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United States v Singleton
"Ever dance with the devil in the pale moonlight?"
John V. Wachtel
What follows is an OACDL Vindicator exclusive: Val Wachtel, the attorney for the citizen accused (and convicted) in the USA v. Singleton case writes about his experience for the OACDL. Also included are excerpts from the brief filed before the 10th Circuit. The case was significant enough for the 10th Circuit to sua sponte grant rehearing en banc. In the same order the Court order the parties to brief the issue of retroactivity.
This case has a better than average chance of finding its way to the United States Supreme Court. If it does, Mr. Wachtel has asked, and the OACDL has agreed, to file an amicus curiae brief.
Harry R Reinhart, President
Ohio Association of Criminal Defense Lawyers
On July 1, 1998, in United States v. Singleton, 1998 WL 350507, a panel of the Tenth United States Circuit Court of Appeals issued a unanimous decision which held that the federal bribery statute, 18 U.S.C. § 201 (c)(2),prevents the government from offering anything of value in exchange for the testimony of a witness. The panel, which was made up of Chief Judge Seymour and Judges Ebel and Kelly, found that the sweeping statutory language, "anything of value," includes offers of lenient treatment, including inter alia, reduced charges, immunity and promises of U.S.S.G. 5K1 motions for reductions of sentences, the panel included that the testimony of an alleged co-conspirator that had been secured in exchange for promises of a 5K1 motion, dismissal of certain other charges, and assistance in securing a sentence reduction in the state of Mississippi, should not have been admitted at trial. The testimony was ordered suppressed, the conviction was overturned and the case was remanded for re-trial. [ftn 1]
The Singleton decision remained in effect until July 10, 1998, when the Tenth Circuit, on its own motion, ordered rehearing of the case, en banc. The order of rehearing directed that supplemental briefs be filed, and that counsel, in addition to any other arguments pertinent to the case, address whether any opinion reversing the district court would have prospective or retrospective application. Pursuant to 10th Cir. R. 35.6, the decision of the panel was vacated pending en bane review.
Both sides have filed supplemental briefs. Ms. Singleton's brief is summarized with this article, and a copy is also available at the Klenda, Mitchell, Austerman & Zuercher, L.L.C. web site - www.kmazlaw.com. It is also available by contacting OACDL Executive Director, Susan Carr. Oral argument is scheduled for sometime during the week of November 16, 1998.
As the readers may have noticed, the decision of the panel set off a firestorm among federal prosecutors and "tough on crime" federal legislators. In its supplemental brief, the government spent slightly over one page addressing the question of retroactive application of the decision, and the remainder of the brief attacking the decision itself. The thrust of the government's argument is that it has always done business this way, and if it is prevented from offering value in exchange for testimony it will no longer be able to secure convictions in conspiracy cases. As is its wont the government failed to address the universally recognized fact that the testimony of these "paid" witnesses is inherently untrustworthy? [ftn 2]
Even though Singleton is pending rehearing, the defense bar has begun to address this issue in other federal courts. On August 4, 1998, Judge William J. ZIock of the United States District Court for the Southern District of Florida, in United States v. Lawery, Case No. 97-368-CR-ZLCOH, adopted the reasoning of the Tenth Circuit panel and agreed that § 201(c)(2) was indeed applicable to the government. In a thirty-one page written opinion which does not yet seem to have been published, Judge Zloek suppressed the testimony of co-conspirators who had been offered lenient treatment by the government in exchange for their testimony. Judge Zlock has maintained a consistent policy in this regard, and he has suppressed such testimony in several other cases.
On a less positive note, other federal trial judges are working hard to craft their way around the reasoning applied by the Singleton panel. In, another Southern District of Florid case, United States v. Guillaume, 1998 WL 462199(S.D.Fla.) the court concluded that § 201(c)(2) is not applicable to the government. In United States v. Arana, 1998 WL 420673(E.D.Mich.) and United States v. Duncan, 1998 WL 419503 (E.D.La.), trial courts have denied "Singleton" motions.
