Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author
and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney's Office and is a member of
The Champion Advisory Board.
The author wishes to thank Kevin Jon Heller and Blair Berk, members of his firm, for their invaluable assistance
in the preparation of this column.
In an extraordinarily thoughtful and well-reasoned opinion, which has on the court's own motion already been withdrawn pending en banc review, a Tenth Circuit panel has prohibited government prosecutors from purchasing their version of the truth with either leniency or money. United States v. Singleton, ___ F.3d ___ (10th Cir. 1998). This opinion is persuasive not only because it was tightly written by Judge Paul J. Kelly, Jr., but also because it was joined by both the most conservative sitting judge on the Tenth Circuit, Judge David Ebel, as well as the circuit's most liberal judge, Stephanie Seymour, who is also chief judge of that circuit. This is a truly remarkable decision. What is perhaps most astounding is how this unanimous opinion could possibly have been published in the first place, considering the present political realities of our criminal justice system.
As recently as April 1995 (See, Rico Report, The Champion, "Best Testimony Money Can Buy: Ethical Rules and Witness Payments"), we raised this very question of whether prosecutors are, in fact, exempted from the rules that prevent lawyers from purchasing testimony, and concluded that the question not only deserved serious consideration, but should be litigated more aggressively in criminal cases. But is the principle that witness testimony cannot be bought, no matter who the buyer, too dangerous a notion to be recognized under the law? No doubt either the Tenth Circuit, now reviewing this case en banc, or the Supreme Court will permit business as usual in our criminal courts. Shockwaves from the Singleton decision are being felt, from "Oklahoma City" to the formerly "El Rukn" controlled neighborhoods in Chicago. See, United States v. McVeigh, Case No. 98-CR-68-M (a case built partly on the testimony of Michael Fortier, a co-conspirator who had been promised a significantly reduced sentence for his testimony); United States v. Andrews, 754 F. Supp. 1161 (N.D. Ill. 1990) (The "El Rukn" debacle that began as a RICO, drug and murder case involving 22 defendants, 175 counts, and multiple testifying co-conspirators who were plied with everything from money to reduced sentences to possibly even sex with interns from the U.S. Attorney's Office in exchange for their testimony).
The extraordinary decision in United States v. Singleton is based on a rather ordinary factual scenario. In April 1992, Wichita detectives investigating a drug and money-laundering operation analyzed local Western Union records which revealed that a group of local women made many wire transfers to California, which the investigators believed were proceeds of drug sales sent to pay for cocaine shipments to Wichita. Napoleon Douglas, a co-conspirator who entered into a plea agreement, identified Sonya Evette Singleton as someone who transferred and received money for the conspiracy. An Assistant United States Attorney promised Douglas in his written plea agreement that in return for his testimony, the government (1) would not prosecute him for any other drug violations arising from the activities under investigation; (2) would "advise the sentencing court, prior to sentencing, of the nature and extent of the cooperation provided" pursuant to U.S.S.G. 5K 1.1 or 18 U.S.C. 3553(e); and (3) promised "to advise the Mississippi parole board of the nature and extent of the cooperation provided" by Douglas in one of his other cases.
Singleton's attorney, John V. Wachtel, of Klenda, Mitchell, Austerman & Zuercher, Wichita, Kansas, moved at trial to suppress Douglas' testimony on the grounds that it was obtained in violation of federal anti-gratuity laws under 18 U.S.C. 201(c)(2), and Kansas Rule of Professional Conduct 3.4(b). Upon the denial of the suppression motion and Singleton's conviction at trial, Wachtel continued to pursue the issue on appeal.
18 U.S.C. 201(c)(2) reads in 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 addition, Kansas Rule of Professional Conduct 3.4(b), which is a verbatim statement of the Model Rule 3.4(b), explicitly prohibits a lawyer from "offer[ing] an inducement to a witness that is prohibited by law." See also, DR 7-109(c) of the ABA Model Code of Professional Responsibility (prohibition of payment to a witness contingent on content of testimony, except for reasonable expenses, compensation for time, or expert fees).
Repeating Justice Brandeis' famous words of dissent in Olmstead v. United States, 227 U.S. 438, 485 (1928), the Tenth Circuit echoed the fundamental principle underlying its holding that 201(c)(2) applies equally to prosecutors:
. . . Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
As the panel concluded: "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." Id. at ___.
There was little question in Singleton whether the "promises made" by the prosecution to Napoleon Douglas constituted "anything of value" under 201(c)(2). Citing cases where value has been defined by the courts as embodying notions of worth, utility, and importance, other than pure monetary meaning, the panel found that the courts have uniformly rejected arguments that "anything of value" should be restricted to things of monetary, commercial, objective, actual, or tangible value. Citing, United States v. Schwartz, 785 F.2d 673, 679-81 (9th Cir. 1986); United States v. Marmolejo, 89 F.3d 1185, 1191 (5th Cir. 1996).
