Vol. 5, No. 25       As Published in the Advance Sheets on June 22, 1998         Copyright © 1998

Highlights of this Issue:

Leading Case  

• The Singleton case is a momentous decision that crystalizes an important, but often ignored, debate about the Government's use of bartered testimony to achieve its goals. In this case, a unanimous panel of the Tenth Circuit held that the testimony of a cooperating witness should have been suppressed because promises of leniency made to him, in exchange for his testimony against the defendant, violated the anti-gratuity provisions of 18 U.S.C. § 201(c)(2).  The Court held that, under § 201(c)(2), "promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony."

  
  The Court did somewhat soften the impact of its decision by also concluding that "The government may still make deals with accomplices for their assistance other than testimony, and it may still put accomplices on the stand; it simply may not attach any promise, offer, or gift to their testimony."  While it is far to early to assess the impact of this decision on future testimony by cooperating witness, we predict that the decision will generate enormous debate in the courts over the coming years. 
   

U.S.S.G. and Sentencing Issues  

• The Carpenter case from the Sixth Circuit holds that a defendant may not be denied a sentence reduction under the Guidelines' "safety valve" provisions simply because he refused to testify against his co-conspirators.

• The Emerson and Wilke cases each raise some of those surreal sentencing departure issues from which legends are created.

Miscellaneous Issues
 

• The Midgley and Anderson cases examine some current issues dealing with the statutes of limitation; and Anderson shows how easy it is to apply subjective criteria to obviate the espoused purposes of those statutes of repose.

 

• The McKinnon case is an interesting case in which the court orders an evidentiary hearing on the defendant's claim that there may have been collusion among defense counsel which led one attorney to violate his ethical responsibilities to his client.

United States v. Singleton, 144 F.3d 1343 (7th Cir. 1998) (Judge Kelly)

On July 3, 1998, a unanimous panel of the Tenth Circuit issued a momentous decision with potential far- reaching consequences; and it is likely to set off a clarion call for many appeals all over the country, as happened in U.S. v. $405,089.23, 33 F.3d 1210 (9th Cir. 1994).  In large part the Singleton decision repeats a theme that we expounded upon last week when we discussed the case entitled U.S. v. Garcia Abrego, 141 F.3d 142 (5th Cir. 1998).  The defendants in that case argued (to no avail) that "due process, fundamental fairness and an accused's meaningful right to some parity in the compulsory process of witnesses will [not] tolerate a system that permits only one side of the adversary process to utilize . . . incentives to entice witnesses." (Garcia Abrego, id., at 152).

In the instant case, the Court emphatically stated that "The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money"; and, with carefully measured words, it continued: "If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so."

Section 201(c)(2) provides in relevant part:  

"Whoever . . . directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court . . . authorized by the laws of the United States to hear evidence or take testimony . . . shall be fined under this title or imprisoned for not more than two years, or both."

The Court emphasized that its decision rested solely on the language of the statute in question and not the Constitution.  The Court then concluded that "§ 201(c)(2) "prohibits even the rewarding of testimony after it is given: it prohibits anything of value to be given, offered or promised 'because of' testimony given" and it "applies to federal prosecutors who make promises for or because of testimony on behalf of the government."  The Court further emphasized that "under § 201)c)(2) the promise need not be intended to affect, and need not actually affect, the testimony in any way.  Promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony."

Perhaps anticipating the Government's furor about any incursion into its long-standing policy of rewarding witnesses for their testimony, the Court stated: "Our reading of the statutes will not impair the substantial assistance provisions, because a defendant can substantially assist an investigation or prosecution in myriad ways others than by testifying.  Nor will our holding drastically alter the government's present practices.  The government may still make deals with accomplices for their assistance other than testimony, and it may still put accomplices on the stand; it simply may not attach any promise, offer, or gift to their testimony."

The depth of the Government's concern can best be judged by the detail to which the Court went in responding to the numerous, and often desperate, arguments that the Government raised.  For example, the Government argued that prosecutors do not fall within the statutory class of "whoever", as used in § 201(c)(2).  The Court quickly rejected that argument.  While it acknowledged that "the Supreme Court has recognized a limited canon of construction which provides that statutes do not apply to the government or affect governmental rights unless the text expressly includes the government," it held that the canon "applies only to two narrow classes of cases" - neither of which was applicable here - and that, in any event, a well-recognized exception removed § 201(c)(2) from the class of statutes referred to by the Supreme Court: namely, "that the government is subject to a statute, even if it infringes upon a recognized government prerogative, if the statute's purpose to prevent fraud, injury, or wrong."

