Martin S. Pinales is a partner in the firm of Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio. A veteran of 30 years in practice, he is a member of the NACDL Board of Directors and Co-Chair of the Lawyers Assistance Strike Force Committee. He is on the faculty of the National Criminal Defense College. An accomplished writer and lecturer, he has served as an adjunct professor at the Samuel P. Chase College of Law,and as an associate professor at the University of Cincinnati Law School.
The scenario is all too familiar: You are representing a client in a federal case and discover that a co-defendant has entered into a plea agreement and is rolling over on your client. You want to impeach the co-defendant by showing that his testimony is motivated by a government-proffered reduction in his sentence, and therefore, is not credible. The problem is, beyond introducing the plea agreement itself and cross-examining the co-defendant, how do you demonstrate to the jury the motive and bias the co-defendant has in testifying against your client? In other words, how do you show the actual benefit the co-defendant is receiving for his testimony?In August 1997, John Feldmeier and I defended a client, who was accused of marijuana conspiracy and possession, in the United States District Court, Southern District of Ohio, with Judge Susan J. Dlott presiding.1 During this case, I impeached my client's co-defendant based on his plea agreement. Instead of merely introducing this agreement to show that some charges were dropped, I qualified a fellow NACDL defense attorney and friend, Hal Arenstein, as an expert witness to explain the United States Sentencing Guidelines and their application to the co-defendant's plea. By using Mr. Arenstein to compare the co-defendant's likely sentence under his original indictment to his likely sentence under his plea agreement, I was able to demonstrate the actual benefit the co-defendant received for his testimony, thereby exposing his motive and bias.
The following is an explanation and illustration of how this technique was used.
Cross-Examine the Co-Defendant
The United States Supreme Court has consistently held that exposing a witness' motivation for testifying is a proper and important purpose of cross-examination.2 While such motivation is always relevant to discredit the witness' credibility and diminish the weight of his testimony, it "is especially important with respect to witnesses who may have substantial reason to cooperate with the government."3 Indeed, exposing the details of a co-defendant's plea agreement is "essential" to an effective cross-examination, especially when the witness has not yet been sentenced, and therefore, has a continuing motivation to offer favorable testimony for the government.4In my case, I attempted to cross-examine the co-defendant about his plea agreement. I asked him if he had discussed this agreement with his attorney prior to signing it and whether he understood the advantages of giving testimony against my client. Although he acknowledged signing the agreement, he refused to answer questions about his understanding of it, asserting attorney-client privilege. The judge upheld this assertion of privilege.
The limited cross-examination of the co-defendant actually worked to my advantage because it laid the grounds for introducing expert testimony on the guidelines and how they related to his plea agreement. In the future, I may actually raise the issue myself by asking the question "I assume you do not wish to waive your attorney-client privilege?"
Make Your Case for Expert Testimony on the Federal Guidelines
My proposal to introduce expert testimony was not met without objection. The prosecutor argued that it was the co-defendant's perception of the advantages he received under his plea agreement that was relevant, not the abstract calculation made by an expert witness. The prosecutor also claimed that the jury could use Mr. Arenstein's testimony to assess my client's punishment and use it to render a verdict.In response, I argued that, while this may normally be true, my cross-examination of the co-defendant was limited by his persistent invocation of attorney-client privilege. I maintained that expert testimony on the guidelines and their application to the co-defendant's plea agreement was necessary to protect my client's right to cross-examine the credibility of an adverse witness, and that the jury must be made aware of the co-defendant's bias and motive for testifying. I also disclosed to the court that I was permitted to use this kind of testimony to impeach a co-defendant in another drug case in Nashville, Tennessee.5
Judge Dlott ruled that Mr. Arenstein's testimony would be permitted, saying:
The court has researched this matter and has found nothing on point. The court did speak with the United States District Judge Tom Wiseman from Nashville who advised the Court that he had permitted testimony like this in another criminal matter [argued by Mr. Pinales].
Although I may not allow testimony like this in every criminal case, it seems that this whole case against this defendant is principally based on the testimony [of the co-defendant], who was a co-conspirator, and that his bias and prejudice are certainly issues in this case. Because his perception, his testimony about his perception was somewhat incomplete because he did invoke attorney-client privilege, I don't think that the jury would know everything about this. As a result, the court is going to permit the testimony [regarding the Sentencing Guidelines] in this case by Mr. Arenstein.
