United States v. Sasson (334 F. Supp. 2d 347, 2004)

MEMORANDUM

KORMAN, Chief Judge.

Ezra Sasson and Zakay Sasson have been charged in a two count superseding indictment for their alleged participation in a money laundering conspiracy. Count One alleges that, from September 1999 until December 2002, the Sassons, along with three other co-defendants, conspired to conduct financial transactions involving the proceeds of specified unlawful activity, namely narcotics trafficking in violation of 21 U.S.C. §§ 841(a) and 846, and that those transactions were designed to conceal the nature, location, source, ownership and control of the proceeds of said narcotics trafficking, in violation of 18 U.S.C. § 1956(a)(1)(B)®. Count Two alleges that, during the same time period, the Sassons, along with nine other co-defendants, knowingly conducted, controlled, managed, supervised, directed, and owned all or part of an unlicensed money transmitting business, in violation of 18 U.S.C. §§ 1960, 1962, and §§ 3551 et seq. They are pending trial.

On March 25, 2004, the Sassons moved to suppress all evidence that the United States Attorney has obtained through a wiretap placed on the cellular phone of one of their co-defendants, Natan Banda. In 1993, some nine years before the wiretap application was submitted, the Sassons had engaged in informal proffer sessions with a different United States Attorney in connection with a different crime. Before the proffer sessions, the Sassons had received assurances that any statements would be given pursuant to the derivative use provisions of 18 U.S.C. § 6002, and after the sessions, they were awarded transactional immunity for their past crime. The Sas-sons now contend that the wiretap application in this case relied on statements they had made in the informal proffer sessions nine years earlier. Consequently, they claim that the admission at trial of evidence procured through the wiretap would violate their Fifth Amendment privilege against self-incrimination. At oral argument held on July 13, 2004, I denied the Sassons’ motion.

I write here to explain my reasoning more fully. The Sassons argue that they received the same use and derivative use immunity that they would have received had their testimony been compelled and that they therefore spoke at the proffer sessions with the assurance that (1) the immunized statements would never be used in the investigation of a future crime, and (2) if they were used, any resulting fruits of those statements would have to be suppressed. As Justice Frankfurter observed in Nardone v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 84 L.Ed. 307 (1939), “[a]ny claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land.” There is no such policy that supports the Sassons’ argument in the circumstances of this case.

Background

In September 1992, federal authorities performed a routine car stop in northern Florida and seized $1.7 million in cash from Ezra Sasson. During the ensuing investigation, Ezra Sasson and his brother, Zakay Sasson, decided to cooperate with the United States Attorney for the Northern District of Florida. They became witnesses in an ongoing criminal investigation of a Colombia-based cocaine trafficker for whom they had laundered money. Neither Ezra Sasson nor Zakay Sasson was compelled to testify against himself. To the contrary, the Sassons provided their assistance in the hopes of receiving transactional immunity, or agreements of non-prosecution. Because the United States Attorney needed assurance that the Sas-sons had information sufficiently valuable to trade for transactional immunity, he needed to first hold a proffer session. On the other hand, the Sassons--needed assurance that, if the proffer was found wanting, their statements would not be used to prosecute them for crimes they disclosed. The use immunity! as correspondence between the Sassons and the United States Attorney demonstrates, was simply an interim step by which the Sassons hoped to secure transactional immunity.

On Noyember 2,. 1993, Assistant United States Attorney Steven P. Preisser memorialized an invitation to engage in immunized proffer sessions in a letter to Ezra Sasson’s attorney. It stated:

Ezra Sasson has agreed to meet with agents of the Drug Enforcement Administration and Internal Revenue Service/CID and to provide a detailed debriefing to those agents ... The debriefing will be given pursuant to the restrictions found in Rule 11(e)(6) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence and the derivative use provisions of Title 18, U.S.C. § 6002.

Notice of Motion, Exhibit B (Letter, dated November 2, 1993). The letter also made clear that, if the United States Attorney was satisfied with the value of Ezra Sas-son’s cooperation, he and his family would be given transactional immunity.

If, after [ ] Ezra Sasson has been debriefed, the Office of the U.S. Attorney is of the opinion that Ezra Sasson has been totally candid and truthful in his disclosures and if the Office of the U.S. Attorney deems the information provided by Ezra Sasson to be of sufficient detail and value to warrant an investigation and/or prosecution of other individuals, then this Office would agree that Ezra Sasson, his wife Marlyn Sredni Sasson and his brother Zakay Sasson would not be subject to criminal prosecution within this district for the conduct occurring in this district on or about September 19, 1992 [the cash seizure].

Id. Regardless of whether or not the United States Attorney was ultimately willing to extend transactional immunity, however, Ezra. Sasson would receive use immunity for his statements.

After the initial proffer session, the United States Attorney for the Northern District of Florida was apparently satisfied with Ezra Sasson’s candor and level of cooperation. Thus, the informal immunity agreement was confirmed and memorialized in a letter to Ezra and Zakay Sasson:

I am writing in follow up of my letter of November 2,1993. EZRA SASSON has met with agents of the Drug Enforcement Administration and the Internal Revenue Service/CID and has provided a debriefing to those agents. Based upon the limited information provided to me by those agents and by the monitoring Assistant United States Attorney in Tallahassee, FL, it is my judgment that the United States would agree to the negotiated settlement as set forth in its November 2,. 1993, letter. Specifically, the. .United States Attorney for the Northern District of Florida agrees that EZRA SASSON will not be subject to prosecution for the conduct occurring in this district on or about September 19, 1992.

