Filed: Aug. 05, 1998
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-4931. James E. TAYLOR, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee. Aug. 5, 1998. Appeal from the United States District Court for the Southern District of Florida. (No. 92-8225-CV- JWK), James W. Kehoe, Judge. Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*, Senior District Judge. TJOFLAT, Circuit Judge: On June 25, 1986, petitioner was convicted in the Circuit
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-4931. James E. TAYLOR, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee. Aug. 5, 1998. Appeal from the United States District Court for the Southern District of Florida. (No. 92-8225-CV- JWK), James W. Kehoe, Judge. Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*, Senior District Judge. TJOFLAT, Circuit Judge: On June 25, 1986, petitioner was convicted in the Circuit ..
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United States Court of Appeals,
Eleventh Circuit.
No. 94-4931.
James E. TAYLOR, Petitioner-Appellant,
v.
Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.
Aug. 5, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 92-8225-CV-
JWK), James W. Kehoe, Judge.
Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*, Senior District Judge.
TJOFLAT, Circuit Judge:
On June 25, 1986, petitioner was convicted in the Circuit Court of Indian County, Florida
for conspiring to traffic in cocaine, trafficking in marijuana, and violating the Florida Racketeer
Influenced and Corrupt Organizations Act. The court sentenced him to a total of seventy years
incarceration for these offenses. After exhausting his state remedies, petitioner applied to federal
district court for a writ of habeas corpus setting aside his convictions. He contended that the circuit
court denied him due process of law when it allowed the prosecutor to impeach him with testimony
that petitioner gave pursuant to an informal immunity agreement at a federal drug-smuggling trial
a few years earlier.1 The district court denied relief; we affirm.
I.
*
Honorable Thomas N. O'Neill, Jr., Senior U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
1
Petitioner also contended that prosecutorial misconduct rendered his trial fundamentally
unfair in violation of his right to due process of law. The district court rejected this claim as
meritless, as do we.
Before he was convicted in the Indian River circuit court, petitioner James Taylor made his
living by providing aircraft for drug smugglers. As a result of his activities in the 1970's, he
attracted the attention of, and became an informant for, the FBI. In 1981, FBI agents asked Taylor
to testify before a Southern District of Florida grand jury about two particular smuggling
organizations. Taylor informed the agents that if subpoenaed to appear before the grand jury, he
would invoke his Fifth Amendment privilege against self-incrimination. In response, the agents told
Taylor that they would seek a statutory grant of immunity to force Taylor to testify, and suggested
that he find a lawyer to help him negotiate an immunity agreement.
Taylor, represented by counsel, subsequently entered into immunity negotiations with the
United States Attorney's Office for the Southern District of Florida and signed an informal immunity
agreement with the United States Attorney. The agreement states, in part:
[T]he United States Attorney for the Southern District of Florida agrees not to prosecute
James Taylor for his heretofore disclosed participation, if any, in criminal activity involving
the importation, possession and distribution of controlled substances in the Southern District
of Florida during the period of June 1, 1977 through December 31, 1980. Furthermore, no
information so disclosed by James Taylor during the course of his co-operation will be used
against him.
In return, Taylor was to cooperate with the grand jury's investigation and to testify at trial if
necessary.2
2
The entire agreement was set out in a letter to Taylor's attorney, Phillip Butler, dated
November 17, 1981. It reads as follows:
Dear Mr. Butler:
This letter is being written to confirm the agreement entered into between this
office and your client, James Taylor.
It is agreed, in exchange for the promises set forth below, that your client will
co-operate fully with this office, agents of the Federal Bureau of Investigation, and other
2
law enforcement agencies as this office may require. This co-operation will include the
following:
1. James Taylor agrees to be fully debriefed concerning his knowledge of, and
participation in, activities involving the importation, possession and
distribution of narcotics in the Southern District of Florida by Donald
Raulerson and others. This debriefing will be conducted by this office,
agents of the Federal Bureau of Investigation, and other law enforcement
agencies, as this office may require.... All information provided by James
Taylor shall be truthful, complete and accurate; and
2. James Taylor agrees to testify as a witness before a Grand Jury in this district
or elsewhere as may be requested, and at any resulting trials, either in this
district or elsewhere, as this office may require, at the trial or trials of
Donald Raulerson and his associates.
