Leniency bribes: Justifying the federal practice of offering leniency for testimony

Louisiana Law Review

Volumn 60, Issue 2, 2000, Pages 447-479

  Gowdy, Bryan S ^a,b,c  

^a UNIVERSITY OF FLORIDA   (United States)

^b GEORGETOWN UNIVERSITY   (United States)

^c US District Court for the Northern District of Florida ^*  (United States)

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EID: 25844513135     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (288)

1. See Pub. L. No. 87-849, § 1(a), 76 Stat. 1119, 1120 (codified at 18 U.S.C. § 201(h)(effective Oct. 23, 1962) (current version at 18 U.S.C. § 201(c)(2) (1986)).
2. Singleton v. United States, 144 F.3d 1343, 1348 (10th Cir. 1998), rev'den banc, 165 F.3d 1297 (10th Cir.), cert. denied, 119 S.Ct. 2371 (1999). Professor Albert Aschuler of the University of Chicago characterized the Singleton I opinion by stating, "[I]t's a bombshell, it's nuclear, it's really a big deal." Justice System Thrown Off Balance by Ruling, Omaha World-Herald, July 17, 1998, available in 1998 WL 5512734. Another writer stated that Singleton I "caused earthquake-size shivers through law enforcement."
3. Gerald Walpin, The Tenth Circuit's "Singleton" Decision Wrong and Uniformly Rejected, 220 N.Y. L.J. 2 (Oct. 29, 1998). The Justice Department stated that Singleton I had "caused chaos in district courts and U.S. Attorney's Offices in [the Tenth Circuit] . . . and significant disruption throughout the rest of the country."
4. William Glaberson, Leniency Ruling Jolts U.S. Legal Procedures, The Journal Record (Oklahoma City), Nov. 4, 1998, available in 1998 WL 11961432.
5. See, e.g., Mike Fimea, Plea Bargain in Air in 10th, Arizona Business Gazette, Nov. 5, 1998, available in 1998 WL 7738146;
6. Patricia Nealon, Mass. Lawyers Await Effects of Colo. Ruling, The Boston Globe, July 29, 1998, available in 1998 WL 9145598.
7. See, e.g., United States v. Condon, 170 F.3d 687, 688 (7th Cir.), cert. denied, 119 S. Ct. 1784 (1999) (noting that "defendants throughout the nation" had argued for other courts to adopt Singleton I); United States v. Lowery, 166F.3d 1119, 1122-23 (11th Cir. 1999), petition for cert. filed, (July 6, 1999) (No. 99-5172) (citing numerous cases in which defendants had argued for Singleton I); Nealon, supra note 3. The most notorious prisoner to invoke Singleton I was Timothy McVeigh, the Oklahoma City bomber. See Julie Delcour, McVeigh Appeal Won't Be Delayed, Court Rules, Tulsa World, July 18, 1998, available in 1998 WL 11145386.
8. Some of the criticism of the Singleton I panel has been quite sharp. See, e.g., United States v. Haese, 162 F.3d 359, 368 n.2 (5th Cir. 1998), cert. denied, 119 S. Ct. 1795 (1999) (stating that "the likelihood of our knowledgeable colleagues on the Supreme Court finding as the Singleton panel's absurd holding is nonexistent"); United States v. Eisenhardt, 10F. Supp. 2d 521, 521-22 (D. Md. 1998) (finding that the "chances of either or both the Fourth Circuit and [sic] the Supreme Court reaching the same conclusion as the Singleton panel are . . . about the same as discovering the entire roster of the Baltimore Orioles consists of cleverly disguised leprechauns").
9. See United States v. Singleton, 165 F.3d 1297, 1302 (10th Cir.), cert. denied, 119 S. Ct. 2371 (1999).
10. The Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits have all refused to adopt Singleton I. See United States v. Carroll, 166 F.3d 334, 1998 WL 801880, at *3 n. 4 (4th Cir. 1998) (unpublished disposition), cert. denied, 119 S. Ct. 1089 (1999); Haese. 162 F.3d at 366-68; United States v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999); Condon, 170 F.3d at 688-91; United States v. Johnson, 169 F.3d 1092, 1097-98 (8th Cir. 1999), petition for cert. filed, (June 15, 1999) (No. 98-9870); United States v. Flores, 172 F.3d 695, 699-700 (9th Cir. 1999), petition for cert. filed, (June 28, 1999) (No. 99-5111); Lowery, 166 F.3d at 1122-24; United States v. Ramsey, 165 F.3d 980, 986-91 (D.C. Cir. 1999), petition for cert. filed, (July 13, 1999) (No. 99-5255). For a collection of district court opinions rejecting and upholding Singleton 1, see Lowery, 166 F.3d at 1123.
