UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

UNITED STATES OF AMERICA 

v. CAUSE No.: 2:16-CR-160-2-TLS-JEM 

JAMES E. SNYDER 

OPINION AND ORDER 

 This matter is before the Court on Defendant James E. Snyder’s Motion to Dismiss Count 

2 Based on the Supervisory Power of the Court [ECF No. 365]. For the reasons set forth below, 

the Defendant’s Motion is DENIED. 

FACTUAL AND PROCEDURAL HISTORY 

The factual and procedural background of this case has been discussed by the Court at 

length in earlier orders. The Court incorporates by reference its brief recount of relevant facts 

and procedural history as well as its description and analysis of the “Buha Error” and the 

Immunity Order contained within its Opinion and Order dismissing the Defendant’s Motion to 

Dismiss Count 2 on Double Jeopardy Grounds [ECF No. 404], which is being issued 

simultaneously with the instant Opinion and Order. 

ANALYSIS 

The Defendant, in his Motion to Dismiss Count 2 Based on the Supervisory Power of the 

Court [ECF No. 365], requests the court to invoke its supervisory power to dismiss Count 2 of 

the Indictment. By utilizing their supervisory powers, “federal courts may, within limits, 

formulate procedural rules not specifically required by the Constitution or the Congress . . . to 

implement a remedy for violation of recognized rights; to preserve judicial integrity by ensuring 

that a conviction rests on appropriate considerations validly before the jury; and finally, as a 

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remedy designed to deter illegal conduct.” United States v. Hasting, 461 U.S. 499, 505 (1983) 

(citations omitted). The Defendant argues that the Court should invoke its supervisory power and 

dismiss Count 2 of the Indictment because the Government violated the Defendant’s due process 

rights when it deterred the Buha brothers from testifying by threatening them with perjury 

charges and/or by withdrawing their immunity to testify. 

The Supreme Court has explained that the Defendant has the right to present a defense 

which “include[s], as a minimum, a right to examine the witnesses against him, to offer 

testimony, and to be represented by counsel.” Washington v. Texas, 388 U.S. 14, 18 (1967) 

(quoting In re Oliver, 333 U.S. 257, 273 (1948)). Further, 

[t]he right to offer the testimony of witnesses, and to compel their attendance, if 

necessary, is in plain terms the right to present a defense, the right to present the 

defendant’s version of the facts as well as the prosecution’s to the jury so it may 

decide where the truth lies. Just as an accused has the right to confront the 

prosecution’s witnesses for the purpose of challenging their testimony, he has the 

right to present his own witnesses to establish a defense. This right is a fundamental 

element of due process of law. 

Id. Accordingly, “[i]t is well-settled that substantial government interference with a defense 

witness’s free and unhampered choice to testify violates the defendant’s due process rights.” 

Newell v. Hanks, 283 F.3d 827, 837 (7th Cir. 2002) (citing United States v. Vavages, 151 F.3d 

1185, 1191 (9th Cir. 1998); Freeman v. Georgia, 599 F.2d 65, 69 (5th Cir. 1979); Lockett v. 

Blackburn, 571 F.2d 309, 314 (5th Cir. 1978); United States v. Morrison, 535 F.2d 223, 225–28 

(3d Cir. 1976)). 

The Defendant compares his case to Morrison. In Morrison, the Third Circuit considered 

“whether [the] appellant was denied a fair trial in that he was deprived of his constitutional right 

to call witnesses in his defense by the actions of . . . the Assistant United States Attorney.” 

Morrison, 535 F.2d at 224. In that case, the defendant’s lawyer “planned his defense around the 

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testimony of [his girlfriend], who allegedly was prepared to swear it was she and not [the 

defendant] who had been involved in the conspiracy to sell hashish.” Id. at 225. The AUSA 

[o]n at least three occasions . . . sent messages to [the witness] through counsel 

warning that she was liable to be prosecuted on drug charges; that if she testified, 

that testimony would be used as evidence against her and, further, that as she was 

now eighteen it would be possible to bring federal perjury charges against her. 

Id. In addition to these communications, the AUSA also sent the witness a subpoena, which the 

Third Circuit concluded was used only to intimidate the witness because it was legally invalid. 

