FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30182

Plaintiff-Appellee, D.C. No.

v.  CR-04-00020-6-

OMP DWAYNE EDWARD STRAUB,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, District Judge, Presiding

Argued and Submitted

June 3, 2008—Pasadena, California

Filed August 15, 2008

Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

10679
COUNSEL

Jeff S. Pitzer, Portland, Oregon, for the appellant.

Kelly A. Zusman, Assistant United States Attorney, United

States Attorney for the District of Oregon, Portland, Oregon,

for the appellee. 

10682 UNITED STATES v. STRAUB
OPINION

BYBEE, Circuit Judge: 

Dwayne Edward Straub challenges his conviction and sentence for narcotics crimes and the attempted robbery and

shooting of Robert Garrett in Portland, Oregon. Straub claims

that the district court’s refusal to compel the prosecution to

grant use immunity to defense witness Mike Baumann violated his due process rights under the Fifth Amendment. This

case requires us to clarify the standard by which we determine

when a district court must compel the prosecution to grant use

immunity, as most recently stated in Williams v. Woodford,

384 F.3d 567 (9th Cir. 2004). We must address the question

left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized

prosecution witness must prove that the prosecution’s purpose

in denying use immunity to the defense witness was to distort

the fact-finding process, or merely that the prosecution’s

selective denial of use immunity had the effect of distorting

the fact-finding process. See id. at 600-01. 

We have jurisdiction under 28 U.S.C. § 1291, and for the

reasons set forth below, we reverse the district court’s refusal

to compel use immunity and remand for further proceedings.

I

A

Straub was arrested on February 6, 2003, following the

execution of a search warrant at his residence in Oregon City,

Oregon. Police found marijuana plants and packaged marijuana at Straub’s home. Further investigation uncovered evidence that Straub was involved in a wide-ranging and longstanding conspiracy to manufacture and distribute methamphetamine. As charged in the indictment, Straub was involved

UNITED STATES v. STRAUB 10683
in the sale and distribution of both marijuana and methamphetamine for a continuous period between 1998 and September 2004. Straub was part of a gang known as “The White

Neck Crew” or just “The Crew.” Straub and his associates

were in the business of unlawfully entering the residences of

other drug dealers in order to steal cash and drugs for later

distribution. In the many robberies they committed over a

five-year period, Straub and others wore body armor and displayed firearms. The indictment alleged, inter alia, that on

February 8, 2003, Straub and another person carried and used

a firearm in connection with an attempt to rob Robert Garrett

and take more than 100 marijuana plants. Straub allegedly

discharged a firearm in connection with this robbery. 

On November 23, 2004, Straub was charged in a Second

Superseding Indictment with conspiracy, possession with

intent to distribute, and manufacture of methamphetamine and

marijuana.1 Of particular relevance to this appeal, Counts 3

and 4 of the indictment related to the carrying, using, and discharging of a firearm in connection with the attempted robbery of Robert Garrett in his residence on February 8, 2003.

At trial, the prosecution relied heavily on the testimony of

David Adams. Adams was an associate of Straub’s who, at

6′ 5′′ and 365 pounds, was known as “Big Mix.” According

to the prosecution’s own stipulation, Adams admitted to participating in: (1) the attempted robbery of the home of Robert

1Straub was charged as follows: Count 1, conspiracy to manufacture

and distribute marijuana and methamphetamine, 21 U.S.C. §§ 841(a)(1),

21 U.S.C. § 846(b)(1)(A)(iii), 21 U.S.C. 846(b)(1)(B)(ii); Count 2, manufacturing marijuana, 21 U.S.C. § 841(a)(1); Count 3, carrying, using and

discharging a firearm in relation to a drug trafficking crime causing physical injury to another person, 18 U.S.C. § 924(c)(1)(A)(iii); Count 4,

attempted possession with intent to distribute more than 100 marijuana

plants, 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(vii), 846; Count 5, possession

with intent to distribute more than 350 grams of a mixture containing

methamphetamine, 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(viii); and Count 6

possession with intent to distribute more than 50 grams of “actual”

methamphetamine, 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(viii). 

10684 UNITED STATES v. STRAUB
Garrett, during which Garrett was shot in the chest; (2) an

attempt to steal 50 or 60 pounds of marijuana from the home

of Jacob Adams, during which a gun was discharged; and (3)

a series of successful robberies of large quantities of cash,

methamphetamines, and marijuana from homes of local drug

dealers. In exchange for his testimony against Straub, the

prosecution granted Adams use immunity2 for these crimes.3

Adams testified that he participated with Straub in the

attempted robbery of Garrett, and that Straub was the person

who shot Garrett. Adams was the only witness for the prosecution who could place Straub at the scene, and the only witness who could put the gun in Straub’s hand. 

In a colloquy held outside of the presence of the jury,

Straub’s attorney explained to the district judge that he

wanted to impeach Adams by introducing a prior inconsistent

statement, but that the defense witness who could testify as to

the inconsistent statement wanted to assert his Fifth Amendment privilege against self-incrimination. To demonstrate,

Straub’s attorney asked Adams the question he hoped to ask

on the stand: “Mr. Adams, did you have a conversation with

Mike Bauman[n] at a bar in the winter of 2003 in which you

admitted to him that you had just shot a man?” Adams

responded, “No, I didn’t.” Straub’s attorney then stated that

Adams’ response was the statement he planned to impeach

through the testimony of Mike Baumann. The following colloquy ensued:

2The government’s power to grant a witness use immunity is conferred

by 18 U.S.C. §§ 6002 and 6003. “Use immunity means that, while the

government may prosecute the witness for an offense related to the subject

matter of the witness’s testimony, the testimony itself and any ‘fruits’

thereof may not be used against the witness in any criminal case except

a prosecution for perjury arising out of the testimony.” United States v.

Lord, 711 F.2d 887, 890 (9th Cir. 1983). 

3We discuss the details of the immunity agreement and other incentives

to testify provided by the prosecution in greater detail below. 

UNITED STATES v. STRAUB 10685
[Defense]: I would call Mr. Bauman[n] . . . and it is

my expectation he would testify that he saw Mr.

Adams at one of the night clubs . . . and Mr. Adams

was glum and sullen, and Mr. Bauman[n] asked him

what’s the matter, and Mr. Adams said, “I just shot

a man.” 

The Court: Well, I don’t know that that is relevant

at this point. I mean, he could have shot somebody

else. 

[Defense]: I would establish the timeframe, Your

Honor, by the winter of 2003, which is consistent

with the testimony we’ve been hearing about the

shooting of Robert Garrett on February 8, 2003. 

The Court: I’m not suggesting that he shot anybody,

but clearly it’s possible that he could have shot several people about that time period. This is a wild

story we’re hearing all through the whole case, and

I can’t conclude from that that he’s talking about this

case. 

[Defense]: Well, the jurors could draw that inference, though, Your Honor, and I think it’s a fair

inference, and in defending my client I think I have

the right to present that evidence. 

* * * 

[Prosecution]: I believe Mr. Bauman[n] is a fellow

gang member of the defendant Straub and was identified and with him as a gang member in a gang

investigation in ‘92. The Court knows that gang

members will take the stand and lie for one another

and that that is a proper subject of testimony in the

case. And if Mr. Bauman[n] would come to testify,

and he certainly may, I intend to examine him:

10686 UNITED STATES v. STRAUB
Aren’t you a member of the gang with which the

defendant belongs. And aren’t you here lying for

him as a gang member and dealing with it at that

time. I think that’s appropriate. 

