Vol. 5, No. 52        As Published in the Advance Sheets on December 28, 1998      

Highlights of this Issue:

Singleton Reversal

• As expected a divided en banc Tenth Circuit has reversed the controversial and provocative Singleton decision, holding that Federal prosecutors do not violate the Federal Anti-Gratuity Statute when they offer witnesses leniency for their own crimes in exchange for testimony against other defendants.  Perhaps the only surprising factor about this decision was the extremely narrow grounds on which it was based - namely that it would be "semantically anomalous" to include the Government within the meaning of the statute's use of the word "whoever."

Prosecutorial Misconduct Issues

• The Gardner decision from a District Court in Oklahoma is an intriguing look at the recently enacted Hyde Amendment - a statute that allows criminal defendants to recover attorneys' fees in cases where the court finds that the prosecutor acted vexatiously, frivolously or in bad faith.
   
• In the Hsia case, Judge Friedman of the D.C. District Court granted a defendant's motion to strike, as surplusage, repeated uses of the defendant's alleged "alias" in the body of her indictment on the grounds that such references were both "irrelevant and prejudicial."
   
• The Navarro and Sanchez-Lima cases from the Ninth Circuit are glaring examples of how the "coddle the prosecutors" philosophy pervades the criminal justice system.  In Navarro the Court held that there are no time limitations on the appointment of State prosecutors as Special Assistant U.S. Attorneys; and in Sanchez-Lima the Court decided to mollify AUSA Daniel Butcher by reissuing an earlier opinion which deleted all uncomplimentary references to him.

Miscellaneous Issues

• The Alvarez-Tautimez case presents an interesting look at the Supreme Court's recent holding in U.S. v. Hyde.  In the context of approving a habeas petition for relief founded on a claim of ineffective assistance of counsel, the Ninth Circuit held that until the district court accepts a guilty  plea, the defendant has the absolute right to withdraw it, for any reason or for no reason.

United States v. Singleton, Docket No. 97-3178 (10th Cir. 01/08/99) (En Banc) (Judge Porfilio)

As expected, the en banc court for the Tenth Circuit has now permanently reversed a highly controversial ruling of a three-judge panel which was reported at U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (Singleton I) and which was first discussed in the June 22, 1998 issue of Punch and Jurists.  In Singleton I, the panel vacated a conviction of Sonya Singleton on the ground that the prosecutor had violated the Federal Anti- Gratuity Statute (18 U.S.C. § 201(c)(2)) when he offered leniency to a co-defendant in exchange for testimony against her.  That statute provides, in pertinent part, that "whoever . . . directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony . . . given or to be given by such person as a witness [at] a trial . . . shall be fined . . . or imprisoned. . . . " (Emphasis added).

At her trial, Singleton moved for suppression of the testimony of her co-defendant/witness on the grounds that he had become a "paid ‘occurrence' witness" whose testimony was both inherently unreliable and precisely the type of evidence that Congress intended to exclude by enacting § 201(c)(2).  She also argued that under the plain meaning of the statute the Government fell within the broad term "whoever" and that promises of leniency constituted the payment of "something of value" to him.  The district court denied Singleton's  motion and, after she was convicted, she appealed to the Tenth Circuit, where the panel held that the testimony of the witness should have been excluded and that the error was not harmless.

Looking back, it is clear that Singleton created panic and hysteria in law enforcement circles; and, as the dissent pointed out, a powerful lobby of prosecutors quickly "attempted to portray it as the death knell for the criminal justice system as we know it."  In that atmosphere of disaster and doom, the en banc Court quickly set aside the panel's ruling, pending a review by the full court of 12 judges.  Oral arguments were heard in November and on January 8, 1999 the en banc court released its decision.

For all the hoopla created by this case, the majority decided to resolve the weighty issues raised in this case by addressing a single, surprisingly narrow issue of semantics, namely the definition of the word "whoever."  The governing issue, as framed by the majority, was "whether section 201(c)(2) applies to the government in the prosecution of criminal offenses."

