Monday, July 24, 2006

Was it "Manna from Heaven?"

Perhaps one of the most complicated areas of the law to understand is "act of production" when confronted with an immunity grant.  How far can the government go in indicting a person when materials received from the individual were obtained pursuant to a grant of immunity?

A recent decision of the U.S. D.C. Circuit Court (United States v. Ponds) tackles this issue in a case involving a criminal defense attorney who was convicted of tax evasion, wire fraud, and fraud in the first degree in D.C.  The case is the sad story of a criminal defense attorney who allegedly received a white 1991 Mercedes 500SL and failed to inform the court of the whereabouts of the automobile for forfeiture purposes. The accused was granted act-of-production immunity under 18 U.S.C. s 6002. Once granted the act-of-production immunity he appeared before the grand jury and produced the requested documents. The problem here is that the government later indicted him and "failed to establish its previous knowledge of the existence or location of the documents."  This presents a problem for the government under the Supreme Court's decision in the famed Hubbell case, where the Supreme Court reversed a conviction rejecting the "'manna from heaven theory' by holding the use of contents of produced documents to be barred derivative use of the compelled testimonial act of production." (Ponds, at * 7).

Now mind you, the above skips many steps in presenting the law of the Hubbell and Fisher cases.  But the bottom line is - is it proper for the government to give someone immunity and then use something that the person gives to the government pursuant to the grant of immunity, against them in a criminal trial.  The real question is whether an immunity grant really carries any value to the individual if the government can then indict the person and use the documents given to them pursuant to an immunity grant.

In Ponds the court reverses the conviction and remands the case to the district court to examine "the degree of the government's impermissible use" and to determine if this was harmless error.

Decision can be found here.


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