United States v. Dailey, Crim. No. 83-308-T.

• Citation: 589 F. Supp. 561
• Decision Date: 22 June 1984
• Docket Number: Crim. No. 83-308-T.
• Parties: UNITED STATES of America v. Kevin R. DAILEY.
• Court: U.S. District Court — District of Massachusetts

589 F. Supp. 561

UNITED STATES of America v. Kevin R. DAILEY.

Crim. No. 83-308-T.

United States District Court, D. Massachusetts.

June 22, 1984.

Janis M. Berry, Sp. Atty., U.S. Dept. of Justice, Martin D. Boudreau, Asst. U.S. Atty., Chief, Criminal Narcotics Task Force, Boston, Mass., for the U.S.

Martin G. Weinberg, Oteri, Weinberg & Lawson, Boston, Mass., Gerald B. Lefcourt, New York City, for defendant Kevin R. Dailey.

OPINION

TAURO, District Judge.

Defendant Kevin Dailey, charged with eight counts of drug related offenses, seeks to suppress the testimony of three prosecution witnesses. Dailey contends that the government entered into plea agreements with the challenged witnesses containing provisions for alternative sentencing recommendations that were contingent upon the government's evaluation of the content and result of the witnesses' testimony.¹ Dailey argues that such agreements are an invitation to perjury and are, therefore, incompatible with the due process protections guaranteed by the United States Constitution.

In opposition, the government argues that the plea agreements require only that the witnesses testify truthfully. Any possible benefit to the witnesses under the agreements, according to the government, is not contingent upon the degree to which their testimony proves helpful to the underlying prosecution.

On June 12, after a hearing, the court ordered the testimony excluded. This opinion explains the reasons for that decision.

I THE FACTS

On November 25, 1984, the grand jury returned a nine count indictment charging Kevin Dailey and fifteen others with violations arising out of their alleged involvement in conspiracies to import, and to possess with intent to distribute, large quantities of marijuana. Dailey was named as a defendant in eight of the nine counts.

Prior to the return of the indictment, the government had entered an agreement with Tommy Tindall (Exhibit A) under which he agreed to submit to a "complete debriefing" concerning his knowledge of the illegal drug trade. Tindall agreed to testify at any trial or grand jury proceeding in which his testimony was needed. In exchange, the government agreed to support a four month stay in the execution of a thirty-six month jail sentence that had been imposed on Tindall. Additionally, the agreement provided: "The Government does not now agree to any further extension beyond this 4-month period, but will consider such an extension based on an evaluation of the information provided by Tommy Tindall." (Emphasis added.) The agreement went on to provide:

The Government does not make any commitment with respect to any motion for reduction of sentence that might be filed by Tommy Tindall, and expressly reserves the right to oppose, make no recommendations or support such a motion, depending on the benefit inuring to the Government as a result of information provided by Tommy Tindall.

(Emphasis added.)

Following the return of the indictment in this case, the government entered into plea agreements with two other witnesses: Robert L. Frappier and Timothy Minnig (Exhibit B).² Under these agreements, which were entered pursuant to Rule 11(e)(1)(A) and (C) of the Federal Rules of Criminal Procedure, the witnesses agreed to plead guilty to certain counts of indictments issued in Maine and Oregon.

Paragraph 2 of the agreements defined the witnesses' obligations. Under paragraph 2(c) the witnesses agreed to give "complete and honest testimony at any and all proceedings" with respect to their own criminal activity and the criminal activity of others. The agreements provided for a deferment of sentencing on the Maine indictment "to allow the terms of this Agreement to be carried out."

Paragraph 5 of the agreement defined the government's obligations. That paragraph provided, in pertinent part:

The Defendant agrees to fully cooperate, as defined in Paragraph 2. If, at the time of sentencing on the Maine indictment, the defendant has fully cooperated with the United States, as defined in Paragraph 2, the Government will recommend a specific term of imprisonment which does not exceed twenty (20 years and, depending principally upon the value to the Government of the defendant's cooperation, the Government, in its sole discretion, may recommend a sentence of ten (10) years .... If at the time of sentencing on the Maine indictment, the Government presents evidence and the Court finds by a preponderance of the evidence that the defendant has not fully cooperated, as defined in Paragraph 2, then the Court shall sentence the defendant to a term of imprisonment of thirty-five (35) years.