Id. at 225–26. Finally, the AUSA brought the witness to his office, where she was surrounded by 

law-enforcement officers involved in the case and was once again warned of the dangers of 

testifying. Id. 

 At trial, the witness refused to answer over thirty questions and the defendant was found 

guilty. Id. at 226. On appeal, the Third Circuit found that “[t]he actions of the prosecutor in his 

repeated warnings which culminated in a highly intimidating personal interview were completely 

unnecessary,” id. at 227, and concluded that his conduct “was without doubt responsible for the 

course pursued by [the witness] in refusing to testify and to that extent deprived [the defendant] 

of due process of law under the Fourteenth Amendment,” id. at 228. 

Despite this comparison, United States v. Johnson, 437 F.3d 665 (7th Cir. 2006) is more 

applicable to the instant case. In Johnson, the defendant—like the Defendant in this case—

argued that “the government denied him constitutional due process by threatening investigation 

and indictment of a defense witness . . . to prevent her from testifying.” 437 F.3d at 677. The 

basis for the defendant’s argument was a letter the government sent to defense counsel, which 

indicated: 

Witness A is currently the possible subject or target of an investigation concerning 

false statements and/or obstruction of justice concerning her statements on 

February 24, 2000, and she may be charged with a crime. The U.S. Attorney’s 

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Office currently has not provided Witness A with any consideration or promises of 

consideration. 

Id. at 678. The Seventh Circuit recognized that “[t]he government’s messages to a witness, 

conveyed through defense counsel, have in the past been held to be improper threats,” id. (citing 

Morrison, 535 F.2d at 225–26); however, it also clarified that the relevant caselaw focuses on 

“what the prosecutor communicates to the witness,” id. (citing United States v. Jackson, 935 F.2d 

832, 847 (7th Cir. 1991)), and identified that a court-ordered letter to defense counsel was “a 

rather inefficient medium for conveying threats to a witness, [suggesting] that it probably was 

not intended to deter Witness A from testifying,” id.

 Despite the Defendant’s attempt to liken his case to Morrison, the two cases are 

incomparable. The Defendant does not contend that AUSA Koster, like the AUSA in Morrison, 

attempted to threaten or intimidate the Buha brothers by meeting with them or sending them 

messages or other communications. Instead, the Defendant cites to two instances of what he 

alleges to be intimidation in the instant case: AUSA Koster’s reference that the Government 

believed the Buha brothers had been untruthful during their grand jury testimony, and her 

revocation of the Buha brothers’ immunity to testify at trial. However, even if AUSA Koster had 

truly revoked the Buha brothers’ immunity, it cannot have been intimidation because it 

ultimately did not make the Buha brothers any more or less safe to testify during trial.1

 Further, 

the Court is unconvinced that AUSA Koster’s statements can be considered intimidation because 

AUSA Koster’s statements did not include obviously threatening language and the context 

1

 In the Court’s Order Denying the Defendant’s Motion to Dismiss Count 2 on Double Jeopardy Grounds 

[ECF No. 404], the Court explains at length that the Buha brothers were not in danger of being prosecuted 

for bribing the Defendant, as the statute of limitations had elapsed, and that the Immunity Order did not 

protect the Buha brothers from perjury charges. As such, a revocation of the granted immunity would not 

increase the risks associated with testifying. 

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surrounding AUSA Koster’s statements make it unlikely that the statements were intended to be 

a threat. 

First, an examination of AUSA Koster’s actual statement illustrates that it cannot be 

considered a threat. At Sidebar, AUSA Koster stated that “[t]he government does not believe that 

[the Buha brothers] have been truthful.” Trial Tr. vol. 6, 187. Notably, Defense counsel, and not 

the Government, brought up perjury allegations. Id. at 189. AUSA Koster’s statements fall short 

of the obviously threatening conduct that other courts have deemed to be witness intimidation, as 

it did not guarantee (or even clearly reference the possibility of) prosecution. See Webb v. Texas, 

409 U.S. 95, 97 (1972) (“[T]he judge implied that he expected [the witness] to lie, and went on 

to 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.”); United States v. Smith, 478 F.2d 976, 977, 979 (D.C. Cir. 

