Curtis v. Duval & Harshbarger

No. 96-1976

DANIEL J. CURTIS,

Petitioner, Appellant,

v.

RONALD T. DUVAL, ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lagueux,* District Judge.

Wendy Sibbison for appellant.
Gregory I. Massing, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Scott
Harshbarger, Attorney General,
was on brief, for appellees.

August 13, 1997

*Of the District of Rhode Island, sitting by designation.

SELYA, Circuit
Judge. Petitioner-appellant Daniel J.

Curtis, a state prisoner serving a life sentence for second-degree

murder, challenges the constitutionality of his conviction. He

asseverates that three occurrences the absence of counsel when

the trial judge delivered a supplementary jury instruction, the

fact that the supplementary instruction impermissibly shifted the

burden of proof, and the trial court's refusal to immunize a

potential defense witness abridged his constitutional rights.

The district court declined to issue a writ of habeas corpus. We

affirm.

I. PROCEDURAL HISTORY

A Suffolk County (Massachusetts) jury convicted the

petitioner of second-degree murder on December 30, 1980, and the

trial judge sentenced him to life imprisonment. The Massachusetts

Supreme Judicial Court (SJC) turned down the petitioner's initial

appeal, in which he argued that the trial court had transgressed

his rights to due process and compulsory process under the Sixth

and Fourteenth Amendments when it refused to immunize a prospective

defense witness. See
Commonwealth v.
Curtis, 448 N.E.2d 345 (Mass.

1983) (Curtis I). Six years later, the petitioner filed a motion

for new trial and raised for the first time two additional issues,

both of which concerned the trial court's rendition of a

supplementary jury instruction. The state superior court denied

the motion and the SJC affirmed. See Commonwealth v. Curtis, 632

N.E.2d 821 (Mass. 1994) (Curtis II).

On April 12, 1995, the petitioner docketed an application

2

for habeas relief in the United States District Court for the

District of Massachusetts, naming as respondents various state

officials (who, for ease in reference, we refer to as "the

Commonwealth"). In due course, the district court wrote a

thoughtful opinion in which it refused to issue the writ. See

Curtis v. Duval, Civ. No. 95-10758-DPW (D. Mass. July 11, 1996)

(unpublished). This appeal followed.

II. FACTUAL BACKGROUND

We sketch the evidence relevant to this appeal, referring

readers who hunger for greater detail to the SJC's fuller accounts.

See Curtis II, 632 N.E.2d at 824-26; Curtis I, 448 N.E.2d at 346-

48. We propose to describe the pertinent procedural aspects of the

petitioner's trial when we address his specific claims.

On the evening of July 14, 1980, Michael Robinson was

severely beaten in a confrontation between a group of East Boston

youths and a number of sailors. He died eight days later from head

injuries.

The origin of the fracas is obscure. Its genesis

apparently lies in an encounter between Lenny Curtis, the

petitioner's brother, and four black sailors who were lounging

outside the perimeter fence of an East Boston shipyard. Witnesses

gave conflicting testimony about what transpired. Lenny Curtis

testified that one of the sailors struck him when he rebuffed a

request for a cigarette. A sailor testified that Lenny Curtis

strolled by them unmolested but gave them "hard looks."

In any event, when Lenny Curtis spotted his friend, Eddie

3

Colon, riding a bicycle, he told Colon to scat and "get my two

brothers." Word of the brewing storm spread. Soon the four black

sailors were joined by several white sailors, including Robinson,

while between twelve and twenty East Boston youths assembled in

apparent opposition. Some of the youths reportedly hurled racial

epithets.

When the petitioner arrived at the scene by car, someone

told him that the sailors had assaulted his brother. A full-scale

brawl erupted soon thereafter. Witnesses disagreed over the

petitioner's role. According to some accounts, the sailors fled

from the youths. On this version, Robinson either tripped or was

pushed to the ground. Seaman Webb testified that he saw the

petitioner hit a supine Robinson over the head with a baseball bat

three times. Other witnesses testified that there were multiple

assailants.