11. See Singleton I, 144 F.3d at 1343.
12. See id. at 1344.
13. See id.
14. See id. at 1360. The Tenth Circuit panel noted that "[n]o practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence." See id. (quoting United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987)); see also Lowery, 166 F.3d at 1123-24; Glaberson, supra note 2.
15. See Singleton I, 144 F.3d at 1343.
16. See Singleton I, 144 F.3d at 1352, 1358 (noting that § 201(c)(2) was a "bribery" statute and concluding that the leniency for testimony deal violated the statute).
17. One dictionary defines bribe as "[s]omething, such as money, offered to or given to induce or influence a person to act dishonestly." American Heritage Dictionary 86 (2d college ed. 1983) (emphasis added). A prosecutor's offer of leniency is in exchange for truthful testimony. See, e.g., Singleton II, 165 F.3d at 1298. If every offer of a thing of value was characterized as a "bribe," then everyday transactions, such as an offer of twenty-five cents for the daily newspaper, would be considered bribes.
18. But see Condon, 170 F.3d at 689 (Easterbrook, J.) (disputing the notion that an offer of leniency is a "thing of value").
19. As used in this Article, the term "accomplice" refers to the defendant's accomplice, who cooperates with the prosecution, informs the prosecution about the crime, and testifies for the prosecution against the defendant.
20. See Singleton I, 144 F.3d at 1348 (noting that the government in its brief conceded that the § 201(c)(2) prohibited prosecutors from offering monetary bribes to fact witnesses).
21. See id. at 1347 (stating that "[t]he judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money").
22. See Singleton I, 144 F.3d at 1343.
23. See id. at 1345.
24. See id. at 1348.
25. See id.
26. See id. at 1345-46.
27. See id. at 1346 (quoting Norton v. United States, 302 U.S. 379, 383, 58 S. Ct. 275, 277 (1937)).
28. See id.
29. See id.
30. See id.
31. Id.
32. See Singleton I, 144 F.3d at 1346.
33. Id.
34. Id.
35. See id. at 1346-47.
36. See id. at 1346.
37. 277 U.S. 438, 48 S. Ct. 564 (1928).
38. Singleton I, 144 F.3d at 1347 (quoting Olmstead, 277 U.S. at 485, 48 S. Ct. at 575 (Brandeis, J. dissenting)). This reasoning begged the question, since the issue before the court was whether prosecutors did, indeed, need to obey the law - that is, specifically § 201(c)(2).
39. See Singleton I, 144 F.3d at 1346.
40. See id. at 1348.
41. See id.
42. Id. at 1349.
43. See id.
44. Id. at 1350. The panel listed three other reasons for its holding based upon statutory construction. First, the panel reasoned that much of the precedent cited had construed statutes with the phrase "thing of value," but § 201(c)(2) contained the words "anything of value," which indicated an even broader construction. Second, much of precedent cited interpreted statutes in which "thing of value" was at the end of a series, indicating that courts had construed the term constrained by the doctrine of ejusdem generis. In contrast, § 201(c)(2) contained no such enumeration, leaving it to be more broadly interpreted. Third, § 201(c)(1), which criminalizes bribery of public officials, includes the language, "otherwise than as provided by law for the proper discharge of official duty," while § 201 (cX2) is free of any such language, indicating that if Congress wanted to exempt official acts from bribery of witnesses, it would have included language similar to that found in § 201(c)(1). See id. at 1349-50.
45. Id.
46. Besides the statutory construction arguments discussed, see supra notes 19-41 and accompanying text, the panel also based its holding on the structure of § 201(c)(2), the relation of § 201(c)(2) to other statutes, and public policy justifications for its holding. See Singleton I, 144 F.3d at 1351-56. Additionally, the panel noted that the prosecutor had violated Rule 3.4(b) of the Kansas Rules of Professional Conduct (adopted from the Model Rules), which provides that "[a] lawyer shall not . . . offer an inducement to a witness prohibited by law." See Singleton I, at 1358-59; see also United States v. Lowery, 15 F. Supp. 2d 1348, 1358 (S.D. Fla. 1998), rev'd by. 166 F.3d 1119 (11th Cir. 1999), petition for cert. filed, (July 6, 1999) (No. 99-5172) (finding that the prosecutor had violated a similar Florida rule).
