Prosecutors, Agents and Witnesses

More specifically, Judge Carney found that the government had pressured Nancy Tullos, Broadcom's former Vice President of Human Resources, to enter a guilty plea on a questionable and time-barred charge and then coerced her into giving favorable testimony as a government witness; that it had left Broadcom's former general counsel, David Dull, “hanging in the wind” with his legal status unresolved for almost two years, making him unavailable as a defense witness; and that it had pressured Samueli to admit guilt falsely and incriminate Ruehle or, alternatively, had sought “to destroy Dr. Samueli's credibility as a witness for Mr. Ruehle.” (A transcript of Judge Carney's unpublished rulings can be found at http://lawprofessors.typepad.com/files/ruehle_dec__15.pdf.)

Appealing the Ruling

The Justice Department has since appealed Judge Carney's rulings dismissing the pending charges against Nicholas and vacating Samueli's guilty plea, so a full and final assessment of the Broadcom prosecution must await the Ninth Circuit's decision. But these recent events provide a point of departure for reviewing the law relating to contacts between prosecutors, investigating agents, and witnesses in criminal cases.

The right to present witnesses to establish a defense is a fundamental component of the concept of due process, expressly recognized in the Sixth Amendment. And because prosecutors have a responsibility not merely to win, but to ensure that the defendant has a fair and impartial trial, it is professional misconduct for a prosecutor to intimidate or improperly influence a defense witness to change his or her testimony or to refuse to testify for the defense.

At the same time, however, federal prosecutors and case agents are frequently required to extract the truth from witnesses who have strong loyalties to the targets of their investigations ' as friends, family members, co-workers, employees, or even confederates in crime. Other witnesses fear for their physical safety if they provide assistance to the government. In dealing with witnesses who have powerful incentives to lie in order to protect themselves or those close to them, or who simply seek to avoid further involvement, prosecutors and agents often need to confront witnesses forcefully and to challenge strongly their initial accounts.

Fairness to Potential Witnesses

Prosecutors also have obligations of fairness to potential witnesses not unlike those they have to the defendant. In particular, they have an ethical duty to advise unrepresented witnesses with potential criminal exposure that their testimony may be used against them, especially if the witness is already under criminal investigation.

Reflecting the balance that prosecutors must strike between these duties, the courts have held that substantial government interference with a defense witness's free and unhampered choice to testify violates due process, United States v. Crawford, 707 F.2d 447, 449-50 (10th Cir. 1983), and can result in reversal on appeal if the defense suffers prejudice as a result. United States v. Combs, 555 F.3d 60, 64 & n.3 (1st Cir. 2009). The substantial interference inquiry has been characterized as “extremely fact specific,” United States v. Vavages, 151 F.3d 1185, 1190 (9th Cir. 1998), but actions that have generated findings of misconduct fall into several main categories.

First, prosecutors cannot prohibit witnesses from speaking with defense counsel, nor can they hamper defense counsel's access to witnesses absent an exceptionally compelling justification ' most commonly, witness security. Even milder forms of discouragement, such as suggesting to a witness that a defense attorney will only use an interview to develop information to impeach him or her, may trigger judicial disapproval, if not necessarily a finding of a due-process violation. United States v. Pepe, 747 F.2d 632, 655-56 (11th Cir. 1984).

Second, in advising a prospective defense witness of his or her own potential exposure to criminal liability, either for a substantive offense or for perjury, the number, tone, and character of the prosecutor's warnings are significant. Providing “mere information” is not a problem, but coercive, “deliberate and badgering threats” amount to misconduct. United States v. Davis, 974 F.2d 182, 187 (D.C. Cir. 1992).

Eighth Circuit Ruling

The Eighth Circuit has held that it was misconduct for a prosecutor to tell a witness that testifying in a particular way would result in prosecution for perjury, as opposed to simply counseling the witness to testify truthfully. United States v. True, 179 F.3d 1087, 1090 (8th Cir. 1999). Repeating a perjury warning multiple times is also likely to result in a finding of misconduct. In United States v. Foster, 128 F.3d 949, 954 (8th Cir. 1997), the court held that a prosecutor acted improperly by giving a perjury warning to a witness during his grand jury testimony and then repeating it to his counsel a few days before trial, while in United States v. Morrison, 535 F.2d 223, 227-28 (3d Cir. 1976), three warnings to defense counsel and a fourth in person to witness ' along with using an invalid subpoena to compel the witness's appearance at the prosecutor's office ' resulted in reversal. In short, if a prosecutor believes a perjury warning is necessary, the case law suggests the warning is best given only once, and preferably through or in the presence of defense counsel. It is even better to let the judge deliver it.

Third, a due-process violation is more likely to be found when prosecutors or agents have suggested that a witness may face other legal consequences for testifying in a way the government considers unhelpful. This can include suggestions that a witness may face harsher treatment in another pending case, or threats to revive previously dropped charges or to trigger other consequences such as withdrawal of a plea agreement or revocation of parole. Vavages, 151 F.3d at 1191; United States v. Blackwell, 694 F.2d 1325, 1333-40 (D.C. Cir. 1982).