Lenny Curtis told a very different story. He said that

when his brother approached Robinson, Robinson swung a bottle at

him. The petitioner ducked, punched Robinson, and then backed away

as Robinson fell to the ground. Lenny Curtis stated that he saw

three or four other persons attack Robinson with bats and sticks as

Robinson lay prostrate (whereupon the Curtis brothers skedaddled).

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C.A. S 2254(d) (Supp. 1997), became law on April

24, 1996 after the petitioner filed his habeas petition but

before the district court acted upon it. Although the AEDPA alters

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the standard of review governing the issuance of writs of habeas

corpus, the Supreme Court has determined that the AEDPA does not

apply to habeas petitions which were pending when the AEDPA became

law. See
Lindh v.
Murphy, No. 96-6298, 1997 WL 338568, at *8 (U.S.

June 23, 1997). The petitioner is therefore entitled to de novo

review of his claim that the state court abridged his

constitutional rights. See
Martin v.
Bissonette, F.3d ,

(1st Cir. 1997) [No. 96-1856, slip op. at 7-8];
see
also
Scarpa v.

Dubois, 38 F.3d 1, 9 (1st Cir. 1994) (explaining that federal

courts, although respecting state courts' findings of historical

fact, traditionally afford de novo review in regard to ultimate

questions presented by state prisoners' habeas petitions), cert.

denied, 513 U.S. 1129 (1995).

IV. THE MERITS

We turn now to the three claims that are before us. We

discuss them seriatim.

A. Deprivation of Counsel.

The basic facts pertinent to the petitioner's argument

that he was deprived of his Sixth Amendment right to the effective

assistance of counsel are as follows. The petitioner's trial wound

down on December 29, 1980. On that date, final arguments were made

and the trial court charged the jury. Deliberations began the next

morning. At 2:00 p.m. on December 30, the trial judge conducted a

chambers conference. He stated at the outset that he had tried

unsuccessfully to locate the petitioner's attorney for at least

twenty minutes.

5

At 3:14 p.m., notwithstanding that the missing lawyer

still had not surfaced, the judge ordered the jury returned to the

courtroom and, acting
sua
sponte, gave a supplementary instruction

anent the lesser included offense of manslaughter.
The jury found

the petitioner guilty of second-degree murder at 3:55 p.m.

The petitioner's paramount claim is that the judge's

actions deprived him of counsel at a critical stage of the

proceedings. He cites United States v. Cronic, 466 U.S. 648, 659

(1984), as authority for the concept that, when such a deprivation

occurs, it constitutes a structural error which makes the trial

presumptively unfair and requires automatic reversal on habeas

review. On this basis, he maintains that the state court's action

unleashed a presumption of prejudice per se, which entitles him to

habeas relief.

Cronic and its progeny do indeed stand for the

proposition that the actual or constructive denial of counsel at a

critical stage of a criminal trial constitutes prejudice per se and

thus invalidates a defendant's conviction.
See
Perry v.
Leeke, 488

The supplementary instruction stated in pertinent part:

Now in case you are wondering about the
manslaughter, remember that I told you that
the only set of facts, if you believe them,
that would warrant a manslaughter verdict
would be the instance that I recalled to your
mind if one of the witnesses I think it was
Curtis' brother testified that the sailor was
the aggressor, that is, that he swung a bottle
at Mr. Curtis first, and that, then, if Curtis
used what you feel was unreasonable force in
defending himself that it would warrant a
verdict of manslaughter against Curtis.

6

U.S. 272, 278-79 (1989); Penson v. Ohio, 488 U.S. 75, 88 (1988).

It is apodictic that the right to counsel is not honored for its

own sake, but rather because it ensures the accused a fair trial.

The Cronic Court reaffirmed this aphorism, but recognized that,

because of the presumption that counsel's assistance is essential,

the denial of counsel at a critical stage renders an otherwise

acceptable trial unfair. See Cronic, 466 U.S. at 659.

