IN THE
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
______________________________
No. 97-3178
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
SONYA EVETTE SINGLETON,
Defendant-Appellant.
______________________________
BRIEF AMICUS CURIAE OF NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS
______________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS AT WICHITA, KANSAS
Case No. 96-10054-05
______________________________
HADDON, MORGAN & FOREMAN, P.C.
Norman R. Mueller
Rachel A. Bellis
150 East 10th Avenue
Denver, Colorado 80203
(303) 831-7364
David M. Porter MacDONALD, HOAGUE & BAYLESS
Co-Chair, NACDL Amicus Committee Timothy K. Ford
Office of the Federal Defender Robert S. Mahler
Eastern District of California 1500 Hoge Building
801 K Street, 10th Floor 705 Second Avenue
Sacramento, California 95814 Seattle, Washington 98104-1745
(916) 498-5700 (206) 622-1604
(Of Counsel)
Attorneys for National Association of Criminal Defense Lawyers
INTEREST OF AMICUS CURIAE 1
ARGUMENT 2
I. The Panel's Interpretation of 18 U.S.C. § 201(c)(2) to Prohibit the Purchase of
Testimony by Prosecutors Comports with the Languange of the Statute and
Congress' Intent and is Not in Conflict With Any Other Provision of Law. 2
II. The Panel's Decision Clarifies Public Policy Without Interfering With the
Government's Ability to Dispose of Cases Through Plea Bargains and
Cooperation Agreements 5
III. The Purchase of Testimony by Prosecutors Corrupts the Fairness of the Trial
Process and Violates Professional Standards of Conduct 10
IV. The Panel Opinion, if Affirmed, Would Apply to Individuals Whose Cases Are
on Direct Appeal and Who Seek Collateral Relief Under 28 U.S.C. § 2255,
Subject to the Ordinary Rules of Procedural Default, the Statute of Limitations
and, Where Applicable, Their Limited Exceptions 15
CONCLUSION 19
Cases
Allen v. Hardy, 478 U.S. 255 (1986) 15, 18
American Trucking Associations, Inc. v. Smith, 496 U.S. 167 (1990) 17
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) 10
Blair v. United States, 250 U.S. 273 2
Brogan v. United States, __U.S.__, __, 118 S.Ct. 805 (1998) 3
Doe v. United States, 51 F.3d 693 (7th Cir.), cert. denied, 516 U.S. 876 (1995) 4
Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990) 15
Gerald B. Lefcourt v. United States, 125 F.3d 79 (2d Cir. 1997), cert. denied, 118 S.Ct. 2341 (1998) 11
Gilmore v. Taylor, 508 U.S. 333 (1993) 15
Golden Door Jewelry Creations, Inc. v. Lloyd's Underwriters Non-Marine Assoc., 117 F.3d 1328 (11th Cir. 1997) 14, 18
Gomez v. United States, 490 U.S. 858 (1989) 17
Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993) 17
Hoffa v. United States, 385 U.S. 293 (1966) 8
Illinois v. Krull, 480 U.S. 340 (1987) 16
In Re Grand Jury Matter, 906 F.2d 78 (3d Cir.), cert. denied, 498 U.S. 980 (1990) 11
In Re Grand Jury Subpoenas, 803 F.2d 493 (9th Cir. 1986) 11
In Re Grand Jury Subpoenas, 906 F.2d 1485 (10th Cir. 1990) 11
In re Klein, 372 N.E.2d 376 (1977) 14
In re Robinson, 151 A.D. 589 (1912), aff'd, 209 N.Y. 354, 103 N.E. 160 (1913) 14
James B. Beam Distilling Company v. Georgia, 501 U.S. 529 (1991) 17
Kastigar v. United States, 406 U.S. 441 (1972) 2, 4
Linkletter v. Walker, 381 U.S. 618 (1965) 19
Mackey v. United States, 401 U.S. 667 (1971) 15
Mapp v. Ohio, 367 U.S. 643 (1961) 19
Miller v. United States, 357 U.S. 301 (1958) 18
Miranda v. Arizona, 384U.S. 436 (1966) 20
Murphy v. Waterfront Commission, 378 U.S. 52 (1964) 2
Nardone v. United States, 308 U.S. 338 (1939) 18, 20
O'Dell v. Netherland, ___ U.S. ___, 117 S.Ct. 1969 (1997) 15
Olmstead v. United States, 277 U.S. 438 (1928) 14
Oubre v. Entergy Operations, Inc., __U.S. __, __, 118 S.Ct. 838 (1998) 3
Rea v. United States, 350 U.S. 214 (1956) 18
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) 17
Sabbath v. United States, 391 U.S. 585 (1968) 18
Salinas v. United States, __U.S.__, 118 S.Ct. 469 (1997) 3
Santobello v. New York, 404 U.S. 257 (1971) 6
Simmons v. South Carolina, 512 U.S. 154 (1994) 15
Teague v. Lane, 489 U.S. 288 (1989) 15-17
The Florida Bar v. Jackson, 490 So.2d 935 (Fla. 1986) 14
Touche Ross and Co. v. Redington, 442 U.S. 560 (1979) 5
Trest v. Cain, ___ U.S. ___, 118 S. Ct. 478 (1997) 1
United States ex rel. O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998) 13
United States v. Bousley, ___ U.S. ___, 140 L.Ed.2d 828 (1998) 16-17
United States v. Chemaly, 741 F.2d 1346 (11th Cir. 1984) 18
United States v. Cintolo, 818 F.2d 980 (1st Cir.), cert. denied, 484 U.S. 913 (1987) 11
United States v. Cooper, 70 F.3d 563 (10th Cir. 1995) 6
United States v. Correa, 995 F.2d 686 (7th Cir. 1993) 12
United States v. Fayer, 523 F.2d 661 (2d Cir. 1975) 11
United States v. Genser, 582 F.2d 292 (3d Cir. 1978) 18
United States v. Goldberger & Dubin, 935 F.2d 501 (2d Cir. 1991) 11
United States v. Gonzalez-Bello, No. 96-CR-875, 1998 WL 352941 (E.D.N.Y., June 26, 1998) 12
United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) 18
United States v. Johnson, 457 U.S. 537 (1982) 19
United States v. Levasseur, 699 F.Supp. 995 (D. Mass. 1988), aff'd, 867 F.2d 36 (1st Cir. 1989) 10
