United States v. Haese ( 1999 )

Revised January 7, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
_____________________________________
No. 97-10307
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JACK HUTCHINS HAESE,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_____________________________________
December 7, 1998
Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
The appellant brings forth this appeal raising four issues: (1) whether he was denied effective
assistance of counsel; (2) whether the district court erred in granting the government’s Motion In
Limine; (3) whether Haese was entitled to an evidentiary hearing based on his allegations of
prosecutorial misconduct; and (4) whether the district court plainly erred in admitting testimony of
the government’s key witness in violation of 18 U.S.C. § 201(c)(2) because that testimony was
obtained in exchange for a favorable plea agreement.
I. Factual and Procedural Background
Appellant, Jack Hutchins Haese (“Haese”), was Senior Vice President and Chief Lending
Officer of Majestic Savings Association (“Majestic”), a federally insured financial institution, located
in McKinney, Texas. Haese was responsible for analyzing problem loans, including those in default,
and recommending workout transactions. Glen Hickman (“Hickman”), Majestic’s president, and Joe
Collins (“Collins”), the Majority owner of Majestic, consistently approved Haese’s recommendations
on problem loans. Haese, Hickman, and Collins were members of Majestic’s commercial loan
committee.
Mukesh Assomull (“Assomull”) was employed by Craig Properties, a real estate brokerage
investment company jointly owned by Assomull, David Craig and James Craig. Assomull was in
charge of raising money for syndication and brokerage loans. Haese had earlier arranged a loan from
Majestic for Assomull that involved property in Sherman, Texas. In exchange for receiving the loan,
Assomull used $1 million of the loan proceeds to purchase property that was accounted for as real
estate owned on Majestic’s books.
Assomull represented Paul Yarbrough, Jr. (“Yarbrough”), Terry Rine (“Rine”) and William
Malish (“Malish”), the holders of a promissory note that was secured by 105 acres of land in
Arlington, Texas. The maker of the note was Arlington 157 Tenancy in Common (“Arlington 157").
Arlington 157 had purchased the property encumbered by the note in 1985 for $8.5 million. As of
August 1987, Arlington 157 owed $5,725,000 on the note, but Yarbrough, Rine and Malish were
willing to sell it at a discounted price of $3.8 million.
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Graconco, Inc. (“Graconco”), a Texas corporation owned and controlled by Burl and Joe
Gray, owned the Old Towne Plaza Shopping Center (“Old Towne”), a project financed by Majestic.
During the summer of 1987, Graconco was in default on its debt obligation to Majestic on the Old
Towne property.
In a memorandum to Haese dated August 26, 1987, Assomull outlined the benefits to
Majestic of financing the sale of the Arlington 157 note. As Assomull explained, the note could be
financed for $5.4 million, but purchased for $3.8 million, leaving $1.6 million in excess equity. He
suggested to Haese that the excess funds could be used for Old Towne, or any other situation Haese
might think would work. Assomull was aware that Haese was looking at similar proposals at this
time, and that Haese had to be paid a bribe if he wanted Majestic to finance the sale of the note. In
addition, Haese and Assomull discussed that the bribe would be paid by increasing the brokerage
commission due Craig Properties from $100,000 to $200,000 and remitting half of it to Haese. The
money in question was paid into a corporation called Olympic Systems, which was wholly owned by
Haese and his wife.
On September 17, 1987, Haese sent a letter to Yarbrough, Rine and Malish, copied to
Assomull, which stated t hat Majestic intended to finance the purchase of the Arlington 157 note.
Haese, Hickman and Collins, on behalf of the commercial loan committee, approved the issuance of
a $5.7 million loan to Graconco on September 26, 1987. The loan approval sheet provided that the
discounted proceeds would be applied to the outstanding principal balance of Graconco’s loan for
Old Towne. On October 14-15, 1987, the loan to Graconco in the amount of $5.7 million was closed
at Majestic’s offices. At closing, Craig Properties received a commission check in the amount of
$200,000 and it was deposited into its account at Texas American Bank in McKinney, Texas.
