dissenting as to Parts I, II, & III:
In his petition for rehearing, the Independent Counsel (“IC”) argues that the prohibitions of the use-immunity statute, 18 U.S.C. § 6002, do not extend to the government’s use of witnesses who have independently exposed themselves to immunized testimony. Although the claim that the statute does not cover any such witness exposure is problematical, I do agree, as my earlier dissent reflects, that the statute does not require that independent witness exposure and prosecutorial exposure be treated identically for prophylactic purposes. Since, as the IC’s petition forcefully points out, my colleagues’ original opinion effectively transformed a limited use immunity into a sweeping transaction immunity, I would grant the IC’s petition for rehearing on the Kastigar issue. By exalting form over substance, the original per curiam eviscerates both the use-immunity and independent-counsel statutes; its consequences for future cases of public import are ominous.
I. Kastigar Requirements
A. The Problem with the Original Opinion
The Supreme Court has recognized that use immunity is coextensive with the fifth amendment privilege. Accordingly, restrictions on the use of immunized testimony are exacting.
[T]he prosecution [bears] the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972).
This “very substantial protection,” id. at 461, 92 S.Ct. at 1665, while reflecting the importance of the constitutional values at stake, was not meant to make the prosecution’s burden an impossible one. The use-immunity statute makes a precise accommodation between the privilege against self-incrimination and the public’s legitimate interest in securing testimony; use immunity thus exists in a delicate tension with the fifth amendment.
By mandating additional — and practically unattainable — requirements not found in Kastigar itself, my colleagues have upset this tension. They have rendered impossible in virtually all cases the prosecution of persons whose immunized testimony is of such national significance as to be the subject of congressional hearings and media *952coverage. In their opinions, my colleagues have ruled that Kastigar requires at least four distinct showings, only the first two of which can be derived from Kastigar itself. First, the prosecutors must demonstrate that they avoided “significant exposure” to the immunized testimony. Majority Opinion (“Maj. op.”) at 859. Second, the prosecution must demonstrate that its identification and questioning of witnesses was based solely on “independent leads” — without the use of immunized testimony. Maj. op. at 863. Third — a new requirement, appearing for the first time in the opinion denying rehearing — the prosecution must demonstrate that the immunized testimony did not “motivate[]” its witnesses to testify. Opinion on Petition for Rehearing at 942. And fourth, the prosecution must demonstrate that the testimony of witnesses “exposed” to immunized matter has been “ ‘canned’ by the prosecution before such exposure.” Maj. op. at 872.
The last and most stringent of these requirements — that witness testimony be pre-recorded — is certainly an unwarranted departure from current law. For this reason, it deserves quotation at some length.
[T]he District Court must hold a full Kastigar hearing that will inquire into the content as well as the sources of the grand jury and trial witnesses’ testimony. That inquiry must proceed witness-by-witness; if necessary, it will proceed line-by-line and item-by-item. For each grand jury and trial witness, the prosecution must show by a preponderance of the evidence that no use whatsoever was made of any of the immunized testimony either by the witness or by the Office of Independent Counsel in questioning the witness. This burden may be met by establishing that the witness was never exposed to North’s immunized testimony, or that the allegedly tainted testimony contains no evidence not “canned” by the prosecution before such exposure occurred.
Maj. op. at 872-873 (latter emphasis supplied). Although my colleagues now maintain that they did not intend to rule that pre-recording was the only way the prosecution could demonstrate that the testimony of a witness exposed to immunized testimony was admissible, the words of the per curiam are clear: either can the witness or can his testimony.1
My colleagues invoke United States v. Rinaldi, 808 F.2d 1579 (D.C.Cir.1987), to support that radical extension of current law. Yet Rinaldi does not even suggest that the witness’ original knowledge need be or was pre-recorded. Instead, the Ri-naldi court indicated a far more lenient rule of inevitable discovery — the prosecution need only show that “the police would inevitably have learned the [facts] from [the witness].” 808 F.2d at 1583 (emphasis supplied). As set forth in my original dissent and outlined below, I believe that Judge Gesell’s findings clearly established such inevitable discovery. See Dissenting Opinion (“Diss. op.”) at 917, 922-923.
My colleagues’ extension of Kastigar is infirm not only because, as the IC suggests, it is unrooted in existing law, but also because it effectively emasculates both use immunity and the Office of the Independent Counsel.
