           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 12, 2008

                                       No. 07-30009                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

TERRANCE LASH, also known as Breeze, also known as T

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:03-CR-135-4


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Sentenced to life imprisonment for his role in both a conspiracy to
distribute cocaine and a murder, Terrance Lash challenges his conviction on
numerous pre-trial bases. The issues arise primarily out of the confession Lash
provided in a holding cell to a co-conspirator. AFFIRMED.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 07-30009

                                         I.
      While imprisoned in 1995 on a drug conviction, Lash met Rahsaan
Johnson; they discussed working together to distribute cocaine in the New
Orleans area. That plan was implemented upon their being released.
      Johnson served as Lash’s cocaine source until both were arrested in 2003.
Earlier, in 2000, Johnson began receiving larger quantities of cocaine from a new
supply source in Houston, Texas, increasing to 50 to 60 kilograms weekly in
2001 and 2002. Johnson divided the cocaine among Lash and other New
Orleans-area distributors. Lash provided cocaine to others, including street-
level dealers Tamira Durand and Eddie Fatheree.
      Durand and Fatheree murdered Zachary Marcel in August 2002, in
furtherance of the drug trafficking.          By late 2002, the Government was
investigating that murder; a federal grand-jury investigation began in early
2003. Demetra Norse, a friend of Durand, testified before that grand jury in
April 2003, concerning her knowledge of Durand’s and Fatheree’s drug
trafficking.
      Norse informed Durand of her grand-jury testimony. Durand, in turn,
informed Lash. Durand and Lash agreed not to take action unless Durand was
arrested.
      That May, the grand jury in a case before United States District Judge
Zainey returned an indictment against Durand; she was arrested. As a result,
Lash hired an assassin, Donald Sylvester, who murdered Norse that June,
having been led to the victim by Lash.
      Another co-conspirator, John Gage, was arrested following a random
traffic stop in Houston that July. Police seized from his vehicle 77 kilograms of
cocaine bound for New Orleans. Gage cooperated with law-enforcement officers
following his arrest, explaining his role in the conspiracy was to transfer drugs
and money between Houston and New Orleans.


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                                No. 07-30009

      Based on information obtained from Gage, other conspirators, including
Lash, were arrested that September (2003). By late September, Lash and Gage
had been indicted for conspiring to distribute cocaine. That case was assigned
to United States District Judge Lemmon.
      A few months earlier, in July 2003, Johnson had been arrested by United
States Marshals; he began cooperating with the Government that November.
Johnson told investigators about the drug-trafficking conspiracy, said Lash was
responsible for Norse’s murder, and offered to wear a wire to record
incriminating statements by Lash.
      On 20 November 2003, in the case before Judge Zainey, involving drug-
conspiracy and murder charges against Durand and Fatheree, the grand jury
returned a superseding indictment adding Lash and Johnson as defendants.
Lash was charged with the Norse murder in December 2004.
      Approximately two weeks after Lash and Johnson were added to the case
before Judge Zainey, the indictment against Lash was dismissed on 9 December
in the case before Judge Lemmon. The Government’s motion to dismiss Lash
from that case explained all of Lash’s co-defendants in it had pleaded guilty.
The Government maintained the case before Judge Zainey was the older of the
two cases and the more appropriate case in which to prosecute Lash. That case
involved both drug trafficking and murder.
      In November and December 2003, Johnson attempted to record
conversations with Lash while they were in a holding cell, awaiting hearings in
the case before Judge Zainey. Both attempts failed due to poor sound quality.
Johnson’s third attempt, on 17 February 2004, was successful; Lash discussed
his role in the Norse murder and named Sylvester as Norse’s assassin. That
March, the Government confronted Lash and his attorney with the recording.




