                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
             _______________

                  No. 11-1733
                _______________

        UNITED STATES OF AMERICA

                        v.

           KEENAN DANAN QUINN,

                                   Appellant
                _______________

  On Appeal from the United States District Court
     For the Eastern District of Pennsylvania
  (D.C. Criminal Action No. 2-09-cr-00720-002)
   District Judge: Honorable Petrese B. Tucker
                _______________

        Argued En Banc February 20, 2013
               _______________

Before: McKEE, Chief Judge, SLOVITER, SCIRICA,
 RENDELL, AMBRO, FUENTES, SMITH, FISHER,
       CHAGARES, JORDAN, HARDIMAN,
        GREENAWAY, Jr., VANASKIE, and
           ALDISERT, Circuit Judges
             (Opinion filed: August 14, 2013 )

Peter Goldberger, Esquire (Argued)
Pamela A. Wilk, Esquire
50 Rittenhouse Place
Ardmore, PA 19003

Edward C. Meehan, Jr., Esquire
Edward C. Meehan, Jr. & Associates
211 North 13th Street, Suite 701
Philadelphia, PA 19107

      Counsel for Appellant

Zane David Memeger, Esquire
United States Attorney
Robert A. Zauzmer, Esquire (Argued)
 Assistant United States Attorney
David L. Axelrod, Esquire
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

      Counsel for Appellee

Ellen C. Brotman, Esquire
Erin C. Dougherty, Esquire
Montgomery, McCracken, Walker & Rhoads
123 South Broad Street, 28th Floor
Philadelphia, PA 19109




                              2
Jenny Carroll, Esquire
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102

      Amicus Curiae Counsel
      National Association of Criminal Defense Lawyers
                    _______________

                OPINION OF THE COURT
                    _______________

AMBRO, Circuit Judge, with whom McKEE, Chief Judge,
SLOVITER, SCIRICA, RENDELL, FUENTES, SMITH,
FISHER, CHAGARES, JORDAN, HARDIMAN,
GREENAWAY, Jr., VANASKIE, and ALDISERT, Circuit
Judges, join.

        Keenan Quinn appeals his jury conviction for aiding
and abetting codefendant Shawn Johnson in an armed bank
robbery. Quinn’s defense was that, when he drove Johnson to
National Penn Bank on the morning of the robbery, he did not
know that Johnson intended to rob a bank teller at gunpoint.
Quinn hoped Johnson would testify on his behalf at trial, but
Johnson—who was awaiting sentencing on the robbery
charges—invoked his Fifth Amendment protection against
self-incrimination and refused to testify. The District Court’s
refusal of Quinn’s request to immunize Johnson so he could
testify was, Quinn contends, an error, for without it he was
unable to rebut the Government’s accusations against him.

      Quinn also alleges (though belatedly) prosecutorial
misconduct. Specifically, he asserts that the Government




                              3
postponed Johnson’s sentencing until after Quinn’s trial to
induce Johnson to invoke his Fifth Amendment privilege.

       We have recognized two situations in which a criminal
defendant may be entitled to have a defense witness receive
immunity for his testimony.        The first, grounded in
prosecutorial misconduct, occurs when the Government acts
“with the deliberate intention of distorting the judicial fact
finding process” (for example, by threatening a defense
witness). United States v. Herman, 589 F.2d 1191, 1204 (3d
Cir. 1978); United States v. Morrison, 535 F.2d 223 (3d Cir.
1976). If prosecutorial misconduct occurs, the charges are
dismissed unless the Government chooses to immunize the
witness at a new trial.

       We recognized a second situation in Government of
the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980)—
even without evidence of prosecutorial misconduct, if the
Government has refused to immunize the witness, the
defendant is entitled to immunity for his witness if the
testimonial evidence is “clearly exculpatory and essential to
the defense case and . . . the government has no strong
interest in withholding use immunity.” Id. at 974. If those
requirements (detailed in a five-part test) are met, the District
Court, as a new remedy accorded by Smith, may on its own
authority immunize that witness to allow his testimony. Id. at
971–72.

      No statute or Supreme Court ruling authorizes judicial
grants of immunity for a defense witness (called for
convenience judicial use immunity). We are the only Court
of Appeals that permits a trial court to immunize a defense
witness. Every other Court of Appeals has rejected this




                               4
theory of judicial power. Today we do so as well, and
overturn that part of Smith that recognizes judicial grants of
immunity. Immunity is a statutory creation, bestowed by
Congress on the Executive Branch through the federal
witness immunity statute, 18 U.S.C. §§ 6002, 6003. The
decision to immunize a witness to obtain his testimony is a
core prosecutorial function, as immunizing necessarily
involves weighing the public’s need for testimony against the
risk that immunity will inhibit later prosecution of criminal
wrongdoing. We, in our corner of the Judiciary, now step
away from our reach into this prosecutorial realm.

        Though we abandon the judicial use immunity remedy
created in Smith, we retain its five-part test for determining
whether the Government’s refusal to grant defense witness
immunity denies a defendant due process. We created this
test in Smith because we feared our then-existing test for
prosecutorial misconduct—acts taken with an intent to distort
the factfinding process—did not ensure the defendant’s right
to present an effective and meaningful defense when the
prosecutor refused to immunize a witness. Smith asks
whether the Government has refused to immunize a witness
in order to keep clearly exculpatory and essential testimony
from trial without a strong countervailing reason. If so, this is
a type of prosecutorial misconduct. The Smith test thus
complements our existing prosecutorial misconduct test.
However, the remedy for a due process violation, rather than
intruding into the prosecutor’s province by judicial grants of
immunity, is a retrial where the Government can cure the
distortion caused by its wrongdoing or face dismissal of the
relevant charges.




                               5
        Applying both the prosecutorial misconduct test that
existed before and after Smith (acts taken with the deliberate
intent to distort the factfinding process) and the
complementary test we created in Smith (exclusion of clearly
exculpatory and essential testimony without a strong
countervailing government interest) to Quinn’s case, we hold
that the Government did not engage in wrongdoing. We
cannot conclude it deliberately distorted the factfinding
process by delaying Johnson’s sentencing. No evidence
demonstrates that the Government’s action had any effect on
Johnson’s decision to invoke his Fifth Amendment right not
to incriminate himself by his testimony. Nor did the
Government keep clearly exculpatory testimony from
Quinn’s trial by refusing to immunize Johnson. We thus
affirm.

I.    Facts and Procedural History

      A.     The Bank Robbery

       On the morning of August 27, 2009, Quinn met
Johnson in a parking lot at the Henderson Square shopping
mall in King of Prussia, Pennsylvania. Quinn drove Johnson
across the parking lot to the National Penn Bank, located
within the same shopping mall. While Johnson went into the
bank, Quinn drove his car behind another store, and out of
sight of those in the bank.

        Once inside, Johnson handed a check to one of the
tellers. When she requested identification from Johnson, the
teller realized Johnson had a gun pointed at her and that a
note written on the back of the check demanded money.
Johnson took several thousand dollars in cash from the teller




                              6
and another bank employee transferring cash from the bank
vault. Unknown to Johnson, the money he was given
contained a global positioning system (“GPS”) tracker hidden
inside a bundle of bills. Johnson left the bank and returned to
Quinn, who was still waiting in his car behind the nearby
store, and the two drove away.

       Quinn and Johnson went to a nearby townhouse owned
by Quinn’s aunt. There, Johnson discovered the GPS tracker
and attempted to disable it by hitting it and submerging it in a
bowl of water. He was unsuccessful. The Upper Merion
Police Department used the tracker to locate the men at the
townhouse, where both shortly surrendered. Police recovered
a gun, the GPS tracker, and approximately $9,000 in cash.