A uniform requirement of pre-recording witness knowledge in exquisite detail is unworkable. As even the greenest trial lawyer knows, the accrual of evidence is interactive — the statements of one witness often suggest new questions for earlier witnesses. Pre-recording of every line of every witness’ trial testimony in every prosecution in which a defendant might publicly offer immunized testimony would ultimately prove unfeasible.
The consequences of a pre-recording requirement are both predictable and troubling. Prospective targets of grand juries *953in national scandals would line up to testify before Congress, in exchange for what is effectively transaction immunity. A requirement of “nonuse” would be converted into a guarantee of nonprosecution. Moreover, as the IC notes, with regard to crimes involving government corruption, the IC and Congress have parallel responsibilities. Petition at n. 1. A pre-recording requirement compels Congress to delay congressional hearings until all of the testimony of all potential witnesses has been pre-recorded; in doing so, this requirement unduly burdens Congress’ exercise of its legitimate authority to hold important public hearings.
The Supreme Court has said that use immunity “grants neither pardon nor amnesty.” Kastigar, 406 U.S. at 461, 92 S.Ct. at 1665. But the majority’s excruciatingly heightened Kastigar requirements run counter to Congress' express assertion that “the [use-immunity] provision is not an ‘immunity bath.’ ” H.Rep. No. 91-1188, 91st Cong., 2d Sess. at 12 (1970) (citing United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943)).
The interpretation of Kastigar offered in the original per curiam opinion also conflicts with the congressionally-bestowed responsibilities of the IC. Congress created the IC Office pursuant to its Article II authority “to enact laws to guard against the evils of massive conflicts of interest involved in the enforcement of federal criminal law against the highest officials of government.” In re Olson, 818 F.2d 34, 43 (D.C.Cir.Indep.Couns.Div.1987) (emphasis in original). Congress acted on the basis of
fifty years of the nation’s history involving the Teapot Dome, Truman Administration, and Watergate scandals [which] demonstrated a generally recognized inability of the Department of Justice and the Attorney General to function impartially with full public confidence in investigating criminal wrongdoing of high-ranking government officials....
818 F.2d at 42. Accordingly, the IC Office serves a critical role in our constitutional system of checks and balances. See generally Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). It safeguards the primary precondition for government under law: that no one sit in judgment of his or her own case.
My colleagues’ extension of Kastigar thwarts Congress’ central purpose in creating the Office of the IC. Congress required the appointed counsel to be truly independent and its authority exclusive; Congress thus required that “the Department of Justice, the Attorney General, and all other officers and employees of the Department ... suspend all investigations and proceedings” on matters within the IC’s jurisdiction. 28 U.S.C. § 597. Yet in its expansive interpretation of Kastigar, the majority provides an easy out for conflicted government officials; they can immunize their colleagues from prosecution by exposing themselves to immunized testimony. In this case it was insiders — high government officials — who “soaked” themselves in North’s immunized testimony. To raise an insurmountable bar against the admission of the testimony of these officials, however necessary it might be to the prosecution, critically undermines the authority and independence of the IC in cases of self-defined conflict on the part of government officials.
The majority is correct in noting that, if Kastigar is read only to apply to exposure of prosecutors, then “a private lawyer for a witness sympathetic to the government could listen to the compelled testimony and use it to prepare the witness.” Opinion on Petition for Rehearing at 942. But it is also true that if Kastigar is read to require pre-recording of all government-witness testimony, then a witness hostile to the government could “listen to the compelled testimony and use it” to insulate himself from testifying.
There must be a middle ground, and I believe the case should be reheard (by the panel or en banc) to find it. The significance of these issues for the prosecution of future governmental scandals and for the effective functioning of separation of powers is too great to let the overreach of the *954original opinion (or my colleagues’ undefined backtracking) stand.
B. Prosecutorial Exposure v. Independent Witness Exposure
No prior decision has articulated the proceedings Kastigar requires in cases involving widely disseminated immunized testimony. The trial judge here labored in uncharted territory. In cases like North’s several goals and values must be accommodated: the immunized person’s fifth amendment privilege; Congress’ purposes in enacting the use-immunity statute; the function and integrity of the Office of the IC; and the government’s need for workable guidelines.