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Raymond Kane (“Kane”) was General Counsel at Majestic during most of 1987 and
represented the association in various legal matters. In April 1987, Kane and Haese formed Triad
Capital Group (“Triad”) for the purpose of purchasing saving and loan associations. At the closing
of the sale of the Arlington 157 note, James Craig and Haese met with Kane and tendered him a
check for $100,000 from Craig Properties, payable to Triad. When Haese failed to provide Kane
with a satisfactory explanation as to the origins of the $100,000, Kane decided to tear up the check.
The next day, Haese explained to Kane that the money originated from a debt Assomull owed to
Haese and that Assomull made out the check payable to Triad. Kane replied that any money Haese
was owed by Assomull should not be paid to Triad, since there was no debt owed to the corporation
and it looked “like a bribe.” Kane advised Haese on several additional occasions that it would be
improper to accept any payment from Assomull because it looked like a bribe.
A few days after the closing, Haese suggested that Assomull temporarily deposit his $100,000
payment in another account in order to disguise the source of the payment. On October 19, 1987,
Assomull transferred the funds from Craig Properties into the account of Shalimar Properties, Inc.,
an inactive corporation owed by Assomull and the Craigs which held an account at Texas American
Bank. Thereafter, Haese instructed Assomull to wire $100,000 from the Shalimar account to Union
Bank (“Union”) in San Antonio to the attention of Grant Hollingsworth (“Hollingsworth”), the
President of Union, and to purchase a $100,000 certificate of deposit in Shalimar’s name with the
money.
On November 2, 1987, Haese sent a letter to Hollingsworth and requested that Union issue
a $100,000 loan to Olympic Systems secured by Shalimar Properties’ certificate of deposit. On
November 3, 1987, Haese signed a promissory note and security agreement for a $100,000 loan to
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Olympic Systems from Union. James Craig pledged the Shalimar certificate of deposit as security
for the loan.
On November 10, 1987, $95,000 of the proceeds of the loan were transferred to a checking
account opened at Union in Olympic’s name. The remaining $5,000 was wire transferred into the
account of Jack and Wilma Haese at Murray Savings Association in Dallas, Texas. On December 29,
1987, the Shalimar Properties certificate of deposit was cashed and the proceeds used to repay the
loan to Olympic.
On diverse dates between November, 1987 and September, 1988, checks t otaling almost
$70,000 made payable to either Haese or his wife were written on Olympic Systems account at
Union and deposited into their personal accounts.
In order to prove its facts, the government relied upon two witnesses: Assomull, who testified
pursuant to a plea agreement requiring his cooperation; and Kane, the former counsel for Majestic,
who testified under a grant of immunity.
On January 23, 1992, after a jury trial in the United States District Court for the Northern
District of Texas, Haese was convicted on one count of conspiracy to commit bank bribery, to
unlawfully participate in a bank transaction, and commit money laundering in violation of 18 U.S.C.
§ 371; one count of bank bribery in violation of 18 U.S.C. § 215; one count of unlawful participation
in a bank transaction in violation of 18 U.S.C. § 1006; and one count of money laundering in violation
of 18 U.S.C. § 1956 (a)(1)(B)(I). On November 6, 1992, the district court sentenced Haese to a term
of 33 months imprisonment, plus a term of supervised release of three years. Haese’s trial counsel
failed to perfect an appeal.
On April 22, 1995, Haese filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255,
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in which he alleged that (1) his counsel provided inadequate representation at trial and failed to file
an appeal; and (2) the go vernment engaged in prosecutorial misconduct by knowingly presenting
perjured testimony and interfering with Haese’s right to compulsory process. The magistrate judge,
to whom Haese’s motion was referred, set the motion down for evidentiary hearing on Haese’s
ineffective assistance of counsel claims.
