Opposition Brief — Singh v. New York (No. 08-165)

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wre FILED

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\ No. 08-165 i OCT s- UB |

| CFFICE OF THE CLEAK ‘

IN THE

Supreme Court of the Anited States

phe

TEJPAL SINGH,

Petitioner,

Vv.

THE STATE OF NEW YORK,

Respondent.

On Petition For Writ of Certiorari to the

Supreme Court of the State of New York,

Appellate Division, Second Judicial Department

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

RICHARD A. BROWN

District Attorney

Queens County

Of Counsel

JOHN M. CASTELLANO* 125-01 Queens Boulevard

USHIR PANDIT Kew Gardens, New York 11415

Assistant District Attorneys 718-286-5801

Of Counsel

* Counsel of Record for

Respondent

October 9, 2008

i

QUESTION PRESENTED

Whether the prosecution abused its discretion in

denying immunity to a defense witness where the

witness had been directly implicated in the murder for

which petitioner was on trial, where ballistics evidence

and witness statements suggested multiple shooters,

and where the prosecution did not otherwise engage in

misconduct or build its own case on immunized

testimony.

il

TABLE OF CONTENTS

Page No.

Sh gy OO geo) 4 y yl > SB i

co EG Sey. 6) os i |: lil

STATEMENT OF THE CASE ................. 1

REASONS FOR DENYING THE WRIT ......... 6

A. The Question of Whether a State Court

Has the Inherent Authority to Grant

Immunity is Not Reviewable in This

ag ioe aia bhi oa ee oe ey 7

B. No Conflict Exists Among the Circuit

Courts on the Question Raised by

I Gs oan Ghee so Oe ee ere |

C. Under the Facts Present Here, the

Outcome Would be the Same Regardless

of the Theory Espoused ................ 19

oe 8 8. a rar 27

ill

TABLE OF AUTHORITIES

Page No.

Cases

Adams v. Robertson, 520 U.S. 83 (1997) ......... 9

Autry v. McKaskle, 465 U.S. 1085 (1984) ....... 18

Bailey v. Anderson, 326 U.S. 208 (1945) ......... 9

Beck v. Washington, 369 U.S. 541 (1962) ........ 9

Boggs v. Boggs, 520 U.S. 833 (1997) ............ 11

Cardinale v. Louisiana, 394 U.S. 437 (1969) ...... 9

Ebbers v. United States, 127 S.Ct. 1483 (2007) ... 19

Government of Virgin Islands v. Smith,

615 F.2d 964 (3d Cir. 1980) ......... passim

Hunter v. California, 498 U.S. 887 (1990) ...... 18

Illinois v. Gates, 462 U.S. 213 (1983) ............ g

Kentucky v. Stincer, 482 U.S. 730 (1987) ........ 8

Ko v. New York, 546 U.S. 1093 (2006) .......... 19

Matter of Brockway v Monroe, 59 NY2d 179

SNE an ke eee We Sd tee oe ee hace 24

lV

People v. Adams, 53 NY 2d 241 (1981) ......... 25

People v. Chin, 67 N.Y.2d 22 (1986) .......... 6, 24

People v. Hayes, 39 A.D.3d 1173

fl or ak san wee ewes 25

People v. Jones, 267 A.D.2d 250

Ss eine gre pee woos ats 25

People v. McFarlan, 42 N.Y.2d 896 (1977), reu'g

52 A.D.2d 112 (2d Dept. 1976), on opn at

89 Misc.2d 905 (N.Y. Sup. Ct. 1975) ...... 24

People v. Qwen, 63 N.Y.2d 824 (1984) .......... 18

People v. Perri, 53 N.Y.2d 957 (1981),

affg 72 A.D.2d 106 (2d Dept. 1980) ....... 24

People v. Sanchez, 61 N.Y.2d 102 (1984)........ 24

People v. Shapiro, 50 N.Y.2d 747 (1980) ........ 18

People v. Singh, 10 N.Y.3d 870 (2008) ........... 6

People v. Singh, 47 A.D.3d 733 (2d Dept. 2008) .... 6

People v. Vernace, 96 N.Y.2d 886 (2001) ........ 25

Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) ..... 14

Tacon v. Arizona, 410 U.S. 351 (1973) ........... 9

Vv

United States v. Acetturo, 783 F.2d 382

Es oc vb alee owe 14

United States v. Ammar, 714 F.2d 238 (3d Cir.),

cert. denied sub nom.

Stillman v. United States, 363 U.S. 936

re ig a wee bs ws 13 n.4

United States v. Anguilo, 897 F.2d 1169

(1** Cir. 1990), cert. denied sub nom.

