Full opinion text
KRAVITCH, Circuit Judge. Appellants Michael Thevis and Global Industries, Inc. [Global] were convicted by a jury of violating the Racketeer Influenced and Corrupt Organizations Act [RICO], 18 U.S.C. § 1962. Thevis and appellants Anna Jeanette Evans and Alton Bart Hood were convicted of conspiracy to violate the civil rights of Roger Dean Underhill under 18 U.S.C. § 241 by preventing him from testifying at trial. All appellants claim that the trial court erred in several evidentiary rulings, chiefly objecting to the trial court’s admission of Underhill’s grand jury testimony as a hearsay exception under Fed.R. Evid. 804(b)(5) and the trial court’s refusal to grant judicial use immunity to defense witness George Thevis. Appellants also claim that the trial court misconstrued RICO and incorrectly charged the jury; and appellants Thevis, Evans and Hood argue that the conspiracy charged under 18 U.S.C. § 241 is not a crime. Finally, appellants Evans and Hood claim their trials should have been severed, and the evidence was insufficient to convict them of the conspiracy. For the reasons stated below, we affirm the convictions of all defendants. I. Background The original indictment in this case, filed on June 10, 1978, named Michael G. Thevis, Global Industries, Inc., Fidelity Equipment Leasing Corporation and eight other individuals as defendants. The central allegation was that Thevis and the corporations had conducted an interstate pornography business through a pattern of racketeering activity. Roger Dean Underhill, a principal witness before the grand jury, was named as an unindicted co-conspirator. On October 25, 1979, the grand jury returned a superseding indictment which added a charge that Thevis, Jeanette Evans and Bart Hood conspired to murder Underhill in order to prevent his testimony. Seven of the original defendants were not reindicted and their cases were dismissed. Only Counts One, Two and Ten of the indictment are relevant to this appeal. Count One alleged a substantive RICO violation and Count Two alleged conspiracy to violate RICO. Count Ten, the charge added by the superseding indictment, alleged a conspiracy among Thevis, Evans, and Hood to deprive Underhill of his civil rights in violation of 18 U.S.C. § 241. The trial lasted approximately eight weeks and produced a voluminous record. Our recitation of the facts is therefore limited to only those absolutely essential to this appeal. In the 1960’s, Michael Thevis organized and controlled a group of corporations whose principal purpose was the profitable distribution of adult books and films. Un-derhill met Thevis in the fall of 1967 and became a Thevis employee. Together, Un-derhill and Thevis developed a profitable peep-show machine that was manufactured and distributed by two Thevis-controlled corporations, Automatic Enterprises and Cinematics. The government offered evidence as to five separate acts of racketeering in the conduct of this peep-show enterprise. These acts were the murders of two competitors in the adult entertainment business, two separate acts of arson against competitors, and the murders of Underhill and a bystander, Isaac Galanti. The Hanna Murder Kenneth “Jap” Hanna owned several adult book stores in Atlanta. On November 13, 1970, Thevis called Underhill at 8:30 a. m. and told him to come to work immediately. When Underhill arrived, Thevis stated that he had shot Ken Hanna and left the body in the trunk of Hanna’s car in Thevis’ warehouse. In his haste to dispose of the body, Thevis had left the car keys in Hanna’s pocket, locked in the trunk. Thevis asked Underhill, a trained locksmith, to open the trunk and retrieve the keys. Thevis and Underhill then drove the car containing Hanna’s body to the Atlanta airport parking lot and left it. Afterwards, Underhill took various steps to dispose of any incriminating evidence, including burning the moving pad on which Hanna’s body had lain and replacing several bloody floor boards in the warehouse. In addition, he bought a welding torch outfit and melted the gun, the trunk lock, Hanna’s car keys, some Mexican coins which had been in Hanna’s possession, and a screwdriver. That night Underhill dumped the melted objects and the bloody boards in the Chattahoochee River. During an interview with the FBI in 1977 Underhill showed agents the spot on the Chattahoochee where he disposed of the melted objects. A government diver found a pan containing melted objects. Analysis of the melted debris revealed two General Motors car keys, some Mexican coins, and a screwdriver on which appeared the letters “R”, “D”, and the beginning of either a capital “U”, “B”, or “W”. The Mayes Murder Jimmy Mayes was employed by Thevis and Underhill to build peep shows. Under-hill paid Mayes by giving him a percentage of his stock in the peep-show corporations. When Thevis took away half of Underhill’s and Mayes’ shares, Mayes became enraged and threatened to kill Thevis. In December of 1972, Thevis ordered Underhill to kill Mayes and gave him a gun for that purpose. Underhill had a chance to shoot Mayes one night, but could not pull the trigger. At Thevis’ instruction, Underhill then hired Bill Mahar to do the job. Mahar told Un-derhill that he was going to kill Mayes by putting a pipe bomb in his truck. The bomb went off just before midnight, and literally blew Mayes to pieces. Thevis was at this time in the hospital due to injuries sustained in a motorcycle accident. On the day of the murder, Un-derhill advised Thevis that the explosion would take place that night. After the explosion, Underhill went to the scene and found a piece of bone and a gold pin. He showed this evidence to Thevis in the hospital; Thevis said that he planned to make the bone into a paperweight. The day after the murder, Thevis instructed his nephew, Mann Chandler, to give Underhill money from Thevis’ safe to pay Mahar. The Louisville Arson Nat Bailer, a competitor of Cinematics in the peep-show industry, owned a warehouse in Louisville, Kentucky. Thevis ordered Underhill to go to Louisville and burn the warehouse. On the weekend of April 27, 1976, Underhill drove to Louisville and, with two Thevis employees, Clifford Wilson and Robert Mitchum, set fire to the warehouse. Returning from Louisville, Under-hill called Thevis and reported their success. The former Mrs. Underhill corroborated Underhill’s out of town- trip on April 27, 1970. She also noticed that he was dirty and smokey when he returned and remembered that he wanted to get rid of the clothes he was wearing. The Fayetteville Arson In 1972, Thevis operated an adult bookstore in Fayetteville, North Carolina. Herman Womack owned a competing bookstore just one block away. Thevis told Underhill to burn down the competitor. On September 19, 1972, Underhill and Mahar drove to Fayetteville and accomplished the arson by drilling a hole in the roof of the building, pouring gasoline down into the interior, and igniting it with a water pistol used as a flame thrower. Afterwards Thevis gave Underhill $1,500 with which he paid Mahar for the successful arson. The Underhill-Galanti Murders Under duress from Thevis, Underhill sold