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      Thereafter, during meetings with the Government, Lash implicated
himself in the Norse murder and agreed to record a conversation with Sylvester.
Lash was granted use immunity for these proffers.
      Later that month, Lash’s request for a new attorney was granted. Lash’s
new counsel, both pre-trial and at trial, sought:       wide-ranging discovery;
dismissal of indictments; severance of the drug-conspiracy and murder charges;
and suppression of Lash’s recorded confession. Lash’s counsel claimed: a
Kastigar violation (Government must prove the evidence proposed to be used in
later prosecution of person granted immunity is derived from a legitimate source
wholly independent of compelled testimony); a violation of Federal Rule of
Criminal Procedure 48(a) (district court has discretion to determine whether
Government’s indictment-dismissal request is made in good faith); and Lash’s
confession was the result of outrageous Government conduct, trickery,
entrapment, and coercion.
      Following a two-week trial in June 2006, during which Lash and Johnson
testified, Lash was convicted for his role in the drug conspiracy and for related
murder and weapons charges. He was sentenced to life imprisonment.
                                       II.
      As noted, Lash and Johnson testified at trial. Lash does not contest the
sufficiency of the evidence or his sentence. Instead, he challenges his conviction
on six pre-trial bases: (1) the denial of evidentiary hearings and discovery
requests; (2) the admission of his recorded confession; (3) the failure to address
his claimed violation of his Sixth Amendment right to counsel that occurred,
according to Lash, when the Government recorded that confession; (4) the denial
of his motion to sever the drug-conspiracy, from the murder, count; (5) the denial
of his motion to dismiss the indictment for the alleged Rule 48(a) violation; and
(6) the rejection of his claimed Kastigar violation.



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                                        A.
      Lash maintains the district court improperly failed to hold evidentiary
hearings on the admissibility of his recorded confession and on his motion to
dismiss based upon the asserted Rule 48 violation. He also challenges rulings
on various discovery requests.       Discovery rulings and the denial of an
evidentiary hearing are reviewed for abuse of discretion. United States v.
Powell, 354 F.3d 362, 370 (5th Cir. 2003); United States v. Gutierrez, 343 F.3d
415, 421 (5th Cir. 2003); United States v. Webster, 162 F.3d 308, 336 (5th Cir.
1998).
                                        1.
      The district court denied Lash’s motion to dismiss for a Rule 48 violation,
having considered the Government’s response, supporting exhibits from both
sides, and extensive oral argument. The developed record was sufficient to
support that ruling, and Lash has failed to articulate a need for further hearings
on the matter. In this regard, Lash fails to justify his claim that meaningful
discovery was denied.
      A party seeking disclosure of grand-jury materials must meet the burden
of showing a particularized need for their production.         In re Grand Jury
Testimony, 832 F.2d 60, 62 (5th Cir. 1987). Lash failed to meet that burden, and
failed to show other discovery requests were justified. The district court did not
abuse its discretion either by relying on the available record, rather than holding
additional hearings, or by denying Lash’s requests for further discovery.
                                        2.
      When admission of a confession is contested as being involuntary, the
defendant “is entitled to a fair hearing in which both the underlying factual
issues and the voluntariness of his confession are actually and reliably
determined”. United States v. Guanespen-Portillo, 514 F.3d 393, 398 (5th Cir.
2008) (quoting Jackson v. Denno, 378 U.S. 368, 380 (1964)), cert. denied, No. 07-

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                                   No. 07-30009

9249, 2008 WL 370345 (17 Mar. 2008).           Contrary to Lash’s assertion, an
evidentiary hearing was not required.
      The admissibility of confessions is governed by 18 U.S.C. § 3501. Pursuant
to subpart (e), a confession includes “any self-incriminating statement made or
given orally”. Obviously, Lash’s statement to Johnson fits this definition.
      Regarding the district judge’s obligation to decide whether a confession is
voluntary, subpart (a) provides:
      In any criminal prosecution brought by the United States . . . , a
      confession, as defined in subsection (e) hereof, shall be admissible
      in evidence if it is voluntarily given. Before such confession is
      received in evidence, the trial judge shall, out of the presence of the
      jury, determine any issue as to voluntariness. If the trial judge
      determines that the confession was voluntarily made it shall be
      admitted in evidence and the trial judge shall permit the jury to
      hear relevant evidence on the issue of voluntariness and shall
      instruct the jury to give such weight to the confession as the jury
      feels it deserves under all the circumstances.

