NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-3416
Petitioner, ) Trial Court No. 3AN-S88-5587CR
)
v. ) O P I N I O N
)
TOR HOFSETH, )
)
Respondent. ) [No. 1178 - December 6, 1991]
______________________________)
Petition for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Peter A. Michalski,
Judge.
Appearances: Cynthia M. Hora, Assistant
Attorney General, Office of Special Prose-
cutions and Appeals, Anchorage, and Douglas
B. Baily, Attorney General, Juneau, for Peti-
tioner. Suzanne Weller, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Respondent.
Before: Bryner, Chief Judge, Coats, Judge,
Judge, and Savell, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Tor Hofseth was charged with insurance fraud, second-
degree theft, making a false report, removal of identification
from a vehicle, and possession of a vehicle with altered
identification numbers. The charges stemmed from Hofseth's
alleged collection of insurance payments on a DeLorean automobile
that was falsely reported stolen. After being charged, Hofseth
moved to suppress the DeLorean, alleging that it was seized in
violation of his right against self-incrimination. Superior
Court Judge Peter A. Michalski granted the motion. The state
then petitioned for review. We granted the state's petition
because the superior court's order involved "an important
question of law upon which there is a substantial ground for
difference of opinion . . . ." Appellate Rule 402(b)(2). We now
affirm the superior court's order of suppression.
FACTS
Hofseth was arrested on a charge of criminal mischief
in January of 1988. At his arraignment, he requested court-
appointed counsel and was referred to the office of Pre-Trial
Services (PTS) for a routine interview to determine his
eligibility for public representation.
At the PTS office, Hofseth made only a perfunctory
effort to fill out the standard financial disclosure form. He
disclosed no assets or income and claimed to be unemployed.
Suzanne Rogers of PTS interviewed Hofseth. Hofseth indicated
that he lived with his former spouse, Kaarina Brodsky, who
continued to support him, in return for which Hofseth cared for
their young child and performed work on a house that Brodsky was
building on her property. Hofseth refused to provide Rogers with
information concerning Brodsky's financial situation, claiming
that, because he and Brodsky had been divorced, he had no legal
right to any of her property.
Investigative notes prepared by Rogers following her
interview with Hofseth indicate that Rogers checked with the
Department of Motor Vehicles under Hofseth's and Brodsky's names.
She learned that Hofseth was listed as owning a 1981 Toyota
pickup truck and that a 1984 Mustang was registered to Hofseth
and Brodsky jointly. Brodsky was shown as owning a 1980
Thunderbird, a 1972 Toyota station wagon, and a 1981 DeLorean.
According to DMV records, the DeLorean had been registered to
Hofseth before January, 1985.
Rogers' investigative notes further indicated that
Rogers contacted a personal reference listed on Hofseth's
financial disclosure statement and learned that Hofseth had
recently performed a small remodeling job, for which he had
received $600.
Based on Hofseth's lack of cooperation and the
information she learned through her independent investigation,
Rogers suspected that Hofseth might be misrepresenting his
financial status. She recommended that appointed counsel be
denied, noting that Hofseth "could then be required to further
document his statements and could provide his ex-wife's financial
information." Acting on Rogers' recommendation, District Court
Judge Ralph Stemp denied Hofseth's request for court-appointed
counsel on January 7, 1988.
On January 12, 1988, Hofseth appeared without counsel
for a hearing before District Court Judge William Fuld. Judge
Fuld indicated that he would be willing to reconsider the denial
of court-appointed counsel if Hofseth agreed to answer questions
under oath about his financial condition. Hofseth agreed.
In response to the court's questions, Hofseth testified
that he was living with his ex-wife, Brodsky, who supported him.
Hofseth denied owning any vehicles or property and stated that he
was uninsured. He acknowledged that Brodsky was employed and
that she owned a lot, upon which Hofseth was helping her build a
house. Hofseth assured the court, however, that all of the
property was in Brodsky's name. Among other property of
Brodsky's that Hofseth described was a 1981 DeLorean automobile.
At the conclusion of the hearing, Judge Fuld found
Hofseth eligible for court-appointed counsel and directed the
public defender agency to represent him. The case, however, was
eventually dismissed.
Several months later, in April of 1988, Hofseth
appeared in court on a new municipal misdemeanor charge. He
requested court-appointed counsel, again informing PTS that he
was unemployed, had no assets, and was living with his ex-wife.