The petitioner is also correct when he asserts that

recalling the jury for supplementary instructions after

deliberations are underway is a critical stage of a criminal trial.

See
Rogers v.
United States
, 422 U.S. 35, 38-39 (1975);
Siverson v.

O'Leary, 764 F.2d 1208, 1214 (7th Cir. 1985). It is evident to us

that giving a sua sponte jury instruction without consulting, and

in the absence of, the defendant's attorney, as occurred here,

denies the defendant the assistance of counsel at that critical

stage. See United States v. Parent, 954 F.2d 23, 25-26 (1st Cir.

1992). And although this deprivation was short-lived, it occurred

during a vital point in the trial and was, within its terms, total.

Therefore, were we to apply Cronic, Penson, and Parent, we would

hold that the error required reversal.

In a habeas proceeding, however, special protocols

prevail. Under one such protocol, "new constitutional rules of

criminal procedure will not be applicable to those cases which have

become final before the new rules are announced." Teague v.
Lane,

489 U.S. 288, 310 (1989) (plurality).

Although this protocol would seem to have a bearing on

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the disposition of Curtis' habeas petition, there is a procedural

glitch. The Commonwealth has not explicitly relied on Teague, and

the district court decided the issue on other grounds. Moreover,

the
Teague paradigm is not jurisdictional in the sense that a court

is obliged to raise the point on its own initiative. See Collins

v.
Youngblood, 497 U.S. 37, 41 (1990). Thus, by failing either to

cite Teague or to rely on its rationale in connection with the

petitioner's Sixth Amendment claim, the Commonwealth forfeited the

right to insist that we recognize this potential line of defense.

See id.

Withal, an appellate court possesses the authority to

raise the Teague issue on its own initiative if it believes that

doing so will further the ends of justice. See
Caspari v.
Bohlen,

510 U.S. 383, 389 (1994). We recognize that this power must be

used judiciously, and that many factors enter into the decisional

calculus. Here, the interests of comity and orderly procedure loom

large. Thus, we choose to invoke Teague.

To apply the paradigm of nonretroactivity required by

Teague, we must determine when the petitioner's conviction became

final and "whether a state court considering [the petitioner's]

claim at the time his conviction became final would have felt

compelled by existing precedent to conclude that the rule [he]

seeks was required by the Constitution."
Saffle v.
Parks, 494 U.S.

484, 488 (1990). If the answer to this inquiry is in the negative,

the petitioner may benefit from the new rule only if it falls

within one of two isthmian exceptions. The first exception is

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operative only "if the rule places a class of private conduct

beyond the power of the State to proscribe," and the second only if

the rule is a "`watershed rule[] of criminal procedure' implicating

the fundamental fairness and accuracy of the criminal proceeding."

Lambrix v. Singletary, 117 S. Ct. 1517, 1531 (1997) (citations

omitted).

The petitioner's conviction became final in 1983.

Accordingly, the threshold question is whether a state court, at

that time, would have felt compelled to adopt the
Cronic principle

that a deprivation of counsel during a critical stage amounts to

prejudice per se and thus mandates automatic reversal. We think

not.

We acknowledge that by 1983 it long had been established

that the Sixth Amendment right to assistance of counsel attaches at

all critical stages of the prosecution. See, e.g., Simmons v.

United States
, 390 U.S. 377, 382-83 (1968). Although this general

precept was quite clear, it was by no means settled in 1983 what

remedy a court should employ to redeem a violation of the right to

counsel. On the one hand, the Court had stated that "there are

some constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error," Chapman v.

California, 386 U.S. 18, 23 (1967), and had cited a deprivation-of-

counsel case, Gideon v. Wainwright, 372 U.S. 335 (1963), as

authority for that statement. On the other hand, hot on the heels

of Chapman, the Court remanded a case for harmless error analysis

after finding that the petitioner had been denied counsel at a

9

critical stage of the prosecution. See
Gilbert v.
California, 388

U.S. 263, 272 (1967) (involving the denial of the right to counsel

at a post-indictment pretrial lineup).

