Petition — Horwitz v. United States

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IN THE

Supreme Court of the United States

Octoser TERM, 1980

PRD cence 79-2065

Lzeonarp Horwitz,

Petitioner,

—against—

Unirep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JonatHan W. LUBELL

Mary K. O’MELveny

Coun, Guickste1n, Lurie, Ostrry,

Lusett & LUBELL

1370 Avenue of the Americas

New York, New York 10019

Attorneys for Petitioner

Jw’

TABLE OF CONTENTS

PAGE

POI ITN 11. de insets odie saedehanichonosiconalicieateaniebiiies 1

BEER DEERE SO OME URRY OP RAPREEE YL R EE 2

Questions Presented for Review ..................:....c-:cee+-e+ee0e0 2

eee Eee RO en es 3

yg SRA SEE EEE OR Sn ar ap aC ODN Wee RRO OP TEI 4

The Scope and Impact of the Government’s Immu-

SO NE allel ca casi gina tehdaablatbinki aad scahelaneus 4)

The Status of the Proposed Defense Witnesses .... 7

The Centrality of Warner to the Evidence Con-

I oi ccceteipanansers 7

Ae I TI isco kasi sactpesnborewcieintbcietwrhinin seine 9

TU I ial ee saps ulecemesfinaicatonnee 9

The Court of Appeals Decisions ...........................---- 10

POE RENEE SOPRA PY ee aaa irl ee Ee 10

Is I sili SI i ici a 11

REASONS FOR GRANTING THE WRIT.

The Standard Established by the Court of Appeals

for Evaluating Selective Exercise of the Immu-

nity Power Undermines Critical Fifth and Sixth

Amendment Rights Without Regard to the Cir-

cumstances of a Particular Case or the Judiciary’s

Role in Safeguarding Those Rights in a Proceed-

ing Premised Upon the Search for Truth .............. 15

PAGE

1. The Sweeping Standard Prescribed in Turkish

Impairs the Ability of the Judiciary to Guaran-

Tg Re Sect Or FOE 15

2. No Prior Decision on the Issue of Defense Wit-

ness Immunity Has So Completely Foreclosed

Judicial Due Process Inquiries .........................- 17

3. The Decisions Below Create a Substantial Risk

of Inconsistent Adjudications of Critical Due

Pg RI eC ES 21

4. The Turkish Standard Permits Even Inten-

tional Deprivations of Due Process to Escape

Sree ee ate hci... 23

5. The Decision Below Alters Established Rules

LILI ETELET OD 25

CORRCR TE eccccense ae i nciicccaiennceeeccceese 26

TABLE oF AUTHORITIES

Cases:

Brady v. Maryland, 373 U.S. 83 (1963) ....................-- 6, 22, 24

Buckley v. Valeo, 424 U.S. 1 (1976) 2.02.22... eeeeeeeees 15

Chambers v. Mississippi, 410 U.S. 284 (1973) .............. 22

Earl v. United States, 361 F.2d 531 (D.C. Cir. 1966),

cert. denied, 388 U.S. 921 (1967) ................0..0.... 17, 18, 19

. Fuller v. Oregon, 417 U.S. 40 (1974) .....ee cece eeeeeeeee 22

Gideon v. Wainwright, 372 U.S. 335 (1963) ......00000020...... 22

Government of Virgin Islands v, Smith, 615 F.2d 964

(Sd Cir. 1960). cc 3, 12, 13, 20, 21, 22, 23

iii

PAGE

Hampton & Co. v. United States, 276 U.S. 394 (1928) 15

Kastigar v. United States, 406 U.S. 441 (1972) .......... 12, 18

Linkletter v. Walker, 381 U.S. 618 (1965) ........00.0........ 22

Masri v. United States, 434 U.S. 907 (1977) ................ . 22

Myers v. United States, 272 U.S. 52 (1926) .........0..0.2.... 15

Powell v. McCormack, 395 U.S, 486 (1969) .................... 16

Roviaro v. United States, 353 U.S. 53 (1957) ................ 22

Simmons v. United States, 390 U.S. 377 (1968) ............ 23

Thompson v. Garrison, 516 F.2d 986 (4th Cir. 1975) .... 19

United States v. Alessio, 528 F.2d 1079 (9th Cir.), cert.

mob, SOG TTT, DAB LIB TI) oisnsiivesescsnsecspecds ctbdsstbowntiasion 18, 19

United States v. Bautista, 509 F.2d 675 (9th Cir.), cert.

Dated, GRA UB; BEG COG TY aici ciictessestinsnlsensonie 18,19

United States v. Carmon, 577 F.2d 556 (9th Cir. 1978) 19

United States v. Gleason, 616 F.2d 2 (2d Cir. 1979),

cert. denied, U.S. ——, 100 S.Ct. 1320 (1980) 18

United States v. Housand, 550 F.2d 818 (2d Cir.), cert.

Reeind, GEL Wai BOR CATT DW catckthecbinteicinennthciedidinns 19

United States v. Herman, 589 F.2d 1191 (3rd Cir. 1978),

cert, denied, 441 U.S. 913 (1979) 20.2. eeeee 19, 24

United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972) 19

United States v. LaDuca, 447 F.Supp. 779 (D.N.J.),

aff'd on other grounds sub nom. United States v.

Rocco, 587 F.2d 144 (3d Cir. 1978) 0.00000 18

United States v, Lang, 589 F.2d 92 (2d Cir. 1978) ........ 19

United States v. Lenz, 616 F.2d 960 (6th Cir. 1980) .... 19

United States v. Nixon, 418 U.S. 683 (1974) 002 .. 16

PAGE

United States v. Smith, 542 F.2d 711 (7th Cir. 1976) 19

United States v. Turkish, —— F.2d —— (Docket Nos.

79-1326, 79-1396, May 27, 1980) ...................scscscsceeses passim

United States v. Wright, 588 F.2d 31 (2d Cir. 1978),

cert. denied, 440 U.S. 917 (1979) -..2..2...... eee seeceee sees 18, 19

Washington v. Texas, 388 U.S. 14 (1967) .........0.2.220.0.--- 9

Williams v. Florida, 399 U.S. 78 (1970) .00......2..2..220-+- 22

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

TBS ARR OR RTT BR ee ed 7 RE ONO ay HORSE 15

Constitution, StatuTEs AND Rugs

Constitution:

Be NE ais ices caeintntidcitanaecnstbetblovensepudbnericeesenbsned passim

Se cI 2.7... csaplubihsaicaasouoronedanbbgaleasi canal passim

Statutes:

SU NE iirc ain dindnianionsnbaneaseibanoenediipanien’ 4,10, 25

Be i IID ici ssnsieatcarnsocnonnietniicielanchenienceneioimbabesiipiail 5,12

Ge Gre i ee et a 2

Rules:

Federal Rules of Criminal Procedure

TE SRR TAR CROLL Heh ON: SR aCe MOS EOE, PRCT EN 8

I coat aa Le eeaaealesaa seaeaubaiceegicomelioes 3

IN THE

Supreme Court of the United States

OctosErR Term, 1980

Leonarp Horwitz,

Petitioner,

—against—

Unitep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Justices of the Supreme Court of the United States:

Petitioner, Leonard Horwitz (“Horwitz”), respectfully

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the Second

Circuit remanding the decision and order of the United

States District Court for the Southern District of New

York and holding applicable to petitioner’s case the stan-

dards enunciated by the Court in United States v. Turkish,

—— F.2d ——- (Docket Nos. 79-1326, 79-1396 May 27, 1980)

(“Turkish”). The District Court had granted a new trial

on grounds that the Government’s selective use of its

power to immunize witnesses deprived Horwitz of due

process of law.

Opinions Below

The opinion of the Court of Appeals for the Second

Circuit, not yet officially reported, is reproduced in Ap-

pendix A (1la-10a) to this Petition. The opinion and order

of the District Court granting petitioner’s motion for a

new trial on due process grounds and stating that the

testimony of government witnesses might be excluded on

retrial unless requested use immunity was granted to po-

tential defense witnesses is reported at 476 F.Supp. 775

(S.D.N.Y. 1979), and is reproduced in Appendix B (11la-

26a). The opinion of the Court of Appeals for the Second

Circuit in United States v. Turkish is unreported and is

reproduced in Appendix C (27a-51a).

Jurisdiction

The decision of the Court of Appeals for the Second

Circuit was filed and judgment entered on May 29, 1980.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

Questions Presented for Review

1. Whether the Court of Appeals should have affirmed

the District Court’s holding below that, in the unique cir-

cumstances before it, the Government’s selective applica-

tion of its power to immunize witnesses deprived petitioner

Horwitz of fundamental rights protected by the Fifth and

Sixth Amendments to the Constitution?

2. Whether the restrictive standard enunciated by the

Court of Appeals in United States v. Turkish and held

applicable to petitioner has so severely limited the ap-

plication of due process principles to the issue of defense

witness immunity as to undermine those very principles?

3. Whether the restrictive standard enunciated by the

Court of Appeals in Turkish for evaluating requests for

defense witness immunity presents a fundamentally unfair

obstacle to the search for truth in federal criminal trials?

4, Whether the restrictive standard enunciated by the

Court of Appeals in Turkish has unduly impaired the

District Court’s supervisory powers to ensure the fairness

of federal criminal trials?

5. Whether the restrictive standard enunciated by the

Court of Appeals in Turkish, which is “in fundamental

disagreement” with the standards enunciated by the United

States Court of Appeals for the Third Circuit in Govern-

ment of the Virgin Islands v. Smith, 615 F.2d 964 (3d

Cir. 1980), creates a serious risk of inconsistent interpreta-

tions of due process principles and conflicting adjudica-

tions of fundamental constitutional rights?

6. Whether the Court of Appeals was correct in hold-

ing appealable as a “conditional suppression order” that

portion of the decision of the District Court granting Hor-

witz a new trial which stated that certain testimony of

the Government’s witnesses might be subject to a motion

to suppress at the third trial?

Statement of the Case

This case arises from an appeal by the United States

of America (“Government”) from an order of the United

States District Court for the Southern District of New

York (Hon. Robert W. Sweet) granting Horwitz’s motion

or a new trial pursuant to Rule 33, Fed. R. Crim. P. after

jury verdict* and before sentencing in a second trial.**

*The District Court opinion erroneously states that Horwitz

was charged and found guilty of engaging in a pattern of racke-

teering (lla, n.1). Horwitz was not charged in Count One of the

indictment.

** The first trial ended in a mistrial after seven days of jury

deliberations. On its last vote, the jury was deadlocked regarding

The District Court held that Horwitz was denied due pro-

cess of law due to a combination of particular facts in-

volving the Government’s selective use of its immunity

power. In granting Horwitz a third trial, the District Court

stated that the constitutional defects inherent in the par-

ticular facts before it could be remedied by excluding tes-

timony by the Government’s immunized witnesses unless

limited use immunity was granted to the two defense

eyewitnesses (25a).*

The Court of Appeals determined that the “conditional

suppression order” aspect of the District Court’s opinion

was properly appealable pursuant to 18 U.S.C. §3731 (6a-

8a). The Court declined to affirm the District Court’s de-

cision, remanded the case for reconsideration in light of

the decision in Turkish, finding that Turkish had “signifi-

cantly undercut the analytical foundation” of the District

Court’s decision (9a), and suggested that consideration be

given to “entering a judgment of conviction as an alter-

native to a third trial” (10a),

Facts

The District Court based its ruling upon several

unique facts surrounding the Government’s grant of broad

immunity to the two key witnesses against Horwitz while

Horwitz: 7-5 for acquittal on Count 24 (the obstruction of justice

count) and 5-7 to 6-6 on Counts Two through Eleven, the various

stock conspiracy and fraud counts which comprised the remaining

charges against him. See Affidavit of Jonathan W. Lubell, sworn

to February 5, 1979, para. 3.

* The District Court sta‘ed that the motion for a new trial was

granted with “much reluctance” since Horwitz had “already en-

dured two lengthy, costly trials” and noted that “because the

‘interests of justice’ are insufficient reason for dismissing an indict-

mer.t,” “immunized testimony by witnesses from both sides” at a

third trial would best serve those interests (25a-26a).

refusing to grant “even limited use immunity” to the two

proposed defense “witnesses to the events at issue,” a

decision which rendered them “unavailable” to the defense

(12a, 14a-15a).

The Scope and Impact of the Government’s Immunity Grants

Late in the fall of 1977, the Government’s main witness

against Horwitz, Norman Brodsky (“Brodsky”), entered

into discussions with the Government concerning a broad

immunity grant, He was told that such a grant would only

be given if he could “get” executives of Warner Com-

munications, Inc. (“Warner”), particularly Jay Emmett

(“Emmett”), one of the two eyewitnesses denied limited

use immunity to testify for Horwitz. Brodsky testified at

both trials concerning his understanding of the Govern-

ment’s “paramount” interest in Emmett, and of his willing-

ness “to go to any lengths” to satisfy that interest.* Far

beyond the limited use immunity provided by the Immunity

Act of 1970, 18 U.S.C. §6002-6003, Brodsky was ultimately

granted immunity from prosecution encompassing “all

crimes which he had committed, whether or not known to

the government at the time of the grant” (19a). The im-

munity grant induced Brodsky to become “an active gov-

ernment agent” as well as a witness (/d.). The District

Court found that Brodsky’s “incentive for going ‘to any

lengths’” to obtain immunity was

apparent when he was asked on cross examination if

the jail term to which he was exposed by past crimes

* The District Court summarized Brodsky’s testimony as follows:

“As a result of these conversations with the government, Brodsky

testified he believed that in order to be immunized he would have

to tape a conversation of Horwitz describing ‘what happened with

the executives at Warner Communications. .. .’ (Transcript at

‘aa; Brodsky was ‘willing to go to any lengths to do it.’ Jd.”

a).

“could encompass at least a couple of hundred years

in jail?”’, and he replied: “Probably a couple of thou-

sand.” (Transcript at 2116).

(Id.)

Kosman, the other main witness against Horwitz, re-

ceived immunity from prosecution for related crimes known

to the United States Attorney’s office in exchange for his

providing information and testifying at trial. Kosman

also was promised that his “cooperation” would be indi-

cated to his sentencing judge in an unrelated prosecution

(20a). Notes of the Government’s interviews of Kosman

provided to defense counsel were conceded by Assistant

United States Attorney Campbell during trial to have been

deliberately coded and maintained in a manner to “limit

their usefulness” to the defense and “create misleading

impressions when used by defense counsel on cross-

examination” (Tr. 1380).** The District Court found that

these notes were, in fact, “rendered useless” and held that

“one cannot determine whether the notes do, in fact, con-

tain exculpatory information” as required under Brady v.

Maryland, 373 U.S. 83 (1963) (Tr. 2547). The improper

handling of the Kosman notes was found by the District

Court to be “a deceptive practice which is not worthy of

the United States Attorney’s Office” (Id.).

*The District Court found “important for present purposes”

Kosman’s belief that he was testifying “pursuant to an immunity

grant”, even though the Government contended after trial that he

had only received “leniency”, since “that belief may have colored

Kosman’s testimony” (14a, n.6).

** References to pages of the trial transcript will appear pre-

ceeded by “Tr.”.

