Witness Immunity: You Can't Always Get What You Want

Moreover, by selectively granting immunity only to prosecution witnesses and withholding it from witnesses who might otherwise testify favorably for the defendant, the government simultaneously helps its own case and undermines the defense. A reluctant witness has the right to assert his Fifth Amendment privilege against self-incrimination, effectively making himself unavailable to testify. A prosecutor can encourage this result by letting the witness know ' subtly or not so subtly ' that he is on the government's radar, and the defendant has no right to insist that the witness be granted immunity.

While ultimately vacating the convictions in the recent case of United States v. Ferguson, No. 08-6211-cr(L), 2011 U.S. App. LEXIS 15811 (2d Cir. Aug. 1, 2011), the Second Circuit nonetheless held that the district court did not err when it denied a defendant's request to compel the government to immunize his supervisor. According to the defendant, there were strong indications that the government had acted tactically in refusing to confer immunity. The defendant contended that the government had evinced its belief that the supervisor had exculpatory testimony to offer, since it disclosed portions of the supervisor's government witness interviews to the defendant pursuant to its Brady obligations, but had discouraged him from testifying by naming him as an unindicted co-conspirator. When the supervisor asserted that he would invoke his privilege against self-incrimination if called to testify at trial, the defendant sought to compel the government to grant the witness immunity. However, the Second Circuit noted that the circumstances under which the government is required to grant immunity to a defense witness are “'few and exceptional'” and 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.” Ferguson, 2011 U.S. App. LEXIS 15811, at *68. That long-standing test requires three findings: “(1) The 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) The witness' testimony will be material, exculpatory and not cumulative; and (3) The testimony is not obtainable from any other source.” Id. (internal citations and quotation marks omitted). The court held that the prosecutor did not “overreach,” and that, in any event, the witness' testimony was not material because it was “non-contemporaneous and self-serving.” Id. at *69. As such, the district court did not abuse its discretion in refusing to compel the government to immunize the supervisor.

Ironically, it was the Second Circuit that highlighted the potential misuse of this statutory tool several years ago during the appeal by ex-WorldCom chief Bernard Ebbers. He sought to have his conviction overturned on the ground that the government had deliberately classified certain witnesses as “subjects” under investigation, in an effort to keep them from testifying favorably for the defense. During oral argument, the Second Circuit pressed the government regarding the status of its investigation, and the government was forced to concede that it was not actively investigating any of the witnesses, prompting one judge on the panel to remark that the investigation had fallen into a “black hole” that could “eviscerate the case law on unavailability [of witnesses], and the [government's] ability to manipulate could become problematic.” Brooke A. Masters, Ebbers's Prosecutors Questioned on Tactics, Washingtonpost.com (Jan. 31, 2006). Notwithstanding that concern, however, the court ultimately held that Ebbers failed to establish the “extreme case” in which the trial court committed error in failing to immunize a defense witness.

Some Hope for Defendants

Despite the inherent difficulty of obtaining a defense-requested grant of immunity, two district court decisions have done just that and offer some insight into the factors that may prove persuasive to a court. In an unpublished decision issued by the District Court for the Middle District of Pennsylvania in United States v. Nagle, No. 1:09-CR-384-01 (M.D. Pa. Oct. 4, 2010), the defendant's uncle was himself an indicted co-defendant who entered into a plea agreement with the government. While the uncle, Ernest J. Fink Jr., was awaiting sentencing, the defendant subpoenaed him to testify at the defendant's trial, and moved for an order compelling him to testify under a grant of judicial immunity. Notably, although the defendant made an extensive proffer to the court regarding what he believed the uncle's testimony would be, the source of the defendant's information was unclear because the uncle had not communicated with the defendant or his attorneys about the events.

