Dear Mr. Shaheen,
Entirely unrelated to any case that I'm presently handling, I have recently become curious about the provisions of 18 USC Section 201(c)(2) which by its terms, makes it an offense to pay a witness for testifying. Since the government frequently pays witnesses for testifying, particularly in drug-related cases, I assume that there must be some basis for believing that this section of the Code is not applicable in those cases. I should appreciate any information you can give me on the matter.

I have read references to a memorandum authored by former Attorney General Richard Thornburgh, which has become known as the Thornburgh Memorandum. I understand that in 1993, Attorney General [Janet] Reno published a similar memorandum. Please send me copies of both memoranda.

Very truly yours,
J. Richard Johnston

In June 1995, I received the following response from Shaheen's office:

Dear Mr. Johnston,
This is in response to your May 2, 1995 letter to this office in which you requested copies of memorandums by Attorney General Janet Reno and former Attorney General Richard Thornburgh. I have interpreted your letter as a request for certain documents describing when Department of Justice attorneys may communicate with persons represented by counsel. I am enclosing a copy of a June 8, 1989, memorandum by former Attorney General Dick Thornburgh. I am also enclosing a copy of the department's final rule as published in the August 4, 1994 Federal Register, which states the current policy of the Department of Justice.

Sincerely,
Michael E. Shaheen, Counsel
By: Marlene M. Wahowiak, Assistant Counsel

Section 201 of Title 18 of the United States Code (U.S.C.) addresses bribery of public officials and witnesses. §201 (c)(2) states that it is a felony offense to compensate or to offer to compensate a witness for testimony. It reads as follows:

(c)Whoever--

(2) 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, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person's absence therefrom;

shall be fined under this title or imprisoned for not more than two years, or both.

Despite this provision, the DOJ has a well-established practice of paying prosecution witnesses for their testimony, either in cash or by favorable plea bargains, or both. You have only to read the newspaper, watch television, or peruse legal periodicals readily to find examples.

In a New York Times report on March 8, 1995 it was noted that the Federal Bureau of Investigation (FBI) was paying $1,056,200 to Emad Salem for his testimony in the terrorism trial of Sheik Omar Abdel Rahman and others charged with plotting to bomb the United Nations, the FBI office in New York, and two tunnels under the Hudson River. Rahman was convicted.

In a widely reported case Ciro Wayne Mancuso was the principal government witness in the 1995 prosecution of San Francisco lawyer Patrick Hallinan, whom the government charged with racketeering, obstruction of justice, money laundering, and abetting a marijuana conspiracy--all as a result of actions taken as Mancuso's attorney. In an indictment returned in 1990, Mancuso had been charged in 49 counts with a variety of violations of federal drug laws. In return for his "full cooperation and truthful testimony as required by the government" prosecutors agreed, among other things, to file a motion under Title 18 U.S.C. §3553(e) authorizing the court to (a) impose a more lenient sentence on Mancuso than would otherwise be authorized by law, (b) to advise the Swiss government that the U.S. government no longer had an interest in $600,000 in a Swiss bank account held by Mancuso, and, (c) to allow Mancuso to retain real and personal property valued at more than $4 million -- property that had been, presumably, subject to forfeiture. Ironically, it was Hallinan himself who negotiated the plea agreement, at a time when he had no reason to anticipate that his client would later turn on him in an attempt to gain leniency for himself. A jury eventually found Hallinan not guilty. (See United States v. Hallinan, CRN-39-HDM (D. Nev.).)

According to an Associated Press article appearing in the San Francisco Chronicle on March 24, 1995, Michael Fitzpatrick testified that he was to receive $45,000 plus living expenses for testifying against Malcolm X's daughter, Qubilah Shabazz, who was charged with plotting to assassinate Nation of Islam leader Louis Farrakhan. Shabazz believed Farrakhan had a hand in her father's death. The government dropped the charges just hours before jury selection in a diversion agreement in which Shabazz maintains her not guilty plea while accepting responsibility for her part in the plot. The agreement also called for Shabazz to drop charges of an FBI frame-up and undergo two years of psychiatric and substance abuse treatment. Shabazz had no previous criminal record. Fitzpatrick, on the other hand, was arrested in 1977 for trying to bomb a bookstore, and is currently in a government witness protection program.