Notice of Motion, Exhibit B (Letter, dated December 6, 1993). The second letter also confirmed the immunity provisions of the agreement:

All statements given by EZRA SASSON will be as delineated in the November 2, 1993, letter. You of course recognized that this office can not bind other offices relative to the non-prosecution agreement. However, I believe that the November 2, 1993, letter does protect EZRA SASSON as it pertains to the use of any statements that he might provide to agents in furtherance of this agreement.

Id. Finally, the letter explicitly extended the entire immunity agreement from Ezra Sasson to Zakay Sasson:

In order to facilitate an orderly disposition of these matters, this office is also willing to extend the same offer to ZA-KAY SASSON. Specifically, any information provided by ZAKAY SASSON will be given pursuant to the restrictions found in 11(e)(6) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence, and the derivative use provisions of Title 18, United States Code, Section 6002.

Id. The Sassons’ cooperation ultimately led to indictments against two of their co-conspirators, Beatriz Dror and Carlos Ki-pershmit, and Ezra Sasson testified before the grand jury and at the sentencing of Ms. Dror. See Notice of Motion, Exhibit C; Defendants’ Memorandum of Law, at 6. As a result, neither Ezra Sasson nor Zakay Sasson was ever charged with a criminal offense arising out of the 1992 cash seizure or their confessed money laundering activity.

Some eight years after the Sassons engaged in their principal proffer sessions, in November 2001, the United States Attorney for the Eastern District of New York began to investigate Ezra and Zakay Sas-son’s current co-defendant, Natan Banda, for an unrelated money laundering scheme. The Drug Enforcement Agency reported to investigators that it had learned from Dutch police that Banda was negotiating with Amsterdam-based drug traffickers to launder the proceeds of narcotics sales through Houston, Texas. See Notice of Motion, Exhibit F, at 5 (Letter Brief from Jonathan E. Davis to Judge Sifton in continued support of wiretap, dated July 15, 2002, hereafter “Letter Brief’). Then, in December 2001, investigators learned that an associate of Banda named Menachem Cohen had confirmed with the Israel National Police that Banda had laundered hundreds of thousands of dollars for the Amsterdam-based drug traffickers, and that Banda laundered money for a living. Id. Finally, investigators learned from the United States Customs Service that in August 2001, Customs inspectors had found Banda with a cash-counting machine concealed in his luggage upon returning to the United States from Amsterdam. Id.

These facts led the United States Attorney’s Office for the Eastern District of New York to begin analyzing the call activity of Banda’s cellular phone. Id. The phone’s records confirmed that Banda had used his cellular phone to communicate with the Amsterdam-based drug traffickers, wholesale customers in Houston, and a courier service for high-value items in Houston. Id. Additionally, they revealed that Banda had been in frequent contact with telephones registered to Zakay Sas-son and his company, National Electronics, and that all had been in contact with New York cellular phones registered in the name Moses Dafkal. Id. Upon further investigation, the United States Attorney decided to seek a wiretap on Banda’s cellular phone before Judge Sifton. The affidavit in support of the wiretap application was signed on May 15, 2002, by Matthew Coleman, a Special Agent with the DEA, and was approved by Judge Sifton the same day. See Notice of Motion, Exhibit A. The consequent wiretap recorded several conversations involving the Sassons that the United States Attorney now seeks to admit as evidence against them.

Discussion

I. Whether the inclusion of immunized testimony in wiretap application prevents the use of wiretap evidence against the Sassons

Ezra and Zakay Sasson claim that, if the United States Attorney is permitted to present evidence obtained through its wiretap on Banda’s telephone, their Fifth Amendment rights would be violated. Their argument is that, in the affidavit in support of a wiretap, the United States Attorney “relied upon testimony and information which had been given by Ezra Sas-son and Zakay Sasson to agents of the United States government under a grant of full use and derivative use immunity.” Defendants’ Mem. at 2. They continue: “[T]he inclusion of this information in the Coleman affidavit to establish probable cause to issue the wiretap order against the Sassons, amounted to the unlawful use of their immunized testimony against them, and irrevocably tainted all of the evidence obtained as a result of the wiretap.” Id.

It is undisputed that the affidavit provided in support of the wiretap contained information gleaned as a result of immunity agreements with the Sassons. In paragraphs 23 and 24 of the affidavit, Special Agent Coleman described the Sassons and their relationship to the alleged money laundering scheme. He wrote:

23. From September 1, 2001 and continuing through May 1, 2002 inclusive, there have been more than 130 calls, often in excess of five per week, between the SUBJECT CELLULAR TELEPHONE and telephones in Florida (the “SASSON TELEPHONES”) subscribed to by the SUBJECT INTERCEPTEE and SUBJECT INDIVIDUAL ZAKAY SASSON and/or by the SUBJECT NATIONAL ELECTRONICS. NATIONAL ELECTRONICS is an electronics import-export company operated by ZA-KAY with his brother, the SUBJECT INDIVIDUAL EZRA SASSON. Since January 2002, the SASSON TELEPHONES are the principal numbers in Florida that the SUBJECT CELLULAR TELEPHONE has called.