The court wrestled with the issue of whether the uncle's testimony would be “clearly exculpatory,” given that no one knew what he would say. However, reasoning that “clearly exculpatory” did not mean to a scientific certainty but only that “but for the inclusion of the evidence there is a reasonable probability that the result of the proceedings would be different,” the court held that the uncle's testimony “may dispositively affect the outcome of the proceedings.” Id. at 11. The court rejected the government's claimed concerns about a so-called “immunity bath” where Fink could testify without fear of prosecution and without any indication of what he would say. “[T]he Government cannot hide behind its decision to allow Fink 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. If the court succumbs to this reasoning, it would appear to be a rigged game that would allow the Government to selectively decide which witnesses to allow to enter plea agreements without proffers, and then shield those witnesses from any testimony by asserting that they have a strong interest in preventing them from being immunized without knowing what they will say.” Id. at 12-13. The court concluded as follows:

At issue in this case is a clash between Nagle's due process rights in effectively presenting his defense and Fink's Fifth Amendment right in not incriminating himself. The court can protect both by granting Fink judicial immunity. Given that the Government's only articulated interest is not particularly strong under the circumstances of this case ' namely that they have already prosecuted Fink and agreed to a compromise plea agreement ' the court concludes that granting Fink judicial immunity from further prosecution for any truthful testimony given at trial is the only way to balance the competing interests at stake and ensure a fair trial for Nagle.

Id. at 13.

On the government's interlocutory appeal from that order, the Third Circuit held that it had no jurisdiction to consider the appeal. United States v. Nagle (In re United States), Nos. 10-3974 & 11-1006, 2011 U.S. App. LEXIS 17278 (3d Cir. Aug. 17, 2011) (nonprecedential). The case having been stayed pending the Third Circuit's decision on appeal, it remains an active litigation as of this writing.

Another rare example of a district court upending the government's normal monopoly on these determinations is United States v. Ruehle, No. SACR 08-00139-CJC (C.D. Cal. June 4, 2008), involving allegations against William Ruehle, the former chief financial officer of Broadcom Corporation who was indicted in an alleged stock options backdating scheme. In Ruehle, the government entered into a plea agreement with Nancy Tullos, which provided that she would cooperate and testify against Ruehle. In seeking immunity for David Dull, a potential defense witness, the defense cited Dull's testimony before the SEC and in government witness interviews and argued that Dull could contradict the one-sided version presented by the government through Tullos. The defense contended that it met both prongs of the Ninth Circuit's standard. See United States v. Young, 86 F.3d 944, 947 (9th Cir. 1996) (requiring a defendant to show that “(1) the testimony [is] relevant; and (2) the government distorted the judicial fact-finding process by denying immunity.”). As to the first prong, the defendant argued that it was satisfied where the government uses testimony from a witness with whom the government has entered into a favorable plea arrangement, but denies immunity to a defense witness who would directly contradict the government witness. As to the second, the defense contended that it did not have to prove that the government's intent was to distort the fact-finding process, so long as it proved that the effect of the government's actions was to do so. Rejecting the government's argument that the Ninth Circuit established a threshold requirement that a witness testify under a grant of immunity rather than pursuant to a plea agreement, the court granted Dull immunity pursuant to 18 U.S.C. ' 6002 (providing that where a witness refuses to testify on the basis of his privilege against self-incrimination, the court may direct the witness to testify.)

As a noteworthy aside, the Ruehl court's decision did not rest upon any contention by the defense that the government engaged in misconduct. However, subsequent to the grant of immunity, the defense raised grave concerns concerning the government's misconduct with respect to various witnesses, including Dull and Tullos. In a stunning decision, two weeks after granting Dull immunity, the court dismissed the indictment against Ruehle with prejudice and entered a judgment of acquittal. See Rep.'s Tr. of Proceedings, United States v. Ruehle, No. SACR 08-00139-CJC (C.D. Cal. Dec. 15, 2009).

