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Explanation of “Immunity” in Federal Prosecutions

Posted by John Rogers | Apr 16, 2022

Federal prosecutors may offer immunity for material cooperating witnesses

Federal prosecutors may provide immunity to a culpable person to obtain evidence to prosecute others. A person receiving immunity cannot be prosecuted using their compelled statements. Accordingly, an individual provided with immunity cannot assert their Fifth Amendment right against self-incrimination because they are not being forced to assist in their own prosecution.

SCOPE OF IMMUNITY

General Limitations

Immunity protects an individual from criminal prosecution. Because an entity or organization has no Fifth Amendment privilege, it cannot receive immunity.[1] Immunized testimony may be used in noncriminal proceedings like:

  • Civil litigation[2]

  • Professional disciplinary proceedings[3]

  • Tax proceedings[4]

Immunity can also extend to civil proceedings that a court finds to be “criminal in nature.”[5] For example, it's applied to civil forfeiture actions to recover from the participants of a criminal scheme or enterprise.[6] However, immunity does not apply to civil liabilities.[7]

Immunity does not shield against nonjudicial consequences like:

  • Job loss,

  • Expulsion from a labor union,

  • The applicability of state registration and investigation statutes,

  • Passport ineligibility,

  • Public disgrace.[8]

Transactional Immunity

Transactional immunity (also known as blanket immunity) provides a witness with complete immunity for any action about which the witness testifies. Even if the government finds independent evidence that the witness committed a crime, the government cannot prosecute them. Transactional immunity provides an individual with greater protection than the privilege against self-incrimination. Witnesses receiving transactional immunity may try to testify expansively beyond what is asked to achieve greater protection.

Federal prosecutors do not provide transactional immunity, only derivative use immunity. However, prosecutors on the state level may provide transactional immunity because derivative use immunity does not provide enough protection.

Derivative Use Immunity

Derivative use immunity is more limited than transactional immunity.[9] Derivative use immunity is coextensive with the Fifth Amendment protections. If a person receives derivative use immunity, the prosecution cannot use:

  • The individual's responses against the individual, and

  • Any information directly or indirectly derived from the individual's responses against the individual.

Impermissibly using compelled testimony can include the government using the information to assist with:

  • Focusing the investigation,

  • Deciding to prosecute,

  • Obtaining an indictment,

  • Refusing to plea bargain,

  • Interpreting evidence,

  • Preparing for trial, including planning:

    • Trial strategy; and

    • Cross-examination.[10]

The government ordinarily ensures that a defendant's immunized testimony is not disclosed in a sentencing hearing.

The remedy for the prosecutor's improper use of immunized testimony depends on the circumstances. For instance, if the testimony:

  • Is used in the grand jury, the court dismisses the indictment.[11]

  • Is introduced at trial, the court orders a new trial.[12]

  • Is challenged by a motion in limine at trial before it is introduced, the court will suppress the evidence.[13]

However, if the government improperly uses immunized statements, it may be deemed harmless if the government has proven its case beyond a reasonable doubt.[14]

Prosecuting Immunized Witnesses

If an individual receives derivative use immunity, the prosecutor can still prosecute the person for:

  • Perjury (18 U.S.C. § 1623),

  • False Statement (18 U.S.C. § 1001),

  • Failing to comply with the order granting immunity.[15]

The government exceptions in the statute only apply to acts after the grant of immunity and not to previous acts. For instance, the government cannot use a witness's truthful testimony after receiving immunity to prosecute for:

  • False statements previously made to the government,

  • Perjury for testifying falsely in an earlier appearance.[16]

The prosecution can also prosecute a person with derivative use immunity for the offense they testified about if the government uses only evidence that does not stem from the immunized testimony. Before prosecuting, the prosecutor must obtain written approval from the Attorney General.

To prosecute, the government must show by the preponderance of the evidence that all the evidence it introduces is from an independent and valid source.[17] Courts ordinarily hold a pre-trial evidentiary hearing, called a Kastigar hearing, to determine if the government's proposed evidence is tainted by the defendant's compelled testimony.

In preparing to satisfy their burden that the evidence they propose to use is not tainted, the government typically:

  • Create a summary of existing evidence before the witness testifies including the dates and sources of the evidence.

  • Keep a verbatim record of the witness's immunized testimony, for example in the FBI's interview report from FD-302.

  • Maintain a record of the dates and sources of any evidence gathered after the witness's immunized testimony.

Witnesses Exposed to Compelled Testimony

The prosecution's witnesses cannot use another individual's immunized or compelled testimony to:

  • Refresh their memories,

  • Focus their thoughts,

  • Organize their testimony,

  • Alter their prior or contemporaneous statements.[18]

It may be difficult for the government to shield all its potential witnesses from exposure to immunized or compelled testimony. If the government witness is exposed, the government must prove that its witness's exposure “did not shape, alter, or affect the information” the witness gave the government and the government, in turn, used.[19] The best way for the government to meet its burden is to show that the witness's testimony did not change from similar testimony provided before being exposed to the defendant's compelled testimony. The prosecution can also meet its burden by showing that either:

  • The witness's testimony does not overlap with the content of the immunized or compelled statements.

  • The witness has an independent and untainted source for the witness testimony.[20]

TYPES OF IMMUNITY

When the government accepts, or a court finds legitimate, a person's assertion of the privilege against self-incrimination, to overcome the privilege and obtain the individual's testimony the government may:

  • Petition a court for an order of immunity that compels the witness to testify,

  • Provide informal immunity by letter or written agreement if the witness agrees to testify or be interviewed under those circumstances.

