Carter v. United States

RUIZ, Associate Judge,

concurring in part and dissenting in part:

I join Parts I-V and VII of the majority opinion and agree with the need to remand the case for further proceedings. Because there can be no doubt that the proffered defense witness had a valid Fifth Amendment privilege, on remand the trial court must evaluate whether the prosecutor’s decision not to immunize the witness — resulting in the exclusion of testimony that, if material, exculpatory, noncumulative and unobtainable from another source, would distort the fact-finding process — is justified when weighed against the appellant’s right to present a defense and to a fair trial. If the trial court considers that the prosecutor’s decision is not so justified, the trial court must put the prosecutor to a choice between continued refusal to grant immunity and a commensurate sanction, which may include certain controls imposed on the trial proceedings, such as restricting the government’s examination of the witness concerning the privileged matter, or dismissal of the indictment.

I wish to emphasize a principle touched upon in the majority opinion. When faced with the kind of situation presented in this case where competing constitutional rights are asserted, it is the trial court’s responsibility to avoid a conflict between them and to accommodate all of them, if at all possible. Although it is said that a witness’s Fifth Amendment privilege prevails over a defendant’s Fifth and Sixth Amendment rights, ante at 336, that is true only in the sense that the witness cannot be forced to waive a valid privilege. It does not mean, however, that the defendant’s constitutional rights are eliminated. What it does mean is that all the participants in the trial, under the guidance of the trial court, must actively attempt to find means around the problem. As the majority opinion correctly notes, where a possible solution is the grant of immunity, an executive prerogative, that avenue must be pursued by the trial court with care not to *351 intrude upon the executive function. 1 A grant of immunity, however, is not necessarily the only option, as noted in Part II. A (“The Road Not Taken”) of the panel majority’s opinion. Carter v. United States, 643 A.2d 348, 353-54 (D.C.1994).

In Parts VI and VIII, the majority opinion adopts a “debriefing procedure” to assist trial courts in evaluating the government’s refusal to grant immunity. It is only at this point that I disagree with the majority. First, as mentioned above, immunity is but one possible way to address a conflict between the defendant’s constitutional rights and the witness’s Fifth Amendment privilege. Even assuming that a specific case is focused on whether immunity should have been granted so as to defeat the witness’s Fifth Amendment privilege, I believe it is premature for this court to say that the debriefing procedure described in the majority opinion will discharge the responsibility to find means around the competing constitutional rights of the defendant and the witness. No such procedure was used in this case or even presented to the trial judge; the matter came up for the first time during the government’s presentation at oral argument to this en banc court. Although we have not had the benefit of appellant’s considered comments on the debriefing procedure, I agree with one point of the majority in this regard, ante at 342, which is that a counseled witness with a valid Fifth Amendment privilege would only agree to be debriefed with a grant of statutory use immunity, which includes immunity from derivative use. See 18 U.S.C. § 6002-03 (1994) (providing procedures to immunize testimony “in a proceeding before or ancillary to ... a court or grand jury of the United States,” and providing further that when ordered to provide information under that section, “the witness may not refuse to comply”); see Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972).

However, the majority’s suggestion that the debriefing can be effected with the grant of statutory use immunity is a procedure I doubt that the government will recognize as the one it suggested at oral argument. 2 Obtaining even a limited statutory immunity grant requires procedural hurdles — such as petitioning the United States District Court for an order with the approval of the Attorney General — that I do not believe the government offered to undertake solely for the purpose of a debriefing where the primary beneficiary of the witness’s testimony would be the defense.

To the extent that the majority’s opinion would permit, as I believe the government suggested at argument, a grant of non-statutory, informal use immunity to overcome the witness’s recalcitrance in the debriefing, this suggestion is likely to be ineffective in light of the Supreme Court’s opinion in United States v. Doe, 465 U.S. 605 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984), in which a non-statutory grant of use immunity was deemed insufficient to overcome a valid claim of privilege. Because non-statutory, “letter” use immunity would not permit the trial court to com/pel a witness to provide self-incriminating information, without that trial court compulsion and the threat of contempt for noncomplianee, 3 all but the most magnanimous counseled witness would be without incentive to cooperate.

At any rate, it is clear that the whole issue needs further thought; we should only address it after input from the parties and *352 experience with actual implementation under the guidance of trial courts. Because potential conflicts of constitutional rights concerning a defense witness’s Fifth Amendment privilege can be addressed in a variety of ways, cases in which the defendant asserts a right to present a witness’s self-incriminating testimony need to be addressed on a ease-by-case basis by trial courts alert to their responsibility to actively endeavor to accommodate competing constitutional rights. No one approach or procedure is likely to be effective in all cases.

.Even so, it is well to remember that where the government decides to immunize a witness, in the event that the trial court determines that exclusion of a proffered defense witness in a particular case cannot be reconciled with the defendant’s constitutional rights to present a defense and to due process, the result is not denial of the ability to prosecute the witness, but a prohibition on the use of the immunized testimony in any prosecution that may be brought against the witness. Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972).

. Using 18 U.S.C. § 6001-6005 (1994) to immunize a witness’s statements in a debriefing without also immunizing his trial testimony in the same proceedings appears to be unprecedented, and may not be permissible under the statute’s language which contemplates "testimony,’’ presumably given as part of an official proceeding and subject to compulsion.

. The possibility of contempt arises under a variety of provisions, including 18 U.S.C. § 6002 , D.C.Code § 11-944 (1995), and Superior Court Rules of Criminal Procedure 17 and 42.