Applying These Lessons

Thus, while the government wields a powerful weapon in this area, its use is not unlimited. A defendant concerned about a favorable witness asserting his privilege against self-incrimination should try to obtain a ruling from the court that the witness does not have a legitimate basis upon which to assert that privilege. Failing that, a defendant seeking immunity for a defense witness may request a court order compelling the government to obtain a grant of immunity under 18 U.S.C. ' 6003, or a court order granting the witness immunity under 18 U.S.C. ' 6002. Should these requests be denied, and the defense thereby handicapped by the unavailability of a witness who asserts his privilege against self-incrimination, a defendant might consider asking for a missing witness charge to explain his failure to call the witness.

As always, this is a fact-specific effort and, in seeking immunity for a defense witness, it is vital to identify specific instances where the witness' potential testimony will contradict the prosecution case in material respects. However, as Nagle suggests, in certain cases it is sufficient to show that the government simply has no good reason to resist the request. Because the abuse of discretion standard is difficult to overcome on appeal, it is critical to win this fight at the district court level. As these sporadic but heartening decisions show, if a defendant tries, sometimes he will get what he needs.

Stanley A. Twardy Jr., a member of this newsletter's Board of Editors, is a partner at Day Pitney LLP and Doreen Klein is Senior Counsel with the firm. Both practice in the firm's Stamford, CT, office.

In the arsenal of weapons available to federal prosecutors, a singularly effective one is immunity for witnesses the government deems important to its case. But perhaps equally as effective is the reverse ' the government can decline to request immunity for witnesses who may be critical to the defendant's case. A defendant generally has no standing to contest the grant of immunity to a prosecution witness and has no right to insist that the prosecutor seek immunity for a witness that benefits the defense. However, even though the statutory deck is stacked in the government's favor, sometimes a defendant is able to obtain court-ordered immunity for a defense witness over the government's objection. To borrow from the Rolling Stones, while decisions in the Second Circuit signal that a defendant will find it difficult to get what he wants, others cases arising in the Third and Ninth Circuits suggest that if a defendant tries, sometimes he may be able to get what he needs.

An Often One-Sided Contest

Under 18 U.S.C. ' 6003, a federal prosecutor may request that the court immunize a trial or grand jury witness where, in the government's judgment, the testimony “may be necessary to the public interest” and the individual “has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.” The statute presents the unusual circumstance where a court has little leeway, for it provides that the court “shall” issue an order requiring an individual to give testimony upon the request of the prosecutor. Similarly, the federal government can offer “letter immunity.” Needless to say, the opportunity for use, and abuse, abounds. The ability to procure immunity for a witness enables the government to marshal potentially vital testimony against a defendant by preventing a witness from invoking his Fifth Amendment privilege against self-incrimination. Nowhere is the value of this tool more evident than in the case of a co-conspirator who, upon a grant of immunity, is freed from the specter of prosecution and is judicially directed to testify against the defendant.

Moreover, by selectively granting immunity only to prosecution witnesses and withholding it from witnesses who might otherwise testify favorably for the defendant, the government simultaneously helps its own case and undermines the defense. A reluctant witness has the right to assert his Fifth Amendment privilege against self-incrimination, effectively making himself unavailable to testify. A prosecutor can encourage this result by letting the witness know ' subtly or not so subtly ' that he is on the government's radar, and the defendant has no right to insist that the witness be granted immunity.