We harmonize this dissonance by concluding that the

Chapman Court was referring to a wholesale denial of counsel,

whereas the
Gilbert Court was referring to a short-term, localized

denial of counsel. This interpretation receives a measure of

confirmation from subsequent opinions in which the Court conducted,

or ordered lower courts to conduct, harmless error analysis in

response to an isolated deprivation of counsel at a critical stage

of a criminal trial, yet refused to countenance such analysis when

the right was denied throughout the proceedings in their entirety.

Compare
Moore v.
Illinois, 434 U.S. 220, 232 (1977) (remanding for

harmless error analysis after denial of assistance of counsel at a

preliminary hearing)
with
Holloway v.
Arkansas, 435 U.S. 475, 490-

91 (1978) (rejecting harmless error analysis in a case involving

joint representation of conflicting interests).

Any residual doubt about whether a state court judge

would have felt propelled to presage Cronic's prejudice per se

principle is purged by United
States v. Morrison, 449 U.S. 361

(1981). There the Court, after remarking "society's interest in

the administration of criminal justice," stated that "[c]ases

involving Sixth Amendment deprivations are subject to the general

rule that remedies should be tailored to the injury suffered from

the constitutional violation and should not unnecessarily infringe

on competing interests." Id. at 364. Bearing this preference for

10

proportionality in mind, the Court declared that, depending on the

nature of the transgression, "certain violations of the right to

counsel may be disregarded as harmless error." Id. at 365.

Given the weight and direction of these precedents, we do

not believe that a state court in 1983 would have felt that Sixth

Amendment jurisprudence compelled the adoption of the principle

established a year later by the Supreme Court's opinion in
Cronic.

Consequently, we conclude that Cronic announced a "new rule" as

that term is understood in the Teague context.

Since the Cronic principle does not fall into either of

the Teague exceptions, the petitioner's position erodes. The

principle does not place any conduct beyond the power of the state

to regulate, and it does not implicate the fundamental fairness or

accuracy of a criminal proceeding. Thus, under Teague, the

petitioner is not entitled to rely on the principle announced in

Cronic.

We turn, therefore, to the petitioner's contention that

he was actually prejudiced due to the transitory absence of his

lawyer. Before launching into this examination, we are constrained

to note that for six years no one intimately involved in the

petitioner's trial apparently thought that counsel's absence during

the supplementary instruction had been injurious enough to mention

on direct review or more coeval collateral review. Although this

observation is by no means dispositive, it does provide useful

information as to the contemporaneous perception of prejudice as we

today inquire into possible harmfulness.

11

On collateral review, the standard for harmless error

analysis, which derives from Kotteakos v. United States, 328 U.S.

750 (1946), affords relief only when the error "had substantial and

injurious effect or influence in determining the jury's verdict."

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (quoting, without

attribution,
Kotteakos, 328 U.S. at 776). Applying this criterion,

we find that the effect of this error was neither substantial nor

injurious, and that, therefore, the error was harmless.

To determine whether the Sixth Amendment violation had a

substantial or injurious effect, we focus primarily on the fruit of

that violation: the supplementary instruction as given. The

petitioner argues that the instruction was harmful for three

related reasons: the trial court's supplementary charge was

unconstitutional; the flawed instruction improperly induced the

jury's verdict; and counsel's absence deprived the petitioner of

any opportunity to influence the wording of the instruction.

Finding none of these plaints persuasive, we hold the error to have

been benign.

The petitioner's first complaint need not detain us. We

explain fully in Part IV(B), infra, why the supplementary

instruction conformed with the applicable legal norms, and it would

be pleonastic to rehearse that discussion here. It suffices to say

at this juncture that the petitioner was not prejudiced on this

account.

