. 616, 631-32, 29 L. Ed. 746, 6 S. Ct. 524 (1886). This rule has been established in England at least since 1641. See 8 Wigmore, Evidence § 2250 at 284 & n. 69 (McNaughton rev. ed. 1961); see also The Queen v. Coote, 4 L.R.-P.C. 599, 607 (1873) ("The depositions on Oath of a Witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, except so much of them as consist of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer.").

Such compulsion is an ageless badge of tyranny, one that the framers and ratifiers of the Constitution were determined to avoid:

 

So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of a right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.

Brown v. Walker, 161 U.S. 591, 597, 40 L. Ed. 819, 16 S. Ct. 644 (1896).

Because the privilege against self-incrimination "reflects many of our fundamental values and most noble aspirations," Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964), and because it is "the essential mainstay of our adversary system," the Constitution requires "that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." Miranda v. Arizona, 384 U.S. 436, 460, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).

The prohibition against compelled testimony is not absolute, however. Under the rule of Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), a grant of use immunity under 18 U.S.C. § 6002 n1 enables the government to compel a witness's self-incriminating testimony. This is so because the statute prohibits the government both from using the immunized testimony itself and also from using any evidence derived directly or indirectly therefrom. Stated conversely, use immunity conferred under the statute is "coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. . . . [Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect. . . ." Kastigar, 406 U.S. at 453 (emphasis in original). See also Braswell v. United States, 487 U.S. 99, 108 S. Ct. 2284, 2295, 101 L. Ed. 2d 98 (1988) ("Testimony obtained pursuant to a grant of statutory use immunity may be used neither directly nor derivatively.").

n1 The federal use immunity statute, 18 U.S.C. § 6002, provides as follows:
Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to --
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

When the government proceeds to prosecute a previously immunized witness, it has "the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources." Kastigar, 406 U.S. at 461-62. The Court characterized the government's affirmative burden as "heavy." Most courts following Kastigar have imposed a "preponderance of the evidence" evidentiary burden on the government. See White Collar Crime: Fifth Survey of Law-Immunity, 26 Am. Crim. L. Rev. 1169, 1179 & n. 62 (1989) (hereafter "Immunity"). The Court analogized the statutory restrictions on use immunity to restrictions on the use of coerced confessions, which are inadmissible as evidence but which do not prohibit prosecution. Kastigar, 406 U.S. at 461. The Court pointed out, however, that the "use immunity" defendant may "be in a stronger position at trial" than the "coerced confession" defendant because of the different allocations of burden of proof. Id.

A trial court must normally hold a hearing (a "Kastigar hearing") for the purpose of allowing the government to demonstrate that it obtained all of the evidence it proposes to use from sources independent of the compelled testimony. See, e.g., United States v. Rinaldi, 257 U.S. App. D.C. 298, 808 F.2d 1579, 1584 (D.C. Cir. 1987); United States v. Garrett, 797 F.2d 656, 663-65 (8th Cir. 1986); United States v. Zielezinski, 740 F.2d 727, 733 (9th Cir. 1984); United States v. Beery, 678 F.2d 856, 863 (10th Cir. 1982). As this Court pointed out in United States v. De Diego, 167 U.S. App. D.C. 252, 511 F.2d 818, 823-24 (D.C. Cir. 1975), a trial court may hold a Kastigar hearing pre-trial, post-trial, mid-trial (as evidence is offered), or it may employ some combination of these methods. A pre-trial hearing is the most common choice.

Whenever the hearing is held, the failure of the government to meet its burden can have most drastic consequences. One commentator has stated that "if the tainted evidence was presented to the grand jury, the indictment will be dismissed; when tainted evidence is introduced at trial, the defendant is entitled to a new trial. [Defendants] are afforded similar protections against nonevidentiary uses of immunized testimony. " Immunity at 1179 (footnotes omitted). n2

n2 As we will discuss in Section C(1), infra, the extent of prohibition of "nonevidentiary" use is the subject of much disagreement.
 
Dismissal of the indictment or vacation of the conviction is not necessary where the use is found to be harmless beyond a reasonable doubt. United States v. Serrano, 870 F.2d 1, 16 (1st Cir. 1989); United States v. Byrd, 765 F.2d 1524, 1529 n. 8 (11th Cir. 1985); United States v. Gregory, 730 F.2d 692, 698 (11th Cir. 1984), cert. denied, 469 U.S. 1208, 105 S. Ct. 1170, 84 L. Ed. 2d 321 (1985); Beery, 678 F.2d at 860 n. 3, 863; United States v. Shelton, 669 F.2d 446, 464 (7th Cir.), cert. denied, 456 U.S. 934, 102 S. Ct. 1989, 72 L. Ed. 2d 454 (1982).

A district court holding a Kastigar hearing "must make specific findings on the independent nature of this proposed [allegedly tainted] evidence." Rinaldi, 808 F.2d at 1584. Because the burden is upon the government, the appellate court "may not infer findings favorable to it on these questions." Id. at 1583 (citing United States v. Hampton, 775 F.2d 1479, 1485-86 (11th Cir. 1985)). A district court's determination that the government has carried its burden of showing independent sources is a factual finding that is subject to review under the "clearly erroneous" standard. Serrano, 870 F.2d at 15; United States v. Garrett, 849 F.2d 1141, 1142 (8th Cir. 1988); United States v. Brimberry, 803 F.2d 908, 917 (7th Cir. 1986), cert. denied, 481 U.S. 1039, 95 L. Ed. 2d 817, 107 S. Ct. 1977 (1987); United States v. Romano, 583 F.2d 1, 7 (1st Cir. 1978).
 
B. District Court Proceedings

Before North's trial, the District Court held a "preliminary" Kastigar inquiry and issued an order based thereon which it subsequently adopted as final (with certain changes) without benefit of further proceedings or hearings. Compare United States v. Poindexter, 698 F. Supp. 300, 302 (D.D.C. 1988) (hereafter "Kastigar Memo") ("Any final consideration of the issue must be deferred until after a full trial.") with United States v. North, No. 88-0080-02, 1989 U.S. Dist. LEXIS 5709 (D.D.C. May 26, 1989) (order denying North's motion to dismiss or for a Kastigar hearing) ("Defendant North's post-trial Kastigar motion raises few new issues. It seeks in most instances to relitigate issues already resolved by the Court, presenting no new information that would justify changing the Court's Memorandum Opinion and Order of June 16, 1988 [the Kastigar Memo] dealing with the full range of Kastigar problems. . . ."). n3

n3 The memorandum of the District Court's preliminary consideration of North's Kastigar claims is styled United States v. Poindexter because North's case was not yet severed from that of Admiral John Poindexter.
 
After reviewing the relevant factual and statutory background, the District Court made four findings concerning the government's alleged use of immunized testimony before the grand jury. Kastigar Memo, 698 F. Supp. at 314-15. First, "defendants' immunized testimony was not submitted to the grand jury in any form." Second, "the grand jurors were effectively warned not to read about or look at or listen to this immunized testimony and it played no part in the grand jury's unanimous decision to indict." Third, "the grand jury transcript and exhibits reflect solid proof and ample probable cause to indict on each and every count." Fourth, "none of the testimony or exhibits presented to the grand jury became known to the prosecuting attorneys on Independent Counsel's staff or to him personally either from the immunized testimony itself or from leads derived from the testimony, directly or indirectly." Id.

In reaching these conclusions, the District Court noted that the "Independent Counsel's legitimate independent leads to every significant witness were carefully documented," id. at 307-08; that the grand jury heard many witnesses before the immunity order issued, id. at 308; that North's testimony was undertaken and concluded while the grand jury was in recess, id.; and that the "grand jurors were specifically, repeatedly and effectively instructed to avoid exposure to any immunized testimony." Id. at 309. The District Court provided examples of various warnings given to grand jurors, id. at 309-11, and to grand jury witnesses. Id. at 311-12. The District Court also noted that Associate Independent Counsel were "apparently careful to avoid broad, rambling questions," id. at 312, and that "written materials from Independent Counsel demonstrated that all the prosecutor's substantive witnesses were known to him before the first immunity grant." Id. at 313.

Addressing what it referred to as nonevidentiary problems, the District Court noted that "witnesses, probably a considerable number of them, have had their memories refreshed by the immunized testimony," id., but because of its belief that "there is no way of determining, except possibly by a trial before the trial, whether or not any defendant was placed in a substantially worse position by the possible refreshment of a witness' memory through such exposure," id. at 314, the District Court concluded that "if testimony remains truthful the refreshment itself is not an evidentiary use." Id.
 
C. Analysis

North's primary Kastigar complaint is that the District Court failed to require the IC to demonstrate an independent source for each item of evidence or testimony presented to the grand jury and the petit jury, and that the District Court erred in focusing almost wholly on the IC's leads to witnesses, rather than on the content of the witnesses' testimony. North also claims that the IC made an improper nonevidentiary use of the immunized testimony (as by employing it for purposes of trial strategy), or at least that the District Court failed to make a sufficient inquiry into the question. North also protests that his immunized testimony was improperly used to refresh the recollection of witnesses before the grand jury and at trial, that this refreshment caused them to alter their testimony, and that the District Court failed to give this question the careful examination it deserved. In our discussion here, we first consider alleged nonevidentiary use of immunized testimony by the IC. We will then proceed to consider the use of immunized testimony to refresh witnesses' recollections. Finally, we will address the distinction between use of immunized testimony as a lead to procure witnesses and use insofar as it affects the substantive content of witnesses' testimony.

Assuming without deciding that a prosecutor cannot make nonevidentiary use of immunized testimony, we conclude that the IC here did not do so and that the District Court's inquiry and findings on this issue are not clearly erroneous. Thus, we do not decide the question of the permissibility or impermissibility of nonevidentiary use. However, contrary to the District Court, we conclude that the use of immunized testimony by witnesses to refresh their memories, or otherwise to focus their thoughts, organize their testimony, or alter their prior or contemporaneous statements, constitutes evidentiary use rather than nonevidentiary use. The District Court on remand is to hold the searching type of Kastigar hearing described in detail below, concerning North's allegations of refreshment. Finally, because the District Court apparently interpreted Kastigar as prohibiting the government only from using immunized testimony as a lead rather than using it at all, we hold that the District Court's truncated Kastigar inquiry was insufficient to protect North's Fifth Amendment right to avoid self-incrimination.

1. "Nonevidentiary" Use

The District Court briefly discussed the problem of nonevidentiary use of immunized testimony through witnesses and through the IC's staff. Kastigar Memo, 698 F. Supp. at 313-14. The District Court found that witnesses had their memories refreshed with immunized testimony by "hearing the testimony, reading about it, being questioned about aspects of it before the Select Committees and, to some extent, by exposure to it in the course of responding to inquiries within their respective agencies." Id. at 313. This exposure was not motivated, the Court found, by a desire "to harm a defendant or help the prosecution." Id. The District Court concluded that in such a circumstance a "trial before the trial" was not necessary because "no court has ever so required, nor did Kastigar suggest anything of the kind." Id. at 314.