While ultimately vacating the convictions in the recent case of United States v. Ferguson, No. 08-6211-cr(L), 2011 U.S. App. LEXIS 15811 (2d Cir. Aug. 1, 2011), the Second Circuit nonetheless held that the district court did not err when it denied a defendant's request to compel the government to immunize his supervisor. According to the defendant, there were strong indications that the government had acted tactically in refusing to confer immunity. The defendant contended that the government had evinced its belief that the supervisor had exculpatory testimony to offer, since it disclosed portions of the supervisor's government witness interviews to the defendant pursuant to its Brady obligations, but had discouraged him from testifying by naming him as an unindicted co-conspirator. When the supervisor asserted that he would invoke his privilege against self-incrimination if called to testify at trial, the defendant sought to compel the government to grant the witness immunity. However, the Second Circuit noted that the circumstances under which the government is required to grant immunity to a defense witness are “'few and exceptional'” and 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.” Ferguson, 2011 U.S. App. LEXIS 15811, at *68. That long-standing test requires three findings: “(1) The 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) The witness' testimony will be material, exculpatory and not cumulative; and (3) The testimony is not obtainable from any other source.” Id. (internal citations and quotation marks omitted). The court held that the prosecutor did not “overreach,” and that, in any event, the witness' testimony was not material because it was “non-contemporaneous and self-serving.” Id. at *69. As such, the district court did not abuse its discretion in refusing to compel the government to immunize the supervisor.

Ironically, it was the Second Circuit that highlighted the potential misuse of this statutory tool several years ago during the appeal by ex-WorldCom chief Bernard Ebbers. He sought to have his conviction overturned on the ground that the government had deliberately classified certain witnesses as “subjects” under investigation, in an effort to keep them from testifying favorably for the defense. During oral argument, the Second Circuit pressed the government regarding the status of its investigation, and the government was forced to concede that it was not actively investigating any of the witnesses, prompting one judge on the panel to remark that the investigation had fallen into a “black hole” that could “eviscerate the case law on unavailability [of witnesses], and the [government's] ability to manipulate could become problematic.” Brooke A. Masters, Ebbers's Prosecutors Questioned on Tactics, Washingtonpost.com (Jan. 31, 2006). Notwithstanding that concern, however, the court ultimately held that Ebbers failed to establish the “extreme case” in which the trial court committed error in failing to immunize a defense witness.

Some Hope for Defendants

Despite the inherent difficulty of obtaining a defense-requested grant of immunity, two district court decisions have done just that and offer some insight into the factors that may prove persuasive to a court. In an unpublished decision issued by the District Court for the Middle District of Pennsylvania in United States v. Nagle, No. 1:09-CR-384-01 (M.D. Pa. Oct. 4, 2010), the defendant's uncle was himself an indicted co-defendant who entered into a plea agreement with the government. While the uncle, Ernest J. Fink Jr., was awaiting sentencing, the defendant subpoenaed him to testify at the defendant's trial, and moved for an order compelling him to testify under a grant of judicial immunity. Notably, although the defendant made an extensive proffer to the court regarding what he believed the uncle's testimony would be, the source of the defendant's information was unclear because the uncle had not communicated with the defendant or his attorneys about the events.

The court wrestled with the issue of whether the uncle's testimony would be “clearly exculpatory,” given that no one knew what he would say. However, reasoning that “clearly exculpatory” did not mean to a scientific certainty but only that “but for the inclusion of the evidence there is a reasonable probability that the result of the proceedings would be different,” the court held that the uncle's testimony “may dispositively affect the outcome of the proceedings.” Id. at 11. The court rejected the government's claimed concerns about a so-called “immunity bath” where Fink could testify without fear of prosecution and without any indication of what he would say. “[T]he Government cannot hide behind its decision to allow Fink 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. If the court succumbs to this reasoning, it would appear to be a rigged game that would allow the Government to selectively decide which witnesses to allow to enter plea agreements without proffers, and then shield those witnesses from any testimony by asserting that they have a strong interest in preventing them from being immunized without knowing what they will say.” Id. at 12-13. The court concluded as follows:

At issue in this case is a clash between Nagle's due process rights in effectively presenting his defense and Fink's Fifth Amendment right in not incriminating himself. The court can protect both by granting Fink judicial immunity. Given that the Government's only articulated interest is not particularly strong under the circumstances of this case ' namely that they have already prosecuted Fink and agreed to a compromise plea agreement ' the court concludes that granting Fink judicial immunity from further prosecution for any truthful testimony given at trial is the only way to balance the competing interests at stake and ensure a fair trial for Nagle.