Interestingly, the government also argued in Singleton, as noted by the panel "without argument or authority," that agreements for testimony between the government and a witness are simply not contemplated by 201(c)(2). The Department of Justice posited that Congress never intended for the statute "to hamper the punishment for crime by bringing within its sweep this government practice." The panel firmly rejected the government's argument, concluding that any viable theory of justification of law enforcement authority would not apply in the situation of a federal prosecutor giving a gratuity to a witness because (1) a prosecutor is not a police officer, and (2) the consideration is by no means required, as in any case in which such a justification has been recognized, such as an exigent need to make an arrest or prevent an escape or other crime. Singleton, ___ F.3d at ___.
The Tenth Circuit also examined the statutory construction of 18 U.S.C. 201(c)(2), and determined that a fair reading of the "plain language" of the statute's subject "whoever" would indeed bring an Assistant United States Attorney acting on behalf of the government "within the statutory class" identified. Id. at ___. The panel held that only in cases where general statutory language would (1) deprive the sovereign of "a recognized or established prerogative title or interest", or (2) in a situation where a statute would create "an absurdity if applied to the government" (where, say, a speed limit was applied to a policeman pursuing a suspect) would there be any reason to exclude a prosecutor from the statutory class "whoever." Id. at ___. Finding that the application of 201(c)(2) to prosecutors would not restrict any interest of the sovereign itself and operate only upon an agent of the sovereign by "limiting the way in which the agent carries out the government's interest," the panel found that application of the law to prosecutors could not be said to deprive the sovereign of an established prerogative. Id.
What is far and away the most surprising aspect of the Singleton decision is the fact that the court readily concludes that the appropriate remedy for testimony obtained in violation of 201(c)(2), is the actual suppression of its use at trial. Id. at ___. While the panel makes clear that the suppression remedy "rests wholly on the government's statutory violation, not on the prosecutor's violation of Kansas Professional Rule 3.4(b)," the opinion does not flinch at implementation of this sweeping remedy in response to the prosecution's violations of the anti-gratuity statute. The panel justifies the suppression remedy on two grounds.
First, it distinguishes the violation itself, a statutory one, from a purely ethical one, and grounds its decision in the historical use of an exclusionary rule applied to constitutional, statutory and procedural rule violations. Id. at ___, citing, Sabbath v. United States, 391 U.S. 585, 588-90 (1968); Miller v. United States, 357 U.S. 301, 313-14 (1958); Nardone v. United States, 308 U.S. 338, 339-41 (1939). Second, the court carefully distinguished the Singleton facts as a case where it is the statutory violation itself, a witness' accepting value from a party for his testimony, as one that directly taints the reliability of the underlying evidence. A clear distinction was made by the panel from those cases in which tangible evidence is improperly obtained whose reliability is unaffected by an underlying illegality, such as in a typical search and seizure scenario. Singleton, ___ F.3d at ___. Finally, the panel recognizes that the unethical and unlawful practice of purchasing informers testimony is so widespread and ingrained that warnings alone will not eliminate the problem.
The Singleton remedy of suppression of such testimony is certainly appropriate. Although the remedy is often referred to, its rare implementation by the trial courts is often reversed. See, Tarlow, "The Supervisory Power to Dismiss: An Essential Solution to the Problem of Misconduct," CACJ Forum, Vol. 20, No. 4 at pp. 18-27. The panel takes great pains not only to emphasize that the remedy is not being applied for the clear ethical violation by the prosecutor, but also underscores that the remedy does not rest on a constitutional violation. (". . .It is a creature solely of statute"). Id. at ___. Eric Holder, Deputy Attorney General, head of the Criminal Division, made very clear that the Justice Department believed the decision should not be read too broadly. He implied that a simple statutory change by Congress could easily bring back "the tradition" of purchasing witness testimony, which has been long adhered to by the Justice Department.
The Singleton court not only failed to address the constitutional due process issues inherent in the payment of prosecution witnesses, but in most respects rejected any due process violation as a basis for challenge in the case. Id. at ___. Although the court recognized the serious ethical violations committed by federal prosecutors giving benefits to witnesses for testimony, it stopped short of holding that the ethical violation itself was enough to trigger the suppression remedy in the Singleton case.
As we have often commented in this column, prosecutors' claims of unique exemption from ethical rules and laws that prevent other lawyers from buying witness testimony reflects the same morally skewed perspective that underlies the infamous Thornburgh Memorandum. See, Rico Report, The Champion (4/95, 12/94). Holding that "cases involving the application of ethical rules to federal prosecutors fortify our conclusion," the Singleton panel joined the line of cases in which the federal courts "have unanimously rejected the notion that federal prosecutors are exempt from these ethical rules." Singleton, ___ F.3d at ___, citing, O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252, 1257 (8th Cir. 1998); United States v. Lopez, 4 F.3d 1455, 1458-63 (9th Cir. 1993). The court concluded: "If federal prosecutors are bound by an ethical rule governing ex parte contact in the course of a prosecution, we think it even more clear that they are bound by a federal statute regulating the evidence presented in federal court." Singleton, ___ F.3d at ___.
