CHARLES E. PATTERSON, PETITIONER V. UNITED STATES OF AMERICA No. 89-7659 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. H1-H7) is unpublished, but the decision is noted at 898 F.2d 149 (Table). JURISDICTION The judgment of the court of appeals was entered on March 1, 1990. The petition for a writ of certiorari was filed on May 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court erred in refusing to order immunity for a prospective defense witness. 2. Whether the district court erred in refusing to grant a recess so that petitioner could seek the testimony of a witness who had already advised the court that she would invoke her Fifth Amendment privilege and refuse to testify. 3. Whether the district court erred in striking an expert witness's testimony about petitioner's susceptibility to entrapment. STATEMENT After a jury trial in the United States District Court for the Southern District of West Virginia, petitioner was convicted on one count of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to a term of 14 months' imprisonment, to be followed by four years of supervised release. The court of appeals affirmed. 1. The evidence at trial showed that Charles Yancy agreed to assist the Charleston Police Department in an undercover narcotics investigation. On April 27, 1988, police officers outfitted Yancy with a recording device and gave him $50 to purchase narcotics. Yancy drove to downtown Charleston, where he met Martha Mitchell. Yancy told Mitchell that he wanted to buy cocaine. Mitchell walked into a bar and returned with petitioner. Yancy told petitioner that he wanted to buy a half gram of cocaine for $50. Petitioner stated that he could get the cocaine. Petitioner, Yancy, and Mitchell then drove to an apartment complex. At the complex, petitioner entered an apartment and returned 15 minutes later with a small package of crack cocaine, which he sold to Yancy. As the trio was driving away from the apartment, petitioner told Yancy to meet him the next day, when he could sell Yancy an ounce of cocaine. Pet. App. H3-H4; Gov't C.A. Br. 2-3. 2. a. At the start of the trial, petitioner told the district court that one of his witnesses -- Martha Mitchell -- would invoke her Fifth Amendment privilege and refuse to testify. He therefore asked the district court to grant Mitchell "unconditional limited immunity." Tr. 38. The court explained that it "doesn't grant immunity, the Court merely memorializes immunities, if any have been granted by the Department of Justice and the United States Attorney's office." Tr. 39. Petitioner then advised the court that he would like to call Mitchell as a witness outside the presence of the jury to see if "she might be willing to talk at least partially about the circumstances." Tr. 43. Petitioner made no proffer regarding the substance of Mitchell's testimony. During a break in the defense case, petitioner told the court that Mitchell was present but that she would invoke her Fifth Amendment privilege if called to testify. Tr. 161-162. When petitioner assured the court that he did not need Mitchell or her attorney, who also was present, the district court excused them. Tr. 162. The next day, petitioner asked the court if he could advise the jury during closing argument that Mitchell would have invoked her Fifth Amendment privilege had she been called to testify. The district court ruled that he could not make such an argument unless Mitchell had in fact done so. Tr. 193-194. The district court then denied petitioner's request for a 20-minute recess to find Mitchell: You knew when we finished last evening that we were going to finish the testimony. If you have a witness ready, you may put the witness on the stand, okay? I also gave you an opportunity last evening to put this matter on the record with Mrs. Wright, the attorney for the apparently absent witness, Martha Mitchell. Tr. 194. b. During the trial, Robert Smith, a psychologist, testified for petitioner as an expert in substance abuse and its effect on individuals. Tr. 147. Dr. Smith had met with petitioner for one hour on the day before trial. Based on this interview, Smith testified that, in his opinion, petitioner was more easily induced into committing a crime because of his drug habit. Tr. 158. The district court warned petitioner that it was admitting Smith's testimony subject to petitioner's establishing a foundation that he was in fact addicted to drugs. Tr. 155. Petitioner testified in his own behalf and admitted that he had distributed cocaine to Yancy. He explained that Mitchell had approached him in the bar and asked him if he could get some cocaine. Petitioner responded, "maybe." He then left the bar with Mitchell, got into Yancy's car, used Yancy's money to purchase the crack cocaine, kept half of the cocaine for himself, and gave the remainder to Yancy. Tr. 165-171, 185-187. Petitioner admitted that he was not reluctant about making the purchase and that he was not coerced in any way. Tr. 191. Petitioner also testified that he began using cocaine in California in 1983 and that he moved back to West Virginia in 1985 to get away from the drug. Tr. 174-175. The district court thereafter struck Smith's opinion testimony because the requisite foundation had not been laid: (Petitioner) says he's not induced. He said it was his own free choice and * * * there is no platform testimony that would support the opinion of the psychologist counselor * * * and for that reason I strike it as irrelevant. Tr. 199. 