Argued En Banc February 20, 2013
On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-09-cr-00720-002) District Judge: Honorable Petrese B. Tucker
Peter Goldberger, Esquire (Argued) Pamela A. Wilk, Esquire, Edward C. Meehan, Jr., Esquire Edward C. Meehan, Jr. & Associates, Counsel for Appellant.
Zane David Memeger, Esquire United States Attorney, Robert A. Zauzmer, Esquire (Argued) Assistant United States Attorney David L. Axelrod, Esquire Assistant United States Attorney Office of United States Attorney, Counsel for Appellee.
Ellen C. Brotman, Esquire Erin C. Dougherty, Esquire Montgomery, McCracken, Walker & Rhoads, Jenny Carroll, Esquire Seton Hall University School of Law, Amicus Curiae Counsel National Association of Criminal Defense Lawyers.
Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, and ALDISERT, Circuit Judges.
AMBRO, Circuit Judge.
Keenan Quinn appeals his jury conviction for aiding and abetting codefendant Shawn Johnson in an armed bank robbery. Quinn's defense was that, when he drove Johnson to National Penn Bank on the morning of the robbery, he did not know that Johnson intended to rob a bank teller at gunpoint. Quinn hoped Johnson would testify on his behalf at trial, but Johnson—who was awaiting sentencing on the robbery charges—invoked his Fifth Amendment protection against self-incrimination and refused to testify. The District Court's refusal of Quinn's request to immunize Johnson so he could testify was, Quinn contends, an error, for without it he was unable to rebut the Government's accusations against him.
Quinn also alleges (though belatedly) prosecutorial misconduct. Specifically, he asserts that the Government postponed Johnson's sentencing until after Quinn's trial to induce Johnson to invoke his Fifth Amendment privilege.
We have recognized two situations in which a criminal defendant may be entitled to have a defense witness receive immunity for his testimony. The first, grounded in prosecutorial misconduct, occurs when the Government acts "with the deliberate intention of distorting the judicial fact finding process" (for example, by threatening a defense witness). United States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978); United States v. Morrison, 535 F.2d 223 (3d Cir. 1976). If prosecutorial misconduct occurs, the charges are dismissed unless the Government chooses to immunize the witness at a new trial.
We recognized a second situation in Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980)— even without evidence of prosecutorial misconduct, if the Government has refused to immunize the witness, the defendant is entitled to immunity for his witness if the testimonial evidence is "clearly exculpatory and essential to the defense case and . . . the government has no strong interest in withholding use immunity." Id. at 974. If those requirements (detailed in a five-part test) are met, the District Court, as a new remedy accorded by Smith, may on its own authority immunize that witness to allow his testimony. Id. at 971–72.
No statute or Supreme Court ruling authorizes judicial grants of immunity for a defense witness (called for convenience judicial use immunity). We are the only Court of Appeals that permits a trial court to immunize a defense witness. Every other Court of Appeals has rejected this theory of judicial power. Today we do so as well, and overturn that part of Smith that recognizes judicial grants of immunity. Immunity is a statutory creation, bestowed by Congress on the Executive Branch through the federal witness immunity statute, 18 U.S.C. §§ 6002, 6003. The decision to immunize a witness to obtain his testimony is a core prosecutorial function, as immunizing necessarily involves weighing the public's need for testimony against the risk that immunity will inhibit later prosecution of criminal wrongdoing. We, in our corner of the Judiciary, now step away from our reach into this prosecutorial realm.
Though we abandon the judicial use immunity remedy created in Smith, we retain its five-part test for determining whether the Government's refusal to grant defense witness immunity denies a defendant due process. We created this test in Smith because we feared our then-existing test for prosecutorial misconduct—acts taken with an intent to distort the factfinding process—did not ensure the defendant's right to present an effective and meaningful defense when the prosecutor refused to immunize a witness. Smith asks whether the Government has refused to immunize a witness in order to keep clearly exculpatory and essential testimony from trial without a strong countervailing reason. If so, this is a type of prosecutorial misconduct. The Smith test thus complements our existing prosecutorial misconduct test. However, the remedy for a due process violation, rather than intruding into the prosecutor's province by judicial grants of immunity, is a retrial where the Government can cure the distortion caused by its wrongdoing or face dismissal of the relevant charges.
Applying both the prosecutorial misconduct test that existed before and after Smith (acts taken with the deliberate intent to distort the factfinding process) and the complementary test we created in Smith (exclusion of clearly exculpatory and essential testimony without a strong countervailing government interest) to Quinn's case, we hold that the Government did not engage in wrongdoing. We cannot conclude it deliberately distorted the factfinding process by delaying Johnson's sentencing. No evidence demonstrates that the Government's action had any effect on Johnson's decision to invoke his Fifth Amendment right not to incriminate himself by his testimony. Nor did the
Government keep clearly exculpatory testimony from Quinn's trial by refusing to immunize Johnson. We thus affirm.
