United States v. Richard P. Herman, United States of America v. James J. McCann in No. 78-1282

Mоrtgage Corporation and tain Advance was entry of ease of trust considerations H.R.Rep. shares. Cf. conformity relative market timely . and in agree 17. We with the supra note ing and evidence. statutory standards the Fifth Circuit that “Con conclusion of petition for review and deny Citicorp’s We gress that concentration of eco believed the Board. affirm order of single entity beyond nomic resources in regardless harmful point certain

proven any anticompetitive existence of ef

fects As of such concentration.” Alabama Agents Insurance v. Board of

sociation of Reserve System,

Governors of Federal (5th

F.2d amended denied, 729 (1977), cert.

rehearing denied, 904, 98 S.Ct. STATES America UNITED (1978). Although this does not L.Ed.2d bigness has Congress mean that condemned se, Congress think did com per as bad we HERMAN, Appellant. Richard P. task expertise

mit to of the Board the size alone makes the determining when of America UNITED STATES banking nonbanking combination public corporations against interest. McCANN, Appellant James J. factor, we conclude that regard With No. 78-1282. applied proper in this case Board legal supports and the record standard 78-1252, Nos. 78-1282. conclusion. Appeals, States Court justifiably found that the Board also Third Circuit. anticompetitive ef- produced combination fects. competition It is clear that between Argued Sept. 1978. has been lost in the Citicorp and Advance Decided Nov. 1978. origination income-pro- of construction As ducing and that there was a Amended Dec. property loans acquisition basis that the finding caused competitor Citicorp potential

loss as a mortgage loan In residential business. anticompetitive effects

detеrmining the properly the Board took acquisition, Citicorp

into the likelihood that account mortgage banking

would have entered into through acquisition

de a smaller novo or above, spe-

firm. As indicated statute

cifically the Board to permits “differentiate

between activities commenced de novo and acquisition,

activities commenced whole part, going ” . .

concern. . effects weighing possible adverse public

against reasonably expected benefits Board, expertise committed to the findings

and in Board’s are this case the conclusion,

supported by the evidence.

we Board’s hold that March Citicorp’s application

order to re- denying

Garth, Judge, opinion filed an Circuit dissenting

concurring part part. Boreman, Baskin, Martin,

Richard H. Wilner, Sachs, Craig, & Pitts- Gondelman Pa., Richard P. burgh, for Herman. Clark, Livingston, A. J. Thomas Dennis Pa., Pittsburgh, for James J. McCann. Griffith, J. Atty., Blair A. U. S. James West, Atty., Asst. U. S. Bruce A. Antkow- iak, Jeffrey Manning, Attys., A. Asst. U. S. Pa., appellee. for Pittsburgh, GIBBONS, throughout Pennsylva- HUNTER and crimes Western Before GARTH, Judges. qualified surety nia. The for principal Circuit Insurance agency Stuyvesant was Com- THE

OPINION OF COURT required pay pany, to whom Levitt was 2% of the amount of each valid bond face GIBBONS, Judge: Circuit Early in he agency. issued appeals Richard P. these consolidated magis- made an with certain arrangement 78-1252) (No. and James J. Herman County pay trates in a kick- Allegheny 78-1282), (No. McCann former state court premium back of surety bond 50%of magistrates Allegheny County, Pennsyl- magistrates bail bond business who referred vania, appeal judgments of sentence agency. to his When a newly established violating following their conviction to him one of defendant referred and Corrupt Organi- Influenced Racketeer magistrates, usually post these Levitt would (RICO).1 We affirm Herman’s zations Act an court. invalid with the In some bond and remand for a conviction but reverse cases, surety a bond post he without would new case. trial in McCann’s required attorney including power of the the charged indictment The first count others, Stuyvesant surety; bind he Herman, and others conspir- with McCann post property would bond. a worthless ing offered a bail bond- accept bribes necessity Both the of mak- devices avoided ing Agency firm as the Levitt for the know Stuyvеsant. ing any premium payment to purpose their affecting official behavior preliminary If the case at the was dismissed cases, in fixing bail in criminal in violation premium hearing split gross he would the count, 1962(d). In the U.S.C. second § the If case magistrate. with was held each with charged man was the substantive for court would deduct the cost of ob- he 1962(c) proscribed offense of associat- § taining a attorney, split valid ing Agency, enterprise with Levitt an premium. Often after remainder commerce, conducting its affairs magistrate a valid posted bond had been through pattern racketeering activity. a reduce amount of surreptitiously Before trial the defendants moved to dis- miss bond refund to the premium and to with no suppress indictment certain evidence; defendant, granted lowering the thereby required The district court these motions, government appealed, payment surety and this and increasing court When on reversed.2 in- magistrate. remand the sum split which with dictment for trial was moved Herman and Agency files,4 Relying Levitt upon the remaining McCann were severed from the bond which individual transactions listed They defendants because of ill health.3 defendant, Levitt illus- date and name of constables, were together tried with two the specific trated how calculated he had Phillips, Zanello and and found guilty. paid sums Herman and McCann on He further account each bond. testified chief witness was Ste- placed that on occasion he' had each such phen Levitt, pled C. who had to a guilty money envelope appro- with the in an 1962(d). violation of 18 Levitt U.S.C. § it, priate magistrate’s name on and had testified that from of 1970 February envelope either through May operated personally of 1975 he delivered a bail employees, agency Pittsburgh, magistrate bond of his or Pennsylvania, or one writing persons surety charged bonds for directed so delivered. that it be 91-452, Appeals seq. 1. Pub.L. 18 U.S.C. 1961 et from the convictions of the remain- ing pending in this at defendants are Docket 78-1123-1170. Nos. Forsythe, 2. United States F.2d 1127 1977), rev’g, F.Supp. (W.D.Pa. through and V-34 related V-32 4. Exhibits V—1 1977). through R-l R-28 relat- McCann. Exhibits ed to Herman. Winner, who Kozlowski, operated of Jacob bail bond a former bailbondsman Victor under a Agency, the Levitt testified Pittsburgh at known as the Ameri- agency in Lev- He corroborated Bonding Company, can to the effect at Levitt’s and stated that testimony, itt’s paid between 1970 and 1972 he Herman he kick- personally had delivered direction on all premiums and McCann 50% his cases to Herman and McCann backs they posted in cases where bonds which he at had the bail bonds their which he written court ruled had fixed bail. trial formerly a Mary Hupert, secretary office. After was inadmissible. under an im- at the also testified Agency, testi- McCann rested case she stated that had munity grant. She having He denied fied in his own defense. observed, envelopes prepared, and later di- value from the anything money taken McCann and that rected to Herman and she in his direct testi- Agency. Levitt Neither calls both phone magis- had received did men- he mony or on cross examination referring bail bond trates and their staffs Bonding tion the American Com- Winner оr Agency. She further clients to Levitt testimony of pany. presented also He an occasion on she recalled testified office, who worked in his three constables picked Magistrate Herman’s son had which Agen- chief, payment envelope secretary, police the Levitt local all of up cy- they knowledge whom stated that had arrangement or referral kickback Benedik,

Eugene a former constable in office. Each of these witnesses McCann’s office, that McCann had McCann’s testified his only testified or her own lack of him personally instructed to refer arrested referrals, in of a to the Levitt persons any payoffs need bond or not knowledge of picked He had Agency. also stated that he agency that no from bail bond ever payoff Agency up kickbacks the Levitt from McCann’s occurred.5 Since defense counsel with McCann payments had divided those availability to was well aware of Winner’s co-constable, Wagner. with one his carefully avoided quite he Special Agent Marinaro the FBI testified fairly con- any be testimony which can during that with lengthy interview re- wrongdoing with strued as a denial 25, 1976, February FBI on Herman had than agency other spect any bail bond pick up had sent son to admitted that he did, how- Agency. The defense Levitt envelope containing an several hundred dol- ever, present testimony seventeen from Agency lars Levitt as kickback Many of testi- character witnesses. these payments on written in cases heard bonds fied, objection, specific acts of without him. before benevolence McCann. McCANN’S APPEAL In once sought rebuttal testimony.6 the Winner again to introduce govern During its case chief the He attempted pointed ment testimony objected. introduce the McCann’s counsel contradicting We that assertion. therefore 5. On cross examination suc- applicability secretary, eliciting have to consider the ceeded in no occasion McCann’s States, 347 e., of the U.S. v. United Charding, response doctrine of Walder Anna “he that [i. 62, 354, (1954) to the L.Ed. 503 98 never McCann] recommended [bailbondsmen] testimony of a non-defend- cross-examination (945a). either.” It relies on this as a denial on ant witness. referrals, any McCann’s behalf of even Win- context, however, nothing Taken ner. it is proof: government’s 6. The offer of her more than reiteration of direct shorthand Okay. will Mr. Winner MR. MANNING: testimony knowledge of kick- her lack of about 1972, operated testify he that from 1970 attempted to as- or Had backs referrals. she County Allegheny bail bond business anything of knowl- sert more than her own lack Company; Bonding dur- known as American ing hearsay. edge her statement would have been surety period he was a that of timé reject government’s that We contention Public on the bondsman who wrote bonds testimony that referrals McCann offered Corporation of Service Mutual Insurance made, that were ever conclusion during York; testify New he will that evidence could therefore offer other crimes through he received 1970 course of 1196 witness, purpose

