Vol. 8, No. 38
Covering Cases Published in the Advance Sheets through September 17, 2001

Highlights of this Issue:

Apprendi: Its Impact on Guilty Pleas and a Novel Motion for Severance:

U.S.S.G. and Sentencing Issues:

Special Jury Instructions Regarding Paid Informants:

Improper Comments on a Defendant's Silence Following His Arrest:

The Admissibility of Latent Fingerprint Identification Evidence:


Noted criminal defense attorney, Solomon L. Wisenberg of Washington, D.C. has written an excellent analysis of all the criminal law and procedure rulings issued by the U.S. Supreme Court during its recently completed 2000-2001 Term. That analysis can be accessed on the Internet at: http://sol.lp.findlaw.com

In addition, for those interested in following the ever-broadening scope of the DOJ's proposals on the legislation needed to combat terrorism in the United States, go to the Government's own site at: http://www.usdoj.gov/opa/pr/2001/September/492ag.htm

United States v. Colon, No. 00cr10029-NG (D.Mass. 10/01/2001) (Judge Gertner)

There are times when the Government's fixation on its goal of achieving absolute control over the sentencing process overwhelms all the other senses and blinds it to approaching dangers. That is precisely what happened in this case: obdurately bent on eking out the maximum penalty it felt was in the cards, the Government failed to anticipate Judge Gertner's resolute post-Apprendi reaction.

The defendant, Edgardo Colon, was charged with a conspiracy to distribute heroin, in violation of 21 U.S.C. § 846, and three substantive counts of heroin distribution. Colon wanted to plead guilty to the three substantive counts as charged, particularly to get the benefit of an "acceptance of responsibility" sentence reduction under U.S.S.G. § 3E1.1. He also wanted to plead guilty to his participation in the conspiracy, but not to the specific quantity alleged in the indictment - more than 100 grams of cocaine. He realized that, if he pled guilty to the conspiracy count as charged, he faced a five year mandatory minimum sentence on that charge; and, if he was going to face that sentence, he wanted the Government to prove the quantity alleged.

The Government, of course, took an "all or nothing" position, in two respects. First, it insisted that the defendant had to plead guilty to both the conspiracy counts and the substantive counts. Second, it insisted that the defendant had to plead to the entire conspiracy count. Otherwise, he could go to trial and, at a minimum, lose the benefits of the three-level reduction for acceptance of responsibility.

Wisely, Colon decided to bring his dilemma to the Court's attention. He filed a motion with the Court, which he dubbed "Motion for Change of Plea Hearing/Conference." Judge Gertner treated that motion as a Motion for Severance under Rule 14 of the Fed.R.Crim.P. The Government strongly opposed any such severance, which would allow the defendant to plead to the substantive counts, be sentenced on them, and then proceed separately to the conspiracy counts.

Before resolving the motion before her, Judge Gertner first carefully explained how the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) has impacted the one-sided nature of the plea bargaining process. She wrote: "Pre-Apprendi, when allegations about drug quantity were typically not included in indictments, the defendant could have pled guilty to the elements of conspiracy, reserving quantity issues for sentencing. The government did not have to agree. The decision was for the defendant, and ultimately the Court. Since Apprendi, with drug quantities included in indictments, and treated as the functional equivalents of offense elements, the defendant's options have been narrowed. Without government approval, the defendant cannot agree to plead to less than all the elements of the offense (like pleading to the lesser included offense of manslaughter on a murder indictment)."

After establishing that framework, Judge Gertner ruled: "I will ALLOW the severance under Rule 14, Fed.R.Crim.P. The government's position, opposing severance, is nothing short of extraordinary." She explained her ruling and her conclusion about the Government's position in some detail and, because of the significance of that ruling, we quote much of her Order as follows:

"First, [the Government] urges against severance because severance would squander precious judicial resources and delay ultimate resolution of the case.' Spending judicial resources on determining the truth of the allegations about quantity is hardly squandering' them. Taking the time to allow a defendant to claim the rights the Constitution and Apprendi offers him hardly represents an unnecessary delay. Indeed, if the government is so concerned about delay and judicial resources, there is a clear alternative: A jury waive trial on the contested issues. But a jury waive trial requires the government's consent, something it has been unwilling to give.

"Second, the government claims, there is no prejudice under Rule 14 as matter of law, because of [Colon's] desire to avoid a trial on the [conspiracy] charge . . . cannot be the kind of "prejudice" cognizable under Rule 14.' Defendant, it claims indignantly, does not like the scope of the charges against him in the Second Superceding Indictment,' implying that this is nothing more than a strategic dodge. But the government's disparaging tone notwithstanding, defendant's position is entirely legitimate: He disputes the quantity of drugs the government would attribute to him. He puts the government to its proof on this matter. . . .

"[Third,] [t]he government notes that there is no precedent for severance in cases like this. True enough. But the rules are being rewritten after Apprendi. A decision that was intended to increase the due process protection for the defendant cannot be transformed by government fiat into a new bludgeon to coerce guilty pleas. Before Apprendi, it was entirely appropriate for a defendant to plead to conspiracy and litigate drug quantity at sentencing. By requiring that drug quantity be treated as the functional equivalent of an element of the offense,' the Court intended to increase the due process protections offered to the defendant. A factor that has the significance of drug quantity, that can trigger a mandatory minimum sentence of five years, according to Apprendi, must be subject to the highest due process protections, a jury trial and the beyond a reasonable doubt standard.

