Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the
Clerk of any formal errors in order that corrections may be made before the
bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2006 Decided July 14, 2006
No. 03-3134
UNITED STATES OF AMERICA,
APPELLEE
v.
NAVRON PONDS,
APPELLANT
Consolidated with
No. 03-3135
Appeals from the United States District Court
for the District of Columbia
(No. 02cr00495-01)
(No. 03cr00283-01)
Ketanji B. Jackson, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
2
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Roy W. McLeese, III and Mark H.
Dubester, Assistant U.S. Attorneys.
Before: ROGERS, TATEL and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal challenges the
government’s use of documents produced by Navron Ponds
pursuant to a grant of immunity under 18 U.S.C. § 6002. Ponds’
appeal of his convictions for tax evasion and fraud requires the
court to address the breadth of that immunity for an act of
production that, in its testimonial character, falls somewhere
between the response to a fishing expedition addressed in United
States v. Hubbell, 530 U.S. 27 (2000), and the production of
documents whose existence was a “foregone conclusion” in
Fisher v. United States, 425 U.S. 391 (1976). Because the
government has failed to show with reasonable particularity that
it knew of the existence and location of most of the subpoenaed
documents, we hold that Ponds’ act of production was
sufficiently testimonial to implicate his right against self-
incrimination under the Fifth Amendment to the Constitution.
Although the government, to some extent, violated its immunity
agreement with Ponds by impermissibly using his self-
incriminating testimony and its derivative evidence, questions
remain regarding the precise nature of its use and whether the
constitutional error was harmless beyond a reasonable doubt.
Accordingly, we reverse the judgment of conviction and remand
the case to the district court to determine the extent of the
government’s impermissible use and whether that use was
harmless beyond a reasonable doubt.
3
I.
In 1996, Navron Ponds, a criminal defense lawyer, agreed
to represent a drug dealer named Jerome Harris. See, e.g.,
United States v. Harris, 176 F.3d 476 (4th Cir. 1999). As a
retainer, Harris’s mother agreed to give Ponds a white 1991
Mercedes Benz 500SL, which Ponds registered in his sister’s
name. Harris pled guilty. At his sentencing, the district court
asked Harris about the whereabouts of the Mercedes for
forfeiture purposes. Ponds failed to inform the court that he had
the car. In 2000, when the United States Attorney’s Office for
the District of Maryland learned this from Harris, it began a
grand jury investigation of Ponds’ acquisition of the Mercedes
and his failure to reveal his possession of the car to the court,
focusing on potential charges of contempt of court, obstruction
of justice, and money laundering. See United States v. Ponds,
290 F. Supp. 2d 71, 74 (D.D.C. 2003).
Maryland Assistant United States Attorney (“MD-AUSA”)
Sandra Wilkinson executed a search warrant for Harris’s jail cell
to obtain the retainer agreement discussing the Mercedes.
Federal Drug Enforcement Administration agents went to
Ponds’ apartment complex, Albemarle House, looking for the
car. Parked outside were the Mercedes, and in another parking
space rented by Ponds, a Porsche with the vanity license plate “I
OBJECT.” According to apartment personnel, Ponds drove the
Mercedes and his sister, Laura Ponds Pelzer, drove the Porsche.
MD-AUSA Wilkinson issued a subpoena duces tecum ordering
Ponds to produce seven categories of documents and the
Mercedes. When Ponds expressed his intent to invoke his Fifth
Amendment privilege against self-incrimination, Wilkinson
revised the subpoena to omit requests that Ponds actually
produce the car and that he produce financial and tax records,
and filed a motion pursuant to 18 U.S.C. § 6003 for a judicial
order authorizing act-of-production immunity under 18 U.S.C.
4
§ 6002. The subpoena made six demands of Ponds to produce
“any and all documents” from 1996 forward:
1. Referencing use, ownership, possession, custody
and/or control of a white Mercedes Benz . . .;
2. That refer or relate to payment of legal fees by or on
behalf of Jerome Harris whether by cash, currency, or
some other form of payment;
3. That refer or relate to any vehicles in the custody or
control of Jerome Harris if access to that vehicle was
provided to you by any means, direct or indirect; and,
4. That refer or relate to Sloan Solomon, Christine Privott
[Harris’s mother] or Laura P. Pelzer [Ponds’ sister];
5. Any and all correspondence between the Law Offices
of Navron Ponds [and courts and prosecutors] in the
matter of U.S. v. Jerome Harris, PJM 96-0269;
6. Records of employees of the law Office of Navron
Ponds in the time frame of 1996 to the present.
The district court granted the immunity request and ordered
Ponds to produce the subpoenaed documents.
Armed with act-of-production immunity, Ponds appeared
before the grand jury and produced approximately 300 pages of
documents. The documents included records showing that: (1)
the Mercedes and Porsche were registered in the name of Ponds’
sister; (2) Ponds had financial accounts with his sister; (3) Ponds
and his sister sold a Georgia property they had jointly owned;
(4) Ponds possessed money order receipts used to pay for
various services, mostly involving the Mercedes; and (5) Ponds
5
had a health insurance document indicating he had purchased
insurance for himself and Magdalene Alexander. Ponds also
testified before the grand jury, responding to the prosecutors’
questions about the document production, including affirming
that the health insurance document was responsive to the
subpoena request for documents regarding his employees.
