at 80. Even though the government did not use Allen’s and Conti’s compelled testimony directly against them, either in the grand jury testimony or at trial, one of the government’s key witnesses had seen their compelled testimony; and the Second Circuit concluded that the government could not demonstrate, under Kastigar v. United States, 406 U.S. 441 (1972), that his testimony was not tainted or that the use of his testimony was harmless. The Second Circuit’s decision in Allen will create numerous and wide-ranging potential pitfalls for U.S. prosecutors, who increasingly find themselves investigating potential crimes across borders and in conjunction with foreign criminal and regulatory authorities, many of whom allow for compulsory witness statements.

However, "[u]nder American constitutional law, if a witness is compelled to testify, the witness must be granted use and derivative use immunity. See Kastigar v. United States, 406 U.S. 441 (1972)." Slip at 6, n.3.

State v. Karl L. Quigley, 2015AP681-CR & 682-CR, 6/15/16, District II (recommended for publication); case activity (including briefs)Karl Quigley confessed to sex offenses during an interrogation by a police detective, and later confessed to additional offenses while being questioned by his probation officer. The court of appeals rejects his Miranda challenge to his initial confession, but agrees that the state failed to show that evidence obtained after the statement to the P.O. was “derived from a legitimate source wholly independent of” that statement, as required by Kastigar v. United States, 406 U.S. 441 (1972). Because Quigley’s plea bargain incorporated charges from both sets of offenses, the court remands for plea withdrawal.

The police then interviewed N.F., S.S., and Seiler, all of whom made statements that led to Seiler being charged. (¶7).The court of appeals rejects Seiler’s claim that his immunized statement to his agent was used against him in violation of his Fifth Amendment privilege under Kastigar v. United States, 406 U. S. 441 (1972), because “the investigation that led to Seiler’s charge was based on sources independent of his statements to the agent.” (¶2).¶13 … Seiler’s troubles started not because of any statements he was compelled to make but because he was discovered in a car with a minor, in violation of his probation rules, and in particularly suspicious circumstances—after dark, in a secluded place.

The parties agreed here that Spaeth’s statements during the polygraph test were covered by the Evans-Thompson immunity rule – the question is whether immunity extended to subsequent, and otherwise voluntary, statements made to the police; whether, that is, this immunity rule may be overcome by the “independent source” or “attenuation” doctrine. Discussing at some length Kastigar v. United States, 406 U.S. 441 (1972) (the state may compel incriminating testimony if accompanied by use and derivative use immunity) and related authority, the court answers with a resounding no.Immunity for a compelled statement applies equally to derivative use, which itself bars use “as an ‘investigatory lead,'” ¶37, quoting Kastigar, 406 U.S. at 460. That’s essentially what happened here; the State can’t satisfy its burden of showing that Spaeth’s statements to the police were “derived from a legitimate source wholly independent of the compelled testimony,” id.

certification; for Spaeth: Shelley Fite, SPD, Madison Appellate; case activity; Spaeth BiC; State Resp.; ReplyReview granted 2/8/11ISSUEIn Kastigar v. United States, 406 U.S. 441, 453, 460 (1972), the United States Supreme Court held that the government may compel incriminating testimony so long as it comes with a grant of use and derivative use immunity—that is to say, in any subsequent criminal proceeding, the prosecution has the burden to prove affirmatively that evidence proposed to be used is derived from a “legitimate source wholly independent of compelled testimony.” As a standard rule of probation, probationers are required to be honest about their activities and whereabouts with their probation agents.

See also United States v. O’Shea, 662 F. Supp. 2d 535, 543 (S.D. W. Va. 2009) (“Where it is obvious that those questions or requests for documents may be incriminatory, the Court will not compel the party to comply.”).Marchetti v. United States, 390 U.S. 39, 453 (1968).Lowe’s, 219 F. Supp. at 189-190 (sustaining objections to interrogatories phrased as “on the grounds that the witness’ Fifth Amendment privilege against self-incrimination ‘might’ be violated by responsive answers.”).Kastigar v. United States,406 U.S. 441, 445 (1972); Maness v. Meyers, 419 U.S. 449 (1975); see also Prentice v. Hsu, 280 F. Supp. 384, 386 (S.D.N.Y. 1968) (citing criminal cases in support of authority to invoke Fifth Amendment in civil case); Lowe’s of Roanoke, Inc. v. Jefferson Standard Life Ins. Co., 219 F. Supp. 181, 189 (S.D.N.Y. 1963) (same). Wright, Miller, King & Marcus, 8 Fed. Prac. & Proc. § 2018.See United States v. Barth, 745 F.2d 184, 189 (2d Cir. 1984) (“If all current employees successfully assert a fifth amendment privilege, the corporations must appoint an agent who will testify without asserting the privilege[,]” even if that requires the appointment of “someone who has no previous connection with the corporations . . . .”).S.E.C. v. Mut. Benefits Corp., No. 04 60573 CIV, 2008 WL 239167, at *3 (S.D. Fla. Jan. 28, 2008).

Companies should not be penalized by the government for respecting employees’ constitutional rights. It is a careful balance for defense counsel to cooperate with the government without becoming its agent and to zealously defend its client company.[1] U.S. v. Connolly et al., 16-cr-00370-CM (S.D.N.Y. May 31, 3016), Dkt No. 1 at p. 26. [2] Id. at ¶ 27. [3] Id. at ¶ 26. [4] 406 U.S. 441 (1972) (prohibiting the “use” and derivative “use” of a defendant’s “compelled testimony,” and permitting a challenge to a conviction when “compelled testimony” was “used” to obtain it). [5] Connolly, Dkt No. 432 at p. 3. [6] Id.

Considerations include whether the government will be conducting its own parallel investigation, something the court in Connolly used to differentiate from the Gilman case. ____1United States v. Kastigar, 406 U.S. 441 (1972).2 More information on the Gilman case can be accessed here: https://us.eversheds-sutherland.com/NewsCommentary/Legal-Alerts/190483/Legal-Alert-Cooperate-or-Terminate-Second-Circuit-Protects-Companies-that-Terminate-Employees-for-Failure-to-Cooperate-with-Investigations. [View source.]

In other words, the government cannot introduce any evidence at trial that was identified as a result of the compelled testimony. Quoting Kastigar v. United States, 406 U.S. 441, 460–62 (1972), the Court held that: the government bears “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” This burden 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.”