decision, the existence of these facts was present in his mind, and we cannot escape the conclusion that consciously or unconsciously they affected his decision. The inferences to be drawn from the facts as presented indicate that trial counsel's obligations to other clients and the relationship of those clients to the informant, the murdered co-defendant, and two defense witnesses colored to some degree trial counsel's decisions.
Defendant seeks a judicially fashioned immunity to permit himself to testify in support of his motion for new trial and to permit him to testify fully and truthfully on retrial. If granted immunity Carducci would testify that he testified falsely at the second trial on the direct or tacit advice of his trial counsel, thereby rendering himself an ineffective witness on his own behalf. Because we grant a new trial to defendant on other grounds the need for testimony from Carducci on this issue in the post trial motion proceeding is obviated. There is, therefore, no need for immunity at this stage.
However, defendant has also requested immunity for his testimony at retrial. If defendant were to testify in his own defense at the retrial, he would directly controvert portions of his testimony in the previous trial.
It is clear that defendant does not seek statutory immunity from the United States Attorney under 18 U.S.C. § 6002, § 6003 which the United States Attorney opposes. Rather, defendant seeks a form of judicial immunity. The government refers to the recent decision in The Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S. Ct. 608, 74 L. Ed. 2d 430, 51 U.S.L.W. 4041, 4061 (1983), for the premise that no court has the power to confer immunity outside 18 U.S.C. §§ 6002, 6003. However, those statements are made in the context of a civil case and involve interpretation of 18 U.S.C. § 6002, § 6003.
We recognize that this court has inherent authority to confer judicially-fashioned immunity in certain limited instances. The need for immunity may be triggered by prosecutorial misconduct or the intentional distortion of the trial process. United States v. Morrison, 535 F.2d 223 (3d Cir. 1976). Judicially-fashioned immunity may be required where the assertion of one constitutional right requires the waiver of a defendant's fifth amendment right. United States v. Inmon, 568 F.2d 326, 332 (3d Cir. 1977); In re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978); See also Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). Finally the court may employ immunity for defense witnesses to protect defendant's due process right when the defendant is prevented from presenting exculpatory evidence which is crucial to his case. Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980).
Recognizing the power of the court to grant immunity in appropriate circumstances, we consider whether such circumstances exist in the instant case. In Virgin Islands v. Smith, 615 F.2d at 972, the Third Circuit identifies five elements which must be present to justify judicial use of the immunity power. We find two of these elements absent.
Immunity is to be employed only where the testimony to be given is clearly exculpatory. The testimony which Carducci now offers is equivocal at best. He would testify on retrial that he had supplied narcotics to David Duffy who had used those narcotics on Carducci's premises. This involvement with drugs prior to the time of the claimed entrapment can only weaken the defendant's entrapment defense.
Further, immunity may not be conferred where a strong governmental interest exists which countervails the grant of immunity. In the instant case the government has an interest in preserving its ability to prosecute the defendant for perjury if indeed he testified falsely at the original trial. A grant of immunity under such circumstances might also encourage future defendants to lie, blame it on counsel in post-trial motions, and get a second bite of the apple on retrial without penalty.
It is also doubtful whether immunity is available in the instant case because immunity is sought for the defendant himself and not a defense witness. The decisions in Morrison and Smith are directed solely to immunizing defense witnesses other than the defendant. We have not found any decision in our research which accords judicial immunity to a defendant for his testimony at trial, and although the situation existing here is somewhat unusual, we hesitate to extend judicial immunity that far.
For the reasons stated above, defendant's motion for new trial is granted and defendant's motion for judicial immunity is denied. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 557 F. Supp.]
For the reasons stated in the accompanying Opinion, IT IS ORDERED:
a) Defendant's Motion for New Trial is GRANTED;
b) Defendant's Motion to Accord Judicial Immunity to the defendant is DENIED;
c) The parties shall stand ready to select a jury and begin trial on Monday, April 4th, 1983.
SO ORDERED this 24th day of February, 1983.
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