United States v. Norman Turkish

at 1674. oral U.S. at that the appeal indicated argument on this progressing. proceedings are

Committee possible for it well now may

On remand its needs particularize

the Committee so specify the material desires comply in a position

the court by any opinion.6 We do not

with this require that foreclose but

means disclosure discretely the need for it

it be made

becomes demonstrated. America, Appellee, STATES

UNITED TURKISH, Defendant-Appellant.

Norman 79-1326, 79-1396.

Nos. Dockets Appeals, Court of

Second Circuit.

Argued Jan. 1980. May

Decided judicial pro- the in- pending 99 S.Ct. at 1678-79. 6. We note that where the case, disciplinary proceedings ceeding jury will be grand ma- stant for which disclosure this, sought being in a state court. Aside is conducted another conducted terial court, pending Supreme suggest- in- in state court where action Court district attorney procedure conduct of an volves ethical the better for district ed law, practice request district court his fitness for disclosure court which receives the position make the deter- itself should be district court where to send the materials Co., pending Douglas pending ac- mination. Oil determination the civil action is Douglas which involved tion was civil antitrust case Oil Co. need disclosure. Northwest, complicated supra, Stops 230- more issues. 441 U.S. at Petrol States, spiring to defraud the United trial of Turkish and U.S.C. 371. The § Turk- lasted 11 weeks. three co-defendants guilty; were found ish and one co-defendant only appeals. Turkish evidence established The Government’s participant in principal that Turkish was a fraudulent means to a scheme that used Associates, Inc., Rittenberry enable & C.R. create artificial tax loss- company, an oil by equally es in artificial year, one offset gains subsequent year, thereby taxable taxes on millions postponing year for a corporate of dollars of income. The scheme “straddles,” the involved the use of tax and sale at purchase simultaneous different prices equal commodity fu- numbers of performed tures contracts to be different straddles, months. In the normal use of tax lawful tax avoid- opportunities arguably for price ance are created when the market prices original varies from the at which the bought If contracts were both and sold. declines, the market the trader offsets his sale, purchase equivalent thereby with an locking original pur- in a tax loss on his original his chase. He then offsets sale equivalent purchase, contract with an thereby locking approximately equal in an original sale profit on his contract. He Podolsky, City, profit Ronald New York for de- benefits when the is taxable in the fendant-appellant. year following realization of the loss. In takes the normal transactions trader Bentley, Atty., Allen R. Asst. U. New S. movements will be price risk that market Fiske, Jr., City (Robert Atty., York B. U. S. too much opportunity narrow to create Diskant, Gregory Atty., L. Asst. U. New S. postponement tax and also the more serious City, brief), appellee. York on the prices uniformly risk that will not move LUMBARD, respect original Before and with his contracts. MANSFIELD to both NEWMAN, Judges. profit Circuit the latter event the available to be locked in less than the locked-in

NEWMAN, Judge: Circuit loss. others avoided these risks Turkish and appeal primarily by fraudulently manipulating virtually This criminal concerns trading ring whether a defendant is entitled entire business of one on the the issue of Exchange, to have conferred defense New York the Crude Oil Cotton privilege against them witnesses who invoke their Futures Market. This enabled will, brought appeal prices up self-incrimination. The move and down at so that Turkish, by Rittenberry capital Norman who was could take short-term convicted jury during year in the District of.New York losses one tax and defer an Southern Broderick, (Vincent evading equal off-setting capital gain to Judge) L. amount of filing subsequent year, income taxes and false income tax all with no risk and a returns, saving postponement and con- considerable U.S.C. §§ him, and to enable him to orchestrated prepare taxes. Turkish aspects plea accordingly. the scheme but also his defense See fraudulent Hamling 87, 117, he v. United money taxes on the received evaded compensation 2887, 2907, for his role.

