PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11

- 1733

_______________

UNITED STATES OF AMERICA

v.

KEENAN DANAN QUINN,

Appellant

_______________

On Appeal from the United States District Court

For the Eas tern District of Pennsylvania (D.C. Criminal Action No. 2

- 09

- cr

- 00720

- 002) District Judge: Honorable Petrese B. Tucker

_______________

Argued En Banc February 20, 2013

_______________

Before: McKEE, Chief Judge , SLOVITER, SCIRICA, RENDELL, AMBRO , FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, and ALDISERT, Circuit Judges2 (Opinion filed : August 14, 2013 )

Peter Goldberger, Esquire (Argued) Pamela A. Wilk, Esquire

50 Rittenhouse Place Ardmore, PA 19 003

Edward C. Meehan, Jr.

, Esquire Edward C. Meehan, Jr. & Associates

211 North 13 th Street, Suite 701 Philadelphia, PA 19107

Counsel for Appellant

Zane David Memeger , Esquire United States Attorney

Robert A. Zauzmer , Esquire (Argued)

Assistant United States Attorney

David L. Axelrod , Esquire Assistant United States Attorney Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

Counsel for Appellee

Ellen C. Brotman, Esquire Erin C. Dougherty, Esquire Montgomery, McC racken, Walker & Rhoads 123 South Broad Street, 28 th Floor Philadelphia, PA 191093 Jenny Carroll, Esquire Seton Hall University School of Law

One Newark Center Newark, NJ 07102

Amicus Curiae Counsel National Association of Criminal Defense Lawyers

___ ____________

OPINION OF THE COURT

_______________

AMBRO, Circuit Judge , with whom McKEE, Chief Judge

, SLOVITER, SCIRICA, RENDELL, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, and ALDISERT, Circuit Judges

, join.

K eenan Quinn appeals his jury conviction for aiding

and abetting codefendant Shawn Johnson in an armed bank robbery. Quinn ’s defense was that

, when he drove Johnson to National Penn Bank on the morning of the robbery

, he did not

know that Johnson intended to rob a bank teller at gunpoint

. Quinn hoped Johnson would testify on his behalf at trial, but

Johnson

— who was awaiting sentencing on the robbery charges

— invoked his Fifth Amendment protection against

self

- incrimination and refused to testify

. The Distr ict Court’s refusal of Quinn’s request to immunize Johnson so he could testify was, Quinn conten d s, an error, for without it he was

unable to rebut the Government ’ s accusations against him.

Quinn also alleges (though belatedly) prosecutorial

misconduct

. Specifically, h e asserts that the Government4 postponed Johnson’s sentencing until after Quinn’s trial to induce Johnson to invoke his Fifth Amendment privilege

.

We have recognized two situations in which a criminal

defendant may be entitled to have a defense witness receive immunity for his testimony . The first , grounded in prosecutorial misconduct, occu rs when the G overnment acts

“ with the deliberate intention of distorting the judicial fact finding process ” ( for example, by threatening a defense

wit ness )

. United States v. Herman , 589 F.2d 1191, 1204 (3d Cir. 1978) ; United States v. Morrison , 535 F.2d 223 (3d Cir. 1976). If prosecutorial misconduct occurs, the charges are dismissed unless the Government chooses to immunize the

witness at a new trial

.

We recognized a second situation in Gov ernmen t of

the Virgin Islands v. Smith , 615 F .2d 964 (3d Cir. 1980)

— even without evidence of prosecutorial misconduct, if the Government has refused to immunize the witness, the defendant is entitled to immunity f or his witness if the

testimonial evidence is “clearly exculpatory and essential to

the defense case and

. . . the government has no strong
interest in withholding use immunity.” Id. at 974. If those requirements ( detailed in a five

- part test ) are met

, t he D istrict

C ourt , as a new remedy accorded by Smith

, may on its own authority immunize th at witness to allow his testimony. Id. at
971

– 72.

No statute or Supreme Court ruling authorizes judicial grants of immunity for a defense witness (called for

con venience judicial use immunity)

. We are the only C ourt
of A ppeals that permits a trial court to immunize a defense witness. Every other C ourt of A ppeals has rejected this5 theory of judicial power. Today we do so as well, and overturn that part of Smith that r ecognizes judicial grants of immunity. Immunity is a statutory creation, bestowed by Congress on the Executive Branch through the federal witness immunity statute, 18 U.S.C. §§ 6002, 6003. The

decision to immunize a witness to obtain his testimony is a core prosecutorial function, as immunizing necessarily involves weighing the public’s need for testimony against the risk that immunity will inhibit later prose cution of criminal wrongdoing. We, in our corner of the J udiciary, now step away from our reach into this prosecut or ial realm.

T hough we abandon the judicial use immunity remedy

created in Smith , we retain its five

- part test for determining

whether the Government’s refusal to grant defense witness immunity denies a defendant due process. We created this

test in Smith because we feared our then

- existing test for prosecutorial misconduct

— acts taken with an intent to distort

the fact finding process

— did not ensure the defendant ’ s right
to pr esent a n effective and meaningful defense when the

prose cutor refused to immunize a witness

. Smith asks

whether the Government has refuse d to immunize a witness in order to keep clearly exculpatory and essential testimony from trial without a strong countervailing reason. If so, this is a type of prosecutoria l misconduct. Th e Smith test thus complements our existing prosecutorial misconduct test

. However, t he remedy for a due process violation , rather than intruding into the prosecutor’s province by judicial grant s of immunity, is a retrial where the Gover nment can cure the

distorti on caused by its wrongdoing or face dismissal of the relevant charges.6 Applying both the prosecutorial misconduct test that

exist ed before and after Smith ( acts tak en with the deliberate

intent to distort the factfinding pro cess ) and the complementary test we created in Smith ( exclusion of clearly exculpatory and essential testimony without a strong countervailing government interest ) to Quinn’s case, we hold that the Government did not engage in wrongdoing

. We

cannot conclu de it deliberately distorted the factfinding process by delaying Johnson’s sentencing. No evidence

demonstrates that the Government’s action had any effect on
Johnson’s decision to invoke his Fifth Amendment right not to incriminate himself by his testimo ny . Nor did the Government keep clearly exculpatory testimony from Q uinn’s trial by refusing to immunize Johnson. We thus

affirm.

I. Facts and Procedural History

A. The Bank Robbery

On the morning of August 27, 2009, Quinn met Johnson in a park ing lot at the Henderson Square shopping

mall in King of Prussia, Pennsylvania

. Quinn drove Johnson

across the parking lot to the National Penn Bank, located within the same shopping mall . While Johnson went into the bank, Quinn drove his car behind anot her store , and out of sight of those in the bank.

Once inside , Johnson handed a check to one of the

tellers. When s he requested identification from Johnson, the

teller realized Johnson had a gun pointed at he r and that a

note written on the back of th e check demanded money.

Johnson took several thousand dollars in cash from the teller7 and another bank employee transferring cash from the bank

v ault

. Un known to Johnson, the money he was given contained a global positioning system ( “ GPS ” ) tracker hidden

inside a bundle of bills . Johnson left the bank and returned to Quinn, who was still waiting in his car behind the nearby

store

, and the two drove away.

Quinn and Johnson went to a nearby townhouse owned by Quinn ’ s aunt

. There

, Johnson discovered the GPS tracker

and attempted to disable it by hitting it and submerging it in a bowl of water. He was unsuccessful. The Upper Merion Police Department used the tracker to locate the men at the townhouse, where both shortly surrendered. P olice recovered

a g un , the GPS tracker, and approximately $9,000 in cash

.

