Judicial Immunity Resurfaces in the Third Circuit

Informal or Letter Use Immunity

Informal immunity, otherwise known as “pocket” or “letter” immunity, is reached via a written letter agreement in which the U.S. Attorney's Office that is prosecuting the case promises not to bring charges against the witness in exchange for the witness's truthful testimony. Many federal prosecutors favor giving letter immunity because it can be accomplished quickly via the unilateral execution of a form letter, as opposed to the relatively more arduous process of obtaining court-ordered immunity.

However, because the Department of Justice (DOJ) takes the position that testimony given under informal immunity is not compelled, but rather is pursuant to agreement and voluntary (DOJ Criminal Resource Manual at 719), the protections of informal letter immunity are only as good as the actual language of the letter. For example, a witness cannot expect protection from derivative use of his testimony unless the non-prosecution letter expressly provides for it. Similarly, a letter agreement only protects the witness from being prosecuted by the specific government entity that signs it. DOJ Criminal Resource Manual at 719. Finally, an informal immunity letter may contain all kinds of additional cooperation-related conditions and government escape clauses. Depending on how the letter is drafted, violation of those conditions may void the immunity protection altogether.

Formal or Court-Ordered Use Immunity

Formal or “statutory” immunity offers protections that are both broader and more predictable than letter immunity. Formal immunity includes a prohibition on derivative use of the witness' testimony. 18 U.S.C. ' 6002. If the witness were ever prosecuted, the government would have the extremely difficult burden of proving in a Kastigar hearing that the evidence it attempts to admit is derived from a legitimate source wholly independent of the immunized testimony. Kastigar v. U.S., 406 U.S. 441 (1972); see e.g., U.S. v. Hubbell, 530 U.S. 27 (2000); U.S. v. North, 910 F.2d 843 (D.C. Cir. 1990). Moreover, a grant of statutory use immunity is binding on the states as well as the federal government. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964).

Obtaining statutory use immunity takes several steps. The prosecuting AUSA must obtain internal approval from the U.S. Attorney's Office and the DOJ Office of Enforcement Operations (OEO). The AUSA must then get an order from the assigned grand jury or trial judge via a motion to compel testimony. The asserted basis of that motion will be that the witness' testimony is necessary to the public interest and that the witness would otherwise refuse to testify based on his or her privilege against self-incrimination. 18 U.S.C. ' 6003. If the judge grants the motion, the judge will issue an order compelling the witness's testimony under the protection of statutory use immunity that is limited only by the witness' failure to tell the truth or comply with the order. 18 U.S.C. ' 6002.

Judicial Immunity

Defense attorneys, unlike federal prosecutors, lack the statutory authority to seek immunity for witnesses who would otherwise refuse to testify based on their privilege against self-incrimination. Several Circuits have recognized that when a federal prosecutor's refusal to seek immunity for a defense witness is determined to be a deliberate attempt to distort the judicial fact finding process, courts may invoke due process and seek to force the prosecutor to request immunity under Sections 6002-6003 for the defense witness under threat of acquittal or prohibiting the testimony of the government's immunized witnesses. See e.g., U.S. v. Castro, 129 F.3d 226, 232 (1st Cir. 1997), cert. denied, 523 U.S. 1100 (1998); U.S. v. Ebbers, 458 F.3d 110 (2d Cir. 2006), cert. denied, 549 U.S. 1274 (2007). These courts have required a defendant to show that the government has implemented its immunity in a discriminatory way, has forced a potential witness to invoke the Fifth Amendment through “overreaching,” or has deliberately denied immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation. See e.g., Castro, 129 F.3d at 232; Ebbers, 458 F.3d at 199.

A few other federal circuits have recognized a judge's independent and inherent authority to immunize the testimony of defense witnesses based on a defendant's constitutional right to present an effective defense. The Third Circuit has held that a judge may only implement this “effective defense” theory of judicial immunity where the withheld testimony is both clearly exculpatory and essential to the defense, and where there is no strong countervailing systematic interest against excluding the evidence. Virgin Islands v. Smith, 615 F.2d 964, 970 (3d Cir. 1980). The Second Circuit, while uniformly rejecting requests for judicial immunity, has nevertheless left open the possibility that the facts of a particular case may warrant immunization of a witness under principles of constitutional fairness. See U.S. v. Turkish, 623 F.2d 769, 774 – 777 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981). It has also limited this power by holding that a prosecution target cannot receive judicial immunity. U.S. v. Todaro, 744 F.2d 5, 9 (2d Cir. 1984), cert. denied, 469 U.S. 1213 (1985). Yet until the Nagle case, a federal court has not exercised “effective defense” judicial immunity in nearly 30 years.

