United States v. Martin

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 30, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 02-30177

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDREW A. MARTIN,

Defendant-Appellant.

Appeal from the United States District Court
For the Eastern District of Louisiana

Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Appellant Andrew A. Martin was convicted of unlawfully

conspiring to defraud the United States by impairing the ability of

the IRS to ascertain and collect income taxes in violation of 18

U.S.C. § 371, as well as several counts of false statements and tax

evasion offenses in violation of 26 U.S.C. §§ 7201 and 7206(1).

Martin raises three issues on appeal: the failure of the district

court to hold evidentiary hearings on his motions for a Kastigar

and a Franks hearing, and the jury instruction with regard to the

violation of 18 U.S.C. § 371. We affirm the convictions.
 I.

Martin was a businessman who owned several businesses in the

offshore oil servicing industry. Gregory Duvieilh, an accountant,

was a business associate. Duvieilh started several businesses,

including Iron Man Fisheries, Inc., which he incorporated in

February 1991 with Martin for the purpose of importing lobsters.

Duvieilh owned all of the stock in the company and held sole

signature authority on its corporate checking account at the

Community Bank of Lafourche in Raceland, Louisiana. Iron Man,

however, never did any business and existed only on paper.

In 1990, the IRS assessed the sum of $188,450 as being the

“trust fund” portion of the taxes withheld from the wages of

employees of Martin’s businesses. Martin was personally liable to

the IRS for this amount. In an attempt to help Martin frustrate

the IRS’s efforts to collect the taxes, Duvieilh arranged for

Martin to use the Iron Man bank account under the cover of

Duvieilh’s name. Duvieilh gave Martin signed blank checks to use

at Martin’s discretion and also signed sales and mortgage documents

for Martin’s benefit. Duvieilh never filed any corporate income

tax returns for Iron Man.

Martin diverted over $500,000 in income into the Iron Man

account from various sources. Martin purchased property and assets

under the Iron Man name for his personal use, including a

houseboat, fishing boats, and personal residences in Baton Rouge

and Kenner.

2
 In June 1995, Martin, assisted by Duvieilh, filed an IRS Form

656, Offer and Compromise, stating that he could borrow $20,000 to

pay the IRS if it would forgive the remaining liability owed to the

IRS. Martin falsely stated therein that he had no income other

than his state government salary, received as Executive Assistant

to then-Governor Edwin Edwards, and had no assets other than an

over-mortgaged house in Galiano, Louisiana. Martin did not list

any of his assets sheltered under Iron Man.

Although the $188,000 which the IRS had initially assessed

Martin in connection with the withheld wages came from Martin’s

business operations, Martin also sought to avoid paying taxes on

income which he received for the tax years 1994 through 1997. Much

of Martin’s income during 1996 and 1997 came from cash kickbacks

paid by Robert Guidry for Martin’s assistance, along with that of

Governor Edwards and his son Steven, in securing a hearing before

the state police which eventually led to Guidry’s obtaining a

gambling license for the Treasure Chest Casino.1 Martin failed to

file income tax returns on taxable income amounting to $150,400 in

1994, $138,000 in 1995, and $239,000 in 1997. Martin did file an

income tax return in 1996 in which he falsely reported his income

to be $76,000 when in fact it amounted to approxiamtely $477,000.

Martin failed to pay taxes amounting to $437,671.

1
See United States v. Edwards, 303 F.3d 606 (5th Cir. 2002), for details
of these events and the resulting criminal convictions.

3
 As part of its investigation of Martin’s taxes, the government

received a copy of the transcript of Martin’s testimony before a

Louisiana grand jury. Martin testified before the state grand jury

investigating Governor Edwards as a subpoenaed non-target witness.

During his testimony before the grand jury, Martin testified about

high-stakes poker games at the Governor’s mansion, and identified

some of the players. Several of these named players testified at

Martin’s tax trial concerning Martin’s unreported poker winnings.

The government also obtained wiretap authorizations for the

telephones of Cecil Brown during its investigation of Governor

Edwards. These taps yielded evidence which the government used to

obtain additional wiretaps, which in turn yielded evidence which

the government proffered at Martin’s tax trial.