As the IC’s petition highlights, the central conceptual weakness of the majority’s analysis is its failure to recognize that a prosecutor’s exposure to immunized testimony and a witness’ independent exposure to such testimony raise related but distinct issues. By holding to the same standard witnesses who have “thoroughly soaked” themselves in immunized testimony and prosecutors who have assiduously avoided the slightest taint, the majority renders virtually impossible any prosecution of an immunized defendant who testifies publicly-
Prosecutorial use of immunized testimony is the paradigmatic violation of the use-immunity statute and prosecutorial exposure is, thus, at the heart of use immunity. Indeed, as the IC’s petition points out, virtually every prior ease concerning use immunity involved prosecutorial knowledge of immunized testimony. We all agree that prosecutors must avoid “significant exposure” to immunized testimony, develop independent leads to witnesses, and refrain from using immunized testimony to lead or coach those witnesses. In this regard, the prosecution bears the continuous and uninterrupted burden of persuasion, and in this case, no one disputes that the IC has met that burden. Maj. op. at 859; Diss. op. at 921.
Independent witness exposure poses a different problem. Despite the prosecution’s diligent, and often extraordinary, prophylactic measures, witnesses may, for a variety of reasons, “soak” themselves or be soaked by others in immunized testimony. For such witnesses, the prosecutor’s burden to show nonuse should arguably be quite different. Initially, the prosecutor must establish a prima facie case that a witness’ testimony does not constitute a prohibited “use.” This initial burden should, however, be met, as it was in the North case, by a five-factored showing:
(i) the prosecution must demonstrate that the identification of witnesses was wholly independent from immunized testimony;
(ii) the prosecution must demonstrate that the questions it directs to witnesses are wholly independent from immunized testimony;
(iii) at any grand jury proceedings, the prosecution must direct witnesses to base their answers solely on personal knowledge;
(iv) at trial, the judge must similarly instruct witnesses; and
(v) before the trial begins, the prosecution must deliver to the defense all recorded statements of witnesses, including grand jury testimony and any other interviews or statements.2
Collectively, these requirements should be sufficient to establish a prima facie case that any testimony offered at trial by the IC is untainted.
Upon establishment of a prima facie case, the defense then bears a burden to produce some specific evidence that the testimony — either in source or content — is tainted; upon such production, the court is required to hold a hearing on the alleged taint. The defense need only produce specific, not conclusive evidence, for as Hasti-*955gar suggests, the prosecution always bears the burden of ultimate persuasion. Specific evidence might include a pattern of recollection or specificity that suggests taint, or contradictions between recorded and unrecorded testimony. As the Supreme Court stated in another allocation-of-burdens context, “[i]t is sufficient [that] the defendant’s evidence raises a genuine issue of fact” as to whether the witness’ testimony is tainted. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).
This allocation of burdens would be one way to reconcile the several constitutional values and statutory commands implicated by prosecutions like North’s. As the Supreme Court has noted
This burden-shifting principle is not new or novel. There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, “is merely a question of policy and fairness based on experience in the different situations.”
Keyes v. School District No. 1, 413 U.S. 189, 209, 93 S.Ct. 2686, 2698, 37 L.Ed.2d 548 (1973) (citations omitted).
Whether or not the best resolution of these values lies in burden shifting, the important thing is that the use-immunity statute be construed so as to accommodate the real difference between prosecutorial exposure and use — the central danger posed by use immunity — and witness exposure, which is more diffuse and beyond the immediate control of the prosecution. Respecting this critical difference, this court should seek to provide a workable and attainable standard that guarantees the integrity of use immunity while allowing for a cautious and untainted prosecution.
C. Kastigar Proceedings in This Case
My earlier dissent cataloged the thorough, if tedious, Kastigar procedures employed by the trial court. Diss. op. at 914-917. These efforts — unrebutted by any showing of taint by the defense — ensured that there was no “use” of North’s immunized testimony and thus no reversible error.
The trial court clearly and correctly found that the IC office fully insulated itself from exposure to immunized testimony.
The content of the testimony of all but one of the relevant grand jury witnesses was “canned” before North testified— and the testimony of that witness was cumulative with other canned testimony. The court’s “preliminary” Kastigar finding — analogous to the prima facie showing suggested above — was based on a thorough reading of preliminary witness interviews and the grand jury record.3 The trial court precisely and cautiously instructed trial witnesses to testify based solely on personal knowledge; indeed, the court instructed that any doubt should be resolved in favor of not testifying.4
*956Based on knowledge of the preliminary interviews and grand jury testimony, the court was able to determine that no tainted testimony was introduced at trial.
The IC delivered relevant grand jury testimony to the defense, enabling the latter to challenge any testimony as tainted.
Upon consideration of North’s post-trial motion for a second Kastigar hearing— analogous to the burden of production suggested above — the court found “few new issues” and “no new information” suggesting taint, and, accordingly, denied the motion.
