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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH J. HAZELWOOD, )
) Court of Appeals No. A-3452
Appellant, ) Trial Court No. 3AN-S89-
7217/18CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. )
________________________________) [No. 1232 - July 10, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karl S. Johnstone, Judge.
Appearances: Richard H. Friedman and Jeffrey
K. Rubin, Friedman and Rubin, Anchorage,
Michael G. Chalos and Thomas Russo, Chalos,
English & Brown, New York, and Dick L.
Madson, Fairbanks, for Appellant. Samuel D.
Adams, Assistant District Attorney, Edward E.
McNally, District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Hodges, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Joseph J. Hazelwood was convicted by a jury of
negligent discharge of oil, a misdemeanor. See AS 46.03.740 and
.790(a)(1). Superior Court Judge Karl S. Johnstone sentenced
Hazelwood to ninety days in jail and a $1000 fine, suspending
both on condition that Hazelwood complete one year of probation,
perform 1000 hours of community work, and pay $50,000 in
restitution. Hazelwood appeals, contending that the trial court
erred in denying his motion to dismiss on grounds of immunity, in
failing to suppress certain evidence of intoxication, and in
instructing the jury on the applicable culpable mental state for
his offense. Hazelwood also appeals his sentence. Because we
find Hazelwood's prosecution to have been barred by immunity, we
reverse his conviction.1
FACTS
Shortly after midnight on March 24, 1989, the Exxon
Valdez, an oil tanker operated by the Exxon Shipping Company, ran
aground on Bligh Reef, spilling eleven million gallons of oil
into Prince William Sound. Hazelwood, the vessel's captain, was
in his cabin; he had turned the helm over to Third Mate Gregory
Cousins a short time earlier. Cousins immediately summoned
Hazelwood to the bridge. Approximately twenty minutes after the
grounding, Hazelwood reported the incident by radio to the Coast
Guard Traffic Center in Valdez, stating:
Ah, it's Valdez back. Ah, we've -- ah,
should be on your radar there -- we've
fetched up, ah, hard aground north of, ah,
Goose Island off Bligh Reef. And, ah,
evidently, ah, leaking some oil, and, ah,
we're going to be here for awhile. And, ah,
if you want, ah, so you're notified. Over.
Hazelwood's report sparked an immediate investigation
by federal and state officials; the investigation yielded
evidence that eventually led the state to indict Hazelwood for
reckless endangerment, operating a watercraft while intoxicated,
and negligent discharge of oil. Hazelwood moved to dismiss the
charges, contending, among other things, that he was immune from
prosecution because he had immediately reported the Exxon
Valdez's grounding and its discharge of oil to the Coast Guard,
in compliance with Section 311 of the Federal Water Pollution
Control Act, 33 U.S.C. 1321. Paragraph (b)(5) of this statute
requires "Any person in charge of a vessel" such as the Exxon
Valdez to notify the government immediately of "any discharge of
oil or a hazardous substance from such vessel"; the paragraph
goes on to confer immunity on any person who complies with this
requirement:
Notification received pursuant to this
paragraph or information obtained by the
exploitation of such notification shall not
be used against any such person in any
criminal case, except a prosecution for
perjury or for giving a false statement.
Id.2
In moving to dismiss on grounds of immunity, Hazelwood
argued that he had complied with the federal statute's immediate
notice requirement by calling the Coast Guard on the radio to
report that the Exxon Valdez was aground and leaking oil.
Hazelwood asserted that the statutory grant of immunity was
applicable to his case because his report to the Coast Guard had
directly triggered the government's investigation of the spill,
and because the state had gathered its evidence against him in
the course of that investigation. Hazelwood maintained that his
prosecution was therefore based on "information obtained by the
exploitation of such notification," in violation of 33 U.S.C.
1321(b)(5). To support his motion to dismiss, Hazelwood
submitted an affidavit stating that, when he called the Coast
Guard to notify it of the spill, he was aware such notice was
required under 33 U.S.C. 1321(b)(5), and he believed that he
could not be prosecuted for the spill if he reported it.
The state did not dispute Hazelwood's claim of
compliance with the immediate notice requirement of 33 U.S.C.
1321(b)(5), nor did the state dispute that its evidence derived
from the investigation triggered by Hazelwood's call to the Coast
Guard. The state nevertheless asserted two alternative grounds
for rejection of Hazelwood's claim of immunity: the independent
source rule and the inevitable discovery doctrine. Following
an evidentiary hearing, Judge Johnstone adopted the state's
immunity argument, finding both the independent source rule and
the inevitable discovery doctrine applicable to Hazelwood's case.
Accordingly, Judge Johnstone denied Hazelwood's motion to
dismiss.
DISCUSSION
On appeal, Hazelwood argues that Judge Johnstone erred
in invoking the independent source rule and the inevitable
discovery doctrine to nullify the grant of immunity set out in 33
U.S.C. 1321(b)(5). Renewing the arguments it raised below, the
state contends that Judge Johnstone properly decided the issue.
