U.S. v. Straub

• Decision Date: 15 August 2008
• Docket Number: No. 07-30182.,07-30182.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwayne Edward STRAUB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

538 F.3d 1147

UNITED STATES of America, Plaintiff-Appellee, v. Dwayne Edward STRAUB, Defendant-Appellant.

No. 07-30182.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 2008.

Filed August 15, 2008.

Jeff S. Pitzer, Portland, OR, for the appellant.

Kelly A. Zusman, Assistant United States Attorney, United States Attorney for the District of Oregon, Portland, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, District Judge, Presiding. D.C. No. CR-04-00020-6-OMP.

Before: D.W. NELSON, ANDREW J. KLEINFELD, and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

Dwayne Edward Straub challenges his conviction and sentence for narcotics crimes and the attempted robbery and shooting of Robert Garrett in Portland, Oregon. Straub claims that the district court's refusal to compel the prosecution to grant use immunity to defense witness Mike Baumann violated his due process rights under the Fifth Amendment. This case requires us to clarify the standard by which we determine when a district court must compel the prosecution to grant use immunity, as most recently stated in Williams v. Woodford, 384 F.3d 567 (9th Cir.2004). We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution's purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution's selective denial of use immunity had the effect of distorting the fact-finding process. See id. at 600-01.

We have jurisdiction under 28 U.S.C. § 1291, and for the reasons set forth below, we reverse the district court's refusal to compel use immunity and remand for further proceedings.

I

A

Straub was arrested on February 6, 2003, following the execution of a search warrant at his residence in Oregon City, Oregon. Police found marijuana plants and packaged marijuana at Straub's home. Further investigation uncovered evidence that Straub was involved in a wide-ranging and long-standing conspiracy to manufacture and distribute methamphetamine. As charged in the indictment, Straub was involved in the sale and distribution of both marijuana and methamphetamine for a continuous period between 1998 and September 2004. Straub was part of a gang known as "The White Neck Crew" or just "The Crew." Straub and his associates were in the business of unlawfully entering the residences of other drug dealers in order to steal cash and drugs for later distribution. In the many robberies they committed over a five-year period, Straub and others wore body armor and displayed firearms. The indictment alleged, inter alia, that on February 8, 2003, Straub and another person carried and used a firearm in connection with an attempt to rob Robert Garrett and take more than 100 marijuana plants. Straub allegedly discharged a firearm in connection with this robbery.

On November 23, 2004, Straub was charged in a Second Superseding Indictment with conspiracy, possession with intent to distribute, and manufacture of methamphetamine and marijuana.¹ Of particular relevance to this appeal, Counts 3 and 4 of the indictment related to the carrying, using, and discharging of a firearm in connection with the attempted robbery of Robert Garrett in his residence on February 8, 2003. At trial, the prosecution relied heavily on the testimony of David Adams. Adams was an associate of Straub's who, at 6'5" and 365 pounds, was known as "Big Mix." According to the prosecution's own stipulation, Adams admitted to participating in: (1) the attempted robbery of the home of Robert Garrett, during which Garrett was shot in the chest; (2) an attempt to steal 50 or 60 pounds of marijuana from the home of Jacob Adams, during which a gun was discharged; and (3) a series of successful robberies of large quantities of cash, methamphetamines, and marijuana from homes of local drug dealers. In exchange for his testimony against Straub, the prosecution granted Adams use immunity² for these crimes.³ Adams testified that he participated with Straub in the attempted robbery of Garrett, and that Straub was the person who shot Garrett. Adams was the only witness for the prosecution who could place Straub at the scene, and the only witness who could put the gun in Straub's hand.

In a colloquy held outside of the presence of the jury, Straub's attorney explained to the district judge that he wanted to impeach Adams by introducing a prior inconsistent statement, but that the defense witness who could testify as to the inconsistent statement wanted to assert his Fifth Amendment privilege against self-incrimination. To demonstrate, Straub's attorney asked Adams the question he hoped to ask on the stand: "Mr. Adams, did you have a conversation with Mike Bauman[n] at a bar in the winter of 2003 in which you admitted to him that you had just shot a man?" Adams responded, "No, I didn't." Straub's attorney then stated that Adams' response was the statement he planned to impeach through the testimony of Mike Baumann. The following colloquy ensued:

[Defense]: I would call Mr. Bauman[n] . . . and it is my expectation he would testify that he saw Mr. Adams at one of the night clubs . . . and Mr. Adams was glum and sullen, and Mr. Bauman[n] asked him what's the matter, and Mr. Adams said, "I just shot a man."