       B.     The Investigation and Indictment

       Law enforcement officers interviewed both Quinn and
Johnson that afternoon. Quinn told the officers that he did
not know that Johnson planned to rob the National Penn
Bank. Johnson confessed to the robbery, as well as another
bank robbery he had committed a month earlier and a
fraudulent check cashing scheme. He also told police that
Quinn did not know he (Johnson) intended to rob National
Penn. Beyond that statement, Johnson “was hesitant to talk
about Quinn because Quinn is the brother of [Johnson’s]
fiancee.”

       The United States Attorney for the Eastern District of
Pennsylvania indicted both Quinn and Johnson for armed
bank robbery in violation of 18 U.S.C. § 2113(d), and using
and carrying a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c). Johnson was also




                               7
indicted for the earlier bank robbery and for being a felon in
possession of a gun in violation of 18 U.S.C. § 922(g)(1).
Johnson pled guilty to all of the charges in May 2010, and
was awaiting sentencing in August 2010 when Quinn’s trial
was scheduled to begin.

      C.     Johnson’s Assertion of His Fifth Amendment
             Privilege

       Prior to the start of Quinn’s trial, his counsel
discovered that Johnson had been transferred to an out-of-
state prison.    Quinn requested, and was granted, a
continuance so that Johnson could be returned to
Pennsylvania and be available to testify.

        In response to this continuance, the Government filed a
motion to postpone Johnson’s sentencing. It apparently was
concerned that Johnson, who had already pled guilty to the
robbery, could shield Quinn from blame without any
additional cost to himself by testifying that Quinn was not
involved in that crime. By delaying Johnson’s sentencing
until after his testimony, the Government contended it would
retain the ability to present to the sentencing Court any
testimony by Johnson it believed to be perjurious.

      [I]f Keenan Quinn calls [Johnson] as a witness
      and [Johnson] does not invoke his right against
      self-incrimination, it is possible, if not probable,
      that [Johnson] will commit perjury. Thus . . . his
      testimony will likely have a direct effect on his
      [sentencing] guidelines and the Court’s analysis
      under 18 U.S.C. § 3553(a).




                              8
Johnson’s only response to the Government’s motion was to
inform the Court that if either “the codefendant’s counsel or
the government attempts to call Mr. Johnson as a witness at
the trial of the codefendant, Mr. Johnson will assert his right
to remain silent under the Fifth Amendment.”

       As his reply to the Government’s motion to delay and
Johnson’s statement that he intended to invoke the Fifth
Amendment, Quinn filed a motion in limine asking the Court
to exercise its authority under our holding in Smith to
immunize Johnson so he could testify on Quinn’s behalf
without fear of prosecution or repercussion at sentencing.
The Government opposed the motion. Following briefing and
oral argument, the Court denied Quinn’s request, and
declined to reconsider that ruling when Quinn renewed the
motion at the close of evidence.

      D.      Quinn’s Trial

       At trial, the Government introduced phone records
showing that Quinn called Johnson once the day before the
robbery and five times in a little over two hours on the
morning of the robbery. Evidence of these calls, though
deleted from the call history on Quinn’s phone before it was
taken by the police, was revealed through the phone
company’s documentation. The Government also presented
testimony from two of Quinn’s former cellmates, Anthony
Bennett and Nicholas Mason.           Bennett testified of
conversations with Quinn whereby the latter had planned a
crime in which he acted as the driver and hoped to beat the
charges because his codefendant would “take all of the
charges.” Mason testified that Quinn admitted that he and a
codefendant planned a bank robbery where “[Quinn] stayed




                              9
parked at a separate location so he would not be linked to the
crime.”

        Quinn testified in his own defense. He told the jury
that he called Johnson once on the morning of the robbery to
make plans to meet for breakfast. He claimed that he began
to drive Johnson to his aunt’s house, where they intended to
spend the morning, when Johnson directed him to pull in
front of the bank’s entrance. As he got out of the car,
Johnson told Quinn to wait behind a nearby store. Quinn
stated that he believed Johnson was going to cash a fraudulent
check at the bank, something Johnson had done before, but
did not know that Johnson was going to rob the bank at
gunpoint.

      Johnson did not testify. His statement to police that
Quinn was not aware of the planned robbery was excluded as
hearsay.

       After a four-day trial, the jury found Quinn guilty of
aiding and abetting a bank robbery and carrying a firearm in
relation to a crime of violence. His sentence was 147
months’ imprisonment and monetary penalties.

      E.     This Appeal

       This appeal followed. Quinn argues that the District
Court erred by not exercising its authority under Smith to
immunize Johnson’s testimony, thus denying Quinn the
opportunity to present an effective defense. He also claims
for the first time that the prosecution’s request to postpone
Johnson’s sentencing until after Quinn’s trial was intended to
induce Johnson to invoke his Fifth Amendment privilege, a




                             10
deliberate distortion of the factfinding process and thus an act
of prosecutorial misconduct. As a remedy, Quinn contends
his conviction should be vacated and the charges dismissed
unless Johnson is given immunity to testify at a retrial.

         In response to Quinn’s appeal, the Government
questioned our unique jurisprudence in this area. We sua
sponte elected to hear this case en banc to “reconsider the . . .
theory of judicial immunity” recognized in Smith. The parties
filed supplemental briefs, and we heard argument en banc.

II.    Judicial Use Immunity

       A.     Our Holding in Smith

       In Smith, three defendants were charged with assault
and robbery of a man named Phipps. The Government’s case
centered on Phipps’ identification of the defendants as his
assailants. During the investigation following the assault,
however, a man named Sanchez told police that he and
several others—none of whom was among the defendants—
were responsible for the crime. Smith, 615 F.2d at 966–67.

       Defendants called Sanchez as a witness at their trial,
but he refused to testify on the basis of his Fifth Amendment
privilege against self-incrimination. Because he was a
juvenile at the time of the offense, Sanchez was subject to the
exclusive jurisdiction of the Virgin Islands Attorney General,
who offered to grant immunity to Sanchez if, as a
prosecutorial courtesy, the United States Attorney prosecuting
the case consented. Id. at 967. When the U.S. Attorney
refused to consent, the trial proceeded without Sanchez’s




                               11
testimony or his hearsay statements to police, and all three
defendants were convicted. Id.

       Citing our opinion in Morrison, 535 F.2d 223, we held
that if the Government had refused immunity “with the
deliberate intention of distorting the factfinding process, then
the district court should enter a judgment of acquittal as to
defendants . . . unless the government consents to grant
statutory use immunity to [the witness].” Smith, 615 F.2d at
969. Our Court in Smith called this “statutory immunity,” id.,
though it is more commonly referred to as the prosecutorial
misconduct theory. While rarely the basis of a retrial order,
this theory provides a valuable safeguard against
prosecutorial overzealousness infringing on the fair trial
ensured to a criminal defendant.

        Smith went further and held that the trial court could
itself “grant judicial immunity to the witness” if necessary to
“vindicate the defendant’s constitutional right to a fair trial.”
Id. at 974. We held that court-granted immunity could be
used to ensure that the defendant was able to present an
effective defense if the Government inexplicably refused to
immunize a defense witness with exculpatory and essential
testimony. We first considered this “effective defense”
theory in United States v. Herman, 589 F.2d 1191 (3d Cir.
1978), but did not establish the test and remedy until two
years later in Smith.1 We refer to this power as “judicial use

1
  The idea of immunizing a witness as necessary to secure the
defendant’s due process right is often traced to a footnote in
then-Judge Warren Burger’s opinion in Earl v. United States,
361 F.2d 531, 534 n.1 (D.C. Cir. 1966). The theory that a
defendant could have a due process right to witness testimony




                               12
immunity” because it involves a court conferring immunity
without a request from the Government.

