*3 thereafter, Toy- in a white as Paris arrived WRIGHT, Before SNEED and ota, said, guy “The here.” DEA DePalm KOZINSKI, Judges. Circuit agents then arrested DePalm and Paris. car searched Paris’s and found Hafley SNEED, Judge: Circuit approximately one kil- containing briefcase ogram cocaine. Paris, Internal Revenue Ser- Michael attorney, possession vice was convicted theory at trial was that defense Paris’s distribute, 21 intent with cocaine up.” “set him He testified that 841(a)(1), to dis- conspiracy and placed U.S.C. in his ear had been briefcase § cocaine, ap- He him to 21 U.S.C. who asked tribute named “Michael” man § subpoenaed alleging We af- it to DePalm. Paris peals, numerous errors. deliver DePalm would claimed firm. up have admitted under oath he set respect with to which jury Paris or would have identified “Michael” as was not unanimous. DePalm, the source of the cocaine. how- Finally, appellant decries the sentence he ever, facing charges Paris, the same as ground received on the disparity privilege invoked his Fifth Amendment given DePalm. self-incrimination, and the trial We shall discuss each of these conten-

judge testifying. excused him from tions the order set forth here. court later admitted in evidence DePalm’s Hafley statements to as declarations aof Right B. Compulsory Process co-conspirator under Fed.R.Evid. above, 801(d)(2)(E), As set out these statements that De- consti- claims Palm’s assertion of guilt. privilege against chief tuted the Paris's *4 invalid,

self-incrimination was and thus the court’s compel refusal to testify DePalm to II. violated Paris’s right Sixth Amendment to DISCUSSION process compulsory to secure the attend- ance of a argues, witness. Paris also in A. Framework Discussion of alternative, his that Sixth Amendment provide To portion the framework of this right to compulsory process should have opinion, our necessary it is to set forth overridden DePalm’s Fifth Amendment briefly description a alleged of the errors testify. not to by upon the trial appellant which the relies to obtain reversal of his conviction. 1. Standard Review apparent, As will be appellant directs most Initially, very of his fire we note damaging that Paris statements failed to by made raise his compulsory process DePalm to agent Hafley. claim below. Not only a pretrial Paris filed objecting should these not motion have been to admitted, the introduction but their of DePalm’s admission to statements on amounted error, grounds, various including constitutional argues appellant. the claim appellant’s remainder of admission of the alleged statements would errors violate are of lesser importance. Confrontation Clause because We now De set appellant’s forth each of Palm’s assertion of arguments. privilege did not render him “unavailable.” Paris never ar First, appellant attacks DePalm’s use of gued, however, that DePalm’s exercise the Fifth Amendment privilege. It was an privilege against his self-incrimination was and, valid, invalid assertion if its assertion or unavailability invalid that his would vio appellant’s violated Sixth Amendment late compulsory process. Paris’s to rights. objection made, no When has been we re Next, appellant contends that the admis- challenge appeal view a “plain on under the sion of DePalm’s contrary statements was error” standard. United States v. Bustil to 801(d)(2)(E) Fed.R.Evid. and violation lo, Re of Fed.R.Evid. 806. versal for plain error occurs only Third, appellant argues that De- exceptional situation appears where it nec statements, Palm’s even if otherwise ad- essary prevent to a miscarriage justice missible, would violate the Confrontation preserve reputation the integrity and deprive Clause and him of process. due judicial process. Id. Fourth, appellant complains that the ex-

