Circuit Court Tells Prosecutors: Tempting Witnesses Akin to Bribery
Washington, DC, July 7, 1998 -- In the wake of last week's momentous federal appeals court decision turning aside the common practice by which the U.S. Department of Justice buys testimony against accused citizens, the National Association of Criminal Defense Lawyers is urging Congress and the Justice Department to change that practice across the board. NACDL is also alerting judges and defense attorneys around the nation that the Justice Department's practice of promising leniency to jailhouse informants in exchange for their testimony must now be deemed precisely what the 10th Circuit Court of Appeals declared it is: a violation of the federal bribery statute.
At the very least, federal prosecutors should be required to corroborate any such tainted testimony with non-accomplice testimony or other credible evidence -- both before any grand jury and at trial -- in jurisdictions which still permit such testimony, defense lawyer and NACDL President Gerald B. Lefcourt, New York, said today.
A unanimous panel of the federal 10th Circuit Court of Appeals in United States v. Singleton struck down the criminal conviction of Sonya Evette Singleton, alleged to have been involved in illicit drug activity and money laundering. The government essentially purchased the testimony of a star witness with promises not to prosecute him for certain crimes in state court and a pledge to inform the court of his cooperation. NACDL has long condemned the double standard which, until now, exempted prosecutors from the federal bribery statute, Title 18, Section 201 of the federal criminal code, and allowed prosecutors to pay for a witness' testimony in cash, or something even more valuable -- the witness' liberty, by dropping charges or more lenient sentencing, or the like. (Ms. Singleton's appeal was argued by long-time NACDL member John Val Wachtel, of the law firm Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, KS.)
"If the American justice system is a search for truth," Lefcourt said, "that search requires that every witness testify honestly and not for personal gain. If defense lawyers were to offer a witness anything of value in exchange for testimony, we'd be prosecuted, pure and simple. And what is more valuable than lenient sentencing or freedom? Prosecutors pay off cooperating witnesses with promises of money, soft sentencing, and promises not to prosecute at all.
"In a landmark ruling in a case of first impression, a highly-regarded federal appeals court has now agreed with what we have been saying for years -- no one should be convicted on the word of an accomplice alone. The enormous power of the government to lock up a defendant for life, or to free him altogether, creates an enormous incentive to lie. With today's inflation in sentencing -- particularly with mandatory minimums -- the Tenth Circuit has seen this type of deal for what it is: a violation of the plain language of the federal bribery statute," Lefcourt noted.
NACDL President-Elect and Denver criminal defense counsel Larry Pozner, who practices in the 10th Circuit, termed last week's decision "a bombshell." "The court has ended decades of government-sanctioned bribery. A system in which the government could exchange freedom for a story they wanted to hear is a system rampant with injustice and half-truths."
"At the very least Congress should require that such questionable testimony be corroborated, as is currently required in places like New York State," Lefcourt added. NACDL's Board of Directors approved just such a resolution in May 1996. Presented by Lefcourt, the resolution states:
RESOLVED, that NACDL supports legislation which would require in federal criminal prosecutions that accomplice testimony be corroborated by non-accomplice testimony and/or evidence, both in the grand jury and at trial, before it can be deemed sufficient to establish either probable cause or guilt beyond a reasonable doubt.
Right now, a federal jury in Miami is deliberating the fate of two attorneys accused of representing the alleged former heads of the Cali cocaine cartel in such a way that the government considers them principals in a 10-year conspiracy to import drugs and export money. The case is built not on familiar evidence -- such as wiretaps, fingerprints and surveillance photos -- but solely on the testimony of actual members of the conspiracy who pleaded guilty and hope to win their freedom by testifying against the attorneys. Last year, another federal jury acquitted the lawyers, Michael Abbell and William Moran, of the most serious charge in the indictment and deadlocked on the other charges. The government decided to try them again, but with no more evidence than they had at the first trial-- the bartered testimony of desperate men.
Juries naturally greet this type of bought-and-paid-for evidence with suspicion. Court will often instruct a jury that these "cooperating witnesses" have a motive to lie.
But in the case handed down last week, the 10th Circuit held, for the first time ever, that freedom-for-testimony deals violate the plain language of the federal bribery statute. There are good reasons why no one -- even federal prosecutors -- should ever be allowed to give a witness anything of value in exchange for testimony. As the court noted, there is probably nothing more valuable to a defendant facing a long prison term than the promise of freedom -- a gratuity which only the government has the power to confer.