Taken together, all of these procedural protections and the continued diligence of the trial court made clear that no testimony was tainted by North’s immunized testimony and thus that no illegal “use” of immunized testimony was made. The majority’s remand for a “line-by-line” re-examination of the source (and perhaps the motivation) of the testimony of every prosecution witness and its mandate that the prosecution prove — by pre-testimony canning or some undefined functional equivalent — that all testimony was untainted represents an unneeded and unprecedented incursion into the trial court’s discretion in managing a fair trial.5
II. Constitutional Questions
To hear my colleagues tell it, the Kasti-gar analysis I have outlined “lessen[s]” and “subordinares North’s] constitutional rights.” The majority reasons that because use immunity is “coextensive” with the scope of the fifth amendment privilege, Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661, any violation of the immunity statute is a violation of the Constitution. Assuming this is correct, and that it is the Constitution we are expounding, then we should begin by looking at relevant interpretations of what the fifth amendment requires.
Although in theory and rhetoric the fifth amendment privilege against self-incrimination is often cast as absolute, the bar on the admission of evidence acquired pursuant to6 a fifth amendment violation is less than absolute.7 Even though a confession is coerced, evidence secured pursuant to that confession will only be suppressed if it is deemed to be “fruit of the poisonous tree.” Harrison v. United States, 392 U.S. 219, 222-24, 88 S.Ct. 2008, 2010-11, 20 L.Ed.2d 1047 (1968); cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). “The exclusionary rule ... does not apply if the causal connection between the information obtained illegally and the proof offered by the prosecution has ‘become so attenuated as to dissipate the taint.’ ” United States v. Davis, 617 F.2d 677, 688 (D.C.Cir.1979) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939)), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980).
For example, the Supreme Court has recognized that a coerced first confession inevitably influences a second confession, but has ruled that the later confession is admissible if there is a “ ‘break in the stream of events ... sufficient to insulate’ ” the sec*957ond confession from the first.8 Darwin v. Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630 (1968) (quoting Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967)). In such rulings, the Court has not held that successive confessions are not causally related; indeed the Court has expressly indicated its recognition that they are.
[A]fter an accused has once let the cat out of the bag by confessing, ... he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.
United States v. Bayer, 331 U.S. 532, 540-41, 67 S.Ct. 1394, 1398-99, 91 L.Ed. 1654 (1947); see also Davis, 617 F.2d at 689.9
If evidence connected in some fashion to a fifth amendment violation may be admissible if its connection to the violation is sufficiently remote, and use immunity is coextensive with the fifth amendment privilege, then it would stand to reason that the exclusionary mandate of the use-immunity statute may also be limited as the proffered evidence becomes more and more remote from the original immunized statement. That is, at some point the link between the initial utterance (whether a coerced confession or immunized testimony) and the ultimate evidentiary “use” becomes so attenuated as to be constitutionally irrelevant. In such an eventuality, the government’s burden of disproving taint would certainly be modified accordingly.10
Indeed this proposition is well supported in the legislative history of the use-immunity statute. Explaining § 6002’s prohibition on the use of immunized testimony or “any information directly or indirectly derived from such testimony,” Congress, citing Wong Sun, indicated that some “use” of immunized testimony may be so attenuated as to be outside the scope of the Constitution and the statute. H.Rep. No. 91-1188, 91st Cong., 2d Sess. 12 (1970). As Justice Blackmun has noted in concluding his review of the statute, “References to the ‘fruits’ doctrine are scattered throughout the legislative history.” Pillsbury Co. v. Conboy, 459 U.S. 248, 277, 103 S.Ct. 608, 624, 74 L.Ed.2d 430 (1983) (Blackmun, J., concurring) (collecting authorities).
Thus the nexus of use immunity and the fifth amendment privilege raises many problematic issues. Perhaps, at some point, testimony by exposed witnesses is so far removed from the immunized source as to no longer be “fruit of the poisonous tree.” Perhaps independent witness exposure is so tangentially related to the immunized *958statement as to warrant the sort of eviden-tiary scheme I have outlined.11
I raise these points not to answer them, but to emphasize that we tread on virgin ground here. And, if as my colleagues maintain, this is constitutional territory, then there is all the more reason for the most careful consideration before we lay down absolute and intolerable burdens on the prosecution in a media-dominated age. My colleagues are certainly correct that “the political needs of the majority ...' never, never, never should trump an individual’s explicit constitutional protection.” But this is only to beg the question: How far does the fifth amendment’s “explicit constitutional protection” extend? The question is a deep and unsettled one in current constitutional law. Our answer to date is unsatisfying and cries out for thoughtful reconsideration.