Qualify a Fellow Defense Attorney as an Expert
After I called Mr. Arenstein and introduced him to the jury by establishing his name, address, occupation and background as a defense attorney, I asked him about his qualifications for interpreting and applying the Sentencing Guidelines. These questions resulted in the following exchange:Pinales: Mr. Arenstein, have you taken any training particularized to the United States Sentencing Guidelines?
Arenstein: I have. The guidelines, when they came into effect in 1987, there was a lot of confusion, because they were very different and very new, and there were a number of seminars, training sessions, that were created. I attended a training session is Columbus that was put on by, I believe, this court. I attended a seminar that was in Dayton, Ohio, on the United States Sentencing Guidelines as well, and I received training at all three of those. In addition, as I mentioned to you, I am a member of the National Association of Criminal Defense Lawyers. We have four meetings a year, and those meetings are always connected with a seminar, and there will typically be some session in which we receive additional training on the guidelines.Pinales: In your practice do you have occasion to use the United States Sentencing Guidelines and calculate how they work?
Arenstein: I do.
Pinales: Your Honor, I tender the witness at this point.
Following this exchange, the judge accepted Mr. Arenstein as an expert witness, but instructed the jury that his testimony on the guidelines was only relevant to the credibility of the co-defendant who testified. The judge further admonished the jurors that they could not consider the punishment that my client was facing under the guidelines if convicted.
Introduce the Guidelines
Next, I introduced the jury to the Sentencing Guidelines. Since most of the jurors probably did not understand how the guidelines worked, or that they even existed, I asked Mr. Arenstein to offer some background, resulting in the following dialogue:Pinales: Mr. Arenstein, can you tell us what the United States Sentencing Guidelines are?
Arenstein: Well, the guidelines, as I told you, came into effect in 1987. The purpose of the guidelines was to standardize sentencing throughout the country. There was a perception by Congress and by the public that an individual charged in a drug case in Florida might be treated differently than an individual charged in, say, Montana. The perception was that people were being sentenced in an unfair fashion. So Congress created a system whereby the sentences are standardized by giving judges a guideline range in which to impose sentences. Now, a judge in Cincinnati has the same guideline range, once certain calculations are made, as, say, a judge in San Diego.Pinales: Does the judge have the discretion to go outside the range?
Arenstein: Yes. In rare instances, the judge can either go above the range or below the range. There are certain factors that come into account as to whether the judge can or cannot do that.
Pinales: What determines the possible penalty for a crime?
Arenstein: Congress examined every crime in the federal code and assigned each of them a point value. These point values run anywhere from one all the way to 43, with one being the least serious offense and 43 being the most serious. To apply the guidelines, you begin with the base point value of the offense. For instance, fraud would typically be six.
Pinales: Is there a manual that is used to calculate sentences?
Arenstein: Yes. There is a book that is used for calculations -- the Sentencing Guidelines Manual. We look at the facts of each case and assess how they relate to the factors defined in the manual. Each person who has been convicted of a crime comes with a different background and a different set of circumstances surrounding their crime. These factors determine whether a person's sentence goes up or down from the base offense-level set by the guidelines.At this point, I brought out the sentencing table for the jury. I had a copy of this table enlarged so that Mr. Arenstein could refer to it demonstratively while explaining the guidelines to the jury. I also distributed normal-sized copies of the table to the jurors, with the judge's permission, so that they could follow the witness' testimony. Once these copies were distributed, I elicited the following testimony:
Pinales: Can you identify the chart in front of you?
Arenstein: Yes. This is the table found in the Sentencing Guidelines Manual that is used to calculate sentences. As you can see, the table has numbers running across the top as well as down the side. The numbers on the line running from Roman numeral I to Roman numeral VI refer to the criminal history category. The number assigned depends on the criminal history or criminal record of the defendant, which is determined by the Federal Sentencing Guidelines. Someone who has no criminal history would be assigned to category I, while someone with an extensive criminal history could be assigned to a category as high as Roman numeral VI. The numbers running down on the left side of the chart refer to the level of the offense committed by the person to be sentenced. As I explained before, these numbers range from one to 43. After you determine the offense level, you move across the chart to the column containing the applicable criminal history number, and that gives the judge the range for the sentence.Apply the Guidelines to the Co-Defendant's Original Indictment
Now that the jury had a basic understanding of the guidelines, I asked Mr. Arenstein to apply them to the offenses contained in the co-defendant's original indictment, as well as to the charge in his plea agreement. In this case, the co-defendant was originally charged with one count of conspiracy to possess with intent to distribute marijuana and one count of interstate travel to facilitate a marijuana enterprise. Under the plea agreement, the drug conspiracy charge was dropped leaving him with only the travel charge. Based on this scenario, Mr. Arenstein testified as follows:Pinales: I want to direct your attention to some specific facts at this time. The co- defendant who previously testified was originally charged with drug conspiracy involving marijuana. How do the guidelines relate to drug conspiracy cases?
