Monday, September 16, 2013

Third Circuit abandons judicial use immunity for defense witnesses and finds that government's refusal to immunize co-defendant did not violate defendant's due process rights

In United States v. Quinn, No. 11-1733 (Aug. 14, 2013) (en banc), the Third Circuit joined every other federal Court of Appeals in rejecting the use of judicial grants of immunity for defense witnesses. Defendant Quinn was convicted after a jury trial for aiding and abetting co-defendant Shawn Johnson in an armed bank robbery. Quinn's defense was that he did not know Johnson intended to rob a bank teller at gunpoint. Quinn believed Johnson would testify on his behalf at trial, but Johnson, who was awaiting sentencing on the robbery charges, invoked his Fifth Amendment privilege and refused to testify. The district court refused to immunize Johnson and Quinn appealed.

On appeal, Quinn argued that the district court erred in refusing to immunize Johnson and that the government engaged in prosecutorial misconduct by postponing Johnson's sentencing until after Quinn's trial in order to induce Johnson not to testify. The Third Circuit has recognized two situations where a criminal defendant may be entitled to have a defense witness receive immunity for his testimony: (1) when the government acts "with the deliberate intention of distorting the judicial fact-finding process," in which case the charges are dismissed unless the government chooses to immunize the witness at a new trial, United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), or (2) where the testimonial evidence is "clearly exculpatory and essential to the defense case and ... the government has no strong interest in withholding use immunity," in which case the district court was permitted to grant judicial use immunity to allow the testimony. Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). The Court noted that it was the only Court of Appeals to permit the trial court to immunize a defense witness and held that it was overturning the portion of Smith that permitted judicial grants of immunity. In so holding, the Court found that the decision to immunize a witness was a core prosecutorial function and that continuing to authorize judicial use immunity impinged on the separation of powers between the Executive and Judicial Branches. Although the Court abandoned the judicial use immunity remedy created in Smith, it retained Smith's five-part test for determining whether the government's refusal to immunize a defense witness denied a defendant due process.

Applying both Herman's "deliberate distortion" prosecutorial misconduct test and Smith's "clearly exculpatory and essential testimony" test to Quinn's appeal, the Court found that the government engaged in no wrongdoing. Under the "deliberate distortion" test, Quinn provided no evidence that Johnson intended to testify on his behalf, but was dissuaded from that testimony by the government's motion to continue sentencing. In fact, Johnson took no position on the delay of his sentencing and informed that trial court that he would invoke his Fifth Amendment privilege if called to testify. Quinn fared no better under the Smith factors. While Smith (1) sought immunity in the district court and (2) Johnson was available to testify, he was unable to establish the remaining three factors, namely, that: (3) the proffered testimony was clearly exculpatory, (4) the testimony was essential, and (5) there was no strong governmental interests which countervailed against the grant of immunity. Here, Quinn offered no proof that Johnson would offer clearly exculpatory evidence. Accordingly, the Third Circuit held that Quinn failed to show a due process violation requiring reversal and affirmed Quinn's conviction.

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