Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:08-cr-00251-Charles N. Clevert, Jr., Chief Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before FLAUM and EVANS, Circuit Judges, and MCCUSKEY,*fn1 District Judge.
Marqitis Wright and Justin Holt were best friends. They referred to each other as step-brothers. Holt dated, and later moved in with, the aunt in whose house Wright once lived. Holt and Wright had something else in common: drugs. Holt began dabbling in drugs from a very young age, and in his later teens Wright joined him in this endeavor. At some point, Holt and Wright became involved in dealing drugs to Carmen Estrada, and on two occasions, October 25, and November 8, 2007, Estrada bought guns from the duo.
Unbeknownst to Holt and Wright, Estrada was actually a confidential informant for the Bureau of Alcohol, Tobacco and Firearms (ATF), albeit one who continued to use crack cocaine obtained through her own private purchases. Estrada was also a convicted felon, a fact she mentioned to Holt and Wright during the October 25 transaction, the entirety of which was caught on video and audiotape by the ATF (as was the November 8 transaction).
Holt and Wright were arrested, and Wright was charged with two counts of selling a firearm to a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Holt was charged with four counts and pled guilty to two of them. Wright pled not guilty and went to trial.
At Wright's trial the jury saw the video and audio recordings of the October 25 and November 8 transactions with concurrent transcription, and during deliberations the jury requested the October 25 recording again, this time without transcription. What the jury did not see during trial was Holt. Although Holt was originally on the government's witness list, he was interviewed a few days before trial and provided, as the government saw it, a statement that was not entirely truthful. He said, amongst other things, that he and Wright never discussed Estrada's felony status in connection with the gun sale. After his interview, the government decided not to call Holt as a witness. Wright was informed of this fact. The government also informed Holt's attorney of its view that Holt was not being truthful, and further informed Wright's attorney that Holt's statement might be potentially exculpatory for Wright.
The trial judge had Holt produced outside of the jury's presence, where Holt stated, on the advice of his attorney, that he would assert his Fifth Amendment right not to testify if called as a witness. At this time, although Holt had pled guilty, he was awaiting sentencing, and so he faced possible sentencing guideline adjustments as well as further prosecution if he perjured himself or obstructed justice. Holt also stated that the government had neither threatened him nor made any promises to him pertaining to his refusal to testify. The district judge found that Holt's exercise of his Fifth Amendment privilege rendered him unavailable as a witness.
Faced with this situation, Wright requested that the government seek a grant of immunity for Holt so that anything he testified about could not be used against him. The Assistant U. S. Attorney prosecuting the case declined, stating,
[t]he United States is not going to seek immunity for a witness on perjury offenses; in other words, so that the witness could take the stand, perjure himself, and we would have no recourse. If there had been some other offense that Mr. Holt had criminal exposure on that was relevant to his potential testimony . . . that could be considered. . . . But the United States does not believe it's appropriate for-and I can't imagine the Department of Justice authorizing immunity for potential perjury should Mr. Holt be allowed to take the stand.
The trial concluded without Holt giving testimony. Wright was found guilty on both counts. Wright now seeks a new trial claiming the judge erred in not conducting a colloquy with Holt before allowing him to assert his Fifth Amendment privilege, and that the government violated Wright's Fifth Amendment due process and Sixth Amendment compulsory process rights by refusing to move the judge to confer a grant of immunity on Holt. We review a judge's Fifth Amendment privilege finding for an abuse of judicial discretion, and we review an immunization decision only when there is substantial evidence showing a clear abuse of prosecutorial discretion. United States v. Longstreet, 567 F.3d 911, 922 (7th Cir. 2009); United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988) (citing United States v. Taylor, 728 F.2d 930, 935 (7th Cir. 1984)).
"[W]hen a witness invokes his Fifth Amendment right, the district court should confirm that he 'cannot possibly incriminate himself,' and if the 'witness's testimony may make him vulnerable to prosecution, the trial court may allow him to . . . refuse to testify.' " Longstreet, 567 F.3d at 922 (citing United States v. Mabrook, 301 F.3d 503, 506 (7th Cir. 2002)). Also, as pertinent here, a defendant who has not yet been sentenced may still assert his Fifth Amendment right against self-incrimination if called to testify. Longstreet, 567 F.3d at 922; see also Mitchell v. United States, 526 U.S. 314, 325 (1999). Wright contends that the trial judge's lack of colloquy with Holt means that the district court did not confirm that Holt could not "possibly incriminate him-self" if forced to testify.
The judge, in ruling that Holt could claim his Fifth Amendment privilege, remarked, "[T]he Court, on the basis of the statement of Mr. Holt and the matters previously presented in this case, concludes that- and Mr. Holt has the right to invoke his privilege against self-incrimination, and that he has asserted that privilege and that the privilege must be respected in this matter." This statement, although a bit disjointed, suggests that based on the circumstances the judge believed a colloquy was unnecessary.
This makes sense, as the judge was not ruling in a vacuum. He was well aware of the situation up to this point. He was aware that Holt was a co-defendant awaiting sentencing. He was aware that the government thought Holt's testimony, if consistent with his statement during the interview, would be false. And he had just heard Holt say that he was invoking his Fifth Amendment right on the ...