US v. Lujan

2001 DNH 033

• Court: District Court, D. New Hampshire
• Decided: February 15, 2001
• Docket: CR-92-091-M
• Status: Published

Opinion

US v. Lujan CR-92-091-M 02/15/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff

v. Criminal No. 92-91-1-M Opinion No. 2001 DNH 033 Albert Lujan, Defendant

O R D E R

Defendant moves to dismiss the superseding indictment, or

suppress any evidence derived from statements he made to federal

authorities in the Eastern District of Michigan pursuant to a

limited grant of immunity. His grounds, generally, are that the

indictment and evidence to be presented in support of its

charges, are derived from immunized statements previously given

to the government. The government does not dispute that

defendant entered into a limited immunity agreement with the

United States Attorney for the Eastern District of Michigan, or

that pursuant to that agreement he made statements that might

relate to his pending federal prosecution in this district. Because the Fifth Amendment prohibits "the use of

[immunized] testimony as well as evidence derived directly or

indirectly therefrom," from being used against him, the

government bears the burden of showing that the evidence it

proposes to introduce at trial was not derived from defendant's

immunized statements. See Kastigar v. United States, 406 U.S.

441, 453 (1972). The burden is a heavy one, and "is not limited

to a negation of taint; rather, it imposes on the prosecution the

affirmative duty to prove that the evidence it proposes to use is

derived from a legitimate source wholly independent of the

compelled testimony." Id. at 460.

This case is somewhat straightforward, posing few of the

thorny issues that could arise in a defendant's prosecution

following his immunized debriefing. Here, the government

represents that none of the evidence it will offer is derived,

directly or indirectly, from defendant's immunized statements,

and could not be, because all of its evidence was developed

during a discrete, locally directed, investigation that was

complete (for all practical purposes) before defendant executed

his immunity agreement in Michigan.

2 Moreover, the government says that as soon as it learned of

the immunity agreement with Michigan (dated September 30, 1992)

it put strict administrative procedures in place in this district

that precluded any possibility of taint. Prosecutors and

investigators from this district refused to have any contact with

Michigan authorities regarding defendant's statements or the

substance of Michigan's ongoing investigation, absent a Kastigar

waiver by defendant. For some six years defendant refused to

waive his rights under Kastigar. (Defendant was a fugitive, but

apparently was nevertheless in regular contact with Michigan

authorities.) Since no waiver was executed, the prosecutors and

investigators of this district bided their time, did not discuss

the substance of defendant's cooperation, or the results of that

cooperation, with Michigan authorities or anyone else, and

developed no substantive evidence or other information relative

to the charges in the pending superseding indictment after the

immunity agreement was executed. They merely awaited defendant's

apprehension and then proceeded with the case.

Finally, the government points out that defendant eventually

did agree to waive his Kastigar rights (after he was arrested) .

3 Sometime between June 19 and July 6, 1998, defendant and his

legal counsel executed a written document entitled "Waiver of

Kastigar Claims." (The document is not dated but was drafted on

June 19, given to defense counsel, and returned to the

government, signed, by letter dated July 6, 1998. )x The written

waiver is not ambiguous and flatly provides that:

. . . the defendant, Albert Lujan, hereby authorizes and reguests that the investigators and prosecutors in New Hampshire seek out and obtain any and all information concerning Mr. Lujan in the possession of authorities in the Eastern District of Michigan, or which was generated in the course of or because of the Agreement Not to Prosecute. The defendant hereby waives any and all rights, protections or claims which he may have concerning the sharing of this information, and expressly relinguishes any claim he might have had for relief under the doctrine of Kastigar v. United States and its progeny. Accordingly, the District of New Hampshire may make free use of any and all derivative evidentiary leads obtained from or pursuant to the Agreement Not to Prosecute.

It would be difficult to imagine a waiver with broader reach.

The objective manifestation of intent is plain in any event - and

no reasonable person could misunderstand the effect of its

1 There is no dispute that defendant executed the written waiver.

4 provisions or intent - defendant affirmatively induced the

prosecutors to obtain and review all information relative to his

cooperation in Michigan in an effort to persuade them that some

degree of leniency should be afforded him in this case.

Defendant removed the firm obstacle to that type of review (the

prosecutors' unwillingness to risk a Kastigar problem) by

affirmatively and voluntarily waiving any and all Kastigar claims

or issues, and he did so with and upon the advice of legal

counsel. His suggestion that Kastigar issues were only intended

to be waived on a condition subseguent - i.e. only if a plea

agreement was later reached is not plausible or credible.

So, the defendant's motion to dismiss or suppress is

necessarily denied on two independent grounds. First, the

government has proved that the evidence it will introduce at

trial was not derived either directly or indirectly from

immunized statements made by defendant to Michigan authorities,

because it was developed from legitimate and wholly independent

sources, before defendant even entered into an immunity

agreement, and well before any prosecutor or investigator in this

district was aware of defendant's statements to Michigan

5 authorities. Secondly, defendant affirmatively waived any and

all Kastigar issues. Finally, and perhaps parenthetically, there

are no Kastigar issues to waive - the subsequent review of

information from Michigan by prosecutors in this district was

both limited (though it did not have to be) and did not provide

any additional evidence against defendant that will be offered at

trial - the government will not introduce any evidence it had not

already developed or already knew about at the time of

defendant's indictment. See United States v. Serrano, 870 F.2d

1, 17 (1st Cir. 1989)(prosecution not foreclosed by the

government's mere exposure to immunized testimony that might have

tangentially influenced prosecutor's thought processes in

preparing for trial) (citations omitted) .

Defendant points to no specific evidence he anticipates will

be offered at trial that was derived, directly or indirectly,

from his immunized statements, and the prosecution insists that

all of its proposed evidence was necessarily derived

independently, given the temporal context. However, if, during

the course of trial, defendant can articulate a Kastigar

objection to specific evidence, the court will consider the

6 matter anew, requiring the government to establish the requisite

independent source (counsel may, of course, need to address the

waiver's effect as well).

Conclusion

Defendant's motion to dismiss the superseding indictment, or

suppress evidence (document no. 63), is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 15, 2001

cc: Terry L. Ollila, Esq. Bruce E. Kenna, Esq. Joseph J. Balliro, Sr., Esq. U.S. Marshal U.S. Probation