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

Case o' The Week: Ninth Gives Defense Welcome Immunity Shot - Wilkes

California Congressman Randall "Duke" Cunningham (right) took his resignation hard, after being caught in a massive bribery and corruption scandal. Duke's alleged co-conspirator, Brent Wilkes, has cause for a more joyful reaction: the Ninth just sent his case back down after conviction when the defense was denied court-ordered immunity for an important witness. United States v. Wilkes, 2011 WL 4953070 (9th Cir. Oct. 19, 2011), decision available here.

Players: Big win for San Diego Ass’t Fed. Defenders Shereen Charlick and Gabriel Cohan.

Facts: Wilkes’ company converted government docs to an electronic format. Id. at *1. To win government contracts Wilkes spent tens of thousands of dollars on meals, trips, and payments to former California Congressman Randall “Duke” Cunningham. Id. The bribes and contracts escalated for eight years, until a newspaper exposed the scheme and Wilkes was charged with a variety of federal offenses. Id. At trial Wilkes sought immunity for defense witness Williams, whom he contented would contradict the testimony of prosecution-immunized witnesses. Id. at *2. The district court denied the motion, holding that it “could not compel a defense witness’s immunity absent a finding of prosecutorial misconduct.” Id. Wilkes was convicted of thirteen counts, and appealed. Id.

Issue(s): “Wilkes maintains that the district court should have compelled the prosecution to grant use immunity to defense witness Williams because had he been granted immunity, his testimony would have corroborated Wilkes’s testimony and directly contradicted the testimony of immunized government witnesses. The government contends that Wilkes was not entitled to compelled use immunity for Williams because Wilkes failed to provide a valid offer of proof of Williams’s testimony in the presence of the witness’s counsel and counsel for the government. Wilkes’s ex parte proffer to the district court was thus meaningless, the government argues, because there was no reason to believe Williams would have testified as Wilkes proffered.” Id. at *3.

Held: “Here, the district court concluded that Wilkes had proffered testimony by Williams that would have been ‘material and relevant evidence that the defense would want to present to counter some of what’s been presented by the United States through immunized witnesses.’ The district court also repeatedly expressed its concern that not granting Williams immunity would have the effect of distorting the fact-finding process. The court nonetheless refused to compel use immunity because it concluded that it was powerless to do so absent a finding of prosecutorial misconduct.” Id. at *5.

“In view of this court’s ruling in Straub that a finding of prosecutorial misconduct is not required to compel use immunity, this matter must be remanded to the district court for an evidentiary hearing so the trial court can gather ‘greater detail about [Williams’s] proposed testimony and the immunity agreements the government gave to its other witnesses’ to determine whether compelled use immunity was constitutionally required. Straub, 538 F.3d at 1151.” Id. at *6.

Of Note: Sadly, other issues in this long opinion didn’t fare as well as the defense-immunity question. Of particular concern is the Court’s tolerance for withholding proffer sessions from the defense. Id. at *6-*7. Wilkes argued a Brady / Giglio violation when the government failed to disclose proffer sessions of an important witness. Id. at *7. Judge Alarcón, in our view, incorrectly characterizes these sessions as “cumulative” – the defense already knew that the government witness had immunity, and knew of the witness’s involvement of in the bribery scheme. Id. at *7.

However, as anyone who has proffered a snitch knows, Judge Alarcón’s justification misses the point: those secret sessions are where a cooperator’s story is “polished” (or “dictated”) into an acceptable script for the government. It is the changes in a cooperator’s story, revealed in proffer sessions, that is the Giglio gold – not the obvious fact that the cooperator is also a crook.

The disclosure of Gilgio material from proffer sessions is a challenge that needs further work: Wilkes’ analysis gives the issue short shrift.

How to Use: When hunting immunity for defense witnesses, compare Wilkes to another post-Straub case, Flores-Blanco. See blog here. The key difference in the two Ninth Circuit decisions? In Wilkes, there were prosecution-immunized witnesses; in Flores-Blanco, not. That key fact can give much sharper teeth to a Straub challenge to failure to order immunity for defense witnesses.