        Smith recognized that the judicial grant of immunity
intruded on the Government’s statutory authority to immunize
witnesses and prosecutorial discretion to prioritize
enforcement of the laws. Thus we held that “opportunities for
judicial use of this immunity power must be clearly limited.”
Smith, 615 F.2d at 972. We created a five-part test—witness
immunity could be granted only if “[1] properly sought in the
district court; [2] the defense witness [is] available to testify;
[3] the proffered testimony [is] clearly exculpatory; [4] the
testimony [is] essential; and [5] there [are] no strong
governmental interests which countervail against a grant of
immunity.” Id. These factors balance the Government’s
discretion in prosecutorial decisions and the defendant’s right
to present a meaningful defense.

       B.     Rejection of Judicial Use Immunity

      As noted, we are the only Court of Appeals that has
recognized judicial use immunity for witnesses. United


also gained traction in academic literature. See, e.g., Donald
Koblitz, Note, “The Public Has a Claim to Every Man’s
Evidence”: The Defendant’s Constitutional Right to Witness
Immunity, 30 Stan. L. Rev. 1211 (1978); Note, The Sixth
Amendment Right to Have Use Immunity Granted to Defense
Witnesses, 91 Harv. L. Rev. 1266 (1978); Helen M. McCue,
Note, Separation of Powers and Defense Witness Immunity,
66 Geo. L.J. 51 (1977); Barbara A. Reeves, Note, A Re-
Examination of Defense Witness Immunity: A New Use for
Kastigar, 10 Harv. J. on Legis. 74 (1972).




                               13
States v. Serrano, 406 F.3d 1208, 1217 (10th Cir. 2005)
(“Every other Circuit, save the Third, has . . . held a district
court does not have the inherent authority to grant a defense
witness use immunity.”). Other Courts of Appeals have
adopted the prosecutorial misconduct theory, and evaluate
whether the Government may be required to immunize a
witness if necessary to protect the defendant’s right to present
an effective defense; but none authorizes a district court to
grant immunity on its own authority. See, e.g., Curtis v.
Duval, 124 F.3d 1 (1st Cir. 1997); United States v. Turkish,
623 F.2d 769, 772 (2d Cir. 1980); United States v.
Moussaoui, 382 F.3d 453 (4th Cir. 2004); United States v.
Thevis, 665 F.2d 616 (5th Cir. Unit B 1982), superseded on
other grounds by Fed. R. Evid. 804(b)(6); United States v.
Talley, 164 F.3d 989 (6th Cir. 1999); United States v.
Herrera-Medina, 853 F.2d 564 (7th Cir. 1988); United States
v. Bowling, 239 F.3d 973 (8th Cir. 2001); United States v.
Westerdahl, 945 F.2d 1083 (9th Cir. 1991); Serrano, 406 F.3d
at 1217–18; United States v. DiBernardo, 880 F.2d 1216
(11th Cir. 1989); United States v. Perkins, 138 F.3d 421 (D.C.
Cir. 1998). They have cited concerns of judicial competency
to weigh immunity decisions and the Executive Branch’s sole
authority to immunize under the federal immunity statute, 18
U.S.C. §§ 6002, 6003. See, e.g., United States v. Capozzi,
883 F.2d 608, 614 (8th Cir. 1989) (“Every court of appeals
which has considered the question has rejected the Third
Circuit’s Smith holding as being a violation of the doctrine of
separation of powers.”). Judicial use immunity has also been
questioned by members of our Court. United States v.
Bazzano, 712 F.2d 826, 851 (3d Cir. 1983) (en banc) (Adams,
J., with Hunter and Becker, JJ., dissenting) (“Smith may have
expanded judicial power too far.”).




                              14
      It is in this context that we revisit that aspect of
Smith’s holding whereby courts have the inherent authority to
immunize a defense witness.

       C.     Reconsidering Judicial Use Immunity

         The Fifth Amendment guarantees that “[n]o person
shall . . . be deprived of life, liberty, or property, without due
process of law.” U.S. Const. amend. V. The Sixth
Amendment guarantees a criminal defendant’s right “to have
compulsory process for obtaining witnesses in his favor.” Id.
amend. VI. Fundamentally, “the Constitution guarantees
criminal defendants a meaningful opportunity to present a
complete defense.” Crane v. Kentucky, 476 U.S. 683, 690
(1986) (internal quotation marks omitted); Chambers v.
Mississippi, 410 U.S. 284, 294 (1973) (“The right of an
accused in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the State’s
accusations.”).

       The Smith Court based its judicial immunity remedy
on the conclusion that the Fifth Amendment’s Due Process
Clause includes a right to present an effective defense.
Although it cited the Sixth Amendment’s right to compulsory
process, that alone does not entitle a defendant to request
immunity for his witnesses. United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 (1982) (“[T]he Sixth Amendment
does not by its terms grant to a criminal defendant the right to
secure the attendance and testimony of any and all
witnesses.”); Washington v. Texas, 388 U.S. 14, 19 (1967)
(“The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense . . . .”); Diggs v. Owens, 833 F.2d 439, 444




                               15
(3d Cir. 1987) (“In general a defendant’s Sixth Amendment
right of compulsory process gives way when a witness he has
subpoenaed invokes his Fifth Amendment privilege against
self-incrimination.”); Moussaoui, 382 F.3d at 467 (“[A]
defendant has no Sixth Amendment right to such
testimony.”).

        We held in Smith that a court could bestow immunity
on a defense witness to guard a defendant’s constitutional
right to present an effective defense. On revisiting the issue,
we no longer believe this is a permissible use of judicial
authority. Congress has given the Executive Branch the sole
authority to immunize witnesses; giving that power to courts
intrudes on prosecutorial decision-making and goes beyond
judicial expertise. Moreover, we think the defendant’s right
to due process is protected by retaining the effective defense
test as a complement to our prosecutorial misconduct inquiry.

              1.     The Statutory Basis of Immunity

       Immunity is a creation of the legislature, the body that
defines criminal offenses and their sanctions. It removes
“those sanctions which generate the fear justifying invocation
of the privilege,” Ullmann v. United States, 350 U.S. 422, 431
(1956), and is akin to “an act of general amnesty,” Brown v.
Walker, 161 U.S. 591, 601 (1896).

       Under the federal witness immunity statute, “no
testimony or other information compelled . . . (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




                              16
U.S.C. § 6002. This is known variously as use and derivative
use, or use and fruits, immunity (shortened to use immunity
throughout this opinion). Congress has given the Attorney
General the authority to exchange the protection of immunity
for otherwise incriminating testimony when, “in his
judgment,” a witness’s testimony “may be necessary to the
public interest.” § 6003(b). Because this protection “is
coextensive with the scope of the [Fifth Amendment]
privilege against self-incrimination,” a Court can hold an
immunized witness in contempt for refusal to testify.
Kastigar v. United States, 406 U.S. 441, 453 (1972).

       Congress granted this authority to the Executive
Branch because immunity is a prosecutorial tool. Often those
with pertinent knowledge about criminal offenses have
engaged in unlawful behavior themselves.           Granting
immunity enables the Government to elicit testimony that
would otherwise be protected by the Fifth Amendment
privilege against self-incrimination.