The court appointed counsel. A subsequent check of Hofseth's
records by PTS, however, revealed that he and Brodsky, after an
initial marriage and divorce, had been remarried in 1985. No
record of divorce or dissolution after the remarriage existed.
After being provided with this information by PTS, the district
court scheduled a hearing to determine whether Hofseth actually
qualified for appointed counsel, but the hearing was canceled
because Hofseth's criminal charges were dismissed.
Evidently prompted by these developments, Suzanne
Rogers spoke with Judge Fuld in the latter part of May or early
June, 1988, and on June 7 she wrote the judge a memorandum
indicating that Hofseth had apparently perjured himself in
applying for court-appointed counsel. Rogers' memorandum
recounted the chronology of events and described the results of
her investigation into Hofseth's and Brodsky's assets. Rogers
specifically disclosed that Brodsky was the registered owner of a
1981 DeLorean that Hofseth transferred to her eight days after
their remarriage. Rogers went on to indicate that, in 1987, the
DeLorean was reported stolen and that Brodsky received an
insurance payment of $22,000 as a result of the theft.
On the basis of Rogers' memo, Judge Fuld wrote to the
district attorney's office in Anchorage on July 20, 1988,
requesting the state to consider criminal charges against
Hofseth. Judge Fuld attached a copy of Rogers' June 7
memorandum, commenting that "this appears to be an aggravated
case of perjury."
Following up on Judge Fuld's letter, the state filed a
request for release to the district attorney's office of the full
PTS file on Hofseth. Judge Fuld granted the request in December
of 1988. Thereafter, the district attorney's office asked the
Alaska State Troopers to determine what motor vehicles were in
Hofseth's and Brodsky's possession. The troopers' investigation
confirmed the presence of a DeLorean parked on Brodsky's
property.
Knowing that Brodsky had reported a DeLorean stolen and
had collected an insurance claim for the theft, the troopers
obtained a warrant to seize the car. Upon executing the warrant,
they discovered that the DeLorean was the same automobile
previously reported stolen. Further investigation revealed that,
after the DeLorean was reported stolen, Hofseth had purchased a
DeLorean in Utah that had been wrecked in an accident. The
vehicle identification numbers from that car had then apparently
been installed on the DeLorean that Brodsky had reported stolen
in Anchorage. Based on the foregoing information, the state
brought the current charges against Hofseth.
SUPERIOR COURT PROCEEDINGS
After the charges in this case were filed, Hofseth
moved to suppress the DeLorean, claiming that its seizure had
resulted from the district court's release of his PTS files. He
contended that this information was confidential and that its
disclosure violated his constitutional privilege against self-
incrimination and his rights under Alaska's Public Defender Act,
AS 18.85.010-180.
Hofseth relied particularly on AS 18.85.120, which
establishes procedures for determining indigency for purposes of
public representation. In relevant part, AS 18.85.120 provides:
(b) In determining whether a person is
indigent and in determining the extent of the
person's inability to pay, the court shall
consider such factors as income, property
owned, outstanding obligations, and the
number and ages of dependents. Release on
bail does not preclude a finding that a
person is indigent. In each case, the
person, subject to the penalties for perjury,
shall certify under oath, and in writing or
by other record, material factors relative to
the person's ability to pay that the court
prescribes.
. . . .
(d) As a condition of receiving
services under this chapter, a person shall
affirm indigency under oath to the court and
execute a general waiver authorizing the
release to the court of income information
regarding any income source the person has
had for a period of three years immediately
preceding the person's first court appearance
in connection with each cause. At the
conclusion of all services by the public
defender to the person, the court shall upon
request release to the attorney general all
information received under this subsection
except information that might incriminate or
tend to incriminate the person.
Hofseth argued that, in disclosing PTS files to the
state, the district court violated AS 18.85.120(d) by releasing
"information that might incriminate or tend to incriminate" him.
According to Hofseth, this breach of confidentiality led directly
to the seizure of the DeLorean which, in turn, resulted in his
prosecution for insurance fraud.
Hofseth bolstered his statutory argument by claiming
that, if AS 18.85.120 were read to authorize the release of the
PTS records in his case, the statute would violate his right
against self-incrimination. United States Constitution,
Amendment V; Alaska Constitution, Art. I, 9. In support of
this argument, Hofseth cited Simmons v. United States, 390 U.S.
