[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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