47. See Singleton I, 144 F.3d at 1359-60.
48. See id. at 1360. The issue of judicial integrity is discussed more fully below. See infra Part IV.A.2.
49. See id.
50. See id.
51. See supra note 19 and accompanying text.
52. See supra notes 22-47 and accompanying text.
53. See supra notes 44-47 and accompanying text.
54. See infra notes 241 -245 and accompanying text.
55. See supra note 1.
56. United States v. Lowery, 166 F.3d 1119, 1123 (11th Cir. 1999), petition for cert. filed, (July 6, 1999) (No. 99-5172).
57. See infra Part II.B.1.
58. See infra Part II.B.2.
59. See infra note 68 and accompanying text.
60. See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 14 (1979);
61. see also Note, Accomplice Testimony Under Conditional Promise of Immunity, 52 Colum. L. Rev. 138, 139 (1952).
62. See id.
63. See id.
64. See Note, supra note 57, at 139.
65. See id.
66. See Alschuler, supra note 57, at 14-15.
67. See id. at 15.
68. See Note, supra note 57, at 139-40 & nn.8-10. Professor Alschuler contends that plea bargaining, though, was not a means for a prosecutor to induce an accomplice's testimony. Rather, courts only permitted prosecutors to bargain for testimony by offering something equivalent to transactional immunity. See Alschuler, supra note 57, at 15-16.
69. 99 U.S. (9 Otto) 594 (1878).
70. See id. at 604. The Supreme Court stated: Prosecutors . . . [should] inform [the accomplice] just what he may reasonably expect in case he acts in good faith, and testifies fully and fairly as to his own acts in the case, and those of associates. When he fulfills those conditions he is equitably endued to a pardon, and the prosecutor, and the court if need be, when fully informed of the facts, will join in such a recommendation. Id.
71. Alschuler, supra note 57, at 15. Professor Alschuler, a critic of plea bargaining in general, has acknowledged that leniency bribes are an "unusually strong case for permitting some form of plea bargaining." Id.
72. Singleton II, 165 F.3d at 1301; see also United States v. Ramsey, 165 F.3d 980, 988 (D.C. Cir. 1999), petition for cert. filed, (July 13, 1999) (No. 99-5255); United States v. Haese, 162 F.3d 359, 367 (5th Cir. 1998), cert. denied, 119 S. Ct. 1795 (1999); United States v. Ware, 161 F.3d 414, 419 (6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999).
73. See Singleton II, 165 F.3d at 1300.
74. See id. at 1299.
75. See id. at 1300 & n.1.
76. See id. at 1303 (Lucero, J. concurring).
77. See id. at 1302 n.2.
78. On the other hand, one could argue that since judges, and not prosecutors, controlled leniency offers for a long duration of the common law that it is not entirely clear whether leniency bribes are a "prerogative of the sovereign." See supra note 63 and accompanying text.
79. See Singleton II, 165 F.3d at 1308 (Lucero, J. concurring) (stating that the majority opinion had "create[d] a conceptually messy legal regime for handling the case of the errant United States Attorney").
80. Another example of the potential problems created by the majority opinion is 18 U.S.C. § 1622, which prohibits "whoever" from suborning perjury. The majority contended that § 1622 would apply to U.S. Attorneys - despite the identical "whoever" language as § 201 (c)(2) - because suborning perjury was plainly not an exercise of sovereign power. See id. at 1302 n.2. The majority's brief resolution, in dicta, about the applicability of § 1622 seems to be based really on intuition, rather than a common law analysis.
81. See id. at 1303-08 (Lucero, J. concurring).
82. Id. at 1303 (Lucero, J. concurring).
83. Judge Lucero also mentioned that a "bar to pre-testimony negotiation would contradict the intent of Fed. R. Crim. P. 11." See Singleton II, 165 F.3d at 1307. The rule provides that the "attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement." Fed. R. Crim. P. 11.
84. 18 U.S.C. § 6003(b) (1994).
85. 18 U.S.C. § 3521(b)(1)(B)-(E) (1994).
86. 2 U.S.C. § 994(n) (1994). Based on this authority, the Sentencing Commission created the § 5K1.1 "substantial assistance" departure. See infra notes 114-15 and accompanying text Another statute, 18 U.S.C. § 3553(e), permits prosecutors to move for a sentence below the statutory mandatory minimum if the defendant provides "substantial assistance." See infra note 117 and accompanying text.