          Congress has not given criminal defendants any
similar power to seek immunity for their witnesses. Nor has
it authorized the federal courts to immunize a witness.
Instead, under § 6002 a district court’s role is to grant
immunity when it is requested by the Attorney General or his
designee. Though a court reviews the Government’s request
for procedural compliance with the statute, it does not
consider whether the Government has correctly determined if
immunity is in the public interest. Pillsbury Co. v. Conboy,
459 U.S. 248, 254 n.11 (1983) (“Congress foresaw the courts
as playing only a minor role in the immunizing
process . . . .”); Herman, 589 F.2d at 1201 (“There
is . . . overwhelming judicial and legislative authority for the




                              17
proposition that review on the merits of a federal prosecutor’s
decision to grant immunity is barred by statute.”); see also
United States v. Taylor, 728 F.2d 930, 934 (7th Cir. 1984)
(describing this review as “ministerial”).

        There are good reasons for immunity decisions to
reside with the Executive Branch. Often the decision to grant
or deny immunity impinges on the Government’s “broad
discretion as to whom to prosecute.” Wayte v. United States,
470 U.S. 598, 607 (1985) (internal quotation marks omitted).
In any later prosecution, the Government bears a “‘heavy
burden’” because it must “prove that its evidence against the
immunized witness has not been obtained as a result of his
immunized testimony.” Turkish, 623 F.2d at 775 (quoting
Kastigar, 406 U.S. at 461). In some cases, the Government
may have already assembled the evidence it needs, or it can
“sterilize” the immunized testimony by isolating those
investigating or prosecuting the witness from any
incriminating information provided through his testimony.
Smith, 615 F.2d at 973. But if these precautions are
unsuccessful or unavailable, a court’s granting immunity to a
witness to secure another’s criminal conviction may prevent
the Government from ever prosecuting the witness for his
own criminal behavior.

       Courts are not in the best position to decide these
prosecutorial tradeoffs. “Such factors as the strength of the
case, the prosecution’s general deterrence value, the
Government’s enforcement priorities, and the case’s
relationship to the Government’s overall enforcement plan are
not readily susceptible to the kind of analysis the courts are
competent to undertake.” Wayte, 470 U.S. at 607; see
Moussaoui, 382 F.3d at 467 (“Decisions to grant or deny




                              18
immunity are intimately tied to decisions regarding which
perpetrators of crimes will be prosecuted, a core aspect of the
Executive’s duty to enforce the laws.”); In re Daley, 549 F.2d
469, 479 (7th Cir. 1977) (“[T]he relative importance of
particular testimony to federal law enforcement interests is a
judgmental rather than a legal determination, one remaining
wholly within the competence of appropriate executive
officials.”). Giving judges the power to immunize witnesses
“would carry the courts into policy assessments which are the
traditional domain of the [E]xecutive [B]ranch.” Thevis, 665
F.2d at 639. As Congress has given the power to immunize a
witness solely to the Executive Branch, it is not a power
courts can exercise.2


2
  Our sister Circuits have also expressed a fear that judicially
granted immunity “would be subject to abuse” by criminal
defendants who could seek immunity for one another, each
testifying that the other was not involved, or that one criminal
defendant could take the fall for coconspirators by taking full
responsibility at the others’ trials. Thevis, 665 F.2d at 639–
40; Turkish, 623 F.2d at 775. Though these witnesses subject
themselves to perjury prosecution, the perjury statutes likely
carry far lower sanctions, and therefore deterrence, than the
charged offenses. Thevis, 665 F.2d at 640 n.27 (“Nor are we
convinced that perjury prosecutions are an adequate deterrent.
Successful perjury prosecutions are not common, and in many
cases the penalty for the substantive crime will far surpass
perjury penalties.”). Although we have recognized judicial
use immunity for over thirty years and these fears do not
appear as a problem to date, we recognize that the possibility
of this kind of abuse further highlights the limits of judicial
expertise in this area.




                              19
              2.      The Lack of Support for Judicial Use
                      Immunity

       In Smith, we justified judicial use immunity as
“new only in the sense of its application” in that context. 615
F.2d at 971. We said that “[b]oth the Supreme Court [in
Simmons v. United States, 390 U.S. 377 (1968),] and this
[C]ourt [in In re Grand Jury Investigation, 587 F.2d 589 (3d
Cir. 1978), and United States v. Inmon, 568 F.2d 326 (3d Cir.
1977),] have previously found an inherent judicial power to
grant witness immunity.” Id. We now believe this was too
expansive a reading of those cases. Simmons, and our cases
applying its holding, Grand Jury and Inmon, permit a court to
exclude a criminal defendant’s earlier testimony from trial in
narrow circumstances.       This differs significantly from
granting immunity to a defense witness when that witness has
invoked the Fifth Amendment.

       In Simmons, the Supreme Court held that a defendant’s
testimony in support of his motion to suppress evidence on
Fourth Amendment grounds could not be admitted against
him on the issue of guilt at his later trial, as it is “intolerable
that one constitutional right should have to be surrendered in
order to assert another.” 390 U.S. at 394. We applied the
logic of Simmons to hold that a defendant’s testimony offered
to gain the protection of the Speech and Debate Clause,
Grand Jury, 587 F.2d at 597, and the Double Jeopardy
prohibition, Inmon, 568 F.2d at 333, could similarly not be
used to prove his guilt at a subsequent trial.

      Although the Court’s opinion in Simmons never uses
the word “immunity,” courts—including our own—have
analogized Simmons’ protection of testimony given at a




                                20
suppression hearing to a grant of immunity. See, e.g., United
States v. Perry, 788 F.2d 100, 116 (3d Cir. 1986) (noting that
“Simmons v. United States authorizes the grant of use
immunity,” thus a defendant could testify at a bail hearing
without fear of incrimination); United States v. Bryser, 95
F.3d 182, 186 (2d Cir. 1996) (holding that “use immunity
under Simmons” was not available at a resentencing hearing).

        Simmons created an exclusionary rule (that is, it
excludes a defendant’s testimony in an earlier hearing from
being used at trial against him) when the criminal defendant
would otherwise have to waive at the hearing his Fifth
Amendment privilege against self-incrimination.           The
Supreme Court has not extended Simmons beyond those facts.
United States v. Snipes, 611 F.3d 855, 866 (11th Cir. 2010).
Simmons’ reasoning does not reach the facts of Smith; neither
the defendants in that case nor the defense witness faced a
conflict between two constitutional rights. In addition, the
protection afforded by the Supreme Court under Simmons
(the exclusion from his trial of a criminal defendant’s
testimony at a prior suppression hearing) does not present the
same intrusion on prosecutorial discretion as does a judicial
grant of immunity to a defense witness. In other words,
Simmons’ exclusionary rule does not extend a court’s power
to invade the prosecutorial decisions discussed above.

       Any possibility that the Supreme Court authorized in
Simmons a general judicial authority to confer use immunity
for non-defendant witnesses is undermined by its subsequent
discussions of the authority to immunize witnesses. In cases
addressing grants of immunity, it is clear that the Court
believes only the Executive Branch, and not the Judiciary, has
the authority to immunize a witness. In Pillsbury, the Court




                             21
held that a witness in a civil suit could invoke the Fifth
Amendment during a deposition in which he was asked
questions identical to those asked and answered under
Government-sought immunity before a grand jury. 459 U.S.
248 (1983). Holding that the deposition testimony was not
“derived from” the immunized testimony and hence not
protected by the grant of immunity, the Court held that the
trial court could not compel the witness’s incriminating
answers because “only the Attorney General or a designated
officer of the Department of Justice has authority to grant use
immunity,” and “Congress gave certain officials in the
Department of Justice exclusive authority to grant
immunities.” Id. at 248, 253–54, 261 (emphasis added and
footnote omitted).

