[Ed. note -- Jon asked me to step in while he's out of the office for a few days.]

 

United States v. Wilkes, Nos. 11-50152, 12-50257 (9th Cir. Mar. 10, 2014) (M. Smith, with Fletcher & Watford) ---

If the government grants immunity to one of its own witnesses, when does it also have to grant immunity to a defense witness in order to preserve the defendant's right to a fair trial?  Here, the defendant was tried for bribery charges related to Randy Cunningham, a former member of Congress from San Diego, and the government granted immunity to a witness favorable to its side.  Under United States v. Straub, 538 F.3d 1147 (9th Cir. 2008), the government would have also had to provide immunity to favorable defense witnesses whose testimony directly contradicted that of government witnesses.  In a prior appeal, the court had remanded for an evidentiary hearing under Straub, at which the defendant argued that two of his witnesses should have received immunity and proffered the favorable testimony they would have given.  The Ninth Circuit held that the defense witnesses did not require immunity because their testimony only pointed to other aspects of the evidence against the defendant and did not directly contradict that evidence.

The court also held that forfeiture orders are not subject to the Apprendi jury-trial requirement and that the defendant did not show an entitlement to a new trial based on evidence available to the defendant at the original trial.

The opinion is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/10/11-50152.pdf