Federal Evidence Review

In conspiracy to commit murder for hire trial, government compelled the testimony of one defendant in the trial of another co-defendant; no Kastigar issues were raised by the use of the immunized testimony, in United States v. Childs, __ F.3d __ (6th Cir. Aug. 29, 2008) (Nos. 07-1495, 07-1597)

Can the government compel the testimony of one defendant in the severed trial of another co-defendant? A Sixth Circuit case answered this question in the affirmative, where there was no claim that the government’s evidence was derived from the immunized testimony.

In the case, a shooting of a sixteen-year-old while she showered at her grandmother’s house remained unsolved for several years. Eventually, an individual reported that she heard her nephew, defendant Childs, talking with defendant Sims about the murder. With a new lead, investigators identified a fingerprint which was found at the scene and matched it with defendant Childs. Defendants Childs and Sims were ultimately charged with conspiring to commit murder for hire. The trial court severed the trials and defendant Childs was tried first. Before the first trial, the government compelled the testimony of defendant Sims by giving him a statutory grant of use and derivative use immunity, under 18 U.S.C. § 6002. Both defendants were convicted in separate trials. Defendant Sims did not testify at his own trial.

On appeal, defendant Sims “argue[d] that Congress could not have intended for the statute to apply to a situation, such as his, in which an indicted defendant is compelled to testify at his co-defendant’s trial some three weeks before his own trial for the same offense.” Childs, __ F.3d at __. The circuit relied on the Supreme Court case affirming the use of immunized testimony. Id. (citing Kastigar v. United States, 406 U.S. 441, 453 (1972) (holding the immunity from use and derivative use immunity under section 6002 is “coextensive with the scope of the privilege against selfincrimination, and therefore is sufficient to compel testimony over a claim of privilege”)).

The defendant was protected under the immunity statute from being prosecuted through his immunized statements. If the defendant claims that the government used his immunized testimony against him, the burden would then shift to the government to show “that all of the evidence it proposes to use was derived from legitimate independent sources.” Kastigar, 406 U.S. at 461-62. The trial court could then hold what is called a Kastigar-hearing to determine whether the government evidence was derived from the immunized testimony. No Kastigar claim was presented, as the circuit explained:

“Sims, however, has raised no such claim because the government made no use either directly or derivatively of his compelled testimony. Therefore, we find that Sims was properly compelled to give testimony as a witness at Childs’ trial under a grant of statutory immunity, and furthermore, has in no way suffered harm from his compelled testimony.”

In Childs, the government apparently made a tactical decision that it could withstand any Kastigar claim by compelling the co-defendant’s testimony in the first trial, and then prosecuting the testifying defendant in a second trial.