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March 18, 1980


The opinion of the court was delivered by: TROUTMAN


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.

 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 roadblocks 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 ...

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