Magdalene “Maggie” Alexander, Ponds’ employee, was then
called before the grand jury, where she testified about many of
the produced documents and in detail about the process by
which she helped Ponds produce them.
Soon after Ponds responded to the subpoena duces tecum,
the Maryland United States Attorney’s Office filed an ex parte
application it had prepared before the subpoena response with
the Maryland federal district court to authorize the Internal
Revenue Service (“IRS”) to disclose Ponds’ 1996 and 1997 tax
returns. The application was granted, and the IRS reported that
Ponds had not filed tax returns in those years. Because Ponds
was a resident of the District of Columbia, the Maryland
prosecutors contacted the United States Attorney’s Office for the
District of Columbia about conducting a tax investigation of
Ponds. These contacts involved several meetings and the
transfer of documents produced by Ponds and of Maryland
grand jury transcripts to DC-AUSA Mark Dubester and IRS
Special Agent Nancy Becker.
The investigation continued, and in 2001, DC-AUSA
Dubester applied for search warrants on the basis of an affidavit
provided by Agent Becker that included information first
learned in the Maryland grand jury. Based on those
applications, the D.C. United States Attorney’s Office secured
warrants to search Ponds’ home and office, where Agent Becker
seized six boxes of documents. The documents revealed that
Ponds had used a tax preparer, and the preparer’s records were
subpoenaed, uncovering further details about Ponds’ financial
6
affairs. With these materials and others subpoenaed from
financial institutions, Ponds was indicted in the District of
Columbia on five counts of tax evasion under 26 U.S.C. § 7201,
one count of wire fraud under 18 U.S.C. § 1343, and one count
of fraud in the first degree under 22 D.C. Code §§ 3821(a),
3822(a)(1).
Ponds filed a pretrial motion for a hearing pursuant to
Kastigar v. United States, 406 U.S. 441 (1972), that would force
the government to “demonstrate that the charges in this matter
and the evidence it proposes to use . . . at trial do not derive
directly or indirectly from Mr. Ponds’s immunized testimony
and production of documents.” The district court conducted an
evidentiary hearing at which it heard testimony from Agent
Becker and MD-AUSA Wilkinson, and accepted proffered
testimony from DC-AUSA Dubester. See Ponds, 290 F. Supp.
2d at 73. The district court denied Ponds’ motion to dismiss the
indictment. Id. The jury convicted Ponds on all counts,1 and the
district court, upon denying Ponds’ motion for reconsideration
of the Kastigar ruling or for a new trial, sentenced Ponds to
twenty months imprisonment and restitution to the federal and
District governments. Ponds appeals.
II.
18 U.S.C. § 6002 provides that:
no testimony or other information compelled under [an
immunity] order (or any information directly or
1
In addition to the counts on which Ponds was indicted,
Ponds was convicted of five “failure-to-file” counts which were
charged by information. See 26 U.S.C. § 7203. The district court
vacated those convictions without prejudice to a government motion
to reinstate them if the convictions at issue here are vacated on appeal.
7
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.
This federal witness immunity statute has a constitutional
dimension, as the Supreme Court in Kastigar, 406 U.S. 441,
held that § 6002 “immunity from use and derivative use is
coextensive with the scope of the [Fifth Amendment] privilege
against self-incrimination” in that “[i]t prohibits the
prosecutorial authorities from using the compelled testimony in
any respect.” Id. at 453. Thus, at issue in document production
cases in which a witness with § 6002 immunity is subsequently
prosecuted are two basic questions: (1) Was the defendant’s act
of producing the documents sufficiently testimonial that the
Fifth Amendment privilege is implicated? (2) If so, did the
government violate the defendant’s Fifth Amendment rights
(and the court order granting him immunity) by using sources of
information derived from the immunized testimony in the
prosecution? See Hubbell, 530 U.S. at 29-30.
The Fifth Amendment declares that “[n]o person . . . shall
be compelled in any criminal case to be a witness against
himself.” U.S. CONST. amend. V. At one point in our history,
this declaration was taken to mean that the government could
not compel the production of private papers. See Boyd v. United
States, 116 U.S. 616, 634-35 (1886). In 1976, the Supreme
Court changed course, and it is now a “settled proposition that
a person may be required to produce specific documents even
though they contain incriminating assertions of fact or belief
because the creation of those documents was not ‘compelled’
within the meaning of the privilege.” Hubbell, 530 U.S. at 35-
36 (summarizing Fisher, 425 U.S 391). “[T]he act of producing
documents in response to a subpoena,” however, “may have a
8
compelled testimonial aspect” in that the act “may implicitly
communicate ‘statements of fact,’” such as the witness’s
admission “that the papers existed, were in his possession or
control, and were authentic.” Id. at 36 & n.19 (quoting United
States v. Doe, 465 U.S. 605, 613 & n.11 (1984)). Whether the
act of producing evidence in response to a subpoena is
sufficiently testimonial that the Fifth Amendment applies
“depend[s] on the facts and circumstances of particular cases.”