The District Court was similarly untroubled by allegations of prosecutorial exposure to immunized testimony through a grand juror or a witness: "Defendants in their zeal treat this as if even the tiniest exposure to a witness or grand juror constituted exposure to an incurable disease. Such is clearly not the case. Exposure to a fleeting snippet means nothing." Id. As a matter of "common sense," the District Court determined that a "prosecutor who inadvertently overhears mention of a fact already confirmed by his own independent investigation" cannot be said to have used immunized testimony; similarly, a defendant's "Fifth Amendment rights are not infringed if a witness hears immunized testimony yet testifies solely to facts personally known to the witness." Id. The District Court concluded that "the good faith of Independent Counsel cannot be questioned on this record." Id.

This Circuit has never squarely addressed the question of whether or not Kastigar encompasses so-called nonevidentiary use of immunized testimony. The federal use immunity statute does not speak in terms of "evidence," but rather provides that "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case. . . ." 18 U.S.C. § 6002 (emphasis supplied). Kastigar does not define, except perhaps by implication, what nonevidentiary use of compelled testimony might be nor does it expressly discuss the permissible scope of such use.

As we suggested above, see note 2, supra, courts have differed on this question. Compare United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983); United States v. Pantone, 634 F.2d 716, 723 (3d Cir. 1980); United States v. First W. State Bank, 491 F.2d 780, 787-88 (8th Cir.), cert. denied, 419 U.S. 825, 95 S. Ct. 42, 42 L. Ed. 2d 49 (1974); United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973); United States v. Carpenter, 611 F. Supp. 768, 779 (N.D. Ga. 1985); United States v. Smith, 580 F. Supp. 1418, 1421-22 (D.N.J. 1984); and United States v. Dornau, 359 F. Supp. 684, 687 (S.D.N.Y. 1973), rev'd on other grounds, 491 F.2d 473 (2d Cir. 1974) (all holding or strongly suggesting that Kastigar prohibits nonevidentiary use of compelled testimony) with United States v. Serrano, 870 F.2d 1, 16 (1st Cir. 1989); United States v. Mariani, 851 F.2d 595, 600-01 (2d Cir. 1988), cert. denied, 490 U.S. 1011, 109 S. Ct. 1654, 104 L. Ed. 2d 168 (1989); United States v. Crowson, 828 F.2d 1427, 1431-32 (9th Cir. 1987), cert. denied, 488 U.S. 831, 109 S. Ct. 87, 102 L. Ed. 2d 63 (1988); and United States v. Byrd, 765 F.2d 1524, 1528-31 (11th Cir. 1985) (all holding or observing that Kastigar does not prohibit nonevidentiary use of compelled testimony).

The two principal scholarly commentaries on the nonevidentiary use aspect of Kastigar also disagree. Compare Strachan, Self-Incrimination, Immunity, and Watergate, 56 Tex. L. Rev. 791, 820 (1978) ("Unless an immunized defendant is accorded a firm right to discovery and a comprehensive pretrial hearing on the issues of evidentiary and nonevidentiary use, the defendant is left totally defendant on the good faith of the prosecutors for the preservation of his constitutional rights -- the result both the majority and dissent in Kastigar regarded as constitutionally unacceptable.") with Humble, Nonevidentiary Use of Compelled Testimony: Beyond the Fifth Amendment, 66 Tex. L. Rev. 351, 355-56 (1987) ("Neither the immunity statute nor the fifth amendment requires the government to prove that it made no nonevidentiary uses of the defendant's compelled testimony.").

An initial difficulty is that a precise definition of the term nonevidentiary use is elusive. See, e.g., Humble, 66 Tex. L. Rev. at 353 (defining nonevidentiary uses as "uses that do not furnish a link in the chain of evidence against the defendant"); Strachan, 56 Tex. L. Rev. at 807 (Nonevidentiary use is "use of immunized disclosures that does not culminate directly or indirectly in the presentation of evidence against the immunized person in a subsequent criminal prosecution. This definition is too vague to be very helpful. . . ."). Thus, we follow the lead of other courts and delineate nonevidentiary use by example rather than definition: "One court has described such nonevidentiary use as 'conceivably including assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.'" Serrano, 870 F.2d at 16 (quoting McDaniel, 482 F.2d at 311). Prosecutorial knowledge of the immunized testimony may help explicate evidence theretofore unintelligible, and it may expose as significant facts once thought irrelevant (or vice versa). Compelled testimony could indicate which witnesses to call, and in what order. Compelled testimony may be helpful in developing opening and closing arguments. See Strachan, 56 Tex. L. Rev. at 806-10.

Kastigar itself did not expressly discuss the propriety of nonevidentiary use. The Court simply held that immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege.  Kastigar, 406 U.S. at 453. Thus,because "immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom" provides protection coextensive with the Fifth Amendment, the use immunity statute "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. (emphasis in original).

Responding to the contention that the use immunity statute provides scant protection from the various ways in which the government might use the compelled testimony, the Court pointed out that "the statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom. . . . This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an 'investigatory lead,' and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures." Kastigar, 406 U.S. at 460 (emphasis supplied). Section 6002 is constitutional, the Court concluded, because it "leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege." Id. at 462.

Construing Kastigar in McDaniel, the Eighth Circuit forbade "all prosecutorial use of the testimony, not merely that which results in the presentation of evidence before the jury." McDaniel, 482 F.2d at 311. Through a misunderstanding of North Dakota law, the United States Attorney read three transcript volumes of McDaniel's immunized state grand jury testimony before he obtained the indictment from the federal grand jury. He did not know that McDaniel was immunized, so "he therefore could have perceived no reason to segregate McDaniel's testimony from his other sources of information." Id. Similarly, the court could not "escape the conclusion that the testimony could not be wholly obliterated from the prosecutor's mind in his preparation and trial of the case." Id. at 312. The court concluded that "if the immunity protection is to be coextensive with the Fifth Amendment privilege, as it must to be constitutionally sufficient, then it must forbid all prosecutorial use of the testimony, not merely that which results in the presentation of evidence before the jury." Id. at 311. See also Semkiw, 712 F.2d at 895 (remanding for hearing as to prosecutor's access to grand jury testimony and "what use she may have made of it in the preparation and conduct of the trial"); Pantone, 634 F.2d at 721 (finding that the government met its Kastigar burden partly because "a primary concern of Kastigar and the Department of Justice Guidelines, that mere access to immunized information may catalyze chains of investigation or subliminally affect decisions to prosecute, is not even in issue here").

The McDaniel rule has been criticized or rejected by Serrano, 870 F.2d at 16, Mariani, 851 F.2d at 600-01, and Byrd, 765 F.2d at 1528-31. A judgment upon the nonevidentiary use issue was not necessary to the First Circuit's holding in Serrano because the defendant had failed to raise the issue in the district court. However, the First Circuit disagreed with the McDaniel standard in dicta, stating that "such an approach amounts to a per se rule that would in effect grant a defendant transactional immunity once it is shown that government attorneys or investigators involved in the prosecution were exposed to the immunized testimony." Serrano, 870 F.2d at 17 (emphasis in original). Because Kastigar expressly stated that a grant of immunity short of transactional immunity can still be constitutional if the grant is coextensive with the Fifth Amendment, the First Circuit "[did] not think this purpose is automatically frustrated by the government's mere exposure to immunized testimony." Id. The court concluded:

We also reject the notion that all nonevidentiary use necessarily violates the Fifth Amendment. While we need not decide whether certain nonevidentiary uses of immunized testimony may so prejudice the defendant as to warrant dismissal of the indictment, we agree with the Second Circuit that a prosecution is not foreclosed merely because the 'immunized testimony might have tangentially influenced the prosecutor's thought processes in preparing the indictment and preparing for trial.'

Id. at 17-18 (quoting Mariani, 851 F.2d at 600).

In Byrd, 765 F.2d at 1530-31, the Eleventh Circuit apparently agreed with the First and the Second:

 

So long as all the evidence presented to the grand jury is derived from legitimate sources independent of the defendant's immunized testimony, and the grand jury finds that independent evidence sufficient to warrant the return of an indictment, the defendant's privilege against self-incrimination has not been violated. . . . The privilege against self-incrimination is concerned with direct and indirect evidentiary uses of compelled testimony, and not with the exercise of prosecutorial discretion. If the contrary views of McDaniel and Semkiw were adopted, the realistic difference between transactional immunity and use immunity would become hopelessly blurred if not totally extinguished, thus negating the plain import of Kastigar. . . .

The court then rejected as premature the defendant's contention that the prosecutors had used his immunized testimony to make strategic decisions. Id. at 1531. We note that in a case following Byrd, the Eleventh Circuit continued to insist that Kastigar is concerned with evidentiary use only, but the court included as "evidentiary" certain "investigatory" uses that could reasonably be considered to be nonevidentiary. See United States v. Hampton, 775 F.2d 1479, 1490-91 & n. 53 (11th Cir. 1985).

The IC favorably cites United States v. Schwimmer, 882 F.2d 22, 25 (2d Cir. 1989), but it does not help him greatly on the nonevidentiary use point: "Section 6002 provides a 'sweeping proscription' of any direct or indirect use of the testimony, including its use as an investigatory lead, or as a means of focusing an investigation on the witness." Id. (emphasis supplied). Indeed, in language which places in some doubt the Second Circuit's apparent rejection in Mariani of the McDaniel approach, the Schwimmer opinion points out the danger of use that "might assist the prosecutor in focusing additional investigation, planning, cross-examination, or otherwise generally mapping a strategy for retrial," id. at 26, and suggests that the prosecutors, in the event of a retrial, should establish a Chinese wall.

The District Court in the present case distinguished McDaniel on the grounds that McDaniel turned on "unusual circumstances" (i.e., the prosecutor read the testimony and did not know that it was immunized). Kastigar Memo, 698 F. Supp. at 307 & n. 8. We are not so persuaded. The prosecutor's knowledge (or lack thereof) that the testimony was immunized is relevant to the question of prosecutorial good faith, not prosecutorial use. The Fifth Amendment right of the defendant -- which is, after all, Kastigar's point and our concern -- can be violated whether or not the prosecutor has knowledge that the testimony is immunized or that his witness has heard immunized testimony. Insofar as Serrano, Mariani, and Byrd may be read as establishing a rule that Kastigar allows nonevidentiary use of compelled testimony under all circumstances, we find those cases troubling. We are not unsympathetic, nevertheless, to the concerns voiced by the First, Second and Eleventh Circuits and by the District Court here. In the present appeal, the record is extensive and the District Court's findings are thorough as to precautions taken by the IC to prevent untoward exposure or use by his staff. The record is clear and the findings are not clearly erroneous. Without significant exposure, the IC could not have made significant nonevidentiary use, permissible or impermissible. Thus, even assuming without deciding that a prosecutor cannot make nonevidentiary use of immunized testimony, in the case before us the IC did not do so. We do not reach the precise question, therefore, of the permissible quantum of nonevidentiary use by prosecutors, or indeed whether such use is permissible at all. Our concern is the use of immunized testimony by witnesses before the grand jury and at trial.