Arenstein: Well, a conspiracy is like a company. There are two or more people who get together and agree to commit a crime. Within the conspiracy, different people have different roles. In drug conspiracy cases, the application of the guidelines will depend on the particular role played by the person being sentenced, as well as the amount of drugs involved in the conspiracy.Pinales: I want you to assume that the co-defendant is a truck driver who, as a part of the same conspiracy, transported three loads of marijuana. The first load had 1000 pounds; the second had 1700 pounds; and the third had 1956 pounds. How would the guidelines affect these three truckloads if the co-defendant was convicted?
Arenstein: Well, first, you do not calculate the loads of marijuana separately. Because they are part of the same conspiracy, the loads are combined for sentencing purposes.
Pinales: And how does that relate to the United States Sentencing Guidelines?
Arenstein: Well, once you total the loads, you have to convert the number of pounds to kilograms because the guidelines for drug offenses are based on kilograms, not pounds.
Pinales: So where would the three loads of 1000, 1700, and 1956 pounds fall under the guidelines?
Arenstein: My biggest fear as a child was that we were going to switch over to the metric system. So I'll need a minute. (calculating) Let's see, there are 2.2 pounds per kilogram, and according to my calculations, the three loads totaled approximately 4600 pounds. So 2.2 into 4600 is approximately 2100.
Pinales: So the base offense for the conspiracy would be determined based on 2100 kilograms.
Arenstein: That's correct.
Pinales: Using the Sentencing Guidelines Manual and the Sentencing Chart, can you tell us the base offense level for this offense?
Arenstein: Well, the offense level here would be 32 because it involves an amount of marijuana that is more than 1000 kilograms, but less than 3000 kilograms. According to the guidelines, the base offense would be here (pointing to offense level 32 on the enlarged guidelines chart). Assuming that the co-defendant can be classified in the minimal criminal history category I, his base sentencing range would be 121 to 151 months. If he falls in category II, his range would be 135 to 168 months.
Pinales: What determines criminal history points?
Arenstein: Generally, it depends on the type of sentences a person has received for prior convictions.Pinales: Assume that the co-defendant has a prior drug felony conviction and was sentenced to more than 60 days but less than a year. What would his criminal history be?
Arenstein: Based on your assumption, the co-defendant would fall under category II for his criminal history (pointing to category II on the enlarged chart). Consequently, the initial sentencing range for his offense would be 135 to 168 months (pointing to this range on the chart).Pinales: Is there anything that would reduce the base offense-level number?
Arenstein: Yes there is. For example, if the co-defendant entered a plea of guilty early in the process, he would be entitled to a two-point reduction, because he accepted responsibility well before going to trial. In some cases where the base level is more than 16, a person can receive a three-point reduction for accepting responsibility and entering a guilty plea early in the process.
Pinales: Assume that the co-defendant in this case entered a plea of guilty early in the process. What does that do to his base level?
Arenstein: Since his base level started out at 32, he would be entitled to a three-point reduction, which would take him down to a base level of 29. Consequently, the time he was facing would be reduced to 97 to 121 months, instead of 135 to 168 months (pointing to the chart).
Pinales: Is there anything else that could reduce the co-defendant's sentence?
Arenstein: Yes. He could receive a reduction in his base level based on his role in the offense. As I explained earlier, it's like a company. In a conspiracy, everybody has different responsibilities. There are people who have aggravated roles -- the bosses, the supervisors, the people who tell people what to do. Then there are people who may be minimal participants, and then there are people who may be just minor participants.
Pinales: Where would the co-defendant's role as a truck driver fall?
Arenstein: I would think that a truck driver might come out in the middle of the range, maybe a minor participant. In that case, he might be entitled to an additional two points off. This would bring his base level down to 27. So he could have 78 to 97 months (pointing to the chart).
Pinales: Okay. Let's leave that for a moment. Have you ever heard of the term "minimum mandatory" as it relates to the crime of conspiracy to distribute marijuana?
Arenstein: Yes.
Pinales: Would you explain this term and how it relates to the co-defendant in this case?