For Further Reading: President Obama has nominated a replacement for Ninth Circuit Judge Rymer: Paul Watford (above left). See article here. A former AUSA and a Justice Ginsburg clerk, 44-year old Watford will presumably have a different confirmation experience than (now-California Supreme Court Justice) Goodwin Liu.




Image of Randall "Duke" Cunningham from http://www.momdot.com/biggest-meltdowns
Image of Judicialnominee Paul Watford from http://articles.latimes.com/2011/oct/18/nation/la-na-obama-nominates-judge-20111018


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcal.fpd.org


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Case o' The Week: Ninth Suffers from Weakened Immunity -- Flores-Blanco and Court-Ordered Use Immunity

A slow week for criminal decisions in the Ninth (as new clerks hit their stride?) lets us reach back a bit and consider the interesting, though disappointing, use-immunity decision in United States v. Flores-Blanco, 2010 WL 3835220 (9th Cir. Oct. 4, 2010), decision available here.

Players: Decision by Judge Canby.

Facts: Flores-Blanco and his co-defendant, Fernandez, were guides/ look-outs for aliens that hopped the border fence in Calexico. Id. at *1. Both men were charged with a number of counts of alien-smuggling offenses. Id. Fernandez pleaded guilty to one count as part of a plea agreement; Flores-Blanco went to trial. Id. at *2. Before trial Flores-Blanco listed Fernandez as a defense witness. At a proffer of Fernandez’s testimony “counsel for Flores-Blanco informed the district court that Fernandez had exculpatory evidence to offer in her client’s favor. In response to the district court's request for an offer of proof, counsel claimed that Fernandez would testify ‘[t]hat [it] was his job and [Flores-Blanco] had nothing to do with it.” Fernandez then interjected, “[Flores-Blanco] had nothing to do with it.” Id. at *3 (emphasis added).

The district court then interjected and had a little talk with Fernandez’s counsel and Fernandez – after which Fernandez promptly took the Fifth. Id. at *3. Flores-Blanco sought use immunity from the government and Court. Both refused, Fernandez never made the witness stand, and Flores-Blanco was convicted at trial. Id. at *3.

Issue(s): “Flores-Blanco . . . challenges the district court’s refusal to compel the government to grant Fernandez use immunity.” Id. at *3.

Held: “We conclude that there was no error [in the refusal to compel the grant of use immunity.” Id. at *3. “There was also no plain error in the district court’s failure to conduct additional inquiry into the propriety of Fernandez’s invocation of his Fifth Amendment privilege.” Id. “For similar reasons, the district court did not plainly err by not inquiring into the scope of Fernandez’s assertion of his Fifth Amendment privilege.” Id. at *4.

Of Note: This brief opinion is a disappointing outcome in a case where a central, percipient witness planned to offer directly exculpatory evidence. The outcome hinged on the Ninth’s lead use immunity case, United States v. Straub, 538 F.3d 1147, 1157 (9th Cir. 2008). Id. at *3. More specifically, the Achilles heel of this challenge was Straub’s requirement for one of two showings: that the government intentionally caused the exculpatory witness to invoke the Fifth “with the purpose of distorting the fact-finding process,” or, that the government gave use immunity to a prosecution witness, but denied use immunity to a defense witness who would have rebutted the government witness’s testimony. Id. at *3. No government witnesses at trial received use immunity, and Flores-Blanco didn’t show that “the government deliberately caused Fernandez to invoke his Fifth Amendment rights.” Id. at *3. For better or worse, Flores-Blanco is an accessible little case for evaluating chances at dodging Straub’s barriers and obtaining court-ordered use immunity in your own trial.

How to Use: There is one interesting tidbit in Flores-Blanco that may be the seed for a future argument. On appeal, Flores-Blanco argued that the district court intimidated Fernandez into asserting his Fifth Amendment rights. Id. at *3. The court’s role at triggering an assertion in the Fifth isn’t strictly in the Straub factors – Straub talks about the government’s involvement. Nonetheless, Judge Canby in Flores-Blanco doesn’t reject the “court” argument as outside of Straub’s parameters. Instead, he concludes that this particular claim “has no [factual] support in the record.” Id. at *3.