In resolving the parties' arguments, we will separately consider
the two theories relied on by the superior court, turning first
to the independent source rule and then to the inevitable
discovery doctrine.
A. Independent Source Rule
The independent source rule is intrinsically related to
the concept of use and derivative use immunity. The fifth
amendment to the United States Constitution provides that no
person "shall be compelled in any criminal case to be a witness
against himself." Despite this constitutional command, it is
well-settled that the government may compel a person to furnish
potentially incriminatory testimony or information in exchange
for immunity from future prosecution. See State v. Gonzalez, 825
P.2d 920, 923 (Alaska App. 1992). In Kastigar v. United States,
406 U.S. 441 (1972), the United States Supreme Court held that
the demands of the fifth amendment can be satisfied by "use and
derivative use immunity" -- a form of immunity prohibiting the
use of immunized testimony or any information derived therefrom
against the witness from whom it was compelled.3
Since this form of immunity protects only against the
use of compelled testimony and information derived therefrom, it
does not categorically bar the state from prosecuting an
immunized witness for crimes as to which the witness was
compelled to testify; the state remains free to prosecute if it
possesses evidence from an "independent source," that is, a
source entirely untainted by the compelled testimony.
To protect against any infringement of the accused's
constitutional privilege against self-incrimination in such
cases, however, the law imposes on the state the burden of
proving the source of its evidence. Under the independent source
rule, "[o]nce immunity is shown, the prosecutor has the burden of
demonstrating that its use of the immunized testimony has not
tainted any aspect of the case." United States v. De Diego, 511
F.2d 818, 821 (D.C. Cir. 1975), quoted in United States v. North,
910 F.2d 843, 865 (D.C. Cir. 1990). To meet its burden, "the
State must prove that [its] . . . evidence was developed or
obtained from sources or by means entirely independent of and
unrelated to the earlier compelled testimony." State v. Strong,
542 A.2d 866, 872 (N.J. 1988).
This burden of proof . . . is not limited to
a negation of taint; rather, it imposes on
the prosecution the affirmative duty to prove
that the evidence it proposes to use is
derived from a legitimate source wholly
independent of the compelled testimony.
Kastigar v. United States, 406 U.S. at 460. Because the
government always bears the burden of affirmatively proving a
wholly independent source, courts "may not infer findings
favorable to the government." United States v. North, 910 F.2d
at 867. See also United States v. Rinaldi, 808 F.2d 1579, 1583-
84 (D.C. Cir. 1987). We must assess the superior court's
reliance on the independent source rule in light of these
principles. It is undisputed here that the applicable federal
statute, 33 U.S.C. 1321(b)(5), confers use and derivative use
immunity on any person who complies with its mandate to provide
the government with immediate notice of any discharge of oil. It
is further undisputed that Hazelwood, as captain of the Exxon
Valdez, became obligated to provide notice under this statute
when his ship ran aground and began to discharge oil into the
waters of Prince William Sound. Additionally, as we have
previously indicated, the state has acknowledged that Hazelwood's
radio communication to the Coast Guard complied with the
immediate notice requirement and that virtually all of its
evidence against Hazelwood actually derived from Hazelwood's
report. Under the circumstances, Hazelwood plainly made a
threshold showing that his report to the Coast Guard fell within
the federal statute's immunity provision; the state thus bore the
burden of affirmatively proving an independent source for its
evidence.
In advancing its independent source theory, the state
relied primarily on a regulation dealing with the reporting of
marine casualties. Under 46 CFR 4.05-1, "The owner, agent,
master or person in charge of a vessel involved in a marine
casualty" must "give notice as soon as possible" to the Coast
Guard if the casualty creates an environmental hazard (46 CFR
4.05-1(a)), adversely affects the vessel's seaworthiness (46 CFR
4.05-1(c)), or results in property damage of more than $25,000
(46 CFR 4.05-1(f)).4 This regulation is part of a larger
regulatory scheme promulgated "to increase the likelihood of
timely assistance to vessels in distress." 46 CFR 4.01-1. Its
immediate notice provision deals only with marine casualties and
is unrelated to the statutory provision upon which Hazelwood
bases his claim of immunity -- 33 U.S.C. 1321(b)(5) -- which
deals with reports of oil spills. Unlike the immediate notice
provision of the oil spill statute, the marine casualty
regulation does not build in a grant of immunity.
Based on the marine casualty regulation, the state
argued below that, upon grounding the Exxon Valdez, Hazelwood
incurred two separate legal duties. According to the state, the
first duty arose under the oil spill statute, 33 U.S.C.
1321(b)(5). The state asserted that Hazelwood's only duty under
this provision was to report that the Exxon Valdez was
discharging oil into the water; he was under no obligation to
report the grounding of his vessel. In the state's view, a
second, separate duty arose under the marine casualty regulation,
46 CFR 4.05-1, which, according to the state, was the only
provision requiring Hazelwood to report that his vessel had run
aground and was damaged.