Fisher, 425 U.S. at 410.
Two Supreme Court cases provide the framework for our
analysis of the facts and circumstances of this case. In Fisher,
425 U.S. 391, the Court considered two cases in which IRS
agents visited and interviewed taxpayers under investigation for
tax violations. See id. at 393-94. After the interviews, the
taxpayers obtained from their accountants documents used in
preparing their tax returns and gave the documents to their
lawyers. See id. at 394. Once the government discovered that
the lawyers had the documents, it sought to subpoena the
records. In one case, its subpoena demanded the accountant’s
workpapers pertaining to the taxpayer’s books for three years,
the retained copies of the taxpayer’s returns for those years, and
the retained copies of reports and other correspondence between
the accountant and the taxpayer during those years. Id. After
disavowing any Fifth Amendment protection for the contents of
the documents themselves, the Court nevertheless recognized
the testimonial aspect of the act of production because
“[c]ompliance with the subpoena tacitly concedes the existence
of the papers demanded and their possession or control by the
taxpayer,” as well as “the taxpayer’s belief that the papers are
those described in the subpoena.” Id. at 410. Under the
circumstances of that case, however, the Court concluded it was
“doubtful that implicitly admitting the existence and possession
of the papers rises to the level of testimony within the protection
of the Fifth Amendment” because “[t]he existence and location
9
of the papers are a foregone conclusion and the taxpayer adds
little or nothing to the sum total of the Government’s
information by conceding that he in fact has the papers.” Id. at
411. Because the subpoena was more a question of “surrender”
than of “testimony,” the Court held that “no constitutional rights
are touched.” Id. (quoting In re Harris, 221 U.S. 274, 279
(1911)).
Hubbell provides the counterpoint to Fisher. In Hubbell,
the Supreme Court held that Hubbell’s act of producing over
13,000 documents in response to a broad subpoena was
sufficiently testimonial to implicate the Fifth Amendment
because “the prosecutor needed [Hubbell]’s assistance both to
identify potential sources of information and to produce those
sources.” 530 U.S. at 41. Some of the broadest demands of that
subpoena asked for all documents referring to “any direct or
indirect sources of money or other things of value received by
or provided to Webster Hubbell” and “Webster Hubbell’s
schedule of activities.” Id. at 46-47. The Court held that “the
collection and production of the materials demanded was
tantamount to answering a series of interrogatories asking a
witness to disclose the existence and location of particular
documents fitting certain broad descriptions,” id. at 41, in which
it was “unquestionably necessary for [Hubbell] to make
extensive use of ‘the contents of his own mind’ in identifying
the hundreds of documents responsive to the requests in the
subpoena,” id. at 43. The government claimed that it was a
“foregone conclusion” that Hubbell would possess the
subpoenaed documents because “a businessman such as
[Hubbell] will always possess general business and tax records
that fall within the broad categories described in this subpoena,”
but the Court rejected that argument as “overbroad.” Id. at 45.
The Supreme Court distinguished the circumstances in
Hubbell from those in Fisher: “While in Fisher the Government
10
already knew that the documents were in the attorneys’
possession and could independently confirm their existence and
authenticity through the accountants who created them, here the
Government has not shown that it had any prior knowledge of
either the existence or the whereabouts” of the produced
documents. Id. at 44-45. Whether an act of production is
sufficiently testimonial to implicate the Fifth Amendment,
therefore, depends on the government’s knowledge regarding
the documents before they are produced. In Fisher, the
government knew of the existence of a set of documents relating
to defined topics that were in the hands of the taxpayers’
attorneys; in Hubbell, the government could not show its prior
awareness of the existence or location of the produced
documents. When Hubbell was heard in this court, we described
the inquiry this way:
[T]he government must establish its knowledge of the
existence, possession, and authenticity of the
subpoenaed documents with ‘reasonable particularity’
before the communication inherent in the act of
production can be considered a foregone conclusion.
In making this assessment, though, the focus must
remain upon the degree to which a subpoena “invades
the dignity of the human mind,” and on the quantum of
information as to the existence, possession, or
authenticity of the documents conveyed via the act of
production.
United States v. Hubbell, 167 F.3d 552, 579-80 (D.C. Cir. 1999)
(citations omitted). Although the Supreme Court did not adopt
the “reasonable particularity” standard in affirming our decision,
it emphasized that the applicability of the Fifth Amendment
turns on the level of the government’s prior knowledge of the
existence and location of the produced documents. See Hubbell,
530 U.S. at 44-45. Post-Hubbell, another circuit has applied the
11
reasonable particularity standard to determine whether an act of
production is sufficiently testimonial to implicate the Fifth
Amendment. See In re Grand Jury Subpoena Dated April 18,
2003, 383 F.3d 905, 910 (9th Cir. 2004). Because that standard
conceptualizes the Supreme Court’s focus in a useful way, so do
we.