On November 25, 1996, the magistrate judge found that Haese’s failure to perfect an appeal
was due to ineffective assistance of counsel and that he should be allowed an out-of-time appeal.
Having found that Haese was entitled to relief on his claim of ineffective assistance of counsel for
failure to file an appeal, the magistrate judge declined to reach Haese’s claims of ineffective assistance
of counsel relating to the trial itself. The magistrate judge held that the other claims raised in the
motion may be presented on direct appeal. On March 19, 1997 the district court adopted the
magistrate judge’s findings in toto. This appeal followed.
II. Discussion
Ineffective assistance of counsel
This Circuit generally does not allow claims for ineffective assistance of counsel to be resolved
on direct appeal when those claims have not been presented before the district court, since no
opportunity existed to develop the record. United States v. Brewster, 137 F.3d 853, 859 (5th Cir.),
cert. denied, 119 S. Ct. 247 (1998). Furthermore, we do not typically review these claims on direct
appeal because the record is rarely sufficiently developed on the issue of attorney competence.
United States v. Martinez, 143 F.3d 914, 917 (5th Cir. 1998), petition for cert. filed, (U.S. Sept. 8,
6
1998) (No. 98-6016). Thus, the record must allow us to evaluate fairly the merit s of the claim.
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
This Court concludes that we are competent to determine the validity of Haese’s claims,
because the district court conducted an evidentiary hearing on these claims. Therefore, we deny his
request that this case be remanded to the district court for rulings on his claims of ineffective
assistance of counsel and unrelated trial error. Haese encourages this Court to adopt the Ni nth
Circuit’s approach in resolving the issues before us. In Robbins v. Smith 125 F.3d 831 (9th Cir.
1997), the Ninth Circuit held that it was an error for a district court to grant habeas corpus relief
under 28 U.S.C. § 2254 in the form of an out-of-time direct appeal without also ruling on the
petitioner’s claims of constitutional error at his trial. The court stated that if the district court ruled
in petitioner’s favor on the claims of trial error, the need for a direct appeal would be obviated.
However, this Court declines to adopt the Ninth Circuit’s approach and reasoning.
To demonstrate a valid claim for ineffective assistance of counsel, thereby justifying the
reversal of his conviction, Haese must satisfy both prongs of the Strickland test. First, Haese must
show that his counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687
(1984). “This requires showing that the counsel made errors so serious that counsel was not
functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Second, the
defendant must show the deficient performance prejudiced the defense.” Id.
In addressing the first prong of the Strickland test, whether counsel’s assistance was deficient,
we must determine whether the attorney’s assistance was reasonable in light of all the circumstances.
Id. Because of the inherent difficulties in making this evaluation, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional assistance;
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that is, the defendant must overcome the presumption that under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)).
If Haese can show that his counsel’s assistance was deficient, he must then prove the second
prong of the Strickland test. To prove that the ineffect ive assistance of counsel prejudiced his
defense, Haese “must show that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Pratt v. Cain, 142
F.3d 226, 232 (5th Cir. 1998) (quoting Strickland, 466 U.S. at 694). A “reasonable probability” is
a probability to undermine confidence in the outcome of the proceeding. Id. Thus, the second prong
focuses on whet her counsel's deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Haese argues that his counsel provided ineffective assistance by failing to present an enormous
amount of testimonial and documentary evidence that would have impeached the government’s key
witnesses and supported his theory of defense. The government, however, asserts that this evidence
fails to support the ineffective assistance of counsel claims. After hearing oral argument and reviewing
the parties’ briefs and the record, this Court finds that the government’s contention is correct. We
therefore hold that Haese has failed to sufficiently prove both prongs of the Strickland test.
Motion In Limine
This Circuit reviews a district court’s exclusion of evidence for an abuse of discretion.