The Status of the Proposed Defense Witnesses

The two proposed defense witnesses, Emmett and Sol-

omon Weiss (“Weiss”), were subpoenaed to and did testify

before the grand jury. At the time their counsel were told

that they were noi targets of the investigation (Tr. 3705-B,

3705-C), the Government was promising Brodsky broad

immunity to obtain evidence against them (Tr. 2177, 2182,

2183) (19a). The sworn testimony of Emmett and Weiss

before the grand jury was reviewed in camera by the Dis-

trict Court and found to be exculpatory of Horwitz as

well as probative and not cumulative (20a, 12a). When the

Government’s investigatory focus upon them became clear,

Emmett and Weiss invoked their Fifth Amendment Priv-

ilege at the trial and declined to testify unless a grant of

use immunity was made.* The District Court’s request to

the Government to consider granting “limited use im-

munity” to Emmett and Weiss so they could present con-

fined testimony on “matters highly relevant to material

issues” was refused because “both witnesses were the sub-

ject of a continuing invesi gation” (13a).

The Centrality of Warner to the Evidence Concerning Horwitz

The District Court found that the “principal evidence”

against Horwitz was provided by Brodsky and Kosman

and that the “major thrust of their testimony” was that

Horwitz stated that he had paid money to Emmett

and Weiss to induce them to cause Warner Commu-

nications, Inc. (“Warner”) to purchase shares of stock

* The investigation has now continued for over 30 months with

no charges brought against either individual. Brodsky’s testimony

regarding the Government’s “paramount interest” in the Warner

executives and his willingness “to go to any lengths” to satisfy

it could only strengthen the resolve of Emmett and Weiss to invoke

the Privilege.

in the Westchester Premier Theatre (“the Theatre”)

an inducement which was concealed from the investing

public.

(15a)

The Court of Appeals found that the testimony concerning

Warner “was supplied primarily by Brodsky” (3a-4a).

The Government presented no eyewitnesses to the alleged

payoff by Horwitz to Emmett and Weiss. In fact, the

Government’s denial of immunity to Emmett and Weiss

prevented the only possible eyewitness testimony to this

charged event.* Presentation of any other defense wit-

nesses would only have further highlighted the absence of

the eyewitnesses.** Evidence against Horwitz provided by

the third witness, Carino, “may not have been sufficient to

survive Horwitz’s motion pursuant to Rule 29, Fed. R.

Crim. P.” (15a, n.7). The other evidence against Hor-

witz involved checks drawn by Warner and other routine

company documents,*** and statements by Horwitz tape-

recorded by Brodsky as the Government’s agent. The latter

evidence contained Horwitz’s explicit denial of any knowl-

edge of the charged payoff to Emmett and Weiss.

* Horwitz could not have testified on this matter and preserved

his Fifth Amendment Privilege.

** Corroborative defense witnesses necessarily required the basic

foundation testimony of Emmett and Weiss.

*** Exculpatory testimony by Emmett and Weiss, corporate

officers of Warner, regarding these normal business documents

would have eliminated the incriminating hearsay shadow cast upon

them by Brodsky’s and Kosman’s testimony.

The Decisions Below

The District Court

The District Court found that the Government’s selec-

tive exercise of its immunity power* deprived Horwitz of

his due process rights, “including his right to put any

witness on the stand who was ‘capable of testifying to

events that he had personally observed, and whose testi-

mony would have been relevant and material to the de-

fense’,” citing Washington v. Texas, 388 U.S. 14, 23 (1967)

(24a).°*

The District Court emphasized several specific factors in

reaching its conclusion: the centrality of the evidence sup-

plied by the immunized witnesses; the eyewitness nature

of the exculpatory testimony proffered by the defense wit-

nesses; the facts surrounding Brodsky’s grant of immunity

in order to obtain information about the Warner execu-

tives and, in particular, Emmett; the broad immunity grant

conferred on Brodsky and, to a less but still significant

extent, on Kosman, compared to the very limited use

immunity sought for Emmett and Weiss; the fact that the

* The Court neither challenged the normal “sole discretion” of

the Government to grant or deny immunity, nor held that it had

“independent power” to grant immunity to a necessary defense

witness (12a, n.3).

** The Court found “central” to the due process issue prese™*ed

“the question of what obligation is placed upon the government in

connection with the search for truth in a criminal proceeding.

While the government need not in every circumstance grant im-

munity to potential defense witnesses, here, where the foundation

of th government’s case against Horwitz was built by means of a

far-reaching immunity grant, and where the evidence sought by

the defense is affected by the government’s continuing investigation

of the potential defense witnesses, the denial of limited use immu-

nity resulted in an unfair trial.” (23a)

proffered exculpatory testimony was evidenced by the

grand jury transcript of testimony taken when neither wit-

ness believed they were under investigation; the asser-

tions of both Emmett and Weiss in court of their willing-

ness to testify under immunity; and the probative, non-

cumulative nature of the proposed exculpatory evidence

(12a, 13a, 15a, 19a-20a, 24a). The District Court held that

the constitutional prejudice suffered by Horwitz as a

result of the Government’s selective grants of immunity

could be remedied at a third trial by suppression of Brod-

sky’s testimony unless Emmett and Weiss were granted

immunity (25a). The Court found that the “interests of

justice’ would best be served by a trial which contained

“immunized testimony by witnesses from both sides” (26a).

The Court of Appeals Decisions

A. Remand

The Court of Appeals remanded the case in light of the

decision two days earlier by another panel of the Court

in Turkish which was characterized as addressing “a re-

verse immunity claim substantially similar to that asserted

by appellee Horwitz’ (8a). Turkish was described as

having “significantly undercut the analytical foundation

upon which Judge Sweet’s grant of a new trial to Horwitz

and conditional suppression of the Brodsky testimony were

premised” (9a). While characterizing Horwitz’s argument

that the District Court’s order was not appealable as a

“substantial one” (6a), the Court of Appeals nonetheless

held that the conditional nature of the District Court’s

ruling did not “necessarily deprive” it of jurisdiction to

hear the appeal under 18 U.S.C. §3731 (7a). Holding that

§3731 must be “liberally” construed, the Court found that

“the government, the defense, and the district court have

embarked upon a collison course that will almost certainly

result in the suppression of the Brodsky testimony” which,

“onder the circumstances”, made the exercise of jurisdic-

tion appropriate (8a). The Court did acknowledge its lack

of jurisdiction to review the District Court’s grant of a

uew trial but also “suggested” that “if Horwitz’s reverse

immunity claim is found to be untenable in light of

Turkish, the district judge consider entering a judgment

of conviction upon the jury verdict as an alternative to

a third trial” (10a).

B. Turkish

Turkish involved an appeal by a commodities trader from

a judgment of conviction for income tax evasion, filing false

tax returns and conspiracy to defraud the Government

using various tax avoidance schemes in the commodities

futures market (28a-29a). Turkish was found to have been

“a principal participant” in the scheme (28a).* Following

the close of the Government’s case, which included testi-

mony by six witnesses involved in the fraudulent transac-

tions who were granted some form of immunity,** the

defense sought use immunity for seventeen prospective

witnesses (30a-3l1a).

District Judge Vincent Broderick held that a defense

right to require immunization of a witness might be re-

quired by the Due Process Clause of the Fifth Amendment,

but ruled that the defense motion was untimely and found

* By contrast, in the case at bar, Brodsky was disclosed to be a

principal participant in the stock conspiracy charges, together with

three other defendants. Horwitz was not charged with plaving a

central role.

** None of the six witnesses received the type of sweeping

immunity granted to Brodsky.

that, in any event, no showing had been made that any of

the proposed witnesses would give “material, exculpatory

testimony” (32a).*

The Turkish Court found defense witness immunity

“much discussed by courts and commentators,” and interest

“considerably heightened” following Kastigar v. United

States, 406 U.S. 441 (1972), which upheld the constitution-

ality of the “use” immunity statute (32a-33a). It noted

Third Circuit “appellate decisions ruling in favor of de-

fense witness immunity”,** and acknowledged other Cir-

cuit decisions which had been “careful to deny the claim

only with respect to the precise facts presented” (34a-36a).

The Court acknowledged two prior Second Circuit decisions

which “explicitly left open the possibility that defense wit-

ness immunity might be required if grants of use immunity

to prosecution witnesses resulted in an ‘unfair advantage’ ”

(36a).

Turkish held that “the established content of the Sixth

Amendment does not support a claim for defense witness

immunity,” finding that the Amendment did not carry with

it the right or obligation to “displace a proper claim of

privilege” with use immunity (36a-37a). The Court then

noted that “a more plausible basis for defense witness

immunity” could “arguably” be found in “the more general

and perhaps developing requirement of basic fairness pro-

* Judge Broderick’s findings on the merits of Turkish’s immu-

nity request were thus in complete contradiction to Judge Sweet’s

findings regarding Horwitz’s request.

** Although the Turkish decision characterized opinion in the

Third Circuit as “divided” (34a), the most recent decision of tiat

Circuit, Government of the Virgin Islands v. Smith, 615 F.2d 964

(3d Cir. 1980), set clear standards for judicial determination of

defense witness immunity claims under both 18 U.S.C. §6002 and

traditional judicial powers to ensure fairness in criminal proceed-

ings (35a).

tected by the Fifth Amendment’s Due Process Clause,” a

requirement proceeding from “two basic arguments” :

First, as this Circuit hinted in Gleason and Lang, un-

fairness may inhere in some situations because the

Government’s grant of use immunity to its witnesses

affords it an advantage over the defendant’s ability to

present a defense. Secondly, to the extent that a trial

is viewed as a search for the truth, denial of defense

witness immunity may in some circumstances unfairly

thwart that objective.

(37a)

The Court first rejected “equalization” as a “sound prin-

ciple” upon which to rest Fifth Amendment fairness re-

quirements (37a-38a). Finding demands of the pursuit of

truth to have “somewhat greater force”, the Court never-

theless rejected this principle as well, stating that “the

concept of a trial as a search for the truth has always failed

of full realization whenever important facts are shielded

from disclosure because of a lawful privilege” (38a-39a).

The Court noted several “substantial concerns” implicated

by a general rule permitting defense witness immunity

(39a-41a) and questioned whether the balancing of such

concerns against “the defendant’s interest in securing

truthful exculpatory testimony through defense witness

immunity” was “appropriately a judicial function” (41a).

The Court stated that “confronting the prosecutor with a

choice between terminating prosecution of the defendant

or jeopardizing prosecution of a witness is not a task con-

genial to the judicial function” (42a).

The Court specifically rejected the fairness standards set

out in the Third Circuit’s decision in Smith (44a), holding

that

[w]ithout precluding the possibility of some circum-

stances not now anticipated, we simply do not find in

the Due Process Clause a general requirement that

defense witness immunity must be ordered whenever

it seems fair to grant it. The essential fairness re-

quired by the Fifth Amendment guards the defendant

against overreaching by the prosecutor, . . . and insu-

lates him against prejudice. ... It does not create gen-

eral obligations for prosecutors or courts to obtain

evidence protected by lawful privileges.

(44a-45a; citations omitted)

The Court agreed that the District Court had properly

rejected the defense demand for‘immunity as “untimely”

and had correctly refused to order immunity based upon

its assessment of the proffered testimony as “cumulative,

immaterial, or impeaching only on collateral matters” (45a-

46a). It then held that “trial judges should summarily reject

claims for defense witness immunity whenever the witness

for whom immunity is sought is an actual or potential

target of prosecution,” setting the following standard for

all cases:

No hearing should be held to establish such status.

The prosecutor need only show that the witness has

been indicted or present to the court im camera an

ex parte affidavit setting forth the circumstances that

support the prosecutor’s suspicion of the witness’s

criminal activity. No duty is imposed upon the prose-

cutor; he simply has an option to rely upon the wit-

ness’s status as an actual or potential target of prose-

cution to foreclose any inquiry concerning immunity

for that witness. If a case should arise where the

witness is not an indicted defendant and the prose-

cutor cannot or prefers not to present any claim that

the witness is a potential defendant, and if the de-

fendant on trial demonstrates that the witness’s testi-

mony will clearly be material, exculpatory, and not

cumulative, it will be time enough to decide whether

in those circumstances a court has any proper role

with respect to defense witness immunity.

(47a)*

REASONS FOR GRANTING THE WRIT

The Standard Established by the Court of Appeals for

Evaluating Selective Exercise of the Immunity Power

Undermines Critical Fifth and Sixth Amendment Rights

Without Regard to the Circumstances of a Particular

Case or the Judiciary’s Role in Safeguarding Those

Rights in a Proceeding Premised Upon the Search for

Truth.

1. The Sweeping Standard Prescribed in Turkish Impairs the

Ability of the Judiciary to Guarantee a Fair Trial

The District Court’s carefully tailored decision below

was entirely consistent with the historical role of the

judiciary in our tripartite governmental system. The in-

terdependence of the three branches necessary to a work-

able government has been repeatedly recognized by this

Court.** That executive branch functions may be affected

by judicial action in aid of basic constitutional guarantees

* Judge Lumbard, concurring and dissenting in part, rejected

the suggestion that a trial court could ever inquire into the “pro-

priety’” of the Government’s refusal to confer immunity (48a),

and concluded that the district court should be “prohibited” from

entertaining or inquiring into its possible grant (51a).

** F.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

635 (1952) (Jackson, J., concurring) ; Buckley v. Valeo, 424 U.S.

1, 120-123 (1976) ; Hampton & Co. v. United States, 276 U.S. 394,

406 (1928); Myers v. United States, 272 U.S. 52, 293 (1926)

(Brandeis, J., dissenting).

has not been held to deprive a court of power to determine

whether due process principles are satisfied in a particular

trial. In United States v. Nixon, 418 U.S. 683, 707 (1974)

this Court clearly reaffirmed “the primary duty of the

Judicial Branch to do justice in criminal prosecutions”:

Our system of Government “requires that federal

courts on occasion interpret the constitution in a

manner at variance with the construction given the

document by another branch.” Powell v. McCormack

[395 U.S. 486 (1969) ].

(Id. at 704)

In rejecting the claim that executive privilege precluded

production of otherwise relevant evidence in a criminal

proceeding, this Court carefully described the Fifth and

Sixth Amendment underpinnings of the adversary system’s

quest for the truth:

The right to the production of all evidence at a crim-

inal trial similarly has constitutional dimensions. The

Sixth Amendment explicitly confers upon every de-

fendant in a criminal trial the right “to be confronted

with the witnesses against him” and “to have compul-

sory process for obtaining witnesses in his favor.”

Moreover, the Fifth Amendment also guarantees that

no person shall be deprived of liberty without due

process of law. It is the manifest duty of the courts

to vindicate those guarantees, and to accomplish that

it is essential that all relevant and admissible evi-

dence be produced.

(Id. at 711)*

* This Court’s concern over sweeping limitations upon the abil-

ity to present all relevant facts within the boundaries of eviden-

tiary rules is repeated throughout the Nixon decision: “The ends

of criminal justice would be defeated if judgments were to be

founded on a partial or speculative presentation of the facts,” Jd.

at 709. “The allowance of the privilege to withhold evidence that

The District Court’s careful assessment that the unique

circumstances before it had impermissibly placed in jeop-

ardy petitioner’s constitutional rights fell squarely within

the critical judicial role long upheld by this Court. The

standard articulated in Turkish and imposed below, how-

ever, unduly restricts that role and thus diminishes the

system’s ability to arrive at the truth in criminal pro-

ceedings.

2. No Prior Decision on the Issue of Defense Witness Immu-

nity Has So Completely Foreclosed Judicial Due Process

Inquiries

The Turkish court did not need to set the sweeping

standard it did in affirming the District Court’s denial of

immunity (45a-47a). In deciding to enunciate a rule of

wide application to all defense witness immunity requests,

the Court reviewed the history of the issue and its resolu-

tion by the Courts,* but then adopted an inflexible approach

neither required by nor consistent with those precedents.