In 1984, Joseph Conforte testified as the government's star witness in the first trial of United States District Judge Larry Claiborne, in which he was charged with bribery and other offenses. Conforte was enticed to return to the United States from Brazil, where he had fled to avoid imprisonment, and to testify against Judge Claiborne by a government promise that included (a) recommending that he be resentenced for tax evasion, for which he had already been convicted, with the result that he serve the four five year terms to which he had been sentenced concurrently and that all but 15 months of each sentence be suspended; (b) dropping federal bail-jumping charges against him; and (d) persuading Nevada state officials to drop state charges then pending against him, while prevailing upon state prosecutors to agree to concurrent sentences on state offenses for which Conforte had already been convicted. The government kept its promise. Conforte returned to the United Stales and testified as the prosecution's principal witness at the first Claiborne trial, which resulted in a hung jury on all counts of the indictment.

If a defense lawyer in a criminal case induced (or attempted to induce) a witness to testify for the defendant by offering a fraction of the rewards given with impunity to prosecution witnesses, that lawyer could anticipate serious disciplinary problems. So, why are federal prosecutors who pay witnesses to testify not in violation of 18 U.S.C. § 201 (c)(2)? The reply from the counsel of the Office of Professional Responsibility in the U.S. Department of Justice quoted at the beginning of this article simply failed to respond to that question.

Although § 201 is titled "bribery of public officials and witnesses," and the section deals primarily with bribing public officials and giving or offering "anything of value" to a witness with intent to influence the witness's testimony, the prohibition in § 201 (c)(2) contains no requirement that such activity be done solely with the intent of influencing the witness's testimony--only that it be "for or because of the testimony under oath or affirmation given or to be given by such person as a witness ...."

In addition, § 201(b)(3), which expressly proscribes "corruptly" giving or offering anything of value to any person or entity "with intent to influence the testimony" of that person or entity, makes it clear that that is a separate offense. In light of that, it is difficult to see how § 201 (c)(2) can be understood to apply only when the payment is made with intent to influence the witness's testimony. ...

I have been unable to find any reported case involving a prosecution under 201 (c)(2), and one wonders whether anyone has ever been charged under that section. If not, the reason may lie partly in the fact that the courts have been exceedingly liberal in admitting into evidence testimony by prosecution witness who have been paid to testify, even when the amount of payment of something else "of value" is contingent upon the nature of the testimony or even the conviction of the defendant. (United States v. Grimes, 438 F.2d 301 (6th Cir. 1971) (prosecution for forcibly breaking into a post office with intent to commit larceny therein), cert. denied, 402 U.S. 989 (1971) (The government informer, who participated in the offense and testified against the defendants, was to be paid a fee for his testimony contingent upon the conviction of the defendants.) ...

In defense of its decision in Grimes, the Court of Appeals for the Sixth Circuit pointed out that Congress itself has authorized a form of contingent fee arrangement in tax cases. Section 7623 of the Internal Revenue Code (26 U.S.C.) authorizes the payment of fees "for detecting and bringing to trial and punishment persons guilty of violating the internal revenue laws," and Treasury Reg. § 301.7623-1(c) provides that the amount of the reward is "normally not to exceed ten percent of the additional taxes, penalties, and fines which are recovered as a result of the information." ...

The regulation provides that the reward is for "information," and neither the statute nor the regulation makes any specific reference to testimony. However, if the informant testifies as a witness, the amount of the reward may, in fact, be contingent upon the effect of the informant's testimony. This was recognized by the Court of Appeals for the Eleventh Circuit in the case of United States v. Wilson, 904 F.2d 656 (1990), a tax fraud case in which the government's two key witnesses testified at trial that not only had they been granted immunity, but also that they expected to receive rewards of up to $11 million for their testimony against the defendants. In affirming the conviction of the two defendants, the court of appeals concluded that the witnesses were "contingently motivated," but noted that the defendants were aware that the two witnesses had applied for awards and that both of them were cross-examined at length regarding the scope of their agreements with the IRS.

In all such cases, the rationale for admitting the testimony is that the jury will be told of the plea bargain or other arrangement for compensating the witness, and the jury will consider this as it may bear upon the credibility of the witness.

Just as § 201 (c)(2) makes it an offense to offer to give or to give anything of value for a witness's testimony, so § 201 (c)(3) makes it an offense for a witness to demand or accept anything of value for testifying.

