At least in the example of unindicted co-conspirators, the prosecutors may be able to use and abuse hearsay statements under FRE 801(d)(2)(E). But, prosecutors may want actually live testimony of the unindicted co-conspirator(s). The prosecutors have a powerful tool to force such testimony by conferring statutory immunity. 18 USC Section 6003 (court "shall" issue the order of statutory immunity upon request of prosecutors). If the witness is important to the prosecutors' case against the named defendants, the prosecution will have the incentive to force the witness to testify upon penalty of contempt and incarceration if he or she does not testify. The prosecutors will often not want to confer immunity if the testimony is less important to the prosecution and the prosecutors want to hold open the possibility of prosecuting the witness in the future. (Technically, the grant of statutory immunity grants only derivative use immunity, but the difficulties of the Kastigar hearing may make prosecution unlikely after the witness testifies under compulsion of statutory immunity (use and derivative use immunity). )
It is at least conceivable that the Government can have more sinister motives in declining to confer statutory immunity. What if the witness could or just might testify favorably to the defense, thus undermining the prosecutors' case? The prosecutors' refusal to grant statutory immunity could tilt what should be a relatively level playing field in favor of the prosecutors. See generally Reid H. Weingarten and Brian M. Heberlig, The Defense Witness Immunity Doctrine: The Time has Come to Give it Strength to Address Prosecutorial Overreaching, 43 Am. Crim. L. Rev. 1189 (2006) (noting "A disturbing trend in federal white collar crime prosecutions is the government's manipulation of immunity grants and charging decisions to make exculpatory witnesses unavailable to the defendant at trial."). The conventional wisdom, discussed below, is that the prosecutors cannot be compelled to confer statutory immunity.
There is a potential attack on prosecutors' intransigence. The defense could move the court to order the Government to confer statutory immunity under 18 USC Section 6003, on the ground that its refusal to do so is, under the circumstances, improper, rising to the level of a due process violation. This theory was first recognized in Government of Virgin Islands v. Smith, 615 F. 2d 964, 971-2 (3d Cir. 1980) (noting that the constitutional violation "the same as the violation found in the Chambers and Brady genre of cases i. e., depriving a defendant of clearly exculpatory evidence necessary to present an effective defense."); see also United States v. Lord, 711 F.2d 887 (9th Cir. 1983). The Third Circuit in Smith (pp. 973-974, footnotes omitted ) reasoned:
Grant of judicial immunity impact most directly on the government's decision to prosecute and on the manner of its prosecution. Frequently, the government will have a legitimate interest in prosecuting the very witness whom the defendant seeks to immunize. But this does not mean that no accommodation can be reached between the government's interest as prosecutor and the defendant's constitutional right to present an effective and entire case. In many instances, use immunity, which was all that was sought here and is all that is constitutionally required, Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), is virtually costless to the government. For example, the government may have already assembled all the evidence necessary to prosecute the witness independent of the witness' testimony. Or the government may be able to "sterilize" the testimony of the immunized witness and so isolate it from any future testimony of the witness that it would not trench upon any of the witness' constitutional rights if he were subsequently to be prosecuted. See Kastigar v. United States, supra. Finally, the government may seek a postponement of the defendant's trial so that it may complete its investigation of the defense witness who is the subject of an immunity application. While these options are not intended to be all inclusive, if any of these options are available to the government, then it would appear to us that the government would have no significant interests which countervail the defendant's due process rights. Any interest the government may have in withholding immunity in such a situation would be purely formal, possibly suspect and should not, without close scrutiny, impede a judicial grant of immunity.In United States v. Ferguson, 653 F.3d 61 (2d Cir. 2011), here, the Court rejected a defense appeal on the basis of the prosecutors' refusal to immunize a witness it claimed was important to the defense. The Court said:
On the other hand, where the government either rebuts the defendant's showing or establishes that the public interest would be disserved by a grant of immunity to a defense witness or that such a grant would entail significant costs to it, it would be appropriate for the immunity application to be denied. In either event, whether it grants or denies the application, the district court should be careful to explain the basis of its ruling. We hold that, in cases where the government can present no strong countervailing interest, a court has inherent authority to immunize a witness capable of providing clearly exculpatory evidence on behalf of a defendant who has met our stated conditions.
"The situations in which the United States is required to grant statutory immunity to a defense witness are few and exceptional." United States v. Praetorius, 622 F.2d 1054, 1064 (2d Cir. 1979). So few and exceptional are they that, in the nearly thirty years since establishing a test for when immunity must be granted, we have yet to reverse a failure to immunize. The test requires three findings:In Ferguson, the Second Circuit continued its record, finding in the fact circumstances that the district court had not abused its discretion.
(1) "[T]he government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment";
(2) "[T]he witness' testimony will be material, exculpatory and not cumulative"; and
(3) The testimony "is not obtainable from any other source."
United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982). We review the court's factual findings about government actions and motive for clear error, but its ultimate balancing for abuse of discretion. United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006).
In United States v. Nagle, 2011 U.S. App. LEXIS 17278 (3d Cir. 2011) (nonprecedential), here, by contrast, the district court had exercised its discretion to order immunity. The prosecutors took an interlocutory appeal and sought writ of mandamus to overrule that district court decision. The Nagle opinion does not offer any particular insight as to when a trial court's grant of immunity is appropriate. Instead it was based on the impropriety of appealing such an order mid-stream in the trial level process. And, of course, it is nonprecedential. But, it did spawn a helpful blog on the White Collar Crime Prof Blog, Third Circuit Allows Judicial Immunity Grant for Defense Witness (9/5/11), here:
The underlying indictment charged Nagle and his uncle and business co-owner Fink with defrauding the United States by setting up a phony Disadvantaged Business Enterprise (DBE) to act as a subcontractor so that the business was eligible to, and did, receive government projects. Nagle claimed Fink had excluded him from the day-to-day operations of the business and that he was unaware of any fraud. After Fink pleaded guilty to conspiracy, Nagle subpoenaed him and Fink replied that he would invoke his fifth amendment right and decline to testify.
The defendant requested that the government grant the witness immunity. Not surprisingly, the government refused, contending it did not know what the witness would say and that it feared giving him an "immunity bath." Then, the district court, upon application of the defendant, itself granted Fink immunity.
The case reached the Third Circuit on the government’s interlocutory appeal and writs of mandamus and prohibition challenging the district court’s immunity grant to Fink. The Court of Appeals denied both the appeal and the writs on procedural grounds. While the court did not rule on the merits of the district court’s decision by holding it was not challengeable by either appeal or writ, it did say that the district court "neither committed clear legal error nor clearly abused its discretion," thereby putting its finger, but not its thumb, on the scale favoring the grant of immunity here.
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To be sure, the court’s non-precedential decision is not a strong or unqualified approval of judicial grants of defense witness immunity. The court said only that the grant here was neither a clear error of law nor a clear abuse of discretion. Additionally, the district court’s order was made after the witness Fink had pleaded guilty (but apparently before he was sentenced) and thus the immunity grant did not absolve him of criminal liability, at least for the conduct to which he admitted guilt. Most requests for grants of defense witness immunity are for testimony of persons who have not been charged, let alone convicted. In those instances, the prosecutorial objection that immunity might let a criminal go free has more substance.
Defense lawyers should nonetheless celebrate -- albeit with beer, not champagne. The decision should give some support to district judges (at least in the Third Circuit) who are hesitant to grant defense immunity because of questions of judicial power or fear of reversal. And, it should suggest to prosecutors that they may no longer be able to continue to deprive defendants of essential testimony solely based on the boilerplate, unspecific argument that it might give the witness an "immunity bath" for unknown crimes.