24. The SASSON brothers are natives of Israel who reside in Florida, maintain both Israeli and Venezuelan citizenship and make frequent trips abroad. Although neither brother has a criminal record, their prior known links to money-laundering and drug-trafficking are substantial:

a. In September 1992, federal agents seized $1.7 million in cash from EZRA SASSON during a car stop in northern Florida;

b. EZRA SASSON was debriefed by DEA agents during a December 1993 proffer session; EZRA admitted that in early 1992, he and his brother ZAKAY had been hired by a drug trafficker based in Cali, Colombia, to launder cash that the trafficker would arrange to have delivered to them in the U.S.;

c. EZRA further admitted that in 1992, he and ZAKAY had arranged on the trafficker’s behalf for the pick-up of large amounts of cash from Houston on three occasions and from Los Angeles on three other occasions, all of which was transported to Miami, then either hand-carried on flights out of the U.S. or wire-transferred to the U.S. bank accounts of Latin American companies;

d. EZRA stated that he had made three of six pick-ups himself, and that on the remaining three, the pick-ups had been made by ZAKAY and other employees of Zeus Distributors, another import-export company run by the SAS-SONS;

e. In a proffer session in February 1994, ZAKAY SASSON admitted to meet with his brother EZRA and the trafficker in Cali in early 1992 and to picking up cash in Houston for the trafficker on two occasions in mid-1992; ZAKAY further stated that he had carried the first cash pick-up to Guatemala, converted some of it to cashier’s checks, which he carried back in to the U.S.; and that on the second occasion, he had carried $380,000 on a flight from Florida to Israel; he had then deposited it in an Israeli bank account, then wired the $380,000 to an account in New York City, .from which he then wired to an account in Cali;

f. In or about April 1995, the Sassons’ company NATIONAL ELECTRONICS imported electrical transformers from Colombia to the United States; upon searching the transformers, U.S. Customs inspectors discovered 84 kilograms of cocaine hidden inside (no arrests resulted from this seizure); and

g. In or about September 2000, Colombian customs officials advised USCS that they had acquired evidence that NATIONAL ELECTRONICS was knowingly laundering money by exporting merchandise from the U.S. to Colombia that had been paid for with drug dollars bought at discount (a technique sometimes referred to as the “black market peso exchange”).

Affidavit, at ¶¶ 23-24. The information included in paragraph 23 was derived solely from the investigations of Banda. Some of the information included in paragraph 24, however, which was used to show that the Sassons had a known connection to money laundering, was primarily derived from the immunized proffer sessions. Specifically, subparagraphs 24(b) through 24(e) all contained information provided by the Sas-sons to investigators under cover of immunity. Indeed, the affidavit explicitly refers to the proffer sessions in which the Sas-sons engaged and to statements they made.

There were also later mentions of the Sassons in the affidavit that may have been influenced by the immunized testimony. For example, in referring to a number of telephone calls, Special Agent Coleman wrote that the contacts between Banda’s phone and co-defendant Avi Cohen’s phone, and the telephones of the Sassons, National Electronics and co-defendant Gal Kofferberg, “all of whom have previous, substantial ties to money laundering and/or narcotics trafficking,” implicate Banda in those activities as well. Affidavit, ¶23. Later, Special Agent Coleman implied that the Sassons were “known money launderers.” Id. at ¶ 31. See also id. at ¶ 58 (referring to National Electronics as a company that “has previously been implicated in the concealment of drug proceeds” through money laundering). While less explicitly based on immunized testimony, these descriptions of the Sassons as money launderers were presumably in part rooted in the Sassons’ cooperation from nine years earlier and in part on the facts alleged in subparagraphs 24(f) and 24(g).

The United States Attorney claims that the inclusion of immunized material in the wiretap application was inadvertent. See Letter Brief, at 1-2. While the United States Attorney for the Eastern District of New York was in possession of the DEA debriefing reports completed after the Sassons’ proffer sessions in 1993, it was not until July 11, 2002 (after the wiretap order had issued), that its investigators “learned to our surprise” that the Sassons had “received informal assurances of use immunity from the U.S. Attorney’s Office for the Northern District of Florida.” Id. at 1. The debriefing summaries noted that the information was provided “pursuant to a written agreement,” but did not suggest that the agreement was one of full use and derivative use immunity. See Notice of Motion, Exhibit D and E (DEA debriefing summaries); Letter Brief, at 7. Moreover, no court order had ever been issued granting the Sassons immunity, and the United States Attorney for the Northern District of Florida had never sought permission from the Department of Justice (DOJ) for the immunity it granted—thus, there had been no record of it in the witness immunity section of the DOJ. Letter Brief, at 4. While this certainly should influence .how far we stretch to deter what took place here, it is not ultimately the issue.

When a defendant has provided information with a grant of immunity under 18 U.S.C. § 6002, he “shift[s] to the government the heavy burden of proving that all of the evidence it proposes to use [against him] was derived from legitimate independent sources.” Kastigar v. United States, 406 U.S. 441, 461-62, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). This is because the immunity provided for in § 6002 must be read as coextensive with the privilege against self-incrimination provided in the Fifth Amendment. Id. at 448, 92 S.Ct. 1653. Here, the testimony was informally provided under such a grant. But because the written proffer agreements were clear, it is insignificant that the prosecutors did not follow the specific procedures of 18 U.S.C. §§ 6001-6005. See United States v. Winter, 663 F.2d 1120 (1st Cir.1981); United States v. Pelletier, 898 F.2d 297 (2d Cir.1990). The United States Attorney was bound by contract and, in turn, a statutory analog of the Fifth. Amendment, that “no testimony or other information compelled under the [agreement] (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing • to comply with the order.” 18 U.S.C. § 6002.

