Opinion
00 CR. 447 (DLC).
December 14, 2000.
Office of the United States Attorney, Southern District of New York, NY, For Plaintiff.
Barry H. Berke, Henry E. Mazurek, KRAMER LEVIN NAFTALIS FRANKEL LLP, New York, New York, For Defendant.
OPINION ORDER
Defendant Esteban Gonzalez ("Gonzalez") was charged in four counts with crimes stemming from the stabbing of Eladio Padilla ("Padilla") on February 28, 1999, while both men were housed among a score of other inmates in a dormitory cell at the Metropolitan Correctional Center ("MCC"). At trial, Gonzalez sought to elicit the testimony of Kwok Ching Yu ("Yu"), a cellmate, who Gonzalez believes witnessed the stabbing. Based on the representation of Yu's counsel, Irving Cohen, that Yu would assert his Fifth Amendment privilege and refuse to testify regarding those events, Gonzalez asked that the Court conduct an inquiry into the validity of Yu's assertion of the privilege, and, if that assertion were deemed valid, require the Government to afford Yu use immunity regarding his testimony. Having denied the defendant's application, the Court sets forth its reasoning below.
At the time the Court ruled, the Government's witnesses had testified but the defendant had not yet given his version of the events. In his opening statement, defense counsel had argued that Padilla, having threatened to kill Gonzalez, came at Gonzalez in a rage, swinging sticks and other objects, and that Padilla acted in self defense, using a sharp implement that belonged to Padilla.
BACKGROUND
In an initial interview conducted by prison investigators following the February 28, 1999 altercation between Gonzalez and Padilla, Yu apparently stated that he had slept through the altercation and seen nothing. Several other inmates gave similar statements. In a later interview, Yu told the Government that he had witnessed portions of the incident. The Government submitted a report of that interview to the Court on an ex parte basis.Gonzalez expected that if required to testify, Yu would testify that he witnessed the altercation and that Padilla was the aggressor. Because it would conflict with Yu's initial statement to prison investigators that he was asleep during the incident and witnessed nothing, Gonzalez assumed that Yu's assertion of the privilege is based on his fear of prosecution for making a false statement to a federal officer.
DISCUSSION
A. Basis for Assertion of Privilege
Courts have recognized that claims of privilege under
the Fifth Amendment should be carefully scrutinized since allowing a witness not to testify compromises the Sixth Amendment right of an accused to have compulsory process for obtaining witnesses in his favor.United States v. Rodriguez, 706 F.2d 31, 36 (2d Cir. 1983) (internal quotation omitted). See also United States v. Lumpkin, 192 F.3d 280, 285 (2d Cir. 1999). "[O]nce a witness has claimed the privilege, the district court must determine whether that claim is valid in relation to the subject area about which inquiry is sought." Rodriguez, 706 F.2d at 37 (citing Hoffman v. United States, 341 U.S. 479, 486 (1951)). See also United States v. Edgerton, 734 F.2d 913, 919 (2d Cir. 1984). Looking at all of the circumstances of the case, "the court must determine whether the witness is confronted with substantial and 'real,' and not merely trifling or imaginary hazards of incrimination."Rodriguez, 706 F.2d at 36 (internal quotation omitted).
The privilege "extends not only to disclosures that in and of themselves would support a conviction, but also to those that might 'furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.'" Lumpkin, 192 F.3d at 286 (quoting Hoffman, 341 U.S. at 486). If the testimony sought meets this test, the witness need not show that the Government has any intention to prosecute him. Indeed, the Court should not "speculate whether the witness will in fact be prosecuted." Edgerton, 734 F.2d at 921 (internal quotation omitted). See also United States v. Miranti, 253 F.2d 135, 139 (2d Cir. 1958).