Despite the fact that the Tenth Circuit has decided to rehear Singleton, the reasoning applied by the panel remains powerful and persuasive. None of the district court opinions declining to apply § 201(c)(2) to the government match the critical analysis used by the Singleton panel. In fact, in Duncan the court overruled the motion to suppress by just pointing out that the Singleton decision had been vacated pending rehearing.
In the final analysis, the argument of the government to the effect that it should be allowed to continue to pay for occurrence testimony rings hollow. In the late 1990s, while Congress is considering the possible impeachment of a president, one is reminded of an earlier time when President Richard Nixon was fighting to avoid impeachment. His men then argued that certain conduct was acceptable because it had always been done that way. Senator Sam Irwin responded saying, "There has been murder and larceny since time began, but that don't make murder meritorious nor larceny laudable." That same reasoning is applicable to the government's argument. Despite the fact that the government has always engaged in this conduct, the conduct has always been wrong.
1. It should also be noted that the panel ruled that when the government offered the testimony of the co-conspirator it violated Kansas Rule of Professional Conduct 3.4(b) (1997), which holds that it is improper to pay an occurrence witness any fee in exchange for testimony.
2. For an in-depth discussion of how the question of the "paid" occurrence witness is being addressed in Canada, see Jack King, "The Ordeal of Guy Paul Morin: Canada Copes with Systemic Injustice," The Champion, August 1998.
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA Plaintiff-Appellee VS. No. 97-3179
SONYA EVETTE SINGLETON Defendant-Appellant
On Appeal from the United States District Court
for the District of Kansas
The Honorable Frank G. Theis
Senior District Judge
APPELLANT’S BRIEF
John V. Wachtel
Klenda, Mitchell, and Zuercher L.L.C.
1600 Epic Center, 301 N. Main
Wichita KS 67202
The American judicial system has long recognized that there exists an inherent danger of untruthfulness in the paid "occurrence" witness. In criminal cases payment can take many forms, ranging from outright cash payments to promises of leniency in the government’s treatment of the "paid" witness. In reflecting upon the dangers of using paid witnesses in criminal cases, the Fourth Circuit Court of Appeals has written: "Obviously promises of immunity or leniency premised on cooperation in a particular case may provide a strong inducement to testify falsely in that case." United States v. Meinster, 619 F.2d I041, 1045 (4th Cir. 1980).
It is a crime to pay a witness - other than an expert - for testifying. Title 18 United States Code, Section 201 addresses the issue of providing something of value to a witness in exchange for his testimony. The section provides in pertinent part that:
(c) Whoever -
(2) 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, any committee of both House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person absence therefrom;
shall he fined under this title or imprisoned for not more than two years or both.
18 U.S.C. 201(c)(2) (Emphasis added).
Section 201(c)(2) does not require that the offer be made with the intention of the offeror to influence the testimony of the witness. This conclusion is buttressed by the implication implicit in §201(d) which provides:
(d) Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (e) and (3) shall not be construed to prohibit the payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lust in attendance at any such trial, hearing, or proceeding, or , in the case of expert witnesses, a reasonable the for time spent in the preparation of such opinion, and in appearing and testifying.
18 U.S.C. 201(d). This conclusion has additional support. In Golden Door Jewelry v. Lloyds, the trial court, contrasting the requirement of corrupt influence contained within §201(b)(3) with the language of §201 (c)(2), found that:
The plain language of §201(e)(2) does not distinguish between truthful or untruthful testimony. Moreover, the legislative history of §201(c)(2) is silent on whether Congress intended to make such a distinction. See S. Rep. No. 2213, 87th Cong., 2nd Sess. (1962), reprinted in 1962 U.S. Code Cong. & Admin. News 3852.
