*1 BRIGHT, 1978. Before LAY Circuit March Submitted SICKLE,* Judge. VAN District Judges, and Sept. 1978. Decided Rehearing En Banc Rehearing and LAY, Judge. Circuit 2, 1978. Denied Oct. A. in a

James Saettele was convicted conspiracy trial on two counts of bench receiving, storing knowingly concealing, selling goods moving stolen in inter- state commerce violation of 18 U.S.C. (1976).1 On appeal he contends §§ judgment acquittal that his motion granted the evi- should have been because clearly acting established that he was dence duress. Saettele also contends that under refusing the district court erred in two whose immunity to defense witnesses verify he claimed his de- We fense of duress. affirm.

The indictment returned he, Joseph with alleged conspiracy Thomas had received Sargis, McGirr and * Sickle, Saettele was sentenced serve concurrent States District Van Bruce M. years Dakota, imprisonment sitting Judge, des- of three on each of North terms District ignation. count. *2 At trial based his on his Saettele defense approximately to sell attempted and going into claim that he had been coerced McGirr, testifying jewelry. of stolen

pieces fencing operation because of along prosecu- from of a under the lives threats made of himself witness at key tion, the Government’s was when family. his He testified that and 5, 1976, February on related trial. He contacted him about Chappel Marshall first Briddle and Russell Sargis he, Thomas jew- him that jewelry, Chappel the told the jewelry deal- of a apartment into the broke jeweler want- elry came from a retired who Florida, ap- Beach, and stole er in Miami his collection. When ed to sell Saettele jewelry. In an of pieces proximately Sargis in March later met with McGirr and men the three jewelry the to sell attempt jewelry to the began suspect he they were intro- where Louis to went St. He was was stolen and tried to leave. Chappel, a Marshall to duced Saettele McGirr, stopped by jewel- who told him the of Saet- acquaintance and jeweler part-time “hot” and to kill ry was threatened Saettele tele. he out the family and his if tried to back of liked the that Saettele testified McGirr go police. the Both transaction or to money enough to not have but did jewelry Sargis guns. were armed with McGirr and however, meeting, At a second it. purchase testify May subpoenaed In when McGirr, Sargis Chap- and informed Saettele jury, rejected a grand before the Saettele money get he could thought he pel that and government offer refused gave He McGirr jewelry. purchase testify grounds. fifth amendment At on cash, $4,000 the title to two in Sargis and explained that he refused the offer trial he automobiles, ring, and in and a diamond he because feared McGirr and worth about received bracelets return he family him or his if he Sargis would harm $40,000. testified. Miami for trip to After an unsuccessful story. wife corroborated his Saettele’s borrowing money an- from purpose when told her She testified that Saettele dealer, again met jewelry Saettele other involvement, suggested go his she that he Sargis. and McGirr stated with McGirr further police. She testified that meeting agreement was that at this replied that he could not because Saettele which would sell reached in Saettele Sargis McGirr and had threatened to kill Under the terms jewelry consignment. family anything if he him and his said deal, of the would take most of the Saettele jewelry. The about the stolen $10,000 and payment down jewelry for a witnesses, stipulated that two other a also $40,000 it as he pay would an additional friend of Mrs. and Mrs. Saettele’s Saettele’s the car Sargis and returned sold it. McGirr mother, testify that Mrs. Saettele kept but ring to