On November 30, 2000, and with the consent of the parties, this Court conducted an ex parte examination of Mr. Cohen. The record of that examination has been placed under seal. It is Mr. Cohen's judgment that Yu's invocation of his privilege against self-incrimination is proper. Based on that representation, the defendant, in consultation with his attorney, has waived his right to examine Yu in Court in order to test the validity of his assertion of the privilege. Based on the record in this case, including Mr. Cohen's representation, I find that Yu's assertion of his Fifth Amendment right not to testify is valid.
B. Use Immunity
A court may require the Government to provide immunity to a witness if (1) the Government, "through its own overreaching, has forced the witness to invoke the Fifth Amendment or, . . . the government has engaged in discriminatory grants of immunity to gain a tactical advantage"; (2) the testimony sought would be material, exculpatory and not cumulative; and (3) the defendant has no other source for this evidence. United States v. Diaz, 176 F.3d 52, 115 (2d Cir. 1999). See also United States v. Williams, 205 F.3d 23, 29 (2d Cir. 2000). Here, Gonzalez has failed to meet at least the first prong of this test.
In arguing that the Government engaged in overreaching, Gonzalez relies on the Government's interview of Yu this year out of the presence of Yu's counsel. That interview took place on July 26, 2000, and was attended by one of the prosecutors conducting this trial and the FBI case agent for this prosecution. The Government questioned Yu about what he had observed on the night of the stabbing, but did not advise Yu's attorney, Mr. Cohen, of the interview. The Government began the interview by advising Yu that it was not questioning him about his pending case and did not wish to hear anything about that case. It also advised him that he could have his attorney present and did not have to speak with the Government. When Yu indicated later in the interview that he did not wish to speak further without his attorney being present, the interview stopped.
Prior to the July 26 Government interview, Yu had already discussed the stabbing incident with the attorney first appointed to represent him in his own criminal case. In that criminal case, which is unrelated to the Gonzalez prosecution, Yu originally was represented by Alex Eisemann. Coincidentally, Mr. Eisemann also originally represented Gonzalez in this case. He was relieved as counsel in both cases because of the joint representation. In a June 11, 2000 letter, the Government informed the Judge presiding over Yu's case that Mr. Eisemann intended to seek Yu's testimony on behalf of Gonzalez, and that Yu's interests could be adverse to Gonzalez' as a result. On June 29, 2000, Eisemann was removed as Yu's counsel due to that apparent conflict, and Mr. Cohen was appointed in his place. By Opinion and Order of June 12, 2000, this Court had already removed Mr. Eisemann as Gonzalez' counsel for similar reasons.
In the June 11, 2000 letter, the Government noted that even if Mr. Eisemann were replaced as counsel for Gonzalez, the Court needed to determine whether he could continue to represent Yu, since Yu had to make several decisions regarding the Gonzalez prosecution, including whether to waive his right against self-incrimination and "regarding meetings with . . . the Government."
Gonzalez argues that the Government "overreached" by interviewing Yu without Mr. Cohen being present. Gonzalez has withdrawn his argument that the Government threatened or suggested to Yu that he would be prosecuted if he testified as a defense witness at the Gonzalez trial. The Government has denied making any such threat or suggestion. The Government also has denied, and Gonzalez does not suggest, that it has granted immunity to any inmate witness, including any inmate who has given an account of the incident that conflicts with his initial statement — given to MCC staff on the day of the incident — that he witnessed nothing. Accordingly, the act of interviewing Yu without his counsel present is the sole evidence of prosecutorial overreaching advanced by Gonzalez.
The Government has candidly admitted, however, that it has no present intention of prosecuting its trial witnesses for their statements to the MCC officials immediately following the attack to the effect that they were sleeping and had seen nothing.
