UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,
v.
FRANK ZIELEZINSKI, DEFENDANT/APPELLANT

9th Cir. | 1985-04-04
No. 84-1286
756 F.2d 1448 United States Court of Appeals for the Ninth Circuit (1985)

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Holding

The court held that the district court's finding that the indictment was not tainted by immunized testimony was not clearly erroneous.


Facts & Procedural History

Appellant was convicted of possession of cocaine. On a prior appeal, the case was remanded for a hearing to determine if the indictment was tainted by…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Frank Zielezinski appeals from a district court judge’s order upholding his conviction for possession of cocaine in violation of 21 U.S.C. § 844(a) (1982). In the first appeal from his conviction, Zielezinski argued that a separate evidentiary hearing should be held to determine whether his indictment was tainted by his immunized testimony before the grand jury. This court remanded the case to the district court for a hearing at which the government was required to demonstrate that the indictment rested on sources independent of Zie-lezinski’s testimony. United States v. Zie-lezinski, 740 F. 2d 727, 734 (9th Cir.1984).

Following the hearing, Judge Earl Carroll of the United States District Court for the District of Arizona issued an order upholding Zielezinski’s conviction. The judge found that the government’s sources of evidence were independent of the defendant’s immunized testimony, the government’s conduct did not threaten the integrity of the indictment by the grand jury, and that there was nothing in the record to suggest that the grand jury’s decision was based on an assessment of the defendant’s credibility.

The finding of the district court that the government’s evidence is untainted by immunized testimony must be upheld unless clearly erroneous. United States v. Rogers, 722 F. 2d 557, 560 (9th Cir.1983), cert. denied, — U.S. -, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984). Defendant’s counsel conceded at the hearing that the record includes evidence of the government’s independent sources, but argued, and continues to argue in this appeal, that the indictment was tainted by the grand jury’s assessment of Zielezinski’s credibility during his immunized testimony. Judge Carroll specifically addressed this argument at the hearing. A review of the record discloses nothing that compels a reversal of Judge Carroll’s finding as clearly erroneous.

AFFIRMED.


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