Saettele titles and diamond Sargis them that had related to McGirr and $4,000 apparently used cash. Saettele had threatened to kill her husband and the loan, $6,000 which a car titles to obtain family anyone his if he told about rest of complete Sargis gave he to McGirr jewelry. the stolen $10,000 point At payment. down Sargis Thomas Saettele also called substantially all of the received Chappel as witnesses on his behalf. Marshall jewelry. courtroom, in the Both men were agents FBI exchange, Subsequent to Chappel subpoena Sargis under under a concerning the stolen corpus contacted Saettele writ of habeas ad testificandum. interview, de- stand, jewelry. During was called to the Chappel When McGirr. After- knowing Sargis prosecutor nied informed the court that returned all wards, refuse to on fifth amendment he located jewelry grounds. remained A bench conference disclosed jewelry. the unsold had, prosecutor prior evening, until the until his arrest St. Sargis’ possession Chappel immunity prepared been on June Louis a his as defense of duress a defendant to secure in order con- Although time witness. criminal case must show a government reasonable fear prosecutor ob- prevented straints of death or bodily injury serious and the under taining a formal opportunity absence of a reasonable to es n (1976), Chappel §§ U.S.C. cape or avoid the threatened danger.2 *3 a letter if he received agreed Gordon, 406, United States v. 526 F.2d attorney de- acting United States from (9th 1975). Cir. United See States v. evening, That how- clining prosecution. Hearst, 1331, (9th 563 F.2d 1335 n.l Cir. ever, supporting statements Chappel made 1977), denied, 1000, cert. 435 U.S. 98 S.Ct. prosecu- contentions. The duress Saettele’s 1656, (1978); 56 L.Ed.2d 90 v. States counsel of these tor informed Saettele’s Michelson, 567, (9th 1977); 559 F.2d Cir. statements, Chappel decided not to call as a Patrick, 381, United States v. 542 F.2d witness, withdrew the offer of immuni- and (7th denied, 1976), 931,97 Cir. cert. 430 U.S. ty. 1551, (1977). L.Ed.2d 775 anticipated, Chappel Sargis both and As Assuming arguendo that the evidence their fifth amendment asserted presented was sufficient to establish a rea- testify. refused to made a and Saettele sonable apprehension of injury, nothing in testimony of the wit- motion suggests the record that Saettele any made the court either to nesses and asked attempt to escape or avoid the threatened compel the immunity them or to Govern- danger or was prevented from doing so at sup- for them. In ment to seek any time. In fact Saettele’s es- motion, port of this Saettele introduced a tablishes the opposite. stipulation attorney that an associated with would, if called to Saettele his trial counsel testified that he received .first stand, testify early that he had interviewed the threat Sar- March 1976. Saettele Chappel and both had told him that gis and then testified day that after receiving with they had threatened Saettele death if the threat he flew alone to Miami. Follow go through fencing he did ing wife, his return he informed his who scheme. suggested go that he to the police. In addition Saettele stated that after his inter The district court denied Saettele’s mo- FBI, view with the his contacts with McGirr tion, that it have inherent ruling did not Sargis and were “off and on.” In sum witnesses when nothing in the record supports any claim it. apply did not for Saet- injury threat of was immediate. to strike thereupon tele made a motion Patrick, See 542 F.2d testimony and a motion to dismiss McGirr’s (7th 1976), denied, 386-88 Cir. cert. 430 U.S. prosecution because of the unfairness of refusal to immuni- the Government’s witnesses. The district court

