EFTA00191587

of 18 years, to engage in prostitution; in violation of Title 18, United States Code, Sections 
2422(b) and 2. 
COUNT 17 
(Enticement of a Minor: 18 U.S.C. § 2422(b)) 
D
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
46. 
From in or around the middle of 2004 through on or about April 22, 2005, the 
exact dates being unknown to the Grand Jury, in Palm Beach County, in the Southern District 
of Florida, and elsewg, the defendants, 
JEFFREY EPSTEIN 
and 
SARAH ICELLEN, 
Ill 
LLJC a Iaidl I y 
GLJtate 
Ice, that is, the telephone, to knowingly 
persuade, induce and entice Jane DA12, who was a person who had not attained the age 
of 18 years, to engage in prostitution; in violation of Title 18, United States Code, Sections 
2422(b) and 2. 
COUNT 18 
(Enticement of a Minor: 1 
.S.C. § 2422(b)) 
47. 
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
48. 
From in or around August 2004 through on or about May 27, 2005, the exact 
dates being unknown to the Grand Jury, in Palm Beach Countyin.the Southern District of 
Florida, and elsewhere, the defendants, 
44 
EFTA00191767

JEFFREY EPSTEIN 
and 
SARAH KELLEN, 
did use a facility or means of interstate commerce, that is, the telephone, to knowingly 
persuaderuce and entice Jane Doe #13, who was a person who had not attained the age 
of 18 years, to engage in prostitution; in violation of Title 18, United States Code, Sections 
2422(b) and 2. 
COUNT 19 
(Enticement of a Minor: 18 U.S.C. § 2422(b)) 
49. 
Paragrarit 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
50. 
From in or around November 2004 through in or around March 2005, the exact 
es being un 
ry, in raim tseacwLounry, m the southernistncto 
Florida, and elsewhere, the defendaA 
JEFFREY EPSTEIN)
end 
S ARA 
L
I-14 EL EN, 
Abe Am 
geSS, 
did use a facility or means of interstate commerce, that is, the telephone, to knowingly 
persuade, induce and entice Jane Doe #14, who v.F a person who had not attained the age 
of 18 years, to engage in prostitution and in a sexual activity for which a person can be 
charged with a criminal offense, that is a violation of Florida Statutes Section 794.05; in 
violation of Title 18, United States Code, Sections 2422(b) and 2. 
T 
45 
EFTA00191768

COUNT 20 
(Enticement of a Minor: 18 U.S.C. § 2422(b)) 
51. 
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
ID
From in or around December 2004 through on or about June 5, 2005, the exact 
dates being unknown to the Grand Jury, in Palm Beach County, in the Southern District of 
Florida, and elsewhere, the defendants, 
JEFFREY EPSTEIN, 
SARAH KELLEN, and 
ADRIANA ROSS, a/k/a "Adriana Mucinska," 
did use a facility or means of interstate commerce, that is, the telephone, to knowingly 
persuade, induce and entice Jane Doe #15, who was a person who had not attained the age 
of 18 years, to engage in prostituti7it violation of Title 18, United States Code, Sections 
2422(b) and 2. 
COUNT 21 
(Enticement of a Minor: 18 U.S.C. § 2422(b)) 
53. 
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein.
1U 
54. 
From in or around February 2005 through in or around the first week of 
October 2005, the exact dates being unknown to the Grand Jury, in Palm Beach County, in 
the Southern District of Florida, and elsewhere, the defendants, 
46 
EFTA00191769

JEFFREY EPSTEIN, 
SARAH KELLEN, 
ADRIANA ROSS, a/k/a "Adriana Mucinska," 
and NADIA MARCINKOVA, 
did use a facility or means of interstate commerce, that is, the telephone, to knowingly 
persuadL induce or entice Jane Doe #16, who was a person who had not attained the age of 
18 years, to engage in prostitution and in a sexual activity for which a person can be charged 
with a criminal offense, that is a violation of Florida Statutes Section 794.05; in violation of 
Title 18, United States Code, Sections 2422(b) and 2. 
R 
COUNT 22 
(Enticement of a Minor: 18 U.S.C. § 2422(b)) 
55. 
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
56. 
From in or around Feb ary 2005 through in or around April 2005, the exact 
dates being unknown to the Grand Jury, in Palm Beach County, in the Southern District of 
Florida, and elsewhere, the defendants, 
JEFFREY EPSTEIN, 
SARAH KELLEN, and 
ADRIANA ROSS, a/k/a " 
ana Mucinska," 
did use a facility or means of interstate commerce, that is, the telephone, to knowingly 
persuade, induce and entice Jane Doe #17, who was a person who had not attained the age 
of 18 years, to engage in prostitution; in violation of Title 18, United States Code, Sections 
2422(b) and 2. 
47 
EFTA00191770

COUNT 23 
(Enticement of a Minor: 18 U.S.C. § 2422(b)) 
57. 
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
D
From in or around August 2003 through in or around February 2004, the exact 
dates being unknown to the Grand Jury, in Palm Beach County, in the Southern District of 
Florida, and elsewhere, the defendants, 
R 
JEFFREY EPSTEIN, 
and 
SARAH KELLEN, 
did use a facility or means of interstate commerce, that is, the telephone, to knowingly 
persuade, induce and entice Jane Doe #18, who was a person who had not attained the age 
o 
➢Gars, tv
sigag... iii proaattiau,l, m vrolatiuI 
uI 
, Um 
2422(b) and 2. 
COUNT 24 
(Conspiracy to Travel: 18 U.S.C. § 2423(e)) 
c, 8eetiuns 
59. 
Paragraphs 1 through 25 of this indictment are re-alleged and incorporated by 
reference as fully set for the herein. 
60. 
From at least as early as 2001 through in or around October 2005, the exact 
dates being unknown to the Grand Jury, the Defendants, 
JEFFREY EPSTEIN, 
SARAH KELLEN, 
ADRIANA ROSS, a/k/a "Adriana Mucii 
and 
NADIA MARCINKOVA, 
48 
EFTA00191771

did knowingly and willfully conspire with each other and with others known and unknown 
to travel in interstate commerce for the purpose of engaging in illicit sexual conduct, as 
defined in 18 U.S.C. § 2423(f), with another person, in violation of Title 18, United States 
Code, S
on 2423(b); all in violation of Title 18, United States Code, Section 2423(e). 
COUNT 25 
(Facilitation of Unlawful Travel of Another: 18 U.S.C. § 2423(d)) 
61. 
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
62. 
From Mast as early as in or about 2001 through in or around October 2005, 
the exact dates being unknown to the Grand Jury, in Palm Beach County, in the Southern 
District of Florida, and elsewhere, the Defendant, 
did, for the purpose of commercial aAntage or private financial gain, arrange and facilitate 
the travel of a person, that is Defendant Jeffrey Epstein, knowing that such person was 
traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, as 
defined in 18 U.S.C. § 2423(f); in violation of Title 18, United States Code, Section 2423(d). 
COUNTS 26 THRDUGH 29 
(Travel to Engage in Illicit Sexual Conduct: 18 U.S.C. § 2423(b)) 
63. 
Paragraphs 1 through 25 of this Indictment are re-alleged and incorporated by 
reference as though fully set forth herein. 
64. 
On or about the dates enumerated as to each courted below, from a place 
outside the Southern District of Florida to a place inside the Southern District of Florida, the 
49 
EFTA00191772