The Turkish court made only a passing reference to the

statement of the Chief Justice, then a Cireuit Judge, in

Earl v. United States, 361 F.2d 531 (D.C. Cir. 1966), cert.

denied, 388 U.S. 921 (1967) (32a), an opinion character-

ized by the District Court herein as “seminal” on the

issue of whether a due process claim may arise from the

Government’s selective exercise of the immunity power

(20a). There, the Chief Justice had noted:

We might have quite different, and more difficult,

problems had the Government in this case secured

is demonstrably relevant in a criminal trial would cut deeply into

the guarantee of due process of law and gravely impair the basic

function of the courts,” Jd. at 712.

* The Turkish court acknowledged that “the Commentators have

generally been favorable to the notion of reverse immunity” (32a,

nl).

testimony from one eyewitness by granting him im-

munity while declining to seek an immunity grant

for Scott to free him from possible incrimination to

testify for Earl. That situation would vividly dram-

atize an argument on behalf of Earl that the statute

as applied denied him due process. Arguments could

be advanced that in the particular case the Govern-

ment could not use the immunity statute for its ad-

vantage unless Congress made the same mechanism

available to the accused. ...

(Id, at 534, n.1)*

As the Courts considered particular defense immunity

claims following Earl, certain well-defined criteria emerged

to govern the evaluation of due process demands. The ap-

plication of these criteria to claims for defense witness

immunity resulted in rejection of virtually every claim but

still recognized that due process required a careful factual

inquiry. Requested immunity was rejected because it was

not timely or clearly made [e.g., United States v. LaDuca,

447 F.Supp. 779, 785, 789 (D.N.J.), aff'd on other grounds

sub nom. United States v. Rocco, 587 F.2d 144 (3d Cir.

1978), United States v. Bautista, 509 F.2d 675 (9th Cir.),

cert. denied, 421 U.S. 976 (1975)]; because the proffered

testimony was cumulative [e.g., United States v. Alessio,

528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948 (1976) ];

or not material or probative [e.g., United States v. Wright,

588 F.2d 31, 35 (2d Cir. 1978), cert. denied, 440 U.S. 917

(1979)]; or not sufficiently exculpatory to raise due process

concerns [e.g., United States v, Gleason, 616 F.2d 2, 27-28

(2d Cir. 1979), cert. denied, U.S. ——, 100 S.Ct. 1320

*The immunity statute before the Zarl Court was superceded

in 1970 by the Immunity Act subsequently upheld in Kastigar v.

United States, supra, a change which eliminated fears that broad

transactional immunity would be required for proposed defense

witnesses rather than the far more limited use immunity sought

below (See 32a-33a).

(1980), United States v. Lenz, 616 F.2d 960, 963-964 (6th

Cir. 1980)]; or speculative [e.g., United States v. Carmon,

577 F.2d 556, 561 (9th Cir. 1978)]; or because the Govern-

ment had not immunized its own witnesses [e.g., United

States v. Lang, 589 F.2d 92 (2d Cir. 1978), United States v.

Jenkins, 470 F.2d 1061 (9th Cir. 1972)]; or the willingness

of the witness to appear was uncertain [e.g., United States

v. Wright, supra, United States v. Lenz, supra]; or because

the Court considered the request to immunize the witness

within the context of judicial power under the immunity

statutes rather than within due process parameters [e.g.,

United States v. Housand, 550 F.2d 818, 824 (2d Cir.),

cert. denied, 431 U.S. 970 (1977), Earl v. United States,

supra; United States v. Smith, 542 F.2d 711, 715 (7th

Cir. 1976), Thompson v. Garrison, 516 F.2d 986, 988 (4th

Cir. 1975)]. Several decisions specifically recognized that

important Fifth and Sixth Amendments concerns were im-

plicated by the manner in which the immunity power was

exercised in the particular case at hand. United States

v. Herman, 589 F.2d 1191, 1203-1205 (3rd Cir. 1978), cert.

denied, 441 U.S. 913 (1979) ; United States v. Alessio, supra,

528 F.2d at 1081-1082; United States v. Bautista, supra,

509 F.2d at 677; United States v. Jenkins, supra, 470 F.2d

at 1064.

In Herman, the Third Circuit explicitly held that proof

of prosecutorial decisions “made with the deliberate in-

tention of distorting the judicial fact finding process”

justified an exercise of the court’s “inherent remedial

power” to redress the distortion through an immunity

grant, 589 F.2d at 1204. The Herman court suggested that

this inherent power permitted it to “effectuate the defen-

dant’s compulsory process right” where the testimony

sought was “essential to an effective defense”, but de-

clined to set specific standards in that case, 7d. at 1204-

1205. Subsequently, in Government of the Virgin Islands

v. Smith, supra, the Cireuit found such remedial powers

appropriate:

[T]he need for “judicial” immunity is triggered, not

by prosecutorial misconduct or intentional distortion

of the trial process, but by the fact that the defendant

is prevented from presenting exculpatory evidence

which is crucial to his case.

(615 F.2d at 969)

The Court adopted careful standards against which to

measure the validity of the immunity claim:

[Blefore a court can grant immunity to a defense

witness, it must be clear that an application has been

made to the district court naming the proposed wit-

ness and specifying the particulars of the witness’

testimony. In addition, the witness must be available

and the defendant must make a convincing showing

sufficient to satisfy the court that the testimony which

will be forthcoming is both clearly exculpatory and

essential to the defendant’s case. Immunity will be

denied if the proffered testimony is found to be am-

biguous, not clearly exculpatory, cumulative or if it

is found to relate only to the credibility of the govern-

ment’s witness. Once the court determines that the

defendant has satisfied this threshold burden, the

focus then shifts to consideration of the state’s coun-

tervailing interest, if any.*

(615 F.2d at 972-973)

*In direct contrast to the Turkish ruling below, the Third Cir-

cuit held that the Government’s “legitimate interest in prosecuting

the very witnesses whom the defendant seeks to immunize’ does

“not mean that no accommodation can be reached between the gov-

ernment’s interest as prosecutor and the defendant’s constitutional

right to present an effective and entire case.” Noting several “op-

These clear and specific guidelines, which coincide with

the findings of the District Court below, are consistent

with the demands of due process. The Turkish decision,

however, removes such matters from judicial scrutiny and

response and precludes any inquiry once the Government

states that the proposed defense witness is under investi-

gation.*

3. The Decisions Below Create a Substantial Risk of Incon-

sistent Adjudications of Critical Due Process Rights

The Turkish rule not only removes a critical due process

issue from judicial review, but does so in a manner in

direct conflict with the rule now governing trials in the

Third Cireuit when the identical issue arises. The Turkish

panel conceded that their pronouncement and underlying

analysis was in “fundamental disagreement” with the Third

Circuit’s decision in Smith (44a). Thus, for example, were

Judge Sweet’s decision under consideration by the Third

Circuit, Smith provides ample basis for affirming that

decision. Relying upon Turkish, however, the panel below

remanded with the suggestion that the conviction be re-

instated. Particularly in the area of criminal law, such a

dramatic conflict between the Circuits creates confusion,

tions” which could permit preservation of the Government’s in-

terest, including “postponement of the defendant’s trial so that it

may complete its investigation of the defense witness,” the Court

held that availability of any such options would eliminate any

“significant interests which countervail the defendant’s due process

rights.” 615 F.2d at 973.

*The Turkish court noted that “precise facts” concerning wit-

ness immunity requests varied (36a). Rather than articulate a

set of standards for determining such claims, however, the Court

instead vested the Government with the power to remove from the

courts the right to make constitutional determinations based upon

the particular facts by merely bringing the proposed defense wit-

ness within an investigation of suspected criminal activity.

disaffection, and lack of faith in the fundamental fairness

of our judicial system.*

The conflict now existing between the Second and Third

Circuits goes directly to the heart of fundamental Fifth

and Sixth Amendment rights. In Smith, the Third Cireuit

found due process interests directly implicated by the

defense witness immunity issue, holding this Court’s prior

decisions in Chambers v. Mississippi, 410 U.S. 284 (1973),

Gideon v. Wainwright, 372 U.S. 335 (1963) ; Brady v. Mary-

land, 373 U.S. 83 (1963), and Roviaro v. United States,

353 U.S. 53 (1957) to mandate affirmative efforts by the

judiciary to ensure the guarantee of a fair trial to defen-

dants; including the “right to present an effective defense”.

615 F.2d at 970-973. The Court noted this Court’s recog-

nition in Williams v. Florida, 399 U.S. 78, 82 (1970) that

the essential task of a criminal tria] is to search for

truth, and that this search is not furthered by rules

which turn the trial into a mere “poker game” to be

won by the most skilled tactician.

(Id. at 971)

Although the District Court below recognized these con-

stitutional principles in ordering a new trial for petitioner,

the Second Circuit rejected them as properly governing

the issue, while acknowledging that a “plausible basis”

for granting defense witness immunity might be found in

* This Court has frequently recognized the importance of grant-

ing certiorari to resolve Circuit Court conflicts on constitutional

issues or “troublesome question[s] in the administration of justice.”

See, e.g. Fuller v. Oregon, 417 U.S. 40, 42 (1974); Linkletter

v. Walker, 381 U.S 618, 620 (1965). As Mr. Justice White ob-

served in Masri v. United States, 434 U.S. 907 (1977) (dissenting

from denial of certiorari): “This Court should grant certiorar’ in

such eases as this, where a defendant’s rights would be notably

different depending upon the Circuit in which he is tried, and

where a record affords a clear opportunity to address the question

in conflict.”

the Due Process Clause (37a), and that the “need to

pursue the truth” provided “somewhat greater force” for

such a grant (38a). The Turkish court ruled that asser-

tion of lawful privileges had always meant that the search

for truth “failed of full realization” (39a),* and declined

to find support in this Court’s prior constructions of due

process demands to ensure as full a realization as possible

of the truth.

As a result of the decisions below, the parameters of a

defendant’s due process rights now have a completely

different scope in the Third Circuit than they do in the

Second Circuit.**

4. The Turkish Standard Permits Even Intentional Depriva-

tions of Due Process to Escape Judicial Review

Even where selective immunity decisions are determined

by bad faith on the part of the prosecution, Turkish fore-

closes inquiry into motive once the Government states that

the witness is a subject of an investigation.*** Although

* The Turkish view that the search for the truth has always been

impaired by lawful privileges which shielded important facts from

disclosure (39a) misses the point. Due process issues arise because

the Government has been able to override the Privilege to obtain

one version of the facts while refusing to allow the defendant to

similarly present another version of the facts. It is in this distorted

picture that the search for the truth is most seriously impaired,

particularly where the Government’s version rests on hearsay and

the precluded defense version is from alleged eyewitnesses.

** Similarly, while the Third Circuit in Smith found this Court’s

decision in Simmons v. United States, 390 U.S. 377, 394 (1968)

to directly support “an inherent judicial power to grant witness

immunity in order to vindicate constitutional rights”, 615 F.2d

at 971, the Second Circuit in Turkish specifically refused to con-

aa Simmons as precedent for defense witness immunity (42a,

n.4).

*** The Government argued below that due process considera-

tions could not apply to the defense witness immunity issue unless

the District Court below did not cite deliberate instances

of governmental misconduct with regard to Horwitz, it did

find that Horwitz had met, “on the peculiar facts of this

case,” the burden of proof suggested by United States v.

Herman, supra, 589 F.2d at 1204, that “the government’s

decisions were made with the deliberate intention of dis-

torting the judicial fact finding process” (22a, n.13).

The Turkish restriction upon “any inquiry concerning

immunity” thus removes from judicial scrutiny all con-

siderations of fundamental fairness as well as actual in-

stances of prosecutorial misconduct.

No duty is imposed upon the prosecutor; he simply

has an option to rely upon the witness’s status as an

actual or potential target of prosecution to foreclose

any inquiry concerning immunity for that witness.*

(47a)

prosecutorial bad faith was involved (Government’s Br. p. 28-29).

Although this contention is dramatically contradicted by this

Court’s holding in Brady v. Maryland, supra, 373 U.S. at 87, the

Turkish standard extends beyond this argument and permits even

deliberate, bad faith conduct by the Government to escape judicial

remediation.

*The Court left open a case “where the witness is not an in-

dicted defendant and the prosecutor cannot or prefers not to pre-

sent any claim that the witness is a potential defendant, and if the

defendant on trial demonstrates that the witness’s testimony will

clearly be material, exculpatory, and not cumulative” (Jd.). The

facts before the District Court below met every aspect of this open

area except the Government’s contention that, after more than

two and a half years, the two potential witnesses are still under

a “continuing investigation.” The Court’s restrictive approach ap-

pears to mean that a witness under governmental scrutiny for

suspected criminal activity unrelated to matters raised in the

pending trial would still be unable to testify under limited immu-

nity.

5. The Decision Below Alters Established

Rules of Appellate Review

The Court of Appeals held the District Court’s decision

below to be an appealable suppression order even though

no testimony was actually suppressed at the time of the

appeal.* 18 U.S.C. §3731 was construed “liberally” to in-

clude the purpose of “permitting the government to appeal

immediately from adverse pretrial rulings suppressing or

excluding evidence” (6a). The Court stated that

we do not think that the conditional nature of the

district court’s ruling, which raises the remote pros-

pect that suppression will not be ordered, necessarily

deprives this court of jurisdiction under section 3731

to hear the government’s appeal.

(7a)

The Court ultimately gave no weight to either the District

Court’s stated willingness to consider alternatives which

would preserve the integrity of the fact-finding process

without an outright immunity grant or to the possibility

of termination of the Government’s investigation of the

witnesses prior to trial (Pre Trial Tr. 3, 7).

The interpretation placed by the Court of Appeals upon

normal rules of appealability represents a further incursion

into the discretion of trial courts to supervise criminal

* Following its grant of a new trial to Horwitz, the District

Court held, at the Government’s request, a pre-trial conference.

While the Court stated that it would “in all probability” adhere

to its opinion and suppress the testimony if the Government sought

to introduce Brodsky’s testimony without immunizing Emmett and

Weiss, it also requested counsel to consider using the Grand Jury

testimony of Emmett and Weiss as an alternative to an immunity

grant. (Tr., Pre-Trial Proceedings, August 29, 1979, p.4, 7);

(Supplemental Appendix, S.A. 4, 7, Appellee’s Br. to Court of

Appeals) (hereafter “Pre-Trial Tr.”).

proceedings and does so at the cost of further burdening

appellate courts with appeals not previously thought ap-

propriate for interlocutory review.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JoNATHAN W. LuBELL

Mary K. O’MELveny

Coun, Guickste1n, Lurim, Ostrin,

Lusett & LuBe .

Attorneys for Petitioner

Appendix A

(Opinion of Court of Appeals, May 29, 1980)

UNITED STATES COURT OF APPEALS

For tHe Seconp CrrcvitT

No. 644—September Term 1979

(Argued January 23, 1980 Decided May 29, 1980.)

Docket No. 79-1343

Unirep States or AMERICA,

Appellant,

—against—

Leonarp Horwitz, a/k/a “The Fox,”

Defendant-A ppellee.

Before:

SmirH* and Ferrnserc, Circuit Judges,

and Owen, District Judge.**

Appeal from suppression order entered in the United

States District Court for the Southern District of New

York by Judge Robert W. Sweet.

Remanded.

*Pursuant to § 0.14 of the Rules of this Court, this appeal is ~

being determined by Judges Feinberg and Owen, who are in

agreement on this opinion. Judge Smith, who heard the argu-

ment, unfortunately died on February 16, 1980. Prior to his

death, he did not have the opportunity, however, to see this opinion.

** Honorable Richard Owen, District Judge of the Southern

District of New York, sitting by designation.

