[Congressional Record Volume 144, Number 21 (Thursday, March 5, 1998)]
[Extensions of Remarks]
[Pages E301-E303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





                INTRODUCTION OF CITIZENS PROTECTION ACT

                                 ______
                                 

                         HON. JOSEPH M. McDADE

                            of pennsylvania

                    in the house of representatives

                        Thursday, March 5, 1998

  Mr. McDade. Mr. Speaker, I introduced bipartisan legislation this 
morning, along with my colleague, Jack Murtha, that will safeguard the 
citizens of this nation from unfair, abusive and unethical conduct by 
employees of the Department of Justice. The bill, which we have named 
the Citizens Protection Act, will also insure that the Department is 
not able to exempt its own attorneys from the same State laws and rules 
of ethics as all other attorneys in this country.
  The rights and freedoms of our citizens will come under increasing 
danger if we continue to allow the Justice Department to police itself 
in secret and exempt itself from regular rules of attorney conduct. We 
must strengthen oversight of the Department and shine a bright light on 
prosecutorial misconduct.
  The bill establishes clear standards of conduct for Department of 
Justice employees and makes them accountable for any misconduct. Our 
legislation makes it a punishable offense for any DOJ employee to 
engage in such actions as leaking information during an investigation, 
seeking the indictment of any person without probable cause and failing 
to release information that would exonerate a person under indictment. 
It also defines such actions as intentionally misleading a court as to 
the guilt of any person and knowingly misstating or altering evidence 
as punishable offenses.
  An independent review board is created to monitor compliance with 
those standards. The board would have the authority to impose penalties 
such as probation, demotion, suspension and dismissal of those found 
guilty of charges of misconduct. All meetings of the board will be open 
to the public.
  For the information of my colleagues, I am submitting for publication 
in the Congressional Record a partial list of specific instances of 
prosecutorial misconduct in federal cases which was prepared by the 
Congressional Research Service at my request.
  The second part of the bill insures that the Department of Justice, 
through attempts at self-regulation, cannot exempt its lawyers from the 
same rules of ethics that govern the professional conduct of all other 
attorneys. These rules are currently enforced, and must continue to be 
enforced, by the state supreme courts. The legislation affirms a U.S. 
Court of Appeals ruling on January 6 which concludes that the Attorney 
General lacks statutory authority to promulgate a rule allowing 
government attorneys to engage in ex parte communications with persons 
represented by an attorney.
  Concerns about the DOJ's attempts at self-regulation have been 
expressed by the American Bar Association, the Conference of Chief 
Justices and the National Association of Criminal Defense Lawyers.
  I urge my colleagues to cosponsor this legislation, which responsibly 
checks the potential for misconduct and self-regulation without 
impeding the mission of the Department of Justice.

    Specific Instances of Prosecutorial Misconduct Prepared by the 
                     Congressional Research Service


                               appendix I

                             composite list

                               Pre-trial

                    Investigations/Case Preparation

       Allowing informants to exercise effective unguided 
     prosecutorial discretion: United States v. Taylor, 956 
     F.Supp. 622, 658-60 (D.S.C. 1997)(1).
       Bombarding individual with undercover solicitations to 
     commit a crime whose prosecution is characterized to targeted 
     individual as constitutionally suspect: Jacobson v. United 
     States, 503 U.S. 540 (1992)(2).


                    Intentional Witness Intimidation

       Badgering witnesses, themselves under indictment, while 
     promising the indictments against them will be dismissed if 
     they testify for the government: United States v. LaFunente, 
     54 F.3d 457, 461-62 (8th Cir. 1995)(1).
       Threatening a witness with loss of immunity from 
     prosecution if he testifies for the defense: United States v. 
     Schlei, 122 F.3d 944 991-93 (11th Cir. 1997)(1).
       Threatening to prosecute: United States v. Smith, 478 F.2d 
     976, 979 (D.C. Cir. 1973)(2).
       Interviewing witness before the beginning of the case for 
     the defense during which the prospect of incrimination was 
     discussed: United States v. Morrison, 535 F.2d 223, 228 (3d 
     Cir. 1976)(2).
       ``Prosecutor's eleventh hour telephone call to witness's 
     attorney reminding him of potential fifth amendment problem 
     if witness took the stand'': United States v. MacCloskey, 682 
     F.2d 468, 479 (4th Cir. 1982)(2).
       Conditioning a potential defense witness's plea bargain on 
     his continued agreement not to testify at the trial of the 
     accused: United States v. Henricksen, 564 F.2 197, 198 (5th 
     Cir. 1977)(2).