Arenstein: There are certain drug offenses that have mandatory minimum sentences attached to them. This means the judge cannot issue a sentence lower than the minimum term assigned to the offense. For instance, if the minimum mandatory is five to 40 years, that is a mandatory of five years, and the judge has no discretion, at least initially, other than to give at least a five-year sentence.
Pinales: Is that the minimum mandatory for distribution of marijuana?
Arenstein: Well, it might be more, actually, depending on the amount of marijuana involved and whether the person has committed prior drug-related offenses. The presence of these factors might allow the government to do what's called an enhancement of the initial penalty. In effect, the government could increase the mandatory minimum.
Pinales: I want you to assume that the co-defendant in this case had a prior federal felony drug conviction. What would that do to his mandatory minimum sentence?
Arenstein: It would increase his minimum mandatory from 5 to 40 years to 10 years to life. This means that the minimum sentence the judge could impose is 120 months.
Pinales: So even though the initial calculations of the co-defendant's sentence suggest a sentence of 78 to 97 months, the judge would still have to impose at least 120 months under the mandatory minimum language of the Sentencing Guidelines?
Arenstein: That's correct.
Apply the Guidelines to the Co-Defendant's Plea Agreement
Once the sentence that the co-defendant was facing under his original indictment was firmly established in the minds of the jurors, I had Mr. Arenstein assess the sentencing range for the charge found in the co-defendant's plea agreement, i.e., the travel count. The benefit the co-defendant was receiving by pleading to this count was revealed in the following exchange:Pinales: The clerk has handed you a document entitled "Plea Agreement." Can you describe the document?
Arenstein: Yes. It is a plea agreement entered into by the co-defendant in this case and the Assistant U.S. Attorney. The co-defendant has agreed to plead guilty to a travel count and testify for the government in this case. In exchange, the government has agreed to drop the conspiracy charge against him.
Pinales: What is the travel count to which the co-defendant pleaded guilty?
Arenstein: It's basically engaging in interstate travel in order to commit a drug offense.
Pinales: Is there a penalty under the Sentencing Guidelines for this offense?
Arenstein: Yes. The maximum penalty that one can receive for a travel count is five years or 60 months. You would calculate this sentence the same way as if the individual were involved in the conspiracy. You would still take everything that the person was involved in, and you still figure the guidelines together. Usually, what you see is an indictment in which the person is charged with a conspiracy and a number of acts in the conspiracy, and there may also be separate counts for interstate travel. Usually, the more serious crime will take precedence in figuring out the sentencing range.
Pinales: Now, if a person just pleads guilty to one travel count and the government agrees to dismiss the conspiracy count, in months, what is the benefit or gain to the co-defendant?
Arenstein: Well, the most the judge could give him for the travel count is 60 months, compared to the mandatory minimum of 120 months he would have faced under the conspiracy count.
Pinales: So by agreeing to testify against my client in this case the co-defendant has received a benefit?
Arenstein: Yes. He's been given a benefit.
Pinales: And what is that benefit?
Arenstein: A reduction in his sentence of 60 months or five years. It basically cut his time served in half.6Conclusion
I would like to tell you that, as a result of Mr. Arenstein's testimony, my client was acquitted. But, unfortunately, this did not happen. Nevertheless, this case illustrates a convenient, innovative and effective alternative to cross-examining co-operating co-defendants by using a fellow defense attorney as an expert witness. It may, however, cost you a lunch.
Notes
1. United States v. Smith, No. CR-1-97-029, (S.D.Ohio 1997).2. See Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105 (1974); United States v. Landerman, 109 F.3d 1053, 1063 (5th Cir.1997).
3. United States v. Onori, 535 F.2d 938, 945 (5th Cir.1976).
4. United States v. Jeffries, 82 F.3d 419 (6th Cir.1996) (unpublished); United States v. Mayans, 17 F.3d 1174, 1184 (9th Cir.1994).
5. United States v. Ward, No. 3:96-00120 (M.D.Tenn.1997). In this case, the prosecutor raised a Rule 403 objection to guidelines' testimony from NACDL member Stephen Shankman. The prosecutor claimed that I was using this testimony to support a jury nullification argument. Judge Tom Wiseman, however, overruled the government's objections stating that, while the issue of punishment could not be discussed with regard to the defendant, the Sentencing Guidelines could be used to determine the credibility of the government's witnesses with respect to their plea agreements.
6. In United States v. Ward, I also had the witness discuss the fact that the United States Attorney's Office had the discretion to seek a downward departure for substantial assistance pursuant to 5K1.1 and 3553(e), which could further reduce the co-defendant's sentence.