377, 394 (1968), which prohibited a defendant's suppression-
hearing testimony from being used against the defendant at trial,
finding that "it would be intolerable that one constitutional
right should have to be surrendered to assert another." At least
two federal circuit courts of appeal have extended the Simmons
rationale to financial statements by defendants applying for
public representation. See United States v. Anderson, 567 F.2d
839, 840-41 (8th Cir. 1977); United States v. Branker, 418 F.2d
378, 380 (2d Cir. 1969). See also United States v. Kahan, 415
U.S. 239, 243 (1974); United States v. Hutson, 843 F.2d 1232 (9th
Cir. 1988) (both reserving the issue).
Following an evidentiary hearing, Judge Michalski
granted Hofseth's motion to suppress. Judge Michalski found that
Hofseth's statements to PTS and the court were compelled because
Hofseth had been required to provide information concerning his
financial status to secure his right to court-appointed counsel.
The judge further found that the seizure of the DeLorean had
resulted from the disclosure of Hofseth's financial information.
Although the judge found the language of AS 18.85.120
somewhat confusing, he concluded that the statute must be
interpreted to require that financial information submitted by an
applicant for court-appointed counsel be kept confidential except
for purposes of prosecuting perjury. For this reason, the judge
believed that the state was effectively barred from using
information gained from PTS records to pursue charges other than
perjury. Judge Michalski noted that an exception would apply if
a perjury investigation yielded evidence of other criminal
misconduct that was wholly unrelated to any financial information
the defendant might have provided. However, the judge found that
Hofseth's charges were closely related to the information
contained in the disclosed records. The judge thus concluded
that suppression of the DeLorean was warranted.1
DISCUSSION
With minor reservations, which have no effect on the
outcome of this case, we find Judge Michalski's reading of AS
18.85.120 to be basically sound. We are unpersuaded by the
state's arguments to the contrary.
The state's principal, and most meritorious, claim
begins with the observation that the right against self-
incrimination protects only against the use of incriminating
statements that have been compelled. One who discloses
incriminating information voluntarily, under no compulsion to do
so, cannot complain of its subsequent use by the state. For this
reason, the validity of the superior court's ruling in this case
turns initially on the correctness of Judge Michalski's
determination that Hofseth's statements to the district court and
PTS were "compelled" in the constitutional sense.
The state argues that the superior court erred in
finding that Hofseth's disclosures were compelled. The state
points out that "the Fifth Amendment privilege does not condone
perjury." United States v. Wong, 431 U.S. 174, 178 (1977).
Committing perjury is not a viable substitute for asserting the
privilege against self-incrimination; a person asked to give
incriminating testimony may assert the privilege but is never
justified in testifying falsely. Id.; United States v. Knox, 396
U.S. 77 (1969). Because perjured statements are not deemed
"compelled" for fifth amendment purposes, the state argues that
the superior court was mistaken in finding Hofseth's statements
to PTS and the district court to have been compelled.
A partial answer to the state's argument is the
superior court's recognition that the state was in no manner
barred from using the disputed PTS records to prosecute Hofseth
for perjury. We emphasize our agreement with Judge Michalski's
ruling on this score. The constitution's protections against
self-incrimination afforded Hofseth no shelter against a
prosecution for perjury. Nor can the prohibitions in AS
18.85.120(d) against release of "information that might
incriminate or tend to incriminate" an applicant for court-
appointed counsel be construed to preclude disclosure for
purposes of a perjury prosecution. Insofar as the Public
Defender Act's confidentiality provisions may be likened to an
assurance of immunity, it is clear that the immunity would not
extend to prosecution for false statements made in connection
with applications for public representation. See, e.g., United
States v. Apfelbaum, 445 U.S. 115 (1980) (grant of immunity does
not protect against prosecution for perjury committed while
immunized).
Recognition that Hofseth could be prosecuted for
perjury is only a partial answer to the state's argument that his
statements were mistakenly found to be compelled. In the case of
a fraudulent application for court-appointed counsel -- that is,
an application submitted by a person financially able to retain
counsel and aware of that ability -- the basic claim of
indigency required under AS 18.85.120(d) is itself untruthful.
Because an applicant who has the wherewithal to pay for an
attorney and knows that fact is in no sense compelled to declare
indigency for purposes of obtaining court-appointed counsel, none
of the subsidiary information provided to support the fraudulent
application could be deemed compelled, whether truthful or not.
Disclosure of that information would not violate the right
against self-incrimination, and prosecution of any crimes based
on the disclosure would be the fruit of no such violation.2
The same rationale would apply in the case of a
nonfraud-ulent application if disclosure of information to the
state under AS 18.85.120(d) were limited to a specific false
statement or statements. In that event, charges stemming from
investigation of the disclosed information would at most be the
fruit of perjured, and therefore not "compelled," statements.