ty to his de- disposition Our of this issue renders it subsequently nied both motions and found unnecessary for us to determine whether or guilty. not the district court in denying erred Saet- concerning tele’s motions argues the evidence Sar- gis and presented support assuming of his asserted defense Even Sargis requires judgment acquittal. Chappel of duress and would have corroborated Saet- disagree. successfully In order to raise tele’s we testimony3 agree We with the district opportunity danger definition of duress is contained 2. The classic to avoid the act without in Shannon v. United 76 F.2d of that kind cannot invoke the doctrine of (10th 1935): coercion . which will excuse the commission Coercion large assumption. Sargis 3. This is a Both and of a criminal act must be immediate and of Chappel previously prosecu- had informed the well-grounded such nature as to induce a family tion that neither Saettele nor his were apprehension bodily inju- of death or serious buy any jewelry. threatened or forced to ry if the act is not done. One who has full that defendant had sufficient basis for rejecting “it is clear thus, is, escape Chappel Sargis in my opinion, many opportunities improper available.” basis an is not Saet- affirmance this of duress defense testimony negates element of court. own tele’s

inescapability. The district court also stated that possibility prosecution is affirmed. of state judgment of conviction deter testifying even if

BRIGHT, Judge, dissenting. Circuit granted. disagree were I with hypothesis. Immunity granted by a For reasons stated dissent. respectfully I federal court extends to state as well as below, must consider I this court believe Kastigar v. Unit- prosecutions. federal contention accept part Saettele’s ed *4 441, 456-59, 406 U.S. 92 S.Ct. a fair trial because the that he was denied (1972); Murphy v. witness immunized its chief Commission, Waterfront 52, 78-79, 378 U.S. immunity to to offer Saettele’s but declined 1594,12 (1964); 84 S.Ct. United L.Ed.2d 678 witnesses. Watkins, States (7th v. 505 F.2d 545 Cir. grounds three The court stated district 1974); United v. Armstrong, States 476 regarding motions denying Saettele’s (5th 1973). Therefore, F.2d 313 Sargis Sargis and The immunity for Chappel, upon being granted and immunity, first asserted that it had no inherent could not use fear prosecution of state aas witnesses from power to basis invoking their fifth amendment opin- In a later memorandum prosecution. privilege. ion, it pos- the court stated that even if The district court’s final basis for denying power, granting immunity in the sessed the Saettele’s motion —that it lacked the inappropriate be- present case would be or compel prose- (1) immunity prosecu- federal cause presents greater cution to do difficulty, necessarily the wit- tion would not so— for it important questions raises of conflict- they might nesses to because still be ing rights responsibil- constitutional and subject (2) the tes- prosecution to state and ities. Chappel timony Sargis and was immate- to the rial because was not entitled The compulsory process clause of the defense of duress. sixth guarantees amendment a defendant’s right to secure the of witnesses agree majority’s I cannot conclu- behalf, on his or her a right plays that a law, that, was sion as a matter of fundamental role in system our of criminal of duress as a not entitled to the defense justice. Supreme The recently Court em- affirming the court. The basis for district phasized importance of the compulsory district court concluded Saettele “had Nixon, in v. process clause and, thus, many opportunities escape 683, 709, 3090, 3108, U.S. S.Ct. defense of duress is not available.” The (1974): L.Ed.2d 1039 conclusion, however, district court drew this The need to receiving develop before all available evidence on all relevant facts in adversary system this issue. If the is both fundamental testimony, comprehensive. corroborated it Saettele’s The ends of criminal justice credibility have bolstered Saettele’s would be judgments defeated if on the nature and light partial and shed more were to be founded on a specu- or alleged presentation extent of duress. On lative of the facts. The way we have no very integrity judicial system state of the record of the knowing public system whether the witnesses’ testimo- confidence in the depend on facts, ny supported would have Saettele’s duress full disclosure of all the within the prema- Because the district court claim. framework of the rules of evidence. To done, turely justice concluded that the defense was not ensure that is it impera- is available, that conclusion constituted an in- tive to the function of courts com- pro- testimony may be incriminating. available for process be pulsory right The fifth amendment against compul needed either evidence duction * * * sory self-incrimination “reflects by the defense. or prosecution values aspirations, our fundamental clause assures process compulsory important and marks an advance in the- attendance compel the only right development liberty.” Kastigar of our v. right to secure but also of witnesses supra, at U.S. testimony: their (footnote omitted); accord, at 1656 case denied in this was petitioner [T]he Commission, Murphy supra, Waterfront compulsory process for right his to have (1964); 378 U.S. 84 S.Ct. 1594 Ullman in his favor because witnesses obtaining 422, 426, v. United 350 U.S. arbitrarily denied him the the State 100 L.Ed. 511 a witness who was the stand put The conflict between these two essential capable of testi- mentally physically rights has led to the enactment of statutes personally he had events that fying to empowering prosecutors to afford immuni- observed, testimony would and whose ty to witnesses who invoke their fifth and material relevant have been rights. amendment Such statutes “seek of the Constitu- The Framers defense. rational accommodation imper- between the the futile intend to commit tion did not atives of [fifth amendment] right to giving to a defendant act of *5 legitimate the government demands of of witnesses whose the attendance secure compel testify.” Kastigar to citizens to right no to use. testimony he had [Wash- States, 446, supra, United 406 at 92 U.S. 23, Texas, 14, 87 U.S. S.Ct. ington v. 388 at 1657. At issue in the case (foot- 