United States v. Librach, 536 F.2d 1228 (8th Cir.), cert. denied, 429 U.S. 939 (1976) 5
United States v. Marts, 986 F.2d 1216 (8th Cir. 1993) 18
United States v. Mechanik, 475 U.S. 66 (1986) 11
United States v. Mezzanatto, 513U.S. 196 (1995) 6, 20
United States v. Ming He, 94 F.3d 782 (2d Cir. 1996) 12
United States v. Monsanto, 491 U.S. 600 (1989) 11
United States v. Pinter, 971 F.2d 554 (10th Cir. 1992) 6
United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992) 11
United States v. Rivieccio, 919 F.2d 812 (2d Cir. 1990) 18
United States v. Russell, 411 U.S. 423 (1973) 18
United States v. Simpson, 927 F.2d 1088 (9th Cir. 1991) 10
United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979) 18
United States v. Tarantino, 846 F.2d 1384 (D.C. Cir.) 8
Wagner v. Lehman Bros. Kuhn Loeb Inc., 646 F.Supp. 643 (N.D. Ill. 1986) 14
Other
18 U.S.C. § 3059B 3
18 U.S.C. § 3109 18
18 U.S.C. § 201(c)(2) 1-5, 14-15, 17, 19-20
18 U.S.C. § 3521 4
18 U.S.C. § 3521(a)(1) 4
18 U.S.C. § 3553(e) (1988) 3, 12
18 U.S.C. §§ 3071-3077 3
18 U.S.C. §§ 6001-6005 4
19 U.S.C. § 482 18
19 U.S.C. § 1619 2
26 U.S.C. § 7602 and 7605(b) 18
26 U.S.C. § 7623 3
28 C.F.R. Pt. 77 (1997) 13
28 U.S.C. § 2255 15-17
31 U.S.C. § 1105 18
ABA Code of Prof. Resp. DR 7-104(A)(1) 18
ABA Standards, Prosecution Function Standard 3-3.2(a) (3rd ed. 1993) 8
Joel Cohen and Norman Bloch, Can Lawyers Be Prosecuted for the Advice They Give?, N.Y.L.J., July 23, 1991 at 1, 5 11
Communications Act of 1934, § 605 18
6A Arthur Linton Corbin, Corbin on Contracts, § 1430 (1962) 7
Fed.R.App.P. 29. 1
Fed.R.Crim.P. 35 3
Fed.R.Crim.P. 41(a) 18
Florida State Bar Rule 4-3.4(b) 19
Abraham S. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1199 (1960) 10
Bruce A. Green, Zealous Representation Bound: The Intersection of the Ethical Codes in the Criminal Law, 69 N.C.L.Rev. 687, 699-704 (1991) 11
Graham Hughes, Agreements for Cooperation in Criminal Cases, 45 Vand. L.J. 1, 67 (1992) 6, 9
Cynthia K.Y. Lee, From Gatekeeper to Concierge: Reigning in the Federal Prosecutor's Expanding Power Over Substantial Assistance Departures, 50 Rutger's L.Rev. 199, 207-209 (1997) 9
Richard A. Leo, The Impact of Miranda Revisited, 86 J.Crim.L. and Criminology 621 (Spring 1996) 20
James S. Liebman and Randy Hertz, Federal Habeas Corpus Practice and Procedure, § 25.1 n. 18, at 719 (2d ed. 1994) 17
Richard A. Lord, 7 Williston on Contracts § 15:6 (4th ed. 1997) 7
Model Rules of Professional Conduct, Rule 3.4(b) 13-14
Model Rules of Professional Conduct, Rule 3.8 13
Restatement of Contracts, § 553(4) (1932) 7
Restatement (2nd) of Contracts, § 73 cmt. b (1981) 7
Deborah L. Rhode and David Luban, Legal Ethics, 322-23 (1995) 14
David Rudovsky, The Right to Counsel Under Attack, 136 U.Pa. L. Rev. 1965, 1967 (1988) 11
S. Rep. No. 2213, 87th Cong., 2nd Sess. 1962, 1962 U.S.C.C.A.N. 3852 3
Max D. Stern and David Hoffman, Privileged Informers: The Attorney-Subpoena Problem and a Proposal for Reform, 136 U.Pa. L. Rev. 1783, 1786 (1988) 11
U.S. Const., Art. III, § 1 16
U.S. Sentencing Commission, Guidelines Manual,Ch. 1, Part A(4)(c) (November 1997) 6
Fred C. Zacharis, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who Should Regulate the Regulators?: Response to Little, 65 Fordham L.R. 429, 439 n.44 (1996) 12
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
SONYA EVETTE SINGLETON,
Defendant-Appellant.
The National Association of Criminal Defense Lawyers ("NACDL") is a nationwide, nonprofit corporation founded in 1958 to ensure justice and due process for persons accused of crime; to foster the integrity, independence, and expertise of the criminal defense profession; and to promote the proper and fair administration of criminal justice. It has a membership of almost 10,000 attorneys, and another 28,000 affiliate members in 80 affiliate organizations in 50 states. NACDL is recognized by the American Bar Association as an affiliate organization, and has full representation in the ABA's House of Delegates. As part of its mission, NACDL strives to defend individual liberties guaranteed by the Bill of Rights. NACDL has appeared before the United States Supreme Court on many occasions as amicus curiae. See, e.g., Trest v. Cain, ___ U.S. ___, 118 S. Ct. 478 (1997).(1)
I. The Panel's Interpretation of 18 U.S.C. § 201(c)(2) to Prohibit the Purchase of Testimony by Prosecutors Comports with the Languange of the Statute and Congress' Intent and is Not in Conflict With Any Other Provision of Law.
The Singleton panel's opinion is remarkable for its focused and restrained resolution of the issue before it. Guided not by an impulse to judicial activism but by established canons of statutory construction, the panel concluded that 18 U.S.C. § 201(c)(2) prohibits any party from purchasing testimony, and that this proscription applies with equal force to the government.
The panel's analysis is correct. Section 201(c)(2) is the embodiment of "the general common law principle that 'the public has a right to every man's evidence.'" Kastigar v. United States, 406 U.S. 441, 443 (1972).
Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U.S. 273 [63 L.Ed. 979, 39 S.Ct. 468]. Such testimony constitutes one of the Government's primary sources of information.
Murphy v. Waterfront Commission, 378 U.S. 52, 93-94 (1964) (White, J., concurring). See Kastigar, 406 U.S. at 443-444 ("The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor."). Every citizen is obliged to give her truthful testimony if called, and the plain language of § 201(c)(2) prohibits the gift, offer or promise of anything of value for or because a person has fulfilled or will fulfill that duty.
No statute enacted by Congress contradicts this principle. A number of laws do authorize
the government to confer benefits on persons who provide information or assistance in the
investigation or prosecution of crimes: notably, testimony is not mentioned in those statutes and
rules.(2)
The Supreme Court repeatedly has instructed courts to look to the plain language of statutes
and to "take Congress at its word." Oubre v. Entergy Operations, Inc., __U.S. __, 118 S.Ct. 838, 841
(1998). Accord, Brogan v. United States, __U.S.__, 118 S.Ct. 805, 809 (1998); Salinas v. United
States, __U.S.__,118 S.Ct. 469, 473-74 (1997). The language of those statutes expresses Congress'
intent to reward only "information" and "assistance," but not "testimony." While the wisdom of a public policy that permits the government to buy its information from
witnesses hip-deep in criminal activity is debatable (see Part II below), those other statutes do not
conflict with the Panel's reading of § 201(c)(2). This statute, whose adoption in 1962 was intended
to complement but not intended to "restrict the broad scope of the ... bribery statutes" already in
effect, S. Rep. No. 2213, 87th Cong., 2nd Sess. 1962, 1962 U.S.C.C.A.N. 3852, stakes out the limit
of the kind of "assistance" which the government may compensate: in short, the government may
compensate any and all assistance short of testimony. Nor does the Panel's straightforward reading of the language of § 201(c)(2) have any adverse
impact on the government's ability to fulfill its duties under the Witness Relocation and Protection
Act, 18 U.S.C. § 3521, or to secure use and derivative use immunity for witnesses under the
provisions of 18 U.S.C. §§ 6001-6005. These statutes, unlike most, focus on witnesses who provide
testimony as opposed to informers generally. However, once again using the language of these
statutes as the polestar to congressional intent, they in no way authorize the government to confer
a benefit on the witness "for" or "because of" testimony given or contemplated. The Witness Relocation and Protection Act does not establish a system of rewards for or
because of testimony. The plain language of that statute empowers the attorney general to relocate
and protect witnesses whom the attorney general determines are likely to be the subject of a crime
of violence or intimidation. 18 U.S.C. § 3521(a)(1). "Cooperation" is a precondition to the
applicability of the statute, Doe v. United States, 51 F.3d 693, 702 (7th Cir.), cert. denied, 516 U.S.
876 (1995); however, it is not testimony given or contemplated but the threat or potential threats
against the witness that triggers the government's obligation to provide the protections available
under the statute. Similarly, no benefit is conferred on any witness who testifies pursuant to the immunity
provisions of 18 U.S.C. §§ 6001-6005. Through those statutes, Congress established a procedure
whereby a witness fearing self-incrimination might still be compelled to provide evidence in a court
of law without losing the benefit of her Fifth Amendment protection. The statutes work an
accommodation through which the witness retains her right not to give testimony against herself yet
may still be forced to give testimony in order to further the demands of government. Kastigar, 441
U.S. at 446-447. Cooperation agreements offering promises of "informal" immunity, charge and sentence
concessions and the like given in exchange for testimony, such as the agreement at issue in
Singleton, go well beyond merely accommodating the witness's Fifth Amendment interests while
securing needed testimony. They give the witness a reward for doing nothing more than living up
to her legal duty to testify truthfully, which Congress has prohibited by the unambiguous terms of
§ 201(c)(2). On the issue presented in Singleton, "the ultimate question is one of Congressional intent,
not one of whether this Court thinks it can improve upon the statutory scheme that Congress has
enacted into law." Touche Ross and Co. v. Redington, 442 U.S. 560, 578 (1979) (interpreting the
Securities Exchange Act of 1934). The panel's decision should be affirmed because it correctly
interpreted and applied § 201(c)(2). II. The Panel's Decision Clarifies Public Policy Without Interfering With the
Government's Ability to Dispose of Cases Through Plea Bargains and Cooperation
Agreements. Prosecutors have the ability to craft cooperation agreements which comport with the rule
announced by the panel in this case. See e.g., United States v. Librach, 536 F.2d 1228, 1230 (8th
Cir.), cert. denied, 429 U.S. 939 (1976) (agreement did not require witness to provide incriminating
testimony and was binding on the government before witness testified, freeing him to testify without
fear of reprisal). Thus, as the panel correctly reasoned, its interpretation and application of §
201(c)(2) does not interfere with the government's ability to negotiate dispositions in criminal cases,
it simply makes clear that parties may not include in those dispositions a term that buys a defendant's
testimony against another accused. In the language of contract, such a term is contrary to public
policy: if testimony is what the government is after, the government cannot barter for it. Plea and cooperation agreements are creations born of convenience and expediency. Yet they
have become an essential part of the criminal justice process and are even characterized as "highly
desirable" as a means to assist law enforcement investigative efforts. United States v. Pinter, 971
F.2d 554, 557 (10th Cir. 1992) (citing Santobello v. New York, 404 U.S. 257, 261 (1971). In recent
years, nearly 90% of all federal cases have been disposed by plea. See United States v. Mezzanatto,
513 U.S. 196, 209 n.6 (1995) (citing the 1992 statistics from the Administrative Office of the United
States Court); United States Sentencing Commission, Guidelines Manual, Ch. 1, Part A(4)(c)
(November 1997). Plea agreements and cooperation agreements are struck under a variety of scenarios, all of
which are amenable to a rough contract analysis. United States v. Cooper, 70 F.3d 563, 565 (10th
Cir. 1995); Pinter, 971 F.2d at 557. In a limited subset of those agreements, the defendant is required
to cooperate with prosecutors or law enforcement in order to receive the benefit of the bargain.