B. The Investigation and Indictment

Law enforcement officers interviewed both Quinn and

Johnson that afternoon. Quinn told the officers that he did

not know that Johnson planned to rob the Nati onal Penn

B ank. Johnson confessed to th e robbery

, as well as another bank robbery he had committed a month earlier and a fraudulent check cashing scheme

. He also told police that Quinn did not know he (Johnson) intended to rob National

Penn

. Beyond that statement

, Johnson “ was hesitant to talk about Quinn because Quinn is the brother of [Johnson’s]

fiancee

. ”

The United States Attorney for the Eastern District of Pennsylvania indic ted both Quinn and Johnson for armed

bank r obbery in violation of 18 U.S. C. § 2113(d)

, and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). J ohnson was also8 indicted for the earlier bank robbery and for being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1). Johnson pled guilty to all of the charges in May 2010

, and was awaiting sentencing in August 2010 when Quinn ’ s trial

was scheduled to begin.

C. Johnson’s Assertion of His Fifth Amendment Privilege

Prior to the start of Quinn’s trial

, hi s counsel

discovered that Johnson had been transferred to an out

- of

state prison. Quinn requested, and was granted, a

continuance so that Johnson could be returned to Pennsylvania and be available to testify.

In response to th is continuance, the Gover nment filed a motion to postpone Johnson ’ s sentencing. It apparently was concerned that Johnson, who had already pled guilty to the robbery, could shield Quinn from blame without any

additional cost to himself by testifying t hat Quinn was not

involved i n th at crime . By delaying Johnson ’ s sentencing until after his testimony, the Government contended it would retain the ability to present to the sentencing C ourt any testimony by Johnson it believed to be per ju rious

.

[I] f Keenan Quinn calls [Johnson] as a witness

and [Johnson] does not invoke his right against

self

- incrimination, it is possible, if not probable,

that [Johnson] will commit perjury. Thus

. . . his testimony will likely have a direct effect on his [sentencing] guidelines and the Court ’ s ana lysis under 18 U.S.C. § 3553(a).9 Johnson ’ s only response to the Government’s motion was to

inform the Court that if either “ the codefendant ’ s counsel or the government attempts to call Mr. Johnson as a witness at the trial of the codefendant, Mr. Johnso n will assert his right

to remain silent under the Fifth Amendment. ”

As his reply to the Government ’ s motion to delay and

Johnson ’ s statement that he intended to invoke the Fifth Amendment, Quinn filed a motion in limine asking the Court

to exercise it s authority under our holding in Smith to
immunize Johnson so he could testify on Quinn ’ s behalf without fear of prosecution or repercussion at sentencing

. The Government opposed the motion. Following briefing and oral argument, the Court denied Quinn ’ s request

, and declined to reconsider that ruling when Quinn renewed the

motion at the close of evidence.

D. Quinn’s Trial

At trial, the Government introduced phone records showing that Quinn called Johnson once the day before the robbery and five time s in a little over two hours on the morning of the robbery. Evidence of t hese calls , though deleted from the call history on Quinn ’ s phone before it was

taken by the police

, was revealed through the phone

compan y ’s documentation

. The Government also pres ented testimony from two of Quinn ’ s former cellmates, Anthony

Bennett and Nicholas Mason

. Bennett testified of

conversations with Quinn whereby the latter had planned a

crime in which he acted as the driver and hoped to beat the charges because his codefe ndant would “ take all of the charges

. ” Mason testified that Quinn admitted that he and a

codefendant planned a bank robbery where “ [ Quinn ] stayed10 parked at a separate location so he would not be linked to the

crime. ”

Quinn testified in his own defense

. He told the jury

that he called Johnson once on the morning of the robbery to make plans to meet for breakfast

. He claimed that he began

to drive Johnson to his aunt ’ s house , where they intended to spend the morning, when J ohnson directed him to pull in
front of the bank’s entrance . As he got out of the car,

Johnson told Quinn to wait behind a nearby s tore

. Quinn

stated that he believed Johnson was going to cash a fraudulent check at the bank, something Johnson had done before, but

did not know that Joh nson w as going to rob the bank at gunpoint.

Johnson did no t testify . H is statement to p olice that Quinn was not aware of the planned robbery was excluded as hearsay.

After a four

- day trial, t he jury found Quinn guilty of aiding and abetting a bank r obbery and carrying a firearm in

relation to a crime of violence. His sentence was 147

months ’ imprisonment and monetary penalties

.

E. This Appeal

This appeal followed. Quinn argues that the District Court erred by not exercising its authority under Smith to
immunize Johnson ’s testimony, thus denying Quinn the opportunity to present an effective defense. He also claims for the first time that the prosecution ’ s request to postpone
Johnson ’ s sentencing until after Quinn ’ s trial was intended to

induce J ohnson to invoke his Fifth Amendment privilege , a11 deliberate distortion of the factfinding process and thus an act

of prosecutorial misconduct

. As a remedy, Quinn contends his conviction should be vacated and the charges dismissed

unless Johnson is given immunity to testify at a retrial.

In response to Quinn ’ s appeal, the Government questioned our unique jurisprudence in this area. We sua sponte elected to hear this case en banc to “ reconsider the

. . . theory of judicial immunity ” recognized in Smit h

. The parties filed supplemental briefs

, and we heard argument en banc

.

II

. Judicial Use Immunity

A. Our Holding in Smith

In Smith

, three defendants were charged with assault and robbery of a man named Phipps. The Government ’ s case centered on Phip ps ’ identification of the defendants as his

assailants. D uring the investigation following the assault, however, a man named Sanchez told police that he and

several others

— none of whom was among the defendants

— were responsible for the crime

. Smith , 615 F .2d at 966

– 67.

Defendants called Sanchez as a witness at their trial,

but he refused to testify on the basis of his Fifth Amendment privilege against self

- incrimination. Because he was a juvenile at the time of the offense, Sanchez was subject to the

ex clusive jurisdiction of the Virgin Island s A ttorney General,

who offered t o grant immunity to Sanchez if, as a prosecutorial courtesy

, the United States Attorney prosecuting

the case consented. Id. at 967. When the U.S. Attorney

refused to consent , t he t rial proceeded without Sanchez ’ s12 testimony or h is hearsay statements to police

, and all three

defendants were convicted. Id.

C iting our opinion in Morrison , 535 F.2d 223

, we held

that if the Government ha d refused immunity “ with the

deliberate intention of distorting the factfinding process, then the district court should enter a judgmen t of acquittal as to

defendants

. . . unless the government consents to grant statutory use immunity to [the witness]. ” Smith , 615 F.2d at
969. Our C ourt in Smith calle d this “ statutory immunity, ” id.

, though it is more commonly referred to as the prosecutoria l misconduct theory

. While rarely the basis of a retrial order,

th is theory provides a valuable safeguard against prosecutorial overzealousness infring ing on the f air trial

ensured to a criminal defendant

.

Smith went further and held that the trial court could

itself “ grant judicial immunity to the witness ” if necessary to

“ vindicate the defendant ’ s const itutional right to a fair trial. ”

Id. at 974

. We held th at court

- granted immunity could be

used to ensure that the defendant was able to present an
effective defense if the Government inexplicably refused to

immunize a defense witness with exculpatory and essential testimony

. We first considered this “ effectiv e defense ” theory in United States v. Herman , 589 F.2d 1191 (3d Cir. 1978) , but did not establish the test and remedy until two years later in Smith

. 1 We refer to this power as “judicial use

1 The idea of immunizing a witness as necess ary to secure the defendant’s due process right is often traced to a footnote in

then

- Judge Warren Burger’s opinion in Earl v. United States

, 361 F.2d 531, 534 n.1 (D.C. Cir. 1966). The theory that a defendant could have a due process right to witness tes timony13 immunity” because it involves a court confer ring immunity

withou t a request from the Government.