1925, (1967) 1920, immunity provisions are the of 18 U.S.C. omitted).] note 6002, (1976).4 6002, Under section a §§ Westen, Process Compulsory may compelled testify by witness be to Clause, Mieh.L.Rev. e., granting immunity,” testimony “use i. no not, however, have an immunity does given grant may A defendant under the of be testimony, for a against to used the witness in a criminal case. absolute ground provides procedure on the the to may testify refuse to Section fol- witness ancillary provides: or to a court of the United States or 4. Section 6002 States, grand jury a of the United the United refuses, a on the basis Whenever witness judicial States district court for the district in self-incrimination, privilege against to of his proceeding may which the is or be held shall testify pro- provide in a other information or issue, (b) in accordance with subsection of ancillary ceeding to— before or section, upon request this the of the (1) grand jury a or of the United court district, attorney States such an order requiring give testimony (2) agency or such individual to or of the United joint (3) Congress, provide House of a com- other information which he refuses either Houses, give provide privilege or a committee or mittee of the two to or on the basis of his House, self-incrimination, against of either a subcommittee such order to be- proceeding person presiding provided and the over the come effective as in section 6002 of to the witness an order issued part. communicates this may part, witness not refuse to under this the (b) attorney may, A United States comply with the order on the basis of his General, approval Attorney Deputy of the the self-incrimination; against no but General, Attorney any designated or Assist- testimony compelled information un- or other General, Attorney request ant an order under (or any directly information or der the order (a) subsection of this section when in his indirectly or derived from such judgment— information) may be used other (1) or other information case, prose- any except a criminal witness may necessary such individual be to the statement, perjury, giving cution for a false interest; public comply failing with the order. or otherwise to (2) likely such individual has refused or is provides: Section 6003 testify provide or to refuse to other informa- any (a) who has In the case of individual privilege against tion on the basis of his self- may provide to or been or be called incrimination. any proceeding before information at other immunity. The mants is seeking by limited “the fundamental re- low determining attorney, upon quirements States of fairness” and the defendant’s necessary public to the inter- testimony is “right prepare to his defense.” Id. at est, approval obtain the of the must first 62, 77 S.Ct. 623. The Court remanded for ed to take the circumstances constitutional demands of quired is Attorney General witness. Such is achieve its fy, under section conflicting rights of the defendant and the merely to find Cong. & Admin.News “The court’s Cong., section Because the predicated.” subject prosecutor, defense witnesses order the Government’s one-sided 2d steps 6002. The court’s Sess., prosecutor purpose compelling the witness to testi- role in 6002 can be exercised authority reprinted the statute does not rectify H.R.Rep. No. the case before us. facts immunity provisions granting pp. or the accommodating then to seek case, power is unfairness which a fair trial ^[1970] 91-1549, district court must seek a I believe the the order is U.S.Code limited: only by always Under creat- order 91st re- of grant of a ess.” Id. at 820. exculpatory evidence under some circum- stances. Only the Third Circuit has ordered ground requirements remanded for retrial. The Third Circuit witnesses able to Almeida was a reached a similar conclusion in United (3d further ure to do supra, evidence favorable to the Court held that a prosecutor must disclose United States v. A refusal Cir. ex proceedings. so, 1952). rel. Almeida v. may U.S. writ of habeas “suppression even in of due offer amount Morrison, The court affirmed the good In Brady v. Maryland, process. in such a case. denial of due Baldi, of evidence favor- faith, defendant; 535 F.2d 223 suppression corpus 195 F:2d 815 violates the The Court to defense on the proc- fail- (3d In 1976), prosecutor had immunity only to its own witness. intimidated primary defendant’s witness to the *6 very process The essence of the due point where she invoked her fifth amend- amendment, clause of the fifth as well as privilege. ment The court held that the the entirety, sixth amendment in its is the prosecutor’s actions the violated defendant’s assurance of a fair trial for criminal defend- right process. to due It upon ordered that importance ants. The requirement of this retrial the Government must request either overstated, cannot be for immunity for the witness or the trial court [s]ociety only guilty wins not when the must enter a judgment of acquittal. Three are convicted but when criminal trials are courts, other circuit while fair; holding that the system our of the administration of trial court justice power lacked the any when to immu- suffers accused is treat nity to unfairly. [Brady ed defense Maryland, v. 373 witnesses under the circum- 83, 87, 1194, 1197,10 them, U.S. 83 S.Ct. L.Ed.2d stances before have speculated that (1963).] 215 under different circumstances power such a might exist. In Earl v. States, 124 repeatedly govern- Courts have that held U.S.App.D.C. 77, 361 (1966), F.2d 531 ment suppression of evidence favorable District of Columbia Circuit refused to or- the defendant violates the defendant’s der for a defense witness. Judge process. to due In Roviaro v. United (now Justice) Burger, Chief writing for 53, 623, 353 77 1 U.S. S.Ct. L.Ed.2d court, contrasted the circumstances with (1957), Supreme 639- Court concluded those existing Brady in and noted that that the trial court in permitting erred Government had not suppressed any Government to withhold the evi- identity of an footnote, however, dence. In a informant who would have been he suggest- the de- ed that immunity may fendant’s sole material witness. The be required Court if the scope granted noted of the Government’s Government had immunity to its identity to withhold the of infor- own witnesses:

