Unpublished Disposition, 861 F.2d 269 (9th Cir. 1988)

MEMORANDUM^* 

Counsel for defendant acknowledges that his appeal depends on the argument that the non-testifying witnesses should not have been considered to be unavailable. We agree with the district court that they were unavailable. Defendant's basic contention is that the government was required to grant the witnesses immunity and that its failure to do so was the cause of the witnesses' "unavailability". We have previously held that the question of granting immunity in order to allow a witness to testify is wholly discretionary. United States v. Bautista, 509 F.2d 675, 677 (9th Cir. 1975). Thus, we reject the defendant's argument. We find the defendant's other argument, that the government's statements regarding possible perjury prosecution precluded it from subsequently contending that the witnesses are unavailable, to be similarly without merit. Finally, we conclude that the district court did not abuse its discretion in excluding the two conflicting hearsay statements regarding the identity of the driver.

AFFIRMED.