18 U.S.C. § 3501(a). Subpart (a) of § 3501 has been held, in Dickerson v. United
States, 530 U.S. 428, 444 (2000), unconstitutional to the extent it negates
Miranda; otherwise, that subpart and other subsections of the statute continue
to be applied. Guanespen-Portillo, 514 F.3d at 401 n.3.
      One of those provisions applicable to Lash’s holding-cell statement is found
in subpart (d), which states in relevant part:
      Nothing contained in this section shall bar the admission in
      evidence of any confession made or given voluntarily by any person
      to any other person without interrogation by anyone . . . .

18 U.S.C. § 3501(d) (emphasis added). “[U]nder [§] 3501(d), no [evidentiary]
hearing is required for a [voluntary] statement which was not the result of
interrogation”. United States v. Diezel, 608 F.2d 204, 207 (5th Cir. 1979)
(internal quotation marks and footnote omitted).



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                                  No. 07-30009

      As discussed, Lash’s incriminating statement—which, consistent with §
3501(e), both sides describe as a confession—was made to co-conspirator
Johnson, who was recording the conversation while the two were in a holding
cell. In general, statements of this kind, volunteered to a cellmate, do not trigger
the requirements of an evidentiary hearing. See United States v. Lambros, 564
F.2d 26, 31 (8th Cir. 1977) (defendant volunteered information to a cellmate;
such informal statements do not trigger protections).
      Again, on this record, an evidentiary hearing was not required. The
district court allowed voluminous briefing and lengthy argument on these
matters, even inviting further briefing as to why an evidentiary hearing might
be necessary. As further discussed infra, concluding the Government acted in
good faith and Lash voluntarily confessed to co-conspirator Johnson, the district
court properly determined an evidentiary hearing was unnecessary.
      Along this line, at a hearing before Judge Zainey in May 2006, Lash’s
counsel argued that, through the culmination of “a whole litany of deceptions”,
the Government crossed the line from an acceptable level of deception, as
discussed infra, into a level that was so overbearing as to infringe on Lash’s due-
process rights. Those alleged deceptions included: Johnson’s behavior as a
confidential informant; his role in arranging with Lash a plot to commit murder;
the transfer of Lash to the case before Judge Zainey; and the Government’s role
in placing Lash in a holding cell with Johnson.
      Against this backdrop, Judge Zainey, of course, considered Lash’s
statement. Judge Zainey noted Lash’s assertions were points to raise at trial,
but they did not necessarily support the claim an evidentiary hearing was
required. (Although, in this court, Lash’s counsel devoted most of his oral
argument to the evidentiary-hearing issue, he provided less than one page, in his
briefs filed with our court, addressing the need for an evidentiary hearing.)



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                                 No. 07-30009

                                       B.
      Lash claims the Government’s use of cooperating co-conspirator Johnson
to record incriminating statements violated his due-process rights under the
Fifth Amendment because Lash was coerced into making the statement through
outrageous Government conduct. In other words, as discussed above, at issue
is whether Lash’s statement was voluntary. As noted, although the district
court gave this question extensive consideration, it did not grant the requested
evidentiary hearing.
      In reviewing a ruling on a motion to suppress, whether a confession was
voluntary is a question of law, reviewed de novo. United States v. Santiago, 410
F.3d 193, 202 (5th Cir. 2005).     To determine involuntariness vel non, “a
reviewing court must look to whether the defendant’s capacity to resist was
overborne to such a degree that the resulting confession could not be said to be
the product of the accused’s own self-determination”. Id.
      It is well-established that, in the course of a criminal investigation, a
defendant may be deceived or tricked into confessing. E.g., Illinois v. Perkins,
496 U.S. 292, 297 (1990) (an undercover agent posing as an inmate in order to
obtain incriminating statements, voluntarily given by another inmate, about a
murder did not violate Fifth Amendment principles); Hoffa v. United States, 385
U.S. 293, 304 (1966) (placing an undercover agent near a suspect to gather
incriminating information about his role in a jury-tampering case did not violate
Fifth Amendment principles); United States v. Bell, 367 F.3d 452, 461 (5th Cir.
2004). “When a suspect considers himself in the company of cellmates and not
officers, the coercive atmosphere is lacking.” Perkins, 496 U.S. at 296 (citation
omitted).
      As reflected in his statement, Lash did not know Johnson was cooperating
with the Government, nor that his holding-cell conversation was being recorded;
he spoke freely with his co-conspirator, his cellmate at the moment. Lash’s