This conclusion also dooms the petitioner's second

contention. As long as the instruction passes muster from a legal

12

standpoint, the fact that it may have helped to persuade the jury

is unremarkable. See United States v. Nichols, 820 F.2d 508, 512

(1st Cir. 1987). Moreover, we cannot accept the petitioner's

brazen assumption that because the jury returned its verdict a half

hour after hearing the supplementary instruction, the instruction

must have had some effect. The judge offered the instruction sua

sponte. Thus, we cannot infer that the jury was even concerned

with the subject matter of the supplementary instruction. Because

we can only speculate about the correlation, if any, between the

giving of the supplementary instruction and the timing of the

verdict, it cannot fairly be said that the instruction had any

impact, let alone a substantial impact, or that it was injurious.

This leaves us with the last argument. Citing Parent,

the petitioner claims that he was undone by his attorney's absence

because, whether or not the supplementary instruction was correct,

he missed the opportunity to persuade the judge that some different

language might have been more appropriate.
See
Parent, 954 F.2d at

26 (finding denial of counsel to be reversible error on direct

appeal because "defense counsel was powerless to prime the pump of

This case is unlike Rogers v. United States, where the jury
returned a verdict five minutes after the court replied
affirmatively (without consulting counsel) to a question from the
jury about whether it would accept a particular verdict. See 422
U.S. at 36-37. When a jury indicates that it thirsts for knowledge
on a particular point and the court subsequently slakes that
thirst, the inference can reasonably be drawn that the court's
input had a causal effect on a verdict returned within minutes of
the court's action. The situation is vastly different where, as
here, the jury never indicated an interest in the subject matter of
the sua sponte supplementary instruction.

13

persuasion"). To the extent that this argument is of

constitutional dimension, it strives to redeem the intangible

might-have-been; after all, a harm that cannot be quantified,

cannot be identified. Unfortunately for the petitioner, this

Parent harm is the same harm addressed by the prejudice per se

principle, and as such its application is also barred by Teague.

In this case, all roads lead to Rome. Because of the

nonretroactivity paradigm, the brief deprivation of counsel which

occurred at trial some seventeen years ago, while lamentable, does

not constitute a lever that can be used on collateral review to

overturn the petitioner's conviction.

B. Supplementary Jury Instruction.

Due process requires that the government prove every

element of a criminal offense beyond a reasonable doubt. See

Francis v. Franklin, 471 U.S. 307, 309 (1985); Sandstrom v.

Montana, 442 U.S. 510, 522-24 (1979). In Anderson v. Butler, 23

F.3d 593 (1st Cir. 1994), we described a three-pronged framework to

be used in analyzing burden-shifting claims:

[A] reviewing court must first determine
whether a reasonable juror would have
interpreted the challenged portion of the
instruction as creating a mandatory
presumption. If so, the court must then
consider whether other parts of the charge
clarified the ill-advised language with the
result that a reasonable factfinder would not
have understood the instruction to create an
unconstitutional presumption. Finally, if the
court determines that the charge as a whole
left the jurors with an impermissible
impression, the court must proceed to evaluate
the harmlessness vel non of the error.

Id. at 595 (citing
Hill v.
Maloney, 927 F.2d 646 (1st Cir. 1990)).

14

We will assume here that Lenny Curtis' testimony that

Robinson initiated the fracas by swinging a bottle at the

petitioner provided a basis for a claim of self-defense. Under

Massachusetts law,

once the issue of self-defense has been fairly
raised, the jury should [be] instructed on the
legal consequences of using manifestly
disproportionate violence in the supposed
exercise of the right of self-defense. If the
jury [conclude] that [the defendant] had the
right to use force to defend himself but that
the force used was excessive . . . they would
[be] warranted in finding [the defendant]
guilty only of manslaughter.

Commonwealth v. Johnson, 589 N.E.2d 311, 313 (Mass. 1992)

(citations and internal quotation marks omitted) (alterations in

original).

