The opinion of the court was delivered by: Hughes, U.S.M.J.
REPORT AND RECOMMENDATION
This matter having been referred by Judge Mary L. Cooper on Defendant William Driver's ("Driver") Motion to Dismiss the Charges Against Defendant Driver Unless the United States Government Grants Use Immunity to Co-Defendant Debra Harrison ("Harrison") or Alternatively, to Grant Judicial Use Immunity to Co-Defendant Harrison [Dkt. entry no. 187] . Defendant Michael B. Wheeler ("Wheeler") joins Driver's Motion [Dkt. entry no. 196] in so far as he is seeking a Judicial Order Granting Use Immunity to Co-Defendant Harrison. The United States opposed Driver's Motion on August 22, 2008, [Dkt. entry no. 195] and opposed Wheeler's Motion on August 28, 2008. [Dkt. entry no. 198]. Both Driver and Wheeler file their Motions because Harrison's counsel advised that if Harrison is called as a witness by the defense, she will assert her Fifth Amendment right against self-incrimination. The Court heard oral argument on August 28, 2008. The Court recommends that Driver's Motion joined by Wheeler be denied on the grounds that both defendants have failed to meet their burden of showing clearly exculpatory evidence essential to a fair defense.
I. BACKGROUND AND PROCEDURAL HISTORY
Defendants Driver and Wheeler are two of five defendants named in a twenty-five count indictment returned in the District of New Jersey on February 1, 2007. (See Sealed Indictment, [dkt. entry no. 18].) Driver is charged with four counts of money laundering in violation of 18 U.S.C. §1956(a)(B)(2)(ii) and Wheeler is charged with conspiracy to commit offense against the United States in violation of 18U.S.C. §371 and conspiracy to commit money laundering in violation of 18 U.S.C. §1956(h). Id. The factual basis for the charges against Driver is the alleged four nine thousand dollar payments to a home improvement contractor for improvements to Harrison's home with cash allegedly stolen from the Coalition Provisional Authority ("CPA"). Id. at paras. 171-76. The factual basis for the charges against Wheeler in part is that Wheeler accepted things of value from contractor Philip Bloom in return for providing favorable official action regarding PA contract, that Wheeler took part with Harrison and others in a scheme to defraud the Department of Defense and CPA of money, property and their right to the honest and faithful services of Wheeler and others and that Wheeler and Harrison smuggled approximately $330,000 in stolen CPA funds into the United States from Iraq and evaded reporting requirements by failing to declare the money upon entry. Id. at paras. 151, 157, 162, 170.
On July 28, 2008, the Court accepted Harrison's plea of guilty to Count Eight of the indictment, which charged her with honest services wire fraud under 18 U.S.C. §1343 and 1346. As part of her plea colloquy, Harrison answered a series of questions about her conduct in Iraq and the United States, including but not limited to questions on the topic of her participation in structuring the payments to the home contractor. (See Def. Driver's Br., Ex. A, relevant six pages of Harrison plea transcript.)
On August 14, 2008, Driver filed a motion asking the Court to dismiss the charges against him if the government did not agree to provide use immunity to Harrison or alternatively, to grant judicial use immunity. [Dkt. entry no. 187]. Driver argues that Harrison's testimony "is not only relevant to the money laundering charges against Driver, it is exculpatory and should be presented to the jury." (Def. Driver's Br. at 3.) On August 22, 2008, the United States opposed Driver's Motion. [Dkt. entry no. 195]. On August 25, 2008, Wheeler joined Driver's motion to the extent that it seeks a grant of judicial use immunity for witness Harrison [Dkt. entry no. 196] because Wheeler "believes that Harrison possesses exculpatory information regarding his involvement in the bribery, wire fraud, theft and smuggling scheme." (Def. Wheeler's Br. at 3.)On August 28, 2008, the United States opposed Wheeler's Motion. [Dkt. entry no. 197].
There exist two instances in which due process requires that a defense witness be guaranteed prosecutorial immunity. Government of the Virgin Islands v. Smith, 615 F.2d 964, 968, 974 (3d Cir. 1980). "First, in cases where the prosecution's decision to refuse to grant immunity is made with the deliberate intention of distorting the factfinding process, the court could order the government to provide statutory immunity to the witness." United States v. Santtini, 963 F.2d 585, 597 (3d Cir. 1992) (citing Smith, 615 F.2d at 968). In Santtini, theCourt "stressed that this avenue of relief would be foreclosed absent some showing of 'distortion' or prosecutorial misconduct." Santtini, 963 F.2d at 598. If the government does not grant statutory immunity to a deserving witness, a judgment of acquittal may be entered in the defendant's favor. United States v. Herman, 589 F.2d 1191, 1213 (3d Cir. 1978) cert. denied 441 U.S. 913 (1979).
The second instance in which due process requires that a defense witness be guaranteed prosecutorial immunity was raised by the Herman Court, where the Court stated,
"But while we has no power to order a remedial grant of statutory immunity to a defense witness absent a showing of unconstitutional abuse, a case might be made that the court has inherent authority to effectuate the defendant's compulsory process by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense." Id. at 1204.
This type of grant of immunization of a defense witness' testimony is limited to those situations where:
1. Immunity is properly sought in the District Court;
2. The defense witness is available to testify;
3. The proffered testimony is clearly ...