When all is said and done, the issue comes down to whether the Constitution requires that the trial judge conduct a full-scale hearing as to the source of every line of testimony emanating from any witness who has been exposed to immunized testimony, wholly independent of any action by the prosecutor, and even when the defense can provide no evidence whatsoever that the witness was influenced by the exposure. I conclude that such an absolute requirement is not self-evident from past interpretations of the fifth amendment. Indeed, the plethora of arguments about the scope of the Kastigar requirements spawned in my colleagues’ North I and II opinions only underscores the uncertain legal basis of the original decision.
III. Authorization and Intent
The IC also challenges the per curiam holding that 18 U.S.C. § 2071(b) “requires subjective knowledge of unlawfulness for conviction.”12 Maj. op. at 886 (emphasis in original). As the IC suggests, it seems difficult to reconcile this requirement with the majority’s express rejection of the infamous “Nuremberg defense” that “following orders ... can transform an illegal act into a legal one.” Maj. op. at 881. Indeed, I can think of no way to harmonize the rejection of the “following-orders” defense with the claim that a jury may acquit a defendant who relied on an admittedly unreasonable belief that he was “authorized” to commit what he otherwise knew was an unlawful act. Unfortunately, this novel holding has broad implications; as the petition notes, twenty-six federal criminal statutes contain wording similar to that in 18 U.S.C. § 2071(b). Petition at 13. Under any one of them, a defendant can now be found to lack the requisite intent, even though he knew an act was otherwise unlawful, if he unreasonably relied on a vague instruction from a superior official. This cannot be the law and the majority’s ruling that it is clearly warrants rethinking.13
Conclusion
The implications of the original per cu-riam are profound and pervasive, as to *959both the use-immunity and the authorization-intent issues.14 It is difficult to think of a case of more exceptional importance, or, consequently, a case more worthy of rehearing by the panel or by the court en banc.
Before WALD, Chief Judge, MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON, and RANDOLPH, Circuit Judges.ORDER
PER CURIAM.Appellee’s Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is
ORDERED, by the Court en banc, that the suggestion is denied.
Circuit Judges MIKVA and EDWARDS did not participate in this matter. Chief Judge WALD would grant the suggestion for rehearing en banc on the grounds set forth in her dissent from the original panel decision and from the denial of rehearing by the panel. Circuit Judge RUTH BADER GINSBURG would grant the suggestion for rehearing en banc with respect to the Count 9 Authorization Instructions only. Her statement is attached.. My colleagues’ revised standard offers precious little guidance to the court below on remand, or to trial courts generally. It is not enough to note that it may well be extremely difficult for' the prosecutor to sustain its burden" and that this court "did not mean to pre-elude the use of any techniques of which we are not aware." In reversing the court below, it is this court’s obligation to offer meaningful and workable guidelines to that court on remand, as well as to future courts in similar situations,
. Some material — such as preliminary interviews and nontestimonial grand jury proceedings — were delivered to the defendants after trial. Joint Appendix (“J.A.") at 591. Ideally these materials should have been available before trial, Nonetheless, the defense, equipped with all of these materials, has not identified any specific incidence of — or indication of — tainted testimony.
. Although my colleagues maintain that the testimony of Robert McFarlane lies "at the core of this dispute,” I do not understand how. My colleagues suggest that McFarlane "changed his testimony before Congress after hearing the immunized testimony, and then presumably told the modified version to the trial jury." Opinion on Petition for Rehearing at 944.
The majority’s argument is flawed in two ways. First, that McFarlane changed his congressional testimony implicates his credibility but says nothing about the consistency of his grand jury and trial testimonies. Second, Judge Gesell was thoroughly familiar with the grand jury testimony, J.A. at 316-44, and thus would have noted any inconsistency between McFar-lane’s grand jury and trial testimonies. No one has noted any such divergence — and not for lack of opportunity. Equipped with McFar-lane's grand jury testimony, the defense was capable of identifying any inconsistency at trial, in its post-trial motion, in its appeal brief, in its reply brief, at oral argument, or in its response to the petition for rehearing. It failed to do so at every turn. From this scenario, the trial judge rightly concluded that McFarlane’s testimony — given pursuant to a strict judicial instruction that his testimony be based solely on his personal knowledge, see note 4 infra — was not tainted by North’s immunized testimony.