[Defense]: And, Your Honor, I’m not sure, I’d let

[Mr. Baumann’s lawyer] address this. I’m not sure

that that would raise the Fifth Amendment concerns

if that is as far as the cross-examination went. So—

* * * 

[Mr. Bauman’s Attorney]: My client does wish to

assert a Fifth Amendment privilege. In this case the

Government has alleged a far-reaching conspiracy

and— 

The Court: You don’t have to go any further. Based

on [the prosecutor’s] statement about what he

intends to cross-examine about, it’s clear that your

client could be subjected to all kinds of criminal proceedings including perjury if he doesn’t testify accurately. 

So, I — I’m — I guess the ruling properly is that he

can come and testify, but if he does and takes the

Fifth Amendment, I will allow him to remain silent.

I don’t think— [Defense counsel] hasn’t asked me

and I doubt that I would be justified in granting him

any kind of immunity to testify. 

[Defense]: That is my last resort, Your Honor, if you

would grant immunity under 18 U.S.C. 6001, the

Government has that opportunity and it’s just inherently unfair for the defendant to have no access to

the same power. 

The Court: Under certain circumstances I could

grant immunity, but I don’t think that I should based

UNITED STATES v. STRAUB 10687
on what you’ve said in your offer of proof. I don’t

— I don’t think that’s appropriate. So that’s my ruling. It’s on the record. You can decide whether

you’re going to call him or not. 

* * * 

[Defense]: I don’t intend to call the witness who is

going to take the Fifth Amendment on the stand in

front of the jury, Your Honor. And I don’t mean to

waive my claim to present his evidence, but I do

think it would be prejudicial to put on a witness and

take the Fifth. 

Following a five-day trial, Straub was convicted on Counts

1, 3, 4, 5, and 6. On January 23, 2006, the district court sentenced Straub to 152 months on the drug charges (Counts 1,

4, 5, and 6) and an additional statutorily mandated consecutive term of 120 months on the firearms charge (Count 3),

pursuant to 18 U.S.C. § 924(c)(1). 

B

Straub timely appealed to this court for the first time on

February 21, 2006. In that appeal, Straub challenged: (1) the

district court’s denial of a motion to sever Counts 3 and 4 of

the indictment from the rest of the trial; and (2) the district

court’s denial of a request to compel the prosecution to grant

use immunity to defense witness Baumann. In an unpublished

memorandum, we held that the district court did not abuse its

discretion in denying the motion to sever. See United States

v. Straub, 224 Fed. App’x 633, 2007 WL 731348 (9th Cir.

March 12, 2007). Considering the district court’s refusal to

compel use immunity, we remanded for an evidentiary hearing because we were unable to determine from the record

whether or not compelled use immunity was constitutionally

required. As we characterized Straub’s position, “[Straub]

does not allege prosecutorial misconduct, but he does main10688 UNITED STATES v. STRAUB
tain that immunity was warranted because the government

gave immunity or special considerations to many of its witnesses, while refusing immunity for Bauman[n].” Id. at 635.

We stated that on remand, Straub would need to show, inter

alia, that “the government granted immunity to certain witnesses while denying immunity to a witness who would have

‘directly contradicted’ testimony from the immunized government witness.” Id. (citing Williams, 384 F.3d at 600). We suggested that the district court gather “[i]nformation on why

Bauman[n] required immunity, greater detail about his proposed testimony and the immunity agreements the government gave to its other witnesses.” Id. 

1

On April 24, 2007, on remand from this court, the district

court held an evidentiary hearing. The court meticulously followed our instructions and gathered the information suggested

by our order. First, the district court cleared the courtroom of

everyone except Baumann and his counsel and took in camera testimony as to why Baumann required immunity. This

portion of the record remains under seal. Although Baumann’s counsel provided more detail in the sealed portion of

the record, his statements only elaborated on the arguments

made in the presence of all parties’ counsel when this issue

was first discussed at Straub’s trial in 2006. In short, the prosecution had stated that if Baumann took the stand, it intended

to attempt to impeach him by soliciting testimony about Baumann’s association with Straub and his membership in the

gang. Given the wide-ranging nature of the conspiracy as

alleged in the prosecution’s indictment, Baumann considered

it necessary to invoke the Fifth Amendment to prevent his testimony to his gang membership being used against him in a

subsequent prosecution for acts of conspiracy related to those

for which Straub was on trial. 

The district court also asked the prosecution what else it

knew about Baumann that would have caused it to prosecute

UNITED STATES v. STRAUB 10689
him. The prosecutor stated that Baumann was found with

Straub on one occasion committing a criminal offense, and

that another witness was willing to testify that Baumann had

loaned Straub money. However, the prosecutor insisted:

Baumann was not in any way a target of the criminal

prosecution . . . . Baumann was nowhere on the radar

screen. He was nowhere of any concern to the Government as a potential defendant. . . . Baumann was

not a target. We weren’t after Baumann. We had no

interest in Baumann as a criminal defendant, and we

had no evidence that Baumann was involved in this

conspiracy at all. None whatsoever.

The district responded, “Why didn’t you immunize him?” To

which the prosecutor responded, “I wasn’t asked.” 

Next, the district court gathered evidence on the grants of

immunity given by the prosecution to Adams and other government witnesses. This evidence was provided by an

Amended Joint Stipulation of Facts entered into by the parties. According to the Stipulation, despite Adams’ having

admitted to attempted armed robbery and numerous other

thefts of cash and drugs, Adams was provided use immunity

“except with respect to violent crimes” in exchange for his

testimony. Although the formal agreement did not grant

immunity for violent crimes, it appears Adams was given

informal immunity, as he was never prosecuted for any of his

violent crimes. Adams was charged with a single count of

intimidation of a federal witness, in violation of 18 U.S.C.

§ 1512. For this one crime, Adams pleaded guilty, and in the

plea agreement, the government agreed “not to file or seek

any new or additional charges against [Adams] . . . arising out

of the investigation of this case.” At sentencing for this conviction, the judge noted that Adams’ sentence represented a

downward departure of “three or four or five years because of

[his] cooperation” with the government. According to the

Stipulation, Adams was released from prison on October 26,

10690 UNITED STATES v. STRAUB
2006, while Straub’s projected release date, stemming from

the convictions which Adams’ testimony helped secure, was

February 26, 2024. 