Having erected this dichotomy between the requirements
of the oil spill statute and the marine casualty regulation, the
state focused on the words Hazelwood spoke to the Coast Guard
immediately following the grounding of his vessel: "[W]e've
fetched up . . . hard aground north of . . . Goose Island off
Bligh Reef. And, . . . evidently, . . . [we're] leaking some
oil, and . . . we're going to be here for awhile." The state
urged Judge Johnstone to construe this radio message as embodying
two distinct and wholly independent reports -- one providing
notice of the oil spill, in compliance with 33 U.S.C.
1321(b)(5), and the other giving notice of the grounding of the
Exxon Valdez, as required by 46 CFR 4.05-1.
The state argued that, since Hazelwood's obligation to
report the grounding of his vessel had arisen only under the
marine casualty regulation, which did not provide for immunity,
his statement, "we've fetched up hard aground," amounted to a
source of evidence that was wholly independent of his statement,
"evidently, [we're] leaking some oil," which the state conceded
to be covered by the immunity clause of the oil spill reporting
statute.
At the evidentiary hearing before the superior court,
the state supported its independent source argument by presenting
testimony indicating that the official investigation of the Exxon
Valdez incident was prompted by the vessel's grounding as well as
by its discharge of oil. According to the state's witnesses, the
investigation would have been no different had Hazelwood reported
only the grounding. On this basis, the state asserted that its
evidence against Hazelwood actually derived from two wholly
independent sources, one of which -- the report of the grounding
-- was not subject to any claim of immunity.
Judge Johnstone accepted the state's argument, finding,
in relevant part:
[T]he defendant's initial report of a
grounding constitutes an independent source
for the information-gathering process and
that all information gathered, except for the
defendant's report of the spill itself, is
otherwise from a source wholly independent
from his protected report.
On appeal, the state argues that this finding should be
upheld. However, the state's independent source argument is
both legally and factually flawed.
In the abstract, the legal theory underlying the
state's independent source argument is plausible. One who
reports information to the government gratuitously, being under
no obligation to do so, cannot later claim that the information
was compelled in violation of the privilege against self-
incrimination. For precisely this reason, this court has
previously recognized that a person who submits a report to the
state in response to a statutory reporting requirement cannot
later invoke the privilege against self-incrimination to the
extent that the facts included in the report went beyond the
scope required by the statute. Creary v. State, 663 P.2d 226,
229-30 (Alaska App. 1983). In the present case, if 33 U.S.C.
1321(b)(5) required Hazelwood to report only the fact that the
Exxon Valdez was discharging oil, then his statement that the
vessel was grounded might be viewed as a gratuitous one. To the
extent this statement went beyond the scope of the reporting
requirement, the statutory promise of immunity arguably did not
attach to it.
While this legal theory is potentially meritorious in
the abstract, its viability depends entirely on the premise that,
under the oil spill notice statute, Hazelwood had no duty to
report his ship's grounding but was required only to report its
discharge of oil. This premise, which the state convinced the
superior court to accept, is incorrect as a matter of law.
The language of 33 U.S.C. 1321(b)(5) does not itself
specify what information the captain of a vessel must give in
providing notice of a discharge of oil. However, the Department
of Transportation has implemented the statutory reporting
requirement through regulations commanding notice of details
beyond the mere fact of a discharge. The provisions of 33 CFR
153.203 were specifically promulgated to deal with spills covered
under 33 U.S.C. 1321(b)(5). The regulation echoes the
statute's notice requirement, providing that the captain of a
vessel discharging oil must immediately notify the Coast Guard.5
A related regulation, 33 CFR 151.15, spells out the
information that must be reported for spills involving several
categories of noxious liquid substances. This regulation
requires the captain of a vessel such as the Exxon Valdez to
notify the Coast Guard of an incident involving the unauthorized
discharge of a noxious liquid substance. Paragraph (a) of the
regulation requires the report to include "the particulars of
such incident . . . to the fullest extent possible in accordance
with the provisions of this section." Paragraph (f) goes
further, specifying the particulars that a report must contain:
(f) Each report shall contain --
(1) The identity of the ship;
(2) The time and date of the occurrence of
the incident;
(3) The geographic position of the ship when
the incident occurred;
(4) The wind and sea condition prevailing at
the time of the incident;
(5) Relevant details respecting the
condition of the ship; and
(6) A statement or estimate of the quantity
of oil or oily mixtures discharged or likely
to be discharged into the sea. [Emphasis
added.]
