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Vol. 5, No. 24       As Published in the Advance Sheets on June 15, 1998          Copyright 1998

Highlights of this Issue:

Supreme Court Cases


Level Playing Field Issues


Fourth Amendment Issues

United States v. Garcia Abrego, 141 F.3d 142 (5th Cir. 1998) (Judge King)

The principal (and disturbing) issue raised in this major drug prosecution case was the defendant's claim that the Government's payment of witnesses, grants of immunity, and plea bargaining so distorted the adversarial process at his trial that the proceedings were rendered fundamentally unfair.  It didn't take the Court long to predict the outcome of this case and justify its decision.  The second paragraph of its decision stated: "For approximately two decades, Juan Garcia Abrego was the hub of a narcotics smuggling syndicate of staggering dimension."  (Id., at 147).

The defendant contended that the Government's extensive use of incentives such as motions for downward departure pursuant to U.S.S.G. 5K1.1, sentence reductions pursuant to Rule 35 of the Fed.R.Crim.P., immigration permits, cash payments, and grants of immunity from prosecution to motivate many Government witnesses to testify denied him his constitutional right to due process.  He argued that,  because he was denied the opportunity to offer similar incentives to obtain testimony, "the adversarial process was skewed to an exceptional degree in the government's favor and that his constitutional right to due process was thereby violated."  (Id., at 151).  Perhaps the most persuasive argument he made was his contention, shared by many members of the bar, 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 . . . non-reciprocal incentives to entice witnesses."  (Id., at 152). [The core of that argument is the inherent unfairness of 18 U.S.C. 6003 - a statute that grants to the Government alone the uninhibited power to grant immunity to a witness.  Since the courts have generally agreed that they have no power to order the Government to grant comparable immunity to defense witnesses under 6003, the Government effectively has the power to deprive defendants of valuable testimony from witnesses who are fearful of testifying for the defense.]

The Court quickly, and with almost no discussion, dismissed these claims as meritless.  In support of its conclusion that high payments to witnesses do not skew the scales of justice, the Court cited U.S. v. Cervantes-Pacheco, 826 F.3d F.2d 310, 315 (5th Cir. 1997) (en banc), where the Fifth Circuit held that "[n]o practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence."  In support of its conclusion that the Government's sole ability to award immunity in exchange for testimony does not create an uneven playing field, the Court simply noted that way back in 1982 it had rejected a "virtually identical argument."

Neither of those rationales really addressed the validity or the substance of the defendant's claims; and thus it was not surprising that the Court also did not quote from Judge Goldberg's strong condemnation of bartered testimony in the initial Cervantes-Pacheco case.  In that decision, reported at 800 F.2d 452, 460-61 (5th Cir. 1986), Judge Goldberg wrote:  "One of the basics of our jurisprudence is the search for truth, and by this is meant not the purchased truth, the bartered-for truth, but the unvarnished truth that comes from the lips of a man who is known for his integrity. . . .The government in its prosecutorial efforts should be like Caesar's wife, above or beyond reproach. . . . It may be that we must live with informers.  It may be that we must live with bargained-for pleas of guilty.  But we do not have to give a receipt stamped 'paid in full for your damaging testimony' or 'you will be paid according to how well you can convince the jury even though it may be in the face of lies'.  It is true that the precedents we cite are timid in their approach to this problem, fearful that somehow the condemnation of contingent fee arrangements will destroy our criminal justice system.  If that be true, then our system of finding the truth is pallid and weak and not to be trusted.  Trustworthiness is a keystone and a hallmark of any judicial system that seeks recognition for its role in a civilized society.  The time has come to announce boldly and firmly that our juridical search for truth cannot be reconciled with the virtual purchase of perjury."  (For more on the subject of the questionable and pernicious value of "bartered testimony" - and an interesting example of how the courts sometimes answer the call for bold and firm responses to the uses of such evidence - see the Quote of the Week below.)