3. The court of appeals affirmed. Pet. App. H1-H7. In the court of appeals, petitioner contended that the district court erred in refusing to order immunity for Mitchell. The court noted that the immunity statutes, 18 U.S.C. 6002 and 6003, "do() not obligate the government to grant immunity to a defendant's witnesses, but provide() considerable discretion to the prosecutor, who is permitted to request immunity in his judgment when it is necessary to the public interest." Pet. App. H4-H5 (internal quotation marks and citations omitted). Where the prosecutor refuses to request immunity, the defendant is denied a fair trial only where "the defendant makes a decisive showing of prosecutorial misconduct and the evidence supplied would be clearly material, exculpatory and unavailable from any other source." Id. at H5. Here, since the record showed that the government did nothing to discourage Mitchell from testifying and that "Mitchell's testimony would have done nothing more than possibly corroborate his own," id. at H6, the court rejected petitioner's contention. The court of appeals also rejected petitioner's claim that the district court itself should have immunized Mitchell. The court pointed out that the immunity statutes "place() the responsibility of initiating immunity on the United States Attorney, who can act only after receiving the approval from the Attorney General, his deputy or an assistant." Pet. App. H6. Moreover, "(t)he decision to grant immunity is within the sole discretion of the prosecution and the district court has no authority to confer immunity sua sponte." Ibid. Petitioner also contended that the district court erred in striking Smith's expert testimony as irrelevant and in refusing to grant a recess to find Mitchell. The court of appeals noted that "(e)ach of these rulings was within the discretion of the trial court, and, after reviewing the record, we conclude that the court did not abuse that discretion." Pet. App. H7. ARGUMENT 1. Petitioner contends (Pet. 11-19) that the district court's refusal to order immunity for Mitchell violated the Due Process Clause. The federal immunity statute, 18 U.S.C. 6001 et seq., vests the power to grant immunity in the Executive Branch, not the Judiciary. In discussing the immunity statute, this Court has explained that the authority to immunize witnesses "is peculiarly an executive one, and only the Attorney General or a designated officer of the Department of Justice has authority to grant use immunity." Pillsbury Co. v. Conboy, 459 U.S. 248, 261 (1983). Strong separation-of-powers concerns counsel against the assertion of judicial power to make immunity decisions for the government. Not surprisingly, the great majority of the courts of appeals -- like the panel below -- have correctly held that judges may not immunize defense witnesses without a request from the prosecution. /1/ As petitioner points out (Pet. 15-18), the Third Circuit alone has held that immunity may be granted on the court's initiative, where it is necessary to protect the defendant's efforts to mount his defense. That court, however, has narrowly limited the scope of that rule: (I)mmunity 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. Government of the Virgin Islands v. Smith, 615 F.2d 964, 972 (1980). /2/ Even assuming Smith retains vitality in light of Pillsbury Co. v. Conboy, supra, petitioner would not be entitled to immunity for Mitchell under the Smith approach. First, petitioner made no proffer suggesting that Mitchell's testimony would have been exculpatory. Second, because the police recorded all of Yancy's conversations with Mitchell and petitioner, Mitchell's testimony would most likely have been cumulative. Third, because petitioner himself admitted that Mitchell did nothing more than ask him once in the bar whether he could get cocaine, there is no basis for surmising that Mitchell's testimony could have supported an entrapment defense. For those reasons, this case does not present an occasion to address whatever conflict may remain between the approach adopted by the Third Circuit and that followed by other courts of appeals. /3/ 2. Petitioner next contends (Pet. 20-24) that the district court erred in refusing to grant a recess so that he could secure Mitchell's testimony. The record belies that contention. Mitchell was present in court while petitioner was presenting his defense and he was free to call her. He did not do so, however, apparently because Mitchell's attorney stated that Mitchell would invoke her Fifth Amendment privilege and refuse to testify. With petitioner's consent, the district court then permitted Mitchell and her attorney to leave. It was not until the next day that petitioner requested a recess so that he could bring Mitchell back to court and have her invoke the Fifth Amendment privilege in the jury's presence. In these circumstances, the district court acted well within its discretion in refusing to permit this avoidable and unnecessary delay. See United States v. Cuevas, 847 F.2d 1417, 1428-1429 (9th Cir. 1988), cert. denied, 109 S.Ct. 1122 (1989); United States v. McKinney, 822 F.2d 946, 951 (10th Cir. 1987); cf. United States v. Rojas-Contreras, 474 U.S. 231, 236 (1985) (continuances are committed to the discretion of the district court). 