out, agreed,7 that McCann’s for of attaсking and the court was limited receipt of kickbacks denial of than convic credibility, other supporting his court, Agency. solely to the Levitt 609, may rule provided tion of crime however, testimony the Winner ruled that g.,E. proved by not extrinsic evidence.” solely as rebuttal was admissible Edwards, 549 F.2d United States v. by McCann.8 evidence offered character denied, cert. (5th Cir.), 367-68 U.S. substantially as set Winner then testified United (1977); 54 L.Ed.2d of proof. offer forth in the Cluck, (5th Cir. States 544 F.2d charge the trial court restated the In its Blackshire, 1976); United 538 F.2d the Winner testi- for which purpose limited denied, cert. (4th Cir.), admitted, admonishing had been mony (1976). any not be considered for jury that it could government urges that a judge- purpose except to rebut the character testi- exception 608(b) permits made to rule mony that was offered McCann.9 con McCann contends the court erred in by specific uncharged tradiction acts of mis admitting testimony pur- even for conduct testimony when a defendant’s own pose. places his conduct or character in a “false light.” it cites proposition For this ruling jury Neither in its nor in the Batts, States v. (9th F.2d 513 make charge did the court reference to rehearing, modified on the federal rule of relied for Batts, charged the defendant was testimony. admission of the Winner Since smuggling hashish. When arrested he was testified, possible McCann had it is wearing spoon.” During question a “coke governs court had in mind rule which ing examina spoon during about cross concerning admission of evidence tion, knowledge he denied all of cocaine use. so, character and cоnduct of witnesses. If appeals originally The court held that admission of the Winner was er ror, 608(b) expressly provides general justified rule denial admission un “[sjpecific instances of the conduct of a 608(b) der rule of rebuttal solely Magistrate referrals of bail bond clients from I believe it is admissible in rebuttal McCann; identify Magistrate testimony reputation James he will to the character timony. or tes- McCann; testify split and he will that he the n money he received from the defendants on charged: 9. The court premiums Magistrate bond 50/50 with You will recall then that the Government paid premi- McCann and that he him those testimony offered in rebuttal of Jacob personally. ums paid money Winner to the effect that he to any testimony by 7. THE COURT: Was there Squire the Defendant identified him as James McCann that he never took kickbacks for the McCann referral of criminal defend- anyone? from bonding agency. Now, ants to his the Win- testimony may by you not, ner be your in MR. considered LIVINGSTON: There was your determination of the character of Honor. Defendant is recall, whether that character only THE As I COURT: he testified your such that it raises a reasonable doubt that he did not take from the Lev- kickbacks guilty mind of the crime that the is Defendant Agency. itt charged. Defendant’s character Whether the Well, going THE COURT: am to overrule testimony reputation does as to excellent objection my previous consistent depend upon raise a will reasonable doubt cases, rulings previous rep- that where the testimony credibility and the of that put specifically, utation of the defendant is evidence, weight you give light all the ‍‌‌‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‍it in of question Jury that it then becomes a for the testimony including Jacob the rebuttal of evidence, reputation whether that when tak- testimony Winner. You cannot use the evidence, en into account with all the other any purpose except Jacob Winner for other prevents Jury believing or, put testimony — as rebuttal to the character that reverse, Jury it in that the is not convinced offered, you cannot convict de- beyond a reasonable doubt all under the evi- you find, course, fendant unless guilty dence that the defendant was of all of beyond evidence in other the case established the essential elements of the crimes with every reasonable doubt essential element of charged. which he is charged. crime prior crimes proper- sold a states recently large the defendant had agent. to an undercover quantity cocaine “to rebut the of the ly admissible Kennedy’s persuasive dissent Judge by showing that character witnesses Batts, effect that the F.2d at committed similar acts.” defendants had intention of majority misconstrued the Judge concurring opinion But as Hunter’s 608(b), would us rule make draftsmen of clear, witnesses in makes the character light” accept hesitate “false rationale beyond statements of went Chrzanowski application. if supported even the record spe- and testified to reputation opinion, Evidence at 608-28 See Weinstein’s 1608[5] tending legitimate to show a cific events Note, L. (1977); J. Rut.-Cam. operandi. 502 F.2d at 579. Thus the modus Morеover, help we cannot but think evi- specific of the use of events propriety subsequent the Batts court’s modification turns on the in the case dence Chrzanowski all opinion to eliminate reliance op- place modus defense’s decision there admissibility at 608(b) ground rule as a case. erandi in in its own direct See issue implicitly acknowledges least force Toto, Islands v. Virgin of the Government the matter. But Judge Kennedy’s view of 1976). (3d Cir. If the F.2d case. from this distinguishable Batts that its dictum intended Chrzanowski court Here, judge acknowledged, as the trial text of rule reading, broader given Lev- testimony was limited to the McCann’s reading did makes it that such clear He made asser- itt no Agency transactions. adoption subsequent not survive the probity and the Winner general tion of his Rules of Evidence. Federal light created testimony rebutted false Moreover, stat- him. none of the witnesses urges be also knowledge more their lack of ed than testified, witnesses im cause the character making receipt or the of refer- of kickbacks objection, specific but without properly not on rals. Thus the Batts rationale would part, acts of beneficence McCann’s admissibility support of Win- record other crimes opened the door to defense testimony. ner’s govern see why fail to evidence. We specific Rule governs use of object testi ment’s to character failure good or bad character. prove conduct to permitted rule going beyond mony expressions of It restricts such evidence the admissi ground 405(a) shоuld be reputation opinion. permit or of It does not evidence otherwise bility of other crimes specific affirmative use of instances contention was The same inadmissible. except conduct where a trait “character or Be in United States v. rejected made and person is an character of a essential 1978). nedetto, charge, element a or claim defense.” argues 405(b). ground Finally, Fed.R.Evid. That of admis admitting prosecution. in sibility is in this if court erred unavailable that even only specific other use of instances as rebuttal charac the Winner harmless, rule by conduct authorized is cross was be testimony the error ter examination of character witnesses. Fed.R. refusing to had erred in cause the court 405(a). Evid. No such cross examination 404(b) when testimony under rule admit the place. had, took If it and a witness had prosecution’s part it was offered as knowledge specific denied of a instance of said, it is testimony, case. direct Winner’s attention, an argument conduct called to his participation McCann’s probative was might be made that Winner the modus plan, and common scheme was admissible contradict witness’s the indict plan. However operandi argument denial. But on this record that Lev plan charges ment common was foreclosed. modus true Agency only. It is itt inwas offenses operandi on Winner relies Nevertheless the government . of the Levitt Chrzanowski, to that respects v. similar dictum in some United States still be must (3d 1974), which F.2d Cir. offenses. But case, evaluated, government’s preju- under rule fоr undue direct and that its ad- dice, issues, pre- and confusion of needless impermissible theory mission on an in re- sentation of cumulative evidence. United buttal was not harmless error. (3d 1978); Long, States v. 574 F.2d 761 Cir. admitting Because the court erred in evi- Cook, (3d United v. States dence of other crimes committed 1976). Cir. While in most instances we must be vacated McCann his sentence judge’s would defer to the district sound a new trial. case remanded for issue, concerning discretion a rule 403 see F.2d at Long, United also contends: Defendant McCann where, here, the evidence was admitted (1) proof that the estab- theory urged under a different from that single than a con- multiple lished rather appeal, strongly and defense counsel ob- spiracy; effect, jected a more prejudicial to its (2) that violation of U.S.C. searching required. inquiry 1962(c) (d) making occurs § determining probative val continuing not a agreement of an and is ue of evidence under rule 403 we must offense, and thus that the offense took only consider not the extent to which it place prior to the effective date of the tends to proposition demonstrate the which statute; it has been prove, admitted to United (3) prove that the failed to Stirone, (3d States v. Cir. offense; the elements of a § grounds, rev’d on other (4) his should L.Ed.2d 252 severance motions but also the extent proposition which that have been granted; directly at issue in the case. United States (5) unconstitutionally 1962(c) Cook, supra, 538 F.2d at 1004. In this vague; case, the fact that the means used to com (6) charge impermissi- that the court’s mit сharged uncharged crimes were bly charge broadened the made somewhat similar probative had little grand jury; and weight, particularly jury since the had al (7) that reconsider court should ready been informed Levitt that the 50% appeal, rulings prior it made in a payment scheme, far from being unique, States v. F.2d 1127 Forsythe, 560 had been used with many magistrates other 1977). in Allegheny County. In view of that testi mony, seriously cannot be argued that the On the record before us we find no merit operandi modus described Winner’s testi reject these contentions. Thus we mony was so unusual and distinctive that contention that the indictment should be similarity operandi to the modus describ dismissed rather than remanded for a new ed by Levitt by justified itself an inference trial. participated McCann had in both trans Moreover, actions. operandi modus was at best a collateral issue in the case. What HERMAN’S APPEAL was centrally in issue was whether McCann testimony was not admitted The Winner was the person kind of who take a would Herman, against and in Magistrate way bribe. testimony, believed, The Winner if prejudiced urges grounds him. He two just