Granito v. United States, 498 U.S. 845

es aw kw vin «wo aes 16, 17

United States v. Bahadar, 954 F.2d 821 (2d Cir.),

cert. denied, 506 U.S. 850 (1992) ......... 18

United States v. Bazzano, 712 F.2d 826

Es 13 n.4

United States v. Capozzi, 883 F.2d 608

(8 Cir. 1989), cert. denied, 495 U.S. 918

(1960) ..... Ee eats Kew See 4s ee es 16

United States v. Castro, 129 F.3d 226, 232

(1* Cir. 1997), cert. denied, 523 U.S. 1100

ES 16

United States v. Chalan, 812 F.2d 1302

(10“ Cir. 1987) ..............0...2000- it

United States v. Cohen, 171 F.3d 796

(Ga Cir. 1999) ............... 13 n.4, 21, 26

Vi

United States v. DiBernardo, 880 F.2d 1216

cee vepecues 17

United States v. Dolah, 245 F.3d 98

ul ees wees eevee 18

United States v. Ebbers, 458 F.3d 110

(2d Cir. 2006), cert. denied,

eye te eT 2, ys 8, 16 n.5

United States v. Gaudelli, 134 Fed. Appx. 565

ee 13 n.4

United States v. Gottesman, 724 F.2d 1517

tks cen ees 18

United States v. Hamilton, 46 F.3d 271

i 13 n.4

United States v. Kehoe, 310 F.3d 579 (8" Cir. 2002),

cert. denied, 538 U.S. 1048 (2003) ........ 17

United States v. Leary, 206 Fed. Appx. 111

EE 13 n.4

United States v. Lord, 711 F.2d 887

vee ecewacwes 15

United States v. Lowell, 649 F.2d 950

| 13, 14 n.4, 21

United States v. Mack, 78 Fed. Appx. 171

(3d Cir. 2003), cert. denied, 541 U.S. 956

ec kc cts t sees 13 n.4

vil

United States v. Mackey, 117 F.3d 24

I ee ir 17

United States v. Payment Processing Co.,

443 F.Supp.2d 728 (E.D. Penn. 2006) .... 14

United States v. Perez, 280 F.3d 318

(3d Cir. 2002), cert. denied, 537 U.S. 859

GRIN © ou sarane diw Caee Rr aoe eee tp beard We 21

United States v. Pratt, 2007 U.S. Dist. Lexis 41155

gf 08 ee re ere 14

United States v. Santtini, 963 F.2d 585

es ah ke eae he ack ee dee 13

United States v. Serrano, 406 F.3d 1208 (10 Cir.),

cert. denied, 546 U.S. 913 (2005) ......... 17

United States v. Steele, 685 F.2d 793 (3d Cir.),

cert. denied sub nom. Mothon v. United

States, 459 U.S. 908 (1982) .......... 13 n.4

United States v. Thomas, 357 F.3d 357

eS die d Gea W hala ws sos 13 n.4

United States v. Throckmorton, 2006 U.S. Dist.

Lexis 8372 *4 (W.D. Pa. March 3, 2006) ... 14

United States v. Turkish, 623 F.2d 769

(2d Cir. 1980), cert. denied,

CO Sie BET CEE) wav eee ccieneuavves 8

Vili

United States v. Washington, 318 F 3d 845

(8 Cir.), cert. denied, 540 U.S. 899

CE ck viaca Goa Wes We nai ek aie 17

United States v. Washington, 398 F.3d 306

(4 Cir.), cert. denied, 545 U.S. 1109

GEE 44. cv awtceS web ek eee cae oN was 17 n.5

Virgin Islands v. Edwards, 233 Fed. Appx. 167

Gee RN SEED 5 sodas Kaw albh eRaees 13 n.4

Williams v. Woodford, 384 F.3d 567 (9"" Cir. 2004),

cert. denied sub nom. Williams v. Brown,

G46 43.5. See Coe. ik oe khan 15, 17 n.5

Statutes

+ Boo 8 oe Eh : ..) Snr panera nm erent eT: 9

Pe: eR ee 6: 0s 4 be ee a ee eee 25

New York Criminal Procedure Law § 50.20.... 5, 23

New York Criminal Procedure Law § 190.40... 5, 23

New York Penal Law § 110/125.25 ............. 2

New York Penal Law § 120.10 ................. 2

New York Penal Law § 120.25 .............. 2n.1

New York Penal Law § 125.25 ...........0-c00> 2

1X

New York Penal Law § 263.03 .............. 2n.1

New York Penal Law § 265.02 .............. 2n.1

Other Authorities

Eugene Gressman, Kenneth Geller, Stephen Shapiro,

Timothy Bishop, and Edward Hartnett,

Supreme Court Practice § 3.18(c)

EN 2c. CaS oa Gn So 0.8 pbc oa eo EG 9

J

No. 08-165

In the

SUPREME COURT OF THE UNITED STATES

October Term, 2008

TEJPAL SINGH,

Petitioner,

-against-

THE STATE OF NEW YORK,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

On August 25, 1996, Kamaljit and Ramjit Singh

were shot while standing with others on a street corner

in Queens, New York. Petitioner, who was riding in an

SUV with tinted windows along with several other

2

members of his group, was seen firing out the front

passenger window of the vehicle at the two men. Both

victims were shot in the back as they attempted to flee.

Ramjit survived but Kamaljit dicd at the hospital

shortly after the incident. Ballistics evidence

recovered from the scene of the crime included .45

caliber shell casings and a .38 caliber bullet, prompting

a ballistics examiner to conclude that two weapons had

been used in the shooting.

Despite an extensive search by the New York

City Police Department, petitioner was not located

until four years later when evidence was found of

telephone calls from petitioner’s family to Canada.

With the assistance of Canadian law enforcement

authorities, petitioner was arrested in August of 2000

and extradited to the United States.

For his acts, petitioner was charged with acting

in concert to murder Kalamjit Singh (New York Penal

Law § 125.25[1],[2] [two counts]), and with the

attempted murder and first-degree assault of Ramjit

Singh (New York Penal Law §§ 110/125.25[1]; 120.10

[1],[3] [two counts]).'

Petitioner proceeded to trial before the

Honorable Michael B. Aloise, Justice of the New York

State Supreme Court, and a jury. In the prosecutor's

‘Petitioner was also charged, under an acting-in-concert theory,

with Reckless Endangerment in the First Degree (New York Penal

Law § 120.25), Criminal Possession of a Weapon in the Second

Degree (New York Penal Law § 263.03), and Criminal Possession

of a Weapon in the Third Degree (New York Penal Law §

265.02{4)]).

2

opening statements, she discussed the “two guns”

theory, explaining that she could not tell the jurors if

there was a second shooter or if petitioner had two

guns, but maintaining that it did not matter because

petitioner was charged with acting in concert with

others to commit the crime. During the state’s case,

Ramjit, who knew petitioner prior to this incident,

testified about the shooting and identified petitioner as

firing a weapon from the front passenger seat.

Another witness, Sukjinder Singh, who had been

standing on the sidewalk with the two victims prior to

the shooting and who also knew petitioner prior to the

shooting, identified petitioner as being in the car.

Police witnesses described the collection and

microscopic comparison of the ballistics evidence,

including the .45 caliber shell casings found on the

street and the .38 caliber bullet found just inside the

building on the corner where the shooting took place.”

