UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Case No. 20-cr-105-PB Opinion No. 2022 DNH 106 Michael J. Wagner
MEMORANDUM AND ORDER
Michael Wagner, a former Captain with the Salem Police Department
(SPD), has been indicted for making a false statement in his 2013 income tax
return. The government alleges that Wagner inflated his work-related tax
deductions and underreported more than $30,000 he earned by reselling
firearms he purchased from Sig Sauer (a firearms manufacturer) using a law
enforcement discount. Before becoming a target of a criminal investigation,
Wagner was interviewed as part of an internal affairs investigation of the
SPD initiated by the Town of Salem. In a recorded interview, Wagner made
some limited statements concerning his firearm purchases. I previously
determined that those statements were made under the threat of losing
employment and were thus immunized under Garrity v. New Jersey, 385
U.S. 493 (1967), which held that Fifth Amendment protections apply to public employees who, under the threat of job loss, are required to make
incriminating statements.
Wagner’s Garrity immunity now precludes the government from using
his statements or any evidence derived from them when seeking an
indictment or a conviction. The government did not use Wagner’s statements
in securing a superseding indictment and will not use them at trial. Having
settled the immunity question, I must now decide whether the government
has met its “heavy burden” of proof under Kastigar v. United States, 406 U.S.
441 (1972), to show that the evidence it proposes to use is derived from a
legitimate source entirely independent of Wagner’s compelled statements.
I. BACKGROUND 1
The superseding indictment charges Wagner with one count of
submitting a false and fraudulent tax return in violation of 26 U.S.C.
§ 7206(1). The government intends to prove at trial that Wagner purchased
thirty-six assault rifles from Sig Sauer between December 2012 and January
2013, typically using a twenty-five percent discount offered to law
enforcement officers. He allegedly resold thirty-three of those rifles over the
internet, earning more than $33,000 in profit. When Wagner later filed his
2013 tax return, he allegedly omitted the income from his online firearm
1 These findings of facts are based on the evidence I received at the Kastigar hearing on June 21, 2022. 2 sales and falsely claimed more than $10,000 in unreimbursed business
expenses for firearm and ammunition purchases. As a result, the government
claims he avoided paying about $11,000 in income taxes.
Wagner’s firearms dealings were no secret at the SPD. Some of his
fellow officers complained repeatedly about those dealings to the Salem
Manager Christopher Dillon. Sergeant Chad Clark and two other SPD
officers approached Dillon individually to raise concerns about Wagner
purchasing guns at Sig Sauer and reselling them. Dillon was aware of this
complaint before he hired a risk management firm, Kroll Inc., in late
February 2018 to audit the SPD’s internal affairs process, which for years
had been seen as irredeemably flawed by various Town stakeholders.
As part of the audit, Daniel Linskey, Kroll’s primary investigator,
interviewed SPD command staff, including Wagner, in May 2018. Before the
interviews, Linskey received a private Twitter message from a law
enforcement contact informing him that Sergeant Clark had complained
during a union meeting that Wagner had bought numerous firearms at Sig
Sauer with a police discount and made $32,000 in one month from reselling
them. 2 The same source told Linskey of a rumor that Wagner had purchased
2 The name of the complaining sergeant is redacted in the Twitter message in the record. See Doc. No. 47–2. The government has represented, without objection from Wagner, that the person identified in the message is Sergeant Clark. 3 a retired SPD cruiser through an intermediary and later resold it for a
significant profit.
Linskey first asked SPD Chief Paul Donovan about the rumors during
his audit interview. When asked about his officers reselling discounted
firearms from Sig Sauer, Donovan responded that he knew Wagner had
bought some at one point. Donovan was not aware of Wagner’s cruiser
purchase.
Linskey then asked Wagner about the cruiser and the firearm sales at
the end of his interview. Wagner confirmed that he had bought an SPD
cruiser in a private sale, but he would not discuss its resale. In response to
questions about his gun purchases, Wagner stated that he had bought
firearms from Sig Sauer but insisted that it was his “private business” that
he did not want to discuss. Wagner also confirmed that he did not have a
federal firearms license (FFL) to deal in firearms, but he volunteered that a
“close friend” had an FFL.