The Court: Well, I don't know that that is relevant at this point. I mean, he could have shot somebody else.

[Defense]: I would establish the timeframe, Your Honor, by the winter of 2003, which is consistent with the testimony we've been hearing about the shooting of Robert Garrett on February 8, 2003.

The Court: I'm not suggesting that he shot anybody, but clearly it's possible that he could have shot several people about that time period. This is a wild story we're hearing all through the whole case, and I can't conclude from that that he's talking about this case.

[Defense]: Well, the jurors could draw that inference, though, Your Honor, and I think it's a fair inference, and in defending my client I think I have the right to present that evidence.

* * *

[Prosecution]: I believe Mr. Bauman[n] is a fellow gang member of the defendant Straub and was identified and with him as a gang member in a gang investigation in '92. The Court knows that gang members will take the stand and lie for one another and that that is a proper subject of testimony in the case. And if Mr. Bauman[n] would come to testify, and he certainly may, I intend to examine him:

Aren't you a member of the gang with which the defendant belongs. And aren't you here lying for him as a gang member and dealing with it at that time. I think that's appropriate.

[Defense]: And, Your Honor, I'm not sure, I'd let [Mr. Baumann's lawyer] address this. I'm not sure that that would raise the Fifth Amendment concerns if that is as far as the cross-examination went. So—

* * *

[Mr. Baumann's Attorney]: My client does wish to assert a Fifth Amendment privilege. In this case the Government has alleged a far-reaching conspiracy and—

The Court: You don't have to go any further. Based on [the prosecutor's] statement about what he intends to cross-examine about, it's clear that your client could be subjected to all kinds of criminal proceedings including perjury if he doesn't testify accurately.

So, I—I'm—I guess the ruling properly is that he can come and testify, but if he does and takes the Fifth Amendment, I will allow him to remain silent. I don't think—[Defense counsel] hasn't asked me and I doubt that I would be justified in granting him any kind of immunity to testify.

[Defense]: That is my last resort, Your Honor, if you would grant immunity under 18 U.S.C. 6001, the Government has that opportunity and it's just inherently unfair for the defendant to have no access to the same power.

The Court: Under certain circumstances I could grant immunity, but I don't think that I should based on what you've said in your offer of proof. I don't—I don't think that's appropriate. So that's my ruling. It's on the record. You can decide whether you're going to call him or not.

* * *

[Defense]: I don't intend to call the witness who is going to take the Fifth Amendment on the stand in front of the jury, Your Honor. And I don't mean to waive my claim to present his evidence, but I do think it would be prejudicial to put on a witness and take the Fifth.

Following a five-day trial, Straub was convicted on Counts 1, 3, 4, 5, and 6. On January 23, 2006, the district court sentenced Straub to 152 months on the drug charges (Counts 1, 4, 5, and 6) and an additional statutorily mandated consecutive term of 120 months on the firearms charge (Count 3), pursuant to 18 U.S.C. § 924(c)(1).

B

Straub timely appealed to this court for the first time on February 21, 2006. In that appeal, Straub challenged: (1) the district court's denial of a motion to sever Counts 3 and 4 of the indictment from the rest of the trial; and (2) the district court's denial of a request to compel the prosecution to grant use immunity to defense witness Baumann. In an unpublished memorandum, we held that the district court did not abuse its discretion in denying the motion to sever. See United States v. Straub, 224 Fed.Appx. 633 (9th Cir.2007). Considering the district court's refusal to compel use immunity, we remanded for an evidentiary hearing because we were unable to determine from the record whether or not compelled use immunity was constitutionally required. As we characterized Straub's position, "[Straub] does not allege prosecutorial misconduct, but he does maintain that immunity was warranted because the government gave immunity or special considerations to many of its witnesses, while refusing immunity for Bauman[n]." Id. at 635. We stated that on remand, Straub...