United States v. Shober, Crim. No. 78-312.

• Decision Date: 18 March 1980
• Docket Number: Crim. No. 78-312.
• Citation: 489 F. Supp. 412
• Parties: UNITED STATES of America v. E. Wharton SHOBER, George L. Guerra and John P. Dixon, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

489 F. Supp. 412

UNITED STATES of America v. E. Wharton SHOBER, George L. Guerra and John P. Dixon, Defendants.

Crim. No. 78-312.

United States District Court, E. D. Pennsylvania.

March 18, 1980.

Frank H. Sherman and Peter J. Smith, Asst. U.S. Attys., Philadelphia, Pa., for the Government.

Richard A. Sprague, Joan A. Zubras, Philadelphia, Pa., for defendant Shober.

James C. Schwartzman, Philadelphia, Pa., for defendant Dixon.

J. Shane Creamer, Philadelphia, Pa., for defendant Guerra.

BENCH OPINION

TROUTMAN, District Judge.

In this somewhat complex and long protracted criminal case, the Court was in the early stages thereof faced with scores of pretrial motions, upon the disposition of which the trial has been repeatedly continued and postponed pending the conclusion of criminal proceedings in another district involving a defendant who is allegedly a potential witness in this case, but who, it was represented, refused to testify pending the resolution of charges which were the subject of an indictment filed in that district. Those charges were resolved and that case terminated the last week in February 1980, paving the way, it seemed, for the early trial of this case commencing March 18, 1980.

Coincidentally with the disposition of said case, we became aware of the recent decision of the Third Circuit Court of Appeals in the case of Government of the Virgin Islands v. Smith, 615 F.2d 964, dated February 5, 1980, giving this Court for the first time in this Circuit the express authority to grant judicial immunity to a potential witness for the defendant upon the defendant's meeting certain "standards" in an evidentiary hearing to be provided by the Court.

The Circuit Court also treated at length the somewhat parallel doctrine of statutory immunity, leading the defendants to renew motions, previously filed and denied, seeking statutory or judicial immunity for certain witnesses, pursuant to an evidentiary hearing as directed by the Circuit Court.

To hopefully allow time for the presentation and disposition of such motions, the Court again postponed the trial to May 14, 1980, the first available date, by reason of the engagement of certain counsel in other specially listed criminal cases, and the Court immediately scheduled an evidentiary hearing for March 12, 1980.

At that hearing last week, the Government objected at the very threshold to an evidentiary hearing, contending that same should await the conclusion of the Government's case at the time of trial, that being, it was contended, the earliest date on which the "availability" of such witness or witnesses for trial could be determined, "availability" being one of the standards enunciated by the Circuit Court.

The Government further contended that trial, at least to the conclusion of the Government's case, is essential to the determination of other enunciated standards, such as whether such testimony will be "clearly exculpatory" and "essential to the defendant's case."

This trial having already been long delayed, a new trial date having been fixed, there being no certainty as to the time required by an evidentiary hearing and the resolution of the issues there raised, desiring not to delay the trial once commenced and thus impose upon the jury the resulting burden upon its time and resources, we denied the Government's motion and proceeded to hearing.

The defendants, the movants, offered various documentary evidence including a letter from counsel for one of the potential witnesses. Additionally, counsel for another potential witness testified as to his belief concerning the availability of the witness, the exculpatory nature of his testimony and other matters. He also testified as to his "impression" that the Government intends to prosecute his client, the witness, at the conclusion of the instant case. Thus supporting defendant's contention that immunization is necessary to the appearance of such witness. It is doubtful that such testimony "clearly identified" the testimony of the witness.

As to the above-mentioned letter from counsel for another witness, a review thereof suggests that the witness had made a public statement "denying culpability with respect to matters" contained in the indictment in this case, suggesting by inference only that the witness' testimony would exculpate the defendant or defendants in the instant case. The letter, although attesting to the innocence of the witness, does not clearly state that the defendant was not involved, although that conclusion could conceivably follow.