tended to show that McCann was such the a new trial which on the record person. highly Its effect was thus preju before us without merit: we find to be dicial probative to his defense. Since (1) government that the offered no evi- value of operandi the evidence as modus predicate dence tending prove of- testimony clearly outweighed by its law, bribery Pennsylvania fense of under prejudicial effect on McCann’scharacter de fense, prove and thus did not a violation of 18 proper we hold that it was to exclude 1962(c) (d); evidence when it was offered and U.S.C. §

(2) impermissi- hearing A was held on that assertion of charge the court’s bly charge broadened the made at which was established privilege grand jury. had been that each constable indicted for participation Agen- in the Levitt alleged grounds require These no discussion. cy conspiracy. bail Prior to the bond start contends, however, that he Herman also charges against Herman’s trial each he was de- was denied a fair trial because preju- of them had been dismissed without right to prived of his sixth amendment have not, of limitations had dice. The statute obtaining witnesses compulsory process for offenses, trial, put however, four and the con- in his favor. At Herman run on the Three former constables in his granted witnesses. stables had not been Williams, Regrut, Robert and office—James quite properly sustained the con- McHugh they William had privilege against assertion of the stables’ —testified split Magistrate any never with Herman Herman then self incrimination. moved Since, funds received Levitt. how- from and the court ever, Regrut having denied ever received immunity, testimony them so that their Levitt, any money from Williams stated compelled, could be or in the alternative money only that he had received for picking should be the indictment dismissed. up jumpers, McHugh bail was not re- suggestion No was made that either the quired testify as to the reason that he improperly acted court or the Levitt, money received from force of to assert the cоnstables order to cause was muted. Herman’s secre- incrimination. self privilege against Howe, testified that she had tary, Josephine agen- never made to bail any referrals bond

cies; that, Amendment Claim knowledge, it was A. The Sixth to her not Magistrate policy Herman’s to make such in In support of his claim referrals; that, knowledge, her Mag- po dictment be dismissed because should istrate Herman had never taken bribes granted were not tential defense witnesses performance kickbacks in the of his use Herman relies on United duties. Morrison, addition, proposed Herman to call as 1976). misplaced. That reliance is In Mor McHugh defense witnesses and three other government’s attorney rison the threatened constables who on occasion had done work who, pri- and intimidated a defense witness out Relying upon of Herman’s office. prior government’s activity, or to the had indi admissions made the constables to the privi cated her intention not to assert the FBI grand jury, and the he represented to lege against self incrimination. The wit the court that their would estab- privilege ness then invoked the and refused lish that payments some from the Levitt amend testify. We held that sixth Agency respect to bail bond business guarantee Process Clause ment and the Due originating out of Herman’s office went to right subpoena a defendant constables, one or split more of the who available witness, witness to have that money among themselves passing without Texas, Washington v. as he finds him. See any along to him. The constables were 14, 19, 18 L.Ed.2d U.S. subpoenaed. hearing pres- At a out of the threats and however, ence of jury, McHugh invoked right by de violated that intimidation had privilege against self incrimination witness’s tes of that priving the defendant when asked disposition about the of funds Texas, 409 timony. Webb v. See received from Levitt. Counsel for the other (1972). This viola L.Ed.2d 330 three constables also- informed the court of the indict tion warranted the dismissal that if receiving asked about or disposing of separate turned to the ment. We then payments Agency the Levitt each whether, of the availabili privilege against question assert because self in- crimination and under 18 U.S.C. testify. ty refuse to of use

