LYNNE, District Judge: The United States appeals from the district court's order of September 25, 1984, dismissing the indictment returned by a grand jury of the Northern District of Georgia against appellee, Thomas E. Byrd, on July 11, 1984, and from its subsequent order of November 14, 1984, denying the government's motion for reconsideration. Concluding that the Court below misapplied the test articulated in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), we reverse. I. [2] BACKGROUND
352 F. Supp. 585. However, Judge Benson's task at the evidentiary hearing was complicated by the intervening decision of the Supreme Court in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). This court's prior opinion in McDaniel I, authored by Judge Gibson, had interpreted the pre- Kastigar decisions of the Supreme Court to establish a double standard with respect to the constitutionality of statutes which grant immunity to witnesses in order to compel testimony.
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, 92 S.Ct. 1653, 32 L.Ed.2d 212 (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.
Pet. for Reh'g at 8. This bold proposition, however, would convert Kastigar's total prohibition on use, Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1973), to a mere ban on significant prosecutorial exposure to the immunized testimony. It simply does not follow that insulating prosecutors from exposure automatically proves that immunized testimony was not used against the defendant.
Stein successfully sought Harris' indictment before the grand jury on August 16, 1991 solely through information contained in the file. Pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), Harris moved for the dismissal of her indictment. Following a Kastigar hearing on October 10, 1991, the district court dismissed all counts against Harris, with the exception of a perjury count.
Defendant-Appellant Christian Schmidgall was indicted in the Middle District of Florida for conspiring to violate federal law by unlawfully importing cocaine through Rock Sound, Bahamas on Christmas Eve, 1985 in violation of various provisions of Title 21 of the United States Code. He moved to dismiss the indictment, claiming an improper use of his immunized testimony in violation of his Fifth Amendment right against self-incrimination. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). After a three-day hearing before a magistrate, Schmidgall's motion was denied.
II. ANALYSIS Cozzi argues on appeal that the district court should have dismissed the indictment because Weis's review of his protected statements and subsequent tip to the FBI constituted an improper use of his statements in violation of Garrity, 385 U.S. 493, 87 S.Ct. 616, and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). He also argues that the district court erred by calculating his base offense level under the guideline for aggravated assault rather than the guideline for civil rights violations.
After de novo review of the magistrate judge's report and recommendation, defendant's objections, and the grand jury transcripts, the district court concluded that "the exculpatory, non-incriminating testimony of the defendant did not contribute in any conceivable manner to his being indicted." J.A. 26. Furthermore, the district court concluded that "[t]he government has successfully met its burden under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) by showing clearly and convincingly that the immunized testimony of defendant will not work to his detriment directly or indirectly in the sense of furnishing either direct evidence of leads from which other evidence has been obtained to assist in his prosecution." J.A. 26. Therefore, the district court denied defendant's motion to dismiss the indictment.
After the district court consolidated the two indictments for trial, Mariani petitioned the court to conduct a hearing, pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), to determine whether the proceedings leading to, and the trial based upon, the 1986 Indictment were or would be tainted by his prior immunized testimony. On February 21, 1986, the district court ruled that such a hearing would be conducted after the trial.
Kurzer moved to dismiss the indictment, on the theory that it was the product of his immunized testimony. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Judge Lasker held two evidentiary hearings, at which the facts as given above were developed.