MOTION TO COMPEL DISCLOSURE

OF EXISTENCE AND SUBSTANCE OF PROMISES OF

IMMUNITY, LENIENCY OR PREFERENTIAL TREATMENT

The Defendant, by and through undersigned legal counsel, moves this Court for the entry of an order requiring the government to disclose, in writing, to defense counsel the following information:

The existence and substance, and the manner of execution or fulfillment, of any promises, agreements, understandings, or arrangements, either verbal or written, between the government and any prosecution witnesses, or their attorneys or representatives, wherein the government has agreed:

(a) not to prosecute the witness for any crime or crimes;

(b) to recommend a reduction in charge or charges against the witness in any criminal proceeding now pending in any jurisdiction;

be filed for any crimes or suspected crimes committed by the witness;

(d) to provide a formal grant of statutory immunity; or to provide an informal

assurance that the witness will not be prosecuted, in connection with any

testimony given by the witness;

(e) to recommend leniency in sentencing for any crime or crimes for which

the witness is convicted;

(f) to recommend a particular sentence for any crime or crimes for which the

witness is convicted;

(g) to provide favorable treatment or consideration to the witness or to friends

or relatives of the witness in return for the witness' cooperation and

testimony;

(h) to compromise or diminish, or to recommend the compromise or diminution of any federal, state or local taxes or claims the witness owes or may owe; and to make any other recommendations or to give any other consideration of any type to the witness, or to anyone for the benefit of the witness.

WHEREFORE, the Defendant moves this Court to enter its Order requiring the government to disclose all such offers of leniency or preferential treatment including, but not limited to, any written evidence of the terms of such offers.

MEMORANDUM OF LAW

Courts have consistently held that, in attempting to establish motives or bias of a government witness, a defendant may elicit evidence showing that the government has made explicit or implied promises of immunity from prosecution, leniency in sentencing, or other preferential treatment in return for the witness's cooperation and agreement to testify for the prosecution. United States v. Leonard, 494 F.2d 955, 963 (D.C. Cir. 1974); United States v. Fried, 486 F.2d 201, 202 (2d Cir. 1973), cert. denied, 416 U.S. 983 (1974); United States v. Campbell, 426 F.2d 547, 549 (2d Cir. 1970); Hughes v. United States, 427 F.2d 66, 68 (9th Cir. 1970). Indeed, the possibility of being suspected of a crime has been held to be grist for cross-examination when the witness was on probation and subject to having his probation revoked. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Where trial courts have sought to limit the scope for cross-examination in the presentation of evidence on such matters, reviewing courts have tended to view such limitations as reversible error. Davis v. Alaska, supra; United States v. Partin, 493 F.2d 750, 763 (5th Cir. 1974); United States v. Greenberg, 423 F.2d 1106, 1108 (5th Cir. 1970); Grant v. United States, 368 F.2d 658, 661 (5th Cir. 1966).

The Supreme Court has adopted a position requiring expanded disclosure of promises of immunity, leniency, or preferential treatment to government witnesses, and has imposed upon the government the burden of ensuring that full and complete disclosure of such promises is made to the defendants. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the defendant was convicted of passing forged money orders and was sentenced to five (5) years imprisonment. Subsequent to the conviction, the defendant's attorney discovered new evidence indicating that the government had failed to disclose a promise made to its key witness that he would not be prosecuted if he testified for the government. In reversing the conviction under the due process criteria of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Court stated in Giglio at 155-56: "...(the witness's credibility) was therefore an important issue in the case, and evidence of any understanding or agreement to a future prosecution would be relevant to his credibility and the jury was entitled to know of it."

This holding in Giglio has been reaffirmed and further strengthened in DeMarco v. United States, 415 U.S. 449, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974). DeMarco involved a defendant who was convicted of a narcotics offense after a trial at which the government had introduced the testimony of a witness who had been indicted along with the defendant. The witness testified that the government had made no promises to him with respect to the disposition of the case against him. While the defendant's appeal was pending, the witness pleaded guilty to a milder charge contained in a superseding indictment, and statements of the United States Attorney at the witness's sentencing tended to show that some promise might have in fact been made. The Supreme Court remanded for a hearing on the factual issue of whether a promise had, in fact, been made before the defendant's trial. "Unquestionably", said the Court, "had there been a promise to the witness prior to his testimony, Giglio ... would require reversal of petitioner's conviction". DeMarco v. United States, 415 U.S. at 450.

The Defendant submits that the holding of Giglio requires the type of disclosure that he now seeks. The manner of execution and fulfillment of any various commitments and promises made to these government witnesses may not have been communicated directly to them. Rather, this information may have been communicated only to their attorneys or representatives. If this is so, the Defendant will not be able to elicit the full information during cross-examination of these individuals and should, therefore, be given a reasonable opportunity prior to trial to locate and interview the persons who possess this information. In addition, such information would affect defense counsel's decision on when to make an opening statement. If the substance of such promises and agreements has not been accurately and fully communicated to the witnesses, cross-examination will not be an adequate device by which the defendant can elicit information to which he is clearly entitled. Again, such information can only be obtained if the defendant is given some factual basis on which to seek its procurement and a reasonable time prior to trial in which to do so. Such requests are granted freely by trial courts in the interest of ensuring a fair trial to the defendant. United States v. Valdes, No. 75-83-Orl-Cr-R (M.D.Fla., Order entered Sept. 3, 1975); United States v. Perkins, No. 73-147-Orl-Cr-Y (M.D.Fla., Order entered Jan. 10, 1975); United States v. Zambito, et al., Cr. No. 74-300 (D.S.C., Order entered Nov. 20, 1974).

For the above and foregoing reasons, the Defendant submits that his Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency, or Preferential Treatment should be granted.

DATED this day of October, 1995.

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