We cannot agree with the District Court that the use of immunized testimony to refresh the memories of witnesses is a nonevidentiary matter and that therefore refreshment should not be subject to a Kastigar hearing because "no court has ever so required, nor did Kastigar suggest anything of the kind." Kastigar Memo, 698 F. Supp. at 314. In our view, the use of immunized testimony by witnesses to refresh their memories, or otherwise to focus their thoughts, organize their testimony, or alter their prior or contemporaneous statements, constitutes indirect evidentiary not nonevidentiary use. This observation also applies to witnesses who studied, reviewed, or were exposed to the immunized testimony in order to prepare themselves or others as witnesses.

Strictly speaking, the term direct evidentiary use may describe only attempts by the prosecutors to offer the immunized testimony directly to the grand jury or trial jury, as by offering the testimony as an exhibit. But the testimony of other witnesses is also evidence that is to be considered by the grand jury or the trial jury. When the government puts on witnesses who refresh, supplement, or modify that evidence with compelled testimony, the government uses that testimony to indict and convict. The fact that the government violates the Fifth Amendment in a circuitous or haphazard fashion is cold comfort to the citizen who has been forced to incriminate himself by threat of imprisonment for contempt. The stern language of Kastigar does not become lenient because the compelled testimony is used to form and alter evidence in oblique ways exclusively, or at a slight distance from the chair of the immunized witness. Such a looming constitutional infirmity cannot be dismissed as merely nonevidentiary. This type of use by witnesses is not only evidentiary in any meaningful sense of the term; it is at the core of the criminal proceeding.

In summary, the use of immunized testimony -- before the grand jury or at trial -- to augment or refresh recollection is an evidentiary use and must be dealt with as such.

2. Refreshment

Both the trial and the grand jury proceedings involved "a considerable number" of witnesses who had "their memories refreshed by the immunized testimony," Kastigar Memo, 698 F. Supp. at 313, a use of compelled testimony that the District Court treated as nonevidentiary. Id. The District Court stated that "there is no way a trier of fact can determine whether the memories of these witnesses would be substantially different if it had not been stimulated by a bit of the immunized testimony itself" and that "there is no way of determining, except possibly by a trial before the trial, whether or not any defendant was placed in a substantially worse position by the possible refreshment of a witness' memory through such exposure." Id. at 314. The District Court found that such taint occurs in the "natural course of events" because "memory is a mysterious thing that can be stirred by a shaggy dog or a broken promise." Id. at 313.

This observation, while likely true, is not dispositive of the searching inquiry Kastigar requires. The fact that a sizable number of grand jury witnesses, trial witnesses, and their aides apparently immersed themselves in North's immunized testimony leads us to doubt whether what is in question here is simply "stimulation" of memory by "a bit" of compelled testimony. Whether the government's use of compelled testimony occurs in the natural course of events or results from an unprecedented aberration is irrelevant to a citizen's Fifth Amendment right. Kastigar does not prohibit simply "a whole lot of use," or "excessive use," or "primary use" of compelled testimony. It prohibits "any use," direct or indirect. From a prosecutor's standpoint, an unhappy byproduct of the Fifth Amendment is that Kastigar may very well require a trial within a trial (or a trial before, during, or after the trial) if such a proceeding is necessary for the court to determine whether or not the government has in any fashion used compelled testimony to indict or convict a defendant.

We readily understand how court and counsel might sigh prior to such an undertaking. Such a Kastigar proceeding could consume substantial amounts of time, personnel, and money, only to lead to the conclusion that a defendant -- perhaps a guilty defendant -- cannot be prosecuted. Yet the very purpose of the Fifth Amendment under these circumstances is to prevent the prosecutor from transmogrifying into the inquisitor, complete with that officer's most pernicious tool -- the power of the state to force a person to incriminate himself. As between the clear constitutional command and the convenience of the government, our duty is to enforce the former and discount the latter.

The District Court ruled that "if testimony remains truthful the refreshment itself is not an evidentiary use." Id. at 314. But Kastigar addresses "use," not "truth." If the government uses immunized testimony to refresh the recollection of a witness (or to sharpen his memory or focus his thought) when the witness testifies before a grand jury considering the indictment of a citizen for acts as to which the citizen was forced to testify, then the government clearly has used the immunized testimony. Even if "truthfulness" were the focus of the Kastigar inquiry, the present record does not disclose the basis for the determination that the testimony of any witness was "truthful," nor does it indicate how we might review such a determination.

The IC attempts to meet North's refreshment argument by relying on United States v. Apfelbaum, 445 U.S. 115, 124-27, 63 L. Ed. 2d 250, 100 S. Ct. 948 (1980), for the proposition that Kastigar "prohibits use [of immunized testimony] by the prosecution, not by others." Brief for Appellee at 24. The IC misreads Apfelbaum, which is concerned with how immunized testimony may or may not be used rather than with who may or may not use it. In Apfelbaum, the Supreme Court stated that it had never held that the Fifth Amendment precludes all use of immunized testimony because "such a requirement would be inconsistent with the principle that the privilege does not extend to consequences of a noncriminal nature, such as threats of liability in civil suits, disgrace in the community, or loss of employment." Apfelbaum, 445 U.S. at 125 (emphasis supplied). North does not contend that the government violated his Fifth Amendment right because he received bad press as a result of his immunized testimony, or that he has been unable to find employment. Rather, he protests that the government used his immunized testimony to secure his indictment and subsequent conviction as a federal felon. Because North appeals a judgment that apparently violates his Fifth Amendment privilege by the imposition of criminal sanctions, we find Apfelbaum inapplicable to this case.

The IC further relies on Monroe v. United States, 98 U.S. App. D.C. 228, 234 F.2d 49, 56-57 (D.C. Cir.), cert. denied, 352 U.S. 873, 1 L. Ed. 2d 76, 77 S. Ct. 94 (1956), for the proposition that recollection may be refreshed with inadmissible evidence even when the government violated the Fourth and Fifth Amendments to obtain the evidence. In Monroe, this Court allowed an undercover police officer to refresh his recollection with recordings of conversations between himself and the defendants. The recordings were not in evidence. The refreshment was permissible because, inasmuch as the conversations were his own, the "connection between any possible violation of the statute [section 605 of the Federal Communications Act, 47 U.S.C. § 605] and his testimony had 'become so attenuated as to dissipate the taint' in its relation to admissibility." Monroe, 234 F.2d at 57 (quoting Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 60 S. Ct. 266 (1939)). Thus, the officer's "testimony was not itself the product of an illegal interception; he repeated on the stand what he himself had heard." Id. The IC analogizes the officer in Monroe to the witnesses here, claiming that "the testimony of witnesses about matters they had personally heard or observed is the product of their own memory, not of immunized testimony they might have seen or read." Brief for Appellee at 25.

We cannot agree. As an initial matter, Monroe nowhere hints that a violation of the Fourth or Fifth Amendments was at issue. In Monroe, this Court concluded that refreshed testimony was not "publication" within the meaning of section 605 of the Federal Communications Act. Here, what the federal use immunity statute prohibits is "use" of the immunized testimony. The IC would have us adopt a parallel rule: as refreshment was not "publication," so now refreshment is not "use." But, the immunity statute is constitutional only because it is coextensive with the Fifth Amendment. The clear language of the Constitution, coupled with the Supreme Court's sweeping approach in Kastigar, requires us to define "use" more broadly than we defined "publication" for purposes of the Federal Communications Act and prevents the sort of parallelism that the IC urges upon us. Because we conclude that refreshment is "use" within the meaning of Kastigar and the statute, the Monroe rule is inapplicable.

Indeed, the fact that immunized testimony has entered the consciousness of someone other than the immunized witness does not lessen the heavy burden upon the government to show that it has made no use, directly or indirectly, of the compelled testimony. The following hypothetical illustrates the weakness of the IC's argument. A prosecutor locates a witness known to have observed certain events, seemingly inconsequential at the time but later critical to a criminal prosecution. The witness has absolutely no recollection of those events. The prosecution then arranges to procure the immunized testimony of the defendant. The forgetful witness sits in the gallery and listens to that immunized testimony. Under the IC's theory, that witness could then be brought forward to relate the events he had previously forgotten. It would require a curiously strained use of language and learning to hold that in such a case no "use" of the immunized testimony had been made against the defendant.

The IC offers no logical distinction between that hypothetical and the dangers of use in the case at bar. It may be that it is possible in the present case to separate the wheat of the witnesses' unspoiled memory from the chaff of North's immunized testimony, but it may not. There at least should be a Kastigar hearing and specific findings on that question. If it proves impossible to make such a separation, then it may well be the case that the prosecution cannot proceed. Certainly this danger is a real one in a case such as this where the immunized testimony is so broadly disseminated that interested parties study it and even casual observers have some notion of its content. Nevertheless, the Fifth Amendment requires that the government establish priorities before making the immunization decision. The government must occasionally decide which it values more: immunization (perhaps to discharge institutional duties, such as congressional fact-finding and information-dissemination) or prosecution. If the government chooses immunization, then it must understand that the Fifth Amendment and Kastigar mean that it is taking a great chance that the witness cannot constitutionally be indicted or prosecuted.

Even before the congressional Iran/Contra committees began taking testimony, the IC recognized this problem in his memorandum to the committees concerning use immunity: "Any grant of use and derivative use immunity would create serious -- and perhaps insurmountable -- barriers to the prosecution of the immunized witness." Memorandum of the Independent Counsel Concerning Use Immunity 1 (Jan. 13, 1987) (Submitted to the Joint Congressional Iran/Contra Committees) (JA at 2502). See also id. at 4 (JA at 2505) ("Indeed, the prosecutor must demonstrate that all its evidence is based on entirely legitimate sources, independent of the compelled testimony. . . . Since Kastigar, most lower courts have held that Section 6002 prohibits both evidentiary and nonevidentiary use of compelled testimony.") (emphasis in original); id. at 5 (JA at 2506) ("Under these principles, the prosecution must not only prove that all of its evidence was derived from sources independent of the immunized testimony, but also demonstrate that no nonevidentiary or strategic use was made of the immunized testimony or the fruits of the testimony. In practice, these burdens are often very difficult to satisfy."); id. at 6 (JA at 2507) ("'Under the circumstances of many cases, use of the statute will effectively preclude a future prosecution of the witness for the matters to which his/her testimony related.'") (citing United States Attorneys' Manual at 1-11.212) (emphasis supplied in IC's memorandum). These observations have indeed proven prescient, and we commend them to the District Court upon remand.