Then, in paragraph (h), the regulation makes it clear that its
reporting requirements apply specifically to reports of oil
spills filed in accordance with 33 CFR 153.203 -- the
regulation implementing the oil spill notice requirement of 33
U.S.C. 1321(b)(5): "A report made under this section will
satisfy the reporting requirement of 153.203 of this chapter."6
Given this provision, the conclusion seems inescapable
that 33 CFR 151.15 applied to Hazelwood's report of an oil
spill. In seeking to comply with the immediate notice
requirement of 33 U.S.C. 1321(b)(5) by informing the Coast
Guard that the Exxon Valdez was discharging oil, Hazelwood had a
duty, under 33 CFR 151.15(f)(5), to report all "[r]elevant
details respecting the condition of the ship." His obligation
thus went beyond the mere duty to report a discharge of oil; it
also included the duty to report that his ship was grounded.
Because information concerning the grounding constituted an
integral part of the notice required under 33 U.S.C.
1321(b)(5), Hazelwood's report of the grounding fell within that
statute's immunity provision, just as his report of the spill
itself did.
From the record it appears that the regulations
implementing 33 U.S.C. 1321(b)(5) were never called to Judge
Johnstone's attention. In light of these regulations, the
superior court's finding of an independent source must be deemed
incorrect as a matter of law. Hazelwood may well have been
legally obligated to report the grounding of the Exxon Valdez
under two distinct regulatory schemes, one providing for immunity
(33 U.S.C. 1321(b)(5) and 33 CFR 151.15(f)(5)), and the
other, not (46 CFR 4.05-1). Given the coextensive nature of
these two reporting requirements, however, the most that can be
said is that they amounted to wholly interdependent, not wholly
independent, sources of the state's evidence.7
Under the circumstances, the trial court was clearly
erroneous in finding that the state had met its burden of proving
the existence of an independent source.
B. Inevitable Discovery Doctrine
Since we conclude that the superior court's application
of the independent source rule cannot be sustained, we must next
turn to its reliance on the inevitable discovery doctrine.
This doctrine, fashioned by courts as an exception to
the exclusionary rule in cases involving illegally obtained
evidence, is in effect a hypothetical variation upon the
independent source rule: courts have applied the doctrine to
avoid suppressing illegally obtained evidence when the
prosecution has demonstrated that, although its evidence actually
derived from a source tainted by illegality, the same evidence
would inevitably have been discovered through lawful, untainted
means had the illegality not occurred. See generally W.R.
LaFave, Search and Seizure, 11.4(a) at 378-88 (2d ed. 1987).
The inevitable discovery doctrine was formally
recognized by the United States Supreme Court under federal
constitutional law in Nix v. Williams, 467 U.S. 431 (1984).
Although most jurisdictions considering the doctrine have adopted
it, Nix v. Williams, 467 U.S. at 440-41, courts differ as to its
precise implementation. Compare, e.g., United States v.
Satterfield, 743 F.2d 827 (11th Cir. 1984), with United States v.
Ramirez-Sandoval, 872 F.2d 1392 (9th Cir. 1989). In several
previous decisions, we have noted the doctrine, but we have never
been called upon to adopt it as a matter of Alaska law. See,
e.g., State v. Lewis, 809 P.2d 925, 930 n.3 (Alaska App. 1991);
Ricks v. State, 771 P.2d 1364, 1369 n.3 (Alaska App. 1989),
modified on other grounds, State v. Ricks, 816 P.2d 125 (Alaska
1991); Krukoff v. State, 702 P.2d 664, 666 n.2 (Alaska App.
1985).
In the present case, witnesses called by the state
during the evidentiary hearing testified that the grounding of
the Exxon Valdez would in all likelihood have been discovered and
investi-gated, with negligible delay, even if Hazelwood had
failed to notify the Coast Guard immediately. Based on this
testimony, Judge Johnstone declared the inevitable discovery
doctrine applicable:
The defendant's report of the grounding
notwithstanding, the state inevitably would
have discovered the grounding of the Exxon
Valdez and initiated the investigatory
process by not later than 12:45 a.m. on March
24, 1989. The court further concludes, based
on the facts, that the investigating team . .
. would have arrived at approximately the
same time as they, in fact, did. Any
observation made or investigation actually
commenced would have been made or commenced
at approximately the same time.
For present purposes, we may assume that the inevitable
discovery doctrine would be adopted in Alaska in appropriate
cases and that Judge Johnstone's factual findings concerning the
inevitability of the Exxon Valdez's discovery are supported by
the record. Application of the inevitable discovery doctrine in
this case is nevertheless problematic.
In its original context -- situations involving police
misconduct -- the inevitable discovery doctrine serves the
salutary purpose of tempering the exclusionary rule. The
exclusionary rule requires suppression of illegally obtained
evidence and all fruits thereof; its primary purpose is to deter
official lawlessness:
As the Supreme Court explained in Nix v.
Williams, the inevitable discovery doctrine
is . . . intended to ensure that suppression
does not outrun the deterrence objective [of
the exclusionary rule]: the prosecution is
neither "put in a better position than it
would have been if no illegality had
transpired" nor "put in a worse position
simply because of some earlier police error
or misconduct."
W.R. LaFave, Search and Seizure 11.4(a), at 381 (2d ed. 1987)
(footnotes omitted).