The Singleton opinion even went so far as to explicitly address the Attorney General's attempts to exempt departmental attorneys from compliance with ethical requirements adopted by state bars to which they belong, and "urge[d] reconsideration and withdrawal of the Attorney General's June 8, 1989 "Thornburgh" Memorandum, 'Communications With Persons Represented by Counsel.'" H.R. Rep. No. 101-986, at 32 (1990); Singleton, ___ F.3d at ___. Yet as it endorsed the equal application of ethical rules to prosecutors, the panel avoided reaching the issue of whether exclusion of testimony is an appropriate remedy for the ethical violation that occurred. Applying rules of professional conduct to all attorneys -- defense lawyers and prosecutors alike -- and imposing appropriate sanctions in criminal cases, such as the exclusion of tainted testimony and its fruits, would certainly promote fairness and integrity in all judicial proceedings.
Interestingly, the Singleton opinion carefully distinguished its ruling from the three previous cases which raised and rejected the application of 201(c)(2) to federal prosecutors. The panel found that in United States v. Isaacs, 347 F.Supp. 763 (N.D. Ill. 1972), a federal district court in Illinois had mischaracterized 201 when it rejected the application of 201(c)(2) because there had been no proof that consideration had been given which was specifically "intended to influence testimony." Finding that the statute "is abundantly clear that it proscribes gratuities regardless of intent to influence testimony," the panel sharply criticized what it found to be the district court's misplaced reliance on Giglio v. United States, which indicated suppression was not an appropriate remedy where the government promises leniency to a witness in return for her testimony. See, Isaacs, 347 F.Supp. at 767.
The Singleton panel also rejected the reasoning by the Seventh Circuit in United States v. Barrett, 505 F.2d 1091, 1100-02 (7th Cir. 1987), in which the government had entered into a plea agreement similar to the one entered into with Napoleon Douglas. In Barrett, the cooperating co-conspirator had been offered an extraordinarily lenient sentence and transactional and civil tax immunity. The witness' testimony was that he paid large bribes to various public officials, namely the defendant. The Barrett court ruled that 201(c)(2) only prohibited the government from giving "unauthorized" things of value for testimony, and that because the consideration in the witness' case had been "authorized," there could be no violation of 201. Singleton concluded that the Barrett reasoning would "eviscerate" 201(c)(2) because it would mean the government could pay money to a witness for his testimony as long as the government was authorized to "expend money": " 201(c)(2) discriminates not on the basis of what things of value are authorized, but whether the thing is given 'for' or 'because of' testimony." Singleton, ___ F.3d at ___.
In 1995, a U.S. District Court in the Southern District of Florida had utilized local ethical rules in condemning payments to informers by a private party insurance company and its lawyers who were working hand-in-hand with federal prosecutors in Miami investigating an insurance fraud ring. Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Association, 865 F.Supp. 1516 (S.D. Fla. 1994),117 F.3d 1328, 1335 n.2 (11th Cir. 1997). In Golden Door, the district court held that a private party (a Lloyds of London syndicate) and its attorneys violated Rule 3.4 of Florida's Rules of Professional Conduct by embarking on a "journey of making . . . payments to witnesses, potential witnesses, intermediaries, bodyguards, and others," while trying to prove that an alleged $9 million gold theft from its insured was an inside job. Lloyds had joined with federal agents to gather evidence that the theft was a fraud, and as a part of the joint efforts paid over $753,000 to "witnesses, informants, and intermediaries" in exchange for their cooperation, civil depositions, and promises to testify during criminal proceedings. Id. at 1521.
Yet despite the arguments of defense counsel that the prosecutors and the insurance company had violated the federal gratuity laws under 18 U.S.C. 201, et seq., the district court fell short of finding that Lloyds and its counsel had committed a crime on the grounds that there was insufficient evidence of "(a) a corrupt mind by the alleged bribe-giver, or (b) that the induced testimony was false." Id. at 1524 n.10.
The Singleton panel distinguished its ruling from Golden Door to the extent the Eleventh Circuit held that 201(c)(2) is violated only when the resulting testimony is false. Finding that nothing about the bribery statue under 201(c)(2) required an element of proof as to the falsity of the resulting testimony, the court found it anomalous to require that under a gratuity provision both the testimony actually be given and that it be false, when the bribery statute requires neither. Promising something of value to secure truthful testimony is as unlawful as buying perjured testimony. Finding that there is "no principal basis on which to judicially add elements to the statute when Congress has chosen not to include them," Singleton rejected such reasoning under the plain language of the statute. There is, of course, a common sense aspect to this conclusion. It eliminates a charade that is often involved in prosecution plea agreements -- that the benefits are being given for truthful testimony. In reality, they are often only given for the prosecutor's version of the truth. The court wisely believed that Congress intended to prohibit giving money to a witness even if the donor comments that "of course this is for you to tell the truth." See, In Re Klien, (Ill. Sup. Ct. 12/2/77), where a Chicago lawyer was suspended from practice for one year for paying a police officer a small amount of money to "tell the truth" at a motion to suppress hearing.