After last week's ruling, such plea bargains are prohibited in the six states that make up the federal 10th Circuit: Oklahoma, Kansas, New Mexico, Colorado, Utah and Wyoming. But this kind of prosecutorial bribery is not uncommon. Although once the preferred method of making cases in the shadowy world of organized crime, in recent years it has become standard operating procedure, whether the accused are suspected drug dealers or a medical group under investigation for Medicaid or insurance fraud, or a small business accused of overbilling on a municipal contract, or a major corporation targeted for defrauding the federal government.
NACDL President Gerald Lefcourt summed up as follows:
"The 10th Circuit's decision to exclude bought-and-paid-for testimony from alleged co-conspirators should materially enhance the truth-seeking process. One of the basic tenets of American jurisprudence, civil and criminal, is that it is a search for truth -- not purchased truth or bartered-for truth, but the unvarnished truth that comes from the lips of a witness in whose integrity a jury can have confidence. When the government seeks to convict American citizens in a court of law, it must be above reproach. Promises of payment to a government witness, whether in cash, kind, or liberty, render that testimony inherently untrustworthy."
President Gerald B. Lefcourt's telephone #: (212) 737-0400
President-Elect Larry Pozner's telephone #: (303) 333-1890
The court's opinion in United States v. Singleton, written by Circuit Judge Paul J. Kelly, Jr., is online at http://lawlib.wuacc.edu/ca10/cases/1998/07/97-3178.htm.
NACDL is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's almost 10,000 direct members -- and 80 state and local affiliate organizations with another 28,000 members -- include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system.
Additional Background on Informant/Cooperating Witness Testimony
Instead of diligent investigation and development of hard evidence, agents and prosecutors now find it far easier to squeeze one of the suspected participants until he cracks, agrees to say what the prosecutors want him to say, and then turns on former associates at trial. In other words, instead of hard work, so many federal cases are now made by the carrot and the stick: promises of leniency versus the near-certainty of a federal mandatory sentence. This is true in spite of the fact that juries are sometimes so turned off by the parade of paid-off informants posing as witnesses that they reject this so-called "evidence" outright. For example:
A federal jury in New Jersey in 1987 deliberated less than a day after a 23-month trial before acquitting 24 accused organized crime members on all counts in United States v. Accetturo. The government's star witnesses, as it turned out, were forced to admit under oath to crimes such as murder, assault, and drug dealing. Yet the defendants were accused of what the jury could not help but perceive as the far less heinous offenses of gambling and contracting kickbacks.
In 1996, two Miami men, Willie Falcon and Sal Magluta were tried over a five-month period, accused of smuggling 75 tons of cocaine. No less than 27 convicted drug smugglers stepped forward and claimed to have been Falcon and Magluta's accomplices. All were promised reductions in their sentences by federal prosecutors in exchange for their testimony. As word circulated throughout the prison system that federal prosecutors were offering sentence reductions in exchange for testimony, suddenly everyone had a story to tell. The witnesses frequently conceded their desperation to please the government. One of the government's witnesses admitted that he began cooperating in earnest with the Drug Enforcement Administration and the Bahamian government only after trying to get a gun and break out of prison in the Bahamas (the escape attempt was a month after he first agreed to cooperate). As he told the jury in the Falcon case, "anybody would try to get a gun and escape from Foxhill." Another cooperating witness, already sentenced to 35 years in federal prison, wrote to a friend before the trial, "They [prosecutors] made me an offer I couldn't refuse. The truth of the matter is, you have to dance to the gringo beat, because out of 35 [years], you have to do 30. And I am 38 years old, and not even the Galapagos tortoise could complete it."
Not surprisingly, not all of the "conspiracies" which have been prosecuted in federal court even were conspiracies, courts have found. Federal informants, under enormous pressure to work off charges, or simply to make money from informants' fees, have been known to manufacture "cases" out of whole cloth in order to please the prosecution:
One of the more horrid examples of this type of outright fabrication occurred in Cleveland in 1992. More than 30 postal workers were arrested on federal drug trafficking offenses. All cases were dismissed after it was discovered that the informants fabricated the entire story.
Moreover, bought testimony can totally distort any notion of fairness or parity in sentencing. For example:
In 1991, Salvatore "Sammy Bull" Gravano was facing life without parole, charged by federal prosecutors with being John Gotti's underboss in the Gambino crime family. Life in the federal system means just that -- the convict leaves prison in a pine box. Federal prosecutors made Gravano a deal he could not refuse: plead guilty to a single racketeering count, testify, and walk out of prison a free man. During the Gotti trial, Gravano testified under oath (probably truthfully) that while a member of the Gambino family, he committed or ordered 19 murders. In consideration of his testimony, prosecutors requested he be sentenced to just 5 years in federal prison, and he served 51 months. Looked at another way, Gravano served only 2 months and 3 weeks for each confessed murder!
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National Association of Criminal Defense Lawyers (NACDL)