The exclusionary rule and the inevitable discovery
doctrine work in tandem to strike a balance between the need for
deterrence of official misconduct, on the one hand, and the need
to protect the state's legitimate interest in using reliable
evidence of crime, on the other; the purpose of this balance is
"to mark 'the point of diminishing returns of the deterrence
principle.'" Id. at 373, quoting Amsterdam, Search, Seizure, and
Section 2255: a Comment, 112 U. Pa. L. Rev. 378, 389 (1964).
By contrast, a different principle is at work in the
immunity context. Evidence is not unlawfully obtained when an
individual provides information to the government under a grant
of immunity. Hence, the exclusion of information that derives
from immunized testimony is unrelated to deterrence of official
misconduct; rather, exclusion occurs for the direct purpose of
enforcing the government's assurance that no statement given
under immunity, and no evidence derived therefrom (or, in the
words of 33 U.S.C. 1321(b)(5), no "information obtained by
exploitation of" an immunized report) will be used against the
person who was compelled to give the statement.
The manner in which a promise of immunity operates
reflects the dual nature of the privilege against self-
incrimination:
The constitutional privilege against
self-incrimination has two primary inter-
related facets: The Government may not use
compulsion to elicit self-incriminating
statements, . . . and the Government may not
permit the use in a criminal trial of self-
incriminating statements elicited by
compulsion.
Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 57
n.6 (1964).
Because the ultimate aim of the constitutional
privilege is to assure that no compelled statement will be used
against the accused in a criminal case, the Supreme Court has
long recognized that the first facet of the privilege -- its
protection against compulsory elicitation of potentially
incriminating statements -- may be properly invaded by the
government, but only in exchange for a guarantee that the second
facet of the privilege -- the use of compelled statements or
evidence derived therefrom -- will not be breached. See Brown v.
Walker, 161 U.S. 591 (1896). Thus, the exclusion of evidence in
the immunity context is directly necessary to uphold the second
facet of the constitutional privilege, a facet the government
specifically promises to enforce in exchange for the opportunity
to compel the disclosure of potentially incriminating
information.
The differing roles played by the exclusionary rule in
cases involving illegally obtained evidence and cases of immunity
-- deterrence, on the one hand, and enforcement of the
constitutional privilege itself, on the other -- are of critical
importance in determining whether the inevitable discovery
doctrine should apply in the immunity context:
Evidence obtained through a coercive interro
gation, like evidence obtained through an
illegal search, is excluded at trial because
the Constitution prohibits such methods of
gathering evidence. The exclusionary rules
provide a partial and inadequate remedy to
some victims of illegal police conduct, and a
similarly partial and inadequate deterrent to
police officers. An immunity statute, on the
other hand, is much more ambitious than any
exclusionary rule. It does not merely
attempt to provide a remedy for past police
misconduct, which never should have occurred.
An immunity statute operates in advance of
the event, and it authorizes -- even
encourages -- interrogation that would
otherwise be prohibited by the Fifth
Amendment. . . .
[B]ecause an immunity statute gives constitu-
tional approval to the resulting interroga
tion, the government is under an obligation
. . . to remove the danger of incrimination
completely and absolutely, whereas in the
case of the exclusionary rules it may be
sufficient to shield the witness from the
fruits of the illegal search or interrogation
in a partial and reasonably adequate manner.
. . . The Constitution does not authorize
police officers to coerce confessions or to
invade privacy without cause, so long as no
use is made of the evidence they obtain. But
. . . the Constitution does authorize the
government to compel a witness to give
potentially incriminating testimony, so long
as no incriminating use is made of the
resulting evidence. Before the government
puts its seal of approval on such an
interrogation, it must provide an absolutely
reliable guarantee that it will not use the
testimony in any way at all in aid of
prosecution of the witness.
Kastigar v. United States, 406 U.S. at 470-71 (Marshall, J.,
dissenting).
In view of these differences, the United States Supreme
Court has been careful to distinguish between the "balancing of
interests . . . thought to be necessary . . . when the attempt to
deter unlawful police conduct" is involved, New Jersey v.
Portash, 440 U.S. 450, 459 (1979), and the less flexible approach
toward excluding evidence that is necessary in immunity cases:
Testimony given in response to a grant
of legislative immunity is the essence of
coerced testimony. . . . Here, . . . we deal
with the constitutional privilege against
compulsory self-incrimination in its most
pristine form. Balancing, therefore, is not
simply unnecessary. It is impermissible.
Id. (emphasis added). Cf. United States v. North, 910 F.2d at
868-71 (distinguishing, on similar grounds, the rule prohibiting
challenge to federal indictments based on use of illegally
obtained evidence before the grand jury from the rule allowing
challenges to indictments obtained through use of immunized
testimony or the fruits thereof).