Smith recognized that the judicial grant of immunity

intruded on the Government ’ s statutory authority to immunize

witnesses and prosecutorial discretion to prioritize

enforcement of the laws

. Thus we held that “ o pportu nities for judicial use of this immunit y power must be clearly limited. ”

Smith , 615 F.2d at 972. W e created a five

- pa rt test

— witness

i mmunity could be granted only if “ [1] properly sought in the

district court; [2] the defense witness [is] available to t estify; [3] the proffered testimony [is] clearly exculpatory; [4] the testimony [is] essential; and [5] there [ are ] no strong governmental interests which countervail against a grant of immunity. ” Id. These factors balance the Government’s

discretion in prosecutorial decisions and the defendant’s right to present a meaningful defense.

B. Rejection of Judicial Use Immunity

As noted, w e are the only Court of Appeals that has recognized judicial use immunity for witnesses

. United

also gained traction in academic literature. See, e.g. , Donald Koblitz, Note, “The Public Has a Claim to Every Man’s Evidence”: The Defendant’s Constitutional Right to Witness Immunity , 30 Stan. L. Rev. 1211 (1978); Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense

Witnesses , 91 Harv. L. Rev. 1266 (1978); Helen M. McCue,
Note, Separation of Powers and Defense Witness Immunity

, 66 Geo. L.J. 51 (1977); Barbara A. Reeves, Note, A Re

Examination of Defense Witness Immunity: A New U se for Kastigar , 10 Harv. J. on Legis. 74 (1972).14 States v. Serrano , 40 6 F.3d 1208, 1217 (10th Cir. 2005) ( “ Every oth er Circuit, save the Third, has

. . . held a district court does not have the inherent authority to grant a defense witness use immunity. ” ). O ther C ourts of Appeals have adopted the prosecutorial misconduct th eory, and evaluate

whether the Government may be required to immunize a witness if necessary to protect the defendant’s right to present

an effective defense ; but none authorize s a district court to grant immunity on its own authority. S ee , e.g. , Curtis v

. Duval , 124 F.3d 1 (1st Cir. 1997) ; United States v. Turkish

, 623 F.2d 769, 772 (2d Cir. 1980) ; United States v.

Moussaoui , 382 F.3d 453 (4th Cir. 2004) ; United States v.

Thevis , 665 F.2d 616 (5th Cir. Unit B 1982)

, superseded on other grounds by Fed. R. Evid. 804(b)(6) ; United States v. Talley , 164 F.3d 989 (6th Cir. 1999) ; United States v.

Herrera

- Medina , 853 F.2d 564 (7th Cir. 1988) ; United States v. Bowling

, 239 F.3d 973 (8th Cir. 2001); United States v.

Westerdahl , 945 F.2d 1083 (9th Cir. 1991) ; Serra no , 406 F.3d

at 1217

– 18; United States v. DiBernardo , 880 F.2d 1216 (11th Cir. 1989) ; United States v. Perkins , 138 F.3d 421 (D.C. Cir. 1998)

. They have cited concerns of judicial competency to weigh immunity decisions and the Executive Branch ’ s sole

auth ority to immunize under the federal immunity statute, 18 U.S.C. § § 6002 , 6003

. See, e.g.

, United States v. Capozzi

, 883 F.2d 608, 614 (8th Cir. 1989) (“Every court of appeals which has considered the question has rejected the Third
Circuit’s Smith holding as being a violation of the doctrine of separation of powers.”). J udicial use immunity has also been questioned by members of our Court. United States v.
Bazzano , 712 F.2d 826, 851 (3d Cir. 1983) ( en banc ) (Adams

, J.

, with Hunter and Becker, JJ., dissen ting) ( “ Smith may have expanded judicial power too far. ” )

.15 It is in this context that we revisit that aspect of

Smith ’s holding whereby courts have the inherent authority to

immunize a defense witness.

C. Reconsidering Judicial Use Immunity

The F ifth Amendment guarantees that “ [n]o person

shall

. . . be deprived of life, liberty, or property, without due process of law. ” U.S. Const. amend. V. The Sixth Amendment guarantees a criminal defendant ’ s right “ to have compulsory process for obtaining wi tnesses in his favor. ” Id.

amend. VI. Fundamentally

, “ t he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. ” Crane v

. Kentucky , 476 U.S. 683, 690 (1986) (internal quotation marks omitted) ; Chambers v.

Mis sissippi , 410 U.S. 284, 294 (1973) ( “ The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State ’ s accusations. ” )

.

The Smith Court based its judicial immunity remedy

on the conc lusion that the Fifth Amendment’s Due Process

Clause includes a right to present an effective defense. Although it cited the Sixth Amendment’s right to compulsory process, that alone does not entitle a defendant to request immunity for his witnesses. Uni ted States v. Valenzuela

Bernal , 458 U.S. 858, 867 (1982) (“[T]he Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses.”); Washington v. Texas , 388 U.S. 14, 19 (1967) (“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense

. . . . ”); Diggs v. Owens , 833 F.2d 439, 44416 (3d Cir. 1987) ( “ In general a defendant’s Sixth Amendment right of compulsory process gives way when a witness he has subpoenaed invokes his Fifth Amendment privilege against

self

- incrimination.”); Moussaoui , 382 F.3d at 46 7 ( “[A] defendant has no Sixth Amendment right to such testimony.”)

.

We held in Smith that a court could bestow immunity

on a defense witness to guard a defendant’s constitutional right to present an effective defense

. On revisiting the issue,

we no longer beli e ve this is a permissible use of judicial authority. Congress has given the Executive Branc h the sole authority to immunize witnesses ; giving that power to court s intrudes on prosecutorial decision

- making and goes beyond judicial expertise. Moreover, w e think the defendant’s right to due process is protected by retaining the effective defense

t est as a complement to our prosecutorial misconduct inquiry

.

1. The Statutory Basis of Immunity

Immunity is a creation of the legislature, the body that

defines criminal offenses and their sanctions. It removes

“ those sanctions which generate the f ea r justifying invocation

of the privilege

, ” Ullmann v. United States , 350 U.S. 422, 43 1 (1956) , and is akin to “ an act of general amnesty, ” Brown v.
Walker , 161 U.S. 591, 601 (1896).

Under the federal witness immunity statute, “ no testimony or other i nformation compelled

. . . (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 t o comply with the order. ” 1817 U.S.C. § 6002. This is k nown variously as use and derivative

use
, or use and fruits

, immunity ( shortened to use immunity throughout this opinion)

. Congress has given the Attorney General the authority to exchange the protect ion of immunity for otherwise incriminating testimony w hen, “in his judgment,” a witness’s testimony “may be necessary to the public interest.” § 6003(b). B ecause this protection “ is coextensive with the scope of the [Fifth Amendment] privilege against s elf

- incrimination

, ” a Court can hold an immunized witness in contempt for refusal to testify. Kastigar v. United States , 406 U.S. 441, 453 (1972).

Congress grant ed this authority to the Executive

Branch because i mmuni ty is a prosecutorial tool. Often those with pertinent knowledge about criminal offenses have engaged in unlawful behavior themselves. Granting immunity enables the Government to elicit testimony that would otherwise be protected by the Fifth Amendment privilege against self

- incrimination

.