[illegible] the co-operation of James Taylor, as set out above, the United States
Attorney for the Southern District of Florida agrees not to prosecute James Taylor for his
heretofore disclosed participation, if any, in criminal activity involving the importation,
possession and distribution of controlled substances in the Southern District of Florida
during the period of June 1, 1977 through December 31, 1980. Furthermore, no
information so disclosed by James Taylor during the course of his co-operation will be
used against him.
This agreement is limited to the United States Attorney's Office for the Southern
District of Florida and cannot bind other federal, state of [sic] local prosecuting
authorities.
It is further understood that James Taylor must at all times give, complete,
truthful and accurate information and testimony. Should it be judged by this office that
James Taylor has intentionally given false, misleading or incomplete information or
testimony or has otherwise violated any provision of this agreement, this agreement may
be deemed null and void by this office and James Taylor shall therefore be subject to
prosecution for any federal criminal violation of which this office has knowledge,
including but not limited to perjury and obstruction of justice. Any such prosecution may
be premised upon any information provided by James Taylor during the course of his
co-operation and such information may be used against him.
No additional promises, agreements and conditions have been entered into other
than those set forth in this letter and none will be entered into unless in writing and
signed by all parties.
3
Although the immunity agreement states: "This agreement is limited to the United States
Attorney's Office for the Southern District of Florida and cannot bind other federal, state of [sic]
local prosecuting authorities," Taylor claims that he asked Samuel Smargon, the Assistant United
States Attorney who negotiated the agreement with Taylor's attorney, about his potential exposure
to state prosecution, and that Smargon orally assured him that Florida authorities would not use any
of Taylor's testimony under the agreement against him. Taylor's testimony is the only evidence of
this alleged "side deal."
Pursuant to the immunity agreement, Taylor testified before the grand jury, implicating his
drug-smuggling associates. He also testified in a criminal case that grew out of the grand jury
investigation, the "Bancoshares" case. Taylor did not invoke his Fifth Amendment privilege against
self-incrimination before the grand jury or at the Bancoshares trial.
On January 15, 1986, the State Attorney for Indian River County filed a three-count
information charging Taylor with conspiracy to traffic cocaine and the distribution of marijuana in
If the foregoing accurately reflects the agreement entered into between this office
and your client, James Taylor, it is requested that James Taylor and yourself execute this
letter as provided below.
Very truly yours,
ATLEE W. WAMPLER, III
UNITED STATES ATTORNEY
/s/
SAMUEL J. SMARGON
Assistant United States Attorney
Major Narcotics Traffickers Section
4
violation of Florida law. On March 10, Taylor moved the Indian River circuit court to dismiss the
information on the ground that it was based on evidence disclosed by him pursuant to his informal
immunity agreement with the United States Attorney for the Southern District of Florida.
Alternatively, he moved the court to conduct a hearing to determine whether the State Attorney had
based the information on such evidence. Taylor cited Kastigar v. United States, 406 U.S. 441,
92
S. Ct. 1653,
32 L. Ed. 2d 212 (1972), as support for his motion. See
id. at 460, 92 S.Ct. at 1665
(stating that a government entity seeking to prosecute a witness who has been immunized under the
federal immunity statute, 18 U.S.C. §§ 6001-6003 (1994), has "the affirmative duty to prove that the
evidence it proposes to use is derived from a legitimate source wholly independent of the compelled
testimony").