The aftershocks from the Singleton decision have indeed been felt. The Justice Department almost immediately announced it would appeal the ruling by asking the full Tenth Circuit U.S. Court of Appeals to reconsider the decision en banc. It was unnecessary to ask, because the court on its own motion quickly agreed to do so. A week after the Singleton decision was published, the Denver U.S. Attorney's Office sought to dismiss all charges against three men accused of two armed robberies in Colorado Springs, based on the fact that two of the key witnesses in the robbery case had been offered leniency in exchange for their testimony. In its motion to dismiss, the prosecution argued that because they were on notice that a court had ruled that the use of such testimony constituted a crime, they could not legally proceed with the case.
At the hearing of the motion, however, U.S. District Court Judge Richard Matsch (of McVeigh and Nichols trial fame) refused to dismiss the case, and instead gave a pep talk to the prosecutors about not giving up so early. He continued the case until appeal of the Singleton decision was final. Interestingly, it is Matsch's own case in the Oklahoma City bombing trial which could have been heavily impacted by the Singleton decision. Timothy McVeigh's lawyers have asked the Tenth Circuit Court of Appeal to delay a ruling until the Singleton decision is reconsidered en banc. Two of the judges on the Singleton panel will decide McVeigh's fate.
In a surprising move by an otherwise consevative federal judge in Ft. Lauderdale, Florida, on August 4, 1998, U.S. District Judge William J. Zloch barred prosecutors from promising leniency to three drug defendants in exchange for testimony. Judge Zloch ruled that the local U.S. Attorney's Office had "purchased the testimony of co-defendants" and therefore that such a witness "has every reason to fabricate, falsify or exaggerate in his attempt to curry favor" with prosecutors. United States v. Lowery, Case No. 97-368 (S.D. Fla. 1998. See also, United States v. Ward, Case No. 98-6004 (S.D. Fla. 1998).
In the same breath as it gives real hope for a more honest and level playing field in criminal cases, the Tenth Circuit opinion also clearly invites political meddling: "This venerable principle ('if the government becomes a lawbreaker, it breeds contempt for law...') will not give way to the expediency of the government's present practices without legislative authorization." Citing, Arizona v. Maricopa County Medical Society, 457 U.S. 332, 354 (1982). Before the facsimile machines have even finished delivering the Singleton opinion, however, some members of Congress are already clamoring publicly to promise swift legislative action to explicitly authorize such lawbreaking.
(To order a copy of NACDL's amicus brief on Singleton, contact the BriefBank.)Continuity and Relationship of RICO Predicates A violation of RICO occurs when a person is (1) employed by or associated with (2) an enterprise (3) engaged in or affecting interstate commerce, (4) where the person conducts or participates in a pattern of racketeering activity. 18 U.S.C. 1962(c). A "pattern of racketeering activity" is described as "at least two acts of racketeering" committed within ten years of each other. Id.
Although the statutory language of RICO makes clear that the two predicate acts used to establish a pattern of racketeering activity must be committed within ten years of each other, early judicial interpretations of RICO's pattern requirement differed. Some courts interpreted the pattern requirement broadly, finding the commission of any two acts sufficient to constitute a pattern. See, e.g., United States v. Weisman, 624 F.2d 1118, 1122 (2d Cir. 1980) (noting that the statutory language of RICO does not expressly require that the two acts be "related"). Other courts, however, construed the requirement narrowly, holding that the mere commission of two acts is not enough to constitute a pattern. See, e.g., United States v. Dean, 647 F.2d 779, 792 (8th Cir. 1981) (holding that it is "continuity plus relationship which combines to produce a pattern").
The Supreme Court has made two attempts to clarify what constitutes a "pattern of racketeering." In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985), the Court agreed with cases such as Dean and held that isolated acts do not constitute a pattern; "continuity plus relationship" between the acts is required. Id. at 496. The Court justified that interpretation on the basis of RICO's legislative history, see S. Rep. No. 617, 91st Cong., 1st Sess. 158 (1969) (using "continuity plus relationship" language), as well as the definition of "pattern" provided in 18 U.S.C. 3575(e), which states that "criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics."
The Supreme Court's second attempt to clarify RICO's pattern requirement came in H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229 (1989). In H.J. Inc., the Court held that although proof of the factors will often overlap, the government must show continuity and relationship as separate elements in order to establish a pattern of racketeering activity. Id. at 239-43. The "relationship" element is satisfied by showing that the interrelation of the two predicate acts satisfies the definition of "pattern" provided by Section 3575(e). Id. at 240. The "continuity" element is satisfied by showing actual continuity during a past, closed period of repeated conduct, or by the threat of continued racketeering activity in the future. Id. at 242.