Congress has not given criminal defendants any similar power to seek immunity for their witnesses. Nor has

it authorized the federal courts to immunize a witness. Instead, u nder § 6002 a district court ’ s role is to grant immunity when it is request ed by the Attorney General or his designee. Though a court reviews the G overnment ’ s request for procedural compliance with the statute , it does not

consider whether the G overnment has correctly determined if immunity is in the public interest. Pillsbury Co. v. Conboy

, 459 U.S. 248 , 254 n.11 (1983 ) (“Congress foresaw the courts as playing only a minor role in the immunizing

process

. . . .” ) ; Herman , 589 F.2d at 1201 ( “ There

is

. . . overwhelming judicial and legislative authority for the18 proposition that review on the merits of a federal prosecutor ’ s decision to grant immunity is barred by statute. ” ); see also United States v. Taylor , 728 F.2d 930, 934 (7th Cir. 1984) (describing this review as “ ministerial ” ).

There are good reasons for immunity decisi ons to
reside with the Executive Branch

. Often the decision to grant or deny immunity impinges on the Go v ernment ’ s “ broad

discretion as to whom to prosecute. ” Wayte v. United States

, 470 U.S. 598, 607 (1985) (internal quotation marks omitted)

. In any la ter prosecution, the Government bears a “ ‘ heavy

burden ’ ” because it must “ prove that its evidence against the

immunize d witness has not been obtained as a result of his immunized testimony. ” Turkish , 623 F.2d at 775 (quoting Kastigar , 406 U.S. at 461). I n some cases, the Government may have already assembled the evidence it needs, or it can

“ sterilize ” the immunized testimony by isolating those investigating or prosecuting the witness from any incriminating information provided through his testimony

. Smi th , 615 F.2d at 973. B ut if these precautions are

unsuccessful or unavailable

, a court’s granting immunity to a witness to secure a nother’s criminal conviction may prevent the Government from ever prosecuting the witness for his

own criminal behavior.

Courts are not in the best position to decide these prosecutorial tradeoffs

. “ Such factors as the streng th of the case, the prosecution ’ s general deterrence value, the

Government ’ s enfor cement priorities, and the case ’ s relationship to the Government ’ s o verall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. ” Wayte , 470 U.S. at 607 ; see Moussaoui , 382 F.3d at 467 ( “ Decisions to grant or deny19 immunity are intimately tied to decisions regarding whi ch perpetrators of crimes will be prosecuted, a core aspect of the

Executive ’ s duty to enforce the laws. ” ) ; In re Daley , 549 F.2d 469, 479 (7th Cir. 1977) ( “ [T] he relative importance of particular testimony to federal law enforcement interests is a judgmen tal rather than a legal determination, one remaining wholly within the competence of appropriate executive officials.”)

. G iving judges the power to immunize witnesses

“ would carry the courts into policy assessments which are the

traditional domain of the [E] xecutive [B] ranch. ” Thevis , 665

F.2d at 639

. As Congress has given the power to immunize a witness solely to the Executive Branch

, it is not a power

c ourts can exercise

. 2

2 Our sister Circuits have also expressed a fear that judicially granted immunity “would be subject to abuse” by criminal defendants who could seek immunity for one another, each testifying that the other was not involved, or that one criminal defendant could take the fall for coconspirators by taking full responsibility at the others’ trials. Thevis , 665 F.2d at 639

– 40; Turkish , 623 F.2d at 775. Though these witnesses subject themselves to perjury prosec ution, the perjury statutes likely carry far lower sanctions, and therefore deterrence, than the charged offenses. Thevis , 665 F.2d at 640 n.27 (“Nor are we convinced that perjury prosecutions are an adequate deterrent. Successful perjury prosecutions ar e not common, and in many cases the penalty for the substantive crime will far surpass perjury penalties.”). Although we have recognized judicial use immunity for over thirty years and these fears do not appear as a problem to date, we recognize that the possibility of this kind of abuse further highlights the limits of judicial expertise in this area.20 2. The Lack of Support for Judicial Use Immunity

In Smith , we justifie d judicial use immunity as

“new only in the sense of its application” in th at context. 615

F.2d at 971. We said that “ [ b ] oth the S upreme Court [in

Simmons v. United States , 390 U.S. 377 (1968) ,] and this [C] ourt [in In re Grand Jury Investigation , 587 F. 2d 589 (3d Cir. 1978)

, and United States v. Inmon , 568 F.2d 326 (3d Cir.

197 7 ) ,] have previously found an inherent judicial power to grant witness immunity.” Id

. We now believe this was too expansive a reading of those case s

. Simmons , and our cases appl ying its holding

, Grand Jury and Inmon

, permit a court to
exclude a criminal defendant’s earlier testimony from trial in

narrow circumstances . This differs significantly from granting immunity to a defense witness when that witness has

invoked the Fifth A mendment.

In Simmons

, the Supreme Court held that a defendant’s testimony in support of his motion to suppress evidence on

Fourth Amendment grounds could not be admitted against

him on the is sue of guilt at his later trial, as i t is “intolerable

that one constitutional right should have to be surrendered in
order to assert another.” 390 U.S. at 394. We applied the logic of Simmons to hold that a defendant’s testimony offered to gain the protection of the Speech and Debate Clause, Grand Jury , 587 F.2d at 597 , and the Double Jeopardy prohibition, Inmon , 568 F.2d at 333 , could similarly not be used to prove his guilt at a subsequent trial

.

Although the Court ’ s opinion in Simmons never uses the word “ immunity, ” courts

— including our own

—have analogized Simm ons ’ protection of testimony given at a21 suppression hearing to a grant of immunity. See, e.g.

, United States v. Perry , 788 F.2d 100, 116 (3d Cir. 1986) (noting that

“ Simmons v

. United States authorizes the grant of use immunity

, ” thus a defendant could te stify at a bail hearing

without fear of incrimination ); U nited States v. Bryser , 95 F.3d 182, 186 (2d Cir. 1996) ( holding that “ use immunity

under Simmons ” was not available at a resentencing hearing )

.

Simmons created an exclusionary rule (that is, it

e xcludes a defendant’s testimony in an earlier hearing from being used at trial against him) wh en the criminal defendant

would otherwise have to waive at the hearing his Fifth

Amendment privilege against self

- incrimination

. The Supreme Court has not extend ed Simmons beyond those facts. United States v. Snipes , 611 F.3d 855, 866 (11th Cir. 2010).

Simmons ’ reasoning does not reach the facts of Smith ; neither

the defendant s in that case nor the defense witness faced a

conflict between two constitutional righ ts. In addition, the protection afforded by the Supreme Court under Simmons (the exclusion from his trial of a criminal defendant’s testimony at a prior suppression hearing ) does not present the same intrusion on prosecutorial discretion as does a judicia l grant of immunity to a defense witness

. In other words

, Simmons ’ exclusionary rule does not extend a court’s power

to invade the prosecutorial decisions discussed above.

Any possibility that the Supreme Court authorize d in

Simmons a general judicial authority to confer us e immunity

for non

- defendant witnesses is undermined by its subsequent discussions of the authority to immunize witnesses. In cases addressing grants of immunity, it is clear that the Court believes only the Executive Branch , and no t the J udiciary , ha s the authority to immunize a witness. In Pillsbury , the Court22 held that a witness in a civil suit could invoke the Fifth Amendment during a deposition in which he was asked questions identical to those asked and answered under

Governme nt

- sought immunity before a grand jury. 459 U.S.

248 (1983)

. Holding that the deposition testimony was not

“ derived from ” the immunized testimony and hence not protected by the grant of immunity, the Court held that the

trial c ourt could not compel the w itness ’ s incriminating

answers because “ only the Attorney General or a designated officer of the Department of Justice has authority to grant use immunity

, ” and “ Congress gave certain officials in the Department of Justice exclusive authority to grant
immu nities. ” Id. at 248, 253

– 54, 261 (emphas i s added and

fo otnote om itted )

.

