soHA.cR-15.4230, File in Fist Judea District Cout ‘2272018 721321 AM ‘Dakota County, MIN STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT State of Minnesota, MOTION TO DISMISS AND Plaintiff, SUPPORTING MEMORANDUM ve Gina Schmit Dahlen, Defendant. Court File No. 19HA-CR-15-4230 PLEASE TAKE NOTICE, that the above-named defendant, by and through her attorney, Kyle White and pursuant to the Minnesota Rules of Criminal Procedure, hereby moves the court to dismiss the amended criminal complaint based on violations of the defendant's right to Due Process and constitutional protections under the Fifth, Sixth, and Fourteenth, Amendments to the United States Constitution. This motion is based on all the files, records and proceedings herein, including the attached memorandum of law. INTRODUCTION ‘The State subpoenaed defendant Gina Dahlen as a State's witness in State of Minnesota v. Deiredre Eloise Evavold (Court File No, 19HA-CR-15-4227). On July 20, 2016, Mrs. Dahlen was compelled to provide testimony in that case pursuant to Minn. Stat. § 609.09. Previously, the State had compelled the defendant's testimony in a companion case State of Minnesota v. Sandra Sue Grazzini-Rucki, (Court File 19HA-CR-15-2669). During the State’s direct examination of the defendant in these companion cases, the State developed compelled testimony to support an amended ‘complaint that adds four counts to the original two counts. On November 11, 2016, the State field ansoHALCR15.4290 Fie in First Judicial Distiet Cout 272772016 7:15:21 AM DDekota County, MN amended complaint, bringing two additional “concealment” counts and two additional “takes, obtains, retains” counts against the defendant, Gina Dahlen now requests the case be dismissed in light of the State's vi of her Fifth Amendment Rights through the use immunity statute ARGUMENT ‘The Court should dismiss the State's case because: 1) the State violated the defendant's Fifth ‘Amendment right against self-inerimination through the non-evidentiary use of her compelled testimony: ) such use violates her due process rights and her sixth amendment right to a fair trial; and 3) dismissal is appropriate in the interests of justice. I. USING THE DEFENDANT'S COMPELLED TESTIMONY TO BRING ADDITIONAL CHARGES AGAINST THE DEFENDANT IS A VIOLATION OF HER FIFTH AMENDMENT RIGHTS. ‘The Fifth Amendment provides that no person “shall be compelled in any criminal case to be witness against himself.” U.S, Const. amends. V, XIV; see Minn. Const. art. I, § 7. The Fifth ‘Amendment applies to the states because itis incorporated into the Fourteenth Amendment. State y. Clark, 738 N.W.2d 316, 331 (Minn. 2007). The privilege against self-incrimination allows a person to refuse to answer questions put to him in any other proceeding if his answers might expose him to a criminal charge or penalty. Johnson v, Fabian, 735 N.W.2d 295, 299 (Minn, 2007). If a person invokes the Fifth Amendment privilege against self-incrimination, the state may seek to compel his testimony by asking a district court to grant “use immunity” for his testimony. Minn. Stat. § 609.09. A grant of immunity must be coextensive with the scope of the Fifth Amendment privilege to supplant privilege against compulsory self-incrimination. Kastigar v, U.S., 406 U.S. 441, 449 (1972). To remain coextensive with the Fifth Amendment privilege, @ use immunity statute must leave the witness and the prosecutorial authorities “in substantially the same position as if the witness had claimed the Fifth Amendment privilege.” Kastigar, 406 U.S. at 462.t9Ha-cR-15.4220 ied in First Jusicial Distt Court 272016 7:18.21 AML ‘Dakota County, MN Compelled testimony and its fruits “cannot be used in any manner.” See Murphy v. Waterfront Com’n of New York Harbor, 378 U.S. 52, 79 (1964) (abrogated on other grounds), |A prosecutor's use of a defendant's compelled statement in “formulating a criminal complaint against the defendant” violates defendant's privilege against self-incrimination, notwithstanding characterization of such use as non-evidentiary use. State v. Gault, 551 N.W.2d 719, 724-25 (Minn, App. 1996) (emphasis added) (adopting holding in United States v. McDaniel, 482 F.2d 305 (8th Cir, 1973), The State bears the burden of proving that its prosecution is not tainted by the use of compelled testimony. Gault, 551 N.W.2d at 723. Even the “non-evidentiary use” of a defendant's compelled testimony violates their Fifth Amendment right against ‘compulsory self-incrimination. McDaniel, 482 F.2d at 311. “Such use could conceivably include assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea- bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.” MeDaniel, 482 F.2d at 311 (emphasis added), Here, the defendant's testimony was used by the State, through exploitation of flaws inherent in the non-evidentiary use of compelled testimony, to further develop the State's case and amend the complaint with four additional charges. Because the State has amended the complaint, the defendant has not been left “in substantially the same position as if the witness had claimed the Fifth Amendment lege.” Far from it actually, because the practicalities of “use immunity” did not adequately protect the defendant, her Fifth Amendment right has been violated. This is exactly what Kastigar warns against. By filing an amended complaint, the State has circumvented the use immunity protections, which are meant to supplant the Fifth Amendment protections. This non-evidentiary use of the defendant's compelled testimony violates her Fifth Amendment right against compulsory self-inerimination.al Filed in Fst Joill Distict Cour ‘asmrr2016 71321 AM ‘Dakota County, MN ‘THE STATE'S USE OF THE DEFENDANT’S COMPELLED TESTIMONY IN THIS. CRIMINAL CASE VIOLATES HER DUE PROCESS RIGHTS AND HER SIXTH AMENDMENT RIGHT TO A FAIR TRIAL. ‘To determine whether an individual's right to procedural due process has been violated, a reviewing court would first determine whether a protected liberty or property interest is implicated and then determine what process is due by applying a balancing test. Stare v. Ness, 819 N.W.2d 219, 225 (2012) (citing Obara v. Minn. Dep't of Health, 758 N.W.2d 873, 877-78 (Minn. App. 2008); Mathews v, Eldridge, 424 US. 319, 332, 335 (1976)). The Mathews balancing test requires