deal: the informant wanted to see the cocaine before paying, and the defendants demanded the money first. At some point, one of the defendants said to the informant, "It's in the Kaufmann's lot." Agent Clark heard this statement relayed by the informant's transmitter, and Clark told her partner John Guseman, who relayed it by radio to the other cars. Shortly thereafter, James Porter, the agent in charge, ordered the agents and officers to arrest the defendants. Harvey Sampson was arrested in the Kentucky Fried Chicken parking lot, ten feet from the Volvo. Almost simultaneously, other agents surrounded Rose Sampson's Trans Am. They took her and her daughter from the car. On the back floor, Special Agent Schiraj found a blue duffel bag containing a white powder wrapped in clear plastic. Though the white powder was not visible from outside the duffel bag, the duffel bag was unzipped. It opened at Agent Schiraj's touch, disclosing its contents. Other agents searched Rose Sampson and seized $24,000.00 in cash from her purse. Two guns were found in Harvey Sampson's Volvo.
Later that day, while in custody, Rose Sampson made several statements. She denied knowledge of the drug deal. She stated that she was in the Rochester, Pennsylvania, area to pick up her Trans Am, which had been repaired there. She acknowledged that the purse containing the $ 24,000.00 was hers and that she knew there was a lot of money in it, though she did not know how much. She said that the money belonged to her husband. Rose Sampson denied knowing what the blue duffel contained, and she said the bag was her husband's.
After the suppression hearing, counsel for Rose Sampson made a detailed proffer of what Harvey Sampson's testimony on Rose Sampson's behalf would be if the court immunized him. Harvey Sampson and his counsel were present in court during this proffer, and Rose Sampson's counsel conferred with them several times to confirm the description of the prospective testimony.
Harvey Sampson would testify that Rose Sampson did not know that a cocaine deal was to take place and she did not know that the blue duffel bag in the Trans Am contained cocaine. According to the proffer, Rose Sampson made the trip to Pennsylvania from South Carolina at her husband's insistence. Her trip was not coerced, however. Harvey Sampson gave Rose Sampson the $ 24,000.00 in South Carolina. During the trip Harvey never mentioned drugs or a drug deal to Rose. Harvey Sampson would deny that he handed a white package and a gun to Rose in the Kaufmann's parking lot. He did hand her something; the proffer did not specify what it was. Instead, the cocaine was put into the duffel bag in the Trans Am some twenty minutes before the arrest, without Rose Sampson's knowledge.
In Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), the Court of Appeals announced a rule of fundamental fairness requiring a trial court to immunize a potential defense witness "when it is found that [he] can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity."
Id. at 974. We hold that this case does not merit such "extraordinary relief." Id. at 968. Nevertheless, because we think that Rose Sampson's motion presents a serious question about the scope of Smith and its effect on the administration of justice, we will discuss at some length Smith and its application to this case.
A. Judicial Use Immunity
In Smith, the Court of Appeals held that under the Due Process Clause, a court should grant use immunity to a defense witness who refuses to testify for fear of self-incrimination when the following five requirements are met:
Immunity must be properly sought in the district court; the defense witness must be available to testify; the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity.
Id. at 972. The Court emphasized that use of this judicial power must be "clearly limited."
Id. To understand these limitations, we must examine the "totally bizarre situation," United States v. Turkish, 623 F.2d 769, 773 (2d Cir. 1980), involved in Smith.
At their trial for the assault of Roy Phipps, Glen Smith and two co-defendants sought to introduce the testimony of Ernesto Sanchez. Sanchez had confessed to the police that he, along with three people other than the co-defendants at issue in Smith,3 assaulted Phipps. Id. at 966-67. Sanchez refused to testify, invoking his privilege against self-incrimination. Id. at 967. The government successfully opposed admission at trial of his statement to the police. Id.
The Virgin Island Attorney General's office was amenable to granting Sanchez use immunity, but, out of courtesy, conditioned that grant on the consent of the United States Attorney. Id. As Sanchez was a juvenile, only the Attorney General of the Virgin Islands had jurisdiction to prosecute or immunize him. Id. at 974. Without offering any explanation, the United States Attorney refused to consent. Id. at 967, 969. In addition, the United States Attorney sequestered Sanchez prior to trial and denied the defense access to him. Id. at 967 n.3.