The Joint Stipulation also provided evidence as to the

incentives—use immunity, informal immunity, sentence

reductions, and even cash—offered to the prosecution’s other

witnesses for their testimony against Straub. The Stipulation

is long, and we need not recount every detail. In summary, of

the thirteen witnesses the government and Straub called or

intended to call, eleven of the twelve government witnesses

received some kind of immunity or other benefits. Most of

these witnesses admitted to significant federal crimes. For

example, Dustin Alsup testified that he: (1) partnered with

another gang member in drug trafficking; (2) was arrested

after a Tupperware container full of methamphetamines was

found in his freezer; (3) grew a “large amount” of marijuana

plants; (4) manufactured methamphetamines in a house in the

area; (5) continued to make and distribute methamphetamines

in another location; (6) sold a minimum of 40 pounds of

methamphetamines for at least $200,000 and a minimum of

40 pounds of marijuana for at least $100,000; (7) bought

drugs from Straub; and (8) manufactured “pounds and

pounds” of methamphetamines over the years. Shortly after

he was arrested, Alsup entered into a proffer agreement with

the government which provided him with use immunity. In

addition, Alsup agreed to plead guilty for possession with

intent to distribute at least 15 grams of methamphetamines,

which carried a 10-year minimum sentence. Despite his testimony that he had manufactured and sold great quantities of

drugs, and despite his pleading to a crime with a 10-year

minimum sentence, Alsup was eventually sentenced to only

30 months in prison, all in exchange for his cooperation with

the government. 

As another example, Jacob McCord testified that he (1) was

a methamphetamine cook for several years; (2) assisted

Straub in growing marijuana at Straub’s house; (3) stole 40

UNITED STATES v. STRAUB 10691
marijuana plants from Straub; (4) used drugs; (5) sold 50

pounds of methamphetamine to Straub for $300,000; (6) purchased chemicals for use in manufacturing methamphetamines; (7) had 120 grams of methamphetamine seized from

his house by police; and (8) obtained chemicals for further

methamphetamine manufacturing while on pretrial release.

McCord knew he faced a Guidelines-recommended sentence

of 135 to 168 months for the 120 grams of methamphetamines

alone, and that he faced a minimum of 10 years under the

drug statute. In exchange for his testimony against Straub,

McCord was permitted to plead guilty to possession with

intent to distribute, and, following his testimony against

Straub, his sentence was reduced to 63 months in prison.

McCord was also never charged with possessing a loaded .38

caliber pistol found on the floor of one of his residences. As

a final example, Jason Shaw testified to being a methemphetamine dealer for a few months, a “big” drug dealer for a couple of years, growing several marijuana plants, and using

drugs himself. Shaw was paid a total of $8,300 for providing

assistance to state and federal governments in drug investigations. He was also given informal immunity and “expects not

to be prosecuted for any crime.” In addition to these three and

David Adams, the government granted immunity or some

other kind of benefit to Grant McFarland, Jeff Center, Anita

Wealand, Lisa Clark, Cory Don Smith, Joseph Mockley, and

Jacob Adams. The government did not grant immunity to one

of its witnesses, Misty Dawn Day, who testified that she is a

drug user. 

The one defense witness listed in the Stipulation, Mike

Baumann, was denied use immunity. 

Finally, the district court moved on to the issue of whether

Baumann’s testimony would have directly contradicted

Adams’ testimony. Adams was prepared to testify that he did

not walk into a bar in the winter of 2003 and tell someone that

he shot a man. Baumann was prepared to testify that on February 8, 2003, Adams walked into a club, acting “very glum

10692 UNITED STATES v. STRAUB
and quiet and morose,” and told Baumann, “I just shot a man.”

4

Straub’s counsel5 explained the importance of this contradiction:

If that evidence had been heard, if that testimony had

been heard by the jury, [the defense counsel] could

have argued that based on that[,] Mr. Adams was

himself perhaps the shooter of Robert Garrett. That

perhaps his credibility was so suspect, if he’s willing

to lie about the key element of his testimony, the

shooter who shot Robert Garrett, if he’s lying about

that, the jury could have discredited his testimony in

its entirety. 

. . . [T]here were already a host of credibility problems with Mr. Adams, as the Government admits.

He admitted to lying to the police, he admitted to

lying to the Government when it helps him, especially when he could help himself. He admitted to

threatening to beat up his own grandmother. He

admitted to numerous drug and violent crimes. His

credibility was already hanging in the balance,

Judge.

And if Michael Baumann could testify, it could have

been the tipping point that the jury would have used

to discredit Adams’ testimony in its entirety. And if

they had done that, they likely would have

acquit[t]ed on Counts 3 and 4[, ] having to do with

the Robert Garrett shooting. And that resulted in Mr.

4Baumann himself never testified, either at trial or in a colloquy outside

of the presence of the jury. At different hearings, the parties’ attorneys

described what Adams told Baumann variously as “I just shot a man,” “I

just shot a guy,” and “I’ve shot somebody.” These discrepancies are irrelevant to this appeal. 

5Straub was represented by new counsel beginning with the first appeal

to our court. 

UNITED STATES v. STRAUB 10693
Straub getting 10 extra years in prison. Instead of 13

years he gets 23 years. So he has to sit in prison for

ten extra years wondering every day what might

have happened if Michael Baumann had testified.

The prosecution made several arguments in rebuttal. It

argued that Adams was not the star witness Straub made him

out to be. Because the trial judge gave a Pinkerton instruction,6

the jury did not need to find that Straub held the gun in order

to hold him liable. This, the prosecution argued, downplayed

the importance of Adams being the only witness to place the

gun in Straub’s hand—the jury could have convicted whether

it was Straub or Adams who pulled the trigger. The prosecution also argued that the testimony of Misty Dawn Day supported its case on Counts 3 and 4. Day testified that, while

high on marijuana, she overheard Straub and Adams planning

the robbery through a closed door. The prosecutor conceded

that the government had given numerous incentives to many

witnesses to testify against Straub, but he represented that

there was no intent to distort the fact-finding process. The

prosecutor also reiterated that he was never formally asked to

give immunity to Baumann. 

2

On May 11, 2007, the district court entered an order again

denying Straub’s request to compel the government to offer

use immunity to Baumann. The court recounted that the prosecution represented that it “had no interest in Baumann as a

criminal defendant . . . . None whatsoever.” At the same time,

the court noted, the prosecutor had asserted that “Baumann

was found with this defendant . . . committing a criminal

offense . . . . And Baumann was in fact . . . a gang member,

a friend of the defendant.” The prosecutor had also made clear

that his cross-examination of Baumann would begin by drawing out information about Baumann’s gang membership and

6Pinkerton v. United States, 328 U.S. 640 (1946). 

10694 UNITED STATES v. STRAUB
willingness to do anything for Straub. Under these circumstances, the district court re-affirmed its prior ruling that Baumann’s assertion of privilege was proper, citing Kastigar v.

United States, 406 U.S. 441, 445 (1972), and United States v.

Hoffman, 341 U.S. 479, 486 (1951).7

Turning to the issue of whether the prosecution’s conduct

had distorted the fact-finding process, the district court

expressed some hesitation as to the Ninth Circuit law on this

issue. The court stated that it could not be sure from our precedents in Williams, Young, Baker, and Westerdahl whether,

in order to compel use immunity, Straub had to prove that the

denial of use immunity to Baumann implicated prosecutorial

misconduct. See Williams, 384 F.3d at 600; United States v.

Young, 86 F.3d 944, 949 (9th Cir. 1996); United States v.

Baker, 10 F.3d 1374, 1415 (9th Cir. 1993), overruled on other

grounds, United States v. Nordby, 225 F.3d 1053 (9th Cir.

2000); United States v. Westerdahl, 945 F.2d 1083, 1087 (9th

Cir. 1991). The district court was unclear as to whether Straub

must prove that the prosecution acted with the purpose of distorting the fact-finding process, or merely that the prosecution’s conduct had the effect of distorting the fact-finding

process. Therefore, the court made alternative rulings under

each theory. 