Different Tests
Despite the Supreme Court's decisions in Sedima and H.J. Inc., courts have adopted different, sometimes irreconcilable tests to determine whether predicate acts constitute a pattern of racketeering.The First Circuit uses a strict two-tiered test for the continuity element, one that focuses on the length of time and number of acts required for continuity, see, e.g., Apparel Art Int'l, Inc. v. Jacobson, 967 F.2d 720, 723-24 (1st Cir. 1992) (holding that several episodes over a short period of time to achieve a singular goal is not a pattern), but uses a lenient test for the relationship element, one that focuses on whether the acts were part of a single scheme. See, e.g., Feinstein v. Resolution Trust Corp., 942 F.2d 34, 44 (1st Cir. 1991) (holding that the fact-specific allegation of a single scheme may be sufficient to establish relatedness). The Sixth and Tenth Circuits have adopted a similar approach. See, e.g., United States v. Blandford, 33 F.3d 685, 703-04 (6th Cir. 1994) (finding continuity and relationship in mail fraud scheme that took place over six years and threatened to occur in the future); Bacchus Indus., Inc. v. Arvin Indus. Inc., 939 F.2d 232, 237-38 (10th Cir. 1991) (denying claim for failure to allege sufficient continuity and relatedness).
The Second Circuit has held that a pattern of racketeering activity cannot be established without some showing that the racketeering acts are interrelated and that there is continuity or a threat of continuity. See, e.g., United States v. LoCascio, 6 F.3d 924, 943 (2d Cir. 1993) (holding that predicate acts need not be related to each other as long as both are related to the RICO enterprise).
The Third Circuit has held that the primary issue with regard to continuity is whether the evidence indicates that criminal activity is likely to continue in the future, and has taken a liberal approach to relationship, finding that the relationship element is satisfied by all but the most disconnected criminal acts. See, e.g., United States v. Eufrasio, 935 F.2d 553, 565 (3d Cir. 1991).
The Fourth Circuit has broadly interpreted the continuity and relationship elements, holding that there is "no question . . . that a single scheme may be sufficient to establish a pattern." Parcoil Corp. v. Nowsco Well Serv., Ltd., 887 F.2d 502, 503 (4th Cir. 1989).
The Fifth Circuit has abandoned its broad interpretation of the pattern requirement in the wake of H.J. Inc. The circuit now uses H.J. Inc.'s definitions of continuity and relationship in RICO cases. See, e.g., United States v. Bustamonte, 45 F.3d 933, 941 (5th Cir. 1995) (finding continuity satisfied where related acts of bribery and acceptance of an illegal gratuity were separated by a four-year period); In re Burzynski, 989 F.2d 733, 742 (5th Cir. 1993) (finding no pattern where all criminal acts were part of a single legal action).
The Seventh Circuit has now modified its traditional fact-based, multi-factor test, see, e.g., Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir. 1986) (listing pattern factors, which included number and variety of predicate acts, period of time over which acts were committed, number of victims, and presence of separate schemes), to incorporate elements of H.J. Inc. The circuit now examines its traditional factors in the context of the Supreme Court's suggestion in H.J. Inc. "that continuity encompass a lengthy period of racketeering activity or a threat of continued criminal activity." J.D. Marshall v. Redstart, Inc., 935 F.2d 815, 820 (7th Cir. 1991).
The Eighth Circuit uses a version of H.J. Inc.'s "continuity plus relationship test." The relationship test turns on whether "acts are similar in method, purpose and result"; the continuity test turns on whether "a threat of causing continuous harm in future" exists. Diamonds Plus., Inc. v. Kolber, 960 F.2d 765, 769 (8th Cir. 1992). The circuit emphasizes, however, that what constitutes a pattern is ultimately a question of fact for the jury. Id.
Finally, the Ninth and Eleventh Circuits have adopted an expansive interpretation of the pattern requirement, one that permits finding a pattern even where all of the predicate acts occurred in the same criminal episode. See, e.g., United States v. Kirk, 844 F.2d 660, 664 (9th Cir. 1988) (holding that predicate acts may constitute a pattern even though only one scheme involved); United States v. Gonzalez, 921 F.2d 1530, 1543 (11th Cir. 1991) (holding that two predicate acts in close temporal proximity and involving the same criminal scheme does not necessarily defeat continuity). In the Ninth Circuit's view, the Supreme Court's "continuity plus relationship" test is not determinative, but merely indicates that RICO does not proscribe isolated or sporadic criminal acts. See Sun Sav. & Loan Ass'n v. Dierdorf, 825 F.2d 187, 192 (9th Cir. 1987).
It is important to note that although the prosecution must show continuity and relationship as separate elements in order to establish a pattern of racketeering activity at trial, H.J. Inc., 492 U.S. at 239-43, the indictment does not have to specify those elements with particularity to adequately plead a RICO violation. That is the holding - specifically with regard to continuity, but by extension to relationship as well - of a recent Seventh Circuit case discussed in last month's RICO Report, United States v. Palumbo Bros., Inc., __ F.3d __ (7th Cir. 1998).