87. See Singleton II, 165 F.3d at 1309-10 (Kelly, J. dissenting).
88. See id. at 1313 (Kelly, J. dissenting).
89. Id. (Kelly, J. dissenting).
90. See id. at 1312-13 (Kelly, J. dissenting).
91. Id. at 1306-07 (Lucero, J. concurring)
92. See supra notes 77-82, 87 and accompanying text.
93. Webster's Ninth New Collegiate Dictionary 178 (1987).
94. See infra part III.A.
95. See infra part III.B.
96. See infra part III.C.
97. Pub. L. No. 98-473, § 217(a), 98 Stat. 1837, 2017-34 (1984) (codified as amended at 28 U.S.C. §§ 991-998 (1994)).
98. See William L. Gardner & David S. Rifkind, A Basic Guide to Plea Bargaining, 7 Crim. Just 14, 14-15 (1992).
99. See id. at 15.
100. See Eric R. Komitee, Note, Bargains Without Benefits: Do the Sentencing Guidelines Permit Upward Departures to Redress the Dismissal of Charges Pursuant to Plea Bargains?, 70 N.Y.U. L. Rev. 166, 169 (1995).
101. See U.S. Sentencing Guidelines Manual § 5A (1998).
102. See id.
103. See id. § 1B1.1(b).
104. See id. § 2B3.1(a).
105. See id. § 1B1.1(b).
106. See id. § 2B3.1(b)(2).
107. See id. § 1B1.1(c).
108. See id. § 3B1.1.
109. See id. § 3B1.1(a).
110. See id. § 3A1.3.
111. See id. § 3A1.1.
112. See id. § 3C1.1.
113. See id. § 3E1.1.
114. See id. § 1B1.1(f).
115. See id. § 4A1.2(j) & cmt. 10.
116. See id. § 1B1.1(i); Gardner & Rifkind, supra note 94, at 17.
117. See U.S. Sentencing Guidelines Manual § 5K1.1 (1998). In fiscal year 1998, courts granted substantial assistance departures in 9,224 sentences, constituting 19.3% of all federal sentences. By comparison, courts granted all other types of downward departures in 6,509 sentences, constituting 13.6% of all federal sentences.
118. See U.S. Sentencing Commission, 1998 Sourcebook of Federal Sentencing Statistics 53, Table 26 (visited Feb. 11, 2000) .
119. The difference between a § 5K1 motion and a Rule 35(b) motion is one of timing. A § 5K1 motion is filed at an accomplice's sentencing, while a Rule 35(b) motion is filed after sentencing. See U.S. Attorney's Manual 9-27.400 (1997). Rule 35(b) permits the judge to re-sentence the accomplice in lieu of his post-sentence cooperation. See Fed. R. Crim. P. 35(b). However, the difference in timing is immaterial, because prosecutors will not file either motion until after the accomplice has provided his substantial assistance, i.e. has testified against his coconspirator. The U.S. Attorney's Manual treats the two motions identically, and so will this Article.
120. See U.S. Sentencing Guidelines Manual § 5K1.1 (1998).
121. See, e.g., 21 U.S.C. § 841(b) (1994).
122. 18 U.S.C. § 3553(e) (1994); see Melendez v. United States, 518 U.S. 120, 116 S. Ct. 2057 (1996); U.S. Attorney's Manual 9-27.730 (1997). The sentencing statutes do provide a possible means for a defendant to escape the mandatory minimum requirements, despite the lack of a government motion, and to be sentenced under the Guidelines, so long as several criteria are satisfied. See 18 U.S.C. § 3553(f) (1994).
123. See U.S. Sentencing Guidelines Manual § 1B1.1 (1998).
124. See Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, 81 Cal. L. Rev. 1471, 1475, 1505-17 (1993) (noting that "[b]ecause the sentencing guidelines are largely 'charge-offense based,' the eventual sentencing outcome is determined primarily by the crime with which the prosecutor charges the defendant").
125. See U.S. Sentencing Guidelines Manual § 3D1.2 (1998).
126. U.S. Sentencing Guidelines Manual §§ 2A1.1, 5A (1998).
127. See id. §§ 2A1.3, 5A.
128. See id.
129. See, e.g., Ronald S. Safer & Matthew C. Crowl, Substantial Assistance Departures: Valuable Tool or Dangerous Weapon, 12 Fed. Sent. R. 41 (1999) (describing how the §5K1 departure, coupled with long mandatory sentences, lured previously uncooperative members of a Chicago gang to testify against gang leaders);
130. Cynthia Lee & Brian Derdowski, Jr., The Future of Substantial Assistance: Recommendations for Reform, 11 Fed. Sent. R. 78 (1998) ("Many in the criminal defense community . . . would be happy if the substantial assistance departure were eliminated. The provision fosters distrust amongst defendants by encouraging defendants to testify against one another. Some defense attorneys feel so strongly that they refuse to represent clients who desire to cooperate with the government"); Gardner & Rifkind, supra note 94, at 17 ("[The substantial assistance] departure provides the prosecutor with the greatest flexibility . . . . [M]ost prosecutors are unwilling to commit to a downward departure until they . . . have determined the information is important enough to warrant a lesser sentence.").