his interest in Cinematics to Thevis in 1971, but remained on Thevis’ payroll (at about $50 per week) until Underhill went to prison in 1974. In 1975 Underhill filed a civil RICO suit against Thevis. While Underhill was in prison, the government sought unsuccessfully to get Underhill’s cooperation in its investigation of Thevis. Underhill was paroled in January 1977 without having reached any specific agreement with the government. Following his parole, Un-derhill was granted immunity and began to cooperate. He gave lengthy recorded statements to the FBI in January 1977 and testified before a federal grand jury in May 1977. In June 1977, Underhill visited Thev-is in the federal prison in Springfield, Missouri. Underhill wore a shoe mike provided by the FBI and recorded his conversation with Thevis. During this conversation Un-derhill told Thevis of his interviews with the FBI and that he had taken and passed a polygraph examination. On April 28, 1978, Thevis escaped from the New Albany, Indiana, jail where he was confined during the trial of a civil case arising from the Louisville arson. Soon after his escape, he contacted defendants Evans and Hood. Jeanette Evans, a real estate agent in Marietta, Georgia, was a close personal friend of Thevis. Bart Hood, her cousin, was a detective in the Summerville, South Carolina, police department. Evans and Hood assisted Thevis in establishing several aliases, in obtaining an apartment, a VISA credit card, and safe-deposit boxes. Hood and Evans requested Dennis Bradley, their mutual cousin, to make silencers for a .38 caliber pistol. Evans also inquired about a silencer for a 30.06 rifle. Bradley made two silencers; he mailed one to Hood in Summerville on October 20, 1978, and Hood picked up the second silencer late in the afternoon on October 25, 1978. Hood normally kept a shotgun and a 30.06 rifle in the trunk of his car. On November 5, 1978, he reported the theft of the two guns to the Summerville police but requested that the theft receive no publicity. Records indicated that Hood was on sick leave from October 9-13, October 16-20 and October 23-25. Hood later told an investigator for credit card companies that he had been in Atlanta with Clarence Feagin (a Thevis alias) on October 25, the date of Underhill’s death. On October 24, 1978, Hood placed a call from the Journey’s End motel in Atlanta to the South Carolina Highway Patrol in order to run a license check on the car being driven by Underhill. Underhill owned an undeveloped tract of land on Riverside Drive in Atlanta. It had an unpaved driveway, blocked by a gate, which carried visitors quickly out of sight of the main road. At the time of Underhill’s death, this property was for sale. On October 24, Evans went to the office of real estate agent Louis Carter, and asked to see the Fulton County tax maps. Evans first looked for a single-family residence on Riverside Drive, but was unable to locate it because she had the wrong address. Next, Evans asked about the Underhill property, claiming she had a prospective purchaser. Carter considered this request odd, because about a year and a half earlier Carter had contacted Evans about this same property. Evans at that time warned Carter not to have anything to do with the Underhill property, explaining that Underhill was dangerous and “involved with Michael Thevis’ activities.” On October 21, 1978, Irene Williams, Un-derhill’s fiancee, joined him at an Atlanta motel. Underhill intended to enter the Federal Witness Protection Program shortly, but wanted to sell the Riverside Drive property first. Ms. Williams and Underhill spent two days cleaning up the property. On Wednesday, October 25, Underhill left Williams at approximately 11:30 a. m. to keep an appointment to show the property to Isaac N. Galanti. At about noon, Williams and her two children drove to meet Underhill. When she arrived, she noticed the gate was down and then found the bodies of Underhill and Galanti. She ran across the street to the residence of Henry and Pearl Stumminger. On Tuesday night, October 24, Henry Stumminger had observed a car or truck bash into the gate on the driveway of the Underhill property. At 11:35 a. m. on October 25, Mrs. Stumminger heard seven or eight “pops,” looked out the window, and saw a black car driving slowly up Riverside Drive. About twenty-five minutes later, a “hysterical” Irene Williams rang her doorbell. Police and FBI agents were summoned to the scene. They found several shotgun shell casings and spent 30.06 shells. Under-hill had died from one or more shotgun blasts. Galanti had been killed by gunshot wounds to the head and neck. One wound on his neck was attributable to a high-powered rifle, such as a 30.06. At trial the government presented identification testimony from two eyewitnesses: Rodney Letchworth, who placed Thevis at the scene of the Underhill-Galanti shooting, and Milton McMurray, who placed Thevis, Evans, and Hood together approximately forty-five minutes after the murders. At approximately 11:30 a. m. on October 25, Letchworth, a retired marine pilot, had driven by the Underhill property and noticed a man standing near the gate. He later identified this individual as Thevis. McMurray, a commercial airline pilot, was a neighbor of Evans. At 12:10 p. m. on October 25, and again about 15-20 minutes later, McMurray observed Evans and two men drive past his yard. At trial, he identified the man in the front seat as Thevis, and the man in the back as Hood. Thevis and Evans were arrested on November 9, 1978 in Bloomfield, Connecticut. A search of their persons and their car yielded firearms, $411,000 in cash, and over one million dollars worth of jewelry. A search of a rental locker in South Windsor, Connecticut disclosed a transcript of interviews the FBI had conducted with Under-hill. Fingerprint analysis revealed over 100 of Thevis’ fingerprints and palm prints throughout the transcript and one of Evans’ fingerprints on an inside page of the transcript. Immediately after his arrest, Thevis was confined in a federal prison in Danbury, Connecticut. His cellmate, Bernard McCarthy, testified that Thevis had confessed to the murder of Underhill. According to McCarthy, Thevis told him that he had lured Underhill to his property by breaking the fence down, where he “assassinated” Underhill and his “bodyguard” with a shotgun. Thevis explained that he killed Un-derhill because Underhill intended to testify against him, and that Underhill was to enter the marshal’s protection service the following Monday. Thevis boasted to McCarthy that while a fugitive he had travelled incognito in the Atlanta area, once receiving a speeding ticket there. Police later determined, based solely on McCarthy’s information, that Thevis had received such a ticket using the name C. M. Feagin. McCarthy was also able to describe the contents of Thevis’ car at the time Thevis was arrested. II. Challenges to the Indictment A. The Interpretation of RICO Appellants make three separate arguments that the trial court erred in construing RICO. First, they claim that the trial court should have struck the Underhill-Ga-lanti murders from Counts One