REGULARS

YES - Ed Swanson
Ed Swanson practices criminal defense and civil litigation in San Francisco at Swanson & McNamara LLP. He is co-chair of the federal practice committee of the California Attorneys for Criminal Justice and previously worked for several years as an assistant federal public defender in San Francisco.

'Buying' testimony is a dangerous practice that might tempt cooperating witnesses to shade the truth

by Ed Swanson

On July 1 of this year, three judges of the Tenth Circuit held that federal bribery laws prohibit federal prosecutors from promising a witness leniency in exchange for testifying at a criminal trial. That decision, United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), created an uproar. The panel was castigated in Congress and ridiculed in editorials. The decision was called the product of "a court gone wild" and a "comedy of errors," and one district court found the opinion "amazingly unsound, not to mention nonsensical." United States v. Eisenhardt, 10 F.Supp.2d 521 (D.Md. 1998). The Tenth Circuit quickly vacated the opinion on its own motion and ordered a rehearing en banc. Congress began to consider legislation to rewrite the bribery statute to explicitly exclude cooperation deals in federal courts from the statute's ambit.

Two important points have been obscured by this furious backlash against the Singleton decision. First, the Tenth Circuit panel's decision was by no means irrational; rather, it raised cogent legal arguments in support of its conclusion that the bribery law as it now stands does not permit prosecutors to offer leniency as a reward for testimony. Second, and more important, the opinion in Singleton highlighted a very troublesome development in federal prosecutions: the growing dependence of federal prosecutors on informant testimony and the dire implications that that dependence has for our system of justice.

Turning first to the legal argument, the panel in Singleton noted that the bribery statute, 18. U.S.C. §201(c)(2), on its face plainly applies to prosecutors offering benefits in exchange for testimony. The statute reads: "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 . . . shall be fined under this title or imprisoned for not more than two years, or both."

In order to except prosecutors from 201(c)(2)'s scope, some district courts have held that "whoever" does not include federal prosecutors. Their argument is that laws do not apply to the government if doing so would create an absurdity, and that it would be absurd to apply the bribery statue in the context of cooperating witnesses. Specifically, courts have stated that "[t]o prohibit prosecutors from making promises in exchange for testimony works an 'absurd' result where crimes go unresolved because of worries about testimony that may be questionable . . ." United States v. Reid, 1998 WL 481539 (1998). It would be far more absurd, however, to find that the bribery statute did not apply to federal prosecutors at all. That reading would permit prosecutors to bribe any witness with money in exchange for favorable testimony, a far more ridiculous reading of the statute.

Other district courts that have rejected Singleton have argued that prosecutors should not be bound by 201(c)(2) because the practice of bargaining for testimony is a recognized and established practice "ingrained in our criminal justice system." United States v. Guillaume, 13 F.Supp.2d 1331, 1332 (S.D.Fla. 1998). However, just because a practice is longstanding, it does not mean that it is right. As the court noted in United States v. Revis, 1998 WL 713229 (N.D.Ok. 1998), "if the practice of providing leniency for testimony in a plea agreement is unlawful under 18 U.S.C. §201(c)(2), then it must be overturned, no matter how long that practice may have been followed."

The closer legal issue is whether reading 201(c)(2) to prohibit prosecutors from offering leniency in exchange for testimony would create a conflict with other statutes that permit the government to reward cooperation with a motion for a reduced sentence. Several district courts have found these statutes irreconcilable and have said that 201(c)(2) must therefore be understood to exempt prosecutors. The panel in Singleton and at least two district courts, however, found that the statutes could be harmonized by permitting prosecutors to reward cooperating defendants for all forms of assistance that they provided other than testimony.

Ultimately, the legal reasoning behind Singleton is the less important issue. Much of the argument over Singleton will likely become moot after the Tenth Circuit's rehearing of the case or if, as seems likely, Congress amends the statute.

The more significant concern raised by Singleton is the growing reliance in federal court on testimony by cooperating defendants and the enormous dangers that "snitch" testimony poses. Harsh sentencing guidelines and mandatory minimum sentences in federal court often leave defendants with few options but to cooperate with the government. It is often the only way to avoid a sentence of 10, 20 or 30 years. As a result, it is now almost the norm that in a multi-defendant case, one or more of the government's key witnesses will be a defendant who is receiving benefits from the government for testifying.

The danger of this arrangement is plain. As the courts have repeatedly noted, is "obvious that promises of immunity or lenience premised on cooperation in a particular case may provide a strong inducement to falsify in that case." United States v. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1990). Where a witness "knows that a promise of leniency or other thing of value is inextricably intertwined with his testimony, the incentive to lie and to curry favor is tremendous." United States v. Lowery, 15 F.Supp.2d 1348, 1353 (S.D.Fla. 1998).

Because of the inherent unreliability of 'purchased' testimony, §201(c)(2) prohibits defendants from paying witnesses to testify on their behalf. However, the danger that a witness whose testimony is paid for by the government will lie on the stand is just as great.

As one district court that followed the Singleton ruling noted, government inducements to testify do not guarantee truthfulness any more than private inducements would, and "it is frankly difficult to envision a more powerful incentive to shade testimony a particular way than avoiding a criminal conviction or avoiding loss of freedom." United States v. Fraguela, 1998 WL 560352 (E.D.La. 1998).

Singleton's most important lesson is that "[i]f justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so." The federal government's growing reliance on 'bought' testimony threatens to pervert our system of justice. As the panel in Singleton stated, such testimony taints the judicial process and cheapens justice.

