U.S. v. Medina, No. CRIM. 98-CR-10041-NG.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtGertner
Citation41 F.Supp.2d 38
PartiesUNITED STATES of America, v. Duverny MEDINA, Defendant.
Decision Date13 January 1999
Docket NumberNo. CRIM. 98-CR-10041-NG.
41 F.Supp.2d 38
UNITED STATES of America,
v.
Duverny MEDINA, Defendant.
No. CRIM. 98-CR-10041-NG.
United States District Court, D. Massachusetts.
January 13, 1999.

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William H. Keefe, Jamaica Plain, MA, for Defendant.

Kevin McGrath, Asst. U.S. Atty., United States Atty's Office, Boston, Ma, for U.S.

MEMORANDUM AND ORDER

GERTNER, District Judge.


Defendant Duverney Medina ("Medina") moves to suppress the testimony of a cooperating witness ("CW"). Medina argues that the benefits the government gave the CW — a substantial amount of money, assistance with tax and immigration problems, as well as limited immunity, dropped charges, and the promise of leniency — violate the federal bribery and gratuity statute, 18 U.S.C. § 201(c)(2).1 Section

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201(c)(2) prohibits giving a person "anything of value" "for or because of testimony."2 Following the reasoning announced in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998) ("Singleton I") rev'd en banc 165 F.3d 1297 (10th Cir.1999) ("Singleton II"), Medina argues that the proper response to the government's violation of § 201(c)(2) is the suppression of the CW's testimony.

The Singleton I panel, in a novel decision, held that prosecutors, like defense lawyers, and indeed all citizens, are bound by § 201(c)(2). Furthermore, the panel held that a central part of the prosecutor's arsenal, the ability to move for a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 in exchange for a promise to testify, violates § 201(c)(2).3

Not surprisingly, Singleton Ihas been the subject of a firestorm of controversy, challenging as it does the longstanding and deeply ingrained prosecutorial practice of exchanging leniency for testimony. While that practice is unquestionably important, Singleton I raised even more profound questions: To what extent are government lawyers obliged to follow the same rules as defense lawyers?4 If 18 U.S.C. § 201(c)(2) represents Congress' abiding concern that giving witnesses benefits "for or because of their testimony" runs the risk of tainting their testimony, why should prosecutors be excluded?5 More broadly, have prosecutors, by depending so heavily on immunized testimony and cooperation-for-leniency deals, de facto converted ours from an accusatorial system, in which the government bears the burden of proving the guilt of a defendant beyond a reasonable doubt, into an inquisitorial system, in which the government obtains confessions by threatening to use at trial the testimony of those with whom it has struck deals?6

The response to Singleton I of the overwhelming number of courts around the country has been negative. Just over six

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months after handing down Singleton I, the Tenth Circuit, sitting en banc, reversed the decision in Singleton II. Moreover, with the exception of two district courts,7 Singleton I has been rejected by every court in which the issue has been raised.8

In this Circuit, issues concerning the application of § 201(c)(2) to the behavior of prosecutors are issues of first impression.9 Indeed, these questions are especially significant in the case before me.10 Unlike the other cases in which claims under § 201(c)(2) have been raised, this case is not only about immunity, the promise of non-prosecution and a motion for leniency, but also about cash payments to the CW totaling over $105,000. In addition, notwithstanding the payments, the CW was permitted to live in subsidized housing and receive benefits for her children. Finally, although a deportable alien,11 she received immigration assistance for herself, as well as members of her family, not to mention professional assistance in dealing with her outstanding tax liability.

I find that deals for immunity, leniency, and non-prosecution in exchange for testimony are exempt from coverage under § 201(c)(2). But the fact that there are some exceptions to § 201(c)(2)'s general prohibition does not mean that prosecutors are not covered at all, as some of the courts rejecting Singleton I have suggested.12

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In this regard, I agree with the concurrence in Singleton II which held that prosecutors generally fit within § 201(c)(2)'s prohibitions. To the extent that prosecutors operate outside of the various statutes which "limit the `something of value' that the government may offer, and detail the roles of both the prosecution and the courts in determining sentences, providing immunity, and granting other forms of assistance," 165 F.3d 1297, 1306 (Lucero, J., concurring), their behavior could be at risk for § 201(c)(2) prosecution. Indeed, presuming that prosecutors are covered by § 201(c)(2) is essential to respecting Justice Brandeis' admonition: "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen." Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).

In contrast, the majority in Singleton II suggested that prosecutors are not covered by § 201(c)(2) at all when they function like the sovereign — offering promises of non-prosecution, or a motion for leniency under 18 U.S.C. § 3553(e), but are covered if they "step beyond the limits of [their office] to make an offer to a witness other than one traditionally exercised by the sovereign," 165 F.3d 1297, 1302. This functional test, as the Singleton II concurrence noted, "creates a conceptually messy legal regime for handling the case of the errant United States Attorney `who offers something other than a concession normally granted by the government.'" Id. at 1307.

Indeed the facts of this case suggest that what is sovereign-like and what is not may be difficult to determine. For example, the CW got immigration assistance, tax preparation assistance, and subsidized housing (even when the government knew she had received over $105,000 in cash payments over a period of over six years.), benefits which, depending upon the circumstances, could be sovereign-like.