In response to it own question the majority held that § 201(c)(2) "does not apply to the United States or an Assistant United States Attorney functioning within the official scope of the office" essentially because it would be "patently absurd" to accept the defendant's argument that the word "whoever" as used in § 201(c)(2) includes the Government.  "The word ‘whoever' connotes a being. . . . The United States is an inanimate entity, not a being.  The word ‘whatever' is used commonly to refer to an inanimate object. . . . Therefore, construing ‘whoever' to include the government is semantically anomalous."

Five judges (three dissenting and two concurring) strongly disagreed with that "sui generis" reasoning.  The dissent, for example, wrote: "As a textual and contextual matter, this is wrong. Textually, "whoever" clearly connotes more than a being and in fact denotes inanimate entities.  The Dictionary Act, 1 U.S.C. § 1, definition of "whoever" includes, but is not limited to, corporations, associations, firms, partnerships, societies, and joint stock companies - all inanimate entities.  Contextually, the government concedes that "whoever" in § 201(b) applies to the government and it acknowledges that § 201(c) applies to the government if the government pays an informant money to testify.  It makes absolutely no sense to give "whoever" one meaning in § 201(b) (and in § 201(c) when the inducement offered by the government is money) and to give the same word a completely different meaning in § 201(c) when the inducement offered is leniency or some other promise to improve the informant's position."

The dissenting opinion, written by Judge Kelly, openly recognized that "much of this case has been about policy. . . . [But] this court must perform its constitutional duties and no more.  Ours is not to explore the furthest meanings that the term "whoever" can bear so as to effectuate the policy we think best.  Our duty is to interpret the plain meaning of the statute.  I continue to believe that meaning is clear: § 201(c), as written, applies to prosecutors and criminal defendants alike.  If the balance struck by § 201 is to be reweighed, that reweighing should be done by the policymaking branch of government - the Congress, and not the courts. . . .

"Recently, Congress enacted a statute that explicitly subjects government attorneys, including federal prosecutors, to State laws and rules governing attorneys.  See Omnibus Appropriations Act, Pub.L. No. 105- 277, tit. VIII, § 801, 112 Stat. 2681 (1998) (to be codified at 28 U.S.C. § 530B(a) & (c)) (eff. April 1999); 28 C.F.R. § 77.2(a) (1998).  This statute strongly suggests that the Congress does not view government attorneys as one with the sovereign, beyond regulation.  It is indeed odd that federal prosecutors will soon be expressly subject to State laws and rules regarding professional conduct, yet may continue to ignore the federal prohibition contained in § 201(c)(2)."

For an interesting look at the Singleton case, you may want to view the Public Broadcasting Station's recent show on this case, entitled "Frontline: The Case That Challenged Leniency Deals."  Among other things, this site contains excerpts from the Government's brief and from interviews with defense counsel.

United States v. Gardner, 23 F.Supp.2d 1283 (N.D.Okla. 1998) (Judge Holmes)

In many ways the year 1998 brought into focus both the extraordinary role of the prosecutors in shaping the criminal justice system and the absence of any meaningful curbs on their awesome power.  The instant case is important because it shows that help may be on the way.  It is also the first case we have seen analyzing the provisions of the "Hyde Amendment", a statute that is destined to become a potent weapon when dealing with prosecutorial misconduct.  [In passing, we note that the Hyde Amendment is difficult to find.  It was enacted on November 26, 1997 as Public Law No. 105-119, § 617, 111 Stat. 2440, 2519 (1997); and Judge Holmes made a point of mentioning that "it is found as a statutory note to 18 U.S.C. § 3006A."  After reading this decision and the statute, we understand why some may want this statute relegated to a "difficult-to-find" status.]

