meets the Virgin Islands standards, the Court need not wait until the close of the Government's case to confer immunity on the witness. Such an inference may understandably, but improperly, be drawn from our order of March 12, 1980, denying with prejudice defendants' motions for statutory immunity. Accordingly, that order will be amended, denying said motion, without prejudice.
We do not mean to say that the Government's position lacks cogency or merit. Circumstances may exist where judicial immunity to prospective witnesses could be properly conferred only after the close of the Government's case. But by the same token, circumstances in another case could indicate that conferring immunity to witnesses prior to trial would be the only alternative to guarantee the accused a fundamentally fair trial.
Or, circumstances may justify conferral of judicial immunity to one prospective witness prior to trial and deferring final decision concerning another witness until the close of the Government's case. Eschewing a mechanical rule commanding that such a decision must be made either before or during trial allows sufficient flexibility to accommodate the myriad complex of situations which may arise in the future and to balance the competing needs and interests of the witness, the Government and the accused.
With those comments, both historical and otherwise, we are thus brought to the point of considering the evidence presented here today.
As we indicated during oral argument, there is no reference in the indictment whatever to Ed Dixon, the potential witness sought by the defendant John P. Dixon. There is nothing in the indictment to indicate the Ed Dixon will be involved in the trial in any capacity, or that his testimony would be relevant, much less exculpatory and essential.
However, so-called 302 statements to the FBI disclose, as represented by counsel, that the Government's immunized witness Elko will, if his testimony at trial follows his 302 statements and his grand jury testimony, directly implicate Ed Dixon in the subject matter of the indictment.
Aware of this, Ed Dixon's statement submitted to the Court today, Exhibit 8, completely exculpates the witness as to the payments made unlawfully or pursuant to any scheme, as alleged in the indictment.
However, such statement does not negate the making of any payments to or the passage of any funds to, or exchange of funds with Elko. Rather, payments or exchanges of funds are explained on the basis of loans or other business transactions between Ed Dixon, Elko and others.
Regrettably, counsel have advised in the course of oral argument, after studying Elko's 302 statements and his grand jury testimony, that there are inconsistencies and contradictions therein. Thus, depending upon his testimony at time of trial, and depending upon the course which it takes, it is not possible today to determine conclusively and with finality that Ed Dixon's testimony will be clearly exculpatory, clearly essential, to the defense. Now, we are not here seeking to evade our responsibility today. Rather, we have concluded that today is not, in our opinion, the day when we can, on an informed basis, finally decide that the standards of the Virgin Islands case have been met with respect to the testimony of Ed Dixon.
While we are satisfied that the Circuit Court does, indeed, intend that judicial immunity shall become the subject of pretrial procedures, we conclude that it must be on the basis of more definitely determined facts, such as there existed, albeit on a post-trial basis. There will be cases where this is possible. Not so here, notwithstanding the total and unrestrained efforts of able counsel, whom we must necessarily and properly compliment in connection with the undivided efforts which they have devoted to this case.
Thus, although we shall once again deny the defendants' motions, without prejudice, we hasten to add that if, at trial, Elko testifies in accordance with his 302 statements and implicates Ed Dixon as therein indicated, and does so under the grant of immunity by the Government, we shall most assuredly grant the said Ed Dixon judicial immunity at trial, barring intervening controlling precedent to the contrary or an unforeseen change in facts and circumstances. Counsel may be guided accordingly.
To today affirmatively grant judicial immunity at trial time would improperly deny this Court the opportunity to consider subsequent precedent, changes in facts and circumstances, all of which it is our duty to consider at trial, to afford all parties and witnesses the rights to which they are entitled at that time.
Now, as to the witness Flood, here we have no statement from him, no communication from him directly or indirectly, as we have in the case of Ed Dixon. We have a communication from his lawyer, and the benefit of certain excerpts from newspaper articles.
From either of these, or from the combination of them, we are honestly unable to determine with that degree of certainty which is required by the Virgin Islands case that his testimony will, in fact, be exculpatory.
Moreover, we have greater problems with his availability, in that there are various privileges which he may assert, and which it is suggested by his counsel he will assert. Again, subsequent developments to and at trial time may, indeed, indicate his availability, the exculpatory nature of his testimony, and general compliance with the Virgin Islands standards.
Therefore, in conclusion, we advise that we shall, one, amend our previous order of March 12, 1980, in which we denied the defendants' motions for statutory immunity, with prejudice, and shall, to the contrary, deny the motions for statutory immunity without prejudice.
As to the motions pending today, we shall deny the motions for judicial immunity, without prejudice, as we did a week ago, and shall deny the motions presented by the defendant Shober for judicial immunity or for alternative relief, again without prejudice.
I am grateful to counsel for staying this added length of time to allow me to state for the record the position of the Court only because it would take a far greater amount of time to write it up in a more formal, more presentable manner, and I seek not to delay the trial.
I might also add in conclusion, and with the greatest sincerity, that I have never seen counsel more devoted to a case. I have never seen counsel, either for the Government or the defense, cooperate in any greater manner with the Court in an effort to expedite the complex motions and matters which have been presented, and still at the same time seek to reach an early trial.
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