Court Rejects Leniency Promises
DENVER (AP) ó In a decision that could affect the appeal of Oklahoma City bomber Timothy McVeigh and change how prosecutors investigate criminal groups, a federal court has ruled that it is illegal for the government to promise leniency to witnesses in exchange for testimony.
In a 3-0 ruling, the 10th U.S. Circuit Court of Appeals said the practice amounts to buying testimony. The court, however, said Wednesdayís ruling will not ``drastically alteríí the governmentís practices. Prosecutors and defense lawyers strongly disagreed.
``This is a bombshell,íí said Larry Pozner, a Denver defense attorney. ``This hits the government right where they live. This is how the government is operating, and we have said for 40 years, if you say to somebody in criminal trouble, `Iíll give you a free pass, or Iíll let you go if you tell me the story I want to hear,í theyíll tell you whatever they need to say to get out of trouble.íí
The decision could have implications for McVeighís appeal, since the governmentís star witness in the Oklahoma City bombing case, Michael Fortier, testified against McVeigh after cutting a deal with prosecutors.
``Somewhere tonight there is indigestion in the Department of Justice,íí said Stephen Jones, McVeighís former attorney.
Two of the judges who made the ruling ó Circuit Judges Paul J. Kelly Jr. and David M. Ebel ó are assigned to McVeighís case. A decision on the appeal is expected this summer. McVeigh is awaiting execution for the April 19, 1995, bombing that killed 168 people, the deadliest act of terrorism ever on U.S. soil.
Mike Norton, a former U.S. attorney in Denver, said if the courtís decision stands, it will have ``a tremendously negative impact on the governmentís ability to investigate and prosecute crimes by groups ó conspiracy, drug trafficking, money laundering, securities fraud and health care fraud.íí
Norton said prosecutors routinely work their way up the chain of command in a criminal organization, offering immunity or plea bargains to lower-level participants in exchange for testimony against their superiors. Judge Kelly said such deals violate federal law.
``The government may still make deals with accomplices for their assistance other than testimony, and it may still put accomplices on the stand; it simply may not attach any promise, offer or gift to their testimony,íí the court said.
The law states that anyone who directly or indirectly ``gives, offers or promises anything of value to any person for or because of testimony ... shall be fined ... or imprisoned for not more than two years, or both,íí Kelly said.
The ruling came in the case of a Wichita, Kan., woman accused of being part of a cocaine trafficking ring. Her conviction was based in large part on the testimony of another person involved in the conspiracy, Napoleon Douglas.
The government did not specifically tell Douglas that it would seek a reduced sentence for him, but promised it wouldnít prosecute him for other offenses and would tell both the sentencing judge and his parole board about his cooperation, the court said.
The appeals court said Douglas was promised leniency in exchange for his cooperation and testimony. Leniency is something of value, wrote the court, and therefore illegal as part of a deal for testimony.
``The obvious purpose of the governmentís promised
actions was to reduce his jail time, and it is difficult to imagine
anything more valuable than personal physical freedom,íí
Sat, 4 Jul 1998 - Orange County Register ( CA)
COURT RULES OUT PROMISES OF LENIENCY
Law enforcement: The appellate judges say prosecutor's offers of reduced sentences are a violation of federal law.
Denver-In a decision that could hamstring prosecutors, a federal appeals court ruled that it is illegal for the government to promise leniency to witnesses in exchange for testimony.
The 10th U.S. Circuit Court of Appeals said in a 3-0 ruling Wednesday that the practice amounts to buying testimony. The court said its decision will not "drastically alter" the government's practices, but lawyers disagreed.
"This is a bombshell," said Denver defence attorney Larry Pozner."This hits the government right where they live. This is how the government is operating, and we have said for 40 years, if you say to somebody in criminal trouble, 'I'll give you a free pass, or I'll let you go if you tell me the story I want to hear,' they'll tell you whatever they need to say to get out of trouble."
Mike Norten,former U.S. attorney in Denver, said that if the decision stands, it will have "a tremendously negative impact on the government's ability to investigate and prosecute crimes by groups-conspiracy, drug trafficking, money laundering, securities fraud and health-care fraud."