        Similarly, in United States v. Doe the Government
sought to compel document production through a promise not
to prosecute but without obtaining immunity under the federal
immunity statute. 465 U.S. 605 (1984). The Supreme Court
declined “to adopt a doctrine of constructive use immunity,”
and refused to “extend the jurisdiction of courts to include
prospective grants of use immunity in the absence of the
formal request that the statute requires.” Id. at 616. It
explained that, under Pillsbury, prosecutors had the exclusive
authority to grant immunity, as that decision “necessarily
involves a balancing of the Government’s interest in
obtaining information against the risk that immunity will
frustrate the Government’s attempts to prosecute the subject
of the investigation. Congress expressly left this decision
exclusively to the Justice Department.” Id. at 616–17
(citation omitted). In a more recent discussion of immunity,
the Court referred repeatedly to the Executive Branch’s
authority to immunize a witness. See United States v. Balsys,




                              22
524 U.S. 666, 682–83 (1998) (“[T]he government has an
option to exchange the stated privilege for an immunity to
prosecutorial use of any compelled inculpatory
testimony. . . . The only condition on the government when it
decides to offer immunity in place of the privilege to stay
silent is the requirement to provide an immunity as broad as
the privilege itself. . . . [T]he immunity option open to the
Executive Branch could be exercised only on the
understanding that the state and federal jurisdictions were as
one.” (citation omitted)).

        This language is no doubt dicta. Yet “we cannot
lightly ignore the force of Supreme Court dicta.” Morrow v.
Balaski, 719 F.3d 160, 169 (3d Cir. 2013) (en banc). “The
Supreme Court uses dicta to help control and influence the
many issues it cannot decide because of its limited docket.”
In re McDonald, 205 F.3d 606, 612 (3d Cir. 2000).
“Appellate courts that dismiss these expressions . . . increase
the disparity among tribunals . . . and frustrate the
evenhanded administration of justice . . . .” Id. at 612–13
(internal quotation marks omitted).

              3.     Judicial Use Immunity and Kastigar

       Quinn urges us to uphold judicial use immunity,
arguing that courts do not need authority to “grant” immunity.
Instead, he believes the judicial power to compel testimony
necessary to a defendant’s defense, on its own, carries
immunity for that testimony. Quinn reads Kastigar v. United
States, 406 U.S. 441 (1972), to hold that testimony, once
compelled, is necessarily immunized. He explains “the Self-
Incrimination Clause by its own force confers immunity for




                              23
direct and indirect uses of the compelled testimony
against . . . that witness.” Appellant’s Supplemental Br. at 6.

        That is not correct. In Kastigar, two witnesses were
immunized under 18 U.S.C. § 6002 but refused to testify
before a grand jury. 406 U.S. at 442. They contended that
the statutory protection was not sufficient to supplant the
privilege and compel their testimony. The District Court held
them in contempt and the Supreme Court upheld that order.
Id. at 453. “[S]uch immunity from use and derivative use is
coextensive with the scope of the privilege against self-
incrimination, and therefore is sufficient to compel testimony
over a claim of the privilege.” Id. Testimony that would
otherwise incriminate can only be compelled—that is, sought
subject to contempt if not given—after the threat of criminal
sanction is lifted. That testimony is not automatically
immunized because it is compelled; rather, if the witness
claims the privilege, his testimony can be compelled because
the federal immunity statute protects him from incrimination
as a result of his testimony, the same protection afforded by
the Fifth Amendment.

       As we discussed above, only the Government has
statutory authority to seek immunity. And only when
testimony is protected by immunity granted by the
Government can a court compel that testimony. The
authority of a court to immunize a witness cannot be assumed
from Kastigar.

                *      *      *      *      *

     We know of no precedent (save Smith) to support use
immunity grants by the Judiciary, as that right is reserved to




                              24
the Executive Branch. In addition, we do not believe that
judicial use immunity is necessary to protect the
constitutional rights of the accused. As explained in the next
section, we believe that, when understood in its historical
context, Smith proscribed prosecutorial misconduct and the
test we created there to assess claims of misconduct remains
both useful and worth keeping. Thus, though we abandon
judicial use immunity as a remedy, we keep the protection of
due process provided through the test created in Smith.

III.   The Prosecutorial Misconduct Theory

        The prosecutorial misconduct theory we recognized
prior to Smith holds that the Government violates a
defendant’s due process right to a fair trial if it acts with the
deliberate intention of distorting the factfinding process, such
as by interfering with a defense witness through threats and
intimidation. Because it looks to Government action, this test
is difficult to apply when the Government declines to grant
immunity to a defense witness. Smith crafted a new five-part
test to address instances of Government refusal to immunize,
with the aim of ensuring that a defendant is able to present a
defense free from improper Government intrusion.

       A.     Our Holding in Morrison

        The first case in our Circuit involving the prosecutorial
misconduct theory was United States v. Morrison, 535 F.2d
223 (3d Cir. 1976). We held that the Government’s
interference with a defense witness’s testimony violated the
defendant’s guarantee of due process. Id. at 228. Morrison’s
girlfriend intended to testify that she, and not he, engaged in
the charged criminal conspiracy to distribute hashish. Over




                               25
the course of the trial, the prosecutor sent several messages to
the witness warning her that she could be charged for the drug
crimes and perjury on the basis of her testimony. Id. at 225.
The night before her testimony, the prosecutor subpoenaed
the witness and interviewed her in his office. Accompanied
by the law enforcement officers involved in the case, he again
warned her of the dangers of testifying. These warnings had
their intended effect. When called to testify, Morrison’s
girlfriend invoked her Fifth Amendment privilege against
self-incrimination. Id. at 226.

       We held that the prosecutor’s “repeated warnings[,]
which culminated in a highly intimidating personal
interview,” had “interfered with the voluntariness of [the
witness’s] choice and infringed [the] defendant’s
constitutional right to have her freely-given testimony.” Id. at
227–28. Due process protects the defendant’s “right . . . to
have [his] witness available as he finds him.” United States v.
Herman, 589 F.2d 1191, 1199 (3d Cir. 1978). We vacated
Morrison’s conviction and held that, if the witness invoked a
privilege against self-incrimination during a retrial, the
charges against Morrison should be dismissed unless the
Government immunized the witness’s testimony under 18
U.S.C. § 6002. Morrison, 535 F.2d at 229.

         Our holding in Morrison followed from the Supreme
Court’s holding in Webb v. Texas, 409 U.S. 95 (1972). There,
a trial court

       gratuitously singled out [the only defense]
       witness for a lengthy admonition on the dangers
       of perjury. . . . [T]he judge implied that he
       expected [the witness] to lie, and went on to




                              26
      assure him that if he lied, he would be
      prosecuted and probably convicted for perjury,
      that the sentence for that conviction would be
      added on to his present sentence, and that the
      result would be to impair his chances for parole.

Id. at 97. The Supreme Court held that the judge’s remarks
“effectively drove that witness off the stand, and thus
deprived the petitioner of due process of law under the
Fourteenth Amendment.” Id. at 98.

