Government of Virgin Islands v. Smith

Citation615 F.2d 964
Decision Date05 February 1980
Docket NumberNos. 79-1212,s. 79-1212
PartiesGOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Glen SMITH, Elton Rieara, Elvis Smith and Roland Georges, Appellants. to 79-1215.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Peter A. Martin, Dudley, Martin & Dudley, Charlotte Amalie, St. Thomas, V. I., for Glen Smith.

Judith L. Bourne, Asst. Federal Public Defender, Charlotte Amalie, St. Thomas, V. I., for Rieara.

Herbert Muriel, St. Thomas, V. I., for Elvis Smith.

David S. Hoffenberg, Loud, Watts & Murnan, Charlotte Amalie, St. Thomas, V. I., for Georges.

Ishmael A. Meyers, U. S. Atty., District of the Virgin Islands, Terry M. Halpern, Asst. U. S. Atty., District of the Virgin Islands, Charlotte Amalie, St. Thomas, V. I., William C. Bryson, James A. Hunolt, Attys., App. Section, Crim. Div., Dept. of Justice, Washington, D. C., for appellee.

Before GIBBONS, WEIS and GARTH, Circuit Judges.


GARTH, Circuit Judge.

In United States v. Herman, 589 F.2d 1191 (3d Cir. 1978) cert. denied 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), this court explored the circumstances in which a defendant may claim that immunity must be provided to defense witnesses. Although the Herman court rejected the claim for immunity in the case before it, it recognized two possible situations in which the due process clause might compel the granting of immunity to defense witnesses. First, it noted that in cases where government actions denying use immunity to defense witnesses were undertaken with the "deliberate intention of distorting the judicial fact finding process," the court has the remedial power to order acquittal unless on retrial the government grants statutory immunity. 589 F.2d at 1204. Secondly, it noted that in certain cases a court may have "inherent authority to effectuate the defendant's compulsory process right by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense." Id. (emphasis added).

The question of defense witness immunity surfaces once again in this case. Here, as contrasted with Herman, the record reveals sufficient evidence to constitute a prima facie showing under either of these due process theories. 1 Accordingly, we remand to the district court for an evidentiary hearing under the Herman guidelines to determine whether due process requires that defense witness immunity be granted.


In the early afternoon of June 16, 1978, Roy Phipps was assaulted by four young men. During the assault, which took place at a Saint Thomas housing project, 25 dollars was stolen from Phipps' pockets. This assault occurred shortly after another incident, allegedly involving a marijuana swindle, had taken place in a nearby courtyard. This latter altercation had also involved Phipps and had attracted the attention of a group of young men. It is undisputed that Phipps' assailants were members of this group, but their exact identities were the prime subject of controversy at trial.

During the course of the trial, three of the defendants Glen Smith (hereinafter referred to as "Glen"), Elton Rieara and Roland Georges sought to introduce the testimony of one Ernesto Sanchez. Sanchez had previously made a statement to the police which inculpated himself as one of Phipps' attackers 2 and identified three others, who were nicknamed "Scotto," "Mon" and "Mouth," as perpetrators of the crime. Apparently, these nicknames were not the nicknames by which Glen, Rieara or Georges were known. Elvis Smith, on the other hand, was known as "Scotto." Thus, while Sanchez' statement incriminated Elvis Smith, it would have implicitly exculpated the other three defendants, Glen, Rieara and Georges. Therefore, hoping that Sanchez' trial testimony would track his earlier statement to the police, these three defendants (hereinafter referred to as the "defense") called Sanchez as a defense witness. 3

Sanchez' testimony was not so easily forthcoming, however. He declined to make any significant substantive statement, claiming his fifth amendment privilege against self-incrimination. T.R. at 249-50. At that point, the defense, asserting an exception to the hearsay rule, claimed that Sanchez had become an unavailable witness and thereby sought to introduce into evidence the earlier statement which Sanchez made to the police. T.R. at 250. The government opposed the introduction of the statement arguing that it would be unable to cross-examine the hearsay declarant (Sanchez). T.R. at 252. The trial court sustained the government's objection.