Martin filed three major pre-trial motions, two of which are

at issue on appeal. The first was a motion to dismiss the

indictment under Kastigar due to the government’s use of Martin’s

allegedly immunized state grand jury testimony.2 The second was a

motion to suppress all evidence obtained through wire and

electronic surveillance during the government’s investigation of

Governor Edwards, accompanied by a six volume offer of proof and a

2
See Kastigar v. United States, 406 U.S. 441 (1972) (holding that in a
subsequent criminal prosecution of a person who has been compelled to testify
under grant of immunity, prosecution has the burden of proving affirmatively that
evidence proposed to be used is derived from a legitimate independent source).

4
motion for a Franks hearing.3 The district court heard oral

argument on the motions and denied them without an evidentiary

hearing.

The charges against Martin were tried to a jury which returned

a guilty verdict on all counts. Martin moved for a new trial or

judgment of acquittal, arguing, inter alia, that the government’s

evidence at trial highlighted the need for a Kastigar hearing. The

district court denied his motion. Martin timely appealed.

II.

Martin argues that his testimony as a non-target witness

before the Louisiana grand jury was immunized under Louisiana Code

of Criminal Procedure Article 433.A(2).4 Pursuant to Kastigar v.

United States,5 Martin asserts that the district court should have

required the government to show an independent source for its

evidence of unreported poker winnings.

Whether Martin had automatic immunity under the Louisiana

statute as a non-target witnesses testifying before a state grand

3
See Franks v. Delaware, 438 U.S. 154 (1978) (holding that where a
defendant makes substantial preliminary showing that a false statement was
knowingly included in search warrant affidavit, and if allegedly false statement
is necessary to finding of probable cause, Fourth Amendment requires that hearing
be held).
4
La. Code Crim. Proc. Ann. art. 433 (West 2003).
5
406 U.S. 441 (1972).

5
jury is a question of law we review de novo.6 Factual findings

relating to the Kastigar inquiry are reviewed for clear error.7

This issue turns on the interpretation of Article 433, which

is titled “Persons present during grand jury sessions.”

Subparagraph A(2) reads in full:

An attorney for a target of the grand jury's
investigation may be present during the testimony of said
target. The attorney shall be prohibited from objecting,
addressing or arguing before the grand jury; however he
may consult with his client at anytime. The court shall
remove such attorney for violation of these conditions.
If a witness becomes a target because of his testimony,
the legal advisor to the grand jury shall inform him of
his right to counsel and cease questioning until such
witness has obtained counsel or voluntarily and
intelligently waived his right to counsel. Any evidence
or testimony obtained under the provisions of this
Subparagraph from a witness who later becomes a target
shall not be admissible in a proceeding against him.8

It is the last sentence that Martin contends grants him

automatic use and derivative use immunity for his testimony as a

non-target witness before the grand jury. Under Murphy v.

Waterfront Commission and Kastigar federal prosecutors are

prohibited from using immunized state testimony in a federal

criminal prosecution.9

6
See United States v. Cantu, 185 F.3d 298, 302 (5th Cir. 1999).
7
See United States v. Jimenez, 256 F.3d 330, 348 (5th Cir. 2001).
8
La. Code Crim. Proc. Ann. art. 433 (West 2003).

9
See Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 (1964); Kastigar, 406
U.S. at 456-57; United States v. Daniels, 281 F.3d 168, 180 (5th Cir.), cert.
denied, 122 S.Ct. 2313 (2002).

6
 At the outset, it should be noted that Martin is not arguing

that he was granted immunity by the district attorney in order to

compel his testimony over an assertion of his Fifth Amendment

rights. Martin did not assert his Fifth Amendment rights and the

district attorney explicitly notified Martin that he was not being

granted any immunity at the start of his grand jury testimony.

However, immediately following this notice, Martin made certain

that he was not a target of the grand jury. Martin argues that as

a non-target witness he did not need to assert his Fifth Amendment

rights or be granted immunity by the district attorney, since

Article 433.A(2) automatically immunized his testimony. He also

asserts that his testimony was compelled because the district

attorney told him that he had to answer the questions and his

appearance was pursuant to a subpoena. The government responds

that Martin has acknowledged that he was not granted immunity, that

Article 433.A(2) does not automatically confer immunity, and

therefore Kastigar does not apply. We agree.