131. See U.S. Sentencing Commission, 1998 Annual Report 39.
132. See Linda Drazga Maxfield & John H. Kramer, Substantial Assistance: An Empirical Yardstick: Gauging Equity in Current Federal Policy and Mostice 32 (Jan. 1998), located at .
133. See supra notes 96-111 and accompanying text.
134. See infra Part III.B.1.
135. See infra Part III.B.2.
136. See infra Part III.B.3. Prosecutors can also enter into "mixed agreements," which contain both a charge agreement and a sentence agreement. See U.S. Attorney's Manual 9-27.400 (1997).
137. See infra Part III.B.4.
138. Cf. Safer & Crowl, supra note 124, at 42-43 (noting the "plethora of options open to the parties in structuring plea agreements").
139. See U.S. Attorney's Manual 9-27.400, 9-27.450, 9-27.650 (1997).
140. See Fed. R. Crim. P. 11.
141. See, e.g., Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766 (1972) (reversing conviction for nondisclosure of promise made to witness); and Hoffa v. United States, 385 U.S. 293, 311-12, 87 S. Ct. 408, 418 (1966) (noting that "[a]t the trial, . . . [the accomplice-witness] was subjected to rigorous cross-examination, and the extent and nature of his dealings with federal and state authorities were insistently explored").
142. Cf. Timothy D. Scandurro, Immunity, 24 Am. Crim. L. Rev. 839, 839 (1987) (noting that white-collar "defendants are often receptive to immunity offers to avoid the continued threat of criminal prosecution").
143. See 18 U.S.C. §§ 6001-6005 (1994); U.S. Attorney's Manual 9-23.130 (1997).
144. 18 U.S.C. § 6003(b) (1994); see U.S. Attorney's Manual 9-23.210 (1997).
145. See 18 U.S.C. § 6003(a) (1994); see U.S. Attorney's Manual 9-23.110 (1997). The court's role in granting an immunity order is minor, as it is merely required to find the facts upon which the order is predicated. See U.S. v. Singleton (Singleton II), 165F.3d 1297, 1306 (10th Cir. 1999)(Lucero, J. concurring).
146. See Kastigar v. United States, 406 U.S. 441, 449, 92 S. Ct. 1653, 1659 (1972); Roger C. Spaeder, The Challenge of Negotiating Immunity: What You Must Know Before You Seek Immunity for Your Client, 7 Crim. Just. 8, 9 (1992).
147. Kastigar, 406 U.S. at 460, 92 S. Ct. at 1665; see also U.S. Department of Justice Criminal Resource Manual 718, located at .
148. See U.S. Department of Justice Criminal Resource Manual, supra note 141, at 719. Informal immunity is also called "pocket immunity" or "letter immunity." See id.
149. See id.; Spaeder, supra note 140, at 10.
150. See U.S. Attorney's Manual 9-27.600 (1997).
151. See U.S. Department of Justice Criminal Resource Manual, supra note 141, at 719;
152. U.S. Attorney's Manual 9-27.630 (1997); Spaeder, supra note 140, at 10.
153. See Spaeder, supra note 140, at 10.
154. See id.; Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 8.11(d), at 427 (2d ed. 1992). Transactional immunity protects an accomplice from being prosecuted for the offenses about which he testifies, with the exception of prosecution for perjurious testimony. See U.S. Department of Justice Criminal Resource Manual, supra note 141, at 719.
155. See supra notes 121-22 and accompanying text.
156. See Gardner & Rifkind, supra note 94, at 15.
157. U.S. Attorney's Manual 9-27.220 (1997).
158. Id. at 9-27.400; see Gardner & Rifkind, supra note 94, at 16-17.
159. U.S. Attorney's Manual 9-27.220 (1997).
160. See id. at 9-27.230.
161. See id.
162. See id.
163. See id.
164. See id. at 9-27.710 (stating that "(sentencing in Federal criminal cases is primarily the function and responsibility of the court"); see also Gardner & Rifkind, supra note 94, at 16.