Defense counsel argues as follows: “Plainly, Special Agent Coleman’s affidavit, submitted in support of the government’s application for the wiretap that eventually resulted in the seizure of the Sassons’ communications, actually used the Sassons’ immunized proffer statements.” Defendants’ Mem. at 16. Thus, he claims, “[t]his use, insofar as the prosecution of the Sassons is concerned, violates the Sas-sons’ Fifth Amendment rights.” Id. In resolving this argument, it is necessary to consider whether the' evidence the United States Attorney seeks to offer at trial was tainted by immunized statements. The method is as follows: “Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), a reviewing court must examine the unchallenged portions of the affidavit and determine whether those portions are sufficient to support a probable cause finding.” United States v. Gallo, 859 F.2d 1078, 1083-84 (2d Cir.1988). And as defense counsel points out, the standard is strict: Suppression of any conversations recorded is required unless the United States Attorney can show that “the use was harmless beyond a reasonable doubt in the sense that the immunized testimony was so inconsequential that it could not have influenced either the government’s decision to request search warrants or the issuing Magistrate’s decision to grant them.” Defendants’ Mem. at 18 (quoting United States v. Nanni, 59 F.3d 1425, 1443 (2d Cir.1995)). While defense counsel correctly observes that there is a heavy burden on the prosecution to show that any use of the immunized testimony was harmless beyond a reasonable doubt, he ignores the relevant underlying standard for seeking and granting a warrant—a standard that makes the United States Attorney’s burden far less insurmountable. For Judge Sifton to grant the warrant, he only had to find probable cause.

Probable cause requires only facts sufficient to “ ‘warrant a man of reasonable caution in the belief ” that an offense has been committed; “it does not demand any showing that such a belief be correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). The Supreme Court has repeatedly emphasized:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.... The rule of probable cause is a practical, nontechnical conception ....

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Thus, I must only consider whether the included immunized statements were so inconsequential that Judge Sifton would have, beyond a reasonable doubt, found a probability of criminal activity without their inclusion.

As I explained at oral argument, “this warrant would have issued if no reference had been made to ... the briefing statements that [the Sassons] had made ten years earlier.” Transcript of Oral Argument, July 13, 2004, at 31. Included in the 80-page affidavit “was ample probable cause to issue the warrant and to listen in on their conversations which was what the warrant authorized.” Id. Defendants argue that the non-immunized portions of the affidavit did not “refer[ ] to Zakay Sasson, and taken together, are a far cry from establishing probable cause as to either Ezra Sasson or National Electronics.” Notice of Motion, at 7. Passing over whether this is accurate, the wiretap application did not seek authorization to tap the phones of either the Sassons or National Electronics. Instead, it sought to tap the phone of Natan Banda, and there was more than a sufficient factual basis to establish probable cause for that purpose even without the immunized testimony. Indeed, this is why Judge Sifton continued the warrant after being told that the original affidavit made reference to immunized testimony.

The probable cause included the facts that initially led to the United States Attorney’s investigation: The DEA had learned that Banda was negotiating with Amsterdam-based drug traffickers to launder the proceeds of narcotics sales. See Affidavit, at ¶ 15. These were not idle suspicions; they were the result of court-authorized electronic eavesdropping where the Dutch police overheard Banda and two associates making arrangements to smuggle large volumes of ecstacy to Houston, Texas and elsewhere. Id. Three of Banda’s associates, Dror Fahime, Jacob Elchik, and Menachem Cohen, were ultimately arrested in November 2001 in Holland, Australia, and Israel, respectively. Id. at ¶ 16. Investigators learned that Cohen had confirmed with the Israel National Police that Banda laundered money for a living and had laundered hundreds of thousands of dollars for the Amsterdam-based drug traffickers. Id. Even Banda’s brother told the Israel National Police that he knew his brother to “deal with money for a living.” Id. Finally, Customs inspectors had found Banda with a cash-counting machine concealed in his luggage upon returning to the United States from Amsterdam, a machine he claimed was for work on Wall Street. Id. at ¶ 14. These independent leads may have been sufficient on their own to establish probable cause, but there was still more.

Investigators found that Banda lived in a luxury apartment in Brooklyn Heights and drove a new Cadillac. Affidavit, at ¶ 13. On his leasing application for the apartment he claimed to be the self-employed principal of “Fifth Avenue Hedge Fund” of Brooklyn, and ón the application for the car he wrote that he was President of “Poly Star Bag” in Brooklyn. Id. No trace of either- business could be found— neither had ever been registered in New York State. Id. Moreover,. between September 2001 and May, 2002, Banda had moved more than $4 million into and out of a personal checking account in a bank directly across the street from his luxury Brooklyn apartment. Id. at ¶ 18. Only a small portion of that went to cover his $4000 per month rent, which Banda paid in $500 money orders (that, under federal law, would not have to be reported by the bank because they were less than $3000). Id. at ¶ 17. A similar level of activity, also consistent with money laundering, was found in bank records of an account nominally maintained in trust for Banda’s parents. Id. at ¶¶ 19-20. When these facts were put together with the fact that Banda’s cellular phone records revealed frequent communications with phones registered to the Amsterdam-based drug traffickers, wholesale customers in Houston, and a Houston based courier service, there was ample probable cause to issue the wiretap sought by the United States Attorney.