                           Decision to Charge

       United States v. Wayte, 479 U.S. 598 608 (1985) (``the 
     decision to prosecute may not be based upon an unjustifiable 
     standard such as race, religion, or other arbitrary 
     classification, including the exercise of protected statutory 
     and constitutional rights'')(3).
                         Selective Prosecution
       On the basis of race: United States v. Armstrong, 116 S. 
     Ct. 1480 (1996)(3).
       On the basis of religion: United States v. Cyprian, 23 F. 
     3d 1189, 1195-196 (7th Cir. 1994)(3).
       On the basis of gender: United States v. Redobndo-Lemos, 
     955 F. 2d 1296, 1298-1300 (9th Cir. 1992)(3).
       Solely on the basis of national origin: United States v. Al 
     Jibori, 90 F. 3d 22, (2d Cir. 1996)(3).
       Based on the exercise of First Amendment rights: United 
     States v. Bayless, 923 F. 2d 70, 72 (7th Cir. 1991); United 
     States v. Steele, 461 F. 2d 1148 (9th Cir. 1972)(2).
                         Vindictive Prosecution
       Prosecution based on prior invocation of constitutional 
     rights (ordinarily rights of criminally accused): United 
     States v. Godwin, 457 U.S. 368, 372-80 (1982)(3).
       Prosecuting, when considering the evidence as a whole, 
     there is no probable cause: United States v. Ramming, 915 F. 
     Supp. 854, 867-69 (S.D. Tex. 1996)(1).
       Securing incriminating statements from the accused with 
     assurances that he or she would not be prosecuted: United 
     States v. Dudden, 65 F. 3d 1461, 1468-469 (9th Cir. 1995) 
     (1).
       Prosecuting in breach of a plea agreement: United States v. 
     Holloway, 74 F. 3d 249, 251 (11th Cir. 1996)(1); United 
     States v. Digregorio, 795 F. 2d 630, 638 (S.D.N.Y. 1992), 
     citing United States v. Fields, 592 F. 2d 638 647-48 (2d Cir. 
     1979), inter alia (3).
                    Abuse of the Grand Jury Process
       Currying the favor of a grand jury panel: United States v. 
     Breslin, 916 F. Supp. 438, 442, 443 (E.D.Pa. 1996)(1).
       Encouraging the grand jury to act with unnecessary haste: 
     United States v. Breslin, 916 F. Supp. at 443, 445 (E.D.Pa. 
     1996)(1).
       Misleading the grand jury to the belief that they were 
     required to accept hearsay evidence: United States v. 
     Breslin, 916 F. Supp. at 444-45 (E.D.Pa. 1996)(1).
       Providing the grand jury with inaccurate statement of the 
     requirements for indictment: United States v. Breslin, 916 F. 
     Supp. at 445-46 (E.D. Pa. 1996)(1).
       Using grand jury subpoenas directed against the attorney of 
     the target of the investigation to disrupt attorney-client 
     relationship and otherwise harass the attorney and his 
     client. In re Grand Jury Matters, 593 F. Supp. 103 (D.N.H. 
     1984), aff'd, 751 F.2d 13 (1st Cir. 1984)(2).
       Inflammatory remarks before the grand jury suggesting that 
     a target of the investigation may have ``bugged'' the grand 
     jury room to discover witness testimony against him: United 
     States v. Griffith, 756 F.2d 1244, 1246-249 (6th Cir. 
     1985)(2).
       Suggesting, without foundation, organized crime links to 
     the target of a grand jury tax investigation and commenting 
     on the veracity of witnesses before the grand jury, conduct 
     characterized as ``improper, reprehensible, and 
     unacceptable:'' United States v. Serubo, 604 F.2d 807, 814-16 
     (3d Cir. 1979)(2).
       Intentional presentation of incompetent and misleading 
     evidence to the grand jury for ``no other purpose than 
     [improper] calculated prejudice:'' United States v. Samango, 
     607 F.2d 877 (9th Cir. 1979)(2).
       Intentional presentation of false, disparaging, unsworn and 
     irrelevant evidence: United States v. Hogan, 712 F.2d 757, 
     760-61 (2d Cir. 1983)(2).
       Using a ``forthwith'' grand jury subpoena duces tecum in 
     lieu of a search warrant when grand jury was not in session: 
     United States v. Hilton, 534 F.2d 556, 565 (3d Cir. 1976)(2).
       Offering extensive, frequent comments amounting to unsworn 
     testimony and misstatements of the law, coupled with use of 
     ``forthwith'' subpoenas, plays upon jurors' patriotism, and 
     heavy-handed questioning of witnesses: United States v. 
     Sears, Roebuck and Co., Inc., 518 F.Supp. 179 (C.D.Cal. 
     1981), rev'd, 719 F.2d 1386 (9th Cir. 1983) (prosecutor's 
     ``abusive'' and ``overzealous'' misconduct was not 
     sufficiently prejudicial to want dismissal of the resulting 
     indictment)(2).
       Advising grand jury that an important government witness 
     would not be testifying before them because if he did 
     organized