In his defense, petitioner offered statements

taken from four witnesses as declarations against

penal interest. Three of these statements suggested

that another man, Anu Singh, had fired a weapon, and

two of the statements indicated that there had been

more than one shooter. In one of the statements,

“Jassa” Singh, who resided in India at the time of trial,

told a defense investigator that he was in the SUV

when shots were fired and he identified two men, Anu

Singh and “Vicki,” as both possessing weapons and

having fired out the window. According to Jassa, one

“This bullet was found near a shirt bearing a fresh blood stain.

The shirt’s owner was never located.

4

man reached across another to fire his weapon.

“Vicki,” who resided in Canada at the time of trial, also

made a statement to a defense investigator, and,

although he claimed that he did not see the shooting,

“Vicki” believed Anu had fired because Anu was seated

on the front passenger side of the SUV. In another

statement, one “Lali” indicated that, although he was

in the car from which the shots were fired, he did not

see the shooting because he was frightened and ducked

when he heard gunfire. Finally, Anu Singh made a

statement to police investigators indicating that two

men possessed weapons on the evening of the shooting.

Anu’s written statement was read into the record, in

part, as follows:

I know Jassa and Vicki had gun because

I see in the house with the guys we are

traveling in the, it looks like, I’m not sure

of the word. I am not sure of the word.

Jinder saw the guys Goldie, Rocky, some

other people in the street went. We were

went. We were — I don’t know the word

there. Vicki said to me move back and

saw gun in hand. The pat to the window

he was. I don’t know the word. Jassa

came to front and he pulled the gun out

the same window then somebody also

then we something Jinder house. We

went to the homes and left Jinder house

and left with Te) [petitioner].

After an extensive colloquy, the trial court

refused to admit these statements as declarations

against penal interest. The trial court reasoned that

5

none of the declarants had indicated his own complicity

in the shooting.

Defense counsel also sought to obtain the live

testimony of Anu, who lived in Georgia at the time of

trial. After Anu was asked to testify, he spoke with an

attorney who worked for his employer in Georgia. Anu

subsequently declined to cooperate, refusing to appear

at the trial. As a result, the trial court authorized

service of a subpoena and signed a material witness

order to produce Anu. When Anu was brought to New

York, he was accompanied by his Georgia attorney, and

petitioner’s attorney also asked a colleague from New

York to assist in the representation of the witness.

Anu took the stand outside the presence of the jury and

invoked the Fifth Amendment in response to all

questions posed.

Defense counsel then requested that “the People

convey immunity upon this individual so he may

testify on behalf of the defendant.” In response, the

prosecutor, who under New York law could confer only

transactional immunity on the witness (see New York

Criminal Procedure Law §§ 190.40, 50.20), declined to

do so. She cited the ballistics evidence that two guns

were involved in the incident, and the court noted that

three of the statements offered by petitioner indicated

that the witness possessed one of those weapons.

Petitioner’s subsequent mistrial motion on this ground

was denied.

On appeal to the New York State Appellate

Division, Second Judicial Department, petitioner

argued that the trial court erred in failing to admit the

6

witness's statements as declarations against penal

interest and that the prosecutor abused her discretion

in denying counsel’s request to immunize Anu.

Petitioner did not argue, however, that the court had

“inherent authority” to grant immunity to the witness

and should have done so independent of the

prosecutor’s decision. The Appellate Division affirmed

the judgment. People v. Singh, 47 A.D.3d 733 (2d

Dept. 2008). The court specifically held that “[t]he

defendant’s claim that the prosecutor abused her

discretion by denying immunity is without merit,”

citing New York’s transactional immunity statute and

People v. Chin, 67 N.Y.2d 22 (1986), which holds that

a prosecutor who grants immunity to a defense witness

necessarily confers full transactional immunity under

New York law. 47 A.D.3d at 734.

Petitioner subsequently sought leave to appeal

to the New York Court of Appeals, arguing once again

that the prosecutor abused her discretion. Petitioner

did not argue that the trial court had the inherent

authority to immunize the witness, independent of the

prosecutor’s decision. A judge of the New York Court

of Appeals denied leave to appeal, without opinion.

People v. Singh, 10 N.Y.3d870 (2008).

Petitioner now seeks a writ of certiorari directed

to the Appellate Division, New York’s intermediate

appellate court.

REASONS FOR DENYING THE WRIT

Petitioner argues that this Court should grant

certiorari because of a split among the federal circuit

7

courts as to the circumstances under which a

prosecutor may be compelled to grant immunity to

allow a defense witness to testify. This argument

should be rejected, and certiorari denied, for at least

two reasons. First, contrary to petitioner's claim, no

split of authority currently exists on this issue, as only

one circuit has at any time deviated from what

petitioner describes as the “majority view,” and that

circuit has since limited its sole errant decision strictly

to its facts, effectively eliminating its precedential

value. Second, in this case, the outcome would be the

same regardless of whether the issue were analyzed

under the majority view or the lone, now discredited

case adopting a different position. Thus, petitioner has

failed to establish a genuine conflict or that this case

presents facts that would implicate the purported

distinction among the circuits. Moreover, in making

his conflict argument, petitioner conflates two separate

issues, only one of which was properly raised in state

court, and thus only one of which would be reviewable

here. For these reasons, this Court should decline to

grant review in this case.

A. The Question of Whether a State Court Has

theInherent Authority to Grant Immunity is Not

Reviewable in This Court.

At the outsec, it is important to distinguish

between two related but analytically distinct issues

identified by petitioner in the body of the petition, only

one of which would be properly before this Court

should it grant review. In his “Reasons for Granting

the Writ,” petitioner first raises the issue of whether a

8

court possesses the inherent authority to grant

immunity to a defense witness when the prosecution

denies it. Petition at 9. This issue raises questions

concerning the historical jurisdiction of state and

federal courts, whether provisions of the bill of rights

may be read to confer jurisdiction on a state or federal

court that it does not otherwise possess, and whether

a court would offend the separation of powers clause by

usurping authority otherwise reserved to the

prosecution. See, e.g., United States v. Turkish, 623

F.2d 769, 773-76 (2d Cir. 1980), cert. denied, 449 U.S.

