The opinion of the court was delivered by: Simandle, District Judge
According to the government, defendant Solomon Abraham is guilty of conspiring with others to sell used automobiles with the mileage odometers rolled back. Pursuant to a plea agreement, Israel Einhorn plead guilty to some of the same illegal conduct alleged in Abraham's indictment, and the government will allege at trial that Abraham and Einhorn, among others, were co-conspirators in this crime. Einhorn's plea agreement stated that in exchange for his cooperation, including providing substantial assistance to the government (such as testifying against Abraham), the government would move this Court, pursuant to Section 5K1.1 of the Sentencing Guidelines, for a downward departure of Einhorn's sentence. This opinion concerns the legality of that agreement -- namely, testimony pursuant to a cooperating plea agreement under Title 18, United States Code, Section 201(c)(2) and Rule 3.4(b) of the New Jersey Rules of Professional Conduct.
Defendant asks this Court to suppress Einhorn's anticipated testimony *fn1 (Def.'s Br. at 11-13), alleging that the United States commits a crime if it offers or promises the prospect of leniency to Einhorn in return for substantial assistance in the prosecution of Abraham, possibly including trial testimony, because of the proscription of such offers or promises under federal criminal law at 18 U.S.C. § 201(c)(2). Defendant's argument rests on the same reasoning that lies behind the now vacated opinion of the Tenth Circuit in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). For the reasons that are stated herein, this Court, like the majority of courts that have considered the issue, rejects the Singleton reasoning and holds that Israel Einhorn's testimony will not be suppressed due to the fact that it is procured through a cooperating plea agreement, and the Court holds that the criminal witness bribery statute in 18 U.S.C. § 201(c)(2) does not preclude such testimony.
The facts of the present case are as follows. On May 15, 1998, Solomon Abraham was named in a fifteen count indictment. which alleges that he knowingly and intentionally conspired with others to sell used automobiles with rolled back mileage odometers to consumers in New Jersey and elsewhere. Additionally, the indictment alleges that, in furtherance of the conspiracy, Defendant: 1) altered the mileage readings on title documents to match the lower reading on the automobiles; 2) used forged reassignment documents to transfer the titles of the used motor vehicles; 3) applied for new motor vehicle titles in New Jersey by submitting altered titles; and 4) certified to buyers and to the New Jersey Department of Motor Vehicles that the lowered mileage reading was accurate. The aforementioned acts were in violation of: 18 U.S.C. §§ 371, 2314 and 2; 15 U.S.C. §§ 1988(b) and 1990(c); and 49 U.S.C. §§ 32705(a0(1), 32705(a)(2), and 32709(b).
Israel Einhorn was indicted for related illegal conduct. On August 20, 1997, Einhorn, who is alleged to be one of Defendant's co-conspirators, plead guilty to Counts 2 through 5 of Indictment 97-121.Einhorn's written plea agreement *fn2 states that in exchange for his full cooperation, the government will move the sentencing judge, pursuant to Section 5K1.1 of the Sentencing Guidelines, to depart from the otherwise applicable range. (Def.'s Ex. C.) *fn3 Full cooperation, in this case, includes truthfully testifying at grand jury proceedings and at trial. Einhorn has not yet been sentenced.
Defendant infers that because Einhorn has not yet testified against Defendant at trial, the government is holding off on sentence recommendation until it has heard Einhorn's testimony. According to Defendant, it would appear that Einhorn's testimony "is being secured with the inducement that he will receive a more lenient sentence," in clear violation of 18 U.S.C. § 201(c)(2) and the New Jersey Rules of Professional Conduct. (Def.'s Br. at 12-13.)
At oral argument, the United States assured this Court that its plea agreement with Einhorn does not, and will not, contain any provisions that make the government's sentence recommendation reliant on the particular testimony that Einhorn gives at trial. Assistant United States Attorney Paula Dow explained to the court that "full cooperation" could mean that the witness in question has provided valuable assistance in any number of ways, from testifying to simply providing information. In Einhorn's case, she averred, the prospect of a motion for leniency arising from his cooperation is not contingent upon the outcome of Abraham's trial. Moreover, she assured this Court that the written plea agreement is the complete agreement; no other promises -- for monetary or other rewards -- were made to Einhorn.
Section § 201(c)(2) of the Criminal Code states that:
Whoever, directly or indirectly, gives, offers or promises any thing of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon trial, hearing, or other proceeding, before any court, . . . shall be fined under this title or imprisoned for not more than two years, or both. 18 U.S.C. § 201(c)(2).
The New Jersey Rules of Professional Conduct likewise prohibit such actions:
A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by ...