David Wildstein wants immunity before he testifies or gives any information to a prosecutor or legislative body. Smart man. Or at least his attorney is. Wildstein is also smart enough to make sure he has the goods on all the others so that he doesn't take the fall.
So lets talk immunity.
There are two ways immunity works. One, the guy who is about to get hammered, by and through their attorney, goes to the prosecutor and says, "hey, I got stuff you might want to know, but I ain't talkin' unless you promise not to charge me with a crime." The second, is where the prosecutor has information that indicates that the subject has information that will lead to other information that is bigger and better. In the latter, the prosecutor is going to compel the person give up the information. The second is normally through the grand jury process.
There are also different types of immunity. I have referenced some of this below, but generally it has to do with what a person is immunized from, and how the evidence they provide can be used vis-à-vis the informant if at all.
The purpose of this diary isn't really to do in-depth analysis or to predict what will happen with Wildstein and his cohorts. It is solely to give information as to what the USA Manual says about the subject. If I have missed anything that is pertinent, it has been purely by mistake and by all means include it in any comments.
From the US Attorney's Manual:
9-23.100The general criteria for granting immunity are:
This chapter contains the Department's policy and procedures for seeking "use immunity" under Title 18 U.S.C. §§ 6001-6005. Sections 6001 to 6005 provide a mechanism by which the government may apply to the court for an order granting a witness limited immunity in all judicial, administrative, and congressional proceedings when the witness asserts his or her privilege against self-incrimination under the Fifth Amendment. (Section 6003 covers court and grand jury proceedings, Section 6004 covers administrative hearings, and Section 6005 covers congressional proceedings.)
See the Criminal Resource Manual at 716 through 719, for an overview of the differences between the various types of immunity, including use immunity, derivative use immunity, transactional immunity and informal immunity.
9-23.210On compelling testimony:
Decision to Request Immunity—The Public Interest
Section 6003(b) of Title 18, United States Code, authorizes a United States Attorney to request immunity when, in his/her judgment, the testimony or other information that is expected to be obtained from the witness "may be necessary to the public interest." Some of the factors that should be weighed in making this judgment include:
A.The importance of the investigation or prosecution to effective enforcement of the criminal laws;
B.The value of the person's testimony or information to the investigation or prosecution;
C.The likelihood of prompt and full compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance;
D.The person's relative culpability in connection with the offense or offenses being investigated or prosecuted, and his or her criminal history;
E.The possibility of successfully prosecuting the person prior to compelling his or her testimony;
F.The likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order.
These factors are not intended to be all-inclusive or to require a particular decision in a particular case. They are, however, representative of the kinds of factors that should be considered when deciding whether to seek immunity.
Granting Immunity to Compel Testimony on Behalf of a DefendantEmphasis min.
As a matter of policy, 18 U.S.C. § 6002 will not be used to compel the production of testimony or other information on behalf of a defendant except in extraordinary circumstances where the defendant plainly would be deprived of a fair trial without such testimony or other information. This policy is not intended to preclude compelling a defense witness to testify if the prosecutor believes that to do so is necessary to a successful prosecution.
I didn't include the section that states that as a policy they prefer to get a plea to at least something before granting immunity but that is their policy. They will waive this if the information is good enough.
Types of immunity: From the Criminal Resource Manual
Use Immunity, Transactional Immunity, Informal Immunity, Derivative UseSection 719 of the Criminal Resource Manual:
Congress enacted the use immunity provisions in 1970, replacing a myriad of specialized immunity statutes enacted over the years for specialized purposes, such as the Atomic Energy Act, the Cotton Research and Promotion Act, the Connally Hot Oil Act, and the Merchant Marine Act. The new statutory scheme (located at 18 U.S.C. § 6001-6005) provides a mechanism by which the government may apply to the court for an order granting a witness limited immunity in all judicial, administrative, and congressional proceedings. Section 6003 covers court and grand jury proceedings, § 6004 covers administrative hearings, and § 6005 covers congressional proceedings.
See Chapter 8 of the Federal Grand Jury Practice Manual for a more in depth discussion of immunity, Emphasis mine.