Similarly, i n United States v. Doe the Government sought to compel document production through a promise not to prosecute but without obtaining immunity under the federal immunity statute. 465 U.S. 605 (1984). The Supreme Court

declined “ to adopt a doctrine of constructive use immunity

, ”

and refused to “ extend the jurisdiction of courts to include prospective grants of use immunity in the absence of the formal request that the st atute requires. ” Id. at 616. It explained that , under Pillsbury

, prosecutors had the exclusive authority to grant immunity, as that decision “ necessarily involves a balancing of the Government ’ s interest in obtaining information against the risk that imm unity will

frustrate the Government ’ s attempt s to prosecute the subject of the investigation. Congress expressly left this decision exclusively to the Justice Department. ” Id. at 616

– 17 (citation omitted). In a more recent discussio n of immunity,

the Co urt refer r e d repeatedly to the Executive Branch ’s authority to immunize a witness. See United States v. Balsys

,23 524 U.S. 666, 682

– 83 (1998) ( “ [T]he government has an option to exchange the stated privilege for an immunity to prosecutorial use of any compe lled inculpatory testimony.

. . . The only condition on the government when it decides to offer immunity in place o f the privilege to stay

silent is the requirement to provide an immunity as broad as the privilege itself.

. . . [T] he immunity option open t o the Executive Branch could be exercised only on the understanding that the state and federal jurisdictions were as

one

. ” (citation omitted) )

.

T his language is no doubt dicta

. Yet “ we cannot lightly ignore the force of Supreme Court dicta

. ” Morrow v.
Balaski

, 719 F.3d 160, 169 (3d Cir. 2013) ( en banc )

. “ T he Supreme Court uses dicta to help control and influence the many issues it cannot decide because of its limited docket. ”

In re McDonald , 205 F.3d 606, 612 (3d Cir. 2000)

.

“ Appellate courts that d ismiss these expressions

. . . increas e the disparity among tribunals

. . . and frustrate the

evenh anded administration of justice

. . . . ” I d. at 612

– 13 ( internal quotation marks omitted).

3. Judicial Use Immunity and Kastigar

Quinn urges us to up hold judicial use immunity

, arguing that courts do not need authority to “grant” immunity. Instead, he believes t he judicial power to compel testimony necessary to a defendant’ s defense, on its own

, carries immunity for that testimony. Quinn reads Kastig ar v. United

States , 406 U.S. 441 (1972)

, to hold that testimony, once compelled, is necessarily immunized. He explains “ the Self

Incrimination Clause by its own force confers immunity for24 direct and indirect uses of the compelled testimony against

. . . that witness.” Appellant ’s Supp lemental Br. at 6.

Th at is not correc t. In Kastigar , two witnesses were

im munized under 18 U.S.C. § 6002 b ut refused to testify before a g rand j ury. 406 U.S. at 442

. They contended that the statutory protection was no t sufficient to supplant the privilege and compel their testimony. The District Court held them in contempt and the Supreme Court upheld that order.

Id. at 453

. “[S] uch immunity from use and derivative use is coextensive with the scope of the privilege against self

incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.” Id. T estimony that would

otherwise incriminat e can only be compelled

— that is, sought subject to contempt if not given

— after the threat of criminal

sanction is lifted. Th at testimony is not automatically immunized because it is compelled; rather, if the witness claims the privilege, his testimony can be compelled because the federal immunity statute protects him from incriminat ion

as a result of his testimony, the same protection afforded by

the Fifth Amendment.

As we discussed above, only the Government has statutory authority to seek immunity. And only when testimony is protected by immunity granted by the

Government can a court compel that te stimony. T he authority of a court to immunize a witness can not be assumed

from Kastigar

.

* * * * *

W e know of no precedent (save Smith ) to support use immunity grants by the J udiciary, as that right is reserved to25 the Executive Branch . In addition

, we do not believe that judicial use immunity is necessary to p rotect the constitutional right s of the accused

. As explain ed in the next section, we believe that, when understood in its historical

context, Smith proscribed prosecutorial misconduct and the

test we created there to assess claims of misconduct remains

both useful and worth keeping. Thus

, though we abandon judicial use immunity as a remedy

, we keep the protection of due process provided through the test created in Smith

.

I II

. The Prosecutor ial Misconduct Theory

The prosecutorial misconduct theory we recognized prior to Smith holds that t he G overnment violates a defendant’s due process right to a fair trial if it acts with the deliberate intention of distorting the factfinding process, such as by interfering with a defense witness through threats and

intimidation. Because it looks to Government action, t his test

is difficult to apply when the Government declines to gran t immunity to a defense witness. Smith crafted a new five

- part

test to address instances of Government refusal to immunize

, with the aim of ensur ing that a defendant is able to present a

defense free from improper Government intrusion

.

A. Our Holding in Morrison

The first case in our Circuit involving the prosecutorial

m isconduct theory was United States v. Morrison

, 535 F.2d 223 (3d Cir. 1976). We held that the Government ’ s interference with a defense witness ’ s testimony violate d the

defendant ’ s guarantee of due process. Id . at 228

. Morrison ’ s girlfriend intended to t estify that she, and not he, engaged in the charged criminal conspiracy to distribute hashish. O ver26 the course of the trial, the prosecutor sent several messages to the witness warning her that she could be charged for the drug

crimes and perjury on the b asis of her testimony. Id. at 225. The night before her testimony, the prosecutor subpoenaed

the witness and interviewed her in his office. Accompanied by the law enforcement officers involved in the case, he again warned her of the dangers of testifyin g. These warnings had their intended effect. When called to testify, Morrison’s girlfriend invoked her Fifth Amendment privil ege against

self

- incrimination. Id. at 226.

We held that t he prosecutor ’ s “ repeated warnings [,] which culminated in a highly i ntimidating personal

interview

, ” had “ interfered with the voluntariness of [the

witness ’ s] choice and infringed [the ] defendant ’ s constitutional right to have her freely

- given testimony. ” Id. at
22 7

– 2 8. D ue process protects the defendant ’ s “ right

. . . t o have [his] witness available as he finds him. ” United States v.

Herman , 589 F.2d 1191, 1199 (3d Cir. 1978)

. We vacated

Morrison ’ s conviction and held that, if the witness invoked a privilege against self

- incrimination during a retrial, the charges agai nst Morrison should be dismissed unless the

Government immunized the witness’s testimony under 18 U.S.C. § 6002. Morrison , 535 F.2d at 229.

O ur holding in Morrison followed from the Supreme

Court ’ s holding in Webb v. Texas , 409 U.S. 95 (1972). There,

a trial court

gratuitously singled out [the only defense] witness for a lengthy admoni tion on the dangers of perjury.

. . . [T]he judge implied that he expected [the witness] to lie, and w ent on to27 assure him that if he lied, he would be prosecuted and probably convicted for perjury,

that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole.

Id . at 97. The Supreme Court held that the j udge ’ s remarks

“ effectively drov e that witness off the stand, and thus deprived the petitioner of due process of law under the

Fourteenth Amendment. ” Id. at 98.