165. See U.S. Attorney's Manual 9-27.400 (1997).
166. See Gardner & Rifkind, supra note 94, at 16.
167. See U.S. Attorney's Manual 9-27.400 (1997).
168. See id.
169. See id.
170. See supra notes 112-115, 123-24 and accompanying text.
171. See U.S. Attorney's Manual 9-27.730 (1997).
172. See id. at 9-27.400. Authorization may be sought from the U.S. Attorney, the Chief Assistant U.S. Attorney, a supervisory criminal Assistant U.S. Attorney, or a committee composing at least one of the aforementioned individuals.
173. See Maxfield & Kramer, supra note 126, at 7-8, 24-25.
174. See U.S. Attorney's Manual 9-27.400 (1997).
175. See id.
176. See id.
177. See id.
178. See supra note 121 and accompanying text.
179. See Gardner & Rifkind, supra note 94, at 16.
180. See U.S. Attorney's Manual 9-27.710 (1997).
181. See U.S. Sentencing Guidelines Manual § 6B1.4 (1998).
182. See Gardner & Rifkind, supra note 94, at 16.
183. In addition to the two roles listed, the court also plays a minor, insignificant role in grants of formal immunity. See supra note 139.
184. Are supra Part III.C.1.
185. See supra Part III.C.2.
186. See U.S. Sentencing Guidelines Manual § 6A1.3 (1998).
187. See id. § 6A1.1.
188. See id. § 6A1.3(b) (stating that "[t]he court shall resolve disputed sentencing factors").
189. See id. § 5A.
190. See id.
191. See Id. § 5K2.0 (permitting judge to depart from the Guidelines when "there exists an aggravating or mitigating circumstance . . . not adequately taken into consideration by the sentencing commission"); see also 18 U.S.C. § 3553(b).
192. See U.S. Sentencing Guidelines Manual § SK2.0.
193. See United States Sentencing Commission Federal Sentencing Statistics, Federal Sentencing Statistics by State, 1997 Fiscal Year, Table 8, at 11 (visited Feb. 11, 2000) located at .
194. See supra notes 112-15, 123-24 and accompanying text.
195. See U.S. Sentencing Guidelines Manual § 5K1.1 (1998); see, e.g., United States v. Luis, 102 F.3d 466, 468 (11th Cir. 1996) (noting that a defendant was denied a "substantial assistance" departure - despite the government's § 5K1 motion - because the district court found the defendant had received adequate leniency in a charge-bargain).
196. See U.S. Sentencing Guidelines Manual § 5K1.1 (1998); see, e.g., United States v. Manella, 86 F.3d 201, 202 (11th Cir. 1996) (noting that the district court granted a seven-month departure after government had requested a sixty-month departure); cf. Maxfield & Kramer, supra note 126, at 20. (discussing whether judges should be given more concrete guidance for sentencing outside the Guidelines).
197. See Standen, supra note 119, at 1501-17.
198. See Maxfield & Kramer, supra note 126, at 15.
199. See 1 Edward J. Devitt et. al., Federal Jury Instructions: Civil and Criminal § 15.04, at 495-502 (4th ed. 1992).
200. See 7 John H. Wigmore, Wigmore on Evidence § 2056, at 404-05 (Chadbourn rev. 1978).
201. See id.
202. See id. § 2056, at 414 & n.10.
203. 242 U.S. 470, 37 S. Ct. 192 (1917).
204. Id. at 495, 37 S. Ct. at 198.
205. Id.
206. 1 Devitt et al., supra note 192. § 15.04, at 495-502.
207. Id. at § 15.04. at 502.
208. See id. § 15.04, at 495-502.
209. See, e.g., United States v. Roberts, 848 F.2d 906, 908 (8th Cir. 1988); United States v. McGinnis, 783 F.2d 755, 758 (8th Cir. 1986); United States v. Hill, 627 F.2d 1052, 1054-55 (10th Cir. 1980); Tillery v. United States, 411 F.2d 644, 646-47 (5th Cir. 1969). But see United States v. Bernard, 625 F.2d 854, 857 (9th Cir. 1980) (where the Ninth Circuit found reversible error when the accomplice testimony was merely "important" and weakly supported by other evidence).