The court noted, however, that Kastigar concerned a witness who had been granted
immunity under the federal immunity statute, 18 U.S.C. §§ 6001-6003 (1994), while Taylor was
claiming immunity under an informal or "pocket" immunity agreement. It therefore held a
"pre-Kastigar hearing" to determine whether Taylor was even entitled to Kastigar's protections. At
the close of the hearing, the court cited United States v. Barker, 542 F.2d 479 (8th Cir.1976), in
which the Eighth Circuit assumed without deciding that an informally-immunized defendant enjoys
the same "Fifth Amendment protections" as does a statutorily-immunized defendant. The circuit
court then reasoned that, because the rights provided under Kastigar also stemmed from the Fifth
Amendment, an informally-immunized defendant must enjoy the same Kastigar protections as does
a statutorily-immunized defendant. It concluded that "the Federal authorities did compel
Defendant's testimony" by entering into an informal immunity agreement with Taylor, and that
Taylor was entitled to a Kastigar hearing to determine whether the State Attorney had violated
5
Taylor's constitutional rights by bringing an information based on the testimony given pursuant to
that agreement.
The circuit court then held a full Kastigar hearing. After hearing testimony from both sides,
the court ruled that the State Attorney was basing his prosecution solely on information gleaned
from sources independent of Taylor's Bancoshares testimony. It therefore denied Taylor's motion
to dismiss his indictment and proceeded to trial.
At trial, Taylor took the stand in his own defense. He did not assert his Fifth Amendment
privilege at any time during his direct examination. On cross-examination, the prosecutor attempted
to impeach Taylor with his Bancoshares testimony. Taylor's attorney immediately objected, arguing
that because the court had ruled that Kastigar applied in Taylor's case, it could not allow the
Bancoshares testimony to be used against Taylor in any way, including for impeachment. The court
overruled the objection and allowed the prosecutor to use Taylor's Bancoshares testimony to attack
his credibility. Taylor was convicted on all three counts of the information and sentenced
accordingly.
Following the entry of judgment, Taylor appealed his convictions to the Florida District
Court of Appeal, arguing, inter alia, that the trial court erred in allowing the state to cross-examine
him using his Bancoshares testimony. The district court of appeal affirmed the trial court's judgment
without comment. Taylor v. State, 514 So. 2d 367 (1987) (table).
After exhausting his state remedies, Taylor filed the instant petition for a writ of habeas
corpus.3 The district court denied Taylor's petition, but on different grounds from those on which
3
This is Taylor's second habeas petition. The district court dismissed the first for lack of
exhaustion. Taylor subsequently exhausted his state court remedies.
6
the state circuit court had relied. The district court concluded that the circuit court's emphasis on
Barker was misplaced, and that subsequent decisions had clarified that a defendant who voluntarily
enters into an informal immunity agreement is only protected to the extent established in the
agreement itself. The district court thus looked to Taylor's agreement to determine the extent of
Taylor's immunity from the use of his statements to impeach him in state court. Finding that by its
plain terms the agreement did not bind state prosecutors or state courts, the district court rejected
Taylor's petition.
Taylor now appeals, presenting two grounds for setting aside his conviction. First, Taylor
claims that because he testified at the Bancoshares trial in exchange for the promise of governmental
benefits, his testimony was per se "involuntary" and is thus inadmissible against him under the Due
Process Clause of the Fourteenth Amendment. Second, Taylor claims that he was entitled to use
immunity in state court under the terms of his informal immunity agreement with the United States
Attorney, and that the circuit court therefore denied him due process by failing to enforce the
agreement. Because we find neither of Taylor's arguments convincing, we affirm the district court's
denial of habeas corpus relief.
II.
A.
Taylor first argues that his Bancoshares testimony was "involuntary" and thus inadmissible
against him at his state trial. See Mincey v. Arizona, 437 U.S. 385, 398,
98 S. Ct. 2408, 2416,
57
L. Ed. 2d 290 (1978) (holding that a defendant's involuntary statements could not be used to impeach
his credibility at trial because "any criminal trial use against a defendant of his involuntary statement
is a denial of due process of law"). He asks us to hold that testimony, such as his Bancoshares
7
testimony, that is given in exchange for a governmental promise of immunity is per se involuntary.