Defendant(s) listed below traveled in interstate commerce for the purpose of engaging in 
illicit sexual conduct as defined in 18 U.S.C. § 2423(0, with a person under 18 years of age, 
that is, the person(s) listed in each count below: 
Coin 
Date(s) 
Minor( ) Involved 
Defendant(s) 
.._./-
26 
7/16/2004 
Jane Doe #7 
Jane Doe #8 
Jane Doe #9 
Jane Doe #10 
JEFFREY EPSTEIN 
SARAH KELLEN 
NADIA MARCINKOVA 
27 
3/31/2005 
R 
Jane Doe #14 
Jane Doe #15 
Jane Doe #16 
JEFFREY EPSTEIN 
SARAH KELLEN 
ADRIANA ROSS, 
a/k/a "Adriana Mucinska" 
28 
9/18/2005 
Jane Doe #16 
JEFFREY EPSTEIN 
SARAH KELLEN 
ADRIANA ROSS, 
a/k/a "Adriana Mucinska" 
.-
29 
9/29/05 
Jae Doe #16 
A 
JEFFREY EPSTEIN 
SARAH KELLEN 
ADRIANA ROSS, 
a/k/a "Adriana Mucinska" 
NADIA MARCINKOVA 
All in violation of Title 18, United States Code, Sections 2423(b) and 2. 
Upon conviction of the violation alleged in ount 1 of this indictment, the defendants, 
JEFFREY EPSTEIN, SARAH KELLEN, ADRIANA ROSS, a/k/a "Adriana Mucinska," and 
NADIA MARCINKOVA, shall forfeit to the United States any property, real or personal, 
la 
which constitutes or is derived from proceeds traceable to the i • 
tion. 
50 
EFTA00191773

Pursuant to Title 28, United States Code, Section 2461; Title 18, United States Code, 
Section 981(a)(1)(C); and Title 21, United States Code, Section 853. 
If the property described above as being subject to forfeiture, as a result of any act or 
omission" the defendants, JEFFREY EPSTEIN, SARAH ICELLEN, ADRIANA ROSS, 
a/k/a "Adriana Mucinska," and NADIA MARCINKOVA, 
(1) 
cannot be located upon the exercise of due diligence; 
(2) 
has been transferred or sold to, or deposited with a third person; 
(3) 
has bee-Raced beyond the jurisdiction of the Court; 
(4) 
has been substantially diminished in value; or 
(5) 
has been commingled with other property which cannot be subdivided without 
difficulty; 
it is the intent of the United States, p 
uant to Title 21, United States Code, Section 853(p), 
to seek forfeiture of any other property of the defendants up to the value of the above 
forfeitable property. 
All pursuant to Title 28 United States Code, Section 2461; Title 18, United States 
Code, Section 981(a)(1)(C); and Title 21 United rues Code, Section 853. 
FORFEITURE 2 
Upon conviction of any of the violations alleged in Counts 12-29 of this indictment, 
the defendants, JEFFREY EPSTEIN, SARAH KELLEN, ADRIANA ROSS, a/k/a "Adriana 
Mucinska," and NADIA MARCINKOVA, shall forfeit to the U 
States any property, real 
or personal, constituting or traceable to gross profits or other proceeds obtained from such 
51 
EFTA00191774

offense; and any property, real or personal, used or intended to be used to commit or to 
promote the commission of such offense, including but not limited to the following: 
a. 
A parcel of land located at 358 El Brillo Way, Palm Beach, Florida 
33480, 
ding all buildings, improvements, fixtures, attachments, and easements found 
therein or thereon, and more particularly described as: 
Being all of Lot 40 and the West 24.3 feet of Lot 39, El Bravo Park, as 
recorded in Plat Book 9, Page 9, in the records of Palm Beach County, Florida 
and 
BEING that prlion lying West of Lot 40, El Bravo Park, in Section 27, 
Township 43 S%,111, Range 43 East, as recorded in Plat Book 9, Page 9, Public 
Records of Palm Beach County, Florida, being bounded on the West by the 
West side of an existing concrete seawall and the northerly extension thereof 
as shown on the Adair & Brady, Inc., drawing IS-1298, dated March 25, 1981, 
and bounded on the East by the shoreline as shown on the plat of El Bravo 
Park, and bounded on the North and South by the Westerly extensions of the 
North and South lines icspectively of Lot 40, containing 0.07 acres7more or 
less. 
A 
Pursuant to Title 18, United States Code, Section 2253. 
If any of the forfeitable property described in the forfeiture section of this indictment, 
as a result of any act or omission of the defendants JEFFREY EPSTEIN, SARAH KELLEN, 
ADRIANA ROSS, a/k/a "Adriana Mucinska," 
ADIA MARCINKOVA, 
(a) 
cannot be located upon the exercise of due diligence; 
(b) 
has been transferred or sold to, or deposited with, a third person; 
(c) 
has been placed beyond the jurisdiction of the Court; 
(d) 
has been substantially diminished in value; or 
52 
EFTA00191775