1200 B. The Statutory 6002-6003, cure Claim the could §§ which it had amendment violation the sixth dissent, however, The constructs an held could: We that it committed. statutory argument for a ingenious differ trial, event that At the new in the Garth, Judge relying ent result. witness, if Sally as a calls Bell defendant judicial provisions review of the Adminis right her Amendment she invokes Fifth Act, Procedure reasons that trative acquittal of testify, judgment not to Attorney “agency” is an for United States Government, shall be entered unless judicial provisions of the purposes review 6002, 6003, re- to 18 pursuant U.S.C. §§ that, act. He then concludes testimony. her quests use for express of an prohibition absence F.2d at 229. 535 1970 Organized Crime Act of Control Here there has been neither threat nor withhold judicial review decisions to im intimidation, implicit in the beyond that munity, appropriate such review is deter the availa penal existence of a statute and prosecutor’s mine whether the decision Hеrman would bility of a new indictment. argues “public He further interest.” have us read the Morrison case for the standing to the defendant has seek proposition general have a defendants such review. right to that wit sixth amendment demand choice or that nesses of their be immunized flaws. argument This several Of has indictments be It does not their dismissed. is the these, obvious fact perhaps most Morrison was the so hold. The violation in court review of the that district government’s threats intimidation of is in decision to determine whether the witness. The use of a of immuni “public grave sepa- interest” raises issues branch, a ty from the executive creature statute, powers. ration of Under the statute, solely solely intended which “agency” makes the deci- government, only benefit cure sion is not merely the United States Attor- Rocco, United States that violation. v. also the ney, Department but of Justice. (3d 587 F.2d 144 recently Cir. we Act, 201(a) 6003, of the 18 U.S.C. Section § rejected a contention substantially identical provides United Attorney States Ac to the defendant’s proposition. broader only may cord, Niederberger, United States v. 580 General, Attorney approval of the United States v. (3d 1978); 63 F.2d Cir. General, designated Deputy Attorney or a 261, Beasley, cert. Cir.), (5th 550 F.2d 268 denied, ju- Assistant Thus 427, General. 938, 434 54 U.S. 98 S.Ct. v. Bau (1977); of the immunity L.Ed.2d 297 dicial review decision must tista, denied, cert. (9th Cir.), seriously upon the necessarily trench au- 976, 1976, 421 95 U.S. Moreover, thority of the executive branch. ; Berrigan, United States v. (1975) “public necessarily, interest” review would United States 171, 1973); 190 only in require weigh, the court to if limited Smith, cert. 787, (5th Cir.), F.2d 436 790 circumstances, consideratiоns are denied, 1680, 976, 29 91 S.Ct. traditionally with the decision associated Earl v. United (1971); 142 L.Ed.2d degree Both the of intrusion prosecute. 77, U.S.App.D.C. 124 F.2d 531 proposed nature and the decision denied, cert. magnitude raise doubts constitutional People Sapia, (1967); L.Ed.2d 1370 whether it is for a appropriate N.Y.2d N.E.2d 688 N.Y.S.2d take on such task. see, Westen, Compulsory . But (1976) they fact These doubts are not new —in Clause, Process 166-170 Mich.L.Rev. passage after the Immu- were raised Right Amendment (1974); Note, Sixth statute, Immunity to Have to Defense nity Act of 1954.10 That one Use Granted Witnesses, immunity stat- (1978). predecessors 91 Harv.L.Rev. 1266 the current II, 91-452, 228(a), repealed Tit. 84 Stat. § Pub.L. C. Stat. Brimson, Commission v. utes, precondition as a for the required also 1047. 38 L.Ed. application from the S.Ct. of an order in Attorney certifying that States United at at 504. U.S. witness’s was judgment the legislative history The of section 6004 of interest.” It fur- necessary “public immunity statute the current use makes it the provided “upon ther that order of the Congress clear knew of construc- required court” could be to tes- the witness adopted approved tion in Ullman and of it. privilege. amendment tify despite his fifth review, subject On the the judicial House however, statute, clearly speci- The did not court’s Report role in stated that “[t]he fy responsibility the of the court’s nature merely to granting the order is find the with an presented for review when such predicated.” facts on which the order order. In United Ullman Sess., H.R.Rep.No.91-1549, Cong., 91st 2d a 422, 76 100 L.Ed. reprinted U.S.Cong. & Admin. in [1970] challenged the constitu- reluctant witness News, conjunction pp. 4018. In with ground, Act on the tionality of the 1954 direction, Report this then the cited with aliа, by providing for district inter Bart, approval U.S.App.D.C. re Attor- review of the United States court (1962), where Judge an ney’s immunity grant determination that Ullman, Wright, on had held that: relying interest, was in the statute re- public the language of “public interest” the im- [the non-judicial a quired perform the court to not address munity does itself to statute] court, Judge function. In the district Wein- Judiciary. application the should pass unnecessary feld found it opinion say, explicitly, that such is question a “whether ... Attorney show the States the court a approve grant concurrence, Attorney but, General’s hav- limitations,” offends In re constitutional conclusion, ing stated their Ullman, 617, 624 F.Supp. (S.D.N.Y. justify ment’s attorneys need not it. The fairly could because the statute judgment their cannot review construed the district court to requiring regard. this do no more than determine that the United (emphasis added) at Id. 304 F.2d at Depart- Attorney Justice (footnote omitted). agreement ment in fact in that the were judicial overwhelming There is thus “public was in the inter- grant legislative proposition for the authority est,” and because such construction prosecu- federal of a review the merits avoiding required by policy unneces- immunity is tor’s barred grant decision to sary questions. decision of constitutional dissent, however, by statute. concludes Id. 624-28. Under construction prevail must in the case contrary rule simply role of court was the district grant of a decision not to We prerequisites determine whether the formal agree. separation pow- cannot The same an immunity grant complied had been cоmpelled ers con- Ullman’s concerns granting with before order. deny any possi- struction of statute to appeal, Supreme strongly On Court prosecu- bility might that a court bar ' reasoning, endorsed hold- Judge Weinfeld’s application tor’s for a ing that: court order to a apply equal with force [sjince (c) may be true that duty requiring grant. under It the court’s such [of branch are .judicial ascertain whether the stat- only to “interests” of Act] utory complied a denial requirements implicated by are more But surely Attor- thereof. grand jury, the United States than General, holding gravamen we have is that ney, of the Ullman and the judicial nonconstitutional stat- concluding that the dis- difficulty interests permit intervention scope trict within the ure are court is confined insufficient prosecutor’s immunization decision. “judicial Interstate power.” Commerce pow- would in have the to separation addition Even if constitutional statutory construction fashion, and the review, ers concerns sweeping in a much more wholly bar the did not upon founded them prosecutor presented of the never decision dissent, advanced in notion of review to it at all. of the statute purpose and structure history of im legislative The Congress did not us that persuade munity sign statutes also shows no of a such review at the provide for intend to purpose to benefit defendants. narrow The Ad- a criminal defendant. behest of purpose immunity provisions was grants standing Act of the use ministrative Procedure “suf- only persons to those those federal immuni to seek review twofold: to eliminate fering legal wrong agency because of ac- trans ty required statutes that conferral of tion, adversely aggrieved by or or affected use and to actional rather than meaning within the of a rele- agency action complexity of im reduce the number (1977). It is vant statute.” U.S.C. § munity statutes. The shift to use requirement well that to meet this settled advantage of the more was intended to take seeking review must show not person immunity expressed favorable view of use fact, only injury in but also that “the inter- Supreme Murphy Court v. Water sought protected by complain- est to be Commission, front 378 U.S. 84 S.Ct. arguably ant is within the zone of interests (1964).11 Kastigar See L.Ed.2d protected regulated to be or by the statute 455-59, v. United 406 U.S. guarantee in question.” constitutional (1972). The clear 32 L.Ed.2d g., Processing E. Association of Data Ser- immunity was to intent of the shift to use Organizations, Camp, vice Inc. v. costly make it for the United less 184; 150, 151-53, 25 L.Ed.2d immunity, by allowing to Collins, Barlow v. prosecution of both the defendant for fuller ‍‌‌‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‍The dissent eschews and the immunized witness. broader upon any provision. reliance constitutional perspective, immuni apparent it is protected The defendant’s interest must program ty part statute was of a massive therefore derive from the statute legislation purpose, op whose central as its itself, Organized as enacted in the Crime strengthen ponents recognized,12was to nothing Control Act of 1970. Yet on the prosecution hand of the and to weaken that legislative face of that statute or in its defendant, in many the criminal cases to history suggests any congrеssional intention the full permitted protections extent any upon to confer benefits of kind Rights. the Bill of express defendant. The terms of the stat- any The total absence of indication that ute of course nowhere indicate that review Congress protected intended to create a in- working is authorized. And insofar as the particularly terest in the defendant is strik- statutory any light of the mechanism casts ing assumptions in view of the traditional purposes Congress it indicates adversary system is founded. which the improving the lot of criminal defend- legislated with Surely Congress must have among only ants was not occa- them. prosecutors full knowledge that federal expressly sion for even the review limited always ability protect have had the history contemplated legislative exculpatory defendant as to whom material when prosecutor brings the issue of simply by dismissing the becomes available request before the court him; a defendant prosecution against assistance in There coercing the witness. a non- always right retains the certainly implication can be no fair prosecution’s provision this restrictive for review that the suit where at the close of the contemplates statute also that the district case the evidence for conviction is insuffi- 11. See Cong. Sess. & H.R.Rep.No.91-1549, Admin.News, reprinted pp. ^[1970] 91st Cong., U.S.Code 2d 12. tives Id. at 4089 Conyers, (Dissenting Mikva and Views of Ryan). Representa- law; jury that the frontation cient as a matter of Clause Supreme decisions of the beyond must be convinced a reasonable inapposite. They Court are аlso only hold Prior doubt before it can convict. that when the has made a deci- statutes, passage these sion present its own case were, safeguards presume, generally we defendant, against process requires due adequate protect against considered subjected that such evidence be wherever unjustified risk of conviction even when reliability to the tests of possible provided critical witness pleaded Fifth Amend- by the sixth g., amendment. E. Davis v. ment. If Congress felt otherwise Alaska, 308, 1105, 94 S.Ct. 39 fact intended to broaden the historical rem- (1974); Texas, L.Ed.2d 347 Pointer v. 380 defendants, edies available to it is incon- 400, 1065, 85 U.S. 13 L.Ed.2d 923 ceivable to us that it would have made this (1965). None judicial of them involves in- radical change in a statute which by its terference with the executive’s discretion- express power terms leaves the ary prosecute decision whether or to such solely relief in the hands prose- of the grant exchange use for testi- cutor and which contains hint in the mony helpful to prosecution. statute legislative or in the history that purpose. such was its C. Due Process Claim reasons, foregoing For all of the We are aware several we conclude that the federal stat courts have in a suggested that case where ute cannot legitimately be construed to au relies on the judicial thorize prosecutorial review of the witnesses who grant have received a decision not to immunize a defense witness. immunity, may it have an obligation, as a Nor do we think that this construction of fairness, matter of fundamental to grant the statute raises constitutional diffi use for defense witnesses as well. note, first, culties. We the statute g., Alessio, E. United States v. 528 F.2d cannot be ground attacked on the 1079, (9th Cir.), denied, 1081-82 cert. 426 unconstitutionally against discriminates de 948, 3167, U.S. 96 S.Ct. fendants making immunity available (1976); Bautista, United v. supra, States only prosecution. discretion of the 677; 509 F.2d at v. Earl Due process yet has never been held to supra, 361 F.2d 534 n. 1. Cf. In re Kilgo, require that permitted the defendant be supra. In this case both Victor Kozlowski marshal precisely investigative the same and Mary Hupert against testified Herman and legal prosecution, resources as the grants under immunity, and that ques Congress legitimately could have concluded tion is therefore before squarely us. We the defendant should not be empow adhere, however, to our conclusion that a ered impose upon prosecu statute to grant of immunity required. was not tion the burden of an unwanted cases, posed by think, issue the cited we In 484 Kilgo, re F.2d 1222 legislative not whether the decision to leave (4th 1973). Cir. The cases decided under the immunization in the decision hands of the Compulsory sug Process Clause do not prosecution constitutionally permis gest or require a different result. They sible, but rather whether in the case before hold no more than that the court the has exercised that may not directly prevent act an other wise discretion in a manner that violates the Due willing competent witness from testifying governmen on the Process Clause. view of our defendant’s behalf. See Texas, system’s strong Webb tal v. 409 of deference to U.S. 93 S.Ct. 34 trаdition (1972); Texas, prosecutorial discretion, Washington L.Ed.2d 330 see United Nixon, 683, 693, U.S. 87 S.Ct. L.Ed.2d 1019 U.S. (1967). They are therefore (1974); consistent with L.Ed.2d 1039 Linda R. v.S. Richard D., our analysis compulsory process 614, 619, right U.S. reason,

