Tenth Circuit Rules Against Leniency in Exchange for Testimony

IN THE COURTS July-August 1998

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit ruled on July 1 that it was illegal for the government to promise leniency to witnesses in exchange for testimony. On July 10, the full court, acting on its own, vacated the decision pending a rehearing this fall (U.S. v. Singleton, CA10, No. 97-3178, 63 CrL 451, 7/1/98, vacated 7/10/98) (Associated Press, "Ruling forbids deals for leniency," Philadelphia Inquirer, July 4, 1998; Richard A. Serrano, "Ruling imperils key tool of federal prosecutors," Star-Ledger (Newark), July 10, 1998, p. 1A; "CA10 Swiftly Grants En Banc Review, Vacates Ban on Prosecutors' Testimony Deals," Criminal Practice Report, July 15, 1998, Vol. 12, No. 14, p. 278).

The case involves a Kansas woman, Sonya Singleton, who allegedly participated in a money laundering conspiracy. Her conviction was based in large part on the testimony of a coconspirator, Napoleon Douglas, who had struck an agreement with the government that in exchange for his truthful testimony the government would not prosecute him for the activities being investigated.

The court said in a 3-0 ruling that obtaining testimony in exchange for leniency in the witnesses' own criminal cases violates a federal statute (18 U.S.C. 201(c)(2)) that prohibits giving or offering "anything of value ... for or because of" testimony. Leniency is something of value, the court concluded, saying, "It is difficult to imagine anything more valuable than personal physical freedom."

"The anti-gratuity provision of §201(c)(2) indicates Congress' belief that justice is undermined by giving, offering, or promising anything of value for testimony," the court said. "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."

The fact that leniency-for-testimony agreements are so common justifies their exclusion, the court said. "This ingrained practice of buying testimony indicates that suppression is necessary to compel respect for the statutory protections Congress has placed around testimony in federal courts." The court added, "When testimony tainted in this way is presented to the Courts of the United States, judicial integrity is impugned. ..."

If the decision stands, "it would have a "tremendously negative impact on the government's ability to investigate and prosecute crime by groups," including drug trafficking, said Mike Norton, a former U.S. attorney in Denver. However, the court argued its decision would not "drastically alter" Federal prosecutorial practices. "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 for their testimony," the court said.

On July 9, the Justice Department said it would appeal the decision. One day later, the decision was vacated pending a rehearing this fall by the full 10th Circuit. If the 10th Circuit affirms the original decision, the government is likely to petition the Supreme Court. In addition, the Justice Department is likely to lobby Congress to amend §201(c)(2) to exempt federal prosecutors (Kevin Johnson, "Justice fights ruling that bans leniency," USA Today, July 10, 1998, p. 1A; Joan Biskupic, "Justice Dept to Appeal Ruling on Testimony," San Francisco Chronicle, July 10, 1998, p. A10).

[This decision is potentially one of the most important decisions governing criminal practice in decades. -- EES]

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