As a general matter, therefore, I hold that prosecutors may not give "anything of value" to a witness, "for or because of" that witness' testimony. When a prosecutor (or his or her agents) pays a witness cash, then looks the other way when the witness lives in subsidized housing, gives immigration assistance, provides an accountant for him or her, etc., the prosecutor's conduct presumptively fits under § 201(c)(2). As to these "things of value," the prosecutor stands precisely in the same shoes as a defense lawyer. The only question is a factual one: Were the benefits conferred "for or because of" testimony, or for some distinct and lawful reason?

An evidentiary hearing was held on this issue over two days. Counsel were given an opportunity to call witnesses and cross-examine their opponents' witnesses. Information concerning the arrangements that had been made with the CW was disclosed. No objections were raised either with respect to the information that the government had provided, or access to potential government witnesses. While a number of questions were raised, in the final analysis, defense counsel did little to challenge the government's justifications for the payments.

Based on the limited record before me, I find that the government's conduct did not violate § 201(c)(2). Medina's motion (# 44) is therefore DENIED.

I. FACTUAL BACKGROUND

A. The CW's Role in the Arrest of Medina

The CW has been central to the investigation of Medina and, based on the government's

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representations, will be central to the trial.13 The government anticipates that the evidence at trial will establish the CW received approximately 125 grams of cocaine from Medina on October 1, 1997, and October 9, 1997. Both deals, the government claims, had previously been negotiated by the CW with Nicander Serna, one of Medina's co-defendants. Moreover, the telephone calls leading up to the distributions, as well as the actual meetings where the distributions took place, were consensually recorded by the CW.

The government also claims that Alberto Tapias ("Tapias") and Alex Posada ("Posada"), the other two co-defendants in the case against Medina, had made arrangements to sell six kilograms of cocaine to the CW, which was allegedly distributed with Medina's help on January 7, 1998. On the day of the distribution, the CW entered a restaurant, met with Tapias and Posada, and observed Posada carry a cardboard box out and place it in Tapias' car. After Posada reentered the restaurant, the CW, Posada, and Tapias exited the restaurant and went to Tapias' car. The CW saw the box inside and confirmed that it seemed to contain about six kilograms of cocaine. Tapias and Posada then followed the CW out of the parking lot to another location where the money for the cocaine was supposed to be located. En route, Tapias and Posada were arrested and the cocaine was recovered from Tapias' car. Posada then agreed to cooperate with the Drug Enforcement Administration ("DEA") agents, and advised them that Medina had delivered the cocaine to the restaurant earlier that day. A short while later Medina was arrested.

Edward Mastrocola ("Mastrocola"), an agent for the DEA, directed the CW throughout the investigation of Medina and his co-defendants. According to Mastrocola, the CW made between 50 and 60 recordings of meetings with the targets of this investigation.14 These meetings were often arranged on short notice. Each meeting was preceded by a meeting with Mastrocola, to discuss where, when, and with whom to meet, with what aim. On those days, the CW would typically spend from several hours to the whole day and into the night working on the case. There would typically be a follow-up meeting with Mastrocola, to discuss what transpired at the meeting with the targets and to write a report. In addition, Mastrocola and the CW had independent meetings and telephone conversations to discuss the...

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3 practice notes
  • USA v. Jackson, Nos. 98-6487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 2 Junio 2000
    ...whether outright payment for testimony by the government may be considered a violation of the statute. But see United States v. Medina, 41 F.Supp.2d 38, 51-52 (D. Mass. 1999) (holding there is no tradition of payment of a witness for testimony, and the payment of witnesses could be a violat......
  • U.S. v. Hunte, No. 97-1987
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 22 Marzo 1999
    ...in which a witness has received money from the government, arguably in exchange for testimony. See, e.g., United States v. Medina, 41 F. Supp. 2d 38 (D. Mass. 1999). We have no occasion here to consider the applicability, if any, of section 201(c)(2) in such a case....
  • U.S.A. v. Murphy, No. 98-2035
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Agosto 1999
    ...v. Singleton (Singleton II), 165 F.3d 1297, 1303-08 (10th Cir. 1999) (en banc) (Luccro, J. concurring), and United States v. Medina, 41 F. Supp.2d 38, 42 (D. Mass. After Murphy filed his brief in this court, another panel decided United States v. Lara, 181 F.3d 183, 197 (1st Cir. 1999), who......
3 cases
  • USA v. Jackson, Nos. 98-6487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 2 Junio 2000
    ...whether outright payment for testimony by the government may be considered a violation of the statute. But see United States v. Medina, 41 F.Supp.2d 38, 51-52 (D. Mass. 1999) (holding there is no tradition of payment of a witness for testimony, and the payment of witnesses could be a violat......
  • U.S. v. Hunte, No. 97-1987
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 22 Marzo 1999
    ...in which a witness has received money from the government, arguably in exchange for testimony. See, e.g., United States v. Medina, 41 F. Supp. 2d 38 (D. Mass. 1999). We have no occasion here to consider the applicability, if any, of section 201(c)(2) in such a case....
  • U.S.A. v. Murphy, No. 98-2035
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Agosto 1999
    ...v. Singleton (Singleton II), 165 F.3d 1297, 1303-08 (10th Cir. 1999) (en banc) (Luccro, J. concurring), and United States v. Medina, 41 F. Supp.2d 38, 42 (D. Mass. After Murphy filed his brief in this court, another panel decided United States v. Lara, 181 F.3d 183, 197 (1st Cir. 1999), who......

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