(e) 
has been commingled with other property which cannot be divided without 
difficulty; 
it is the intent of the United States, pursuant to Title 18, United States Code, Section 2253(o), 
to seekfojeiture of any other property of said defendant up to the value of the above 
forfeitable property. 
Pursuant to Title 18, United States Code, Section 2253. 
FORFEITURE 3 
Upon convictire any of the violations alleged in Counts 2-11 of this indictment, 
the defendants, JEFFREY EPSTEIN, SARAH KELLEN, ADRIANA ROSS, a/k/a "Adriana 
Mucinska," and NADIA MARCINKOVA, shall forfeit to the United States any property, real 
or personal, that was used or intended to be used to commit or to facilitate the commission 
of such violation; and any property real or personal, constituting or derived from any 
proceeds that such person obtained, directly or indirectly, as a result of such violation, 
including but not limited to the following: 
a. 
A parcel of land located at 358 El Brillo Way, Palm Beach, Florida 
33480, including all buildings, improvements, fi 
s, attachments, and easements found 
therein or thereon, and more particularly described as: 
Being all of Lot 40 and the West 24.3 feet of Lot 39, El Bravo Park, as 
recorded in Plat Book 9, Page 9, in the records of Palm Beach County, Florida 
and 
BEING that portion lying West of Lot 40, El Bravo 
, in Section 27, 
Township 43 South, Range 43 East, as recorded in Plat Bo k 9, Page 9, Public 
Records of Palm Beach County, Florida, being bounded on the West by the 
53 
EFTA00191776

West side of an existing concrete seawall and the northerly extension thereof 
as shown on the Adair & Brady, Inc., drawing IS-1298, dated March 25, 1981, 
and bounded on the East by the shoreline as shown on the plat of El Bravo 
Park, and bounded on the North and South by the Westerly extensions of the 
North and South lines respectively of Lot 40, containing 0.07 acres, more or 
less. 
Kant to Title 18, United States Code, Section 1594(b). 
A TRUE BILL. 
FOREPERSON 
R 
R. ALEXANDER ACOSTA 
UNITED STATES ATTORNEY 
A. MARIE VILLAFA&A 
ASSISTANT UNITED STATES ATTORNEY 
F 
T 
54 
EFTA00191777

U.S.1 HARVEY 
1441 
Clio as MO ►Mg (Irk Clf. 1989) 
7201,' and one count of filing a false 
income tax return in April of 1981, a viola-
tion of 26 U.S.C. § 7206(1).1 The govern-
ment alleges that Harvey kept millions of 
dollars derived from his lucrative drug 
dealings in a bank account in the Cayman 
Islands. In his individual income tax re-
turn for the year 1980, however, Haney 
denied that he had any proprietary interest 
in, or authority over, any bank account 
outside the United States" Harvey also 
failed to report the interest income he al-
legedly earned on his Cayman Islands ac-
count on his individual income tax returns 
for the years 1978 to 1982. 
Harvey filed a motion In the district 
court on June 2, 1986 in which he alleged 
that the government had informally grant. 
ed him use immunity in return for his coop-
eration in a drug investigation in 1980. 
Harvey sought a pretrial hearing to require 
the government to prove that the evidence 
it proposed to use at trial was derived from 
a legitimate source independent of the im-
munized testimony, as Kastigar p. United 
States, 
U.S. 441, 92 S.Ct. 1663, 82 
LEd.2d 
(1972), required. The immuni-
ty agreement was never reduced to writ-
ing, but Harvey was able to point to a 
I. Title 26 U.S.C. 3 7201 provides in part as fol. 
lows: 
Any person who willfully attempts in any 
manna to evade or defeat any tax imposed by 
this title or the payment thereof shall, in addi-
tion to other penalties provided by law, be 
guilty of a felony and, upon conviction there-
of, shall be fined 
or imprisoned not more 
than 5 years, or both. together with the costs 
of prosecution. 
The fine for a violation of section 7201 commit• 
ted before September 3. 1982 is an amount not 
more than $10,000. For violations committed 
after that date, Congress has increased the po 
tential penalty to not more than 8100,000. Tax 
Equity and Fiscal Responsibility Act of 1982, 
Pub.L No. 97-248, § 329, 96 Stat 324, 617-18 
(1982). 
2. Title 26 US.C. § 7206(1) provides in pan: 
Any person who—
(1) DECLARATION UNDER PENALTIES 
OF PERIURY.—Willfully makes and sub-
scnlxs any return statement, or other doc-
ument, which contains or is verified by a 
written declaration that it is made under the 
Ni
es of perjury. and which he does not 
to be true and correct as to every 
matenal ratter; or 
• 
teLa3 
letter from the United States Attorney for 
the Southern District of Alabama acknowl-
edging that Harvey had reached an agree 
ment with the government in 1980. 
The government denied that Harvey had 
been granted any immunity other than a 
simple agreement not to prosecute him for 
certain charges pending in Alabama. Be 
cause it disputed the very existence of a 
grant of immunity, the government object-
ed to the holding of a Kastigar hearing as 
unwarranted. 
Faced with this disputed claim of an un-
written grant of immunity, the magistrate 
did not hold a traditional Kastigar hearing, 
as Harvey had requested. Instead, she 
held a series of "pre-Kastipar" hearings in 
order to determine (1) whether Harvey had 
been granted immunity in 1980, (2) if so, 
what kind of immunity the government had 
granted, and (3) what information Harvey 
had revealed to the government. 
The "pre-Kastigar" hearings revealed 
that in June of 1980 a grand jury sitting in 
the Southern District of Alabama had in-
dicted Harvey and several others for the 
attempted importation of a large quantity 
of quaalude tablets. 
The government's 
case against Harvey was indefensible—
shall be guilty of a felony and, upon convic• 
tion thereof, shall be fined not more than 
$100,000 (8503.000 in the case of a corpora-
tion) or imprisoned not more than 3 year; or 
both, together with the costs of prosecution. 
As for violations of section 7201. the fine for a 
violation of section 7206(1) is an amount not 
more than 810,000 for violations committed be-
fore September 3. 1982. 000.000 if committed 
after that date. Tax Equity and Fiscal Responsi-
bility Act of 1982. Pohl- No. 97-248, § 329, 96 
Stat. 324, 617-1S (1982). 
3. Harvey answered "no" to the following ques-
tion: 'At any time during the tax year, did you 
have an Interest in or a signature or other 
authority over a financial account in a foreign 
country (such as a bank account, or other finan-
cial account)?" See US. Individual Income Tax 
Return 1980 (Form 1040). Schedule B. Part III 
(Foreign Accounts and Foreign Trans). See 
ago 31 C.F.R. ft+ 103.24, 103.26(c) (1980) and 
form TD-F 90-2L1 (requiring each person sub-
ject to US. jurisdiction to report any Interest In 
a bank account in a foreign country). 
EFTA00191778

