A "Kastigar hearing" is an evidentiary hearing at which the government is required to prove that it is not using a defendant's immunized testimony against him. United Statesv. Mendizabal, 214 F. App'x 496, 501 (6th Cir. 2006). In Kastigar, the Supreme Court held that when a witness who has given incriminating testimony under a grant of immunity pursuant to 18 U.S.C. § 6002 is subsequently prosecuted for a matter related to the compelled testimony, the government bears "the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources."
When a defendant is granted only informal or pocket immunity, “normal contract law and remedies govern any breach by prosecutors.” United States v. Mendizabal, 214 Fed.Appx. 496, 501 (6th Cir. 2006) (citing Fitch, 964 F.2d at 574; Turner, 936 F.2d at 224)
The letter—which allows derivative use of any information provided—is an informal proffer agreement not subject to the statutory protections under which a Kastigar hearing is required. See United States v. Mendizabal, 214 Fed.Appx. 496, 501–502 (6th Cir.2006) (noting that an agreement allowing the government to make “derivative use” of the defendant's testimony is a classic informal-immunity agreement); see also United States v. Turner, 936 F.2d 221, 223–224 (6th Cir.1991) (grant of Kastigar immunity must be approved by United States Attorney in relevant judicial district, a high-ranking official in the Justice Department, and a federal district judge).Id.
The guns were hidden with his cocaine under the dishwasher, so it would be easy to access the drugs and guns simultaneously and the guns could be used to protect his drug supply. United States v. Volkman, 797 F.3d 377, 391-92 (6th Cir. 2015); United States v. Mendizabal, 214 F. App'x 496, 501 (6th Cir. 2006). The hiding spot under the dishwasher was also easy to access from anywhere in McKinney's apartment, accessible within 10 seconds according to Harris's testimony.
caliber handgun “in furtherance of” drug trafficking. See, e.g., United States v. Ham, 628 F.3d 801, 808–09 (6th Cir.2011) (reasonable trier of fact could have found beyond a reasonable doubt that a loaded pistol on top of armoire just outside of a closet containing crack cocaine in defendant's residence was possessed in furtherance of drug trafficking; it was strategically located and available for use; illegally possessed; discovered during a search warrant looking for drugs, which were ultimately found; and found in close proximity (the same room) as drugs); Swafford, 385 F.3d at 1028 (reasonable trier of fact could have found that a loaded semiautomatic pistol was possessed in furtherance of drug trafficking where it was found within arm's reach of where defendant was lying, law enforcement testified that such weapons play a role in drug distribution, the gun was possessed illegally, and was discovered during the execution of a search warrant looking for drugs, which were found); United States v. Mendizabal, 214 Fed.Appx. 496, 501 (6th Cir.2006) (reasonable trier of fact could have found that a loaded firearm located in a safe alongside cocaine, drugs linked to the conspiracy for which defendant was charged, was positioned to provide protection for the cocaine and thus possessed in furtherance of the defendant's cocaine trafficking conspiracy); accord Adkins, 429 Fed.Appx. at 476–78. C. Ray's Motion to Suppress Statements Made to the Police
When a weapon is found in a locked safe placed alongside contraband, there is sufficient evidence for a jury to determine that a defendant is in possession of a firearm in furtherance of a drug-trafficking crime. See United States v. Mendizabal, 214 Fed.Appx. 496, 501 (6th Cir.2006); see also United States v. Cobbs, 233 Fed.Appx. 524, 535–36 (6th Cir.2007) (concluding that there was sufficient evidence for a jury to find that a locked safe with four handguns and crack cocaine nearby the safe constituted possession of a firearm in furtherance of a drug offense). Hence, Volkman's challenge to his firearm conviction must fail.
A reasonable jury could conclude that the pistol was in the closet to provide ready protection for the large amounts of drugs and cash that were also contained therein. See United States v. Penney, 576 F.3d 297, 315 (6th Cir. 2009) (finding, under the manifest-miscarriage-of-justice standard, that evidence of shotguns next to $1,300 in cash in a closet could support a conclusion that the shotguns were strategically located); see also United States v. Mendizabal, 214 F. App'x 496, 501 (6th Cir. 2006) ("In this case, Mendizabal's [loaded] gun was found in a safe along with the conspiracy-linked cocaine, where it would have been very useful in protecting that cocaine."). Second, we consider whether the gun was loaded.
When a weapon is found in a locked safe placed alongside contraband, there is sufficient evidence for a jury to determine that a defendant is in possession of a firearm in furtherance of a drug-trafficking crime. See United States v. Mendizabal, 214 Fed.Appx. 496, 501 (6th Cir.2006); see also United States v. Cobbs, 233 Fed.Appx. 524, 535–36 (6th Cir.2007) (concluding that there was sufficient evidence for a jury to find that a locked safe with four handguns and crack cocaine nearby the safe constituted possession of a firearm in furtherance of a drug offense). Hence, Volkman's challenge to his firearm conviction must fail.
When a defendant has a loaded firearm and places it in a strategic location where he can easily access it to protect his drugs and drug business, he possesses a firearm in furtherance of a drug trafficking offense. See, e.g., Mackey, 265 F.3d at 462-63 (where an illegally possessed, loaded, short-barreled shotgun in the living room of the crack house was easily accessible to the defendant and located near the scales and razor blades, "a reasonable jury could infer that the purpose of the firearm was to provide defense or deterrence in furtherance of the drug trafficking for which defendant was arrested"), and Swafford, 385 F.3d at 1028 ("while the drugs were not found in the same room as the gun, the garage where they were found was easily accessible from the bedroom where Swafford and the gun were found"); see also United States v. Mendizabal, 214 Fed. Appx. 496, 501 (6th Cir. 2006) (loaded firearm located in a safe alongside cocaine was positioned to provide protection for the cocaine). Here, the police located a loaded .357 magnum in a cabinet that also contained two small digital scales, several small plastic bags filled with marijuana, several gun holsters, and walkie-talkies.
It is clear that Mahaday has no claim based on a grant of immunity if we distinguish carefully between immunity granted pursuant to Michigan statutory authority, M.C.L.A. § 780.702, on the one hand, and some nonstatutory immunity that nonetheless implicates constitutional due process, on the other. Cf. United States v. Mendizabal, 214 Fed.Appx. 496, 502 (6th Cir. 2006) (describing the difference in federal law between statutory immunity and "pocket" or "informal" immunity). It is true that Michigan statutory immunity — under M.C.L.A. § 780.702 as it existed before 1999 and under a fair reading of the Michigan Supreme Court's interpretation of analogous language in People v. McIntire, 461 Mich. 147, 599 N.W.2d 102, 106 (1999) — provided immunity from prosecution for self-incriminated offenses even if the testimony was false.