and Two of the indictment (the RICO charges) because the evidence failed to show that Thevis was “associated with” the enterprise at the time of the murders, and because the murders were not acts through which Thevis conducted the affairs of the enterprise. This contention is without merit. As this court noted in United States v. Elliott, 571 F.2d 880, 898 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), proof of association with a RICO enterprise may depend wholly on circumstantial evidence. The record in this case contains such evidence. Although Thevis had purportedly sold his interest in the pornography business to his secretary, Laverne Bowden, for $16 million dollars, the note securing the sale was always in default. Thevis, therefore, could foreclose at any time and regain his interest in the business. Rodney Glen Smith, a cellmate of Thevis in 1977, testified that despite the “sale,” Thevis stated he still “controlled” his pornography empire; given the terms of the “sale” and the fact Thevis had contacted Ms. Bowden after his escape from jail in 1978, one could infer that Thevis’ interest in the success of the pornography enterprise continued until the Underhill murder. The murder itself, moreover, neatly advanced Thevis’ interests in the enterprise. The original indictment in the case sought forfeiture of all the assets of Global and Fidelity under RICO forfeiture provisions. The Underhill murder was designed to prevent the government’s key witness from testifying at trial, thus imperiling the government’s entire RICO case and preventing both RICO criminal convictions and forfeiture. The murder, therefore, protected the integrity of the enterprise. Keeping the enterprise together was inextricably tied to furthering its business; hence the Underhill murder was a proper predicate act under § 1962. See United States v. Welch, 656 F.2d 1039, 1060-62 (5th Cir. 1981) (predicate acts only required to have sufficient nexus with enterprise to be properly charged under RICO). Appellants’ second argument is that the term “enterprise” as used in RICO does not include the specific association charged in this case. The RICO definitions section, 18 U.S.C. § 1961, states that an enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or other group of individuals associated in fact although not a legal entity.... ” Appellants contend that because the indictment described the enterprise as “a group of individuals associated in fact with various corporations,” the enterprise alleged did not fall within the literal bounds of the statutory classifications. We reject this claim. This specific question is one of first impression. We nevertheless are convinced, as was the trial court, United States v. Thevis, 474 F.Supp. 134, 137 (N.D.Ga.1979), that RICO covers the enterprise alleged in this case. Use of the verb “includes” in the statutory definition indicates congressional intent not to limit a RICO enterprise to the specific categories listed; rather, the language “reveals that Congress opted for a far broader definition of the word ‘enterprise’.” United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 2533-34, 69 L.Ed.2d 246 (1981). See United States v. Elliott, supra, at 897 (quoting United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976)). Moreover, the House report accompanying RICO stated that “enterprise” included “associations in fact, as well as legally recognized associative entities. Thus infiltration of any associative group by any individual or group capable of holding a property interest can be reached.” House Rep.No.91-1549, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 4007, 4032 (emphasis added). Although the term “enterprise” may have some limits, the indictment in this case properly alleged an “association in fact” within the scope of § 1961. Appellants’ final argument is that RICO was not intended to apply to illegitimate enterprises such as the association alleged here. The Supreme Court has now decided this issue in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), holding that RICO applies to both illegitimate and legitimate enterprises. B. The Charge Under 18 U.S.C. § 241 Count Ten of the indictment charged Thevis, Evans and Hood with violating 18 U.S.C. § 241. That section makes criminal a conspiracy “to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . . ” The government alleged that Thevis, Evans and Hood had conspired to injure Underhill in the exercise of his right to testify at trial. Appellants urge that this charge failed to state a crime because the right to testify is not one secured by the Constitution or laws of the United States. To support this contention, appellants cite United States v. Sanges, 48 F. 78 (5th Cir. 1891), which specifically held that the right to testify was not one secured by the Constitution or laws of the United States. Although ordinarily a panel must adhere to prior decisions of this court, our first duty is to follow the dictates of the United States Supreme Court. We therefore must consider whether the Supreme Court’s decision in In Re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1894), overruled Sanges sub silentio. Quarles involved a conspiracy charge under the predecessor statute to § 241. The victim of the conspiracy was assaulted for reporting a violation of the federal tax laws to a deputy United States Marshal for the Northern District of Georgia. The Court held that the right to report a crime, although not specifically guaranteed by the Constitution, nonetheless “arose out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action.” 158 U.S. at 535-36,15 S.Ct. at 961. The Court concluded, “It is the duty and right ... of every citizen, to assist in prosecuting, and in securing the punishment of any breach of the peace of the United States." Id. at 535, 15 S.Ct. at 960-961 (emphasis added). Thus while Quarles did not specifically address the right to testify, the language and reasoning encompass such a right. Testifying at trial both “assists the prosecution” and “secures the punishment” of a crime. Moreover, as the Second Circuit noted in United States v. Pacelli, 491 F.2d 1108, 1113 (2d Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974) (holding that the right to testify is one guaranteed by federal law): Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise, the foundations of federal justice would be undermined. See United States v. Smith, 623 F.2d 627 (9th Cir. 1980); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). See generally, Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981) (en banc) (interpreting 42 U.S.C. § 1985(2) as providing a cause of action for racial- or class-based interference with testifying at trial). We conclude, therefore, that Quarles implicitly overruled Sanges, and the Supreme Court’s reasoning controls this case. Thus we hold that the right to testify at trial is one secured by the Constitution, and that the conspiracy charged in the indictment properly stated a federal crime. III. The Evidentiary Rulings A. Admission of Underhill’s Grand Jury Testimony Having determined that the charges in the indictment were proper, we