The Kroll report was published in November 2018. The report focused
on the SPD’s internal affairs, time and attendance practices, and overall
culture. It made no reference to Wagner’s firearm or cruiser purchases. Chief
Donovan left shortly after the report came out, and the Town engaged Brian
Pattullo to oversee the SPD as Civilian Administrator in early December.
4 Pattullo learned about Wagner’s profiteering from firearm sales from
Sergeant Clark during a “ride along” in mid-December. One of the issues
Clark asked Pattullo to investigate was Wagner’s purchase of guns from Sig
Sauer with a police discount. At some later point, Wagner himself
volunteered during a casual conversation with Pattullo that he had bought
firearms from Sig Sauer and insisted that he had done nothing wrong. Dillon,
the Town Manager, later shared the same information with Pattullo.
When Pattullo did not take immediate action to address Clark’s
complaints, Clark went to the Town HR Director Anne Fogarty in late
December. Among several concerns Clark aired was that Wagner had bought
firearms with a law enforcement discount and earned about $40,000 in profit
when he resold them. Clark later repeated his allegation during a January 2,
2019 meeting with Fogarty and Dillon and at a January 9, 2019 meeting with
SPD Sergeants and Lieutenants.
Meanwhile, the Office of the New Hampshire Attorney General
(NHAG) had begun to investigate the SPD after the American Civil Liberties
Union flagged issues identified in the Kroll report. Pattullo and Dillon first
met with NHAG investigators and prosecutors, including Investigator Scott
Gilbert, on January 14, 2019. Dillon had a written list of topics to cover that
Fogarty had prepared for him, which included Wagner’s firearm sales.
During the meeting, Pattullo and Dillon discussed various allegations about
5 potential criminal activity by SPD officers, including Clark’s allegation that
Wagner had resold firearms purchased from Sig Sauer with a police discount.
This was when Gilbert first learned about the firearms complaint. Other
allegations about Wagner that were discussed during the meeting included
his purchase and resale of a retired SPD cruiser and his role in the removal
of internal affairs files.
The attorneys spearheading the SPD investigation informed Gilbert
that every allegation brought up at the meeting needed to be investigated.
They discussed investigating Wagner’s firearm purchases for a possible
violation of the Official Oppression statute, a state law against misuse of
public office for personal gain, see N.H. Rev. Stat. Ann. § 643:1, as well as the
possibility of referring the matter to their federal counterparts for potential
violations of federal gun laws.
Gilbert and a fellow investigator first turned their attention to the
cruiser issue and the missing internal affairs files, both of which were more
recent than the firearm sales. But Gilbert’s focus was redirected to the
firearm sales on February 6, 2019, when he obtained the transcript of
Wagner’s interview with Kroll. The transcript confirmed the allegation
Gilbert had previously heard that Wagner was buying discounted guns from
Sig Sauer. The only new information Gilbert learned from reading the
transcript was that Wagner did not have an FFL but had a “close friend” who
6 did, and that Wagner was hesitant to discuss his gun purchases because he
considered them to be his “private business.”
Within hours of receiving the transcript, Gilbert asked Sig Sauer for
records of Wagner’s firearm purchases. Sig Sauer provided him with two
spreadsheets listing thirty-six rifles that Wagner had bought between
December 23, 2012, and January 22, 2013. The more detailed spreadsheet
showed the list price, the sale price, and the twenty-five percent law
enforcement discount applied to most purchases. The serial numbers,
however, were not included in either spreadsheet.
A few days later, the NHAG’s office contacted the FBI about possible
federal criminal violations stemming from Wagner’s firearms dealings.
Gilbert forwarded Sig Sauer’s detailed spreadsheet to the FBI on February
15, along with a report he had drafted at the FBI’s request discussing some of
the relevant evidence. Gilbert’s report summarized Wagner’s statements from
the Kroll interview and noted that there was a rumor at the SPD that
Wagner’s “FFL friend” referenced in the Kroll interview was named Gary
Fisher.
The FBI, in turn, forwarded the Sig Sauer spreadsheet, but not
Gilbert’s report, to the ATF. Special Agent John Cook of the ATF decided to
open an investigation on suspicion that Wagner was dealing firearms without
a license. As part of his investigation, Cook determined via a database check
7 that Wagner did not have an FFL. Cook then obtained Wagner’s ATF Form
4473 records from Sig Sauer, which contained serial numbers that allowed
Cook to trace the rifles. He eventually learned that one of the rifles had
ended up in Maryland and had been sold by On Target Guns, a New
Hampshire gun shop owned by Gary Fisher.