[[Page E302]]

     crime, with whom the targets of the investigation were 
     associated, might harm him: United States v. Riccobene, 451 
     F.2d 586, 587 (3d Cir. 1971)(2).
       Leaking information on matters occurring before the grand 
     jury to the press: In re Grand Jury Investigation (Lance), 
     610 F.2d 202 (5th Cir. 1980) (reversing a lower court denial 
     for a hearing on whether sanctions where appropriate for such 
     disclosures); Barry v. United States, 865 F.2d 1317 
     (D.C.Cir. 1989)(same)(2).
       Knowingly permitting indictment based at least in part on 
     material, perjured evidence: United States v. Basurto, 497 
     F.2d 781, 784-87 (9th Cir. 1974)(2).
       Misleading grand jury by unauthorized and ``swearing in'' 
     designation IRS agents as ``agents of the grand jury'' United 
     States v. Kilpatrick, 594 F.Supp. 1324, 1328-330 (D.Colo. 
     1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., 
     Bank of Nova Scotia v. United States, 487 U.S. 250 (1987) (on 
     grounds district court dismissal of indictments was 
     inappropriate remedy)(2).
       Misleading grand jury through the exclusive use of hearsay 
     summaries to secure the indictment of one of accused: United 
     States v. Kilpatrick, 594 F.Supp. 1324, 1339-341 (D. Colo. 
     1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., 
     Bank of Nova Scotia v. United States, 487 U.S. 250 (1987) (on 
     ground district court dismissal of indictments was 
     inappropriate remedy)(2).
       Permitting unauthorized disclosure of grand jury materials 
     to IRS employees with no criminal law enforcement-related 
     responsibilities: United States v. Kilpatrick, 594 F.Supp. 
     1324, 1331-332 (D. Colo. 1984), Rev'd, 821 F.2d 1456 (10th 
     Cir. 1987), aff'd sub nom., Bank of Nova Scotia v. United 
     States, 487 U.S. 250 (1987) (on grounds district court 
     dismissal of indictments was inappropriate remedy)(2).
       Allowing improper use of grand jury materials for purposes 
     of IRS audits unrelated to any criminal investigation: United 
     States v. Kilpatrick, 594 F.Supp. 1324, 1332-334 (D.Colo. 
     1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., 
     Bank of Nova Scotia v. United States, 487 U.S. 250 (1987) (on 
     grounds district court dismissal of indictments was 
     inappropriate remedy(2).
       Widespread disclosure of matters occurring before the grand 
     jury in ``target letters'': United States v.  Kilpatrick, 594 
     F.Supp. 1324, 1334-335 (D.Colo. 1984), rev'd, 921 F.2d 1456 
     (10th Cir. 1987), aff'd sub nom., Bank of Nova Scotia v. 
     United States, 487 U.S. 250 (1987) (on grounds district court 
     dismissal of indictments was inappropriate remedy)(2).
       Improperly informing witnesses that grand jury secrecy 
     provisions applied to them: United States v. Kilpatrick, 594 
     F.Supp. 1324, 1335-336 (D.Colo. 1984), rev'd, 821 F.2d 1456 
     (10th Cir. 1987), aff'd sub nom., Bank of Nova Scotia v. 
     United States, 487 U.S. 250 (1987) (on grounds district court 
     dismissal of indictments was inappropriate remedy) (2).
       Provide witnesses with pocket immunity in the form of 
     assurance letters without authorization: United States v. 
     Kilpatrick, 594 F.Supp. 1324, 1336-338 (D. Colo. 1984), 
     rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., 
     Bank of Nova Scotia v. United States, 487 U.S. 250 (1987) 
     (on grounds district court dismissal of indictments was 
     inappropriate remedy)(2).
       Intentionally calling witnesses before the grand jury with 
     the knowledge that they would calim their privilege against 
     self-incrimination in order to prejudice the grand jury 
     against the target of the investigation and their activities: 
     United States v. Kilpatrick, 594 F.Supp. 1324, 1338-339 (D. 
     Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub 