The Court continued: "We note that if the assistant United States attorney were not covered by the statutory term ‘whoever', then the statute would not prohibit her even from bribing a witness in exchange for favorable testimony, which the government concedes the statute prohibits."

Next, the Court rejected the Government's contention that the promises made by the prosecutor did not fall within the statutory term "anything of value."  To support this argument, the Government principally argued that all the cases involving § 201(c) have involved monetary payments.  The Court firmly held that the courts have "uniformly rejected arguments that 'anything of value' should be restricted to things of monetary, commercial, objective, actual, or tangible value."  The Court also emphatically stated that  "the obvious purpose of the government's promised action was to reduce his jail time, and it is difficult to imagine anything more valuable than personal physical freedom. . . . Although the information promised by the government would certainly not guarantee Mr. Douglas's release, it was an invaluable step toward that end. . . .  The information and intervention promised by the government for Mr. Douglas's legal advantage was of great value. . . .  In the case of the promise not to prosecute, the value was even greater: besides guaranteed physical freedom he was guaranteed freedom from the burden of defending himself and from the stigma of prosecution and conviction as well."

Finally, the Government asserted "without argument or authority, that agreements for testimony between the government and a witness are not contemplated by this statute."  The Court held that the statute "makes no exception for the government's conduct"; and it rejected the Government's "vague" argument that prosecutors should be exempted from the statute based upon an expanded reading of the so-called "law enforcement justification."

The Court reasoned that "the government's conduct does not fall within this justification for at least two reasons:  it was not undertaken by a peace officer or one acting in that capacity, and it was not required by an exigent need to make an arrest or prevent an escape or other crime. . . . The law enforcement justification exists to allow field officers a practically necessary means  to detect and prevent crime, and to apprehend suspects. . .  The government's violation of § 201(c)(2), however, is entirely unrelated to detecting crime. . . .  The government's statutory violation unreasonably exceeds this purpose, and is the more egregious because the intended product of the violation is testimony presented in court.  We conclude that the government's violation of § 201(c)(2) was neither 'reasonable' nor an 'enforcement action'."

Clearly this is an extremely important decision.  However, we also caution that it is far too early to predict what impact, if any, this decision will have on the criminal justice system.  On one hand the decision may well augur some judicial dissatisfaction with the inherent unfairness of a justice system that permits the prosecutors - but not the defendants - to offer immunity in exchange for testimony.  (For more on that topic, see the Quote of the Week below).  On the other hand, there is no certainty that this case will have any lasting impact.  One reason for this is that there is a potential self-destruct element in the Singleton case.  As noted above, the Court stated that: "The government may still make deals with accomplices for their assistance other than testimony, and it may still put accomplices on the stand; it simply may not attach any promise, offer, or gift to their testimony." (Emphasis added).  Thus, the Government can still make all the promises it wants to get the accomplice to become a turncoat - it just can't tie those promises to any specific testimony.

The reality of course is that this will be very difficult concept to police.  Normally, the accomplice won't even be sentenced until after the defendant has been convicted.  Thus, how will the defendant know whether the properly coached accomplice is telling the truth when he swears that he received no rewards for his testimony?  The likelihood is that the truth of what was promised will only surface if the snitch feels he was stabbed in the back after testifying - and we know that the courts are reluctant to interfere with the prosecutors' absolute power to make or withhold § 5K1 motions - even if the snitch can prove bad faith.  ("The simple, unvarnished fact remains that, without a government motion, a sentencing court cannot [reduce a sentence] under U.S.S.G. § 5K1.1, despite meanspiritedness, or even arbitrariness, on the government's part."  United States v. Romolo, 937 F.2d 20, 24 (1st Cir. 1991)).

In addition, the Government may feel that it can "persuade" the Tenth Circuit to withdraw its published opinion and replace it with an "unpublished disposition" (so it can't be cited in other appeals), as happened in the case of U.S. v. Solorio, 37 F.3d 454 (9th Cir. 1994) - a distressing maneuver that was also discussed in last week's issue of Punch and Jurists.  [The Ninth Circuit's decision in that case, at least in its initial version, was a tough, no-holds barred attack on the Government's use of "perverse incentives" to persuade accomplices to provide evidence.  Obviously, that decision offended someone because, without explanation, the original decision was pulled a few months later and replaced with an unpublished decision that is astonishingly and disturbingly different.  The revised, unpublished decision is so watered- down that one has difficulty believing it is the same case and the same panel of judges.  It contains virtually none of the original harsh words of condemnation and embarrassing tales about the Government's use of "perverse incentives" to obtain testimony from all-too-willing accomplices.  For example, one of the classic lines deleted from the cleansed version of Solorio II was the enthusiastic response of a snitch when he was approached by the Government and asked to set another snare for the defendant.  He told his handler: "We'll see if this goes through, son of a bitch, I need some cash.  I practically don't have tires left, son of a bitch."  United States v. Solorio, 37 F.3d 454, 456 (9th Cir. 1994).]

