Opinion
Case No. 4:01 CR 207
May 13, 2002
ORDER DENYING DEFENDANT DETORE'S MOTION TO DISMISS COUNT THREE OF THE SUPERSEDING INDICTMENT
On 22 February 2002, Defendant Detore moved to dismiss count three of the superseding indictment against him. (Docket # 203). On 6 March 2002, the government moved for an additional thirty days to respond to the motion to dismiss. (Docket # 222). The Court granted the government's motion for additional time to respond, which was not opposed by Defendant Detore. On 19 April 2002, Defendant Detore filed a separate motion for entry of an order dismissing count three against him. (Docket # 345). The government moved for leave to file instanter its response to the original motion to dismiss. (Docket # 346). The Court granted the government's motion for leave to file instanter its response, which was not opposed by Defendant Detore. (Docket # 351). Defendant Detore then filed his reply to the government's response. (Docket # 350).
For the reasons that follow, the motion to dismiss count three of the superseding indictment against Defendant Detore and the motion for entry of an order of dismissal are denied.
FACTUAL BACKGROUND
On 18 August 2000, Assistant United States Attorney Craig S. Morford sent a proffer letter agreement to Lawrence Huntsman, Mr. Detore's attorney at the time. The letter memorialized the agreement between Mr. Detore and the government regarding "a written proffer describing Mr. Detore's knowledge of any and all dealings between Congressman Traficant and persons associated with U.S. Aerospace and its related entities." (Docket # 203 at Exhibit E). The letter set forth the terms of the proffer, in relevant part, as follows:
First, your client must be completely truthful, candid and forthright at all times during the proffer process; failure to do so could subject him to felony charges for making false statements. Second, except as expressly provided below, no statements made or other information provided by you or your client will be offered in evidence in any proceeding involving your client. Third, the government may make derivative use of any statement or other information provided by you or your client under the terms of this proffer letter and may pursue any investigative leads suggested by any such statements or information.
(Docket # 203 at Exhibit E).
Pursuant to the proffer letter agreement, Mr. Detore provided a written proffer on 29 August 2000. (Docket # 203 at Exhibit F). On 1 March 2001, Mr. Detore provided some documents to the government. Oral proffer sessions were conducted pursuant to the proffer agreement on 8 March 2001 and 25 June 2001.
ANALYSIS
In his motion to dismiss, Defendant Detore contends that the proffer letter is an immunity agreement and that the government violated his Fifth Amendment privilege against self-incrimination and due process rights when it used information provided by him pursuant to the proffer letter as the basis for count three of the superseding indictment, which charges Mr. Detore and Congressman Traficant with conspiracy to violate the illegal gratuity provision of the federal bribery statute. Mr. Detore argues that Kastigar v. United States, 406 U.S. 441 (1972), and its progeny apply to the proffer agreement and that the government has the burden of proving that its evidence against Mr. Detore "is neither directly nor indirectly traceable to the immunized testimony." (Docket # 203 at 12). According to Mr. Detore, the government cannot meet this affirmative burden so count three must be dismissed. Alternatively, Defendant Detore seeks a Kastigar hearing, at which the government would have to prove that its evidence against Mr. Detore is not directly or indirectly traceable to the information provided to the government by Mr. Detore pursuant to the proffer agreement.
The government responds that Defendant Detore "never received immunity." (Docket # 346 at 1). It contends that Kastigar and its progeny only apply in the context of statutory immunity, when testimony is compelled after a federal judge has immunized a witness pursuant to 18 U.S.C. § 6002-6003. The government further argues that the proffer agreement expressly provides for the derivative use of Mr. Detore's statements to the government. The government concludes, "Since the government has not introduced Defendant Detore's statements against him, the government has not violated the terms of the proffer agreement." (Docket # 346 at 9).
Defendant Detore mis-characterizes the proffer agreement. The proffer agreement is a limited grant of "informal immunity" and is not governed by the rules of statutory immunity. The cases cited by defendant are inapposite because they describe the law and procedures surrounding a grant a statutory immunity.
In Kastigar, the Supreme Court held that a grant of "immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege." 406 U.S. at 453. Because immunity granted pursuant to 18 U.S.C. § 6002-6003 includes both use and derivative use immunity, the Supreme Court held that the statute is constitutional. Id. The Court decided that "[o]ne raising a claim under this statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources." Id. at 461-62.
Use immunity prevents the government from using the testimony of an immunized witness against the witness. Derivative use immunity, on the other hand, prevents the government from using evidence derived from the compelled testimony against the witness.
Kastigar is not applicable to this case. Mr. Detore was not compelled to testify. He never claimed his privilege against self-incrimination. Moreover, he was not granted statutory immunity. Instead, he was a party to a proffer agreement.
Proffer agreements, like other types of "informal immunity," are contractual in nature. See U.S. v. Orlando, 281 F.3d 586, 594 (6th Cir. 2002); U.S. v. Tapert, 993 F.2d 1548, 3 (6th Cir. 1993); U.S. v. Turner, 936 F.2d 221, 223 (6th Cir. 1991); U.S. v. Chiu, 109 F.3d 624, 625 (9th Cir. 1997); U.S. v. Plummer, 941 F.2d 799, 802 (9th Cir. 1991). Thus, "[t]he construction of proffer agreements . . . is governed generally by the principles of contract law." U.S. v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998).
In this case, the plain language of the proffer agreement provides for the government's derivative use of Defendant Detore's statements to the government. After clearly stating that the government cannot use Mr. Detore's statements against him, the proffer agreement unambiguously provides, "the government may make derivative use of any statement or other information provided by you or your client under the terms of this proffer letter and may pursue any investigative leads suggested by any such statements or Information." (Docket # 203 at Exhibit E). Essentially, the proffer agreement provides for informal use immunity, but not for informal derivative use immunity.
Given the plain language of the proffer agreement, Defendant Detore's claim that count three of the superseding indictment against him should be dismissed on the ground that the government made derivative use of the information he provided is unavailing. The proffer agreement expressly permits the government to do just that.
A Kastigar hearing also would be inappropriate. Given that there has been no grant of statutory immunity and that the proffer agreement provides for derivative use, it would make no sense to hold a hearing in which the government would have to prove that its evidence against Mr. Detore is not directly or indirectly traceable to the information provided to the government by Mr. Detore pursuant to the proffer agreement. Under the terms of the proffer agreement, the government's evidence against Mr. Detore may permissibly be indirectly traceable to the information provided by Mr. Detore.
CONCLUSION
Defendant Detore's motion to dismiss count three of the superseding indictment against him is denied. His alternative request for a Kastigar hearing also is denied. Defendant Detore's separate motion for entry of an order dismissing count three against him is denied.
IT IS SO ORDERED.