Regardless of the final outcome of the Singleton decision itself, we must hope that this lesson is not forgotten. Singleton should remain a reminder to federal prosecutors that bought testimony is unreliable testimony, no matter who is buying it, and that their growing dependency on such testimony threatens to undermine confidence in our system of justice.

NO - George Cardona
George Cardona is an assistant United States Attorney in the Northern District of California. The views expressed are his own and should not be taken to be those of the United States Department of Justice or any other government agency.

Frequently the only people who can give testimony are ones originally involved in the criminal activity

by George Cardona

Major drug cartels, international terrorists, organized crime. Frequently the only people able to testify about the organizers and leaders of these and other large-scale criminal activities are those who were themselves involved in them. In many instances, the only way to get them to testify is to promise them leniency from prosecution for their own involvement in the activities about which they are testifying. As the Supreme Court recognized in United States v. Mezzanatto, 513 U.S. 196, 207-208 (1995), plea bargaining often requires a prosecutor to decide "whether to extend leniency or full immunity to some suspects in order to procure testimony against other, more dangerous suspects" because "prosecutors often need help from the small fish in a conspiracy in order to catch the big ones."

On July 1, 1998, a three-judge panel of the United States Court of Appeals for the Tenth Circuit invalidated plea agreements in which prosecutors promise leniency in return for cooperating witnesses' truthful testimony. The unprecedented decision, in a federal case out of the District of Kansas (United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rehearing en banc granted, opinion vacated (July 10, 1998)), sent shock waves across the nation. The panel decision was quicly vacated by, and the case reargued before, the en banc Tenth Circuit, from which a decision is still awaited. While the panel decision is no longer binding, even in the Tenth Circuit, it has sparked a spirited nationwide debate.

The Singleton panel held that "leniency-for-testimony" plea deals were outlawed by a gratuity statute (18 U.S.C. §201(c)(2)) first passed by Congress in 1962 which makes it a crime to "give[], offer[], or promise[] anything of value to any person, for or because of the [person's] testimony" in a federal case. This application of the gratuity statute would no doubt have come as a surprise to members of the 1962 Congress that passed it.

If applied to outlaw executive leniency for testimony, the federal gratuity statute would revolutionize criminal practice dating back hundreds of centuries in this country and in England. The United States Supreme Court, more than a century ago, described the "ancient doctrine of approvement" under which capital defendants were entitled to an executive pardon if their testimony resulted in the conviction of another defendant. See The Whiskey Cases (United States v. Ford), 99 U.S. 594, 599-6000 (1878).

By the time of The Whiskey Cases, a witness who confessed and testified against another was not automatically entitled to a pardon but could ask the court to stop his own prosecution so he could petition the executive for "mercy." In another 19th century case (Benson v. United States, 146 U.S. 325, 334 (1892)), the Supreme Court held that "[a]n accomplice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant's conviction . . . ."

The Supreme Court has continued in this century to reject legal challenges to accomplice witnesses testifying in return for promises of leniency. See, e.g., Hoffa v. United States, 385 U.S. 293, 310-312 (1966).

While rejecting challenges that would preclude leniency for testimony, the Supreme Court has ensured that material concessions be disclosed to the defense so that the jury is fully informed of the witness' potential bias. In Giglio v. United States, 405 U.S. 150 (1972), and subsequent cases, the court has held that prosecution promises of leniency to witnesses are impeachment evidence falling within the constitutional disclosure rule of Brady v. Maryland, 373 U.S. 83 (1963).

Similarly, Congress has established a statutory and regulatory scheme that authorizes but regulates prosecution promises of leniency and other benefits to cooperating witnesses. Federal Rule of Criminal Procedure 11 requires that plea agreements be recorded openly and approved by a federal judge.

Many other federal statutes authorize prosecutors to offer leniency or benefits for testimony. For example:

The Sentencing Reform Act of 1984, as amended, contains three provisions authorizing sentencing reduction - upon government motion - for cooperators who provide "substantial assistance in the investigation or prosecution of another's criminal (emphasis added). See 18 U.S.C. §3553(e); 28 U.S.C. §994(n); Fed. R. Crim. P. 35(b).

The immunity statutes authorize prosecutors to obtain court orders conferring immunity on witnesses in return for testimony. See 18 U.S.C. §§6001-6005.

The Witness Relocation and Protection Act authorizes the attorney general to give things of value - housing, payment of living expenses and other services - for a witness's testimony and cooperation. See 18 U.S.C. §3521(b)(1) and (d)(1)(A).

The government is authorized to pay monetary rewards for information and assistance - which often includes testimony - from cooperating individuals. See 18 U.S.C. §3059B (attorney general rewards); 19 U.S.C. §1619 (customs rewards); 26 U.S.C. §7623 (tax rewards); 28 U.S.C. §524(c)(1)(c) (forfeiture rewards).

A federal statute making certain drug felons ineligible for federal welfare and other benefits exempts "any individual who cooperates or testifies with the Government in the prosecution of a Federal or state offense or who is in a Government witness protection program." 21 U.S.C. §862(e).

These statutes show that Congress never intended to outlaw government leniency for testimony. The Singleton panel's holding contravened not only these statutes but also the principle of statutory construction requiring a clear congressional statement before a statute will be construed to change settled law.

Congressional silence "can be likened to the dog that did not bark" and thus provided Sherlock Holmes an important clue: "In a case where the construction of legislative language such as this makes so sweeping and so relatively unorthodox a change as that made here, . . . judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night." Chison v. Roemer, 501 U.S. 380, 396 n.23 (1991).

The complete silence in the gratuity statute's text and history regarding its applicability to government plea agreements counsels against interpreting the obscure statute to revolutionize our criminal justice system and severely hamper the government's ability to prosecute many of the most serious criminals.