As we explain in part II.A.1, we decline to do so. A voluntarily-entered informal immunity
agreement does not, by virtue of its existence, override a witness' free will such that the witness'
testimony is involuntary under the Due Process Clause. See Shotwell Mfg. Co. v. United States, 371
U.S. 341, 348,
83 S. Ct. 448, 453,
9 L. Ed. 2d 357 (1963) ("A coerced confession claim, whether
founded on a promise of immunity or otherwise, always involves this question: did the
governmental conduct complained of "bring about' a confession "not freely self-determined'?"
(citation omitted)). Because we find in part II.A.2 that Taylor's testimony is not otherwise
involuntary, his first argument fails.
1.
We determine whether a defendant's statement is "involuntary" under a "totality of the
circumstances" test, United States v. Washington, 431 U.S. 181, 188,
97 S. Ct. 1814, 1818,
52
L. Ed. 2d 238 (1977), which is based on findings of fact. See generally Rogers v. Richmond,
365 U.S.
534, 544-48,
81 S. Ct. 735, 741-43,
5 L. Ed. 2d 760 (1961). Taylor, however, urges us to adopt a per
se rule under which testimony given in exchange for a governmental promise of immunity is
involuntary, regardless of the surrounding circumstances. We find no support for such a rule; in
fact, we believe that the Supreme Court has already spoken against it.
In Bordenkircher v. Hayes, 434 U.S. 357,
98 S. Ct. 663,
54 L. Ed. 2d 604 (1978), the Court
specifically rejected a per se involuntariness rule in a plea bargain context. The petitioner in
Bordenkircher contended that the prosecutor threatened to indict him under a repeat offender statute
if he did not plead guilty to a lesser offense, and then carried out the threat. The petitioner claimed
that by behaving this way, the prosecutor had "punished" him for exercising his right to demand a
8
trial, and that he had therefore been denied his right to due process of law. The Supreme Court,
however, rejected the petitioner's claim, holding that the prosecutor had "no more than openly
presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which
he was plainly subject to prosecution...." Id. at 365, 98 S.Ct. at 669. The Court emphasized that the
prosecutor's promise of leniency would not have rendered a plea given in exchange for that promise
involuntary, see
id. at 363, 98 S.Ct. at 668 ("[A]cceptance of the basic legitimacy of plea bargaining
necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense
simply because it is the end result of the bargaining process."), and specifically rejected a "rigid
rule" that would preclude a prosecutor from using the promise of governmental benefits to "induce
a guilty plea." See id. at 364-65, 98 S.Ct. at 669.
We believe that Bordenkircher applies equally to an agreement under which a defendant
agrees to waive his right to trial and all attendant rights by pleading guilty (the classic plea bargain),
and to an agreement, such as Taylor's informal immunity agreement, under which a potential
defendant agrees to waive his right against self-incrimination by not invoking his Fifth Amendment
privilege. In both contexts—the plea bargain and the immunity agreement—the defendant or
potential defendant seeks benefits he is otherwise unentitled to under the law; in return, he promises
to forgo something to which he is entitled. These are "give-and-take" situations akin to a contractual
negotiation, in which the parties are negotiating at arms-length. See Parker v. North Carolina, 397
U.S. 790, 809,
90 S. Ct. 1474, 1479,
25 L. Ed. 2d 785 (1970) (Brennan, J., dissenting) (characterizing
a plea bargain as a "give-and-take negotiation ... between the prosecution and defense, which
9
arguably possess relatively equal bargaining power").4 They are not the type of situations in which
the danger that the defendant's "will [will be] overborne," Rogers, 365 U.S. at 544, 81 S.Ct. at 741,
is so great that a per se rule is necessary to prevent the possibility. Thus, we conclude that
Bordenkircher precludes a per se involuntariness rule for informal immunity agreements as well as
for plea bargains. Cf. Trammel v. United States,
445 U.S. 40, 53,
100 S. Ct. 906, 914,
63 L. Ed. 2d
186 (1980) (holding without discussion that fact that witness spouse testified against defendant
"after a grant of immunity and assurances of lenient treatment does not render [spouse's] testimony
involuntary," and citing Bordenkircher).
