## Facts

- Howard Taylor was tried in federal court for armed bank robbery; David Neff was an alleged participant.
- Before trial, prosecutors granted Neff statutory use immunity to testify before a grand jury; Neff denied involvement in the robbery.
- Taylor planned to call Neff at trial to give similar exculpatory testimony.
- On the second day of Taylor’s trial, the government notified the court it was revoking Neff’s use immunity after learning Neff had allegedly lied to the grand jury and stating it intended to indict him.
- Neff, through counsel, stated he would invoke the Fifth Amendment if called to testify.
- Taylor moved to compel the government to grant or reinstate use immunity for Neff, arguing the revocation was intended to prevent favorable defense testimony.
- The district court found no prosecutorial bad faith, declined to compel immunity, deemed Neff unavailable under Federal Rule of Evidence 804(a)(1), and permitted the defense to introduce excerpts of Neff’s grand jury testimony denying involvement.
- Taylor was convicted on two counts of bank robbery under 18 U.S.C. §§ 2113(a) and (d).

## Issues

1. Whether revocation of a defense witness’s use immunity during trial violated the defendant’s Fifth Amendment due process rights because it was allegedly done to suppress exculpatory testimony.
2. Whether the Sixth Amendment compulsory-process right required the district court to compel the government to grant or reinstate use immunity to a defense witness who would invoke the Fifth Amendment.
3. Whether the district court properly treated the witness as unavailable under Federal Rule of Evidence 804(a)(1) and allowed use of portions of the witness’s grand jury testimony.

## Decision

- The Seventh Circuit affirmed the conviction.
- The court held the record did not show prosecutorial bad faith or an intent to revoke immunity solely to deprive Taylor of favorable testimony; therefore, no due process violation occurred.
- The court held the Sixth Amendment did not require the judiciary to order the government to immunize a defense witness who validly invoked the Fifth Amendment.
- The court upheld the district court’s finding that the witness was unavailable under Rule 804(a)(1) and its decision to allow the defense to present excerpts of the witness’s grand jury testimony.

## Legal Principles

- Decisions to grant or revoke statutory use immunity are primarily prosecutorial; a due process violation requires a showing of bad faith or manipulation aimed at suppressing exculpatory evidence.
- The Sixth Amendment compulsory-process right generally ensures access to witnesses but does not create a constitutional entitlement to court-ordered immunity for defense witnesses.
- A witness who validly invokes the Fifth Amendment privilege is “unavailable” under Federal Rule of Evidence 804(a)(1).
- When a witness is unavailable due to a valid privilege, prior testimony may be admitted under applicable evidentiary rules, subject to their requirements, and may reduce prejudice from the witness’s absence.

## Conclusion

The Seventh Circuit affirmed Taylor’s bank-robbery conviction, concluding that revocation of Neff’s use immunity did not violate due process absent proof of prosecutorial bad faith, that compulsory process did not authorize compelled defense-witness immunity, and that Neff’s Fifth Amendment invocation made him unavailable so the district court could admit excerpts of his grand jury testimony.


United States v. Taylor, 728 F.2d 930 (7th Cir. 1984)