The privilege against self-incrimination would not bar the
charges, regardless of whether they were for perjury or some
other offense.
In the present case, the superior court's decision
implies that Hofseth could not have been charged with insurance
fraud or other related crimes even if his application for court-
appointed counsel had proven fraudulent or if the records
released to the state had consisted exclusively of perjured
statements. To this extent, Judge Michalski's ruling may be
incorrect. It is clear, however, that any error in the scope of
the superior court's decision has no effect on Hofseth's case.
Here, the state has never demonstrated that Hofseth's
basic claim of indigency was fraudulent -- that is, that Hofseth
applied for public representation knowing himself to be capable
of affording his own attorney. The record establishes neither
Hofseth's actual financial ability to retain counsel nor an
awareness on his part of that ability. At the February 12, 1988,
hearing before Judge Fuld, Hofseth candidly expressed uncertainty
about his ability to afford counsel. The fact that Hofseth has
been represented by court-appointed counsel throughout the course
of the current proceedings provides at least some indication that
his uncertainty was well founded.
Nor has the state established that the records
disclosed to it by the district court were limited to specific
statements that were actually perjured. In fact, the contrary
appears to be the case. Suzanne Rogers' memorandum to Judge
Fuld, which precipitated the disclosure, summarizes all of the
information given by Hofseth, as well as information derived from
PTS's investigation thereof, and indicates Rogers' suspicion that
some of the statements Hofseth made were perjured. The
memorandum and, later, the entirety of the PTS files on Hofseth
were released to the state for investigation of any possible
perjury they might reveal.
To the extent that they contained false information,
the PTS records did not involve compelled statements. But
compelled statements were divulged to the extent the records
contained truthful information.3 In disclosing PTS records to
the state, the district court made no attempt to differentiate
the true from the false or to withhold the former. There has
been no showing that the state's investigation was prompted by or
limited to any particular statement or statements that were
actually false.
In concluding that Hofseth's statements had been
compelled, Judge Michalski implicitly recognized that this case
involved the undifferentiated disclosure of all information
provided by Hofseth for a generalized investigation of potential
perjury. In relevant part, Judge Michalski ruled:
Here, the defendant claimed to have no
assets. And it is from that statement that
the referral to the district attorney's
office arose, and the rebuttal of which may
prove perjury. The investigation related to
the DeLorean is a fruit of that referral . .
. .
It is in this sense that Judge Michalski concluded that "the
information at the very root of the investigation was information
obtained in a compelled statement . . . ." Judge Michalski did
not err in reaching this conclusion.
We must address two other arguments advanced by the
state. The state argues that disclosure of Hofseth's financial
information could not have violated AS 18.85.120(d) because that
provision does not cover the type of statements disclosed in this
case.
The state supports its position by emphasizing that AS
18.85.120(d) prohibits the release of "information that might
incriminate or tend to incriminate" a defendant only when that
information is "received under this subsection." The state notes
that subsection (d) requires defendants to "execute a general
waiver authorizing the release . . . of income information
regarding any income source the [defendant] has had . . . ." In
the state's view, only third-party information obtained in
reliance on such waivers qualifies as "information received under
this subsection."
According to the state, it is subsection (b) of AS
18.85.120, not subsection (d), that deals specifically with
financial statements made by the defendant personally.
Subsection (b) requires, in relevant part, that defendants "shall
certify under oath . . . material factors relative to [their]
ability to pay that the court prescribes." The state maintains
that the PTS information released by the district court in this
case consisted of first-party financial statements made by
Hofseth, not third-party information received from others, and
that these statements were thus "received under" subsection (b),
not subsection (d). Because subsection (b), unlike subsection
(d), contains no provision for confidentiality, the state reasons
that the disclosure in Hofseth's case involved no statutory
violation.
Initially, we note that the PTS information disclosed
by the court to the state in this case included not only
Hofseth's personally given financial statements and testimony,
but also the results of preliminary investigation into Hofseth's
assets by Suzanne Rogers, who obtained third-party information
and included it in her notes. Among the information specifically
included in Rogers' notes was the fact that a DeLorean was
registered to Brodsky, that the DeLorean had been signed over to
Brodsky by Hofseth, that the car had been reported stolen, and
that, as a result of the theft, a $22,000 insurance payment had
been made.