Moreover, we believe the case Taylor cites as support for his proposed per se rule, Bram v.
United States, 168 U.S. 532,
18 S. Ct. 183,
42 L. Ed. 568 (1897), is inapposite. The Bram Court
stated in dicta that "a confession, in order to be admissible, must be free and voluntary: that is, must
not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises,
however slight...." Taylor argues that the Court's use of the words "however slight" is evidence that
governmental promises in the immunity context render consequential statements involuntary, no
matter what the surrounding circumstances. See also
Shotwell, 371 U.S. at 348, 83 S.Ct. at 453-54
(stating in dicta that "[p]etitioners' position is not like that of a person ... to whom a policeman, a
prosecutor, or an investigating agency has made a promise of immunity or leniency in return for a
statement. In those circumstances an inculpatory statement would be the product of inducement,
and thus not an act of free will"). When we examine the facts of Bram, however, it becomes clear
that Taylor is incorrect.
4
We assume in this discussion that the defendant or potential defendant is represented by
competent counsel.
10
In Bram, the defendant—the first mate of a merchant vessel who was suspected of murdering
the ship's second mate, the captain, and the captain's wife—was brought ashore in irons, detained,
and strip-searched. See Bram, 168 U.S. at 561-62, 18 S.Ct. at 194. During or after the strip-search,
a detective spoke with Bram, and informed him that another member of the crew had accused him
of the murders.
Id. at 562, 18 S.Ct. at 194. Bram then gave statements to the detective. On these
facts, the Bram Court found that Bram's statements were inadmissible against him at trial, and
therefore set aside his conviction on direct appeal. It is clear, however, that what the Court was
concerned with was not merely the possible implication of a promise of governmental benefits, but
Bram's overall position with respect to the detective obtaining his statements. See Bram, 168 U.S.
at
562, 18 S. Ct. at 194 (stating that "the situation of the accused, and the nature of the
communication ... necessarily overthrows any possible implication that his reply ... could have been
the result of a purely voluntary mental action"). Although full recognition of the coercive power of
an interrogation situation would not come until seventy years later, in Miranda v. Arizona,
384 U.S.
436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), the Bram Court was addressing the same problem
addressed in Miranda—how to guard against the inherently coercive atmosphere of a police
interrogation and its effect on an accused's exercise of his constitutional rights. Consequently,
regardless of whether Bram provides support for a per se rule in an interrogation situation, see
United States v. Ferrara,
377 F.2d 16, 17 (2d Cir.1967) (stating that the Bram language Taylor cites
as support for his per se argument "has never been applied with [a] wooden literalness"), the
11
statement cited by Taylor does not create a per se involuntariness rule for statements uttered in the
give-and-take context of informal immunity bargaining.5
Thus, we hold that Taylor's Bancoshares testimony was not per se "involuntary" simply
because it was given in exchange for a promise of benefits from the government.6 We must
therefore determine whether Taylor's testimony was involuntary without the benefit of Taylor's
proposed rule.
2.
5
Indeed, the Bram Court itself did not apply a per se rule to hold that Bram's statements were
involuntary, but engaged in a totality of the circumstances analysis, concluding that "when all
the surrounding circumstances are considered in their true relations, ... the claim that the
statement was voluntary [is] overthrown." Bram, 168 U.S. at 562, 18 S. Ct. at 194.
6
We have found one case in our own circuit that appears to support Taylor's argument. In
Gunsby v. Wainwright, 596 F.2d 654 (5th Cir.1979) (In Bonner v. City of Prichard,
661 F.2d
1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981), a panel of our court held that a
defendant's deposition testimony made "as a result of" plea bargain promises was "legally
involuntary and inadmissible at [the defendant's] state trial."