The district court in this case explicitly relied on the

reasoning of the District Court for the Middle District of

Louisiana in a related case, United States v. Edwards, in which

Martin raised exactly the same argument.10 Although we reach the

10
See United States v. Martin, 169 F. Supp. 2d 558, 567-68 (E.D. La. 2001)
(relying on the reasoning in United States v. Edwards, 83 F. Supp. 2d 723, 726-27
(M.D. La. 1999)).

7
same conclusion as that court, we do not entirely agree with its

reasoning.11

Relying on two Louisiana cases, that court concluded that only

one Louisiana statute confers statutory immunity, namely Louisiana

Code Criminal Procedure Article 439.1.12 The court relied on a

statement from a Louisiana Court of Appeals that “the only

Louisiana statute specifically granting any type of immunity (use

immunity) is Code of Criminal Procedure Article 439.1, which

requires the agreement of the district attorney or the attorney

general.”13 Reliance on this quotation is misplaced. Read in

context, it is only a restatement of the state’s argument in the

case, not a statement of Louisiana law by the court. The

government also erroneously relies on this language in its argument

here.

The district court in Edwards also relied on State v. Tanner,

in which the Louisiana Supreme Court ruled that a target of a grand

11
The Middle District Court’s ruling on this issue was not appealed, and
therefore was not reviewed by this court in United States v. Edwards, 303 F.3d
606 (5th Cir. 2002).
12
La. Code Crim. P. Ann. art. 439.1 (West 2003) reads in part:

In the case of any individual who has been or may be called to
testify or provide other information at any proceeding before or
ancillary to a grand jury of the state, ... the judicial district
court ... shall issue ... upon the request of the attorney general
together with the district attorney for such district, an order
requiring such individual to give testimony or provide other
information which he refuses to give or provide on the basis of his
privilege against self-incrimination....

13
Edwards, 83 F. Supp. 2d 726 (quoting State v. Cinel, 619 So. 2d 770, 775
(La. Ct. App. 1993)).

8
jury investigation who waived his right to remain silent could not

use grand jury secrecy laws, including Article 433, to prevent the

use of his grand jury testimony at trial.14 The Edwards court

concluded that the state court’s pronouncement that the defendant

did not receive any immunity was dispositive of Martin’s argument.

However, Article 433 clearly distinguishes between target and non-

target witnesses, and thus the Tanner decision does not control,

since unlike Tanner, Martin was not a target witness.

In addition to these cases, the government also cites State v.

Poland, contending that the Louisiana Supreme Court has made it

clear that Article 433 only relates to who may be present during

grand jury proceedings, not immunity.15 However, as in Tanner,

Poland concerned a witness who was a target of the grand jury and

the court had no reason to apply Article 433.A(2).16 Thus we are

faced with an ambiguous statute and no relevant state case law to

guide us in its interpretation.

We begin by examining the language of the statute. On its

face, the statute only applies to evidence or testimony “obtained

under the provisions of this Subparagraph” from a non-target

witness “who later becomes a target.”17 The parties dispute what

14
See id. (quoting State v. Tanner, 425 So. 2d 760, 763 (La. 1983)).
15
2000-0453 (La. 3/16/01), 782 So.2d 556 (La. 2001).

16
Id. at 557.
17
Art. 433.A(2).

9
it means to “later become a target.” Martin argues for a broad

interpretation, such that a witness who becomes a target of a

criminal investigation at any later time cannot have his testimony

as a non-target witness used against him. The government responds

by arguing that “later becomes a target” applies only to those

witnesses who become a target of the grand jury before which they

are testifying. The government has the better interpretation of

the statute.

The interpretation of “later becomes a target” is clarified by

the limitation on what evidence and testimony may not be used

pursuant to Article 433.A(2). Only testimony and evidence

“obtained under the provisions of this Subparagraph” are covered by

the provision. The provisions Subparagraph A(2) concern only two

types of witnesses: target witnesses and non-target witnesses who

become a target because of their testimony while testifying. The

provisions of the Subparagraph do not relate to non-target

witnesses who become the target of a criminal investigation only

after they have testified. Therefore, the only type of witness

that testifies under the provisions of the Subparagraph and later

becomes a target is one that becomes a target while testifying.