These fundamental differences between the exclusion of
evidence in cases of illegally obtained evidence and cases of
evidence derived from immunized information lead us to conclude
that the inevitable discovery doctrine -- an exception rooted in
the pragmatism of the exclusionary rule and its narrow deterrent
purpose -- has no application in the immunity context. The use
of inevitable discovery in this context would be directly
contrary to the express protection of the privilege against self-
incrimination. Such use of the doctrine would also be virtually
unprecedented. Although courts applying the inevitable discovery
doctrine in cases involving police misconduct have not distin
guished between evidence obtained in violation of the fourth,
fifth and sixth amendments, see, e.g., United States v. Martinez-
Gallegos, 807 F.2d 868 (9th Cir. 1987), the state has cited no
case in which the doctrine has been applied in the immunity
context; after independent effort, we have found none.
There is, moreover, an element of basic fairness to be
considered in determining whether the inevitable discovery
doctrine should apply in the context of immunity. A grant of
immunity is essentially a contract in which the government
bargains for information in return for an assurance of future
protection. Here, the superior court found, and the state has
effectively conceded, that the evidence against Hazelwood was in
fact obtained "by the exploitation of" Hazelwood's report that
the Exxon Valdez ran aground and was leaking oil. 33 U.S.C.
1321(b)(5). Although the state, by invoking the inevitable
discovery doctrine, seeks dispensation from the promise of
immunity expressly made in the federal statute, it is difficult
to see how such dispensation can be justified. Having gained its
evidence from the exploitation of information it obtained by a
promise of immunity, the state should not be free to renege
merely because, in retrospect, the promise appears to have been
unnecessary. Cf. Closson v. State, 812 P.2d 966, 974-75 (Alaska
1991).
On a more practical level, applying the inevitable
discovery doctrine in this context would also run afoul of
Congress' determination that public policy justifies the granting
of immunity in cases such as this. The congressional purpose in
granting immunity for the immediate report of a spill was to
encourage prompt notice in as many cases as possible, so that
abatement efforts could be undertaken without unnecessary delay,
and so that the government would become aware of smaller spills
that might otherwise go undetected. See, e.g., United States v.
Mobil Oil Corporation, 464 F.2d 1124 (5th Cir. 1972). Adding an
exception to the congressional grant of immunity for cases in
which a finding of inevitable discovery could eventually be made
would unquestionably frustrate the congressional purpose of
encouraging prompt notice in all cases. Such an exception would
discourage compliance by persons who potentially stood to
incriminate themselves, particularly in cases where the size of
the discharge made it predictable at the outset that the
inevitable discovery doctrine would preclude any subsequent claim
of immunity.8 Finally, assuming the doctrine of
inevitable discovery could be applied in the immunity context
without violence to the constitutional privilege against self-
incrimination, the question would still remain as to who should
apply the doctrine.9 In cases involving illegally obtained
evidence, the inevitable discovery doctrine operates as a
judicially created exception to the judicially created
exclusionary rule. In the context of a judicially created rule,
the appropriateness of a judicially fashioned limitation seems
self-evident. In contrast, we deal here with a congressionally
enacted grant of immunity which, on its face, seems uncondi
tional. While Congress could have readily carved out an
exception to the immunity clause of the oil spill notice statute
for cases in which spills would inevitably have been discovered,
it did not do so.
The power of a court, especially a state court, to
engraft such an exception onto a federal statute that provides
for none is open to serious doubt, particularly in the immunity
context. If an exception to the congressional grant of immunity
is to be made in this case, we think it clear that Congress is
the only body to make it. "It is not for us to add to the
legislation what Congress pretermitted." United States v. Monia,
317 U.S. 424, 430 (1943).
We conclude that the inevitable discovery doctrine,
like the independent source rule, is inapplicable in this case.
Because the superior court erred in applying both the independent
source rule and the inevitable discovery doctrine, Hazelwood's
conviction must be reversed.
Lest our insistence on this outcome be mistaken for
enthusiasm, we add several words. The unparalleled environmental
devastation wrought by the grounding of the Exxon Valdez is
hardly lost upon this court. But while we may feel sorely
tempted, as individuals, to recast the law in a mold better
suited to our personal sense of justice, we are bound, as judges,
to resist this temptation: our sworn duty is to uphold the law
as it is, not as we would have it be. We are free to question
the wisdom of Congress; we are not free to change the laws it
enacts.
What the law requires in this case is clear, and leaves
little room for our own personal preferences. Congress has
barred prosecution in this case because the state obtained its
evidence by the exploitation of Hazelwood's report of an oil
spill. The federal statute's prescription of immunity will
undoubtedly be a bitter pill for many Alaskans to swallow;
dismissing the charges in this case in order to protect Hazelwood
from conviction based on the use of tainted evidence may seem a
cure far worse than the disease. Yet, by requiring immunity
today, the federal statute encourages immediate reporting in the
event of a spill tomorrow. If this encouragement averts
catastrophic environmental losses in future incidents, then
Congress' decision to favor immunity over prosecution may, in the
long run, prove to be a wise one. It is not for this court to
say otherwise.