1442 
889 FEDERAL REPORTER, 241 SERIES 
"slam dunk" to use the evocative words of 
Harvey's lawyer at the time. Making the 
best of the situation, Harvey decided to 
cooperate with the government. 
Although the United States Attorney in 
the Southern District of Alabama did not 
need any of the testimony Harvey offered, 
his counterpart in the Southern District of 
Florida did. Thus, Harvey was able to 
reach a three-sided agreement with the 
government 
Although there was some 
dispute at the "pre-Ka:tiger" hearings 
about the specific terms of the actual bar-
gain struck between Harvey and the 
government, the witnesses agreed that the 
United States Attorney for the Southern 
District of Alabama offered to dismiss the 
indictment pending in that district in return 
for Harvey's cooperation with an investiga-
tion that the United States Attorney for 
the Southern District of Florida was con-
ducting. The United States Attorney for 
the Southern District of Florida sent sever-
al Drug Enforcement 
Administration 
("DEA") agents to Alabama where they 
interviewed Harvey. Apparently Harvey 
met his side of the bargain, and the United 
States Attorney dismissed the indictment 
against Harvey in the Alabama quaalude 
case. 
The testimony differed sharply as to any 
further elements of the agreement. After 
weighing all the evidence, the magistrate 
found that in addition to agreeing to drop 
the Alabama indictment, the government 
4. Under the net worth method the government 
establishes the taxpayer's total assets and liabili. 
ties at the beginning ol the year and compares 
them with the taxpayer's assets and liabilities at 
the end of the year. If the excess of assets over 
liabilities increases during the year the increase 
is taxable unless the taxpayer can show that the 
increase represents nontaxable income. See, 
as.. Holland v. United Slates. 34$ U.S. 121. 75 
S.Ct. 127, 99 LEd. 150 (1954) (approving net 
worth method of reconstructing taxable income 
under predecessor of current Internal Revenue 
Code section 446). 
5. In a separate motion before the district court 
Harvey sought to have the court exclude these 
documents which the government had obtained 
through the "tinned Kingdom-United Stater 
Agreement Concerning Obtaining Evidence 
From Cayman Islands With Regard to Narcotics 
Activities." The gravamen of Harvey's argu-
ment is that the United States may obtain evi. 
had granted Harvey both transactional im-
munity and use immunity for any informa-
tion he had revealed to the DEA officials in 
1980. 
Because the DEA agents who inter-
viewed Harvey had failed to keep any 
records whatsoever of their conversations 
with Harvey, the daunting task of recon-
structing what Harvey disclosed to the 
DEA agents in 1980 now faced the magis-
trate. The magistrate found that Harvey 
had told the agents about all of the drug 
deals in which he had been involved before 
and at the time of his arrest in 1980, and 
had also "divulged ... his financial deal-
ings with respect to his illegal drug deals." 
This information included the identification 
of the funds in the Cayman Islands bank. 
Having thus determined what had hap-
pened in 1980, the magistrate turned to the 
1985 tax evasion indictment. Stephen Sny-
der, the Justice Department's Criminal Tax 
Division attorney responsible for the inves-
tigation of the government's case and its 
presentation to the grand jury appeared at 
the "pre-Kettiger" hearings. Snyder tes-
tified that the government had used the net 
worth method of proving to the grand jury 
that Harvey had substantially underreport-
ed his income in the prior years.' In addi-
tion, the government also introduced doc-
uments obtained from the Bank of Nova 
Scotia in the Cayman Islands showing pay-
ment of interest to Harvey during the 
years in question.' Snyder further testi-
dcncc from the Cayman Islands under the 
agreement only when it does so at pan of an 
investigation for narcotics violations. Because 
the government was investigating him solely for 
tax evasion, Harvey argues that it could not 
invoke the provisions of the agreement (even 
though the corpus of the money was derived 
from narcotics activity). The district court dis-
missed the indictment against Harvey before 
addressing this question; therefore, because this 
question is not now before us. we do not ad-
dress it. nor do we address Harvey's standing to 
raise it. 
During oral argument Harvey also suggested 
that the government must have used the tail. 
mony he gave under immunity when it certified 
to the government of the Cayman Islands—as it 
had to in order to obtain documentary evidence 
under the terms of the agreement—that Harvey 
was involved in narcotics activity. Because we 
conclude that the government is entitled to 
EFTA00191779

U.S.1 HARVEY 
1443 
atom 119 
MI Matte Ha) 
fied that he told the grand jury that the 
For the purposes of this appeal the 
probable source of Harvey's income was 
his drug-related activities. 
The magistrate did not allow the govern-
ment to show that it had derived the evi-
dence it presented to the grand jury—or 
that it intended to introduce at trial—from 
legitimate independent sources. The hear-
ing transcript, currently under seal, reveals 
conclusively that Snyder began to testify 
about the trail that led to Harvey's Cayman 
Islands bank account, but upon the objec-
tion of Harvey's counsel, the magistrate 
stopped Snyder from testifying further. 
The magistrate considered such informa-
tion irrelevant to the "pre-Kostipar" hear-
ing; instead, the magistrate reasoned that 
whether the government derived the infor-
mation leading to the indictment from inde-
pendent sources was properly a matter 
only for a true Kastigar hearing. 
With the findings of fact set out, the 
magistrate then made a "Finding of Law" 
in which she concluded that the information 
concerning Harvey's drug activities and re-
lated financial dealings formed the basis 
for the tax indictment and was "inextrica-
bly tied" to the information that Harvey 
had revealed to the DEA agents in 1980. 
Even though she had refused the govern-
ment the opportunity to demonstrate that 
the evidence against Harvey came from • 
source independent of the immunized testi-
mony, the magistrate concluded that the 
evidence presented to the grand jury was 
"tainted." The magistrate further conclud-
ed that the indictment violated the grant of 
immunity extended to Harvey and recom-
mended that the district court dismiss the 
indictment. 
The district court reviewed the record de 
novo and agreed with the magistrate's fac-
tual finding that the government had ex-
tended both use and transactional immuni-
ty to the appellee. The district court dis-
missed the indictment with prejudice. 
l
ye that It derived the evidence spina Her-
from sources independent of the immunized 
imony. we need not address this. 
6. Thus, the government at least implicitly has 
come to recognize that the 1980 immunity 
agreement bars any prosecution for tax evasion 
allegedly committed before September of 1980 
government does not dispute the factual 
fmdlngs of the magistrate and district 
court that Harvey received transactional 
and use immunity in 1980 and that he told 
the DEA agents about his financial deal-
ings, including the existence of the funds in 
the Cayman Islands. 
The government, 
however, vigorously disagrees with the le 
gal conclusion that such a grant of immuni-
ty given in 1980 bars Harvey's prosecution 
for failure to report the existence of a 
foreign bank account or the interest earned 
on that account in years after that grant of 
immunity' 
iI. INFORMAL GRANTS OF 
IMMUNITY 
We note at the outset that this appeal 
would not be necessary had the United 
States Attorneys for the Southern Districts 
of Alabama and Florida reduced their 
agreement with Harvey to writing. The 
magistrate and district court have been put 
through the arduous task of reconstructing 
the terms of the agreement with the 
government, a task made still more diffi-
cult by the astonishing failure of the DEA 
agents who interviewed Harvey to keep 
any written records of those interviews. 
Informal grants of immunity are by their 
very nature less certain than formal 
grants, and thus are much more likely to 
ante confusion for the government and 
for the courts in the future. As long as 
prosecutors continue the practice of unwrit-
ten grants of immunity, they open the door 
for subsequent litigation such as this, and 
for adverse decisions as well. 
(II Due process requires the govern-
ment to adhere to the terms of any plea 
bargain or immunity agreement it makes. 
Ste Mabry v. Johnson, 467 U.S. 504, 104 
S.Ct. 2643, 81 L.Ed.2t1 437 (1984) (plea 
agreement); Santobetto v. New York, 404 
(the date of the immunity agreement). or any 
other legal action, such as forfeiture. that might 
arias from violations that allegedly took place 
before the immunity agreement. Harvey got a 
fresh start in 1980. including his Cayman Is.
money. 
EFTA00191780

