[Congressional Record Volume 144, Number 94 (Wednesday, July 15, 1998)]
[Senate]
[Pages S8243-S8244]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL (for himself and Mr. Sessions):
  S. 2311. A bill to amend section 201 of title 18, United States Code, 
to increase prosecutorial effectiveness and enhance public safety, and 
for other purposes; to the Committee on the Judiciary.


          effective prosecution and public safety act of 1998

 Mr. KOHL. Mr. President, Senator Sessions and I today are 
introducing a bill that guarantees prosecutors can exercise their full 
power to keep criminals off our streets. The ``Effective Prosecution 
and Public Safety Act of 1998'' makes clear that prosecutors can offer 
plea bargains to accomplices in exchange for their testimony--a long-
standing, accepted and necessary practice--without tainting a 
conviction resulting from such testimony. This measure puts to rest any 
concerns raised by an overwhelmingly disputed decision issued recently 
by a panel of three appellate court judges. And it makes it less likely 
that courts could overturn convictions of dangerous criminals like 
Oklahoma City bomber Timothy McVeigh.
  Until a court decision two weeks ago, there was no doubt that 
prosecutors could build criminal cases by offering leniency to 
accomplices in exchange for their testimony at trial. But in U.S. 
versus Singleton, a Tenth Circuit panel held that a federal anti-
bribery statute, which had been on the books for over 35 years, barred 
these kinds of leniency deals. This unprecedented decision has been 
criticized virtually unanimously. Subsequently, the full Tenth Circuit 
put the decision on hold, pending a full court rehearing scheduled for 
November.
  There is little doubt that the Tenth Circuit's decision is just plain 
wrong. Nothing in the legislative history suggests that Congress ever 
intended to take away a prosecutor's ability to make deals for 
testimony. And it is no surprise that in 35 years no court ever found 
the anti-bribery statute to apply to this reasonable exercise of 
prosecutorial discretion. This decision is simply a case of Scalia-ism 
taken to the extreme, beyond the bounds of common sense and in the face 
of established practices. I cannot believe that even Justice Scalia, 
the high priest of literalism, would agree with this result.
  As wrong as this decision is, it still cannot be taken lightly. 
Prosecutors make deals with cooperating witnesses all the time. So this 
decision puts tens of thousands of convictions in jeopardy. For an 
example, we need look no further than the conviction of Timothy 
McVeigh, which was based in large part on the testimony of Michael 
Fortier, who was allowed to plea to lesser charges in exchange for his 
testimony. And McVeigh's conviction is on appeal in the same Tenth 
Circuit--could that be the next conviction it will try to overturn?
  In my view, the risks posed by this decision are too great to leave 
this issue to the courts--even though I am confident that in the end 
they would do the right thing. Indeed, until this issue works its way 
to the Supreme Court, the potential dangers are serious. Prosecutors 
may feel the need to hold back on cutting deals with potential 
witnesses, making it tougher to convict dangerous criminals. And 
criminals behind bars will have a better chance than ever at 
overturning their convictions. Already, jailhouse lawyers are probably 
foaming at the mouth anticipating making this argument in courts all 
over the nation.
  Congress can act now to put this issue behind us, to guarantee that 
prosecutors are not hampered in their efforts to put criminals behind 
bars, and to make sure that is where criminals stay. This bill is 
simple and effective. It amends the anti-bribery statute to exempt 
deals for leniency made by prosecutors in exchange for testimony. And 
it applies to past as well as future deals, so that no criminal--
including the Oklahoma City bomber--can try to use this awful decision 
as a ``get out of jail card'' at the expense of the safety of the 
American people.
  Mr. President, let me make clear what this proposal does and what it 
does not do. All it does is reinforce what Congress always intended--to 
allow plea bargains in exchange for testimony. It does not permit 
prosecutors to ``buy'' testimony with cash payoffs. That is still 
illegal. It does not allow prosecutors to knowingly elicit false 
testimony. That is obstruction of justice. And it does not prevent a 
defense attorney from raising a deal at trial to try to cast doubt on 
the credibility of a witness. That is what cross-examination is all 
about.
  Mr. President, prosecutors will be most effective and the public will 
be safest if we set the Record straight now and correct the Tenth 
Circuit's outrageous decision. I urge my colleagues to join me in 
support of this bill. And I offer for the Record the following two 
articles--an editorial from the Washington Post criticizing the 
decision and a piece from Legal Times explaining its impact and recent 
developments, and ask unanimous consent that these articles be printed 
in the Record.
  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