In late March, Agent Cook and Investigator Gilbert interviewed Fisher.
Fisher confirmed that Wagner had sold the rifle to a purchaser in Maryland
and that Fisher had transferred the weapon on Wagner’s behalf. According to
Fisher, Wagner had sold multiple rifles over the internet on gunbroker.com
during a brief period of high demand 3 and was using On Target Guns to
transfer the weapons to his buyers. Fisher turned over a copy of his
Acquisition and Disposition Book, as well as invoices of his transactions with
Wagner. These documents — along with the ATF Forms 4473, Wagner’s
financial records, and the gunbroker.com records — are the primary evidence
the government plans to use to prove Wagner’s firearm transactions.
Based on the records obtained from Fisher and Sig Sauer, Agent Cook
also learned that SPD Officer Sean Marino had purchased a rifle from Sig
Sauer that Wagner then resold. Cook suspected that Marino was a straw
3 Agent Cook testified that Wagner sold the firearms shortly after the Sandy Hook school shooting, when prices for assault rifles doubled based on speculation that an assault weapons ban was imminent. 8 purchaser for Wagner. Investigator Gilbert, meanwhile, heard from Pattullo,
the SPD’s Civilian Administrator, that Marino may have some information
about Wagner’s firearm purchases. When Gilbert later interviewed Marino,
Marino stated that Wagner had once given him a direct order to go to Sig
Sauer and pick up a rifle for him.
By early April 2019, investigators determined that Wagner’s firearms
dealings were outside the five-year statute of limitations for possible gun
charges. The IRS was then brought in as the investigation pivoted to possible
tax crimes with a longer limitations period. IRS Special Agent Dan Fornash
learned of Wagner’s Kroll interview early on in his investigation. Fornash
referenced Wagner’s statements in his requests to open a criminal
investigation and later to charge Wagner with filing a false tax return.
Wagner’s interview transcript was also presented to the first grand jury that
heard evidence of Wagner’s tax law violations. But the government
subsequently obtained a superseding indictment from a different grand jury
that avoided any reference to Wagner’s statements.
Wagner moved to dismiss the indictment on the ground that the
government violated his Garrity rights because it improperly used his
immunized statements and their fruits to investigate and prosecute this case.
I bifurcated the motion into two phases. First, I held an evidentiary hearing
to determine whether the limited statements Wagner made during the Kroll
9 interview were compelled under Garrity. I concluded that Garrity applied
because Wagner’s superiors had told him that he would lose his job if he did
not participate in the interview, which he understood to mean that he had to
answer Linskey’s questions. I later held a Kastigar hearing to give the
government a chance to prove that the evidence it intends to introduce at
trial, and that it used to secure the superseding indictment, came from
legitimate sources wholly independent of Wagner’s immunized statements.
As discussed below, I find that the government has carried its burden under
Kastigar to prove that the evidence against Wagner is not tainted.
II. STANDARD OF REVIEW
The Fifth Amendment provides that “no person shall be compelled in
any criminal case to be a witness against himself.” In Garrity v. New Jersey,
the Supreme Court held that the privilege against self-incrimination
precludes the government from “us[ing] the threat of discharge to secure
incriminatory evidence against an employee.” 385 U.S. 493, 499–500 (1967).
When an employee must choose between self-incrimination and loss of a
public job, “his statements are deemed categorically coerced, involuntary, and
inadmissible in subsequent criminal proceedings.” United States v.
Palmquist, 712 F.3d 640, 645 (1st Cir. 2013). Under those circumstances,
eliciting incriminating testimony automatically triggers a grant of use
10 immunity under Garrity. Sher v. U.S. Dep’t of Veterans Affs., 488 F.3d 489,
502 (1st Cir. 2007).
Once a defendant shows that Garrity applies, the burden shifts to the
government to prove that the evidence it proposes to use is not tainted by the
immunized testimony. Kastigar v. United States, 406 U.S. 441, 460 (1972).
This burden is “a ‘heavy’ one.” United States v. Serrano, 870 F.2d 1, 15 (1st
Cir. 1989) (quoting Kastigar, 406 U.S. at 461). Negating the possibility that
the immunized testimony has tainted the prosecution is not enough. Id. at 14.
