U.S. v. Straub, No. 07-30182 (8-15-08).


We now hold that for a defendant to compel use immunity the defendant must show that:

(1) the defense witness's testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony but denied immunity to a defense witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.

P. 10708. This is an important decision regarding compelling the government to grant immunity to a defense witness. The facts here involved a defendant facing far-reaching conspiracy and drug charges, as well as a robbery and firearm count. The government granted immunity to 11 witnesses, including one "associate" of the defendant, Adams, who testified that he saw the defendant rob and fire a firearm. The defense had one witness, who would testify that the government witness, Adams, had told him, "I just shot a man." The court declined to order the government to grant immunity (with such logic as: Adams might have meant someone else). The 9th had remanded the case back previously for a hearing, and now decides that immunity can be compelled where the evidence is relevant, and the witness would directly refute a government witness who has been given immunity. The 9th now (Bybee joined by D. Nelson and Kleinfeld) crafted the test is above. Here, the defense witness would have invoked because he was somewhat of an "associate" too in defendant's enterprise. The test is two-pronged: the first is when the government intentionally causes invocation of the Fifth Amendment trying to hide or distort the fact-finding process; or second, in a "fairness" analysis, the prosecution cannot play unfairly so as to distort truth. Sauce for the goose, etc. The second test was implicated here, and the case remanded on the counts affected.

The opinion reviews the precedents of compelled immunity, and sets forth the jurisprudence. It is a good overview.

Questions left open is the mixed use of a witness (what if the witness has other evidence or testimony? Separate the issues?). There is also the question of what constitutes distortion, and the extent of the government's not playing fair. The opinion though takes an important step in recognizing that the government cannot tip the scales with its immunity waiver.

U.S. v. Liu, No. 06-10758 (8-13-08). Defendant ran a brothel in Saipan, and was charged and convicted of various sex trafficking offenses. In appealing the convictions, defendant argues that the court has no jurisdiction over the Northern Mariana Islands. Defendant argues that the covenant between the U.S. and the Northern Mariana specifically lists the amendments applicable, and has language as to giving force to all other laws applicable to the states. Defendant argues that the commerce clause provision is not specifically stated, and so does not apply to the islands. The 9th (Hug joined by Rymer and Rawlison) finds this of interest, but rejects the contention because the commerce clause applies to Congress, and vests it with authority, which can be applied here, because the statutes would also be applicable to the several states.

U.S. v. Peterson, No. 07-50120 (8-13-08). We will be seeing a lot of these types of appeals. The defendants subsidized down payments for homebuyers, but submitted to HUD forms that indicated the homebuyers had received gifts from family or friends to help with the down payment. Things went bad, and the defendants were convicted of false statements. The 9th (Trott joined by Wardlaw and Fisher) affirm the convicts, although chastising the district court, under plain error, for giving an instruction on materiality that did not track the language in U.S. v. Gaudin, 515 US 506 (1995). The 9th stressed that the "capable of influencing" language of Gaudin should be used instead of "could have influenced." The 9th also upheld the restitution order for 43 HUD properties that were affected, finding that the loss was within the proximate cause (the Palsgraf subdivision?).

Tilcock v. Budge, No. 07-16184 (8-15-08). The petitioner was sentenced as a habitual offender under Nevada state law. The 9th (Graber joined by Wallace and Ezra) find no Apprendi error in the state court considering priors as a qualifier for habitual offender status. A qualifying prior may expose the petitioner to a habitual offender enhancement but does not mandate it. The state court may still decide not to. However, the 9th did grant a remand for an IAC hearing. State counsel may have been ineffective in letting in the non-qualifying convictions, thereby tilting consideration.

Congrats to AFPDs David Anthony and Anne Traun, FPD Nevada (Las Vegas), for the remand.

U.S. v. Ganoe, No. 07-50195 (8-15-05). In a child porn trial, the 9th (Silverman joined by Rawlison and M. Smith) found no abuse of discretion in the trial court allowing the jury to examine a select and limited number of images that were part of the offense. The viewing was necessary, even though the defendant offered to stipulate that the images were child porn, because the defendant did not stipulate that the file titles were also a tip-off to child porn (i.e. "Baby J compilation."). The 9th also rejected the search issue on the peer-to-peer software. The defendant downloaded files into a folder that was accessible to all, and lacked privacy.