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                                  No. 07-30009

conclusory assertions regarding claimed coercion, such as being intimidated
because of Johnson’s description, in the recording, of a brutal murder he
previously committed, do not show error. (For example, Lash was laughing and
joining in the description of that murder.)
      Lash provides no support for his claim that the site for the recordings, a
holding cell, distinguishes this case from the other jailhouse-confession cases
discussed supra. Similarly, Lash can point to no specific infirmities in the
indictment which resulted in Lash’s and Johnson’s being placed in the same cell.
There is no basis for Lash’s allegations that his due-process rights were violated
by outrageous Government conduct. “Such a violation will only be found in the
rarest circumstances”, and the district court correctly held the facts at hand did
not rise to such an extreme level. United States v. Johnson, 68 F.3d 899, 902
(5th Cir. 1995).
                                        C.
      Lash claims his Sixth Amendment right to counsel was violated when the
Government, through cooperating co-conspirator Johnson, recorded Lash’s
incriminating statements, describing his role in the Norse murder. A claimed
Sixth Amendment violation is reviewed de novo. See Mann v. Scott, 41 F.3d 968,
974 (5th Cir. 1994).
      As Lash recognizes, the Sixth Amendment right to counsel is offense-
specific; because of law-enforcement’s need to investigate additional offenses, the
right to counsel does not attach to every offense a defendant may have
committed.    Sixth Amendment protections prohibit the Government from
interrogating a suspect regarding a charged, but not an uncharged, offense.
Texas v. Cobb, 532 U.S. 162, 174 (2001).          When Johnson recorded the
conversation, Lash had not been charged for the Norse murder (he was charged
ten months later). The district court did not err in finding the Sixth Amendment
right to counsel did not attach to the investigation of that murder.

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                                  No. 07-30009

      Recognizing this, Lash urges an exception to Cobb: to revert to prohibiting
interrogation about crimes factually-related to an already-charged offense. This
exception, however, was rejected by Cobb. Id. at 167-68.
                                        D.
      Lash claims the drug-conspiracy charges should have been severed from
the murder charges.      A severance-motion denial is reviewed for abuse of
discretion. E.g., United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir. 1985).
“To demonstrate an abuse of discretion, the defendant bears a heavy burden of
showing specific and compelling prejudice, resulting in an unfair trial.” Id.
(citations and internal quotation marks omitted). In addition, “[t]his prejudice
must be of a type ‘against which the trial court was unable to afford protection’”.
United States v. Simmons, 374 F.3d 313, 317 (5th Cir. 2004) (quoting United
States v. Mann, 161 F.3d 840, 863 (5th Cir. 1998)).
      It is uncontested that the drug-conspiracy and murder charges were
properly joined because they were part of a common scheme. Pursuant to Lash’s
assertion that portions of his recorded statement (confession) might incriminate
him in the drug conspiracy, the district court undertook a detailed, painstaking
process to ensure those challenged portions were not admitted in evidence (were
redacted).
      In so doing, the court entertained all objections to the content of the
confession, resulting in a heavily-redacted version that addressed Lash’s
concerns. Lash has failed to show the requisite “clear, specific and compelling
prejudice that resulted in an unfair trial” by the admission of the redacted
confession. Simmons, 374 F.3d at 317; see also Chagra, 754 F.2d at 1188.
      Furthermore, Lash fails to show prejudice against which the district court
was unable to afford protection. The court limited the use of the recorded
confession by: instructing the Government it could be admitted only to assist the
jury’s understanding of Lash’s implication of himself in the Norse murder; and