Once it is clear that an act of production is sufficiently
testimonial to be protected by the Fifth Amendment’s privilege
against self-incrimination, the question remains how the
government may use the compelled testimony and information
derived therefrom in a later prosecution of the witness. In
Kastigar, 406 U.S. 441, the Supreme Court held that § 6002
“immunity from use and derivative use is coextensive with the
scope of the privilege against self-incrimination” in that “[i]t
prohibits the prosecutorial authorities from using the compelled
testimony in any respect.” Id. at 453. Therefore, when a person
accorded § 6002 immunity is subsequently prosecuted, the
government 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.” Id. at 460.
With oral testimony, the bar on derivative use is easy to
imagine. For example, if a murder suspect who has been
granted immunity is called before a grand jury and asked
whether he committed a murder and where the murder weapon
is, his testimony may not be used against him in a criminal trial.
In addition, the government may not use his testimony to
retrieve the weapon for use against the witness at trial. Even if
the government introduced the weapon without indicating that
it learned of its location from the defendant’s immunized grand
jury testimony, only using fingerprints or DNA testing to link
the weapon to the defendant, the weapon would still be barred
because it was “directly or indirectly derived from” compelled
testimony. If the police simply happened upon the weapon
12
through an ongoing investigation, however, the weapon could be
used against the witness because it was “derived from a
legitimate source wholly independent of the compelled
testimony.” Kastigar, 406 U.S. at 460; see Hubbell, 167 F.3d at
583-84.
With act-of-production immunity, the key question is
whether, despite the compelled testimony implicit in the
production, the government remains free to use the contents of
the (non-testimonial) produced documents. In Hubbell, the
Supreme Court rejected the “manna from heaven” theory2 by
holding the use of the contents of produced documents to be a
barred derivative use of the compelled testimonial act of
production. The Court did so by stating that it “cannot accept
the Government’s submission that [Hubbell’s] immunity did not
preclude its derivative use of the produced documents” as it
“was only through [Hubbell]’s truthful reply to the subpoena
that the Government received the incriminating documents of
which it made ‘substantial use . . . in the investigation that led to
the indictment.’” Hubbell, 530 U.S. at 42-43 (emphasis added).
In context, these statements indicate that the Supreme Court
understands the contents of the documents to be off-limits
because they are a derivative use of the compelled testimony
regarding the existence, location, and possession of the
documents. As stated by this court in Hubbell: “If the
government did not have a reasonably particular knowledge of
subpoenaed documents’ actual existence, let alone their
2
This theory states that “the act of production shields the
witness from the use of any information (resulting from his subpoena
response) beyond what the prosecution would receive if the documents
appeared in the grand jury room or in his office unsolicited and
unmarked, like manna from heaven.” Hubbell, 167 F.3d at 602
(Williams, J., dissenting).
13
possession by the subpoenaed party, and cannot prove
knowledge of their existence through any independent means,
Kastigar forbids the derivative use of the information contained
therein against the immunized party.” Hubbell, 167 F.3d at 585
(emphasis added). Or explained another way, the contents of the
documents cannot be used against the witness because they are
not “derived from a legitimate source wholly independent of the
compelled testimony.” Kastigar, 406 U.S. at 460. This
approach treats documents revealed in an immunized act of
production just like the weapon revealed pursuant to immunized
testimony. If the existence or location of the item was revealed
through compelled testimony, the item is derivative of the
testimony and may not be used by the government against the
witness-defendant.
After determining what may not be used against the
witness-defendant, the further question remains how that
information may not be used. The direct introduction of
immunized information as evidence at trial would be a
prohibited “use.” See Hubbell, 530 U.S. at 41. But § 6002 goes
further, “provid[ing] a sweeping proscription of any uses, direct
or indirect, of the compelled testimony and any information
derived therefrom,” functioning as “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.” Kastigar, 406 U.S. at 460 (footnotes omitted). In
North v. United States, 910 F.2d 843 (D.C. Cir. 1990), this court
noted that “Kastigar does not prohibit simply ‘a whole lot of
use,’ or ‘excessive use,’ or ‘primary use’ of compelled
testimony. It prohibits ‘any use,’ direct or indirect.” Id. at 861.
Accordingly, this court held that the government’s use of
immunized testimony to refresh the recollection of a grand jury
witness constituted a “use” of the compelled testimony. See id.
14
Taken together, the bar on the use of information derived
from a testimonial act of production by a witness with § 6002
immunity and the breadth of that bar create real risks for
prosecutors planning on prosecuting those whom they subpoena.
“The decision to seek use immunity necessarily involves a
balancing of the Government’s interest in obtaining information
against the risk that immunity will frustrate the Government’s
attempts to prosecute the subject of the investigation.” Doe, 465
U.S. at 616. That risk was manifested in the government’s
prosecution of Ponds.
III.