These situations are analagous to, yet sharply different from, run-of-the-mill plea bargaining. See
Pinter, 971 F.2d at 557. In the eyes of both prosecutors and the accused, the dominant purpose of
the bargaining in these cases is to secure cooperation: the cooperator badly needs the concessions,
while the prosecutor badly needs the cooperator's services. Graham Hughes, Agreements for
Cooperation in Criminal Cases, 45 Vand. L.J. 1, 67 (1992). Far from being contracts of adhesion,
the terms of cooperation agreements are fashioned individually to meet the parties' interests. The essence of the panel's decision is that the government must play by the rules, and that
it is not free to pursue its interests by buying witness testimony. 1998 WL 350507 at *4 (the statute
"does not restrict any interest of the sovereign itself; it operates only upon an agent of the sovereign,
limiting the way in which that agent carries out the government's interests"). After all, contracts
involving payments of benefits to fact witnesses for their testimony never have been sanctioned.(3)
Professor Corbin characterized such bargains as "harmful to justice:" In extreme cases, such a bargain amounts to the crime of subornation
of perjury; but many bargains made with no criminal intent are illegal
because of their tendency to affect injuriously the administration of
justice. A bargain to pay compensation, to a witness who is in the
jurisdiction and subject to subpoena, in addition to the fees to which
he is by law entitled, is illegal ... because such extra compensation is
almost certain to affect the attitude of the witness and to color his
testimony, consciously or unconsciously.... Doubtless, such bargains
are not very effectively discouraged by merely declaring them to be
illegal and unenforceable; but as in many other cases it is better than
nothing.... 6A Arthur Linton Corbin, Corbin on Contracts, § 1430 (1962). See also Restatement (2nd) of
Contracts, § 73 cmt. b (1981). The illegality of the bargain derives from the fact that every person
is obliged by law to give testimony if she has knowledge of facts relevant to the matter being heard.
Richard A. Lord, 7 Williston on Contracts § 15:6 (4th ed. 1997) ("As it is a duty of a citizen, when
required to do so, to testify in court concerning facts within the person's knowledge for the
compensation allowed by law, a bargain to pay one who is amenable to process a further sum for
attending as a witness is generally invalid, both on grounds of public policy and for lack of
consideration.... [B]argains to obtain testimony for compensation conditional upon success or to pay
for evidence of a certain nature desired for purposes of litigation have been similarly denounced as
contrary to public policy."). The panel correctly recognized that "the judicial process is tainted and justice cheapened
when factual testimony is purchased, whether with leniency or money." 1998 WL 350507 at *6.
Since defendants in criminal trials may not compensate witnesses to obtain testimony favorable to
their case, it seems anomalous that prosecutors should be permitted to influence the content of a
witness' testimony through promises of favorable treatment. The only tool at a defendant's disposal
is the Sixth Amendment compulsory process doctrine--but this does not assure the defendant that
the witness will provide favorable testimony once the witness is in court. Regardless of the differences in the duties of a prosecutor and defense counsel, compensating
a witness to testify involves an identical threat to the integrity of the judicial system whether the
witness testifies for the prosecution or the defense. This threat is underscored by the American Bar
Association's Standards for Criminal Justice, Prosecution Function Standards governing relations
with victims and prospective witnesses, which instruct that [a] prosecutor should not compensate a witness, other than an expert,
for giving testimony, but it is not improper to reimburse an ordinary
witness for the reasonable expenses of attendance upon court,
attendance for depositions pursuant to statute or court rule, or
attendance for pretrial interviews. Payments to a witness may be for
transportation and loss of income, provided there is no attempt to
conceal the fact of reimbursement. ABA Standards, Prosecution Function Standard 3-3.2(a) (3d ed. 1993). The Commentary to this
section warns that the rule is intended to avoid "the risk of encouraging perjury."(4)
Professor Hughes has opined that "corroboration requirements [ ] would be a welcome
requirement in all cases of bought testimony whether or not the witness was an accomplice or the
defendant," but the "small measure of assurance" added by such a requirement does not "go to the
heart of the problem of how best to guard against the suspect quality of...cooperating witness
testimony." Hughes, Agreements for Cooperation in Criminal Cases at 32, n.125. This organization
has championed the cause for corroboration for years and has urged legislation that would require
in federal criminal prosecutions that accomplice testimony be corroborated by non-accomplice
testimony and/or evidence, both before the grand jury and at trial, before it can be deemed sufficient
to establish either probable cause or guilt beyond a reasonable doubt. The court need only look at
any high-profile prosecution in which insiders have received "sweet deals" to testify against their
confederates to recognize how destructive to the public perception of justice these bargains are.
Given the myriad problems surrounding the use of accomplice testimony in criminal prosecutions,
see Cynthia K.Y. Lee, From Gatekeeper to Concierge: Reigning in the Federal Prosecutor's
Expanding Power Over Substantial Assistance Departures, 50 Rutgers L.Rev. 199, 207-209 (1997)
(noting that the culpable cooperating witness' incentive to lie is exacerbated by prosecutor's promise
of leniency), it is indeed sound public policy to circumscribe the government's ability to reward that
kind of inherently unreliable testimony with government assistance in areas of charge, sentence, or
security. III. The Purchase of Testimony by Prosecutors Corrupts the Fairness of the Trial Process
and Violates Professional Standards of Conduct. Over three decades ago, Professor Abraham Goldstein commented on the "subtle erosion of
the accusatorial system." Abraham S. Goldstein, The State and the Accused: Balance of Advantage
in Criminal Procedure, 69 Yale L.J. 1149, 1199 (1960). The inherent inequalities between the
prosecutor, backed by the vast resources of the state, and the individual defendant have only been
exacerbated over the intervening years. The continuing attempt to exempt prosecutors from the rules
that govern the conduct of all other lawyers is an important component in the continuing dangerous
tilt in the criminal justice system's balance of power in favor of the state. In the nearly 40 years since Professor Goldstein's warning, prosecutors' power to investigate
and charge crime and to control the sentencing decision has continued to escalate. Prosecutorial
investigative techniques employing undercover operations have become more aggressive, stretching
the limits of due process. Yet, courts have been reluctant to intervene, concluding that shocking and
sometimes illegal conduct was not sufficiently outrageous to violate due process.(5) The prosecutor's
use of the grand jury similarly has resulted in increased prosecutorial power and reduced judicial
oversight. The power of the prosecutor in the grand jury is virtually unlimited, since a defendant
must now await conviction and establish prejudice before a claim of prosecutorial misconduct can
be raised. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). The application of the
harmless error rule to grand jury proceedings renders futile a defendant's valid claim of prosecutorial
misconduct before the grand jury. United States v. Mechanik, 475 U.S. 66, 71-72 (1986). Adding
to the increased prosecutorial power is the concerted attack by prosecutors' offices on individual
criminal defense lawyers through the aggressive use of grand jury subpoenas,(6) IRS summonses,(7) law
office searches,(8) attempts to forfeit attorney fees,(9) and prosecution of attorneys for obstruction of
justice for giving legal advice.(10) The power at the disposal of the prosecutor in the charging decision also has grown due to
the expansion of federal criminal jurisdiction as the number of federal crimes has multiplied, and as
a result of the trend toward minimum mandatory sentencing, which has increased the leverage of the
prosecutor to compel plea bargaining. The prosecutor exercises her charging discretion essentially
free of judicial oversight and intervention. See, e.g., United States v. Redondo-Lemos, 955 F.2d
1296 (9th Cir. 1992) (court will not supervise the exercise of prosecutorial discretion even if that
discretion is so arbitrary and capricious as to violate due process). The most recent dramatic expansion in the prosecutors' power is in the sentencing realm.
