UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 7, 1980
UNITED STATES OF AMERICA, APPELLEE,
FREDERICK PRAETORIUS, ET AL., APPELLANTS.
On Petition of Appellant Lebel for Rehearing.
Meskill, Circuit Judge.
KELLEHER, HOLDEN, District Judges.
KELLEHER, District Judge :*fn*
Appellant Lebel has petitioned for a rehearing in this action. Lebel maintains that a rehearing before the panel is necessary because the Court's decision is predicated upon a misapprehension of the record: namely, whether a prospective witness, Kathy Paige Sargent, had been subpoenaed by the defense. Appellant correctly observes that the Court was in error in reciting that the record shows Sargent had not been subpoenaed when, in fact, she had been so subpoenaed. Accordingly, the Court orders that its decision be modified as follows: On page 6, line 1, delete "Lebel" and insert in lieu thereof: "Burley". Delete lines 15 through 32 on page 16 and lines 1 through 25 on page 17 and insert in lieu thereof the following:
Immunity for Witness Sargent
Appellant Lebel contends that the district court should have ordered statutory immunity for defense witness Kathy Paige Sargent. He maintains that vindication of his constitutional right to due process required that the Court take such action so as to enable her to testify without fear of prosecution. Sargent had been granted "letter immunity" by the United States Attorney for the Eastern District of New York, but she refused to testify at trial on Lebel's behalf unless she received statutory immunity pursuant to 18 U.S.C. § 6001. After Lebel's counsel made an offer of proof, the district court denied the request for statutory immunity, finding tha the proposed examination of Sargent related merely to the credibility of another witness, informant Laws.
The situations in which the United States is required to grant statutory immunity to a defense witness are few and exceptional. Other Circuits have recognized narrow exceptions to this general rule that the government ordinarily need not grant use immunity to a defense witness: (1) where the government has used immunity to compel testimony from its own witnesses, or (2) where the government has used the threat of prosecution to wrongfully force defense witnesses to invoke the Fifth Amendment privilege against self-incrimination. See United States v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976); United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976); Earl v. United States, 361 F.2d 531, 534 (D.C.Cir. 1966). This Circuit has followed the general rule that the United States ordinarily need not grant statutory immunity to a defense witness, although in United States v. Wright, 588 F.2d 31, 35 (2d Cir. 1978), this Court left open the issue of whether, under "extraordinary circumstances", due process may require that the government confer use immunity on a witness for the defendant.
In the case at hand, appellant Lebel simply has been unable to cite any "extraordinary circumstances" which would require the government to confer use immunity on the prospective defense witness Sargent. In his offer of proof, Lebel's counsel indicated that he wished to interrogate Sargent about the following: (a) the date upon which she left Bangkok; (b) in whose hotel room she had had the heroin placed on her person for shipment; (c) whether she had informed Laws's girlfriend that she was transporting heroin back to the United States; and (d) whether Laws had told her that she was the first heroin courier in the group to leave Bangkok. Counsel had sought, by way of this interrogation, to attack the credibility of a government witness, informer Laws, by pointing up certain inconsistencies between Laws's and Sargent's respective recollections of certain details of the four matters listed above. None of these four matters directly involved appellant Lebel.
An important factor in the determination of the presence of "extraordinary circumstances" compelling the government to provide statutory use immunity for a defense witness is the materiality of the testimony sought from the witness. The issue of witness credibility, particularly in the factual context presented here, is a collateral matter and does not rise to the kind of "extraordinary circumstance" which would compel government immunization of a defense witness.
The district court was within its descretion in ruling that the testimony of Sargent merely related to the credibility of another witness and, as such, was not crucial to the defense of the case. Accordingly, the judgment of the district court -- that immunity for Sargent was not required -- is upheld. United States v. Wright, supra.
The petition for rehearing by the panel is denied.