Significantly, the recorded conversations that the United States Attorney now seeks to introduce against the Sassons would have been recorded even if the wiretap affidavit had made no mention of the Sas-sons or a desire to target them. The identification of the Sassons was only necessary because of the specific requirements of the Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That statute requires the United States Attorney to provide a description of the facilities from which communications are to be intercepted, and also “the identity of the person, if known, committing the offense and whose communications are to be intercepted.” 18 U.S.C. 2518(l)(b)(iv). This does not only refer to the wiretap’s primary target. The United States Attorney must provide the name of any person “when the law enforcement authorities have probable cause to believe that that individual is ‘committing the offense’ for which the wiretap is sought,” United States v. Kahn, 415 U.S. 143, 155, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), and it “expects to intercept the individual’s conversations over the target telephone.” United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977).

The identification requirement was included in Title III because of the erroneous premise that it was required by the Fourth Amendment, and the Supreme Court has held that, “nothing in the legislative history suggests that Congress intended this broad identification requirement to play ‘a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance.’ ” Donovan, 429 U.S. at 437, 97 S.Ct. 658 (quoting United States v. Chavez, 416 U.S. 562, 578, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974)). This is significant because once the necessity for the identification requirement is properly understood, it is clear that compliance with it plays no role in a decision whether the wiretap should be authorized as to identified individuals. Indeed, for this reason, wiretap evidence procured against a defendant will not be suppressed based on a failure by the United States Attorney to list his name in a wiretap application. See Donovan, 429 U.S. at 435, 97 S.Ct. 658 (stating that “the failure to identify additional persons who are likely to be overheard engaging in incriminating conversations could hardly invalidate an otherwise lawful judicial authorization” of a wiretap). In this case, it is simply not relevant for exclusionary rule purposes whether there was sufficient untainted evidence included in the wiretap application to identify the Sassons as individuals against whom there was probable cause. The warrant would have issued as long as the information in the wiretap application that was tainted as to the Sas-sons was not critical to establishing probable cause as to Banda — clearly it was not.

Because there was clear independent probable cause to place a wiretap on Ban-da’s phone the wiretap would have issued and eavesdropping would have begun regardless of any statements about the Sas-sons. And as I explained at oral argument:

[IJnevitably, in the course of such an eavesdropping which would have been totally lawful, they would have come upon these conversations of the [Sas-sons] since they — before they minimize by stopping to tape or by stopping to listen, they’re permitted to listen to conversations to determine whether or not they’re relevant to what would be entitled to intercept in any event.

Transcript of Oral Argument, July 13, 2004, at 32. This is analogous to the “inevitable discovery” exception to the exclusionary rule that is applied to Fourth Amendment violations. With respect to that rule, the Supreme Court has written:

The ultimate or inevitable discovery exception to the exclusionary rule is closely related in purpose to the harmless-error rule of Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The harmless-constitutional-error rule “serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.

Nix v. Williams, 467 U.S. 431, 444 n. 4, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Similarly here, the wiretap evidence will not be excluded because the evidence would have been obtained even without the use of the statements made at the proffer sessions.

Finally, even if probable cause were necessary against the Sassons and the inevitable discovery rule did not apply, there was probable cause to target the Sassons and their company absent any reference to immunized testimony. There were a number of independent facts known or discovered at the outset of investigation. First, Ezra Sasson had been caught with $1.7 million in cash years before — surely suspicious behavior. Id. at ¶ 24(a). Second, Colombian customs officials had advised investigators that the Sassons’ company had laundered money by exporting merchandise bought with drug money from the United States to Colombia. Id. at ¶ 24(g). And third, the affidavit alleged that the Sassons’ company had been caught attempting to import 84 kilograms of cocaine. Id. at ¶ 24(f). As the United States Attorney now concedes, the allegation regarding the importation of cocaine was factually incorrect; it pertained not to the Sassons’ company, National Electronics, but to a wholly separate company called National Electric of Miami. See Notice of Motion, Exhibit G. Nevertheless, given the closeness of the companies’ names and the Sassons’ former connection with cocaine trafficking, there is no reason to believe that this error was made in bad faith. Thus, the error does not affect a post-issuance review of whether, on its face, there was sufficient probable cause to grant the warrant. See Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (explaining that only when “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” must it be excluded when performing an ex-post review of whether there was probable cause to issue the warrant).

More important for establishing probable cause against the Sassons, however, was the fact that initial pre-wiretap investigations revealed that Banda had made in excess of five telephone calls per week to the Sassons or their company during the period of their alleged money laundering scheme. Affidavit, at ¶ 23. The timing of these phone calls was detailed in the affidavit. See id. at ¶¶ 31-39. Revealingly, the calls were clustered around Banda’s particularly suspicious behavior. Id. In short, the warrant application provided probable cause to justify the interception of the Sassons’ conversations even without reference to the immunized proffer statements.

The Sassons are currently in “substantially the same position” with respect to the currently charged crime as they would have been in had they not provided immunized statements in 1992. See Kastigar, 406 U.S. at 462, 92 S.Ct. 1653. Indeed, they may be in a better position. Because the Sassons decided to cooperate with the United States Attorney for the Northern District of Florida and to engage in proffer sessions in 1993, they received transactional and use immunity. This was more than they would have been entitled to had they been compelled to testify, and it may have allowed them to avoid prosecution for their earlier crimes. It also did not harm them in their current defense. In United States v. Gallo, 859 F.2d 1078 (2d Cir.1988), Judge Winter wrote: “While it is of utmost importance that the government respect and scrupulously observe restrictions on the use of immunized testimony, I see no reason to set aside an otherwise valid conviction because of an error that had no effect on the course of events.” Id. at 1084. Nor can I see any reason to set aside relevant evidence because of an error that had no effect on the course of events. The evidence resulting from the wiretaps will not be suppressed.