       Other courts have interpreted Webb similarly to hold
that “[v]arious prosecutorial and judicial actions aimed at
discouraging defense witnesses from testifying deprive a
defendant of [his due process] right.” United States v.
Emuegbunam, 268 F.3d 377, 400 (6th Cir. 2001); see also
United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988)
(“‘[The prosecutor]’s warnings concerning the dangers of
perjury cannot be emphasized to the point where they threaten
and intimidate the witness into refusing to testify.’” (quoting
United States v. Blackwell, 694 F.2d 1325, 1334 (D.C. Cir.
1982))); United States v. MacCloskey, 682 F.2d 468, 479 (4th
Cir. 1982) (prosecutor’s “eleventh hour call” to primary
defense witness “suggesting that she would be well-advised
to remember the Fifth Amendment” is a due process violation
under Webb that entitles the defendant to a new trial).

      B.     Prosecutorial Misconduct Beyond Morrison

        Following Morrison, we defined prosecutorial
misconduct as actions taken “with the deliberate intention of
distorting the judicial factfinding process.” Smith, 615 F.2d
at 968; Herman, 589 F.2d at 1204. This deliberate distortion




                              27
test applies when the Government has taken steps to interfere
with the testimony of a witness who would otherwise be
available to the defense. For example, the prosecution has
engaged in misconduct if the defendant can show that the
Government’s “[i]ntimidation or threats . . . dissuade[d] a
potential witness from testifying”—that is, “the
[G]overnment’s conduct . . . ‘substantially interfered’ with a
witness’s choice to testify.” Lambert v. Blackwell, 387 F.3d
210, 260 (3d Cir. 2004).

        But we have also used the deliberate distortion test in
situations where prosecutors did not engage in overt threats or
intimidation.    In Herman, we considered whether the
Government’s selective immunization of prosecution
witnesses, but not defense witnesses, violated the defendant’s
due process rights. 589 F.2d at 1203–04. Because the
Government’s decision to immunize some witnesses and not
others was based on its decision to prosecute them, and not on
their testimony at Herman’s trial, we discerned no
misconduct. Id. In Smith, we asked whether the prosecutor’s
refusal to permit a defense witness to testify under a grant of
immunity, when there was no interest in prosecuting him, was
a deliberate effort to distort the factfinding process. Smith,
615 F.2d at 969. We recognized that when the Government
declines to seek immunity for a defense witness, it is difficult
for a defendant to prove that the prosecution acted with the
deliberate intention of distorting the factfinding process.
Thus in Smith we also created a new five-factor test that
focused on whether the defendant “is prevented from
presenting exculpatory evidence which is crucial to his case.”
Id.




                              28
       Although we characterized this test as distinct from an
inquiry into prosecutorial misconduct, it is nonetheless about
the Government’s trial decisions. We wanted to know if the
prosecutor was keeping exculpatory and essential testimony
from trial solely to gain a tactical advantage against the
accused. If there were a governmental reason, unrelated to
the defendant’s trial, for refusing immunity, we would not
interfere with that decision. If, however, the Government had
no strong reason to keep exculpatory testimony from trial, we
could overturn a resulting conviction. See United States v.
Turkish, 623 F.2d 769, 777 (2d Cir. 1980) (“[Smith] was
simply an instance of a prosecutor interfering, for no apparent
reason, to suppress evidence that was about to become
available to the accused.”). A proceeding “[t]hat casts the
prosecutor in the role of an architect,” instead of participant,
does not “comport with standards of justice.” Brady v.
Maryland, 373 U.S. 83, 88 (1963).

       Other courts have not distinguished, as we did in
Smith, the prosecution’s interference with a witness from its
refusal to immunize a witness. Instead, they have treated the
Government’s refusal to grant immunity as a question of
misconduct. Blissett v. Lefevre, 924 F.2d 434, 442 (2d Cir.
1991) (“Prosecutorial overreaching may also involve
deliberate denial of immunity for the purpose of withholding
exculpatory evidence and gaining a tactical advantage
through such manipulation.”); United States v. Angiulo, 897
F.2d 1169, 1192 (1st Cir. 1990) (“[T]he government could
intentionally distort the fact-finding process by deliberately
withholding immunity from certain prospective defense
witnesses for the purpose of keeping exculpatory evidence
from the jury.”); Hooks, 848 F.2d at 802 (considering whether
“the government’s withholding of immunity distorted the




                              29
fact-finding process by keeping exculpatory evidence from
the jury”); United States v. Frans, 697 F.2d 188, 191 (7th Cir.
1983) (requiring a defendant to show “that the government
intended to distort the judicial fact-finding process” by
refusing to immunize a defense witness after immunizing a
prosecution witness).

       The five factors considered in Smith remain
analytically helpful, as they capture those situations where the
Government, for tactical reasons, has used its power to
threaten prosecution and withhold immunity to keep
exculpatory and essential testimony from trial for no strong
countervailing reason. This test fleshes out, and thus
complements, Morrison’s metric of deliberate distortion. For
good reason this test also requires a more exacting showing
than does the broader misconduct test. When a defendant
alleges that the Government’s refusal to immunize resulted in
an unfair trial, he is challenging its statutory discretion in his
case and possibly others. If the defendant can show, as a
prima facie matter, a witness’s testimony is available, clearly
exculpatory, and essential—in effect showing that the
prosecutor’s actions have impaired the ability to present an
effective defense—we will consider the due process concerns
raised regarding the Government’s discretion to grant or deny
immunity.       The five-factor test aids this inquiry for
prosecutorial misconduct, and we continue its use.

       C.     The Remedy

      Once Smith’s five-part test is understood as a gauge of
prosecutorial misconduct, the remedy for such a finding
follows easily. It is vacating the conviction and allowing a
new trial where the Government can elect to exercise its




                               30
statutory authority to obtain a grant of immunity for the
witness. United States v. Pennell, 737 F.2d 521, 526 (6th Cir.
1984) (“The recommended remedy in such cases has been
that a court . . . set aside the conviction and remand the case
to afford the prosecutor an opportunity to immunize . . . .”).
If the Government refuses to immunize the witness in
violation of the defendant’s due process right, the trial court
can dismiss the charges against the defendant.3

        Courts sometimes refer to this remedy as “compelling
the Government to immunize the witness,” id. at 468, but that
is imprecise. Dismissing the charges unless the witness is
immunized leaves prosecutorial decisions in the hands of the
Government. It may grant immunity to the witness and
attempt to convict the defendant in a fair trial, or it may
decide that denying the witness immunity is more important
to its goals than seeking that conviction. But the remedy does
not compel the Government to do anything. It simply
prevents prosecutors from obtaining a conviction through a
process that lacks the fairness afforded by due process.
United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988)
(“[T]he prosecutor’s power to seek or to refuse to seek
immunity is limited by the constitutional right to due process
of the law.”).



3
  While we do not deal in this opinion with a possible
alternative to dismissal, we note the possibility in the rare
case that another cure could correct the distortive effect. See,
e.g., United States v. Moussaoui, 382 F.3d 453, 476–77 (4th
Cir. 2004) (appropriate substitute for witness’s testimony
made available, so dismissal of charges not necessary).