Instead, the government must prove that its evidence is “derived from a
legitimate source wholly independent of the compelled testimony.” Id.
(quoting Kastigar, 406 U.S. at 460).
Exposure to immunized testimony does not preclude the government
from carrying its burden. Id. at 18; see also United States v. Nanni, 59 F.3d
1425, 1432 (2d Cir. 1995). And the existence of independent leads before the
government’s exposure to the immunized testimony is strong evidence that
its information came from an untainted source. Nanni, 59 F.3d at 1432.
When both tainted and independent sources of evidence could have motivated
the government’s line of investigation, “the tainted source’s presence doesn’t
ipso facto establish taint.” United States v. Slough, 641 F.3d 544, 551 (D.C.
Cir. 2011). Rather, in that case, “the court must determine whether the
government would have taken the same steps entirely apart from the
11 motivating effect of the immunized testimony.” Id. (quoting Nanni, 59 F.3d at
1432). If so, no impermissible derivative use of the immunized testimony has
occurred. Id. at 551–52.
III. ANALYSIS
The principal dispute here is whether the government’s case against
Wagner is founded on an impermissible derivative use of his immunized
testimony. The government maintains its evidence against Wagner consists
of records and witnesses that have nothing to do with his limited statements
to Kroll. Wagner argues that the government used his immunized statements
to develop investigatory leads from which all its trial evidence was derived.
Having carefully considered all of the evidence produced during the Kastigar
hearing, I find that the government has met its heavy burden of showing that
its essentially “paper” case against Wagner was derived from legitimate
sources that are entirely independent of Wagner’s immunized testimony.
The government’s proposed evidence against Wagner, like its evidence
before the second grand jury, consists almost entirely of records, including
Wagner’s 2013 tax return and related documents, records of Wagner’s
firearm purchases at Sig Sauer, records of his sales of those firearms, and his
bank statements. Besides calling the custodians of those records, the
government intends to call as witnesses: an IRS revenue agent who will
describe his analysis of Wagner’s 2013 tax return and the records relating to
12 Wagner’s firearm trades; a tax preparer who filed Wagner’s 2013 tax return;
Sig Sauer employees who sold the firearms to Wagner; Officer Marino who
will testify about his straw purchase of a Sig Sauer rifle on Wagner’s behalf;
and an SPD witness who will testify that Wagner’s guns and ammunition
expenses claimed on his 2013 tax return were not job-related. The
government contends that its record evidence comes from legitimate
independent sources and that none of its witnesses have seen, been made
aware of, or were otherwise influenced by Wagner’s immunized statements.
The government’s records and witnesses all flow from the line of
investigation that NHAG Investigator Gilbert followed when he contacted Sig
Sauer to request records of Wagner’s firearm purchases. The Sig Sauer
records prompted the NHAG to refer the matter to the FBI, which led to the
ATF’s investigation into the firearm sales and the IRS’s inquiry into the tax
consequences of those sales. The question, then, is whether Gilbert’s records
request to Sig Sauer was derived from Wagner’s immunized statements to
Kroll confirming the allegation that he had purchased guns from Sig Sauer,
or from a legitimate source untainted by exposure to those statements.
As the government admits, Gilbert’s review of Wagner’s immunized
testimony was a motivating factor in his decision to advance his investigation
into Wagner’s firearms dealings. Considering that Gilbert contacted Sig
Sauer within hours of reading Wagner’s interview transcript on February 6,
13 the timing alone makes the connection between the two undeniable. But the
immunized testimony was not Gilbert’s sole investigatory lead to Sig Sauer.
The government has made a strong showing that before Gilbert read or even
knew about Wagner’s immunized statements, he had a prior source for the
relevant information that was entirely independent of what Wagner had said
during the Kroll interview. Given the government’s evidence on this point, I
have no doubt that Gilbert would have contacted Sig Sauer based on that
prior source even if he had never learned of Wagner’s immunized testimony.
Gilbert first learned that Wagner may have resold discounted firearms
obtained from Sig Sauer during the January 14 meeting. His sources for the
information were Dillon, who learned of the allegation from Sergeant Clark
and other police officers before Wagner made his immunized statements, and
Pattullo, who learned of the allegation a few weeks before the January 14
meeting during a ride along with Clark. Thus, before Gilbert learned of
Wagner’s immunized statements on February 6, he had learned of the
allegation from sources that were untainted by Wagner’s statements to Kroll.