The judgment of conviction in this case must be
REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. Our holding on the immunity issue makes it unnecessary
to address the other issues Hazelwood has raised on appeal.
2. In its entirety, 33 U.S.C. 1321(b)(5) states:
Any person in charge of a vessel or
of an onshore facility or an offshore
facility shall, as soon as he has knowledge
of any discharge of oil or a hazardous
substance from such vessel or facility in
violation of paragraph (3) of this
subsection, immediately notify the
appropriate agency of the United States
Government of such discharge. Any such
person (A) in charge of a vessel from which
oil or a hazardous substance is discharged in
violation of paragraph (3)(i) of this
subsection, or (B) in charge of a vessel from
which oil or a hazardous substance is
discharged in violation of paragraph (3)(ii)
of this subsection and who is otherwise
subject to the jurisdiction of the United
States at the time of the discharge, or (C)
in charge of an onshore facility or an
offshore facility, who fails to notify
immediately such agency of such discharge
shall, upon conviction, be fined not more
than $10,000, or imprisoned for not more than
one year, or both. Notification received
pursuant to this paragraph or information
obtained by the exploitation of such
notification shall not be used against any
such person in any criminal case, except a
prosecution for perjury or for giving a false
statement.
3. In State v. Gonzalez, 825 P.2d 920 (Alaska App. 1992),
we held a broader form of immunity -- transactional immunity --
to be the minimal level of protection necessary to satisfy the
requirements of the Alaska Constitution's privilege against self-
incrimination. Alaska Const., art. I, 9. In the present case,
33 U.S.C. 1321(b)(5) conferred use and derivative use immunity
rather than transactional immunity. Notwithstanding the limited
scope of immunity offered under the federal statute, Hazelwood
complied with its immediate notice requirement and did not
attempt to invoke his privilege against self-incrimination. On
appeal, Hazelwood has not argued that the statutory grant of
immunity was deficient. Given these circumstances, we need not
consider or decide any issue involving the adequacy of use and
derivative use immunity in this case.
4. The full text of 46 CFR 4.05-1 is as follows:
Notice of marine casualty.
The owner, agent, master or person in
charge of a vessel involved in a marine
casualty shall give notice as soon as
possible to the nearest Coast Guard Marine
Safety or Marine Inspection Office whenever
the casualty involves any of the following:
(a) All accidental groundings and any
intentional grounding which also meets any of
the other reporting criteria or creates a
hazard to navigation, the environment, or the
safety of the vessel;
(b) Loss of main propulsion or primary
steering, or any associated component or
control system, the loss of which causes a
reduction of the maneuvering capabilities of
the vessel. Loss means that systems, compo
nent parts, sub-systems, or control systems
do not perform the specified or required func
tion;
(c) An occurrence materially and ad
versely affecting the vessel's seaworthiness
or fitness for service or route, including
but not limited to fire, flooding, or failure
or damage to fixed fire extinguishing
systems, lifesaving equipment, auxiliary
power generating equipment, or bilge pumping
systems;
(d) Loss of life;
(e) Injury which requires professional
medical treatment beyond first aid and, in
the case of a person engaged or employed on
board a vessel in commercial service, which
renders the individual unfit to perform
routine vessel duties;
(f) An occurrence not meeting any of
the above criteria but resulting in damage to
property in excess of $25,000. Damage cost
includes the cost of labor and material to
restore the property to the service condition
which existed prior to the casualty, but does
not include the cost of salvage, cleaning,
gas freeing, drydocking or demurrage.
5. 33 CFR 153.203 states:
Procedure for the notice of discharge.
Any person in charge of a vessel or of an
onshore or offshore facility shall, as soon
as they have knowledge of any discharge of
oil or a hazardous substance from such vessel
or facility in violation of section 311(b)(3)
of the Act, immediately notify the National
Response Center (NRC), U.S. Coast Guard, 2100
Second Street, SW., Washington, DC 20593,
toll free telephone number 800-424-8802 (in
Washington, DC metropolitan area, (202) 267-
2675). If direct reporting to the NRC is not
practicable, reports may be made to the Coast
Guard or EPA predesignated OSC for the geo
graphic area where the discharge occurs. All
such reports shall be promptly relayed to the
NRC. If it is not possible to notify the NRC
or the predesignated OSC immediately, reports
may be made immediately to the nearest Coast
Guard unit, provided that the person in
charge of the vessel or onshore or offshore
facility notifies the NRC as soon as
possible.
6. The full text of 33 CFR 151.15 is as follows:
Reporting Requirements.
(a) The Master or other person having charge
of a ship involved in an incident referred to
in paragraph (e) of this section, shall
report the particulars of such incident
without delay and to the fullest extent
possible in accordance with the provisions of
this section.
(b) In the event of the ship referred to in
paragraph (a) of this section being
abandoned, or in the event of a report from
such ship being incomplete or unobtainable,
the owner, charterer, manager or operator of
the ship, or their agents shall, to the
fullest extent possible assume the
obligations placed upon the Master or other
person having charge of the ship under the
provisions of this section.