Appendia A

Scorr G. Campseiy, Assistant United States

Attorney, New York, N.Y. (Robert B.

Fiske, Jr., United States Attorney for the

Southern District of New York, Nathaniel

H. Akerman, Gregory L. Diskant, Assistant

United States Attorneys, of Counsel), for

Appellant.

JonatHan W. Luspeti, New York, N.Y. (Cohn,

Glickstein, Lurie, Ostrin, Lubell & Lubell,

New York, N.Y., Mary K. O’Melveny, of

Counsel), for Defendant-A ppellee.

Fernserc, Circuit Judge:

After a jury trial before Judge Robert W. Sweet in the

United States District Court for the Southern District of

New York, Leonard Horwitz was convicted on nine counts

of fraud in the sale of securities in violation of 18 U.S.C.

§§ 77q(a) and 77(x), one count of conspiracy to commit

securities fraud in violation of 18 U.S.C. § 371, and one

count of endeavoring to obstruct a grand jury investiga-

tion in violation of 18 U.S.C. § 1503. Following his convic-

tion, however, Horwitz moved for a new trial on the

ground that he had been denied due process by the

prosecutor’s refusal to grant use immunity to two defense

witnesses whose testimony allegedly would have excul-

pated Horwitz but who refused to testify on Fifth Amend-

ment grounds. Judge Sweet granted this motion and in-

dicated that at the new trial the testimony by the gov-

ernment’s immunized witness, Norman Brodsky, would

be suppressed unless the two defense witnesses were also

immunized, The government appeals from this order pur-

suant to 18 U.S.C. § 3731. For the reasons stated below,

Appendia A

we remand the case to the district court for reconsidera-

tion of its order.

Defendant Horwitz’s convictions stem from his partici-

pation in the fraudulent operation of the Westchester Pre-

mier Theatre (the Theatre), the details of which are set

forth at greater length in our related opinion in United

States v. Weisman, slip op. 2229 (2d Cir. Apr. 4, 1980).

At trial, the government relied primarily on the testimony

of three accomplice witnesses, Norman Brodsky, Bruce

Kosman and Charles Ross Carino, to prove that Horwitz

was guilty of the acts of securities fraud, conspiracy and

obstruction of justice alleged in the indictment. All three

witnesses had been involved in criminal acts relating to the

Theatre’s operations, but after being confronted with the

government’s evidence against them, had begun to co-

operate in the ongoing investigation of the Theatre in

return for various assurances of leniency. Brodsky, for

example, secretly tape-recorded numerous conversations

with Horwitz and his co-conspirators and served as the

government’s chief witness at trial in return for a grant

of complete transactional immunity from any criminal

liability arising out of his participation in the Theatre’s

affairs.

The most significant transaction testified to by the gov-

ernment’s witnesses involved a scheme by which Horwitz

and his co-defendant, Eliot H, Weisman, induced two ex-

ecutives of Warner Communications, Jay Emmett and Sol-

omon Weiss, to cause Warner to purchase $250,000 worth

of stock in the Theatre and to give the Theatre $50,000 in

return for which Emmett and Weiss received substantial

cash payoffs and promises of future secret payments from

Appendia A

the Theatre’s revenues. This testimony was supplied pri-

marily by Brodsky. To rebut it, Horwitz moved at the

close of the prosecution’s case during his first trial, which

ended in a mistrial, for a judicial grant of immunity to

Warner executives Emmett and Weiss on the ground that

their testimony would exculpate Horwitz. Alternatively,

Horwitz sought admission into evidence, pursuant to Fed-

eral Rule of Evidence 804(b)(5), of the testimony of

Emmett and Weiss given before the grand jury investigat-

ing the Theatre’s operations.! Without addressing the

immunity request, Judge Sweet denied the motion in an

opinion dated December 21, 1978, on the ground that the

“interests of justice” did not clearly require the admission

under Rule 804(b)(5) of the hearsay grand jury testimony

of Emmett and Weiss.

1 Rule 804(b)(5) provides in relevant part:

(b) Hearsay exceptions. The following are not excluded by

the hearsay rule if the declarant is unavailable as a witness:

(5) Other exceptions. A statement not specifically cov-

ered by any of the foregoing exceptions but having equiva-

lent circumstantial guarantees of trustworthiness, if the

court determines that (A) the statement is offered as evi-

dence of a material fact; (B) the statement is more pro-

bative on the point for which it is offered than any other

evidence which the proponent can procure through reason-

able efforts; and (C) the general purposes of these rules

and the interests of justice, will best be served by admis-

sion of the statement into evidence. However, a statement

may not be admitted under this exception unless the pro-

ponent of it makes known to the adverse party sufficiently

in advance of the trial or hearing to provide the adverse

party with a fair opportunity to prepare to meet it, his

intention to offer the statement and the particulars of it,

including the name and address of the declarant.

Appendix A

The first prosecution of Horwitz ended in a mistrial when

the jury was unable to reach a verdict. At the second trial,

Horwitz subpoenaed Emmett and Weiss, but both witnesses

refused to testify on Fifth Amendment grounds. The pros-

ecutor subsequently rejected a suggestion by the district

court that Emmett and Weiss be granted a limited use

immunity, noting that both executives were the subjects of

a continuing investigation. After the jury returned a ver-

dict of guilty on all counts charged, Horwitz moved for a

judgment of acquittal or a new trial, arguing, among other

things, that he had been denied a fair trial by the govern-

ment’s refusal to immunize Emmett and Weiss.

In a thoughtful opinion, Judge Sweet granted Horwitz’s

motion for a new trial. See United States v. DePalma, 476

F, Supp. 775 (S.D.N.Y. 1979). Although expressly rejecting

any contention that the prosecution had acted in bad faith,

the court concluded that “Horwitz was deprived of due

process of law because broad immunity was granted to

government witness Brodsky and, to a lesser extent, Kos-

man, while two witnesses to the events at issue sought to

be called by Horwitz were unavailable because of the gov-

ernment’s failure to grant them even limited use immnu-

nity.” Id, at 777. The court observed that a dismissal of

the indictment might be warranted to “eliminate the prej-

udice suffered by Horwitz” but nonetheless settled on the

less drastic remedy of granting Horwitz’s motion for a new

trial, with the condition that “upon such retrial Brodsky’s

testimony will be excluded unless the requested use immu-

nity is granted to Emmett and Weiss.” Id. at 782. It is

from this determination that the government now seeks to

appeal.

Appendia A

Before addressing the merits, we must first confront a

question of appealability. The government, obviously

aware that the grant of a new trial by itself is nonappeal-

able, see United States v. Alberti, 568 F.2d 617, 620-21 (2d

Cir. 1977) sought in its notice of appeal review by this

court of “that part [of Judge Sweet’s decision] suppressing

the testimony of government witness Norman Brodsky

because of the Government’s refusal to immunize defense

witnesses.” The government contends that we have juris-

diction to entertain the appeal under 18 U.S.C. § 3731,

which provides in pertinent part for interlocutory appel-

late review of “a decision or order of a district court sup-

pressing or excluding evidence . . . not made after the

defendant has been put in jeopardy ....” Appellee

Horwitz argues, however, that section 3731 is inapplica-

ble because he has not moved for, and the district court

has not granted, an order suppressing Brodsky’s testi-

mony at the third trial. Horwitz further suggests that

such an order may never issue if the government grants

use immunity to Emmett and Weiss, or consents to admis-

sion of their grand jury testimony at the third trial, or

terminates its investigation of the two executives, thereby

presumably enabling Emmett and Weiss to testify on behalf

of Horwitz.

While we recognize that Horwitz’s argument is a sub-

stantial one, we nonetheless conclude that this court has

jurisdiction under section 3731 to hear the government’s

appeal. That section expressly provides that its provisions

“shall be liberally construed to effectuate its purposes,”

and those purposes certainly include permitting the gov-

ernment to appeal immediately from adverse pretrial rul-

ings suppressing or excluding evidence, Given this broad

Appendiz A

mandate, we do not think that the conditional nature of

the district court’s ruling, which raises the remote pros-

pect that suppression will not be ordered, necessarily de-

prives this court of jurisdiction under section 3731 to hear

the government’s appeal. Indeed, similar arguments in

analogous situations have been rejected. See, e.g., United

States v. Cannone, 528 F.2d 296, 298 (2d Cir. 1975) (order

providing for exclusion of government witnesses’ testi-

mony if government did not disclose names and addresses

of witnesses to defense held appealable) ; United States v.

Battisti, 486 F.2d 961 (6th Cir. 1973) (same). Cf. United

States v. Beck, 483 F.2d 203 (3d Cir. 1973), cert. denied,

414 U.S. 1132 (1974) (district court reversal of conviction

and remand to magistrate held appealable because “prac-

tical effect” of order was to suppress evidence). We like-

wise conclude that the conditional form of the district

court’s suppression order will not necessarily deprive this

court of appellate jurisdiction under section 3731. Sub-

stance, not form, should determine the issue of appealabil-

ity in this context, and a careful examination of the pre-

cise facts is necessary.

The present case well illustrates the need for focusing

on the particular facts and the propriety of construing

section 3731 liberally. The government, in its briefs on

this appeal and before the district court in a pre-third trial

hearing, has steadfastly maintained that it will not im-

munize Emmett and Weiss at a third trial. In the same

pretrial hearing, moreover, Judge Sweet noted that if the

government sought to introduce Brodsky’s testimony

without immunizing the Warner executives, he would “in

all probability” follow his opinion and grant a defense

motion to suppress Broadsky’s testimony. And counsel for

Horwitz, of course, can be counted on to make such a

Appendia A

motion during the third trial, at which time this court will

no longer have jurisdiction to hear an appeal under section

3731. Thus, the government, the defense, and the district

court have embarked upon a collision course that will al-

most certainly result in the suppression of the Brodsky

testimony. And if the judge’s decision to suppress evi-

dence is incorrect and a judgment of acquittal results,

principles of double jeopardy will prevent a government

appeal, a situation which section 3731 was designed to

prevent. Under the circumstances, it would be an exercise

in pure formalism to hold that the district court’s order is

not appealable at this juncture. Accordingly, we turn to

the merits.

IIT

Prior to the argument of this appeal, another panel of

this court was faced with a reverse immunity claim sub-

stantially similar to that asserted by appellee Horwitz.

That panel, after the argument of this appeal, rejected the

reverse immunity claim before it. See United States v.

Turkish, slip op. —— (2d Cir. May 27, 1980). The appel-

lant in Turkish sought to overturn his conviction on the

ground that he was denied due process by the govern-

ment’s failure to grant use immunity to seventeen prospec-

tive defense witnesses who, according to appellant, would

otherwise refuse to testify. The panel, after an exhaustive

analysis of the concept of reverse immunity, concluded

that due process considerations of fairness seldom, if ever,

require immunization of potential defense witnesses. While

not ruling out the possibility that in some extreme situa-

tions the government’s refusal to grant use immunity to

defense witnesses might pose constitutional problems, the

panel held that “trial judges should summarily reject

Appendia A

claims for defense witness immunity whenever the witness

for whom immunity *s sought is an actual or potential

target of prosecution.” Id. at ——.’

The Turkish decision has thus significantly undercut the

analytical foundation upon which Judge Sweet’s grant of

a new trial to Horwitz and conditional suppression of

the Brodsky testimony were premised. On the record be-

fore us, it seems doubtful that this is one of those rare

situations in which the government’s refusal to immunize

a defendant’s witnesses raises serious due process consid-

erations. However, rather than determining ourselves

whether Horwitz’s claim has merit under the Turkish

standard, we remand the case to the district court for

reconsideration of its suppression order.

Although the suppression order must be reconsidered,

Horwitz has also been granted a new trial, and, as pre-

viously noted, we are without jurisdiction to review this

determination. See Alberti, supra, 568 F.2d at 617. How-

ever, we would be iess than candid if we failed to note that

the grant of a new trial was based solely on Horwitz’s

reverse immunity claim, and if that claim is determined

upon remand to be without merit, a new trial will no

longer serve any useful purpose. Moreover, it appears that

the district court shared this view. In his decision, Judge

Sweet noted that “a third trial should not be required

unless it is absolutely necessary” and that he took “some

comfort” from the fact that the government could appeal

the suppression of the Brodsky testimony prior to the

* Judge Lumbard filed a separate opinion in Turkish, concur-

ring in the result, but dissenting from that portion of the majority

opinion that implied “that under certain circumstances the dis-

trict court would be under the duty of inquiring into whether or

not the prosecution should grant use immunity to a prospective

defense witness.” Slip op. at ——.

10a

Appendia A

third trial. 476 F. Supp. at 782 & n.17. This language

suggests to us that the grant of a new trial was conditional

on the affirmance of the reverse immunity claim on ap-

peal. Accordingly, we remand the case to the district court

with the suggestion that if Horwitz’s reverse immunity

claim is found to be untenable in light of Turkish, the

district judge consider entering a judgment of conviction

upon the jury verdict as an alternative to a third trial.’

Case remanded for further proceedings consistent with

this opinion.

* Horwitz would, of course, have the right to appeal from such

a judgment.

lla

Appendix B

(Opinion of District Court)

UNITED STATES DISTRICT COURT

Sournern District or New York

78 Cr. 401 (RWS)

Aug. 15, 1979

Unitep Srares or AMERIOA,

Plaintiff,

Dr PaLMA, ET AL.,

Defendants.

OPINION

Sweer, District Judge.

After having been found guilty by jury verdict on all

counts with which he was charged,’ defendant Leonard

Horwitz (“Horwitz”) moved in timely fashion for a judg-

ment of acquittal pursuant to Rule 29, Fed.R.Crim.P. or,

in the alternative, for a new trial pursuant to Rule 33,

and for such other relief as might be found appropriate.

1The indictment charged Horwitz as follows: in Count One

he was alleged to have conducted the affairs of the Westchester

Premier Theatre (“the Theatre”) through a pattern of racketeer-

ing. In Count Two he was alleged to have conspired to violate

Federal securities laws with respect to the sale of stock of the

Theatre. In Counts Three through Eleven he was alleged to

have defrauded purchasers of Theatre stock. In Count Twenty-

four he was alleged to have endeavored to obstruct a Grand Jury

investigation.

12a

Appendix B

With the exception of that part of the application dealing

with the asserted denial of due process, Horwitz’s mo-

tions are denied because no significant authorities have

been suggested by Horwitz other than those previously

considered and ruled upon by the court in connection with

his prior motions.

Horwitz has asserted that he was denied due process of

law in that he did not receive a fair trial because of the

government’s selective exercise of its statutory immunity

power. In short, Horwitz claims that the government’s

broad conferral of transactional immunity on key witness

and co-conspirator Norman Brodsky (“Brosky”) was im-

proper in the face of its refusal to grant even a limited

use immunity® to potential witnesses Jay Emmett (“Em-

mett”) and Solomon Weiss (“Weiss”), whose testimony

would have tended to exculpate Horwitz had they not as-

serted their Fifth Amendment privilege against self in-

crimination.’ Horwitz is entitled to relief on this ground.

Although this is the first occasion on which this issue

has been presented in this context, the court has previously

* For definitions of use immunity and transactional immunity

see United States v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976)

and Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653,

32 L.Ed. 212 (1972). See also United States v. Rocco, 587 F.2d

144, 147 n. 9 (8d Cir. 1978).

’It is important to note what is not at issue here: that the

decision to grant immunity is ordinarily within the sole discre-

tion of the prosecutor, see United States v. Wright, 588 F.2d 31,

35 (2d Cir. 1978) ; that there is no obligation on the United States

Attorney to seek immunity for witnesses, see United States v. Lang,

589 F.2d 92, 96 (2d Cir. 1978); and that a district court has no

independent power to grant immunity to a witness whose testi-

mony a defendant may wish to offer, see e.g. United States vy.

