Former L.A. County Sheriff Lee Baca's high-profile corruption trial is set to begin after U.S. District Judge Percy Anderson rejected Baca's guilty plea and recommended six month prison sentence associated with a jailhouse corruption scheme. But perhaps even more interesting than the court throwing out a plea deal agreed to by the prosecution and the defense was the judge's decision to deny another defendant's request to immunize Baca before Baca was ever charged. If the immunity request had been granted, Baca might not be starting trial.
In 2015, it was Undersheriff Paul Tanaka who was on the hot seat and about to start trial on conspiracy and obstruction of justice charges. He wanted his former boss Baca to testify for him. But Baca — who had not been charged at the time — was unwilling to testify substantively for fear that he may be charged at some point in the future and his testimony would be used against him — or worse, by testifying on Tanaka's behalf, he would anger the prosecutor who would retaliate by deciding to charge him.
Tanaka was rightly concerned that the prosecution, by refusing to commit whether to charge Baca or not, was effectively causing Baca to invoke his Fifth Amendment right to remain silent, and effectively depriving Tanaka of a defense witness. Tanaka argued that the prosecution was intentionally manipulating the fact-finding process and interfering with his due process right to a fair trial. While it is typically the prosecution who decides whether or not to grant immunity to a witness, Tanaka fought back by filing a motion requesting that the court compel the prosecution to immunize Baca. Although the court ultimately denied Tanaka's motion, that doesn't mean it wasn't a worthwhile effort.
The Baca scenario is becoming increasingly common in business fraud cases where the witnesses with access to exculpatory evidence are employees at the same company as the defendant and therefore potentially implicated in the misconduct at issue. For example, a controller charged with cooking the books may want his CFO to testify in his defense; however, the CFO — who is in limbo because the prosecutor is delaying his charging decision until after the controller's trial — may refuse to testify for fear of self-incrimination. While the prosecutor in this instance may righteously be investigating the CFO while at the same time prosecuting the controller, the scenario creates an unfair situation for the controller, who has effectively been denied his right to a fair trial: Unless the CFO is granted immunity, he will invoke his Fifth Amendment right and the jury will never hear his side of the story. The controller's options in this situation may depend on where his trial is taking place.
While typically immunity decisions are the exclusive purview of prosecutors, judicially compelled use immunity, which requires the prosecutor to grant immunity for the witness or face dismissal, is available in the right circumstances.
A circuit split has developed regarding what specifically needs to be proven in order to receive judicially compelled immunity. In the 3rd U.S. Circuit Court of Appeals, an applicant needs to show prosecutorial misconduct — namely, that the prosecutor has deliberately distorted the fact-finding process. See U.S. v. Quinn, 728 F.3d 243, 261-62 (3rd Cir. 2013). Other circuits also require prosecutorial misconduct. See United States v. Mackey, 117 F.3d 24, 27 (1st Cir. 1997) (stating that "in certain extreme cases of prosecutorial misconduct," government's refusal to grant immunity may justify dismissal of prosecution); U.S. v. Abbas, 74 F.3d 506, 512 (4th Cir. 1996) ("On occasion, however, the district court can compel the prosecution to grant immunity when (1) the defendant makes a decisive showing of prosecutorial misconduct or overreaching and (2) the proffered evidence would be material, exculpatory and unavailable from all other sources."); Blissett v. Lefevre, 924 F.2d 434, 441-42 (2d Cir. 1991) ("[P]etitioner must show prosecutorial overreaching which substantially interferes with the defense, or with a potential defense witness's unfettered choice to testify."); United States v. Frans, 697 F.2d 188, 191 (7th Cir. 1983) ("[W] e agree with the Third Circuit that a defendant must make a substantial evidentiary showing that the government intended to distort the judicial fact-finding process before we will depart from the strong tradition of deference to prosecutorial discretion.").
California law is similar to the 3rd Circuit. See People v. Stewart, 33 Cal. 4th 425, 470 (2004) (recognizing authority to grant immunity to a defense witness when "the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence, thereby distorting the judicial factfinding process").
