(dissenting).
[¶ 26.] I respectfully dissent on issue one.
*730[¶ 27.] On June 19, 2000, the trial court held a Kastigar hearing to determine whether the State’s evidence to be used against Koehn was derived directly or indirectly from Koehn’s immunized testimony. After hearing testimony from the leading investigator, DCI Agent Beyer, the trial court held that “there was no evidentiary advantage to the prosecution contained in the immunized testimony of Mr. Koehn.” The trial court further found that the evidence to be used was “derived from legitimate sources wholly independent of the Defendant’s grand jury testimony.”6
[¶ 28.] The State and Koehn agree that our inquiry into the propriety of the State’s use of immunized testimony is controlled by Kastigar, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212. In Kastigar, the United States Supreme Court held that the grant of immunity by the government must be coextensive with the privilege against self-incrimination under the Fifth Amendment. 406 U.S. at 453, 92 S.Ct. at 1661, 32 L.Ed.2d 212. In so holding, the Court announced that the government has a “heavy burden” of proving that the evidence to be used by the government was not “directly or indirectly” procured from the immunized testimony.
[¶ 29.] Relying on Kastigar, the Eighth Circuit Court of Appeals added:
[T]o enforce the statutory prohibition on any use if the immunized testimony and adequately protect the witness’s fifth amendment privilege, an immunized witness subsequently prosecuted need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources. This burden, the Court explained, provides a very substantial protection; it is not limited to a negation of taint, rather it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
United States v. Garrett, 797 F.2d 656, 659-60 (8th Cir.1986) (internal citations omitted). Therefore, since there is no dispute that Koehn’s testimony was compelled, and he was then granted immunity, the State had a substantial burden in showing that the evidence to be used in Koehn’s prosecution not only was free from taint, but also that it came from wholly legitimate sources.
[¶ 30.] At the Kastigar hearing, Agent Beyer stated that he used Koehn’s immunized testimony to contact potential witnesses. Further, when asked if it would be helpful to know what the defense will be, Agent Beyer answered: “I suppose. If you are playing in a football game and you know what play is coming, I suppose that helps.”
[¶ 31.] In addition, Koehn called the special prosecutor, Rod Lefholz, at the Kastigar hearing to determine whether the prosecution had procured evidence to be used at trial stemming from Koehn’s immunized testimony. The trial court prevented Koehn from calling Lefholz as a witness. Koehn, however, made an offer of proof where he would ask Lefholz questions relating to his preparation for trial and the grand jury testimony. In other words, Koehn attempted to delve into Lef-holz’ state of mind to determine what ef-*731feet the grand jury testimony had on his handling of the ease.7
[¶ 32.] In interpreting Kastigar, there is a split of authority among the federal circuits in defining the proper use of evidence derived from immunized testimony. In the Eighth Circuit, the case of McDaniel, 482 F.2d 305, controls the scope of immunized testimony in federal court where “any use” taints the evidence used by the prosecution. In the Seventh Circuit, the Velasco case, 953 F.2d 1467, takes a narrower view than McDaniel on the proper use of immunized testimony. In McDaniel, the Eighth Circuit court held that immunity protection includes “all prosecutorial use of the testimony, not merely that which results in the presentation of evidence before the jury.” 482 F.2d at 311 (emphasis added). While the testimony adduced on cross-examination at the Kastigar hearing could be characterized as “non-evidentiary” rather than evi-dentiary, the Eighth Circuit does not draw a distinction between the two. As described above, the State made motions in limine and discovery motions based on Koehn’s grand jury testimony. The State also interviewed a witness that it gained knowledge of from the immunized testimony. Such use of testimony, under McDaniel, is clearly forbidden.8 The State has offered no evidence to the contrary.
[¶ 33.] The State urges this Court to follow the Velasco case. In rejecting McDaniel, the Velasco court stated that “the mere tangential influence that privileged information may have on the prosecutor’s thought process in preparing for trial is not an impermissible ‘use’ of that information.” 953 F.2d at 1474 (citations omitted). Therefore, according to Velasco, a prosecutor may read the grand jury transcript, be involved in the grand jury proceeding itself, and even file motions it would not have otherwise have filed but for the immunized testimony. It is important to note that the Velasco decision relies upon Mariani, 851 F.2d 595 for departing from McDaniel. In Mariani, however, the Second Circuit subscribed to the notion that “the government bears a heavy *732burden to show that the evidence it uses in the subsequent prosecution was not derived directly or indirectly from the witness’s immunized testimony” and “[t]o sustain its burden ... the government must prove that it ‘relied solely on evidence from legitimate sources.’” 851 F.2d at 600 (emphasis added).
[¶ 34.] The State, through the lone testimony of Agent Beyer, failed to show that it relied solely on evidence from legitimate sources. The entire Kastigar hearing revolved around Agent Beyer’s investigation of Koehn’s alleged drug use without any mention of whether the information used in his investigation came from legitimate sources. The State presented no evidence of legitimate sources at the Kastigar hearing, therefore, under either McDaniel or Velasco, the State in this case failed to meet its heavy burden of proving Koehn’s immunized testimony was not directly or indirectly used in his subsequent criminal trial. Based on this record, the State failed to carry its heavy burden under either of the aforementioned decisions.
[¶ 35.] As it is clearly evident that the State used Koehn’s immunized testimony, additional proceedings would be futile. Like the McDaniel case, “the unusual circumstances attending the controversy renders the government’s burden of proof in this case virtually undischargeable.”
[¶ 36.] For these reasons, I would reverse and remand, vacating Koehn’s conviction with instructions to dismiss the case.
. A review of the Findings of Fact made by the trial court does not disclose specifically the independent sources claimed by the prosecution. Rather, the court generally found, based on the testimony of one witness and the transcript of the grand jury proceeding, that all evidence to be used against Koehn came from legitimate sources.
. For example, the record reflects that the special prosecutor made a pre-trial discovery motion to procure Koehn's medical records. During the grand jury testimony, Koehn admitted that he suffered from a bipolar mental condition, which is why, he explained, he smoked marijuana. While the significance of the medical records themselves may be of little value, it does show that the immunized testimony had some effect on how the prosecutor was handling the case. Like the McDaniel case, "we cast no reflection upon the integrity or motives of the [special prosecutor] .... Thus, although he asserts he did not use [Koehn's] testimony in any form, we cannot escape the conclusion that the testimony could not be wholly obliterated from the prosecutor’s mind in preparation and trial of the case.” 482 F.2d 312.
. It is important to note that special prosecutor Lefholz conducted the grand jury proceeding and DCI agent Beyer was present to hear the grand jury testimony of Koehn. In McDaniel, the Circuit Court found a violation of Koehn's Fifth Amendment privilege due merely from the prosecutor reading the defendant's immunized testimony.
[O]nce the subject matter was touched upon in the privileged testimony, and the prosecutor had read it, he could have used it in a variety of ways in this criminal prosecution. The possibility of such use, and the impossibility of clearly showing that the use did not occur calls for a holding in this case that the defendants were denied the constitutional protection that their silence would have given them.
McDaniel, 482 F.2d at 311-12 (citing United States v. Dornau, 359 F.Supp. 684 (S.D.N.Y.1973)). Under McDaniel, the fact that Lef-holz and Beyer had read the grand jury testimony alone is sufficient for this Court to find a Kastigar violation. If we were to follow McDaniel, the examples of the special prosecutor's use of immunized testimony, however tangential, only support our decision to reverse the trial court.