Jenkins, 470 F.2d 1061, 1063 (9th Cir. 1973); In Re Daley, 549

F.2d 469, 479 (7th Cir. 1977).

13a

Appendix B

issued a written opinion dealing with related questions.

See opinion in this action dated December 21, 1978. At

the close of the prosecution’s case in the first trial (which

resulted in a mistrial when the jury was unable to agree

on a unarimous verdict) Horwitz moved for a judicial

grant of immunity to Emmett and Weiss or for admission

into evidence of Emmett and Weiss’ grand jury testimony

pursuant to Rule 804(b)(5), Fed.R.Evid. In its Decem-

ber 21, 1978 opinion the court denied that motion, noting

that it had to consider what was in the “interests of

justice,” and that one relevant factor was “the use by the

government of a grant of immunity to its witnesses and

its denial of such a grant to the witnesses sought to be

called by Horwitz.’ December 21, 1978 opinion at 2.4 At

the second trial, Horwitz subpoenaed Emmett and Weiss,

who took the stand and on the advice of counsel, invoked

their Fifth Amendment privilege. The court inquired of

the prosecution whether it would be willing to grant a

limited use immunity to Emmett and Weiss on the condi-

tion that their testimony be confined to matters highly

relevant to material issues. The prosecutor responded in

the negative, stating that both witnesses were the subject

of a continuing investigation. ,

‘In the cited opinion the court denied, sub silentio, Horwitz’s

motion for a judicial grant of immunity to Emmett and Weiss

on the ground that it lacked the power to do so, For authorities

supporting this conclusion see footnote 3 hereof. The ‘court also

denied Horwitz’s motion that Emmett and Weiss’ grand jury

testimony, which was hearsay, be admitted into evidence pursuant

to Rule 804(b) (5), Fed.R.Evid. The basis for this latter decision

was that “[{t]he complicated interplay of rights, those of the

Government, of the defendant Horwitz, and the witnesses who

now claim their Fifth Amendment privilege, do not permit a clear

enunciation of the interests of justice sufficient to involve the

exception of Rule 804(b)(5).” December 21, 1978 opinion at 3.

14a

Appendix B

Horwitz and his co-defendants have, throughout both

trials, set forth a number of instances of alleged prose-

cutorial misconduct other than the government’s selective

exercise of its immunity power. Indeed, certain admis-

sions of the defendant Eliot Weisman (“Weisman”) were

suppressed after an improper arrest. As far as Horwitz

was concerned, however, the circumstances relating to his

arrest and grand jury testimony, the use of Brodsky as

a government agent to entrap him, and the publicity given

to Emmett’s and Weiss’ exercise of their privilege, as de-

scribed above, were all matters which, even collectively,

neither rise to the level of prosecutorial misconduct suffi-

cient to provide a ground for the relief herein granted

nor compel a finding that the prosecutor acted in bad faith

or with a bad intent with respect to Horwitz.°

Horwitz was deprived of the due process of law because

broad immunity was granted to government witness, Brod-

sky and, to a lesser extent, Kosman,® while two witnesses

’ Furthermore, no finding of bad faith or intent on the part of

the prosecutor is made by the court in connection with the dis-

position of this motion.

6 Although Kosman testified that he thought he had received

immunity (see text following footnote 10), this is contradicted

by a letter to the court from Assistant United States Attorney

Akerman, dated July 9, 1979. This letter indicates that Kosman

“received leniency, not immunity, in the form of a plea to a

three year felony.” The underlying agreement referred to by Mr.

Akerman is reflected in a letter dated June 22, 1978 from Mr.

Akerman to John Doyle, Esq. (part of the “3500 material” with

respect to Kosman). Kosman’s testimony indicates that, at least

in his own mind, Kosman thought he was testifying pursuant to

an immunity grant. Even assuming that Kosman was incorrect

in his belief, what is important for present purposes is that the

testimony by Kosman was given while he thought immunity had

been provided, primarily because that belief may have colored

Kosman’s testimony.

15a

Appendix B

to the events at issue sought to be called by Horwitz were

unavailable because of the government’s failure to grant

them even limited use immunity.

As indicated in the court’s December 21, 1978 opinion,

the principal evidence against Horwitz was provided by

Brodsky and Kosman.’? As discussed more fully below,

both Brodksy and Kosman were granted immunity,’ and

and the major thrust of their testimony against Horwitz

was that Horwitz stated that he had paid money to Em-

mett and Weiss to induce them to cause Warner Com-

munications, Ine. (“Warner”) to purchase shares of stock

in the Westchester Premier Theatre (“the Theatre”) an

inducement which was concealed from the investing public.

The unfairness stemming from the government’s refusal

to grant even a limited use immunity to Emmett and

Weiss is brought into relief by reviewing the evidence

"For a discussion of the evidence provided by Carino, see text,

supra. The evidence against Horwitz brought out by Carino,

aside from that provided through Brodsky and Kosman, may not

have been sufficient to survive Horwitz’s motion pursuant to Rule

29, Fed.R.Crim.P. which was made at the close of the govern-

ment’s case. At any rate, Carino testified that one reason why he

decided to cooperate with the federal authorities was “to try to

reduce my jail sentence in Virginia and New Jersey.” (Transcript

at 1090). Part of Carino’s plea arrangement was a promise by

the government that Carino would not receive more than five

years in jail for charges that he was pleading guilty to in New

Jersey. Carino testified that he has “no immunity from any

crimes that I divulge that come out in this case or any other

ease,” but part of his plea agreement was “that the government

will let it be known to anyone that I wish the extent of my

cooperation ...” (Transcript at 1091). Thus, although Carino

received no immunity for testifying, his testimony was, at least

in part, induced by an expectation of some assistance by the

government in ameliorating his sentence.

8 See footnote 6.

l6a

Appendix B

against Horwitz and the government’s grant of immunity

to its own witnesses.

Brodsky testified that Horwitz was present at a meeting

with Ferkoff and Roggen at which $220,000 in cash was

presented in a black attache case. The cash was then used,

according to Brodsky, to purchase stock in the public offer-

ing to enable the Theatre to reach the required minimum

of subscriptions to complete the public offering. Brodsky

also said that Weisman had told him that Horwitz had

contacts at Warner, namely Emmett and Weiss, and that

Warner’s purchase of Theatre stock during the public offer-

ing was related to a $50,000 payoff to those Warner con-

tacts.

According to Brodsky, a complicated set of transactions,

briefly here described, involving Horwitz and Warner took

place subsequent to the public offering by the Theatre:

sometime after June 14, 1973, Horwitz negotiated a trans-

action which resulted in Warner’s purchase of 20,000 shares

of Theatre stock in the aftermarket. Horwitz stated that

that transaction called for Warner to buy the 20,000 shares

at $5 per share and to make an additional $50,000 payment

by means of checks. Horwitz allegedly told Brodsky that

a problem had arisen in connection with deciding to whose

order such Warner checks should be drawn. Brodsky tes-

tified that Horwitz told him that it was decided that Warner

would pay the $50,000 as follows: (1) a $10,000 check would

be made payable to Horwitz; (2) a $10,000 check would be

made payable to Kosman or to someone else; and (3) a

$30,000 check would be made payable to the Theatre. Re-

garding the $30,000 check, however, Brodsky testified that

Horwitz and he (Brodsky), and possibly Weisman, sub-

sequently decided that it should be made payable to Dennis

Konner (Brodsky’s law partner) and that in that connec-

17a

Appendix B

tion a bill would be submitted by Konner to Warner. Hor-

witz allegedly also told Brodsky that in return for causing

Warner to purchase the 20,000 shares in the aftermarket,

Emmett wanted $20,000 in cash, and Emmett and Weiss

wanted additional money to be paid to them at a later date.

According to Brodsky, when Horwitz related that the War-

ner officials wanted the $20,000, Brodsky overdrew his

checking account, put the cash in a paper bag, and gave

it to Horwitz. The government placed in evidence the

checks allegedly cashed by Brodsky in this connection.

Brodsky further testified that when he first discussed

the Warner transactions with the government, he mis-

takenly said that he had been present when Weisman gave

Horwitz $50,000 in connection with Warner’s original pur-

chase of Theatre stock. Brodsky’s recollection was re-

freshed, so he said, by his viewing certain documents shown

to him by the government. Until he saw those documents

he had only a hazy recollection of the transaction.

There was also testimony by Brodsky with respect to

a request by Horwitz that Brodsky give to Aaron Gottes-

man $7,500 of a $15,000 debt owed by Brodsky to Horwitz.°

Other evidence against Horwitz with respect to the se-

curities counts was provided by Kosman, who worked at

the Theatre with Horwitz in group and corporate sales.

Kosman testified that Horwitz had told him in 1973 that

he (Horwitz) had taken an active role at the Theatre and

he (Horwitz) had friends and associates—including Em-

mett, Gottesman, and others—who bought Theatre stock

®*The Indictment charged that Gottesman was involved in the

securities violations by Horwitz and his co-defendants and that

Gottesman received from Horwitz the check for $7,500 in connec-

tion with a prior arrangement pursuant to which Gottesman pur-

chased 1,000 shares of Theatre stock for $7,500 during the public

offering.

18a

Appendix B

during the public offering. Kosman also gave testimony

which tended to corroborate Brodsky’s testimony concern-

ing purchases of Theatre stock by Warner in the after-

market. Kosman also testified that Horwitz had told him

that because Malcolm Tarloff, a Connecticut insurance

agent, had purchased Theatre stock’ during the public offer-

ing, he would be given an opportunity to sell a life insur-

ance policy on Weisman’s life. Finally, Kosman testified

about a conversation he had with Horwitz after the public

offering, wherein Horwitz stated that he was nervous about

Harry Lipsig, who hadn’t received certain additional

Theatre stock which he had been promised, according to

the government at the time of the public offering.

Other evidence against Horwitz on the securities and

securities conspiracy counts consisted of (i) testimony by

Ross Carino (“Carino”) about a conversation, which took

place in an automobile in which Horwitz told Carino that

he was on his way to an appointment with a Warner official,

and that Emmett would probably get involved in having

Warner purchase Theatre stock because Emmett needed

money; (ii) statements made by Horwitz and recorded by

Brodsky; and (iii) certain documents, such as a July 3,

1973 check for $20,000 drawn by Warner and payable to

Horwitz.

With respect to the obstruction of justice count, the

principal evidence against Horwitz consisted of testimony

by Brodsky and tape recordings made by Brodsky. Kos-

man also testified on the subject as a government witness.

Brodsky testified that in addition to recording his con-

versations with Horwitz he met with Horwitz at Weis-

man’s suggestion in the fall of 1977 and that Horwitz said

that it wasn’t his (Horwitz’s) piace to question Emmett

and Weiss’s actions in connection with the grand jury in-

19a

Appendix B

vestigation, and that they should keep in close contact so

that they could get together on their grand jury stories if

something were to happen.

The broad transactional immunity granted to Brodsky,

including all crimes which he had committed, whether or

not known to the government at the time of the grant, was

such that he was induced to become not only a government

witness, but also to be an active government agent who

taped statements made by Horwitz. Brodsky testified that

the government had informed him that in order to secure

immunity he would have to wear a body recorder and

secure certain evidence while functioning as a government

agent. In Brodsky’s words, “The government told me that

they would need to get Warner Communications and their

executives, and after I told them the story about the pay-

offs to Warner, they wanted me to be wired to induce

Mr. Horwitz to tell me the stories about Warner Com-

munications.” (Transcript at 2182). Brodsky added that,

of the Warner executives mentioned by the government, the

focus “was mostly Jay Emmett.” (Transcript at 2183). As

a result of these conversations with the government, Brod-

sky testified he believed that in order to be immunized he

would have to tape a conversation of Horwitz describing

“what happened with the executives at Warner Communi-

cations... .” (Transcript at 2183). Brodsky was “willing

to go to any lengths to do it.” Id. Brodsky’s incentive for

going “to any lengths” became apparent when he was asked

on cross examination if the jail terms to which he was

exposed by past crimes “could encompass at least a couple

of hundred years in jail?”, and he replied: “Probably a

couple of thousand.” (Transcript at 2116).

The plea agreement apparently granted to Kosman was

not quite as broad as the immunity given to Brodsky, but

20a

Appendix B

was still significant. Kosman testified that although he was

not clear on its precise contours, he did not expect to be

prosecuted based on information given in this courtroom,

that he would not be prosecuted for crimes relating to the

Westchester Premier Theatre, and that the prosecutor

would inform the sentencing judge (in an unrelated pros-

ecution) of his cooperation here. (Transcript at 2673, et

seq. and 2727, et seq.).'®

A review of the grand jury testimony of Emmett and

Weiss,’ for example at pages 31, 32, 87, 98 and 117, and

of a December 10, 1978 affidavit submitted by Horwitz’s

counsel demonstrates that their testimony would have been

probative and not cumulative. Cf. United States v. Alessio,

528 F.2d 1079, 1082 (9th Cir.), cert. denied, 426 U.S. 948,

96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976) (defendant not denied

a fair trial where testimony sought by defendant would

have been cumulative).

Both the government and Horwitz agree that the seminal

opinion on this issue is Earl v, United States, 124 U.S.

App.D.C. 77, 361 F.2d 531 (D.C. Cir. 1966), cert. denied,

388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967), wherein

the Chief Justice Warren Burger, then a circuit judge,

remarked in a footnote:

We might have quite different, and more difficult, prob-

lems had the Government in this case secured testi-

mony from one eyewitness by granting him immunity

while declining to seek an immunity grant for Scott

to free him from possible incrimination to testify for

10 See footnote 6 and text accompanying that footnote.

11 The court reviewed the transcript of this grand jury testi-

mony in camera subsequent to the court’s sua sponte request that

Assistant United States Attorney Akerman make it available.

21a

Appendix B

Earl. That situation would vividly dramatize an argu-

ment on behalf of Earl that the statute as applied

denied him due process. Arguments could be advanced

that in the particular case the Government could not

use the immunity statute for its advantage unless Con-

gress made the same mechanism available to the ac-

cused. ...:

Id. at 534 n. 1. The question posed by the Earl court in

the above-quoted footnote was raised only hypothetically

because the government had not granted immunity to any

of its own witnesses,

The Court of Appeals for the Second Circuit has twice

referred to the quoted footnote in Earl but has not yet

been presented with the issue on facts similar to those here.

In United States v. Lang, 589 F.2d 92 (2d Cir. 1978), the

court stated that it did not reach the issue because “as in

Earl, we have no such problem since the Government did

not offer immunity to any witness.” Jd. at 96, n. 1. In

United States v. Wright, 588 F.2d 31 (2d Cir. 1978) the

Court of Appeals stated: “we do not find it necessary to

decide under what circumstances, if any, due process would

require the government to confer use immunity on a wit-

ness at the request of a defendant.” Id. at 35. (Footnote

omitted). In Wright the Second Circuit did not feel com-

pelled to decide “whether the failure to grant immunity

denied [defendant] a fair trial,” because the defendant

“failed to subpoena [the potential witness]” and did not

prove “any need for use immunity.” Wright, 588 F.2d at

36. Unlike Lang, the government here did offer immunity

to its own witnesses. Unlike Wright, the defendant here

did subpoena the potential witnesses, did show the need

for use immunity, and did call Emmett and Weiss to the

22a

Appendix B

stand so as to make certain that they would assert their

right against self-incrimination,

The Second Circuit, in Wright, noted that other courts

which have addressed the issue here presented have

“reached a variety of results.” 588 F.2d at 35 n.3. For

example, the Court of Appeals for the Ninth Circuit has

suggested that when the government relies on the testi-

mony of immunized witnesses, fundamental fairness may

require a grant of immunity for defense witnesses, Alessio,

supra, 528 F.2d at 1081-82.%% See also United States v.