The central question on appeal is whether the district court’s
reliance on “a sharp distinction” between the testimonial aspect
of producing documents and the contents of the documents, see
Ponds, 290 F. Supp. 2d at 79, is contrary to an essential holding
of the Supreme Court in Hubbell that the use of the contents of
documents may be a barred derivative use of the testimony
inherent in the immunized act of producing those documents.
Throughout its opinion, the district court emphasizes its
understanding that § 6002 immunity is limited to the act of
production and does not extend to the contents of documents.
See id. at 80-81, 83, 84, 85, 86, 88, 91. Ponds contends that the
district court has returned to the repudiated manna-from-heaven
rationale by seeming to think that nothing is amiss if the
prosecution uses the contents of the documents without
reference to the testimony inherent in the act of production.
A.
It is true that in Hubbell the Supreme Court drew a
distinction between protected testimony as to the existence,
location, and authenticity of documents inherent in the act of
15
production and the unprotected contents of the documents
themselves. See Hubbell, 530 U.S. at 37. This distinction,
however, is only relevant in the context of determining whether
an act of production implicates the Fifth Amendment. In that
context, the contents of the documents are irrelevant for
constitutional purposes because their preparation was not
“compelled.” See Fisher, 425 U.S. at 409-10; Doe, 465 U.S. at
610-11. Therefore, to determine whether an act of production
implicates the Fifth Amendment, the court looks only to the
communicative aspects of the act of production itself and to
whether those tacit averments as to the existence and location of
the documents add anything significant “to the sum total of the
Government’s information.” Fisher, 425 U.S. at 411.
The “sharp distinction” upon which the district court relied
becomes less relevant, however, when a court proceeds to “the
conceptually separate and temporally subsequent Kastigar
inquiry.” Hubbell, 167 F.3d at 580. This is because § 6002,
coextensive with the protections of the Fifth Amendment, see
Kastigar, 406 U.S. at 453, provides that a witness compelled by
the district court to testify over an assertion of the Fifth
Amendment privilege is not only protected from having that
testimony used against him, but is also protected from having
“any information directly or indirectly derived from such
testimony” used against him. When the government does not
have reasonably particular knowledge of the existence or
location of a document, and the existence or location of the
document is communicated through immunized testimony, the
contents of the document are derived from that immunized
testimony, and therefore are off-limits to the government.
The government concedes that the contents of subpoenaed
documents can sometimes be off-limits, describing the subpoena
response in Hubbell as “sufficiently testimonial (as to the
documents’ existence and location) to be privileged, and to taint
16
the contents of the documents themselves.” Appellee’s Br. at
25. The government attempts to minimize the distinction that
the district court drew between contents and act of production.
It contends that the district court understood that the act of
production could taint the contents of produced documents, but
found that Ponds’ act of production did not taint the contents of
the produced materials because his act of production did not
make the extensive testimonial representations that Hubbell did.
The government reads the district court as understanding that
act-of-production immunity could reach the contents of
documents, but that in this case, immunity did not reach the
documents’ contents.
The district court distinguished Ponds’ case from Hubbell
in finding “the degree of interpretation, locating, cataloging and
assembling of documents so important in Hubbell . . . simply not
demanded by the narrow subpoena at issue here.” Ponds, 290
F. Supp. 2d at 82. If the district court was correct that Ponds’
act of production was insufficiently testimonial to implicate the
Fifth Amendment, then it would be proper to deny protection to
the contents of the produced documents. The district court
opinion does not explicitly connect the discussion of the
testimonial character of Ponds’ act of production to its
conclusion that the contents of the documents were
unprivileged, however, which leads Ponds to contend that the
district court had the errant understanding that § 6002 immunity
only categorically reaches “testimony inherent in the act of
production” and “plainly not the contents of the documents
produced.” Ponds, 290 F. Supp. 2d at 81; see, e.g., id. at 84.
Such an understanding would revive the rejected manna-from-
heaven rationale whereby the government could use documents
against an immunized party when it could do so without
reference to how the documents were produced. That
understanding would conflate the Fifth Amendment question —
is the act of production sufficiently testimonial to warrant Fifth
17
Amendment protection? — with the immunity question — has
the government used compelled testimony or the information
directly or indirectly derived therefrom in prosecuting the
witness? See Hubbell, 167 F.3d at 580. Although the contents
of the documents are irrelevant to determining whether the act
of production was testimonial, the government’s use of the
contents of the documents is critical in determining whether
there was a derivative use of the compelled testimony that
violates § 6002.
B.
Applying the lessons of Fisher and Hubbell to determine
whether Ponds’ act of production is better characterized as
“testimony” or “surrender,” we begin by addressing the
threshold question of whether the government has “establish[ed]
its [pre-subpoena] knowledge of the existence, possession, and
authenticity of the subpoenaed documents with ‘reasonable
particularity’” such that “the communication inherent in the act
of production can be considered a foregone conclusion.”
Hubbell, 167 F.3d at 579. Ponds contends that his act of
production was sufficiently testimonial to trigger Fifth
Amendment protection because he used the contents of his mind
to interpret the subpoena’s directions and to identify the
documents in his possession that he believed were responsive.