I. Facts and Procedural History
A. The Bank Robbery
On the morning of August 27, 2009, Quinn met Johnson in a parking lot at the Henderson Square shopping mall in King of Prussia, Pennsylvania. Quinn drove Johnson across the parking lot to the National Penn Bank, located within the same shopping mall. While Johnson went into the bank, Quinn drove his car behind another store, and out of sight of those in the bank.
Once inside, Johnson handed a check to one of the tellers. When she requested identification from Johnson, the teller realized Johnson had a gun pointed at her and that a note written on the back of the check demanded money. Johnson took several thousand dollars in cash from the teller and another bank employee transferring cash from the bank vault. Unknown to Johnson, the money he was given contained a global positioning system ("GPS") tracker hidden inside a bundle of bills. Johnson left the bank and returned to Quinn, who was still waiting in his car behind the nearby store, and the two drove away.
Quinn and Johnson went to a nearby townhouse owned by Quinn's aunt. There, Johnson discovered the GPS tracker and attempted to disable it by hitting it and submerging it in a bowl of water. He was unsuccessful. The Upper Merion Police Department used the tracker to locate the men at the townhouse, where both shortly surrendered. Police recovered a gun, the GPS tracker, and approximately $9, 000 in cash.
B. The Investigation and Indictment
Law enforcement officers interviewed both Quinn and Johnson that afternoon. Quinn told the officers that he did not know that Johnson planned to rob the National Penn Bank. Johnson confessed to the robbery, as well as another bank robbery he had committed a month earlier and a fraudulent check cashing scheme. He also told police that Quinn did not know he (Johnson) intended to rob National Penn. Beyond that statement, Johnson "was hesitant to talk about Quinn because Quinn is the brother of [Johnson's] fiancee."
The United States Attorney for the Eastern District of Pennsylvania indicted both Quinn and Johnson for armed bank robbery in violation of 18 U.S.C. § 2113(d), and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Johnson was also indicted for the earlier bank robbery and for being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1). Johnson pled guilty to all of the charges in May 2010, and was awaiting sentencing in August 2010 when Quinn's trial was scheduled to begin.
C. Johnson's Assertion of His Fifth Amendment Privilege
Prior to the start of Quinn's trial, his counsel discovered that Johnson had been transferred to an out-of-state prison. Quinn requested, and was granted, a continuance so that Johnson could be returned to Pennsylvania and be available to testify.
In response to this continuance, the Government filed a motion to postpone Johnson's sentencing. It apparently was concerned that Johnson, who had already pled guilty to the robbery, could shield Quinn from blame without any additional cost to himself by testifying that Quinn was not involved in that crime. By delaying Johnson's sentencing until after his testimony, the Government contended it would retain the ability to present to the sentencing Court any testimony by Johnson it believed to be perjurious.
[I]f Keenan Quinn calls [Johnson] as a witness and [Johnson] does not invoke his right against self-incrimination, it is possible, if not probable, that [Johnson] will commit perjury. Thus . . . his testimony will likely have a direct effect on his [sentencing] guidelines and the Court's analysis under 18 U.S.C. § 3553(a).
Johnson's only response to the Government's motion was to inform the Court that if either "the codefendant's counsel or the government attempts to call Mr. Johnson as a witness at the trial of the codefendant, Mr. Johnson will assert his right to remain silent under the Fifth Amendment."
As his reply to the Government's motion to delay and Johnson's statement that he intended to invoke the Fifth Amendment, Quinn filed a motion in limine asking the Court to exercise its authority under our holding in Smith to immunize Johnson so he could testify on Quinn's behalf without fear of prosecution or repercussion at sentencing. The Government opposed the motion. Following briefing and oral argument, the Court denied Quinn's request, and declined to reconsider that ruling when Quinn renewed the motion at the close of evidence.
D. Quinn's Trial
At trial, the Government introduced phone records showing that Quinn called Johnson once the day before the robbery and five times in a little over two hours on the morning of the robbery. Evidence of these calls, though deleted from the call history on Quinn's phone before it was taken by the police, was revealed through the phone company's documentation. The Government also presented testimony from two of Quinn's former cellmates, Anthony Bennett and Nicholas Mason. Bennett testified of conversations with Quinn whereby the latter had planned a crime in which he acted as the driver and hoped to beat the charges because his codefendant would "take all of the charges." Mason testified that Quinn admitted that he and a codefendant planned a bank robbery where "[Quinn] stayed parked at a separate location so he would not be linked to the crime."
Quinn testified in his own defense. He told the jury that he called Johnson once on the morning of the robbery to make plans to meet for breakfast. He claimed that he began to drive Johnson to his aunt's house, where they intended to spend the morning, when Johnson directed him to pull in front of the bank's entrance. As he got out of the car, Johnson told Quinn to wait behind a nearby store. Quinn stated that he believed Johnson was going to cash a fraudulent check at the bank, something Johnson had done before, but did not know that Johnson was going to rob the bank at gunpoint.
Johnson did not testify. His statement to police that Quinn was not aware of the planned robbery was excluded as hearsay.
After a four-day trial, the jury found Quinn guilty of aiding and abetting a bank robbery and carrying a firearm in relation to a crime of violence. His sentence was ...