Other c ourts have interpreted Webb similarly to hold

that “ [v]arious prosecutorial and judicial actions aimed at

discoura ging defense witnesses from testifying deprive a defendant of [ his due process] right. ” United States v. Emuegbunam , 268 F.3d 377, 40 0 (6th Cir. 2001) ; see also

United States v. Hooks , 848 F.2d 785, 799 (7th Cir. 1988) (“ ‘ [ The p rosecutor]’s warnings concer ning the dangers of perjury cannot be emphasized to the point where they threaten and intimidate the witness into refusing to testify. ’ ” (quoting

United States v. Blackwell , 694 F.2d 1325, 1334 (D.C. Cir. 1982)) ) ; United States v. MacCloskey , 68 2 F.2d 468, 479 (4th Cir. 1982) (p rosecutor ’ s “ eleventh hour call ” to primary

defense witness “ suggesting that she would be well

- advised

to remember the Fifth Amendment ” is a due process violation

under Webb that entitles the defendant to a new trial)

.

B. Prosecu torial Misconduct Beyond Morrison

Following Morrison

, we defined prosecutorial

misconduct as actions taken “ with the deliberate intention of distorting t he judicial factfinding process. ” Smith , 615 F.2d at 968; Herman , 589 F.2d at 1204. This deliberate distortion28 test applies when the Government has taken steps to interfere with the testimony of a witness who would otherwise be available to the defense. For example, the prosecution has engaged in misconduct if the defendant can show that the

Government ’ s “ [i] ntimidation or threats

. . . dissuade [d] a

po tential witness from testifying ”

— that is, “ the [G] overnment ’ s conduct

. . . ‘ substantially interfered ’ with a

witness ’ s choice to testify

. ” Lambert v. Blackwell

, 387 F.3d 210, 260 (3d Cir. 2004 )

.

But w e have also used the deliberate d istort ion test in

situati ons where prosecutors did not en g age in overt threats or

intimidation

. In Herman

, we considered whether the

Government ’ s selective immunization of prosecution

witnesses

, but not defense witnesses

, violated the defendant ’ s due process rights

. 589 F.2d at 1203

– 04. B ecause the

Government ’ s decision to immunize some witnesses and not

others was based on its decision to prosecute them , and not on their testimony at Herman ’ s trial, we discerned no misc onduct. Id

. In Smith , we asked whether the prosecutor ’ s refusal to permit a defense witness to testify under a grant of immunity , when the re was no interest in prosecuting him, was a deliberate effort to distort the factfinding process. Smith

, 615 F.2d at 969

. We recognized that w hen the Government

declines to seek immunity for a defense witness

, it is difficult for a defendant to prove that the prosecution acted with the deliberate intention of distorting the factfinding process.

Thus in Smith w e also created a new five

- factor test that

focused on whether the defendant “ is prevented from presenting exculpatory evidence which is crucial to his case. ”

Id

.29 Although we characterized this test as distinct from an inquiry into prosecutorial misconduct, it is nonetheless about
the Government’s trial decisions

. We want ed to know if the prosecutor was keeping exculpatory and essential testimony

from trial solely to gain a tactical advantage against the

accused . If there w ere a governmental reason, unrelat ed to

the defendant ’ s trial, for refusing immunity, we would not

interfere with that decision. If

, however, the Government had

no strong reason to keep exculpatory testimony from trial, we

c ould overturn a resulting conviction. See United States v.

Turki sh , 623 F.2d 769, 77 7 (2d Cir. 1980) ( “ [ Smith ] was simply an instance of a prosecutor interfering, for no apparent reason, to suppress evidence that was about to become

available to the accused. ” )

. A proceeding “ [t]hat casts the prosecutor in the role of an architect

, ” instead of participant,

does not “ comport with standards of justice. ” Brady v. Maryland , 373 U.S. 83, 88 (1963)

.

Other courts have not distinguished , as we did in

Smith

, the prosecution’s interference with a witness from its

refusal to im munize a witness. I nstead , they have treat ed the

Government ’ s refusal to grant immunity as a question of

misconduct. Blissett v. L efevre , 924 F.2d 434, 442 (2d Cir. 1991) (“Prosecutorial overreaching may also involve deliberate denial of immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation.”); United States v. Angiulo , 897
F.2d 1169 , 1192 (1st Cir. 1990) ( “ [T]he government could intentionally distort the fact

- finding process by deliberatel y withholding immunity from certain prospective defense witnesses for the purpose of keeping exculpatory evidence from the jury. ” ); Hooks , 848 F.2d at 802 (considering whether “the government’s withholding of immunity distorted the30 fact

- finding process by keeping exculpatory evidence from the jury”); United States v. Frans , 697 F.2d 188, 191 (7th Cir. 1983) (requiring a defendant to show “that the government intended to distort the judicial fact

- finding process” by refusing to immunize a defense witness aft er immunizing a prosecution witness )

.

T he five factors considered in Smith remain analytically helpful, as they capture those situations where the Government, for tactical reasons, has used its power to threaten prosecution and withhold immunity to kee p exculpatory and essential testimony from trial for no strong countervailing reason. This test fleshes out, and thus complements, Morrison ’s metric of deliberate distortion. For good reason this test also requires a more exacting showing

than does the b roader misconduct test. When a defendant alleges that the G overnment’s refusal to immunize resulted in

an unfai r trial, he is challenging its statutory discretion in his case and possibly others. I f the defendant can show , as a prima facie matter, a witn ess’s testimony is available

, clearly exculpatory , and essential

— in effect showing that the prosecutor’s actions have impaired the ability to present an
effective defense

— we will consider the due process concerns raised regarding the Government’s discretio n to grant or deny immunity. T he five

- factor test aids this inquiry for prosecutorial mis conduct

, and we continue its use

.

C

. The Remedy

Once Smith ’s five

- part test is understood as a gauge of prosecutorial misconduct, the remedy for such a finding

f ollows easily. It is vacat ing the conviction and allowing a new trial where the Government can elect to exercise its31 statutory authority to obtain a grant of immunity for the

witness

. United States v. Pennell , 737 F.2d 521, 526 (6th Cir. 1984) ( “ The reco mmended remedy in such c ases has been

that a court

. . . set aside the conviction and remand the case to afford the prosec utor an opportunity to immunize

. . . . ” ).

If the Government refuses to immunize the witness in violation of the defendant’s due proc ess right , the trial c ourt
can dismiss the charges against the defendant

. 3

Courts sometimes refer to this remedy as “ compel ling

the G overnment to immunize the witness, ” i d. at 4 68 , but that

is imprecise . Dismissing the charge s unless the witness is immunized leaves prosecutorial decisions in the hands of the

Government. It may grant immunity to the witness and attempt to convict the defendant in a fair trial

, or it may decide that denying the witness immunity is more important to its goals than seek ing that conviction. But the remedy does not compel the Government to do anything. It simply
prevents prosecutors from obtaining a conviction through a process that lacks the fairness afforded by d ue p rocess. United States v. Hooks

, 848 F.2d 785, 799 (7 th Cir. 1988) ( “ [T]he prosecutor ’ s power to seek or to refuse to seek immunity is limited by the constitutional right to due process

of the law. ” )

.

3 W hile we do not deal in this opinion with a possible

alternative to dismissal, we note th e possibility in the rar e

case that another cure could correct t he distortive effect. See,

e.g. , United States v. Moussaoui , 382 F.3d 453, 476

– 77 (4th Cir. 2004) (appropriate substitute for witness’s testimony made available, so dismissal of charges not necessary).32 D

. Bad Faith

The Government argues that any test for a due process violation must require the defendant to show bad faith on the part of the Government

. See United States v. Sant ti ni

, 963 F.2d 585, 596

– 97 (3d Cir. 1992) ( “ As a gen eral matter, even when actions by the prosecution appear to deprive a criminal defendant of his constitutional right to present a defense, no remedy will lie for such infringement absent a showing that the government has caused the unavailability of material

evidence and has done so in bad faith. ” )

. T he element of bad

fait h , however, does not require a defendant to show specific

in tent on the part of the Government to interfere with his due process rights. S ee Morrison

, 535 F.2d at 227 ( “ The good faith of the [prosecutor] would be relevant if he were charged with violation of 18 U.S.C. § 1503 [,] which makes the

intimidation of a fe deral witness a criminal offense. It is not, however, relevant to an inquiry into whether a defendant was denied his constitutional right. ” (emphas e s in original) ).