3. Finally, petitioner contends (Pet. 24-26) that the district court erred in striking Smith's expert testimony about his susceptibility to entrapment. Smith based his testimony that petitioner was easily induced into committing a crime on his understanding that petitioner was a drug addict. But there was no testimony in the record to support that premise. Petitioner testified only that he had used cocaine in California and that he returned to West Virginia in 1985 to get away from the drug. There was no testimony by any witness that petitioner was an addict or a heavy drug user at the time of the offense. Moreover, petitioner admitted at trial that he was not coerced and that he readily procured the cocaine for Yancy and Mitchell. In these circumstances, the district court properly struck Smith's testimony. See Fed. R. Evid. 104(b) and 402; United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 823 (9th Cir.) (expert testimony on defendant's susceptibility to crime properly excluded where defendant had not established an adequate foundation), cert. denied, 471 U.S. 1139 (1985). /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General PATTY MERKAMP STEMLER Attorney OCTOBER 1990 /1/ See, e.g., United States v. Hooks, 848 F.2d 785, 803 (7th Cir. 1988); Mattheson v. King, 751 F.2d 1432, 1443 (5th Cir. 1985), cert. dismissed, 475 U.S. 1138 (1986); United States v. Pennell, 737 F.2d 521, 527 (6th Cir. 1984), cert. denied, 469 U.S. 1158 (1985); Autry v. Estelle, 706 F.2d 1394, 1401-1402 (5th Cir. 1983), cert. denied, 465 U.S. 1085 (1984); United States v. Heffington, 682 F.2d 1075, 1080-1081 (5th Cir. 1982), cert. denied, 459 U.S. 1108 (1983); United States v. Karas, 624 F.2d 500, 505 (4th Cir. 1980), cert. denied, 449 U.S. 1078 (1981); United States v. Turkish, 623 F.2d 769, 771-779 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981); United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977); United States v. Caldwell, 543 F.2d 1333, 1356 n.115 (D.C. Cir. 1974), cert. denied, 423 U.S. 1087 (1976); United States v. Alessio, 528 F.2d 1079, 1080-1082 (9th Cir.), cert. denied, 426 U.S. 948 (1976); see also United States v. Capozzi, 883 F.2d 608, 613 (8th Cir. 1989), cert. denied, 110 S.Ct. 1947 (1990); United States v. Eagle Hawk, 815 F.2d 1213, 1217 (8th Cir. 1987), cert. denied, 484 U.S. 1012 (1988). /2/ The Third Circuit made clear that the trial court should not grant immunity where "the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative, or if it is found to relate only to the credibility of the government's witnesses." 615 F.2d at 972. /3/ To the extent petitioner contends that the government's refusal to immunize Mitchell violated the Due Process Clause, that contention fails for similar reasons. Several courts of appeals have suggested -- but not held -- that, in extreme circumstances, the government's refusal to immunize a defense witness might violate the Due Process Clause. See United States v. Angiulo, 897 F.2d 1169, 1190-1192 (1st Cir.), cert. denied, No. 90-46 (Oct. 1, 1990); United States v. Capozzi, 883 F.2d at 613-614; United States v. Turkish, 623 F.2d at 771-779. Here, the record falls far short of the sort of circumstances that conceivably could have denied petitioner a fair trial, since he made no proffer suggesting that Mitchell's testimony would have been exculpatory and admitted on the stand that he freely chose to participate in the cocaine transaction. /4/ For those reasons as well, petitioner's reliance (Pet. 24-26) on United States v. Hill, 655 F.2d 512 (3d Cir. 1981), and United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977), is misplaced. In each of those decisions, the court of appeals reversed the trial court's exclusion of proffered expert testimony where the defense had established an adequate evidentiary foundation. United States v. Hill, 655 F.2d at 516; United States v. Staggs, 553 F.2d at 1076. Nor does petitioner's citation (Pet. 25) to United States v. Benveniste, 564 F.2d 335 (9th Cir. 1977), support his claim. There, the Ninth Circuit upheld the trial court's exclusion of expert testimony about the defendant's susceptibility on the ground that such evidence "would tend to confuse the jury and not shed any light on the issue." Id. at 339.