In addition to the preemption issues discussed last month, Palumbo Bros. also involved an individual defendant's challenge to the sufficiency of the government's indictment with respect to the pattern of racketeering activity it alleged. Daniel Ferrarini is charged in Count 1 of the indictment with a substantive RICO offense, in violation of 18 U.S.C. 1962(c). The indictment identifies 23 predicate acts of racketeering activity, but only names Ferrarini in two racketeering acts - two acts of mail fraud in connection with the defendants' scheme to defraud various government entities.
At the district court level, Ferrarini moved to dismiss Count 1 on the ground that the prosecution failed to demonstrate the continuity of his predicate acts in the indictment, even though continuity is a required element of a RICO offense. In response, the prosecution argued that the indictment established sufficient continuity of Ferrarini's predicate acts to constitute a pattern of racketeering activity, because a threat of continuity exists where the predicate acts are part of a routine way of conducting business.
The district court agreed with Ferrarini and granted his motion to dismiss in its entirety. United States v. Palumbo Bros., Inc., No. 96 CR 613 (N.D. Ill. Aug. 20, 1997). The court concluded that Ferrarini's predicate acts were part of a single scheme of criminal activity, not a pattern of racketeering activity, and that the indictment did not establish sufficient continuity between those acts. Id.
The Seventh Circuit reversed, once again teaching Ferrarini's appellate lawyer, G. Robert Blakey -- a Notre Dame law professor and one of the authors of RICO -- the powerful lesson that the principles he advocates for the residents of Mulberry Street are too often applied to businessmen on La Salle Street. The Seventh Circuit acknowledged that an indictment must include all of the essential elements of a crime to sufficiently charge a criminal violation of a statute prohibiting that conduct. See, e.g., United States v. Yoon, 128 F.3d 515, 521-22 (7th Cir. 1997). It held, however, that continuity is not an essential element of a RICO offense: "although continuity is an essential element of proof necessary at trial to conclusively establish Ferrarini's pattern of racketeering activity . . . it is not an essential element of a RICO offense that must be clearly and specifically established in the indictment." Palumbo Bros., __ F.3d at __; see also United States v. Boylan, 898 F.2d 230, 250 (1st Cir. 1990) ("Continuity is not an element of a RICO offense, stricto senso, but it is nevertheless a necessary characteristic of the evidence used to prove the existence of a pattern.").
Although the Seventh Circuit rejected the idea that continuity is an essential element of a RICO offense that must be pled with particularity in an indictment, it did note that "an indictment must include supplemental facts that reasonably substantiate the existence of continuity," and that "a district court may consider those external factual allegations in the indictment that identify and describe the elements of a crime to determine the existence of continuity in a defendant's predicate acts." Palumbo Bros., __ F.3d at __ (citing United States v. Turino, 978 F.2d 315, 318 (7th Cir. 1992)). That requirement did not help Ferrarini; given his central role in the scheme to defraud detailed in the indictment, the court had little trouble concluding that continuity between his predicate acts. Nevertheless, the "reasonably substantiated" requirement is one that lawyers in RICO cases should keep in mind when assessing the sufficiency of an indictment.
Government Objects to Order Requiring Truthful Wiretap Affidavit In the March 1998 RICO Report, we discussed the ongoing legal hearings in United States v. Salemme, Cr. No. 94-10287-MLW (D. Mass. 1997), involving the validity of the interception orders for three electronic listening devices the government obtained between 1984 and 1991 to monitor the activities of Boston's Winter Hill Gang, and La Costra Nostra ("LCN"), The Mafia. As discussed in that column, Judge Wolf, the presiding judge in Salemme, has forced the government to reveal a great deal of previously-confidential information relating to the necessity for the three wiretaps, including information indicating that Whitey Bulger, the leader of the Winter Hill Gang, and his partner in crime, Stephen Flemmi, were FBI informers for more than two decades. Not surprisingly, Judge Wolf has been less than pleased with the government's failure to disclose that information, and has greeted each new government revelation with the degree of suspicion warranted by its appalling record of dishonesty.
Indeed, things have only become worse for the government since March of this year. On May 12, Gary Crossen, the former AUSA who applied for federal court permission to bug Bulger's automobile and condo, testified that if he had known that Bulger and Flemmi were FBI informers, he would have disclosed that information to the judge in his application. Ralph Ranalli, Testimony May Have Hurt Wiretap Validity, Boston Herald, May 13, 1998. Then, on May 27, former Massachusetts Governor William Weld, who gave final approval for the FBI's application to bug a La Cosa Nostra hangout in the Prudential Center when he was a high-ranking official in the Justice Department, told Judge Wolf that he now believes that portions of the wiretap application were "outright false," and that he would not have approved the application if he had known that Bulger and Flemmi were FBI informers at the time. Ralph Ranalli, Key Wiretap Requests May Have Contained False Info, Weld Testifies, Boston Herald, May 28, 1998. In light of those admissions, it is now highly likely that Judge Wolf will conclude that the government's applications for the contested interception orders did not satisfy 18 U.S.C. 2518(1)(c), which requires the government to submit, as part of an application for an interception order, "a full and complete statement as to whether or not other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Judge Wolf has already held that the "full and complete statement" requirement is unqualified. See United States v. Salemme, 978 F. Supp. 343, 348 (D. Mass. 1997).