O ur concern is with the effect of the prosecutor ’ s actions on the process afforded to the defendant. “ The Due

Process Clause addresses the defendant ’ s right to a fair trial, not just whether the government intended to deny the defendant his rights. ” United States v. Straub , 538 F.3d 1147, 1160 (9th Cir. 2008). “ I f the suppression of evid ence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor. ” United States

v. A gur s , 427 U.S. 97, 110 (1976)

. Courts should protect against deliberate wrongdoing by prosecutors and, in those

rare cases where it arises, overzealous advocacy that distorts the factfinding function of a criminal trial.33 That said, prosecutorial misconduct is an area of the

law requiring sensitivity . Courts should be hesitant, absent a strong showing by the defe nse , to determine that the Government has engaged in misconduct by exercising its prosecutorial discretion and withholding immunity from a

witness.

* * * * *

To summarize

, judicial use immunity impinges on the separation of powers between the Executi v e and Judicial

Branches of our F ederal G overnment. The grant of witness immunity, reserved by statute to the Executive Branch , does not also reside with the Judiciary

. We overturn that portion of our holding in Smith that recognizes the authority of cou rts to confer immunity on a witness. But w e keep the test we created in that case , which we now recognize as supplementing our deliberate distortion test for prosecutorial

misconduct . The appropriate remedy if a defendant can pr ove misconduct is to allow the G overnment to seek immunity for

the witness at retrial or have the charges dismissed. With this

revised legal framework, w e turn to Quinn’s challenge to his

conviction

.

I V. Quinn’s Appeal

In the Distri ct Court, Quinn sought immunity for

Johnson to testify, claiming that Johnson’s testimony was necessary for him to present an effective defense. Denying that immunity, Quinn contends, is a due process violation requiring a new trial. “ Ordinarily we review a denial of a

motion for a new trial under a n abuse of discretion standard. ”

U nited S tates v. Joseph , 996 F.2d 36, 39 (3d Cir. 1993); cf.34 United States v. Mike , 655 F.3d 167, 17 3 (3d Cir. 2011) ( “ Ultimately, the question of whether clearly exculpatory evidence is necessary to present an effective d efense is a decision calling upon the sound judgment of the district court judge in a position to listen to the witnesses and evaluate the

tenor of trial narratives. ” ) . When the alleged violation

includes “ issues of law and fact [,]

. . . we review the dis trict

court ’ s legal conclusions on a de novo basis and its factual findings under the clearly erroneous standard. ” Joseph , 996
F.2d at 39 ; s ee United States v. Risha , 445 F.3d 298, 303 (3d Cir. 2006)

.

On appeal, Quinn argues for the first time that the prosecution engaged in misconduct by interfering with Johnson’s testimony. He alleges that the Government ’ s motion to delay Johnson’s sentencing until after Quinn’s trial

caused Johnson to invoke the Fifth Amendment and refuse to testify. Yet before tri al Quinn expressly disclaimed a n argument that the prosecution engaged in misconduct. At argument on his motion in limine to have Johnson immunized by the Court, Quinn ’ s counsel agreed that the prosecutorial misconduct theory was not at issue because Quin n did not allege “ the government [was] doing anything improper. ”

Because he raises this argument for the first time on appeal, we review for plain error. Fed. R. Crim. P. 52(b) ; Puckett v. United States , 556 U.S. 129, 135 (2009). We
follow the four

- s tep inquiry set out in United States v. Olano

, 507 U.S. 725, 732

– 36 (1993). “First, there must be an error

or defect

— some sort of deviation from a legal rule

. . . .”

Puckett , 556 U.S. at 135 ( alteration and internal quotation

marks omitted). “Second, t he legal error must be clear or obvious, rather than subject to reasonable dispute.” Id.35 “Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must
demonstrate that it ‘affected the outcome of the di strict court proceedings.’” Id . (quoting Olano , 507 U.S. at 734). Even when all three of these conditions are satisfied, there is a fourth step. “[W]e will exercise our discretion to correc t the unpreserved error only if

. . . a miscarriage of justice w ould otherwise result, that is, if the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Corso , 549 F.3d 921, 929 (3d Cir. 2008) (internal quotation marks and alteration omitted).

A. Refusal to Immunize Johnson’s Testimony

We repeat for ease of reference that, to prove a due

process violation on the basis of the Go v ernment ’ s refusa l to immunize a defense witness, the defendant must show the following five elements

. “ [1] [I] mmunity must be p roperly sought in the district court; [2] the defense witness must be available to testify; [3] the proffered testimony must be clearly exculpatory; [4] the testimony must be essential; and [5] there must be no strong governmental interests which

counterva il against a grant of immunity. ” Smith , 615 F.2d at

972

. T he first two are not d isputed. Quinn requested that

Johnson be immunized and he was available to testify. We note, however, that t here is no evidence that Quinn directed his immunity request to the Government . Going forward, defendants must seek immunity for their witnesses from the Government, not the district courts. In the unusual posture of

this case

— where we have kept t he analytical test but no longer recognize a district court ’ s ability t o immunize a

witness

— we will assume, from the Government ’ s opposition36 to Quinn ’ s motion in limine , that it would have refused to

immunize Johnson if asked.

We start with the requirement that Quinn show that Johnson’s testimony is clearly exculpatory, i.e.

, that it would exonerate or free him of guilt or blame

. Testimony that is “ at
best speculative, ” United States v. Ammar , 714 F.2d 238, 251

n.8 (3d Cir. 1983 )

, “ severely impeached ” by the witness’s prior inconsistent statement (s)

, United States v. Perez

, 280 F.3d 318, 348 (3d Cir. 2002)

, ambiguous on its face

, Smith

, 615 F.2d at 972, or “ even if believed, would not in itself exonerate [the defendant], ” United States v. Lowell , 649 F.2d 950, 965 (3d Cir. 1981) (emphasis omitted), is not clearly exculpatory

.

Quinn and Amicus Curiae

, the National Associat ion of Criminal Defense Lawyers

, urge us to be less exacting in our requirement that evidence be clearly exculpatory. They argue that immunity should be available if the evidence is

“ materially favorable t o the defense on the issue of guilt, ” Appellant ’s Supp lemental Br. at 19 , or “ could contribute substantially to raising a reasonable doubt

, ” Amicus Br. at

11. We continue to be guided (as was the Smith Court) by the Supreme Court ’ s holding in Chambers v. Mississippi

. It required the State of Mississippi to abrogate otherwise appropriate evidentiary rules when they prevented the defendant from presenting essential testimony. 410 U.S. 284 (1973) ; see also Lowell , 649 F.2d at 964 (noting Smith ’ s reliance o n Chambers )

. Although rules of evidence often exclude testimony that a defendant believes is materially

favorable o r would contribute to raising a reasonable doubt of guilt

, the Chambers line of cases permits abandoning those

rules when they “ infringe upo n a weighty interest of the37 accused and are arbitrary or disproportionate to the purposes they are designed to serve

. ” Holmes v. South Carolina , 547 U.S. 319, 32 4 (2006) ( alteration and internal quotation marks omitted)

. A weighty interest exists when th e Government ’s decision not to immunize the testimony of a defense witness

blocks the defendant’s ability to present a meaningful

defense ; that is, with the evidence he might disprove th e Government’s case, without it he can not

.