Id. at 13.

On the government's interlocutory appeal from that order, the Third Circuit held that it had no jurisdiction to consider the appeal. United States v. Nagle (In re United States), Nos. 10-3974 & 11-1006, 2011 U.S. App. LEXIS 17278 (3d Cir. Aug. 17, 2011) (nonprecedential). The case having been stayed pending the Third Circuit's decision on appeal, it remains an active litigation as of this writing.

Another rare example of a district court upending the government's normal monopoly on these determinations is United States v. Ruehle, No. SACR 08-00139-CJC (C.D. Cal. June 4, 2008), involving allegations against William Ruehle, the former chief financial officer of Broadcom Corporation who was indicted in an alleged stock options backdating scheme. In Ruehle, the government entered into a plea agreement with Nancy Tullos, which provided that she would cooperate and testify against Ruehle. In seeking immunity for David Dull, a potential defense witness, the defense cited Dull's testimony before the SEC and in government witness interviews and argued that Dull could contradict the one-sided version presented by the government through Tullos. The defense contended that it met both prongs of the Ninth Circuit's standard. See United States v. Young , 86 F.3d 944, 947 (9th Cir. 1996) (requiring a defendant to show that “(1) the testimony [is] relevant; and (2) the government distorted the judicial fact-finding process by denying immunity.”). As to the first prong, the defendant argued that it was satisfied where the government uses testimony from a witness with whom the government has entered into a favorable plea arrangement, but denies immunity to a defense witness who would directly contradict the government witness. As to the second, the defense contended that it did not have to prove that the government's intent was to distort the fact-finding process, so long as it proved that the effect of the government's actions was to do so. Rejecting the government's argument that the Ninth Circuit established a threshold requirement that a witness testify under a grant of immunity rather than pursuant to a plea agreement, the court granted Dull immunity pursuant to 18 U.S.C. ' 6002 (providing that where a witness refuses to testify on the basis of his privilege against self-incrimination, the court may direct the witness to testify.)

As a noteworthy aside, the Ruehl court's decision did not rest upon any contention by the defense that the government engaged in misconduct. However, subsequent to the grant of immunity, the defense raised grave concerns concerning the government's misconduct with respect to various witnesses, including Dull and Tullos. In a stunning decision, two weeks after granting Dull immunity, the court dismissed the indictment against Ruehle with prejudice and entered a judgment of acquittal. See Rep.'s Tr. of Proceedings, United States v. Ruehle, No. SACR 08-00139-CJC (C.D. Cal. Dec. 15, 2009).

Applying These Lessons

Thus, while the government wields a powerful weapon in this area, its use is not unlimited. A defendant concerned about a favorable witness asserting his privilege against self-incrimination should try to obtain a ruling from the court that the witness does not have a legitimate basis upon which to assert that privilege. Failing that, a defendant seeking immunity for a defense witness may request a court order compelling the government to obtain a grant of immunity under 18 U.S.C. ' 6003, or a court order granting the witness immunity under 18 U.S.C. ' 6002. Should these requests be denied, and the defense thereby handicapped by the unavailability of a witness who asserts his privilege against self-incrimination, a defendant might consider asking for a missing witness charge to explain his failure to call the witness.

As always, this is a fact-specific effort and, in seeking immunity for a defense witness, it is vital to identify specific instances where the witness' potential testimony will contradict the prosecution case in material respects. However, as Nagle suggests, in certain cases it is sufficient to show that the government simply has no good reason to resist the request. Because the abuse of discretion standard is difficult to overcome on appeal, it is critical to win this fight at the district court level. As these sporadic but heartening decisions show, if a defendant tries, sometimes he will get what he needs.

Stanley A. Twardy Jr., a member of this newsletter's Board of Editors, is a partner at Day Pitney LLP and Doreen Klein is Senior Counsel with the firm. Both practice in the firm's Stamford, CT, office.