Since it is DOJ lawyers who are paying witnesses to testify, it is hardly to be expected that the department will ever prosecute a prosecutor for paying a witness, or a witness for accepting a payment.

The rules governing the conduct of lawyers make no distinction between prosecutors and defense counsel in prohibiting payments to witnesses.

Section 3.4(b) of the American Bar Association's Model Rules of Professional Conduct provides:

A lawyer shall not:

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law (Emphasis added.)

The comment that follows Rule 3.4 states:

[3] With regard to paragraph (b), it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. (Emphasis added.)

...

There are examples where the courts have imposed sanctions in civil cases when a percipient witness was paid to testify, even when the witness testified truthfully. In Golden Door Jewelry Creations Inc v. Lloyd's Underwriters Non-Marine Association, 865 F. Supp. 1516 (S.D. Fla. 1994), Lloyd's was found to have paid two witnesses a total of $493,103 (Lloyd's acknowledged paying a total of $120,000 to the two for testifying at depositions.) The district court found that although there was insufficient evidence to show that the payments were made "corruptly," it nevertheless held that the payments violated Rule 4-3.4(b) of the Rules of Professional Conduct, as those rules existed in Florida, and it excluded all evidence "tainted by the ethical violations."

...

The evidence indicated that Lloyd's paid for the testimony of the two witnesses contingent upon three conditions: (1) the testimony had to be truthful; (2) the testimony had to be material; and (3) the testimony had to be helpful to Lloyd's in defense of the litigation. The court found that "this conduct was egregious and constituted willful and repetitive violations of Rule 4-3.4(b) of the Rules of Professional Conduct." (865 F,: Supp. at 1525.)

In support of its decision, the court cited the case of The Florida Bar v. Jackson, 490 So. 2d 935 (Fla. 1986) and it quoted with approval from the Florida court's opinion, as follows:

The very heart of the judicial system lies in the integrity of the participants,.... Justice must not be bought or sold. Attorneys have a solemn responsibility to assure that not even the taint of impropriety exists as to the procurement of testimony before courts of Justice, It is clear that the actions of the respondent in attempting to obtain compensation for the testimony of his clients . . . violates the very essence of the integrity of the judicial system and the disciplinary rule and the code of professional responsibility, the integration rules of the Florida Bar and the oath of his office.

The case concerned a lawyer who had requested that his clients be paid $50,000 for their testimony in a New York case involving an insurance claim. This was held to be a violation of Rule 1-102(A)(5) of the Florida Code of Professional Responsibility and the lawyer was suspended from practice for three months.

In a civil case tried in the U.S. District Court for the District of Columbia, the court imposed a $1,000 fine on one of the participants and his lawyer for making more than $45,000 in payments to a potential witness conditional on the favorable outcome of the litigation. ... Sanders Associates, Inc v. Summagraphics Corporation, 2 F.3d 394 (Fed. Cir. 1993).)

Discipline has been imposed even when only a nominal payment was involved. In the case of a defendant charged with unlawful possession of a weapon, the police officer who discovered the weapon in the defendant's automobile demanded -- and was paid by the defendant's lawyer -- $50 to testify truthfully. The lawyer was suspended from practice for 18 months. (In re Kien, 372 N.E.2d 376 (111. 1977).)

The question, then, is why are the rules so different for the prosecutor in a criminal case? Presumably it is because of the prosecutor's "higher duty" not to merely obtain a conviction, but also to seek justice -- a duty not shared by defense counsel. Because of this "higher duty," it appears that the government assumes that prosecutors will not abuse the power they hold to reward witnesses for their testimony.

The United States Attorney is the representative not of an ordinary party to a controversy; but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win the case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. (Emphasis added.)

(Berger v. United States, 295 U.S. 78, 88,. 55 S. Ct. 629, 633 (1935)

Regardless of the difference in the duties of a prosecutor and defense counsel, compensating a witness for testifying involves an identical threat to the integrity of the judicial system whether the witness testifies for the prosecution or the defense. There is no apparent reason why the rules should be different for the two sides in a criminal case, or why the rules should be more lax in a criminal case than in a civil suit.

In any event, when the government has either promised or given anything of value to a prosecution witness in return for his or her testimony in a federal case, the defense might at least ask the court to inform the jury that this is an apparent violation of 18 U.S.C. 201(c)(2).

Reprinted by permission. Copyright 1997 American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.