Golden Door Jewelry v. Lloyds, 865 F.Supp. 1516, 1523 (S.D. Fla. 1994). The Golden Door court further stated that: 'Section 201(c)(2), on the other hand, does not require a corrupt mind. It makes it a crime for anyone who: 'Directly or indirectly, gives offers or promises anything of value to a person, for or because of the testimony under oath or affirmation given by such person as a witness upon a trial, hearing or other proceeding, before any court . . .' Id. at 1523, (emphasis added). Accordingly; anyone, even one without a corrupt motive, who offers anything of value other than those considerations described in §201(d) to a potential witness in exchange for his testimony has committed a felony.
Despite this section of the United States Code which clearly prohibits and makes criminal the provision of anything of value to a witness in exchange for his testimony, the government, through the Department of Justice and the various United States Attorney’s Offices, has a well established policy of providing witnesses with valuable consideration - things of value - in exchange for their testimony in criminal cases. It is not at all unusual for the government to promise leniency at sentencing, or to agree to accept a plea of guilty to a lesser charge, or to agree to file for a sentencing departure under §5K1 of the Sentencing Guidelines, or agree to intercede with the courts of the several states if the offendee agrees to cooperate and testify at the trial of others who stand accused of crimes. In fact, the Department of Justice has on several occasions paid substantial sums of money to witnesses who testify.. See J. Richard Johnston, "Paying the Witness," Criminal Justice, Pages 21-22, Volume 11, Number 4, Winter 1977.
So common is the practice of offering things of value to witnesses forth their testimony that prior to trial Ms. Singleton believed that such promises had been Douglas. This belief was ultimately borne out by the testimony of Douglas when he admitted that in exchange for his cooperation the government had promised to seek a departure from his sentence for conspiracy and money laundering and that the government planned to ask the courts of Mississippi to reduce his sentence in that state.
Prosecution is appropriate for those who violate §201(c)(2). Can there be any doubt, if defense counsel began to offer things of value to occurrence witnesses, that the government would have a field day announcing prosecutions of the defense bar? However; it is unrealistic to expect the government to prosecute Assistant Untied States Attorneys for violating §201(c)(2) when the courts have, over the years, been liberal in allowing the testimony of witnesses who have been "paid." For example, in United States v. Dailey, 759 F.2d 192 (lst Cir. 1985), the court allowed the testimony of an accomplice of the accused who had entered into a plea agreement with the government which was contingent upon his cooperation as a witness. In United States v. Grlmes, 438 F.2d 391 (6th Cir. 1971) the testimony of a government informer who had participated in the offense was admitted despite the fact that the informer was to be paid a fee for his testimony which was contingent upon a conviction. The accused in those cases challenged the admission of such testimony without success. However, none of these challenges arose out of §20 l(c)(2).
Counsel for Ms. Singleton has been unable to find any cases in which representatives of the Department of Justice, Assistant United States Attorneys, or attorneys engaged in private practice have been prosecuted for violations of §201(c)(2). Generally, what prosecutions there have been were directed at witnesses who solicited bribes in exchange for thier testimony in violation of §20 1l(c)(3). In addition, counsel can find no criminal cases in which the admissibility of the testimony of a government witness was challenged on §201(c)(2) grounds.
Without regard to the paucity of cases involving §201(c)(2), it is clear that violations of the law may not simply be ignored or swept under the rug in the interest of some supposed "greater good." While prosecution of the Assistant United States Attorney who offered valuable concessions to the "paid" witness Douglas is unlikely, there is a response appropriate to such conduct. As a result of the government's willful violation of §201(c)(2), the testimony of Douglas should have been suppressed. Suppression of testimony for violations of §201(c)(2) is not without precedent. There are civil eases in which sanctions have been imposed for violations of §201(¢)(2) and corresponding violations of the various states' codes of ethical conduct.