               [The Washington Post, Wed., July 8, 1998]

                            Judicial Trouble

       Every now and then, a federal appeals court issues a ruling 
     that is, at once, so wrongheaded and so sweeping that it 
     results in a brief period of uncertainty in the legal world 
     before being reversed. The decision last week by the U.S. 
     Court of Appeals for

[[Page S8244]]

     the 10th Circuit in the case of U.S. v. Singleton is one such 
     bombshell. A unanimous three-judge panel threw out the drug 
     conspiracy and money laundering conviction of a woman named 
     Sonya Singleton, finding that the government had violated a 
     criminal anti-gratuity statute by promising leniency to a 
     witness in exchange for his testimony.
       On its face, the decision seems faintly reasonable. There 
     is, after all, a federal law that holds criminally liable 
     anyone who, ``directly or indirectly, gives, offers or 
     promises anything of value to any person, for or because of 
     the testimony under oath or affirmation given . . . by such 
     person as a witness.'' This law contains no explicit 
     exception for the government, and leniency in sentencing is 
     certainly of value to a person who is facing jail. Hence, the 
     court held, the government violated the law by using bought 
     testimony, and Ms. Singleton's conviction must be thrown out.
       Logical, perhaps, but dead wrong. What the government 
     actually promised the witness was, in fact, a standard plea 
     agreement of a sort prosecutors rely on every day. Oklahoma 
     City bomber Timothy McVeigh was convicted based, in 
     substantial part, on testimony by Michael Fortier--who was 
     allowed to plead guilty to lesser charges. Many, if not most, 
     significant investigations rely on witnesses who are 
     ``flipped'' by prosecutors in exchange for some sort of 
     special treatment, almost all of which could be considered 
     ``of value.''
       This practice can be--self-evidently--corrupting. A witness 
     who knows that his cooperation will get him a cut sentence 
     has a strong incentive to say what prosecutors want to hear. 
     But the traditional remedy is the cross examination of the 
     witness by defense lawyers, and no court has previously 
     deemed a run-of-the-mill plea agreement to be a felony by a 
     prosecutor.
       Though the law does not explicitly exempt the government, 
     this appears to reflect only the fact that members of 
     Congress never considered the possibility that they were 
     criminalizing normal prosecutorial practice. In fact, 
     Congress has adjusted the law in question without balking at 
     the behavior of prosecutors. And the Supreme Court, in Giglio 
     v. U.S., held that when the government makes a deal with a 
     witness, that a deal must be disclosed to the defense as 
     exculpatory evidence--a holding that seems to concede that 
     the deal-making itself is legitimate. The 10th Circuit's 
     decision is at odds both with assumed prosecutorial practice 
     and--by the judges' own admission--with the other judicial 
     authorities in the books.
                                  ____


             [From the Legal Times, Week of July 13, 1998]

       Federal Court Watch--Appeals Panel Retracts Snitch Ruling

                          (By Robert Schmidt)