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                                  No. 07-30009

providing limiting instructions to the jury, directing it to consider each count,
and the evidence pertaining to it, separately. “Any possible prejudice [can] be
cured with proper instructions [because] juries are presumed to follow their
instructions.” United States v. Bullock, 71 F.3d 171, 175 (5th Cir. 1995) (citing
Zafiro v. United States, 506 U.S. 534, 540-41 (1993)).
                                       E.
      Lash contends the dismissal, without prejudice, of his drug-conspiracy case
before Judge Lemmon should be recharacterized as a dismissal with prejudice,
based on a claimed violation of Rule 48(a) (Government “may, with leave of the
court, dismiss[, inter alia,] an indictment”). In requiring the Government to seek
leave of court for such dismissal, Rule 48(a) gives the court discretion over its
propriety. United States v. Welborn, 849 F.2d 980, 983 (5th Cir. 1988); United
States v. Salinas, 693 F.2d 348, 351 (5th Cir. 1982).
      In exercising that discretion, the district court is limited to determining
whether the request was made in bad faith. Welborn, 849 F.2d at 983. Bad faith
exists when, in seeking dismissal, the Government is motivated “by
considerations clearly contrary to the public interest and the public interest is
not served by harassing a defendant”. Id. (quoting Salinas, 693 F.2d at 351 &
n.15) (internal quotation marks omitted). When considering a Rule 48(a) motion
to dismiss, a court must begin with the assumption that the Government acted
in good faith. Id. “This presumption is rooted in a proper respect for the
constitutional division of power between the executive and judicial branches of
government.” Id. (citing United States v. Hamm, 659 F.2d 624, 628-29 (5th Cir.
1981)).
      Directly applicable to the situation at hand are two procedural rules,
established by our court, for addressing challenges to Rule 48(a) motions to
dismiss without prejudice:



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                                  No. 07-30009

      First, if a defendant, without justification, does not contest
      dismissal[,] the presumption of good faith permits the court to
      dismiss without prejudice and the defendant waives his right to
      later object to the government’s motives. Second, if a defendant
      contests dismissal and the district court errs by not requiring the
      prosecution to furnish more than a conclusory reason to support its
      motion, the dismissal must be treated as though it were with
      prejudice only where the prosecution fails to offer sufficient
      justification for seeking dismissal when it reindicts or the error
      prejudiced the defendant’s ability to attack the prosecutor’s motives.

Welborn, 849 F.2d at 985.
      Therefore, under the first of these rules, we must determine whether
Lash’s failure, when it was requested, to contest the dismissal of the indictment
in the case before Judge Lemmon bars his contesting it here.            “Whether
deliberate or not, unjustified failure to contest a motion to dismiss waives any
right to later complain that the prosecution requested dismissal in bad faith.”
Welborn, 849 F.2d at 983. Generally, the defendant is required to object to
dismissal both when the Government moves to dismiss (here, in the case before
Judge Lemmon), as well as upon reindictment (here, in the case before Judge
Zainey). United States v. Reyes, 102 F.3d 1361, 1367 (5th Cir. 1996). Such an
objection enables the Government to respond by articulating a good-faith reason
for the requested dismissal. Id. at 1367 n.9.
                                        1.
      The Government maintains the good-faith presumption should attach, and
Lash should be barred from challenging the dismissal of the indictment in the
case before Judge Lemmon, because Lash failed to object when that dismissal
was requested. Lash responds: because he was not given an opportunity to
object to the Government’s dismissal motion, no waiver occurred.
      Indeed, although Lash’s counsel was informed the Government would seek
dismissal of the indictment on 1 December 2003, the motion was not filed until
2:10 p.m. on 8 December. A copy of the motion was mailed to Lash’s counsel.

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                                  No. 07-30009

The next day, Judge Lemmon, without a hearing, granted the motion. It is
unclear, however, when Lash’s counsel received notice of that motion. We will
assume the Government failed to provide Lash with adequate “notice of the
filing of its motion to dismiss[, which] excuses his failure to contest the motion
at that time”. Id. at 1367.
      In this regard, it is of no moment that the Government put Lash’s counsel
on notice it intended to seek dismissal of the indictment on 1 December, and that
Lash’s counsel did not then object to the dismissal upon such oral notice.
Obviously, Lash’s counsel was under no obligation to preemptively contest a
motion to dismiss that had not been filed. That obligation did not arise until it
was filed; and, again, we assume counsel was not given sufficient opportunity to
object. Therefore, because Lash is excused from contesting the dismissal before
Judge Lemmon, and because he did contest the dismissal upon reindictment, in
a motion to dismiss, before Judge Zainey, he is not barred from asserting a Rule
48(a) challenge here.
                                        2.
      Accordingly, at issue is whether the district court required the
Government to satisfy its burden of production by providing “sufficient
reasons—reasons that constitute more than a mere conclusory interest”—for its
seeking dismissal of the indictment before Judge Lemmon. Welborn, 849 F.2d
at 983 (internal citation and quotation marks omitted). If the Government did
satisfy that burden, Lash had to provide “an affirmative reason to believe that
the dismissal motion was motivated by considerations contrary to the public
interest”. Id. at 984 (citing Hamm, 659 F.2d at 631). If the district court fails,
however, to require the Government to meet its burden of production, the
dismissal of the indictment may be recharacterized as being with prejudice if
either: “the defendant (1) overcomes the presumption of good faith or (2) has
been prejudiced in his ability to attack the prosecutor’s motives due to the trial