proceed to consider appellants’ various evidentiary claims. One of their major contentions is that the trial court erroneously admitted certain transcripts of Underhill’s grand jury testimony and FBI interviews as substantive evidence of guilt on the RICO charges. The government’s principal witness in the RICO case against Thevis and Global was to be Thevis’ former business ’‘associate, Roger Dean Underhill. Following Underhill’s murder, the government notified the court, and the defendants that pursuant to Fed.R. Evid. 804(b)(5), it intended to offer portions of Underhill’s grand jury testimony and interviews with the FBI as substantive evidence of Thevis’ guilt under Counts One and Two. The court permitted the government to offer its evidence as to Count Ten first, in order to establish that Thevis was responsible for Underhill’s death and provide a basis for the court to rule on the 804(b)(5) issue. The court then admitted specific portions of Underhill’s testimony as containing sufficient “circumstantial guarantees of trustworthiness” as required under Fed.R.Evid. 804(b)(5). The court also held that although admitting the evidence under Rule 804(b)(5) would have violated Thevis’ confrontation rights under the sixth amendment, the government had established by “clear and convincing” evidence that Thevis had caused Underhill’s death; hence, Thevis had waived his confrontation rights. United States v. Thevis, 84 F.R.D. 57 (N.D.Ga.1979). In contending that the trial court erred in admitting the Underhill evidence, appellants make three arguments. First, appellants claim that the evidence did not have the “circumstantial guarantees of trustworthiness” required to meet Rule 804(b)(5). Appellants also contend that the trial court erred in applying the “clear and convincing” standard to the proof of Thevis’ waiver, arguing instead that the “beyond a reasonable doubt” standard should apply. Finally, appellants argue that even if Thevis waived his confrontation rights, Underhill’s statements were so untrustworthy that their admission violated due process. The issue of admissibility of a witness’ hearsay statements in the face of a defendant-caused absence of that witness from trial is a question of first impression in this circuit, although other circuits have faced this problem under slightly different circumstances. In United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980), the Tenth Circuit confronted a situation in which the defendant had coerced the witness into silence by threatening the witness’ life. The court held that the defendant had waived his confrontation rights and without further explanation stated that such a waiver was a fortiori a waiver of any hearsay objection. In United States v. West, 574 F.2d 1131 (4th Cir. 1978), a key government witness had been murdered prior to trial, but that murder had not been connected to the defendants. Nevertheless, the Fourth Circuit found that the witness’ grand jury testimony met the reliability standards of Rule 804(b)(5) and was sufficiently trustworthy that its admission did not violate the confrontation clause. Finally, United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), the case the trial court primarily relied on here, involved facts similar to those in Balano. After determining that the witness’ grand jury testimony met the standards of Rule 804(b)(5), the Eighth Circuit held that, even assuming admitting the evidence would violate the confrontation clause, the defendant had waived his confrontation rights by intimidating the witness into silence. We reject both the West and Carlson approaches to this issue, based upon our reading of Rule 804(b)(5) and relevant Supreme Court precedent. As to Carlson, we are convinced that Rule 804(b)(5) does not require finding a confrontation clause waiver once a court has concluded that the proffered evidence has met the reliability standards of the Rule. Both the wording of the Rule and the legislative history indicate that Congress intended evidence to be admitted under 804(b)(5) only if the reliability of the evidence equals or exceeds that of the other exceptions in Rule 804(b). The Supreme Court has held that as to two of the other exceptions, dying declarations and prior testimony where cross-examination has already occurred, the reliability of the admitted evidence satisfies the confrontation clause. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2540-41, 65 L.Ed.2d 597 (1980) (prior testimony); Mattox v. United States, 156 U.S. 237, 243-44, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895) (dying declarations). See also, Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069-70, 13 L.Ed.2d 923 (1965) (citing Mattox for the proposition that the Court has recognized the admissibility of dying declarations despite lack of confrontation). Hence we find that imposing on 804(b)(5) admissibility the additional condition of a waiver of confrontation rights is contrary to the express wording of the Rule, congressional intent, and Supreme Court precedent. A more fundamental disagreement with both West and Carlson is the conclusion in those cases that corroborated grand jury testimony in fact meets the reliability standards of Rule 804(b)(5). The Senate Judiciary Committee’s report on the Federal Rules of Evidence stated that the 804(b)(5) residual exception was to be used only rarely, in truly exceptional circumstances. Corroborated grand jury testimony which for one reason or another is unavailable at trial is neither rare nor exceptional, and in our opinion its general admission under this theory would constitute a “major revision” of the hearsay rule that, as the Senate Judiciary Committee admonished, is for the legislature, not the judiciary. Grand jury testimony, although given under oath, is not subjected to the vigorous truth testing of cross-examination, as is prior testimony. Grand jury testimony, moreover, is often given under a grant of immunity which might encourage a witness to “embellish” his story. We need not determine whether grand jury testimony ever meets the stringent reliability standards of Rule 804(b)(5), however, because we conclude other grounds support the admission of the Underhill statements. Thus while we agree with the trial court’s application of the “clear and convincing” standard to the admissibility question, we find the evidence admissible on a different basis than did the trial court: adopting the Tenth Circuit’s approach in Balano, we hold that Thevis’ waiver of his right to confrontation in these circumstances also constituted a waiver of any hearsay objection. 1. The Constitutional Waiver The sixth amendment to the Constitution provides in part that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . . ” All parties to this appeal agree that this right may be waived in a proper case. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). Whether a waiver existed in this case requires analyzing two separate questions: whether a defendant’s murder of a witness for the purpose of preventing his testifying at trial constitutes a valid waiver, and what standard of proof the government must bear in proving that waiver. A waiver of a constitutional right is ordinarily valid only if there is “an intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A variety of actions by the accused constitute an express waiver of the right to confrontation. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (guilty plea); United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (stipulations to evidence). The accused, however, may also waive his confrontation rights indirectly, such as by absenting himself from trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), or engaging in contumacious conduct which requires his removal from the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). We conclude that a defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation under the Zerbst standard. A defendant who undertakes this conduct realizes that the witness is no longer available and cannot be cross-examined. Hence in such a situation the defendant has intelligently and knowingly waived his confrontation rights. The policy interests underlying the confrontation clause, moreover, mandate this result. We recognize that the right of confrontation is so fundamental to our concept of a fair trial that it is a privilege specifically guaranteed by the Constitution. Nevertheless, both Taylor and Allen indicate that the right is not absolute, and must give way at times to stronger state interests. Similarly, when confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him. To permit such subversion of a criminal prosecution “would be contrary to public policy, common sense, and the underlying purpose of the confrontation clause,” United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), and make a mockery of the system of justice that the right was designed to protect. The question of the proper burden of proof to apply to the waiver question presents a more difficult issue. Appellants claim that the “reasonable doubt” standard should apply, relying in part on the Supreme Court decision In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). As the Court later noted in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), however,- Winship “was not concerned with the standards for determining the admissibility of evidence”; rather, Winship merely affirmed the necessity for the prosecution, in order to secure a conviction, to prove every essential element of the offense beyond a reasonable doubt. Here the trial court’s decision to admit Un-derhill’s statements was purely an eviden-tiary ruling, not a decision on Thevis’ substantive guilt. Hence we reject appellants’ “reasonable doubt” standard on the basis of the Supreme Court’s analysis in Lego. Because of the intimate association between the right to confrontation and the accuracy of the fact-finding process, however, we also reject the government’s suggestion that the “preponderance” standard accepted by the Supreme Court in Lego (to judge the voluntariness of a confession) and United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (to judge whether a warrantless search was consensual) is also adequate to protect confrontation rights. The Supreme Court repeatedly has noted the importance of confrontation rights in testing the reliability of evidence. Indeed, the Court in its most recent confrontation clause case declared that the role of confrontation in testing accuracy is so important “that the absence of confrontation at trial calls into question the ultimate integrity of the fact-finding process.” Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 579 (1980) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) and Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969)). The Court, moreover, has stated that “a primary interest secured by [the confrontation clause] is the right to cross-examination,” Ohio v. Roberts, supra at 63, 100 S.Ct. at 2537 (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965)), which has been described as “the greatest legal engine ever invented for the discovery of truth.” J. Wigmore, Evidence § 1367 (3d ed. 1940). As we have previously noted: [T]he right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the “accuracy of the truth-determining process.” It is, indeed, “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Smith v. Estelle, 569 F.2d 944, 946 (5th Cir. 1978) (quoting Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (citations omitted)). Where reliability of evidence is a primary concern, the Supreme Court has conditioned admissibility on the “clear and convincing” standard. The prosecution, for example, must prove by clear and convincing evidence that an in-court identification that follows a tainted identification has a reliable independent basis before the identification can be admitted into evidence. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967); Cannon v. Alabama, 558 F.2d 1211, 1218 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). In contrast, judicial determinations of the admissibility of evidence under the exclusionary rule normally do not relate to the reliability of the evidence, but instead are aimed at deterring police misconduct. Stone v. Powell, 428 U.S. 465, 486-87, 96 S.Ct. 3037, 3048-49, 49 L.Ed.2d 1067 (1976); United States v. Brookins, 614 F.2d 1037, 1046-47 (5th Cir. 1980). See Lego v. Twomey, 404 U.S. 477, 484-85 & nn. 12 & 13, 92 S.Ct. 619, 624-25 & nn. 12 & 13, 30 L.Ed.2d 618 (1976) (purpose of voluntariness hearing is not to decide reliability of confession). Thus because confrontation rights are so integral to the accuracy of the fact-finding process and the search for truth, in contrast to the exclusionary rule, we conclude that the trial court was correct in requiring clear and convincing evidence of a waiver of this right. 2. Waiver of the Hearsay Objection In United States v. Balano, 618 F.2d 624 (10th Cir.), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980), the Tenth Circuit faced a situation in which the defendant had coerced the witness into silence. The court stated that waiver of one’s right to confrontation was a fortiori a waiver of one’s right to raise a hearsay objection. Id. at 626. We agree, basing our decision on an analysis of the interests served by both the confrontation clause and hearsay rule. Although the Supreme Court explicitly has held that the confrontation clause and the hearsay rule are not coterminous, California v. Green, 399 U.S. 149,155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1976), the Court recently has stated that it is a “truism” that both provisions protect the same values. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Both the confrontation clause and the hearsay rule seek to balance the need for relevant, probative evidence against the defendant’s interest in testing the accuracy of evidence through personal confrontation and cross-examination. See id. Cf. Fed. R.Evid. Advisory Committee’s Note on the Hearsay Problem, quoted in 4 J. Weinstein, Evidence 800-02 to 800-03 (1979). As noted by the Supreme Court in Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed.2d 409 (1895), the confrontation clause envisions: “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and .sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Similarly, the hearsay rule envisions testimonial evidence given under the ideal conditions of a witness under oath, in the personal presence of the trier of fact, and subject to cross-examination. Advisory Committee Note, supra at 800-02. The reason that the hearsay rule and confrontation clause are not coterminous is not because the two provisions protect different interests, but because the two may balance the relevant interests differently. Thus a particular hearsay rule may admit evidence which offends confrontation rights because the rule favors the need for evidence and its probable reliability over the defendant’s confrontational rights. Conversely, a particular hearsay rule may restrict evidence which nevertheless satisfies the confrontation clause because the rule favors increased protection for the defendant. California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970). See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). In either case, however, the key interest offsetting the need for evidence is the defendant’s interest in confrontation; if this interest is removed by a waiver of confrontation rights, the balance must necessarily fall in favor of the need for evidence. We hold, therefore, that under the circumstances of this ease, Thev-is’ waiver of his confrontation rights also acted as a waiver of the right to raise a hearsay objection once the prosecution demonstrated a need for the evidence. 3. The Due Process Objection We also reject appellants’ contention that admitting the Underhill testimony, even if otherwise proper, violated due process by permitting a conviction based on unreliable evidence. While a case may exist in which the evidentiary base is so totally lacking in reliability that a conviction would violate due process, California v. Green, 399 U.S. 149, 163 n.15, 90 S.Ct. 1930, 1938 n.15, 26 L.Ed.2d 489 (1970), this is not such a case. Other evidence sufficiently corroborated Underhill’s testimony that the trial court concluded that the statements met the stringent reliability standards of Fed.R.Evid. 804(b)(5). While we do not decide if the trial court correctly ruled on the 804(b)(5) issue, we find that the corroborative evidence indicated that Underhill’s statements were not “totally lacking” in reliability, and that a conviction based upon this evidence did not violate appellants’ due process rights, B. Claims Under Rule 403 Appeiiants raise several points which re-,ate to tria, court rulings under Fed.R.Evid. 4Q3 Because all these points involve the same legal principles and standard of review, we will discuss them together. 1. The Standard of Review Under Fed.R.Evid. 403, a trial judge may exclude relevant evidence if he finds that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant from admitting the evidence. Nevertheless, because it permits a trial court to exclude concededly probative evidence, Rule 403 is an extraordinary remedy which should be used sparingly. As this court noted in United States v. McRae, 593 F.2d 700 (5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979): Relevant evidence is inherently prejudicial; but it is only unfair prejudice substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403. Unless trials are to be conducted on scenarios, on unreal facts tailored and sanitized for the occasion, the application of Rule 403 must be cautious and sparing. Its major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. As to such, Rule 403 is meant to relax the iron rule of relevance, to permit the trial judge to preserve the fairness of the proceedings by exclusion despite its relevance. 593 F.2d at 707 (emphasis original). In making this decision, the trial court has broad discretion which is reviewable only for abuse. Ramos v. Liberty Mutual Ins. Co., 615 F.2d 334, 340 (5th Cir. 1980), cert. denied, Rucker Company v. Shell Oil Company, 449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981); United States v. McRae, supra; Rozier v. Ford Motor Co., 573 F.2d 1332, 1347 (5th Cir. 1978). With this standard as background, we proceed to assess appellants’ numerous claims of error. 2. Exhibit 47 As part of its proof of Count Ten the government introduced a transcript of interviews of Underhill taken by FBI agents in January 1977, shortly after Underhill received immunity and agreed to cooperate with the government in its investigation of Thevis. In these interviews, Underhill accused Thevis of plotting several murders and committing numerous assaults, bombings, extortions and arsons. In addition to accusations of specific crimes, Underhill repeatedly speculated that Thevis had Mafia connections and had tried or would try to have him killed. In June 1978, the grand jury returned its first RICO indictment against Thevis. As part of pre-trial discovery for the corporate defendants, and in preparation for a deposition of Underhill, the government provided to defense counsel a 363-page copy of Un-derhill’s tape-recorded FBI interviews. After Thevis was arrested in November 1978 in Connecticut, a search of a nearby rental locker revealed a copy of the Underhill interview. Thevis’ fingerprints appeared on pages throughout the transcript, and one of Evans’ fingerprints was found on an inside page. At trial the government sought to introduce a copy of the Underhill transcript, exhibit 47, as evidence that Thevis knew Underhill was cooperating with the government and therefore had a motive to kill Underhill to prevent him from testifying. Defense counsel objected to the admission of exhibit 47 on the basis of Rule 403. The defense, moreover, offered to stipulate that Thevis knew Underhill was cooperating with the government, thereby rendering admission of exhibit 47 unnecessary. The court rejected defendants’ offer to stipulate and ruled that the exhibit was admissible to show Thevis’ knowledge and motive. In order to avoid the risk that the jury would misuse the evidence, the court gave limiting instructions, both at the time of admission and in the final instructions, that the jury could not consider the exhibit for the truth of its contents; rather, it could only consider the exhibit as it bore upon the motives of those who had knowledge of its contents. Appellants argue that these limiting instructions were ineffective and forced the jury to perform “mental gymnastics.” They assert that the allegations of other crimes and “bad acts” in the interviews were so damning that no jury could have ignored them. Moreover, they contend that their admission was unnecessary in view of the defense offer to stipulate to Thevis’ knowledge that Underhill was a government witness. While appellants concede that exhibit 47 was probative as to Thevis’ knowledge, they vigorously contend that the nature of the statements in the transcript unfairly prejudiced the jury against Thevis, and that this prejudice substantially outweighed any probative value. We disagree. Count Ten alleged that Thevis had conspired to murder Under-hill in order to prevent his testifying in the upcoming trial. Government exhibit 47 was highly probative in establishing that Thevis