II. Whether the use of immunized testimony to investigate a future crime could ever violate Fifth Amendment

Although I denied defendants’ motion to suppress for the reasons set forth in Part I, there is a separate argument for denial that warrants discussion. Again, defendants are claiming that they enjoyed statutory immunity based on a contract. But that statutory immunity has been held to be necessarily coextensive with the level of immunity needed to overcome the privilege against self-incrimination provided in the Fifth Amendment. See Kastigar, 406 U.S. at 448, 92 S.Ct. 1653. Thus, defendants are implicitly arguing that, because of the Self-Incrimination Clause, they could never have been forced to testify if that testimony could be used to lead to evidence that would incriminate them for a future crime. Put differently, they claim that because they agreed to provide information in exchange for the level of immunity that would have allowed their statements to be compelled, they must have been speaking with the assurance that whatever they said could never be used against them, and that a prohibition on the use of the “fruit of the poisonous tree” would necessarily extend indefinitely to prosecutions for crimes committed long after the proffer sessions.

This argument is a far cry from the text of the Self-Incrimination Clause, which states only that no person “shall be compelled in any criminal case to be a witness against himself.” Indeed, it is such a stretch from the text that it calls for an examination of the foundation on which the clause and its exclusionary rule are based. See United States v. Patane, — U.S. -, 124 S.Ct. 2620, 2628, 159 L.Ed.2d 667 (2004) (plurality opinion) (Thomas, J.) (reiterating the Supreme Court’s “continued insistence that the closest possible fit be maintained between the Self-Incrimination Clause and any rule designed to protect it.”). Simply put, none of the values recognized as underlying the privilege against self-incrimination are implicated by the admission of evidence that is derived from immunized statements that were provided in a separate case nearly a decade earlier. First, however, I turn to the historical basis for applying the fruit of the poisonous tree doctrine to the privilege to show that it too, cannot justify extending the branches of the poisonous tree this far.

a. The basis for applying a fi'uit of the poisonous tree doctrine to violations of the Self-Incrimination Clause

As a historical matter, the privilege against self-incrimination was aimed at the evils of the Inquisition and the Star Chamber. See generally Ullmann v. United States, 350 U.S. 422, 428, 76 S.Ct. 497, 100 L.Ed. 511 (1956); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); VIII Wigmore, Evidence, § 2250; Henry J. Friendly, Benchmarks, pp. 270-71 (1967); Leonard W. Levy, The Origins of the Fifth Amendment, the Right Against Self-Incrimination (1968). It sought to address these evils by prohibiting the government from compelling incriminating testimony from a defendant in a criminal case. See Murphy v. Waterfront Commission, 378 U.S. 52, 75-76, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). It did not, of course, bar all adversarial tactics that may be used to incriminate a defendant. “The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

From the outset, the Supreme Court could have determined that, while compelled responses of an accused are “testimonial” and should be barred from trial, any leads or evidence derived therefrom, which are not themselves “testimonial” statements of the accused, should be recognized as outside the protective scope of the Self-Incrimination Clause. Such a rule would have been logically consistent with the Supreme Court’s holding in Schmerber, where it determined that a defendant forced to provide a blood sample was not made a “witness against himself.” 384 U.S. at 761, 86 S.Ct. 1826. It would also have been consistent with the common law existing at the time of the Constitution, when it was settled that fruits of improperly obtained confessions were admissible at the trial of the accused. See The King v. Warickshall, 1 Leach 263, 168 Eng. Rep. 234 (1783); The King v. Lockhart, 1 Leach 386, 168 Eng. Rep. 295 (1785). Nevertheless, since Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), it has been presumed that the privilege against self-incrimination protects a person from being compelled to give testimony if that testimony could be used directly to convict him of a crime or if it could lead to the discovery of other evidence that could be used to convict him. The roots of this strange presumption may shed light on the famous statement of Justice Frankfurter that, “[t]he privilege against self-incrimination is a specific provision of which it is particularly true that ‘a page of history is worth a volume of logic.’ ” Ullmann v. United States, 350 422, 438, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921) (Holmes, J.)).

The decision in Counselman arose after a defendant was held in contempt for refusing to answer questions before a grand jury in spite of being offered immunity under a then-existing statute. 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. The immunity statute “protected him against the use of his testimony against him or his property in any prosecution against him or his property,” but did not “prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court.” Id. at 564, 12 S.Ct. 195. In other words, it protected against the use of compelled testimony, but not its fruits. The Court recognized that to justify a contempt conviction for refusing to answer questions, the immunity provided to the defendant had to remove the fear of incrimination coextensive with the privilege in the Fifth Amendment. Id. at 565, 12 S.Ct. 195. Thus, the Court proceeded to consider what the Fifth Amendment required. It instructed that, “[t]he privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.” Id. at 562, 12 S.Ct. 195. Ironically, it never defined the mischief.

Rather than perform a legal analysis based on bedrock legal principles or policies, Justice Blatchford, writing for a unanimous Court, began by performing an exhaustive but inconclusive review of state court holdings that had discussed this issue in construing their own state constitutions. This exercise revealed a basic and unsurprising dichotomy: State courts that had construed constitutional provisions worded in language substantially similar to the Fifth Amendment had held that grants of limited use immunity would suffice to overcome the claim of privilege, whereas state courts that had construed constitutional provisions providing protections to witnesses against being compelled to “accuse or furnish evidence against himself’ (as opposed to merely affording the privilege against being compelled to be a witness against one’s self), had held that a grant of limited use immunity was not enough.