U.S. v. Nagle

Nagle involves the indictment of principals and key employees of a family contracting business on charges of conspiracy to defraud the federal Department of Transportation in the implementation of its disadvantaged business enterprise (DBE) program, DBE-related mail and wire fraud and money laundering. All defendants had pleaded guilty by the time of trial except for Nagle, the CEO, who maintained that he acquired that position only after an internal struggle for power with his co-defendant uncle, who allegedly excluded him from the day-to day operations of the company.

Nagle further maintained that the one person who could exonerate him was the co-defendant uncle, who had pleaded guilty in a non-cooperation deal without a proffer but has yet to be sentenced. In response to a defense trial subpoena, the uncle advised the defense that he intended to assert his Fifth Amendment rights. Nagle asked the government to seek use immunity for the uncle, and the government declined. Nagle then moved the court to compel the uncle's testimony on several grounds, including compelling the government to seek use immunity or via the grant of judicial immunity.

The District Court refused to compel the government to seek use immunity, finding that Nagle had made no showing that the government's refusal to grant immunity was a deliberate attempt to distort the fact-finding process. However, the court granted judicial immunity to the uncle. Relying on the Third Circuit's decision in Virgin Islands v. Smith, the court held that the defendant had met his burden of showing that his co-defendant uncle's testimony was “clearly exculpatory,” essential to the defense and likely to make a dispositive difference in the trial's outcome.

Importantly, the court based its ruling solely on a defense “proffer” of the uncle's expected testimony with references to limited entries in the uncle's handwritten journal, all of which was recited in the defense brief in support of its motion to compel. In other words, there was no direct or sworn evidence of the content of the uncle's expected testimony. The court also concluded that the prosecution had not articulated a strong countervailing interest for not granting immunity to the co-defendant uncle, noting that it was the prosecution's decision to allow the co-defendant to plead guilty without cooperation to only one count of a 32-count indictment (the Klein conspiracy charge) without first obtaining a proffer from him. The court rejected the government's fear of an “immunity bath” as a basis for denying the motion, noting that the government “cannot hide behind its decision to allow [the co-defendant uncle] to plead without a proffer, and yet insist that it has a strong interest in preventing the immunization of a witness for whom it does not have a proffer.” In the “clash” between Nagle's due process rights and the uncle's Fifth Amendment rights, the court found that it could protect both and best balance competing interests by granting judicial immunity. The court's ruling is currently on interlocutory appeal to the Third Circuit.

Conclusion

Because judicial immunity is recognized in only a few jurisdictions and, even then, implemented sparingly, the doctrine is often overlooked or forgotten. If the Third Circuit reaches the merits in Nagle, an opportunity will exist for it to reaffirm this limited but powerful tool for securing exculpatory testimony and breathe new life into the doctrine.

Ronald H. Levine (rlevine@post schell.com), a member of this newsletter's Board of Editors, is a principal in the law firm of Post & Schell, P.C., heading its White Collar Defense, Compliance and Risk Management Group in Philadelphia. Levine was previously Chief of the Criminal Division of the U.S. Attorney's Office for the Eastern District of Pennsylvania. Barbara A. Zemlock ([email protected]) is resident in the firm's Harrisburg, PA, office as a principal practicing in that Group, and Matthew T. Newcomer ([email protected]) is a senior associate in that Group, in the firm's Philadelphia office.

Use immunity is traditionally viewed as a prerogative of the Executive Branch exercised by law enforcement to compel truthful testimony from witnesses who otherwise would refuse to testify based on their Fifth Amendment right against self-incrimination. However, a few federal courts also recognize the court's inherent authority to grant or compel immunity for defense witnesses over the objection of the prosecution. A recent decision out of the Middle District of Pennsylvania may revive the doctrine of “judicial immunity” for defense witnesses. U.S. v. Nagle, Crim. No. 1:09-CR-384-01 (M.D.Pa. filed Oct. 4, 2010) (Rambo, J.). To understand the potential implications of Nagle, some background is helpful.