Since the advent of the sentencing guidelines, there has been a dramatic shift from the judiciary to
the prosecutor in the determination of the ultimate sentence. United States v. Gonzalez-Bello, No.
96-CR-875, ___ F.Supp. ___,1998 WL 352941 (E.D.N.Y., June 26, 1998) (transfer of authority in
sentencing from judge to prosecutor especially troubling and susceptible to abuse). The prosecutors'
control of sentencing is comprised of the traditional discretion involved in the charging and plea
bargaining decisions, but now is enhanced by the exclusive power of the prosecutor to seek a
reduction in the defendant's sentence for "substantial assistance," see 18 U.S.C. § 3553(e) (1988);
and by the ability to use unproven allegations--even conduct for which the defendant has been
acquitted--to enhance punishment under more lenient standards of proof. See United States v. Ming
He, 94 F.3d 782, 788 (2d Cir. 1996) (guidelines have altered sentencing process concerning
cooperating witnesses significantly diminishing power of judges); United States v. Correa, 995 F.2d
686, 687 (7th Cir. 1993) (noting judicial concerns that government's inconsistent departure policy
is often arbitrary and amounts to "simple prosecutorial expediency"). And the prosecutors'
unreviewable discretion to seek the death penalty continues to be a primary factor in the arbitrary
infliction of the death penalty in this country. One of the few checks on abuse of prosecutorial power are local state rules of professional
conduct. Many states, including Kansas, have adopted the Model Rules of Professional Conduct
("Model Rules"). In turn, many federal district courts have adopted the local state rules of
professional conduct.(11) The Model Rules offer some limited ethical guidance to prosecutors in Rule 3.8, Special
Responsibilities of a Prosecutor, which deals primarily with pretrial procedure. For other areas of
prosecutorial responsibility, the prosecution is admonished simply "to do justice." Rule 3.8 cmt.
However, the rules governing the conduct of lawyers with witnesses are much more explicit and
specific and importantly, make no distinction between prosecutors and defense counsel. Model Rule
3.4(b) provides: A lawyer shall not: (b) falsify evidence, counsel or assist a witness
to testify falsely, or offer an inducement to a witness that is prohibited
by law. (Emphasis added.) The comment to Rule 3.4 adds: With regard to paragraph (b), it is not improper to pay a witness' expenses or
to compensate an expert witness on terms permitted by law. The common
law rule in most jurisdictions is that it is improper to pay an occurrence
witness any fee for testifying and that it is improper to pay an expert witness
a contingent fee. As the panel opinion noted, the Department of Justice has attempted, through federal
regulations, "to exempt its litigators from state ethical rules prohibiting ex parte communication with
represented parties." 1998 WL 350507 at *15. No similar effort has been made to exempt
prosecutors from the clear prohibition of Rule 3.4(b). See 28 C.F.R. Pt. 77 (1997). Any such effort,
of course, would be unsuccessful. As the panel noted, "Federal courts have unanimously rejected
the notion that federal prosecutors are exempt from these ethical rules." 1998 WL 350507 at *15.
And the reasoning of those cases is unassailable: regulations promulgated by the Attorney General
do not preempt or supersede local ethical rules adopted by the court. See United States ex rel.
O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252, 1257 (8th Cir. 1998). The proscriptions of Rule 3.4(b) are clear and unequivocal, just like the provisions of §
201(c)(2). The policy underlying both the ethical provision and the statute is that justice is
undermined by the purchase of testimony by a prosecutor. Both recognize what common sense
teaches, that purchased testimony is inherently unreliable. Purchased untrustworthy testimony does
not magically have its taint removed simply because the government is the buyer. Indeed, a
compelling argument can be made that testimony purchased by the state, with its power to punish
if it does not like what it hears, is more likely to be unreliable than any testimony purchased by any
private party involved in litigation.(12) To sanction a reward system for the purchase of testimony only
when it provides assistance to the prosecution side of the criminal adversary system so substantially
distorts the trial process as to deny the accused any semblance of a fair trial. Decency, security, and liberty alike demand that government officials
shall be subjected to the same rules of conduct that are commands to
the citizen. Olmstead v. United States, 277 U.S. 438, 485 (1928)
(Brandeis, J., dissenting). It has been noted perceptively that the confidence of the public in the criminal justice system
is greatly influenced by the way the prosecutor, the system's most visible and vocal representative,
exercises his or her discretion. Deborah L. Rhode and David Luban, Legal Ethics, 322-23 (1995).
Requiring prosecutors to abide by the same standards of conduct that all other lawyers are required
to meet would help restore public confidence in the criminal justice system and would constitute a
small step toward restoring some equilibrium in the adversarial system. The policy expressed by
Congress in § 201(c)(2) and mirrored in the Model Rules is beyond dispute. Purchased testimony
is unreliable and its use corrupts the fairness of the criminal justice system. IV. The Panel Opinion, if Affirmed, Would Apply to Individuals Whose Cases Are
on Direct Appeal and Who Seek Collateral Relief Under 28 U.S.C. § 2255,
Subject to the Ordinary Rules of Procedural Default, the Statute of Limitations
and, Where Applicable, Their Limited Exceptions. In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court held that "new constitutional
rules of criminal procedure will not be applicable to those cases which have become final before the
new rules are announced," id. at 310, unless the new rule "places certain kinds of primary, private
individual conduct beyond the law-making authority to proscribe," id., at 311 (internal citation and
quotation omitted), or could be considered a "watershed rule of criminal procedure," id. at 311, the
observance of which is "implicit in the concept of ordered liberty." Id. at 307 (quoting Mackey v.