Thus, Article 433.A(2) only applies to the evidence or testimony

from a non-target witness who becomes a target because of his

testimony while testifying before the state grand jury. This

10
interpretation of the statute was also adopted by the district

court.18

Martin argues that this interpretation of the statute is not

supported by the legislative history of the bill which added

subparagraph A(2) to Article 433. First, Martin notes that the

Senate adopted an amendment to the bill which read in relevant

part, “Any evidence or testimony obtained in violation of this

provision shall be inadmissible at trial on any criminal charges

arising out of said grand jury investigation.”19 This amendment was

deleted and replaced with the current language, “Any evidence or

testimony obtained under the provisions of this Subparagraph from

a witness who later becomes a target shall not be admissible in a

proceeding against him.”20 Martin argues that the language “arising

out of said grand jury investigation” is the same as the

interpretation we adopt, and was ultimately rejected by the

legislature in favor of protection for non-target witnesses who

become a target at any later time.

Second, Martin notes that the House version of the bill which

was sent to the Senate granted the right to have counsel present in

18
See Edwards, 83 F. Supp. 2d at 726 (stating, “Article 433(A)(2) is
intended to protect the rights of a witness who, because of his testimony,
becomes a target of the state grand jury before which he is testifying”)
(emphasis in original).
19
Amendment to H.R. 901, Official Daily Journal of the Louisiana State
Senate, page 34, June 26, 1986.
20
Id. at 35.

11
the grand jury to all witnesses, not just a target.21 Martin argues

that the final bill was a trade-off, limiting the right to have an

attorney present to target witnesses in exchange for immunizing

non-target witnesses’ testimony. Martin therefore concludes that

the legislature provided automatic use and derivative use immunity

for all non-target witnesses.

Martin’s reading of the legislative history is not

unreasonable, but the language of the statute as adopted simply

does not support a broad grant of use and derivative use immunity.22

As discussed above, the language of the statute indicates that only

those non-target witnesses who become targets while testifying are

covered by Article 433.A(2). This interpretation is not

inconsistent with the legislative history. The version of the bill

accepted and then rejected by the Senate provided very narrow

protection since it required a violation of the provisions of the

subparagraph and only prohibited the use of the testimony in

criminal trials arising out of the grand jury where the violation

occurred. The final version of the statute is broader, requiring

21
See H.R. 901, Official Journal of the Louisiana House of
Representatives, page 11-12, 34-35, May 23, 1986.
22
An example of a grant of statutory use immunity is found in 15 La. Rev.
Stat. Ann. § 468 (West 2003):

Any person may be compelled to testify in any lawful proceeding
against another charged with commercial bribery, public bribery,
bribery of voters or corrupt influencing, and shall not be permitted
to withhold his testimony upon the ground that it may incriminate
him or expose him to public infamy; but such testimony shall not
afterwards be used against him in any judicial proceeding, except
for perjury in giving such testimony.

12
only that the witness become a target while testifying and

preventing the use of the witness’s testimony in any proceeding

against the witness. Our interpretation of the statute is not

inconsistent with the legislative history because it is not the

same as the one rejected by the Senate.

We now turn to the application of the statute to Martin.

Article 433.A(2) does not apply to Martin’s testimony because, as

the district court noted, there is “no evidence to show that Mr.

Martin became a target of the East Baton Rouge Parish grand jury

before which he was called to testify.”23 Because Martin failed to

satisfy his initial burden of demonstrating that he testified under

a state grant of immunity,24 Kastigar does not apply and the

district court did not err in refusing to conduct a Kastigar

hearing.

III.

Martin next argues that the affidavit that supported the

authorization of a wiretap of Cecil Brown’s home and office

telephone recklessly or deliberately misrepresented the truth and

that without these uncorroborated accusations the remaining parts

of the affidavit do not support probable cause. Because the

wiretap of Cecil Brown’s home and office led to evidence used to

23
Edwards, 83 F. Supp. 2d at 726-27.
24
United States v. Daniels, 281 F.3d 168, 180 (5th Cir.), cert. denied,
122 S.Ct. 2313 (2002) (stating that the defendant must show that he made
immunized statements regarding matters related to the federal prosecution).