That act is insufficient to support an imposition of immunity here. In United States v. Pinto, 850 F.2d 927 (2d Cir. 1988), on which Gonzalez relies, the Court found that the Government's interview of a defense witness out of the presence of his counsel did not constitute prosecutorial overreaching sufficient to support imposition of immunity. See id. at 932-36. Moreover, although the Court in Pinto found the Government's behavior to be improper, in that case the witness was known to be represented by counsel in connection with the very same events about which he was questioned. Indeed, the Government itself had recommended that counsel be appointed for that very purpose. See also United States v. Ming He, 94 F.3d 782, 790-91 (2d Cir. 1996). That is not the case here, where Cohen's representation of Yu was in connection with an entirely unrelated matter. This is not the "extraordinary circumstance" that merits a court's compelling the Government to provide immunity. Pinto, 850 F.2d at 935. Moreover, during the interview of Yu, the Government had no reason to believe that Yu himself was anything other than a potential witness to the altercation in the MCC. Then and now, there is no reason to believe that "the interview [was] likely to elicit information that might lead to indictment" of Yu for his participation in the stabbing. Pinto, 850 F.2d at 934. Finally, the Government advised Yu of his right to have counsel present, and the interview ended when Yu stated that he did not wish to continue without counsel present.
Nevertheless, by failing to advise Mr. Cohen of the interview, the Government left itself vulnerable to a charge that it had engaged in conduct that creates "an appearance of impropriety."See Williams, 205 F.3d at 52. The Government contends that it was necessary to interview Yu to learn if Yu did in fact possess information exculpating Gonzalez which should cause it to reconsider proceeding with its prosecution. This is a laudable goal. But, as the Government was well aware, Yu had already discussed his recollection of the February 28, 1999 stabbing with his prior counsel, Mr. Eisemann. The Government had already argued to Judge Kaplan that it might be necessary to give Yu unconflicted counsel to advise him on whether, among other things, he should agree to an interview with the Government about the stabbing. Even though Yu's attorney had been appointed to represent Yu in connection with entirely unrelated criminal charges, in these circumstances it would have been prudent for the Government to advise Mr. Cohen in advance of its intention to interview Yu and to give him an opportunity to attend the interview.
There is no evidence that the Assistant United States Attorney who interviewed Yu had seen this letter, which was sent by the Assistant United States Attorney in charge of Yu's prosecution.
While it is unnecessary to reach the remaining prongs of the test described in Diaz, it should be noted that it was far from clear that Yu could provide "material, exculpatory, noncumulative" evidence. The evidence submitted to the Court regarding the Yu interview does not address the principal issue in dispute, that is, who began the fight. The Government's witnesses described at trial an unprovoked attack by Gonzalez on Padilla that began with Gonzalez stabbing Padilla in the back. After the initial stabbing, the two men fought, with Gonzalez holding the knife and Padilla using a chair, stick and other objects. During his testimony, Gonzalez denied the initial stabbing, but described the ensuing fight in very similar terms. He admitted that he was the only one in possession of the knife during the fight. He characterized his actions throughout, however, as defensive. Given the gaps in Yu's observations, Yu does not provide Gonzalez with assistance on the most critical issue in dispute: whether Gonzalez began the altercation by stabbing Padilla in the back without warning. Regarding the ensuing fight, testimony consistent with Yu's statement to the Government would be largely cumulative of the evidence adduced at trial. Finally, because generalized characterizations by any witness of the participants' actions during the ensuing brawl, even if admissible, would be far less important than a precise description of what the witness saw and heard, any opinions contained in Yu's statement would be of little probative value.
On behalf of Yu, Mr. Cohen has objected to the Court's examining an unsolicited statement submitted by Mr. Eisemann during this trial which apparently describes what Mr. Eisemann had learned from Yu during his representation of him. The document has been sealed and has not been examined by the Court. Mr. Cohen has conveyed, however, that the information contained in that document has already been provided by Yu to the Government.
Yu may not be able to testify as to what was said. It is not clear that he understands Spanish or English. Each witness at trial described a series of threats and statements by Gonzalez and Padilla that shed light on the defendant's intentions.
CONCLUSION
For the reasons stated, the Court held that Yu's invocation of his Fifth Amendment privilege was valid, and that the Government would not be required to provide use immunity to Yu.