Guillory v. Domtar Industries Inc., 95 F.3d 1320, 1329 (5th Cir. 1996). Furthermore, if this Court
finds an abuse of discretion in the admission or exclusion of evidence, we review the error under the
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harmless error doctrine. United States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996). Finally, we must
affirm evidentiary rulings unless they affect a substantial right of the complaining party. Id.
The government filed a pretrial Motion In Limine to exclude evidence that Haese had
cooperated with the Federal Home Loan Bank Board ("FHLBB”) and the FBI in connection with
financial transactions unrelated to those charged in the indictment. The district court granted the
motion. Haese maintains that the district court abused its discretion in granting the government’s
Motion In Limine. We hold that the district court did not abuse its discretion.
Haese asserts that the government failed to understand the purpose for which he offered proof
of his cooperation with government officials. Haese maintains that the evidence was not offered to
demonstrate his good character, but rather, to show his innocent state of mind and lack of criminal
intent in the very transaction at issue. Haese cont ends that this is permitted under FED. R. EVID.
404(b). The government correctly notes that this Court has previously ruled that a defendant may
not use specific acts circumstantially to prove lack of intent. United States v. Marrero, 904 F.2d 251,
260 (5th Cir.), cert. denied, 498 U.S. 1000 (1990). This tactic attempted by Haese is not only
disfavored, it is not permitted. Id.
Haese suggests that this case is similar to United States v. Lowery, 135 F.3d 957 (5th Cir.
1998). In Lowery, we reversed the defendant’s conviction because the district court granted an
overly-broad Motion In Limine and excluded relevant exculpatory evidence essential to the theory
of defense. The overly-broad motion left the defendant with his hands tied. This is clearly not the
situation in this case.
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Evidentiary hearing
A district court’s failure to conduct an evidentiary hearing is reviewed for abuse of discretion.
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). It is well established “that a
conviction obtained through false evidence, known to be such by representatives of the State, must
fall under the [due process guarantee].” The same occurs when the State, although not soliciting false
evidence, permits it to go uncorrected upon its appearance. Napue v. Illinois, 360 U.S. 264, 269
(1959). Thus, a defendant’s convictions must be reversed on due process grounds where the
government knowingly elicits, or fails to correct, materially false statements from its witnesses. See
United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989). In order to establish a
Napue violation, the defendant must show (1) the statements in question are actually false; (2) the
prosecution knew that the statements were false; and (3) the statements were material. United States
v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997), cert. denied, 188 S. Ct. 1525 (1998).
Haese first asserts that the government knowingly used perjured testimony in securing his
conviction and is therefore entitled to an evidentiary hearing. The government notes that this is
contrary to Haese’s position during the section 2255 hearing. In addition, the government maintains
that Haese is in the same position that he would have been if his counsel had filed a timely appeal and
attacked his original conviction. Thus, he would not have been entitled to an evidentiary hearing
under such circumstances and is not entitled to a hearing now.
The government contends that although Assomull and Kane testified inconsistently it does not
demonstrate that one of them lied. It correctly notes that in a similar situation such contradictions
were found to be at most, representative of a conflict in the testimony of the two witnesses. United
States v. Miranne, 688 F.2d 980, 989 (5th Cir. 1982), cert. denied, 459 U.S. 1109 (1983). In
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addition, the credibility of witnesses and weight to be given to their testimony are generally questions
within the province of the jury. United States v. Millsaps, 157 F.3d 989, 994 (5th Cir. 1998).
Moreover, the government maintains that even if one of the witnesses has perjured himself, Haese
has failed to support this claim with evidence that the government had knowledge of the perjury. This
Court agrees with the government and we find that the district court did not abuse its discretion in
denying Haese an evidentiary hearing.