The petitioner posits that the court's supplemental jury

instruction, quoted supra note 1, unconstitutionally shifted the

burden to him to prove self-defense by telling the jurors in effect

that they must believe Lenny Curtis' testimony in order to return

a manslaughter verdict. We disagree with this assessment.

We start with the first prong of the three-pronged test.

Although this supplementary instruction is not artfully phrased, we

believe that no reasonable juror would interpret it as creating a

mandatory presumption. To the contrary, we agree with the district

court that a reasonable juror probably would have understood this

instruction as clarifying the circumstances which would, if proved

beyond a reasonable doubt by the prosecution, warrant a

manslaughter conviction.

The second prong of the test also favors the

15

Commonwealth. On whole-record review, it seems highly likely that

any prospect of confusion vis-a-vis the supplementary instruction

vanishes when the instruction is considered in conjunction with the

main charge. During the main charge the superior court judge

explicated Massachusetts law clearly, accurately, and succinctly,

telling the jury, inter alia, that "the defendant does not have to

convince you that he acted in self-defense. The Commonwealth has

to convince you that he did not, or that he used excessive force."

In addition, the judge cautioned the jury that:

[I]f I refer to any of the evidence, it will
be by way of example only in order to make the
law a little easier for you to understand and
to apply, and I in no way intend or infer that
you are to give any more weight, place any
more importance, and more credibility on a
particular piece of evidence that I may
mention in the course of the charge than on
all the other evidence in the case.

In light of these instructions, we believe that a reasonable juror

would have understood that, through the supplementary instruction,

the trial court sought merely to facilitate the jury's

understanding of the applicable law.

The petitioner also objects to another portion of the

supplementary charge: a portion which linked a manslaughter

verdict for him to one for his codefendant, Giglio (another East

Boston youth convicted of second-degree murder). In particular, he

complains about the statement: "If there is any manslaughter

Since we do not believe that there is any appreciable risk
that the supplementary charge confused the jurors or left them with
an incorrect impression, the third prong of the
Anderson test need
not concern us.

16

verdict in the Giglio case there has to be two of them."

The vice in this statement, the petitioner says, is that

it led the jury to believe that, in order to be found guilty of the

lesser included offense, Curtis had the burden to prove that Giglio

too was guilty only of manslaughter.

The petitioner's contention tortures the trial court's

statement and distorts its meaning. This portion of the

supplementary charge states that in order to find Giglio guilty of

manslaughter, the jury must first find Curtis guilty of

manslaughter. See
Curtis II
, 632 N.E.2d at 829. It neither states

nor implies the converse: that in order to find Curtis guilty of

manslaughter, the jury must first find Giglio guilty of

manslaughter. The latter statement would have been incorrect, but

the former statement merely fleshed out a specific theory of

manslaughter in coming to the aid of another, touched upon in the

main charge.

This portion of the supplementary charge addressed the use of
excessive force in self-defense by the petitioner:

I told you that if you find that happened, and
that Giglio was helping him defend himself and
used excessive force, but that it was the bat,
not a bottle that caused the death, there
could be a manslaughter verdict in the case of
Giglio only if there is a manslaughter verdict
in the case against Curtis, that is, the idea
of the joint enterprise being that Giglio
would have been aiding Curtis' self-defense
effort, and then if Curtis used excessive
force and was found guilty of manslaughter,
then Giglio could also be found guilty of
manslaughter. But if there is any
manslaughter verdict in the Giglio case there
has to be two of them.

17

To say more would be supererogatory. Because we discern

no constitutional error in the trial court's supplementary jury

instruction, we reject the petitioner's second claim.

C. Refusal to Grant Immunity.

At trial, the petitioner attempted to call as a defense

witness Joseph DeDominicis, one of the youths present during the

brawl. DeDominicis refused to testify on Fifth Amendment grounds.