in Morrison. For the same the Con- (1973), and of the necessary L.Ed.2d 536 Jury or Debate In re Grand Investi- branch to exer- Clause. tendency of the executive ways 589, (3d that make it 1978). discretion in It gation, cise that will be convict- likely more that defendants clearly that a case in which would seem ed, evidentiary showing think that we be excluded exculpatory testimony would justify ground reversal on that required to because of a witness’s assertion of the fifth one. The defendant must be a substantial privilege present an amendment prepared must be to show that the justification compelling even more for such made with the delib- ment’s decisions were a grant accepted than that in Simmons judicial distorting the erate intention of Moreover, itself. find hints of due we fact Where such a show- finding process. clearly exculpatory to have process right made, has inherent remedial ing is the court jury, least presented distortion be re- require strong countervailing sys- when is no there requiring of use immuni- dressed exclusion, justifies temic interest that ty to defense witnesses as an alternative Mississippi, 410 Chambers v. Morrison, su- dismissal. United States (1973).13 S.Ct. 35 L.Ed.2d 297 however, possible No pra. finding, such been called to our attention No case has appears, in this case. far as So where fashioned use judicially Hupert Kozlowski and decision to immunize witness, analyti- granted has been to a but prose- was unrelated to the decision first appаrent why cally immediately it is not cute, drop of and later to power recognized coupled in Simmons the constables. right suggested with the constitutional in But while we think that the court has no provide Chambers would not the basis for a power to grant order a remedial of statuto- proper of in the circum- ry immunity a to a defense witness absent stances. The existence vel non of such im- abuse, showing of a unconstitutional case munity which power, and the standards might be made that the court has inherent exercise, govern should invocation and its authority to the defendant’s effectuate be, may raise a host of difficult issues. It compulsory process right by conferring a example, grants of immunity that such judicially immunity upon a wit- fashioned unduly on some interfere would occasions ness whose to an ef- testimony is essential important prosecution. interests of the Supreme fective defense. The has Court judicial power Because the issue of inherent grants suppression authorized such in hear- use was not raised in the ings where the defendant’s court, parties district and the have not dis- necessary in order to determine whether a argument in the briefs or before cussed it rights violation of his fourth amendment us, to address it here. we are reluctant has occurred. v. United Simmons Moreover, Niederberger Berrigan may and regarded well be as at least sub silentio applied This court has the rationale well. If such rejections of this rationale as where necessary Simmons to vindicate recognized and stan- claim, inherent is to be jеopardy both a double United States Inmon, exercise, its that task dards formulated for (3d Cir. and an assertion privilege Speech performed under the in a case where the should Chambers, tem, underlying purpose the defendant in murder trial but found that a witness, prevented cross-examining hearsay was in cir- from rules been satisfied had previously who had me- made a sworn confession cumstances of the It held that case. then crime, application same as to the circumstances of chanical of these rules to exclude alibi, subsequent retraction and his because “de- evidence “critical” to Chamber’s defense the state court had was ruled that the witness and nied him a with traditional trial in accord process.” not “adverse” to the defendant. He was also due fundamental standards prevented introducing prose- from infor- three other Where the at 1049. U.S. at guilt by mal admissions of the a strict withholding witness’s was in cution’s interest application hearsay of the The formal, might state’s rules. merely rationale the Chambers recognized legitimate Court interest the state’s perhaps permit grant justice sys- in the administration of its criminal defendant, I. presented by issue was and by perhaps sitting the court in banc. Herman, elected magistrate an district 78-1282 in No. judgment The sentence judiciary, Pennsylvania was convicted for a will be vacated and the case remanded on premiums kickbacks bond accepting Magistrate judg- new trial McCann. Agency, Pittsburgh Levitt received case, Magistrate in Herman’s No. 78- ment business, in violation of the bоnding bail 1252, will be affirmed. conspiracy provisions of the substantive and Organi- Corrupt Racketeer Influenced GARTH, concurring Circuit Judge, statute, 1962(c), (d). zations U.S.C. § part dissenting part: defense, course of his Herman During the served on six of the constables subpoenas join majority’s opinion insofar fully obtain formerly employed his office to as it of the claims de- disposes raised However, appeal. agree fendant McCann on I also on his behalf. their disposes majority with the insofar as it constables, these person least four of raised Herman the claims defendant through attorneys, informed their rights save his that his violated claim were assert they their fifth amend- when the refused to questioned ment if their re- rights about for certain whom witnesses he ceipt Agency.1 of funds the Levitt call, testify wished to but who declined judge hearing The district court held privilege. their fifth because of amendment presence jury, this matter outside the majority “immunity” reviews this claim proffered by Herman’s evidence and constitutional concludes that Herman’s con- testimony of the four counsel of the rights grave were not violated. I have during grand jury stables the and before majority doubts as to whether the has set in- testimony This certain FBI interviews. proper forth the standard of constitutional re- the constables had indeed dicated that Nevertheless, such review for cases. I rec- Agency, ceived from the Levitt kickbacks ognize point that there is little discussing in kick- they but had not shared these by the constitutional presented issues this Herman, not they backs with and that had case, I for am convinced that Herman’s illegal activity. of this informed Herman claim can should be disposed on would have to this The constables testified grounds. below, statutory As set forth I they had not their effect at trial asserted think the federal use stat- clearly privilege. fifth amendment Such ute, (1977), 18 U.S.C. 6001-05 should and §§ provided would have exculpatory must be construed as allowing judicial re- a substantial defense that kickbacks view for abuse discretion a United when by Agency made Levitt to Herman’s the appropriate refuses in cir- among office divided the constables were to discretionary cumstances exercise his participa- knowledge without Herman’s seek immunity to wit- for defense However, judge de- tion. the district court such a nesses. Because this is the first time re- the court request that clined Herman’s by standard of review suggested has been Court, quire government the to afford district this I would remand to the testi- might application they of this to the to these constables so that court for standard present fy case. in defense. Herman’s place Pending against government simple constables indictments the be a matter for the currently prejudice. seal Al- that it under have been dismissed without the holds evidence subsequent investiga- readily though in at a extensive order to establish corruption bonding prosecution respect tion of to bail of the constables that the evidence practices Pittsburgh apparently in the area has was not derived from their immunized testimo- completed, government Note, ny. Right has shown been Sixth Amendment to Havе Witnesses, prosecuting Immunity at little interest in the constables Use Granted Defense Nonetheless, 1266, some future date. if these con- 91 Harv.L.Rev. 1274-77 immunity, given stables were use it would

1206 Finding in Mississippi, Chambers v.

II. 1038, (1973), L.Ed.2d contention majority meets Herman’s right clearly to have process “hints of a due conferred have that the should jury exculpatory presented evidence constables discuss- use on the .,” Maj. majority govern- Op. at constitutionality ing the Im- ment’s refusal in then states dictum “[w]here plicit majority’s position in the is the under- immu- prosecution’s withholding interest standing the exercise of the formal, ra- nity merely Chambers ment’s conferred discretionary power permit [judicially might perhaps tionale may statute be reviewed for com- nonstatutory] grant of immuni- fashioned pliance with constitutional mandates. With majori- ty.” Id. at 1204 n.13. I believe agree. Supreme this I Based Court’s process ty’s latter formulation the due decision in Simmons United concepts standard is closer to the fair trial U.S. Court, developed by Supreme do (1968), this Court’s decisions in the process not think violation that a due Inmon, 1977), States v. Cir. require the defend- present should context Jury Investigation, and In re Grand faith of the subjective ant bad prove 589, (3d majority F.2d also establish his due in order to acknowledges might that “a case be made requirement was process claim. No such authority inherent court has Maryland, imposed Brady compulsory proc- effectuate the defendant’s L.Ed.2d right by conferring judicial ess [] a witness whose held that Supreme where the Court [neces- sary] Maj. Op. to an effective defense.” “the of evi- supрression majority is correct 1204. I think that upon request an dence favorable to accused acknowledgement, in reasoning process violates due where that “a clearly exculpatory case in which guilt punishment, material either to or to testimony would be excluded because of a irrespective good faith or bad faith witness’ assertion of the fifth amendment prosecution.” understanding This privilege present an even more com- Brady is confirmed the decision in Unit- pelling justification for such a than 97, ed Agurs, States v. 427 U.S. 96 S.Ct. accepted that in itself.” Simmons Id. 49 L.Ed.2d 342 where Su- Having come majority, this far with the I preme standards Court established different must express my reservations as to their materiality applicable of constitutional articulation of the constitutional standard Brady different violations. The types of applied be in reviewing government’s specifically Court stated: failure to request immunity. To establish a “Nor the constitutional do we believe due process entitling violation a criminal by the moral cul- obligation is measured defendant to a court-ordered of statu- willfulness, prose- pability, of the or the tory immunity, majority states that suppression of cutor. ... If the prepared defendant must be to show “[t]he error, it evidence results in constitutional government’s decisions with- [in evi- of the character of the is because holding immunity] were made with the de- dence, prosecu- not the character of liberate distorting judicial intention of fact 1204.2 tor.” finding process.” Maj. Op. at certainty Having specified

2. in committed error it to be the district court what considers review, request- applicable proceeding Herman first standard of as it did when constitutional immunized, majority for this ed that the then concludes that such constables “[n]o however, yet clearly finding violation], announced the a had not as constitutional Court [of possible proper Maj. Op. cases. Now standard of review for such in this case.” at 1204. I standard, specified appropriate think it a would be to remand that this has more Court initial this make court’s case so that could the district the district court should be left for application. this The determination in the first instance.