I. II. The Indictment Immunity Defense Witness that convic contends his Turkish immunity The claim for defense witness conspir because the tion should be reversed following The arose circumstances. (Count One) did acy count of the indictment by calling a presented its case Government charge was an offense and unconstitu not number witnesses involved the fraudu- conspiracy al tionally vague. The count transactions, co- lent several of whom were conspired and others to leged that Turkish these, conspirators. pleaded Of three had by impeding, the United States “defraud guilty participation conspiracy to in the impairing, obstructing defeating agreements they had letter that received Department lawful functions prosecuted would not other com- Treasury in the collection of income taxes.” modity of- market crimes or related tax conspiring to defraud the The crime truthfully. if Two fenses testified States, acts 18 U.S.C. includes § prosecution witnesses who had not other its “interfere with or obstruct one of that letters, received similar one of been indicted deceit, governmental lawful functions persuade recipi- which was sufficient to its v. Unit Hammerschmidt trickery,” craft trial. ent return from Switzerland for the ed addition, prosecution one witness was (1924). The 68 L.Ed. 968 creation formally granted immunity “use” under 18 a business fraud artificial tax losses for 6002. § U.S.C. commodity manipulation prices ulent trial, During an act. Turkish and after the Govern- qualifies market as such case, no ment had its Turkish and contends that there would have been concluded moved that seventeen of company crime the oil taken his co-defendants had prospective grant- if defense witnesses be resulting as tax deductions. Even losses not, by required was it “use” manipulation prices ed testify self, offense, wit- They argued became evidence under these a federal it done; provide exculpatory testimony, a federal offense when was nesses could Fifth taxes. The Government al but would invoke their Amendment avoid federal testify com- on the Crude and decline to unless leged that Turkish’s activities invited part conspir pelled Judge do so. Broderick Oil Futures market were acts, granting “use” not that these the Government consider acy involved other pursuant entirety of the to these witnesses activities constituted the 6002. The Government did consider crime. matter, immunity. but decided not sufficiently precise indictment also reserved decision on Judge Broderick then requirements meet the of the Constitu- trial, after the defendants’ motion until Pro- of Criminal tion the Federal Rules a new which the defendants moved for time states, 7(c) part: Fed.R.Crim.P. cedure. 23, 1979, August or acquittal. trial On or the information shalkbe “The indictment mo- Judge denied the defendants’ Broderick state- plain, and definite written concise tion. constituting the ment the essential facts opinion, specified subsequent In a charged.” One offense Count set the Turkish (S.D.N.Y.1979), Broderick alleged manipulate Turkish’s efforts his rea- analysis of the issue and to create tax forth Oil Market in order Crude Bro- denying This motion. client. sons losses for his co-defendant’s Compulsory Proc- that the charges derick concluded sufficient to inform him the ess Clause of the Amendment longer Sixth does L.Ed.2d 212 No did an give right require a defendant immunity grant forbid witness, immunization of a but that such a witness for crimes referred to in his testi- right “probably” contained Due mony (“transactional” immunity). Now the Process Clause of the Fifth Amendment. Government could still the wit- Id. he declined to accord the ness; it was making any barred “probable” defendants the benefit of this use of his testimony, immunized either di- right Fifth Amendment to defense witness rectly by putting in evidence First, immunity for two reasons. he ruled trial, at the indirectly by witness’s ob- the defendants’ motion was untimely, taining other evidence from leads that properly since it should have been made at testimony supplied. Second, beginning of the trial. he con- Claims for defense witness cluded that uniformly rejected Court, have been by this would be available to secure Gleason, (2d United States v. 616 F.2d 2 Cir. that was exculpatory material and and that 1979); Praetorius, United States v. 622 F.2d the defendants had not shown that 1979, (2d 1054 Cir. modified on rehear the witnesses for whom they sought immu- nity give material, would exculpatory 7, 1980); testi- ing, May United v. States mony. Lang, 92, (2d 1978); 589 F.2d 96 n.l Cir. 31, Wright, United v. 588 F.2d States To assess challenges Turkish’s to these denied, (2d 1978), 33-37 Cir. cert 440 rulings we appropriate deem it to explore 917, 1236, U.S. 99 59 L.Ed.2d 467 S.Ct. concept of defense witness (1979); Stofsky, United v. 527 States arising matter increasing frequency 237, (2d 1975), denied, F.2d 249 cert. Cir. See, before this and other g., courts. e. 819, 65, 429 97 50 L.Ed.2d S.Ct. Palma, United v. F.Supp. States De 476 775 U.S. (1976); 80 see also United States v. Hou (S.D.N.Y.1979), appeal pending sub nom. sand, 818, (2d 550 Cir.), F.2d 823-824 Horwitz, United cert. (2d States v. No. 79-1315 denied, 970, Cir.); 431 2931, Government U.S. 97 Virgin Islands S.Ct. 53 v. Smith, (3d 1980). (1977), 615 L.Ed.2d F.2d 964 Cir. 1066 by almost all cir matter, cuits to consider the United States Granting immunity to a defense witness Lenz, v. (6th 616 F.2d 960 1980); Cir. Unit at the request defendant’s seems to have Smith, 711, ed States v. (7th 542 F.2d 715 time, been considered for the first 1976); Alessio, Cir. United States v. 528 reported decision, by Chief Justice Burger, 1079, (9th Cir.), F.2d denied, 1081-82 cert. then a Judge, Circuit as dictum in Earl v. 948, 3167, 426 U.S. 96 S.Ct. 49 L.Ed.2d 1184 States, 531, United (D.C. 361 F.2d 534 n.l (1976); Thompson Garrison, 986, v. 516 F.2d 1966), denied, 921, Cir. cert. 388 U.S. 87 (4th Cir.), denied, 988 933, cert. 423 U.S. 96 2121, (1967). S.Ct. 18 L.Ed.2d 1370 Since 287, (1975); 46 L.Ed.2d 263 see Earl v. then it has been much discussed courts States, (D.C. United 361 1966), F.2d 531 Cir. commentators.1 Interest in defense denied, 921, cert. 2121, 388 87 S.Ct. 18 immunity was considerably height (1967) (transactional L.Ed.2d ened after 1370 Congress enacted immuni the “use” im munity statute, ty). The claim 6001-6005, 18 is a matter of opin U.S.C. divided §§ 1970, Supreme Circuit, and the ion in subsequently Court the Third compare United upheld its constitutionality, Kastigar Rocco, (3d v. States v. 587 1978); F.2d 144 Cir. 441, 1653, United 406 U.S. 92 S.Ct. Berrigan, (3d United States v. 482 F.2d 171 generally Right 1. The Immunity Amendment commentators have favor- to Have Use been Witnesses, immunity. able to the idea of defense witness Granted to Defense 91 Harv.L.Rev. Process, Westen, Compulsory Note, (1978); See 73 Mich.L. A Re-Examination of De- 1266 (1974); Note, Right Immunity: Rev. 71 of the Criminal fense Witness A New Use for Kasti- Compelled Testimony Defendant to the nesses, gar, Note, of Wit- Harv.J.Legis. (1974); The Pub- 10 74 Note, Sep- (1967); Every 67 Colum.L.Rev. 953 lic Has a Claim to Man’s Evidence: The aration of Powers and Right Defense Witness Immu- Defendant’s Constitutional to Witness nity, Note, (1977); Immunity, The Sixth 66 Geo.L.J. 51 30 Stan.L.Rev. 1211

