A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The United States Court of Appeals for the Third Circuit en banc has decided the case ofUNITED STATES v. Keenan Danan QUINN, Appellant, 2013 WL 4504647, #11–1733 (Aug. 14, 2013). This was an appeal from the United States District Court For the Eastern District of Pennsylvania, D.C. Criminal Action No. 2–09–cr–00720–002, before Chief Judge Petrese B. TuckerPeter Goldberger, Esquire, argued for the Appellant, while Assistant United States Attorney Robert A. Zauzmer, Esquire argued for the Government. The Judges were McKEE, Chief Judge, SLOVITERSCIRICARENDELL,AMBROFUENTESSMITHFISHERCHAGARESJORDANHARDIMAN,GREENAWAY, Jr.VANASKIE, and ALDISERT, Circuit Judges. Judge Ambro wrote the Opinion for the Court. There was no dissent.

Quinn appealed his jury conviction for aiding and abetting codefendant Shawn Johnson in an armed bank robbery. Quinn’s defense was that, when he drove Johnson to National Penn Bank on the morning of the robbery, he did not know that Johnson intended to rob a bank teller at gunpoint. Quinn hoped Johnson would testify on his behalf at trial, but Johnson was awaiting sentencing on the robbery charges and invoked his Fifth Amendment protection against self-incrimination and refused to testify. The District Court refused Quinn’s request to immunize Johnson so he could testify. Quinn contended this was error, for he was thus unable to rebut the Government’s accusations against him. Quinn also alleged prosecutorial misconduct in that the Government postponed Johnson’s sentencing until after Quinn’s trial to induce Johnson to invoke his Fifth Amendment privilege.

The Third Circuit had recognized two situations in which a criminal defendant may be entitled to have a defense witness receive immunity for his testimony. The first, grounded in prosecutorial misconduct, occurs when the Government acts with the deliberate intention of distorting the judicial fact finding process, for example by threatening a defense witness. United States v. Herman, 589 F.2d 1191, 1204 (3d Cir.1978)United States v. Morrison, 535 F.2d 223 (3d Cir.1976). If prosecutorial misconduct occurs, the charges are dismissed unless the Government chooses to immunize the witness at a new trial.

A second situation was recognized in Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980). Even without evidence of prosecutorial misconduct, if the Government refused to immunize the witness, the defendant was entitled to immunity for his witness if the testimonial evidence was clearly exculpatory and essential to the defense case and the government had no strong interest in withholding use immunity. If those requirements were met, the District Court, as a remedy accorded by Smith, could on its own authority immunize that witness to allow his testimony.

However, no statute or Supreme Court ruling has authorized judicial grants of immunity for a defense witness. This circuit was the only Court of Appeals that permitted a trial court to immunize a defense witness; every other Court of Appeals has rejected this theory of judicial power. In Quinn, the Court has now overturned that part of Smith that recognized judicial grants of immunity: “Immunity is a statutory creation, bestowed by Congress on the Executive Branch through the federal witness immunity statute, 18 U.S.C. §§ 60026003. The decision to immunize a witness to obtain his testimony is a core prosecutorial function, as immunizing necessarily involves weighing the public’s need for testimony against the risk that immunity will inhibit later prosecution of criminal wrongdoing. We, in our corner of the Judiciary, now step away from our reach into this prosecutorial realm.”

However, where the Government has refused to immunize a witness in order to keep clearly exculpatory and essential testimony from trial without a strong countervailing reason, the first situation may apply as this is a type of prosecutorial misconduct. The remedy for a due process violation, rather than intruding into the prosecutor’s province by judicial grants of immunity, is a retrial where the Government can cure the distortion caused by its wrongdoing or face dismissal of the relevant charges.

Here, the Court held that the Government did not engage in wrongdoing and did not deliberately distort the factfinding process by delaying Johnson’s sentencing. No evidence demonstrated that the Government’s action had any effect on Johnson’s decision to invoke his Fifth Amendment right not to incriminate himself by his testimony; nor did the Government keep clearly exculpatory testimony from Quinn’s trial by refusing to immunize Johnson. Therefore, the Court affirmed.

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