3. "Identity of Witness" vs. "Content of Testimony"

The refreshment of witnesses' recollections is indicative, but not exhaustive, of the Kastigar questions left unanswered on the present record. The District Court's disposition of the "identity-of-witness" issue, see supra at 855-6, does not dispose of the "content-of-testimony" Kastigar problem: the District Court inquired as to whether the names of witnesses were derived independently of the immunized testimony, but it made no determination of the extent to which the substantive content of the witnesses' testimony may have been shaped, altered, or affected by the immunized testimony.

A central problem in this case is that many grand jury and trial witnesses were thoroughly soaked in North's immunized testimony, but no effort was made to determine what effect, if any, this extensive exposure had on their testimony. Papers filed under seal indicate that officials and attorneys from the Department of Justice, the Central Intelligence Agency, the White House, and the Department of State gathered, studied, and summarized North's immunized testimony in order to prepare themselves or their superiors and colleagues for their testimony before the investigating committees and the grand jury. JA at 3365-92 (classified appendix). A few examples will suffice.

A senior Department of Justice official, identified as "Witness No. 1" in North's ex parte appendix filed under seal with the District Court, watched North's testimony on a television located in his office, read media reports of the immunized testimony, and received transcribed portions of that testimony. This senior official watched the testimony because he headed a Department of Justice team charged with preparing the Attorney General for his testimony before the committees and the grand jury. Subsequent to his study of the immunized testimony, this official testified before the grand jury in late January or early February of 1988. Defendant's Ex Parte Designation of Witnesses Pursuant to Court Order 1-2 (Apr. 21, 1988) (JA at 3240-41).

Another senior Justice Department official, identified as "Witness No. 4," also saw the immunized testimony and gathered reports (particularly in two areas) in his capacity as a member of the team headed by Witness No. 1. Id. at 4 (JA at 3243). Indeed, the Attorney General testified before the grand jury seven times after having been exposed to the immunized testimony directly and indirectly through this "prep team." A Department of Justice official ("Witness No. 5") was assigned to help the IC obtain evidence from overseas sources.  Witness No. 5 was exposed to immunized testimony through the public media and through in-house Department of Justice publications that reported on the immunized testimony. Id. at 4-5 (JA at 3243-44). Another member of the Justice Department's prep team for the Attorney General ("Witness No. 6") was similarly exposed to the testimony, id. at 5 (JA at 3244), as was a colleague on the team ("Witness No. 7") who subsequently testified before the grand jury in December of 1987. Id. at 6 (JA at 3245). Another senior Department of Justice official ("Witness No. 8") watched much of the testimony on the television in his office, watched media analyses of the testimony, was part of the prep team, and testified before the grand jury in January of 1988. Id.

Nor were all of the apparently tainted witnesses from the Department of Justice. Three CIA attorneys and one CIA official were exposed to North's immunized testimony. One CIA attorney ("Witness No. 10") watched most of North's testimony, videotaped it, and obtained transcripts of the testimony, transcripts which he subsequently annotated. He also read press accounts of the testimony and was part of a CIA prep team charged with helping CIA employees ready themselves for their testimony before Congress and the grand jury. Witness No. 10 had interviews with the Office of Independent Counsel and allegedly used knowledge gleaned from the immunized testimony in discharging his duty as counsel to CIA employees who subsequently testified. Id. at 7-8. (JA at 3246-47). Another CIA attorney ("Witness No. 11") was apparently part of a CIA task force on the Iran/Contra affair. Her function and the degree of her exposure approximated that of Witness No. 10. Id. at 8-9 (JA at 3247-48). The CIA official ("Witness No. 12") apparently suffered extensive exposure to media reports of the testimony. Although he did not testify to the grand jury or at trial, he was interviewed by the IC after his exposure. Id. at 9-10 (JA at 3248-49).

Furthermore, two White House officials ("Witnesses Nos. 13 and 15") were exposed by watching the testimony and reading about it in newspapers and magazines. Witness No. 13 did not testify to the grand jury after his exposure, but did testify at trial. After his exposure, he met with the IC in February of 1988 and provided him with factual information. Witness No. 15 was similarly exposed, and testified before the grand jury in February of 1988. Id. at 10-11 (JA at 3249-50).

The testimony of Robert C. McFarlane, the National Security Advisor to President Reagan, is especially troubling and is indeed emblematic of both the weakness of the IC's position and the necessity of further Kastigar inquiry. Although McFarlane completed his grand jury testimony before North gave his immunized testimony, McFarlane was a key government witness at trial. He testified before the investigating committees prior to North's immunized testimony, but then specifically requested and was granted a second appearance after North testified in order to respond to North's testimony. See Senate Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition & House Select Comm. to Investigate Covert Arms Transactions with Iran, Report of the Congressional Comm. Investigating the Iran/Contra Affair, with Supplemental, Minority and Additional Views, S. Rep. No. 216, H.R. Rep. No. 433, 100th Cong., 1st Sess. 687 (1987). In his second appearance on Capitol Hill, McFarlane revised his earlier testimony in light of North's testimony, and directly responded to North's testimony at certain points. See, e.g., id. at 40, 41, 399 and accompanying notes. He also apparently managed to recall items that he had not remembered in his prior testimony. McFarlane subsequently testified at North's trial. Trial Transcript at 3916 et seq. (JA at 1041 et seq.). No effort was made to determine what use -- if any -- this government witness made of North's testimony in his trial testimony.

Our dissenting colleague chastises us for use of the passive voice when we state that "many grand jury and trial witnesses were thoroughly soaked in North's immunized testimony. . . ." See supra at 863; Wald Dissent at 920 n. 7. As a general proposition, we agree that the virtues of the active voice are irrefutable. See W. Strunk, Jr. & E. B. White, The Elements of Style 18 (3d ed. 1979). Our colleague goes further, however. The dissent concludes that all of these witnesses, familiar with Kastigar, "soaked themselves in the immunized testimony" and that "it goes beyond reason to insist that the IC must additionally demonstrate that Justice Department officials from the same Administration as North himself did not purposefully use North's immunized testimony in preparing for their own or their colleagues' grand jury appearances. . . ." Wald Dissent at 920 n. 7 (emphasis in original).

As an initial matter, there is absolutely nothing in the voluminous record that would even begin to support the conspiracy theory that the dissent advocates. In this heavily lawyered and professionally argued appeal, this notion appeared neither in the briefs nor at oral argument. Even when presented with colorable evidence, conspiracy theories are often difficult to believe, if only because the claims made for them are simultaneously grandiose and improbable. Such a theory presented without any evidence at all, indeed, without any allegations, is even less persuasive.

The more important point, however, is that such a conspiracy -- even if it existed -- would be entirely irrelevant to the issue before us, which is whether or not North's Fifth Amendment right was violated. The Department of Justice could have held evening classes in "The Parsing and Deconstruction of Kastigar" for the very purpose of "derailing" the IC's prosecution, and such a curriculum would have been simply irrelevant to the question of whether or not the prosecution's case made use of North's compelled testimony. As the District Court aptly observed, we do not countenance political trials in this country, and this matter is not styled Independent Counsel v. Executive Branch, or even Congress v. Executive Branch. Rather, this is an individual's appeal from his criminal conviction, an appeal based on his contention that the government has violated his fundamental, enumerated constitutional right not to incriminate himself. We must so treat it.

The IC relies on Patton v. Yount, 467 U.S. 1025, 1035, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984), for the proposition that exposed jurors need not be disqualified (even if they have formed an opinion as to guilt) if they can put their opinions aside and make a judgment on the record. The IC's reliance on Patton is ill-placed. Patton is a Sixth Amendment case that is concerned with impartial jurors, not immunized testimony. North's Kastigar argument does not depend on the partiality of jurors. Rather, he protests that the government used his compelled testimony against him. Patton simply does not speak to the question before us.

The core purpose of the immunity statute, 18 U.S.C. §§ 6001-6005, is to allow the prosecution of an immunized witness while preventing use of his compelled testimony. One forbidden use of the immunized testimony is the identification of a witness, but other uses of a citizen's immunized testimony -- as by presenting the testimony of grand jury or trial witnesses that has been derived from or influenced by the immunized testimony -- are equally forbidden. As we said in United States v. De Diego, 167 U.S. App. D.C. 252, 511 F.2d 818, 821 (D.C. Cir. 1975), it is clear "that 'once 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.'" (emphasis supplied). In De Diego, the trial court had dismissed the indictment against a burglar involved in the break-in of a psychiatrist's office. The district court dismissed the indictment on the grounds that the Special Prosecutor (the predecessor of the Independent Counsel) had not met his burden of establishing that De Diego's testimony, compelled pursuant to the immunity granted by the State of Florida, would not taint the case. This Court reversed because the district court "had no discretion to dismiss the case without giving the Government an opportunity to prove lack of taint." De Diego, 511 F.2d at 822. We also noted that the government had independent, legitimate evidence as to De Diego's involvement in the break-in. Id. at 824. In the face of North's Kastigar protest, the case before us presents the opposite danger: requiring no demonstration of independent sources for the evidence presented to the grand jury.

The District Court relied on United States v. Rinaldi, 257 U.S. App. D.C. 298, 808 F.2d 1579, 1583-84 (D.C. Cir. 1987) (per curiam), for its conclusion that the IC's independent discovery of witnesses was dispositive of the invalidity of North's Kastigar claim. Kastigar Memo, 698 F. Supp. at 313 n. 15. We read Rinaldi otherwise.

In Rinaldi, the defendant pled guilty to a count of conspiracy to import heroin. He appealed the district court's denial of his motion to suppress certain testimony that he alleged was known to the government only through his immunized testimony. A codefendant who had been present during some of Rinaldi's immunized testimony later testified to the grand jury. Her grand jury testimony was elicited in part by leading questions from the government attorney. The government argued that the codefendant knew all the important details, that the government had developed her as a witness independently of the immunized testimony, and that its discovery of her testimony was inevitable, but the trial court made no specific findings to that effect on the record before it. The government had provided no independent basis for the leading questions. This Court therefore remanded for further evidentiary hearings and specific findings.

In Rinaldi we pointed out that "as the government bore the burden of proving that Reardon's testimony was free of taint and independently derived, we may not infer findings favorable to it on these questions." Rinaldi, 808 F.2d at 1583 (emphasis supplied) (citing United States v. Hampton, 775 F.2d 1479, 1485-86 (11th Cir. 1985)). The emphasized portion of this statement directs us to two inquiries: the taint of the testimony and the derivation of the testimony. The District Court in the present case concentrated only on the independence of the leads to witnesses, rather than on the substance of their testimony. Kastigar Memo, 698 F. Supp. at 313 ("All the prosecutor's substantive witnesses were known to him before the first immunity grant."); id. at 312 ("The immunized testimony taken before the Select Congressional Committees was elicited relatively late and well after the apparent diversion of funds, various cover-up tactics and many other facts relevant and material to the charges in this indictment were known to Independent Counsel."); id. at 308 ("Nearly 950 pages of transcript [of the IC's interrogation of Secord] cover interviews occurring before either North or Poindexter were compelled to testify publicly."). Although a methodology based on derivation is a sound starting point for a Kastigar inquiry, such an approach is incomplete. On the record, it is clear that the District Court focused solely on the derivation of the witnesses' testimony while dealing with that testimony's substantive content only by invoking other devices, such as the IC's "warnings" to grand jury witnesses.