After reviewing these cases at some length, Justice Blatchford wrote:

[A]s the manifest purpose of the constitutional provisions, both of the states and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation; and that where the constitution, as in the cases of Massachusetts and New Hampshire, declares that the subject shall not be “compelled to accuse or furnish evidence against himself,” such a provision should not have a different interpretation from that which belongs to constitutions like those of the United States and of New York, which declare that no person shall be “compelled in any criminal case to be a witness against himself.”

142 U.S. at 584-85, 12 S.Ct. 195. Then, having swiftly determined that there needed to be a uniform rule, the Court concluded:

Under the rulings above referred to by Chief Justice Marshall and by this court, and those in Massachusetts, New Hampshire, and Virginia, the judgment of the circuit court in the present case cannot be sustained. It is a reasonable construction, we think, of the constitutional provision, that the witness is protected “from being compelled to disclose the circumstances of his offense, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him.”

Id. at 585, 12 S.Ct. 195 (quoting Emery’s Case, 107 Mass. 172, 182). Simply put, this reasoning is inadequate to justify the domino effect it has created. The rulings of “Chief Justice Marshall and by [the Supreme Court], and those in [the state courts]” on which Justice Blatchford relied fail to provide justification for the breadth of his holding.

The referenced ruling of Chief Justice Marshall was United States v. Burr, No. 14692E, 25 F. Cas. 38 (C.C.D.Va.1807), which stood only for the proposition that a witness cannot be compelled to give testimony which is itself sufficient to convict him or which would form a “link” in the “chain of testimony which is necessary to convict any individual of a crime.” Id. at 40 (emphasis added). There was plainly no suggestion in Burr that a witness could refuse to answer a question if his response might lead to other non-testimonial evidence. The referenced ruling of the Supreme Court on which Justice Blatchford relied was Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Boyd set out the now discredited “mere evidence” rule and focused on the extent of the Fourth Amendment’s protection from unreasonable searches and seizures. While it stated that the compelled seizure of a defendant’s papers could be a Fifth Amendment violation, that holding was based only on the notion that, by responding to a compelled subpoena, a defendant would be announcing that those papers were his — not because those papers were the fruit of compelled testimony. See United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). And finally, the rulings of Massachusetts, New Hampshire and Virginia, on which Justice Blatchford apparently placed principal reliance, can be easily distinguished by the peculiar language of the self-incrimination clauses those state courts were interpreting. If anything, these state court rulings should have suggested that the proper interpretation of the Fifth Amendment’s Self-Incrimination Clause was that limited use immunity alone is enough to overcome the privilege.

In sum, the Supreme Court’s entire basis for holding that the privilege against self-incrimination protected criminal defendants from the use of evidence derived from compelled statements was that it was what some previous courts had suggested on plainly distinguishable facts. The Court provided no independent reasoning for its sweeping holding. Still, it proceeded to state in dictum, in even more sweeping terms, that testimony could only be compelled where complete transactional immunity had been provided:

We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the constitution of the United States.... In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.

142 U.S. at 585-86, 12 S.Ct. 195.

With such sparse justification, it is not surprising that Counselman was severely criticized. See, e.g., Corwin, The Supreme Court’s Construction of the Self-Incrimination Clause, 29 Mich. L.Rev. 1, 205-06 (1930). Nevertheless, for decades after Counselman, it was presumed that to compel testimony over the assertion of a Fifth Amendment privilege, prosecutors had to grant full transactional immunity. Then, in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the Supreme Court was forced to revisit the issue when it considered “whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction.” Id. at 54, 84 S.Ct. 1594. Of course, state prosecutors were unable to provide transactional immunity from prosecution in a federal forum and could therefore not practicably adhere to the dictum of Counselman. After reviewing the policies underlying the privilege and existing precedent on the subject, Justice Goldberg wrote:

[W]e hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.

Id. at 79, 84 S.Ct. 1594. He justified the holding as striking the following balance: “This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.” Id. He thus gave a reason for cutting back the required immunity from transactional to use plus derivative use, but did not independently justify the requirement of use plus derivative use immunity. For that, he simply accepted Counselman as correct.

In Murphy’s aftermath, Congress revised the federal immunity statute from granting transactional immunity (which had been understood to be required since Counselman) to granting only use and derivative use immunity. Then, in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court considered the new statute. It was presented with a defendant who refused to testify after being granted use and derivative use immunity, claiming that only with transactional testimony could he be forced to testify. The Court'revisited Counsel-man and clarified that only “use plus derivative use” immunity, rather than transactional immunity is required to overcome a privilege. 406 U.S. at 453, 92 S.Ct. 1653 (“We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege”). Justice Powell explained:

While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to ... criminal acts. Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.

Kastigar, 406 U.S. at 453, 92 S.Ct. 1653 (footnote and internal quotation marks omitted) (emphasis in original). This holding, still largely devoid of independent rationalization or reference to policy, thus reaffirmed the holding of Counselman that not merely compelled testimony, but also its fruits, are protected by the privilege against self-incrimination.