The Eleventh Circuit Court, in dicta discussing the section, seems to be the only court to have made a distinction between truthful and untruthful testimony. The court indicated, also in dicta only and without citation, to precedent, that the section contemplated only false testimony. United States v. Moody, 977 F.2d 1420, 1425 (11th Cir. 1992). Other courts have not seen the need to read the requirement of untruthfulness into the statute. In Hamilton v. General Motors Corp., 490 F.2d 223 (7th Cir. 1973) the court discussed generally the prohibition against contracting to pay fact witnesses anything above what is allowed by statute. The Hamilton court, citing prior cases and referencing both 18 U.S.C., 20 l(i), the predecessor to §201(c)(2),and the common law, wrote that contracts to pay fact witnesses more than what is allowed by statute are "against public policy," and are "against the spirit of the constitution." The court went on to note that the "tendency to evil consequences is apparent." ld at 227-29.
If purchased testimony is looked at askance by the civil courts, what measures then have been taken to protect against it? In Golden Door, while the court was unable to determine that the purchased testimony was untruthful, it resolved the issue by looking at the ethical standards placed upon attorneys. The court concluded that the payments to the witness for fact testimony are clearly prohibited by Rule 4-3.4(b) of the then Rules of Professional Conduct. The court further concluded that this was the case without regard to the truth of falsity of the testimony. The court sanctioned the party offering the purchased testimony by excluding all of the testimony. Golden Door Jewelry, 865 F. Supp. at 1524-27.
Both Kansas and American Bar Association have ethical rules which prohibit payments to fact witnesses. The Model Rules of Professional Conduct, adopted by the State of Kansas on or about March 1, 1988, provide as follows: "A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." Rule 3.4(b) (emphasis added). The Comment to Rule 3.4(b) states:
With regard to paragraph (b), it is not improper to pay a witnesses' expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.
(Emphasis added.) It has been further slated that:
(The Rule) bars lawyers from offering inducements to a witness that are '"prohibited by law," which undoubtedly goes beyond bribery. Similar statutory and common law prohibitions exist in one form or another in every jurisdiction. It is well established, for example, that witnesses may not be paid a fee for telling the truth, for that is their duty in any event.
Hazard and Hodes, The Law of Lawyering: A Handbook of the Model Rules of Professional Conduct 2d, at 632. (Note also that §201(d) sets out and defines those things of value which maybe provided to a witness.)
The Assistant United States Attorneys who handled the present case are members of the bar of the State of Kansas. They, just as is counsel for the defense, are subject to the Kansas Supreme Court Rules relating to the discipline of attorneys. The government violated Rule 3.4(b), and it was clearly within the power of the District Court to impose sanctions against the government for the violation of the Kansas disciplinary rules. The appropriate sanction to be applied in the present case is to prohibit the government from offering the testimony of any witnesses to whom it has promised or delivered, anything of value. By the same token, it was within the power of the District Court to exclude the testimony of Douglas because it had been procured in violation of §201(c)(2).
Promises of leniency are strong inducements to testify falsely. United States v. Meinster, 619 F.2d at 1045. The use of purchased testimony is not only unethical, it is unlawful and dangerous. While the courts have been willing to admit the testimony of "paid" witnesses over challenges arising other than out of §201(c)(2), the courts have also recognized that the government’s paying witnesses and offering reduced sentences in exchange for testimony breaches established ethical standards and ''patently permits perversion of the trial process." U.S. v. Cervantes-Pacheco, 826 F.2d 310, 315-15 (concurring opinion) (5th Cir. 1987.)
Over the passage of time the courts have become more and more willing to allow the admission of the paid testimony of occurrence witnesses. An interesting discussion of this process can be found in United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987). It appears that the courts, with the encouragement of the Department of Justice, have all to willingly accepted the testimony of paid occurrence witnesses as a method of fighting the war on drugs. The ends, convicting drug lords, have come to justify the means - the use of the paid testimony of criminals. This has resulted in a coarsening of the trial process which has come to match the coarsening which occurred in general.
By presenting these "paid" witnesses, the government provides them with a mantle of credibility, reliability, and respectability. It is then assumed by the courts that, through the process of vigorous cross examination, the reliability and veracity- of the paid witness can be challenged and the jury will be able to divine the truth.