The Solorio saga raises the disquieting possibility that the same ignominious fate may befall the Singleton decision.  And of course, if all else fails, the DOJ may feel that it is easier to persuade a pliant Congress to amend 18 U.S.C. § 201(c) to exempt prosecutors from its seemingly broad reach.  In sum, we think that it will be a while before we know whether Singleton is destined to become a bold new approach in criminal law - or merely a banished aberration.  Two things are certain.  First, Singleton is a long-overdue judicial discussion of a complaint often voiced by many defense attorneys - that the criminal arena is far too heavily tilted in favor of the Government.  Second, the use of 18 U.S.C. 201(c)(2) is this case proves that defense counsel should never take things for granted.  Even though there is normally a slim possibility that a suppression motion of the type used in this case will succeed, its use in this case helped to crystalize an extremely important argument.

United States v. Carpenter, 142 F.3d 333 (6th Cir. 1998) (Judge Norris)

The question presented in this case was whether a defendant's refusal to testify at criminal proceedings involving co-conspirators precluded him from receiving the benefit of a "safety valve" sentence reduction under 18 U.S.S.G. § 3553(f)(5) and U.S.S.G. § 5C1.2(5).  In this issue of first impression in the Sixth Circuit, the Court precluded it did not.

The safety valve law requires the district court to ignore the mandatory minimum sentence otherwise required for certain drug offenses if the defendant meets five criteria, including one which requires the defendant must "truthfully provide to the Government all information and evidence that the defendant has concerning the offense or offenses that were part of the same course of conduct or common scheme or plan." (Emphasis added).  That law was enacted by Congress to address the inequity in the Guidelines which made it more difficult for less culpable defendants to receive downward departures because they had less information to give the Government and therefore less opportunity to bargain for a "substantial assistance" downward departure under U.S.S.G. § 5K1.1.

In the instant case, the defendant pled guilty to participating in a marijuana distribution conspiracy; but in doing so he antagonized the Government in two ways - either of which, in the eyes of many, would automatically preclude him from the benefits of a safety valve sentence reduction.  First, after originally agreeing, on one occasion, to wear a wire in an attempt to assist the DEA in its investigation, he decided that he could not "in good conscience" continue to cooperate against his co-conspirators.  Then, when he signed his plea agreement, he stipulated that, if he was called upon to testify before a grand jury or at trial, "concerning the offense for which he pled guilty and offenses that were part of the same course of conduct or of a common scheme or plan" he would refuse to testify.

Thus, the issue presented to the court was whether his refusal to testify meant that he had not provided the Government with "all information and evidence" as required by 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(5).  The answer to that question meant the difference between a mandatory sentence of 120 months or a safety valve sentence of between 46 to 57 months.  The district court (Judge Jordon) felt that he was precluded, as a matter of law, from granting a safety valve sentence reduction and sentenced the defendant to 10 years in prison.  The Sixth Circuit disagreed; and reversed the lower court's decision.

The Government did not contend that it had not received from the defendant a truthful account of all information that he had: consistent with its ever-expanding view of the law, it simply contended that a defendant must also provide testimony to grand and petit juries.  The Court rejected that argument as "contradicted by the clear language of the statute. . . . Given the phrase ‘to the Government,' it is our view  that a common-sense reading of the statute leads to the conclusion that evidence is limited to those things in the possession of the defendant prior to his sentencing, excluding testimony, that are of potential evidentiary use to the Government."  (Id., at 336).

United States v. Emerson, 995 F.Supp. 941 (C.D.Ill. 1998) (Judge Mills)

Not surprisingly, Judge Mills denied a downward departure in this case based on the defendant's age (unspecified), his post conviction rehabilitation efforts, and his physical condition (sleep apnea); but the case is noted principally because, in justification of his decision, Judge Mills cited one of the classic Guidelines cases of all times - U.S. v. Goff, 6 F.3d 363 (6th Cir. 1993).  In Goff, the defendant was a wheel-chair bound quadriplegic who was convicted of a drug charge and a related gun possession charge.  The latter crime made him eligible for a ten year mandatory minimum term of imprisonment.  The sentencing judge, feeling some compassion for Goff's physical condition, sentenced him to five years in a "jail-type" institution and five years of home confinement.  The U.S. Department of Justice was outraged by this show of compassion and it immediately appealed the sentence.  It demanded 10 years in a regular prison - no matter what Goff's condition.  Unfortunately for Denny Goff, the Justice Department prevailed on appeal.  He was ordered to spend the next ten years of his life in a regular prison - as a quadriplegic and in his wheelchair.  Ah, the wonders of justice by the numbers!