1077 (1981); Government of Virgin Islands v. Smith,

615 F.2d 964, 969-74 (3d Cir. 1980). The second,

analytically distinct issue is whether, under a given set

of circumstances, a prosecutor may be deemed to have

abused his or her discretion in declining to grant

immunity. See Petition at 10; Smith, 615 F.2d at 969-

70; United States v. Ebbers, 458 F.3d 110, 119-120 (2d

Cir. 2006), cert. denied, 127 S.Ct. 1483 (2007). This

issue raises questions concerning the conduct of the

prosecutor and his or her possible overreaching, rather

than the jurisdiction possessed by the trial court.

The first issue is not presented by this case

because petitioner did not properly present that

contention to the state courts. It is the “settled

practice of this Court, in the exercise of its appellate

jurisdiction, that it is only in exceptional cases, and

then only in cases coming from the federal courts, that

it considers questions urged by a petitioner or

appellant not pressed or passed upon in the courts

below.” Kentucky v. Stincer, 482 U.S. 730, 747 n. 22

(1987) (internal quotation marks and citations

omitted): see also Cardinale v. Louisiana, 394 U.S. 437

9

(1969); Tacon v. Arizona, 410 U.S. 351, 352 (1973).

This is because, among other things, in a federal

system, it is important for the state courts to consider

the federal constitutional issue first before the federal

judiciary steps in to correct any error. Cardinale, 394

U.S. at 438; Illinois v. Gates, 462 U.S. 213, 221 (1983).

In order to comply with the requirement that the issue

first be presented to the state courts, the petitioner

must raise the issue not only in the trial court but also

on appeal. Bailey v. Anderson, 326 U.S. 203, 206-07

(1945); Eugene Gressman, Kenneth Geller, Stephen

Shapiro, Timothy Bishop, and Edward Hartnett,

Supreme Court Practice § 3.18(c) (9° ed. 2007). This

includes raising the issue in the state’s highest court

and, if different, in the court that issued the decision

that this Court’is asked to review. See Adams uv.

Robertson, 520 U.S. 83, 86 (1997) (“With ‘very rare

exceptions,’ we have adhered to the rule in reviewing

state court judgments under 28 U.S.C. § 1257 that we

will not consider a petitioner's federal claim unless it

was either addressed by, or properly presented to, the

state court that rendered the decision we have been

asked to review’; citations omitted); Beck v.

Washington, 369 U.S. 541, 549-53 (1962) (equal

protection issue not reviewable because not raised in

state supreme court, although other constitutional

issues properly presented).

Here, petitioner failed to raise the “inherent

authority” issue properly in either state appcllate

court.’ On appeal to the intermediate appellate court,

‘In the trial court, petitioner stated at one point, “I would ask

_ the court to convey immunity on [the witness].” Petitioner did not,

10

which issued the decision that petitioner now asks this

Court to review (Petition at 1), petitioner argued that

the prosecution abused its discretion by not granting

immunity, but did not argue that the court had the

inherent power to grant immunity or that it should

have done so over the prosecutor’s objection. Similarly,

in his application for discretionary review in the state’s

highest court, petitioner again raised the issue only in

terms of the prosecutor’s abuse of discretion, rather

than the inherent authority of the court to grant

immunity. Because petitioner failed to raise this

contention in either of these courts, the issue would not

properly be before this Court for its consideration if

certiorari were granted.

Indeed, this circumstance alone provides

sufficient cause to deny the petition. Should the Court

grant certiorari, its review of the issues potentially

raised under circumstances such as those here would

be severely truncated. The “inherent authority” issue

is frequently raised in cases such as petitioner’s, but

this Court would be unable to address that issue in

this case. Moreover, many of the cases cited by

petitioner in connection with the purported split of

authority among the circuits involve the “inherent

authority” issue. Thus, the split, if indeed there is any

at all, largely involves a question not presented by this

case. For these reasons alone, this Court should

decline to grant certiorari.

however, invoke the “inherent authority” of the court, either as

derived from state case law or federal constitutional principles.

es

1]

B. No Conflict Exists Among the Circuit Courts

on the Question Raised by Petitioner.

Petitioner argues that the circuit courts have

used two different “modes of analysis” in determining

whether a prosecutor may be compelled to grant

immunity to a defense witness. According to

petitioner, one view adopts an “effective defense”

theory, under which a court may exercise inherent

authority to immunize a witness if the witness is

required for an effective defense. Petition at 20. The

“prosecutorial misconduct” view, on the other hand,

allows a court to dismiss a case or order a prosecutor to

grant immunity when the prosecutor has overreached,

by, for example, intimidating the defense witness with

threats of prosecution or building his case on

immunized testimony. Petition at 21. Contrary to

petitioner’s claims, no split of authority currently

exists among the circuit courts sufficient to warrant

review here. The sole circuit that purportedly adopted

the “effective defense” theory has posited this theory

solely with regard to the “inherent authority” question

not presented by this case. Moreover, that court has

since limited its own case strictly to its facts, virtually

eliminating its precedential value. Accordingly,

petitioner has failed to establish a “substantial

conflict” warranting a grant of certiorari in this case.

See Boggs v. Boggs, 520 U.S. 833, 839 (1997).

According to petitioner, the “effective defense”

theory was adopted by the Third Circuit twenty-cight

years ago in the case of Government of Virgin Islands

v. Smith, 615 F.2d 964 (3d Cir. 1980). There, the Third

Circuit first addressed whether the prosecution had

12

abused its discretion in declining to grant immunity.