Essentially, the Hyde Amendment permits the courts to award "reasonable attorneys fees and other litigation expenses" to a "prevailing party" defendant in a criminal action "where the court finds that the position of the United States [in bringing the criminal charges] was vexatious, frivolous, or in bad faith."  Judge Holmes concluded that Congress' intent in enacting this statute "was to import the Equal Access to Justice Act to the fullest extent possible to the criminal context."  (Id., at 1289)

Judge Holmes acknowledged that "there is sparse legislative history with respect to the Hyde Amendment and as yet no court has rendered an opinion construing its provisions" (id., at 1287); and in fact he observed that the Conference Report on this bill merely stated that the statute "allows the recovery of attorneys' fees in criminal cases where the court finds that the prosecutor acted vexatiously, frivolously or in bad faith."  (Id., at 1288).  However, he placed great weight on the words of the bill's author, Representative Henry Hyde (the same Chairman of the Judiciary Committee who has been so vehemently pursuing impeachment of the President), who explained to his fellow Congressmen:

"The Constitution protects you, but it will not pay your bills. . . . I really wish you had some imagination and could imagine yourself getting arrested, getting indicted, what happens to your name, to your family, and the Government has a case it cannot substantially justify.  They do not need to defend against malice or hardness of heart or anything like that, just substantial justification.  They do not have to win."  (Id.)

In the instant case, the defendant was charged with series of some 21 tax and bankruptcy fraud crimes.  However, the Court itself questioned the validity of those charges, noting at one point that it appeared that the Government had "prosecuted Mr. Gardner for the act of filing bankruptcy as an unlawful evasion of his tax responsibility."  (Id., at 1295). [The IRS has often pretended - contrary to the law - that a person cannot discharge his tax obligations through a bankruptcy filing; and it appears in this case that, when the defendant sought to utilize the bankruptcy laws to discharge his tax obligations, the zealous Government decided to send a message that such an approach, while perfectly legal, was unacceptable.  Thus, by indicting the defendant on criminal charges that it never intended to bring to trial, it sought to scare Gardner away from discharging his tax debts through bankruptcy.]

[Editors' Note: If you wish more information about the dischargeability of tax debts through bankruptcy, we suggest that you visit the following sites on the Internet: http://www.abanet.org/genpractice/compleat/su96armk.html and http://www.alaska.net/~yerblaw/bnk08.htm   and http://www.taxhelponline.com/solve.htm?166,12#S9?166,12 ].

Following his indictment, Gardner filed a series of motions, including motions for discovery and to dismiss the indictments due to prosecutorial vindictiveness.  The Government's response to these motions was revelational.  On the discovery motions, it quickly sought an exemption from its obligations that the IRS case agent provide an expert witness report as required under Rule 16(a)(1)(E).  When that motion was denied, the Government advised the Court that it had no intention of even calling the IRS case agent as a witness at the trial.  At that point the Court dismissed three of the 21 counts with prejudice.  Later, when the Court called for a hearing on the defendant's motion to dismiss the indictment on the grounds of prosecutorial misconduct, the Government caved in and it agreed to dismiss all of the then remaining counts - "without prejudice."

Gardner then sought to recoup $108,332.91 in fees and expenses he incurred in this action under the Hyde Amendment.  The Government strenuously opposed awarding any fees to the defendant principally on two grounds, both of which conspicuously ignored the merits of filing its criminal charges in the first place.  First, it wailed that if the defendant prevailed it would create "a parade of horribles" for the Government.  An unsympathetic Judge Holmes quickly rejected that argument, characterizing the Government's concerns as a "fear" that any award to the defendant in this case would "encourage more Hyde Amendment claims in the future."  He further observed that "the award of any relief under the Hyde Amendment is likely to encourage more Hyde Amendment claims in the future."  (Id., at 1291, n. 9).