United States, 401 U.S. 667, 693 (1971) (Harlan, J., concurring in part and dissenting in part)). This
principle has been applied broadly to new constitutional rules of criminal procedure announced by
either the Supreme Court, see, e.g., O'Dell v. Netherland, ___ U.S. ___, 117 S.Ct. 1969 (1997)
(retroactivity of Simmons v. South Carolina, 512 U.S. 154 (1994)), or the lower federal courts, see,
e.g., Gilmore v. Taylor, 508 U.S. 333, 335 (1993) (retroactivity of Falconer v. Lane, 905 F.2d 1129
(7th Cir. 1990)). A decision is "final" where "the judgment of conviction was rendered, the
availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed." Allen v.
Hardy, 478 U.S. 255, 258 n.1 (1986) (per curiam) (citation omitted). Under the current Supreme Court precedent, Teague's rule of nonretroactivity would not be
applicable to the panel's decision in this case. The decision, if affirmed, should apply to all
individuals whose cases are subject to collateral attack as well as those whose cases were not yet
"final" at the time the decision was announced.(13) Conceptually, the panel's decision in this case consists of two parts, one substantive and one
procedural. The substantive element is that portion of the opinion construing the reach of § 201(c)
(2). The procedural aspect of the case, on the other hand, is the portion applying the exclusionary
rule to purchased testimony. See generally Illinois v. Krull, 480 U.S. 340, 347 (1987) (exclusionary
rule is a judicially developed remedial device). Teague does not reach the first part of the panel's decision because it applies only to "new
constitutional rules of criminal procedure," Teague, 489 U.S. at 310, and not to non-constitutional
questions of substantive criminal law. United States v. Bousley, ___ U.S. ___, 140 L.Ed.2d 828,
838-39 (1998) ("[B]ecause Teague by its terms applies only to procedural rules, we think it is
inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted
by Congress."). As the panel made clear, "the rule [it applied] ... rests in no way on the Constitution;
it is a creature solely of statute." 1998 WL 350507 at *22. To hold otherwise would ignore the
constitutional authority of the federal courts, see U.S. Const., Art. III, § 1. For only Congress can
create the criminal law; the courts' role is to declare what the law already is. See American Trucking
Associations, Inc. v. Smith, 496 U.S. 167, 201 (1990) (Scalia, J., concurring). Teague may or may not reach the second conceptual part of the panel's decision--the
exclusion from evidence of testimony obtained in violation of § 201(c)(2)--but whether it does or
not makes no difference to the retroactivity question, because that part did not make a new rule but
simply applied an old one. While it is abundantly clear that Teague does not govern substantive
changes in the criminal law, Bousley, 140 L.Ed.2d at 838, it is an open question whether Teague
applies to non-constitutional rules of criminal procedure. See James S. Liebman and Randy Hertz,
Federal Habeas Corpus Practice and Procedure, § 25.1 n. 18, at 719 (2d ed. 1994) (citing cases
involving question of retroactive application of statutory criminal procedure decision in Gomez v.
United States, 490 U.S. 858 (1989)). Resolving this question, however, is unnecessary in this case(14)
because the rule of nonconstitutional criminal procedure applied in this case was not "new." A new
rule is one that makes an "explicit and substantial break with prior precedent." Allen v. Hardy, 478
U.S. at 258. The exclusionary remedy the panel applied to the statutory violation it found here was
dictated by prior precedent. See Singleton, 1998 WL 350507 at *17-20. As the panel noted, the
Supreme Court and the federal Courts of Appeals have applied this remedy for decades to redress
a wide range of statutory violations in which the government's law-breaking has infected the trial
process.(15) See Golden Door Jewelry Creations, Inc. v. Lloyd's Underwriters Non-Marine Assoc.,
117 F.3d 1328, 1335 n. 2 (11th Cir. 1997) (upholding sanction of excluding testimony of paid fact
witnesses in violation of Florida State Bar Rule 4-3.4(b))(16) A decision applying "settled precedents
to new and different factual situations" is not a new rule "because the later decision has not in fact
altered the rule in any material way." United States v. Johnson, 457 U.S. 537, 549 (1982). Accordingly, both Singleton's substantive holding and the procedural remedy it employed
for violating the substantive criminal rule, must be accorded retroactive effect to cases on direct and
collateral review.
The policy argument that the Singleton decision signals an end to effective plea bargaining in future cases and will open the jailhouse doors to those convicted on the basis of improperly-obtained testimony is as unfounded as it is alarmist. Many, perhaps most plea agreements, are struck on the assembly line, where charge and/or sentence discounts are dependent not on the willingness of the accused to cooperate with law enforcement efforts but on the record of the offender and the circumstances of the crime. These cases are not affected in any way by the Singleton ruling. Most persons convicted and imprisoned on the strength of accomplice testimony procured in technical violation of § 201(c)(2) will not be eligible to raise a Singleton challenge to their convictions. "Apocalyptic predictions" of wide-ranging disarray and upheaval in the courts, United States v. Mazzanatto, 513 U.S. at 209, n.6, lack any empirical support.
Apocalyptic predictions frequently follow decisions that right long-held misperceptions about the proper course of the law. None of these predictions has come to pass. It was incorrectly predicted that the Nardone decision, forbidding wire tapping by government agents, would "necessarily have the effect of enabling the most depraved criminals to further their criminal plans over the telephone, in the secure knowledge that ... their telephone conversations can never be intercepted by officers of the law and revealed in court." 302 U.S. at 385 (Sutherland, J., dissenting).
