Case o' The Week: A Contrary Decision, Wilkes II and Immunization of Defense Witnesses

  “Our cases thus illustrate what Aristotle expressed more than two-thousand years ago – that ‘contradictory propositions are not true simultaneously.” Aristotle, Metaphysics, Book IV, 1011b13-14.

  Makes for a high bar to hit when seeking defense immunity – the Aristotelian Ideal.

  United States v. Wilkes, 2014 WL 928256 (9th Cir. Mar. 10, 2014), decision available here.

Players: Decision by Judge M. Smith, joined by Judges Fletcher and Watford. Hard-fought case by San Diego Ass’t Fed. Defender Shereen Charlick.

Facts: Wilkes was convicted after trial of a variety of fraud offenses in a scheme to bribe a former Congressman. Id. at *1. One government witness was given use immunity, a second had a favorable plea agreement in return for his testimony. Id. Wilkes then requested use immunity for his witness, representing that this defense witness would testify directly contrary to the two government witnesses above. Id. The district court denied the defense motion for compelled use immunity, Wilkes was convicted, and appealed. Id. While on appeal, the Ninth decided United States v. Straub, 583 F.3d 1147 (9th Cir. 2008). Id. at *2. Straub allowed the defense to argue that immunity to government witnesses, without similar defense immunity, could so distort the fact-finding process that the defendant was denied his right to a fair trial. Id. at *1. In a decision written by Judge Alarcon, the Ninth remanded the case with instruction to the district court to determine whether Wilkes was entitled to compelled testimony for his witness. Id. at *2; see also blog here.   On remand, the district court held an evidentiary hearing, concluded the defense testimony did not directly contradict that of the government witnesses, and held that the defense witness’s knowledge predated many charged offenses. Id. The district court denied the motion to compel: Wilkes appealed again. Id.

Issue(s): “Wilkes contends that the district court’s failure to compel use immunity for [his witness] violated his right to a fair trial under Straub. In support of this argument, Wilkes points to eight alleged contradictions between [his witness’s] proffered testimony and testimony offered [by government witnesses].” Id. at *3.

Held: “The record, however, makes clear that [the defense witness] never directly contradicts testimony offered by [the government witnesses]. Id. “Wilkes . . . fails the first prong of the Straub test. He is unable to identify a single direct contradiction between the testimony [the defense witness] would have offered at trial and testimony offered by an immunized government witness. Accordingly, the district court’s conclusion that failure to compel use immunity for [the defense witness] did not violate Wilkes’s right to a fair trial is correct.” Id. at *7.

Of Note: What is “contrary?” Much of Judge M. Smith’s opinion wrestles with this threshold inquiry. Judge Smith concludes that “a witness directly contradicts another witness if their respective testimonies cannot simultaneously be true, although in this context the proffered defense testimony need only support (as opposed to compel) a finding by the jury that it was ‘directly contradictory.’” Id. at *4 (quotations and citation omitted).

How to Use: One small consolation in Wilkes is Judge M. Smith’s clarification that Straub is not limited to cases where government witnesses receive use immunity. “[G]overnment witnesses who are granted favorable plea deals in return for their testimony are encompassed by Straub[‘s] use of the term ‘immunized.” Id. at *3 & n.1

                                               

For Further Reading: “The bloated Bureau of Prisons eats up nearly $ 7 billion a year, a quarter of the Justice Department’s entire budget.” Odds are you’ll enjoy an editorial with that zinger – and this recent N.Y.T. piece doesn’t disappoint. See, “A Rare Opportunity on Criminal Justice,” here. 

Image of Aristotle from http://www2.cnr.edu/home/bmcmanus/poetics.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalf.fpd