Our dissenting colleague would avoid the entire foregoing analysis by equating the District Court's "finding" that North's immunized testimony was not presented to the grand jury with a "finding" that the testimony was not used at trial, an equation allegedly supported by the District Court's remark that North's post-trial Kastigar motion "presented no new information" that would warrant an additional hearing. Concluding that these are factual findings, the dissent indicates that we may not reverse them unless they are clearly erroneous. See Wald Dissent [Slip Op.] at 7, 17-20.

We disagree. In addition to the fact that the District Court did not actually make a specific finding that North's immunized testimony was not used at trial, we note that the District Court also "found" that grand jury witnesses had their memories refreshed by immunized testimony, but held that this use of the immunized testimony posed no Kastigar difficulty as long as the witnesses' testimony was truthful. As we have already discussed, see supra [Slip Op.] at 20-26, such a use of immunized testimony is impermissible, and the resulting truth or falsity of the witnesses' testimony is irrelevant to the issue before us. Thus, our colleague cannot logically proceed from a "finding" concerning the grand jury to a "finding" concerning the trial because the former is the product of straightforward legal error not subject to clearly erroneous review. Simply put, a reviewing court cannot always accept as a "factual finding" any conclusion so labeled by a district court; rather, the appellate court must be aware of what the district court believed to be the object of its search. If the lamp by which the District Court here searched was legally erroneous, then even an encyclopedia of facts boots it little. Indeed, as the dissent implicitly concedes, see Wald Dissent [Slip Op.] at 5, the District Court did not even claim to examine the grand jury transcripts for the presence of immunized testimony in the substance of witnesses' testimony.

Because of the legal infirmity of the District Court's grand jury finding, we decline to place great weight on the assertion that North's post-trial Kastigar motion presented "no new information." We are particularly mystified by our colleague's statement that "in determining that the trial testimony presented 'no new information' vis-a-vis the grand jury testimony, Judge Gesell obviously compared the substance of McFarlane's presentations before the grand jury and at trial." Wald Dissent at 923. To the contrary, the District Court's "no new information" statement in no way suggests that there was a comparison between McFarlane's grand jury testimony and his trial testimony. Given the witness's 180-degree public about-face before Congress, we doubt that the two sets of testimony were the same. At the very least, we are unprepared to hold that they were the same without a hearing on the question or to state that the District Court made such a finding when in fact it did not.

Our dissenting colleague asserts that she examined the grand jury transcripts, determined which witnesses testified as to matters touching upon Counts 6, 9 and 10, and then compared the substance of those witnesses' testimony both with their prior statements to the FBI and with North's trial testimony. Although we do not doubt our colleague's thoroughness and perseverance, her review cannot substitute for the hearing required under Kastigar for at least three reasons. First, the dissent does not determine that trial witnesses in no way incorporated, used or relied upon North's testimony in giving their own; rather, it relies on the District Court's legally erroneous finding concerning grand jury testimony, an approach that is flawed for the reasons noted above. Second, even by the dissent's lights, two Justice Department officials were substantially exposed to North's testimony and subsequently testified before the grand jury on matters concerning Count 6. See Wald Dissent [Slip Op.] at 11-13. Even if we were to accept the dissent's conclusion that one of those witnesses testified consistently with a prior FBI interview, see id. at 919, we are still left with the other witness. Under Rinaldi, the presence of the remaining witness requires a remand, unless the "pragmatic" approach that the dissent apparently thinks we endorsed in that case, see Wald Dissent at 914, is correct and Kastigar has virtually no substance. Finally, and most importantly, an ex parte review in appellate chambers is not the equivalent of the open adversary hearing contemplated by Kastigar. See United States v. Zielezinski, 740 F.2d 727, 734 (9th Cir. 1984); see also Section (D), infra.

The primary teaching of Rinaldi is not pragmatism, but that the government always bears the burden of proof and that we may not infer findings favorable to the government. The dissent simply shifts the burden of proof to North, apparently heedless of Kastigar and Rinaldi. The dissent repeats this somewhat fundamental error in its discussion of witness refreshment, see Wald Dissent [Slip Op.] at 15-17; in its inference of findings that the District Court did not make concerning the substance of grand jury testimony; in its discussion of grand juror exposure, see id. [Slip Op.] at 17-18; and, tellingly, in its assumption that there is no significant difference between the grand jury and the trial records because North's "counsel does not cite to even a single line of trial testimony that indicates either a change from the witness' grand jury testimony or any other evidence of taint." Id. at 923. Pragmatism is doubtless a virtue, but its invocation cannot override the Fifth Amendment, Kastigar, and Rinaldi. n4

n4 For similar reasons we are not convinced by the dissent's belief that the Kastigar inquiry should be limited to witnesses who testified about the events underlying the counts on which North was eventually convicted. We do not doubt that North's credibility could have been compromised by a witness who used the immunized testimony but who happened to testify concerning matters not directly related to the conviction counts. Similarly, such testimony could have influenced North's decision to waive his right not to testify. The harmfulness of such use is, of course, a question for the District Court to determine on remand.
 
In giving the IC a Kastigar clean bill of health, the District Court emphasized the warnings that were given to witnesses who appeared before the grand jury:

 

Beginning in July, 1987, the lawyers and investigators began instructing potential witnesses during interviews not to repeat any of the immunized testimony they may have been exposed to. When the grand jury reconvened in September, grand jury witnesses were formally instructed on matters related to immunized testimony. 

Kastigar Memo, 698 F. Supp. at 311. n5 The District Court went on to note that "a limited number of cooperating witnesses agreed to avoid exposing themselves to any of the immunized testimony elicited by Congress" and that Associate Independent Counsel "were apparently careful to avoid broad, rambling questions that might inadvertently invite generalized answers that comprehended facts not personally known to the witness but learned from immunized testimony." Id. at 312.

n5 After each grand jury witness was sworn, each was instructed as follows:

 

Certain witnesses have testified under Congressional grants of limited immunity before House and Senate Committees investigating the Iran/Contra matter. . . . Please make sure that your answers to our questions are based solely on your own personal knowledge and recollection of the events in question. Do not relate to us anything which you learned for the first time as a result of listening to or reading or hearing about immunized testimony.

 

Kastigar Memo, 698 F. Supp. at 311-12.
 
We conclude that the District Court's reliance on warnings to witnesses (to avoid testifying as to anything they had learned from North's immunized testimony) was not sufficient to ensure that North's testimony was not used. As North argues, "witnesses could not possibly filter each answer through the court's hypothetical 'prior knowledge' test." Brief for Appellant at 19 n. 28. The fact that the District Court reviewed transcripts of testimony before the grand jury in camera would have alerted the Court to the presence of North's immunized testimony only if it were clearly identified as such. Such a review could not have disclosed the unattributed inclusion of immunized testimony in other evidence and is defective. The only proper remedy is the searching Kastigar inquiry prescribed in Section (E), infra.

D. Appropriate Legal Standards On Remand

To assist the parties and the District Court, we offer some further observations on the legal standards to be applied on remand. First, it is important to note what is not at issue here. In certain situations, a grand jury may be presented with incompetent evidence -- for example, physical evidence seized in violation of the Fourth Amendment, or hearsay evidence, or evidence resulting from the violation of grand jury secrecy rules. In such circumstances, it is clear that dismissal of the indictment is not necessary. Midland Asphalt Corp. v. United States, 489 U.S. 794, 109 S. Ct. 1494, 103 L. Ed. 2d 879 (1989); United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); United States v. Blue, 384 U.S. 251, 16 L. Ed. 2d 510, 86 S. Ct. 1416 (1966); Lawn v. United States, 355 U.S. 339, 2 L. Ed. 2d 321, 78 S. Ct. 311 (1958); Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956) (roughly, the "Costello-Calandra rule"). In essence, the Costello-Calandra rule says that a facially valid indictment need not be dismissed solely because the grand jury has considered evidence that would be inadmissible at trial because that evidence was obtained in violation of some constitutional or statutory prohibition. The rule applies where the allegedly unlawful or unconstitutional action is independent of or prior to the consideration by the grand jury of that action's consequences. The terms of the Fourth Amendment do not prevent a grand jury from contemplating papers that have been seized without a warrant and without probable cause; rather, it prohibits the seizure of those papers in the first instance. Similarly, grand jury secrecy rules prohibit the publication of grand jury proceedings, not the government's use of those proceedings once the publication has occurred. The Costello-Calandra rule gives substance to this distinction.

As we explain in some detail below, that is not the situation before us. Here, what is prohibited and unconstitutional under the Fifth Amendment and Kastigar is the very presentation of the immunized testimony. Where immunized testimony is used before a grand jury, the prohibited act is simultaneous and coterminous with the presentation; indeed, they are one and the same. There is no independent violation that can be remedied by a device such as the exclusionary rule: the grand jury process itself is violated and corrupted, and the indictment becomes indistinguishable from the constitutional and statutory transgression. The Costello-Calandra rule depends upon a distinction between the prohibited action and the presentation to the grand jury of the fruits of that prohibited action. Kastigar prohibits use. There is no antecedent or prior wrong to be remedied, but use is a wrong that goes to the quick of the indictment. This distinction eludes the IC and the District Court; it becomes clearer, however, upon a comparison of cases from other circuits.

In United States v. Garrett, 797 F.2d 656 (8th Cir. 1986), the defendant was convicted of conspiracy to distribute cocaine. He appealed on the grounds that the grand jury that indicted him was the same grand jury to which he had testified on related matters under a grant of use immunity, and therefore his Fifth Amendment right was violated. The district court held no evidentiary hearing. The Eighth Circuit reversed and remanded for an evidentiary hearing on the grand jury issue. The government argued, much as it does here, that under Costello (which held that the grand jury clause of the Fifth Amendment does not require dismissal of an indictment that was based solely on hearsay evidence), and its progeny "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." Garrett, 797 F.2d at 660. Agreeing with the Ninth Circuit's decision in United States v. Zielezinski, 740 F.2d 727, 732 (9th Cir. 1984), the Garrett court rejected the government's Costello analogy because "Costello simply does not consider the power of a court to look behind or dismiss an indictment where there is a strong likelihood that the grand jury process itself violated the witness's fifth amendment privilege." Garrett, 797 F.2d at 661.