It was incorrectly predicted that the court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), would decrease the number of confessions, id. at 517 (Harlan, J., dissenting), and that its implementation would weaken law enforcement, increase the number of trials, and decrease the number of guilty pleas. Id. at 541-42 (White, J., dissenting). Instead, law enforcement and prosecutors responded to the changes in the terrain in which they operate. Richard A. Leo, The Impact of Miranda Revisited, 86 J.Crim.L. and Criminology 621 (Spring 1996). Ultimately, the Miranda decision has
exercised a civilizing influence on police interrogation behavior, and in so doing has professionalized police practices; ... transformed the culture and discourse of police detecting; ... increased popular awareness of constitutional rights, and ... inspired police to develop more specialized, more sophisticated and seemingly more effective interrogation techniques with which to elicit incuplatory statements.
Id. at 668.
Affirmance of the panel's interpretation and application of § 201(c)(2) can be expected to have a similar positive influence not only on justice, but on the perception of justice in America.
DATED this ________ day of August, 1998.
HADDON, MORGAN & FOREMAN, P.C.
By______________________________________
Norman R. Mueller
Rachel A. Bellis
150 East 10th Avenue
Denver, Colorado 80203
(303) 831-7364
MacDONALD, HOAGUE & BAYLESS
Timothy K. Ford
Robert S. Mahler
1500 Hoge Building
705 Second Avenue
Seattle, Washington 98104-1745
(206) 622-1604
David M. Porter
Co-Chair, NACDL Amicus Committee
Office of the Federal Defender
Eastern District of California
801 K Street, 10th Floor
Sacramento, California 95814
(916) 498-5700
(Of Counsel)
Attorneys for National Association of Criminal Defense Lawyers
I hereby certify that a copy of the above and foregoing was mailed, first class postage prepaid this ________ day of August, 1998, addressed to:
John V. Wachtel
Klender, Mitchell, Austerman & Zuercher, LLC
1600 Epic Center
301 North Main
Wichita, KS 67202
Jackie N. Williams
United States Attorney
Michael G. Christensen
Assistant United States Attorney
1200 Epic Center
301 North Main
Wichita, KS 67202
Sean Connelly
U.S. Department of Justice
1961 Stout Street #1300
Denver, CO 80294
_______________________________________
1. 1All parties have consented to NACDL's appearance in this matter, and letters of consent have been or will be lodged with the Clerk of the Court pursuant to Fed.R.App.P. 29.
2. £See, e.g., 18 U.S.C. § 3059B, authorizing payment of a reward to any individual who "assists" the Department of Justice in performing its functions under the arrest and commitment statutes; 18 U.S.C. §§ 3071-3077, authorizing rewards to individuals who furnish "information" leading to arrest or conviction of persons engaged in terrorism or espionage; 18 U.S.C. § 3553(e), authorizing sentence below statutory minimum to reflect defendant's "substantial assistance" in the investigation or prosecution of another; 19 U.S.C. § 1619, the "informer award" statute authorizing the Secretary of the Treasury to grant rewards for "original information" concerning violations of the customs or navigation laws that lead to monetary recovery; 26 U.S.C. § 7623, authorizing the Secretary of the Treasury to pay sums necessary for "detecting and bringing to trial and punishment" violators of the tax laws; F.R.Crim.P. 35, authorizing reduction of a defendant's sentence to reflect a defendant's "subsequent, substantive assistance" in the "investigation or prosecution" of another.
3. 3Even agreements authorizing compensation and rewards for information leading to arrest and conviction are not immune from criticism. See Restatement of Contracts, § 553(4) (1932) (an agreement to pay for evidence leading to the arrest and conviction of the criminal may be illegal if, in view of the surrounding circumstances, it is likely to induce false evidence).
4. 4Many judicial decisions approve the admission of trial testimony from accomplices and co-conspirators whose testimony was procured as part of a bargained-for disposition of charges. See, e.g., Hoffa v. United States, 385 U.S. 293, 310-12 (1966) (informant's testimony not constitutionally inadmissible); United States v. Tarantino, 846 F.2d 1384, 1418-19 (D.C. Cir.), (citing cases, refusing to require per se rule excluding testimony obtained through contingent agreements conditioning sentence recommendations on the "value" of testimony or cooperation provided), cert. denied, 488 U.S. 867 (1988). However, these cases have turned on evidentiary or due process considerations only; the statutory and public policy issues resolved by the panel are never addressed. The Supreme Court has yet to fashion specific rules to deal with particular problems generated by cooperation agreements between prosecutors and their witnesses.
5. 5For example, see United States v. Simpson, 927 F.2d 1088, 1089-90 (9th Cir. 1991) (undercover agent enticed defendant into sexual relationship, and during investigation engaged in acts of prostitution, shoplifting and heroin use; these "sleazy investigative tactics," were not necessarily outrageous); United States v. Levasseur, 699 F.Supp. 995, 1008 (D. Mass. 1988), aff'd, 867 F.2d 36 (1st Cir. 1989) (government efforts to bribe defendant's children to obtain information were "shocking" but not outrageous).
6. 6Max D. Stern and David Hoffman, Privileged Informers: The Attorney-Subpoena Problem and a Proposal for Reform, 136 U.Pa. L. Rev. 1783, 1786 (1988). See In Re Grand Jury Subpoenas, 906 F.2d 1485 (10th Cir. 1990); In Re Grand Jury Matter, 906 F.2d 78 (3d Cir.), cert. denied, 498 U.S. 980 (1990); In Re Grand Jury Subpoenas, 803 F.2d 493, 498 (9th Cir. 1986).
7. 7See United States v. Goldberger & Dubin, 935 F.2d 501 (2d Cir. 1991).
8. 8See David Rudovsky, The Right to Counsel Under Attack, 136 U.Pa. L. Rev. 1965, 1967
(1988).
9. 9United States v. Monsanto, 491 U.S. 600, 614 (1989); Gerald B. Lefcourt v. United States,
125 F.3d 79 (2d Cir. 1997), cert. denied, 118 S.Ct. 2341 (1998).
10. 10United States v. Cintolo, 818 F.2d 980 (1st Cir.), cert. denied, 484 U.S. 913 (1987); United
States v. Fayer, 523 F.2d 661 (2d Cir. 1975). See Joel Cohen and Norman Bloch, Can Lawyers
Be Prosecuted for the Advice They Give?, N.Y.L.J., July 23, 1991 at 1, 5; Bruce A. Green,
Zealous Representation Bound: The Intersection of the Ethical Codes in the Criminal Law, 69
N.C. L.Rev. 687, 699-704 (1991).
