JORGE ALONSO GRANADO, PETITIONER V. UNITED STATES OF AMERICA No. 90-6898 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 Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-3) is not reported, but is noted at 917 F.2d 28 (Table). JURISDICTION The judgment of the court of appeals was entered October 22, 1990. The petition for a writ of certiorari was filed January 22, 1991. /1/ The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court was required to grant judicial immunity to a defense witness. 2. Whether the supervised release provisions of the Anti-Drug Abuse Act of 1986 became effective immediately upon enactment. STATEMENT After a jury trial in the United States District Court for the Southern District of California, petitioner was convicted of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846 (Count 1); possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Counts 2, 6 and 8); and unlawful use of a communication facility, in violation of 21 U.S.C. 843(b) (Counts 3 and 5). For each of the conspiracy and substantive drug offenses, petitioner was sentenced to concurrent terms of five years' imprisonment, to be followed by a five year term of supervised release. Imposition of sentence on the communications-facility violations was suspended, and petitioner was placed on probation for five years. The court of appeals affirmed. 1. The circumstances of petitioner's offenses are described in the government's brief in the court of appeals. Gov't C.A. Br. 4-7. On June 26, 1987, a confidential informant introduced co-defendant Benjamin Garcia-Gaxiola (aka Benjamin Navarro) to DEA undercover agents Larry Sawyer and Diedre Mahon at Lydia's Cafe, in San Diego, California. When Garcia-Gaxiola entered the cafe, he was followed by petitioner, who sat at a nearby table during the ensuing drug negotiations. Agent Sawyer negotiated with Garcia-Gaxiola for the purchase of 25 grams of cocaine, with the informant providing Spanish-English translation. Garcia-Gaxiola then left with petitioner to retrieve the cocaine. Upon leaving the cafe, petitioner made a telephone call, then drove away with Garcia-Gaxiola, returning with him approximately 20 minutes later. When they reentered the cafe, petitioner sat beside Garcia-Gaxiola and acted as translator. Garcia-Gaxiola passed 25 grams of cocaine to agent Sawyer, who paid $1,000 for it. The parties agreed to meet again on June 29, 1987. Petitioner gave agent Sawyer a telephone-pager number at which he and Garcia-Gaxiola could be reached. Petitioner advised agent Sawyer to be careful with the cocaine. Gov't C.A. Br. 4-5. On June 29, agent Sawyer called the pager number given him by petitioner and petitioner returned the call to arrange a meeting for later that day at Lydia's Cafe. Neither petitioner nor Garcia-Gaxiola appeared for that meeting. Later that evening, agent Sawyer called the pager number and petitioner returned the call, explaining why he and Garcia-Gaxiola were unable to make the meeting earlier that day. Petitioner sought to arrange another meeting and told agent Sawyer that a shipment of cocaine, discussed at the previous June 26 meeting, had arrived. On July 1, agent Sawyer met with Garcia-Gaxiola and another co-defendant, Salvador Davalos, first at a shopping center and then at Garcia-Gaxiola's residence. At the time of the meeting, Garcia-Gaxiola explained that petitioner was absent because he was attending a concert in Mexico. At Garcia-Gaxiola's apartment, agent Sawyer purchased 75 grams of cocaine for $3,000. Gov't C.A. Br. 5-6. On July 7, 1987, agents Sawyer and Mahon met with petitioner and Garcia-Gaxiola at a restaurant in Bonita, California. Agent Sawyer negotiated with petitioner and Garcia-Gaxiola, with petitioner translating, for the purchase of one kilogram of cocaine for $23,000. Petitioner advised agent Sawyer that the transaction should occur the next day. On July 8, petitioner and agent Sawyer arranged by telephone to meet at 6:00 a.m. When petitioner and Garcia-Gaxiola met agent Sawyer that morning, petitioner handed Sawyer a representative sample of cocaine. Agent Sawyer stated that he was ready to purchase the cocaine. Agent Sawyer and Garcia-Gaxiola then walked to Sawyer's vehicle, where Sawyer showed the $23,000. Garcia-Gaxiola returned to petitioner's location and conversed with him in Spanish; petitioner thereupon left to get the kilogram of cocaine. Surveillance agents followed petitioner to his residence, where he stopped briefly before returning to agent Sawyer. Sawyer entered petitioner's vehicle and petitioner told him that the cocaine was on the floor, underneath petitioner's motorcycle helmet. Agent Sawyer retrieved the kilogram of cocaine from its hiding spot and arrested petitioner. Gov't C.A. Br. 6. After being advised of his Miranda rights, petitioner consented to speak with agent Sawyer. Petitioner confessed that the kilogram of cocaine came from his home and that additional drugs were there in his bedroom. Later, petitioner identified his source for the kilogram of cocaine as the same person who had provided him with the 25 grams sold to agent Sawyer on June 26. Petitioner declined to name that supplier, but provided agent Sawyer with the address of co-defendant Jose Rivera. With his consent, petitioner's residence was searched. That search disclosed another 178 grams of cocaine, a triple-beam scale, and the telephone pager petitioner had used to arrange meetings with agent Sawyer. Gov't C.A. Br. 6-7. 