He maintains that the government was not focused on any tax
offenses or any documents relevant to such offenses, citing MD-
AUSA Wilkinson’s statement that she was “surprised” by some
of the documents produced as evidence of the government’s lack
of previous awareness of the existence and location of some of
the documents. The government relies on the district court’s
finding that the subpoena was “narrow and specific, and
reflected that the government already knew of the existence of
the types of documents sought and their possession by
defendant.” Ponds, 290 F. Supp. 2d at 82.
18
As the critical inquiry is whether the government can show
it had such “prior knowledge of either the existence or the
whereabouts,” Hubbell, 530 U.S. at 45, of the produced
documents that their existence and location was a “foregone
conclusion,” Fisher, 425 U.S. at 411, the parties approach this
inquiry by comparing and contrasting Ponds’ subpoena to those
in Fisher and Hubbell. By any measure, this subpoena falls
somewhere in between the two: Unlike Fisher, the prosecutors
here did not ask for “retained copies” of workpapers, tax returns,
and correspondence about which they were sure of both the
existence and location. Compare Fisher, 425 U.S. at 394, with
Ponds, 290 F. Supp. 2d at 74. Unlike Hubbell, the set of topics
for which the Maryland prosecutors sought “any and all
documents” “refer[ring] or relat[ing]” to is somewhat defined.
Compare Hubbell, 530 U.S. at 46-49, with Ponds, 290 F. Supp.
2d at 74. For most of the subpoena categories, however, the
government has failed to establish its previous knowledge of the
existence or location of the documents.
The existence and location of some subpoenaed documents
were a foregone conclusion: For instance, the government must
have known of the existence of the documents in Subpoena
Demand No. 5, “[a]ny and all correspondence between the Law
Offices of Navron Ponds [and courts and prosecutors] in the
matter of U.S. v. Jerome Harris,” because it was a party to that
correspondence. And the government knew of the existence of
documents referring to “payment of legal fees by or on behalf of
Jerome Harris” (Subpoena Demand No. 2) because it had
already seized a copy of Harris’s retainer agreement from his
prison cell. The failure of the government to identify each
produced document specifically is of no moment. To be
consistent with Fisher, in which there is no indication that the
government knew of each document within the set of documents
of which it was aware, the “reasonable particularity” standard
cannot demand that the subpoena name every scrap of paper that
19
is produced. Because the government already had sufficient
knowledge about the Harris documents, Ponds was simply
surrendering them, not testifying, by complying with those
demands in the subpoena.
The government’s prior knowledge of the existence or
location of other subpoenaed documents has not been
established. First, the government has not shown any prior
knowledge that documents regarding the “use, ownership,
possession, custody and/or control of a white Mercedes Benz”
(Subpoena Demand No. 1) were in existence or in Ponds’
possession. Before the subpoena, the government knew that the
Mercedes was normally parked at Ponds’ apartment and was
registered to his sister. See Ponds, 290 F. Supp. 2d at 83. But
it had no idea that Ponds possessed some of the documents he
produced — a registration card, auto insurance information,
sales contracts, and the title — and has not shown it was even
aware of the existence of the large range of correspondence and
receipts that he produced regarding repairs and improvements to
the Mercedes. In fact, MD-AUSA Wilkinson testified that “at
the time that [she] sought Act of Production Immunity,” she was
seeking to determine “whether or not there were other
documents that proved the longevity of [Ponds’] ownership of
this car.” This statement confirms that the government did not
know “whether or not” documents relating to the car existed or
were in Ponds’ possession. Ponds’ act of producing the car-
related documents testified to their existence and his possession,
which effectively communicated that he had long been the
beneficial owner of the car. The government’s prior knowledge
that Ponds had possession of a Mercedes registered to his sister
might render harmless the government’s improper use of the
subpoenaed documents relating to the car, because the
documents mostly confirmed what the government already
suspected, but the government’s prior knowledge that he
possessed the Mercedes is not enough to establish with
20
reasonable particularity its prior knowledge regarding the
documents related to the Mercedes. As in Hubbell, where the
Supreme Court rejected the government’s claim of knowledge
based on the “overbroad” claim that Hubbell was a businessman
and therefore would have business-related documents, 530 U.S.
at 45, the government cannot show knowledge by means of
broad assumptions about car ownership, much less mere
possession. Cf. Hubbell, 167 F.3d at 578.