Even were this not so, the state's reading of
subsection (d) is overly restrictive. In addition to requiring
applicants to execute a written waiver as to third-party
information, subsection (d) expressly requires them to "affirm
indigency under oath to the court." There is simply no basis
here for concluding that Hofseth's sworn testimony and notarized
financial statements are not an integral part of the oath of
indigency required of him under subsection (d). In this regard,
it is noteworthy that the financial disclosure forms Hofseth
filled out for PTS incorporated the basic oath of indigency
required under subsection (d): "I wish to have a lawyer and
cannot afford to pay for one. I request that the court appoint a
lawyer to represent me."
The superior court did not err in finding that the
information disclosed in this case was "received under" AS
18.85.120(d).4
The state also contends that, even if release of the
disputed financial statements was improper, the impropriety
should not have resulted in suppression of the DeLorean. The
state emphasizes that Hofseth's DeLorean was seized in the course
of a legitimate perjury investigation. Even though the state
does not deny the causal link between release of the PTS records
and seizure of the DeLorean, it contends that the relationship
between the disclosure and the seizure is "so attenuated as to
dissipate the taint" of illegality. Nardone v. United States,
308 U.S. 338, 341 (1939). The state relies particularly on
United States v. Ceccolini, 435 U.S. 268 (1978), and United
States v. Hooton, 662 F.2d 628 (9th Cir. 1981). Both cases apply
the attenuation doctrine to uphold the voluntary testimony of a
witness whose identity was disclosed as a result of an unlawful
search.5
In ordering the DeLorean suppressed, however, Judge
Michalski recognized the attenuation doctrine and found it
inapplicable. The judge expressly indicated that the state would
not have been precluded from prosecuting Hofseth for a crime
other than perjury discovered in the course of the perjury
investigation only if the other crime was essentially unrelated
to the type of information provided in Hofseth's financial
statements.
In our view, Judge Michalski drew the appropriate line
in applying the attenuation doctrine to Hofseth's case. The
state may have a strong interest in discovering misconduct other
than perjury when asked to investigate potentially perjured
information provided by a person who has already been charged
with a crime. A loose application of the attenuation doctrine
could only encourage abuse. Conversely, public policy demands
that informa-tion provided by applicants for court-appointed
attorneys be freely available to the state for investigation of
potential perjury. By assuring that only perjury charges could
be brought in all but exceptional cases of disclosure under AS
18.85.120(d), a more circumscribed application of the attenuation
doctrine would promote full disclosure of records in appropriate
cases, with no chilling effect on bona fide applicants for
appointed counsel.
Here, the seizure of Hofseth's DeLorean was a
consequence of the district court's release of his records. In
causal terms, the challenged seizure was a fruit of the
disclosure. As a result of the DeLorean's seizure, Hofseth was
charged with property offenses of the type that might reasonably
be expected to be discovered during an investigation of a
person's assets and liabilities. Far from involving fortuitous,
unrelated criminal misconduct, Hofseth's alleged crimes involved
property and conduct specifically discussed by Hofseth in his
statements and testimony to PTS and the court. Hofseth's
statements concerning the DeLorean were investigated by Suzanne
Rogers, who specifically included in the disclosed PTS records
the information that Hofseth had transferred the DeLorean to
Brodsky, that it had been reported stolen, and that a substantial
insurance payment had been made as a result of the theft.
Given these circumstances, we find that the superior
court did not err in concluding that the DeLorean was a fruit of
the disclosure of Hofseth's PTS records and that its seizure was
not so attenuated from the disclosure as to dissipate the taint.
See, e.g., United States v. Schipani, 289 F.Supp. 43 (E.D.N.Y.
1968).
CONCLUSION
In summary, we conclude that the superior court
correctly ruled that evidence resulting from an investigation
prompted by release of information under AS 18.85.120(d) may
generally be used only to prosecute for perjury. The general
rule is subject to two exceptions. First, when a perjury
investigation originates from disclosure of information submitted
in support of a fraudulent application for court-appointed
counsel or from disclosure of statements that are shown to have
been perjured, then prosecution of incidental crimes discovered
during the investigation is not barred. Second, as recognized by
the superior court, when a perjury investigation stemming from a
disclosure under AS 18.85.120(d) fortuitously yields evidence of
misconduct essentially unrelated to the type of information in
the disclosed materials, then the attenuation doctrine will
apply, and the misconduct may be prosecuted. Because neither
exception is applicable here, the superior court correctly
granted Hofseth's motion to suppress.