When the government offers the paid testimony of a admired and convicted felon, it enters into a compact with evil. The result is the ultimate erosion of respect for government which all people must have in order to maintain a free society. The courts should not allow the law to be used to aid the government in this process.
Justice Brandeis recognized this danger and foreshadowed it in 1928, when he wrote:
The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination...
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled it' it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example...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.
Olmstead v. United States, 277 U.S. 438, 484, 48 S.Ct. 564, 574-75, 73 L.Ed. 944 (1928) (Brandeis, J., dissenting) (footnote omitted).
If the government breaks the law in an attempt to secure a conviction, as it has in the present case by its violation of § 201(c)(2), it is the province and the duty of the courts to say, "No, this cannot be." This court has the enviable duty of protecting the government from itself. As Justice Brandeis recognized, in a free democratic society, the end may never justifies the means.
When the government allies itself with criminals, when the ends of fighting the war on drugs justifies the means of the fight, is it then any wonder that the people no longer respect the government, the law, or the United States? By granting Ms. Singleton's motion for sanctions, this court strikes a blow which promotes confidence in the administration of justice.
The government has not paid heed to Justice Brandeis. It has ignored his warning and it continues to argue that the only way to secure convictions of organized criminals, conspirators, and others is to make deals with other criminals. It believes that in order to triumph over lawbreakers it must embrace lawbreakers. Things of value have regularly been given to "paid" witnesses to secure their cooperation and testimony. Prior criminal conduct is regularly overlooked. And it had gotten worse.
In the case of John Gotti, the reputed boss of the former Gambino crime family, the government relied primarily on the testimony of a mass murderer, Gotti's lieutenant and co-defendant Salvatore "Sammy the Bull" Gravano. Gravano - hardly an alter boy - an admitted multiple murderer and organized crime soldier, was offered valuable considerations by the United States in order to induce him to testify against Gotti. Gravano accepted the offer, testified, and Gotti was convicted. Now Gravano has written a book about his experience, and the government is assisting him in retaining the royalties. Was Gotti a modern-day godfather? Quite possibly. Is society worsened by the government’s embrace of the mass murderer Gravano? Undoubtedly!
In the motion picture Batman, the Joker, asked his victims, "Ever dance with the devil in the pale moonlight?" The United States dances that dance every time it offers valuable considerations to criminals to induce them to "cooperate." The government clutches to itsl bosom and wraps the flag about criminal '`paid" witness.
Douglas was jest such a "paid" criminal witness. The courts have long recognized that paid testimony is not particularly trustworthy and '"patently permits perversion of the trial process." U.S. v. Cervantes-Pacheco, 826 F.2d 310, 315-15 (concurring opinion) (5th Cir. 1987.) Congress too recognized this danger and as a bulwark against mischief which can arise out of the paid witness, passed §201(c)(2), which clearly prohibits the use of paid testimony. The drafters of the Model Rules of Professional Conduct recognized the danger of the paid witness and adopted Rule 3.4. Juries, on the other hand are unsophisticated in the ways of the war on drugs, and do not always fully understand the inherent lack of trustworthiness of the paid testimony offered by the government.
In the present case Douglas, a paid witness who had admittedly lied to the government up to the day of the trial, was presented by the government as a witness against Ms. Singleton. The value he received for his testimony was the assistance of the United States in seeking to reduce his various prison sentences. His testimony was solicited and offered by the government in clear violation of the prohibitions of §201(c)(2) and Rule 4.3 of the Model Roles of Professional Conduct as adopted by the Kansas Supreme Court.
The District Court erred in admitting the testimony of Douglas over the objection of Ms. Singleton. The testimony of the '"paid" witnesses should not be submitted to any jury and it should not have been submitted to this jury. The testimony should have been stricken, and had it been there would have been no evidence that Ms. Singleton may have been involved in a cocaine conspiracy or money laundering. Her convictions for conspiracy to distribute cocaine and money laundering should be overturned.
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