UNITED STATES OF AMERICA,
CASE NO: 9x-xxx-Cr-xxx
Plaintiff,
vs.
-------------------------------,
Defendant.
/
MOTION TO SUPPRESS TESTIMONY ILLEGALLY SECURED
IN VIOLATION OF 18 U.S.C. § 201 (C)(2) AND RULE 4-3.4 (b) OF THE
RULES OF PROFESSIONAL CONDUCT OF THE FLORIDA BAR
Defendant, ---, through counsel, respectfully moves to exclude the testimony of XXX, a witness for the government in this case, which was obtained by the government in violation of 18 U.S.C. § 201(c)(2) and Rule 4-3.4(b) of the Florida Bar Rules of Professional Conduct, and in support of the motion states:
Factual Background
[INSERT RELEVANT PROCEDURAL AND OTHER FACTS]
18 U.S.C. § 201(c)(2) and Florida Bar Rule 4-3.4
18 U.S.C. § 201(c)(2) prohibits the giving, offering, or promising "anything of value" to a witness "for or because" of his testimony. Congress specifically provided that "[w]hoever" violates § 201(c)(2) is subject to a fine and up to two years imprisonment. A panel of the United States Court of Appeals for the Tenth Circuit in United States v. Singleton, F.3d , 1998 WL 350507 at *7 (10th Cir. July 1, 1998), opinion vacated pending rehearing en banc, F.3d (10th Cir. Cir. July 10, 1998) (en banc), held that the statutory class "whoever" includes federal prosecutors. (1) It likewise held that "anything of value" includes intangible benefits such as promises of leniency or even promises to recommend leniency or to convey information which might support leniency. Id. at *11.
The term "anything of value" need not consist of a firm promise to file a motion for downward adjustment, and clearly need not consist of a monetary payment. The test of "value" is simply "whether the recipient subjectively attaches value to the thing received" -- and subjective value is indicated by the fact that the benefits are what a defendant "bargained for in return for his testimony and guilty plea." Id. at *8-11. According to Singleton, where a federal prosecutor acting on behalf of the government promises "anything of value" (subjectively defined) to a fact-witness for his/her testimony, § 201(c)(2) has been violated, and the proper remedy is suppression of the testimony. Id. at *21-22.
Significantly, the Tenth Circuit also held that federal prosecutors are subject to state ethical rules identical to Florida Rule of Professional Conduct 4-3.4, which preclude lawyers from offering inducements to fact witnesses. Id. at * 15, 21. (2) According to the Eleventh Circuit in Golden Door Jewelry v. Lloyds Underwriters, 117 F.3d 1348, 1335 n.2 (11th Cir. 1997), suppression of the testimony of the witness is a proper sanction for violation of Florida Bar Rule 4-3.4(b).
The Law in the Eleventh Circuit
While the Eleventh Circuit, in Golden Door, considered the proper remedy for a private attorney's violation of the state ethical rule and discussed application of § 201(c)(2) to a motion to strike the pleadings of a party in a civil case, the court has never considered the crucial issue raised and answered in Singleton as to whether federal prosecutors are subject either to state ethical rules precluding witness-inducement or to the criminal proscription of § 201(c)(2) -- that is, whether the statutory term "whoever" in § 201(c), or the Florida Bar rule's term "a lawyer," includes Assistant United States Attorneys. In the absence of any contrary controlling case law, the Court should follow the reasoned approach of Singleton on this issue. (3)
The only aspect of § 201(c)(2) that the Eleventh Circuit has directly considered in the context of a criminal case is whether that statute is unconstitutionally vague and overbroad, as applied to facts suggesting a bribe for false testimony. In United States v. Moody, 977 F.2d 1420, 1425 (11th Cir. 1992), the Eleventh Circuit explained that due process is violated only "when men of ordinary intelligence must guess at a statute's meaning," and pursuant to that standard, held that "[s]ection 201(c)(2) is sufficiently clear. Giving something of value 'for or because of' a person's testimony obviously proscribes a bribe for false testimony; persons of ordinary intelligence would come to no other conclusion." Id. The court therefore affirmed the § 201(c)(2) conviction of the defendant, who had paid a witness to lie about the defendant's involvement in a bombing offense. While bribes for false testimony are an obvious "subset" of the conduct proscribed by § 201(c)(2) under Moody, the court clearly did not hold that the statute only proscribed bribing a witness to give false testimony. To the contrary, the court merely held that the defendant's bribery conduct was clearly within the scope of the statute. Not even in dicta did the Moody court indicate that parties were free under the statute to pay their fact witnesses.
In an abbreviated discussion of § 201(c)(2) on a cross-appeal of a summary judgment, the court in Golden Door held that the defendant's provision of payments to certain fact witnesses did not require that the district court strike the pleadings of the defendant -- the only remedy sought by the cross-appellant -- because the district court had already stricken the testimony of the witnesses for violation of Rule 4-3.4 of the Florida Bar Rules of Professional Responsibility. The court apparently interpreted Moody as stating that the statutory prohibition covers only bribery in aid of perjury. This reflects a misreading of Moody, but, in any event, was unnecessary to the decision of the case, in that the Eleventh Circuit in Golden Door affirmed the district court's exclusion of testimony procured through payments. "[W]e find that the sanction imposed--barring Lloyds from using the testimony of paid witnesses--adequately penalized Lloyds for violating Rule 4-3.4(b) of the Rules of Professional Conduct and did not constitute an abuse of the district court's discretion." 117 F.3d at 1334 n.2 (emphasis added). Consequently, it is contrary to the actual holding of Golden Door to even suggest that the Eleventh Circuit has held that a party's giving anything of value to fact witnesses is permissible.