Judge Wolf's justified skepticism toward the government's representations relating to its use of informers has begun to spread to his fellow federal judges in the District of Massachusetts. Earlier this year, Judge William G. Young authorized the interception of wire communications in a case in that district. (The facts of the case - indeed, the name of the case itself - are presently sealed.) Judge Young's authorization order, however, contains a term that is completely unprecedented:
This order is entered on the express representation that there are no other informants presently known to the government knowledgeable of the matters contained herein. If that representation is inaccurate, this order is of no force and effect.
Not surprisingly, the government is extremely upset about this aspect of Judge Young's interception order. Indeed, immediately after Judge Young granted the interception order, the government moved him to reconsider his inclusion of the term. Fortunately, Judge Young refused to do so. In re Application for Interception of Wire Communi-cations, 1998 U.S. Dist. LEXIS 7506 (D. Mass. April 30, 1998).
Judge Young makes clear in his order that he does not question the necessity of the electronic surveillance. Indeed, he specifically states that "there has been no suggestion, nor does the Court harbor any suspicion, that either the affiant or anyone connected with this investigation has been anything other than forthright in the preparation of this application." Id. at *4. Nevertheless, Judge Young felt that the disputed term was necessary in light of the events in Salemme:
Id. at *4-*5.It has come to light in an unrelated prosecution now pending before another judge of this District that the government failed to reveal the existence of confidential government informants in its application to intercept and record wire communications. . . . With a caution born of these revelations, the Court predicated its own order in this case on the representation that the united States had no knowledge of undisclosed informants in a position to assist this investigation.
Judge Young's order also clarifies the government's burden in satisfying the necessity requirement of 18 U.S.C. 2518(3)(c) (providing that the government must demonstrate to the satisfaction of the court issuing the interception order that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous"). According to the order, the government agent who applied for the order must have made "a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive as electronic interception of telephone calls." Id. at *6 (quoting United States v. Hoffman, 832 F.2d 1299, 1306-07 (1st Cir. 1987)). Such a good faith effort does not permit the government to "recklessly remain ignorant" of its own informants, nor does it permit the government to "file and support this application as though the right hand knows not what the left hand does." In re Application for Interception of Wire Communications, 1998 U.S. Dist. LEXIS 7506, at *6 (quoting United States v. Sullivan, 586 F. Supp. 1314, 1318 (D. Mass. 1984)).
Judge Young's insistence on holding the government to its statutory obligations is both courageous and commendable. Indeed, the opposition to his order seems disingenuous at best: by opposing the order, the government is clearly asserting that it has the right to file incomplete and misleading applications for interception orders whenever it feels that protecting its informers is more important that being candid with a federal court. Fortunately, as demonstrated by both Salemme and In re Application for Interception of Wire Communications, federal courts disagree.
Can A Court Limit Informer Cross-Examination Because It Is Too Effective? The constitutional right of confrontation is the right to cross-examine a hostile prosecution witness to undermine credibility by highlighting bias. See, Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974). The Supreme Court has consistently "recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Green v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400 (1959); accord, Olden v. Kentucky, 488 U.S. 227, 231, 109 S. Ct. 480, 483 (1988). Additionally, courts have made clear that the right to examination is "particularly important when the witness is critical to the prosecution's case." United States v. Mizell, 88 F.3d 288, 293 (5th Cir.), cert. denied, 117 S. Ct. 620 (1996).
Although it is well established that a trial court may impose reasonable limits on defense counsel's questioning into the potential bias of a prosecution witness to prevent "harassment, prejudice, confusion of the issues, . . .or interrogation that [would be] repetitive or only marginally relevant" [Olden, 488 U.S. at 232], until a defendant's actual cross-examination of that witness has satisfied the Sixth Amendment, the trial court's discretion does not come into play. In other words, the discretion to cut off cross-examination cannot be exercised until "the constitutionally required threshold of inquiry has been afforded the defendant." United States v. Tracey, 675 F.2d 433, 437 (1st Cir. 1982). Any exercise of the court's discretion once the threshold is reached must be informed by "the utmost caution and solicitude for the defendant's Sixth Amendment rights". Particularly in the case of a cooperating prosecution witness, counsel should be allowed great latitude in cross-examining the witness regarding his motivation or incentive to testify falsely. United States v. Hall, 653 F.2d 1002, 1008 (5th Cir. 1981). The right of cross-examination:
. . . is so important that the defendant is allowed to 'search' for a deal between the government and the witness, even if there is no hard evidence that such a deal exists. What tells, of course, is not the actual existence of a deal, but the witness' belief or disbelief that a deal exists.