Id. at 656. Importantly, the
government entity that sought to use the witness' testimony against him in Gunsby (the state of
Florida) had previously promised not to use the testimony against him pursuant to a plea bargain.
When the witness gave different testimony than he had agreed to under the plea bargain, the
State declared the bargain null and void and sought to introduce the witness' testimony against
him at trial. The Gunsby court held that the State was barred from doing so.
Taylor would interpret Gunsby to stand for the proposition that any testimony
given in exchange for benefits under an immunity agreement is involuntary and therefore
inadmissible. In light of Bordenkircher, however, we believe that Gunsby stands for an
entirely different proposition—that the government may not profit from a witness' change
of heart; a witness who, in good faith, testifies under what he believes is an intact
agreement, may not later be harmed by that testimony if the agreement falls apart. This
"rule" is akin to the rule in a plea bargain situation that an otherwise valid plea given in
exchange for an unfulfilled or unfulfillable promise is considered "involuntary." See
United States v. Hill, 564 F.2d 1179, 1180 (5th Cir.1977) (holding that "a guilty plea
induced by a court-approved promise that could not be fulfilled cannot be viewed as
voluntary").
12
Taylor claims that when the circuit court stated at Taylor's pre-Kastigar hearing that Taylor's
Bancoshares testimony was "compelled," the court was making a factual finding of involuntariness.
He suggests, therefore, that this "finding" is entitled to a presumption of correctness on review. See
Bolender v. Singletary, 16 F.3d 1547, 1552 n. 1 (11th Cir.1994) (stating that a federal court
reviewing a state prisoner's habeas corpus petition must afford a presumption of correctness to the
factual findings of both the state trial court and state appellate courts). Regardless of the import of
the circuit court's statement, however, it is well established that voluntariness is a legal, not a factual
issue. See Medina v. Singletary,
59 F.3d 1095, 1101 (11th Cir.1995) (citing Arizona v. Fulminante,
499 U.S. 279, 287,
111 S. Ct. 1246, 1252,
113 L. Ed. 2d 302 (1991)).7 Thus, any "finding" the circuit
7
The circuit court's statement that Taylor's testimony was "compelled" also was based on an
erroneous view of the law. The court equated an informal immunity agreement with a formal
grant of immunity under the federal immunity statute, 18 U.S.C. §§ 6001-6003 (1994), and
therefore concluded that an informal immunity agreement provides the same protections as does
a statutory grant of immunity. The court's analogy, however, is flawed.
A grant of immunity under the federal immunity statute "overrides" a witness'
Fifth Amendment privilege by granting protection equal to that provided by the privilege.
Once a witness has invoked the privilege, if the Attorney General of the United States (or
her agent) determines that "the public need for the [witness'] testimony" is great enough,
see In re Daley, 549 F.2d 469, 478 (7th Cir.1977), she may ask the court to grant the
witness immunity under 18 U.S.C. § 6003.
Once a witness is immunized under § 6003, the witness may not refuse to comply
with [an order to testify over a claim of privilege] on the basis of his privilege
against self-incrimination; but no testimony or other information compelled
under the order (or any information directly or indirectly derived from such
testimony or other information) may be used against the witness in any criminal
case, except a prosecution for perjury, giving a false statement, or otherwise
failing to comply with the order.