The court ruled that if prosecutorial conduct is a required

element—that the prosecution acted with the purpose of distorting the fact-finding process—then Straub’s claim failed.

As we had noted in our memorandum, Straub did not allege

prosecutorial misconduct. See Straub, 224 Fed. App’x at 635.

Thus, he was not entitled to compel use immunity under a

“purpose” theory. 

7We recount the district court’s ruling on whether Baumann properly

invoked the Fifth Amendment only to enrich the record. The propriety of

the witness’s invocation of the Fifth Amendment is not a prong of the test

for compelled use immunity. See Williams, 384 F.3d at 600. Our opinion

should not be construed as adding any such prong. 

UNITED STATES v. STRAUB 10695
The court then considered Straub’s claim under the theory

that a showing of the mere effect of distorting the fact-finding

process was sufficient. The court found that the testimony of

David Adams was “crucial” to the prosecution’s case on

Counts 3 and 4. Adams was the only witness who testified

that Straub was armed on the night of the robbery. Adams

also testified that, although he did not see Straub shoot Garrett, he heard the gunshot, and that he saw Straub fire other

shots that night and during a previous robbery. The district

court acknowledged the prosecution’s argument that because

of the Pinkerton instruction, the jury could have theoretically

convicted Straub even if it did not believe he was the shooter.

“Nevertheless,” the court ruled, “the testimony of Adams was

important to the prosecution’s case. If a jury believed that

Adams lied about this, and was shifting the blame to Straub

for his own actions, it would seriously weaken the government’s case on counts three and four . . . . The defense could

have argued that Adams, not Straub, orchestrated the Garrett

robbery and shooting, without Straub’s involvement or

knowledge.” The district court also considered the prosecution’s arguments about Misty Dawn Day, but found that

“[D]ay’s testimony, by itself, would not be enough to sustain

a conviction on counts three and four.” 

The district court then ruled that Straub’s claim failed

because the testimony of Mike Baumann did not “directly

contradict” that of Adams. See Williams, 384 F.3d at 600

(holding that the testimony must have “directly contradicted”

testimony from the immunized government witness). The

court noted that Adams was prepared to deny that on the night

in question he told Baumann, “I just shot a guy,” and that

Baumann was prepared to testify that Adams told him, “I just

shot a guy.” The court ruled, however, that even if Adams did

say, “I just shot a guy,” this did not prove he actually shot

someone. “Adams might have been joking, or trying to appear

tough,” or indicating he was merely present when Garrett was

shot. Furthermore, the court ruled, “even accepting the Baumann proffer literally, it does not prove Adams was referring

10696 UNITED STATES v. STRAUB
to Garrett.” The court concluded that Baumann’s testimony

“would have given the defense some additional ammunition

in attacking the credibility of Adams, but would not ‘directly

contradict’ the most important testimony by Adams, nor

clearly exonerate Straub on these two counts.” The court

declined to compel use immunity. Straub appealed for a second time.

II

The question of whether a district court erred by refusing

to compel use immunity is a mixed question of law and fact

that we review de novo. United States v. Alvarez, 358 F.3d

1194, 1216 (9th Cir. 2004). Factual findings underlying the

district court’s ruling are reviewed for clear error. Id.

[1] There are important separation of powers concerns present in a request to compel immunity:

It has long been recognized that the Executive

Branch of government has exclusive authority and

absolute discretion to decide whether to prosecute a

case . . . . To interpret the Fifth and Sixth Amendments as conferring on the defendant the power to

demand immunity for co-defendants, potential codefendants, or others whom the government might in

its discretion wish to prosecute would unacceptably

alter the historic role of the Executive Branch in

criminal prosecutions. Of course, whatever power

the government possesses may not be exercised in a

manner which denies the defendant the due process

guaranteed by the Fifth Amendment. 

United States v. Alessio, 528 F.2d 1079, 1081-82 (9th Cir.

1976) (internal quotation marks and citations omitted). Our

test for when due process requires that the district court

impede on the discretion of the executive branch and compel

UNITED STATES v. STRAUB 10697
use immunity has evolved over time. In Williams, we stated

the test as follows:

[T]he prosecution’s refusal to grant use immunity to

a defense witness denies the defendant a fair trial

only when (1) the witness’s testimony would have

been relevant, and (2) the prosecution refused to

grant the witness use immunity with the deliberate

intention of distorting the fact-finding process. . . .

To demonstrate the prosecutorial misconduct of the

second prong, [the defendant] must show that the

prosecution intentionally caused a defense witness to

invoke the Fifth Amendment right against selfincrimination, or that the prosecution granted immunity to a government witness in order to obtain that

witness’s testimony, but denied immunity to a

defense witness whose testimony would have

directly contradicted that of the government witness.

384 F.3d at 600 (citations omitted and emphases added). 

As the district court observed, the facts of this case have

isolated an ambiguity in our test as stated in Williams. The

second prong of the test is that “the prosecution refused to

grant the witness use immunity with the deliberate intention

of distorting the fact-finding process.” Id. (emphasis added).

Williams stated that prong may be satisfied in one of two

ways. One would expect that both methods are designed to

prove “deliberate intention.” However, the two alternative

methods of showing misconduct differ in that only the first

describes conduct with a particular intent: “the prosecution

intentionally caused a defense witness to invoke” his Fifth

Amendment rights. Id. The second merely requires showing

that “the prosecution granted immunity to a government witness in order to obtain that witness’s testimony, but denied

immunity to a defense witness whose testimony would have

directly contradicted that of the government witness.” Id. The

Williams test uses the word “or” between the two methods for

10698 UNITED STATES v. STRAUB
proving the second prong of the test, suggesting that the two

methods are disjunctive; only one need be proven, not both.

Both parties agreed to this at oral argument. Thus, our test as

it has been refined over time suggests that one may prove that

the prosecution acted with a certain purpose merely by demonstrating that the prosecution committed a set of acts (the

selective denial of use immunity described) that had the effect

of distorting the fact-finding process. Straub has conceded

that the prosecution did not act with the purpose of distorting

the fact-finding process. He argues that he is entitled to a

grant of use immunity because the government’s conduct otherwise met the Williams test and had the effect of distorting

the fact-finding process. 

In order to determine whether Straub is correct, we first

work through the first prong and first alternative method for

proving the second prong as they apply to Straub. We then

turn to the cases leading to Williams for guidance in interpreting Williams. Because, as discussed below, we find that our

precedents lead to the conclusion that a showing of effects is

sufficient, we then apply this method of proving the second

prong of the Williams test to Straub’s claim. 

A

The first prong under the Williams test is that “the witness’s

testimony would have been relevant.” 384 F.3d at 600. We

have described the relevance requirement for purposes of the

Williams test as “minimal.” Id. The defendant “need not show

that the testimony sought was either clearly exculpatory or

essential to the defense.” Westerdahl, 945 F.2d at 1086 (internal quotation marks omitted). In our previous memorandum

disposition, we found that Baumann’s testimony was relevant

because it raised credibility questions about a key prosecution

witness. See 224 Fed. App’x at 635. As the district court put

it, “Baumann’s testimony would have given the defense some

additional ammunition in attacking the credibility of Adams.”