In Zielezinski, an Arizona firefighter under a grant of use immunity testified before a grand jury that he had used cocaine once, but denied further involvement. Other grand jury witnesses identified the defendant as a source and user of cocaine. The grand jury indicted him for drug offenses and perjury. The government submitted to the trial court grand jury transcripts and case-agent reports in order to establish the requisite independent sources. Defense counsel never saw the materials, which the court reviewed in camera. The Ninth Circuit remanded for an evidentiary hearing at which the government would be required to show independent sources, noting that "the government cannot simply provide transcripts to the court, in camera, and assume that it has met its Kastigar burden. Only a hearing can convincingly establish that the command of the Fifth Amendment has been satisfied." Zielezinski, 740 F.2d at 734.

In United States v. Hampton, 775 F.2d 1479 (11th Cir. 1985), the defendant gave immunized testimony to a Florida state grand jury, portions of which played a role in his subsequent indictment by a federal grand jury on charges involving the same events. For at least part of the investigation, federal investigators were using state materials and took no measures to insulate themselves from immunized testimony. The Eleventh Circuit reversed the conviction, holding that the district court erred in its conclusion that those of Hampton's statements that were not immunized sufficed as an independent source for all the evidence that the grand jury considered. The court stated that "Kastigar and its progeny require dismissal of an indictment of a previously immunized witness unless the government can demonstrate that 'none of the evidence presented to the grand jury is derived, directly or indirectly, from the immunized testimony. . . .'" Id. at 1489 (quoting United States v. Byrd, 765 F.2d 1524, 1530 (11th Cir. 1985)) (emphasis supplied in Hampton).

In United States v. Beery, 678 F.2d 856 (10th Cir. 1982), a debtor was convicted of withholding a document and concealing assets in a bankruptcy. The debtor had been granted use immunity under 11 U.S.C. § 25(a)(10) (1976), the immunity provision of the Bankruptcy Act of 1898. He then claimed that the trustee had used the immunized testimony in testifying before the grand jury. The Tenth Circuit found the government's assertions conclusory and the trial court's findings insufficient. It therefore remanded for a hearing that would "afford the Government an opportunity to meet its burden of proof as to its sources of its evidence presented to the grand jury and at trial, with any response the defendant may have." Beery, 678 F.2d at 863. The court also noted that the Costello principle was not necessarily applicable "where what was transpiring before the grand jury would itself violate a constitutional or statutory privilege." Id. at 860 (citing Calandra, 414 U.S. at 346).

Garrett and Zielezinski both rejected the approach of the Second Circuit in 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), and its progeny. In Hinton, the defendant testified under a grant of use immunity and gave some 200 pages of testimony to a grand jury concerning her involvement in a narcotics distribution ring. Two years later, that same grand jury indicted her. The Second Circuit reversed Hinton's conviction because

 

the prospect of peering into the grand jurors' minds, or of examining them individually, to ascertain whether Hinton's testimony was improperly used, is both impractical and unpalatable. . . . As a matter of fundamental fairness, a Government practice of using the same grand jury that heard the immunized testimony of a witness to indict him after he testifies, charging him with criminal participation in the matters being studied by the grand jury, cannot be countenanced.

Id. at 1010. Thus, Hinton supports a per se rule requiring dismissal of the indictment where it is shown that the indicting grand jury has been exposed to any immunized testimony. Circuit law as established in United States v. De Diego, 167 U.S. App. D.C. 252, 511 F.2d 818 (D.C. Cir. 1975), instructs us to allow the government an opportunity to make its case at a hearing, and therefore we decline to adopt the per se rule of Hinton.

The IC has pointed us to several cases that he claims support application of a Costello-Calandra treatment in an immunized testimony case. In Midland Asphalt Corp. v. United States, 489 U.S. 794, 109 S. Ct. 1494, 1499-1500, 103 L. Ed. 2d 879 (1989), the Court stated that "we have held that even the grand jury's violation of the defendant's right against self-incrimination does not trigger the Grand Jury Clause's 'right not to be tried.'" (citing Lawn v. United States, 355 U.S. 339, 349, 2 L. Ed. 2d 321, 78 S. Ct. 311 (1958)). The Court went on to state that "only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried." Id. The Court found that the alleged violation of a grand jury secrecy rule, Fed. R. Crim. P. 6(e) (prohibiting government attorneys' disclosure of matters before the grand jury), did not give rise to such a right. Midland Asphalt, 109 S. Ct. at 1499-1500. North's whole point, of course, is that in his situation his widely disseminated testimony caused "the grand jury no longer to be a grand jury," and we conclude that such may have been the case; at the very least, it is impossible to tell from the record before us.

The IC also points to United States v. Society of Independent Gasoline Marketers of America, 624 F.2d 461, 473-74 (4th Cir. 1979), cert. denied, 449 U.S. 1078, 101 S. Ct. 859, 66 L. Ed. 2d 801 (1981) (hereafter "SIGMA"), as support for the proposition that "the Costello-Calandra principle has been applied to claims that the Government has improperly used immunized testimony." Brief for Appellee at 13 n. 21. SIGMA fails to recognize the violation-of-process distinction pointed out in cases such as Beery and Garrett, and to that extent we decline to follow the Fourth Circuit. The IC attempts to distinguish the grand jury cases on the grounds that they all involved the government itself presenting immunized testimony, whereas in the present case it is presented by witnesses, if presented at all. Kastigar prohibits "use," however, regardless of the conduit through which the government passes the testimony. The fact that Congress or a government witness, rather than the IC personally, provides compelled testimony to the grand jurors is legally irrelevant under Kastigar. The IC agreed that some of the grand jury witnesses had been exposed, Transcript of Kastigar Hearing at 221 (Apr. 25, 1988) (JA at 756), and the issues of the replacement jurors' exposure, noted infra at Section (E), and of the effectiveness of the warnings, described supra [Slip Op.] at 35-36, strengthen us in our conclusion that it was error for the District Court to fail to hold a full Kastigar hearing concerning the content as well as the sources of the witnesses' testimony.

We note again that use of immunized testimony before the grand jury could possibly lead to dismissal of the indictment. Apparently aware of this possibility, the IC protests that he sealed and filed (or "canned") both evidence and prosecution theories prior to North's congressional testimony. It is not clear to what extent the District Court saw and relied on these materials, or what part they played in the District Court's review. See Kastigar Memo, 698 F. Supp. at 315-16 (listing materials reviewed). The District Court reviewed both sealed and unsealed materials. The sealed materials include the in-court testimony of IC Walsh; transcribed portions of the grand jury proceedings, including exhibits; the transcript of the voir dire of the replacement grand jurors; transcripts of interviews with General Richard V. Secord; a subpoena index; correspondence between the Congress and the IC concerning use immunity; and the so-called "Douglass file," a collection of papers noting instances of exposure to the immunized testimony on the part of the IC and his staff. The sealed materials also included "two bound volumes of material establishing independent 'leads' to all trial witnesses providing substantive information who may be called in the government's case-in-chief." Id. at 315.

At oral argument, North's counsel asserted that the canned materials played no part in the District Court's review:

 

The interviews and any materials that had been sealed, so-called canned material, was not given to the District Court judge, although it had been filed with the District Court while the investigation was ongoing. There was an order, which is in the record, that that material was then transferred back to the Office of Independent Counsel for preservation, in case it was ever needed, so that the interviews with these witnesses were not before the trial judge. He didn't consider those in making his determination.

Transcript of Oral Argument at 20-21. Counsel for the IC did not contest this proposition, except to note that after the trial North had access to grand jury testimony and trial testimony concerning the three counts on which he was convicted, as well as access to the two volumes of leads noted by the District Court. Transcript of  Oral Arg. at 50. See also United States v. Poindexter, No. 88-0080-02 (D.D.C. Apr. 28, 1988) (J.A. at 287-88) (order to the Court Security Officer ("CSO") that he remove from the Office of the Clerk of the Court the material filed there under seal by the IC, and further instructing the CSO that the material be deposited in the sensitive compartmented information facility maintained by the IC). On the current record, therefore, we cannot determine the proper weight to afford these materials. On remand, the record must be clear and specific about the District Court's review of and reliance upon any canned testimony in its Kastigar determination.

 

E. Conclusion

North also asserts that a full Kastigar hearing is in order concerning the grand jury which was in recess from 29 June 1987 to 2 September 1987. Kastigar Memo, 698 F. Supp. at 308. North's immunized testimony before Congress began on 7 July 1987 and ended 14 July 1987. No matter how many warnings the grand jurors were given, North argues, they were out of the presence of court and counsel for two months. During one of these weeks North was testifying before Congress. During the other seven weeks his testimony was disseminated widely and analyzed thoroughly. In addition, two replacement grand jurors were qualified after the immunized testimony had been taken, as the District Court noted: "Neither grand juror was questioned in any detail concerning any knowledge either might have of the content or nature of the immunized testimony. The records of the grand jury indicate that in the normal course of later events they were adequately warned." Id. at 311 n. 13. Although the government's possible use of compelled testimony via the grand jury and trial witnesses concerns us most among North's voluminous protestations, factors such as the grand jury's recess during the daily, ubiquitous broadcast of North's immunized testimony, and the apparent decision of the District Court not to inquire in any detail as to the possible taint of the replacement grand jurors cause us to note with even greater concern the District Court's decision not to hold a full-blown, item-by-item Kastigar hearing. The assertion that there was "solid proof and ample probable cause to indict," id. at 315, even if true, cannot replace a Kastigar inquiry. Coerced confessions and compelled testimony may often supply proof and cause, but that fact does not diminish their constitutional offensiveness in virtually all uses.

The District Court also stated that "the grand jurors were specifically, repeatedly and effectively instructed to avoid exposure to any immunized testimony. . . . Many more warnings were given during the course of the grand jury's tenure." Id. at 309. There is no evidence that the warnings to the grand jurors were effective, however, because grand jury deliberations are not transcribed and therefore could not have been part of the record reviewed by the Court. These concerns underscore our conclusion as expressed above that the present convictions cannot stand. We are not persuaded, however, to extend our holding and require an unprecedented Kastigar-type hearing concerning possible exposure of individual grand jurors through the media.

Nonetheless, as to witness exposure, such a hearing is required.

The convictions are vacated and the case is remanded to the District Court. On remand, if the prosecution is to continue, the District Court must hold a full Kastigar hearing that will inquire into the content as well as the sources of the grand jury and trial witnesses' testimony. That inquiry must proceed witness-by-witness; if necessary, it will proceed line-by-line and item-by-item. For each grand jury and trial witness, the prosecution must show by a preponderance of the evidence that no use whatsoever was made of any of the immunized testimony either by the witness or by the Office of Independent Counsel in questioning the witness. This burden may be met by establishing that the witness was never exposed to North's immunized testimony, or that the allegedly tainted testimony contains no evidence not "canned" by the prosecution before such exposure occurred.  Unless the District Court can make express findings that the government has carried this heavy burden as to the content of all of the testimony of each witness, that testimony cannot survive the Kastigar test. We remind the prosecution that the Kastigar burden is "heavy" not because of the evidentiary standard, but because of the constitutional standard: the government has to meet its proof only by a preponderance of the evidence, but any failure to meet that standard must result in exclusion of the testimony.