1207 Note, (1974); The Amendment Sixth (footnote at 2400 at 96 S.Ct. 427 U.S. Brady Immunity Granted omitted). Right In accordance to Have Use precepts process Witnesses, find due Agurs, I would 91 Harv.L.Rev. Defense Nixon, failure to offended when United States v. Cf. re- a defense witness immunity for 683, 709, of the fact find- in such a distortion sulted (dicta balancing test would be (1974) a fair deny as to the defendant ing process reconciling criminal defend- employed in trial, not this irrespective of whether or rights with claim compulsory process ant’s government.3 result was intended Because of presidential privilege). majori- to me from apparent Nor is it should Herman’s claim which I think way in majority views ty’s opinion whether however, court, I do not be treated compulsory process sixth amendment’s these trouble- to address necessary find it with the entirely congruent guarantee issues.4 some constitutional type in this of case. process guarantee due have bеen made arguments Substantial III. compulsory criminal defendant’s a federal court It is well understood indepen- rights weighed must be process litigant’s nonconstitu- should first decide otherwise valid dently against an need would obviate the tional claims if this prevent that would mental interest Effect adjudication. for a constitutional excul- presenting criminal defendant v. Louis- Siler principle to this given Westen, trial. See at Con- patory evidence Co., Nashville R. ville & A Uni- Compulsory Process: frontation and (1909), where the 53 L.Ed. 753 Cases, of Evidence for Criminal Theory fied of that case Westen, Supreme disposed Court (1978); 91 Harv.L.Rev. 567 im- rather than Clause, pendent grounds state law 73 Mich.L.Rev. Compulsory Process Morrison, general Although F.2d that a criminal defense ‍‌‌‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‍has a sixth United States v. (3d 1976), right as a “remedial amendment to have conferred Cir. can be read resting of deterrence decision” on rationales on defense witnesses. See United States finding prosecu- reparations following Rocco, (3d 1978); 587 F.2d 144 Cir. United misconduct, Maj. Op. I do torial see (3d Niederberger, States v. Cir. showing require Morrison to not understand denied,-U.S.-, cert. part on the of the malevolent intention - (1978); States v. Berri 58 L.Ed.2d finding by prosecutor. dis- Faced with a 1973). gan, I do Attorney’s the United States trict court foreclose the result not think that these cases faith, good actions were undertaken First, here. which I contend should obtain court Morrison stated: only a con these cases considered defendant’s good faith Assistant United statutory stitutional claim not the issues if he were would be relevant Second, none of these which address. charged of 18 U.S.C. with violation developed comparable to cases was a record of a federal makes the intimidation which the record here. not, how- It is a criminal offense. witness recognize that other circuits have also held ever, inquiry a into whether relevant to an general that a criminal consti defendant has no right. his constitutional was denied defendant right on tutional to have conferred original). (emphasis 535 F.2d at 227. g., his witnesses. See e. United States v. Beas wished to the defendant The evidence 261, denied, Cir.), ley, (5th 550 F.2d 268 cert. clearly present to his was crucial Morrison 938, 427, 434 U.S. 98 S.Ct. 54 L.Ed.2d 297 case, appears . that the “defendant . . for it (1977); Bautista, United States v. 509 F.2d 675 lawyer planned his defense around and his (9th Cir.), denied, 976, cert. 421 U.S. 95 S.Ct. testimony discouraged from tes- witness [the 1976, (1975); 44 L.Ed.2d 467 United States v. allegedly tifying by government], who Smith, (7th 1976); Kilgo, Cir. In re prepared and not [the it was she swear that (4th 1975). help 484 F.2d involved in the con- 1215 Cir. I cannot who had been defendant] think, however, spiracy 225. Thus sell hashish.” Id. at but that we have not heard the way Broady, Morrison is in no inconsistent last word this issue. See State v. proposals expressed in this dis- discussion and 17, App.2d (1974); 41 Ohio 321 N.E.2d 890 sent. 36, Leonard, U.S.App.D.C. United States v. 161 81, 955, (1974) (Bazelon, C. 494 F.2d n.79 985 cases, rejected has this Court 4. In a series J., dissenting part). concurring part argument without extensive consideration 1208 pleadings in the was neither raised sion adjudication. a constitutional

pose court. where a the lower upon by has been invoked nor ruled principle same federal statu with both court is confronted Flint, (3d 112 Gagliardi v. 564 F.2d Cir. See Hagans claims. tory and constitutionаl denied,-U.S.-, 98 cert. 1977), S.Ct. 1372, Lavine, 528, 543, 39 U.S. 3122, 52 L.Ed.2d Human Re (1974); California L.Ed.2d 577 case, that Herman my opinion In this it is Java, 121, Department v. sources federal use a claim based on the has viable 1347, (1971); 91 S.Ct. statute, under the immunity statute. This Williams, Dandridge v. 475- U.S. below, would I set out construction which (1970); L.Ed.2d review, on other allow a federal court Valley Authority, Ashwander v. Tennessee grounds, than constitutional 346-48, 80 L.Ed. request not to discretionary ment’s decision J., concurring). (1936) (Brandeis, I there- witness. a defense for is entitled has weight principle this to which of Herman’s stat- fore turn to consideration in Allen v. acknowledged recently been case, since, I believe it in this utory claim Aytch, 819-20 unnecessary a constitutional ad- may render where this Court stated: judication. courts It that federal is well established ques- pass upon will not a constitutional IV. may in a case presented tion if the issue The current federal statute adjudicated on a nonconstitutional be (1977).5 codified at 18 6001-05 where . U.S.C. ground. §§ That is also true predecessors,6 for the deci- Unlike its it authorizes the nonconstitutional basis prosecution against prescribes procedure subsequent in a 5. which therefrom the § witness—is set forth which a witness, is conferred on a in § 6002: Immunity generally § reads as follows: refuses, Whenever a witness on the basis of grand jury proceedings 6003. Court and self-incrimination, privilege against tes- his tify ceeding (a) any In the case of individual who has provide pro- or other information in a may testify provide been or be called to or ancillary to— before or any proceeding other information at before (1) States, grand jury a court оr of the United ancillary or to a of the United States or States, grand jury of the United the United (2) (3) agency or an either of the United judicial States district court for the district in Congress, joint commit- House of may proceeding or held shall which Houses, tee of the two or or a committee issue, (b) in accordance with subsection House, subcommittee of either section, upon request this of the United person presiding proceeding and the over the district, attorney an order such communicates under this witness an order issued requiring give such individual to or part, may the witness not refuse to provide other information which he refuses comply with the order on the basis of his give provide privilege or on the basis of his self-incrimination; privilege against testimony but self-incrimination, against order to be- such compelled or other information un- provided come effective as in section 6002 of directly (or any or der the order indirectly information part. or derived from such may, (b) attorney A United States with the information) may against other be used General, approval Attorney Deputy case, except prose- witness in criminal General, Attorney any designated Assist- statement, perjury, giving cution for or otherwise a false General, ant subsection an order under failing comply with the order. (a) of this section when in his judgment— 6. The stat- antecedents of the current (1) testimony thoroughly num- the ute have been discussed in a or other information States, Kastigar may necessary ber of sources. See United from such individual public to the v. interest; 443-47, 406 U.S. 92 32 L.Ed.2d and Notе, likely (1972); (2) 212 nity Immu- such individual has refused or is The Federal Witness Theory Treading testify provide Acts in the to tion to and Practice: refuse or other informa- Tightrope, privilege against Constitutional 72 Yale L.J. 1568 on the basis of his self- Wendel, (1963); Compulsory Immunity Legis- incrimination. Privilege: immunity grant prohibiting the scope lation and Fifth the Amendment The of — Confusion, Developments testimony New and New 10 St. the use of and evidence derived