After having been unsuccessful in obtaining the admission into evidence of Sanchez' prior statement, the defense then raised the subject of granting Sanchez immunity. T.R. at 253. Sanchez, who was less than sixteen years of age when the assault against Phipps was committed, came within the exclusive jurisdiction of the juvenile authorities in the Virgin Island Attorney General's office. The record reveals that Mr. Leonard Francis of that office had offered to grant Sanchez use immunity on the condition, prompted only out of prosecutorial courtesy, that the United States Attorney consent. T.R. at 206, 253. For reasons which were unexplained at trial and which the United States Attorney did not explain to this court at oral argument, this consent was never granted. Accordingly, the potentially exculpatory evidence which the defense desired to offer through Sanchez' testimony, was never presented to the jury.

Without the benefit of Sanchez' testimony, all four defendants were convicted on charges of robbery, and each was sentenced to six and one-half years of imprisonment. Each of the defendants has set forth various errors on appeal. A primary contention, common to Glen, Georges and Rieara is that their due process rights were violated by the failure to grant immunity to Sanchez. We find no basis by which to sustain any other claim they assert except for the immunity error. 4 We therefore affirm by separate judgment order, the conviction of Elvis Smith who could not have benefited from Sanchez' testimony. With respect to the remaining three defendants Glen, Rieara and Georges all or any of whom might be exculpated by Sanchez' testimony, we remand for an evidentiary hearing to determine whether Sanchez should be immunized so as not to violate the defendants' due process rights.


In United States v. Herman, supra, this court took specific note of "our governmental system's strong tradition of deference to prosecutorial discretion" in conjunction with granting statutory immunity. 589 F.2d at 1203. It also noted the "tendency of the executive branch to exercise that discretion in ways that make it more likely that defendants will be convicted." Id. at 1204. Nevertheless, Herman recognized that under certain circumstances due process may require that the government afford use immunity for a defense witness. This recognition followed from this court's decision in United States v. Morrison, 535 F.2d 223 (3d Cir. 1976) which held that where prosecutorial misconduct occurred (in that case, intimidation of a defense witness), the government could be directed to either obtain use immunity, so that the witness could testify, or suffer a judgment of acquittal. Morrison, however, did not specify the burden which the defendant was required to meet in order to obtain such extraordinary relief. The dimensions of the defendant's burden, in this respect, were not established until Herman when this court stated:

(W)e think that the evidentiary showing required to justify reversal on that ground must be a substantial one. The defendant must be prepared to show that the government's decisions were made with the deliberate intention of distorting the judicial fact finding process.

589 F.2d at 1204.

Thus, with full recognition that a court seriously intrudes into the realm of the executive when it orders the government to grant statutory immunity to a defense witness, Herman nonetheless affirmed the availability of such a remedy. But it conditioned this remedy on a showing by the defendant that the government's decision not to provide immunity was a decision made "with the deliberate intention of distorting the judicial factfinding process." Absent this type of prosecutorial misconduct, a defendant is foreclosed from insisting that statutory immunity be granted his witness.

In Herman, no evidence of "distortion" or prosecutorial misconduct appeared. Hence the sought after immunity was not ordered. By contrast, the record in this case reveals a prima facie showing of government action that might well fall within guidelines of Morrison or Herman. 5 We therefore turn to a consideration of the record.


Our review of the record reveals that the United States Attorney's decision not to consent to immunity for Sanchez was apparently intimately involved with the strategy for prosecuting appellants' cases. First, the prosecution was aware that its case, which rested almost entirely on Phipps' testimony, was inherently weak. 6 Even though Sanchez' testimony, if consistent with his earlier statement to the police, might be vulnerable to a credibility attack, it would be severely damaging to the prosecution's case against three of the defendants. Secondly, by refusing to consent to the Attorney General's proposed immunization of Sanchez, the government not only prevented Sanchez from testifying at trial, but that refusal also furnished the predicate for the government's objection to admitting Sanchez' statement given to the police. That argument focussed on Sanchez' unavailability for cross-examination about his prior statement, and accordingly the government claimed that the statement should not be admitted. See T.R. at 250-52. Finally, and most important, the fact that the United States Attorney had no jurisdiction over Sanchez as a juvenile and gave no justification for refusing to consent to the immunity...

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