United States v. Wilke, 995 F.Supp. 828 (N.D.Ill. 1998) (Judge Bucklo)

In this case, the defendant was convicted of child pornography and his Guideline sentencing range called for a minimum sentence of 21 months incarceration.  He moved for a downward departure based on his particular susceptibility to abuse in prison.  After an evidentiary hearing, the Court concluded that such a departure was warranted based on a combination of mitigating factors that took the case out of the Guidelines' heartland.

The Court noted that the defendant was a homosexual, whose demeanor was both "passive and meek", and it was likely that he would be subjected to additional punishment while in prison both because of his sexual orientation and the nature of his crime.  In one of those classic "ignore-the reality" statements, the Government flatly claimed that "sexual assault does not occur in U.S. prisons."  (Id., at 829).  It's primary evidence was the testimony of a probation officer who testified that none of his "clients" had ever told him that they had been assaulted and therefore he "did not believe it happened."  Unfortunately for the Government, another witness who had hands-on experience with prison operations, the chief psychologist at FCI Butner in North Carolina testified that sexual assault in U.S. prisons was indeed a problem, despite a Government exhibit which stated that in the entire U.S. penal system it had found only six cases of sexual assault in 1996.

The Court held that "particular vulnerability to physical abuse is an established basis for departing from the sentencing range set by the Sentencing Guidelines."  (Id., at 830).  However, the Court also cited the defendant's exceptional community and charitable activities as an additional basis for its downward departure; and held that if either factor was not sufficient, in itself to justify the departure, the "unique combination" of those factors were sufficient to take the case outside the Guidelines heartland.

United States v. Midgley, 142 F.3d 174 (3rd Cir. 1998) (Judge Roth)
United States v. Anderson, 995 F.Supp. 944 (D.D.Ill. 1998) (Judge Mills)

Both of these cases deal with the statutes of limitation - and, even though both cases relied on the same line of Supreme Court decisions, they show how bits and pieces of the same decisions can be pieced together to weave dramatically different outcomes.  In Midgley, the defendant was charged, in 1991, with an assortment of drug and gun crimes.  He entered into a plea agreement under which he pled guilty to a single count of using a gun during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); and the Government, in exchange, agreed to dismiss the remaining counts.  The defendant was sentenced to five years in prison.  In 1995, the Supreme Court issued its landmark ruling in Bailey v. U.S., 516 U.S. 137 (1995), which required proof of some active use of the gun to support a conviction under § 924(c).  Based on Bailey, the defendant moved to vacate his conviction; and the district court (Judge Kosik) granted that motion.  Even though the defendant had already served most of his original sentence, the Government still moved to reinstate the dismissed counts of the original indictment so it could assure that the defendant would be denied the benefits of his appeal.  Judge Kosik denied that motion on the grounds that the statute of limitations on the original counts had run.

The Government appealed, stubbornly arguing that (a) the district court could simply vacate its order dismissing the original indictment, at which point "the indictment becomes pending as though it had never been dismissed" (id., at 177); and (b) the defendant, by successfully moving to vacate his guilty plea conviction, had "revoked his acceptance" of the plea agreement and the Government should therefore be free to revoke its part of the bargain.

The Third Circuit rejected both contentions as "inherently unsound."  Citing Toussie v. U.S., 397 U.S. 112 (1970), the Court emphasized that statutes of limitation are "designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time."  (Id.).  It thus concluded that "because any statute of limitations incorporates an ‘irrebuttable presumption' that, beyond the period of limitation, ‘a defendant's right to a fair trial would be prejudiced" (id.), the applicable statute of limitations (18 U.S.C. § 3282) applied to the counts dismissed pursuant the plea agreement; and that the statute had not "tolled" because the defendant had successfully appealed his conviction.  It observed that "equitable tolling" is a doctrine that the courts should only use "sparingly" and will not toll a statute because of "what is at best a garden variety claim of excusable neglect."  (Id.).

