## Facts

- Navron Ponds, a criminal defense attorney, represented a drug defendant, Jerome Harris, under a fee arrangement that included a white 1991 Mercedes-Benz 500SL transferred through Harris’s mother and registered in Ponds’s sister’s name.
- During a later forfeiture effort targeting Harris’s assets, neither Harris nor Ponds disclosed that the Mercedes had been given to Ponds as a fee.
- The U.S. Attorney’s Office in the District of Maryland investigated Ponds’s receipt of the Mercedes and subpoenaed broad categories of records from Ponds, including documents about the Mercedes, Harris fee payments, references to Ponds’s sister, correspondence related to Harris’s case, and law-office employee records.
- Ponds invoked the Fifth Amendment; a court order compelled production under 18 U.S.C. § 6002, granting use and derivative-use immunity for the act of production.
- Later, prosecutors in the District of Columbia investigated Ponds for failure to file tax returns and alleged fraud and obtained and used documents that overlapped with, or were linked to, materials produced under the Maryland immunity order, along with evidence from other investigative steps.
- Ponds was indicted and convicted in federal district court in the District of Columbia on tax and fraud-related counts.
- Ponds moved to dismiss, claiming the prosecution used his immunized act of production and its fruits; the district court denied relief after a hearing, and Ponds appealed.

## Issues

1. Whether Ponds’s compelled act of producing documents under the Maryland subpoena was sufficiently testimonial to trigger Fifth Amendment protection and the protections of 18 U.S.C. § 6002.
2. Whether the District of Columbia prosecution used Ponds’s immunized act of production or derivative evidence in violation of § 6002 and the Fifth Amendment.
3. Whether any improper use was harmless beyond a reasonable doubt.

## Decision

- The court held that Ponds’s act of production for many subpoenaed materials was sufficiently testimonial because it implicitly conveyed existence, possession/control, and authenticity.
- The court rejected the government’s “foregone conclusion” argument because the government did not show with reasonable particularity that it already knew the existence and location of most responsive documents before production.
- The court concluded the government made some impermissible use of Ponds’s immunized act of production and derivative evidence in the later prosecution.
- The court reversed the convictions and remanded for further proceedings to determine the extent of taint and whether any constitutional error was harmless beyond a reasonable doubt as to particular charges.

## Legal Principles

- An act of producing subpoenaed documents can be testimonial when compliance implicitly communicates the documents’ existence, possession/control, and authenticity, and those communications are incriminating.
- Under the “foregone conclusion” doctrine, the government must show with reasonable particularity that it already knew, before production, the existence and location of the documents such that the act of production adds little or nothing.
- A broad subpoena for categories of records may render the act of production testimonial, especially when it resembles a search for unknown documents rather than a demand for identified items.
- Use and derivative-use immunity under 18 U.S.C. § 6002 bars the prosecution from using the compelled testimonial act itself and any evidence derived directly or indirectly from it unless the government proves an independent source.
- When a defendant shows a compelled, immunized testimonial act may have contributed to the prosecution, the trial court must conduct a detailed taint and harmless-error inquiry to determine whether the evidence and charges are untainted or whether any taint was harmless beyond a reasonable doubt.

## Conclusion

The court ruled that Ponds’s compelled production under § 6002 was testimonial because the government lacked sufficiently specific prior knowledge of most documents, and it reversed and remanded for a focused determination of the government’s impermissible use, if any, and whether any resulting error was harmless beyond a reasonable doubt.


United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006)