                                       13
                                  No. 07-30009

court’s failure to require submission of adequate reasons before dismissing the
prior indictment”. Id.
      Before Judges Lemmon and Zainey, the Government satisfied its burden.
As discussed supra, it maintained it had sufficient evidence to demonstrate Lash
was a central figure in the drug conspiracy in both cases but intended to proceed
in the earlier case (before Judge Zainey) rather than the later (before Judge
Lemmon) because the co-defendants in the case before Judge Lemmon had
pleaded guilty, whereas the co-defendants in the case before Judge Zainey
awaited trial. As stated, the Government provided the necessary sufficient, non-
conclusory justification to satisfy its burden of production. Unlike Welborn, in
which the Government offered no justification other than that the dismissal
would “serve the ends of justice”, id. at 982, the Government’s justification for
dismissing the indictment in the case before Judge Lemmon clearly promotes,
inter alia, judicial economy.
      Therefore, the Government’s having met its burden of providing a
sufficient justification for dismissal, the burden shifts to Lash to rebut the good-
faith presumption by demonstrating “an affirmative reason to believe that the
dismissal motion was motivated by considerations contrary to the public
interest”. Id. at 984 (internal quotation marks omitted) (quoting Hamm, 659
F.2d at 631).    Lash, however, offers no such reasons.        Rather, he makes
conclusory assertions that the dismissal constituted forum shopping, and that
the Government violated the Justice Department’s Petite policy (precluding
successive federal prosecutions based on same transaction without prior
approval of assistant Attorney General). Lash offers no support, however, of
asserted forum shopping. Moreover, the Petite policy is an internal rule, which
criminal defendants may not invoke to bar prosecution by the Government.
United States v. Rodriguez, 948 F.2d 914, 915 (5th Cir. 1991). Therefore,



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                                  No. 07-30009

dismissal, without prejudice, of the indictment in the case before Judge Lemmon
was proper.
                                       F.
      Finally, Lash claims his proffered testimony concerning his role in the
Norse murder and the drug conspiracy, for which he was granted use immunity,
impermissibly formed the basis for the extended duration of the drug conspiracy,
as charged in the fifth superseding indictment. Along that line, Lash asserts the
Government failed to meet its affirmative burden of demonstrating none of the
immunized information was used by the Government to charge the extended
conspiracy. See Kastigar v. United States, 406 U.S. 441, 460 (1972) (imposing on
prosecution an “affirmative duty to prove that the evidence it proposes to use is
derived from a legitimate source wholly independent of the compelled
testimony”). The interpretation of a grant of immunity under Kastigar is a
question of law, reviewed de novo; factual findings relating to the Kastigar
inquiry are reviewed only for clear error. E.g., United States v. Martin, 332 F.3d
827, 830 (5th Cir. 2003). In considering this issue, the district court found Lash
“received only direct use immunity during his interviews with the Government
on March 2 . . . and . . . 8, 2004”. (Emphasis added.)
      “Direct use immunity” is the most limited form of immunity because it
“allows the [G]overnment to use information derived from a witness’s statements
but forbids the use of the information in those statements against the witness
in subsequent prosecution”. United States v. Capozzi, 486 F.3d 711, 720 n.3 (1st
Cir. 2007); see also United States v. Castaneda, 162 F.3d 832, 834 n.1 (5th Cir.
1998) (distinguishing direct use immunity from derivative use immunity).
“[D]erivative-use immunity” is “[i]mmunity from the use of the compelled
testimony (or any information derived from that testimony) in a future
prosecution against the witness.” United States v. Brown, 298 F.3d 392, 410