Norton said prosecutors offer immunity or plea bargains to lower-level participants in exchange for testimony against their superiors.
Circuit Judge Paul J.Kelly Jr. said such deals violate federal law.
"The government may still make deals with accomplices for their assistance other than testimony, and it may still put accomplices on the stand; it simply may not attach any promise, offer or gift to their testimony," the court said.
The law states that anyone who directly or indirectly "gives, offers or promises anything of value to any person for or because of testimony...shall be fined... or imprisoned for not more than two years, or both," Kelly said.
"One of the very oldest principles of our legal heritage is that the king is subject to the law. King John was taught this principle at Runnymede in A.D.1215, when his barons forced him to submit to Magna Carta, the great charter that imposed limits on the exercise of sovereign power."
The ruling came in the case of a Wichita, Kan., woman who was accused of being part of a cocaine trafficking ring. The woman's conviction was based in large part on the testimony of another person involved in the conspiracy, Napoleon Douglas.
The appeals court said Douglas was promised leniency in exchange for his cooperation and testimony. Leniency is something of value, wrote the court, and therefore illegal as part of a deal for testimony.
The government did not specifically tell Douglas that it would
seek a reduced sentence for him, but promised it wouldn't prosecute
him for other offenses and would tell both the sentencing judge
and his parole board about his cooperation, the court said.
Fri, 10 Jul 1998 - San Jose Mercury News ( CA)
GOVERNMENT TO FIGHT FOR PLEA BARGAINS
It Challenges Appeals-Court Decision Outlawing Prosecution Tool
WASHINGTON -- The Justice Department said Thursday that it would appeal a Colorado appeals-court ruling that prohibits prosecutors from obtaining witnesses' testimony with promises of leniency, a ruling that could jeopardize criminal cases nationwide.
Government officials believe the decision by Denver's 10th Circuit Court of Appeals undermines a tactic used commonly by prosecutors, and that it might threaten recent convictions won by plea agreements, including the Oklahoma City bombing cases.
``If the decision is read very, very broadly,'' said Deputy Attorney General Eric Holder, ``it could have a very wide-ranging impact.''
In last week's ruling, a three-judge panel said plea negotiating was akin to bribery, and ordered a new trial for a woman accused in a drug conspiracy case.
``Promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony,'' the panel ruled.
``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.''
A different panel of the same court is considering the appeal of Timothy McVeigh, who was sentenced to death for the Oklahoma City bombing.
During McVeigh's trial and the trial of his partner, Terry Nichols, prosecutors relied on the testimony of Michael Fortier, a co-defendant.
Fortier was sentenced to 12 years in prison after he outlined McVeigh's plan to blow up the Alfred P. Murrah Federal Building. The blast killed 168 people.
Joseph Hartzler, chief prosecutor against McVeigh, said Thursday that he believed that the conviction against McVeigh would stand because defense lawyers did not raise objections to the plea agreement in earlier appeals.
McVeigh's attorneys could not be reached for comment, but former federal prosecutor Ronald Woods, who helped represent Nichols, said: ``This decision is a topic of conversation in every U.S. attorney's office across the country.''
Nichols was sentenced to life in prison last month. His appeal has yet to be filed.
The Justice Department is asking the nation's U.S. attorney's offices to notify Washington of an expected flood of requests from defense attorneys across the country seeking to have their clients' convictions overturned.
``It goes to the way in which prosecutors at the federal, state, and local levels have conducted themselves for a good number of years,'' Holder said.
Holder, the former U.S. attorney in Washington, also
defended the prosecutor's art of deal-making with criminals.
``Any responsible prosecutor always tries to substantiate
( what) any witness for the government is going to be saying,''
he said. ``And especially . . . in instances
where the testimony is elicited after some kind of a deal is
Reuters News Services - 10 Jul 1998
Author: Robert Boczkiewicz
APPEALS COURT STAYS LENIENCY RULING
DENVER ( Reuters) - The 10th Circuit Court of Appeals Friday postponed a controversial new ruling barring federal prosecutors from promising leniency to cooperative witnesses in criminal cases.