13
obtain the wiretaps that yielded the evidence used at trial against

Martin, Martin argues that the evidence against him must be

excluded.25 We review the denial of a Franks hearing de novo.26

The legality of the Cecil Brown wiretaps have been considered

and upheld three times by this court.27 Martin was an appellant in

one of these appeals and was denied a rehearing by this court as

well as certiorari by the Supreme Court.28 Here Martin raises the

same issues once again and asks this court to reach a different

conclusion when it reviews the issue for the fourth time.

Martin devotes a significant portion of his brief to

establishing that he made the requisite “substantial preliminary

showing” that a false statement was deliberately or recklessly

included in the affidavit that supported the application for the

wire tap of Cecil Brown’s telephones. However, if the remaining

portions of the affidavit support probable cause, Martin was not

entitled to a Franks hearing.29

25
See Franks v. Delaware, 438 U. S. 154 (1978).
26
See United States v. Dickey, 102 F.3d 157, 162 (5th Cir. 1996).
27
See United States v. Edwards, 303 F.3d 606, 617, 622 n.8 (5th Cir.
2002); United States v. James Brown, 303 F.3d 582, 603 (5th Cir. 2002); United
States v. Cecil Brown, 298 F.3d 392, 396-404 (5th Cir. 2002).
28
See Edwards, 303 F.3d, cert. denied, 123 S. Ct. 1369 (2003).
29
See Brown, 298 F.3d at 395-96 (stating that defendant is not entitled
to a hearing if after striking the disputed material there remains “sufficient
content in the warrant affidavit to support a finding of probable cause”
(quotations and citations omitted)).

14
 Martin’s assertions that the activities in the affidavit are

legal when considered without the stricken portions are without

merit. The remaining portions of the affidavit do not need to

prove beyond a reasonable doubt that a crime was being committed,

only that considering the “totality of the circumstances”, the

judge issuing the warrant could reasonably conclude that the

warrant was justified.30 In accordance with Edwards, Cecil Brown

and James Brown, we hold that there was probable cause to sustain

the issuance of the warrants.

IV.

Martin’s final argument is that the district court erred in

not including “deceit and dishonest means” in its jury instruction

on appellant’s 18 U.S.C. § 371 charge. Conspiracies charged under

18 U.S.C. § 371 can have either of two objectives: to violate

federal law, or to defraud the United States. Martin argues that

conspiracies to defraud require the objective of the conspiracy to

be interference with a government function “by deceit, craft or

trickery, or at least by means that are dishonest.”31 Martin argues

that the jury instruction erred in two respects. First, it was an

instruction on an “offense clause” conspiracy, not a “defraud

clause” conspiracy as the indictment charged, and thus was a

30
See United States v. Dickey, 102 F.3d 157, 162 (5th Cir. 1996) (stating
that totality of the circumstances test applies, and that magistrate judge only
needed sufficient reliable information to make a reasonable conclusion).
31
Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).

15
constructive amendment of the indictment. Second, the instruction

failed to include any language on deceit or dishonest means.

Because many activities that citizens undertake with the goal of

making the government’s job more difficult are protected by the

First Amendment, failure to include the deceit or dishonest means

instruction made the charge overbroad. In light of this alleged

overbroadness, Martin argues the court should find clear error.

Martin made no objection to the district court concerning the

jury instruction, nor did he submit a proposed instruction that

covered his First Amendment defense. Therefore, we review the

district court’s instruction for plain error.32 “Plain error occurs

only when the instruction, considered as a whole, was so clearly

erroneous as to result in the likelihood of a grave miscarriage of

justice.”33

Martin’s first argument is without merit in light of the

entire jury instruction. The jury instruction states that the

first element of the offense is that the defendant and at least one

other person conspired to “commit the crime of defrauding the

United States.” This is clearly a “defraud clause” instruction.