clusion testimony his offered of a 2. Validity for- DePalm’s Amend- Fifth agent mer DEA was error. Privilege ment Fifth, appellant insists he was enti- privilege To assert tled to an jury requiring self-incrimination, instruction to the the claimant must be agree that it on single ‘real,’ set facts to “confronted substantial and prevent his conviction trifling as member of a not merely or imaginary, hazards Apfel testify.” Trejo-Zambrano, F.2d at v. of incrimination.” United States omitted). 115, 128, 100 (citation reject argument baum, S.Ct. We 445 U.S. (1980)(quoting failing v. the trial court Marchetti erred S.Ct. To States, 390 U.S. a continuance. obtain continuance a United (1968)). 697, 705, Prior defendant must move for one. 19 L.Ed.2d (8th trial, Steffen, pleaded guilty possession Cir.), 943, 101 distribute, govern with intent (1981). did not promised dismiss Paris ment so, sponte not, however, do and the court's failure sua sen had charge. He been delay plain the trial was error.2 de A convicted but unsentenced tenced. his Amendment right not denied Sixth Amendment retains Fifth fendant compulsory process. Miller, rights.1 Cir.1985); United States Admission C. Statements Trejo-Zambrano, Under the Federal Rules Cir.), The trial court next admission of attacks the De- allowing rely on err Palm’s out-of-court statements privilege. grounds contrary it was to certain of Evidence. Rules Amendment Versus Sixth Fifth *5 Requirements 1. Amendment Foundational Under 801(d)(2)(E) his support his claim that To right pro 801(d)(2)(E) It has said Rule compulsory to been Sixth Amendment admitting of the that “before a cess the valid assertion means statement overrides against argues co-conspirator of a into evidence privilege, Fifth Amendment a defendant, required indepen judge have the court must have that the trial should grant De of of the immunity to to dent evidence the existence con government Palm, granted spiracy and should have a continu connection of defendant’s sentencing. it, We and must conclude that ance until after DePalm’s to statement held, however, during Sixth both and in have was made “[t]he further right compul an conspiracy.” to ance Amendment accused (9th Cir.1983), a 720 F.2d sory process Layton, to secure the attendance of right include to com witness does not added). (italics (1984) waive Fifth Amend Find

pel the witness to his ings respect is entitled of fact with to foundation privilege. Nor an accused ment immunity requirements for admission co-con compel prosecutor to a al to held, statements, him are sub- get spirator to a defense to we potential witness govern- argues privilege that as a of the self-incrimination. United 1. Paris result count, Berberian, (9th promise to dismiss F.2d ment's States v. reasonably Cir.1985); Safety his testi- DePalm could not fear that see Health & Code Cal. mony subject (West him further criminal Supp.1986) (possession for sale § 11350 However, liability De- on that count. because substances); designated Cal. controlled Penal testify until after Palm retained his not to (West Supp.1986) (conspiracy). § Code count, sentencing first not reach on the we need requested a continuance to obtain a When government’s question of the effect of the show, witness, required the accused inter promise to dismiss. alia, probably be that the witness can obtained granted. United if the continuance is States v. only mention in the of a continu- The record Cir.1986). Paris, Smith, F.2d appears ance in this context in Paris’s memoran- however, did not that DePalm "had establish statements, part as dum to exclude agreed testify.” unconditionally United argument DePalm "unavailable” was not Hoyos, Cir. States v. as law re- then-current confrontation clause 1978). showing Without a had event, quired. any a until De- In continuance agreed testify, actually the trial court had no aided had been sentenced would not have Palm would benefit to believe that Paris if reason liability possibility of state criminal Paris. The granted. were continuance invoke his would still have allowed DePalm to ject clearly re- keep erroneous standard of person abreast of conspirators’ Smith, view. See activities, participation induce continued Paris focuses conspiracy, allay or to fears are require- the two attack on italicized made in conspiracy). furtherance appearing ments above. 2. Violation Fed.R.Evid. 806 Independent Evidence Connec-

a. argues Paris next that under Rule Conspiracy tion to 806, DePalm’s statements were inadmissi To establish Paris’s connection to ble because Paris opportunity had no conspiracy, government must “[t]he cross-examine DePalm. provides, Rule 806 only show substantial evidence —not evi part, that when a statement has been beyond a indepen dence reasonable doubt — admitted into under Rule co-conspirators’ dent statements 801(d)(2)(E), may question defendant which demonstrates has at least [Paris] the declarant on direct examination if as slight existing conspir connection to the However, cross-examination. ap Rule 806 Rabb, acy.” plies by its only own terms if the defendant (9th Cir.1984), is otherwise able to call the declarant as a witness. “The rule confers no absolute has its met bur cross-examination, because hear First, agents den. surveillance observed say often be admitted de just that DePalm met before spite the unavailability of the declarant.” provided sample a cocaine to Haf Miller Keating, (3rd ley. Second, Paris arrived with one kilo Cir.1985)., gram of cocaine at 23rd Guerrero Streets at the time the cocaine purchase place. to take This is sufficient inde D. and Due Process Ob- Confrontation