this court to consider: (1) the private interest that will be affected by the governmental action; (2) the risk of erroneous deprivation of this interest through the procedures used and the probable value of additional or substitute procedural safeguards; and (3) the government's interest, ‘including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirements would ental.” [As the court in MeDaniel states “we cannot escape the conclusion that the [compelled] testimony could not be wholly obliterated from the prosecutor's mind in his preparation and trial of the case.” 482 F.2d at 312. “It is unrealistic to give a dog a bone and to expect him not to chew ‘on it” Oregon v. Soriano, 684 P.2d 1220, 1232 (Or. Ct. App. 1984). The Court, by compelling the defendant’s testimony through the “use immunity” statute, has given the “bone” to the State. Predictably, the State has now used the defendant’s compelled testimony to initiate additional prosecution against the defendant. In doing so, the State has denied the defendants’ rights to due process and a fair trial. Under the Sixth Amendment to the U.S. Constitution, as applied to the states through the Fourteenth Amendment, criminal defendants have a right to a fair trial, The due process clauses of the United States and Minnesota constitutions require that a criminal defendant be treated withApes: ied in First Jucicial District Court sarzr72016 71821 AM, Dakota County, MN fundamental fairness. State v. Richards, 495 N.W.2d 187, 191 (I - 1992); U.S. Const. Amend XIV; Minn, Const, Art I. Sec. 7. Here, any safeguards intended to protect the defendant's due process rights have been obliterated by the State’s use of the compelled testimony. The State has circumvented the defendant's constitutional rights through the use immunity statute. The prosecution in this ease has hnad second and third bites at the defendant's testimony before she even has her own day to defend herself in court. To surmise the prosecution’s specific knowledge of Mrs. Dablen's testimony is not affecting the defendant's trial is inconsistent with the realities of evidentiary and non- evidentiary flaws of “use immunity. ‘The non-evidentiary uses of the defendant's testimony are those the Court in McDaniel warned of: “refusing to plea-bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.” 482 F.2d at 311. Itis simply unrealistic to believe the State has not used the defendant's compelled testimony to plan their case and trump up the charges with the amended complaint. The State’s plea offer now is asking the defendant to admit to two counts. That is essentially pleading to the complaint as it stood prior to amendment, which is realistically not a plea negotiation at all. ‘Where testimony is compelled, the accused can only speculate the degree to which the compelled statement has been dispersed. In theory, “use immunity” prevents the use of any compelled testimony whether itis using the testimony against the accused at their trial or using the testimony to use anything derived from their testimony against them. Realistically, in this case there are no safeguards in place to prevent the derivative use of compelled testimony that would satisfy U.S. Const. Amend, V and in. Const. Art, §7. The Supreme Court in Murphy mandated that the witness should be left in “substantially the same position as if the witness had claimed hisseHAccetsia2s0: Fle in First Judicial Distct Court $272772016 7-13:21 AM, Dakota County, MN privilege.” Murphy, 378 U.S. at 79. This would be impossible in the present case. Even if the compelled testimony was sealed, it may not be enough because of high-profile media attention, ‘comments on social media, and other related publications from this case. Certainly, sealing the testimony does not prevent the prosecution from using it in other ways proscribed by McDaniel. Il. DISMISSAL IS APPROPRIATE IN THE INTERSTS OF JUSTICE. ‘The Court may hold a Kastigar hearing into whether the State's decision to amend the complaint was derived from the compelled testimony. See Gault, 531 N.W.2d at 724. Alternatively, the court may order dismissal of an action on its own motion in furtherance of justice. Minn, Stat. § 631.21. “The court may order a criminal action, whether prosecuted upon indictment or complaint, to be dismissed.” fd. “Essential to the guarantee of due process is fundamental fairness.” State v. Melde, 725 N.W.24 99, 102 (2006) (citing Doyle v. Ohio, 426 U.S. 610, 618 (1976)). “Under the federal constitution, due process does not permit the government to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.” Melde, 725 N.W.2d at 103. Considering the violations of Due Process and the fundamental unfaimess of the manner in which the State has circumvented the defendant's Fifth Amendment right against self- incrimination, this case is ripe for dismissal. The State has mislead the defendant about how her compelled testimony would be used, Law enforcement actively avoided investigating issues which might have helped the defendant in asserting the statutory affirmative defense. The State has failed to investigate credible allegations of witness tampering because it would negatively affect its case. ‘And now this, amending the complaint based on compelled testimony. The State should not be allowed to proceed with this shameful prosecution of a defendant who was simply trying to help ‘two young girls who were abused and afraid.AACR A2R0, Filed in Fist Judea District Court ‘aszTa016 7:18:21 AML ‘Dakota County, MN CONCLUSIO! This case should be dismissed. This is a blatant violation of the Fifth Amendment and allowing the State to use compelled testimony in any manner violates the defendant's due process rights. The State has “used” the defendant’s compelled testimony in amending the complaint against her. Ms. Dabilen is no longer in the same position as she was prior to the court’s grant of use immunity and her testimony at the two previous trials. The defendant's testimony was compelled without any safeguards for her constitutional rights. Thus, the defendant respectfully requests that the court dismiss the State’s complaint Respeetflly submitted, Dated: December 27, 2016 ds! Kyle White. Kyle White Attomey for Gina Dahlen 332 Minnesota Street, Suite W1610 St. Paul, MN 55101 (651) 227-8751