1209 H.R.Rep.No.91-1549, 91st immunity predicated. rather than transac of use (1970), An immunized witness in 1970 immunity. Cong., reprinted tional 2d Sess. Admin.News, as to for crimes may prosecuted pp. thus be & Cong. U.S.Code testifies, provided he the (1971). 91st Sen.Rep.No.91-617, 4017 See .which im use of the short, in its makes the (1969). In Cong., 1st Sess. derived or testimony munized of is no more than situation Court’s role in this States, 406 Kastigar v. United not, course, therefrom. of But this does ministerial. 212 32 L.Ed.2d 92 S.Ct. the when the court’s function indicate Apfelbaum, 584 (1972); United States than rather request, to government refuses 1978) cert petition for F.2d 1264 Although con- for, the applies 2, 1979). .F.6d, (U.S., Jan. 47 3437 U.S.L.W. imposes cer- separation powers of cept States At empowers a United The statute review of execu- judicial tain constraints on 7 use an indi to obtain for torney action, power a court has tive I believe that “(1) testimony the other or vidual when Attorney’s use of review a to United States may be from such individual information refusing in to discretionary authority interest; (2) necessary public The for defense witness. seek likely or is to has refused such individual review, conclude, proper I is standard of testify provide to or other informa refuse Attorney or whether not United States against privilegе on of his tion the basis has abused his discretion.8 6003(b). at self-incrimination.” Id. § text, statutory apparent As is A. Attorney’s keystone to a United States provisions of judicial Under the review whether such request for is Act, 5 U.S.C. Procedure the Administrative interest request public will serve the Attor- States (1977), 701-06 the United §§ presentation terms a full and fair the defini- within would to come ney appear nor the the text evidence at trial. Neither purposes an “agency” tion of for however, fully clarifies legislative history, “Agency” by review that statute. afforded in this role, has any, if the court what authority of the there as “each is defined im- Once public interest determination. an States, whether the United made, Government legisla- munity has been request subject or to review not it is or within role court’s history tive teaches “[t]he .” . . . U.S.C. merely agency another order is [immunity] granting to 701(b)(1).9 giving practical content on the order to find the facts which § Comm, obtaining Kast (1966); witnesses in his favor.” ess for National Louis U.L.Rev. 327 443-4, States, Fed.Crim.Laws, igar Working Papers, at 406 U.S. United Reform of Symposium, (1970). generally S.Ct. at 1655. 1406-1411 See Attorney authority Immunity, 7. The of a United States Granting of Witness The upon approval (1976). is conditioned Criminology These J.Crim.L. & General, Attorney Deputy Attorney were sources indicate that statutes General, Attorney any designated or Assistant supplement “power enacted to 6003(b). General. at § U.S.C. compel persons testify ment in court grand governmental juries above, agree before and other As I have indicated 8. agencies,” Kastigar majority may v. United that a court also review to deter- at mine whether the Unitеd has circumstances States constitutionally. pp. acted 1205-1206 su- See be una- where that would otherwise However, pra. before this review is under- vailable because of witness’s assertion taken, privilege. should review determine fifth amendment whether there has been an abuse of the United recognized Supreme Court has Attorney’s discretionary statutory States au- only capable legit- is not one thority. imately demanding citizens. Attorneys appointment interest a similar A criminal defendant has testimony, “[tjhe compel provided § since U.S.C. specified testify, recog- general duty § in U.S.C. corresponding are duties their requirements Sixth nized Amendment statutory exceptions with the wit- that an accused be confronted to the defi- None of the him, compulsory proc- 701(b)(1) against agency and have nesses nition of in 5 U.S.C. “The definition, this been stated: it has raised order judicial to bar a examina- authority to act with the sanction tion. Two principal generally reasons are government it determines whether behind review. The thought preclude first—an governmental agency or not a exists. The apparent preclude legislative intent re- takes, form agency or the function it applicable view—is not here. Nor do performs ques are not determinative of the precluding think that reason for the second agency.....” tion of whether it is an review—that the issue as to which review is Co., Gay Lassiter v. F. Atkinson 176 F.2d sought inappropriate judicial is deemed for (9th ,1949). Amalgamated See entirely bars review this case. attention — Meat Cutters and Butсher Workmen v. Connally, F.Supp. (D.D.C.1971) B.

(three (President judge court) “agency” is In the government core ease in which the APA).10 meaning within requests immunity prosecution for a wit- Act, The Administrative Procedure 5 ness the role, previously court’s as acknowl- U.S.C. provides: “Agency § action edged, merely is It is to deter- ministerial. made agen- statute and final reviewable mine the facts which the cy action for which there is no other ade- request is predicated. having Once deter- quate remedy subject in a court are to mined that statutory requirements have review.” This be togeth- section must read met, immunity been granted must be aas er 701(a), scope which delineates the matter of course. I do not contend for Chapter the Judicial Review of the Ad- judicial form of review when the ministrative Act as Procedure follows: ment decides either to seek or not to seek chapter “This applies, according pro- to the government for a witness. The thereof, except visions to the extent that— province limited of the court ‍‌‌‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‍in this circum- (1) review; judicial statutes preclude (2) stance, out, majority points is com- agency action is committed to agency dis- pelled by sep- the constitutional doctrine of case, cretion by law.” In this neither the powers. aration of Maj. Op. See at 1200- legislative text nor history of the immunity In formulating prosecuting specifically provides statute precludes for or case, the government relatively must be circumstance, review. In such a this Court unconstrained deployment in its of re- should make its own dеtermination as to sources. The prosecute choice of whom to whether the United Attorney’s pow- States and the strategy general- are er to request immunity for a defense wit- ly wholly matters left ness has been so far committed to his dis- control. Rarely do these determinations cretion preclude as to judicial review alto- have an impact on the fairness or reliability gether.11 Undoubtedly, inquiry this is an of proceedings the court. before While a appropriate judicial function. wit-