2. Prior to trial, co-defendant Garcia-Gaxiola entered a guilty plea pursuant to a plea agreement in which he agreed to testify if called by the government. See Tr. 249. At trial, however, the government decided not to require Garcia-Gaxiola's testimony. Counsel for petitioner sought to call Garcia-Gaxiola as a witness but counsel for Garcia-Gaxiola advised the court that, if called, he would claim his Fifth Amendment privilege. Petitioner then requested the district court to grant Garcia-Gaxiola judicial immunity for his testimony. Counsel for petitioner stated that his intention was to question Garcia-Gaxiola about all the circumstances of the case and his involvement with petitioner, in an effort to establish that petitioner's involvement in the criminal enterprise was minimal. Tr. 245-249. The district court denied petitioner's request for immunity. The court recognized that judicial immunity is "rarely, if ever, given" at a defendant's request. Tr. 250. Moreover, the court stated that, if such a grant of immunity were available, "I would certain consider it inappropriate in this case." Ibid. The court expressed concerned that such a grant of immunity would insulate Garcia-Gaxiola from future prosecution by the government. Tr. 251. The court also ruled that petitioner's proffer of the testimony he hoped to get from Garcia-Gaxiola was not sufficient to make out a duress or coercion defense, stating "I don't think that the evidence proposed would be that material." Ibid. The court also suggested that, if there was genuinely a basis for a coercion or duress defense, petitioner's own testimony would be the best evidence of that, although the court took care to recognize that there was no requirement for petitioner to testify. Ibid. The court also suggested that, on the basis of the evidence already before the jury, the defense could argue petitioner's minimal involvement in the hope that, although it would not be a defense, it might result in an acquittal. Tr. 251-252. 3. The court of appeals affirmed. It held that a "decision to seek immunity for a witness is a matter of government discretion, and a defendant's request for use immunity 'is beyond the power of the district court to grant.' United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.), cert. denied, 469 U.S. 1035 (1984)." Pet. App. 1-2. The court recognized an exception to this general rule that might apply in a case where "the prosecutor intentionally distorts the factfinding process by preventing that witness from giving relevant testimony," but ruled that the record in this case did not disclose any allegation or presence of prosecutorial misconduct. Id. at 2. The court of appeals also affirmed petitioner's sentence, rejecting his claim that the requirement for supervised release of the Anti-Drug Abuse Act of 1986 did not become effective until November 1, 1987, after petitioner's June and July 1987 offenses. The court followed its previous holding in United States v. Torres, 880 F.2d 113, 115 (9th Cir. 1989), cert. denied, 110 S.Ct. 873 (1990), that the supervised release provisions of the Act became effective upon enactment on October 27, 1986. ARGUMENT 1. Petitioner argues (Pet. 5-12) that district courts have authority to grant immunity to a witness at a defendant's request and seeks review of the court of appeals' contrary holding. The court of appeals, like the district court, correctly held that a judicial grant of immunity for a defense witness is not generally available and, even if such an authority existed, the circumstances of this case would not call for the grant of judicial immunity. The federal immunity statute, 18 U.S.C. 6003(b), vests the power to grant immunity in the Executive Branch rather than the Judiciary. This Court accordingly 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). See id. at 253-254. The corollary of this principle is that "(n)o court has authority to immunize a witness" (id. at 261; see id. at 262). Thus, it is clear that there is no statutory authority for a court to immunize a witness without a request from the government. Petitioner argues that the trial court has an inherent power under the Fifth Amendment to grant immunity to a witness to protect a defendant's right to present an effective defense. /2/ The courts of appeals overwhelmingly have taken the view expressed by the Ninth Circuit in this case that there is no such inherent judicial authority. 