. The wording of this judicial admonition — delivered individually to each witness — is worth quoting. ,
Before we get started, [name of witness], I want to be sure you understand the rules under which we are operating here. You are not to testify to any matter, except for matters you know of your own personal knowledge.
*956You are not to testify to anything that you learned because you heard, read or listened to any portion of Col. North’s testimony up before the Iran-Contra proceeding. And if you are asked a question and you don't know in your own mind whether your answer is derived from his testimony or something you know independently, you are not to answer it. Do you follow me?
J.A. at 1041; see also J.A. passim.
. Needless to say, I take strong exception to my colleagues’ characterization of the trial judge’s proceedings as merely the "wav[ing of] a wand of benediction” and his conclusions of law as mere "assertions.” I do not find such remarks apt, necessary, or helpful.
. By "acquired pursuant to” I mean evidence whose acquisition is causally related — in some degree — to the constitutional violation.
. Although my colleagues purport to distinguish between questions of causation and agency, they offer no constitutional basis for this distinction nor any statutory basis for its importation into the law of use immunity. The question of who may use tainted evidence, of course, rarely, if ever, arises in other kinds of fifth amendment cases; accordingly, my colleagues’ suggestions are at best speculative.
. When a statement is obtained in violation of a defendant’s Miranda rights, an even broader range of derived information is admissible. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); cf. United States v. Bengivenga, 845 F.2d 593, 601 (5th Cir.) (holding that “a mere violation of Miranda's ‘prophylactic’ procedures does not trigger the fruit of the poisonous tree doctrine”), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988).
. This line of cases seems to cast doubt on the majority’s claim that the prosecution must always prove that immunized testimony did not motivate witnesses to testify. Opinion on Petition for Rehearing at 942. If a second confession motivated by a coerced first confession may be admissible because it is sufficiently removed from the coerced confession, then witness testimony "motivated” by immunized testimony may also be admissible because the causal connection between the two is too remote.
. My colleagues’ incantation that Kastigar prohibits "any use” of immunized testimony is at best unhelpful. First, in finding that use of immunized testimony constituted harmless error, courts do not hold that there was not any use — but rather that such use was not sufficiently prejudicial to warrant reversal. See United States v. Serrano, 870 F.2d 1, 16 (1st Cir.1989) (collecting authorities). Moreover, what is at issue in this case is not whether immunized testimony was used in obtaining North’s conviction, but rather whether "any information directly or indirectly derived” from immunized testimony was used. 18 U.S.C. § 6002; cf. United States v. Kurzer, 534 F.2d 511, 515 (2d Cir.1976). Congress did not address the issue of derivation with a simplistic "never, never, never" but instead invoked the "poisonous tree” rule of Wong Sun.
. I do not argue that, in cases of independent witness exposure, Kastigar protections can, in the words of my colleagues, “be easily evaded." Rather I simply stress that independent witness exposure is different from prosecutorial exposure, and that that difference deserves recognition.
My colleagues’ invocation of New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), is therefore inapposite. Portash dealt with the direct use of a defendant’s immunized testimony by the prosecutor to impeach his testimony at a criminal trial. The issue before us, of course, is far removed from Portash; it involves the proceedings necessary to prevent any untoward effects arising from the exposure of third-party witnesses to immunized testimony through the media.
. I do not agree with my colleagues’ claim that the IC "expressly conceded” this point at oral argument. Opinion on Petition for Rehearing at 949. My review of the record, briefs, and transcript indicates that there was no concession — a conclusion reinforced by Judge Ruth B. Ginsburg's incisive analysis of the dialogue between IC counsel and this court. See Statement of Judge Ruth B. Ginsburg Dissenting from Denial of Rehearing En Banc. Moreover, even if my colleagues’ view of this exchange were correct, a concession is not the appropriate vehicle for deciding the future law of this circuit.
. I feel compelled to take issue with my colleagues’ suggestion, Opinion on Petition for Rehearing at 950, that I have acquiesced in their interpretation of 18 U.S.C. § 2071(b) as requiring "subjective knowledge of unlawfulness.” Maj. op. at 886 (emphasis in original). In fact, my original dissent directly challenged this analysis at some length. See Diss. op. at 928-929, 930-932.
. I gladly join my colleagues in the vacation of Section II of the original per curiam which reversed North's conviction on Count Nine because of the trial court’s failure to issue a unanimity instruction. Although I thought such an instruction unnecessary even on the (erroneous) assumption that three episodes of document handling were involved, it is of course even clearer now that the trial judge was correct in the first place.