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Second Circuit Rules That Defendant Who Pleads Guilty Mid-Trial May Testify as Cooperating Witness Against Former Co-Defendants

On Wednesday, February 15, the Second Circuit issued a published opinion in United States v. Barret, No. 12-4663(L) (Pooler, Hall, Carney), addressing an issue of first impression in the Circuit—whether testimony of a former co-defendant who pleads guilty during trial and agrees to testify as a government witness is admissible at that same trial.  The Second Circuit answered that question in the affirmative, holding that such testimony is admissible so long as the district court takes certain steps to avoid undue prejudice to the remaining defendants.  Those steps include limiting the testimony to events other than the witness’s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances.  The Second Circuit noted that its holding was consistent with decisions issued in the First, Third, Seventh, and Eleventh Circuits.

Barret concerned the prosecution of several individuals who were members of the “Fatherless Crew,” a large-scale marijuana distribution organization based in Queens, New York that received drugs from suppliers in Arizona and California via the U.S. Postal Service.  After a lengthy investigation and raid of the organization leader’s house, several members of the Fatherless Crew were arrested and indicted on numerous charges, including a charge of conspiring to distribute and possess with intent to distribute more than 1,000 kilograms of marijuana as well as other drug- and firearm-related charges. 

After the first four days of trial, one of the defendants—Kareem Forrest—entered into proffer talks with the government.  He eventually entered into a cooperation agreement with the government and changed his plea from not guilty to guilty 8 days after the trial had begun.  The same day that Forrest pleaded guilty, the government notified the court and defense counsel that it intended to add Forrest as a witness.  Accordingly, the court instructed the jury that one of the co-defendants was no longer on trial, that the jury should not speculate about the reasons why he is no longer part of this trial, and that the change in plea should not affect the jury’s verdict with respect to the remaining defendants. 

Three of the defendants objected and sought to exclude Forrest’s testimony on three grounds.  First, they asserted that Forrest had participated in defense strategy before entering the cooperation agreement and he could therefore share those strategies with the government in violation of the defendants’ Sixth Amendment right to counsel.  Second, they objected under Rule 615 of the Federal Rules of Evidence because Forrest had been present at trial for the testimony of other government witnesses.  Third, they claimed that Forrest’s testimony would likely refute assertions made by the defense during opening and arguments that were critical to the defense.  The district court ultimately rejected each of these three arguments and instead followed the Seventh Circuit’s decision in United States v. Olson, 450 F.3d 655 (7th Cir. 2006), instructing the jury that it should consider Forrest’s testimony “with great caution and great care.” 

On appeal, the Second Circuit affirmed the district court’s ruling.  It held that “a co-defendant who turns government witness during trial may be permitted to testify at that trial, provided that the district court takes steps to avoid unfair prejudice.”  As to those cautionary steps, the Second Circuit mentioned two that must be followed.  First, “the district court must ensure that the testimony of the former co-defendant is admitted only for the limited purpose of testifying to events other than the witness’s involvement in joint defense planning.”  The panel found that this would protect the remaining co-defendants “from any prejudice that would arise from the former co-defendant’s awareness of defense strategy, pre-trial conversations with co-defendants occurring after arrest, or privileged conversations with counsel.”  Second, “the district court must deliver adequate cautionary instructions to the jury to make certain that the jury does not draw any adverse or unfair inferences against the remaining co-defendants, does not use the former co-defendant’s admission [of] guilt as evidence of the guilt of the remaining co-defendants, and does not give the former co-defendant’s testimony undue wait.” 

The court also rejected the argument that Forrest’s testimony violated the defendants’ Sixth Amendment right to counsel.  The Supreme Court’s decision in Massiah v. United States, 377 U.S. 201 (1964), held that the government cannot gain access to defense strategy by deliberately infiltrating the defense team with government informants who intentionally seek incriminating evidence to be used at trial.  The Second Circuit noted, however, that there was “no evidence that the government infiltrated the defense team or deliberately elicited incriminating evidence.”  The court highlighted that it was Forrest who approached the government during trial about changing his plea. 

Finally, the Court rejected defendants’ argument that Forrest’s presence in the courtroom before his testimony violated Rule 615 of the Federal Rules of Evidence.  The Court determined that Rule 615 does not bar testimony just because a witness was present as a defendant during a prior witness’s testimony.  The Court agreed with the Seventh Circuit’s conclusion that it was within the district court’s discretion to allow the testimony absent any indication that the witness’s presence in the courtroom was the product of “government connivance” or some “willful violation of the rule.”

The Second Circuit’s decision in Barret reflects a growing consensus among the circuit courts that cooperating testimony from a former co-defendant who changes his plea mid-trial should be admissible at that same trial.  The Court also provides guidance to district courts in how to address this atypical situation.  The Court’s opinion recognizes that such testimony can potentially prejudice the remaining co-defendants, but it signals a belief that the court’s instructions to the jury can mitigate any possible prejudice.  Indeed, the Court explicitly stated that the district court’s rather brief jury instruction in this case regarding the issue was sufficient to address any concerns.  On the one hand, it is hard to know what else the Court could have done with this issue short of demanding that the trial be halted and a new trial commenced in circumstances such as these.  Moreover, courts necessarily presume that jurors follow such instructions—our jury system depends on this being true.  At the same time, one does wonder whether there is any way that a juror can overlook the dissonance of seeing a trial defendant, whose lawyer delivers an opening statement and asserts innocence, leaving the back table mid-trial and testifying against his fellow defendants. 

Presuming that the juror will follow an instruction to put this unusual series of events out of his or her mind does not mean that the juror is capable of following such an instruction.  See, e.g., Bruton v. United States, 391 U.S. 123, 129 (1968) (“The naïve assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction[.]”) (quoting Krulewitch v. United States, 336 U.S. 440, 453 (Jackson, J., concurring)).  In Bruton, for example, the Supreme Court held that a jury instruction was insufficient to guard against the Sixth Amendment prejudice that flowed from the government’s decision to offer at trial a defendant’s confession that implicated a co-defendant without giving that co-defendant an opportunity to cross-examine the confessing defendant.  Id. at 137.

The Barret decision does not seem to reflect much concern with the possibility that a former co-defendant could share joint defense information with the government, at least on the facts presented here.  It appears that the Court found assurance in the fact that the cooperating witness in this case was the one who approached the government, rather than the other way around.  This fact may have alleviated any potential concern about the government’s conduct, which appears to have been fair and appropriate based on the record below.  It remains to be seen whether a similar decision would be reached in an instance where the government more proactively sought the testimony of a co-defendant in the middle of a trial, or if there was some reason to believe that there was sharing of information based on how the trial unfolded.

-By Jared Buszin and Harry Sandick