A Weekly Summary of Snippets of Justice From the Federal Courts

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

Highlights of this Issue:

Leading Case

U.S.S.G. and Sentencing Issues


Miscellaneous Issues

United States v. Singleton, No. 97-3178 (7th Cir. July 1, 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."

In this case, the Court found that the prosecutor had made "at least three promises to Napoleon Douglas.  Because it is not clear that the government promised to move for a downward adjustment in return for his testimony, we rely for our analysis only upon the three promises specifically made in the plea agreement: (1) the promise not to prosecute Mr. Douglas for certain offenses, (2) the promise to inform Mississippi authorities of his cooperation, and (3) the promise to inform the district court of his cooperation.  These promises were made 'for his testimony:  Mr. Douglas promised to testify 'in consideration of' the three promises."

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. 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.

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