pendent evidence to connect Paris to the jections *6 conspiracy. Paris next contends that the admission of DePalm’s statements violates both the b. During and in Furtherance Sixth Amendment Confrontation Clause satisfy requirement, To and the Due Process Clause of the Fifth “ statements must ‘further the common ob Amendment. jectives conspiracy,’ or ‘set in motion

transactions integral part that an of [are] 1. The Clause Confrontation Layton, 720 F.2d at [conspiracy].”’ Statements v. Fielding, admissible under Rule United States (quoting 556 645 801(d)(2)(E) do not automatically 719, (9th comply Cir.1981) F.2d (emphasis omit Confrontation Clause. with ted)). Paris contends that statements Perez, States v. 654, (9th by drug made dealer to a customer that Cir.1981). argues tend that his identify the dealer’s source are not confrontation was made in violated because DePalm conspiracy, furtherance be was not available to the cause it defense for cross- could not have been a common Generally, examination. objective of the where out-of- conspiracy to reveal court identity source’s statements are to a customer. admitted into evi argu This dence, misguided. ment is only must not dem DePalm made each of reliable, onstrate statements to ensure statements are Hafley’s contin produce ued purchasing interest but also either cocaine from the declarant or unavailable. Ohio v. Rob DePalm’s source. show him to be statements fur erts, 56, the conspirators’ 65-66, thered objective: 2531, common 100 S.Ct. cocaine. See 2538-39, the sale of (1980). However, — Eaglin, Inadi, 1069, United States v. Cir.1977), F.2d U.S. —, denied, cert. U.S. 98 S.Ct. (1986), 106 S.Ct. 89 L.Ed.2d 390 (statements (1978) Supreme made to Court eliminated the unavaila- co-conspirator beyond the requirement attorney state- statements of Paris’s bility that DePalm would have retracted his otherwise under Rule ments admissible implicated statements that Paris and Thus, 801(d)(2)(E). or not DePalm whether up.” testified Paris was “set controlling testify is was available Moreover, above, as discussed the relevant admissibility of his out-of- determining the reliability accompanied indicia of statements. government’s statements. The refusal sua however, not, dis Inadi has sponte immunity DePalm, and reliability requirement laid turbed plea bargain its instead to decision at — n. — U.S. See Roberts. down him, deprive Paris did not a fair trial. 3; 1124 n. United States required We would be to so hold were we F.2d 973-74 Lopez, accept process argument. Paris’s due reliability of to test four indicia utilize We get bargaining keep Plea and the cooper- (1) whether the co-conspirator statements: help ation of the lesser con- lawbreaker fact; (2) past are assertions declarations and, greater vict long has a knowl personal had the declarant whether large, history. useful It may not be entire- related; (3) it facts he whether edge of the ly fair, it is not but unconstitutional. relying was possible that the declarant (4) recollection; whether