                               31
       D.     Bad Faith

        The Government argues that any test for a due process
violation must require the defendant to show bad faith on the
part of the Government. See United States v. Santtini, 963
F.2d 585, 596–97 (3d Cir. 1992) (“As a general matter, even
when actions by the prosecution appear to deprive a criminal
defendant of his constitutional right to present a defense, no
remedy will lie for such infringement absent a showing that
the government has caused the unavailability of material
evidence and has done so in bad faith.”). The element of bad
faith, however, does not require a defendant to show specific
intent on the part of the Government to interfere with his due
process rights. See Morrison, 535 F.2d at 227 (“The good
faith of the [prosecutor] would be relevant if he were charged
with violation of 18 U.S.C. § 1503[,] which makes the
intimidation of a federal witness a criminal offense. It is not,
however, relevant to an inquiry into whether a defendant was
denied his constitutional right.” (emphases in original)).

       Our concern is with the effect of the prosecutor’s
actions on the process afforded to the defendant. “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.” United States v. Straub, 538 F.3d 1147,
1160 (9th Cir. 2008). “If the suppression of evidence results
in constitutional error, it is because of the character of the
evidence, not the character of the prosecutor.” United States
v. Agurs, 427 U.S. 97, 110 (1976). Courts should protect
against deliberate wrongdoing by prosecutors and, in those
rare cases where it arises, overzealous advocacy that distorts
the factfinding function of a criminal trial.




                              32
      That said, prosecutorial misconduct is an area of the
law requiring sensitivity. Courts should be hesitant, absent a
strong showing by the defense, to determine that the
Government has engaged in misconduct by exercising its
prosecutorial discretion and withholding immunity from a
witness.

                *      *      *      *      *

       To summarize, judicial use immunity impinges on the
separation of powers between the Executive and Judicial
Branches of our Federal Government. The grant of witness
immunity, reserved by statute to the Executive Branch, does
not also reside with the Judiciary. We overturn that portion
of our holding in Smith that recognizes the authority of courts
to confer immunity on a witness. But we keep the test we
created in that case, which we now recognize as
supplementing our deliberate distortion test for prosecutorial
misconduct. The appropriate remedy if a defendant can prove
misconduct is to allow the Government to seek immunity for
the witness at retrial or have the charges dismissed. With this
revised legal framework, we turn to Quinn’s challenge to his
conviction.

IV.   Quinn’s Appeal

       In the District Court, Quinn sought immunity for
Johnson to testify, claiming that Johnson’s testimony was
necessary for him to present an effective defense. Denying
that immunity, Quinn contends, is a due process violation
requiring a new trial. “Ordinarily we review a denial of a
motion for a new trial under an abuse of discretion standard.”
United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993); cf.




                              33
United States v. Mike, 655 F.3d 167, 173 (3d Cir. 2011)
(“Ultimately, the question of whether clearly exculpatory
evidence is necessary to present an effective defense is a
decision calling upon the sound judgment of the district court
judge in a position to listen to the witnesses and evaluate the
tenor of trial narratives.”). When the alleged violation
includes “issues of law and fact[,] . . . we review the district
court’s legal conclusions on a de novo basis and its factual
findings under the clearly erroneous standard.” Joseph, 996
F.2d at 39; see United States v. Risha, 445 F.3d 298, 303 (3d
Cir. 2006).

        On appeal, Quinn argues for the first time that the
prosecution engaged in misconduct by interfering with
Johnson’s testimony. He alleges that the Government’s
motion to delay Johnson’s sentencing until after Quinn’s trial
caused Johnson to invoke the Fifth Amendment and refuse to
testify. Yet before trial Quinn expressly disclaimed an
argument that the prosecution engaged in misconduct. At
argument on his motion in limine to have Johnson immunized
by the Court, Quinn’s counsel agreed that the prosecutorial
misconduct theory was not at issue because Quinn did not
allege “the government [was] doing anything improper.”

       Because he raises this argument for the first time on
appeal, we review for plain error. Fed. R. Crim. P. 52(b);
Puckett v. United States, 556 U.S. 129, 135 (2009). We
follow the four-step inquiry set out in United States v. Olano,
507 U.S. 725, 732–36 (1993). “First, there must be an error
or defect—some sort of deviation from a legal rule . . . .”
Puckett, 556 U.S. at 135 (alteration and internal quotation
marks omitted). “Second, the legal error must be clear or
obvious, rather than subject to reasonable dispute.” Id.




                              34
“Third, the error must have affected the appellant’s
substantial rights, which in the ordinary case means he must
demonstrate that it ‘affected the outcome of the district court
proceedings.’” Id. (quoting Olano, 507 U.S. at 734). Even
when all three of these conditions are satisfied, there is a
fourth step. “[W]e will exercise our discretion to correct the
unpreserved error only if . . . a miscarriage of justice would
otherwise result, that is, if the error seriously affected the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Corso, 549 F.3d 921, 929 (3d
Cir. 2008) (internal quotation marks and alteration omitted).

      A.      Refusal to Immunize Johnson’s Testimony

       We repeat for ease of reference that, to prove a due
process violation on the basis of the Government’s refusal to
immunize a defense witness, the defendant must show the
following five elements. “[1] [I]mmunity must be properly
sought in the district court; [2] the defense witness must be
available to testify; [3] the proffered testimony must be
clearly exculpatory; [4] the testimony must be essential; and
[5] there must be no strong governmental interests which
countervail against a grant of immunity.” Smith, 615 F.2d at
972. The first two are not disputed. Quinn requested that
Johnson be immunized and he was available to testify. We
note, however, that there is no evidence that Quinn directed
his immunity request to the Government. Going forward,
defendants must seek immunity for their witnesses from the
Government, not the district courts. In the unusual posture of
this case—where we have kept the analytical test but no
longer recognize a district court’s ability to immunize a
witness—we will assume, from the Government’s opposition




                              35
to Quinn’s motion in limine, that it would have refused to
immunize Johnson if asked.

       We start with the requirement that Quinn show that
Johnson’s testimony is clearly exculpatory, i.e., that it would
exonerate or free him of guilt or blame. Testimony that is “at
best speculative,” United States v. Ammar, 714 F.2d 238, 251
n.8 (3d Cir. 1983), “severely impeached” by the witness’s
prior inconsistent statement(s), United States v. Perez, 280
F.3d 318, 348 (3d Cir. 2002), ambiguous on its face, Smith,
615 F.2d at 972, or “even if believed, would not in itself
exonerate [the defendant],” United States v. Lowell, 649 F.2d
950, 965 (3d Cir. 1981) (emphasis omitted), is not clearly
exculpatory.

        Quinn and Amicus Curiae, the National Association of
Criminal Defense Lawyers, urge us to be less exacting in our
requirement that evidence be clearly exculpatory. They argue
that immunity should be available if the evidence is
“materially favorable to the defense on the issue of guilt,”
Appellant’s Supplemental Br. at 19, or “could contribute
substantially to raising a reasonable doubt,” Amicus Br. at
11. We continue to be guided (as was the Smith Court) by the
Supreme Court’s holding in Chambers v. Mississippi. It
required the State of Mississippi to abrogate otherwise
appropriate evidentiary rules when they prevented the
defendant from presenting essential testimony. 410 U.S. 284
(1973); see also Lowell, 649 F.2d at 964 (noting Smith’s
reliance on Chambers). Although rules of evidence often
exclude testimony that a defendant believes is materially
favorable or would contribute to raising a reasonable doubt of
guilt, the Chambers line of cases permits abandoning those
rules when they “infringe upon a weighty interest of the




                              36
accused and are arbitrary or disproportionate to the purposes
they are designed to serve.” Holmes v. South Carolina, 547
U.S. 319, 324 (2006) (alteration and internal quotation marks
omitted). A weighty interest exists when the Government’s
decision not to immunize the testimony of a defense witness
blocks the defendant’s ability to present a meaningful
defense; that is, with the evidence he might disprove the
Government’s case, without it he cannot.

