“Immunity Doesn’t Make You Immune”

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

Norm was sleep deprived and frustrated. It seemed like every night, the neighbors were partying and all that thumping bass kept him up. Delirious and with a brain that felt like mush, Norm had to figure out a way to get some peace and quiet. After stroking his beard and staring at the wall for a few hours, the light bulb in his otherwise dim-witted mind lit up. He knew that the neighbors sold pirated DVDs at their video store and he thought that if they were in prison, he could finally get some rest.

He called the feds, who were delighted to receive the tip. They wanted to interview Norm, who demanded immunity before saying anything. They offered Norm immunity if he would testify against the neighbors. The exhausted Norm forgot what he learned in law school and signed the papers, thinking that immunity would make him untouchable. He spilled his guts, telling the agents everything about how easy it was to buy pirated DVDs for $5 apiece at the video store. Norm stated that those meddling neighbors were using their ill-gotten gains to buy range rovers and throw obnoxious parties all night, evidence that would later be useful in the prosecution of the neighbors.

Norm did not know that the store was already under surveillance. After Norm’s statement, the feds broke into it and arrested Norm’s neighbors. Reviewing the store’s receipts, they found out that Norm himself was a frequent purchaser, buying up tons of kung fu movies to pass the sleepless nights. Thinking he was completely sheltered, Norm had told his story before the grand jury, which issued an indictment against the neighbors. Investigation of the store revealed that the pirated DVD operation was extensive and made millions of dollars, so law enforcement went after some of the major purchasers as well. Norm was naturally quite shocked when he too was indicted a few weeks later. He called the agent who had seemed so nice before. “I thought I had immunity, jerk!”

Immunity agreements are contracts between government and witness. The witness gives information and testimony and the government promises not to prosecute. But it’s not that simple. These contracts typically take one of two forms, and although they offer some protection, neither really make the witness “immune” as the word is commonly understood. In a “use or derivative use immunity” arrangement, the government may not use the witness’ testimony, or evidence gained (“derived”) from it, against that witness. “Transactional immunity” is much stronger, preventing the government from prosecuting the witness for any crimes (“transactions”) related to the testimony. Norm hastily agreed to use and derivative use immunity and got into trouble because the feds did not “use” his statements against him. Because of the prior surveillance and the receipts, Norm was guilty based on legitimate evidence sources not related to his testimony. If he had lawyered-up and bargained for transactional immunity, Norm may have been protected.

Witnesses who testify after a grant of immunity need to understand that they are not necessarily in the clear. Immunity agreements require the witness to swear that they are being truthful, and any lie from Norm would have breached the immunity contract. This commonly occurs when a witness testifies against a defendant in return for a grant of immunity, and then switches his story in court. Perjury breaches the immunity contract and exposes a lying witness to liability. On a practical level, this is a frustrating waste of time for a prosecutor, who will quickly argue that the witness is no longer sheltered. Also, witnesses must be aware that Florida and the United States are separate sovereigns and immunity agreements with the federal government do not bar prosecutions brought by a state, or vice versa. Lastly, a witness granted immunity may not “plead the fifth” at trial or before the grand jury, even if only protected by use and derivative use immunity. Kastigar v. United States, 406 U.S. 441 (1972). This means that law enforcement might gain knowledge from an immune witness’ self-incriminating testimony and then find evidence unrelated to the testimony itself to later prosecute that supposedly immune witness.

There are many ways that statements made under a grant of immunity can come back to haunt a witness. Before providing information to the government in return for immunity, it is critical to consult an experienced defense attorney who can explain any potential consequences, and your rights.