Id., (quoting United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976)).
Given the clear legal precedent in this area, an alarming line of cases has developed, culminating in United States v. Cropp, 127 F.3d 354 (4th Cir. 1997), in which a panel ruled that a court may severely limit cross-examination on the extent to which a co-conspirator's sentence may be favorably affected by cooperation with the prosecution. Although the decision in Cropp is horrendous, it is also narrow and should be treated as such, given the clear decisional law holding that per se prohibition of cross-examination of the prosecution witness' deal is constitutional error. What Cropp and other cases, discussed infra, suggest, however, is that while the judge cannot cut off cross-examination as to the witness' understanding of his deal or that a possible "severe" penalty will be avoided, the judge can prohibit discussion of the potential sentence. Cropp, 127 F.3d at 356.
In Cropp's trial for conspiracy to distribute crack cocaine in violation of 18 U.S.C. 841, most of the prosecution's witnesses were co-conspirators who had entered into cooperation agreements. The credibility of those witnesses was thus extremely relevant to the case against all the defendants. Prior to the start of cross-examination of the first cooperating witness, however, the district court ruled that the defense could not ask about the specific penalties that the witnesses would have received absent cooperation, or about the specific penalties they hoped to receive due to their cooperation. Id. The district court's convoluted analysis concluded that asking witnesses about the sentences they expected to receive, in part, would allow the jury to infer the very long sentences faced by the appellants. Therefore, Judge James H. Michael, Jr. concluded that the jurors might hesitate to find the appellants guilty even if the evidence proved their guilt. Ultimately the trial court did allow defense counsel to ask the cooperating co-conspirator witnesses whether they had signed plea agreements, whether they in fact faced a "severe penalty" prior to cooperating, and whether they expected to receive a lesser sentence as a result of the cooperation. However, Judge Michael, did not allow any questions about the specific penalties of 10-20 years at stake. Id.
Attempting to distinguish this case from the long line of cases which make clear that a trial court's refusal to allow defendants to inquire in any meaningful way about cooperation constitutes reversible error, the panel in Cropp held that it was sufficient that the trial court allowed the defense to elicit testimony about the "severe penalties" in the cross-examination without eliciting the actual potential sentence. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431 (1986). Incredibly, the panel justified its decision based on the trial court's bizarre theory that the jury might "nullify" its verdict if it knew the extreme penalties faced by the appellants. This reasoning is particularly specious in view of the absence of any publically reported incident of jury nullification in "crack" cases with the Fourth Circuit.
Relying on what it called "several related decisions which guide us in this matter", the Fourth Circuit panel awkwardly defended its ruling by citing cases which did not go nearly as far in prohibiting any meaningful questions whatsoever about the benefits which a witness expected to receive for cooperation. In United States v. Ambers, 85 F. 3d 173, 175 (4th Cir. 1996), the Fourth Circuit upheld a district court's decision not to allow the defense to question witnesses about the specific sentencing guideline ranges they faced before and after cooperation. However, the district court in Ambers ruled that a discussion of the mechanics of the guidelines would needlessly confuse a jury, while questioning regarding the actual sentences was appropriate. Id. at 176. The specific rationale used to support the conviction in Ambers inexplicably had no application to the Cropp appeal where defense attorneys were attempting to elicit the specific sentencing expectations and not any complex guideline information. The Fourth Circuit also inappropriately relied upon United States v. Odoms, 736 F.2d 104, 108 (4th Cir. 1984), in which it affirmed a trial court's decision to prohibit further cross-examination about bias when the witness had already answered other questions sufficient to show there was indeed a reason to lie, unrelated to a sentence.
Prior to its decision in Cropp, the Fourth Circuit had previously ruled that the defense was allowed to ask at least some questions about the length of sentences at issue. See, Ambers, 85 F.3d at 175, United States v. Dorta, 783 F.2d 1179, 1182 & N.6 (4th Cir. 1986). Properly arguing that the length of the possible benefit in years and months is certainly relevant to the issue of bias of prosecution witnesses, and that obviously the greater the sentence faced by the witness absent cooperation, the stronger the motivation to lie. The Fourth Circuit actually rejected this persuasive defense argument and concluded that this constituted but a "small distinction" which did not require the court to depart from its prior precedent. Cropp, 127 F.3d at ____.
In its disingenuous justification for this absurd position, the Fourth Circuit panel actually stated that:
Against whatever slight additional margin of probative information gained by quantitative questions, we must weigh the certain prejudice that would result from a sympathetic jury when it learns that its verdict of guilty will result in sentences of 10 and 20 years in prison.
Id. at __. In other words, where the cross-examination of a prosecution witness would reveal facts too damaging to the government's case, the courts will necessarily exercise discretion to ensure a defendant's conviction.
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