Government-Initiated Use Immunity

Absent a cooperation guilty plea agreement, a witness with exposure in a federal prosecution usually will only provide trial or grand jury testimony after receiving some measure of assurance that what he or she says will not subject him or her to criminal prosecution. There are two kinds of protection usually available to such a witness, both of which require the prosecutor's acquiescence: 1) “informal” use immunity obtained via a contractual agreement with a U.S. Attorney's Office; and 2) “formal” use immunity obtained via a formal court order. 18 U.S.C. ” 6002-03 (formal immunity); U.S.A.M. ' 9-23.100; DOJ Crim. Resource Manual at 719 (letter immunity). Whether to push an Assistant U.S. Attorney (AUSA) for formal immunity, and how hard, are tactical decisions that witnesses and their attorneys must make based on the facts of each case, including the evidence against the witness, the witness' exposure and the value of her testimony to the government.

Informal or Letter Use Immunity

Informal immunity, otherwise known as “pocket” or “letter” immunity, is reached via a written letter agreement in which the U.S. Attorney's Office that is prosecuting the case promises not to bring charges against the witness in exchange for the witness's truthful testimony. Many federal prosecutors favor giving letter immunity because it can be accomplished quickly via the unilateral execution of a form letter, as opposed to the relatively more arduous process of obtaining court-ordered immunity.

However, because the Department of Justice (DOJ) takes the position that testimony given under informal immunity is not compelled, but rather is pursuant to agreement and voluntary (DOJ Criminal Resource Manual at 719), the protections of informal letter immunity are only as good as the actual language of the letter. For example, a witness cannot expect protection from derivative use of his testimony unless the non-prosecution letter expressly provides for it. Similarly, a letter agreement only protects the witness from being prosecuted by the specific government entity that signs it. DOJ Criminal Resource Manual at 719. Finally, an informal immunity letter may contain all kinds of additional cooperation-related conditions and government escape clauses. Depending on how the letter is drafted, violation of those conditions may void the immunity protection altogether.

Formal or Court-Ordered Use Immunity

Formal or “statutory” immunity offers protections that are both broader and more predictable than letter immunity. Formal immunity includes a prohibition on derivative use of the witness' testimony. 18 U.S.C. ' 6002. If the witness were ever prosecuted, the government would have the extremely difficult burden of proving in a Kastigar hearing that the evidence it attempts to admit is derived from a legitimate source wholly independent of the immunized testimony. Kastigar v. U.S. , 406 U.S. 441 (1972); see e.g., U.S. v. Hubbell , 530 U.S. 27 (2000); U.S. v. North , 910 F.2d 843 (D.C. Cir. 1990). Moreover, a grant of statutory use immunity is binding on the states as well as the federal government. Murphy v. Waterfront Commission of New York Harbor , 378 U.S. 52 (1964).

Obtaining statutory use immunity takes several steps. The prosecuting AUSA must obtain internal approval from the U.S. Attorney's Office and the DOJ Office of Enforcement Operations (OEO). The AUSA must then get an order from the assigned grand jury or trial judge via a motion to compel testimony. The asserted basis of that motion will be that the witness' testimony is necessary to the public interest and that the witness would otherwise refuse to testify based on his or her privilege against self-incrimination. 18 U.S.C. ' 6003. If the judge grants the motion, the judge will issue an order compelling the witness's testimony under the protection of statutory use immunity that is limited only by the witness' failure to tell the truth or comply with the order. 18 U.S.C. ' 6002.

Judicial Immunity

Defense attorneys, unlike federal prosecutors, lack the statutory authority to seek immunity for witnesses who would otherwise refuse to testify based on their privilege against self-incrimination. Several Circuits have recognized that when a federal prosecutor's refusal to seek immunity for a defense witness is determined to be a deliberate attempt to distort the judicial fact finding process, courts may invoke due process and seek to force the prosecutor to request immunity under Sections 6002-6003 for the defense witness under threat of acquittal or prohibiting the testimony of the government's immunized witnesses. See e.g., U.S. v. Castro , 129 F.3d 226, 232 (1st Cir. 1997), cert. denied, 523 U.S. 1100 (1998); U.S. v. Ebbers , 458 F.3d 110 (2d Cir. 2006), cert. denied, 549 U.S. 1274 (2007). These courts have required a defendant to show that the government has implemented its immunity in a discriminatory way, has forced a potential witness to invoke the Fifth Amendment through “overreaching,” or has deliberately denied immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation. See e.g., Castro, 129 F.3d at 232; Ebbers, 458 F.3d at 199.