When a district court is too aggressive in “advising” an exculpatory defense witness on the dangers of testifying – effectively forcing the Fifth – remember the Flores-Blanco loophole and focus on building the record for a use-immunity challenge based on the court’s role in creating the situation.

For Further Reading: The U.S. Attorney’s Manual is a good starting point for seeking use immunity: Section 9-23.000 covers witness immunity generally, and Section 9-23.214 discusses use-immunity for a defense witness (“As a matter of policy, 18 U.S.C. § 6002 will not be used to compel the production of testimony or other information on behalf of a defendant except in extraordinary circumstances where the defendant plainly would be deprived of a fair trial without such testimony or other information.”). Section 9-23.000 available here.


Image of the "Happy Skull" from http://www.casadecalexico.com/store/t-shirts


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Bybee Boosts Immunity, Straub

Judge Bybee (left) gives a big boost to defense immunity in an important decision that elaborates on the Williams test -- permitting the effects of the government's immunity decisions to establish a constitutional violation. See United States v. Straub, 2008 WL 3547541, (Aug. 15, 2008), decision available here.

Players: Decision by Judge Bybee, joined by Judges D.W. Nelson and Kleinfeld.

Facts: Straub, a member of Oregon’s “White Neck Crew,” allegedly dealt drugs and shot at other dealers as he stole from them. Id. at *1. An immunized government snitch pegged Straub as the shooter in one charged robbery. Id. The defense proffered an impeachment witness who would recount a bar confession wherein the snitch admitted to being the shooter. Id. at *2. This defense witness, however, wanted immunity – and the court refused to give it. Id. at *2-*3.

After conviction at trial, the Ninth remanded in a mem dispo for an evidentiary hearing on the need for court-ordered immunity. Id. at *3.

This hearing revealed that the government had offered “use immunity, informal immunity, sentence reductions, and even cash . . . to the prosecution’s other witnesses for their testimony against Straub” Id. at *5. Eleven of twelve government witnesses had gotten some sort of break. Id. The district court nonetheless stood by its initial denial of immunity, finding no evidence of prosecutorial misconduct. Id. at *7. Straub appealed again.

Issue(s): “Straub claims that the . . . court’s refusal to compel the prosecution to grant use immunity to [his] defense witness . . . violated his due process rights under the Fifth Amendment . . . .

We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process.” Id. at *1.

Held: “Even where the government has not denied a defense witness immunity for the very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in a way that has severely distorted the fact-finding process at trial . . . . Id. at *12.

"[W]here the government has liberally used its discretion to grant immunity to numerous witnesses, and the defendant’s witness could offer relevant testimony that would directly contradict that of an immunized government witness, the trial may become so fundamentally unfair that the defendant’s due process rights are implicated.” Id.

“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 whose testimony would have directly contradicted that of the government 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.” Id. at *14.

"We reverse the district court's denial of Straub's request to compel use immunity." Id. at *18.

Of Note: Straub is a leading case on defense immunity with a valuable new rule for the most-likely trial scenarios.

In Williams v. Woodford, the Ninth held that a refusal to grant immunity rises to a constitutional violation when 1) the defense witness’s testimony is relevant, and 2) the prosecution’s refusal to grant immunity deliberately distorted the fact-finding process. 384 F.3d 567, 600 (9th Cir. 2004). Good luck, of course, getting a prosecutor to admit to “deliberate distortion.”

Straub’s new rule is that the defense can prove this second prong by showing that the effects of immunity for government witnesses – with no immunity for defense witnesses – “stacked the deck against the defendant.” Id. at *12. This is a much more manageable defense burden: proof of prosecutorial intent via proof of effects.

How to Use: Ask! The government here argued that the defense never formally requested use immunity. Id. at *16 n.9. Luckily, Judge Bybee rejects that complaint as too formalistic – but why run the risk? A brief letter or a formal request on the record for a government grant of immunity helps to block this government dodge.

For Further Reading: It helps to know the DOJ’s immunity rules when going down this road. They can be found here.




Image of Judge Jay Bybee from http://www.ibabuzz.com/politics/2008/02/13/circuit-judge-accused-of-pro-torture-bias/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.



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