Second, the Government argued that the defendant could never be a "prevailing party" since the counts had been dismissed "on the Government's terms" (i.e., without prejudice); and that, in any event, the defendant did not meet one of the jurisdictional requirements of the Hyde Amendment  - namely that he file his lawsuit within 30 days of a "final judgment."  The Government argued that no "final judgment" had occurred in this case since it could always refile its charges at a later date.  The Court rejected that argument principally because the Government "had made an express representation that Mr. Gardner will not be prosecuted again for the dismissed charges."  (Id., at 1292).  The Court concluded:

"[U]nder the facts present here, both the dismissals with and without prejudice are final judgments under the Hyde Amendment.  If the Court were to accept the Government's position that a dismissal without prejudice is never a ‘final judgment' under the Hyde Amendment, then Mr. Gardner's only alternative would be to wait to request attorneys' fees until the statute of limitations on each of the charges had expired.  This result is inconsistent with both logic and the purpose behind the statute, which is to deter vexatious governmental conduct."  (Id.).  The Hyde Amendment is a statute that all defense attorneys should study - and the instant case is a great starting point for such a study.  We should also mention that several prominent defense attorneys have told us that the Government has started demanding that defendants must waive their rights under the Hyde Amendment as a condition of plea agreement!

United States v. Hsia, 24 F.Supp.2d 14 (D.D.C. 1998) (Judge Friedman)

This decision is one of three related decisions by Judge Friedman addressing a series of pretrial motions filed in a high-profile illegal campaign contribution case.  Because there were allegations that the defendant carried on some of her illegal fund raising activities at the White House itself, the case was a prosecutor's dream come true.  While illegal campaign donations are not the staples of most criminal defense attorneys' practice, out of the slew of pretrial motions that were filed in this case, one stands out as an example of a common - but improper - prosecutorial tactic, and it shows that there are effective remedies available if counsel is alert.

In this case the defendant, whose name is Maria Hsia, moved to strike, as surplusage, repeated references to her in the indictment as "a/k/a Hsia Ling."  The use of aliases in indictments is a standard and usually unchallenged practice that is designed to convince the jury that there is something sinister about anyone who masquerades around using an alias or even a nickname.

Judge Friedman noted that "Hsia Ling" was the given name of Ms. Hsia, who was born in China; and thus while that name was not an alias in the traditional sense, it was "somewhat analogous" to an alias especially where the foreign name was preceded by "A/K/A."  He also noted that, under Rule 7(d) of the Fed.R.Crim.P., a court is authorized to strike surplusage only if it is "irrelevant and prejudicial."

After determining that there were no allegations in the 27-page indictment that referred to Ms. Hsia by that name, Judge Friedman ruled that the references to "Hsia Ling" were unnecessary and prejudicial and he ordered them stricken.  He concluded: "The use of aliases in indictments is disfavored. . . , and aliases should only be retained when ‘the Government intends to introduce evidence of an alias and the use of that alias is necessary to identify the defendant in connection with the acts charged . . . ."  (Id., at 25) (Internal citations omitted).

United States v. Navarro, 160 F.3d 1254 (9th Cir. 1998) (Judge Fernandez)

When reading cases from the Ninth Circuit, it is always important to note the makeup of the panel.  To a greater degree than any other Circuit, the outcome of criminal cases in the Ninth Circuit depends on whether the panel comes from the right wing of the court or the left.  This case is an appeal from a decision first noted in the June 9, 1997 issue of Punch and Jurists, and which was reported at 959 F.Supp. 1273 and 972 F.Supp, 1296.  As soon as we observed that this panel was part of the Court's right wing, we knew that District Judge Karlton's earlier decisions had been reversed.

The facts were straightforward.  The defendant Navarro admitted that he had engaged in the possession of illegal drugs in the County of Sacramento.  The local district attorney, one Dale E. Kitching, was involved in the investigation and arrest of Navarro.  Kitching, however, wore two hats.  He had also worked for many years as a Special Assistant United States Attorney.  That gave Kitching the virtual power to select the defendant's sentence just by deciding whether the defendant would be prosecuted under State law or Federal law.  (It is noteworthy that, just a week ago, Chief Justice Rehnquist warned that the federalization of all local crimes "threatens to change entirely the nature of our federal system."  See the Quote of the Week below).