The petitioner asked the court to immunize the witness, alleging

that DeDominicis would then testify that he saw a person named

Muzzone standing over the victim with a bat in his hand. The

prosecution opposed the grant of immunity, asserting that it would

interfere with an ongoing grand jury investigation. The trial

court declined the request and the SJC affirmed.
See
Curtis I
, 448

N.E.2d at 348-50.

The petitioner's claim that he was entitled to

DeDominicis' immunized testimony encompasses both the "effective

defense" theory which draws its essence from the Sixth Amendment

right to compulsory process and the "prosecutorial misconduct"

theory which draws its essence from the Fourteenth Amendment

right to due process. See
United States
v.
Angiulo, 897 F.2d 1169,

1190-93 (1st Cir. 1990) (limning both theories). On these facts,

neither approach takes wing.

The effective defense theory originated in the Third

We note that this testimony, even if credited, would not have
been wholly exculpatory; some witnesses testified that they saw two
batsmen.

18

Circuit. See Virgin Islands v. Smith, 615 F.2d 964, 974 (3d Cir.

1980). Under its mantra, a trial court has the power to grant

immunity based on a defendant's need to present exculpatory

evidence. See
id. Thus, a trial court should grant immunity "when

it is found that a potential defense witness can offer testimony

which is clearly exculpatory and essential to the defense case and

when the government has no strong interest in withholding use

immunity." Id.

Notwithstanding the Third Circuit's pronouncement, the

effective defense theory has been roundly rejected by other courts,

most of which have agreed that the power to grant immunity properly

belongs to the Executive Branch. See, e.g., United
States v.

Quintanilla, 2 F.3d 1469, 1483 (7th Cir. 1993); In
re
Grand
Jury

Proceedings
(Williams), 995 F.2d 1013, 1017 (11th Cir. 1993);

United States
v.
Tindle, 808 F.2d 319, 325 (4th Cir. 1986);
United

States v. Pennel, 737 F.2d 521, 526-29 (6th Cir. 1984); United

States v. Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980). We,

ourselves, in a case decided only recently, explicitly rejected the

effective defense theory. See United
States v. Mackey, F.3d

, (1st Cir. 1997) [No. 94-2264, slip op. at 8] (stating

that, "in general, courts have no power to compel immunity in the

face of a good faith refusal by the prosecutor [to grant it]").

To be sure, we added in Mackey that an occasional exception
perhaps "might exist upon very extreme facts."
Mackey, F.3d at
[slip op. at 8]. The case at hand certainly is no stronger
than Mackey from the defense standpoint. Consequently, it comes
within the general rule, not within the hypothetical exception to
that rule.

19

The prosecutorial misconduct theory fares no better here.

That theory is grounded in the notion that "the due process clause

[constrains] the prosecutor to a certain extent in her decision to

grant or not to grant immunity." Angiulo, 897 F.2d at 1191. But

this constraint comes into play only when a prosecutor

"intentionally attempt[s] to distort the fact-finding process."

Id. A defendant can demonstrate such distortion in two ways: by

showing an attempt to harass or intimidate potential witnesses, or

by showing that the prosecutor deliberately withheld immunity for

the purpose of hiding exculpatory evidence from the jury. See
id.

at 1192.

Neither of these circumstances obtain here. The

petitioner does not argue, and there is no evidence to suggest,

that the prosecutor sought to silence DeDominicis through

harassment or intimidation. And although the petitioner does argue

that the prosecution intended to withhold exculpatory evidence from

the jury, this argument comprises sheer speculation. On this

record, we cannot peer behind the prosecution's plausible assertion

of a legitimate interest in keeping the way clear for a possible

future prosecution of DeDominicis. See Mackey, F.3d at

[slip op. at 7-8]; Turkish, 623 F.2d at 776-77. Hence, the

petitioner's professed reliance on the prosecutorial misconduct

theory is unavailing.

V. CONCLUSION

We need go no further. We have inspected the

petitioner's asseverational array and found it wanting. There is

20

no sound basis for granting a writ of habeas corpus.

Affirmed.

21