Competing Fifth And Sixth Amendment Rights

Two defense witnesses refusing to testify under their Fifth Amendment rights did not deprive the defendant of his constitutional right to present a defense in United States v. Hunt, 521 F.3d 636 (6th Cir. 2008).

In a criminal health fraud case, the defendant, a physician, asked to call two witnesses to testify favorably on his behalf. Both witnesses declined to testify after claiming their Fifth Amendment Privilege Against Self-Incrimination. Was the defendant’s right to present a defense violated under the Sixth Amendment (compulsory process and fair trial right) or Due Process Clause? The Sixth Circuit recently confronted this issue and found on the facts of the case, there was no constitutional violation.

In Hunt, defendant Hunt was charged with health care fraud for submitting “consultation” claims concerning carotid artery ultrasound tests which required a face-to-face patient examination. Dr. Hunt did not examine the patients but falsely told agents “that he was not paid $10 per signed order, and that all of the tests had been ordered before they were performed” and “that a nurse practitioner working under his license was examining the patients, although he admitted that he had never met that person, did not know that person’s name, and had not confirmed that person’s credentials.” The defendant claimed he could not adequately present his defense without two witnesses. The first witness, a doctor who pled guilty for making false statements in the case, would testify that he did not “feel” Dr. Hunt “did anything wrong.” The second witness, who entered into a pretrial diversion agreement and avoided criminal charges, apparently would tell the jury that “Dr. Hunt does not know that RN Haines [sic] is represented as a PA [physician assistant].” After Dr. Hunt was convicted, he contended that the trial court violated his constitutional rights by disallowing the testimony of the two witnesses.

The Sixth Circuit agreed that there was no constitutional violation by the government. Specifically, the prosecutor did not take any “actions aimed at discouraging defense witnesses from testifying.” Hunt, 521 F.3d at 641 (quoting United States v. Emuegbunam, 268 F.3d 377, 400 (6th Cir. 2001) (government refusal to grant witness immunity did not interfere with defendant’s right to present a defense) (citing Webb v. Texas, 409 U.S. 95, 98 (1972) (per curiam) (a trial judge’s “lengthy and intimidating warning” and “threatening remarks” violated the Due Process Clause by causing the sole defense witness not to testify); United States v. Thomas, 488 F.2d 334, 336 (6th Cir. 1973) (reversing conviction after agent approached witness and “told him that he would be prosecuted for misprision of a felony if he testified in the case”)).

The circuit disagreed with the defendant’s claim “that the Government deprived him of his rights by intentionally placing Noble and Dr. Bartee in positions where they would be likely to assert their Fifth Amendment rights not to testify. Specifically, Hunt points out that the Government continued Noble’s sentencing hearing until after Hunt’s trial and that the Government had failed to reach a diversion agreement with Dr. Bartee prior to Hunt’s trial.” Hunt, 521 F.3d at 642. A closer examination of the some key facts, which the circuit noted: “First, the Government said at the pretrial hearing that it had no objection to sentencing Noble before the trial. Noble’s lawyer, however, indicated to the court that his client would refuse to testify regardless of whether or not he had been sentenced because there was a chance that he might be prosecuted for related conduct in other districts. Second, the Government and Dr. Bartee failed to reach an agreement on pretrial diversion prior to Hunt’s trial not because of any fault on the part of the Government, but because Dr. Bartee himself was delaying the process so that he could determine how best to structure the agreement in order to avoid disciplinary issues with the Tennessee Board of Medical Examiners.” Hunt, 521 F.3d at 642 (footnote omitted).

The Hunt case illustrates that the defense must show more to establish a constitutional violation by the government.

Federal Rules of Evidence