In Anderson, the defendant was charged with fraudulently obtaining funds from a bank; and she moved to dismiss the indictment on the grounds that the charges were barred by the ten-year statute of limitations governing bank fraud (18 U.S.C. § 3293).  The indictment was dated June 18, 1997, and the money was actually borrowed from the bank more than ten years earlier.  Citing the Toussie decision, she argued that the statute of limitations "begins to run when the crime is complete."

The Government, however, argued that the defendant's crime had not been "completed" by June 18, 1986, because she had engaged in three separate "executions" of her scheme that fell within the applicable statute of limitations period.  In late June and July of 1987 she transferred some of the fraudulently obtained funds from her bank and brokerage accounts where the fraudulently obtained funds had originally been placed to a brokerage account in the name of a corporation she had established; and then in August she directed the brokerage firm to pay some credit card bills with those funds.

Relying principally on the Seventh Circuit's holding in U.S. v. Longfellow, 43 F.3d 318 (7th Cir. 1994), Judge Mills agreed that those subsequent transactions constituted "executions" that brought the entire scheme within the statute of limitations.  While the Longfellow court recognized "the difficulty in defining "executions' ", it did suggest some subjective criteria that would enable the courts to craft a solution that would stretch out the statute of limitations periods when they felt that was an appropriate solution; and the one actually cited by Judge Mills was that the bank fraud statute (18 U.S.C. § 1344) "was intended to be construed broadly."  Armed with the subjective vagaries of that philosophy, Judge Mills had no difficulty concluding that, notwithstanding Toussie's message that at some point stale charges create an irrebuttable presumption of prejudice, the three alleged acts that occurred in late June and in July and August of 1987 were "sufficiently independent from the initial fraudulent acquisition of bank funds to bring the charged acts within the statute of limitations."  (Id., at 948).

United States v. McKinnon, 995 F.Supp. 1404 (M.D.Fla. 1998) (Judge Kovachevich)

This is a case that simmers with intrigue.  Essentially, over the strong objections of the Government, Judge Kovachevich ordered an evidentiary hearing to determine whether the defendant had been denied effective assistance of counsel due to defense counsel's "inordinate" concern for the welfare of the co- defendants to the detriment of the defendant herself.

The defendant was charged in 1993 with a conspiracy to distribute cocaine.  She was offered a plea agreement, but she was advised by counsel not to accept it because she would have been obligated to testify against her co-defendants.  Thus she went to trial, where her counsel also advised her not to take the stand in her own defense.  She was found guilty and was sentenced to life imprisonment.  In 1997, she filed a § 2255 motion to vacate her conviction, principally on the grounds that her rights to a fair trial had been compromised because her counsel (a) had wrongfully advised her not to take the stand in her own defense, and (b) had failed to convey to her the true terms of a plea offer from the Government that would have resulted in a seven year term of imprisonment.  Suggesting some type of a nefarious cabal among the various defense counsel, she argued that her counsel's dereliction of his duties towards her was motivated by "an inordinate concern for the outcome of the case and the fate of the other co- defendants."

The factor that made this case unusual was that the defendant was able to support her claims by presenting a letter, written by her trail counsel nearly four years after the original trial, in which he acknowledged, inter alia, that he had been "overly concerned about the effect of [the defendant's] testimony in the other defendants" and that "there was no tactical advantage to be gained" by her refusal to testify."

The Court found that the defendant's allegations "carry some serious ethical implications, if true" and if proven "will inevitably result in a recommendation that the Florida Bar investigate the circumstances of the representation provided to the Defendant and possibly other counsel involved."  Because the "admissions" in the defense counsel's letter were "too vague to be dispositive", the Court ordered an evidentiary hearing on March 1, 1998, which was held.  We have been advised by the defendant's new counsel that no decision has yet been issued in this case; but we will follow it with interest.

QUOTE OF THE WEEK  - When enough is enough!  

"[R]ecognized as is the role of informer in the enforcement of criminal laws, there comes a time when enough is more than enough -- it is just too much.  When that occurs, the law must condemn it as offensive whether the method used is refined or crude, subtle or spectacular."  Williamson v. United States, 311 F.2d 441, 445 (5th Cir. 1962)  (Brown, J., concurring).

[Editor's Note: Due to a shipping mishap, the Court of Appeals decisions which are reviewed in this week's issue are from Vol. 26 of the Federal Reporter, whereas the District Court cases which are reviewed are from Vol. 25 of the Federal Supplement.  We will cover the Court of Appeals decisions from Vol. 25 of the Federal Reporter in next week's issue.]

Scorecard of published criminal cases reviewed by our staff this year:

Cases in the Federal Reporter:              This week:     34       Year to date:         908
Cases in the Federal Supplement:         This week:     21       Year to date:         547