Gonzales v. Johnson, 994 F.Supp. 759 (N.D. Tex. 1997) (Judge Kendall)

This is an appalling tale about one of those mythical hanging judges from Texas, State Judge Larry Baraka.  In 1986, the petitioner, Jose Gonzales, was charged with three counts of aggravated robbery.  He pled guilty and Judge Baraka sentenced him to a "deferred adjudication probation" for five years.  He also warned Gonzales that if his probation was revoked he would sentence Gonzales to life imprisonment and would object to any parole.  (Id., at 762).  That practice was apparently consistent with Judge Baraka's custom and practice in other deferred adjudication cases; and, on this habeas appeal, Judge Kendall pointedly observed that: "This is not the only case where Judge Baraka predetermined punishment prior to a probation revocation hearing.  At least two state appellate courts and one federal district court have criticized the judge for his propensity to prejudge cases without listening to the evidence."  (Id., at 764, n. 3).

In 1988, Gonzales violated his terms of probation in three ways: (a) he failed to report to his probation officer for three months; (b) he did not pay his probation fees for nine months; and (c) he did not make any installment payments on his fine for nine months.  For those heinous crimes, Judge Baraka promptly clapped Gonzales in prison for life.  Ten years later, after exhausting his state remedies, Gonzales sought help from the Federal courts through a petition for habeas corpus.

Judge Kendall granted the writ "unless petitioner is afforded a new revocation hearing before a different judge."  (Id.).  Citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) he noted that "due process guarantees a defendant the right to a hearing before a neutral and detached hearing body'."  (Id., at 762).  He then concluded that: "The record in this case clearly shows that Judge Baraka was not neutral, detached or impartial. . . . Judge Baraka interrupted petitioner's testimony and verbally taunted him with questions about his toughness'. . . . These facts lead to the inescapable conclusion that the judge predetermined punishment in this case."  (Id., at 763-64).

No jail time for three aggravated robberies - but life for failing to pay some installments on fines - and the poor bloke has already spent ten years in prison fighting that sentence.  Wow!

Wilson v. Layne, 141 F.3d 111 (4th Cir. 1998) (En Banc) (Judge Wilkins)

We originally reported on this civil rights suit for damages case in the May 19, 1997 issue of Punch and Jurists.  Essentially, a SWAT team of Federal and State law enforcement personnel invited a newspaper reporter and photographer seeking a story to accompany the officers during the execution of an early morning search warrant.  "The police allowed the reporters to enter the private home of Dominic Jerome Wilson's parents without their permission, to observe the execution of the warrants issued to the police, and to photograph the Wilsons in a state of undress and under humiliating conditions."  (Id., at 119).  When the police finally ascertained that the person they were seeking (the Wilson's son) was not present in the house, they left.  The Wilsons subsequently brought a lawsuit for damages, charging that their Fourth and Fourteenth Amendment rights had been violated.  The officers quickly moved for summary judgment on the grounds of qualified immunity, but the district court declined to grant the motion with respect to the claim that the police had violated the Wilsons' Fourth Amendment rights by inviting the reporters to enter the Wilson's home.

The police officers appealed that ruling, and the Fourth Circuit, in a decision reported at 110 F.3d 1071 (4th Cir. 1997) (Wilson I), held that "Because in April 1992 it was not clearly established that permitting media representatives to accompany law enforcement officers into a private residence to observe and photograph their attempt to execute a warrant would violate the homeowner's constitutional rights, we hold that these officers are entitled to qualified immunity."  (Wilson I, id., at 1076).  Subsequently, the full court decided to re-hear the case en banc.  In the instant decision, a slim majority of the full court affirmed the decision in Wilson I; but that decision evoked a strong and vigorous dissent from Judge Murnaghan and four other judges; and, as is often the case, it is the dissent that is most interesting.

With unusually blunt words, Judge Murnaghan called the majority's decision "speculative and disingenuous at best" (id., at 125) and wrote that it was based on "posthoc rationalizations" that departed from existing precedent.  (Id., at 119).  He particularly labeled as "absurd" the majority's creative suggestion that the reporters had been brought along to afford the police some measure of "protection."  Pure and simple, he wrote, "the police brought the team [of reporters] along in the hope of getting some good press; that is all" (id., at 125); and the majority's decision "seeks to convert qualified immunity to absolute immunity."  (Id., at 120).