1973) (concluding that a prosecutor’s in person statement to a witness representing that the 

witness, if he chose to testify, would be prosecuted for concealing a deadly weapon, obstruction 

of justice, and as a principal in a murder, resulted in depriving the defendant of the witness’s 

testimony.). Exactly how the Defendant’s attorneys conveyed AUSA Koster’s statements to the 

Buha brothers is not before the Court; it is possible that they felt threatened and were actually 

concerned that they would be prosecuted for perjury. See Bank of Nova Scotia v. United States, 

487 U.S. 250, 262 (1988). However, such fear cannot be ascribed to AUSA Koster’s conduct and 

thus cannot be grounds for dismissal. See id. (“The witness may have felt threatened by the 

prosecutor’s statement, but his subjective fear cannot be ascribed to governmental misconduct . . 

.”). 

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Second, the context of AUSA Koster’s statements make it unlikely that the statements 

were intended to be a threat. AUSA Koster’s statements were made to opposing counsel and the 

presiding judge during a sidebar, which—like the court-ordered letter in Johnson—is a rather 

inefficient medium for conveying a threat to a witness.2 Attempting to convey a threat in such a 

manner would be particularly inefficient because neither the Buha brothers’ attorney nor the 

Buha brothers themselves were present during the sidebar, thus decreasing the likelihood that the 

threat would be conveyed to the intended party at all. Furthermore, the statement was made in 

the presence of the judge, which is a setting that limits the potential for threats and overreaching 

statements. See Jackson, 935 F.2d at 847. If AUSA Koster intended to threaten the Buha 

brothers, it is unlikely that she would elect do so in front of the judge and in a manner that did 

not guarantee that the threat would be received by the Buha brothers. 

As there is no evidence that AUSA Koster directly communicated a threat, either by 

message or in person, Morrison does not support dismissal. Furthermore, as the Court has 

concluded that the threatening conduct cited by the Defendant does not amount to intimidation, 

there is no grounds to dismiss the charges against the Defendant. While AUSA Koster’s 

statements “pushed the envelope,” see Nov. 27, 2020 Op. & Order 13, ECF No. 322, the Court 

cannot conclude that her statements amounted to a threat that infringed upon the Defendant’s due 

process rights. 

Even if the Court did conclude that AUSA Koster’s conduct intimidated the Buha 

brothers and caused them to withhold their testimony, the Court would not dismiss Count 2 of 

the Indictment. In such a scenario, “it is the general rule that a new trial untainted by error is 

2

 At some point counsel for the Buha brothers contacted AUSA Koster and asked her about the basis of 

her belief that the Buha brothers had been untruthful. Aff. of Thomas J. Mullins ¶ 6, ECF No. 262-2. At 

that time, it appears that she reiterated her belief to the Buha brothers’ attorney that they had been 

untruthful, but made no additional statements regarding the veracity of their testimony. Id.

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sufficient remedy for the error.” United States v. Medina-Herrera, 606 F.2d 770, 775 (7th Cir. 

1979) (citing United States v. Tateo, 377 U.S. 463, 465 (1964)); see also United States v. Reese, 

561 F.2d 894, 902 (D.C. Cir. 1977) (“There is no question that interference by prosecutors with a 

defendant’s ability to call witnesses is a proper ground for a new trial.” (citations omitted)); 3 

Fed. Prac. & Proc. Crim. § 588 (4th ed.) (“Nevertheless, if the prosecutor indulges in misconduct 

of a substantial nature that interferes with the defendant’s right to a fair trial, a new trial must be 

ordered.” (collecting cases)). The relief requested by the Defendant is rarely granted and is 

reserved for only the most extreme scenarios. See United States v. Childs, 447 F.3d 541, 545 (7th 

Cir. 2006) (“[W]e have never taken what we see to be an extreme step of dismissing criminal 

charges against a defendant because of government misconduct.” (citing United States v. Boyd, 

55 F.3d 239 (7th Cir. 1995); United States v. Miller, 891 F.2d 1265 (7th Cir. 1989)). Even in 

Morrison, where the conduct of the AUSA was much more extreme than the instant case, the 

remedy was not dismissal of the charges; instead, the Third Circuit reversed the district court’s 

order denying a new trial and instructed that if the witness “invokes her Fifth Amendment right 

not to testify [during the new trial], a judgment of acquittal shall be entered unless the 

Government, pursuant to 18 U.S.C. §§ 6002, 6003, requests use immunity for her testimony.” 