If the jury credited Baumann, it could have found that Adams

UNITED STATES v. STRAUB 10699
was a perjurer and might even be lying to shift the blame for

his own conduct on to Straub. Straub satisfies the first prong.

[2] The second prong under the Williams test is that “the

prosecution refused to grant the witness use immunity with

the deliberate intention of distorting the fact-finding process.”

Williams, 384 F.3d at 600. As the first of two alternative

methods, the defendant may satisfy this prong by showing

“that the prosecution intentionally caused a defense witness to

invoke the Fifth Amendment right against self incrimination.”

Id. This method includes the word “intentionally.” In one

sense, any time the prosecution causes a witness to invoke his

Fifth Amendment right, this could be described as “intentional.” A decision to cross-examine a defense witness is a product of strategic analysis by the prosecution. The inclusion,

then, of the word “intentional” in Williams suggests that the

defendant seeking to compel immunity must demonstrate

something more than the prosecution’s mere “intention” to

cross-examine the witness.8 Our cases have insisted that the

government’s actions need to amount to something akin to

prosecutorial misconduct. In Williams, we stated that resolution of this claim “turns on whether the prosecution took affirmative steps to prevent Williams’s witnesses from testifying.”

384 F.3d at 601 (emphasis added). We elaborated:

Undue prosecutorial interference in a defense witness’s decision to testify arises when the prosecution

intimidates or harasses the witness to discourage the

witness from testifying, for example, by threatening

the witness with prosecution for perjury or other

offenses. . . . The prosecution’s conduct must

8As Straub conceded at oral argument, there may be occasions where

the defense witness decides on his own to invoke the Fifth Amendment,

even in the absence of an indication from the prosecution that it intends

to cross-examine the witness. Such a scenario would not satisfy the

requirement that “the prosecution intentionally caused a defense witness

to” take the Fifth. 

10700 UNITED STATES v. STRAUB
amount to a substantial interference with the defense

witness’s free and unhampered determination to testify before the conduct violates the defendant’s right

to due process.

Id. at 601-02; see also United States v. Lord, 711 F.2d 887,

891 (9th Cir. 1983) (holding that the record supported finding

that “prosecutorial misconduct” caused the defense witness to

invoke his Fifth Amendment privilege because the prosecutor

told the witness that “whether he would be prosecuted

depended on his testimony”); United States v. Paris, 827 F.2d

395, 401 (9th Cir. 1987); United States v. Touw, 769 F.2d

571, 573 (9th Cir. 1985). As Straub has not alleged prosecutorial misconduct, he cannot prevail under this theory. 

B

[3] The alternative way that a defendant may satisfy the

second prong of the Williams test is by showing that “that the

prosecution granted immunity to a government witness in

order to obtain that witness’s testimony, but denied immunity

to a defense witness whose testimony would have directly

contradicted that of the government witness.” 384 F.3d at 600.

As discussed above, ambiguity arises because demonstrating

that the conduct described, which we shall refer to as the “selective denial of immunity,” had the effect of distorting the

fact-finding process does not necessarily demonstrate that the

prosecution had the “deliberate intention of distorting the factfinding process.” Id. A careful review of our cases leads us to

the conclusion that, notwithstanding this ambiguity in phrasing, a showing that the selective denial of immunity had the

effect of distorting the fact-finding process is sufficient.

1

Few of our cases considering compelled use immunity have

had to confront the purpose/effects question, because there,

since the defendant’s witnesses frequently offered evidence

UNITED STATES v. STRAUB 10701
that was irrelevant, we had no need to consider the purpose

or effect of the government’s denial of immunity. See, e.g.,

United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004)

(the testimony sought did not directly contradict statements by

the government’s witnesses); United States v. Brutzman, 731

F.2d 1449, 1452 (9th Cir. 1984) (the testimony was cumulative or “not exculpatory”); Alessio, 528 F.2d at 1082 (“The

testimony sought by appellant was cumulative . . . .”). 

In Lord, our earliest case to develop a test for compelled

use immunity, we adopted the Third Circuit’s rule that “ ‘[t]he

defendant must be prepared to show that the government’s

decisions were made with the deliberate intention of distorting

the judicial fact[-]finding process.’ ” 711 F.2d at 890 (quoting

United States v. Herman, 589 F.2d 1191, 1204 (3d Cir.

1978)). Lord also adopted the Third Circuit’s subsequent

developments of this rule, in Virgin Islands v. Smith, 615 F.2d

964 (3d Cir. 1980). As Lord describes Smith, the refined test

was:

whether the federal prosecutor, in refusing to consent

to extending immunity to the defense witness, acted

with a deliberate intention of distorting the factfinding process. . . . If the district court found that

prosecutorial misconduct had prevented the defense

witness from giving relevant testimony, then the

court was directed to acquit the defendant unless the

prosecutor granted use immunity to the defense witness. 

711 F.2d at 891 (citations omitted). Thus, Lord required prosecutorial misconduct as an element of the test. However,

Lord did not consider selective denial of immunity that was

admittedly not prosecutorial misconduct but that had the

alleged effect of distorting the fact-finding process. Lord only

considered a claim under the other method of showing prosecutorial misconduct—intentionally causing a defendant to

take the Fifth. The dispositive fact was that the defense wit10702 UNITED STATES v. STRAUB
ness “testified that before trial the prosecutor told him that

whether he would be prosecuted depended on his testimony.”

Id. Lord remanded for “further clarification of the prosecutor’s pre-trial comments” to the defense witness. Id. 

We expanded the test for compelled immunity in Westerdahl. We began with the acknowledgment that if the prosecution intentionally caused the witness to invoke the Fifth

Amendment, the law of our circuit clearly compelled a grant

of use immunity: “In the past, our decisions on prosecutorial

misconduct have focused on whether the government or its

agents took affirmative actions to prevent defense witnesses

from testifying.” 945 F.2d at 1086. We then suggested that a

“selective denial of immunity” test was also viable:

“[M]isconduct is not confined solely to situations in which the

government affirmatively induces a witness not to testify in

favor of a defendant.” Id. at 1087. Although Lord only dealt

with a claim that the prosecution intentionally caused a

defense witness to invoke the Fifth Amendment, we reasoned

that “[f]or the government to grant immunity to a witness in

order to obtain his testimony, while denying immunity to a

defense witness whose testimony would directly contradict

that of the government witness, is the type of fact-finding distortion we intended to prevent in Lord.” Id. We remanded for

an evidentiary hearing, saying that “where two eyewitnesses

tell conflicting stories, and only the witness testifying for the

government is granted immunity, the defendant would be

denied any semblance of a fair trial” and thus compelled

immunity would be the proper remedy. Id. (internal citation

and quotation marks omitted). 

Our subsequent opinions have continued to state that there

are two methods by which the defendant seeking to compel

immunity may demonstrate a distortion of the fact-finding

process, but none have been presented with the purpose/effect

issue we confront here. In United States v. Baker, for example, we summarized the test for compelled immunity,

acknowledging both the Lord test and the Westerdahl test. 10

UNITED STATES v. STRAUB 10703
F.3d at 1414. In that case, the defendant’s claim for compelled immunity was so weak on so many elements that we

had no occasion to consider the purpose/effect question. The

individual that the defense sought to exonerate with testimony

from a witness who was denied use immunity was not even

charged with the murder about which the non-immunized witness could testify. See id. 1414-15. Moreover, the proffered

testimony was inadmissible hearsay. In United States v.