     nom., Bank of Nova Scotia v. United States, 487 U.S. 250 
     (1987) (on grounds district court dismissal of indictments 
     was inappropriate remedy)(2).
       Using threats and verbal abuse against an expert grand jury 
     witness for disagreeing with the legal theories espoused by 
     the IRS: United States v. Kilpatrick, 594 F.Supp. 1324, 1343 
     (D. Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd 
     sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 
     (1987) (on grounds district court dismissal of indictments 
     was inappropriate remedy)(2).
       Calling a witness before the grand jury solely for the 
     purpose of prosecuting the witness for perjury on the basis 
     of his testimony: United States v. Chen, 933 F.2d 793, 796 
     (9th Cir, 1991)(3).
       Abuse of process: use of court subpoenas for office 
     interviews: United States v. Lilla-Chaparro, 115 F.3d 797, 
     804 (10th Cir. 1997)(1).
                                 Delays
                         Pre-Indictment Delays
       Intentional pre-indictment delay, prejudicial to the 
     defendant, and perpetrated by the government for reasons of 
     tactical advantage: United States v. Lovasco, 431 U.S. 783, 
     795 n.17 (1977)(3).
                         Post-Indictment Delays
       Intentional post-indictment delay, prejudicial to the 
     defendant, and perpetrated by the government for reasons of 
     tactical advantage: United States v. Marion, 404 U.S. 307, 
     324 (1972)(3).
       Failure to Provide Defense With Material, Exculpatory 
     Evidence or Evidence Tending to Impeach Critical Government 
     Witness [Brady v. Maryland, 83 (1963)(3)]:
       Failure to disclose extraordinary privileges afforded 
     government inmate witnesses: United States v. Doyle, 121 F.3d 
     1078, 1082 n.2 (7th Cir. 1997) (giving El Rukn inmate 
     witnesses access to internal prosecution memoranda, drugs, 
     sex and unlimited free telephone calls; and valuable gifts, 
     including cash, clothing, `walkman' radios, food, cigarettes 
     and beer'')(1).
       Failure to disclose the presentation of misleading 
     evidence: United States v. Vozzella, 124 F.3d 389, 391, 392 
     (2d Cir. 1997)(1).
       Failure to disclose the presentation of false evidence: 
     United States v. Alzate, 47 F.3d 1103, 1107-11 (11th Cir. 
     1995); United States v. Duke, 50 F.3d 571, 576 (8th Cir. 
     1995)(1).
       Failure to disclose the criminal record of a government 
     witness: United States v. Duke, 50 F.3d 571, 576 (8th Cir. 
     1995)(1).
       Failure to disclose existence and extent of the criminal 
     involvement of individual, the accused identified in her 
     duress defense, United States v. Udechukwu, 11 F.3d 1101, 
     1104-106 (1st Cir. 1993)(1).
       Failure to confirm (and denial) defense counsel suggestion 
     that witness, whom the defense was unable to locate and who 
     was central to the defense of the accused, had entered a plea 
     bargain agreement with the government requiring his 
     testimony, United States v. Kojayan, 8 F.3d 1315, 1316-325 
     (9th Cir. 1993)(1).
       Failure to disclose evidence that the witness, who 
     testified that the accused had paid him to hold drugs, had 
     lied in earlier proceedings involving the same alleged 
     conspiracy United States v. Cuffie, 80 F.3d 514, 518-19 
     (D.C.Cir. 1996(1).
       Failure to disclose that the principal government witness 
     was under criminal investigation for unrelated misconduct: 
     United States v. Kelly, 35 F.3d 929, 937 (4th Cir. 1994)(1).
       Failure to disclose threats against one government witness 
     made by a second government witness: United States v. 
     O'Conner, 64 F.3d 355, 359-60 (8th Cir. 1995)(1).
           Interference With the Attorney-Client Relationship
       Allowing an attorney to act as an agent of the government 
     and solicit incriminating evidence from his or her client: 
