Earlier this week, in United States v. Allen, the Second Circuit reversed the defendants’ convictions and dismissed the indictments against them. You can access the Circuit’s 81-page opinion here. The Circuit considered whether a witness’s involuntary testimony that was compelled by a foreign government can be used against in a U.S. prosecution. In its introduction, the Circuit outlined its four-step conclusion:
First, the Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.
Second, when the government makes use of a witness who had substantial exposure to a defendant’s compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to prove, at a minimum, that the witness’s review of the compelled testimony did not shape, alter, or affect the evidence used by the government.
Third, a bare, generalized denial of taint from a witness who has materially altered his or her testimony after being substantially exposed to a defendant’s compelled testimony is insufficient as a matter of law to sustain the prosecution’s burden of proof.
Fourth, in this prosecution, Defendants’ compelled testimony was “used” against them, and this impermissible use before the petit and grand juries was not harmless beyond a reasonable doubt.
See Opinion at 2-3.
The Circuit also denied rehearing in United States v. Jenkins, in which it struck down a 225-month sentence in a child pornography case. You can read our post on Jenkins here. The case is a critical tool in child pornography sentencing, but also contains broadly-applicable language that can be useful in any sentencing argument.
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