773 Virgin These 1973), standards rest on two with Government of different Cir. First, concepts. Smith, v. Garth considered supra; v. United States Islands Herman, (3d power court order F.2d 1203-04 589 grant statutory pursuant denied, 99 S.Ct. 1978), 442 U.S. cert. “statutory” 18 im- U.S.C. 6002. Such § (1979); United States munity was held to be available for a 1976). Morrison, (3d Cir. 223 v. 535 F.2d testimony, fense witness with relevant 615 has been support for the claim Additional n.7, at F.2d 969 when defendant could Judge of the the former Chief expressed by prosecutor’s decision not to show that Circuit, see United of Columbia District confer “with the delib- made Gaither, (D.C. Cir.) F.2d 753 v. 539 States judicial distorting erate intention of J., (Bazelon, concurring in denial C. 966, a finding process,” fact id. at standard denied, banc); rehearing cert. en previously the Third Circuit had articulated (1976), 50 L.Ed.2d Herman, supra, in United v. Leonard, States F.2d States v. (D.C. Secondly, Garth considered J., 1974) (Bazelon, C. concur n.79 “judicial” immunity, what he called two District ring dissenting), court, statute, Palma, power unaided Courts, supra, De order that a witness’s cannot be Duca, F.Supp. La and United States v. Again applying used him. stan- (D.N.J.1978), grounds aff’d on other sub dard earlier announced in United Rocco, States supra, nom. United States v. in addi Herman, supra, Judge judi- held that Garth in Broderick this case. tion e., cial use im- i. court-ordered appellate The federal decisions rul- only munity, “capa- was for a witness available immunity of defense witness ing favor clearly providing exculpatory ble of evi- the Third Circuit decisions appear dence” when the Government can In a Morrison and Smith. Morrison divided “strong countervailing no interest.” 615 panel of the Third reversed convic- Circuit F.2d at 970. prosecutorial ground tion on the mis- Though Morrison and Smith stand in witness to conduct had caused a defense holdings sharp contrast to the uniform testimony withhold out fear self-in- appellate decisions that have other federal remedy As a for the miscon- crimination. immunity, some of rejected defense witness retrial, duct, upon the Court ordered that deny decisions have been careful these the of either the Government face choice only respect precise with the claim granting immunity hav- the witness use presented, g., v. facts e. United States ing acquitted. the defendant Alessio, Wright, supra; United States v. totally involved a bizarre situation. Smith Furthermore, supra. our two of decisions juvenile sought immunity A defendant use explicitly open possibility the have left juvenile defense The office witness. might re- witness defense General, Virgin Attorney Islands quired grants if of use jurisdiction who had exclusive ad- cution witnesses resulted in “unfair witness, the and the both defendant Gleason, vantage.” supra, United States v. agreeable for the witness. 28; Lang, v. 616 F.2d at United States office, prosecuting local as a this light F.2d supra, 589 at 96-97. of this “prosecutorial courtesy,” 615 F.2d matter law, of the case further consideration state approval its at conditioned bases for defense wit- constitutional who Attorney, consent the United States immunity warranted. Resort is usu- ness In a inexplicably declined consent. Fifth Amend- ally made to the Sixth and thoughtful opinion Judge Garth reversed ments. for determina- the conviction remanded content the Sixth tion of whether use should have The established a claim for explicated support Amendment does not been conferred under standards Traditionally, immunity. defense witness Court’s decision. 774 contention, equalizing based on Process The first Compulsory Amendment’s Sixth the de- prosecution and powers right gives the defendant Clause fense, A criminal entirely unpersuasive. have the to court and bring his witness trial, is in no a civil prosecution, unlike heard, non-privileged witness’s pros- The proceeding. symmetrical sense a it the additional carry does nor but affirmative ob- substantial ecution assumes privilege, claim of right displace proper restrictions, accepts numerous ligations including privilege against self-incrimi imposed on defend- of which are neither Lacouture, v. 495 nation. United States prove the must The ant. denied, (5th Cir.), 419 F.2d 1237 cert. U.S. beyond a reasonable doubt guilt fendant’s (1974); 648 95 42 L.Ed.2d S.Ct. jurors; may of all to the satisfaction 1968); (7th Myers Frye, v. 401 F.2d 18 sup- testimony, the defendant’s not obtain Johnson, (W.D. F.Supp. v. 375 872 Johnson evidence, exculpatory retry nor press Wolff, F.Supp. Mich.1974); Holloway v. though acquittal, after even er- defendant Maryland, (D.Neb.1972); Royal see oc- prejudicial rors Government 1976)(Winter, (4th defendant, contrast, may curred. The J., dissenting). While all; offering any proof without prevail witness discourage a prevent inculpatory he need not disclose whatever Texas, Washington v. testifying, discovers, may evidence he avoid conviction single juror that reasonable by persuading a Morrison, supra, it (1967); exists, may challenge a convic- doubt Amend to see how the Sixth is difficult appeal subsequent tion direct collat- either the places upon ment of its own force eral attack. any affirmative ob prosecutor or the court system of criminal law administra- ligation to secure from a defense procedural this imba- tion involves by replacing protection defendant, lance in favor of the but also with a self-incrimination important aspects of the Government’s law immunity. power enforcement that are not available to basis Arguably plausible there is a more Subject the defendant. to constitutional immunity in the more for defense witness limits, may the statutory and Government require-