The Denver-based court unexpectedly stayed last week's ruling by a three-judge appellate panel, one day after the Justice Department said it would ask the full U.S. appeals court to reverse the ruling which might affect many convictions, including those in the Oklahoma City bombing case.
Friday's order said the court was acting on its own initiative to indefinitely postpone the effective date of the ruling until all 12 judges of the court can reconsider the decision that was issued by the three-judge panel.
The July 1 ruling said it was illegal for federal prosecutors to offer leniency in exchange for testimony. It led to a backlash from prosecutors, members of Congress and editorial writers because of its negative effect on law enforcement.
"The appeal will be set for oral argument during the November session of the court," the court said in a two-page order.
The ruling applied only to the six states of the 10th Circuit, which covers Colorado, Kansas, Oklahoma, New Mexico, Utah and Wyoming, but the Justice Department did not want it to be adopted by appeals courts in other parts of the country.
Deputy Attorney General Eric Holder said it was difficult to say whether the ruling would affect the appeals of Timothy McVeigh and Terry Nichols, who were convicted in the Oklahoma City bombing in 1995 that killed 168 people.
A key witness in the case, Michael Fortier, testified after reaching a plea deal with prosecutors that promised him leniency.
Several members of Congress said they would propose legislation to overturn the ruling.
The panel's ruling had an immediate effect in some states because trials were approaching in cases in which prosecutors said their cases were dependent on testimony based on agreements that would be illegal under the new decision.
Washington Post - Saturday, July 11, 1998
Court Stays Leniency Ruling
A federal appeals court in Denver yesterday held up implementation of a controversial decision that forbids prosecutors from promising leniency to witnesses in exchange for their testimony against other criminal defendants, Justice Department officials said.
The 10th U.S. Circuit Court of Appeals announced a rehearing of the case by the entire court, staying the decision in the meantime.
The July 2 decision by a three-judge panel sent shock waves through the Justice Department because it challenged the common prosecutorial practice of securing accomplicesí testimony in order to build a case against more dangerous or more important defendants.
Deputy Attorney General Eric H. Holder Jr. announced Thursday
that the Justice Department would appeal the decision, but the
circuit court yesterday acted on its own to put the decision
on hold and launch the appeals process.
San Francisco Examiner ( CA) - Sun, 12 Jul 1998
Author: Debra J. Saunders
WHENEVER a panel of judges cites the Magna Carta, it won't be long before you pinch yourself and ask who died and made these folks king.
Witness the recent out-of-the-blue decision by a three-judge panel of the U.S. Court of Appeals in Denver. The judges decided that it is illegal for federal prosecutors to offer immunity in exchange for testimony; then likened their ruling to the lesson King John was taught at Runnymede in 1215.
The court could stand a Runnymede. The ruling departs from earlier decisions, and outlaws a long-time practice essential to enabling small fish to finger insulated crime bosses. The decision is now law in New Mexico; Kansas, Oklahoma, Colorado, Utah and Wyoming.
Already the Rocky Mountain News has reported that federal prosecutors in Denver have moved to throw out criminal charges against three accused armed bank robbers because their case relied on two witnesses with leniency deals. The attorney who won the ruling believes it could help the appeals of convicted Oklahoma City bombers Timothy Meveigh and Terry Nichols.
The ruling also could chill all pending federal prosecutions and immunity deals - including a deal for Monica Lewinsky. If other courts adopt this stand, thugs will rejoice. Mass murderer Charlie Manson was convicted after Linda Kasabian testified against him under grant of immunity.
Wichita, attorney John Val Wachtel, who won the decision on behalf of client Sonya Singleton, expects lawyers across the country to start filing what are now called "Singleton motions."
Singleton was 24, black and pregnant, when a jury convicted her on one count of conspiracy to distribute cocaine and seven courts of money laundering and sentenced her to 46 months behind bars. She had been living with drug dealer - who cut a deal with prosecutors and never served time.