As to the second argument, a charge under the “defraud clause”

does not require a “deceit and dishonest means” instruction. In

United States v. Saks, we upheld a jury instruction which consisted

32
See United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999).
33
Id. (quotations and citations omitted).

16
of the statutory language of § 371, which does not contain “deceit

and dishonest means” language.34 In reviewing the jury instruction,

we stated that “because defendants' claim of prejudice is based

solely on the failure to give adequate explanation of the

offense--beyond the reading of the statutory language itself--their

burden is especially heavy.”35 Although the jury instruction

affirmed in Saks did not include the “deceit and dishonest means”

language, the district court did read the indictment which included

that language.36

Here, the district court included language from the indictment

in its instruction, stating that the defendant was charged with

“conspiring to frustrate the collection by the [IRS] of trust fund

liability taxes due and owing by the Defendant and to disguise and

conceal this scheme from the [IRS].” Although not read by the

court, the indictment, a copy of which the jury had during

deliberations, charged that “[a]mong the objects and purposes of

the conspiracy were through the use of deceit, craft, trickery, and

dishonest means” to frustrate the collection of taxes due and to

disguise and conceal the scheme.

Given that the indictment included the “deceit and dishonest

means” language, and that the evidence at trial clearly

34
See United States v. Saks, 964 F.2d 1514, 1522 (5th Cir. 1992).
35
Id.
36
Id.

17
demonstrated a scheme that at a minimum involved “trickery”, the

jury instruction cannot be viewed as “so clearly erroneous as to

result in the likelihood of a grave miscarriage of justice.”37

Therefore the jury instruction was not plain error.

V.

For the foregoing reasons, the defendant’s convictions are

hereby AFFIRMED.

37
Lankford, 196 F.3d at 575 (quotations and citations omitted).

18
DENNIS, Circuit Judge, concurring in part and dissenting in part:

While I join the majority in affirming the district court on

the Franks hearing and jury instruction issues, I respectfully

dissent as to the denial of a Kastigar hearing. Because I believe

the Louisiana legislature intended for article 433(A)(2) of the

Louisiana Code of Criminal Procedure to provide immunity to all

non-target witnesses, I would require the district court to hold a

Kastigar hearing to determine if there was an independent source

for the information supplied by Martin’s state grand jury

testimony.

As the majority acknowledges, article 433(A)(2) is ambiguous.

Therefore, we may look beyond the language of the statute to

determine the legislature’s intent in passing this provision. In

re Greenway, 71 F.3d 1177, 1180 (5th Cir. 1996) (“Only if the term

is ambiguous will we proceed beyond the language as written.”);

U.S. v. Evinger, 919 F.2d 381, 383 (5th Cir. 1990). The language

of the statute could, standing alone, support a broad application

of immunity. But when one considers the public policy in favor of

encouraging grand jury testimony and the statute’s legislative

history, it is even more evident that the legislature intended that

the provision would immunize all non-target witness testimony.

This interpretation is further supported by the fact that the

-19-
majority’s approach will distinctly disadvantage non-target

witnesses and will have a chilling effect on grand jury testimony.

For these reasons, I disagree with the majority’s contention

that the provision covers only target witnesses instead of all

grand jury witnesses, both target and non-target. It is true that

article 433(A)(2) allows only target witnesses and non-target

witnesses who later become targets to have counsel present in the

grand jury. But the provision also provides that non-target

witnesses may not have an attorney present unless they become a

target. Article 433 concerns “Persons present during grand jury

session” and provides that only persons expressly named are allowed

in grand jury proceedings. LA. CODE CRIM. PROC. 433(A)(1). By only

allowing counsel for target witnesses, the provision necessarily

excludes counsel for non-target witnesses. Accordingly, when the

last sentence of the article 433(A)(2) provides for immunity to

“testimony obtained under the provisions of this Subparagraph,” it

immunizes non-target witnesses, including those who later become

targets at subsequent proceedings.

The statute does not limit itself to situations in which a

“witness becomes a target because of his testimony while

testifying.” Instead, it discusses when a “witness becomes a

target because of his testimony,” and “a witness who later becomes

a target.” Both phrases are expansive, indicating an intention to

-20-
cover non-target witnesses who later become targets in a proceeding

other than the immediate grand jury session.