If the District Court finds that the government has failed to carry its burden with respect to any item or part of the testimony of any grand jury or trial witness, it should then consider whether that failure is harmless beyond a reasonable doubt. If the District Court concludes that the government's failure to carry its burden with respect to that particular witness or item is harmless beyond a reasonable doubt, the District Court should memorialize its conclusions and rationales in writing. If the government has in fact introduced trial evidence that fails the Kastigar analysis, then the defendant is entitled to a new trial. If the same is true as to grand jury evidence, then the indictment must be dismissed.

II. JURY UNANIMITY INSTRUCTION

North alleges error as to Count 9 in the trial court's refusal to give a specific unanimity instruction. The Court gave a general unanimity instruction:

The verdict must represent the considered judgment of each juror. In order to return a verdict on any aspect of this case it is necessary that each juror agree to the verdict. Your verdict must be unanimous.

In addition to this instruction, North contends that he was entitled to further instruction directing the jury that it must be unanimous as to the specific act (or acts), method, mode or manner by which North violated the statute as charged in Count 9. Upon review of the facts of this case and the appropriate authorities, we conclude that the District Court committed reversible error as to Count 9 in its refusal to include a specific unanimity requirement in its instructions to the jury.

In 1982, in United States v. Mangieri, 224 U.S. App. D.C. 295, 694 F.2d 1270 (D.C. Cir. 1982), we considered a defendant's "argument . . . that when the government seeks to convict for one offense by proving two or more acts, proof of either one being sufficient, the court must . . . instruct jurors that they must be unanimous in their finding that the government has proven the same one (or more) act(s)." Id. at 1280. In Mangieri, Chief Judge Wald, writing for a unanimous panel, noted "that the District of Columbia Court of Appeals has announced a rule requiring an instruction on the need for unanimity on the particular acts on which a guilty verdict is based." Id. at 1281 (citing Hack v. United States, 445 A.2d 634, 641 (D.C. App. 1982)). The Mangieri panel went on to note the reasoning underlying the District of Columbia rule, that is, "'the possibility of a nonunanimous verdict, when one charge encompasses two separate incidents,'" so that a judge should (and under the District of Columbia's rule must) "'instruct the jury that if a guilty verdict is returned the jurors must be unanimous as to which indictment or incident they find the defendant guilty.'" Mangieri, 694 F.2d at 1281 (quoting Hack, 445 A.2d at 641 (other citations omitted)). We described the District of Columbia's rule as "sensible and appropriate -- and we urged trial courts to employ the instruction without request in cases" where the possibility of non-unanimity as to specifics of the offense exists. Id.

Nonetheless, in Mangieri we did not reverse. The defendant had not requested a specific unanimity instruction. Despite our urging that the instruction should be given without request, we noted that "this circuit, along with others, has not heretofore adopted a rule requiring the particularized instruction." Id. Therefore, we examined the context of the entire instruction and the charge, and subjected the allegation to a "plain error" analysis. Finding no plain error, we affirmed. 

More recently, in United States v. Hubbard, 281 U.S. App. D.C. 262, 889 F.2d 277 (D.C. Cir. 1989), we confronted the same argument in the context of a defendant who had not objected to the general instruction given by the trial court and had made no request for a specific unanimity instruction. Again, we rejected the defendant's specific-unanimity-instruction argument under a plain error analysis, but we reiterated that "this Circuit strongly approved a District of Columbia Court of Appeals rule requiring an instruction on the need for unanimity on the particular acts on which a guilty verdict is based." Id. at 279 (citing Mangieri).

In the present case, we do not confront a specific-unanimity-instruction question in a plain error context. North did request the instruction from the trial court and did object to the court's refusal to give it. Therefore, the issue is before us for definitive resolution. We must determine whether the refusal to give the requested instruction was reversible error. We conclude that it was.
 
A. The Standard

Although we have not previously squarely faced this issue in other than a plain error context, other circuits have. In United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), the Fifth Circuit considered an appeal by a defendant who had been charged in one count with selling or receiving a stolen car that had moved in interstate commerce in violation of 18 U.S.C. § 2313. The Fifth Circuit noted that under the instructions actually given in that case, the guilty verdict could have resulted from each individual juror finding "that the defendant performed one of . . . six prohibited acts -- receiving, concealing, storing, bartering, selling, or disposing -- on a stolen vehicle moving in interstate commerce that the defendant knew to be stolen." Id. at 458. Speaking for the court, Judge Wisdom noted that "Rule 31(a) of the Federal Rules of Criminal Procedure requires that a jury verdict in a federal criminal trial be unanimous," and that Rule 31(a) "gives explicit recognition to a requirement that the Supreme Court has long assumed to inhere in a federal criminal defendant's sixth amendment right to a trial by jury." Id. at 456 (footnote omitted) (citing, inter alia, Andres v. United States, 333 U.S. 740, 748-49, 92 L. Ed. 1055, 68 S. Ct. 880 (1948)). Thus, the Fifth Circuit concluded, an instruction that permits the jury to return a guilty verdict where all jurors agree that he is guilty of something is not sufficient. The defendant's right to a unanimous verdict is not adequately "protected unless [the] prerequisite of jury consensus as to the defendant's course of action is also required." Gipson, 553 F.2d at 458 (footnote omitted). Finally, the Gipson court held that "because it is impossible to determine whether all of the jurors agreed that the defendant committed acts falling within one of the two conceptual groupings, we cannot say that the district court's instruction was harmless beyond a reasonable doubt. . . ." Id. at 459 (citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)). Thus, the court reversed and remanded for a new trial.

In United States v. Beros, 833 F.2d 455 (3d Cir. 1987), the Third Circuit considered the specific unanimity question. In that case the indictment charged a union official with embezzling, stealing, abstracting or converting to his own use funds belonging to the union. Like the defendant in Gipson, and North in the present case, the official had requested a specific unanimity instruction in the district court. The Third Circuit noted that each of the counts alleged "four separate and distinct theories of criminal activity: embezzlement, abstraction, stealing and conversion." Id. at 461. It further noted that "each count also enumerates several acts upon which a finding of guilty could be predicated." Id. In that circumstance, the court concluded that "it is plainly not enough that the jury was unanimous in finding one theory on which it believed Beros culpable. The jury needed also to match that finding to another unanimous finding regarding a particular act." Id.

In an opinion by Judge Higginbotham, the Beros court described the circumstances that mandate a specific unanimity instruction:

 

When the government chooses to prosecute under an indictment advancing multiple theories, it must prove beyond a reasonable doubt at least one of the theories to the satisfaction of the entire jury. It cannot rely on a composite theory of guilt, producing twelve jurors who unanimously thought the defendant was guilty but who were not unanimous in their assessment of which act supported the verdict.

 

Id. at 462. Thus, the Third Circuit concluded that the Sixth Amendment requires the jury to be unanimous as to the specific act and theory underlying the defendant's guilt and that the reviewing court "must be certain that the jury was properly instructed to achieve" that unanimity. Id. (citing United States v. Peterson, 768 F.2d 64, 67 (2d Cir.), cert. denied, 474 U.S. 923, 88 L. Ed. 2d 264, 106 S. Ct. 257 (1985)). Expressly distinguishing our decision in Mangieri where the defendant had not requested the specific unanimity instruction, the Beros court, like the Fifth Circuit in Gipson, subjected the question to a harmless error analysis and vacated Beros's convictions on the counts under review. Id. at 462-63.

The Sixth Circuit faced the specific unanimity issue in United States v. Duncan, 850 F.2d 1104 (6th Cir. 1988), aff'd without op. on appeal after remand, 881 F.2d 1077 (6th Cir. 1989), cert. denied sub nom. Downing v. United States, 493 U.S. 1025, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).  In Duncan, each of two counts of the indictment charged the defendant with criminal acts relating to the filing (Count 3) and preparation (Count 5) of a false tax return. As to each of those counts, the allegations and the prosecution's evidence supported the inclusion of two distinct false statements in the relevant tax return. Hence, the possibility existed that one or more jurors might have found that the defendant acted criminally with respect to one of the false statements, even though the juror (or jurors) harbored doubt as to the other statement. Thus, a jury, unanimous as to guilt, might have been divided as to the specific act upon which that conclusion of guilt was founded. In considering the defendant's argument that it was error for the trial judge not to have offered a specific unanimity instruction, the Sixth Circuit first considered the question, "Must the jury's verdict actually have been unanimous as to one or the other statement?" Id. at 1111. The court held that "unanimity on alternatives is necessary when 'discrete acts are alleged in a single count, such as charges of separate false statements, any one of which is sufficient to convict.'"  Duncan, 850 F.2d at 1113 (quoting United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983) (Kennedy, J.)).

Having reached that conclusion, the Sixth Circuit then considered the question, "Given the necessity for a unanimous verdict, [was] the trial judge . . . required to instruct the jury of that necessity[?]" Duncan, 850 F.2d at 1113. Relying heavily on Judge Higginbotham's discussion in Beros, the Duncan court answered that question in the affirmative:

 

'When it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as a result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice.

 

To correct any potential confusion in such case, the trial judge must augment the general instruction to insure the jury understands its duty to unanimously agree to a particular set of facts.'

Duncan, 850 F.2d at 1114 (quoting Beros, 833 F.2d at 461) (emphasis supplied in Duncan) (other citations omitted).

We adopt the holding of our sister circuits in Duncan, Beros, and Gipson and conclude that the trial court erred in refusing to instruct that in order to return a unanimous verdict of guilty on a count involving multiple distinct underlying acts, jurors are required to be unanimous as to the specific act by which the defendant violated the law. We hold that in cases where there is a danger of a fragmented verdict the trial court must upon request offer a specific unanimity instruction.

In discussing the application of this rule to the present case, we will further delineate the circumstances warranting such an instruction.
 
B. Application to the Present Case

At the outset, we recognize that as a rule a general instruction on unanimity like the one given in the present case -- advising the jury that its members must unanimously agree on any aspect of the case as to which it renders a verdict -- protects the defendant's right to a unanimous jury decision. Duncan, 850 F.2d at 1113. A further safeguard in the form of a particularized instruction is required, however, in the face of "a genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts." Id. at 1114. The present case presents such a genuine risk. Analyzing the question in common-law terms, we would state that in order to return a guilty verdict under Count 9, the jury was required to agree that the defendant did commit a charged actus reus with a mens rea. Cf. Duncan, 850 F.2d at 1111. Count 9 charged that North, having custody of NSC documents, "willfully and knowingly did conceal, remove, mutilate, obliterate, falsify and destroy and did cause to be concealed, removed, mutilated, obliterated, falsified and destroyed records, papers and documents filed and deposited in a public office. . . ." JA at 260-61. n6 In his jury instruction on Count 9, the trial judge summarized the indictment as charging North with destroying, altering, and removing documents from mid- to late November 1986. JA at 645. In effect, then, the jury had three alternative theories of destroying, altering, or removing on which it might have convicted North under section 2071(b).

n6 North also contends that the District Judge erred by instructing the jury that having custody over documents "simply means that a record or document came into the person's possession or control as a government official. Someone with custody does not have to be employed as a librarian or as an official record keeper." JA at 647. We find this instruction entirely appropriate: North's implication that he should escape censure for the destruction, alteration, and removal of documents because he was not the official custodian of NSC records would give license to any government official not serving as a "librarian" or "custodian" to violate section 2071(b) with impunity.
 