"If the net effect of the government's strategic decisions is to block meaningful access to those rights, then it is incumbent on the Court to step in the breach. To deny a severance here would be to burden the very trial rights announced in Apprendi. In fact, if the Court does not provide these procedural safeguards, then the ominous predictions of one commentator could come true:

"[T]he . . . right to a jury trial . . . undermines defendants' rights to hearings in the world of guilty pleas. In giving the right to contest enhancements at the first trial, the Court took away the right to contest enhancements at sentencing after pleading guilty. The real harm to defendants comes from depriving them of this hearing. The incentives to plead guilty are so powerful that the first trial right is merely theoretical for vast classes of defendants. . . . Because defendants have no unilateral right to waive juries and have bench trials, prosecutors can prevent judges from mitigating sentence enhancements . . . Defendants are left with trial rights they cannot afford to exercise. In exchange for these trial rights, they have been robbed of colorable sentencing issues. Before the elements rule, they could have contested these issues at sentencing while pleading guilty. They must now surrender hearings on these issues with their guilty pleas, because they must plead guilty to every element of each offense." Stephanos Bibas, "Judicial Fact-finding and Sentencing Enhancements in a World of Guilty Pleas," 110 Yale L.J. 1097, 1158 (2001).

"Finally, the government says a Rule 14 severance is not available as a matter of fact because of the evidence against' Colon. . . . If the evidence is so clear, then the government should have no problem meeting its burden of proof at a trial of these charges. I refuse to prejudge the evidence against the defendant, or worse, undermine his ability to contest it."

United States v. Villafranca, 260 F.3d 374 (5th Cir. 2001) (Judge Higginbotham)

Ramon Amado Villafranca, the defendant in this case, was a state-court prosecutor from Laredo, Texas. He was convicted in Federal court for accepting bribes in exchange for fixing drug cases, in violation of the Hobbs Act (18 U.S.C. § 1951). After his conviction, he appealed on a number of grounds. First, he argued that his conduct bore no nexus to interstate commerce sufficient to create Federal jurisdiction or to establish a Hobbs Act violation. That contention was quickly dismissed by the Fifth Circuit, which noted that "the effect of the defendant's activity on interstate commerce need only be slight." (Id., at 377). The Court then concluded that "the extortion by Villafranca involved the movement of individuals across state and international lines and affected commerce in drugs," thus meeting the required interstate commerce nexus. (Id., at 378).

The more interesting appellate contention, by far, was the defendant's argument that the testimony of the Government's paid informant should not have been admitted at trial because it was, inter alia, inherently unreliable. (That may be the first time that a prosecutor - albeit in this case an ex-prosecutor- has ever argued what defendants have argued for years!)

The informant in this case, one Jimmy Salas, was hired by the FBI as part of an investigation into public corruption in Webb County, Texas. As his cover, he was, appropriately, hired to work as a "bounty hunter" for various bail bonding companies; and he was paid $1,500 per month and given a small apartment. His contract also stipulated that the FBI "would consider paying [him] a lump sum payment in an amount to be determined solely by the FBI" for the results achieved. (Id., at 376). Based on that arrangement, Salas usually earned between two and three thousand dollars per case; but an FBI agent testified that Salas could be paid as much as $100,000 in the instant case, based on its outcome. (Id., at 379, n. 23).

Writing for the panel, Judge Higginbotham stated: "The contract between Salas and the government exemplifies the unjust incentives that an agreement to pay an informant can create. The contract created the danger of perjury in three ways: First, it deferred payment of a bonus to Salas until after he testified, thereby creating the possibility of withholding or reducing payment if his testimony is unfavorable or insufficient to obtain a guilty verdict. Second, the vague criteria for determining the amount of the bonus allowed the government to consider the outcome of the trial as a factor in determining Salas's bonus. Third, the sheer size of the possible bonus--upwards of $ 100,000--created an incentive for the paid witness to ensure that he does nothing to jeopardize the government's willingness to deliver the bonus. Ideally, contracts with paid informants would not defer so much of the remuneration until after the witness testifies for precisely these reasons. . . . [T]he danger of embellished testimony generated by dangling such a plump carrot before a critical witness is why this court requires rigorous safeguards to protect the integrity and accuracy of the jury's fact-finding." (Id., at 380).

Those "rigorous safeguards" were established by the Fifth Circuit in its noteworthy en banc decision, U.S. v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987). As explained by Judge Higginbotham: "In United States v. Cervantes-Pacheco, this court, sitting en banc, ruled that the testimony of a paid witness was not per se inadmissible. We recognized, however, that admitting the testimony of a paid informant raises serious concerns about the fairness of a trial. We therefore conditioned the admission of such testimony on compliance with four rules: the government must not deliberately use or encourage perjured testimony; the prosecution must comply with Brady; the defense must be allowed to fully explore the compensation arrangement on cross-examination; and the district court must give specific instructions to the jury about the credibility of paid witnesses." (Id., at 378).

Citing Cervantes-Pacheco, Villafranca argued that the prosecution had failed to comply with Brady and that the district court failed to give the jury specific instructions on Salas's credibility. After reviewing the record, the panel agreed that the district court had erred by failing to give the special jury instruction required by Cervantes-Pacheco: "the district court did not have discretion to omit an instruction cautioning the jury about [Salas'] credibility." (Id., at 379-80). However, the panel also concluded that the "extent of the corroboration of Salas's testimony convinces us beyond a reasonable doubt that the failure to give a special jury instruction was harmless." (Id., at 380).

Thus, the defendant's conviction was affirmed; and we were given an important reminder of one of the most telling comments ever made about the inherent lack of credibility in such bartered testimony: In an earlier decision in the Cervantes-Pacheco case, Judge Irving Loeb Goldberg implored his fellow judges that "[t]he time has come to announce boldly and firmly that our juridical search for truth cannot be reconciled with the virtual purchase of perjury." (U.S. v. Cervantes-Pacheco, 800 F.2d 452, 460-61 (5th Cir. 1986)).

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