general perhaps developing and suspects, private premises, search arrest the protected by ment of basic fairness deploy wiretap telephones, and the investi- Due Process Clause.2 Fifth Amendment’s gative large public agencies. resources of appeal constitutionally protected The to argue public the seriously New would that argu- proceeds fairness from two basic by would well served either ex- interest First, ments. as this Circuit hinted Glea- tending powers all of these to those accused Lang, may inhere in son and unfairness by equalizing procedural crime or the of the Government’s some situations because prosecution and restrictions of and burdens af- of use to its witnesses isolation, trial. Viewed in defendant at advantage over the defendant’s fords an appeal equal is a surface avail- there to ability Secondly, a defense. ability prosecution of use for and a search of the extent that a trial is viewed as witnesses. But in the context trials, truth, investigation and criminal for the denial of defense criminal inherently accused have immunity may un- where accuser and in some circumstances roles, entirely pow- different different fairly objective.3 thwart that situation, concept put first 3. We to one side the illustrated Defense witness Morrison, supra, 1960’s, regarded developed only where a as United States v. in the and option plausible only passage witness immu- the use court uses the of defense since the statute, nity remedy prosecutorial proc- part qualify mis- as a due as of a cannot any theory part right There is no it is conduct directed at the witness. ess on that any “compelling legal profession.” misconduct. traditions of the claim in this case of such California, 165, 171, 72 S.Ct. Rochin v. 205, 209, (1952). 96 L.Ed. v. mony. Kastigar supra, United rights, equalization ers not a sound 461, 92 particular principle any on which extend S.Ct. at 1665. While this U.S. minimum, At procedural cataloguing device. such a can met by burden support a constitutional principle “freezing” will not the known to evidence the fair- interpretation of Fifth Amendment prior Government to the immunized testi ness. that mony, technique is not available when continuing investigations vital disclose evi on argument, The second based the after, from, though resulting dence truth, pursue has somewhat need Stewart, v. See SEC testimony. immunized rule the greater general force. As a (2d 1973) (Timbers, J., obliged divulge properly Government Moreover, dissenting). to meet its burden Brady Maryland, exculpatory evidence. prosecution proving the immu 1194, 10 L.Ed.2d 215 in any nized witness was not benefitted however, principle, That has hereto way prose his immunized fore been limited to evidence the Govern knowledgeable an cutors most about inves possession been extend ment’s tigation may in some circumstances be obligation ed to create a Government obliged contact with forgo further extracting assist the defense from others the witness for a new team of arrange not have. evidence the Government does investigators prosecutors pursue concept Moreover the of a trial as search him. See States against case failed full always the truth has real Kurzer, (2d 1976). 534 F.2d 511 important are shield ization whenever facts Secondly, priv awareness of obstacles to ed from disclosure because lawful prosecution an immunized wit- ilege. key prove fact needed to a de successful may ness force the to curtail its fendant’s innocence be contained in a cross-examination the witness case privileged attorney, client’s admission his scope on testimo- to his trial narrow privileged a husband’s admission ny later claim tainted wife, of a wit witness will as well as in the subsequent While the wit- prosecution. protected by ness self- Nevertheless, prosecution and secure prevent it must be ac ness cannot incrimination. broadening “bath” knowledged since the advent of immu answers, scope testify- of his he could if statutes, privi nity the self-incrimination other, ing of transactional immuni- lege, displaced can under unlike may substantially pro ty, his fulsome answers any impairment legally without of any lessen the likelihood successful rights privilege. tected holder immunity, use im cution. And unlike transactional improve legal position