She was convicted - based on the testimony of another deal-cutter also higher in the drug chain, also freed from prosecution. She got a raw deal.
"When the government wraps the American flag around a sinner newly come to Jesus, juries believe them, because that witness is cloaked with the power and majesty of the United States and my client, a poor little black girl, is nobody," Wachtel said.
I empathize. But this ruling hits immunity abuses and forthright deals with the same club. The cure is worse than the disease.
And the ruling was dishonest. As they argued that immunity was tantamount to bribery, the judges also claimed that their ruling will not outlaw all immunity deals. Jack King, spokesman for the National Association of Criminal Defense Lawyers, summed up: "Prosecutors can still try and flip witnesses, but they can't promise them anything."
That's a joke. First, the decision steps on defendants' rights against self-incrimination, which may not please defense attorneys who try to help clients win immunity. Then later, the judges concocted a scenario under which immunity might be legal - which violates their own logic, that an immunity offer is inherently corrupting.
Former federal prosecutor Victoria Toensing reacted to the ruling: "I probably couldn't have done any of my cases. Unless you have an undercover agent, you couldn't do any cases against higher ups.
Bully for the court. It made it harder for the feds to prosecute small-time Singletons, and nearly impossible to go after sickos and crime bosses. All rise.
You can read Debra J. Saunders online at http://www.sfgate.com.
Every now and then, a federal appeals court issues a ruling that is, at once, so wrongheaded and so sweeping that it results in a brief period of uncertainty in the legal world before being reversed. The decision last week by the U.S. Court of Appeals for the 10th Circuit in the case of U.S. v. Singleton is one such bombshell. A unanimous three-judge panel threw out the drug conspiracy and money laundering conviction of a woman named Sonya Singleton, finding that the government had violated a criminal anti-gratuity statute by promising leniency to a witness in exchange for his testimony.
On its face, the decision seems faintly reasonable. There is, after all, a federal law that holds criminally liable anyone who, `directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given . . . by such person as a witness.' This law contains no explicit exception for the government, and leniency in sentencing is certainly of value to a person who is facing jail. Hence, the court held, the government violated the law by using bought testimony, and Ms. Singleton's conviction must be thrown out.
Logical, perhaps, but dead wrong. What the government actually promised the witness was, in fact, a standard plea agreement of a sort prosecutors rely on every day. Oklahoma City bomber Timothy McVeigh was convicted based, in substantial part, on testimony by Michael Fortier--who was allowed to plead guilty to lesser charges. Many, if not most, significant investigations rely on witnesses who are `flipped' by prosecutors in exchange for some sort of special treatment, almost all of which could be considered `of value.'
This practice can be--self-evidently--corrupting. A witness who knows that his cooperation will get him a cut sentence has a strong incentive to say what prosecutors want to hear. But the traditional remedy is the cross examination of the witness by defense lawyers, and no court has previously deemed a run-of-the-mill plea agreement to be a felony by a prosecutor.
Though the law does not explicitly exempt the government,
this appears to reflect only the fact that members of Congress
never considered the possibility that they were criminalizing
normal prosecutorial practice. In fact, Congress has adjusted
the law in question without balking at the behavior of prosecutors.
And the Supreme Court, in Giglio v. U.S., held that when the
government makes a deal with a witness, that a deal must be disclosed
to the defense as exculpatory evidence--a holding that seems
to concede that the deal-making itself is legitimate. The 10th
Circuit's decision is at odds both with assumed prosecutorial
practice and--by the judges' own admission--with the other judicial
authorities in the books.
From the Legal Times, Week of July 13, 1998
Federal Court Watch--Appeals Panel Retracts Snitch Ruling
BY ROBERT SCHMIDT
It was a revolutionary federal appeals court decision--a unanimous ruling by three judges that the time-honored prosecutorial tactic of offering witnesses leniency in exchange for their testimony is illegal--and it sent prosecutors and defense lawyers into a frenzy.
The ruling's sweeping implications also apparently caught the very judges who issued it off guard.