1444 
869 FEDERAL REPORTER, 2d SERIES 
U.S. 267, 92 S.Ct 496, 30 LEd.2d 427 
(1971) (plea agreement); In re Arnett, 804 
F.2d 1200 (1111 Cw.1986) (plea agreement); 
Rowe v. Griffin, 676 F.2d 624 (11th Cir. 
1982) (immunity) United States v. Weiss, 
599 F.2d 780, 737 (6th Cir.1979) (immunity) 
(Tuttle, J.) ('lle protect the voluntariness of 
a waiver of fifth amendment rights, where 
a plea, confession, or admission is based on 
a promise of a plea bargain or immunity, 
the government must keep its promise."). 
See also Plaster a. United States, 789 F2d 
289 (4th Gir.1986) (Immunity); Johnson v. 
Luntpkin, 769 F.2d 630 (9th Cir.1985) (plea 
agreement); United States v. Carter, 454 
F.2d 426, 427 (4th Cir.1972) (in bane) (immu-
nity) ("if the promise was made to defen-
dant as alleged and the defendant relied 
upon it in incriminating himself, the 
government should be held to abide by its 
terms"). This is true because by entering 
into a plea agreement the defendant for-
goes his important constitutional right to a 
jury trial, or by testifying under a grant of 
immunity he forgoes his fifth amendment 
privilege. In either case courts will en-
force the agreement when the defendant or 
witness has fulfilled his side of the bar-
gain. 
121 Although federal law no longer pro-
vides for formal, statutory grants of trans-
actional immunity' a prosecutor may, as in 
this case, informally grant transactional 
immunity to a witness in return for his 
cooperation in a criminal case. Similarly, 
although 18 U.S.C. H 6002-6003 provide 
for court-supervised grants of use immuni-
ty, prosecutors may extend such immunity 
informally as well. Harvey did not receive 
a formal (statutory) grant of transactional 
or use immunity, yet because due process 
requires us to enforce the government's 
agreement with Harvey, we apply the same 
rules and method of analysis to an informal 
grant of use or transactional immunity as 
we would to a formal grant' E.g., United 
7. As a part of the Organized Crime Control Act 
of 1970 Congress added the current scheme for 
statutory grants of use Immunity. currently co-
III
13 U.S.C. §§ 6001.4005. and repealed 
other Immunity statutes. Including 
trap
transactional immunity provisions, that had 
been scattered throughout the United States 
States v. Quatermain, 613 F.2d 88, 41 (3d 
Cr.), eert denied, 446 U.S. 954, 100 S.Ct. 
2923, 64 L.Ed.2d 812 (1980). We will exam-
ine each in turn. 
III. USE IMMUNITY 
The first issue we address is the effect 
the 1980 grant of use immunity has on the 
current prosecution for tax evasion. This 
question is essentially evidentiary in na-
ture. As we discuss below, the govern-
ment may not use, either directly or deriva-
tively, any testimony Harvey gave under 
the 1980 grant of use immunity against 
him in a subsequent related prosecution. 
We discuss in a separate section the an-
alytically distinct question of whether the 
government may ever prosecute Harvey 
for tax evasion. Resolution of that ques-
tion depends on the scope of the 1980 grant 
of transactional immunity Harvey re-
ceived. 
(3-6) Use immunity prohibits the use of 
compelled testimony, or any evidence de-
rived directly or indirectly from that testi-
mony, against the witness in a criminal 
prosecution. See generally Kastigar v. 
United Ste i 
406 U.S. 441, 92 S.Ct 1653, 
32 LEd2d 
(1972). In contrast to trans-
actional immunity, use immunity does not 
prohibit the government from prosecuting 
the witness for crimes about which he testi-
fied, provided the government proves that 
it has other evidence to support the prose-
cution that "is derived from a legitimate 
source wholly independent of the compelled 
testimony." Id., 406 U.S. at 460, 92 S.Ct. 
at 1665. 
Pursuant to Title 18 U.S.C. 
§§ 60024003, a district court may formally 
grant use immunity to a witness who refus-
es to testify on the basis of his fifth amend-
ment privilege, or, as here, a prosecutor 
may informally grant use immunity to a 
witness in return for his cooperation in a 
criminal ease. When a defendant has dem-
Code. Puha. No 91-432, H 201-260. 84 Sat 
922 (1970). 
a. We note that the government has not alleged 
that Harvey in some way failed to meet his end 
of the bargain. "'Isadore, our task Is simply to 
enforce the agreement with Harvey. 
EFTA00191781