faulty upon E. Exclusion Witness of Defense suggest de the circumstances testimony Paris offered former defendant’s misrepresented the clarant Scotti, agent DEA who Gerald would Have Lopez, 803 in the crime. involvement opinion given his such De- dealers as con are not These factors at 974. F.2d identity Palm do reveal the true exhaustive, factors nor must all sidered their The court refused to allow source. admis for the statements be be satisfied testimony. Scotti’s Fleishman, 684 United States sible. (9th Cir.), 1329, 1339 A district court’s exclusion of an L.Ed.2d 614 expert upheld 103 S.Ct. manifestly U.S. will be unless er (1982). statements are Byers, Some DePalm’s roneous. Cir.), fact, past but because the not assertions that thereafter predicted events tes argues that admission of Scotti’s trustworthy. find them De did occur we judge and timony would have assisted both personal knowledge of had Palm also First, jury. it is within the sound discre related, facts he and his declarations experienced judge to determine tion of contemporane past sufficiently fact were *7 expert testimony a whether not about faulty events recalled to make ous with the would as drug dealer’s standard behavior unlikely. Finally, because recollection understanding in the facts or is sist him DePalm’s decla events tend corroborate Second, agent Hafley DEA on cross- sues. is to believe he rations there no reason already examination had testified that deal Thus, misrepresented Paris’s involvement. a only ers volunteer information about through of DePalm’s statements admission purchaser that rela source to convince a Hafley did not violate the confrontation exists, tionship with the source but dealers clause. drug going are “not to reveal the normal (Reporter’s is.” buyer who the source 2. Due Process Third, 293-95). relevance Transcript at correctly cites United States questionable, is be testimony of Scotti’s Alessio, 1079, (9th Cir.), 1082 F.2d Par expressly did reveal DePalm not cause 3167, 96 S.Ct. identity. testimo is’s Exclusion Scotti’s (1976), proposition for manifestly erroneous. ny not that we will reverse a conviction on due process grounds "appellant if the was de F. Jury Instructions govern nied a fair trial because of the present- immunity to seek for the evidence ment’s refusal de When nature of in no ed trial a variance between fense witnesses." There is results indictment, proof proceeded and the circumstances is to trial and received a sen- may requiring an instruction warrant years tence five imprisonment, with a agreement single set special on facts. See parole years, term of pos- five for Echeverry, States v. 719 F.2d session distribute, with intent to and a con- (9th (9th Cir.), modifying 698 F.2d 375 secutive year prison five conspir- term for Cir.1983). contends the court acy.3 Paris thinks this is too much and giving erred not such an instruction claims that the evidence does not warrant district here. We review a court’s formula- disparity in sentences. jury