     United States v. Sabri, 973 F.Supp. 134, 147 (W.D.N.Y. 1996); 
     United States v. Marshank, 777 F.Supp. 1507 (N.D.Cal. 
     1991)(1).
       Surrepitious, improper acquisition of attorney work 
     product: United States v. Horn, 811 F.Supp. 739, 749 (D.N.H. 
     1992(1).
       Manifestly and avowedly corrupt intrusions: United States 
     v. Schwimmer, 924 F.2d 443, 477 (2d Cir. 1991) (noting a 
     similar view expressed in United States v. Gartner), 518 F.2d 
     633, 637 (2d Cir. 1975)(3).
       Improper acquisition of defense strategy with resulting 
     injury to the accused or benefit to the government: United 
     States v. Cross, 928 F.2d 1030, 1053 (11th Cir. 1991)(3).
           Post-indictment Contact in the Absence of Counsel
       Undercover, post-indictment solicitation of incriminating 
     statements in the absence of retained counsel: Massiah v. 
     United States, 377 U.S. 201 (1964)(2).
       Conducting plea negotiations directly with an indicted 
     defendant without notifying retained counsel and in violation 
     of applicable ethical restrictions: United States v. Lopez, 
     765 F.Supp. 1433, 1456-463 (N.D.Cal 1991)(1).
       Post-indictment interview of the employees of the accused 
     out of the presence and without notice to counsel: United 
     States v. Kilpatrick, 594 F.Supp. 1324, 1342 (D.Colo. 1984), 
     rev'd 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., Bank of 
     Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds 
     district court dismissal of indictments was inappropriate 
     remedy)(2).
                                 Trial
                          Conflict of Interest
       Prosecuting a case in which the prosecutor has a personal, 
     pecuniary interest in the outcome: United States v. Heldt, 
     668 F.2d 1238, 1275 (D.C.Cir. 1981)(3).
       Prosecuting a case in which the prosecutor's interests in 
     his personal and professional reputation are threatened by a 
     bona fide civil action alleging bad faith in the performance 
     of official duties: United States v. Heldt, 668 F.2d 1238, 
     1275 (D.C. Cir. 1981)(3).
       Prosecuting a case using information secured from the 
     accused when the prosecutor was acting as the attorney for 
     the accused: Wilkins v. Bowersox, 933 F.Supp. 1496, 1521-522 
     (W.D.Mo. 1996)(3).
       Representing the United States in both regulatory and 
     criminal proceedings: United States ex rel. S.E.C. v. Carter, 
     907 F.2d 484, 488 (5th Cir. 1990)(``SEC attorneys' previous 
     involvement in underlying civil case created a potential for 
     conflict and an appearance of impropriety. This overt and 
     substantial interest in the case and the misstatements in the 
     SEC attorneys' brief undermine our confidence in these 
     prosecutions . . . appointment of the SEC attorneys as 
     special prosecutors was plain error'')(3).
       Prosecuting a case in which the prosecutor is an essential 
     witness: United States v. Torres, 503 F.2d 1072, 1083 (2d 
     Cir. 1974)(2).
       Allowing an attorney representing the government in a 
     related civil matter to prosecute: United States ex rel. 
     S.E.C. v. Carter, 907 F.2d 484, 488 (5th Cir. 1990)(2).
                           Improper Argument
                    Suggesting Guilt by Association
       Emphasizing the similarities between the accused and a 
     codefendant/witness who had pled guilty: United States v. 
     Dworken, 855 F.2d 12, 29-32 (1st Cir. 1988)(2).
       Arguing for the conviction of the accused on the basis of 
     an earlier conviction of an alleged co-conspirator: United 
     States v. Mitchell, 1 F.3d 235. 238-42 (4th Cir. 1993)(1).
       Suggesting Guilt Based on the Adverse Inference From Claim 
     of Right or Privilege
       Commenting on the silence of the accused after notification 
     of Miranda rights: United States v. Thomas, 943 F.Supp. 693 
     699-701 (E.D.