US... HARVEY 
1445 
ells QOM rid 1434 (Inbar. 1949) 
onstrated that he testified under a grant of 
IV. TRANSACTIONAL IMMUNITY 
use immunity, the burden shifts to the 
prosecution which then has "the affirma-
tive duty to prove that the evidence it pro-
poses to use is derived from a legitimate 
source wholly independent" of the testimo-
ny given under the grant of immunity. See 
Braswell v. United States, — US. —, 
108 S.Ct. 2284, 2295, 101 LEd.2d 98 (1988); 
Kastigar, 406 U.S. at 460, 92 S.Ct at 1666. 
See also Murphy v. Waterfront Comm.; 
378 U.S. 52, 79 n. 18, 84 S.Ct. 1694, 1609 n. 
18, 12 LEd.2d 678 (1964). 
The government contends that it derived 
the evidence it used to secure Harvey's 
indictment by the grand jury and the evi-
dence it intended to use at trial, from an 
independent source. 
In essence, the 
government claims that while investigating 
someone else the Criminal Tax Division of 
the Justice Department came upon a trail 
of evidence that led to Harvey's bank ac-
count in the Cayman Islands. 
As we noted above, the record reveals 
that the magistrate did not permit the 
government to show the independe 
sources of its evidence against flame 
The magistrate recommended that the i 
dictment be dismissed after having con-
ducted only the "pre-iCastipar" hearing. 
Similarly, the district court dismissed the 
indictment in part because it believed that 
all of the government's evidence was given 
under the 1980 grant of immunity. Yet 
such a conclusion was premature without 
giving the government the opportunity to 
meet its burden under Kastigar of proving 
the independent source of its evidence. 
For the same reason, any conclusion that 
tainted evidence sufficient to justify dis-
missing the indictment was presented to 
the grand jury was also premature because 
the government may have been able to 
demonstrate that the evidence was not 
tainted at all. 
9. Transactional immunity statutes typically pro. 
aided that "no person shall be prosecuted or 
subjected to any penalty or forfeiture for or on 
account of any transaction, manor or thin& 
concerning which he may testify, or produce 
evidence, documentary or otherwise ....Masa-
A. 
161 The more difficult issue in this ap,
peal is whether the transactional immunity 
Harvey received in 1980 prohibits the 
government from prosecuting him for tax 
violations committed after that grant of 
immunity. We conclude that it does not. 
(7) Transactional immunity "accords 
full immunity from prosecution for the of-
fense to which the compelled testimony re-
lates." Kastigar v. United States, 406 
U.S. 441, 463, 92 S.Ct. 1653, 1661, 82 L.Ed. 
2d 212 (1972).' The purpose of a grant of 
transactional (or use) immunity is to pre-
clude a witness's reliance on his fifth 
amendment privilege against compelled 
self-incrimination: the government may 
compel a witness to testify by granting him 
immunity, provided that the scope of the 
immunity is at least as great as that of the 
fifth amendment privilege that the witness 
must forego. 
See Kastigar v. United 
States, 406 US. at 449, 92 S.Ct. at 1659; 
Counselman v. Hitchcock 142 U.S. 547, 
564, 586-87, 12 S.Ct. 195, 198, 206, 95 LEd. 
1110 (1892). As such, in deciding the scope 
of a grant of immunity the Supreme Court 
traditionally has referred to the scope of 
the fifth amendment privilege itself. 
For example, in Heike v. United States 
227 U.S. 131, 33 S.Ct. 226, 67 L.Ed. 450 
(1913) (Holmes, J.), the Court refused to 
construe broadly a transactional immunity 
statute that provided that "no person shall 
be prosecuted or be subjected to any penal-
ty or forfeiture for or on account of any 
transaction, matter, or thing concerning 
which he may testify or produce evidence, 
documentary or otherwise, in any proceed. 
ing, suit, or prosecution under (the inter-
state commerce and anti-trust acts]." 
Heike, 227 U.S. at 141, 33 S.Ct. at 227 
(quoting Act of February 25, 1905, ch. 755, 
82 Stat. 904). The Court saw "no reason 
for supposing that the act offered a gratui-
gar v. United Stem 4011:441, 451, 92 S.Q. 
1633. 1660.32 LEd.2d 
(1972)(9w:stint from 
Compulsory Testimony 
of 1893, which 
served as a model for numerous federal immu-
nity statutes). 
EFTA00191782

1446 
869 FEDERAL REPORTER, 2d SERIES 
ty to crime." Id. at 142, SS S.Ct. at 228. 
Instead, the Court reasoned that a grant of 
immunity "should be construed, so far as 
its words fairly allow the construction, as 
coterminous with what otherwise would 
have been the privilege of the person con-
cerned." t, 
33 S.Ct. at 228. See alto 
Shapiro 
United States, 335 U.S. 1, 19, 
68 S.Ct. 
6, 1385, 92 L.Ed. 1787 (1948) 
(following rule of construction of Mike). 
More recently, in Kastigar, the Court up-
held the constitutionality of 18 U.S.C. 
6002 on the ground that use immunity 
"is coextensive with the scope of the privi-
lege against self-incrimination, and there-
fore is sufficient to compel testimony over 
a claim of the privilege." 406 U.S. at 453, 
92 S.D.. at 1661. 
The Court noted in Kastigar that trans- 
actional immunity is broader than the fifth 
amendment privilege because it provides 
for full immunity from future prosecution, 
while the fifth amendment privilege "has 
never been construed to mean that one who 
invokes it cannot subsequently be prose-
cuted." Id. Yet the Court has never indi-
cated that transactional immunity is in any 
other respect broader than the fifth amend-
ment privilege. Thus, transactional immu-
nity and use immunity are coterminous 
with the fifth amendment privilege in all 
respects other than their effect on the 
government in the future. A grant of use 
immunity prohibits the government from 
using evidence disclosed either directly or 
derivatively, while a grant of transactional 
immunity prohibits the government from 
prosecuting the witness at any time with 
respect to the incriminating matters the 
witness disclosed. 
Although Kastipar and Hake were cases 
in which the witness refused to testify, and 
thus the Court had to look to the scope of 
the fifth amendment privilege in order to 
determine whether the proffered immunity 
sufficed to displace that privilege, we be-
lieve the same principles apply to the case 
to. We note that neither the magistrate nor the 
distria court found that the plea agreement 
included anything other than the dismissal of 
the Alabama indictment and the grant of use 
and transactional Immunity. Nor does Harvey 
suggest during this appeal that his agreement 
before us now. The magistrate found as a 
fact, and the district court affirmed her 
finding, that the government extended use 
and transactional immunity to Harvey in 
return for his cooperation, i.e., his testimo-
ny. Absent any factual finding to the con-
trary, we believe it proper to conclude that 
this grant of immunity was fully as broad 
as the fifth amendment privilege that Har-
vey gave up when he disclosed his illegal 
activities to the DEA agents. By the same 
token, we believe that—absent any con-
trary factual finding—we should not con-
clude that the scope of the immunity Har-
vey received was any greater than that of 
the fifth amendment privilege he gave up.10
Thus, Harvey received transactional and 
use immunity for any testimony as to 
which he could have invoked his fifth 
amendment privilege in September of 1980. 
With this in mind, we turn now to the 
issue of when may a witness invoke his 
fifth amendment privilege with respect to a 
crime he has not yet committed. 
B. 
(8) In general, the privilege against 
self-incrimination only prohibits compelled 
testimony that might incriminate a witness 
for crimes he had already committed, or 
was in the process of committing, at the 
time the testimony was given. See Conn-
seintan, 142 U.S. at 662, 12 S.Ct. at 198 
(purpose of privilege is "to insure that a 
person should not be compelled, when act-
ing as a witness in any investigation, to 
give testimony which might tend to show 
that he himself had committed a crime") 
(emphasis added); United States v. Qua-
terntain, 613 F.2d 88, 42 (3d Cir.), art. 
denied, 446 U.S. 954, 100 S.Ct. 2923, 64 
L.Ed.2d 812 (1980). Twenty years ago, 
however, the Supreme Court rejected a rig-
id chronological test under the fifth amend-
ment privilege, focusing instead on the sub-
stantiality of the risk the witness faced. 
involved anything more. Thus, we are working 
solely with the familiar categories of Venue. 
Ilona] and use immunity, and do not face any 
different "species of irrununity--e.g., an express 
agreement not to prosecute for future tax viola-
tions with respect to the Cayman Islands funds. 
EFTA00191783