       This case requires us to clarify two of our cases
discussing the clearly exculpatory part of the Smith test. We
have held that a witness’s testimony “undercut” or
“undermine[d]” by evidence presented by the Government
was not clearly exculpatory. United States v. Thomas, 357
F.3d 357, 365–66 (3d Cir. 2004); Mike, 655 F.3d at 172. To
avoid any misunderstanding as to those terms, we note that
the obvious purpose of exculpatory evidence is to contradict
the Government’s evidence against the accused. It is hard to
imagine a case in which a defendant’s evidence of his
innocence is not, in some respect, undermined by the
Government’s evidence of his guilt. The existence of
conflicting evidence does not affect, however, whether the
defense evidence is exculpatory, though it may affect its
weight. Thus, though exculpatory on its own, defense
evidence that is overwhelmingly undercut or undermined by
substantial prosecution evidence in the record becomes so
lacking in credibility that it cannot be clearly exculpatory.

       In this case, Johnson’s testimony is not clearly
exculpatory. First, we do not know the contents of Johnson’s
testimony. Quinn offered no proof that Johnson would offer
exculpatory testimony at all, let alone clearly exculpatory
evidence. In any event, Johnson’s putative testimony would




                             37
be overwhelmed by the evidence of Quinn’s guilt presented
by the Government.

        Quinn points to Johnson’s statement to police on the
afternoon of the robbery that Quinn was not involved in the
robbery. Even if Johnson testified consistently with that
statement—a matter in doubt—its believability is undermined
by his additional statement that he did not want to discuss the
involvement of Quinn because the latter is the brother of
Johnson’s fiancée.       Their familial connection provides
Johnson with a reason to shield Quinn from suspicion and
guilt. Johnson’s credibility would be eroded in other ways as
well. Johnson had already pled guilty to his role in the bank
robbery, and thus would have been subject to the accusation
that any exculpatory testimony was his effort to “take the
fall” for a friend and codefendant. After his arrest, Johnson
gave inconsistent statements to the police, first telling them
that he walked to the shopping center where he met Quinn,
then reporting that he was driven there by a friend. He also
told police that he called Quinn from the shopping center
parking lot, but call records presented at trial showed that no
calls were made from Johnson’s phone to Quinn. In addition,
the Government would have attacked Johnson’s credibility by
presenting evidence of his prior convictions for theft and
fraud.

       Most important, Johnson’s testimony would be
overwhelmed by the Government’s case against Quinn. He
called Johnson numerous times on the morning of the
robbery, and then deleted records of those calls before police
obtained his phone. He hid his car out of sight of the bank
while Johnson committed the robbery, and the robbery
occurred close to Quinn’s relative’s house, where Quinn




                              38
drove immediately after Johnson obtained the money. Also,
two of Quinn’s cellmates presented direct evidence that (i) he
boasted about planning and participating in the robbery and
(ii) he hoped to get away with the crime by claiming that only
Johnson was involved.

       This is not an instance where the defense witness’s
testimony (even assuming it were given as Quinn hopes)
would make suspect the Government’s case. See Smith, 615
F.2d at 966–67. Considering these items of evidence
together, we cannot conclude that Johnson’s testimony was
clearly exculpatory. Because Quinn has not made this
showing, we do not need to consider whether Johnson’s
testimony was essential or whether the Government had a
strong countervailing interest for refusing to grant Johnson
immunity.      (The latter avoids our scrutinizing the
Government’s prosecutorial decisions unless necessary to do
so.)

      B.     Delay of Johnson’s Sentencing Hearing

       We next turn to Quinn’s claim that the Government
engaged in deliberate distortion of the factfinding process by
delaying Johnson’s sentencing hearing. As mentioned, we
review for plain error. “If an error is not properly preserved,
appellate-court authority to remedy the error (by reversing the
judgment, for example, or ordering a new trial) is strictly
circumscribed.” Puckett, 556 U.S. at 134. We “correct only
particularly egregious errors.” United States v. Young, 470
U.S. 1, 15 (1985) (internal quotation marks omitted).

      We start with whether there is error that is clear. The
Government’s motion to continue Johnson’s sentencing is not




                              39
akin, in either quantity or quality, to the repeated and
intimidating reminders of criminal exposure imposed on the
witnesses in Morrison or Webb. Quinn has presented no
evidence that Johnson intended to testify on Quinn’s behalf
but was dissuaded from that testimony by the Government’s
motion. Indeed, Johnson took no position on the delay of his
sentencing, and informed the Court that he would invoke his
Fifth Amendment privilege if called to testify, apparently
without regard to the timing of his sentencing hearing.

        In addition, Quinn typically must “have [his] witness
available as he finds him.” United States v. Herman, 589
F.2d 1191, 1199 (3d Cir. 1978). When he first sought
Johnson’s testimony, Johnson was awaiting sentencing. The
Government’s motion for continuance merely maintained that
state of affairs after Quinn’s successful motion to delay his
trial. Johnson was available to Quinn exactly “as he [found]
him” id., prior to the delay of trial. We discern no distortion
of the factfinding process, and thus no prosecutorial
misconduct or error that is clear.

        Quinn fares no better on the third and fourth steps of
our plain error inquiry. He has not demonstrated that
Johnson’s testimony would have changed the outcome of his
case or that the absence of this testimony affected the
integrity, fairness, or public reputation of the judicial
proceedings here. Even assuming that Johnson would have
testified that Quinn was uninvolved (which, again, we do not
know), we are not persuaded, for the reasons explained
above, that it would have altered the jury’s finding of guilt.
Quinn had the opportunity to present a full defense against
the Government charges, including (as he did) by taking the
stand in his own defense. “The jury had before it all the facts




                              40
and claims appellant intended to elicit from the witnesses for
whom he sought immunity.” United States v. Alessio, 528
F.2d 1079, 1082 (9th Cir. 1976). We cannot say that Quinn’s
trial was unfair because it lacked Johnson’s testimony.

       Finally, Quinn also argues, for the first time in his
Supplemental Brief filed for our rehearing en banc, that the
District Court erred by finding that Johnson properly invoked
his Fifth Amendment privilege without requiring that he take
the stand and invoke the privilege as to specific questions.
Because this issue was not raised in Quinn’s notice of appeal
or opening brief, it is waived. Fed. R. App. P. 28(a)(5);
United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008);
Kost v. Kozakiewicz, 1 F.3d 176, 182 & n.3 (3d Cir. 1993).
Even if it were not, Quinn acknowledges there is no plain
error here, Appellant’s Supplemental Br. at 23 n.16, as he
does not challenge Johnson’s right to claim the privilege.

V.    Conclusion

       The prosecutorial misconduct test from our pre-Smith
cases—deliberate intent to distort the factfinding process—
provides a due process guard against Government
interference with a defense witness. The Smith five-part test
aids in this analysis when the Government exercises its
statutory authority not to immunize a witness for the defense.

        Our holding today departs from Smith, however, by
eliminating the grant of a judicially imposed remedy of use
immunity to a defense witness. Courts lack that authority, as
immunity is a statutory creation reserved to the Executive
Branch. If the accused can show a due process violation, a
trial court has the authority to vacate a conviction to allow a




                              41
new trial where the Government may immunize the witness’s
testimony or, if the Government won’t immunize, to dismiss
the charges.

      Applying our revision to this case, Quinn fails to show
that the Government interfered unconstitutionally with
Johnson’s decision not to testify. We thus affirm.




                             42