tion instructions for abuse of Sentences that do not Abushi, exceed the United States v. discretion. statutory maxima Cir.1982). generally are committed to the district court’s broad discretion. of the Our review record reveals Messer, United States v. 785 F.2d single conspiracy but a sell cocaine to (9th Cir.1986). When, however, there Hafley. agent DEA This corresponds to disparity substantial in sentences imposed conspiracy charged the indictment. on engaged defendants in the same crimi “genuine Paris has failed to demonstrate nal activity, and a defendant’s constitution possibility jury confusion” that could al right implicated, to stand trial is proper a conspiracy have resulted conviction for disparity reasons for the must “readily be specified in Echeverry, the indictment. discernible” from the record. United 719 F.2d at 975. Under such circumstanc Hall, 778 F.2d es, general the district court’s instruction Cir.1985). Here, pleaded guilty unanimity was sufficient a fur without substantially and received a less severe ther single statement that a set of facts Paris, sentence than who stood trial. Par agreed upon. must be is, however, argue does not that he was Ferris, (9th Cir.1983). 719 F.2d penalized exercising for his to stand Paris also claims that the court Instead, trial. he claims that no basis by refusing adopt erred his “stake-in- imposing disparate record exists for the-outcome” instruction. To connect Paris Harlin, sentences. See United States v. conspiracy, with the the evidence must (9th Cir.) have shown that he knowledge had conspiracy and acted in furtherance of it. Guerrero, States (9th Cir.1984). Casual association There is no reason to believe that members suf judge the district increased Paris’s sen ficient. United v. Cloughessy, punish tence to him exercising The trial to stand trial. To the contrary, there is judge jury instructed the that “to find sufficient evidence readily discernible Paris, you must find that [he] justify imposing record to a more se joined conspiracy, knowing so vere First, sentence on Paris. we plan of the unlawful intending help assume that the court took into account carry it out.” *8 adequately This formulation supplier. Paris’s role as See More id. states the law and therefore was not an over, in imposing sentence, the the trial abuse of discretion. expressly court referred to privi Paris’s leged position as a attorney G. Disparity Sentences of apparent and his perjury at trial. These challenged The disparity in came about proper. considerations were See United this plea fashion. DePalm Beecroft, entered a of States v. 761-62 guilty possession (9th Cir.1979); with intent to distrib- Brown, ute and received a oné-year sentence. Par- Cir.1985). F.2d The defendant, Garcia, against Another Amonta .entered her was dismissed. She received a five plea guilty charge possession year suspended of placed the of with sentence and was on intent conspiracy charge probation distribute. years. The five granted use immunity the discre- ment DePalm so was within court’s sentence well that Paris could cross-examine him. tion. proposition. is not a This novel haveWe AFFIRMED. long “key question” held that in the this KOZINSKI, Judge, dissenting: appellant Circuit is situation “whether denied government’s fair trial because of the rights the In this case must balance we immunity for refusal to seek defense wit another, indi- against of one individual Alessio, v. nesses.” United States rights workings the of our vidual Cir.), F.2d complex justice. of criminal The system of presented not itself question does avail (1976); Taylor, see also F.2d at 935 answer; say I cannot the easy an (“[pjrosecutors [immunity] exercise must resolving con- majority’s approach in the authority due within the bounds of the competing these interests flict between amendment”). clause the fifth process Nevertheless, I manifestly wrong. believe prosecutor’s decision not Where key majority not confront does immunity “dis grant witness use has govern- appeal: did the question this judicial fact-finding process,” torted] immu- grant DePalm refusal to use ment’s id., step the court in. circum must The nity using his out-of-court statements while here that the of use stances indicate denial of its case violate Paris’ as the cornerstone coupled immunity, introduction Because I conclude right to a fair trial? statements, DePalm’s out-of-court created did, dissent. respectfully it I must impermissible just such distortion. I concede the outset that the district First, rely prosecutor once the decided to govern- could have forced the court as re on DePalm’s out-of-court statements grant immunity. use Use ment to Hafley, ported Officer cross-examina immunity is a creature statute and “Con- Paris’ tion of DePalm became crucial to delegated authority has gress constituted, defense. DePalm’s solely to immunity the executive use terms, majority’s in the “chief evidence government.” v. United States branch guilt.” at 474. that, Paris’s More than Taylor, however, indispens the statements were prosecutor great grants statute government’s conspir case for able to provides of discretion: It that a “Unit- deal Lewis, acy. See United States ” im- Attorney may request use ed States (8th Cir.) (delivery 1316, 1352 of cocaine munity judgment” “in his the testi- where