Sunday, October 17, 2010

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.

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


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