Moreover, the communication was not apparently based upon any recent conversation with the witness, as the author said therein, "I know of no reason why (the witness) will or should recede from his public statements." Such communication did not approach the task of "clearly identifying" the testimony of the proposed witness, and we so held.

Additionally, the letter pointed out the existence of potential or additional road-blocks to the appearance of the witness, including a "privilege" incident to the Speech or Debate Clause of the United States Constitution, raising still another issue in this case, particularly as to the "availability" of the witness.

Counsel for the defendants also sought to call Government's trial counsel to the witness stand to determine whether the Government will grant statutory immunity to the witnesses, and if not, why not, and for other undesignated purposes.

Government counsel responded that the Government would not grant immunity, but refused to state the reason for such denial.

We refused defendants' counsel the right to call Government counsel to the stand, finding nothing in the Virgin Islands case to suggest that the extraordinary remedy of immunity justifies the extraordinary procedure here attempted.

Certainly, the trial court has a substantial interest in eliminating, if not the duty to eliminate, situations which may result in the disqualification of trial counsel, either for the defendants or the Government, especially in a case in which trial has so long been delayed and in which we may hopefully be reaching trial within the near future.

At the conclusion of the hearing, the Government offered no evidence. It argued that the application for immunity is premature and should await the conclusion of the Government's case at trial, and that the defendants had made an "insufficient showing" of the need for immunity.

On the contrary, counsel for the defendants vehemently argued that they had "proffered testimony" and had made a "prima facie showing" within the meaning of those terms as used in the Virgin Islands case, and that having met the "standards," the Court should either direct "statutory immunity" or grant "judicial immunity."

Desiring not to delay the disposition of the motions and thus perhaps delay the trial, we ruled from the Bench, denying the motion for statutory immunity with prejudice. We did so because from the inception of this case statutory immunity has been sought precisely on the grounds alleged at the March 12 hearing, yet we have been unable to find "prosecutorial misconduct" or "Government decisions made with the deliberate intention of distorting the fact-finding process," as expressly required by the Virgin Islands case, and it is the defendants' burden to so establish.

However, as to the application for judicial immunity, we felt otherwise. We felt that defendants had at least taken a first step in the direction of establishing the basis for an order of judicial immunity, but found and concluded that the testimony of counsel for one witness and the communication from counsel for another witness did not meet the burden resting upon the defendants.

Recognizing their opportunity to make a proper showing as late as the conclusion of the Government's case at trial, as contended by the Government, we denied the motion for judicial immunity without prejudice.

Immediately upon the announcement of the Court's ruling, but following adjournment, counsel for defendants requested further hearing, which was immediately fixed for today, Tuesday, March 18, 1980, so as not to delay ultimate trial as scheduled.

It should be noted that in the Virgin Islands case the Government held the witness either in custody or in sequestration and thus exercised what the Court described as an "exclusive proprietary claim" to the witness, thus precluding the defendants from interviewing him, producing him at trial, or even using, at trial, the police statement taken from him.

Not so here. The Government has not interfered with defendants' access to the witnesses in question. It has merely failed to indict individuals allegedly involved in the transactions alluded to in the indictment, and has denied immunity, statutory or otherwise. This is a far cry from improperly exercising an "exclusive proprietary claim" to the witness. There is nothing in the Virgin Islands case and nothing in the law to date imposing upon the Government the obligation to voluntarily immunize a witness for the benefit of the defendant. Moreover, in such refusal, without more, we cannot find the "deliberate intention of distorting the judicial factfinding process," as contended by the defendants, or as required by the Virgin Islands case.

In passing, it should be noted that while the burden here rests upon the defendants, that burden need not be met by any prescribed standards, such as beyond a reasonable doubt, by a preponderance of the evidence, or even by establishing that what they seek is more likely so than not so. Rather, the Virgin Islands case speaks in terms of a "convincing showing" sufficient to satisfy the Court that the proposed testimony is both "clearly exculpatory" and "essential" to the defendants' case.

The Virgin Islands court refers alternatively to a "prima facie showing," a "convincing showing," but nowhere does the court define the term or terms used, nor does it give any guidance as to what is...