knowledge conspiracy), prove does not public to the interest. mony be vital — U.S. —, (1982) added). (emphasis 18 U.S.C. § (1985); United States grant a statute the court to No authorizes (1st Cir.1983) Hyson, sponte immunity use sua or at witness of controlled substance does (possession of a defendant. behest participation establish so, Even the court does have the authori- distribute). Thus, Paris’ best chance ty, responsibility, indeed the to ensure that acquittal lay impeaching Hai gaining given accused a fair trial. Where the testimony. do way And the best ley’s grant immunity re- prosecutor’s refusal con have been to have DePalm this would in such to the accused Moreover, sults unfairness Hafley court. open tradict process, it amounts a denial due up by he was set maintained that pow- Michael, must exercise the considerable named who and a man In does to even the co allegedly planted ers it balance. the briefcase full of have, case, Paris’ While the district court in the back seat of car. could caine implausible, it is have, story seems somewhat my view should excluded *9 not, view, Because my patently absurd.1 govern- the out-of-court statements unless belonged noting prints Paris. inside It that none of the 1. worth bag on or the of cocaine found the briefcase up, only person Michael never turned that the DePalm evidence had all the indi- possibly credibility lend who could reliability. cia of story was DePalm. Second, government’s use of De possibility that De- There is substantial implicated Palm’s out-of-court statements materially have af- testimony Palm’s would right Paris’ Sixth Amendment to confront outcome of the case. One of the fected the key witness him. While neither telling pieces government’s most of evi- the rules of evidence nor the Constitution dence, example, reported for was DePalm’s bars the introduction of all out-of-court going statement that his source was- back statements, recognized it is well that such parents’ date east on a certain to attend his potential deny statements have serious for wedding anniversary. govern- fiftieth ing opportunity the accused a full fair argued, devastating ment effect I present a previously defense. We have imagine, would must have been noted that “the Sixth Amendment source, because he had fact traveled confrontation is effectively ... denied to a parents’ for his to Ohio on that date fiftieth criminal defendant when out of court state However, anniversary. presentence ments, made outside a pres defendant’s report, flatly having denied made ence, are introduced at trial and maker A similar denial statement. on the present, of the statement is not does not stand have witness cast serious stand, privilege take or invokes a so as key piece and, doubt on this evidence deprive an opportunity defendant possibility, Hafley’s quite entire testimo- cross-examine.” Brady, States ny.2 1121, (9th Cir.1978) 579 F.2d (citing There other were contra- weaknesses and States, 123, Bruton v. United 391 U.S. dictions in the DePalm could 124-26, 1620, 1621-22, 88 S.Ct. 20 L.Ed.2d exploited through have been cross-examina- (1968)), denied, 1074, cert. U.S. example, reportedly tion. For said 849, (1979). S.Ct. 59 L.Ed.2d 41 inAs that the source would arrive in a red Suba- Bruton, Paris’ constitutional to con Toyota; a white ru Paris asserts he does impaired by frontation was the admission not own a red Subaru. Because DePalm substantial, per of evidence which “added stand, not-take was unable critical, haps weight even to the Govern explore actually whether DePalm made subject ment’s case in a form not to cross- and, so, addition, that statement if why. In Bruton, 128, examination.” at U.S. the court admitted DePalm’s out-of-court S.Ct. at 1623.3 years’ experience statement that he had 25 course, Of drug in the where it Again, business. circumstances make presen- impossible present report hearsay tence indicates that DePalm denied declarant saying light cross-examination, this. In discrepan- of these balance cies, find, I does, tip letting cannot majority as the well in favor of present there was “no evidence” DePalm its case. But here there was no would have retracted his nor necessity.4. such DePalm was available to 1128, 948, bility), 2. This information was not known the time 409 U.S. S.Ct. (1973); of trial. It therefore could not have been used 35 L.Ed.2d 260 United States v. Mc show, impeach Hafley’s Manus, Cir.1977), statements. It does 560 F.2d 747 however, 1047, testimony might that DePalm's well 434 U.S. 54 L.Ed.2d 798 Hafley’s. (1978); Burroughs, contradicted United States v. 650 F.2d (5th Cir.1981) (confrontation n. assuming 3. Even the statements were not hear clause never bars statements admissible under say 801(d)(2)(E), Rule under our re court still Chiavola, 801(d)(2)(E)); rule quires judge the district to consider whether (7th Cir.1984) (same). 1275-76 admission the statements would violate the Roberts, Eaglin, confrontation clause. United In Ohio v. 100 S.Ct. (9th Cir.1977), (1980), 1083-84 & n. 18 the court cert. denied noted that "the Sixth Amendment establishes necessity. The rule in other circuits rule of In the usual case ... States, prosecution different. See Ottomano produce, v. United must either or demon- (1st (no Cir.1972) of, responsi- unavailability such strate the declarant whose