(Emphasis added).

II THE LAW

Defendant does not challenge the constitutionality of an agreement by which the government agrees to grant favors to a prosecution witness in return for truthful testimony about others. Cf. United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983) ("We cannot say that there is no force to the argument that a plea bargain conditioned upon an agreement to testify against a former confederate may create such an incentive to commit perjury as to violate public policy."); United States v. Librach, 536 F.2d 1228, 1229-30 (8th Cir. 1976), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976). Rather, what is at issue is the validity of an agreement for a sentencing recommendation that is in any way contingent on the success of the government's prosecutorial effort.

Defendant's motion presents an issue of first impression in this circuit. The only other court that has considered a similar due process challenge to contingent plea agreements is the Eighth Circuit in the recent case, United States v. Waterman, 732 F.2d 1527 (1984). Although not binding on this court, Waterman presents persuasive authority in support of defendant's position.

In Waterman a witness, Gamst, entered an agreement with the United States Attorney to cooperate in a grand jury investigation of certain individuals. Under the Waterman agreement, if charges were brought against these individuals, the United States Attorney agreed to "affirmatively recommend" to the court that Gamst's sentence be reduced by a maximum of two years. If charges were not brought, the United States Attorney agreed that he would acknowledge and inform the court of Gamst's cooperation with the government, but would not specifically recommend a reduced sentence. See id. at 1529.

Waterman moved to vacate his sentence under 28 U.S.C. § 2255 (1971), on the ground that the agreement with Gamst violated due process.³ The district court denied the motion. The Eighth Circuit reversed, finding:

The government's agreement with its key witness hampered the truth-finding function of the jury to a degree which cannot be reconciled with the fair procedures guaranteed by the due process clause of the fifth amendment.

Id. at 1528.

The Waterman court saw no distinction between testimony offered before a grand jury and at a trial.

Although the agreement in this case was contingent upon the government bringing charges against others, rather than upon successful convictions, we believe that the circumstances surrounding the agreement cast a shadow over both Gamst's pretrial cooperation with the government and his testimony at Waterman's trial.

Id. at 1531. Given a tainted plea agreement, the Eighth Circuit ruled that:

the government cannot consistent with due process offer favorable treatment to a prosecution witness contingent upon the success of the prosecution. Such an agreement is nothing more than an invitation to perjury having no place in our constitutional system of justice.

Id. at 1531.

III THE FRAPPIER AGREEMENT

The government argues that Waterman should not control here because, under paragraph 5 of the Frappier Agreement, a sentencing recommendation is conditioned only on the witnesses' obligation to "fully cooperate," as that term is defined in paragraph 2. The government's position presents a tortured interpretation of the agreement's plain language. If the witnesses' "full cooperation" were the only condition to the government's recommendation, then the Frappier Agreement's language providing for a recommendation of ten rather than twenty years, "depending principally upon the value to the Government of the defendant's cooperation," would be superfluous. The Frappier Agreement lends itself to far more realistic interpretation.

The challenged agreement gives the government three distinct recommendation options, each having a different triggering point. The government's first option is to make a recommendation of twenty years if the witnesses have "fully cooperated ... as defined in Paragraph 2." The government's second option is to make a recommendation of ten years "depending principally upon the value to the Government of the witnesses' cooperation." Third, the government may make a recommendation of thirty-five years if the witnesses have not fully cooperated.

If, as the government contends, the agreements were contingent only on the witnesses' full cooperation, then there would be no reason for any provision other than the two alternative recommendations of twenty years for cooperation and thirty-five years for non-cooperation. The Frappier agreement, however, provides a third recommendation option of ten years, rather than the twenty year recommendation the witnesses would receive if they fully cooperated. To receive this ten year bonus, the witnesses must clearly do more than merely cooperate. Indeed, to earn a recommendation of ten rather than twenty years, the witnesses' cooperation must be deemed to have been of "value" to the government. We cannot tolerate the imposition of that type of subjective pressure on witnesses, whose only interest is supposed to be in telling the truth.

This court concludes that the Frappier Agreement violated defendant's due process rights in that it provided significant potential benefit to government witnesses, contingent on...