                                       15
                                  No. 07-30009

n.21 (5th Cir. 2002) (quoting BLACKS LAW DICTIONARY 754 (7th ed. 1999))
(internal quotation marks omitted).
      The district court’s finding Lash was granted only “direct use immunity”
precludes relief under Kastigar. A holding to the contrary would negate the
distinction between direct and derivative-use immunity. As explained, direct-
use immunity does not preclude the Government’s relying upon information
derived from the witness’ statements. Even assuming Lash is correct that the
duration of the conspiracy was extended based on information learned from his
proffers, this was acceptable because, again, direct, not derivative, use immunity
was granted. Given Lash’s failure to demonstrate the district court clearly erred
in finding “direct-use immunity”, he provides no basis for a Kastigar violation.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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                                  No. 07-30009

DENNIS, Circuit Judge, dissenting.
      I agree with much of the majority opinion in this case. However, I
respectfully disagree with the majority’s failure to vacate and remand for an
evidentiary hearing on the voluntariness of the defendant’s confession in
accordance with Jackson v. Denno, 378 U.S. 368 (1964) and United States v.
Renteria, 625 F.2d 1279 (5th Cir. 1980). For the following reasons, I disagree
with the majority’s conclusion that Jackson and Renteria do not apply to this
case. Admittedly, as the majority correctly notes, the current record contains
evidence that tends to show that the confession was not coerced nor involuntary,
but the district court never conducted an evidentiary hearing on the issue nor
made a specific factual finding of voluntariness as required by the Supreme
Court in Jackson and our own circuit precedent in Renteria. We may not
overlook the constitutional interpretations and requirements of those decisions
and make a novel harmless error finding, viz., that presumably the district court
would find voluntariness in the event it was required to conduct a Jackson
evidentiary hearing.
      There are two independent and overlapping sources of authority that
compel district courts to provide evidentiary hearings for defendants that object
to the use of involuntary confessions. First, in Jackson, the Supreme Court
stated that “[e]qually clear is the defendant’s constitutional right at some stage
in the proceedings to object to the use of the confession and to have a fair
hearing and a reliable determination on the issue of voluntariness, a
determination uninfluenced by the truth or falsity of the confession.” 378 U.S.
at 376-77 (emphasis added). As this court has noted, “the Supreme Court held
that when there is a factual issue about the voluntariness of a confession, the
trial court must make a determination of voluntariness, including the resolution
of any relevant disputed facts.” Renteria, 625 F.2d at 1282-83. This hearing
resolves factual disputes surrounding the voluntariness of the confession and

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therefore is an evidentiary hearing. See, e.g., United States v. Bailey, 468 F.2d
652, 660-61 (5th Cir. 1972) (“The court below held the evidentiary hearing
required by Jackson v. Denno, and found that the voluntariness of appellant’s
confession was shown beyond a reasonable doubt.”). We have confirmed that
this is a constitutional due process right. See Hackathorn v. Decker, 369 F.2d
150, 157 (5th Cir. 1966).
       As an alternative route, Congress in 18 U.S.C. § 3501 attempted a
statutory codification of the Jackson procedure and also attempted to provide
guidance as to when trial courts must conduct voluntariness hearings. The
majority opinion cites to an old Eighth Circuit case that relies on this statutory
authority, 18 U.S.C. § 3501(d), to conclude that a Jackson hearing is not required
in this case. However, relying on the statute does not resolve whether a hearing
is required under Jackson and the due process clause. As the Supreme Court in
Dickerson v. United States held, 18 U.S.C. § 3501 does not control the judiciary’s
interpretation of the constitutional rights Congress attempted to codify in that
statute (including the constitutional rights under Miranda and Jackson). 530
U.S. 428, 437-48 (2000) (“Congress retains the ultimate authority to modify or
set aside any judicially created rules of evidence and procedure that are not
required by the Constitution. . . . But Congress may not legislatively supersede
our decisions interpreting and applying the Constitution.”) (emphasis added).1
           Taking a cue from Dickerson, a hearing is arguably required by the
holding in Jackson as a right under constitutional due process in spite of the
statutory language in 18 U.S.C. § 3501. The defendant is asserting his right to
a hearing under the Constitution as interpreted by Jackson and not merely his



       1
         The majority opinion cites to United States v. Guanespen-Portillo, 514 F.3d 393, 401
n.3 (5th Cir. 2008) for the proposition that “subsections of [section 3501 other than 3501(a) in
certain respects] continue to be applied.” However, that footnote in Guanespen-Portillo cites
to no cases that address the continued applicability of 18 U.S.C. § 3501(d) post-Dickerson.