Secondly, Haese argues that he is entitled to an evidentiary hearing regarding his claim that
the government intentionally issued a target letter to James Craig on the eve of trial in order to
intimidate him from testifying in Haese’s defense. Haese asserts that this violated his due process
rights. The government, however, contends that Haese is not entitled to an evidentiary hearing even
if the district court had co nsidered his claim as part of his section 2255 petition because the
government’s actions were not designed to intimidate Craig. The government states that Craig’s
name was not on a list of proposed witnesses. Therefore, the letter was sent without any knowledge
that Haese wanted to call Craig as a witness or to stop Craig from testifying for Haese.
The Sixth Amendment guarantees an accused individual the right to present his own witnesses
to establish a defense. United States v. Weddell, 800 F.2d 1404,1410 (5th Cir. 1986). We have held
that “substantial government interference with a defense witness’ free and unhampered choice to
testify violates due process rights of the defendant . . . [and that] . . . [i]f such due process violation
occurs, the court must reverse without regard to prejudice to the defendants.’” Id. (quoting United
States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980)). We conclude that Haese has not been denied
due process and an evidentiary hearing was properly refused.
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18 U.S.C. § 201(c)(2)
Ordinarily, the district court's admission of evidence is reviewed for abuse of discretion.
United States v. Rogers, 126 F.3d 655, 657 (5th Cir. 1997). Furthermore, this Circuit reviews
questions of statutory interpretation de novo. United States v. Marmolejo, 89 F.3d 1185, 1188 (5th
Cir. 1996), cert. granted in part, Salinas v. United States, 117 S. Ct. 1079 (1997), and aff’d, 118
S. Ct. 469 (1997). No objection was made in the court below, thus in the absence of a proper
objection we review for plain error. See FED R. CRIM. P. 52(b); see United States v. Manges, 110
F.3d 1162, 1176 (5th Cir. 1997), cert denied, 188 S. Ct. 1675 (1998). In order to redress errors to
which there was no objection at trial, this Court must ascertain: (1) that there was an error; (2) the
error was plain; (3) the error affects substantial rights; and (4) if not corrected, the error would
seriously affect "the fairness, integrity or public reputation of judicial proceedings." United States
v. Olano, 507 U.S. 725, 731-32 (1993).
Haese asserts that the testimony of the government’s key witness, Assomull, violated 18
U.S.C. § 201(c)(2) and should have been suppressed because he testified pursuant to a favorable plea
agreement. Haese’s contention, however, is meritless.
Section 201(c)(2) prohibits the giving, offering or promising anything of value to a witness
for or because of his testimony. Haese relies upon United States v. Singleton, 144 F.3d 1343 (10th
Cir. 1998) reh’g en banc granted, opinion vacated, (10th Cir. July 10 ,1998). In Singleton, the court
found that the prosecutor violated section 201(c)(2) and reversed the defendant’s conviction based
upon an accomplice’s testimony at trial under a cooperati on agreement. Id. at 1359-61. The
accomplice agreed to testify truthfully in return for leniency, including the possibility of a 5K1.1
motion by the government. Id. at 1344. This Circuit, however, has rejected the applicability of the
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Singleton court’s holding. United States v. Webster, 1998 U.S. App. Lexis 30718, *137-39 (5th Cir.
Dec. 3, 1998). “[T]his circuit’s precedents shows . . . that we consistently have upheld government
efforts to provide benefits to witnesses in exchange for testimony. . . .” Id. In addition, no other
jurisdiction has adopted Singleton, and even the Tenth Circuit vacated the decision pending rehearing
en banc.