This interpretation is consistent with the public policy of

promoting grand jury testimony, which has been expressed by both

the legislature and the Louisiana Supreme Court. Promoting

testimony is one of the prime justifications for the secrecy of

grand jury proceedings. LA. CODE CRIM. PROC. 433 cmt. (“Some of the

more important reasons for the secrecy of grand jury meetings ...

are: ... to encourage free and untrammeled disclosures by persons

who have information with respect to the commission of crimes.”);

In re Grand Jury, 737 So.2d 1, 6 (La. 1999) (quoting Douglas Oil

Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979) (“[W]e

have noted several distinct interests served by safeguarding the

confidentiality of grand jury proceedings.... [I]f preindictment

proceedings were made public, many prospective witnesses would be

hesitant to come forward.”). The concerns about grand jury

testimony are primarily focused on non-target witnesses. See State

v. Poland, 782 So. 2d 556, 560 (La. 2001) (holding that the

“considerations for the legislative mandate of [grand jury] secrecy

clearly are designed primarily for a non-target witness and are not

significant when a target of the investigation voluntarily

testifies before the grand jury with counsel present.”). Immunity

for non-target witnesses, as much as grand jury secrecy, furthers

the goal of encouraging these witnesses to testify.

-21-
 Further, the legislative history confirms that article

433(A)(2) provides immunity for all non-target witnesses. Before

the legislature enacted this provision, it changed the last

sentence from “Any evidence or testimony obtained in violation of

this provision shall be inadmissible at trial on any criminal

charges arising out of said grand jury investigation” to “Any

evidence or testimony obtained under the provisions of this

Subparagraph from a witness who later becomes a target shall not be

admissible in a proceeding against him.” Amendment to H.R. 901,

Official Daily Journal of the La. State Senate, p. 34, June 26,

1986.

The legislature, by changing “arising out of said grand jury

investigation” to “in a proceeding against him,” broadened the

language to include immunity for proceedings besides the immediate

grand jury meeting. This explanation, which the majority concedes

is “not unreasonable,” is consistent with and supports an

interpretation of the statute that immunizes all non-target

witnesses.

The majority contends that this change is consistent with its

interpretation because it only means that now no violation is

needed before immunity attaches. Although it is true that no

violation is needed before immunity attaches, the majority does not

explain how its narrow approach is consistent with the

-22-
legislature’s expansion of the proceedings in which a non-target

witness has immunity.

The other procedural change made before enactment further

supports the application of immunity to all non-target witnesses.

As originally drafted, the statute granted all witnesses the right

to have counsel present at the grand jury proceeding while they

were providing testimony. Amendment to H.R. 901, Official Journal

of the La. House of Representatives, pp. 11-12, 34-35, May 23,

1986. But before enactment, the statute was changed to limit the

right to counsel to target witnesses only. The only reasonable

explanation for this change is that the legislature believed that

non-target witnesses did not need counsel present because blanket

immunity prevented a non-target witness from being harmed by his

own testimony. Thus, the legislative history doubly supports the

conclusion that the legislature intended to immunize the testimony

of all non-target witnesses.

This interpretation is confirmed when one considers the

problems the majority’s approach will present. Under the

majority’s interpretation, non-target witnesses will be at a severe

disadvantage and receive far less protection than target witnesses.

Although non-target witnesses subpoenaed to testify at grand jury

proceedings can still invoke their Fifth Amendment privilege

against self-incrimination, they, unlike target witnesses, will not

have counsel present to advise them of when to invoke this right.

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Additionally, if they do not invoke these protections, their

testimony can be used against them at any subsequent proceeding,

even if they are not aware that they are being targeted. Finally,

prosecutors will be able to use the grand jury process to

interrogate witnesses without the presence of counsel and then use

that testimony against the witness in any subsequent proceeding.

This power is extensive because a prosecutor can always convene a

new grand jury or initiate criminal proceedings with a bill of

information, thus bypassing the extremely limited immunity under

the majority’s cramped interpretation of the statute. These

consequences will cause non-target witnesses to be exceedingly

reluctant to testify for fear of future prosecution and will make

it difficult to encourage open and honest grand jury proceedings,

which is a primary basis for the process. There is no indication

that the legislature ever contemplated that this would be the

result of passing the statute.

For the foregoing reasons, I believe the legislature intended

for article 433(A)(2) to provide immunity to all non-target

witnesses, including those who later become targets in any

subsequent proceeding. Because Martin falls within this category,

I would reverse the district court’s denial of a Kastigar hearing

and remand so that this hearing can take place.

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