Indeed, as the Tenth Circuit pointed out in Singleton, the Eleventh Circuit in "Moody nowhere intimated the statute applied only to false testimony." 1998 WL 350507 at *20. Moreover, as the court reasoned in Singleton,
[R]equiring false testimony under § 201(c)(2) would interpose elements not required even by the bribery provisions, which do not require the bribe recipient's action to be influenced in fact. See United States v. Hernandez, 731 F.2d 1147, 1149 (5th Cir. 1984); Johnson, 621 F.2d at 1076. "We ought not to open the door to an evasion of the statute by this device." Oubre v. Entergy Operations, Inc., U.S. , , 118 S.Ct. 838, 842, 139 L.Ed.2d 849 (1998). It is anomalous to require under a gratuity provision both that testimony actually be given, and that it be false, when the bribery provisions require neither. See Hernandez, 731 F.2d at 1149 ("The crime [of bribery] is consummated whether or not the offer is accepted by the offeree.")
Id. at *20. The court concluded in Singleton that "under § 201(c)(2) the promise need not be intended to affect, and need not actually affect, the testimony in any way. Promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony." Id. (emphasis added). This Court should so read § 201(c)(2) here.
A contrary holding -- that neither the ethical rule nor the statute precludes a party from paying its witnesses absent proof of perjury -- would lead to disastrous and inequitable consequences for the judicial process. Indeed, witnesses would likely routinely demand payment if the courts were to eviscerate the clear premise of both § 201(c)(2) and Rule 4-3.4 of the Florida Rules of Professional Conduct. Alternatively, if the court were to declare that only the government could "pay" its witnesses, the imbalance that would result to the adversarial process would violate due process and equal protection.
The Government Offered the Witness Something of Value
"For or Because of" His Testimony Here
Here,
[INSERT CASE SPECIFIC FACTS -- SHOW WHY ITS "ANYTHING OF VALUE" subjectively and objectively -- See Singleton at *10 -- OFFER INFORMATION TO COURT, TO INTERVENE, PROMISE NOT TO PROSECUTE, ETC. ETC]
"The statute's 'for or because of' language does not require a quid pro quo relation between the testimony and the promises, but merely requires that the promises be motivated by the testimony, even though the testimony might have been given without the promises." Singleton, 1998 WL 350507 at 7.
The Court Should Suppress XXX's Testimony
In accordance with precedent of this circuit, (4) the Tenth Circuit in Singleton mandated suppression as a remedy for a violation of § 201(c)(2) in order to deter the unlawful conduct, and to promote judicial integrity. 1998 WL 350507 at *22. Exclusion is the sole remedy that can "effectively deter the unlawful conduct" because it "removes the sole purpose of the unlawful conduct," i.e., to present to the court the testimony so acquired. Id. Because the practice of "buying testimony" is so easily effectuated in our system of criminal justice, "suppression is necessary to compel respect for the statutory protections Congress has placed around testimony in federal courts. Exclusion is also necessary to remove the incentive to disregard the statute." Id.
Implicit in the reasoning supporting the remedy of exclusion is the fact that absent exclusion of the testimony, the trial court would effectively allow a violation of the ethical rule and the statute to take place in the presence of the court, a prospect which is anathema to traditional precepts of judicial propriety. "A secondary policy protected by the exclusionary rule is 'the imperative of judicial integrity.'" Id. (quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437 (1960)). See Florida Bar v. Jackson, 490 So.2d 935, 936 (Fla.1986) (interpreting Florida Bar Rule 4-3.4(b); "The very heart of the judicial system lies in the integrity of the participants. ... Justice must not be bought or sold. Attorneys have a solemn responsibility to assure that not even the taint of impropriety exists as to the procurement of testimony before courts of justice. [An attorney's securing payment for the testimony of witnesses] violates the very essence of the integrity of the judicial system and the disciplinary rule and code of professional responsibility, the integration rules of the Florida Bar and the oath of his office."). That the premise of the rule -- barring payment of witnesses because of the influence such gratuities may have on the witnesses' reliable rendition of the truth -- goes to preservation, rather than hiding, of the truth further counsels in favor of the exclusion remedy imposed by the Tenth Circuit in Singleton.
Conclusion
WHEREFORE, Defendant --- requests that the Court exclude the testimony of XXX from the trial and all other proceedings in this case.
[NOTE: ASK FOR DISMISSAL/MISTRIAL IF THIS IS SOLE OR CRUCIAL WITNESS]
Respectfully submitted,
By:
---xx---
Assistant Federal Public Defender
Florida Bar No. ---
C:\wwwfpd\singleto.wpd In granting rehearing en banc, the court directed the parties to "address whether any opinion reversing the district court would have prospective or retrospective application." Florida Bar Rule 4-3.4(b) provides: "A lawyer shall not ... fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness," other than to reimburse witness expenses or to compensate an expert witness for professional services. The court reasoned in Singleton, "[I]f the assistant United States attorney were not covered by the statutory term 'whoever,' then the statute would not prohibit her even from bribing a witness with money in exchange for favorable testimony, which the government concedes the statute prohibits." 1998 WL 350507 at *7. See also id. at *5 (citing Nardonne v. United States, 302 U.S. 379, 382-384 (1937) (federal agents were covered by the statutory term "anyone" in the 1934 federal wiretap statute)). The Eleventh Circuit has long held suppression appropriate where federal statutes have been violated, see United States v. Chemaly, 741 F.2d 1346, 1353-54 & n.2 (11th Cir. 1984), reh'g en banc vacated and panel opinion reinstated, 764 F.2d 747 (11th Cir. 1985) (en banc), and, in Golden Door, 117 F.3d at 1334 n.2, specifically approved suppression as a remedy for violation of the corollary ethical rule.