This Circuit, once again, refuses to adopt Singleton’s reasoning and holding. This Court has
stated that "no practice is more ingrained in our criminal justice system than the practice of the
government calling a witness who is an accessory to the crime for which the defendant is charged and
having that witness testify under a plea bargain that promises him a reduced sentence." United States
v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987), cert. denied, 484 U.S. 1026 (1988). The
First Circuit has correctly noted that frequently the most knowledgeable witnesses available to testify
about criminal activity are other co-conspirators. United States v. Dailey, 759 F.2d 192, 196 (1st
Cir. 1985); see United States v. Reid, 1998 WL 481459, at *3 (E.D.Va. July 28, 1998). Often, there
are situations where these individuals are the only credible witnesses, and without the ability to use
their testimony the government would not be able to obtain a conviction. Id. Moreover, this
essential “right on the part of the prosecutor to make promises of leniency in exchange for testimony
is as old as the institution of the criminal trial.” Id. In addition, affording leniency to cooperating
accomplices dates back to the common law of England and has been recognized and approved by the
United States Congress, the United States Courts and the United States Sentencing Commission.
United States v. Barbaro, 1998 WL 556152, at *3 (S.D.N.Y. Sept. 1, 1998); see also United States
v. Laureano, 1998 WL 696006, at *1 (S.D.N.Y. Oct. 7, 1998).
Unlike the Singleton court, it is evident to this Court that Congress did not intend for section
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201(c)(2) to be used when prosecutors offer lenity for a wit ness’ truthful testimony. To interpret
section 201(c)(2) in any other way would apply shackles to the government in its pursuit to enforce
the law. See United States v. Hammer, 1998 WL 725211, at *17 (M.D.Pa. Oct. 9, 1998) (noting that
the Singleton opinion makes a criminal out of nearly every federal prosecutor, accomplices out of
district judges, suppresses highly relevant evidence and cripples the enforcement of federal criminal
law).
Two courts have followed Singleton’s flawed rationale. United Stated v. Fraguela, 1998 WL
560352, at *2 (E.D.La. Aug. 27,1998)(concluding that section 201(c)(2) “does and should apply to
prosecution plea bargaining”); United States v. Lowery, 15 F. Supp. 2d 1348, 1359-60 (S.D.Fla. 1998)
(finding that suppression of co-defendant’s testimony is the appropriate remedy for a violation of
section 201(c)(2) and to deter unlawful prosecutorial conduct). These courts are incorrect and this
Circuit will not follow down a path that will throw our criminal system into disarray.
Although Fraguela and Lowery were misguided by the Singleton court, numerous courts
dealing with the application of section 201(c)(2) have refused to accept its rationale.1
1
United States v. Sargent, 1998 WL 544412, at *1 (8th Cir. Aug. 25, 1998)(concluding that
there was no plain error in allowing conspirator’s trial testimony and rejecting defendant’s argument
that the district court should have found the trial testimony unreliable because it resulted from a plea
agreement); Hammer, 1998 WL 725211, at *17 (stating that “[t]he Singleton panel’s conclusion that
prosecutors commit a federal criminal offense when they engage in the common practice of offering
lenity for a witness’ truthful testimony was an extreme and radical departure from history, practice
and established law.”); Reid, 1998 WL 481459, at *3 (holding that a reading of section 201(c)(2) that
includes government attorneys would work “obvious absurdity” and that the general words of the
statute do not include the government or affect its rights); United States v. Guillaume, 13 F. Supp. 2d
1331, 1333 (E.D.Fla.1998)(finding that Congress, in enacting section 201(c)(2), clearly intended to
exclude plea agreements between a defendant and a prosecutor); United States v. Arana, 18
F. Supp. 2d 715, 718-21 (E.D.Mich. 1998)(concluding that the application of section 201(c)(2) to
federal prosecutors in their negotiation and execution of plea agreements would create an absurdity.
The government cannot be deemed to violate this section when it enters into a Rule 11 agreement
based upon the defendant’s cooperation because it is simply a request that the court take certain
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To apply section 201(c)(2) to the government in this case is “unsound, not to mention nonsensical,
especially in its creation ex nihilo of an exclusionary rule barring testimony from virtually every
cooperating federal witness.”2 Eisenhardt, 10 F. Supp. 2d at 521. Therefore, we must reject Haese’s
action); Barbaro, 1998 WL 556152, at *3 (denying defendant’s motion to suppress any testimony
to be offered by government witnesses who have been offered or promised anything of value in return
for testimony); United States v. Mejia, 1998 WL 598098, at *1 (S.D.N.Y. Sept. 8, 1998)(rejecting
the Singleton court’s rationale); United States v. Juncal, 1998 WL 525800, at *1 (S.D.N.Y. Aug.
