Opinion
BENJAMIN B. WAGNER, United States Attorney TODD A. PICKLES, ROGER YANG, Assistant United States Attorneys, Sacramento, CA. Attorneys for Plaintiff, United States of America.
UNITED STATES'S MOTION FOR ORDER PURSUANT TO 18 U.S.C. §§ 6002-6003 GRANTING IMMUNITY AND REQUIRING TESTIMONY - HOWARD WING DECLARATION OF TODD A. PICKLES RE: MOTION FOR ORDER PURSUANT TO 18 U.S.C. §§ 6002-6003 GRANTING IMMUNITY AND REQUIRING TESTIMONY - HOWARD WING
WILLIAM B. SHUBB, District Judge.
The United States of America hereby moves this Honorable Court for an order compelling Howard Wing to testify and produce evidence pursuant to the provisions of Title 18, United States Code, Section 6001, et. seq., and respectfully represents as follows:
1. Pursuant to Rule 15 of the Federal Rules of Criminal Procedure, Howard Wing has been subpoenaed to testify at deposition to preserve his testimony for trial in this matter by the United States;
2. Through his attorney Benjamin Galloway of the Federal Public Defender's Office, Mr. Wing has informed the United States that he refuses to testify and/or allow his testimony to be admitted at trial with respect to his knowledge regarding conduct by the defendants in this case and in related cases concerning loan applications submitted to lending institutions with respect to the charged fraud scheme in the above-referenced cases, as well as his own involvement in the fraud scheme, by invoking his constitutional privilege against self-incrimination;
3. In the judgment of Benjamin B. Wagner, United States Attorney, the testimony of Howard Wing is necessary to the public interest; and
4. Kenneth A. Blanco, a Deputy Assistant Attorney General, has approved this application for an order instructing Howard Wing to testify pursuant to 18 U.S.C. § 6003 and 28 C.F.R. § 0.175(a).
WHEREFORE, pursuant to the provisions of 18 U.S.C. §§ 6001, et seq., the United States of America requests that the Court order Howard Wing to give testimony and produce all evidence relating to all matters within his knowledge about which he may be asked to testify regarding his knowledge regarding conduct by the defendants and defendants in related cases concerning loan applications submitted to lending institutions with respect to the charged fraud scheme in the above-referenced case, as well as his own involvement in the fraud scheme,
In support of this motion, the United States of America submits herewith the attached Memorandum of Points and Authorities and the Declaration of Assistant U.S. Attorney Todd A. Pickles.
I. I. POINTS AND AUTHORITIES
The immunity provisions of Title 18, United States Code, Section 6002, et seq., provide in pertinent part as follows:
Section 6002
Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to-
(1) a court or grand jury of the United States,
* * *
and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
Section 6003
In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title.
(b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any designated Assistant Attorney General or Deputy Assistant Attorney General, request an order under subsection (a) of this section when in his judgment-
(1) the testimony or other information from such individual may be necessary to the public interest; and
(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.
18 U.S.C. § 6203. The aforesaid statute is valid and constitutional, and orders issued pursuant thereto are likewise valid. United States v. Kastigar, 406 U.S. 441 (1972).
DECLARATION OF TODD A. PICKLES RE: MOTION FOR ORDER PURSUANT TO 18 U.S.C §§6002-6003 GRANTING IMMUNITY AND REQUESTING TESTIMONY - HOWARD WING
I, Todd A. Pickles, declare as follows:
1. I am an Assistant United States Attorney for the Eastern District of California.
2. I have advised United States Attorney Benjamin B. Wagner, or a person delegated with his authority, that Howard Wing will be called to testify at trial in this matter.
3. I have presented the facts of the trial proceedings to Mr. Wagner or his designee, and in his judgment it is likely that Howard Wing may refuse to testify at trial, including any deposition conducted under Rule 15 of the Federal Rules of Criminal Procedure, and his testimony is necessary to the public interest.
4. An authorized Deputy Assistant Attorney General of the United States has approved the Application for an Order instructing witness Howard Wing to testify under the provisions of 18 U.S.C. § 6003 and 28 C.F.R. § 0.175(a). A copy of the letter from Kenneth A. Blanco, Deputy Assistant Attorney General, Criminal Division, Department of Justice, expressing said approval is attached hereto as Exhibit "A."
I declare under penalty of perjury that the foregoing is true and correct. Executed this September 21, 2015, at Sacramento, California.
ORDER PURSUANT TO 18 U.S.C. §§ 6002-6003 GRANTING IMMUNITY AND REQUESTING TESTIMONY - HOWARD WING
NOW, THEREFORE, IT IS ORDERED pursuant to 18 U.S.C. § 6002 that Howard Wing give testimony or provide other information which he refuses to give or to provide information with respect his knowledge regarding conduct by the defendant in this case and defendants in related cases concerning loan applications submitted to lending institutions with respect to the charged fraud scheme in the above-referenced case, as well as his own involvement in the fraud scheme, in this case on the basis of his privilege against self-incrimination as to all matters about which he may be asked to testify in this trial or at any deposition conducted under Rule 15 of the Federal Rules of Criminal Procedure.
IT IS FURTHER ORDERED that no testimony or other information compelled under this order, or any information directly or indirectly derived from such testimony or other information, shall be used against Howard Wing in any criminal case, except that Howard Wing shall not be exempted by this order from prosecution for perjury, giving a false statement pursuant to this order, or otherwise failing to comply with this order, and that immunity granted herein is co-extensive with 18 U.S.C. § 6002.
IT IS SO ORDERED.
EXHIBIT A