[Congressional Record Volume 144, Number 94 (Wednesday, July 15, 1998)]
[Senate]
[Page S8248]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY:
  S. 2314. A bill to clarify that prosecutors and other public 
officials acting in the performance of their official duties may enter 
into cooperation agreements and make other commitments, assurances, and 
promises, as provided by law in consideration of truthful testimony; to 
the Committee on the Judiciary.


     prosecutors' cooperation agreements clarification legislation

  Mr. LEAHY. Mr. President, earlier this month, a three-judge panel of 
the Tenth Circuit decided United States v. Singleton, in which it found 
that the prosecutor had violated the federal gratuity statute and a 
state ethics rule by entering a plea agreement with a cooperating 
defendant that made certain promises in exchange for the cooperator's 
truthful testimony at trial. The promises in question were the sort of 
plain vanilla promises that appear in virtually every cooperation 
agreement, and are the lifeblood of bringing successful prosecutions.
  As a former prosecutor, I found this decision bizarre and dangerous. 
In effect, it makes it illegal--a federal felony--for prosecutors to 
offer leniency in return for testimony on the theory that leniency is a 
form of bribery. Defense attorneys across the country have already 
begun to jump on the Singleton bandwagon. In my state, Vermont, the 
decision has already triggered new motions in a major drug smuggling 
case involving a billion dollars worth of hashish. The defendant, 
Martin Scott, is scheduled to go to trial in September, and the 
government's evidence includes testimony by cooperating codefendants. 
Scott has now moved to exclude this testimony on the ground that it was 
obtained unlawfully in return for government promises of leniency, 
citing Singleton.
  If this controversial decision stands, prosecutors would be exposed 
to the threat of felony liability and disciplinary action just for 
doing their jobs. In addition, this decision could result in a tidal 
wave of reversals and suppression rulings in cases involving cooperator 
testimony.
  I was relieved to see that the Tenth Circuit acted swiftly to vacate 
the panel decision and set the case down for en banc rehearing in 
November, and I am confident that the ruling will eventually be thrown 
out--but not before the issue has been raised and relitigated at every 
turn in every district and circuit court in the land. At a minimum, 
this will delay trials, squander scarce judicial resources, and 
generally waste everyone's time.
  We need to insure that prosecutors have the tools they need to do 
their jobs effectively, and being able to enter into cooperation 
agreements is critical. That's why I am introducing legislation today 
to make crystal clear that prosecutors and other public officials 
acting in the performance of their official duties may enter 
cooperation agreements and make other such commitments, assurances and 
promises in return for truthful testimony.
  I look forward to working with my colleagues on this matter, and ask 
unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2314

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. CLARIFICATION OF PROSECU- TORIAL AUTHORITY.

       Section 201 of title 18, United States Code, is amended--
       (1) in subsection (c)--
       (A) by redesignating paragraphs (2) and (3) as paragraphs 
     (3) and (4), respectively;
       (B) by striking ``Whoever'' and all that follows through 
     ``otherwise than'' and inserting ``Whoever, otherwise than'';
       (C) by redesignating subparagraphs (A) and (B) as 
     paragraphs (1) and (2), respectively, and indenting 
     appropriately; and
       (D) in paragraph (1), as so designated, by striking ``or'' 
     at the end; and
       (2) in subsection (d), by striking ``paragraphs (2) and 
     (3)'' and inserting ``paragraphs (3) and (4)''.
                                 ______