United States District Court, M.D. Pennsylvania
M. MUNLEY UNITED STATES DISTRICT COURT
the court for disposition is Defendant Al T. Hughes'
motion for a Kastigar hearing and to dismiss the
indictment or to suppress evidence derived in violation of
his Fifth Amendment rights. The motion has been fully briefed
and is ripe for disposition.
Hughes is a funeral home director with an interest in four
funeral homes. (Doc. 33, Superseding Indictment ¶ 3).
The government alleges that defendant diverted hundreds of
customer checks to his own personal benefit even though they
had been intended for funeral home services. (Id.
¶ 4). According to the government, he diverted
approximately $1.25 million in this manner and did not
include the money as personal income when he filed his tax
returns. (Id. ¶ 6). The grand jury indicted the
defendant on January 17, 2017 and charged him with evasion of
taxes in violation of 26 U.S.C. § 7201. The indictment
alleges the filing of false and fraudulent tax returns in May
2012, November 2012, September 2013, October 2014 and October
2015. (Doc. 1, Indictment).
January 30, 2018, the grand jury issued a superseding
indictment charging the defendant with five additional
counts. Counts six through ten allege the crime of
“subscribing to a false tax return” in violation
of 26 U.S.C. § 7206(1). (Doc. 33). These charges relate
to the same tax returns involved in the original
to the events giving rise to the instant criminal charges,
Defendant Hughes testified in a 2011 trial concerning
corruption in Lackawanna County government. He testified as
to being a means of transmission of cash between a third
party involved in business with the county and Lackawanna
County Commissioner Robert Cordaro.
he testified, defendant and the government entered into a
“cooperation and testimony” or
“immunity” agreement. This agreement provided
that if defendant provided information on alleged official
corruption in Lackawanna County, then the government would
not use the information to prosecute the defendant. Defendant
testified on June 8, 2011. Subsequently, in 2017, the
government filed tax evasion charges against defendant based
on the tax years of 2010-2015.
moves for dismissal of the charges against him on the basis
that the charges violate the immunity agreement from the
Cordaro case. He also moves for a Kastigar hearing
and the suppression of evidence derived in violation of his
immunity from prosecution. The government's position is
that the motion to dismiss should be denied and that request
for a Kastigar hearing be denied. The government has
two arguments: 1) Kastigar hearings do not apply to
the type of immunity that the defendant was granted and 2)
Factually, it is impossible for the government to have used
statements made by the defendant improperly. After a careful
review, we agree with the government with regard to both
arguments, and we will discuss them in turn.
noted above, this case involves immunity from prosecution.
Immunity issues generally arise when the government seeks to
have a witness testify in court or before a grand jury and
that witness refuses to testify based upon the Fifth
Amendment right against self-incrimination. The government
may compel testimony in such circumstances by granting
immunity to the witness under 18 U.S.C. § 6002. See
Kastigar v. United States, 406 U.S. 441 (1972). This
type of immunity is known as formal or statutory immunity .
witness is later prosecuted by the government and claims that
the prosecution is based on his immunized testimony, then he
may request a Kastigar hearing. At a
Kastigar hearing the government must prove that its
case is based solely on evidence other than the statements
the defendant was compelled to make and the
“fruits” of those statements. Kastigar,
406 U.S. at 460.
or formal immunity is not the only type of immunity.
See, e.g., United States v.
Skalsky, 857 F.2d 172, 175-76 (3d Cir. 1988) (explaining
different types of immunity). The government may also provide
immunity through an agreement between the prosecution and a
witness. Id.; United States v. Plummer, 941
F.2d 799, 802 (9th Cir. 1991). This type of immunity is
called “informal immunity”. Id.
defendant seeks a Kastigar hearing. To establish the
necessity of holding a Kastigar hearing, the
defendant must demonstrate that he testified under a
statutory grant of immunity and that his testimony concerned