In any event, Judge Karlton concluded that the prosecution was incurably defective because it violated the provisions of the Intergovernmental Personnel Act, 5 U.S.C. § 3372(a)(2) (the "IPA").  The IPA limits, to a maximum of four years, the period of time that a state employee may be appointed by the head of a Federal agency for such special assignments.  Ah, said this branch of the Ninth Circuit, but there's another, older statute, namely 28 U.S.C. § 543(a), which trumps the IPA.  Section 543(a) permits the Attorney General to "appoint attorneys to assist United States attorneys when the public interest so requires"; and there is no time limit in the language of § 543(a).  The Court never did address the issue of whether the "public interest" requires (or is served by permitting) a state prosecutor to decide whether to prosecute the defendant under the law that imposes the most severe penalty.  After all, its the conviction that counts - not how you get there.

United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998) (Judge Goodwin)

We conclude our round-up of notable year-end cases dealing with prosecutorial misconduct by including the instant case.  At its best, it is a revealing reminder of the fawning and solicitous deference too often to paid to the prosecutors; and, at its worst, it is a sad example of how even the courts have become afraid to utter any public criticism of the thin-skinned prosecutors.

In May, 1996 the U.S. Border Patrol rounded up a group of some 22 aliens near the Mexican border.  One of those aliens was the defendant, Gabriel Sanchez-Lima, who was charged with assaulting two of the Border Patrol agents (in violation of 18 U.S.C. § 111) allegedly while the agents were attempting to arrest him.  The defendant denied the Government's assault charges and presented evidence that the agents had lied on the stand.  In fact, Sanchez-Lima argued, at the beginning of the incident one of the agents had pistol-whipped him and that defense was supported by the Grand Jury testimony of several aliens that they heard Sanchez-Lima screaming while he was being beaten by the agents.

The prosecutor, one Daniel Butcher, did his best to keep evidence of the validity of the defendant's defense from defense counsel.  He advised defense counsel that the Government had interviewed the witnesses, and that there was no exculpatory information regarding the assault.  He also advised defense counsel that all the witnesses were in the process of being deported, so defense counsel could not interview them.  In fact, Mr. Butcher kept the witnesses around for a few days so he could examine them before the Grand Jury.  After they were scooted back to Mexico, the defense located those witnesses and attempted to introduce the videotaped testimony of the eyewitnesses to help prove his defense.  Mr. Butcher alertly objected and the district court (Judge Schwartz) refused to allow such evidence to be introduced, concluding that it did not qualify for admission under the "catch-all" hearsay exception of Rule 807 of the Fed.R.Evid..

After the defendant was convicted of this "assault", he appealed, arguing, inter alia,  that the court's refusal to allow him to use the videotaped depositions denied him his Sixth Amendment right to present a defense.  The Ninth Circuit agreed and, in a slip opinion dated August 19, 1998, it found a number of trial and prosecutorial errors and reversed Sanchez-Lima's conviction.

The Ninth Circuit's initial decision obviously galled Mr. Butcher, apparently mostly because his name was prominently listed several times in the court's decision.  So, he petitioned for a rehearing.  And guess what happened?  On December 11, 1998, the Ninth Circuit issued an amended decision - the official, final version - the sole purpose of which was to delete "Mr. Butcher, the prosecutor" wherever that phrase appeared in the original decision, and to replace it with "an Assistant United States Attorney."

Times haven't changed much since Hans Christian Anderson wrote "The Emperor's New Clothes."  Truth - at least for the Government - still depends on whom we are talking about; and it seems that America - in an effort to protect the prosecutors from any criticism (even when they violate the law) - has borrowed heavily from the culture of India by creating its own breed of sacred cows.