On this issue, the court, after finding a prima facie

case of prosecutorial miscondv -t, remanded the matter

for an evidentiary hearing to determine whether the

prosecutor acted with the “deliberate intention of

distorting the fact-finding process.” Id. at 969. Such

a finding, according to the court, would justify

dismissing the case unless the prosecution consented

to confer statutory immunity. The court alternatively

theorized, however, that a trial court may have its own

inherent authority to grant immunity under certain

circumstances, regardless of the objection of the

prosecution. Such a grant of authority would be

“clearly limited,” requiring a showing, inter alia, that

the proffered testimony is clear, unambiguous, and

exculpatory, the testimony is essential to the defense,

and the government has no strong countervailing

interest.

This single case is insufficient to establish a

substantial split of authority for several reasons. First,

on the only issue presented by the case at bar — the

circumstances under which a prosecutor will be

deemed to have abused his or her discretion in denying

immunity — Smith is consistent with the other federal

circuits that require a showing of serious prosecutorial

misconduct. Indeed, on this issue, Smith specifically

required the defense to establish, at an evidentiary

hearing, that the prosecutor engaged in misconduct by

refusing to grant immunity “with the deliberate

intention of distorting the fact-finding process.” Id. at

969. As the Third Circuit specifically stated with

regard to this issue, “Absent this type of prosecutorial

misconduct, defendant is foreclosed from insisting that

13

statutory immunity be granted his witness.” /d. at

968. Moreover, before even taking the step of

remanding for a hearing, the Third Circuit first found

a prima facie case of prosecutorial misconduct. Jd. at

969. Thus, as to this issue, the Third Circuit’s decision

requires a showing of serious prosecutorial abuse, just

as do the circuits cited as having adopted the

“prosecutorial misconduct” standard. Id. at 968-69.

Second, even on the inherent-authority issue,

the Third Circuit quickly limited the Smith decision to

its own specific facts. Indeed, the Third Circuit has

expressly acknowledged that “Smith has subsequently

been limited to its particular facts by this court.”

United States v. Santtini, 963 F.2d 585, 598 n. 6 (3d

Cir. 1992); see United States v. Lowell, 649 F.2d 950,

965 (3d Cir. 1981) (comparing and distinguishing facts

of Smith and declining to extend Smith beyond those

facts). And in the twenty-eight years since Smith has

been decided, the Third Circuit has never concluded

that Smith required or permitted a trial court to grant

immunity, despite the frequent efforts of defendants to

take advantage of the Smith decision.* In addition,

“See Virgin Islands v. Edwards, 233 Fed. Appx. 167 (3d Cir.

2007): United States v. Leary, 206 Fed. Appx. 111 (3d Cir. 2006);

United States v. Gaudelli, 134 Fed. Appx. 565 (3d Cir. 2005);

United States v. Thomas, 357 F.3d 357 (3d Cir. 2004); United

States v. Mack, 78 Fed. Appx. 171 (3d Cir. 2003), cert. denied, 541

U.S. 956 (2004); United States v. Cohen, 171 F.3d 796 (3d Cir.

1999); United States v. Hamilton, 46 F.3d 271 (3d Cir. 1995);

United States v. Santtini, 963 F.2d 585 (3d Cir. 1992); United

States v. Ammar, 714 F.2d 238 (3d Cir.), cert. denied sub nom.

Stillman v. United States, 363 U.S. 936 (1983); United States v.

Bazzano, 712 F.2d 826 (3d Cir. 1983); United States v. Steele, 685

F.2d 793 (3d Cir.), cert. denied sub nom. Mothon v. United States,

14

since Smith, trial courts within the Third Circuit have

noted the extremely limited applicability of that case,

particularly in light of this Court’s intervening

pronouncement in Pillsbury Co. v. Conboy, 459 U.S.

248, 260-61 (1983), that “[n]o court has authority to

immunize a witness.” See, e.g., United States uv.

Payment Processing Co., 443 F.Supp.2d 728, 733 (E.D.

Penn. 2006) (questioning whether Smith could be

reconciled with this Court’s statement in Conboy,

explaining Smith’s “limited vitality,” and stating that

“Smith’s reach is most likely limited to misconduct

involving the government’s use of the immunity

process itself’); United States v. Pratt, 2007 U.S. Dist.

Lexis 41155 *3-4 (W.D. Pa. June 6, 2007) (Third

Circuit “consistently has limited Smith to its unique

facts”); United States v. Throckmorton, 2006 U.S. Dist.

Lexis 8372 *4 (W.D. Pa. March 3, 2006) (noting that

Third Circuit has never applied Smith to authorize

grant of judicial immunity and that Smith has been

limited to its facts).

Moreover, since Smith, the Third Circuit has

suggested that its finding of inherent authority was

based on the court’s supervisory powers over lower

federal courts. United States v. Acetturo, 783 F.2d 382,

396 (3d Cir. 1986) (“In various circumstances, this

court has used its inherent supervisory power to

establish rules that will effectuate the defendant’s

constitutional rights”; citing Smith). This would

explain the absence of any Third Circuit case in the

last 28 years discussing Smith as applied to state court

judgments.

459 U.S. 908 (1982); United States v. Lowell. 649 F.2d at 950.

15

In short, since Smith was decided, the doctrine

has been so limited by the court that created it that its

precedential value is virtually nil, and its effect

virtually non-existent, even within the Third Circuit.

Thus, Smith is hardly sufficient by itself to create a

genuine conflict worthy of this Court’s review.

Petitioner also contends, however, that the

Ninth Circuit has adopted Smith’s effective-defense

theory, at least to some degree. See Petition at 20.

This is not so. In United States v. Lord, 711 F.2d 887

(9 Cir. 1983), cited by petitioner, the Ninth Circuit

adopted only the “prosecutorial misconduct” portion of

the Smith opinion, remanding for a hearing based on

an “unrebutted prima facie showing of prosecutorial

misconduct.” Jd. at 891. In fact, the Ninth Circuit,

referencing the “inherent authority” portion of the

Smith opinion, expressly stated that it was not

“address[ing] this alternative theory.” Jd. at 891 n.2.

