Summary
The Ninth Circuit affirmed R. Michael Crowson’s convictions for racketeering and fraud. The court held that the government established by a preponderance of the evidence that trial evidence derived from sources independent of Crowson’s immunized grand jury testimony, and it declined to adopt a per se rule requiring prosecutors exposed to immunized testimony to withdraw. The court also rejected Crowson’s remaining claims concerning his opening statement, jury instructions, and prosecutorial argument.
Topics
Practice areas
Questions Presented
- Whether the government violated Kastigar and 18 U.S.C. §§ 6002–6003 by using or deriving evidence from Crowson’s compelled grand-jury testimony.
- Whether the government was required to withdraw prosecutors or other officials who had been exposed to Crowson’s immunized testimony.
- Whether the district court committed reversible trial error by restricting defense counsel’s opening statement, failing to properly instruct the jury on RICO, or overruling an objection to the prosecutor’s closing argument.
Holdings
- The government satisfied its burden of proving by a preponderance of the evidence that the evidence used against Crowson came from wholly independent sources and that no direct or derivative evidentiary or non-evidentiary use was made of his compelled testimony.
- There is no per se rule requiring withdrawal of a prosecutor or other government official who may have been exposed to immunized testimony.
- The asserted trial errors did not warrant reversal; restricting argumentative discussion of the charged offenses in opening statement was not error, the RICO instructions were adequate, and the objection to the prosecutor’s summation was properly overruled.
Key quotations
“"Use immunity does not protect the substance of compelled testimony, it only protects against the use of compulsory testimony as a source of evidence."” (¶ 7)
“"The focus of the inquiry under Kastigar ... is not whether the prosecutor was aware of the contents of the immunized testimony, but whether he used the testimony in any way to build a case against the defendant."” (¶ 13)
“The government met its burden of establishing by a preponderance of the evidence that there was a wholly independent source for all evidence used against Crowson.” (¶ 27)
Factual background
The government subpoenaed Crowson, a Seattle businessman and attorney, to produce individual, sole-proprietorship, and corporate records before a federal grand jury. After Crowson asserted his Fifth Amendment privilege as to some records and testimony, the government obtained use immunity for production of the individual and sole-proprietorship records. Crowson later faced RICO and fraud charges arising from an alleged scheme to defraud Sealaska and Pacific Western Lines of approximately three to five million dollars. The government presented affidavits, testimony, and documentary evidence to establish that the evidence used against Crowson came from sources independent of his immunized testimony.
Procedural history
A federal grand jury subpoenaed Crowson to produce business records and testify. The government obtained use immunity for production of his individual and sole-proprietorship records under 18 U.S.C. §§ 6002–6003. After an original indictment and a superseding indictment, Crowson moved to dismiss and suppress under Kastigar. The district court denied the motions after finding that the government had not directly or derivatively used his immunized testimony and that the evidence had independent sources. A jury convicted Crowson, and the Ninth Circuit affirmed.