Excerpts from FEDERAL CASE NO. 97-368-CR-ZLOCH: U.S. vs. Lowery

THIS MATTER is before the Court upon the Defendant, Oslet Franklin Lowery, Jr.'s Motion To suppress (DE 134). The Court has carefully reviewed said Motion and is otherwise fully advised in the premises.

In the instant Motion (DE 134), the Defendant has moved to suppress the anticipated testimony of his three co-Defendants, Guillermo Mallarino, Jose Ignacio Forero and Danny Morino, as the plea agreements in this matter secured such testimony in violation of Title 18, United States Code, Section 201(c)(2).

. . . Accordingly, the Court finds that the testimony of each of said co-Defendants should be suppressed.

I. INTRODUCTION

The Court notes that the Government of the United States consists of three separate, but equal, branches: the Executive Branch, the Legislative Branch and the Judicial Branch. The actions complained of herein by Defendant Lowery were performed by the Executive Branch, acting through its Department of Justice. Therefore, for the sake of clarity, throughout this Order, such actions will be noted as those of the Executive Branch.

. . . Defendants Mallarino, Forero and Morino entered into cooperation plea agreements with the Executive Branch (DE Nos. 55, 58 and 65). Each agreement contemplated the substantial assistance, including but not limited to truthful testimony, of each respective Defendant. In exchange, the Executive Branch agreed "to evaluate the nature and extent of [each] Defendant's cooperation and to make [such] Defendant's cooperation, or lack thereof, known to the court at the time of sentencing" (DE 55 at 5; DE 58 at 5; DE 65 at 6). In addition, the Executive Branch agreed that if the Defendant's cooperation was of substantial assistance in the investigation and prosecution of criminal matters, the Executive Branch "may" make a motion pursuant to Title 18, United States Code, Section 3553(e), Section 5K1.1 of the United States Sentencing Guidelines or Rule 35 of the Federal Rules of Criminal Procedure. Sections 3553(e) and 5K1.1 and Rule 35 enable a sentencing court, upon motion of the Executive Branch, to depart downward from or reduce the otherwise applicable guideline sentence.

. . .In support of his position, Defendant Lowery cites the recent decision by the United States Court of Appeals for the Tenth Circuit, United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). In Singleton, the Tenth Circuit concluded that the district court erred in denying the defendant's motion to suppress a witness' testimony where the Executive Branch, in return for such testimony, promised something of value to the witness, including advising the sentencing court of the nature and extent of the witness' cooperation.

. . . Although Singleton is no longer of precedential value, the Defendant adopts in its entirety the reasoning of the Singleton court. Conversely, it is the Executive Branch's position that the Singleton case was wrongly decided and that this Court should follow the precedent of the United States Court of Appeals for the Eleventh Circuit interpreting Section 201(c)(2). In particular, the Executive Branch asserts that first, Section 201(v)(2) does not apply to the Executive Branch; second, the Eleventh Circuit's decision in Golden Door Jewelry v. Lloyds Underwriters 117 F.3d 1328 (11th Cir. 1997), has already decided the issue before this Court; third, the more specific provisions of the substantial assistance statutes should prevail over the more general Section 201(c)(2); fourth, it is a settled practice of the Executive Branch to engage in this type of agreement; and fifth, the aforementioned agreements do not violate the Florida Bar Rules of Professional Conduct Noticeably absent from the Executive Branch's argument, however, is any recognition that the plain language of Section 201(c)(2) should control this Court's inquiry.

. . . Title 18, United States Code, Section 201(c)(2) provides as follows: (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, . . . . shall be fined under this title or imprisoned for not more than two years, or both . . .

IX. CONCLUSION

The Court's finding herein, although lengthy, may be reduced to one simple principle: it is not this Court's Constitutional function to engage in legislation. By invoking the theory that "settled expectations" demand exclusion of the Executive Branch from the reaches of Section 201(c)(2), the Executive Branch requests that this Court usurp the function properly left to the United States Congress. Moreover, the Executive Branch's theory amounts to nothing more than this: it has always been done this way, so it must be right. Such reasoning has never been the proper basis for a legal ruling and this Court refuses to make it the basis for one now.

Further, if, as the Executive Branch asserts, Section 201(c)(2) obviously excludes the Executive Branch, the Court feels compelled to question the need for legislation, hurriedly introduced in the wake of Singleton on July 15, 1998, to amend the Statute. See S. 2314, 105th Cong. (1998). By such action, Congress has reinforced the conclusion that Section 201(c)(2) presently includes the Executive Branch.

Finally, the Court notes that the testimony of cooperating witnesses and cooperating defendants is a valuable resource for law enforcement in the investigation and successful prosecution of criminal activity. Any exclusion, however, of the Executive Branch from Section 201(c)(2) must come from the Legislative Branch, and not the Judicial Branch. A judge's authority has limits and outside those limits or designated areas, the democratic institutions govern. Thus, if any changes are to be made to Section 201(c)(2), or if more appropriate, the substantial assistance provisions, it is solely for Congress, and not for the courts or the Executive Branch, to make them.

Accordingly, after due consideration, it is ORDERED AND ADJUDGED that the Defendant, Oslet Franklin Lowery, Jr.'s Motion To Suppress (DE 134) be and the same is hereby GRANTED.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 4th day of August, 1998.

WILLIAM J. ZLOCH

United States District Judge