More recently, the Ninth Circuit has made clear that

it requires a showing of prosecutorial misconduct when

the defense claims that a defense witness should have

been immunized. Williams v. Woodford, 384 F.3d 567,

600 (9° Cir. 2004) (requiring showing that “(1) the

witness’s testimony would have been relevant, and (2)

the prosecution refused to grant the witness use

immunity with the deliberate intention of distorting

the fact-finding process”), cert. denied sub nom.

Williams v. Brown, 546 U.S. 934 (2005).

Moreover, contrary to petitioner’s further

suggestions, the minor variations among the courts

adopting the “prosecutorial misconduct” mode of

analysis do not establish a difference of opinion

16

warranting review. First, these circuit courts have all

uniformly and unequivocally rejected the alternative

theory in Smith allowing a court to grant immunity

based solely on the defendant’s need for an effective

defense. See United States v. Anguilo, 897 F.2d 1169

(1* Cir. 1990) (citing “nearly universal” rejection of

effective-defense theory and collecting cases), cert.

denied sub nom. Granito v. United States, 498 U.S. 845

(1990); United States v. Capozzi, 883 F.2d 608, 613-14

(8 Cir. 1989) (“Every court of appeals which has

considered the question has rejected the Third Circuit’s

Smith holding”), cert. denied, 495 U.S. 918 (1990); see

also United States v. Castro, 129 F.3d 226, 232 (1 Cir.

1997) (referring to the “late, unlamented effective

defense theory”), cert. denied, 523 U.S. 1100 (1998).

Second, all of the circuit courts that have been squarely

confronted with the issue have articulated the same

fundamental requirements for compelling a prosecutor

to grant immunity: a substantial showing of

prosecutorial overreaching, often phrased in terms =f

a deliberate attempt to distort the fact-finding process

or to intimidate a witness, and a showing of the

defendant’s need, usually including the clear

exculpatory value of the testimony and the inability to

obtain the testimony elsewhere. This test, with only

slight variations, has explicitly been adopted by the

Second, Fourth, and Ninth Circuits.” The Eighth

*See United States v. Ebbers, 458 F.3d 110, 119-20 (2d Cir.

2006) (requiring demonstration of overreaching, that proffered

testimony is “material, exculpatory and not cumulative,” and that

evidence is “|not} obtainable from any other source”), cert. denied,

127 S.Ct. 1483 (2007); United States v. Washington, 398 F.3d 306,

310 (4° Cir), cert. denied, 545 U.S. 1109 (2005) (ic ,uiring

“decisive showing of prosecutorial misconduct or overreaching”

17

Circuit has similarly adopted this view, requiring in

separate cases that the proffered evidence be “clearly

exculpatory,” United States v. Kehoe, 310 F.3d 579, 591

(8 Cir. 2002), cert. denied, 538 U.S. 1048 (2003), and

that the defendant make “a ‘substantial evidentiary

showing’ that the government intended to distort the

judicial fact-finding process,” United States uv.

Washington, 318 F.3d 845, 855 (8" Cir.), cert. denied,

540 U.S. 899 (2003) (citations omitted). The First

Circuit, in rejecting Smith, has adopted the Second

Circuit view, specifically citing the need for a showing

of intentional misconduct, including witness

intimidation by threats of prosecution or, again, the

deliberate distortion of the fact-finding process. See

United States v. Mackey, 117 F.3d 24 (1% Cir. 1997);

United States v. Anguilo, 897 F.2d at 1169. And the

Tenth and Eleventh Circuits, while rejecting Smith

and adopting the prosecutorial misconduct view, have

simply not had occasion to spell out a more detailed

version of the test. See United States v. Serrano, 406

F.3d 1208 (10" Cir.), cert. denied, 546 U.S. 913 (2005);

United States v. Chalan, 812 F.2d 1302 (10 Cir. 1987);

United States v. DiBernardo, 880 F.2d 1216 (11 Cir.

1989); United States v. Gottesman, 724 F.2d 1517 (11"

Cir. 1984). Thus, petitioner has failed to establish that

decisions of the circuit courts are in any meaningful

way inconsistent with one another. ;

and that “the proffered evidence would be material, exculpatory,

and unavailable from all other sources”); Williams v. Woodford,

384 F.3d 567, 600 (9° Cir. 2004) (requiring showing that

prosecution refused to grant immunity with deliberate intention

of distorting fact-finding process and demonstration of relevance

of witness's testimony), cert. denied sub nom. Williams v. Brown,

546 U.S. 934 (2005).

18

In addition, the New York Courts have

expressed views consistent with these decisions. New

York cases have required a grant of immunity upon a

showing of prosecutorial abuse, such as when the

prosecutor has built his case on immunized testimony

but denied the same to the defendant or affirmatively

threatened the witness in question with prosecution.

United States v. Dolah, 245 F.3d 98 (2d Cir. 2001);

United States v. Bahadar, 954 F.2d 821 (2d Cir.), cert.

denied, 506 U.S. 850 (1992). And, like the federal

courts, the state courts have also emphasized the

importance of a showing that the proffered testimony

is exculpatory and vital to the defense. People v. Owen,

63 N.Y.2d 824 (1984); People v. Shapiro, 50 N-Y.2d 747

(1980). These cases, then, fail to demonstrate any

federal/state conflict warranting review here.

Furthermore, the two dissenting opinions from

denials of certiorari upon which petitioner so heavily

relies do little to suggest that certiorari should be

granted here. Both those dissents raise only the issue

of the inherent authority of a court to grant immunity,

an issue not presented by this case. See Hunter v.

California, 498 U.S. 887 (1990) (discussing need to

review question of “judicial immunity”); Autry v.

McKaskle, 465 U.S. 1085, 1087 n.3 (1984) (“Petitioner

contends that the trial court committed constitutional

error when it refused to grant use immunity to

[defense witness]”). Moreover, both view that issue

from the perspective of the outdated legal landscape

existing more than eighteen years ago, when the Smith

decision could still have been seen as having some

vitality. Finally, the views in these dissents quite

obviously failed to command a majority of the Court,

19

and this Court’s more recent denials of certiorari on

this issue failed to raise any disagreement whatsoever

on the worthiness of this contention for review in this

Court. See, e.g., Ebbers v. United States, 127 S.Ct.