In support of his conclusion that the majority had plainly departed from existing precedent, he was also highly critical of the majority's reliance on two unpublished district court decisions which had held that inviting the news media to observe the execution of a search warrant did not violate any federally protected right.  Citing Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir. 1996), he noted that: "We have previously observed that [s]ince unpublished decisions are not even regarded as binding precedent in our circuit, such opinions cannot be considered in deciding whether particular conduct violated clearly established law for purposes of adjudging entitlement to qualified immunity."

Judge Murnaghan also emphasized that "The Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant."  (Id., at 123).  In the end, he wrote: "Because no reasonable police officer could have believed that inviting the reporters into the home or allowing the photographer to take pictures either was authorized by the warrant or was reasonably necessary to accomplish its legitimate law enforcement purposes, the police officers' actions amounted to unreasonable searches and seizures in violation of clearly established Fourth Amendment law.  I vigorously dissent."  (Id., at 120).

 Special Note  

Punch and Jurists is pleased to announce that Carmen D. Hernandez, Esq. of the Federal Public Defender's Office in Washington, D.C. has made available to us a revision of her masterly study of Federal case law following the Supreme Court's decision in Koon v. U.S., 518 U.S. 81 (1996).   That study, entitled "Downward Departures After Koon - A Fact Based Inquiry" has now been posted on our Web site at in both PDF format and WordPerfect format (for easy downloading).

 QUOTE OF THE WEEK  - The Garcia-Abrego case calls to mind another notorious case which shows the judicial reluctance to airing in public claims that exorbitant payments to Government witnesses make their testimony unreliable.  U.S. v. Solorio, 37 F.3d 454 (9th Cir. 1994) was initially published; and in that published decision the Ninth Circuit had some strong words of condemnation about the "perverse incentives" that are created for confidential informants.  A few months later, in a terse, two-sentence order openly published at 52 F.3d 827 (9th Cir. 1995), the Ninth Circuit "withdrew" its initial decision and advised the world to forget about what had initially been written because "An unpublished disposition is being filed."  Withdrawn or not, much of the language of the original Solorio decision is worth re-reading; and the forcefulness of the Court's language perhaps explains why it was withdrawn.  Because we don't agree with any attempts to erase from human memory harsh criticisms of questionable Government policies, we have set forth below some selected passages of that now hard-to-find decision.  We also note that the full text of the original published decision is available on our Web site at

"This type of arrangement creates perverse incentives for confidential informants. . . . [T]here is too great an incentive for informants to fabricate evidence and to maximize the amount of drugs involved.


"The government's conduct in this case is reminiscent of the infamous 'Reward Statutes', enacted by the English Parliament in 1692, which promised monetary rewards - so called 'blood-money certificates' - to those who would provide information leading to the conviction of criminals.  This perverse structure was sharply criticized, and eventually abandoned. . . .


"When, as in this case, the government gives a confidential informant the authority to develop the crime and his monetary reward depends on getting people convicted and on the magnitude of the drug transaction, the informant has too great an incentive to fabricate evidence and distort the truth. . . .[T]here is too high a risk that the defendant will be tried on the basis of false information. . . . The inherent danger of basing a paid informant's compensation on the rate of convictions and the quantity of drugs is exacerbated when the government engages in 'sting operations', which accord the government almost exclusive control over the information relating to the criminal  activity.  The danger is further exacerbated where the party with the financial incentive is the person orchestrating the crime.


"When looking at this operation as a whole and at the behavior of the government agent, which ranged from improper conduct to outright criminal acts, it is undeniable that the government's conduct was outrageous."  United States v. Solorio, 37 F.3d 454, 458-60 (9th Cir. 1994).


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

Cases in the Federal Reporter:              This week:     31       Year to date:         874
Cases in the Federal Supplement:         This week:     23       Year to date:         526