U.S. 
HARVEY 
Cas al Mr 
1431 filth Cur. lass) 
In Marchetti v. United States, 390 U.S. 
the general rule that the fifth amendment 
39, 88 S.Ct. 69'7, 19 L.Ed.20:1 889 (1968) the 
Supreme Court held that the fifth amend-
ment privilege was not entirely inapplicable 
to prospective acts. The petitioner in Man 
chetti was convicted of violating provisions 
of a statute that required professional 
gamblers to register annually with the In-
ternal Revenue Service and pay an occupa-
tional tax. The Court, overruling a prior 
case that had upheld the very same statute, 
United Stain v. Kahriger, 345 U.S. 22, 73 
S.Ct. 510, 97 LEd. 764 (1953), held that the 
petitioner's assertion of his fifth amend-
ment privilege in refusing to comply with 
the statute provided a complete defense to 
his prosecution for failing to register and 
pay the occupational tax." 
Marchetti explicitly rejected the notion 
that the fifth amendment privilege offers 
protection only as to past and present acts. 
390 U.S. at 53, 88 S.Ct at 705. Instead, 
the Court emphasized that "R)he central 
standard for the privilege's application has 
been whether the claimant is confronted by 
substantial and 'real,' and not merely tri-
fling or imaginary, hazards of incrimina-
tion." Id., 88 S.Ct. at 705. Relying on this 
standard, the Court held that the hazards 
of incrimination created by the registration 
and occupational tax provisions as to fu-
ture acts were not "trifling or imaginary" 
because prospective registrants could rea-
sonably expect that compliance with these 
provisions "may serve as decisive evidence 
that they have in fact subsequently violat-
ed state gambling prohibitions." Id, 88 
S.Ct. at 706. 
Although application of this standard 
proved favorable to the petitioner in Mar-
chetti, the Court stressed that this would 
not usually be the case, as prospective acts 
"will doubtless ordinarily involve only spec-
ulative and insubstantial risks of incrimina-
tion." Id. at 54, 88 S.Ct. at 705. Thus, 
although Marchetti created an exception to 
It. Marchetti also overruled Lewin v. United 
Stein, 348 US. 419. 75 S.Ct. 415, 99 LEd. 475 
(1955), which had held that the wagering tax 
provisions did not violate the fifth amendment 
privilege because they were not compulsory. 
According to the Lewis Court. Ube only corn. 
pulston under the Act Is that requiring the dart. 
1447 
privilege applies only to past and present 
criminal acts, the exception is a very nap 
row one. 
In United Stater v. Freed, 401 U.S. 601, 
91 S.Ct. 1112, 28 L.Ed.241 366 (1971), the 
Court emphasized the narrowness of the 
fifth amendment privilege's application to 
future conduct. In Freed the Court reject-
ed the argument that a registration re-
quirement of the National Firearms Act 
violated the fifth amendment because the 
information disclosed could be used in con-
nection with offenses that the transferee of 
the firearm might commit in the future. In 
so doing, the Court stated: 
Appellee's argument assumes the exist-
ence of a periphery of the Self—Incrimi-
nation Clause which protects a person 
against incrimination not only against 
past or present transgressions but which 
supplies insulation for a career of crime 
about to be launched. We cannot give 
the Self-Incrimination Clause such an ex-
pansive interpretation. 
Id at 606-07, 91 S.Ct. at 1117. Thus, Mar-
chetti and Freed teach that the focus of 
inquiry under the fifth amendment is 
whether the witness faces a substantial 
risk of incrimination. When the witness 
has not yet committed the crime, or is not 
in the process of committing it, his risk of 
incrimination is generally so speculative as 
to remove him from the aegis of the fifth 
amendment privilege. 
Lower court opinions also make clear 
that the fifth amendment privilege rarely 
will apply to future conduct. For example, 
in United States o. Quatermain, 613 F.2d 
38, 42-43 (3d Cir.), cert. denied 446 US. 
954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980), 
the court noted that Marchetti did not sup-
port the defendant's argument that the 
fifth amendment privilege applies to a wit-
ness who refuses to testify because he 
asserts that his testimony somehow may be 
don which wouid•be gamblers mutt make at the 
threshold. They may have to give up gambling 
but there is no constitutional right to gamble. 
If they elect to wager. though it be unlawful, 
they must pay the tax," 3411 US. at 422-23. 75 
5.0. at 418. 
EFTA00191784