18 U.S.C. § 6002. Thus, the court may compel a statutorily-immunized witness, by an
order backed by threat of contempt sanctions, to testify. This compulsion does not
violate the Fifth Amendment, however, because the witness will never be compelled to
be a witness against himself; the statute precludes any government entity, state or
13
court made is not now entitled to a presumption of correctness. Because neither the state court nor
federal, from using the witness' compelled testimony against him at a subsequent criminal
trial. See United States v. Byrd, 765, F.2d 1524, 1530 (11th Cir.1985) ("So long as none
of the evidence presented to the grand jury is derived, directly or indirectly, from the
[defendant's] immunized testimony, it can fairly be said that the defendant's immunized
testimony has not been used to incriminate him."). Because the Fifth Amendment does
not guarantee a right to freedom from compulsion, but a right to freedom from criminal
penalties inflicted based on compelled testimony, see United States v. Gecas, 120 F.3d
1419, 1429 & n. 13 (11th Cir.1997) (en banc), this immunization is sufficient to satisfy
the dictates of the Self-incrimination Clause because it effectively prevents the later use
of the testimony to incriminate the witness. A grant of statutory immunity thus displaces
the witness' Fifth Amendment privilege, but preserves the witness' Fifth Amendment
right. See Kastigar, 406 U.S. at 461, 92 S.Ct. at 1665 (stating that the immunity provided
under the statute is "commensurate with that resulting from invoking the [Fifth
Amendment] privilege itself").
Absent a formal statutory grant of immunity, however, a court may not
constitutionally compel a witness to testify over a valid assertion of his privilege. See
Pillsbury v. Conboy, 459 U.S. 248, 256-57,
103 S. Ct. 608, 614,
74 L. Ed. 2d 430 (1983)
("[A] District Court cannot compel [a witness] to answer deposition questions, over a
valid assertion of his Fifth Amendment right, absent a duly authorized assurance of
[statutory] immunity at the time."); see also United States v. Doe, 465 U.S. 605, 616,
104 S. Ct. 1237, 1244,
79 L. Ed. 2d 552 (1984) (holding that the defendant could not be
compelled to produce documents without a statutory grant of use immunity despite the
Government's repeated oral promises to the court that it would not use the act of
production against the defendant); cf. In re Corrugated Container Anti-Trust Litigation,
620 F.2d 1086, 1094 (5th Cir., 1980) (holding that the district court has no power to grant
immunity outside that authorized by the federal immunity statute itself). Thus, an
informally-immunized witness retains his Fifth Amendment privilege in a court
proceeding even if he has agreed to waive that privilege in return for benefits under the
agreement. If he chooses to invoke his privilege, he will suffer only the loss of those
bargained-for benefits—benefits he was not otherwise entitled to receive under any law,
let alone the Constitution.
Because he retains his Fifth Amendment privilege, he must invoke that privilege
if he wishes to preclude the use of the testimony against him in a criminal case; he
cannot later claim that he was "compelled" to testify simply because he fulfilled his
promise to the prosecutor and did not invoke the privilege. The state court's reliance on
the Barker dicta, therefore, is unfounded; Taylor was not "compelled" to testify at the
Bancoshares trial and therefore was not entitled, under the Fifth Amendment, to a
Kastigar hearing to determine whether the State Attorney had used his Bancoshares
testimony to bring the state indictment. Accord United States v. Turner, 936 F.2d 221
(6th Cir.1991); United States v. Brothers,
856 F. Supp. 380 (M.D.Tenn.1993).
14
the district court made specific findings of fact regarding the circumstances surrounding Taylor's
Bancoshares testimony, we look to the record ourselves to determine whether the totality of the
circumstances supports a conclusion of involuntariness.
We find that there is nothing to suggest that Taylor testified involuntarily at the Bancoshares
trial. He clearly did not take the stand in the Bancoshares trial involuntarily, and we believe the
following excerpt from the state court's pre-Kastigar hearing establishes that Taylor did not
involuntarily enter the immunity agreement pursuant to which he testified:
[the court]: Okay. In this agreement you went to the—met with the United—the Assistant
U.S. Attorney with your attorney and drew up this agreement?
[Taylor]: Yes.
Q. And you agreed to testify or provide information.
A. That's correct.
Q. And you weren't compelled in any way to appear and enter into this agreement were you?
A. Meaning by compelled was I coerced, a bit of coercion was used.
Q. What was the coercion?
A. Threat of prosecution.
Q. Okay. But that's the only reason you went and made that agreement, that you thought you
might be prosecuted.