Where several factual predicates support a guilty verdict, a defendant is entitled to unanimous agreement among the jury as to which of those "alternative factual predicates" provided a basis for conviction. Duncan, 850 F.2d at 1112 (citing cases). As a general rule, when an indictment charges several "distinct conceptual groupings" of activities in an individual count, as opposed to "a single conceptual grouping of related facts," the jury must agree unanimously as to which of these distinct groupings the defendant is guilty. Id. at 1113. See Gipson, 553 F.2d at 458 (actions are conceptually indistinct when they are interrelated or when they cannot be characterized separately from each other). When a statute criminalizes false statements, for example, each false statement charged in a single count is properly treated as a distinct conceptual grouping; to convict, the jury must unanimously agree upon which one of those statements the defendant made. See Mangieri, 694 F.2d at 1281; United States v. Ryan, 828 F.2d 1010, 1019 (3d Cir. 1987); see also Beros, 833 F.2d at 460-63 (three alternative transactions charged in same count as occasions of "embezzlement, stealing, abstracting, or converting to own use" require specific unanimity in verdict); United States v. Peterson, 768 F.2d 64, 67 (2d Cir.), cert. denied, 474 U.S. 923, 88 L. Ed. 2d 264, 106 S. Ct. 257 (1985) (two separate instances charged in single count of drug possession require specific unanimity in verdict).

In North's case, the factual predicates on which the indictment was based are, in our view, distinct enough to necessitate specific unanimity. North testified that he destroyed documents beginning in late October 1986 and that he continued to do so until he was fired in November 1986. At Casey's instruction, he destroyed a ledger of the Contra operating fund, Transcript of Testimony ("Tr.") at 7138-39; acting on his own, in order to avoid jeopardizing clandestine supporters of American activities in the Middle East and Central America, Tr. at 7578, he also destroyed documents concerning the Iranian arms sales and Contra support initiatives, Tr. at 7561-63, 7574-75. He explained that he regarded the destroyed documents as part of his personal files, Tr. at 7560, and, therefore, did not consider his actions unlawful.

North also testified that, on McFarlane's instructions, he altered five official documents -- apparently System IV NSC documents -- relating to the Iranian arms sales. Tr. at 6905. North thought that altering only the five or six documents indicated by McFarlane "didn't . . . [make] any sense," Tr. at 6906, because other documents included equally sensitive information about Contra support. North said that he did not consider the alterations unlawful because he had prepared the documents in question for McFarlane. Tr. at 6907.

Finally, North testified that after he was fired, he removed documents from his NSC office on the advice of Secord's counsel. Tr. at 7109, 7113. He returned the documents a few days later on the advice of his present counsel, whom he had retained in the intervening period. Tr. at 7117.

Thus, the jury could have found that North violated section 2071(b) in several different ways. The circumstances of his destruction, alteration, and removal of documents were distinct; any of those activities could serve as an underlying criminal act. Furthermore, the evidence bearing on North's knowledge of the lawfulness of his actions -- and, in effect, on the criminality of his intent -- varied from instance to instance. Each of the possible predicates for a conviction on Count 9, therefore, required distinct, individuated proof. As a result, we conclude that the jury had to agree unanimously as to which, if any, of these combinations of actus reus and mens rea actually occurred, and the trial court should have so instructed.

The IC attempts to distinguish Gipson, Beros, and Ferris on the argument that the charge in Count 9 "involves a continuing course of conduct, rather than conceptually distinct episodes of destruction, alteration and removal. . . ." Brief for Appellee at 66 (emphasis supplied). This argument is not supportable either on the law or the facts. Although the presence of a "conceptual distinction" in the acts charged was important to other circuits in some of the cited cases, see, e.g., Gipson, 553 F.2d at 458, that term is simply a useful formulation of a circumstance requiring the specific unanimity instruction. The exact parameters of the universe of cases in which the instruction must be given cannot be determined by a niggling construction of that phrase. In Peterson, the Second Circuit noted the Fifth Circuit's use of that phrase as a qualifier in Gipson. The Second Circuit, in an opinion by Judge Friendly, read the Gipson court's use of "the 'distinct conceptual grouping' qualification" as "refer[ring] to situations where the same act is characterized in different ways, each of which constitutes a crime under the same count of an indictment." Peterson, 768 F.2d at 67 (footnote omitted). The Peterson court went on to note that "the two instances of possession offered in support of [a single count] . . . would constitute 'distinct conceptual groupings' despite their close coincidence in time and similarity in nature." Id.

Likewise, after considering the Gipson court's use of the phrase and Judge Friendly's construction of it in Peterson, the Sixth Circuit concluded in Duncan that "a count containing two false representations . . . is normally treated as containing two distinct conceptual groupings." Duncan, 850 F.2d at 1113 (internal quotations omitted). The Duncan court went on to state in its analysis of the necessity for a specific unanimity instruction, "the touchstone has been the presence of a genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts." Id. at 1114 (emphasis supplied). Because the indictment in the present case charged several distinct acts of concealing, removing or falsifying documents, the Peterson/Duncan analysis of the Gipson phrase "distinct conceptual grouping" seems to us apposite, and the danger that a jury unanimous as to guilt could have been divided as to the specific act committed seems most real.

As the Ninth Circuit has stated, "when it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as a result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. . . . The trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts." United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983) (emphasis supplied) (modifying 698 F.2d 375 (9th Cir. 1983)) (adopted in Beros, 833 F.2d at 455; Duncan, 850 F.2d at 1114). Count 9 presents just such a situation.

It is certainly a genuine possibility, and perhaps not an unlikely one, that individual jurors or groups of jurors differed on whether North performed the separate acts charged under Count 9 with the requisite intent. n7 For example, some jurors may have concluded that North knew only that destroying official documents was unlawful, while other jurors may have believed that he knew only that altering System IV documents was unlawful, and still others may have believed that he knew only that removing documents from his office after being fired was unlawful. It is also possible, albeit less likely, that despite North's testimony, jurors could have disagreed as to which actus reus North committed, regardless of his intent. Because "the permutations that can support a valid conviction are varied and several," Beros, 833 F.2d at 462, the possibility that the jury did not reach a verdict of specific unanimity is significant and real. Consequently, we cannot conclude that the District Court's refusal to give a particularized unanimity instruction was harmless error. We reverse Count 9 on this ground.

n7 As we note in Part IV of this opinion, the parties are agreed that violations of 18 U.S.C. § 2071(b) such as those charged in Count 9 require the unusually high mental element of knowledge of unlawfulness.
 

III. AUTHORIZATION

North argues that his convictions on Counts 6 and 9 must be reversed because the jury was improperly instructed concerning North's claimed authorization from his superiors to do the acts underlying those counts. He raises two arguments that at least appear to be conceptually distinct. First, North asserts that under our decision in United States v. Barker, 178 U.S. App. D.C. 174, 546 F.2d 940 (D.C. Cir. 1976), the jury should have been instructed to return a verdict of not guilty if it found the necessary elements of a so-called "authorization defense." That is, he claims that he was entitled to an instruction that reasonable reliance on the apparent authority of one's superiors is an absolute defense. We hold that the District Court did not err in refusing to give an authorization defense instruction. Second, North claims that the District Judge erred when he instructed the jury to ignore all evidence of authorization in deciding whether North had the requisite intent in either count unless "the defendant was specifically ordered and directed by a superior to act contrary to the law, and if no alternative was available to him to comply with the order by other lawful means . . . [and if] he reasonably believed the order was legally proper." JA at 674-75. We hold that the District Court erred in limiting the jury's consideration of the evidence of authorization with reference to Count 9, but not as to Count 6.
 
A. Authorization Defense

North claims that the District Court erred by refusing to instruct the jury that authorization is a complete defense requiring acquittal if supported by the evidence. This argument is raised separately and distinctly from the claim that the jury was improperly constrained in its consideration of the evidence of authorization. North asserts in his brief that "there is an enormous difference between (1) an instruction that authorization is merely relevant to intent and (2) an instruction that authorization is a defense that requires acquittal if supported by the evidence." Brief for Appellant at 37. Specifically, North requested the following instruction:

 

If you find that Lt Col North acted in good faith on a superior's apparent authorization of his action, and that his reliance was reasonable based on the facts as he perceived them, that is a complete defense to [Counts Six and Nine].

JA at 2459. North argues that he was entitled to such an instruction under our decision in United States v. Barker, 178 U.S. App. D.C. 174, 546 F.2d 940 (D.C. Cir. 1976), which, he claims, establishes an authorization defense in this Circuit quite apart from the question of intent. North faults the District Court for its failure to follow Barker. Although North's argument has an initial appeal because Barker is a previous case of our Circuit, we have read Barker, and reread it, and simply cannot find in it a rule of law to apply.

In Barker, we reversed the convictions of Bernard Barker and Eugenio Martinez, who participated in the burglary of Dr. Lewis Fielding's office at the behest of E. Howard Hunt. Hunt, who was known to Barker and Martinez as a long-time CIA agent, worked under the supervision of John Ehrlichman in the White House and was attempting to obtain information about Daniel Ellsberg, the source of the Pentagon Papers leak. Dr. Fielding was Ellsberg's psychiatrist, and Hunt hired Barker and Martinez to break into Fielding's office for the purpose of photographing Ellsberg's file. That break-in led to charges under 18 U.S.C. § 241 against Barker and Martinez, among others, for conspiring to violate Dr. Fielding's Fourth Amendment rights. The defendants claimed that they lacked the mens rea necessary for conviction because they had reasonably relied on Hunt's authority to engage them in carrying out the burglary, and that the district court had erred by refusing to instruct the jury accordingly and by excluding evidence that would tend to establish their theory of the case.

All three judges issued separate opinions, two of which supported reversal on grounds that the defendants were entitled to put on evidence and have the jury instructed on the defense of good faith reasonable reliance on the apparent authority of Hunt. Judge Wilkey thought the case presented an exception to the usual rule that a mistake of law is no defense to a criminal charge. He observed first that it would be a mistake of law, not fact, for a police officer to search someone's home or office in reliance on a warrant that was issued by a judicial officer who mistakenly believed that there was probable cause for the search: n8