munity does not Finally, there is considerable force privilege; it leaves his the holder of apprehension that defense Government’s legal before he rights precisely as were immunity opportuni- create witness could testified. of use immu undermining ties for the administration interests, and nity implicate public does inviting perjury justice by cooperative assessment of a claim for defense witness among law violators. Co-defendants could public immunity use must reckon with those other, each immunity secure use for concerns. witness could exonerate his each immunized separate by falsely co-defendant a trial place, prosecution In the first while at crime, Kastigar responsibility for the theoretically accepting under sole remains free knowledge that his admission granted use immuni- secure a witness own trial for the not be used at his ty, the obstacles to a successful could perju- threat of has a substantive offense. The can be substantial. The Government conviction, far ry penalties frequently prove that its evidence with “heavy burden” to offenses, could not be below against the witness has not been substantive immunized More- such tactics. prevent as immunized testi- relied obtained a result of his Immon, 1977) (3d (testi- over, substantially un- 568 F.2d 326 this maneuver would trials, joint mony given Jeopardy to assert Double opportunity dermine the consequent expense, delay, defense). burden with Clause judi- witnesses and the upon disinterested However, a court cannot determine system. cial provision re- whether constitutional concerns are How these substantial quires judicial grant immunity of use interest in weighed against the defendant’s upon the assessing implications without exculpatory testimony securing truthful Branch, that flow Executive both those immunity turns in through defense witness immunity from a of use and those large balancing part upon whether adjudication that flow from an of whether judicial appropriately these interests is immunity might appropriate such suggests it is function. The Government particular previously case. The concerns not, contending granting of immu that the expressed about the risk to other successful nity pre-eminently a function of the Ex prosecutions normally are matters better ecutive Branch. See Ullmann United prosecutors by judges. than assessed States, 497, 100 76 S.Ct. L.Ed. U.S. position weigh in Surely court is no hand, judici On the other public comparative interest in the worth ary responsibilities has constitutional witness, prosecuting a or his al- defendant Moreover, the fairness of a trial. as though if a court decides that Smith, argued Garth has the court can required, always it can leave that ultimate directly without act accord prosecutor by advising assessment with the ing Legislative in the domain of either the trial of the defendant will continue A rule or Executive Branch. court can if the is immu- witness’s testimony may not be a wit used confronting nized. But adding any gloss ness without to the use terminating prosecution a choice between directing prosecu statute prosecu- jeopardizing defendant or statutory authority. tor to use his Judicial congenial tion of the witness is not a task ly premised created use albeit on judicial function.4 considerations, constitutional was fashioned contended, Still Supreme Murphy Court v. Water Smith, ought Garth did in that a court Harbor, front Commissionof New York determine in each case whether the risks to 1594, 12 (1964) L.Ed.2d 678 public conferring interest (witness’s compelled testimony barred from immunity outweigh witness the needs of jurisdiction), another and in Sim suggests types the defendant. two Smith mons v. United inquiry: (1968) (defend prosecutor’s opposi whether the tion to defense stems suppression hearing ant’s at trial). distorting barred from use In re “the deliberate intention of See also (3d finding process,” the fact Jury Investigation, Grand 587 F.2d 589 1978)(testimony given Speech present “strong to assert whether the can defense); interest,” countervailing and Debate United Clause States id. at so, regard immunity judi- 4. We do not the limited even if cerning immunization of a statement con- cially standing created for the defendant in Simmons v. Fourth Amendment carries States, supra, analogous very impeding prosecution to be to use little risk of immunity for a witness. Simmons the Su- defendant for the substantive offense. Further- preme more, Court ruled that a defendant’s Simmons to creates avoid suppression hearing, presented choosing at a to establish the dilemma of a vindicating between defendant’s claim, standing right to assert a Fourth Amendment his Fourth Amendment could not be introduced at trial. The Court focused on exclusion of the defendant’s testi- maintaining his self-incrimination Nothing comparable presented trial. is when a mony, and did of formal not mention creation hoped defendant finds that evidence he present to e., immunity, prohibition against using use i. persons is unavailable because other Perhaps leads from it. prefer privilege. to assert their own decision, but, implicit was the result of the

