United States v. Anderson

450 A.2d 446, 1982 D.C. App. LEXIS 427

• Court: District of Columbia Court of Appeals
• Decided: August 31, 1982
• Docket: 80-774
• Status: Published

Opinions

KELLY, Associate Judge:

A two-count indictment was filed on June 6,1979, charging appellee Elwood C. Anderson with assault, D.C. Code 1973, § 22-504, and obstruction of justice, D.C. Code 1973, § 22-703, for deliberately kicking an arres-tee, Gregory 0. Akers, and subsequently obstructing investigation of the incident. The government appeals from a pretrial order suppressing all evidence obtained in the investigation of an allegation of police misconduct following the giving of an immunized statement by appellee to his superiors.

On September 12,1978, appellee and Officer Warren Alexander arrested Gregory 0. Akers for driving without a license. When the officers discovered narcotics on his person, Akers, while handcuffed, fled. The officers gave chase and found Akers hiding under a porch behind an oil tank. According to a third officer, Leonard Campbell, who was also present at the scene, appellee ran up to Akers and deliberately kicked him in the stomach after he had been pulled from beneath the porch and while he was still on the ground. Officer Campbell’s report of the incident to his superior led to an investigation by the Metropolitan Police Department’s Third District. On September 13, 1978, appellee was asked to make a statement but chose to exercise his right to remain silent. Akers was interviewed on September 15, and gave a statement exonerating appellee by explaining that the contact was accidental. Other officers present at Akers’ arrest denied seeing the incident. The information and reports thus obtained were forwarded to the United States Attorney’s Office for possible criminal prosecution. They were returned to the Third District on September 26, 1978 with a memorandum from the Deputy Chief of the Grand Jury intake section saying that the matter was determined to lack prosecutive merit.

The next day, appellee was reinter-viewed. Following a “Reverse Garrity” warning,¹ he first gave a narrative statement (September 27) and on September 28, answered specific questions which were transcribed in a separate statement. In both statements appellee denied any deliberate assault and testified that he had fallen after running and only accidentally slipped into the arrestee.² On October 3, the Third District authorities entered a finding of “not sustained,” indicating insufficient evidence to prove the allegations of Officer Campbell.³ On October 18, the matter was assigned to Sergeant Francisco Ta-dle in the Internal Affairs Division of the police department, the branch which investigates personnel matters.

At the suppression hearing, Sergeant Ta-dle testified that in conducting the investigation, he reviewed the jacket of the case, attempted to reinterview the other officers present at the scene of Akers’ arrest, visited the scene of the alleged assault and finally contacted Akers after numerous unsuccessful attempts to do so. Akers agreed to give another statement and on December 1, 1978, he related a new version of the incident. In narrative form,⁴ Akers stated that appellee had deliberately kicked him in the stomach on September 12, while he was lying on the ground, handcuffed. Akers also explained that within a few days after the incident, appellee contacted him, indicating that he, appellee, was in trouble and that he would appreciate it if Akers said nothing. Appellee then gave Akers his business card. After Akers made his initial statement to the Third District investigators alleging that the contact was accidental, he called appellee in Occoquan, Virginia, to arrange a meeting. The two met and Akers showed appellee a copy of his statement. They discussed code names by which they would refer to each other and appel-lee’s code name was written on back of the statement. To corroborate Akers’ second statement, the police investigators obtained from him appellee’s business card and Ak-ers’ copy of his first statement. Sergeant Tadle testified that scientific fingerprint analysis revealed appellee’s prints on Akers’ statement. Tadle also testified at the suppression hearing that telephone company records confirmed Akers’ toll call to appel-lee following the making of his first statement.

In ruling on appellee’s motion to suppress, the trial judge expressed a concern that no evidence had been presented by the government regarding the police department’s motives in continuing the investigation and in interviewing Akers after a finding of “not sustained” by the Third District investigators and a decision not to prosecute by the United States Attorney’s Office. He also found that from the way Akers was questioned at the time of his second statement, it was obvious that “knowledge gained from the statement of [appellee] was used.” The court was also persuaded to rule as it did because there was lacking any evidence “that they were going to go back to [reinterview] Akers under any circumstances.”

On June 18, 1980, the court suppressed appellee’s statements and all subsequently obtained evidence,⁵ holding that the government had not carried its burden to affirmatively prove that the evidence upon which it proposed to prosecute appellee was derived from a legitimate source wholly independent of appellee’s compelled testimony, pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).⁶ To reverse, we must find this ruling to be plainly wrong or without evidence to support it. D.C. Code 1973, § 17-305(a).

While the government carries a “heavy burden of proving that all of the evidence it proposed to use was derived from legitimate independent sources” once a defendant shows that he testified under a grant of immunity, id. at 461-62, 92 S.Ct. at 1665, a review of the government’s evidence at the suppression hearing reveals that his burden was met and that the finding to the contrary was plainly wrong.⁷

The government’s burden was met by testimony and proffers of evidence presented at the suppression hearing. Sergeant Tadle explained that the Internal Affairs investigators succeeded in contacting Akers in the courthouse on November 27, 1978. The encounter on that date was brief but Akers indicated to Tadle and his colleague that he had initially given a false statement in exchange for appellee’s cooperation in other matters and that he was willing to talk to the police again. Because Akers’ identity was known to the police from the time the report was first made by Officer Campbell, he was a preexisting independent source of information. In continuing the investigation, it was a natural and obvious step for the Internal Affairs investigators to seek Akers out again.