The presumption judicial might review in ness to bolster the expected face of government’s case; statutory silence has part become a the failure to seek im- of the fabric of munity the Administrative Proce- for a witness cannot be dure Collins, Act. See Barlow v. proc- said to affect the of the trial fairness 159,166, L.Ed.2d 192 ess. The government in either event will Against presumption, important consid- bear the burden proof beyond a reasona- erations for nonreviewability must be ble doubt as to all elements of the crime appear determination, to exclude a United doing necessarily so it coverage. reviewability. creates a common law of In all legislative the vast mass of cases in which no Davis, 10. But see 1 K. C. Administrative Law intent is discernible and in which no constitu- (2d 1978). Treatise 8 ed. principle invoked, tional law the case reviewability clearly common law.” K. C. 11. As Professor Davis has stated: “When a Davis, Administrative Law Text 509 ed. legislative court can guidance find no as to 1972). reviewability, obviously it must make its own judicial of rеview that I have type The Winship, 397 In re charged. See impair- cognizable outlined constitutes (1970). L.Ed.2d 368 364, 90 concept separation pow- of of ment of the are Moreover, determinations since these Attorney’s the United States ers. Since branch, to the executive largely internal for a defense immunity to seek decision not they suspect that is little reason to there the implicate quality the of witness will public inter accurately reflect the will not judicial the branch has judicial process, reasons, judiciary the must For these est. assuring that the discre- keen interest Congress the limited function accept immunity is not grant tionary implementa the courts in the intended for Furthermore, of grant abused. tion of the statute. substan- to a not defendant’s witness however, different, analysis quite The is initial inves- tially affect government’s defendant, and not when it is the criminal against of its case tigation preparation immunity for who desires government, government the defendant. Of course authority has no a witness. The defendant may respond choose to Rather, the de- to confer such wit- immunized by offered a defendant’s hope fendant must ness, any And in it need not do so. but authority to ob- statutory will exercise its by event, defenses raised responding to testi- whose for the witness tain something the is criminal defendant In such a desires. mony the defendant in the course of government must do with situation, concerned the court must be grant The of immu- prosecution. criminal exer- determination and public- interest effect on concededly have some nity may At- cise of discretion of United States ability subsequently First, there is an obvious conflict torney. witness. Al- the immunized prosecute and the of interest deserving between of considera- though this factor is alone, a tion, emphasized criminal defendant. On this basis has Supreme Court use govern- and derivative suspicious “immunity court must be from use wit- Federal Govern- immunity to a witness and the ment’s refusal to ‘leaves the relevant, as if probative, position the same substantially has ment in seemingly ness who privilege’ his in the had claimed to offer. the witness exculpatory Kastigar immunity.” absence of a Second, only ex- if a criminal defendant’s 458-59, 92 v. United 406 U.S. testify not because witness does culpatory immuni- grant of use S.Ct. 1664. Since the fact- privilege, fifth amendment subsequent impair necessarily ty will not proba- highly finder will be denied witness, I con- prosecution of an immunized of the defend- guilt or innocence tive of the concerns powers separation of clude that process be less only will the trial ant. Not upon as fundamentally trenched are not so reliable, fair it will be less accurate and but review of the judicial preclude pre- will have been because the defendant for a de- refusal to seek ment’s the case for fully presenting vented from fense witness. circumstance, I do In this his innocence. however, in claim- majority, persists that Con- presume not believe that we can propose judiciary ing review over that the standard of review gress has denied the sepa- agency— transgresses concept taken an executive somehow the actions Maj. Op. powers.12 See at 1200— Attorney. ration the United States Moreover, very possibility design funda and balances 12. The of checks overreaching judicial prevents govern either tripartite review to our structure mental government. As of the predicated upon, other two branches of is the ment and in a sense presented of, pow immunity problem concept separation related to converse Madison, here, operate judicial 47- to check Federalist Nos. review should ers. See J. judiciary any possible dispute branch the executive 51. No one can abuse charged defining a de- boundaries when it refuses government. respective Mar See branches fense witness. Madison, (1 Cranch) bury 2 L.Ed. proposition clearly is that these situations are distin- support of this 1202. Cited 422, case, are v. United 350 guishable Ullman from the instant for when 497, In 76 S.Ct. 100 L.Ed. 511 re government grant immunity refuses to 54, Bart, U.S.App.D.C. 113 304 F.2d 631 witness, necessarily its action to a defense (1962). validity of Both cases involved of the reliability and fairness affects the contempt imposed convictions because each addition, Bart trial Ullman itself. testify grand a contemnor refused to before Compulsory Tes- are inapposite because membership jury concerning his and that of for “transac- provided timony Act of 1954 Party after each others the Communist “use” immu- than immunity tional” rather immunity under the granted had been Com- grant that a of nity. disputed It cannot be 1954.13 In pulsory Testimony Act of each distinguished immunity, as “transactional” instance, a district court it was held that signifi- a threatens immunity, “use” deny to an immuni- does not have discretion prosecuto- on inroad cantly greater judicial ty request government made on the judicial intrusion is authority, rial if such ground interest does not public Here, course, we are con- permitted. holding heartily warrant it—a with which I only with of “use” immuni- grant cerned a decision, however, concur. Neither address- ty. precludes es the issue or the result I contend should obtain where the C. immunity ment refuses to seek for a de- foregoing compel reasons me to in- fully acknowledge, fense I witness. terpret immunity statute as hold, the current use those cases that a court’s role is minis- of a United permitting judicial review government terial when the asks for immu- immunity failure to seek nity Attorney’s for a witness. This is true both when States By for a not government requests seeking for a defense witness.14 immunity, has witness in a criminal and when United States it a is in requests immunity so that witness will determined sub this course silentio that determination, testify jury. But grand my public before a thesis interest. Such 769, 1, 745, Organizations 150, repealed Camp., 13. C. 68 Stat. Pub.L.91- Service v. § 397 U.S. 452, II, 228(a), (1976). 827, (1970), depends, Tit. 84 Stat. 930 90 S.Ct. 25 L.Ed.2d 184 course, given is the construction that to 14. Some cases have held that a criminal de view, my to the statute. Under the defendant standing challenge fendant does not have government’s is within that zone because the government conferred on a immunity power pertains use of the as it against witness who testifies him. United presentation will im the defendant’s case Rauhoff, (7th States v. 525 F.2d 1170 Cir. pact upon accuracy the fairness and of the 1975); Braasch, United States v. 505 F.2d 139 suggest defendant’s trial. To im the use (7th 1974), denied, 910, Cir. cert. 421 U.S. munity weaрon only govern statute ais 1561, (1975). S.Ct. 43 L.Ed.2d 775 See United impute ment’s arsenal would be to Con Lewis, (3d 1971) States v. 456 F.2d 404 Cir. gress design to obtain convictions on the (transactional statute). fully This is incomplete presentation of an of evi basis my consistent with conclusion that the decision Judge As has himself ac dence. Gibbons in such a case is so far knowledged recognized “. it has been government’s committed to the discretion as to public for at least three centuries that the has preclude judicial review. every testimony. right person’s Every obtain, however, The same result does not privilege seriously derogation witness government when the refuses to seek duty.” general and fundamental In re Grand for a defense witness. It cannot be doubted Jury (Matter Proceedings Egan), F.2d injury the criminal defendant suffers 199, J., (3d 1971) (en banc) (Gibbons, Cir. fact which is caused con- denied, dissenting), 408 U.S. cert. Challeng- duct. See United States v. Students Accepting my (1972). 33 L.Ed.2d 332 ing Regulatory Agency (SCRAP), Procedures statute, necessarily construction of the fol 412 U.S. 93 S.Ct. provide (1973); lows that the court has the Kentucky Simon v. Eastern Welfare requested by Rights in this Organization, the relief the defendant 426 U.S. Wulff, (1976). Singleton case. See L.Ed.2d 456 Whether the defendant protected is within the zone interest to be L.Ed.2d statute, Processing see Association of Data acquittal may be entered in the hold, to review for abuse defend- subject scope requests of review This limited ant’s discretion. favor unless the thinking, the minimal constitutes, relief that my exactly This is necessary Morrison, branch intrusion on the executive ordered in United trial integrity proc- to maintain the where the cоurt circumstance. attorney’s ess found that defendant’s directed toward the threats criminal However, impose on the I would the defendant sixth witness denied only not burden of defendant the threshold process rights. due The amendment and he wishes to demonstrating that the witness fact that a constitutional Morrison involved testify, to but willing is and call available of scope violation is not material as to the be is in fact presented that the to power remedy. the court's to afford this So I this be exculpatory. require would to much was determined in Jencks v. United convincing shown clear and evidence. U.S. S.Ct. burden, carry To it would not be suffi- court, L.Ed.2d where the under if merely cient the evidence were cumula- supervisory power as a matter and not evidence, tive of or if previously introduced interpretation, required of constitutional credibility merely went to the the de- to government over turn government witnesses. relating to the certain materials fendant would to rebut opportunity then have witnesses. government showing the criminal and to defendant’s government court be held that the why public introduce evidence to put making to the choice of these materials such interest would be disserved causing be available or to include might This dismissed: desirability viability such factors as the Government’s, to “The burden is the not subsequent prosecution of a of the immu- to judge, be shifted to the trial decide nized witness. All these factors would allowing public prejudice whether weighed by determining the court is go unpunished greater crime Attorney’s whether the re- to United Stаtes possible than that attendant fusal seek an constituted abuse to. con- disclosure state secrets and other discretion. in the fidential information Government’s V. 672, 77 possession.” Id. at Having argued may that a to the same federal court put government I would review United to a Attorney’s States decision choice if its refusal witness, not to seek for a defense would otherwise amount defense witness may now that a court remedy fully turn This is consist- an abuse of discretion. if It afford an of discretion is found. separation pow- abuse my concept ent with ground common that the im ers, federal use minimal intrusion for it amounts to the munity statute confer on does not federal branch neces- power on the of the executive grant immunity courts the trial interest and sary to the court’s vindicate Garcia, pre- witnesses. See United interest States the criminal defendant’s 1976); F.2d 681 rele- significantly sentation of all evidence Housand, (2d Cir.), cert. de accuracy vant fairness of nied, 53 L.Ed.2d process. trial VI.

Nonetheless, apparent it is to me that the has power provide (1) the relief which Having concluded that a federal court Herman seeks. If the abused dis- may Attorney’s review United States for refusing cretionary request immunity its discretion to seek refusal to witnesses, appropriate for Herman’s at- an defense witness after judgment torney made, (2) should be informed that a showing proper has been of review in such a standard case whether

there has been an abuse discretion ‍‌‌‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‍or a constitution, (3)

violation of the proper remedy exists when discretion improperly exercised,

has been I would re-

mand this case review the district

court in accordance with these instructions

and under these standards. Because this is disposition

not the upon by decided ma- jority, I am forced to dissent. Garth, Judge, Circuit dissented and

filed opinion.

BRISTOL FARMERS MARKET AND Closeouts,

AUCTION COMPANY

Inc., Appellants,

ARLEN REALTY & DEVELOPMENT

CORP., Appellee.

No. 78-1197.

United States Court of Appeals,

Third Circuit.

Argued Sept. 1978.

Decided Nov.

Case Details

Case Name: United States v. Richard P. Herman, United States of America v. James J. McCann in No. 78-1282

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 27, 1978

Citation: 589 F.2d 1191

Docket Number: 78-1252, 78-1282

Court Abbreviation: 3rd Cir.