While the basic rule of use and derivative use immunity from Kastigar is now well-settled, there remains a serious question about how far that immunity should be extended. See United States v. Helmsley, 941 F.2d 71, 81 (2d Cir.1991) (“Kasti-gar considered only the facial validity of the federal use immunity statute and did not address the intricacies of what constitutes an impermissible use of immunized testimony.”). Indeed, it is hardly clear that the broad language of Kastigar on which defendants rely — that the Self-Incrimination Clause “prohibits the prosecu-torial authorities from using the compelled testimony in any respect” — need be given its full effect. Id. In United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980), eight years after Kast-igar, Chief Justice Rehnquist wrote for the Court: “This Court has never held ... that the Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony.” Id. at 125, 100 S.Ct. 948 (emphasis added). The immunity statutes are only intended to provide the protection to defendants that they would have received from invoking the Fifth Amendment, not necessarily to treat them as if they had remained silent. Id. at 127, 100 S.Ct. 948. The key, then, is what the Fifth Amendment requires.

b. The policy considerations involved in applying a fruit of the poisonous tree doctrine to compelled testimony

It is always critical to understand the values on which any rule rests when deciding how far it should be extended. But this is particularly true here, as there are significant costs to the privilege against self-incrimination, and even more when it is extended to fruits. Judge Friendly described some of the costs of the privilege against self-incrimination in his incisive essay on the Fifth Amendment. See Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L.Rev. 671 (1968).

Judge Friendly correctly observed that, “the fifth amendment privilege extends, by hypothesis, only to persons who have been breakers of the criminal law or believe they may be charged as such.” Id. at 680. “While the other [testimonial] privileges [such as those accorded to husband and wife, attorney and client; doctor and patient, or priest and penitent] accord with notions of decent conduct generally accepted in life outside the courtroom, the privilege against self-incrimination defies them. No parent would teach such a doctrine to his children ... Those who are questioned consider themselves to be morally bound to respond, and the questioners believe it proper to take action if they do not.” Id. Moreover, in the pre-trial stage, the privilege “seriously impedes the state in the most basic of all tasks, to provide for the security of the individual and his property, not only as against the individual asserting the privilege but as against others who it has reason to think were associated with him.” Id. (footnote and quotation omitted). He continued:

The privilege not only stands in the way of convictions but often prevents restitution to the victim — of goods, of money, even of a kidnapped child. In contrast to the rare case where it may protect an innocent person, it often may do the contrary. A man in suspicious circumstances but not in fact guilty is deprived of official interrogation of another whom he knows to be the true culprit; if the former is brought to trial, the best he can do is call the latter as a witness and hope the jury will draw the inference from the witness’ assertion of the privilege which the jury cannot be told it may do with respect to his own.

Id.

Judge Friendly did not use these facts to argue for the abolition of the privilege, but for a reexamination of its precise scope. After all, his following observation remains his most correct:

One would suppose that such a collection of detriments would have led the Supreme Court to expound the basis for the privilege thoughtfully and carefully before asking the country to accept extensions in no way called for by the fifth amendment’s words or history. It thus is strange how rarely one encounters in the Court’s opinions on the privilege the careful weighing of pros and cons, the objective investigation of how-rules of law actually work, and, above all, the consideration whether a less extreme position might not adequately meet the needs of the accused without jeopardizing other important interests, which ought to characterize constitutional adjudication before the Court goes beyond the ordinary meaning of the language. Instead, the privilege is treated with almost religious adulation.

Id. at 681 (footnote omitted).

Against this backdrop, I now turn to an examination of the values underlying the privilege against self-incrimination to determine whether they justify holding that statements, given under promises of use immunity, may never be used to lead investigators to evidence that could prove defendants’ guilt in a future crime — a result that would be particularly anomalous here, where the Sassons sought use immunity only as an interim step without which they could never have safely engaged in proffer sessions where they hoped to secure transactional immunity for past crimes.

The values underlying the privilege against self-incrimination were comprehensively cataloged by the Supreme Court in Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964):

The privilege against self-incrimination “registers an important advance in the development of our liberty — ‘one of the great landmarks in man’s struggle to make himself civilized.’ ” Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 100 L.Ed. 511. It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,” 8 Wigmore, Evidence (McNaughton. rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life,” United States v. Grunewald, 233 F.2d 556, 581-82 (2d. Cir.) (Frank J., dissenting), rev’d 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’ Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964.

Id. (footnote omitted). The values can be grouped into five categories. None of them requires that the privilege against self-incrimination include a universal “fruit of the poisonous tree” doctrine, let alone one that endures indefinitely.

1. The “cruel trilemma”

In the instant case, the Sassons never faced a “cruel trilemma of self-accusation, perjury or contempt” when they provided immunized statements to the United States Attorney in 1993 in hopes of receiving transactional immunity. Had the Sas-sons chosen to remain silent, there would have been no threat of contempt. The only threat was that they might have been prosecuted for the crimes the United States Attorney was investigating and for which they ultimately avoided prosecution. Had the Sassons made a false statement, meanwhile, there would have been no threat of perjury because they were not compelled to speak under oath. There could have been a danger of prosecution under 18 U.S.C. § 1001 for making false statements to a federal officer, but that certainly does not implicate the privilege against self-incrimination. See United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) (holding that Fifth Amendment did not preclude use of defendant’s immunized testimony in a prosecution for subsequently making false statements). Finally, there was no danger of self-accusation because the Sas-sons were given transactional immunity. Put simply, the Sassons made a strategic decision and are now seeking to reap as many benefits as they can. Certainly, the admission of fruits of their statements nine years later cannot turn what was a strategic decision into a “cruel trilemma.” At most, the Sassons faced a “trilemma of truth, falsity, or silence.” Pennsylvania v. Muniz, 496 U.S. 582, 597, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). But it is not clear why that should be a concern of the privilege against self-incrimi