A few other federal circuits have recognized a judge's independent and inherent authority to immunize the testimony of defense witnesses based on a defendant's constitutional right to present an effective defense. The Third Circuit has held that a judge may only implement this “effective defense” theory of judicial immunity where the withheld testimony is both clearly exculpatory and essential to the defense, and where there is no strong countervailing systematic interest against excluding the evidence. Virgin Islands v. Smith , 615 F.2d 964, 970 (3d Cir. 1980). The Second Circuit, while uniformly rejecting requests for judicial immunity, has nevertheless left open the possibility that the facts of a particular case may warrant immunization of a witness under principles of constitutional fairness. See U.S. v. Turkish , 623 F.2d 769, 774 – 777 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981). It has also limited this power by holding that a prosecution target cannot receive judicial immunity. U.S. v. Todaro , 744 F.2d 5, 9 (2d Cir. 1984), cert. denied, 469 U.S. 1213 (1985). Yet until the Nagle case, a federal court has not exercised “effective defense” judicial immunity in nearly 30 years.

U.S. v. Nagle

Nagle involves the indictment of principals and key employees of a family contracting business on charges of conspiracy to defraud the federal Department of Transportation in the implementation of its disadvantaged business enterprise (DBE) program, DBE-related mail and wire fraud and money laundering. All defendants had pleaded guilty by the time of trial except for Nagle, the CEO, who maintained that he acquired that position only after an internal struggle for power with his co-defendant uncle, who allegedly excluded him from the day-to day operations of the company.

Nagle further maintained that the one person who could exonerate him was the co-defendant uncle, who had pleaded guilty in a non-cooperation deal without a proffer but has yet to be sentenced. In response to a defense trial subpoena, the uncle advised the defense that he intended to assert his Fifth Amendment rights. Nagle asked the government to seek use immunity for the uncle, and the government declined. Nagle then moved the court to compel the uncle's testimony on several grounds, including compelling the government to seek use immunity or via the grant of judicial immunity.

The District Court refused to compel the government to seek use immunity, finding that Nagle had made no showing that the government's refusal to grant immunity was a deliberate attempt to distort the fact-finding process. However, the court granted judicial immunity to the uncle. Relying on the Third Circuit's decision in Virgin Islands v. Smith, the court held that the defendant had met his burden of showing that his co-defendant uncle's testimony was “clearly exculpatory,” essential to the defense and likely to make a dispositive difference in the trial's outcome.

Importantly, the court based its ruling solely on a defense “proffer” of the uncle's expected testimony with references to limited entries in the uncle's handwritten journal, all of which was recited in the defense brief in support of its motion to compel. In other words, there was no direct or sworn evidence of the content of the uncle's expected testimony. The court also concluded that the prosecution had not articulated a strong countervailing interest for not granting immunity to the co-defendant uncle, noting that it was the prosecution's decision to allow the co-defendant to plead guilty without cooperation to only one count of a 32-count indictment (the Klein conspiracy charge) without first obtaining a proffer from him. The court rejected the government's fear of an “immunity bath” as a basis for denying the motion, noting that the government “cannot hide behind its decision to allow [the co-defendant uncle] to plead without a proffer, and yet insist that it has a strong interest in preventing the immunization of a witness for whom it does not have a proffer.” In the “clash” between Nagle's due process rights and the uncle's Fifth Amendment rights, the court found that it could protect both and best balance competing interests by granting judicial immunity. The court's ruling is currently on interlocutory appeal to the Third Circuit.

Conclusion

Because judicial immunity is recognized in only a few jurisdictions and, even then, implemented sparingly, the doctrine is often overlooked or forgotten. If the Third Circuit reaches the merits in Nagle, an opportunity will exist for it to reaffirm this limited but powerful tool for securing exculpatory testimony and breathe new life into the doctrine.

Ronald H. Levine (rlevine@post schell.com), a member of this newsletter's Board of Editors, is a principal in the law firm of Post & Schell, P.C., heading its White Collar Defense, Compliance and Risk Management Group in Philadelphia. Levine was previously Chief of the Criminal Division of the U.S. Attorney's Office for the Eastern District of Pennsylvania. Barbara A. Zemlock ([email protected]) is resident in the firm's Harrisburg, PA, office as a principal practicing in that Group, and Matthew T. Newcomer ([email protected]) is a senior associate in that Group, in the firm's Philadelphia office.