210. See supra Part III.A,B, & C.
211. See infra Part IV.A.
212. See id. The Singleton I panel also argued that "deterrence of official misconduct" was a policy justification for exclusion of leniency-induced testimony. See supra note 44 and accompanying text However, this argument presumes that offering a leniency bribe is "official misconduct." If one concludes, as Singleton II did, that offering a leniency bribe is not official misconduct, then this policy argument becomes moot.
213. See Singleton I, 144 F.3d at 1350.
214. Yvette Beeman, Note, Accomplice Testimony Under Contingent Plea Agreements, 72 Cornell L. Rev. 800, 802 (1987).
215. Samuel A. Perroni & Mona J. McNutt, Criminal Contingency Fee Agreements: How Fair are They?, 16 U. Ark. Little Rock L.J. 211.222 (1994).
216. See Singleton I, 144 F.3d at 1359-61; Perroni & McNutt, supra note 208, at 230-31; Beeman, Note, supra note 207, at 806, 816.
217. 1 John H. Wigmore, Wigmore on Evidence § 10, at 152 (2d ed. 1923).
218. See id. § 12. at 157.
219. See 2 Wigmore, supra note 210, § 1171, at 711.
220. See 1 Wigmore, supra note 210, § 575, at 985.
221. See Edward J. Imwinkelried & Daniel D. Blinka, Criminal Evidentiary Foundations 184-85 (1997);
222. 3A John H. Wigmore, Wigmore on Evidence § 944, at 778 n.1 (Chadbourn rev. 1970).
223. See Perroni & McNutt, supra note 208, at 230.
224. See 5 Wigmore, supra note 193, § 1362, at 3-12.
225. See supra note 135 and accompanying text.
226. See, e.g., Beeman, supra note 207, at 805.
227. See United States v. Wade, 388 U.S. 218, 235, 87 S. Ct 1926, 1936-37 (1967).
228. See id. 235-36, 87 S. Ct. at 1936-37.
229. See id. 236, 87 S. Ct. 1937.
230. See supra note 135 and accompanying text.
231. See 2 Wigmore, supra note 210. § 1172. at 712.
232. See id.
233. See id.
234. See generally supra Part IU. As the amount of non-accomplice evidence increases, the bargaining power of the prosecutor over the accomplice also rises, enabling the prosecutor to offer a less lucrative leniency bribe.
235. See Singleton I, 144 F.3d at 1360; Perroni & McNutt, supra note 208, at 211; Beeman, supra note 207, at 823-24.
236. United States v. Janis, 428 U.S. 433, 458 n.35, 96 S. Ct. 3021, 3034 n.35 (1976).
237. See Perroni & McNuR, supra note 208, at 220-22; Beeman, supra note 207, at 826.
238. See Mark Hansen, Shordown in Mid-Theory, A.B.A. J. May 1999, at 46;
239. J. Richard Johnston, Paying the Witness: Why is it OK for the Prosecution, but not the Defense?, 11 Crim. Just. 21, 23 (Winter 1997).
240. The Florida Bar v. Jackson, 490 So. 2d 935, 936 (Fla. 1986).
241. See Johnston supra note 230, at 24; Perroni & McNutt, supra note 208, at 222.
242. Johnston, supra note 230, at 24; see generally Hansen, supra note 230, at 46. Rather than arguing that neither prosecutors nor defense counsel should be permitted to make any type of bribe, Singleton I supporters might want to argue that both prosecutors and defense counsel should be permitted to make leniency bribes. See generally Rita W. Gordon, Comment, Right to Immunity for Defense Witnesses. 20 Conn. L. Rev. 153 (1987). Such a proposal is beyond the scope of this Article, but it could achieve the fairness desired by defense attorneys.
243. See supra Part III; supra notes 135, 217 and accompanying text.
244. See Maxfield & Kramer, supra note 126, at 28. The types of assistance categorized in the survey were: (1) undercover, (2) testimony, (3) agreement to testify, (4) information on new co-defendants, (S) information on known defendants, and (6) information on own criminal conduct.
245. See id. Seventeen performed undercover work, thirty-two agreed to testify, twenty-five gave information on new co-defendants, seventy-eight provided information on known defendants, and seven provided information on their own criminal conduct.
246. See id. at 29. Some of the other results were thirty-one new prosecutions and five sentencing enhancements.
247. See United States Sentencing Commission Federal Sentencing Information, Federal Sentencing Statistics by State, 1997 Fiscal Year, Table 9, at 14 located at . Many of these departures may have been granted for non-testimonial assistance.
