Opinion
3-00-CR-442-R
November 8, 2002
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order of reference filed on October 15, 2002 and the provisions of 28 U.S.C. § 636(b)(a)(B) and (C), came on to be considered Defendant's Motion for a Kastigar Hearing filed on October 8, 2002, and the government's response filed on November 6, 2002, and the magistrate judge finds and recommends as follows:
See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653 (1972).
Defendant stands convicted often counts of mail fraud and conspiracy under the indictment in this case and is awaiting sentencing which is presently scheduled for November 16, 2002.
Defendant claims that he was granted use immunity in conjunction with a grand jury subpoena duces tecum on which he was to appear on February 18, 1998. This assertion is wholly uncorroborated in the documentation proffered by him. Further there appears to be no material connection between his grand jury appearance on February 18, 1998, following which he was indicted in No. 3-98-CR-94-H and was thereafter tried, convicted and sentenced and the grand jury investigation and subsequent return of a bill of indictment in this case on November 15, 2000.
Further, Defendant has failed to identify any testimonial evidence which he gave under a grant of immunity which constituted an "investigatory lead" which was used in any direct or indirect manner in the prosecution of this case.
As observed in the government's response, the Fifth Circuit rejected Defendant's Kastigar argument in his appeal from his prior conviction, noting that no grant of immunity extended to the contents of any records which he produced. See Government's response, Exhibit A. Further, the District Court previously considered and rejected Defendant's claim that records which he produced led to his prosecution. See Order filed on May 7, 2002, denying his motion for new trial.
Since Defendant has failed to make a predicate showing of an alleged use of immunized testimony, it necessarily follows that his motion to dismiss based upon improper use of immunized testimony is likewise without merit.
RECOMMENDATION:
For the foregoing reasons it is recommended that both Defendant's motions be denied.