UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Cr. No. 07-189-01-GZS

Daniel Riley, et al.

UNITED STATES' MEMORANDUM REGARDING WITNESS IMMUNITY

Facts

A defense witness, Joshua McLellan, appeared in Court

yesterday and after requesting appointment of counsel advised

the Court, through counsel, David Ruoff, that if called to

testify in this trial he would assert his 5th Amendment right

against self incrimination and would refuse to testify. Defense

counsel requested the Court compel Mr. McLellan to testify. The

Court ordered the parties to brief the issue.

Upon inquiry the government has learned the following about

the putative witness, Joshua McLellan.1 Mr. McLellan is serving

a sentence at the Strafford County House of Correction and he

has numerous charges pending, one of which is a State of New

Hampshire, Class A Misdemeanor. That Complaint charges that Mr.

1
At the chambers conference this morning government
counsel gave a complete copy of all information concerning the
witness that the government had obtained since the hearing
yesterday. That information includes numerous documents that
set forth pending criminal charges as well as numerous reports
of disciplinary violations.
McLellan did, in December of 2007:

knowingly give or cause to be given false information

to Officer Mark Nadeau, who Joshua McLellan knew to be
a uniformed police officer for the Milton Police
Department, with the purpose to induce Officer Nadeau
to believe that a domestic disturbance involving the
discharge of a firearm was in progress at 39 Grandview
Road in the Town of Milton, New Hampshire.

The undersigned, upon receiving the information concerning

Mr. McLellan’s pending criminal charges, including the above

quoted charge, inquired of his Attorney, David Ruoff, as to

whether Mr. McLellan would invoke his 5th Amendment right against

self incrimination and refuse to testify if the government were

to inquire of him in any manner concerning that pending charge.

Attorney Ruoff advised that if such inquiry were made his client

would refuse to testify.

The government submits that if the witness were to testify

for the defense, pursuant to Federal Rule of Evidence 608(b) the

Court should allow inquiry by the government on cross

examination concerning that specific alleged instance of

conduct. Although Rule 608(b) generally does not permit inquiry

into specific instances of conduct to attack the credibility of

the witness, the Rule includes specific exceptions. One such

exception is that the Rule specifically states that specific

instances of conduct may be inquired into on cross examination

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“in the discretion of the court, if probative of truthfulness or

untruthfulness ... .” Fed. R. Crim. P. 608(b).

Here, if the witness testifies, his credibility would

clearly be in issue. Although the defense has been vague, the

government assumes the witness would attempt in some fashion to

attack the credibility of government witness Anthony Dorothy.

If that is the case, whether he is being truthful would be one

of the only issues for cross examination. Consequently the

government would seek to inquire of the above referenced pending

charge of making a false statement.

The Law of Compelled Immunity

For purposes of this Memorandum the government assumes that

defense counsel is asking the Court to order the government to

immunize Mr. McLellan. Defense counsel states, without factual

elaboration, that the testimony of Mr. McLellan is “necessary

and essential”. Defendant’s Memorandum, docket # 355 at p.1,

¶3. Consequently it appears that defense counsel is asserting

what has been know as the “effective defense” theory in support

of his request.

Until 1997 the First Circuit had acknowledged that there

were two possible theories under which a Court could intervene

in the issue of witness immunity. In United States v. Pratt,

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913, F2.d 982, 991 (1st Cir. 1990) the Court of Appeals stated:

[u]nder the effective defense theory, a court has

power to immunize witnesses whose testimony is
essential to an effective defense. Similarly, under
the prosecutorial misconduct theory, the courts have
authority to require the government to grant immunity
to witnesses if the government has deliberately
attempted to distort the fact finding process.
(citations omitted).

However, in 1997 the Court of Appeals clearly held that the

effective defense theory is not good law in this Circuit. United

States v Castro, 129, F.3d 226, 232 (1st Cir. 1997). Specifically

the Court stated:

[w]e need not dwell on the late, unlamented effective

defense theory. That theory purports to hold that if a
witness can offer clearly exculpatory testimony
indispensable to the defense and the government has no
convincing reason to withhold immunity, the trial court
may bestow use immunity on the witness. (Citations
omitted). Recognizing that the power to direct witness
immunity customarily is reserved to the Executive
Branch, see 18 U.S.C. § 6003(b), we recently interred
the effective defense theory. See Curtis v. Duval, 124
F.3d 1, 9 (1st Cir. 1997); United States v. Mackey, 117
F.3d 24, 28 (1st Cir. 1997). It is no longer good law in
this circuit and the appellant cannot profit by it.

The only other theory under which the defendant could seek the

Court’s intervention would be to allege that his due process

rights have been violated. In Castro the Court noted that:

[i]t is common ground that the “due process clause

[constrains] the prosecutor to a certain extent in her
decision to grant or not to grant immunity.” Curtis, 124

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 F.3d at 10 (quoting Angiulo, 897 F.2d at 1191). However
this constraint operates on the margins of the
prosecutor’s discretion and takes on practical
significance only when the prosecutor deliberately
aspires to distort the fact finding process. . . .

Castro, 129 F.3d at 232.

Here, there has been no prosecutorial misconduct, nor any

allegation of such. The government knew nothing of the putative

defense witness until he appeared in Court yesterday. If asked to

immunize the witness, given the fact that there are multiple state

criminal charges pending, any such immunity request would

necessarily, and appropriately, be denied so as not to interfere

with an ongoing prosecution in another forum.

April 2, 2008 Respectfully submitted,

THOMAS P. COLANTUONO
United States Attorney

By: /s/ Arnold H. Huftalen

Arnold H. Huftalen
Assistant U.S. Attorney
N.H. Bar Assoc. No. 1215
53 Pleasant Street, 4th Floor
Concord, New Hampshire 03301
(603) 225-1552

CERTIFICATION OF SERVICE

I hereby certify that service is being made upon all counsel

of record, via ecf filing notice, and that copies will be hand
delivered today.
/s/ Arnold H. Huftalen
Arnold H. Huftalen
Assistant U.S. Attorney

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