1483 (2007); Ko v. New York, 546 U.S. 1093 (2006).

Because petitioner has presented no new or better

reason for this Court to grant review than was

previously available, this Court should deny certiorari

in this case.

C. Under the Facts Present Here, the Outcome

Would be the Same Regardless of the Theory

Espoused.

Under the facts of this case, the trial court’s

refusal to force the prosecution to grant immunity

would be upheld under either the prosecutorial-

misconduct theory or the Third Circuit’s effective-

defense theory as articulated in Smith. As a result,

this case presents a poor vehicle for resolution of the

supposed conflict.

Initially, there is no question that the

prosecution’s conduct here passes muster under the

“prosecutorial misconduct” test. At no point did the

prosecution engage in the type of overreaching conduct

cited by the courts espousing this theory. The

prosecution: in no way threatened Anu Singh, the

witness petitioner attempted to call; indeed, there is no

indication that the prosecutor so much as spoke to the

witness at any time. Moreover, at the time the police

spoke to the witness, he was fully cooperative, and the

record reflects that Anu’s later refusal to testify was

the result of his consultation with his employer's

20

attorney in Georgia, long before he arrived in New

York. Morever, it was defense counsel who secured a

New York attorney for the witness, who also advised

him to invoke the Fifth Amendment. Thus, the

prosecution was in no way responsible for the witness’s

invocation of the privilege.

Similarly, the prosecution did not build its case

with immunized testimony and then refuse to

immunize defense witnesses. The prosecution’s case

did not include the testimony of any accomplice, but,

rather, rested on the eyewitness testimony of the

surviving victim and other witnesses who happened to

be at the scene. Nor is there any indication that the

prosecution deliberately sought to distort the fact-

finding process in any way. Accordingly, no basis

exists for finding that the prosecutor engaged in abuses

sufficient to fall within the-showing required by the

prosecutorial misconduct test.

The facts here would also not support reversal

under the effective defense theory articulated in Smith.

In Smith itself, the Third Circuit recognized that a

court’s inherent authority to confer immunity must be

“bounded by special safeguards” and “made subject to

special conditions.” 615 F.3d at 971-72. Thus, the

court stated that the defense must make a “convincing

showing” that the defense witness is available to

testify; the proffered testimony is “clearly exculpatory,”

the testimony is “essential” to the defense, and there is

no strong governmental interest in denying immunity.

Id. at 972. Under these standards, “[i}mmunity will be

denied if the proffered testimony is found to be

ambiguous, not clearly exculpatory, cumulative or if it

21

is found to relate only to the credibility of the

government's witnesses.” Jd. Similarly, immunity will

be denied if the testimony is likely to be severely

impeached. United States v. Perez, 280 F.3d 318, 348

(3d Cir. 2002), cert. denied, 537 U.S. 859 (2002).

Additionally, a “potential prosecution of the

prospective witness is a sufficient governmental

interest to countervail'a grant of judicial immunity.”

See United States v. Cohen, 171 F.3d 796, 802 (3d Cir.

1999) (upholding denial of judicial immunity where

witness “under investigation”); United States v. Lowell,

649 F.2d at 965 (upholding denial of judicial immunity

and noting prosecution’s “arguable reason” for denying

immunity based on possibility of future prosecution).

This case fails to satisfy these standards on

several grounds. First, the proffered testimony lacked

clarity and was ambiguous at best. Indeed, Anu’s

statement, as read to the trial court, was barely

intelligible in many respects —consistently interrupted

by wholly unintelligible words and phrases. The

statement also contains no reference to times. At best,

it suggests that at some point while he was in the car

on the evening of the shooting, Anu saw two

individuals other than petitioner pull out guns, but the

witness fails to indicate that the weapons were fired at

that time. Perhaps more importantly, Anu made other

inconsistent statements as well, including one which,

according to petitioner, indicated that Anu was not in

the SUV at the time of the shooting. See Petition at 6.

Thus, at the time the proffer was made, it was not at

all clear what the substance of the witness’s testimony

would be.

22

Second, the witness was subject to substantial

impeachment. The witness’s differing versions of

events would provide fertile ground for impeachment

by the prosecution, as would the witness’s close

friendship with petitioner and joint membership in the

group that was a rival to the victims’.

Third, the state had a more than adequate

interest in denying immunity. As the prosecutor told

the jury in her opening statement, evidence in the case

suggested that there might have been more than one

shooter. Ballistic evidence recovered at the scene

included different caliber bullets, one of the statements

offered by the defense also indicated that there were

multiple shooters, and Anu’s statement suggested that

more than one person in the car possessed weapons. In

addition, several of the statements, including Jassa’s,

indicated that Anu was one of the shooters. Jassa

claimed to have seen Anu and another firing, and two

other statements also indicated that Anu had fired a

weapon from the car. Indeed, petitioner steadfastly

maintained at trial that Anu was in fact a shooter,

although he argued that Anu was the only one who

fired. Thus, there existed substantial evidence of

Anu’s direct involvement in the fatal shooting, a

circumstance that would legitimately prompt any

prosecutor to deny immunity.

Furthermore, contrary to petitioner’s contention

(Petition at 36), no evidence excluded the possibility

that Anu was a shooter. The vehicle from which the

shots were fired had tinted windows, which could

easily have obscured a second shooter. This is

particularly true if, as Jassa suggested, one of the

23

shooters reached across another shooter to fire his

weapon. Moreover, because the two victims, who were

shot in the back, turned and ran as gunfire erupted,

they may well have failed to observe the second

shooter, particularly if the second assailant began

firing after the first. In addition, because the shots

were fired from inside the SUV, discharged shell

casings from an additional weapon would not

necessarily be found on the street, although at least

one different-caliber bullet was found near the scene. —

Nor did the fact that the fatal bullet and the .45 caliber

shell casings matched preclude a second shooter.