Although the timing of Gilbert’s request to Sig Sauer was no doubt
influenced by his review of the immunized statements, Gilbert had an
independent motivation to pursue those records and would have done so
regardless of the Kroll transcript. Wagner was already a target of a
multifaceted criminal investigation, with the NHAG’s office investigating his
14 cruiser purchase and his removal of internal affairs files when the Kroll
transcript came across Gilbert’s desk. From the outset, before his office even
knew about the transcript, Gilbert was under instruction from his superiors
that Wagner’s profiteering from gun sales had to be investigated. Thus, it
was only a matter of time before Gilbert would have turned his attention to
the firearm purchases. Because he already knew from independent sources
that Wagner was buying guns from Sig Sauer, Gilbert would have asked Sig
Sauer for records of Wagner’s purchases as a routine part of his investigation.
Gilbert’s exposure to the Kroll transcript merely hastened their inevitable
acquisition.
Unlike the Sig Sauer rumor, Gilbert did not know before reading the
Kroll transcript that Wagner did not hold an FFL but had a close friend who
did. This new information, however, was neither a source of the government’s
evidence nor did it influence its investigation. As for Wagner’s FFL status,
Agent Cook confirmed that Wagner did not hold an FFL as a routine part of
his investigation. I credit Cook’s commonsense testimony that confirming
whether a target has an FFL is a necessary step in a gun trafficking
investigation. More importantly, Cook had no exposure to the immunized
testimony, so it cannot be said that his decision to check a database to
confirm Wagner’s FFL status was motivated by that testimony. The
information that Wagner had an FFL friend, and the rumored identity of that
15 friend, likewise did not reach the ATF. Instead, it was the tracing of the
serial numbers of the rifles Wagner had purchased that led the ATF to On
Target Guns and its owner, Gary Fisher. The connection between Fisher and
Wagner thus came from an independent source. 4
In sum, the government has proved that, as part of its ongoing criminal
investigation into Wagner, the NHAG’s office would have obtained the Sig
Sauer records based on a prior source of the information that Wagner was
buying guns from Sig Sauer with a police discount and reselling them for
profit. That prior source is entirely independent of what Wagner later said
during the Kroll interview. The remaining evidence against Wagner followed
from the Sig Sauer records as a matter of course. Accordingly, I find that the
government has satisfied its “heavy burden” under Kastigar to establish that
its evidence was not derived from Wagner’s immunized testimony.
Wagner presents several arguments to support his contention that the
government has failed to carry its Kastigar burden, none of which are
4 Gilbert also gleaned from the Kroll transcript that Wagner had described the gun purchases as his “private business.” This information similarly had no meaningful effect on the investigation. At most, it conveyed Wagner’s reluctance to talk about the subject. Even if Wagner’s reticence suggested that he had something to hide and thus motivated Gilbert to dig deeper, I am satisfied that Gilbert would have pursued the same line of investigation without Wagner’s comment, for the reasons I have already explained.
16 persuasive. His first line of attack is to challenge the credibility of the
government’s witnesses. Wagner maintains that Gilbert, Pattullo, Dillon, and
Fogarty were either mistaken or lying when they testified that Gilbert was
told about Wagner’s gun purchases from Sig Sauer at the January 14
meeting, before Gilbert’s review of the Kroll transcript. 5 To support that
claim, Wagner mainly points to what he deems is prior inconsistent
testimony from Dillon, Pattullo, and Fogarty when they were deposed in a
civil defamation case brought by another SPD officer. In those depositions,
the witnesses could not recall whether they had shared the firearms
allegation with the NHAG’s staff at the January 14 meeting. I have
considered that evidence but ultimately find the government’s witnesses
credible. Along with observing the witnesses’ demeanor on the stand, I credit
their testimony because every witness told a consistent story that finds
support in documentary evidence. The documents confirm that Sergeant
Clark had complained about Wagner’s firearm sales to anyone who would
listen, and that Dillon had planned to discuss that complaint at the January
14 meeting. Further, the witnesses’ inability to recall the same information
at earlier depositions has a plausible explanation. They testified that they
had spent more time reviewing documents and preparing to testify in this
5 Although Fogarty did not attend the meeting, she testified to preparing Dillon’s meeting agenda, which included Wagner’s firearm sales. 17 case than they did for the defamation case and were thus more likely to recall
the events in question.