United States v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1998) (Judge Tashima)

In 1997, the Supreme Court reversed a long line of Ninth Circuit precedents holding, in U.S. v. Hyde, 520 U.S. 670 (1997), that a criminal defendant does not have an absolute right to withdraw a guilty plea for any reason until the district court accepts both the guilty plea and the plea agreement.  Rather, the Supreme Court ruled, once the district court has accepted the plea, but has deferred any decision on whether to accept the plea agreement, the defendant may not withdraw that plea absent a showing of a "fair and just reason" as required by Rule 32(e) of the Fed.R.Crim.P.  Most commentators have concluded that the Supreme Court was also stating that once a defendant has entered a guilty plea it may not be withdrawn without a fair and just reason, whether or not the district court accepted the guilty plea.

In this case, involving a claim of ineffective assistance of counsel, the Ninth Circuit firmly held that Hyde did not go that far.  In its opinion, the "fair and just reason" requirements of Rule 32(e) do not apply until after the guilty plea has been accepted by the district court (id., at 576, n.5); which means that, at least in the Ninth Circuit, once a defendant has entered a guilty plea, he has the absolute right to withdraw that plea "for any reason or for no reason" right up to the moment before the district court accepts the plea.

That interpretation of the law led to a ruling in the instant case that defense counsel rendered ineffective assistance of counsel to his client.  Here, the defendant and a co-defendant were arrested on drug charges.  The district court appointed Richard B. Bacal to represent the defendant.  (At the time of his appointment Bacal had been a practicing attorney for only 17 months. (Id., at 575)).  Motions were filed to suppress evidence of the seized drugs on the grounds that the Border Patrol had conducted an illegal search.  However, before any decision on those motions, Bacal advised the defendant to withdraw his suppression motion and to plead guilty.  The defendant accepted that advise and pled guilty before a Magistrate.  Fortunately (for the defendant) the district court (Judge Roll) did not immediately accept the guilty plea.

Shortly thereafter the co-defendant's motion for suppression was granted.  When Bacal learned that he told his client that he had little chance of successfully withdrawing his plea and reinstating his suppression motion.  Ultimately, the defendant filed a § 2255 motion to set aside his sentence on the grounds of ineffective assistance of counsel.  When Judge Roll denied that motion, an appeal was filed with the Ninth Circuit.  That Court noted that, at the time he advised his client not to seek to withdraw his plea, Bacal had  "conducted no research" on the issue and "made no attempt to withdraw the plea."  (Id., at 576).  Based on those facts, it concluded that "Bacal's advice and his failure to act were clearly deficient because [the defendant] had an absolute right to withdraw his plea before it was accepted by the district court." (Id.).  Thus it reversed the district court's denial of relief on the § 2255 motion.

QUOTE OF THE WEEK  -  Some interesting observations by Chief Justice Rehnquist on the federalization of every sensational and heinous State crime.

"The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the Judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system. The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an adequate job in these particular areas and, ultimately, whether we want most of our legal relationships decided at the national rather than local level. Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be. State courts do, can, and should handle such problems. While there certainly are areas in criminal law in which the federal government must act, the vast majority of localized criminal cases should be decided in the state courts which are equipped for such matters. This principle was enunciated by Abraham Lincoln in the 19th century, and Dwight Eisenhower in the 20th twentieth century -- matters that can be handled adequately by the states should be left to them; matters that cannot be so handled should be undertaken by the federal government.

"Congress should commit itself to conserving the federal courts as a distinctive judicial forum of limited jurisdiction in our system of federalism. Civil and criminal jurisdiction should be assigned to the federal courts only to further clearly defined and justified national interests, leaving to the state courts the responsibility for adjudicating all other matters." In accordance with this principle, the Long-Range Plan recommends that federal courts should only have criminal jurisdiction in five types of cases: (1) offenses against the federal government or its inherent interests; (2) criminal activity with substantial multi-state or international aspects; (3)criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise; (4) serious high level or widespread state or local government corruption; and (5) criminal cases raising highly sensitive local issues." Justice Rehnquist, 1998 Year End Report on the Federal Judiciary. (Emphasis added).

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

Cases in the Federal Reporter:              This week:     35       Year to date:         2216
Cases in the Federal Supplement:         This week:     24       Year to date:         1285

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