777 exculpatory dispute holding no with the in clearly ev- Smith. need for defendant’s light of the considerations in all inquiry propel will a trial Either idence. discussed, we find ourselves in previously Focusing waters. into uncharted court disagreement with the stan- fundamental intent will often lead prosecutor’s dards outlined in that decision. Without exploration premature disclosure of to precluding possibility some circum- investigation pending of an status anticipated, simply now we do stances not Moreover, against prosecu- witness. a gener- Clause not find in Due Process enough evidence to seek indict- tor without defense witness immu- requirement al prefer may legitimately a witness ment of it seems fair nity must be ordered whenever to on the option prosecute to maintain required fairness to it. The essential fairly later information. It cannot basis of guards by the Fifth Amendment argued, to where the declines overreaching against by fendant the absence consent to use 150, cutor, Giglio v. 405 prosecute evidence present intention to is 763, (1972) (failure 31 L.Ed.2d 104 92 S.Ct. fact-finding proc- of intention to distort prosecute govern- not to promise disclose Alternatively, weighing the “counter- ess. Johnston, witness); Waley 316 U.S. ment granting in defense vailing interest” not 101, 964, (1942) 1302 62 86 L.Ed. S.Ct. all immunity will in likelihood witness evidence); (threat to use manufactured formulating be as elusive a task prove to (2d Lombard, 606 F.2d 371 Taylor v. any meaningful standards for the assess- 1979) (knowing testimony); of perjured use extraordinary fact situation ment. In the Westbo, (10th United States v. 285 case, where the presented the Smith 1978) (disobedience ruling of court ex- immunity does not prosecutor opposing use evidence); cluding of other crimes admission jurisdiction the wit- even have York, 257, 92 cf. v. New 404 U.S. Santobello ness, public granting not interest in 495, (1971) (repudiation 30 L.Ed.2d 427 S.Ct. immunity appears to be defense witness and insulates him plea bargain promise), But in most situations where non-existent. See, g., e. Ward v. Vil- against prejudice. likely is defense witness 80, Monroeville, 57, 93 lage of 409 U.S. S.Ct. sought, legitimate prosecu- opposing some pecuniary (1972) (judge 267 had 34 L.Ed.2d exist, will and constitutional tion interest Maxwell, result); Sheppard v. interest satisfactory standard fairness 1507, 333, 600 16 L.Ed.2d 384 U.S. 86 S.Ct. against which to assess such interests. publicity); (1966) (trial to excessive subject urged legal proposition When novel Louisiana, 379 U.S. S.Ct. Turner court, judicial there is a natural upon a (1965) (prosecution wit- Indeed, the say “never.” ex- during reluctance jury room delibera- nesses Murchison, traordinary presented tions); fact situation In re (1955) (judge also a situation where de- case illustrates 99 L.Ed. Smith grand jury); one-person Moore v. immunity can be served as nial of defense witness L.Ed. Dempsey, 261 U.S. deny the fair trial said to the defendant (1923) (trial occurred under threat of the Due Process Clause. guaranteed by violence). general It does not create mob important recognize that Smith Yet it is or courts to ob- obligations prosecutors really does not involve Due privileg- protected by lawful tain evidence public inter- Process Clause balance es. withholding est prosecu- it. defense need for In Smith of this case do The circumstances jurisdiction over the witness was tor with remotely approach a situation where immunity. Opposition willing immunity could be lack jurisdic- without constitutionally protected came deny found to simply This an instance the demand for place, tion. was In the first fairness. apparent initially rea- in the middle prosecutor interfering, for no made un son, properly found suppress that was about of the trial and evidence set timely Judge Broderick for reasons We have become available to the accused. par- in a v. cons of defense witness United States margin.5 out in the See fact, judges we think trial (2d Cir.), cert. ticular case. 1345, 1361 Taylor, defense summarily reject claims for 2958, should denied, 53 97 S.Ct. 432 U.S. witness for Jones, immunity whenever the (1977); United States L.Ed.2d 1083 sought an actual or immunity is whom 1973); (9th Cir. F.2d 679 487 hearing No target prosecution. potential (7th Grooms, F.2d States establish such status. should be held to denied, cert. Cir.), 409 U.S. that the witness need show Secondly, Judge 34 L.Ed.2d present been indicted or court expected considered carefully Broderick parte ex camera setting affidavit forth sought testimony of the witnesses prosecu- support circumstances that none and concluded immunized suspicion the witness’s criminal ac- tor’s material, exculpatory provide would them duty imposed upon tivity. No testimony would either Their evidence. cutor; rely upon simply option he has an immaterial, cumulative, or have been poten- witness’s status as an actual matters. only on collateral impeaching any to foreclose target tial Thus, refusal to order the the trial court’s immunity for that wit- inquiry concerning was to confer where the ness. If a case should arise plainly correct. and the an indicted defendant witness is not expressed thoughts our on We have prefers not to prosecutor cannot length we do not the issue at some because potential the witness is a any claim that agree with Broderick’s views on the defendant, the defendant on trial and if witness im general availability of defense witness’s demonstrates material, we wish to see criminal munity, exculpatory, nor do and clearly will cumulative, enough to regularly interrupted by wide-ranging it will be time trials whether in those circumstances concerning specific pros decide inquiries findings charge investigation was were as of the men in Broderick’s detailed position of their trial duties— follows: —because meaningful either to make a recommendation days elapsed the first Some 171 between attorney to mony requested might that the testi- beginning pre-trial conference herein and the necessary that the of trial. Defendants were aware government’s investigation interest, ‘heavy public bur- 441, or to shoulder oil of the crude (Kastigar continuing during period; den’ v. United this market was this counsel (1972) very argued 32 L.Ed.2d 212] [92 to me fact was adjournment marshalling seeking the evidence then available substantial original respect proposed witnesses date. Yet it was never drawn my during period government might attention this indict in the to fendants munization of witnesses. The crude vestigation whom the requesting im- had intention of future. oil in- of defense counsel at The resourcefulness trial, was initiated in the New York thorough knowledge and and their office, County Attorney’s case, District and the in- understanding persuade me that vestigation by Assistant Dis- was conducted anticipate that have been able to should Attorney of that trict Michael F. Baumeister many prospective witnesses would invoke Attor- office and Assistant United States Amendment, my