Wagner’s next argument is that Gilbert would not have contacted Sig
Sauer absent his exposure to the immunized testimony because Sergeant
Clark was an unreliable source of information. I disagree. To start, nothing in
the record suggests that Gilbert learned at the January 14 meeting that
Clark was the source of complaints about Wagner’s profiteering from gun
sales. But even if he had, Clark was by no means untrustworthy. Clark
repeated the same allegations to various witnesses at different times,
including sharing details about how much Wagner had profited from reselling
the guns. That Pattullo and Dillon may have found Clark difficult to deal
with, in part because of his persistence that something be done about his
complaints, does not suggest that they did not take his allegations seriously
or questioned his candor.
Wagner also contends that Gilbert would not have reached out to Sig
Sauer without the Kroll transcript because the statute of limitations on
possible gun charges had expired. This argument is meritless. Even if Gilbert
had known that the limitations period on gun charges had run, nothing in the
immunized statements suggested a possible tax crime that would have
incentivized Gilbert to continue his investigation. In any event, Gilbert
testified that his investigation was not limited to gun charges but
18 encompassed possible state charges under the Official Oppression statute,
which had a longer limitations period.
Lastly, Wagner argues that his immunized statements were so
inextricably intertwined with the criminal investigation that they necessarily
tainted the government’s evidence. Wagner points to several documents
where the government referenced his statements to Kroll, such as Gilbert’s
report to the FBI, Gilbert’s draft affidavit for Wagner’s arrest on state
misdemeanor charges, and IRS Agent Fornash’s requests for internal
approvals related to the tax charges. To be sure, some members of the
prosecution team were exposed to Wagner’s immunized statements. Because
the government believed, in good faith, that Wagner’s statements to Kroll
were not compelled under Garrity, they did not establish firewalls to limit the
risk of taint. But that does not preclude the government from establishing
that its evidence was derived from wholly independent sources, as it has done
here. See Serrano, 870 F.2d at 17–18; Nanni, 59 F.3d at 1432. Simply put,
awareness of immunized testimony is not use of that testimony.
The government’s exposure to Wagner’s immunized statements was not
otherwise so prejudicial as to mandate dismissal of the indictment. See
Serrano, 870 F.2d at 17–18 (noting in dictum the possibility that “certain
nonevidentiary uses of immunized testimony may so prejudice the defendant
as to warrant dismissal of the indictment’’). For one, Wagner’s statements to
19 Kroll were so limited in scope that their value as a source of information was
minimal. By and large, he merely confirmed what was already well known.
More importantly, this is a tax fraud case where, once the government
obtained the Sig Sauer records through independent means, the rest of its
evidence came about from following a paper trail. This mechanical process
was not susceptible to influence from the immunized statements. Wagner’s
suggestion that his statements had a prejudicial effect that inexorably
tainted the whole case, therefore, is unpersuasive. 6
At bottom, Garrity and Kastigar aim to place Wagner and the
government in “substantially the same position as if [he] had claimed his
privilege.” Serrano, 870 F.2d at 17 (quoting Kastigar, 406 U.S. at 458–59).
The evidence shows that this purpose was not frustrated here. The
government has satisfied its “heavy burden” under Kastigar to prove that its
6 Wagner’s argument that the superseding indictment cannot undo the use of his immunized statements in connection with the original indictment similarly finds no support in the law. The evidence before the grand jury that returned the superseding indictment was not tainted. Dismissing that indictment for its predecessor’s flaws would put the government in a substantially worse position than if Wagner had invoked his privilege to remain silent. That outcome would extend the Garrity use immunity far beyond its scope and render it akin to transactional immunity. See Serrano, 870 F.2d at 17; see also United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985) (where the government had initially obtained an indictment against the defendant from the same grand jury that had heard the defendant’s immunized testimony, concluding that the presentment of untainted evidence to a new grand jury satisfied Kastigar). 20 evidence against Wagner derives from legitimate sources fully independent of
Wagner’s immunized statements. And any nonevidentiary use of those
statements was not sufficiently prejudicial to warrant dismissal of the
superseding indictment.
IV. CONCLUSION
For the foregoing reasons, Wagner’s motion to dismiss the indictment
(Doc. No. 19) is denied.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
August 30, 2022
cc: Counsel of record U.S. Probation U.S. Marshal