20, 1998)(rejecting that section 201(c)(2) is violated when an accomplice agrees to testify truthfully
in return for leniency, including the possibility of a 5K1.1 motion by the government); United States
v. Szur, 1998 WL 661484, at *1 (S.D.N.Y. 1998)(denying a new trial, or in the alternative, for a
judgment of acquittal, in reliance on Singleton); United States v. Eisenhardt, 10 F. Supp. 2d 521, 521-
22 (D.Md.1998)(concluding that defendant’s guilty plea to the offense of conspiracy was not tainted
and induced by the fact that various potential witnesses against him were co-conspirators who had
been given or promised favorable treatment in exchange for their testimony); United States v. Moore,
1998 WL 778073, *4-5 (N.D.Ill. Nov. 2, 1998)(finding that Singleton’s holding and reasoning is
contrary to Seventh Circuit precedent); United States v. Duncan, 1998 WL 419503,*1 (E.D.La. July
15, 1998)(refusing to follow the Singleton decision because it is no longer the law); Nero v. United
States, 1998 WL 744031, at *1 (E.D.Pa. Oct. 23, 1998)(noting that “a promise or prospect of a §
5K1.1 motion in return for testimony which the government deems to be truthful and of substantial
assistance does not violate the bribery statute or otherwise entitle a defendant to set aside his
conviction or sentence”); United States v. Dunlap, 17 F. Supp. 2d 1183, 1187
(D.Colo.1998)(concluding that it would be inconsistent with the “congressionally authorized practice
of plea agreements that provide for leniency to defendants in exchange for cooperation to hold that
Congress intended to criminalize such agreements in 18 U.S.C. § 201(c)”); United States v.
Crumpton, 1998 WL 764804,*1-2 (D.Colo. Oct. 30, 1998)(adopting Dunlap’s rationale); United
States v. Gabourel, 9 F. Supp. 2d 1246, 1247 (D.Colo.1998)(refusing to find a violation of section
201(c)(2) where the government promised a cooperating witness that she would not be prosecuted
in connection with the case in exchange for her testimony); United States v. White, 1998 WL 758830,
at *2 (E.D.N.C. Oct. 14, 1998)(recognizing that section 201(c)(2) is inapplicable to government plea
agreements that are designed to encourage witnesses t o testify against other criminal defendants);
United States v. Nieves, 1998 WL 740835, at *1 (D.Conn. Oct. 13, 1998)(rejecting the reasoning of
Singleton and stating that section 201(c)(2) does not apply to the government because it is not
expressly included within the statute’s scope); United States v. Revis, 1998 WL 713229, *19
(N.D.Okla. Oct. 8,1998)(concluding that section 201(c)(2) did not prohibit the government’s plea
agreements where it followed specific procedures mandated by the law).
2
Judge Smalkin notes that “the chances of either the Fourth Circuit and the Supreme Court
reaching the same conclusion as the Singleton panel are, in this Court’s judgement, about the same
as discovering that the entire roster of the Baltimore Orioles consists of cleverly disguised
leprechauns.” Eisenhardt, 10 F. Supp. 2d at 521-22. This Circuit agrees with Judge Smalkin’s comical
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contention that 18 U.S.C. § 201(c)(2) is violated when testimony is obtained in exchange for a
favorable plea agreement. Thus, we hold that the district court did not err in allowing Assomull’s
testimony.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s decisions and Haese’s requests
for relief are DENIED.
illustration. We also feel that the likelihood of our knowledgeable colleagues on the Supreme Court
finding as the Singleton panel’s absurd holding is nonexistent.
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