If defense counsel believes that the government has improperly intimidated or influenced the testimony of a critical witness, the defense can request an evidentiary hearing to explore the prosecutor's dealings with the witness. And although the statutory authority to seek use immunity (18 U.S.C. ' 6002) is reserved for the government, at least five circuits ' the First, Second, Third, Seventh and Ninth ' have held or suggested that in extraordinary circumstances, where the testimony of the prospective witness is critical to the defense and the right to a fair trial therefore hangs in the balance, a district court may exercise its supervisory authority either to issue an immunity order itself or to compel the government to choose between requesting an immunity order for a prospective defense witness or having its case dismissed. See, e.g., United States v. Straub, 538 F.3d 1147 (9th Cir. 2008); Blissett v. Lefevre, 924 F.2d 434, 441-42 (2d Cir. 1991).

To obtain such relief, the defense must establish by a preponderance of the evidence that the judicial fact-finding process has been intentionally distorted by government misconduct, either by threatening defense witnesses to cause them to change their testimony or by selectively granting immunity to witnesses whose testimony favors the government while withholding it from witnesses whose testimony would exculpate the defendant. Judge Carney found that the defense had made the necessary showing at the Ruehle trial and issued orders granting use immunity to both David Dull, Broadcom's former general counsel, and to Samueli, the company's co-founder. Their immunized testimony in turn prompted the court's subsequent order granting the dismissals.

Conclusion

While the ultimate outcome of the government's appeals of Judge Carney's decisions remains to be seen, the dismissal of the indictment in Ruehle demonstrates the serious consequences that can result if a judge becomes convinced that the prosecution has not dealt appropriately with potential witnesses for the defense.

Jefferson M. Gray ([email protected]), a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney and the corporate fraud coordinator in the District of Maryland. This article reflects only his individual analysis and conclusions, and does not purport to speak for the Department of Justice or any of its divisions.

Like Queen Elizabeth following her “annus horribilis” of 1992 (which witnessed the marital break-ups of her sons Charles and Andrew and a devastating fire in Windsor Castle), federal prosecutors can hope for a happier year after 2009, which brought highly publicized judicial findings of misconduct by prosecutors in a number of cases, as summarized in the Business Crimes Bulletin's February issue (“DOJ, Heal Thyself,” by Jim Walden and Georgia Winston).

Adverse Decisions

Many of the adverse decisions suffered by the Justice Department during 2009 ' including, most famously, the setting aside of Alaska Sen. Ted Stevens's (R) criminal convictions ' involved discovery violations. But the decision in December by U.S. District Court Judge Cormac Carney to dismiss with prejudice charges relating to the alleged fraudulent backdating of stock options against former Broadcom CFO William Ruehle and the company's co-founder and former CEO Henry Nicholas, III, and to set aside a guilty plea previously entered by Henry Samueli, Broadcom's other co-founder and Chief Technical Officer, turned primarily on findings that the government had intimidated and improperly influenced three witnesses whose testimony was critical to Ruehle's and Nicholas's defenses. (Ruehle's trial was nearly finished when the court issued its ruling; Nicholas's case had been severed and was awaiting trial.)

More specifically, Judge Carney found that the government had pressured Nancy Tullos, Broadcom's former Vice President of Human Resources, to enter a guilty plea on a questionable and time-barred charge and then coerced her into giving favorable testimony as a government witness; that it had left Broadcom's former general counsel, David Dull, “hanging in the wind” with his legal status unresolved for almost two years, making him unavailable as a defense witness; and that it had pressured Samueli to admit guilt falsely and incriminate Ruehle or, alternatively, had sought “to destroy Dr. Samueli's credibility as a witness for Mr. Ruehle.” (A transcript of Judge Carney's unpublished rulings can be found at http://lawprofessors.typepad.com/files/ruehle_dec__15.pdf.)

Appealing the Ruling

The Justice Department has since appealed Judge Carney's rulings dismissing the pending charges against Nicholas and vacating Samueli's guilty plea, so a full and final assessment of the Broadcom prosecution must await the Ninth Circuit's decision. But these recent events provide a point of departure for reviewing the law relating to contacts between prosecutors, investigating agents, and witnesses in criminal cases.

The right to present witnesses to establish a defense is a fundamental component of the concept of due process, expressly recognized in the Sixth Amendment. And because prosecutors have a responsibility not merely to win, but to ensure that the defendant has a fair and impartial trial, it is professional misconduct for a prosecutor to intimidate or improperly influence a defense witness to change his or her testimony or to refuse to testify for the defense.

At the same time, however, federal prosecutors and case agents are frequently required to extract the truth from witnesses who have strong loyalties to the targets of their investigations ' as friends, family members, co-workers, employees, or even confederates in crime. Other witnesses fear for their physical safety if they provide assistance to the government. In dealing with witnesses who have powerful incentives to lie in order to protect themselves or those close to them, or who simply seek to avoid further involvement, prosecutors and agents often need to confront witnesses forcefully and to challenge strongly their initial accounts.

