United States v. Quinn

• Decision Date: 14 August 2013
• Docket Number: No. 11–1733.,11–1733.
• Citation: 728 F.3d 243
• Parties: UNITED STATES of America v. Keenan Danan QUINN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

728 F.3d 243

UNITED STATES of America

v.Keenan Danan QUINN, Appellant.

No. 11–1733.

United States Court of Appeals,Third Circuit.

Argued En Banc Feb. 20, 2013.

Opinion filed: Aug. 14, 2013.

Peter Goldberger, Esquire, (argued), Pamela A. Wilk, Esquire, Ardmore, PA, Edward C. Meehan, Jr., Esquire, Edward C. Meehan, Jr. & Associates, Philadelphia, PA, for Appellant.

Zane David Memeger, Esquire, United States Attorney, Robert A. Zauzmer, Esquire, (argued), Assistant United States Attorney, David L. Axelrod, Esquire, Assistant United States Attorney, Office of United States Attorney, Philadelphia, PA, for Appellee.

Ellen C. Brotman, Esquire, Erin C. Dougherty, Esquire, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Jenny Carroll, Esquire, Seton Hall University School of Law, Newark, NJ, Amicus Curiae Counsel National Association of Criminal Defense Lawyers.

Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, and ALDISERT, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge, with whom McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, and ALDISERT, Circuit Judges, join.

Keenan Quinn appeals 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—who was awaiting sentencing on the robbery charges—invoked his Fifth Amendment protection against self-incrimination and refused to testify. The District Court's refusal of Quinn's request to immunize Johnson so he could testify was, Quinn contends, an error, for without it he was unable to rebut the Government's accusations against him.

Quinn also alleges (though belatedly) prosecutorial misconduct. Specifically, he asserts that the Government postponed Johnson's sentencing until after Quinn's trial to induce Johnson to invoke his Fifth Amendment privilege.

We have 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.

We recognized a second situation in Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980)—even without evidence of prosecutorial misconduct, if the Government has refused to immunize the witness, the defendant is entitled to immunity for his witness if the testimonial evidence is “clearly exculpatory and essential to the defense case and ... the government has no strong interest in withholding use immunity.” Id. at 974. If those requirements (detailed in a five-part test) are met, the District Court, as a new remedy accorded by Smith, may on its own authority immunize that witness to allow his testimony. Id. at 971–72.

No statute or Supreme Court ruling authorizes judicial grants of immunity for a defense witness (called for convenience judicial use immunity). We are the only Court of Appeals that permits a trial court to immunize a defense witness. Every other Court of Appeals has rejected this theory of judicial power. Today we do so as well, and overturn that part of Smith that recognizes 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. §§ 6002, 6003. 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.

Though we abandon the judicial use immunity remedy created in Smith, we retain its five-part test for determining whether the Government's refusal to grant defense witness immunity denies a defendantdue process. We created this test in Smith because we feared our then-existing test for prosecutorial misconduct—acts taken with an intent to distort the factfinding process—did not ensure the defendant's right to present an effective and meaningful defense when the prosecutor refused to immunize a witness. Smith asks whether the Government has refused to immunize a witness in order to keep clearly exculpatory and essential testimony from trial without a strong countervailing reason. If so, this is a type of prosecutorial misconduct. The Smith test thus complements our existing prosecutorial misconduct test. However, 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.

Applying both the prosecutorial misconduct test that existed before and after Smith (acts taken with the deliberate intent to distort the factfinding process) and the complementary test we created in Smith (exclusion of clearly exculpatory and essential testimony without a strong countervailing government interest) to Quinn's case, we hold that the Government did not engage in wrongdoing. We cannot conclude it deliberately distorted the factfinding process by delaying Johnson's sentencing. No evidence demonstrates 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. We thus affirm.

I. Facts and Procedural HistoryA. The Bank Robbery

On the morning of August 27, 2009, Quinn met Johnson in a parking lot at the Henderson Square shopping mall in King of Prussia, Pennsylvania. Quinn drove Johnson across the parking lot to the National Penn Bank, located within the same shopping mall. While Johnson went into the bank, Quinn drove his car behind another store, and out of sight of those in the bank.

Once inside, Johnson handed a check to one of the tellers. When she requested identification from Johnson, the teller realized Johnson had a gun pointed at her and that a note written on the back of the check demanded money. Johnson took several thousand dollars in cash from the teller and another bank employee transferring cash from the bank vault. Unknown to Johnson, the money he was given contained a global positioning system (“GPS”) tracker hidden inside a bundle of bills. Johnson left the bank and returned to Quinn, who was still waiting in his car behind the nearby store, and the two drove away.

Quinn and Johnson went to a nearby townhouse owned by Quinn's aunt. There, Johnson discovered the GPS tracker and attempted to disable it by hitting it and submerging it in a bowl of water. He was unsuccessful. The Upper Merion Police Department used the tracker to locate the men at the townhouse, where both shortly surrendered. Police recovered a gun, the GPS tracker, and approximately $9,000 in cash.

B. The Investigation and Indictment

Law enforcement officers interviewed both Quinn and Johnson that afternoon. Quinn told the officers that he did not know that Johnson planned to rob the National Penn Bank. Johnson confessed to the robbery, as well as another bank robbery he had committed a month earlier and a fraudulent check cashing scheme. He also told police that Quinn did not know he (Johnson) intended to rob National Penn. Beyond that statement, Johnson “was hesitant to talk about Quinn because Quinn is the brother of [Johnson's] fiancee.”

The United States Attorney for the Eastern District of Pennsylvania indicted both Quinn and Johnson for armed bank robbery in violation of 18 U.S.C. § 2113(d), and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Johnson was also indicted for the earlier bank robbery and for being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1). Johnson pled guilty to all of the charges in May 2010, and was awaiting sentencing in August 2010 when Quinn's trial was scheduled to begin.

C. Johnson's Assertion of His Fifth Amendment Privilege

Prior to the start of Quinn's trial, his counsel discovered that Johnson had been transferred to an out-of-state prison. Quinn requested, and was granted, a continuance so that Johnson could be returned to Pennsylvania and be available to testify.

In response to this continuance, the Government filed a motion to postpone Johnson's sentencing. It apparently was concerned that Johnson, who had already pled guilty to the robbery, could shield Quinn from blame without any additional cost to himself by testifying that Quinn was not involved in that crime. By delaying Johnson's sentencing until after his testimony, the Government contended it would retain the ability to present to the sentencing Court any testimony by Johnson it believed to be perjurious.

[I]f Keenan Quinn calls [Johnson] as a witness and [Johnson] does not invoke his right against self-incrimination, it is possible, if not probable, that [Johnson] will commit perjury. Thus ... his testimony will likely have a direct effect on his [sentencing] guidelines and the Court's analysis under 18 U.S.C. § 3553(a).

Johnson's only response to the Government's motion was to inform the Court that if either “the...