Sixth Circuit notes the role of the details in a plea agreement to allow the jury to assess the credibility of a cooperating defendant at trial, in United States v. Thorton, _ F.3d _ (6th Cir. Feb. 10, 2010) (No. 08-3349)
While a plea agreement may not be considered as substantive evidence of another defendant’s guilt, what is the primary function of the plea agreement of a cooperating witness? This issue was recently noted by the Sixth Circuit.
Defendant Thornton was prosecuted for drug trafficking and firearm charges. At trial, under the cooperation terms of a plea agreement, co-defendant Martin testified about how they purchased multiple kilograms of cocaine, divided it, and resold their portions. The prosecutor asked the cooperator “about the charge to which he pled guilty, the statutory penalties and sentencing guideline range he confronted, the reason for his agreement to testify at trial, and the charges which the Government had agreed to dismiss as a result of his cooperation.” Thorton, _ F.3d at _. No objection was made when the prosecutor published portion of the plea agreement to the jury. The actual plea agreement was not admitted into evidence. After the defendant’s conviction, for the first time on appeal he challenged the admission of co-defendant Martin’s testimony. Specifically, he contended the jury might have used the details in Martin’s plea agreement, which also contained “an admission of guilt already “accepted by the District Court” — as direct evidence of Thornton’s own guilt” and in hearing about the sentence Martin was facing, the jury may have been confused about the possible sentence of defendant Thornton.
The Sixth Circuit considered the issue for plain error since no trial objection had been lodged and found none. The circuit noted the role of the plea agreement to assess the credibility of the witness. The plea agreement could not be considered “as evidence of a witness’ credibility.” Thorton, _ F.3d at _ (quoting United States v. Christian, 786 F.2d 203, 214 (6th Cir. 1986) (other citation omitted)). The prosecutor could present the issue of the plea agreement to mitigate any sting raised by the defense during cross-examination. Thorton, _ F.3d at _ (“The prosecutor may also wish to place the plea before the jury so as to blunt defense efforts at impeachment and dispel the suggestion that the government or its witness has something to hide. Or, and we engage in no delusions about prosecutorial altruism, the prosecution may simply want the jury to recognize who the witness is, take the testimony as it is, and give a fair evaluation, blemishes and all.”) (quoting Christian, 786 F.2d at 214 (other citation omitted)). In the Sixth Circuit, the prosecutor may introduce a plea agreement to allow the jury “to consider fully the possible conflicting motivations underlying the witness’ testimony.” United States v. Tocco, 200 F.3d 401, 416 (6th Cir. 2000) (quoting United States v. Townsend, 796 F.2d 158, 163 (6th Cir. 1986)). The circuit also noted that the potential prejudice in a conspiracy guilty plea may be mitigated when the cooperating co-defendant testifies about the underlying facts of the charge.
The circuit noted the use of the plea agreement in the case was appropriate for evaluating the credibility of the cooperating witness. The circuit stated:
“As to the risk of potential confusion about the sentence Thornton was facing, some discussion of a codefendant’s potential sentence is inevitable if the Government is allowed to explore a codefendant’s motivation for testifying. Furthermore, in this case, defense counsel also inquired into Martin’s potential sentence, so Thornton cannot legitimately claim this information prejudiced him.”
Thorton, _ F.3d at _.
The recent Thorton case highlights some of the issues that may arise in considering the plea agreement of a cooperating witness.
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