Bautista, 509 F.2d 675, 677 (9th Cir. 1975); United States

v. Jenkins, 470 F.2d 1061, 1064 (9th Cir. 1972). The Court

of Appeals for the Third Circuit has recently indicated

that a conviction may be overturned on the ground asserted

by Horwitz, although the court indicated that the eviden-

tiary showing required in order for a court to reach that

result must be “substantial.” United States v. Herman,

589 F.2d 1191, 1204 (3d Cir. 1978).1° See also United States

v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976) (distinguish-

12 The Alessio court remarked:

Of course, whatever power the government possesses may not

be exercised in a manner which denies the defendant the due

process guaranteed by the Fifth Amendment. The footnote

in Earl v. United States, supra, on which appellant relies

heavily says no more than this. The key question, then, is

whether appellant was denied a fair trial because of the

government’s refusal to seek immunity for defense witnesses.

528 F.2d at 1082.

18 The Third Circuit went on to state: “The defendant must be

prepared to show that the government’s decisions were made with

the deliberate intention of distorting the judicial fact finding

process.” Herman, 589 F.2d at 1204 (citations omitted). This

court expresses no view concerning the general standard to be

applied in determining whether a defendant has met his burden

in asserting a claim on the ground discussed in this opinion. On

the peculiar facts of this case, however, the court concludes that

such burden has been met by Horwitz.

23a

Appendix B

able from the instant case because of the presence of pros-

ecutorial misconduct independent of the failure to grant

immunity) ; United States v. LaDuca, 447 F.Supp. 779, 786-

87 (D.N.J.) (Stern, J.), aff'd. sub nom. United States v.

Rocco, 587 F.2d 144 (3d Cir. 1978).

[1,2] Central to the issue here presented is the question

of what obligation is placed upon the government in con-

nection with the search for truth in a criminal proceeding.

While the government need not in every circumstance grant

immunity to potential defense witnesses, here, where the

foundation of the government’s case against Horwitz was

built by means of a far-reaching immunity grant, and where

the evidence sought by the defense is affected by the gov-

ernment’s continuing investigation of the potential defense

witnesses, the denial of limited use immunity resulted in

an unfair trial.

The issue of appropriate relief is, however, as trouble-

some as the constitutional issue already discussed. The

alternatives to be considered in light of United States v.

Brown, 602 F.2d 1073 (2d Cir. 1979), and other authorities

are: (1) dismissal of the indictment™* or (2) a retrial

excluding the Brodsky testimony unless the government

grants Emmett and Weiss the requested use immunity."

14 One issue that does not. raise a problem, however, is double

jeopardy. The decision to dismiss an indictment can be reviewed,

see United States v. Wilson, 420 U.S. 332, 352-53, 95 S.Ct. 1013,

43 L.Ed.2d 232 (1975), because if it is found that the govern-

ment’s actions were not violative of defendant’s due process rights,

the earlier verdict can be reinstated. Since such an order would

not subject defendant to a second trial for the same offense,

there would be no double jeopardy.

18 Horwitz’s motion for acquittal under Rule 29, Fed.R.Crim.P.,

must be denied. Upon a motion for acquittal, if there is no evi-

dence upon which a reasonable mind might fairly find guilt be-

yond a reasonable doubt, the motion must be granted. United

24a

Appendix B

[3] Dismissal of an indictment “must be reserved for ex-

tremely rare cases.” United States v. Broward, 594 F.2d

345, 351 (2d Cir. 1979). The remedy is justified:

in order to achieve one or both of two objectives: first,

to eliminate prejudice to a defendant in a criminal

prosecution; second, to “help to translate the assur-

ances of the United States Attorneys into consistent

performances by their assistants.”

United States v. Fields, 592 F.2d 638, 647 (2d Cir. 1978),

cert. denied, U.S. ——, 99 S.Ct. 2838, 61 L.Ed.2d 284

(1979).

Dismissal of the indictment here would seem to satisfy

the first of these objectives. The prejudice resulting to the

defendant from the prosecutor’s selective grant of im-

munity has been described. Moreover, this is not the type

of situation recently considered in United States v. Brown,

supra, in which “the most that can be said in support of

the dismissal of the indictment... is that the government’s

case against Brown was suprisingly weak.” at 1077. Rather,

because of the manner in which immunity was granted,

Horwitz was deprived of his due process rights, including

his right to put any witness on the stand who was “capable

of testifying to events that he had personally observed,

and whose testimony would have been relevant and ma-

terial to the defense.” Washington v. Texas, 388 U.S. 14,

23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1919 (1967).**

States v. DeGarces, 518 F.2d 1156, 1159 (2d Cir. 1975); United

States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972). A review of

the evidence reveals that in this case, a reasonable mind could

conclude that Horwitz is guilty beyond a reasonable doubt and,

of course, the jury did so conclude.

* This necessarily includes the right to have witnesses testify

regarding the absence of certain occurrences.

25a

Appendix B

As noted, the dismissal of the indictment also might be

used to deter a pattern of official misconduct but there has

been no showing of any pattern outside of the confines

of this action, in which the government’s postion has re-

mained consistent during both trials. Nevertheless, it is

noted that there is no indication that the government

intends voluntarily to abandon its practice of selectively

granting immunity, at least in this proceeding.

(4] Although this court believes that dismissal of the

indictment is warranted to eliminate the prejudice suf-

fered by Horwitz, it is aware that this sanction is “the

most drastic remedy.” United States v. Fields, 592 F.2d at

647 (emphasis in original), and is to be used only “in the

rare case, where it is impossible to restore a criminal

defendant to the position that he would have occupied

vis-a-vis the prosecutor.” Jd. at 648. In United States v.

Brown, supra, the Court of Appeals recently noted that

the prejudice to the defendant there was not of the type

that should be cured by dismissal of the indictment.

Rather, it suggested that the proper remedy would be

suppression of the evidence during a new trial. slip op.

at 3708.

[5] Because the constitutional defect can be remedied,

Horwitz’s motion for a new trial is granted, and upon such

retrial Broadsky’s testimony will be excluded unless the

requested use immunity is granted to Emmett and Weiss.

The motion for a new trial is granted with much reluc-

tance, because Horwitz has already endured two lengthy,

costly trials and a third trial should not be required

unless it is absolutely essential.’7 However, because the

7 This court takes some comfort, however, from the knowledge

that the government may appeal a decision to suppress the Brodsky

evidence prior to the third trial. See 18 U.S.C. § 3731.

26a

Appendix B

“interests of justice” are insufficient reason for dismissing

an indictment, United States v. Lai Ming Tanu, 589 F.2d

82, 86 (2d Cir. 1978), and because it appears that these

interests would best be served by a third trial with im-

munized testimony by witnesses from both sides, Horwitz’s

motion for a retrial is granted,

27a

Appendix C

(Opinion of Court of Appeals, May 27, 1980)

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

Nos. 608, 795—September Term, 1979

(Argued: January 15, 1980 Decided: May 27, 1980.)

Docket Nos. 79-1326, 79-1396

Unrrep States or AMERICA,

Appellee,

—vVe.—

NorMAN TvuRKISH,

Defendant-A ppellant,

Before:

Lumsarp, MansFIELD and Newman,

Circuit Judges.

Appeal from a judgment of the District Court for the

Southern District of New York (Vincent L. Broderick,

Judge), convicting appellant after jury trial of income tax

and conspiracy offenses in violation of 26 U.S.C. 7201, .

7206 and 18 U.S.C. 371.

Affirmed.

Ronatp Popotsxy, New York, N.Y., for de-

fendant-appellant.

28a

Appendia C

Auten R. Bentizy, Asst. U.S. Atty., New York,

N.Y. (Robert B. Fiske, Jr., U.S. Atty.,

Gregory L. Diskant, Asst. U.S. Atty., New

York, N.Y., on the brief), for appellee.

Newman, Circuit Judge:

This criminal appeal concerns primarily the issue of

whether a defendant is entitled to have immunity con-

ferred upon defense witnesses who invoke their privilege

against self-incrimination. The appeal is brought by Nor-

man Turkish, who was convicted by a jury in the Southern

District of New York (Vincent L. Broderick, Judge) of

evading income taxes and filing false income tax returns,

26 U.S.C. 7201, 7206, and conspiring to defraud the United

States, 18 U.S.C. 371. The trial of Turkish and three co-

defendants lasted 11 weeks. Turkish and one co-defendant

were found guilty; only Turkish appeals.

The Government’s evidence established that Turkish

was a principal participant in a scheme that used fraudu-

lent means to enable C.R. Rittenberry & Associates, Inc.,

an oil company, to create artificial tax losses in one year,

offset by equally artificial taxable gains in a subsequent

year, thereby postponing for a year the taxes on millions

of dollars of corporate income. The scheme involved the

use of tax “straddles,” the simultaneous purchase and sale

at different prices of equal numbers of commodity futures

contracts to be performed in different months. In the nor-

mal use of tax straddles, opportunities for arguably lawful

tax avoidance are created when the market price varies

from the prices at which the original contracts were both

bought and sold. If the market declines, the trader offsets

his purchase with an equivalent sale, thereby locking in a

29a

Appendia C

tax loss on his original purchase. He then offsets his origi-

nal sale contract with an equivalent purchase, thereby

locking in an approximately equal profit on his original

sale contract. He benefits when the profit is taxable in the

year following realization of tleloss. In normal transac-

tions the trader takes the risk that market price move-

ments will be too narrow to create much opportunity for

tax postponement and also the more serious risk that

prices will not move uniformly with respect to both his

original contracts. In the latter event the profit available

to be locked in may be less than the locked-in loss. Turkish

and others avoided these risks by fraudulently manipulat-

ing virtually the entire business of one trading ring on the

New York Cotton Exchange, the Crude Oil Futures Market.

This enabled them to move prices up and down at will, so

that Rittenberry could take short-term capital losses during

one tax year and defer an equal amount of off-setting

capital gain to a subsequent year, all with no risk and a

considerable saving in the postponement of taxes. Turkish

not only orchestrated the fraudulent aspects of the scheme

but also evaded taxes on the money he received as compen-

sation for his role.

The Indictment

Turkish contends that his conviction should be reversed

because the conspiracy count of the indictment (Count

One) did not charge an offense and was unconstitutionally

vague. The conspiracy count alleged that Turkish and

others conspired to “defraud the United States by imped-

ing, impairing, obstructing and defeating the lawful func-

tions of the Department of the Treasury in the collection

30a

Appendia C

of income taxes.” The crime of conspiring to defraud the

United States, 18 U.S.C. 371, includes acts that “inter-

fere with or obstruct one of its lawful governmental func-

tions by deceit, craft or trickery,” Hammerschmidt v.

United States, 265 U.S. 182, 188 (1924). The creation of

artificial tax losses for a business by fraudulent manipula-

tion of prices in a commodity market qualifies as such an

act. Turkish contends that there would have been no crime

had the oil company not taken the resulting losses as tax

deductions. Even if the manipulation of prices was not, by

itself, a federal offense, it became evidence of a federal

offense when it was done to avoid federal taxes. The Gov-

ernment alleged that Turkish’s activities on the Crude Oil

Futures market were part of a conspiracy that involved

other acts, not that these activities constituted the en-

tirety of the crime.

The indictment is also sufficiently precise to meet the

requirements of the Constitution and the Federal Rules of

Criminal Procedure. Fed. R. Crim. P. 7(c) states, in part:

“The indictment or the information shall be a plain, con-

cise and definite written statement of the essential facts

constituting the offense charged.” Count One specified

Turkish’s alleged efforts to manipulate the Crude Oil

Market in order to create tax losses for his co-defendant’s

client. This was sufficient to inform him of the charges

against him, and to enable him to prepare his plea and his

defense accordingly. See Hamling v. United States, 418

U.S. 87, 117 (1974).

II.

Defense Witness Immunity

The claim for defense witness immunity arose in the

following circumstances. The Government presented its

3la

Appendia C

case by calling a number of witnesses involved in the

fraudulent transactions, several of whom were co-con-

spirators. Of these, three had pleaded guilty to participa-

tion in the conspiracy and had received letter agreements

that they would not be prosecuted for any other commodity

market crimes or related tax offenses if they testified

truthfully. ‘wo other prosecution witnesses who had not

been indicted received similar letters, one of which was

sufficient to persuade its recipient to return from Switzer-

land for the trial. In addition, one prosecution witness was

formally granted “use” immunity under 18 U.S.C. 6002.

During the trial, and after the Government had con-

eluded its case, Turkish and his co-defendants moved that

seventeen of the prospective defense witnesses be granted

“yse” immunity and required to testify under 6002. They

argued that these witnesses could provide exculpatory

testimony, but would invoke their Fifth Amendment privi-

lege and decline to testify unless compelled to do so. Judge

Broderick invited the Government to consider granting

“yse” immunity to these witnesses pursuant to 6002. The

Government did consider the matter, but decided not to

grant immunity. Judge Broderick then reserved decision

on defendant’s motion until after the trial, at which time

the defendants moved for a new trial or acquittal. On

August 23, 1979, Judge Broderick denied the defendants’

motion.

In a subsequent opinion, United States v. Turkish, ——

F. Supp. —— (S.D.N.Y. 1979), Judge Broderick set forth

his analysis of the issue and his reasons for denying the

motion. Judge Broderick concluded that the Compulsory

Process Clause of the Sixth Amendment does not give a

defendant the right to require immunization of a witness,

but that such a right is “probably” contained in the Due

32a

Appendia C

Process Clause of the Fifth Amendment. Jd. at ——. How-

ever, he declined to accord the defendants the benefit of

this “probable” Fifth Amendment right to defense wit-

ness immunity for two reasons. First, he ruled that the

defendants’ motion was untimely, since it should properly

have been made at the beginning of the trial. Second, he

concluded that defense witness immunity would be avail-

able only to secure testimony that was material and ex-

culpatory and that the defendants had not shown that any

of the witnesses for whom they sought immunity would

give material, exculpatory testimony.

To assess Turkish’s challenges to these rulings we deem

it appropriate to explore the concept of defense witness

immunity, a matter arising with increasing frequency be-

fore this and other courts. See, e.g., United States v. De

Palma, 476 F. Supp. 775 (S.D.N.Y. 1979), appeal pending

sub nom. United States v. Horwitz, No. 79-1315 (2d Cir.) ;

Government of the Virgin Islands v. Smith, —— F.2d

(3d Cir. Feb. 5, 1980).

Granting immunity to a defense witness at the defen-

dant’s request seems to have been considered for the first

time, in a reported decision, by Chief Justice Burger, then

a Circuit Judge, as dictum in Earl v. United States, 361

F.2d 531, 534 n.1 (D.C. Cir. 1966), cert. denied, 388 U.S. 921

(1967). Since then, it has been much discussed by courts

and commentators.’ Interest in defense witness immunity

1The commentators have generally been favorable to the notion

of reverse immunity. See Westen, Compulsory Process, 73 Mich.

L. Rev. 71 (1974) ; Note, Right of the Criminal Defendant to the

Compelled Testimony of Witnesses, 67 Colum. L. Rev. 953 (1967) ;

Note, Separation of Powers and Defense Witness Immunity, 66

Geo. L.J. 51 (1977); Note, The Sixth Amendment Right to Have

Use Immunity Granted to Defense Witnesses, 91 Harv. L. Rev.