had a motive to kill Underhill. The transcript did more than merely indicate that Underhill was cooperating, perhaps grudgingly, with the government in the Thevis investigation; the sweeping nature of the accusations demonstrated that Un-derhill was willing to “tell all” to the government. Although the potential for unfair prejudice certainly existed, the probative value of the exhibit was at least equally strong. Nor do we find that the defense offer to stipulate to Thevis’ knowledge of Underhill’s cooperation with the government obviated the government’s need for this evidence. Had a stipulation carried similar probative weight as the proffered evidence, the potential for unfair prejudice may have warranted exclusion of the exhibit. As noted above, however, the transcript revealed more than the bare fact that Underhill had agreed to cooperate; it indicated that Underhill was furnishing total and voluntary cooperation. At issue was the effect of Underhill’s cooperation on the mind of Thevis; the transcript revealed the extent of Underhill’s “doublecross” and provided an explanation for why Thevis chose to murder Underhill to prevent his testifying rather than some less drastic action. The stipulation could not have carried the same force in proving motive. As we previously have said: A piece of evidence can have probative value even in the event of an offer to stipulate to the issue on which the evidence is offered. A cold stipulation can deprive a party “of the legitimate moral force of his evidence,” 9 Wigmore on Evidence § 2591 at 589 (3rd ed. 1940), and can never fully substitute for tangible, physical evidence or the testimony of witnesses. In most cases, a party has the right “to present to the jury a picture of the events relied upon.” United States v. Grassi, 602 F.2d 1192, 1197 (5th Cir. 1979), vacated on other grounds, 448 U.S. 902, 100 S.Ct. 3041, 65 L.Ed.2d 1131 (1980), on remand, 626 F.2d 444 (5th Cir. 1980) (quoting Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958)). Accordingly, we will not disturb the trial court’s discretionary decision that the prejudicial impact of the decision did not substantially outweigh its probative value. Finally, we do not agree with appellants that the limiting instructions necessarily confused the jury. All parties concede that Underhill’s statements were hearsay and could not be considered for their truth. Nevertheless, the statements were admissible as evidence of Thevis’ knowledge of Underhill’s cooperation. See, e. g., United States v. Parry, 649 F.2d 292 (5th Cir. 1981); United States v. Bankston, 603 F.2d 528 (5th Cir. 1979). The court carefully instructed the jury when exhibit 47 was introduced that the statements in the transcript were “absolute hearsay” and could not be considered for any purpose other than motive. The court’s explanation of this distinction was a correct statement of the law, and rendered the distinction easily understandable to the jury. See United States v. Parry, supra, at 295; United States v. Wyatt, 611 F.2d 568, 569 (5th Cir. 1980). 3. The “Shoe-Mike” Evidence In June 1977 Underhill visited Thevis in prison in Springfield, Missouri, ostensibly to discuss settlement of Underhill’s pending civil RICO suit against Thevis. Unknown to Thevis, Underhill carried a small transmitter in the heel of his shoe, permitting FBI agents to monitor and tape the conversation. At one point Underhill told Thevis that he had taken a polygraph test to corroborate his story concerning the Mayes and Hanna murders, had implicated Thevis in the murders, and had “passed with flying colors.” Thevis responded, “No wonder you passed.” Over strong objections by defense counsel, the trial court admitted this conversation only as evidence showing Thevis knew Underhill was cooperating with the government, and sternly instructed the jury on the legal position of polygraph evidence. The court repeated the limiting instruction in its final charge to the jury. Despite these limiting instructions, appellants contend that the probative value of the evidence was far outweighed by the unfair prejudice to Thevis evoked by Underhill’s references to the polygraph test, especially in light of the prior admission of exhibit 47 as motive evidence. Therefore, appellants claim the trial court committed reversible error by not excluding the evidence under Rule 403. We reject appellants’ argument. While they are correct in conceding that exhibit 47 provided the jury with strong motive evidence, that exhibit required the jury to infer Thevis’ knowledge from the fingerprints on the exhibit. In contrast, the “shoe-mike” conversation was direct evidence that Thevis knew Underhill was cooperating with the government fully and voluntarily, and thus the conversation was highly probative in its own right. As to the danger of unfair prejudice, we are especially sensitive to the possibility of prejudice arising from courtroom references to polygraph tests. As a result, this circuit has ruled that polygraph results are inadmissible as substantive evidence. E. g., United States v. Masri, 547 F.2d 932, 936 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977); United States v. Cochran, 499 F.2d 380, 393 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975). Nevertheless, we note that here the reference to Underhill’s polygraph was not admitted for its truth, but as evidence that Thevis knew Underhill was cooperating with the government. Given the very high probative value of this evidence and the strong limiting instructions, we are unable to say that the danger of unfair prejudice substantially outweighed the conversation’s probative value. We therefore find no abuse of discretion in admitting the evidence. 4. Statements Concerning the Witness Protection Program The trial court also permitted the government to introduce testimony that Underhill had feared Thevis would kill him and was preparing to enter the government’s witness protection program. The court limited the jury’s consideration of this evidence to explaining both Underhill’s actions before his death and the government’s failure to depose him. The court also instructed the jury in its final charges “to draw no inferences unfavorable to the defendants from the fact that government witnesses had been placed in the witness protection plan.” Appellants contend that the probative value of this evidence is substantially outweighed by the unfair prejudice which could result from the jury inferring that because government officials placed Underhill in the witness protection program, his fear Thevis might kill him must have been true. Although we agree with this court’s statement in United States v. Partin, 552 F.2d 621, 644-45 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1979), that references to the witness protection program “must be handled delicately” and that the prosecution should not be permitted to exploit any prejudice, we again find that the probative value of this evidence was relatively high. It provided explanations for the government’s failure to depose Underhill as well as a context for the jury to interpret Underhill’s actions prior to his death. Nor do we find that the prosecution took unfair advantage of the references to the program. The trial court’s limiting instruction, moreover, reduced the risk of unfair prejudice. We find no abuse of discretion in the admission of this evidence. 