The 9th U.S. Circuit Court of Appeals, on the other hand, has recognized compelled immunity even absent a showing of prosecutorial misconduct. For example, in U.S. v. Straub, where the prosecution gave its 11 witnesses some form of immunity or other incentive but denied use immunity to the only defense witness, the 9th Circuit held that compelled immunity was appropriate if the prosecution's selective denial of use immunity had the effect of distorting the fact- finding process, even if the prosecution's purpose in denying use immunity was not to distort the fact-finding process. 538 F.3d 1147 (9th Cir. 2008).
Straub was at the center of the Broadcom stock options backdating case. During the criminal securities fraud trial of former CFO William Ruehle, his attorneys moved to compel use immunity for Broadcom co- founder Henry Samueli and former General Counsel David Dull so that they could testify in Ruehle's defense. At the time, Samueli was awaiting sentencing on his false statement charge, but neither he nor Dull were charged with securities fraud. Ruehle argued that the government had forced a one-sided telling of the events at Broadcom by relying heavily on the testimony of former HR Director Nancy Tullos, who had cut a plea deal with the government that required her to cooperate against Ruehle, and not granting immunity to Samueli or Dull, who had previously testified under oath to the SEC. Ruehle argued that they were both heavily involved in the events at issue and, as their SEC testimony made clear, their testimony would contradict Tullos's.
The court in Ruehle saw things very differently from the court that denied Tanaka's motion to grant immunity for Baca. U.S. District Court Judge Cormac Carney focused on the fact that all parties agreed that Samueli and Dull would assert their Fifth Amendment right if called to the stand and that there were legitimate Fifth Amendment concerns under the circumstances — Samueli hadn't been sentenced yet, and there was no guarantee that the government wouldn't charge Dull. Noting his respect for the separation of powers, Carney stressed the importance of protecting criminal defendants' constitutional rights to have witnesses testify in their defense. Given that the prosecution had not charged Samueli or Dull with securities fraud, Judge Carney saw no compelling reason for not allowing these witnesses to testify in Ruehle's defense. The court found that, while there did not appear to be any intentional, willful misconduct by the government, there was indeed a distortion of the fact-finding process because the jury had only heard the very incriminating testimony of the prosecution's witness and not heard the other side of the story: "But I would feel very uncomfortable, very uncomfortable, sir, with the facts as I know them, and if there is a conviction against Mr. Ruehle, that I didn't allow Dr. Samueli and Mr. Dull to testify." The court granted the immunity motion paving the way for Samueli and Dull to testify for the defense. Ironically, the court found prosecutorial misconduct and ultimately dismissed the indictment against Ruehle when, shortly before Dull was set to testify, the prosecutor called Dull's attorneys and threatened perjury prosecution if Dull didn't testify in the manner the prosecutor desired.
So, whether you are representing Tanaka, Ruehle or the controller in the hypothetical, making a motion to immunize a key defense witness is worth considering. In California state court and federal circuits outside the 9th Circuit, the key will be showing prosecutorial misconduct. This will be challenging because the prosecutor may in good faith still be investigating the witness in parallel with efforts to prosecute the defendant. Proving bad faith on the part of the prosecutor will typically require a showing that the witness isn't truly within the government's crosshairs, an uphill battle for sure. In the 9th Circuit, the defense argument can be much stronger because the focus can be on the effect the prosecutor's decision has on the defendant's ability to receive a fair trial, rather than on the prosecutor's intent. To be sure, even in the 9th Circuit, there can be no guarantee this motion will work. In Tanaka, the judge-requested immunity motion was denied and Tanaka was convicted. However, in Ruehle, the motion was granted, jump- starting a chain of events that led to the Ruehle indictment being dismissed.
Trial lawyers have many different tools in their toolbox; it is knowing which tool to use that makes the difference. Most criminal defense lawyers are well-acquainted with asking the prosecution for immunity for their client. Asking the court for immunity is another tool that may be appropriate — and necessary — in the right situation to guarantee a fair trial.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.