entirely from sources independent of the information provided by Raul Corona pursuant to letter immunity in the Middle District of Florida."
Special Agent Wood executed an affidavit in which he described the investigation in which he was involved in October 1991. It concerned allegations of fraud upon the Bankruptcy Court, Middle District of Florida "and related matters involving Leonard Pelullo, his associates, and a group of companies, including . . ." the companies listed included several which figure in the Compton Press employee benefit fund embezzlements, for example, Olympia Acquisition, One Plaza Corp., Compton Press, Inc., Webb Press, Inc., Away to Travel South, Ocean Properties, Inc., Silver Sands Investments.
Special Agent Woods stated that "pursuant to this investigation I received information from many sources, including Raul Corona, a former business associate of Leonard Pelullo." He further stated, "I have never disclosed in any manner the substance of any statement made to me by Raul Corona to Agent Ruffino, Assistant United States Attorneys Mark W. Rufolo, Leslie Faye Schwartz and Jose P. Sierra, with former Assistant United States Attorney Arthur Zucker, or with any other person engaged in a criminal investigation and/or prosecution of Leonard Pelullo or Raul Corona in the District of New Jersey."
The government did not submit an affidavit of Special Agent Ruffino who conferred with Special Agent Wood in Florida, reviewed the documents which were seized from the Miami warehouse and selected six boxes of those documents to be brought to Newark for use in connection with the present case. All of the Newark AUSAs who worked on this case must have derived their knowledge of the case primarily from Special Agent Ruffino.
The government's initial response to Corona's motion is that "the letter-immunity defendant Corona received in the Middle District of Florida was nothing more than a promise on the part of the federal prosecutor from that district not to use any statement, testimony, or information provided by defendant Corona, or any information derived therefrom, against defendant Corona in a prosecution in that district." (Government brief in opposition to Defendant's motion for a Kastigar hearing at 15) (emphasis added).
The government's position is patently untenable. The immunity letter signed by the United States Attorney's Office for the Middle District of Florida was expressed in the broadest possible terms. Even though that Office was concerned primarily with bankruptcy fraud committed in that district, its investigation extended to "related offenses by Leonard Pelullo and others." As Special Agent Wood stated in his affidavit, the "related matters" were those "involving Leonard Pelullo, his associates, and a group of companies, including [here Special Agent Wood lists 32 companies, a number of which are involved in the present indictment]." Thus, it is not surprising that the immunity letter assured Corona that none of the information which he gave "may be used against you in any criminal case . . . ." There was not the slightest suggestion that this protection was limited to any criminal case in the Middle District of Florida.
The immunity which was given to Corona was not given pursuant to 18 U.S.C. §§ 6001-6005, which prohibits compelled testimony of a witness from being used against him "in any criminal case . . . ." The formalities mandated for the granting of statutory immunity were not observed. Yet the immunity letter purported to grant immunity as extensive as that granted by the statute.
When a United States Attorney grants immunity informally, the immunity which is granted is measured by the language of the grant. Contractual agreements by which defendants are granted some measure of immunity are, as the government notes, binding and enforceable in accordance with their terms, see United States v. Quatermain, Drax, 613 F.2d 38, 41 (3d Cir.), cert. denied, 446 U.S. 954, 64 L. Ed. 2d 812, 100 S. Ct. 2923 (1980).
Here the terms of the agreement were, contrary to the government's position, coextensive with full statutory immunity, and Corona is entitled to the equivalent of full statutory immunity. United States v. Skalsky, 857 F.2d 172 (3rd Cir. 1988).
The fact that the immunity letter was given in the Middle District of Florida and not by the United States Attorney in New Jersey is immaterial. The government, as such, is bound by the agreement. To hold otherwise would deprive Corona of his constitutional right against self-incrimination. United States v. Harvey, 791 F.2d 294 (4th Cir. 1986).
Thus, Corona is entitled to immunity equal to that which the immunity statute provides, that is "no testimony or other information compelled . . . (or any information directly or indirectly derived from such testimony or other information) may be used against [defendant] in any criminal case." 18 U.S.C. § 6002. The government must show that all the evidence that it uses against a defendant is "derived from . . . legitimate source[s] wholly independent of the compelled testimony." Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972).
In the present case, there was no effort either in the United States Attorney's Office in the Middle District of Florida or (until July 1995) in the United States Attorney's Office in the District of New Jersey to build a Chinese wall around the information which Corona provided before the federal grand jury or which he provided in debriefing sessions with AUSA O'Malley and Special Agent Wood. The Florida Office probably saw no need for a Chinese wall, since it did not intend to prosecute Corona. Why the New Jersey Office did not take the necessary precautions is not disclosed in the record.
Normally, in these circumstances a Kastigar hearing would be required at which the government would have the burden of showing that all the evidence it is using against defendant is derived from sources independent of information which Corona provided. However, in the present case such a hearing is unnecessary because the record submitted by Corona and the record submitted by the government both establish affirmatively that the government has used and is using evidence which is derived both directly and indirectly from information which Corona provided under his immunity agreement.
Corona testified extensively before the grand jury in the Middle District of Florida. In that testimony, he provided information about Pelullo and his methods of diverting money from one company to another and often to his own personal use. He identified those who participated in the operations of Pelullo's companies. He named a number of these companies.
This information, together with information he provided in the debriefing session (the substance of which has not yet been ascertained), provided an important basis for the issuance of the search warrant for the Miami warehouse. Excerpts from Special Agent Wood's affidavit in support of the search warrant disclose the significance of the information Corona provided:
4. My investigation, and the investigation conducted by other agents of the FBI and agents of the Interstate Commerce Commission, has produced information from witnesses John Brent and Raul Corona. John Brent was the financial officer of Ryder/PIE from October 16, 1990 to December 11, 1990. Raul Corona worked directly for Pelullo from about 1986 until the end of 1990, assisting him in acquiring and managing various companies. The information received from John Brent and Raul Corona
indicates that Leonard Pelullo directed the operation of the company formerly known as Ryder/PIE from the time of its purchase, through on or about December 29, 1990, even though Mr. Pelullo was only designated as a "consultant" to the company.