dissenting.
I respectfully dissent from the majority’s opinion which affirms the convictions of Fili-berto E. and Rosario Montoya. The majority mistakenly rejects the Montoyas’ arguments that this prosecution is tainted because of improper use of Filiberto Montoya’s immunized testimony and that the indictment was based on vindictive prosecution.1
*1301Non-evidentiary Use of Immunized Testimony
In this ease, the crucial issue is whether the Government has demonstrated that it did not use the immunized testimony, directly or indirectly, in prosecution of the Montoyas, as required by Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and the precise wording of the applicable statute.2 Here, the Government has failed to meet its burden of proof under Kastigar and this court’s precedent. To the contrary, the evidence indicates that AUSA Reese, the original prosecutor, used Filiberto Montoya’s immunized testimony before the grand jury in January 1989 to compare it to prior information contained in the investigation report and also to Montoya’s testimony at the Oklahoma trial in May 1989.
As a result of the comparison, AUSA Reese concluded that Filiberto Montoya had testified untruthfully before the grand jury and in Oklahoma. Rather than prosecuting Montoya for perjury, AUSA Reese initiated the steps leading to the prosecution of the Montoyas for the crimes of which they were ultimately convicted. AUSA Reese’s recommendations were set forth in the memorandum to the United States Attorney requesting permission from the Department of Justice to prosecute Montoya for conspiracy to commit bank and mail fraud and money laundering, in addition to the substantive offenses. AUSA Meza and AUSA Weiner, the subsequent prosecutor, were exposed to this recommendation. The prosecutors improperly used Filiberto Montoya’s immunized testimony to initiate a case against the Monto-yas.
The crucial question before us is whether the Government indirectly used Filiberto Montoya’s immunized testimony to indict the Montoyas? The decision to initiate prosecution of an immunized witness may be considered .non-evidentiary use of immunized testimony. United States v. Crowson, 828 F.2d 1427, 1430 (9th Cir.1987) (citing United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.1973)).3
As construed by the Supreme Court, 18 U.S.C. § 6002 “provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom ...” Kastigar, 406 U.S. at 460, 92 S.Ct. at 1664. “This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an ‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.” Id.
The record indicates that AUSA Reese used Filiberto Montoya’s immunized testimony as an investigatory lead in deciding to initiate prosecution of the Montoyas which is explicitly prohibited by Kastigar. The investigatory lead is a significant use of the immunized testimony. Even if the Government had evidence derived from legitimate independent source, the Government significantly used Filiberto Montoya’s immunized testimony in deciding to initiate prosecution.
The Government, however, failed to show that its decision to initiate prosecution did not rely on AUSA Reese’s conclusion that Mr. Montoya should be prosecuted because of his failure to fully cooperate during the grand jury investigation and at the Oklahoma trial. The record indicates that AUSA Reese resorted to using Montoya’s immunized grand jury and trial testimony to decide that *1302the prosecution ought to go forward, rather than initiating a prosecution of Mr. Montoya for perjury which is permissible under the statute.
The Government initially possessed information regarding Montoya’s connection to the Contreras family. Therefore, the Government did not need to grant Filiberto Montoya use immunity to obtain evidence of his participation in alleged criminal activity. The AUSA sought Montoya’s assistance in arresting and convicting the alleged drug smuggler, Jose Leonardo Contreras-Subias. The Government then granted Montoya use immunity in order to proceed with its ease against the Contreras-Subias organization. As the record shows, AUSA Reese became dissatisfied with Montoya’s immunized testimony before the grand jury and at trial. Of course, AUSA Reese became dissatisfied with Montoya’s testimony only by an examination of and comparison to the immunized testimony with other evidence. AUSA Reese’s comparisons and recommendation to prosecute the Montoyas based on the immunized testimony tainted the entire prosecution of the Montoyas in violation of their fifth amendment right against self-incrimination.
The district court and the majority opinion fail to recognize this important use of the immunized testimony and mistakenly conclude that AUSA Reese’s involvement was too remote from the criminal proceeding against Mr. Montoya to constitute non-evi-dentiary use of the immunized testimony. The majority opinion seems to adopt the rule that as long as the new prosecution relies on independent evidence that the Government previously possessed, the Government may use immunized testimony against an immunized defendant.
Neither Crowson nor United States v. Byrd, 765 F.2d 1524 (11th Cir.1985), answer the precise question before us. This court, in Crowson, stated:
We believe the government’s burden of showing that its evidentiary use of the immunized testimony was proper should not change merely because members of the prosecution team had access to the testimony. ‘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.’ [United States v.] Caporale, 806 F.2d [1487] at 1518 [ (11th Cir.1986) ].