judgment and in the Fifth they ney Attorney. Vizcarrondo for the United States Paul prosecu- presented to the should have jointly represent- These two men myself prior and to to trial the substance tors government pre-trial proceedings in all ed the in this applications not the details of the made at if case, they jointly presented the government’s the close of the case. government’s was a case at trial. The case applications by Thus the defendants were one, involving complex complicated ganization or- timely. The effects of their untimeliness operations of the commodities jeop- were to introduce the element of double began the full futures market. Once trial time of the two ardy belong; it did not into a situation where attorneys, government Bau- government their and to force the applications to consider Vizcarrondo, fully absorbed meister persons in- presentation the case in the trial with the investigation time when the volved in an at a room. attorneys requisite government with the two knowledge immunized The demand that witnesses be engaged time basis were on a full government’s was made at the close presentation complex case on trial. case, trial, in the middle of the when neither itself, to tion is in respect expressly recognized with the proper court has role course, places our the immunity. Of statute. This statute defense witness Depart- in interpretation grant Fifth Amend- decision to the hand of the limited the issue not ment of Justice and leave to court application to this does ment’s granting the ministerial function of preclude by broader action directing order the existing authority of the and thus that stat- Attorneys under the cir- is action to define ute observed. legislative 6002 nor § immu- in which defense witness cumstances nothing see in or in theory, practice, I to nity granted. should be gained by any whereby procedure be the upon be prosecutor may called to state that Affirmed. has that he reason believe the intended (concurring in LUMBARD, Circuit possible witness is a defendant. Theoreti- part; dissendng part): in the cally, response is sim- ply agree his refusal to to use immuni- affirming I the conviction. I concur in justified by is mere ty the claim the dissent, however, from the observations presumably witness. The knows opinion imply Newman’s which more about his own involvement in the the district under certain circumstances allegedly illegal activities the defendant. duty inquiring would be under the court the Consequently, government cannot be whether or not the should into forego use expected to the unrestricted prospective use to a de- be testimony, the witness’ and cannot re- is my witness. In view it not the fense undergo manag- quired difficulty the judge inquire proper business of the trial ing separate compliance staffs to ensure propriety prosecution’s re- into the may a no use be with restriction that made prospec- use fusal might say. of what the witness tive witness. will happen It is not difficult to see what system best adversary judge our In judges suggest if we that trial should exam- remaining com- performs his function ine claims of defendants keeping pletely impartial objective and granted prospective should be witnesses apart gov- which entirely from the decisions testify refuse who otherwise would un- case ern the conduct of Government’s suppose Let us der Fifth Amendment. As presentation of the defense. and the has indicted five defendants. shows, analysis Judge Newman’s careful could claim that one or more of Each one investigation continuing and the unex- would, granted if his co-defendants im- evidence, pected development munity, give favorable willingness coconspirators give evi- separate then be five fense. There would dence, deli- all bear the difficult and trials, judge for the it would be difficult prosecutors must make cate decisions which claim is to find that defendant’s recommending and in indictments tri- groundless. separate To five if it presenting evidence trial. Even have prosecutor’s office would als possible judge were for the to be sufficient- separate differ- completely create five ly pertinent informed of all the facts attorneys to insulate the ent staffs of he cannot be—it considerations—which some use cutor from later claim that judge be highly undesirable that the should given had in fact been made of fraught asked to bear a burden that was witness when he defendant objec- danger impartiality and that his co-defendant at an earlier trial. be, be, may actually tivity may seem to will assert that judicial many function exercised cases the witness impaired. The lawyer know whether the judge really with his cannot by the should not be confused (who may think himself to how to witness executive function to determine might, short of immu- bystander) evidence innocent prosecute defendants and missing link nity, providing distinction important them. This pros- functions, evidence. government chain circumstantial between which wit- proposed then ask that possible ecution can the firmest roots Constitu- counsel, Indeed, by suggesting ness be examined in camera and that there oath, under to determine whether there is cases where the inquire court should good prosecution in fact a faith assertion that the wit- immunity, about use we invite testimony may ness’ tend to incriminate wrongdoers potential to come forward as knee-jerk him. The use of the Fifth they witnesses to ascertain if have been usually Amendment witnesses is a apparent device discovered. It is that the district unpleasant to avoid the and embarrassing may expect increasing courts number of experience testifying against applications friend or immunity inquiries. for use someone whose retaliation feared. Al- Moreover, requirement that some rec- though everyone this, knows the claim of ord prosecutor’s be made of the response hardly the Fifth Amendment presents dangers. obvious material Such questioned ever even when witnesses use it which may great wrong- be of value to the stating avoid their or occupation address doer-potential witness will necessarily be person. or whether know a disclosed to beyond others those who need Thus, open if we are to the door clerk, to collat- typist, reporter know —a eral proceedings to determine the propriety aide. other of the prosecution’s give refusal to use im- reasons, For these I conclude that munity witnesses, to intended the district potential harm to the administration of courts should prepared spend also be justice criminal which is involved in any inquiring good some time into the faith of inquiry into the of use to a Fifth Amendment claims which are made as witness so far outweighs any possible need or, ploy get if use immu- procedure trials, for such a to ensure fair denied, nity is ground to use the denial as a that I prohibit would the district court from appeal after conviction. The prosecu- entertaining an application such or conduct- request tor’s hearing such a to test the ing inquiry. such an good faith of the claim would surely be entitled to as much consideration as would demand for use immunity because