Similarly, the government has not shown prior knowledge
of the existence or location of documents relating to Ponds’
sister, Laura Pelzer, (Subpoena Demand No. 4) a subpoena
request that turned up documents regarding shared bank
accounts and sales of shared real property. While in common
parlance it might be a “foregone conclusion” that a person with
a sibling will have documents relating or referring to the sibling
— even if only a Christmas card or a parent’s will — the
reasonable particularity standard demands more. This court
explained in Hubbell that “the government cannot simply
subpoena business records and then claim the requisite
knowledge for purposes of the Fifth Amendment by pointing to
the existence of a business.” Hubbell, 167 F.3d at 578. The
court stated that “the [government]’s assertion that its
knowledge of Hubbell’s status as a consultant and a taxpayer
carried with it a concomitant awareness of the existence and
possession of his consulting and tax records similarly falls
short.” Id. at 579. Likewise, the government’s knowledge of
Ponds’ status as a brother does not carry with it an awareness of
the existence and possession of records about his sister. The
government’s prior knowledge that Ponds had a Mercedes and
a sister cannot suffice to establish its prior knowledge of the
existence and location of the documents relating or referring to
those topics that Ponds, with immunity, produced in response to
the subpoena.
21
In addition, the government has not shown that it had any
prior knowledge of the existence or location of “[r]ecords of
employees of the law Office of Navron Ponds in the time frame
of 1996 to the present” (Subpoena Demand No. 6). The district
court’s determination that the existence and location of these
documents was a foregone conclusion was based on pure
inference: “[T]he Court concludes that it was a foregone
conclusion in this day and age in the Washington area that a sole
practitioner would have some staff, even if part-time or
temporary, to assist him in his legal practice. Moreover, it was
also a foregone conclusion that certain administrative
documents, including health care forms, would exist with
respect to such staff, and would be in defendant’s possession.”
Ponds, 290 F. Supp. 2d at 85. This reasoning is reminiscent of
“the overbroad argument that a businessman . . . will always
possess general business and tax records,” Hubbell, 530 U.S. at
45, an argument the Supreme Court found could not “cure [the]
deficiency” of the government’s failure to demonstrate its “prior
knowledge of either the existence or the whereabouts” of the
produced documents in Hubbell, id.
The request for documents relating to any employees —
when the government did not know whether Ponds had
employees, much less whether he had specific documents
relating to them — “was tantamount to answering a series of
interrogatories,” id. at 41, asking Ponds if he had employees,
and if so, what their names were. This is made clear by the fact
that Ponds was asked in the Maryland grand jury whether the
“insurance record” “serve[s] to provide information called for in
the subpoena with respect to information about the employees
of your law office,” an inquiry to which Ponds answered “yes.”
It is further clarified by the fact that the subpoena asks for
records regarding “employees” in the plural, indicating that the
government did not really know about Ponds’ employment
practices. MD-AUSA Wilkinson’s infirm belief that she had at
22
one time spoken with a secretary in Ponds’ office — she
testified that “it’s possible I did, possible I didn’t” — does not
demonstrate the requisite knowledge of the existence and
location of documents relating to Ponds’ employees.
The face of the subpoena also displays the government’s
lack of knowledge when it asks for documents that “refer or
relate to any vehicles in the custody or control of Jerome Harris
if access to that vehicle was provided to you by any means”
(Subpoena Demand No. 3). The “if” in that request
demonstrates that the government did not know whether Harris
had given Ponds access to any vehicles besides the Mercedes,
much less whether there existed any documents that would
prove such access. If Ponds had been directly asked when he
appeared before the grand jury whether he had employees or
whether Harris had given him access to any vehicles, the Fifth
Amendment privilege would allow Ponds to refuse to answer.
See Lefkowitz v. Cunningham, 431 U.S. 801, 804-05 (1977).
The government cannot make an end-run around the Fifth
Amendment by fishing for a document that will answer a
question for which it could not demand an answer in oral
examination.
In sum, the government has failed to show with reasonable
particularity that it had prior knowledge of the existence and
location of many of the subpoenaed documents necessary to
render their existence and location a “foregone conclusion.”
The Supreme Court has not defined the precise amount of
cognition on the part of an immunized party necessary to render
a subpoena response “testimonial,” but it is clear here that, as in
Hubbell, the government “needed [Ponds’] assistance both to
identify potential sources of information and to produce those
sources,” Hubbell, 530 U.S. at 41, and “it is undeniable that
providing a catalog of existing documents,” id. at 42, rendered
this subpoena response “testimony” rather than mere
23
“surrender.” So much is evident in the government’s admission
that it was “surprised” by some of the documents produced.
C.
Having determined that portions of Ponds’ act of production
were testimonial, the next question is whether the government
violated its immunity agreement with Ponds by using that
“testimony or other information compelled under the order (or
any information directly or indirectly derived from such
testimony or other information).” 18 U.S.C. § 6002. “When the
government proceeds to prosecute a previously immunized
witness, it has ‘the heavy burden of proving that all of the
evidence it proposes to use [or has used] was derived from
legitimate independent sources.’” North, 910 F.2d at 854
(quoting Kastigar, 406 U.S. at 461-62). As the primary
evidence used to secure Ponds’ indictment was the records
seized during the searches of his home and office (and other
information turned up from leads in those records), the inquiry
under § 6002 must focus on the period before those searches to
determine whether the subpoenaed documents derived from
Ponds’ act of production were used to either focus the
investigation before the searches or to craft the search warrant
affidavit, or if wholly independent evidence supported those
actions. See United States v. Kurzer, 534 F.2d 511, 515 (2d Cir.