Statutory immunity, also known as formal immunity, should be distinguished from informal immunity. The latter term, often referred to as "pocket immunity" or "letter immunity," is immunity conferred by agreement with the witness. For example, the government and a cooperating defendant or witness might enter into a plea agreement or a non-prosecution agreement if the defendant or witness agrees to cooperate. Testimony given under informal immunity is not compelled testimony, but is testimony pursuant to an agreement and thus voluntary. The principles of contract law apply in determining the scope of informal immunity. United States v. Plummer, 941 F.2d 799, 802 (9th Cir. 1991); United States v. Britt, 917 F.2d 353 (8th Cir. 1990), cert. denied, 498 U.S. 1090; United States v. Camp, 72 F.3d 759 (9th Cir. 1996) [replacing 58 F.3d 491 (9th Cir. 1996)]. Grants of informal immunity that do not expressly prohibit the government's derivative use of the witness's testimony will be construed to prohibit such derivative use. Plummer, supra. But a grant of informal immunity that expressly provides for derivative use of the testimony by the government will be upheld. United States v. Lyons, 670 F.2d 77, 80 (7th Cir. 1982), cert. denied, 457 U.S. 1136.Federal Grand Jury Practice Manual
An important difference between statutory/formal immunity and informal immunity is that the latter is not binding upon the States. This follows from the fact that the local prosecutor representing the State is normally not a party to the agreement between the witness and the Federal prosecutor, and thus cannot be contractually bound by the Federal prosecutor's agreements.
9-11.154780 of the Criminal Resource manual gives guidance on compelling testimony at trial vs. in a grand jury:
Advance Assertions of an Intention to Claim the Fifth Amendment Privilege Against Compulsory Self-Incrimination
A question frequently faced by Federal prosecutors is how to respond to an assertion by a prospective grand jury witness that if called to testify the witness will refuse to testify on Fifth Amendment grounds. If a "target" of the investigation and his or her attorney state in a writing, signed by both, that the "target" will refuse to testify on Fifth Amendment grounds, the witness ordinarily should be excused from testifying unless the grand jury and the United States Attorney agree to insist on the appearance. In determining the desirability of insisting on the appearance of such a person, consideration should be given to the factors which justified the subpoena in the first place, i.e., the importance of the testimony or other information sought, its unavailability from other sources, and the applicability of the Fifth Amendment privilege to the likely areas of inquiry.
Some argue that unless the prosecutor is prepared to seek an order pursuant to 18 U.S.C. § 6003, the witness should be excused from testifying. However, such a broad rule would be improper and make it too convenient for witnesses to avoid testifying truthfully to their knowledge of relevant facts. Moreover, once compelled to appear, the witness may be willing and able to answer some or all of the grand jury's questions without incriminating himself or herself.
Direct Contempt—Witness's Refusal to Obey Court Order to Testify at Trial Versus Witness's Refusal to Obey Court Order to Testify Before a Grand JuryOther sections of the manual might also be of interest to people. They are:
A witness who refuses to testify at trial after having been granted immunity from prosecution may be summarily convicted of direct criminal contempt under Rule 42(a), Federal Rules of Criminal Procedure. "Rule 42(a) was never intended to be limited to situations where a witness uses scurrilous language, or threatens or creates overt physical disorder and thereby disrupts a trial. All that is necessary is that the judge certify that he "saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.'" See United States v. Wilson, 421 U.S. 309, 315 (1975); Howell v. Jones, 516 F.2d 53 (5th Cir.), cert. denied, 424 U.S. 916 (1976).
By contrast, a witness who refuses to testify before a grand jury on the ground of the privilege against self-incrimination after having been granted immunity from prosecution and ordered to testify by a court, may only be prosecuted for criminal contempt according to the procedures applicable to indirect contempts under Rule 42(b) of the Federal Rules of Criminal Procedure. The witness may not be brought before the court, asked the same questions as were asked by the grand jury and then found in summary criminal contempt for refusing to answer these questions. See Harris v. United States, 382 U.S. 162 (1965); United States v. DiMauro, 441 F.2d 428 (8th Cir. 1971). According to the majority view, when a witness is to be held in civil, as opposed to criminal, contempt for refusing to testify or to produce evidence before a grand jury, the procedures of Rule 42(b) must likewise be followed. In re Vigil, 524 F.2d 202, 218-219, cert. dismissed, 425 U.S. 927 (1976); In re Mintzer, 511 F.2d 471, 472 n. 1 (1st Cir. 1974); In re Sadin, 509 F.2d 1252 (2d Cir. 1975); United States v. Hawkins, 501 F.2d 1029, 1031 (9th Cir. 1974), cert. denied, 419 U.S. 1079 (1974).
9-85.000 PROTECTION OF GOVERNMENT INTEGRITY
9-110.000 ORGANIZED CRIME AND RACKETEERING