UNITED STATES' MEMORANDUM REGARDING WITNESS IMMUNITY Facts A defense witness, Joshua McLellan, appeared in Court yesterday and after requesting appointment of counsel advised the Court, through counsel, David Ruoff, that if called to testify in this trial he would assert his 5th Amendment right against self incrimination and would refuse to testify. Defense The Cr. No. 07-189-01-GZS

counsel requested the Court compel Mr. McLellan to testify. Court ordered the parties to brief the issue.

Upon inquiry the government has learned the following about the putative witness, Joshua McLellan.1 Mr. McLellan is serving

a sentence at the Strafford County House of Correction and he has numerous charges pending, one of which is a State of New Hampshire, Class A Misdemeanor. That Complaint charges that Mr.

At the chambers conference this morning government counsel gave a complete copy of all information concerning the witness that the government had obtained since the hearing yesterday. That information includes numerous documents that set forth pending criminal charges as well as numerous reports of disciplinary violations.


McLellan did, in December of 2007: knowingly give or cause to be given false information to Officer Mark Nadeau, who Joshua McLellan knew to be a uniformed police officer for the Milton Police Department, with the purpose to induce Officer Nadeau to believe that a domestic disturbance involving the discharge of a firearm was in progress at 39 Grandview Road in the Town of Milton, New Hampshire. The undersigned, upon receiving the information concerning Mr. McLellan’s pending criminal charges, including the above quoted charge, inquired of his Attorney, David Ruoff, as to whether Mr. McLellan would invoke his 5th Amendment right against self incrimination and refuse to testify if the government were to inquire of him in any manner concerning that pending charge. Attorney Ruoff advised that if such inquiry were made his client would refuse to testify. The government submits that if the witness were to testify for the defense, pursuant to Federal Rule of Evidence 608(b) the Court should allow inquiry by the government on cross examination concerning that specific alleged instance of conduct. Although Rule 608(b) generally does not permit inquiry

into specific instances of conduct to attack the credibility of the witness, the Rule includes specific exceptions. One such

exception is that the Rule specifically states that specific instances of conduct may be inquired into on cross examination Page 2 of 5

“in the discretion of the court, if probative of truthfulness or untruthfulness ... .” Fed. R. Crim. P. 608(b).

Here, if the witness testifies, his credibility would clearly be in issue. Although the defense has been vague, the

government assumes the witness would attempt in some fashion to attack the credibility of government witness Anthony Dorothy. If that is the case, whether he is being truthful would be one of the only issues for cross examination. Consequently the

government would seek to inquire of the above referenced pending charge of making a false statement. The Law of Compelled Immunity For purposes of this Memorandum the government assumes that defense counsel is asking the Court to order the government to immunize Mr. McLellan. Defense counsel states, without factual

elaboration, that the testimony of Mr. McLellan is “necessary and essential”. ¶3. Defendant’s Memorandum, docket # 355 at p.1,

Consequently it appears that defense counsel is asserting

what has been know as the “effective defense” theory in support of his request. Until 1997 the First Circuit had acknowledged that there were two possible theories under which a Court could intervene in the issue of witness immunity. In United States v. Pratt, 5

Page 3 of

913, F2.d 982, 991 (1st Cir. 1990) the Court of Appeals stated: [u]nder the effective defense theory, a court has power to immunize witnesses whose testimony is essential to an effective defense. Similarly, under the prosecutorial misconduct theory, the courts have authority to require the government to grant immunity to witnesses if the government has deliberately attempted to distort the fact finding process. (citations omitted). However, in 1997 the Court of Appeals clearly held that the effective defense theory is not good law in this Circuit. States v Castro, 129, F.3d 226, 232 (1st Cir. 1997). the Court stated: [w]e need not dwell on the late, unlamented effective defense theory. That theory purports to hold that if a witness can offer clearly exculpatory testimony indispensable to the defense and the government has no convincing reason to withhold immunity, the trial court may bestow use immunity on the witness. (Citations omitted). Recognizing that the power to direct witness immunity customarily is reserved to the Executive Branch, see 18 U.S.C. § 6003(b), we recently interred the effective defense theory. See Curtis v. Duval, 124 F.3d 1, 9 (1st Cir. 1997); United States v. Mackey, 117 F.3d 24, 28 (1st Cir. 1997). It is no longer good law in this circuit and the appellant cannot profit by it. The only other theory under which the defendant could seek the Court’s intervention would be to allege that his due process rights have been violated. In Castro the Court noted that: United


[i]t is common ground that the “due process clause [constrains] the prosecutor to a certain extent in her decision to grant or not to grant immunity.” Curtis, 124 Page 4 of 5

F.3d at 10 (quoting Angiulo, 897 F.2d at 1191). However this constraint operates on the margins of the prosecutor’s discretion and takes on practical significance only when the prosecutor deliberately aspires to distort the fact finding process. . . . Castro, 129 F.3d at 232. Here, there has been no prosecutorial misconduct, nor any allegation of such. The government knew nothing of the putative If asked to

defense witness until he appeared in Court yesterday.

immunize the witness, given the fact that there are multiple state criminal charges pending, any such immunity request would

necessarily, and appropriately, be denied so as not to interfere with an ongoing prosecution in another forum. April 2, 2008 Respectfully submitted, THOMAS P. COLANTUONO United States Attorney By: /s/ Arnold H. Huftalen Arnold H. Huftalen Assistant U.S. Attorney N.H. Bar Assoc. No. 1215 53 Pleasant Street, 4th Floor Concord, New Hampshire 03301 (603) 225-1552 CERTIFICATION OF SERVICE I hereby certify that service is being made upon all counsel of record, via ecf filing notice, and that copies will be hand delivered today. /s/ Arnold H. Huftalen Arnold H. Huftalen Assistant U.S. Attorney Page 5 of 5