481 merely presented, government the unfairly tipped to because testify refused do so but self-incrimination, im- a fear that in its The proper ap- feared the scales he favor. munity have removed.5 proach could to allow would been DePalm government if the testify; to believed he Finally, government has advanced the lying, was it could have cross-examined refusing to legitimate reason for no perjury. him or him for prosecuted immunity any testimony as to DePalm use govern- in Paris’ The give he would case.6 trial, itself, A criminal like life make can ignores appeal completely brief on ment’s perfection. claim All too frequently no issue, asserting only that “there is no the compromise to necessity. we must ideal immunity.” Gov’t to defense witness weighing But compromise suggests Questioned argument, at oral Brief at 17. weighing requires a consideration of com- that government argued counsel DePalm peting I interests. The evil see here is that immunity prose- the given not because was competing there were no interests. Paris’ DePalm would tell the cution doubted key against to confront witness In es- patent nonsense. truth. This him, court, open him in to cross-examine sence, de- prosecutor made a unilateral impeach story attempt his was sacri- report Hafley’s second-hand cision that ficed, discloses, as best record at the allegedly to him months said what prosecutor. whim of the than what DePalm ago was more reliable responsibility It is the district court’s oath. This seri- say in court under would guard against overreaching. such Here role proper of the ously misconceives simple the district court had a method of The in a criminal case. trial prosecution avoiding unfairness to the It truth; accused: up jury, to the search for the it is Hafley’s could facts, have excluded account of to decide government, him allegedly what DePalm told unless the By weighing credibility of witnesses. story prosecution willing produce allowing side to be was only one satisfactorily trier fact could evalu- the defend “the statement it wishes use however, hearsay Recently, the Court limited this ate the truth statement” without ant.” testimony. Eaglin, hearsay consisting prior testimony. in-court 571 F.2d rule to of U.S. —, Inadi, Sixth inform United States v. 1121, at 1084. The Amendment must (1986). Inadi application The Court 89 L.Ed.2d 390 the Fifth. our specifically rejected requirement Indeed, appears DePalm had little to 5. it unavailability prove the the de testifying. his fear He based Fifth Amend from co-conspirator are ad clarant before statements possibility impli at —, he could claim on be ment 1129. Neverthe mitted. S.Ct. at Id. process less, drug conspiracy. In holding cated in a I do not read Inadi as co-con however, already pleading guilty, automatically DePalm had spirator’s are admissi conspired purchase with others to simply admitted he ble. does not deal with what addi Inadi imagine, admissibility difficult sell cocaine. It is requirements for be tional and therefore, subject reliability how DePalm could have been imposed has when the 3, greater liability testifying. question. ed to criminal See id. at — n. been called into 535, Pardo, circuits, many See 636 F.2d 542-44 even at 1124 n. 3. And S.Ct. (D.C.Cir.1980). Inadi, precluded impose safeguards state was from before did additional charges See, prosecuting reliability. e.g., him on similar under Cal. v. to ensure United States Belcher, Cir.1981) (1970). Perez, 654, (addi People See § Penal Code 656 v. 660-62 658 F.2d Cal.Rptr. satisfy reliability required 11 Cal.3d 520 P.2d 385 tional indicia of (1974). clause); Wright, v. United States confrontation denied, (2d Cir.1978), cert. (1979); U.S. S.Ct. everything part, Paris his did he could For Ammar, 254-57 testimony. States subpeonaed He obtain DePalm's (3d Cir.) (same), him, DePalm invoked Fifth Amend but after (1983); United States S.Ct. quashed the privilege the ment district (8th Cir.) DeLuna, v. (same), 909-11 govern subpeona. requested that Paris then — U.S. —, immunity grant DePalm use and made ment suggesting proof that DePalm's testimo offer of material, ny possibly to the Moreover, be favorable certainly Inadi eliminate generally not cumulative. See Unit defense and responsibility Fifth court’s under the Amend- Carman, ed Cir.1978). ment to evaluate the overall fairness a crimi- . case, request refused proceeding. This In this I cannot conclude nal *11 immunity. him and use Federal Rule

of Evidence 403 or court’s inherent

powers to the admission of evidence control ample authority imposing for

were con- regard rights

dition. Due

accused, view, my required the district Its to so do so. failure condition

introduction of the evidence unnec-

essarily prejudiced improperly Paris’ trial, denying him due pro- to a fair

cess and the I confrontation.

would reverse. HARD, Plaintiff-Appellant, J.

Thomas

BURLINGTON NORTHERN RAIL-

ROAD, Defendant-Appellee.

No. 85-4326. Appeals,

United States Court of

Ninth Circuit.

Submitted Dec. 1986 *.

Decided March * panel 3(f) appropriate 34(a). finds this case Fed.R.App.P. for submis- Circuit Rule argument pursuant sion without oral to Ninth