United States v. Connolly

Gavin Black (defendant) was an employee of Deutsche Bank AG. Following an internal investigation conducted by Deutsche Bank and its outside counsel, Paul Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss), Black was indicted and convicted for manipulating interest rates. The internal investigation of Black by Deutsche Bank and Paul Weiss was conducted in concert with and possibly at the direction of the federal government (plaintiff). In the course of the investigation, Black made potentially self-incriminating statements to Paul Weiss during multiple interviews. However, the government did not ultimately (1) use Black’s statements as evidence before the grand jury or at Black’s trial, (2) introduce the statements indirectly, or (3) use the statements to introduce other evidence. Furthermore, the government’s interview materials contained no indication that the government used Black’s statements in any way related to other witnesses. Rather, the government’s indictment—and therefore subsequent conviction—of Black relied solely upon information from witnesses untainted by Black’s statements and from documents provided by Deutsche Bank. Black filed a motion, seeking to have his conviction vacated and his indictment dismissed. Black argued that—pursuant to Kastigar v. United States, 406 U.S. 441 (1972), which held that the government may compel testimony from a witness who has invoked the Fifth Amendment right to silence by giving that witness immunity from use of both the compelled testimony and any evidence derived from that testimony in a subsequent criminal proceeding—Black’s statements to Paul Weiss were de facto compelled testimony by the government. Black reasoned that Paul Weiss had been working at the government’s direction and that his indictment and conviction were based on those statements, violating Black’s constitutional right against self-incrimination. [Editor’s Note: A summary of the Kastigar opinion is available at https://www.quimbee.com/cases/kastigar-v-united-states.]