The trial court held that the government should have made a showing of the authorities’ subjective motivation in continuing the investigation and reinterviewing Akers. But prosecutorial motives are not probative of whether the evidence sought to be introduced was obtained from a legitimate independent source or whether the compelled testimony was used as an investigative lead or that it focused the investigation on appellee.⁸ Appellee’s Fifth Amendment protections do not depend “upon the integrity and good faith of the prosecuting authorities.” Id. at 460, 92 S.Ct. at 1665. The inquiry is a more objective one, concerned with the source of the incriminating evidence sought to be introduced and whether it was obtained independently of the compelled testimony. In Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892), the Supreme Court struck down an immunity statute because it did not prohibit “that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.” This language indicates that the evil to be avoided is that the prosecuting authorities will gain affirmative information from the substance of the compelled testimony.

In the instant case, where the government’s evidence shows that appellee’s statement was both suspect and exculpatory, an inquiry into the subjective thinking of the prosecuting authorities would be especially meaningless. The most that could be shown would be that the investigators disbelieved appellee’s statement. But that would not establish improper use of appel-lee’s testimony in view of the government’s evidence at the suppression hearing.

The possibility that appellee’s statements were used as an investigative lead is ruled out by the government’s proof that the testimony is suspect and exculpatory. The prosecution’s theory is that appellee deliberately kicked Akers and that he later unlawfully influenced Akers to deny the incident. Appellee’s statements of September 27 and 28 deny any deliberate assault and do not even hint at the existence of a cover up or any post-arrest contact between Akers and appellee. This contrasts with the compelled testimony given in United States v. Warren, D.C.App., 873 A.2d 874 (1977), which supplied investigators with two pieces of information leading them to the incriminating evidence. In Warren, the appellant's statement mentioned his ownership of a white convertible and the appearance of an old man with barking dogs at a crime scene. The police connected Warren to various rapes by means of these comments. Here appellee gave no new information to the investigators, thus no leads could have been developed from his testimony.⁹

Moreover, the compelled testimony did not cause the investigation to focus on appellee because appellee had always been the subject and focus of the investigation. The Second Circuit Court of Appeals rejected a similar claim where the appellant, who testified under a grant of immunity before a state grand jury, had been “the subject of a continuing intelligence division investigation” by the Internal Revenue Service, even though the initial investigation had been closed because of “insufficient evidence to warrant prosecution.” United States v. Bianco, 534 F.2d 501, 510 (2d Cir.), cert. denied, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976). Here, Sergeant Tadle testified that the purpose of the continuing investigation was to establish whether appellee had assaulted Akers. Ta-dle also testified that he would have “made inquiries on Mr. Akers’ [first] statement” that the assault was accidental, regardless of whether he had appellee’s compelled testimony.¹⁰ Moreover, appellee’s immunized statement was neither mentioned nor presented to Akers, according to Tadle’s responses on direct examination. Thus even assuming the Internal Affairs Division investigators disbelieved appellee’s statements, the statements were not the means by which they focused their investigation on appellee or the reason they decided to prosecute.¹¹ The fact that appellee might have been suspected of lying, just as the fact that he was suspected of having assaulted Akers, do not of themselves establish any direct or indirect use of the compelled testimony.

The case cited by this court in Warren, supra, and upon which the trial court relied, United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973), is distinguishable factually from the present case. In McDaniel, a federal prosecutor had read three volumes of incriminating state grand jury testimony before indictments were filed against the appellant. The Eighth Circuit upheld post-trial quashing of the indictment because the grand jury testimony might have been used “in some significant way short of introducing tainted evidence.” Since the appellant had fully confessed his criminal activity to the state grand jury, it was reasonable to assume that the testimony might have been “used” indirectly in focusing the investigation, deciding to prosecute or in planning trial strategy, such as cross-examination. No such assumption is possible in this case because appellee’s testimony is devoid of any helpful or incriminating evidence. The government has adequately shown that ap-pellee’s conviction does not depend on the statements given on September 27 and 28. The danger that appellee “could not possibly [be] convicted” in the absence of his compelled testimony, is not present here, as it was in the first case in which the Supreme Court dealt with the constitutionality of use immunity. Counselman v. Hitchcock, supra, 142 U.S. at 564,12 S.Ct. at 198.

In United States v. Romano, 583 F.2d 1, 8 (1st Cir. 1978), the Court of Appeals, in finding that the government’s evidence was obtained independently of immunized testimony, remarked that “moreover there was nothing to suggest that the government needed [appellant’s] testimony to help make out its case.” The same thing could be said here, even though at the time appellee’s testimony was given, the government did not yet have knowledge of the incriminating evidence, but only of its source, Gregory Akers. Nor would a conviction for obstruction of justice depend on evidence of false testimony because Akers’ December 1 statement established a prima facie case of obstruction regarding appellee’s conduct during the first week of the investigation.

