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756 F2d 1448 United States v. Zielezinski

756 F.2d 1448

UNITED STATES of America, Plaintiff/Appellee,
v.
Frank ZIELEZINSKI, Defendant/Appellant.

No. 84-1286.

United States Court of Appeals,
Ninth Circuit.

Submitted Feb. 1, 1985.
Decided April 4, 1985.

Sherry P. Herrgott, Phoenix, Ariz., for plaintiff-appellee.

Larry L. Debus, Debus, Bradford & Kazan, Phoenix, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before GOODWIN, PREGERSON and NELSON, Circuit Judges.

PER CURIAM.

1

Frank Zielezinski appeals from a district court judge's order upholding his conviction for possession of cocaine in violation of 21 U.S.C. Sec. 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 Zielezinski's testimony. United States v. Zielezinski, 740 F.2d 727, 734 (9th Cir.1984).

2

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.

3

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.

4

AFFIRMED.