[[Page E303]]

     Tex. 1996)(1); Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)(3).
       Commenting, directly or indirectly, on the accused's 
     failure to testify: Griffin v. California, 380 U.S. 609, 611-
     15 (1965)(3).
       Commenting, directly or indirectly, on the accused's 
     failure to testify: United States v. Roberts, 119 F.3d 1006, 
     1015 (1st Cir. 1997); United States v. Wihbey, 75 F.3d 761, 
     771 (1st Cir. 1996); United States v. Kallin, 50 F.3d 689, 
     693 (9th Cir. 1995); United States v. Cotnam, 88 F.3d 487, 
     497-500 (7th Cir. 1996); United States v. Hardy, 37 F.3d 753, 
     756-59 (1st Cir. 1994)(1).
       Commenting, direct or indirect, upon the failure of the 
     accused to testify: United States v. LeQuire, 943 F.2d 1554, 
     1565-568 (11th Cir. 1991); United States v. Eltayib, 88 F.3d 
     157, 172 (2d Cir. 1996)(2).
       Commenting on the demeanor of the accused: United States v. 
     Leal, 75 F.3d 219, 225 (6th Cir. 1996)(1).
       Commenting, uninvited, upon the failure of the accused to 
     present evidence, either generally or specifically: United 
     States v. Anchondo-Sandoval, 910 F.2d 1234, 1237-238 (5th 
     Cir. 1990)(2).
       Commenting on the accused's invocation of his privilege 
     against self-incrimination before the grand jury: United 
     States v. Bustamante, 45 F.3d 933, 946 (5th Cir. 1995)(1).
       Calling a witness the prosecutor knows will validly invoke 
     a privilege with adverse inferences for the accused: United 
     States v. Brown, 12 F.3d 52, 54 (5th Cir. 1994)(1).
       Referring to invocation of the Fourth Amendment rights by 
     the accused: United States v. Thomas, 93 F.3d 479, 487 (8th 
     Cir. 1996)(1).
                          Inflammatory Remarks
       Sympathy for witnesses: United States v. Morgan, 113 F.3d 
     85, 90 (7th Cir. 1997)(1).
       Religious beliefs: United States v. Levy-Cordero, 67 F.3d 
     1002, 1008 (1st Cir. 1995); United States v. Cartagena-
     Carrasquillo, 70 F.3d 706, 712-14 (1st Cir. 1995); United 
     States v. Manning, 23 F.3d 570, 573 (1st Cir. 1994); Arrieta-
     Agressot v. United States, 3 F.3d 525, 527 (1st Cir. 1993); 
     United States v. Giry, 818 F.2d 120, 133 (1st Cir. 1987)(1).
       Racial and/or provincial bias against the accused: United 
     States v. Cannon, 88 F.3d 1495, 1052 (8th Cir. 1996)(1).
       Inviting a guilty verdict based on the out of state 
     residence of the accused: United States v. Williams, 989 F.2d 
     1061, 1071-72 (9th Cir. 1993)(2).
       Calling upon the jury ``to get even for all the wrongs 
     imposed on the good people of our society'' by convicting the 
     accused: United States v. Doe, 860 F.2d 488, 492-94 (1st Cir. 
     1988)(2).
       Graphic comment suggesting a lack of patriotism on the part 
     of the accused: United States v. Rodriquez, 765 F.2d 1546, 
     1560 (11th Cir. 1985).
       Persistent references to the poverty, to Christmas-time, to 
     disadvantaged women and children, and to economic depression 
     as appropriate backdrops to the crime with which the 
     defendant was accused: United States v. Payne, 2 F.3d 706, 
     711-16 (6th Cir. 1993)(1).
       Suggesting that funding for school districts was imperilled 
     by the gambling related RICO activities of the accused: 
     United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 
     1997)(1).
                         Bad Character Remarks
       Emphasizing the bad character (violent and vicious 
     criminal) of the accused: United States v. Procopio, 88 F.3d 
     21, 30-31 (1st Cir. 1996)(1).
       Repeated references to the past criminal record of the 