experience teaches that it likely is far more

than not that there is no basis for the claim. sum, I do not see prosecutor’s how the refusal to witness, to a John R. SEYBERT and Victor suggests by who claim of Soto, Plaintiffs, might he well target be a suitable for inves- SOTO, Plaintiff-Appellant, Victor tigation, can ever be considered improper interference production with the of evi- dence. LOWEN, Robert as International Secre- Every unnecessary disclosure of informa- tary-Treasurer of the International Or- tion increases the diffi- ganization Masters, Mates and Pilots culties of administering justice: criminal America, AFL-CIO, and the Interna- whether or not the evi- Organization Masters, tional Mates potential dence about the witness is infor- America, AFL-CIO, and Pilots of De- mation which may be of value to the wit- fendants-Appellees. ness. A may have an indication No. Docket 79-7505. rising to the level of admissible evi- Appeals, United States Court dence or point even to the where it could be Second “persuasive” (albeit considered Circuit. inadmissi- ble) by a judge. rejects trial If the judge Argued Feb. 1980. parte the ex prosecutor, submission of the Decided May potential then the relatively certain that his activities are undiscovered.

Clearly procedure may such a great have

value wrongdoer.

Case Details

Case Name: United States v. Norman Turkish

Court Name: Court of Appeals for the Second Circuit

Date Published: May 27, 1980

Citation: 623 F.2d 769

Docket Number: 608, 795, Dockets 79-1326, 79-1396

Court Abbreviation: 2d Cir.