1266 (1978); Note, A Re-Examination of Defense Immunity: A

33a

Appendia C

was considerably heightened after Congress enacted the

“use” immunity statute, 18 U.S.C. 6001-6005, in 1970, and

the Supreme Court subsequently upheld its constitution-

ality, Kastigar v. United States 406 U.S. 441 (1972). No

longer did an immunity grant forbid prosecution of the

witness for crimes referred to in his testimony (“trans-

actional” immunity). Now the Government could still

prosecute the witness; it was barred only from making any

use of his immunized testimony, either directly by putting

the testimony in evidence at the witness’s trial, or indirectly

by obtaining other evidence from leads that the testimony

supplied.

Claims for defense witness use immunity have been

uniformly rejected by this Court, Umited States v. Gleason,

F.2d —— (2d Cir. Dee. 19, 1979); United States v.

Praetorius, —— F.2d (2d Cir. Dee. 10, 1979), modified

on rehearing, —— F.2d —— (2d Cir. May 7, 1980) ; United

States v. Lang, 589 F.2d 92, 96 n.1 (2d Cir. 1978); United

States v. Wright, 588 F.2d 31, 33-87 (2d Cir. 1978), cert.

denied, 440 U.S. 917 (1979); United States v. Stofsky, 527

F.2d 237, 249 (2d Cir. 1975), cert. denied, 429 U.S. 819

(1976); see also United States v. Housand, 550 F.2d 818,

823-824 (2d Cir.), cert. denied, 431 U.S. 970 (1977), and by

almost all circuits to consider the matter, United States v.

Lenz, —— F.2d —— (6th Cir. Mar. 10, 1980); United

States v. Smith, 542 F.2d 711, 715 (7th Cir. 1976); United

States v. Alessio, 528 F.2d 1079, 1081-82 (9th Cir.), cert.

denied, 426 U.S. 948 (1976); Thompson v. Garrison, 516

F.2d 986, 988 (4th Cir.), cert. denied, 423 U.S. 933 (1975) ;

New Use for Kastigar, 10 Harv. J. Legis. 74 (1974); Note, The

Public Has a Claim to Every Man’s Evidence: The Defendant’s

Constitutional Right to Witness Immunity, 30 Stan. L. Rev. 1211

(1978).

34a

Appendia C

see Earl v. United States, 361 F.2d 531 (D.C. Cir. 1966),

cert, denied, 388 U.S. 921 (1967) (transactional immunity).

The claim is a matter of divided opinion in the Third Cir-

cuit, compare United States v. Rocco, 587 F.2d 144 (3d Cir.

1978); United States v. Berrigan, 482 F.2d 171 (3d Cir.

1973), with Government of the Virgin Islands v. Smith,

supra; United States v. Herman, 589 F.2d 1191, 1203-04 (3d

Cir. 1978), cert. denied, 442 U.S. 913 (1979) ; Umted States

v. Morrison, 535 F.2d 223 (3d Cir. 1976). Additional sup-

port for the claim has been expressed by the former Chief

Judge of the District of Columbia Circuit, see Umited

States v. Gaither, 539 F.2d 753 (D.C. Cir.) (Bazelon, C.J.,

concurring in denial of rehearing en banc); cert. denied,

429 U.S. 961 (1976), United States v. Leonard, 494 F.2d

955, 985 n.79 (D.C. Cir. 1974) (Bazelon, C.J., concurring

and dissenting), and by two District Courts, United States

v. De Palma, supra, and United States v. La Duca, 447 F.

Supp. 779 (D.N.J. 1978), aff’d on other grounds sub nom.

United States v. Rocco, supra, in addition to Judge Brod-

erick in this case.

The only federal appellate decisions ruling in favor of

defense witness immunity appear to be the Third Circuit

decisions in Morrison and Smith. In Morrison a divided

panel of the Third Circuit reversed a conviction on the

ground that prosecutorial misconduct had caused a de-

fense witness to withhold testimony out of fear of self-

incrimination. As a remedy for the misconduct, the Court

ordered that upon a retrial, the Government face the

choice of either granting the witness use immunity or

having the defendant acquitted.

Smith involved a totally bizarre situation. A juvenile

defendant sought use immunity for a juvenile defense wit-

35a

Appendia C

ness. The office of the Virgin Islands Attorney General,

who had exclusive jurisdiction to prosecute both the de-

fendant and the witness, was agreeable to use immunity

for the witness. However, this local prosecuting office, as

a matter of “prosecutorial courtesy,” —— F.2d ——, con-

ditioned its approval upon the consent of the United

States Attorney, who inexplicably declined to consent. In

a thoughtful opinion Judge Garth reversed the conviction

and remanded for determination of whether use immu-

nity should have been conferred under standards expli-

cated in the Court’s decision.

These standards rest on two different concepts. First,

Judge Garth considered the power of a court to order the

prosecutor to grant statutory use immunity pursuant to

18 U.S.C. 6002. Such “statutory” immunity was -held to

be available for a defense witness with relevant testi-

mony, —— F.2d at ——~ n.7, when the defendant could

show that the prosecutor’s decision not to confer immu-

nity was made “with the deliberate intention of distorting

the judicial fact finding process,” id. at ——, a standard

the Third Circuit had previously articulated in United

States v. Herman, supra, 589 F.2d at 1204. Secondly,

Judge Garth considered what he called “judicial” immu-

nity, the power of a court, unaided by statute, to order

that a witness’s testimony cannot be used against him.

Again applying a standard earlier announced in United

States v. Herman, supra, Judge Garth held that judicial

immunity, 7.e., court-ordered use immunity, was available

for a witness “capable of providing clearly exculpatory

evidence” when the Government can present no “strong

countervailing interest.” F.2d at ——.

Though Morrison and Smith stand in sharp contrast to

the uniform holdings of other federal appellate decisions

36a

Appendia C

that have rejected defense witness immunity, some of

these decisions have been careful to deny the claim only

with respect to the precise facts presented, e.g., United

States v. Wright, supra; United States v. Alessio, supra.

Furthermore, two of our decisions have explicitly left

open the possibility that defense witness immunity might

be required if grants of use immunity to prosecution wit-

nesses resulted in an “unfair advantage.” United States v.

Gleason, supra, F.2d at ——; United States v. Lang,

supra, 589 F.2d at 96-97. In light of this state of the case

law, further consideration of the constitutional bases for

defense witness immunity is warranted. Resort is usually

made to the Sixth and Fifth Amendments.

The established content of the Sixth Amendment does

not support a claim for defense witness immunity. Tradi-

tionally, the Sixth Amendment’s Compulsory Process

Clause gives the defendant the right to bring his witness

to court and have the witness’s non-privileged testimony

heard, but does not carry with it the additional right to

displace a proper claim of privilege, including the privi-

lege against self-incrimination. United States v. Lacou-

ture, 495 F.2d 1237 (5th Cir.), cert. denied, 419 US.

1053 (1974); Myers v. Frye, 401 F.2d 18 (7th Cir. 1968) ;

Johnson v. Johnson, 375 F. Supp. 872 (W.D. Mich. 1974) ;

Holioway v. Wolff, 351 F. Supp. 1033 (D. Neb. 1972); see

Royal v. Maryland, 529 F.2d 1280, 1283 (4th Cir. 1976)

(Winter, J., dissenting). While the prosecutor may not

prevent or discourage a defense witness from testifying,

Washington v. Texas, 388 U.S, 14 (1967); United States v.

Morrison, supra, it is difficult to see how the Sixth Amend-

ment of its own force places upon either the prosecutor or

the court any affirmative obligation to secure testimony

from a defense witness by replacing the protection of the

37a

Appendiz C

self-incrimination privilege with a grant of use immunity.

Arguably there is a more plausible basis for defense

witness immunity in the more general and perhaps devel-

oping requirement of basic fairness protected by the Fifth

Amendment’s Due Process Clause.? The appeal to consti-

tutionally protected fairness proceeds from two basic

arguments. First, as this Circuit hinted in Gleason and

Lang, unfairness may inhere in some situations because

the Government’s grant of use immunity to its witnesses

affords it an advantage over the defendant’s ability to

present a defense. Secondly, to the extent that a trial is

viewed as a search for the truth, denial of defense witness

immunity may in some circumstances unfairly thwart

that objective.®

The first contention, based on equalizing the powers of

the prosecution and the defense, is entirely unpersuasive.

A criminal prosecution, unlike a civil trial, is in no sense a

symmetrical proceeding. The prosecution assumes sub-

stantial affirmative obligations and accepts numerous re-

strictions, neither of which are imposed on the defendant.

The prosecution must prove the defendant’s guilt beyond

a reasonable doubt to the satisfaction of all the jurors; it

may not obtain the defendant’s testimony, suppress ex-

culpatory evidence, nor retry the defendant after acquit-

* Defense witness immunity, a concept first developed only in the

1960s, and regarded as plausible only since the passage of the use

immunity statute, cannot qualify as a due process right on any

theory that it is part of the “compelling traditions of the legal

profession.” Rochin v. California, 342 U.S. 165, 171 (1952),

*We put to one side the situation, illustrated by United States

v. Morrison, supra, where a court uses the option of defense wit-

ness immunity as part of a remedy for prosecutorial misconduct

directed at the witness. There is no claim in this case of any such

misconduct.

38a

Appendia C

tal, even though errors prejudicial to the Government

occurred. The defendant, by contrast, may prevail without

offering any proof at all; he need not disclose whatever

inculpatory evidence he discovers, may avoid conviction

by persuading a single juror that reasonable doubt exists,

and may challenge a conviction by direct appeal and sub-

sequent collateral attack.

. The system of criminal law administration involves not

only this procedural imbalance in favor of the defendant,

but also important aspects of the Government’s law en-

forcement power that are not available to the defendant.

Subject to constitutional and statutory limits, the Govern-

ment may arrest suspects, search private premises, wire-

tap telephones, and deploy the investigative resources of

large public agencies. Few would seriously argue that the

public interest weuld be well served either by extending

all of these powers to those accused of crime or by equaliz-

ing the procedural burdens and restrictions of prosecution

and defendant at trial. Viewed in isolation, there is a sur-

face appeal to the equal availability of use immunity for

prosecution and defense witnesses. But in the context of

criminal investigation and criminal trials, where accuser

and accused have inherently different roles, with entirely

different powers and rights, equalization is not a sound

principle on which to extend any particular procedural

device. At a minimum, such a principle will not support a

constitutional interpretation of Fifth Amendment fair-

ness,

The second argument, based on the need to pursue the

truth, has somewhat greater force. As a general rule the

Government is properly obliged to divulge exculpatory

evidence. Brady v. Maryland, 373 U.S. 83 (1963). That

39a

Appendia C

principle, however, has heretofore been limited to evi-

dence in the Government’s possession and has not been

extended to create a Government obligation to assist the

defense in extracting from others evidence the Govern-

ment does not have. Moreover the concept of a trial as a

search for the truth has always failed of full realization

whenever important facts are shielded from disclosure

because of a lawful privilege. The key fact needed to prove

a defendant’s innocence may be contained in a client’s

privileged admission to his attorney, or a husband’s privi-

leged admission to his wife, as well as in the testimony of a

witness protected by the privilege against self-incrimina-

tion. Nevertheless, it must be acknowledged that since the

advent of immunity statutes, the self-incrimination privi-

lege, unlike any other, can be displaced without any im-

pairment of the legally protected rights of the holder of the

privilege. And unlike transactional immunity, use immu-

nity does not improve the legal position of the holder of

the privilege; it leaves his legal rights precisely as they

were before he testified. However, the grant of use im-

munity does implicate public interests, and any assessment

of a claim for defense witness use immunity must reckon

with those public concerns.

In the first place, while the prosecution remains theoret-

ically free under Kastigar to prosecute a witness granted

use immunity, the obstacles to a successful prosecution can

be substantial. The Government has a “heavy burden” to

prove that its evidence against the immunized witness has

not been obtained as a result of his immunized testimony.

Kastigar v. United States, supra, 406 U.S. at 461. While

this burden can be met by cataloguing or “freezing” the

evidence known to the Government prior to the immunized

40a

Appendia C

testimony, that technique is not available when continuing

investigations disclose vital evidence after, though not re-

sulting from, the immunized testimony. See SEC v. Stew-

art, 476 F.2d 755, 762 (2d Cir. 1973) (Timbers, J., dissent-

ing). Moreover, to meet its burden of proving that prose-

cution of the immunized witness was not benefitted in any

way by his immunized testimony the prosecutors most

knowledgeable about an investigation may in some circum-

stances be obliged to forgo any further contact with the

witness and arrange for a new team of investigators and

prosecutors to pursue the case against him, See United

States v. Kurzer, 534 F.2d 511 (2d Cir. 1976).

Secondly, awareness of the obstacles to successful pros-

ecution of an immunized witness may force the prosecution

to curtail its cross-examination of the witness in the case

on trial to narrow the scope of the testimony that the wit-

ness will later claim tainted his subsequent prosecution.

While the witness cannot prevent prosecution and secure

an immunity “bath” by broadening the scope of his an-

swers, as he could if testifying under a grant of transac-

tional immunity, his fulsome answers may substantially

lessen the likelihood of any successful prosecution.

Finally, there is considerable force to the Government’s

apprehension that defense witness immunity could create

opportunities for undermining the administration of jus-

tice by inviting cooperative perjury among law violators.

Co-defendants could secure use immunity for each other,

and each immunized witness could exonerate his co-defen-

dant at a separate trial by falsely accepting sole responsi-

bility for the crime, secure in the knowledge that his

admission could not be used at his own trial for the sub-

stantive offense. The threat of a perjury conviction, with

penalties frequently far below substantive offenses, could

4la

Appendia C

not be relied upon to prevent such tactics. Moreover, this

maneuver would substantially undermine the opportunity

for joint trials, with consequent expense, delay, and burden

upon disinterested witnesses and the judicial system.

How these substantial concerns are to be weighed against

the defendant’s interest in securing truthful exculpatory

testimony through defense witness immunity turns in large

part upon whether the balancing of these interests is ap-

propriately a judicial function. The Government suggests

it is not, contending that the granting of immunity is pre-

eminently a function of the Executive Branch. See Ullman

v. United States, 350 U.S. 422 (1956). On the other hand,

the judiciary has constitutional responsibilities for the

fairness of a trial. Moreover, as Judge Garth has argued

in Smith, the court can accord use immunity without di-

rectly acting in the domain of either the Legislative or

Executive Branch. A court can rule that testimony may

not be used against a witness without adding any gloss to

the use immunity statute or directing the prosecutor to use

his statutory authority. Judicially created use immunity,

albeit premised on constitutional considerations, was fash-

ioned by the Supreme Court in Murphy v. Waterfront

Commission of New York Harbor, 378 U.S. 52 (1964) (wit-

ness’s compelled testimony barred from use by another

jurisdiction), and in Simmons v. United States, 390 U.S.

377 (1968) (defendant’s testimony at suppression hearing

barred from use at trial). See also In re Grand Jury In-

vestigation, 587 F.2d 589 (3d Cir. 1978) (testimony given

to assert Speech and Debate Clause defense); United

States v. Immon, 568 F.2d 326 (3d Cir. 1977) (testimony

given to assert Double Jeopardy Clause defense).