248. See Maxfield & Kramer, supra note 126, at 12-13.
249. Morning Edition (National Public Radio broadcast, Nov. 17, 1998), available in 1998 WL 3309399.
250. See id.
251. Fimea, supra note 3 (comments of Mr. Tom Crowe of Crowe& Scott, Phoenix, Arizona).
252. See Maxfield & Kramer, supra note 126, at 26.
253. See Steven M. Cohen, "Singleton" Turns the Tables Too Far, 21 Nat'l L.J. Nov. 16, 1998, at A27.
254. See Safer St Crowl, supra note 124, at 41-42.
255. See Frank O. Bowman, III, Defending Substantial Assistance: An Old Prosecutor's Meditation on Singleton, Sealed Cases, and the Mayfield-Kramer Report, 12 Fed. Sent. R. 45, 46-47 (1999);
256. Ian Weinstein, Regulating the Market for Snitches, 47 Buff. L. Rev. 563, 564 (1999). The problem of sentencing disparity should not be underestimated, and this Article, admittedly, does not sufficiently address the problem. Professors Bowman and Weinstein have offered some interesting suggestions to correct sentencing disparity.
257. See Safer & Crowl, supra note 124, at 42.
258. See, e.g., Abdon M. Pallasch, 'Ford Heights Four' Case Now Turns on Prosecutors, Police, Chicago Daily L. Bull., Apr. 24, 1999, at 3 (alleging that a key eyewitness changed her testimony and placed the defendants at the scene of the crime only after prosecutors agreed to reduce the eyewitness's sentence for a perjury conviction to probation);
259. see also Ken Armstrong, Now Ford Heights 4 Seek Special Prosecutor, Chicago Tribune, Apr. 1, 1999, at 1 (Metro), available in 1999 WL 2859249.
260. Cf., e.g., Christopher Slobogin, Criminal Procedure: Regulation of Police Investigation 133-34(2ded. 1998)(detailing U.S. Postal Service sting operation where police informants - who were paid for their services - wrongly implicated innocent persons with apparent motive of "scamming" money from the federal government).
261. See Stephen J. Markman & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988).
262. See Hugo A. Bedau & Michael L. Radelet, Miscarriages in Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 56-57, 58-59 (1987).
263. See supra note 251 and accompanying text.
264. See, e.g., Sharen Cohen, Last-Minute Exonerations Fuel Death-Penalty Debate Justice, Los Angeles Times, Aug. 15, 1999, at A1;
265. Shirley E. Perlman, Exoneration by DNA Raises Unsettling Questions, Indianapolis Star, Aug. 1, 1999, at A7;
266. David Protess & Rob Warden, Nine Lives: The Justice System Sentenced These Men to Death, Chicago Tribune, Aug. 10, 1997 (Magazine), available at 1997 WL 3576969.
267. See Perlman, supra note 253 (noting Department of Justice study that found eyewitness testimony was incriminating factor in 28 cases of wrongfully-convicted persons); Michael Higgins. Tough Luck for the Innocent Man, 85 A.B.A.J.46, 48 (Mar. 1999) (quoting Professor C. Ronald Huff, co-author of a book about wrongful convictions as saying "[t]here are just a lot of problems with overreliance on eyewitness testimony"). The homepage of the Innocence Project, a group at Cardozo School of Law that attempts to exonerate innocent death row inmates, claims that "[conventional serology, mistaken eyewitness identification, and unmonitored laboratory practices have contributed largely to the population of thousands to be unjustly incarcerated."
268. Innocence Project at Cardozo School of Law (visited Feb. 12, 2000) .
269. See supra Part IV.A.
270. See supra Part IV.B.
271. See infra Part IV.C.1.
272. See infra Part IV.C.2.
273. See supra Part III.B.
274. Cf. Daniel C. Richman, The Challenges of Investigating Section 5K1.1 in Practice, 11 Fed. Sent. R. 75 (1998) (noting different procedures among different districts).
275. See supra note 166 and accompanying text.
276. See supra notes 196, 201-02 and accompanying text.
277. Overwhelming corroborating evidence may mean that the lack of an instruction is merely "harmless error."
278. See, e.g., supra note 199-200 and accompanying text.
279. See 1 Devin et al., supra note 192, § 15.03, at 493.
280. See, e.g., 7 Wigmore, supra note 193, § 2057, at 417-20.
281. See, e.g., Fed. R. Evid. 702.
282. See 1 Devitt et al., supra note 192, § 7.01, at 200.
283. See supra Part II.
284. See supra Part III.
285. See id.
286. See supra Part IV.A.
287. See supra Part IV.B.
288. See supra Part IV.C.