The government met its burden at the suppression hearing of establishing that Ak-ers’ December 1 statement and all subsequently obtained evidence were derived from its independent knowledge of Akers’ identity and not from appellee’s compelled testimony. The court’s finding that appel-lee’s statements were used in obtaining the incriminating evidence was plainly wrong and the order of suppression must be

Reversed. 12

1 . This phrase derives from the case of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), in which the Supreme Court found that it was a violation of the Fifth Amendment guarantee against self-incrimination to compel police officers to testify where refusal to do so would cost them their jobs. The “Reverse Garrity” warning informs the employee that while a refusal to testify might have disciplinary or employment consequences, neither the statement itself, nor fruits of the statement will be used against him in any criminal proceedings. The warning given to appel-lee on September 27, reads:

Inasmuch as no criminal charges will be preferred against you, coupled with the fact that this matter is still being actively investigated from an administrative standpoint, it now has become mandatory that I administer a Reverse Garrity warning to you.

At this time, I am going to require you to furnish me a statement, in addition to questioning you about the allegations made against you by Officer Leonard J. Campbell of the Third District. Briefly, Officer Campbell alleges that on Tuesday, September 12, 1978, you kicked a prisoner, Gregory O. Ak-ers, while he was handcuffed and being held by two other police officers. This questioning concerns administrative matters relating to the official business of the Police Department. I am not questioning you for the purpose of instituting criminal charges and prosecution against you. During the course of this questioning, even if you do disclose information which indicates that you may be guilty of criminal conduct, neither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings.

Since this matter is an administrative matter and any self-incriminating information you may disclose will not be used against you in a court of law, you are required to answer my questions fully and truthfully. This requirement is set forth in Metropolitan Police Department General Order Number 1202.1, Part 1, Section F6, and in section 2.1:5 of the Metropolitan Police Department Manual. If you refuse to answer my questions, this in itself is a violation of the rules of the Department, and you will be subject to disciplinary penalties.

2 . Officer Anderson said, inter alia, that he was not aware that his foot had struck anything when he slipped, that if he had run into the prisoner it was an accident, and that he could not be absolutely sure that he had not made contact, but since Officer Campbell was accusing him of kicking the prisoner he had to assume he had made some contact (September 27). He said, further, that he couldn’t be sure no contact was made, but he did not feel any, and that he was not absolutely sure what happened (September 28).

3 .Sergeant Francisco Tadle explained at the suppression hearing that the finding of “not sustained” is not as conclusive as a finding of “unfounded” which is used to indicate that a charge was completely erroneous.

4 . In response to a question as to what happened after he was stopped by the police on the date in question, Akers gave a narrative statement of ten pages. The remaining twenty pages of his statement consisted of questions and answers about the alleged assault and the subsequent attempt to obstruct justice.

5 . This included all statements by Akers made after September 27, 1978, as well as his live in-court testimony, the business card, the telephone records, Akers’ copy of his first statement and the fingerprint analysis.

6 . “Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom ... prohibits the prosecu-torial 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.” Kastigar v. United States, supra at 453, 92 S.Ct. at 1661 (emphasis in original).

7 . We agree however that the compelled testimony itself would be admissible in a prosecution for perjury or false swearing. See United States v. Apfelbaum, 445 U.S. 115, 126, 100 S.Ct. 948, 954, 63 L.Ed.2d 250 (1980) (“perjury prosecutions are permissible for false answers to questions following a grant of immunity”).

8 . [The] 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 v. United States, supra, 406 U.S. at 460, 92 S.Ct. at 1664; footnote omitted.]

9 . In United States v. Jones, 542 F.2d 186, 201 (4th Cir. 1976), the Fourth Circuit upheld the denial of a motion to suppress evidence as derived from immunized testimony, stating:

Nor, for that matter, was there anything in [appellant’s] state grand jury testimony that would have provided any new information or “investigative leads” either to the state investigating units or the federal authorities. It is obvious from a reading of [appellant’s] testimony that he grudgingly provided only information which he knew was already available to the authorities.

10 . The trial court incorrectly found that “there is no evidence whatsoever, not a shred submitted to the court, that they were going to go back to Akers under any circumstances.”

11 .Although false statements would be an act in furtherance of appellees’ alleged scheme to obstruct justice, the investigator’s focus on the obstruction offense could not have arisen until they had spoken to Akers, who was an independent source of evidence. Similarly, any decision to prosecute for either obstruction or assault would not have been made until the incriminating evidence was obtained from Ak-ers. Thus, the court incorrectly concluded that appellee’s statement was impermissibly used in the decision to prosecute.

12 . The government’s claim that the court improperly refused to consider supplementary affidavits from investigative personnel need not be considered because we have rested our decision on the court’s incorrect view of the evidence with which it was presented.