The order of suppression is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Judge Michalski's written order granting the motion to
suppress provided, in relevant part, as follows:
Alaska law and procedure requires that a
person seeking appointed counsel make a sworn
statement regarding income and assets. The
statute provides that at the end of the
related case such statements may be made
available to the attorney general for
appropriate actions but that incriminatory
statements are to be removed. This rather
confusing language, in contrast with the
swearing requirement, leads this court to
believe that the contents of compelled
statements in application for legal services
may be used to prosecute perjury but not
other crimes relating to the property listed
in the compelled statement. In other words,
the constitutional prohibition against
compelled statements requires this court to
recognize a use immunity for statements made
to obtain counsel. This "springing immunity"
would not reach to non-property crimes or to
property crimes sufficiently attenuated from
the inquiry into the existence or
nonexistence of the applicant's assets.
Here the defendant claimed to have no
assets. And it is from that statement that
the referral to the district attorney's
office arose, and the rebuttal of which may
prove perjury. The investigation related to
the DeLorean is a fruit of that referral and
use immunity requires suppression of the
evidence seized for purposes of a non-perjury
prosecution.
. . . This court recognizes that it is
possible that totally unrelated crime might
be discovered in the course of a perjury
investigation, and not only ought to be but
may be prosecuted if sufficiently attenuated
from the "statement" made by the applicant
for appointed counsel. Here, however, the
ownership of the DeLorean and use and
availability of insurance proceeds from it
were specifically part of the property issues
raised by pretrial services in rejecting
Hofseth's application. Therefore, it is
proper that the "springing immunity" required
by both statute and constitution reach to the
prosecution for insurance fraud in this case.
2. This point is clearly made in United States v. Kahan,
415 U.S. at 243, where the United States Supreme Court held that,
even assuming the rationale in Simmons v. United States applied
in the context of requests for court-appointed counsel, that
rationale could not protect a fraudulent applicant from
prosecution:
Here, by contrast, the incriminating
component of respondent's pretrial statements
derives not from their content, but from
respondent's knowledge of their falsity. The
truth of the matter was that respondent was
not indigent, and did not have a right to
appointment of counsel under the Sixth
Amendment. We are not dealing, as was the
Court in Simmons, with what was "believed" by
the claimant to be a "valid" constitutional
claim, see n.2, supra. Respondent was not,
therefore, faced with the type of intolerable
choice Simmons sought to relieve. The
protective shield of Simmons is not to be
converted into a license for false
representations on the issue of indigency
free from the risk that the claimant will be
held accountable for his falsehood.
3. As has been indicated by our prior discussion,
information given by Hofseth to PTS could not have been deemed
potentially incriminatory and thereby shielded from disclosure
merely by virtue of its untruthfulness or its tendency to
implicate Hofseth in the commission of perjury. However, to the
extent that Hofseth's statements to PTS or the district court, or
PTS's investigation of those statements, disclosed truthful
information that could have incriminated Hofseth in offenses
other than perjury, then the information was potentially
incriminatory. Despite the express provision in AS 18.85.120(d)
prohibiting the release of incriminatory information, Hofseth was
given no advance opportunity to identify potentially
incriminating statements and to request that such statements not
be released to the state. We realize that, as an alternative to
construing AS 18.85.120(d) to generally preclude charges other
than perjury (a result characterized by Judge Michalski as
"springing immunity"), we might read the provision to require pre-
disclosure notice to the defendant and an opportunity to claim
privilege and request nondisclosure of specific information.
Such a cumbersome procedure does not appear to have been
contemplated by the drafters of the Public Defender Act, however,
and its implementation would have the undesirable effect of
alerting persons suspected of perjury to the fact that an
investigation was contemplated by the state.
4. Given our conclusion as to the applicability of the
statutory restriction on release of incriminatory information
contained in AS 18.85.120(d), we need not address the state's
argument that, in the absence of statutory prohibition, release
of Hofseth's financial statements would not have violated his
constitutional privilege against self-incrimination.
5. The state also mentions the independent source and
inevitable discovery doctrines. See, e.g., Erickson v. State,
507 P.2d 508, 516 (Alaska 1973); Cruse v. State, 584 P.2d 1141,
1145 (Alaska 1978). In the present case, however, the state
never laid the factual groundwork to support either doctrine.
Below, the state did not allege or prove that the discovery of
Hofseth's DeLorean was occasioned by a source independent of the
perjury investigation prompted by disclosure of Hofseth's
financial statements. Nor did the state establish that the
DeLorean would inevitably have been discovered despite the
challenged disclosure. Thus, neither the independent source nor
the inevitable discovery doctrine is germane here.