In a highly unusual move late last week, the U.S. Court of Appeals for the 10th Circuit, acting on its own motion, vacated the July 1 opinion in United States v. Singleton so it could address the issue en banc.
The decision stunned defense lawyers across the nation, some
of whom had already filed motions in other federal courts based
on the precedent. The 10th Circuit's reversal, however, pleased
prosecutors--especially officials at Main Justice, who have been
scrambling to develop for U.S. attorneys' offices legal guidelines
that take Singleton into account.
Timeworn practice of granting immunity faces its day in court
Don't-go-to-jail deals are being questioned
By Anne Gearan ASSOCIATED PRESS
August 12, 1998 WASHINGTON-Monica Lewinsky is just the most prominent witness to win immunity from federal prosecution lately. The practice is timeworn and a constant irritant to defense lawyers, who call it little short of bribery.
A federal court seemed to agree with them last month in a judicial bolt from the blue. The ruling, now on hold, took issue with the moral and legal underpinning of immunity deals and, essentially, would make criminals of federal prosecutors who offer them. The initial ruling, issued by a three-judge panel from the Denver-based 10th U.S. Circuit Court of Appeals, "was a bucket of ice water for prosecutors," said John Shepard Wiley Jr., a law professor at the University of California Los Angeles who routinely fashioned such bargains as a federal prosecutor in Los Angeles. But soon after it was issued, the full appeals court decided to review the decision this fall, meaning the panel's ruling is not yet in force.
The Justice Department will appeal the ruling this week, spokesman John Russell said, adding, "We thought it was a disaster." Many legal experts say the full court will almost certainly overrule the panel. The Justice Department asked federal prosecutors to keep track of instances where defense lawyers cite the opinion to argue their clients were convicted illegally. The July 1 decision, if allowed to take effect, would be binding law in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming and would surely be an issue in federal prosecutions nationwide. "If it's a federal crime to offer something for testimony in Colorado, then it's going to be a federal crime in Maryland or Virginia or California," said Larry Pozner, president-elect of the National Association of Criminal Defense Lawyers.
The deals themselves are the linchpin of a simple strategy prosecutors use to crack criminal rings: Find the guy who will talk, offer a deal and get him to testify against the others. Prosecutors strike hundreds-if not thousands-of such deals every year. "If it stands, and I can't believe that it will, the whole judicial system would come to a screeching halt," said one prosecutor who spoke on condition of anonymity. For now, prosecutors are proceeding as if the ruling did not exist and keeping their fingers crossed, the prosecutor said.
Initial fears that the ruling could affect the case of convicted Oklahoma City bomber Timothy McVeigh passed when McVeigh's lawyers lost a request for a delay in his sentencing. Defense lawyers argued the ruling could help McVeigh get a new trial because a friend testified against him in return for leniency. In the Lewinsky case, if the three-judge panel's rationale is adopted nationwide, President Clinton or others could argue the former White House intern got an illegal quid pro quo. Lewinsky won immunity from prosecution for herself and her mother before she agreed to go before a grand jury last week.
"When prosecutors dangle a 'Get Out of Jail Early' card, it is the equivalent of handing someone cold cash," said Debra Soltis, a Washington defense lawyer who represents accused drug dealers and others in federal court. "I think it's just using common sense to say that it's a bribe and that it is outrageous." Broadly read, a federal bribery law makes it a crime for anyone to offer "anything of value" in return for testimony. Prosecutors say the law was not intended to cover them. The three judges cited the Bible and the Magna Carta to rebut prosecutors' arguments. "One of the very oldest principles of our legal heritage is that the king is subject to the law," they wrote.
The case behind the decision involved the testimony of one
drug ring member who testified against others in return for the
promise he would not be prosecuted for some crimes and the hope
that a judge would sentence him more lightly. The decision was
written by two Republican appointees-U.S. District Judges Paul
J. Kelly Jr., appointed by President Bush, and David M. Ebel,
appointed by President Reagan-and the chief judge of the 10th
Circuit, Stephanie Seymour, appointed by President Carter, a
27 October 1998 - New York Times (NY)
Author: William Glaberson