1976).
Ponds contends that the government violated his Fifth
Amendment privilege by using the produced documents at two
points: in establishing its evasion theory of the case and in
crafting the search warrant application. Of course, § 6002 is “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.” Kastigar, 406 U.S. at 460
24
(footnotes omitted). Section 6002's “sweeping proscription,”
id., of any use of compelled testimony without doubt bars the
use of immunized information in an affidavit in support of a
search warrant that turns up evidence used against the witness
in a subsequent prosecution. See United States v. Nanni, 59 F.3d
1425, 1443 (2d Cir. 1995).
The district court noted the “government conce[ssion] that,
to a limited extent, the IRS made use of some documents the
defendant had produced to the grand jury to support the search
warrant affidavits.” Ponds, 290 F. Supp. 2d at 75. Furthermore,
the district court found that “the record is clear (and the
government acknowledges) that Maggie Alexander was
identified and then made certain statements to the grand jury
based on documents that the defendant [Ponds] produced” and
that “[s]ome of those statements were included in the search
warrant affidavit,” id. at 87, but found this unproblematic
because Ponds “cannot point to any testimonial aspect of [his]
act of production — as opposed to the contents of the documents
themselves — that was used by the government to obtain the
search warrants,” id. at 88. As discussed, this finding is legally
erroneous because it fails to recognize that non-testimonial
evidence derived from this testimonial act of production may not
be used under § 6002.
Nevertheless, although the district court’s findings
regarding the use of immunized documents make clear that
some impermissible derivative use occurred, the degree of the
Kastigar violation is less apparent. The government is free to
use a piece of information that appears in an immunized
document if it can accomplish its “affirmative duty” of proving
that the information was “derived from a legitimate source
wholly independent of the compelled testimony.” Kastigar, 406
U.S. at 460. As this court has emphasized that such an “inquiry
must proceed witness-by-witness; if necessary, it will proceed
25
line-by-line and item-by-item,” North, 910 F.2d at 872, the
district court is better positioned to make such a determination
in the first instance.
Determining the precise manner in which Ponds’ rights
were violated is essential because the finding of a Kastigar
violation does not resolve Ponds’ challenge to his convictions.
“Dismissal of the indictment or vacation of the conviction is not
necessary where the use is found to be harmless beyond a
reasonable doubt,” North, 910 F.2d at 854 (citations omitted),
because “the error complained of did not contribute to the
[outcome] obtained,” Chapman v. California, 386 U.S. 18, 24
(1967). Where, as here, the immunized evidence emerges early
in the investigation, the court must determine whether the
government “would have taken the same steps entirely apart
from the motivating effect of the immunized testimony.” Nanni,
59 F.3d at 1433. As to the use of Ponds’ documents and Maggie
Alexander’s testimony in the search warrant affidavits, “[t]he
question thus becomes whether that use was harmless beyond a
reasonable doubt in the sense that the immunized testimony was
so inconsequential that it could not have influenced either the
government’s decision to request search warrants or the issuing
magistrate’s decision to grant them.” Id. at 1443. In this
determination, “[t]he government cannot escape its error simply
by showing the availability of ‘wholly independent’ evidence
from which it might have procured indictment or conviction had
it not used the immunized testimony,” United States v. Pelletier,
898 F.2d 297, 303 (2d Cir. 1990) (emphasis added), but must
demonstrate beyond a reasonable doubt that the tax evasion case
would have been vigorously pursued, and the search warrant
sought and obtained, had the government not relied on the
documents revealed by Ponds’ act of production. Unless the
government’s use of Kastigar evidence, in light of evidence
from independent sources, was “‘so unimportant and
insignificant’ and ha[s] so ‘little, if any, likelihood of having
26
changed the result of the proceeding’ that [it] ‘may be deemed
harmless,’” United States v. Gallo, 859 F.2d 1078, 1082 (2d Cir.
1988) (quoting Chapman, 386 U.S. at 22) (alterations omitted),
the violation of Ponds’ right not to be a witness against himself
cannot be excused as harmless beyond a reasonable doubt.
The government has not shown that it had reasonably
particular knowledge of the existence and location of some of
the documents it subpoenaed from Ponds. It has conceded that,
to some extent, it used those documents to prepare its
prosecution of Ponds. Accordingly, we reverse the judgment of
conviction and we remand the case to the district court to
consider the degree of the government’s impermissible use and
to determine whether that use was harmless beyond a reasonable
doubt.3
3
If the district court determines upon remand that the
convictions of tax evasion and fraud should stand, then as Ponds
contends and the government agrees, the district court must determine,
in light of its treatment of the sentencing guidelines as mandatory, see
United States v. Booker, 125 S. Ct. 738 (2005), and an unclear record
on the question of prejudice as a result, whether its error prejudiced
Ponds because it would have imposed a sentence materially more
favorable to Ponds if it had known of the post-Booker sentencing
regime, see United States v. Coles, 403 F.3d 764, 767 (D.C. Cir.
2005).