The prosecution typically seeks or provides immunity if it is confident the witness did not participate significantly in a crime. Prosecutors usually hold witnesses who receive immunity to a higher level of openness and honesty.

Statutory Immunity

Statutory immunity is ordered by the court because the witness is being compelled to testify. If a person invokes or asserts that they will invoke their right against self-incrimination in the grand jury or trial court proceedings, the government may petition the court for an order granting immunity and compelling the witness to testify. The government, however, cannot obtain statutory immunity to compel a person to sit for an interview. Statutory immunity provides someone with derivative use immunity. The witness cannot refuse to answer based on the privilege because there is no longer a threat of incrimination. Contrary to informal immunity, if a witness is granted statutory immunity, the witness has no obligation to cooperate with the government's investigation.

Letter or Informal Immunity

If a witness agrees to testify or sit for an interview, if provided immunity, the prosecutor can provide informal derivative use immunity by letter or written agreement. Letter immunity cannot overcome an individual's privilege against self-incrimination. Thus, a person cannot be compelled to testify in return for mere letter immunity. There is no requirement that the prosecutor obtains a court order to grant letter immunity because the witness is not being compelled to testify. This is because the witness has agreed to testify pursuant to an agreement with the government.

IMMUNITY FOR DEFENSE WITNESSES

No Supreme Court decision or statute has authorized the court to grant immunity to a defense witness or request the government seek immunity for a defense witness. Courts usually hold that the power to grant or seek immunity rests solely with the government and not the courts. While a court cannot grant immunity, if the defendant shows the government's immunity decision or treatment of defense witnesses violated the defendant's due process rights, the court can dismiss the charges if the government refuses to provide immunity.[21] A limited number of courts have held that a court can force the government to choose between either not immunizing its witnesses or immunizing both its witnesses and the defense's witnesses where:

  • The government discriminated against its use of immunity;

  • A defense witness's testimony would be material, exculpatory, and not cumulative;

  • The defense witness's testimony is not obtainable from any other source.

CONTEMPT

If a witness refuses to comply with an order to testify, a court may impose civil contempt and/or criminal contempt.[22] However, the court must exercise the least possible power to compel a witness to testify. Accordingly, a court may determine whether civil or criminal penalties are necessary to achieve compliance.

A civil contempt order may include incarceration until:

  • The witness provides testimony,

  • The grand jury term expires,

  • Court proceedings conclude,

  • The witness has been confined for 18 months.

Criminal contempt proceedings can only be initiated by grand juries or district courts. A court may summarily punish a person who refuses to testify in the court's presence. However, a court cannot impose a sentence of imprisonment and a fine for a criminal contempt conviction.[23]

CONTACT AN EXPERIENCED FEDERAL CRIMES DEFENSE LAWYER

If you have been served with a grand jury subpoena or you are under investigation for a federal crime, then contact our office today. It's imperative that an experienced federal criminal defense attorney intervenes at the earliest stage of the case. Call us today to schedule a free confidential consultation.

Legal Footnotes

[1] 18 U.S.C. § 6003; see also United States v. Horton, 452 F.Supp. 472, 475 (C.D. Cal. 1978), aff'd, 629 F.2d 577 (9th Cir. 1980).

[2] United States v. Cappetto, 502 F.2d 1351, 1359 (7th Cir. 1974).

[3] In re Daley, 549 F.2d 469, 477 (7th Cir. 1977).

[4] Patrick v. United States, 524 F.2d 1109, 1120-21 (7th Cir. 1975).

[5] Childs v. McCord, 420 F.Supp. 428, 433 (D. Md. 1976), aff'd sub nom.

[6] See United States v. U.S. Coin & Currency, 401 U.S. 715, 722 (1971).

[7] See In re Grand Jury Proceedings, 443 F.Supp. 1273, 1280 (D.S.D. 1978).

[8] Ullmann v. United States, 350 U.S. 422, 430-31 (1956).

[9] United States v. Allen, 864 F.3d 63, 67 (2d Cir. 2017).

[10] See United States v. Mariani, 851 F.2d 595, 600 (2d Cir. 1988).

[11] United States v. Palumbo, 897 F.2d 245, 251 (7th Cir. 1990).

[12] United States v. Pelletier, 898 F.2d 297, 298 (2d Cir. 1990).

[13] United States v. Hossbach, 518 F.Supp. 759, 770-73 (E.D. Pa. 1980).

[14] United States v. Gregory, 730 F.2d 692, 698 (11th Cir. 1984); United States v. Beery, 678 F.2d 856, 863 (10th Cir. 1982).

[15] See 18 U.S.C. § 6002).

[16] United States v. Doe, 819 F.2d 11, 11-12 (1st Cir. 1987).

[17] Kastigar, 406 U.S. at 461-62; United States v. Williams, 809 F.2d 1072, 1082 (5th Cir.), on reh'g, 828 F.2d 1 (5th Cir. 1987).

[18] United States v. North I, 910 F.2d 843, 860 (D.C. Cir.) opinion withdrawn and superseded in part on reh'g, 920 F.2d 940 (D.C. Cir. 1990).

[19] See United States v. Poindexter, 951 F.2d 369, 373 (D.C. Cir. 1991).

[20] United States v. Slough, 36 F.Supp.3d 37, 49 (D.D.C. 2014).

[21] See United States v. Quinn, 728 F.3d 243, 253-54, 259-63, 265 (3d Cir. 2013).

[22] A district court may impose both civil and criminal contempt for the same misconduct. (Yates v. United States, 355 U.S. 66, 74 (1957); United States v. Ryan, 810 F.2d 650, 653-55 (7th Cir. 1987).

[23] See United States v. Holmes, 822 F.2d 481, 486 (5th Cir. 1987).

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