This case requires us to clarify two of our cases discussing the clearly exculpatory part of the Smith test. We
have held that a witness’s testimony “undercut” or “undermine[d]” by evidence presented by the Government was not clearly exculpatory. United States v. Thomas , 357 F.3d 357, 365

– 66 (3d Cir. 2004); Mike , 655 F.3d at 172. To avoid any misunderstanding as to those terms, we note that

t he obvious purpose of exculpatory evidence is to contradict
the Government’s evidence against the accused . I t is hard to imagine a cas e in which a defendant’s evidence of his

innocence is not, in some respect, undermined by the Government’s evidence of his guilt

. The existence of conflicting evidence does not affect , however, whether the

defense evidence is exculpatory , though it may af fect its weight

. Thus, t hough exculpatory on its own

, d efense

evidence that is overwhelmingly undercut or undermined by substantial prosecution evidence in the record becomes so lacking in credibility that it cannot be clearly exculpatory

.

In this case , Johnson ’ s testimony is not clearly exculpatory. First, we do not know the contents of Johnson’s testimony. Quinn offered no proof that Johnson would offer exculpatory testimony at all, let alone clearly exculpatory

evidence

. In any event , Johnson’s pu tative testimony would38 be overwhelmed by the evidence of Quinn’s guilt presented by the Government.

Quinn points to Johnson ’ s statement to police on the

afternoo n of the robbery that Quinn was not involved in the robbery. Even if Johnson testified con sistently with that

statement

— a matter in doubt

— its believability is undermined by his additional statement that he did not want to discuss the

involvement of Quinn because the latter is the brother of
Johnson’s fiancée

. Their familial connection provides Johnson with a reason to shield Quinn from suspicion and guilt. Johnson’s credibility would be eroded in other ways as well. Johnson had already pled guilty to his role in the bank robbery, and thus would have been subject to the accusation that any exc ulpatory testimony was his effort to “ take the

fall ” for a friend and codefendant

. After his arrest, Johnson gave inconsistent statements to the police, first telling them that he walked to the shopping center where he met Qui nn, then reporting that he wa s driven there by a friend . He also told police that he called Quinn from the shopping center parking lot, but call records presented at trial showed that no calls were made from Johnson’s phone to Quinn. In addition,

t he Government would have attacked J ohnson’s credibility by presenting evidence of his prior c onvictions for theft and

fraud.

Most important, Johnson’s testimony would be overwhelmed by the Government’s case against Quinn. He

called Johnson numerous times on the morning of the robbery , a nd then deleted records of those calls before police obtained his phone. He hid his car out of sight of the bank while Johnson committed the robbery, and the robbery

occurred close to Quinn’s relative ’ s house

, where Quinn39 drove immediately after Johnson obtained the money

. Also

, two of Quinn ’ s cell mates presented direct evi d ence that (i) he boasted about planning and pa rticipating in the robbery and (ii) he hoped to get away with the crime by claiming that only

Johnson was involved.

T his is not an in stance where the defense witness’s testimony (even assuming it were given as Quinn hopes)

would make suspect the Government’s case. See Smith

, 615

F.2d at 966

– 67. Considering these items of evidence together, we cannot conclude that Johnson ’ s testimony w as clearly exculpatory. Because Quinn has not made this showing, we do not need to consider wh e ther Johnson’s testimony was essential or whether the Government had a strong countervailing interest for refusing to grant Johnson immunity

. ( The latter avoid s our scrutinizing the

Government ’ s prosecutorial decisions unless necessary to do

so

. )

B. Delay of Johnson’s Sentencing Hearing

We next turn to Quinn ’ s claim that the Government engaged in deliberate distortion of the factfinding process by delaying Johnson’s sentencing hearing

. As mentioned, we review for plain error. “ If an error is not properly preserved, appellate

- court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly

circumscribed. ” P uckett , 556 U.S. at 134. We “ correct only particularly egregious errors

. ” United States v. Young , 470 U.S. 1, 15 (1985) ( internal quotation marks omitted)

.

We start with whether there is error that is clear. T he

Government ’ s motion to continue Johns on ’ s sentencing is not40 akin , in either quantity or quality, to the repeated and intimidating reminders of criminal exposure imposed on the

witnes se s in Morrison or Webb

. Quinn has presented no evidence that Johnson intended to testify on Quinn ’ s behalf

bu t was dissuaded from that testimony by the Government ’ s motion. Indeed, Johnson took no position on the delay of his sentencing , and informed the C ourt that he would invoke his Fifth Amendment privilege if called to testify , apparently without regard to t he timing of his sentencing hearing

.

In addition, Quinn typically must “ have [his] witness

available as he finds him

. ” United States v. Herman , 589 F.2d 1191, 1199 (3d Cir. 1978)

. When he first sought

Johnson ’ s testimony, Johnson was awaiting sentenc ing. The

Gove rnment ’ s motion for continuance merely maintained that

state of affairs after Quinn’s successful motion to delay his

trial

. Jo hnson was available to Quinn exactly “ as he [found]

him ” id.

, prior to the delay of trial. We discern no distortio n of the factfinding process, and thus no prosecutorial

misconduct or error that is clear

.

Quinn fares no better on the third and fourth steps of our pla i n error inquiry . He has not demonstrated that

Johnson ’ s testimony would have changed the outcome of his

case or that the absence of this testimony a ffected the integrity, fairness, or public reputation of the judicial proceedings here

. Even assuming that Johnson would have testified that Quinn was uninvolved (which, again , we do not know), we are not p ersuaded

, for the reasons explained above, that it would have alter ed the jury ’ s finding of guilt. Quinn had the opportunity to present a full defense against the Government charges, including (as he did) by taking the

stand in his own defense. “ The jury had before it all the facts41 and claims appellant intended to elicit from the witnesses for whom he sought immunity

. ” United States v. Alessio , 528

F.2d 1079, 1082 ( 9th Cir. 1976)

. We cannot say that Quinn ’ s trial was unfair because it lacked Johnson ’ s t estimony.

Finally, Quinn also argues, for the first time in his Supplemental Brief filed for our rehearing en banc , that the District Court erred by finding that Johnson properly invoked his Fifth Amendment privilege without requiring that he take

the s tand and invoke the privilege as to specific questions. Because this issue was not raised in Quinn ’ s notice of appeal or opening brief, it is waived. Fed. R. App. P. 28(a)(5); United States v. Hoffecker , 530 F.3d 137, 162 (3d Cir. 2008);
Kost v. Kozakiew icz , 1 F.3d 176, 182 & n.3 (3d Cir. 1993). Even if it were not, Quinn acknowledges there is no plain error here, Appellant ’s Supp lemental Br. at 23 n.16, as he does not challenge Johnson ’ s right to claim the privilege.

V. Conclusion

The prosecutorial misconduct test from our pre

- Smith

cases

— deliberate intent to distort the factfinding process

— provides a due process guard against Government

interference with a defense witness. The Smith five

- part test aids in this analysis when the Government exercises its statutory authority not to immunize a witness for the defense

.

Our holding today departs from Smith , however, by eliminating the grant of a judicially imposed remedy of use immunity to a defense witness

. Courts lack that authority

, as i mmunity is a statutory creation reserved to the Executive Branch. If the accused can show a due process violation, a trial court has the authority to vacate a conviction to allow a42 new trial where the Government may immunize the witness’s testimony or , if the Governm ent won’t immunize, to dismiss the charges.

Applying our revision to this case

, Quinn fails to show

that the Government interfered unconstitutionally with
Johnson’s decision not to testify . We thus affirm.