5. Exclusion of the Frame-Up Evidence One of the theories of the defense at trial was that the FBI had conspired to frame Thevis by suborning perjury and false evidence. William O. Rhodes testified that Underhill and FBI agent Paul King had collaborated to procure Rhodes’ false testimony in the separate trial of Gilbert Deitch, a lawyer who had worked for Thev-is. Robert Frazier, a deputy United States Marshal, testified that Underhill had said King was trying to get him to lie to frame Thevis. To bolster its spoilation theory, the defense offered the testimony of John Reynolds, the FBI polygraph examiner, that Rhodes had failed polygraph examinations relating to his allegedly procured anti-Thevis testimony; the defense also offered Rhodes’ own testimony, as well as that of Reynolds, that agent King was aware of these failures. In addition, the defense offered the testimony of Michael Clutter, an attorney who also had worked for Thevis, to corroborate Rhodes’ charge that Deitch had been tried on perjured testimony with the knowledge of government officials. The trial court excluded Clutter’s and Reynolds’ testimony, and that part of Rhodes’ testimony relating to the polygraph examination. The court concluded that because the probative value of the evidence was slight, while the risk of prejudice and jury confusion was high, Fed.R.Evid. 403 mandated exclusion. Appellants contend this ruling constituted reversible error. We disagree. In contrast to the government proffers discussed above, which were highly probative of key facts, the defense offer concerned the conduct of government officials in a wholly separate trial. Rhodes’ testimony was admissible only because it tended to impeach Underhill and agent King. Thus the proffered evidence was marginally probative as tending to substantiate Rhodes’ credibility, but did not directly attack the evidence offered in this trial. On the other hand, the danger of prejudice and confusion of the jury was relatively high. Although the polygraph evidence was offered ostensibly to show knowledge on the part of agent King, its relevance to the frame-up theory was almost inextricably tied to the reliability of polygraph results as substantive evidence. The danger was great that the jury would have inferred agent King participated in a frame-up because he knew about the polygraph results which by themselves accurately showed Rhodes lying, rather than because King merely believed Rhodes was lying. Thus the danger was substantial that the jury would rely on the polygraph results for their truth, rather than only as evidence of King’s state of mind. Clutter’s testimony, moreover, related to an entirely different trial, and did not substantiate Rhodes’ charge that the government was offering perjured testimony in this case. Against this background we cannot say that the trial judge abused his discretion in excluding the proffered testimony. C. Other Evidentiary Rulings 1. Use Immunity for Defense Witnesses Appellants filed a pre-trial motion seeking judicial use immunity for George Thev-is father of appellant Michael Thevis. They advised the court that George Thevis’ testimony was crucial to the defense, but that he would invoke the fifth amendment if called to testify. The court permitted the defense to proffer George Thevis’ expected testimony in camera, ex parte. As summarized by the appellants: George Thevis would have testified that he was with Thevis and Hood on October 25, 1978, from 11:00 a. m. to 11:40 a. m., at the Journey’s End Motel. Hood and George Thevis then left Thevis for about twenty minutes. Appellant Thevis was still at the motel when they returned. The three of them stayed together until about 1:00 p. m. George Thevis refused to testify because of potential prosecution for “harboring” his son, who was then an escaped prisoner. The trial court held that it lacked authority to grant immunity to any witness. Before this court, appellants concede that the court lacked statutory authority to grant immunity, see United States v. Smith, 436 F.2d 787 (5th Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971); they contend, however, that a defendant’s due process right to a fair trial gives trial courts inherent authority to confer use immunity. Appellants’ due process argument subdivides into two parts. First they claim that because George Thevis’ testimony was exculpatory and unavailable from any other source, due process requires immunity to preserve the integrity of the truth-finding function. Second they urge that the government’s granting immunity to its witnesses while denying immunity to George Thevis skewed the evidence against appellants and denied them a fair trial. The Supreme Court has not decided whether courts may grant defense witnesses use immunity, and the circuit courts which have addressed the issue have produced widely divergent opinions. On the question whether judicial use immunity is necessary for essential exculpatory testimony, the courts have split three ways. The Third Circuit, in Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) held that such immunity is available in certain circumstances. On the other hand, the Seventh, Eighth and District of Columbia Circuits have held that such immunity is unavailable. In re Daley, 549 F.2d 469, 479 (7th Cir. 1976), cert. denied, 434 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977); United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1976); United States v. Smith, 542 F.2d 711, 715 (7th Cir. 1976); Earl v. United States, 361 F.2d 531, 534-35 (D.C.Cir.1966), cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967) (dealing with transactional immunity). . The remaining circuits which have addressed the issue have denied immunity in the specific cases before them, but left open whether immunity would ever be available. United States v. Turkish, 623 F.2d 769, 771-79 (2d Cir. 1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981); United States v. Lenz, 616 F.2d 960, 962-64 (6th Cir.), cert. denied, 447 U.S. 929, 100 S.Ct.. 3028, 65 L.Ed.2d 1124 (1980); United States v. Klauber, 611 F.2d 512, 517 — 20 (4th Cir. 1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980); United States v. Alessio, 528 F.2d 1079, 1081-82 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976). The Fifth Circuit has not explicitly determined whether due process may require a court to grant a defense witness use immunity. We conclude, however, after reviewing the various circuit opinions and conflicting policy arguments, that district courts may not grant immunity to defense witnesses simply because that witness has essential exculpatory information unavailable from other sources. As noted by the Second Circuit in Turkish, supra, the two major arguments against granting such judicial use immunity are that the immunity decision would carry the courts into policy assessments which are the traditional domain of the executive bra