However, a court cannot determine whether any con-

stitutional provision requires a judicial grant of use im-

42a

Appendix C

munity without assessing the implications upon the Execu-

tive Branch, both those that flow from a grant of use

immunity and those that flow from an adjudication of

whether such immunity might be appropriate in a par-

ticular case. The concerns previously expressed about the

risk to other successful prosecutions are matters normally

better assessed by prosecutors than by judges. Surely a

court is in no position to weigh the public interest in the

comparative worth of prosecuting a defendant or his wit-

ness, although if a court decides that immunity is required,

it can always leave that ultimate assessment with the

prosecutor by advising that trial of the defendant will con-

tinue only if the witness’s testimony is immunized. But

confronting the prosecutor with a choice between terminat-

ing prosecution of the defendant or jeopardizing prosecu-

tion of the witness is not a task congenial to the judicial

function.’

Still it may be contended, as Judge Garth did in Smith,

that a court ought to determine in each case whether the

* We do not regard the limited immunity judicially created for

the defendant in Simmon v. United States, supra, to be analogous

to use immunity for a witness. In Simmons the Supreme Court

ruled that a defendant’s testimony at a suppression hearing, pre-

sented to establish standing to assert a Fourth Amendment claim,

could not be introduced at trial. The Court focused on exclusion of

the defendant’s testimony, and did not mention creation of formal

use immunity, i.e., prohibition against using testimony or any leads

from it. Perhaps that was the implicit result of the decision, but,

even if so, immunization of a statement concerning Fourth Amend-

ment standing carries very little risk of impeding prosecution of

the defendant for the substantive offense. Furthermore, Simmons

creates an immunity to avoid the dilemma of a defendant’s choos-

ing between vindicating his Fourth Amendment right or maintain-

ing his self-incrimination privilege at trial. Nothing comparable

is presented when a defendant finds that evidence he hoped to

present is unavailable because other persons prefer to assert their

own privilege.

43a

Appendia C

risks to the public interest in conferring defense witness

immunity outweigh the needs of the defendant. Smith

suggests two types of inquiry: whether the prosecutor’s

opposition to defense witness immunity stems from “the

deliberate intention of distorting the fact finding process,”

—— F.2d ——, or whether the prosecutor can present

“strong countervailing interest,” id. at ——, to the de-

fendant’s need for clearly exculpatory evidence. Hither

inquiry will propel a trial court into uncharted waters.

Focusing upon the prosecutor’s intent will often lead to

exploration and premature disclosure of the pending sta-

tus of an investigation against the witness. Moreover, a

prosecutor without enough evidence to seek indictment of

a witness may legitimately prefer to maintain his option

to prosecute on the basis of later information. It cannot

fairly be argued, where the prosecutor declines to consent

to use immunity, that the absence of present intention to

prosecute is evidence of intention to distort the fact-finding

process. Alternatively, weighing the “countervailing in-

terest” in not granting defense witness immunity will in

all likelihood prove to be as elusive a task as formulating

any meaningful standards for the assessment. In the

extraordinary fact situation presented by the Smith case,

where the prosecutor opposing use immunity does not even

have jurisdiction to prosecute the witness, the public in-

terest in not granting defense witness immunity appears

to be non-existent. But in most situations where defense

witness immunity is likely to be sought, some legitimate

opposing prosecution interest will exist, and constitutional

fairness is not a satisfactory standard against which to

assess such interests.

When any novel legal proposition is urged upon a court,

there is a natural judicial reluctance to say “never.” In-

44a

Appendia C

deed, the extraordinary fact situation presented by the

Smith case illustrates a situation where denial of defense

witness immunity can be said to deny the defendant the

fair trial guaranteed by the Due Process Clause, Yet it is

important to recognize that Smith really does not involve

a use of the Due Process Clause to balance the public

interest in withholding immunity against the defense

need for it. In Smith the prosecutor with jurisdiction over

the witness was willing to grant use immunity. Opposi-

tion came from a prosecutor without jurisdiction. This

was simply an instance of a prosecutor interfering, for no

apparent reason, to suppress evidence that was about to

become available to the accused. We have no dispute with

the holding in Smith. However, in light of all the consider-

ations previously discussed, we find ourselves in funda-

mental disagreement with the standards outlined in that

decision. Without precluding the possibility of some cir-

cumstances not now anticipated, we simply do not find in

the Due Process Clause a general requirement that de-

fense witness immunity must be ordered whenever it

seems fair to grant it. The essential fairness required by

the Fifth Amendment guards the defendant against over-

reaching by the prosecutor, Giglio v. United States, 405

U.S. 150 (1972) (failure to disclose promise not to prose-

cute government witness); Waley v. Johnston, 316 U.S.

101 (1942) (threat to use manufactured evidence) ; Taylor

v. Lombard, 606 F.2d 371 (2d Cir. 1979) (knowing use of

perjured testimony); United States v. Westbo, 576 F.2d

285 (10th Cir. 1978) (disobedience of court ruling exclud-

ing admission of other crimes evidence) ; cf. Santobello v.

New York, 404 U.S. 257 (1971) (repudiation of plea bar-

gain promise), and insulates him against prejudice, See,

45a

Appendia C

e.g., Ward v. Village of Monroeville, 409 U.S. 57 (1972)

(judge had pecuniary interest in result); Sheppard v.

Macwell, 384 U.S. 333 (1966) (trial subject to excessive

publicity); Turner v. Louisiana, 379 U.S. 466 (1965)

(prosecution witnesses present in jury room during de-

liberations); In re Murchison, 349 U.S. 133 (1955) (judge

also served as one-person grand jury); Moore v. Dempsey,

261 U.S. 86 (1923) (trial occurred under threat of mob

violence). It does not create general obligations for prose-

cutors or courts to obtain evidence protected by lawful

privileges.

The circumstances of this case do not remotely ap-

proach a situation where lack of.defense witness immu-

nity could be found to deny constitutionally protected

fairness. In the first place, the demand for immunity was

initially made in the middle of the trial and properly

found to be untimely by Judge Broderick for reasons set

out in the margin.’ See United States v. Taylor, 562 F.2d

5 Judge Broderick’s detailed findings were as follows:

Some 171 days elapsed between the first pre-trial confer-

ence herein and the beginning of trial. Defendants were aware

that the government’s investigation of the crude oil market

was continuing during this period; this very fact was argued

to me by defense counsel in seeking a substantial adjournment

of the original date. Yet it was never drawn to my attention

during this period that defendants had any intention of re-

questing immunization of witnesses. The crude oil investiga-

tion was initiated in the New York County District Attorney’s

office, and the investigation was conducted by Assistant Dis-

trict Attorney Michael F. Baumeister of that office and by

Assistant United States Attorney Paul Vizcarrondo for the

United States Attorney. These two men jointly represented

the government in all pre-trial proceedings in this case, and

they jointly presented the government’s case at trial. The case

was a complicated one, involving the complex organization and

operations of the commodities futures market. Once trial be-

gan the full time of the two government attorneys, Baumeister

46a

Appendia C

1345, 1361 (2d Cir.), cert. denied, 482 U.S. 909 (1977);

United States v. Jones, 487 F.2d 1308, 1311 (7th Cir.),

cert. denied, 409 U.S. 858 (1972). Secondly, Judge Brode-

rick carefully considered the expected testimony of the

witnesses sought to be immunized and concluded that none

of them would provide material, exculpatory evidence.

Their testimony would either have been cumulative, im-

material, or impeaching only on collateral matters. Thus,

the trial court’s refusal to order the prosecutor to confer

use immunity was plainly correct.

We have expressed our thoughts on the issue at some

length because we do not agree with Judge Broderick’s

and Vizcarrondo, was fully absorbed with the presentation of

the case in the trial room.

The demand that witnesses be immunized was made at the

close of the government’s case, in the middle of the trial, when

neither of the men in charge of the investigation was in a posi-

tion—because of their trial duties—either to make a meaning-

ful recommendation to the United States attorney that the

testimony requested might be necessary to the public interest,

or to shoulder ‘heavy burden’ (Kastigar v. Uni’ d States, 406

U.S. 441, 461 (1972) of marsha'ling the evidence then avail-

able with respect to any of the proposed witnesses whom the

government might indict in the future.

The resourcefulness of defense counsel at trial, and their

thorough knowledge and understanding of the case, persuade

me that they should have been able to anticipate that many

prospective witnesses would invoke the Fifth Amendment, and

in my judgment they should have presented to the prosecutors

and to myself prior to trial the substance if not the details of

the applications made at the close of the government’s case.

Thus the applications by defendants were not timely. The

effects of their untimeliness were to introduce the element of

double jeopardy into a situation where it did not belong; and

to force the government to consider their applications for

immunity to 17 persons involved in an investigation at a time

when the two government attorneys with the requisite know]-

edge were engaged on a full time basis in the presentation of a

complex case on trial.

—— F. Supp. at —.

47a

Appendia C

views on the general availability of defense witness immu-

nity, nor do we wish to see criminal trials regularly inter-

rupted by wide-ranging inquiries concerning the specific

pros and cons of defense witness immunity in a particular

ease. In fact, we think trial judges should summarily re-

ject claims for defense witness immunity whenever the

witness for whom immunity is sought is an actual or po-

tential target of prosecution. No hearing should be held to

establish such status. The prosecutor need only show that

the witness has been indicted or present to the court in

camera an ex parte affidavit setting forth the circum-

stances that support the prosecutor’s suspicion of the

witness’s criminal activity. No duty is imposed upon the

prosecutor; he simply has an option to rely upon the

witness’s status as an actual or potential target of prosecu-

tion to foreclose any inquiry concerning immunity for

that witness. If a case should arise where the witness is

not an indicted defendant and the prosecutor cannot or

prefers not to present any claim that the witness is a

potential defendant, and if the defendant on trial demon-

strates that the witness’s testimony will clearly be mate-

rial, exculpatory, and not cumulative, it will be time

enough to decide whether in those circumstances a court

has any proper role with respect to defense witness immu-

nity. Of course, our limited interpretation of the Fifth

Amendment’s application to this issue does not preclude

broader action by United States Attorneys under the ex-

isting authority of § 6002 nor legislative action to define

circumstances in which defense witness immunity should

be granted.

Affirmed.

“

48a

Appendia C

Lumsarp, Circuit Judge (concurring in part; dissenting in

part):

I concur in affirming the conviction. I dissent, however,

from the observations in Judge Newman’s opinion which

imply that under certain circumstances the district court

would be under the duty of inquiring into whether or not

the prosecution should grant use immunity to a prospec-

tive defense witness. In my view it is not the proper busi-

ness of the trial judge to inquire into the propriety of the

prosecution’s refusal to grant use immunity to a prospec-

tive witness.

In our adversary system the judge best performs his

function by remaining completely impartial and objective

and keeping entirely apart from the decisions which gov-

ern the conduct of the Government’s case and the presen-

tation of the defense. As Judge Newman’s careful analysis

shows, the continuing investigation and the unexpected

development of evidence, and the willingness of co-con-

spirators to give evidence, all bear upon the difficult and

delicate decisions which prosecutors must make in recom-

mending indictments and in presenting evidence at trial.

Even if it were possible for the judge to be sufficiently in-

formed of all the pertinent facts and considerations—

which he cannot be—it is highly undesirable that the judge

should be asked to bear a burden that is fraught with the

danger that his impartiality and objectivity may seem to

be, or may actually be, impaired. The judicial function

exercised by the judge should not be confused with the

executive function to determine how to prosecute defen-

dants and present evidence against them. This important

distinction ketween government functions, which has the

firmest possible roots in the Constitution itself, is ex-

49a

Appendix C

pressly recognized in the immunity statute. This statute

places the decision to grant in the hand of the Department

of Justice and they leave to the court only the ministerial

function of granting the order and thus directing that the

statute is observed.

I see nothing in theory, or in practice, to be gained by

any procedure whereby the prosecutor may be called upon

to state that he has reason to believe that the intended

witness is a possible defendant. Theoretically, the re-

sponse of the prosecutor is simply that his refusal to agree

to use immunity is justified by the mere claim of the wit-

ness. The witness presumably knows more about his own

involvement in the allegedly illegal activities of the defen-

dant. Consequently, the government cannot be exnected

to forego the unrestricted use of the witness’ testimony,

and cannot be required to undergo the difficulty of man-

aging separate staffs to ensure compliance with a restric-

tion that no use may be made of what the witness might

say.

It is not difficult to see what will happen if we suggest

that trial judges should examine claims of defendants that

use immunity should be granted to prospective witnesses

who otherwise would refuse to testify under the Fifth

Amendment. Let us suppose the prosecutor has indicted

five defendants. Each one could claim that one or more of

his co-defendants would, if granted use immunity, give

testimony favorable to his defense. There would then be

five separate trials, as it would be difficult for the judge to

find that the defendant’s claim is groundless. To prose-

cute five separate trials the prosecutor’s office would have

to create five separate and completely different staffs of

attorneys to insulate the prosecutor from any later clain

that some use had in fact been made of testimony given by

00a

Appendia C

the defendant when he was a witness for a co-defendant at

an earlier trial.

In many cases the witness will assert that his lawyer

really cannot know whether the witness (who may think

himself to be an innocent bystander) might, short of im-

munity, be providing a missing link in the chain of cireum-

stantial evidence. The prosecution can then ask that the

proposed witness be examined by counsel, in camera and

under oath, to determine whether there is in fact a good

faith assertion that the witness’ testimony may tend to

incriminate him, The knee-jerk use of the Fifth Amend-

ment by witnesses is usually a device to avoid the un-

pleasant and embarrassing experience of testifying against

a friend or someone whose retaliation is feared. Although

everyone knows this, the claim of the Fifth Amendment

privilege is hardly ever questioned even when witnesses

use it to avoid stating their address or occupation or

whether they know a person.

Thus, if we are to open the door to collateral proceedings

to determine the propriety of the prosecution’s refusal to

give use immunity to intended witnesses, the district courts

should also be prepared to spend some time inquiring into

the good faith of Fifth Amendment claims which are made

as a ploy to get use immunity, or, if use immunity is denied,

to use the denial as a ground for appeal after conviction.

The prosecutor’s request for such a hearing to test the good

faith of the claim would surely be entitled to as much con-

sideration as would be the demand for use immunity be-

cause experience teaches that it is far more likely than not

that there is no basis for the claim.

In sum, I do not see how the prosecutor’s refusal to grant

use immunity to a witness, who suggests by his claim of

immunity that he might well be a suitable target for inves-

5la

Appendia C

tigation, can ever be considered improper interference

with the production of evidence.

Every unnecessary disclosure of information by the

prosecution increases the difficulties of administering

criminal justice: whether or not the prosecutor has any

evidence about the potential witness is information which

may be of value to the witness. A prosecutor may have an

indication not rising to the level of admissible evidence or

even to the point where it could be considered “persuasive”

(albeit inadmissible) by a trial judge. If the judge rejects

the ex parte submission of the prosecutor, then the poten-

tial witness may be relatively certain that his activities are

undiscovered, Clearly such a procedure may have great

value to the wrongdoer.

Indeed, by suggesting that there may be cases where the

court should inquire of the prosecution about use immu-

nity, we invite wrongdoers to come forward as potential

witnesses to ascertain if they have been discovered. It is

apparent that the district courts may expect an increasing

number of applications for use immunity inquiries.

Moreover, the requirement that some record be made of

the prosecutor’s response presents obvious dangers. Such

material which may be of great value to the wrongdoer-

potential witness will necessarily be disclosed to others

beyond those who need to know—a typist, a clerk, a re-

porter or other aide.

For these reasons, I conclude that the potential harm to

the administration of criminal justice which is involved in

any inquiry into the grant of use immunity to a witness so

far outweighs any possible need for such a procedure to

ensure fair trials, that I would prohibit the district court

from entertaining such an application or conducting such

an inquiry.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.