       It was a revolutionary federal appeals court decision--a 
     unanimous ruling by three judges that the time-honored 
     prosecutorial tactic of offering witnesses leniency in 
     exchange for their testimony is illegal--and it sent 
     prosecutors and defense lawyers into a frenzy.
       The ruling's sweeping implications also apparently caught 
     the very judges who issued it off guard.
       In a highly unusual move late last week, the U.S. Court of 
     Appeals for the 10th Circuit, acting on its own motion, 
     vacated the July 1 opinion in United States v. Singleton so 
     it could address the issue en banc.
       The decision stunned defense lawyers across the nation, 
     some of whom had already filed motions in other federal 
     courts based on the precedent. The 10th Circuit's reversal, 
     however, pleased prosecutors--especially officials at Main 
     Justice, who have been scrambling to develop for U.S. 
     attorneys' offices legal guidelines that take Singleton into 
     account.
       On July 9, Justice announced it was planning on asking the 
     10th Circuit to hear the case en banc, but it had not yet 
     filed the motion when the court acted on its own.
       ``This does not seem like the kind of case where they would 
     grant en banc sua sponte because they felt that [the 
     decision] was right,'' says a Justice official working on the 
     matters. ``This is a hopeful sign.''
       John ``Val'' Wachtel, the Wichita, Kan., lawyer who 
     initially triumphed before the three-judge panel, says he is 
     disappointed but eager to argue before the entire court.
       ``We plan to write our brief and go out and argue and win 
     this case,'' says Wachtel, a partner of Wichita's Klenda, 
     Mitchell, Austerman & Zuercher. ``The decision of the panel 
     is right.''
       The court's unusual move followed a firestorm in federal 
     courts across the six Western states that make up the 10th 
     Circuit. Although the panel noted that its ruling would not 
     ``drastically alter'' prosecutors' tactics, no one else 
     seemed to agree.
       Trial lawyers of all stripes predicted that if the 
     opinion's holding stood, it would dramatically change the way 
     prosecutors investigate and try many types of criminal cases, 
     including major conspiracies involving drug trafficking, 
     money laundering, and fraud.
       And last week, those predictions were already coming true 
     in the 10th Circuit.
       According to press accounts and lawyers who practice in the 
     circuit, ongoing federal criminal cases there were virtually 
     paralyzed as lawyers and even judges tried to decide what to 
     do.
       Stephen Saltzburg, a former Justice official who now 
     teaches at George Washington University Law School, says that 
     this type of paralysis plus the widespread media attention 
     likely prompted the 10th Circuit to issue its order late last 
     week.
       ``They may not have paid careful attention to this when it 
     was lurking,'' posits Saltzburg. ``Once they had the uproar, 
     and focused on it, they realized that every criminal case 
     that went to trial is now at risk.''
       Indeed, the court did see that as a potential problem. In 
     its July 10 order, signed by 11 of the 12 judges, the court 
     asked attorneys for both sides to file briefs that ``address 
     whether any opinion reversing the district court would have 
     prospective or retrospective application.''
       The Circuit ordered that the briefs be submitted in August 
     and said it would hear oral argument in November.
       While criminal law experts like Saltzburg almost all 
     predict that the entire court will reverse Singleton, defense 
     lawyers say they are confident the opinion will be affirmed.
       The underlying case involved Sonya Singleton, who was 
     convicted of one count of conspiracy to distribute cocaine 
     and seven counts of money-laundering. The main evidence 
     against Singleton was the testimony of Napoleon Douglas, a 
     fellow alleged conspirator who cut a plea deal with the 
     government.
       Singleton's lawyer, Wachtel, argued that Douglas' testimony 
     should be suppressed, claiming that 18 U.S.C. 
     Sec. 201(c)(2)--the law governing bribery of public officials 
     and witnesses--applies to prosecutors just as it applies to 
     everyone else.
       The section reads: ``Whoever . . . directly or indirectly, 
     gives, offers or promises anything of value to any person, 
     for or because of the testimony under oath or affirmation 
     given or to be given by such person as a witness upon a 
     trial, hearing or other proceeding, before any court . . . 
     shall be fined under this title, or imprisoned for not more 
     than two years, or both.''
       The panel did not suggest that prosecutors should go to 
     jail or be fined for violating the law. But it did determine 
     that the statute was broad enough to include federal 
     prosecutors.
       The court then noted that Douglas' plea agreement, which 
     incorporated standard boilerplate language used by U.S. 
     attorneys' offices nationwide, made three specific promises 
     to Douglas in exchange for his testimony.
       Those promises--not to prosecute him for any other crimes 
     stemming from the investigation and to tell both the 
     sentencing court and his parole board about the extent of his 
     cooperation--constituted ``something of value,'' the court 
     reasoned. Thus, they amounted to an illegal gratuity.
       ``The obvious purpose of the government's promised actions 
     was to reduce his jail time,'' wrote U.S. Circuit Judge Paul 
     Kelly Jr., ``and it is difficult to imagine anything more 
     valuable than personal physical freedom.''
       Despite the 10th Circuit's decision last week, local 
     defense lawyers say they are eager to raise the issue in 
     Washington's federal court.
       ``I guess, given the attention it received, [the 10th 
     Circuit's action] is not all that surprising, but it is 
     definitely disappointing,'' says L. Barrett Boss, an 
     assistant federal public defender in Washington. ``The 
     argument that is made, that testimony in exchange for 
     leniency violated the bribery statute, is rock solid, so 
     we're definitely going to be pursuing that issue at every 
     opportunity.''
                                 ______