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); 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). Those courts have recognized that the power to grant immunity is of legislative origin and, in light of Congress's determination to grant that authority to the Executive Branch alone, these courts have acknowledged the separation-of-powers barrier to the exercise of such a power by the judiciary. See, e.g., Pennell, 737 F.2d at 527. Moreover, the courts have recognized that courts are not well suited to balance a defendant's need for a particular witness against the government's interest in future prosecution of the witness for crimes the immunity might allow him to disclose with impunity. See, e.g., Turkish, 623 F.2d at 775-777. Only the Third Circuit has found a limited judicial power to immunize a defense witness based on an effective-defense theory. See Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). That case required five criteria to be evaluated before such judicial immunity could be granted: (1) immunity must be properly sought in the district court; (2) the defense witness must be available to testify; (3) the testimony must be clearly exculpatory; (4) the testimony must be essential; and (5) there must be no strong governmental interest countervailing against a grant of immunity. 615 F.2d at 972. Even assuming there is such a judicial authority to grant immunity to a defense witness, those criteria were not met in this case. The Third Circuit has indicated that, before such a grant of immunity will be given, there must be "a probable certainty" that the expected testimony would "in itself exonerate" the defendant. United States v. Lowell, 649 F.2d 950, 965 (3d Cir. 1981) (emphasis in original). As the district court ruled in this case, the testimony of Garcia-Gaxiola would not have exonerated the defendant because, even as proffered by petitioner's counsel, it would not have been sufficient to make out a duress or coercion defense. Moreover, the information petitioner sought to elicit from Garcia-Gaxiola's testimony -- that petitioner's participation in the offenses was minimal -- was arguable by the defense from the testimony already before the jury. Finally, the government had not relinquished its interest in prosecuting Garcia-Gaxiola for other crimes he had committed. /3/ Because the facts in this case would not support a grant of immunity under even the Third Circuit's standards, there is no warrant for this Court to review in this case the question whether judicial immunity could ever be extended to a defense witness. 2. Petitioner's contention (Pet. 13-17) respecting the supervised release provisions of the Anti-Drug Abuse Act of 1986 has been rejected in Gozlon-Peretz v. United States, No. 89-7370 (Feb. 19, 1991), which held that the supervised release provisions apply to offenses committed on or after the October 27, 1986 date of enactment. The inclusion of supervised release in the sentence for petitioner's June and July 1987 offenses was, accordingly, correct, and does not warrant further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney FEBRUARY 1991 /1/ The 90-day period in which to file a petition for certiorari expired Sunday, January 20, 1991, which was followed by a federal holiday commemorating the birthday of Martin Luther King, Jr. /2/ Petitioner relies exclusively on an "effective defense" theory to argue in favor of immunity for his defense witness. Pet. 7 n.3. Petitioner specifically disclaims any reliance on a "prosecutorial misconduct" theory. Ibid. Some courts have ruled that prosecutorial misconduct which intimidates a defense witness into withholding his testimony may be a due process violation that justifies a court in requiring the government to elect between granting the witness immunity or facing a judgment of acquittal in favor of the defendant. See United States v. Pinto, 850 F.2d 927, 932-935 (2d Cir.), cert. denied, 488 U.S. 867 (1988); United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988); United States v. Lord, 711 F.2d 887, 891 (9th Cir. 1983). As the court of appeals noted, "(n)o prosecutorial misconduct is shown and none is alleged" in this case. Pet. App. 2. /3/ In this case, although the government entered into a plea agreement with Garcia-Gaxiola, it elected not to offer him immunity for his testimony, preserving instead its authority to prosecute him for other crimes he might have committed.