Young, we found strong evidence that the defendant’s witness

did in fact have relevant testimony that would have

impeached the government’s star witness. See 86 F.3d at 948.

Holding that the defendant likely had a strong claim for compelled immunity under Westerdahl, we remanded for an evidentiary hearing “as to whether the government intentionally

distorted the fact-finding process.” Id. at 949. We had no

occasion to consider whether the mere effect of distorting the

fact-finding process might be sufficient. See also United

States v. Duran, 189 F.3d 1071, 1087 (9th Cir. 1999) (holding

that defendant had not demonstrated either the Lord or

Westerdahl bases for compelling immunity). 

2

[4] We conclude that our statement of the test for compelled immunity in Williams, to the extent it appears ambiguous, merely reflects the fact that while we have previously

suggested that an effects test is viable, we have never yet been

presented with such a case. It is equally clear that our jurisprudence has anticipated endorsing an effects test where the

other elements of the test have been satisfied. The separation

of powers concerns implicated by compelled immunity suggest that we should be hesitant in expanding Williams; nevertheless, the logic of Williams and the cases it drew from

supports the adoption of an effects test. Even where the government has not denied a defense witness immunity for the

very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in

a way that has severely distorted the fact-finding process at

10704 UNITED STATES v. STRAUB
trial. See Westerdahl, 945 F.2d at 1087 (“Previously, we

noted in dicta that where two eyewitnesses tell conflicting stories, and only the witness testifying for the government is

granted immunity, the defendant would be denied ‘any semblance of a fair trial.’ ” (quoting Brutzman, 731 F.2d at 1452).

In those cases where the government has liberally used its discretion to grant immunity to numerous witnesses, and the

defendant’s witness could offer relevant testimony that would

directly contradict that of an immunized government witness,

the trial may become so fundamentally unfair that the defendant’s due process rights are implicated. 

Our approach is consistent with Supreme Court authority

on due process at trial. When dealing with due process rights

“outside the courtroom,” the Court has been hesitant to find

constitutional violations by law enforcement absent some

kind of malicious intent. See, e.g., County of Sacramento v.

Lewis, 523 U.S. 833, 842, 855 (1998) (noting that “we have

always been reluctant to expand the concept of substantive

due process” and holding that a high-speed police car chase

does not violate substantive due process unless the officer

acted with intent to harm (quotation marks and citation omitted)); Daniels v. Williams, 474 U.S. 327, 328, 331-32 (1986)

(holding that a prisoner’s due process rights were not violated

when he slipped on a pillow negligently left on the stairs by

a correctional deputy, because “[h]istorically, [the] guarantee

of due process has been applied to deliberate decisions of

government officials to deprive a person of life, liberty, or

property”); Bingue v. Prunchak, 512 F.3d 1169, 1177 (9th

Cir. 2008) (approving the Eighth Circuit’s observation that

the Court’s reluctance to expand the concept of substantive

due process suggests that the intent to harm standard applies

to both emergency and non-emergency high-speed police car

chases). However, when dealing with due process violations

in the context of the fundamental fairness of the trial, the

Supreme Court has been more concerned with protecting the

integrity of trial and the defendant’s right to mount a defense,

irrespective of any government intent to interfere with these

UNITED STATES v. STRAUB 10705
rights. 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. See, e.g., Brady v. Maryland,

373 U.S. 83, 87 (1963) (holding that “the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process . . . irrespective of the good faith or bad

faith of the prosecution” (emphasis added)); cf. Estelle v. Williams, 425 U.S. 501, 503-05 (1976) (holding that compelling

the accused to stand trial in jail garb violates due process

because it inherently impairs the jury’s basic presumption of

the defendant’s innocence). The Court has also been more

willing to find violations of other constitutional rights that

affect the fairness of trial even where there is no intent to

harm the accused’s defense. See, e.g., Doggett v. United

States, 505 U.S. 647, 656-57 (1992) (holding that the government may violate the defendant’s Sixth Amendment speedy

trial right even if it had no intent to harm the accused’s

defense). Moreover, the Court has repeatedly held that the

Sixth Amendment may require courts to hold unconstitutional

(as applied) certain evidentiary rules and privileges that prevent a defendant from mounting his defense—regardless of

the purpose of the rule. See Rock v. Arkansas, 483 U.S. 44,

51-53, 62 (1987); Davis v. Alaska, 415 U.S. 308, 320 (1974);

Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973); Washington v. Texas, 388 U.S. 14, 19 (1967). The right to compel

use immunity because of selective denial of immunity is a

right to due process “inside the courtroom,” where the Constitution focuses our attention on the fundamental fairness of the

trial more than on the intentions—whether good or bad—of

the prosecution. 

Finally our conclusion that an effects test is viable is supported by considering the remedy the defendant seeks. The

court’s decision to compel use immunity is not a sanction for

prosecutorial misconduct; it is a vindication of the defendant’s

Fifth Amendment due process right to a trial in which the

fact-finding process has not been distorted. See Lord, 711

F.2d at 892 (“[T]he key issue in the analysis of defense use

10706 UNITED STATES v. STRAUB
immunity is whether the defendant was denied a fair trial.”).

Because compelling use immunity is not a sanction for prosecutorial misconduct, it follows that the defendant need not

prove that the prosecution acted intentionally to distort the

fact-finding process where the other elements of the Williams

test are met. Moreover, the remedy granted is neither an automatic acquittal for the defendant, nor an automatic grant of

use immunity for the defense witness. In the Lord scenario, in

which the prosecution intentionally caused the defense witness to invoke the Fifth, “[i]f the district court finds such prosecutorial misconduct by a preponderance of the evidence, it

should enter a judgment of acquittal for [the defendant] unless

the prosecution invokes 18 U.S.C. §§ 6002-6003 by asking

the district court to extend use immunity to [the defense witness] at a new trial.” Id. (footnote omitted). Where use immunity is required because of a selective denial of use immunity

that had the effect of distorting the fact-finding process, the

prosecution has a third option as well: it may, at a new trial,

attempt to proceed without the witness whose testimony

would have been contradicted by the defense witness. These

three options give the prosecution several choices and provide

some mitigation for the intrusion on prosecutorial discretion

that compelled use immunity causes. 

A survey of our opinions suggests that in the majority of

cases where a defendant seeks to compel immunity for a witness, that witness’s testimony will not be “directly contradictory” to that of the prosecution’s witness, or there will have

been no distortion of the fact-finding process, and the district

court may deny immunity on those bases. See Alvarez, 358

F.3d at 1216 (the testimony sought did not directly contradict

statements by the government’s witnesses); Duran, 189 F.3d

at 1087 (neither the Lord test nor the Westerdahl test was

even applicable); Baker, 10 F.3d at 1414-15 (defendant not

even charged with the crime about which defense witness

offered testimony); Brutzman, 731 F.2d at 1452 (evidence

was cumulative or “not exculpatory”); Alessio, 528 F.2d at

1082 (“The testimony sought by appellant was cumulative .

UNITED STATES v. STRAUB 10707
. . .”). As we discuss below, this case appears to be the rare

case in which the testimony was in fact directly contradictory.

