Defendant’s Motion for Immunity for Defense Witness — United States v. Dean Tran, Docket No. 23-cr-10299 (Dkt. 71, D. Mass.)

Summary

Dean Tran, the defendant in Docket No. 23-cr-10299 in the U.S. District Court for the District of Massachusetts, asks the court to grant limited immunity to Mrs. Martin, described as Tran's sister and the co-defendant in another case, so that Mrs. Martin may testify for the defense. The motion, filed August 9, 2024 as Document 71 by attorney Michael Walsh, says the government obtained a perjury indictment of Mrs. Martin, over grand jury testimony as a defense witness for Tran, mere weeks before trial. It argues that the timing leaves Tran without a critical witness and cites cases holding that government interference with a defense witness can violate due process. It asks the court to follow US v. Roach, 502 F.3d 425 (6th Cir. 2007), which named immunity for the witness as one possible remedy.

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Case 1:23-cr-10299-FDS Document 71 Filed 08/09/24 Page 1 of 4

United States of America
District of Massachusetts
Suffolk, ss.

United States )
)
v. ) Docket No. 23-cr-10299
)
Dean Tran )
____________________________________)

Defendant’s Motion
For Immunity for Defense Witness
Now comes the Defendant, Dean Tran, who moves this Honorable Court to grant Mrs.

Martin Immunity (limited).

Argument

Normally it is only Government Witnesses which received immunity. Barring “unique

circumstances” where there is a likelihood of a “distort[ion] of the fact-finding process” defense

witnesses are not granted immunity in Federal Courts. Commonwealth v. Brewer, 472 Mass. 307,

312 (2015) citing United States v. Mackey, 117 F.3d 24, 27 (1st Cir. 1997).

Mrs. Martin, the co-defendant in the other case and the sister of Mr. Tran, has been indicted

for perjury for her testimony to the grand jury as a Defense Witness for Mr. Tran. The Defendant

proposed that, without disturbing Mrs. Martin’s existing criminal liability, that the Court immunize

Mrs. Martin so that she may testify for the Defense. Provided that her position is not worsened

for having done so, there is no conflict.

The Government has decided that it has a monopoly on truth. That Mrs. Martin, who could

not be bent to change her testimony despite earlier offers of immunity to testify for the

Government, could now be unavailable to Mr. Tran is problematic. Where the Government has

obtain this indictment mere weeks before trial, it looks like (though it is probably not) an attempt

to make a key witness unavailable and deprive Mr. Tran of his defense. Irrespective of the

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Case 1:23-cr-10299-FDS Document 71 Filed 08/09/24 Page 2 of 4

Government’s aims or intentions, the timing is deplorable. Mr. Tran is likely to now be without a

critical witness on his behalf. Someone who, already staring down the barrel of a perjury

indictment, should be able to testify freely to a petit jury, rather than a grand one, and have judge

her veracity and demeanor. That the prime defense witness is not likely unavailable due to an

extraordinarily poorly timed perjury indictment would deprive Mr. Tran of his defense.

No grant of immunity can or should interfere with the existing indictment, but witnesses

for the Defense should be able to testify freely and without fear. “While a criminal trial is not a

game in which the participants are expected to enter the ring with a near match in skills, neither is

it a sacrifice of unarmed prisoners to gladiators.” US. v. Chronic, 466 U.S. 648, 657 (1984).

There can be no doubt that it is foul ball for a prosecutor to make a key defense witness

unavailable to the Defendant. United States v. Linder, docket No. 12 CR 22-1 (N.D. Ill. 8/9/2012)

(“Threats or intimidation made by the government that dissuade a potential defense witness from

testifying is a violation of the defendant's right to due process of law and his Sixth Amendment

right to compulsory process for obtaining defense witnesses.”); United States v. Pinto, 850 F.2d

927, 932 (2nd Cir. 1988) (“Under certain circumstances, intimidation or threats that dissuade a

potential defense witness from testifying may infringe a defendant's due process rights.”); id.,

(“That interference may involve threats of prosecution…or other intimidating conduct.”). United

States v. Macloskey, 682 F.2d 468, 479 (4th Cir. 1982) (reversing conviction where prosecutor

made 11th hour call to critical defense witness’s attorney to make “suggestion” that she not testify;

not subject to harmless error analysis); United States v. Smith, 478 F.2d 976, 979 (D.C. Cir. 1973)

(prosecutor “advising” primary defense witness of 5th amendment rights, even if from impeccable

motives, critically implied criminal prosecution for testifying for defendant, conviction reversed)

citing People v. Pena, 383 Mich. 402, 406 (1970) (“[a] prosecutor may impeach a witness in court

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Case 1:23-cr-10299-FDS Document 71 Filed 08/09/24 Page 3 of 4

bur he may not intimidate him—in or out of court.”); Bray v. Peyton, 429 F.2d 500 (4th Cir. 1970)

(prosecutor’s imprisoning of defense witness on unrelated old but facially valid charges violated

the constitution).

“It is well-settled that substantial government interference with a defense witness's free and

unhampered choice to testify violates the defendant's due process rights.” Newell v. Hanks, 283

F.3d 827, 837 (7th Cir. 2002). Mr. Tran’s rights are violated by the intimidation of his exculpatory

witness. United States v. Vavages, 151 F.3d 1185, 1191 (9th Cir.1998) (prosecutor threatened to

withdraw witness's plea agreement in her own unrelated criminal prosecution if she testified in

support of defendant's alibi); United States v. Morrison, 535 F.2d 223, 225-28 (3d Cir.1976)

(prosecutor repeatedly warned and intimidated prospective defense witness about possibility of

perjury charges if she testified falsely); United States v. Little, 753 F.2d 1420, 1438-1439 (9th Cir.

1984) (IRS Agents intimidating defense witnesses depriving defendant of his right to present a

defense); Webb v. Texas, 409 U.S. 96, 96 (1972) (court violated defendant’s rights by driving

defense witness off the stand with strident warnings); United States v. Goodwin, 625 F.2d 693,

702-703 (1980) (“Threats against witnesses are intolerable. Substantial government interference

with a defense witness' free and unhampered choice to testify violates due process rights of the

defendant…If such a due process violation occurs, the court must reverse without regard to

prejudice to the defendants..”).

At least one federal court has found that unique circumstances, necessary to grant a Defense

Witness immunity, exist when the defense witness is scared off. US v. Roach, 502 F.3d 425, 438

(6th Cir. 2007) (“One possible remedy for such discouragement would be for the court to grant

immunity from prosecution to the witness for the alleged crime uncovered by the prosecutorial

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Case 1:23-cr-10299-FDS Document 71 Filed 08/09/24 Page 4 of 4

actions.”). The Court should follow the example of the Roach and grant some form of limited

immunity to Mrs. Martin that she might testify in Mr. Tran’s defense.

Conclusion

Wherefore the Defendant’s Motion should be Granted.

Respectfully Submitted,

Dean Tran
By His Attorney
/S/ Michael Walsh
Michael Walsh
BBO 681001
Walsh & Walsh LLP
PO Box 9
Lynnfield, MA 01940
617-257-5496
Walsh.lynnfield@gmail.com

Certificate of Service
I, Michael Walsh, hereby certify that a copy of this motion has been served on all participating
ECF/CM filers on this 9th day of August 2024.
/S/ Michael Walsh

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