To the Court of Appeals, these facts reeked of prosecutorial misconduct done "with the deliberate intention of distorting the judicial fact-finding process." Id. at 968. The Court held that under the standard enunciated in United States v. Herman, 589 F.2d (3d Cir. 1978), these facts would entitle the defendants to a judgment of acquittal unless the government consented to grant statutory use immunity to Sanchez. Id. at 969. Alternatively, however, the Court fashioned a type of judicial, non-statutory immunity "triggered, not by prosecutorial misconduct or intentional distortion of the trial process, but by the fact that the defendant is prevented from presenting exculpatory evidence which is crucial to his case." Id. Recognizing the unique nature of this immunity and its potential interference with the prerogatives of the Executive branch, id. at 971, the Court conditioned conferral of this immunity on a defendant's making a "convincing showing" as to the five requirements listed above. Id. at 972.
First, the defendant must properly seek immunity in the district court. Id. Second, the witness must be available to testify but for his assertion of privilege. Id. Both of these requirements appear clear and easy to apply.
Third, the testimony must be "clearly exculpatory," and, fourth, it must be "essential to the defendant's case." Id. Beyond excluding ambiguous and cumulative testimony and testimony that bears only on the credibility of government witnesses, the Court did not define the terms "clearly exculpatory" and "essential." However, the facts of Smith and Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), upon which the Court of Appeals relied, and United States v. Lowell, 649 F.2d 950 (3d Cir. 1981), suggest that the testimony must be much more than evidence that has some tendency to negate an element of the government's case.
In Smith, Sanchez' potential testimony amounted to a confession of his guilt that would have cleared the defendants of any involvement in the crime. Sanchez had already confessed to the police. Nothing in the circumstances of that confession indicated that he was motivated by a desire to exculpate Smith and his co-defendants. As a statement against penal interest, Sanchez' statement seemed reliable. Moreover, the Court noted that the government's case at trial was weak. It rested almost entirely on the testimony of the victim, who was slightly retarded. At times, his testimony was confusing and incomprehensible. Id. at 969 and n.6. Thus, not only would Sanchez' testimony have been devastating to the government's case, it appeared necessary to prevent a miscarriage of justice.
In Chambers, state evidentiary rules prevented defense counsel from cross-examining a witness who had confessed to the homicide with which the defendant was charged, but who later repudiated his confession. The trial judge also excluded the witness's out of court confession. Under the state's proof at trial, only one person could have participated in the homicide. Corroborating circumstances assured the reliability of the confession. 410 U.S. at 300-301. As in Smith, the government's case was weak. See 410 U.S. at 289. In light of all these circumstances, the Supreme Court held that the trial court's rulings deprived the defendant of due process. See also Green v. Georgia, 442 U.S. 95, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1979) (exclusion of separately tried co-defendant's confession at the penalty phase of a capital murder trial violated due process, particularly because the state used the co-defendant's confession at his own trial to convict him and sentence him to death).
In United States v. Lowell, 649 F.2d 950 (3d Cir. 1981), the defendant, who was accused of a bribery conspiracy, sought immunity for an official who would have testified that the defendant never paid him the bribes that the government's main witness, the only witness who tied the defendant to the conspiracy, charged the defendant with paying. The Court of Appeals upheld the district court's denial of immunity. This testimony would not have been "clearly exculpatory" because it would not have completely exonerated the defendant; it did not exclude the possibility that the defendant made payments to other officials. See 649 F.2d at 965; 490 F. Supp. 897, 905 (D.N.J. 1980). In distinguishing Smith, the Court of Appeals characterized the facts in Smith as presenting "a probable certainty that Sanchez's testimony would exonerate three of the convicted felons." 649 F.2d at 965. (emphasis added).
The facts and reasoning of these cases strongly suggest that a defendant is entitled to immunity for his witness only when to deny it would result in a fundamentally unfair trial. We should not immunize testimony that, though exculpatory, has only "some conceivable effect" on the outcome of the trial. Cf. Strickland v. Washington, 466 U.S. 668, 693, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In Smith, to define a defendant's due process right to present evidence, the Court of Appeals drew from cases dealing with the right to counsel. 615 F.2d at 971 (discussing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963)). Thus, we believe that the proper definition of "clearly exculpatory" should resemble the test for prejudice used in an ineffective assistance of counsel claim:
The defendant must show that there is a reasonable probability that, but for [the unavailability of the witness's testimony], the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.