313 different, lege; yet expressly it contrasted the case quite have might We with a situation in which the Government difficult, had the Govern- problems more grants evidence means of secures testimony from this case secured ment in Alessio, immunity. In United States v. 528 him immuni- by granting eyewitness one (9th Cir.), denied, 1079 cert. 426 F.2d U.S. declining to seek ty while 3167, 948, (1976), 49 96 S.Ct. L.Ed.2d 1184 possible him from to free grant for Scott court refused to Govern That testify for Earl. incrimination grant immunity ment to to defense witness an ar- vividly would dramatize situation es. The court noted that the “key ques the statute Earl that behalf of gument on was whether the defendant tion” “was de process. him due applied as denied [Id. govern nied a fair trial because of the 80, F.2d at 534 361 U.S.App.D.C. 124 ment’s refusal to seek for defense original).] in (emphasis n.l witnesses,” but it concluded that the de upon petition denial of statement In a fendant was not denied a fair trial because case, Judge in the same rehearing en banc proffered merely evidence was cumula a concern that expressed also Leventhal tive. Id. at 1082. Brady ap should be underlying principles case, In the the Government re- Earl v. Unit immunity questions. plied fused to to Chappel and 77, F.2d 666 U.S.App.D.C. 364 ed Sargis, thereby placing testimony their out denied, 921, (1966), cert. U.S. of Saettele’s reach. These were only 2121, Judge Chief witnesses who have rebutted suggested has the same court Bazelon of McGirr’s and corroborated Saet- able to condition may the trial court be story. own The present- tele’s government evidence the introduction no refusing ed affirmative reason for im- im agreement the Government’s munity fact, to these two witnesses.5 In witnesses. to defense munity prosecutor already had offered immuni- 36, 66, Leonard, U.S.App.D.C. v. ty but withdrew the offer when J., 955, (1974) (Bazelon, C. 985 n.79 494 F.2d appeared Chappel’s testimony it dissenting part). concurring part Thus, support Saettele’s defense. Gaither, 176 U.S. also United States Government utilized its immunity-granting denied, cert. 539 F.2d App.D.C. to obtain McGirr’s crucial (1976) L.Ed.2d 329 U.S. Saettele, and to make its case but it J., Bazelon, denial of upon C. (statement of denied the benefit of that power banc). en The Sev rehearing petition and, result, the opportunity as a to obtain v. Allstate Circuit United States enth testimony. offsetting principles enun- *7 (7th F.2d 492 Mortgage Corp., 507 Brady, supra, ciated Roviaro and should denied, 999, 95 1974), 421 U.S. cert. particular be extended to the circumstances (1975), held that 44 L.Ed.2d case, prosecution’s in this for the has no constitutional withholding defendant conduct amounted to the of upon witnesses immunity conferred evidence favorable to have served to him of a fair trial. privi- deprive fifth amendment exercise their who ty, prose- possible never have been made. The reason is that Government 5. One prosecute hardly complain opportunity to cution can about immuniz- would sacrifice the because, Chappel. argues ing in his defense witnesses as the Su- already said, preme prosecution had decided is in brief the Government Court sub- stantially position respect is true or to do Whether this assertion so. the same with to a not, by grant- granting would lose little the Government after him as witness be- immunity. ing [Westen, Compulsory As one commentator has use fore. Process Clause, (1974) (em- noted: 73 Mich.L.Rev. added).] phasis analysis equal Kastigar’s applies force with Here, Sargis Chappel apparently told their to defense wit- of use to the story part prior nothing to trial but had made prosecution least surrenders nesses. The incriminating incriminating no statements under oath. The granting it: The statements could, course, use immunized information use it cannot that, prior immunity. absent immuni- obtained witness are statements above, power to seek a As noted law rests immunity under federal

grant of attorney, not the the United

with court, however, pos- The trial trial court. to regulate the power inherent

sesses and to assure the evidence

introduction proc- the judicial fairness

integrity and dis- circumstances the narrow

ess. Under record, pos- trial

closed considera- its

sessed the condition grant- upon

tion of McGirr’s Sargis and

ing of judg I would vacate

Accordingly, for further and remand conviction

ment of

proceedings.6 America, Appellee, STATES

UNITED PELTIER, Appellant.

Leonard

No. 77-1487. of Appeals, States Court

Eighth Circuit. April 1978.

Submitted Sept.

Decided Rehearing

As on Denial of Modified 27, 1978.

Rehearing En Banc Oct. *8 entirety so, retried its Government not to do 6. The case need not be chooses district theory district court court could of this dissent. The Saettele’s motion strike reopen his defense McGirr’s his could allow Saettele to or motion to dismiss the prosecution. opportunity should allow If