Morrison, 535 F.2d at 229. Dismissal may be warranted in extreme cases of prosecutorial 

intimidation, see United States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988); however, 

the Defendant presented, and the Court has found, no case where charges were dismissed due to 

conduct of the same type and severity as the conduct at issue. 

The Defendant argues that a new trial is an insufficient remedy because the Buha brothers 

cannot be reimmunized and thus remain intimidated, Mem. in Supp. of Mot. to Dismiss Count 2 

Based on Supervisory Power of the Court 6–10, ECF No. 366, and because the Government has 

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an unfair advantage now that it has seen the Defendant’s case. Def.’s Reply 24–27, ECF No. 

392. Neither argument renders a new trial insufficient as a remedy. 

 First, the Defendant argues that a new immunity Order cannot be granted because 

“AUSAs in this Circuit are on record saying that it is impossible to immunize a perjury charge,” 

Mem. in Supp. of Mot. to Dismiss Count 2 Based on Supervisory Power of the Court 6. 

However, this contention appears to be inaccurate.3 In its brief, the Government represents that 

“[p]rior to filing [their] brief, the government sought and obtained permission from the 

Department to immunize the Buhas at the retrial if they are called by the defense, assert the Fifth 

and their assertions are accepted by the Court.” Gov’t’s Resp. 43 n.27. Accordingly, the 

Defendant’s concern is not at issue. 

Second, the Defendant contends that “[t]here would be no reason for the Buhas to trust a 

new immunity order,” Mem. in Supp. of Mot. to Dismiss Count 2 Based on Supervisory Power 

of the Court 7. But this is simply incorrect. If the Buha brothers were issued immunity they 

would be free to testify truthfully without fear of prosecution. While there is generally an 

exception to immunity orders that permit prosecution for perjury, “the exception refers to future 

perjury, future false statements or future failure to comply with the immunity order, rather than 

previous acts.” United States v. Watkins, 505 F.2d 545, 546 (7th Cir. 1974); accord United States 

v. Patrick, 542 F.2d 381, 385 (7th Cir. 1976) (“[T]his exception refers only to ‘future’ perjury, 

false statements or non-compliance with the court order. To interpret this perjury exception to 

include a prosecution under § 1623(c) for inconsistent statements, some of which were made 

3

 The Court notes that the case cited by the Defendant, United States v. Wright, 634 F.3d 917 (7th Cir. 

2011), does not hold that such an immunity order cannot be granted. Furthermore, although in Wright the 

AUSA indicated that he couldn’t “imagine the Department of Justice authorizing immunity for potential

perjury,” there is no indication that the AUSA confirmed that granting such an immunity would be 

impossible. 634 F.3d at 919. 

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prior to the latest grant of immunity, would be too broad of a reading of § 6002.”). Accordingly, 

if the Buha brothers are called as witnesses in the new trial, the general exception for perjury 

would not preclude immunity from perjury for their previous testimony before the grand jury. 

Finally, the Court is not persuaded by the Defendant’s argument that Count 2 should be 

dismissed because the Government has already seen his case. See Notice of Suppl. Authority 

(citing United States v. Bundy, 968 F.3d 1019 (9th Cir. 2020)), ECF No. 400. The Defendant’s 

argument is contrary to the well-established rule that a new trial is a sufficient remedy in the 

event of prosecutorial error. See Medina-Herrera, 606 F.2d at 775. If the law were as the 

Defendant suggests, a new trial would never be a sufficient remedy for prosecutorial error that 

occurred after the trial began. There are many cases where the Seventh Circuit has ruled that a 

new trial was a sufficient remedy, even in instances where the prosecution had seen the entirety 

of the defendant’s case. See, e.g., id. (holding that a new trial is sufficient to remedy the 

prosecutorial error that occurred during closing arguments). As such, the Defendant’s arguments 

do not support dismissal of Count 2. 

CONCLUSION 

For the reasons stated above, Defendant James E. Snyder’s Motion to Dismiss Count 2 

Based on the Supervisory Power of the Court [ECF No. 365] is DENIED.

SO ORDERED on October 22, 2020. 

 s/ Theresa L. Springmann 

 JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT 

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