(c) Each report shall be made by radio when
ever possible, but in any case by the fastest
available means at the time the report is
made.
(d) Reports shall be directed to the appro
priate officer or agency of the government of
the country in whose waters the incident
occurs. Additionally, for incidents
involving U.S. ships, the reports shall be
directed to either the nearest Coast Guard
Captain of the Port (COTP) or to the National
Response Center (NRC), toll free telephone
number 800-424-8802, telex number 892427.
(e) The report shall be made whenever an
incident involves --
(1) A discharge other than as permitted
under this part; or
(2) A discharge permitted under this part by
virtue of the fact that --
(i) It is for the purpose of securing the
safety of a ship or saving life at sea; or
(ii) It results from damage to the ship or
its equipment; or
(3) The probability of a discharge referred
to in paragraphs (e)(1) or (e)(2) of this
section.
(f) Each report shall contain --
(1) The identity of the ship;
(2) The time and date of the occurrence of
the incident;
(3) The geographic position of the ship when
the incident occurred;
(4) The wind and sea condition prevailing at
the time of the incident;
(5) Relevant details respecting the
condition of the ship; and
(6) A statement or estimate of the quantity
of oil or oily mixtures discharged or likely
to be discharged into the sea.
(g) Each person who is obligated under the
provisions of this section to send a report
shall --
(1) Supplement the initial report, as neces
sary, with information concerning further
developments; and
(2) Comply as fully as possible with
requests from affected countries for
additional information concerning the
incident.
(h) A report made under this section will
satisfy the reporting requirement of
153.203 of this chapter.
7. Furthermore, even if the state were not mistaken in
asserting that the marine casualty regulation and the oil spill
statute embody two mutually exclusive reporting requirements, the
record in the present case would still fail to support
application of the independent source rule. As we have already
indicated, to comply with the requirements of the independent
source rule, the state bore the burden of proving that its
evidence was actually -- not theoretically -- derived from a
source wholly independent of Hazelwood's immunized report that
his vessel was discharging oil. This burden could be satisfied
only by affirmative proof establishing the legitimate source from
which the state actually obtained its evidence. Kastigar v.
United States, 406 U.S. 441, 461-62 (1972). It could not be met
by proof of a hypothetical source from which untainted
information might have been gained. The superior court was not
permitted to infer facts favorable to the prosecution. United
States v. Rinaldi, 808 F.2d 1579, 1583-84 (D.C. Cir. 1987).
Here, the only evidence in the record tending to
establish Hazelwood's purpose in contacting the Coast Guard is
his own, uncontroverted affidavit. In the affidavit, Hazelwood
swore that he reported that the Exxon Valdez was aground and
leaking oil in order to comply with the requirements of 33 U.S.C.
1321 (b)(5); he indicated that he believed this report would
entitle him to immunity. There is simply no evidence in the
record to support a factual finding that Hazelwood actually
reported the grounding to comply with the marine casualty regula
tion; consequently, there is no evidentiary basis for finding the
actual existence of an independent source for the state's
evidence.
8. In this regard, it is worth mentioning that the
superior court appears to have been under the impression that
section 311(b) of the Federal Water Pollution Control Act of
1972, 33 U.S.C. 1321(b), was meant to apply primarily to spills
involving small quantities of oil and hazardous substances. The
legislative history of the provision belies this interpretation.
Although the provision was unquestionably meant to apply to small
spills of hazardous substances that might otherwise go
undetected, it was also unquestionably meant to apply to large
spills, the immediate notice of which was deemed necessary to
assure that abatement efforts could begin promptly. See Federal
Water Pollution Control Act Amendments of 1972, P.L. 92-500,
Senate Report 92-414, 1972 U.S.C.C.A.N. 3668, 3731-33.
9. A conclusion that the inevitable discovery doctrine
would be constitutionally permissible in the immunity context
would not be determinative of whether the doctrine should in fact
be applied to statutory grants of immunity, since Congress may
elect to confer immunity in exchange for information even when
that immunity is not strictly necessary. Because 33 U.S.C.
1321(b)(5) is congressionally enacted, its grant of immunity is
not necessarily limited in scope to cases in which the constitu
tional privilege against self-incrimination would attach.
Federal cases have held that, given the statute's underlying
purpose of fostering compliance with the requirement of immediate
notice, its provision for immunity extends even when a corporate
entity, to which the fifth amendment privi-lege does not extend,
complies. See United States v. Republic Steel Corp., 491 F.2d
315 (6th Cir. 1974); United States v. Mobil Oil Corp., 464 F.2d
1124 (5th Cir. 1972). These cases make it clear that the issue
of whether the inevitable discovery doctrine should be applied in
the case of a statutory grant of immunity is distinct from the
issue of whether the doctrine is constitutionally permissible in
such a case.
