## Facts

- Congressional investigations into the Iran–Contra affair compelled Oliver L. North to testify under use-and-derivative-use immunity pursuant to 18 U.S.C. § 6002 after he invoked the Fifth Amendment.
- North testified for six days; the testimony was broadcast live and widely disseminated through national media.
- An independent counsel investigation later led to North’s indictment on multiple charges, including obstruction-related offenses, destruction of documents, false statements, and receipt of an illegal gratuity.
- After a lengthy jury trial, North was convicted on three counts, including aiding and abetting obstruction of a congressional inquiry, accepting an illegal gratuity (Count 9), and ordering destruction of documents; other counts resulted in acquittals or a hung jury.
- North moved to dismiss or overturn the convictions on the ground that the prosecution used (directly or indirectly) his immunized congressional testimony; the trial court denied relief and did not conduct a full Kastigar evidentiary hearing focused on witness taint.
- North appealed, arguing that widespread exposure to his immunized testimony tainted trial witnesses and that the government failed to prove an independent source for the evidence used against him.

## Issues

1. Whether the government satisfied Kastigar by proving that trial evidence and witness testimony were derived wholly independently from North’s compelled, immunized congressional testimony, despite its wide public dissemination.
2. Whether Kastigar’s prohibition on “use” extends beyond direct prosecutorial reliance to indirect influence on witnesses’ testimony caused by exposure to immunized testimony.
3. Whether the jury instructions on the illegal gratuity charge (Count 9) created a genuine risk of juror confusion regarding the required elements.

## Decision

- The D.C. Circuit vacated North’s convictions and remanded for a comprehensive Kastigar hearing to determine whether immunized testimony was used directly or indirectly in obtaining or shaping trial evidence and witness testimony.
- The court rejected the argument that screening prosecutors from exposure to immunized testimony, by itself, necessarily proves the government’s evidence was independently derived.
- On rehearing, the court modified its treatment of Count 9 and held that the jury instructions on that count, taken as a whole, did not pose a genuine risk of confusing the jury.
- The convictions’ ultimate viability was left contingent on the government’s ability on remand to prove, witness by witness and evidence item by evidence item, an independent source untainted by the immunized testimony.

## Legal Principles

- Use-and-derivative-use immunity must be coextensive with the Fifth Amendment privilege against self-incrimination; the government bears the burden to show that its evidence is derived from sources wholly independent of compelled testimony.
- Kastigar’s “total prohibition on use” bars not only direct evidentiary or prosecutorial reliance on immunized testimony, but also indirect use, including testimony that is shaped, refreshed, or influenced by exposure to immunized statements.
- Prosecutorial screening alone is insufficient where trial witnesses (or those preparing them) may have been exposed to immunized testimony; the government must negate taint in witness testimony, not merely in prosecutorial decisionmaking.
- Where immunized testimony is widely publicized, a searching inquiry may be required to determine whether exposure influenced witnesses’ recollection, narrative, or preparation.
- Jury instructions are reviewed as a whole; a conviction will not be reversed for instructional error absent a genuine risk that the overall charge misled the jury about the elements of the offense.

## Conclusion

The court vacated the convictions and required a detailed Kastigar hearing because the government had to affirmatively prove that each witness’s testimony and all evidence introduced at trial were untainted by North’s widely disseminated immunized congressional testimony; on rehearing, the court clarified that the illegal gratuity instructions did not independently warrant reversal when considered in their entirety.


United States v. North, 910 F.2d 843 (D.C. Cir. 1990), modified on reh’g, 920 F.2d 940 (D.C. Cir. 1990)