Furthermore, the prosecution granted immunity and other

incentives to eleven of Straub’s co-conspirators, while denying immunity to the one witness who had testimony that, if

believed, would make the government’s key witness both a

perjurer and possibly the actual perpetrator of the crime.

There is an unmistakable air of unfairness to a trial conducted

under these circumstances, one that calls into question the

fundamental fairness of Straub’s trial and the meaningful protection of his due process rights. 

[5] In conclusion, we find that any ambiguity in Williams

arose because Williams and its predecessors recognized the

possibility of the case we have before us, but had not confronted such a case. We now hold that for a defendant to compel use immunity the defendant must show that: (1) the

defense witness’s testimony was relevant; and (2) either (a)

the prosecution intentionally caused the defense witness to

invoke the Fifth Amendment right against self-incrimination

with the purpose of distorting the fact-finding process; or (b)

the prosecution granted immunity to a government witness in

order to obtain that witness’s testimony, but denied immunity

to a defense witness whose testimony would have directly

contradicted that of the government witness, with the effect of

so distorting the fact-finding process that the defendant was

denied his due process right to a fundamentally fair trial. 

3

[6] Having clarified the applicable law, we turn to the district court’s ruling that, even under an effects test, Straub was

not entitled to compel use immunity for Baumann. We have

already stated that Baumann’s testimony would have been relevant and that Straub concedes the prosecution did not intentionally cause Baumann to invoke the Fifth Amendment.

Thus, we consider only whether the prosecution granted

immunity to a government witness in order to obtain the wit10708 UNITED STATES v. STRAUB
ness’s testimony but denied immunity to a defense witness

whose testimony would have directly contradicted that of the

government witness, with the effect of so distorting the factfinding process that the defendant was denied his due process

right to a fundamentally fair trial. 

[7] It is undisputed that the prosecution granted immunity

to Adams in order to obtain Adams’ testimony. We must next

determine whether Baumann’s testimony would have “directly contradicted,” Williams, 384 F.3d at 600, that of

Adams. Straub’s attorney was prepared to ask Adams: “Mr.

Adams, did you have a conversation with Mike Bauman[n] at

a bar in the winter of 2003 in which you admitted to him that

you had just shot a man?” Adams intended to reply: “No, I

didn’t.” Baumann would have testified that, some time during

the winter of 2003, Adams walked into a bar looking “glum

and sullen,” and said, “I just shot a guy.” If Baumann is prepared to testify that Adams stated, “I just shot a guy,” and

Adams is prepared to deny having made the statement, we

have no trouble concluding that Baumann’s testimony would

have “directly contradicted” that of Adams, and accordingly

that Straub has satisfied this element of the test for compelled

immunity. 

The district court gave several reasons why Baumann’s testimony did not “directly contradict” that of Adams. First, the

district court stated that, even if Adams made the statement,

it does not prove that he actually shot someone. He could

have been joking or bragging. The court also reasoned that

even if Adams had meant that he shot “someone,” there was

no proof the statement was an admission of shooting Garret.

The district court erred because Baumann’s statements, if

believed by the jury, could also support a finding that Adams

lied on the stand and possibly that Adams was the shooter.

The Williams test requires only that the testimony “directly

contradict” the government witness’s testimony on a relevant

issue, not that the testimony have compelled the jury to exonerate the defendant. Adams told the prosecution that he did

UNITED STATES v. STRAUB 10709
not tell Mike Baumann that he shot someone. Mike Baumann

said Adams did tell him that he shot someone. This is, simply

put, a direct contradiction. Adams may have been joking, or

he may have shot someone other than Garrett, but these are

matters for counsel to probe and the jury to decide. Baumann’s testimony satisfies the test for “directly contradictory”

because the testimony, if believed by the jury, could have supported a finding that the testimony directly contradicted that

of the government’s witness. The jury might have thought that

it was implausible that Adams was joking or bragging if he

appeared morose, and that it was unlikely that Adams shot

two men during the same time period and more likely that he

shot only one, Garrett. 

The fact that the proffered testimony need only support (as

opposed to compel) a finding by the jury that it was “directly

contradictory” is implied by the rest of the Williams test. The

first prong of the test is that the proffered testimony be relevant. Williams, 384 F.3d at 600. We have cautioned that the

relevance requirement is “minimal.” See id. The defendant

“need not show that the testimony sought was either ‘clearly

exculpatory’ or ‘essential to the defense.’ ” Westerdahl, 945

F.2d at 1086. It would narrow the due process right significantly if the test allows a low showing of relevance to pass the

first prong, only to require that the same evidence must compel the jury to find that it is “directly contradictory” for the

second prong. A brick, of course, is not a wall, and it would

contravene the holdings of Williams, Westerdahl, and Lord to

require that a defendant proffer a wall in order to compel use

immunity for his brick. 

[8] Finally, we must consider whether the prosecution’s

refusal to grant use immunity to Baumann had the effect of

so distorting the fact-finding process that the defendant was

denied his due process right to a fundamentally fair trial. The

district court found that Adams’s testimony was “crucial” to

the prosecution’s case. Adams was the only witness who testified Straub was armed that evening. Adams was also the only

10710 UNITED STATES v. STRAUB
witness who put Straub at the location of the crime. The court

found that, “if a jury believed that Adams lied about this, and

was shifting the blame to Straub for his own actions, it would

seriously weaken the government’s case on counts three and

four,” even under a Pinkerton instruction. The court also

found that “[Misty Dawn] Day’s testimony, by itself, would

not be enough to sustain a conviction on counts three and

four.” These findings of fact suggest that for the government

to grant use immunity for Adams while denying use immunity

to the one witness who could possibly portray Adams as a

perjurer and the true perpetrator of the crime had the effect of

distorting the fact-finding process. 

In addition to considering the fact that Adams was granted

use immunity, we may consider how the prosecution exercised its discretion to provide use immunity and other incentives to secure the testimony of its other witnesses. See

Westerdahl, 945 F.2d at 1087 (observing that the prosecution

had granted use immunity to two witnesses and dropped

charges against a third witness, while denying immunity to a

defense witness who could have contradicted one of the three

prosecution witnesses). The Amended Joint Stipulation of

Facts presents a remarkable picture. Of thirteen witnesses

described, all but one of the prosecution’s twelve witnesses

received either formal immunity, informal immunity, or other

substantial incentives such as cash compensation or a reduction of sentence in exchange for their testimony. Three government witnesses (David Adams, Alsup, and Smith) received

formal grants of use immunity. Seven government witnesses

(David Adams, Smith, McCord, Center, Weiland, Clark,

Shaw, Jacob Adams, Alsup) appear to have been granted

informal immunity, i.e., they were not charged with any of the

crimes to which they testified at trial, including serious drug

and weapons charges. Six government witnesses (David

Adams, McCord, McFarland, Smith, Mockley, Shaw)

received incentives for their testimony, including one who

was paid $8,300 for providing assistance, and another whose

sentence was reduced from 24 months in prison to three years

UNITED STATES v. STRAUB 10711
probation. Only one government witness, Misty Dawn Day,

appears to have received no incentives or immunity. All but

one of the eleven government witnesses who received either

immunity or another incentive testified to having committed

crimes involving the sale or manufacture of drugs; several

admitted to sales totaling hundreds of thousands of dollars. 