A more difficult question is what proof or procedures the government must employ to carry its burden of showing that it made no non-evidentiary use of the immunized testimony. ‘Such [non-evidentia-ry] use could conceivably include assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.’ McDaniel, 482 F.2d at 311.
Crowson, 828 F.2d at 1430 (emphasis added). The Crowson court concluded:
The government has established a prior, independent source for all of the evidence introduced before ‘the second’ grand jury and at trial. Even assuming that this is insufficient to meet the government’s burden of showing that there was no non-evidentiary use of Crowson’s immunized testimony, we feel that there are other indications that the government did not indirectly use his testimony for non-evi-dentiary purposes despite its admitted access to that testimony.
Id. at 1431 (emphasis added). The emphasized statements above cannot be made here where AUSA Reese used and relied on the immunized testimony for bringing on the case.
In Byrd, the court recognized the “difficult question” whether Kastigar “prohibits any use of immunized testimony for [a] non-evidentiary purpose^]” Byrd, 765 F.2d at 1528-29. The court answered that question in the negative as a case of first impression in that circuit. I reject Byrd as inconsistent with the language of Kastigar and the unambiguous wording of the statute.4
*1303Vindictive Prosecution
A prima facie case of prosecutorial vindictiveness is established if a defendant shows either direct evidence of actual vindictiveness or facts that warrant an appearance of prose-cutorial vindictiveness. United States v. Sinigaglio, 942 F.2d 581, 584 (9th Cir.1991). Evidence indicating a realistic or reasonable likelihood of vindictiveness may give rise to a presumption of prosecutorial vindictiveness. United States v. Garza-Juarez, 992 F.2d 896, 906 (9th Cir.1993). The majority concludes that the Montoyas were unable to prove improper prosecutorial motive which would give rise to a presumption of vindictiveness. I, however, disagree.
In order to decide to initiate prosecution of the Montoyas, AUSA Reese compared the investigatory records, including Montoya’s immunized testimony, to determine whether Mr. Montoya testified falsely. After AUSA Reese determined, in his mind, that Montoya testified falsely, AUSA Reese could either prosecute Montoya for perjury, which he was apparently unwilling to do, or proceed against Montoya in another manner.
AUSA Reese decided to use all of the information which was initially gathered to prosecute Montoya, without giving Montoya a chance to defend his immunized testimony. AUSA Reese was not willing to prosecute Montoya initially because he wanted Montoya to testify against targeted defendants. When AUSA Reese became dissatisfied with Montoya’s testimony, AUSA Reese decided to initiate prosecution.
AUSA Reese, in sum, became judge and jury of Filiberto Montoya’s conduct. AUSA Reese did not have enough proof to proceed with perjury charges so he obviously decided to punish Mr. Montoya with using the information the Government always had to prosecute him, and then, for extra measure, proceeding to recommend prosecution of Mrs. Montoya.
The flaw in this scheme is that the Government should have prosecuted Montoya initially, rather than granting him immunity. AUSA Reese, however, resorted to subterfuge. If Montoya lied, AUSA Reese, under the statute, could have initiated a prosecution for perjury. Instead, he turned Montoya’s fifth amendment privilege against sqlf-in-crimination on its head, concluding that Montoya lied and AUSA Reese proceeded on a course to “fix” him.
I would not countenance that prosecutorial excessive zeal. To me, the evidence in the record indicates a realistic likelihood of personal pique and personal frustration which gives rise to a presumption of prosecutorial vindictiveness.
Accordingly, I would reverse the Monto-yas’ convictions.
. Technically, Rosario Montoya does not qualify for fifth amendment relief, as she gave no immunized testimony. The Government, however, agrees that her appeal shall be governed by the resolution on her husband's fifth amendment claims. Thus, we refer to both Montoyas as making the same claims.
. 18 U.S.C. § 6002 reads, in part:
Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
(l) a court or grand jury of the United States,
and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
18 U.S.C. § 6002 (emphasis added).
. The Crowson court recognized that United States v. Byrd, 765 F.2d 1524 (11th Cir.1985), suggests the contrary where the immunized testimony does not enter into the subsequent trial.
. United States v. Byrd, 765 F.2d 1524, 1531-32 (11th Cir.1985) (interpreting Kastigar as not requiring a court to inquire into a prosecutor's motives in seeking indictment and limiting the privilege against self-incrimination to protect only direct and indirect evidentiaiy uses of compelled testimony). This writer believes the language in Byrd is directly contrary to Kastigar.