1448 
889 FEDERAL REPORTER, 2d SERIES 
used to incriminate him in a prosecution for 
a different type of criminal act that he may 
commit in the future. 
Accordingly, the 
court held that the defendant's testimony 
under an informal grant of use immunity 
about his involvement in a drug ring did 
not prevent the government from indicting 
him for subsequently manufacturing a gun 
silencer, even though the district court 
found that the defendant's immunized testi-
mony had helped lead to the indictment on 
the gun charge. See also United States 
Gallo, 859 F.24 1078, 1088 (24 Cir.19 
(Van Crasfeiland, J., concurring) ("Licens-
ing and taxing statutes aside, the only haz-
ards of incrimination that are likely to be 
considered substantial and real are those 
which relate to existing or pant misdeed or 
a continuing course of criminal activity."). 
C. 
When we apply these principles to the 
case at hand, we see that the information 
Harvey revealed to the DEA agents in Sep-
tember of 1980 could not have created sub-
stantial and real hazards that it would in-
criminate him for tax crimes he later alleg-
edly committed in April of 1981, 1982 and 
1983. 
Counts three through five of the 
indictment charged Harvey with evasion of 
income taxes for the years 1980, 1981, and 
1982, offenses that could not have occurred 
until April of 1981, 1982, and 1983, when 
Harvey filed his tax returns for the preced-
ing years." Furthermore, the crime of 
willfully filing a false tax return for income 
earned in 1980, as charged in count six of 
the indictment, could not have occurred 
until April of 1981 when Harvey filed the 
allegedly fraudulent return." Thus, al-
though the crimes charged in counts three 
and six of the indictment related to Har-
vey's 1980 taxes, the immunity granted in 
12. See Sansorrejl United States, 380 U.S 343, 
351, 85 act. 1 
1010, 13 LEd.2d 882 (1965) 
(violation of 26 U.S.C. 17201 does not occur 
until the defendant commits an affirmative act 
constituting an evasion or attempted evasion of 
the tax). 
13. See United &WM v. Bishop, 412 US. 346. 
357-58, 93 S-Ct. 2008, 2016. 36 1...F.d.2d 941 
(1973). 
1980 did not apply to these crimes, because 
they did not occur until April of 1981, well 
after immunity was granted. 
According to his testimony at the pre-
Kasiigar hearing, Harvey had revealed to 
the DEA agents that be had deposited mil-
lions of dollars, earned through illegal drug 
transactions, into his accounts at the Nova 
Scotia Bank in the Cayman Islands. He 
also told the agents how he set up corpora-
tions in the Cayman Islands to launder 
drug money. In September of 1980, the 
defendant could not have had "substantial 
and real" fears that this information would 
incriminate him for evasion of taxes on 
interest income that either was not yet 
required to be reported or had not yet been 
earned, or for filing a false income tax 
return that was not due for months to 
come." Haney could not have asserted 
his fifth amendment privilege with respect 
to these matters, therefore they are outside 
the scope of the immunity he received in 
1980. 
Put another way, each failure to report 
income and each failure to disclose the 
Cayman Islands account was • separate 
transaction, in the eyes of the law separa-
ble from the 
transactions for which 
Haney received immunity. Harvey had a 
right by contract to receive the interest 
income on his money, a right he presum-
ably could have enforced in a Cayman Is-
lands court. Similarly, each year Harvey's 
failure to report the interest on the foreign 
account was a separate transaction. The 
duty to report the existence of the foreign 
bank account in April of 1981, was a sepa-
rate transaction, unrelated to what had 
gone before. The mere fact that Harvey 
failed to disclose funds the existence of 
which he had disclosed under a grant of 
to. Even if Haney was certain that he intended 
cal the exigence of the Cayman Islands 
and the interest earned there from his 
acre tax returns. that would not suffice to 
make the threat of future prosecution "real and 
substantial." A witness may not say under a 
grant of immunity, I 
ant an inveterate tax 
cheat," and later claim Immunity from any fu. 
tune tax violations. The law will not deem his 
risk of incrimination substantial because the 
law expects him to be honest in the future. 
EFTA00191785

U.S. I HARVEY 
Duo sal* ?id 14.19 (11thClr. teem 
immunity does not alter the independent 
understanding it is possible to apply 
duty Harvey had to report his income accu- 
correct analysis to the case at hand. 
rately. 
We must reject Harvey's argument that 
the 1980 grant of transactional immunity 
somehow shielded the Cayman Islands 
funds themselves from the reach of the tax 
laws." There is no such thing as in rem 
immunity. Harvey became immune from 
prosecution for those transactions about 
which he testified, but the money he dis-
closed did not somehow partake of this 
immunity. The grant of transactional im-
munity the government extended to Har-
vey in 1980 does not prohibit prosecution 
for tax violations he allegedly committed in 
the years following that grant of immunity. 
CONCLUSION 
For the reasons we have stated above, 
we REVERSE the decision of the district 
court and REMAND for proceedings con-
sistent with this opinion. 
CLARK, Circuit Judge, dissenting: 
The majority has written a well reasoned 
opinion on the scope of formal statutory 
immunity. Insofar as the court holds that 
under a formal grant of immunity, an indi-
vidual is shielded from prosecution only to 
the extent of his Fifth Amendment privi-
lege, I believe it correctly states the law. 
Unfortunately, this case does not involve 
formal statutory• immunity. Instead, this 
case involves an agreement between the 
defendant and the prosecutor in which the 
prosecutor agreed not to prosecute the de-
fendant in return for his cooperation. Not 
only does the majority fail to recognize the 
fundamental difference between the two 
forma of immunity, it assumes that the 
same rules apply to formal and informal 
immunity. Since the same principles do 
not apply, i dissent. To understand why 
the analysis of the majority is erroneous, it 
is necessary to understand the various 
forms of "immunity." 
Only with that 
IS. Whether Harvey himself reasonably believed 
this is a matter for the jury, which under 26 
US.C. 1/2  7201 and 7206(1) must find that he 
wilfully violated the reporting requirements of 
I 
1449 
the 
In two key sections, the majority states 
that the same rules apply to formal and 
informal immunity. Supra at 1444, 1446. 
Specifically the majority holds that the 
scope of any grant of immunity is defined 
by the Fifth Amendment. Before explain-
ing this error, it is necessary to understand 
the difference between transactional and 
use immunity as well as the difference 
between formal and informal immunity. 
Transactional immunity "accords full im-
munity from prosecution for the offense to 
which the compelled testimony relates." 
Kastigar v. United States, 406 U.S. 441, 
463, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 
(1972). Use immunity, on the other hand, 
is more limited; it protects the individual 
from prosecution through the use of the 
immunized testimony or evidence derived 
from that testimony. 
Therefore, while 
transactional immunity prohibits any fu-
ture prosecution, use immunity only limits 
the government's manner of proof in a 
subsequent prosecution. This distinction is 
significant in this case because the magis-
trate found that the government granted 
Harvey "transactional immunity" or full 
immunity from prosecution. As the majori-
ty correctly states, the issue in this case is 
the scope of that "transactional immunity." 
The majority holds that the scope is coex-
tensive with the Fifth Amendment privi-
lege. To understand why the majority is 
incorrect, it is necessary to understand the 
distinction between formal and informal im-
munity. Because the two forms of immu-
nity come from different sources, the scope 
of each type of immunity differs. 
Formal or statutory immunity is set out 
in 18 U.S.C. § 6001 et seq. Immunity is 
granted by a court upon the U.S. Attor-
ney's request when a witness refuses to 
testify before a grand jury or at trial based 
the tax code. See supra. notes I & 2. We need 
not address the reasonableness of Harvey's be-
lief. 
EFTA00191786