     accused during closing argument: United States v. Jackson, 41 
     F.3d 1231, 1233 (8th Cir. 1994)(1).
       Misrepresentation, in the presence of the jury, that the 
     defendant accused of harboring illegal aliens had himself 
     entered the country illegally: United States v. Santana-
     Camacho, 833 F.2d 371 (1st Cir. 1987)(2).
       Presentation of emotional evidence of the violent acts of 
     an accused charged with fraud, attempting to impeach a 
     defense witness with prejudicial questions for which there 
     was no evidentiary basis, and arguing guilt on the basis of 
     counts dismissed by the court and contrary to the evidence; 
     United States v. McBride, 862 F.2d 1316 (8th Cir. 1988)(2).
        Attacking Defense Counsel or the Role of Defense Counsel
       Ridiculing defense counsel and offering personal opinions 
     on credibility of defense witnesses: United States v. 
     Collins, 78 F.3d 1021, 1039-40 (6th Cir. 1996); United States 
     v. Barr, 892 F.Supp. 51, 57 (D.Conn. 1995); United States v. 
     Bautista, 23 F.3d 725, 733-34 (2d Cir. 1994)(1).
       Stating or implying to the jury that defense counsel has 
     suborned perjury: United States v. Verna, 113 F.3d 499, 504 
     (4th Cir. 1997)(1).
       Suggesting or implying that the purpose of defense counsel 
     is to prevent the jury from discerning the truth: United 
     States v. Frederick, 78 F.3d 1370, 1379-380 (9th Cir. 1996); 
     United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 1997) 
     (prosecutor's statement to the jury that it was the job of 
     defense attorneys to muddle the issues was clearly 
     improper)(1).
       Repeatedly accusing defense counsel, in the presence of the 
     jury, of intentionally misleading the jurors and witnesses 
     and of lying in court: United States v. McLain, 823 F.2d 
     1457, 1462 (11th Cir. 1987)(2).
       Attacking the role of defense counsel and the integrity of 
     defense counsel: United States v. Friedman, 909 F.2d 705, 
     707-10 (2d Cir. 1990)(2).
       Improper Characterization of Defense Witnesses or Evidence
       Attacking witness credibility with evidence not on the 
     record: United States v. Zehrbach, 47 F.3d 1252, 1264 (3d 
     Cir. 1995); United States v. Mueller, 74 F.3d 1152, 1157 
     (11th Cir. 1996); United States v. Crutchfield, 26 F.3d 1098, 
     1100-103 (11th Cir. 1994)(1).
       Arguing that the accused and witnesses for the defense have 
     lied: United States v. Moore, 11 F.3d 475, 480-81 (4th Cir. 
     1993)(1).
       Characterizing the testimony of the accused and defense 
     witnesses as lies: United States v. Smith, 982 F.2d 681, 684 
     (1st Cir. 1993); United States v. Anchondo-Sandoval, 910 F.2d 
     1234, 1237-238 (5th Cir. 1990)(2).
                    Puffing Up The Government's Case
       Urging conviction on the basis of the prestige of the 
     court, the government, or the prosecutors: United States v. 
     Catillo, 77 F.3d 1480, 1498 (5th Cir. 1996); United States v. 
     Melendez, 57 F.3d 238, 240-241 (2d Cir. 1995); United States 
     v. Richardson, XXX F.3d XXX, (7th Cir. 1997); United States 
     v. Carroll, 26 F.3d 1380, 1389-390 (6th Cir. 1994)(1).
       Bolstering witness credibility with evidence not on the 
     record: United States v. Henry, 47 F.3d 17, 21 (2d Cir. 
     1995); United States v. Johnson-Dix, 54 F.3d 1295, 1304 (7th 
     Cir. 1995)(1).
       Vouching for government witness's credibility: United 
     States v. Cotnam, 88 F.3d 487, 500 (7th Cir. 1996); United 
     States v. Manning, 25 F.3d 570, 572-74 (1st Cir. 1994); 
     United States v. Carroll, 26 F.3d 1380, 1389-390 (6th Cir. 
     1994)(1).