Indeed, this fact established only that the shooter who

fired the .45 caliber weapon had managed to hit his

target, nct that no one else could have fired a weapon

in the direction of the victims.

Furthermore, under New York law, the

prosecution would have been required to grant the

witness transactional immunity, and not just use

immunity. As the New York Court of Appeals has

noted in considering whether prosecutors have abused

their discretion in denying immunity to defense

witnesses, while the constitution requires only use

immunity to overcome the assertion of the Fifth

Amendment privilege, “[oJur immunity statutes (CPL

190.40, 50.20)... grant full transactional immunity for

any topic discussed by the witness within the scope of

the proceeding (see, Matter of Brockway v Monroe, 59

NY2d 179, 189; People v Perri, 53 NY2d 957, affg 72

AD2d 106; People v McFarlan, 42 NY2d 896, revg 52

AD2d 112, on opn at 89 Misc 2d 905), and prosecutors

are, therefore, understandably reluctant to request

that such immunity be conferred.” People v. Chin, 67

24

N.Y.2d at 33 n. 4. Thus, here, the prosecution would

have had to have conferred full transactional immunity

on Anu, foregoing any future prosecution of him

regardless of evidence that might later become

available. Under these circumstances, the district

attorney’s office was “understandably reluctant” to

forego ever bringing Anu, a likely participant in the

shootings, to justice.®

Moreover, contrary to petitioner’s contention,

the fact that the prosecution had declined to charge

Anu prior to petitioner’s trial based on the evidence

that. was then available does not suggest that the

prosecution had no interest in ever prosecuting Anu.

At the time of trial, the only admissible evidence

against Anu was his own garbled statement. That

statement at most suggested that Anu was in the car

at the time of the shooting, and this alone would not

provide a legally sufficient case against him. People v.

Sanchez, 61 N.Y.2d 102 (1984). The other statements

implicating Anu were made by individuals who were

then outside the United States. Jassa, for example,

who provided the most damning evidence against Anu,

was an Indian national then residing in India. And

Vicki, who provided another statement suggesting that

Anu had fired a weapon, also resided outside the

United States. Thus, the prosecution had far too thin

°Petitioner never argued in state court that the court ur the

prosecutor had the authority to confer use immunity. His non-

specific request for immunity in state court would necessarily be

taken as one for transactional immunity, s:1ce this was and is the

only type of immunity allowed in a New York criminal proceeding.

25

a basis on which to charge Anu for the murder and

attempted murder at the time of petitioner’s trial.

-~ This, however, in no way precluded the district

attorney’s office from pursuing a prosecution later, :

should sufficient evidence subsequently become

available. For example, if the witnesses who made the

inculpatory statements were to return to the United

States, or if Anu made an unguarded admission to a

civilian, the prosecution could legitimately charge Anu

later on. Indeed, because no statute of limitations

exists in New York for murder charges, see N.Y.C.P.L.

§ 30.10 (1)(a), many state murder cases are brought

long after the crime occurs, as new evidence is

developed. See, e.g., People v. Vernace, 96 N.Y.2d 886

(2001) (upholding indictment in sixteen-year-old

murder case by same prosecutor’s office as here, based

on evidence developed by NYPD “Cold Case Homicide

Squad”); People v. Jones, 267 A.D.2d 250 (2d Dept.

1999) (seven-year delay); People v. Hayes, 39 A.D.3d

1173 (4 Dept. 2007) (sixteen-year delay). In short, the

prosecution’s inability to file charges early on simply

did not suggest that the prosecution could have no

legitimate interest in ever bringing charges against the

witness. People v. Adams, 53 N.Y. 2d 241, 247 (1981)

(“Neither, in our view, can the prosecutor be said to

have acted in bad faith whenever he refuses to grant

absolution to a participant in the crime who has thus

far eluded prosecution”). :

Still further, had the witness been granted

immunity, he could readily have colluded with

petitioner, his friend and the victims’ adversary, to

falsely exonerate petitioner. Anu could have claimed

26

that he alone was responsible for the shootings and

that petitioner took no part, and, despite these

admissions, could still have avoided any prosecution on

murder or attempted murder charges. Moreover, any

prosecution of Anu for perjury would be fraught with

problems, as the state had only Anu’s incoherent prior

unsworn statement to establish he was lying. Given

these circumstances, it would, again, be reasonable for

any prosecutor to be concerned about the prospect of

such collusion. :

Thus, the prosecution had ample grounds on

which to deny Anu immunity - a potential, but

currently untenable, prosecution of the witness who

petitioner maintained had been directly involved in the

incident and who had been implicated by other, then

unavailable, witnesses. This is precisely the “potential

prosecution of the prospective witness” that even the

Third Circuit has deemed “a sufficient governmental

interest to countervail a grant of judicial immunity.”

United States v. Cohen, 171 F.3d at 802. Added to this

was a very realistic prospect of collusion, about which

the prosecution could have done virtually nothing.

Because the government had such a strong interest in

denying immunity, the trial court would not have been

required to grant judicial immunity, even under the

Third Circuit’s outdated “effective defense” theory. Id.

Thus, the facts of this case would produce the

same result under either the prosecutorial misconduct

or effective defense theories. The case then, is ill-

suited to resolve the purported conflict between the

circuits, if indeed one were deemed to exist.

27

CONCLUSION

Contrary to petitioner’s contention, the issue

presented by this appeal is not the subject of any active

conflict among the circuit courts. The disagreement

cited by petitioner pertains to an issue not presented

by this case, because petitioner did not properly raise

it in the state courts. And even on that issue, the split

of authority is illusory at best, as the only case to adopt

an adverse position to the majority has since limited its

own decision to its specific facts. In the absence of a

genuine conflict, petitioner has presented no sound

reason for this Court to grant review. Accordingly, the

petition for certiorari should be denied.

Respectfully submitted,

RICHARD A. BROWN

District Attorney, Queens County

JOHN M. CASTELLANO*

USHIR PANDIT

Assistant District Attorneys

*Counsel of Record for the

Petitioner

October 9, 2008