# Petition — Horwitz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2636%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1076 ## Text 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 ii 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 | iv 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 2 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? 3 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 4 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). 5 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). -* 6 “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.”. 7 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. 8 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) 10 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 11 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. 12 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). mY F% 13 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 14 [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 15 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). 16 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 17 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). 18 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). 19 (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- 7% 20 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- 7% 21 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. 22 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.” 23 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 24 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. 25 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.”). . 26 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 ry 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. la 2a 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, 3a Appendia A we remand the case to the district court for reconsidera- tion of its order. I 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 7% 4a 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. oa 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. 6a Appendia A II 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 7a 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 8a 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 9a 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 ——. F* #4 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, v. 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. > 3 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- s 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 g% 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. I. 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 y% 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 bar [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2636%3A1. Public record. Not legal advice.