Fairness to Potential Witnesses

Prosecutors also have obligations of fairness to potential witnesses not unlike those they have to the defendant. In particular, they have an ethical duty to advise unrepresented witnesses with potential criminal exposure that their testimony may be used against them, especially if the witness is already under criminal investigation.

Reflecting the balance that prosecutors must strike between these duties, the courts have held that substantial government interference with a defense witness's free and unhampered choice to testify violates due process, United States v. Crawford , 707 F.2d 447, 449-50 (10th Cir. 1983), and can result in reversal on appeal if the defense suffers prejudice as a result. United States v. Combs , 555 F.3d 60, 64 & n.3 (1st Cir. 2009). The substantial interference inquiry has been characterized as “extremely fact specific,” United States v. Vavages , 151 F.3d 1185, 1190 (9th Cir. 1998), but actions that have generated findings of misconduct fall into several main categories.

First, prosecutors cannot prohibit witnesses from speaking with defense counsel, nor can they hamper defense counsel's access to witnesses absent an exceptionally compelling justification ' most commonly, witness security. Even milder forms of discouragement, such as suggesting to a witness that a defense attorney will only use an interview to develop information to impeach him or her, may trigger judicial disapproval, if not necessarily a finding of a due-process violation. United States v. Pepe , 747 F.2d 632, 655-56 (11th Cir. 1984).

Second, in advising a prospective defense witness of his or her own potential exposure to criminal liability, either for a substantive offense or for perjury, the number, tone, and character of the prosecutor's warnings are significant. Providing “mere information” is not a problem, but coercive, “deliberate and badgering threats” amount to misconduct. United States v. Davis , 974 F.2d 182, 187 (D.C. Cir. 1992).

Eighth Circuit Ruling

The Eighth Circuit has held that it was misconduct for a prosecutor to tell a witness that testifying in a particular way would result in prosecution for perjury, as opposed to simply counseling the witness to testify truthfully. United States v. True , 179 F.3d 1087, 1090 (8th Cir. 1999). Repeating a perjury warning multiple times is also likely to result in a finding of misconduct. In United States v. Foster , 128 F.3d 949, 954 (8th Cir. 1997), the court held that a prosecutor acted improperly by giving a perjury warning to a witness during his grand jury testimony and then repeating it to his counsel a few days before trial, while in United States v. Morrison , 535 F.2d 223, 227-28 (3d Cir. 1976), three warnings to defense counsel and a fourth in person to witness ' along with using an invalid subpoena to compel the witness's appearance at the prosecutor's office ' resulted in reversal. In short, if a prosecutor believes a perjury warning is necessary, the case law suggests the warning is best given only once, and preferably through or in the presence of defense counsel. It is even better to let the judge deliver it.

Third, a due-process violation is more likely to be found when prosecutors or agents have suggested that a witness may face other legal consequences for testifying in a way the government considers unhelpful. This can include suggestions that a witness may face harsher treatment in another pending case, or threats to revive previously dropped charges or to trigger other consequences such as withdrawal of a plea agreement or revocation of parole. Vavages, 151 F.3d at 1191; United States v. Blackwell , 694 F.2d 1325, 1333-40 (D.C. Cir. 1982).

If defense counsel believes that the government has improperly intimidated or influenced the testimony of a critical witness, the defense can request an evidentiary hearing to explore the prosecutor's dealings with the witness. And although the statutory authority to seek use immunity (18 U.S.C. ' 6002) is reserved for the government, at least five circuits ' the First, Second, Third, Seventh and Ninth ' have held or suggested that in extraordinary circumstances, where the testimony of the prospective witness is critical to the defense and the right to a fair trial therefore hangs in the balance, a district court may exercise its supervisory authority either to issue an immunity order itself or to compel the government to choose between requesting an immunity order for a prospective defense witness or having its case dismissed. See, e.g. , United States v. Straub , 538 F.3d 1147 (9th Cir. 2008); Blissett v. Lefevre , 924 F.2d 434, 441-42 (2d Cir. 1991).

To obtain such relief, the defense must establish by a preponderance of the evidence that the judicial fact-finding process has been intentionally distorted by government misconduct, either by threatening defense witnesses to cause them to change their testimony or by selectively granting immunity to witnesses whose testimony favors the government while withholding it from witnesses whose testimony would exculpate the defendant. Judge Carney found that the defense had made the necessary showing at the Ruehle trial and issued orders granting use immunity to both David Dull, Broadcom's former general counsel, and to Samueli, the company's co-founder. Their immunized testimony in turn prompted the court's subsequent order granting the dismissals.

Conclusion

While the ultimate outcome of the government's appeals of Judge Carney's decisions remains to be seen, the dismissal of the indictment in Ruehle demonstrates the serious consequences that can result if a judge becomes convinced that the prosecution has not dealt appropriately with potential witnesses for the defense.

Jefferson M. Gray ([email protected]), a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney and the corporate fraud coordinator in the District of Maryland. This article reflects only his individual analysis and conclusions, and does not purport to speak for the Department of Justice or any of its divisions.