11. 11See Fred C. Zacharis, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who
Should Regulate the Regulators?: Response to Little, 65 Fordham L.R. 429, 439 n.44 (1996).
12. 12Courts have been quick to condemn the payment of money or other rewards to witnesses for
their testimony in civil cases. Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Association, 865 F.Supp. 1516, 1526 (S.D. Fla. 1994); In re Robinson, 151 A.D. 589,
600 (1912), aff'd, 209 N.Y. 354, 103 N.E. 160 (1913); In re Klein, 372 N.E.2d 376, 379 (1977).
See also The Florida Bar v. Jackson, 490 So.2d 935, 936 (Fla. 1986) (attorney suspended for 18
months); Wagner v. Lehman Bros. Kuhn Loeb Inc., 646 F.Supp. 643 (N.D. Ill. 1986) (attorney
disqualified for promising to remit a percentage of potential recovery in a case to induce witness
to tell the truth). The rules should be equally strong, if not stronger, with respect to ensuring the
integrity of a criminal trial where someone's life or liberty is at stake.
13. 13The availability to many prisoners of relief based on the ruling in this case will be limited by
the procedural defenses available to the government, such as the rules governing trial and
appellate level procedural defaults, the statute of limitations, and the bar against second or
successive motions for collateral relief under 28 U.S.C. § 2255. The existence of these
procedural defenses and the restrictive nature of the exceptions to them makes it unlikely that the
panel's decision would result in wide-scale relief to federal prisoners, despite its retroactivity.
14. 14If the Court chooses to resolve this question, however, amicus would urge that it do so in
favor of full retroactive application of non-constitutional rules of criminal procedure. Any other
rule would violate the cardinal "principle that litigants in similar situations should be treated the
same, a fundamental component of stare decisis and the rule of law generally." James B. Beam
Distilling Company v. Georgia, 501 U.S. 529, 537 (1991) (plurality opinion). See also Harper v.
Virginia Dept. of Taxation, 509 U.S. 86, 95-99 (1993) (applying complete retroactive application
to new rule of federal civil law). Complete retroactive application of non-constitutional rules of
criminal procedure would recognize an appropriate limitation of the Teague doctrine. Concerns
for finality and federalism animate Teague's application to federal habeas corpus review of state
court criminal convictions. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) (the
Teague doctrine embodies "special concerns . . . related to collateral review of state criminal
convictions"). There is, of course, no federalism concern bearing on a federal court's
interpretation of federal statutes. Even the concern for finality underpinning Teague has only
minimal significance to the federal courts in light of the one-year statute of limitations for filing
collateral challenges imposed by the Anti-Terrorism and Effective Death Penalty Act
("AEDPA"). 28 U.S.C. § 2255. Moreover, except in cases involving federal habeas challenges
to state convictions, the Supreme Court has generally disfavored application of a "new rule" to
the individual in whose case the new rule is established, but denying its application to others
similarly situated. See Reynoldsville Casket Co., 524 U.S. at 753-754 (when the Court decides a
case and applies a new legal rule to the parties before it, it and other courts must treat that same
new legal rule as 'retroactive,' applying to all pending cases, whether or not the cases involve
predecision events). Thus, there is strong justification for complete retroactivity of non-constitutional rules of procedure.
15. 15 See, e.g., United States v. Russell, 411 U.S. 423 (1973) (entrapment, a statutory - not
constitutional - violation is remedied by suppression of the resulting evidence); Sabbath v.
United States, 391 U.S. 585 (1968) (violation of federal "knock and announce" statute, 18 U.S.C.
§ 3109, in executing search mandates suppression); Miller v. United States, 357 U.S. 301 (1958)
(violation of 18 U.S.C. § 3109 in executing arrest mandates suppression); Rea v. United States,
350 U.S. 214 (1956) (putting "all constitutional questions to one side," a federal agent who
obtains evidence in violation of Fed. R. Crim. P. 41(a) may not thereafter present this evidence in
court); Nardone v. United States, 308 U.S. 338 (1939) (evidence obtained by wiretap in violation
of § 605 of the Communications Act of 1934 must be excluded); United States v. Marts, 986
F.2d 1216 (8th Cir. 1993) (exclusionary rule applies to clear violation of knock and announce
statute, even if officers' conduct was objectively reasonable); United States v. Rivieccio, 919
F.2d 812 (2d Cir. 1990) (violation of federal immunity statute requires suppresssion of fruits of
violation), cert. denied, 501 U.S. 1230 (1991); United States v. Hammad, 858 F.2d 834 (2d Cir.
1988) (violation of ABA Code of Prof. Resp. DR 7-104(A)(1) which prohibits ex parte
communication with parties known to be represented by counsel requires suppression of resulting
evidence), cert. denied, 498 U.S. 871 (1990); United States v. Chemaly, 741 F.2d 1346 (11th Cir.
1984) (violation of former 31 U.S.C. § 1105 mandates suppression); United States v. Soto-Soto,
598 F.2d 545 (9th Cir. 1979) (violation of 19 U.S.C. § 482 mandates suppression); United States
v. Genser, 582 F.2d 292 (3d Cir. 1978) (violation of 26 U.S.C. § 7602 and 7605(b), i.e., I.R.S.
use of civil summonses for purposes of criminal investigation, mandates suppression).
16. 16Linkletter v. Walker, 381 U.S. 618 (1965), held that the exclusionary rule of Mapp v. Ohio,
367 U.S. 643 (1961), should not apply retroactively. That holding, however, does not govern the
result here. Linkletter's non-retroactivity holding was largely premised on the rationale that the
exclusion of evidence seized in violation of the Fourth Amendment did not affect the "integrity
of the fact-finding process." Linkletter, 381 U.S. at 639. "All that petitioner attacks is the
admissibility of evidence, the reliability and relevancy of which is not questioned . . .." Ibid.
Unlike the exclusion of illegally seized evidence, which actually impairs the truth-seeking
function of the trial by prohibiting the jury from considering relevant (often highly relevant and
entirely damning) evidence, the exclusion of testimony from bribed witnesses has the opposite
effect. 1998 WL 350507 at *20-22. The rationale for not extending the exclusionary rule to
individuals on collateral review set out in Linkletter, does not apply in this context.