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statutory right under18 U.S.C. § 3501. The Supreme Court decision in Arizona
v. Fulminante, 499 U.S. 279, 287-88 (1991) casts serious doubts on the continued
validity of section 3501(d) as a codification of the constitutional principles in
Jackson.2 Contrary to section 3501(d), Fulminante contemplates challenges to
the voluntariness of confessions that are given in conversations with
Government informants. In Arizona v. Fulminante, the Supreme Court held
that a Government informant can act as a Government agent and create
sufficient coercion to render a confession involuntary. 499 U.S. 279, 287-88
(1991); see also Lam v. Kelchner, 304 F.3d 256, 264-66 (3rd Cir. 2002) (finding
a confession involuntary and inadmissible even though the confession was
elicited during a conversation with undercover police officers posing as fellow
gang members at a restaurant); United States v. McCullah, 76 F.3d 1087, 1100-
02 (10th Cir. 1996) (finding a conversation with a Government informant as
involuntary). In Beaty v. Stewart, 303 F.3d 975, 993-94 (9th Cir. 2002) (“Beaty
I”) and Beaty v. Schriro, 509 F.3d 994, 1002 (9th Cir. 2007) (“Beaty II”), the
Ninth Circuit ordered an evidentiary hearing to determine the voluntariness of
the defendant’s confession to his therapist in prison, even though it ultimately
found the situation distinguishable from Fulminante and concluded that the
confession was voluntary.3          Therefore, the issue of the voluntariness of a
confession can still be raised even though a confession was rendered to a
Government informant. As such, the rule of Jackson, would apparently apply:
“[e]qually clear is the defendant’s constitutional right at some stage in the
proceedings to object to the use of the confession and to have a fair hearing and
a reliable determination on the issue of voluntariness, a determination


       2
           The defendant does assert that his case is similar to Fulminante.
       3
         Moreover, older cases cast some doubt on whether § 3501(d)’s requirement comports
with the Jackson holding. See, e.g., United States v. Bernett, 495 F.2d 943, 958 (D.C. Cir. 1974)
(Leventhal, J.) (denial of rehearing en banc).

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uninfluenced by the truth or falsity of the confession.” 378 U.S. at 376-77
(emphasis added).        This case lies at the uncertain intersection of Jackson,
Fulminante, and Dickerson, which has not been directly addressed by any circuit
court.
         The defendant asserted below that the confession was involuntary because
he felt threatened by the government informant; moreover, taped interactions
between the defendant and the government informant prior to the confession
were inaudible. It is unclear without an evidentiary hearing whether the
government informant used threats in those prior interactions, like in
Fulminante, to coerce the defendant to talk. As there is a relevant factual
dispute, a hearing must be provided under Jackson to resolve a factual issue.4
         For these reasons, I would remand for a Jackson hearing. Only after the
trial court determines that the confession was indeed voluntary, can the panel
be constitutionally authorized to affirm the conviction and conclude that the
failure to hold a Jackson hearing before the conviction was harmless error.
Renteria, 625 F.2d at 1283-284. Accordingly, I respectfully dissent.




         4
         The majority opinion states “[i]n reviewing a ruling on a motion to suppress, whether
a confession was voluntary is a question of law, reviewed de novo.” (citing United States v.
Santiago, 410 F.3d 193, 202 (5th Cir. 2005)). In Santiago, the trial court denied the
defendant’s motion to suppress his written statement after a full evidentiary hearing at which
the court determined that the statement was voluntary. Id. at 196. We then reviewed this
voluntariness finding, determined after a full evidentiary hearing, de novo. Id. at 202.

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