The only defense witness listed, Mike Baumann, was

denied use immunity. 

[9] The prosecution granted Adams use immunity, and

Adams’ testimony was crucial to the conviction for the

attempted robbery with a firearm. The prosecution denied use

immunity to the one defense witness who could have discredited Adams’ testimony, even though the prosecution claimed

it had no interest in prosecuting that witness. Meanwhile, the

prosecution granted use and informal immunity, gave cash,

and issued sentence reductions to eleven other admitted drug

offenders, all for the purpose of securing evidence against

Straub. We conclude that this exercise of discretion by the

prosecution impermissibly distorted the fact-finding process,

in violation of the Due Process Clause. A trial under these circumstances is not fundamentally fair. The district court erred

when it denied Straub’s request to compel use immunity.9

9The prosecution also argues that the district court properly refused to

compel use immunity because Straub never formally requested use immunity from the prosecution. As the transcript of the colloquy quoted earlier

demonstrates, Straub did make a formal request to the district judge in the

presence of the prosecution. The prosecution observed the district court

deny the request. It was also equally clear from the prosecution’s support

of the district court’s denial of the request that the prosecution was prepared to deny the request. It would be unnecessarily formalistic for us to

hold that this sequence of events was insufficient to substitute for a direct,

formal request to the prosecutor. Also, both sides agree that the Baumann

situation arose unexpectedly in the middle of trial. While we do not doubt

the prosecution’s claim that securing use immunity is a formal and timeconsuming process, the district court would have had discretion to grant

a continuance. 

10712 UNITED STATES v. STRAUB
III

The failure to compel use immunity is reviewed for harmless error. See Young, 86 F.3d at 949; Lord, 711 F.2d at 891.

Straub argues that we must remand for trial on Counts 1, 3,

4, 5, and 6. Straub has not articulated any specific reasons

why, even if the jury were to hear Baumann’s testimony and

discredit Adams entirely, the jury would not have convicted

on Counts 1, 5, and 6. As for Counts 3 and 4, the only two

counts relating to the armed robbery of Garrett, we find that

the failure to grant use immunity was not harmless. The testimony of David Adams was “crucial” to the prosecution’s case

on Counts 3 and 4. Adams was the only witness who testified

that Straub was armed on the night of the robbery. The district

court also found that the testimony of the prosecution’s other

witness, Misty Dawn Day, “by itself, would not [have been]

enough to sustain a conviction on counts three and four.”

Baumann’s testimony, if believed, would have revealed both

that Adams was dishonest and that he may have actually confessed to the shooting himself. After hearing Baumann’s testimony, it is possible that some jurors would have doubts that

Straub was the shooter and decide to acquit on Counts 3 and

4. 

The government argues that the failure to grant use immunity was harmless as to Counts 3 and 4 because the court gave

a Pinkerton instruction. Thus, the government argues, the jury

could have convicted even if it believed that Adams was the

shooter, as both would be liable as co-conspirators under Pinkerton. However, we agree with the district court’s finding: 

In theory, the jury could have convicted Straub on a

Pinkerton conspiracy theory even if the jurors

believed Adams was the shooter. . . . Nevertheless,

the testimony of Adams was important to the prosecution’s case. If a jury believed that Adams lied

about this, and was shifting the blame to Straub for

his own actions, it would seriously weaken the govUNITED STATES v. STRAUB 10713
ernment’s case on Counts 3 and 4. . . . The defense

could have argued that Adams, not Straub, orchestrated the Garrett robbery and shooting, without

Straub’s knowledge.

Moreover, as Straub argues, the way the court charged the

jury meant that the case was not effectively tried on the Pinkerton theory. The district court instructed the jury on Count

4 before it instructed on Count 3, and the court did not

instruct that Count 4 was a conspiracy count. The court stated

that in order to convict, the government must prove that “the

defendant knowingly and willfully did something or caused

another person to do something that was a substantial step

toward the actual commission of the crime.” In order to convict, the jury would need to believe Adams’s story that Straub

was on the scene and took action to further the crime. 

After the Count 4 instruction, the court then instructed the

jury on Count 3. The first element the government had to

prove in order to get a conviction was that “the defendant is

guilty of the crime charged in Count 4.” The court did give

a Pinkerton instruction that the jury could convict on a conspiracy theory on Count 3, if it found that Garrett was “shot

by a person with whom the defendant conspired to commit the

crime described in Count 4.” The problem lies with not

instructing the jury that Count 4 was a conspiracy count;

absent this instruction, it is possible that the jury would not

have convicted on Count 4 unless they found that Straub was

the person who shot Garrett. In order to reach that conclusion,

they would need to believe Adams’ testimony. If the jury did

not convict on Count 4, they could not convict on Count 3

because the first element of Count 3 is a guilty verdict on

Count 4. 

The court mitigated some of this prejudice by stating, after

he had instructed on Count 4 and then Count 3, that the “same

definitions [of the elements of a conspiracy] apply here.” It is

unclear what “here” means and whether the district court was

10714 UNITED STATES v. STRAUB
implying that Counts 3 and 4 were both conspiracy counts.

Convictions cannot rest on ambiguous jury instructions. See

United States v. Washington, 819 F.2d 221, 226 (9th Cir.

1987) (finding that “ambiguous and equivocal jury instructions” on an important issue constitute reversible error). The

ambiguity in the jury instructions meant that the jury was

probably not able to convict on a Pinkerton theory. The jury

had to find that Straub was a motivating force behind the

shooting, and it probably would not have found this to be the

case if it believed Adams was lying on the stand. 

IV

The Fifth Amendment does not create a general right for a

defendant to demand use immunity for a co-defendant, and

the courts must be extremely hesitant to intrude on the Executive’s discretion to decide whom to prosecute. Alessio, 528

F.2d at 1081-82. Nevertheless, in exceptional cases, the factfinding process may be so distorted through the prosecution’s

decisions to grant immunity to its own witness while denying

immunity to a witness with directly contradictory testimony

that the defendant’s due process right to a fair trial is violated.

At Straub’s trial, eleven prosecution witnesses, many of them

serious drug offenders, were granted substantial incentives or

immunity to testify against him. The testimony of one such

witness was crucial to the prosecution’s case for armed robbery. The defense proffered one witness who could directly

contradict a statement made by the prosecution’s key witness,

and if believed, would allow the jury to find that the prosecution’s witness was a perjurer and possibly the actual perpetrator of the shooting for which the defendant was charged. That

one witness was denied immunity, despite the prosecution’s

insistence that he was not worth prosecuting. Even absent evidence of prosecutorial intent to do so, this course of events

denied Straub a fair trial. 

[10] We reverse the district court’s denial of Straub’s

request to compel use immunity. We affirm the convictions as

UNITED STATES v. STRAUB 10715
to Counts 1, 5, and 6. On remand, the district court should

enter a judgment of acquittal on Counts 3 and 4 unless the

prosecution invokes 18 U.S.C. §§ 6002-6003 to grant use

immunity to Baumann at a new trial, or tries the case without

Adams’s testimony. 

AFFIRMED in part, REVERSED in part, and

REMANDED. 

10716 UNITED STATES v. STRAUB