       Vouching for the credibility of government witnesses: 
     United States v. Williams, 989 F.2d 1061, 1071-72 (9th Cir. 
     1993); United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 
     1992); United States v. Eyster, 948 U.S. 1196, 1204-206 (11th 
     Cir. 1991); United States v. Simtob, 901 F.2d 799, 805-6 (9th 
     Cir. 1990); United States v. Eltayib, 88 F.3d 157, 172 (2d 
     Cir. 1996)(2).
       Telling the jury how uncalled witness would testify if 
     called: United States v. Molina-Guevara, 96 F.3d 698, 703, 
     704-5 (3d Cir. 1996).
       Arguing to the jury, after repeated admonishment by the 
     court, that the government only prosecutes the guilty: United 
     States v. Stefan, 784 F.2d 1093, 1099-1100 (11th Cir. 1986); 
     United States v. Smith, 982 F.2d 681, 684 (1st Cir. 1993)(2).
                     Reliance on Facts Not Evidence
       Knowing reference to inadmissible or unsupported evidence 
     during the prosecution's opening statement: United States v. 
     Millan, 812 F.Supp. 1086, 1088-89 (S.D.N.Y. 1993)(1).
       Urging conviction by reference to inadmissible evidence: 
     United States v. Adams, 74 F.3d 1093, 1096-98 (11th Cir. 
     1996)(1).
       Securing conviction on allegations stated as facts but not 
     in evidence: United States v. Berry, 92 F.3d 597, 598-99 (7th 
     Cir. 1996); United States v. Morseley, 64 F.3d 907, 912 (4th 
     Cir. 1995) (it was unquestionably improper for the prosecutor 
     to tell the jury in his closing argument that the accused had 
     confessed when he had not); United States v. Anderson, 61 
     F.3d 1290, 1299 (7th Cir. 1995) (it was improper for the 
     prosecutor to inform the jury that the accused had ruined 
     ``literally thousands and thousands of lives'' even though 
     the government offered no evidence to support such a 
     statement); United States v. Blakey, 14 F.3d 1557 (11th Cir. 
     1994) (unsupported argument to the jury that the accused was 
     a ``professional criminal''); United States v. Bautista, 23 
     F.3d 725, 733-34 (2d Cir. 1994)(1).
                    Reliance on Perjury or Deception
       Presentation of false evidence: Napue v. Illinois, 360 U.S. 
     264, 269 (1959).
       Misleading the court and jury: United States v. Forlorma, 
     94 F.3d 91, 94-5 (2d Cir. 1996); United States v. Vozzella, 
     124 F.3d 389, 391, 392 (2d Cir. 1997); United States v. 
     Alzate, 47 F.3d 1103, 1107-11 (11th Cir. 1995); United States 
     v. Udechukwu, 11 F.3d 1101, 1104-106 (1st Cir. 1993); United 
     States v. Kojayan, 8 F.3d 1315, 1316-325 (9th Cir. 1993)(1).
       Offering perjurious testimony: United States v. Brown, 121 
     F.3d 700 (1997)(1).
       Using or failing to correct clearly perjurious testimony: 
     United States v. Rivera Pedin, 861 F.2d 1522, 1529-530 (11th 
     Cir. 1988)(2).
       Intentionally misrepresenting the state of the law to the 
     jury: United States v. Thomas, 943 F.Supp. 693, 699-701 (E.D. 
     Tex. 1996)(1).
       Intentionally failing to correct erroneous testimony: 
     United States v. Young, 17 F.3d 1201, 1202-203 (9th Cir. 
     1994)(1).
       Encouraging misrepresentations in order to bolster the 
     perjured testimony of a government witness: United States v. 
     Eyster, 948 U.S. 1196, 1204-206 (11th Cir. 1991)(2).
                               Post-Trail
                   Contact in the Absence of Counsel
       Questioning a defendant, without notifying his counsel, 
     concerning matters arising in a sentencing-related medical 
     examination: United States v. Adonis, 744 F.Supp. 336, 345-47 
     (D.D.C. 1990)(2).

     

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