A. No. I wouldn't say that.
Q. Okay. Then what was the reason you entered into this agreement?
A. I think the main thing is I wanted to get it all behind me.
Q. Okay. So you voluntarily entered into this agreement and said, "I'll give you this
information—"
A. Yes, I voluntarily did it, yes.
15
Thus, Taylor's first argument—that the Due Process Clause prevented the state court from admitting
his Bancoshares testimony because that testimony was involuntary—fails.
B.
Taylor also claims that under his informal immunity agreement, he was entitled to use
immunity in the state court for any statements given pursuant to the agreement. He argues,
therefore, that the agreement was breached when the circuit court allowed the prosecutor to impeach
him using his Bancoshares testimony. He contends that due process requires that a writ of habeas
corpus issue to remedy the state's breach of the agreement. See United States v. Harvey, 869 F.2d
1439, 1444 (11th Cir.1989) (en banc) (stating that "due process requires us to enforce the
government's agreement"); Rowe v. Griffin,
676 F.2d 524, 528 (11th Cir.1982) ("[D]ue process
requires that the prosecutor's promise be fulfilled."). We hold that the agreement did not bind the
state of Florida and therefore could not have required the circuit court to prevent the prosecutor from
impeaching Taylor with his Bancoshares testimony. Thus, Taylor is not entitled to habeas relief on
this ground.
When enforcing an immunity agreement, we look to the terms of the agreement itself,
determined by applying common law contractual principles. See United States v. Thompson, 25 F.3d
1558, 1561 (11th Cir.1994) ("In determining the extent of immunity afforded a defendant under an
[informal] immunity agreement, a court should apply basic principles of contract law.") The district
court in this case found that Taylor's agreement did not on its face bind state authorities. We agree.
The agreement itself plainly states that it "is limited to the United States Attorney's Office
for the Southern District of Florida and cannot bind other federal, state of [sic] local prosecuting
16
authorities."8 Taylor points to the preceding sentence, "[f]urthermore, no information so disclosed
by James Taylor during the course of his co-operation will be used against him," as providing him
state immunity. That sentence, however, must be read in context; it refers to Taylor's cooperation
with the Southern District of Florida authorities and follows a statement concerning Taylor's
involvement in specific crimes within the Southern District. Thus, Taylor's quoted sentence only
obligates the United States Attorney for the Southern District not to use the information, and perhaps
not to disseminate it to other law enforcement authorities.9 The agreement on its face, therefore,
does not support a finding that Taylor was entitled to use immunity in state court.
Taylor, however, claims that the United States Attorney made a "side deal" with him that
altered the terms of the agreement and entitled him to state use immunity. We find—as the district
court did—that Taylor's "bare, conclusory allegation of an oral modification to the written agreement
is insufficient, without more, to warrant further evidentiary consideration." Thus, the agreement did
not provide Taylor with such immunity. Taylor's second and final argument—that the circuit court
denied him due process by failing to enforce his informal immunity agreement—fails.10
III.
8
We set forth the entire agreement in footnote 2, supra.
9
There is no evidence that the United States Attorney so disseminated any information
provided pursuant to the informal immunity agreement; Taylor only challenges the use of his
Bancoshares testimony, which was a matter of public record.
10
Taylor may have relied on the circuit court's erroneous pre-trial ruling that he was entitled to
a Kastigar hearing—thereby implying that he had been afforded the equivalent of statutory
immunity—when deciding whether to testify on his own behalf and thus expose himself to the
prosecutor's use of his Bancoshares testimony on cross-examination. We need not decide
whether the circuit court's misinterpretation of the law constituted a denial of due process,
however, because Taylor has not raised the issue in his petition.
17
For the foregoing reasons, the district court's denial of Taylor's petition for writ of habeas
corpus is
AFFIRMED.
18
