OFFERS TO ‘FAT LEONARD’ WITNESSES QUESTIONED
Agents were set to pay prostitutes to travel, testify in S.D.
It was several weeks into the “Fat Leonard” bribery trial — already filled with salacious allegations — when this mini bombshell dropped: Federal agents had offered to pay overseas prostitutes cash to travel to San Diego and testify at trial.
While no women ultimately took the U.S. government up on the offer, the specter has not only raised eyebrows, but also the question: Is that even allowed?
The answer: It depends. Under federal law, witnesses cannot be paid to testify a certain way, nor can their pay be contingent on the outcome of the trial. The same goes for paying someone not to testify.
But there are exceptions.
Nonexpert witnesses can be covered for the “reasonable” costs of travel and attending trial, such as airfare, lodging and meals, according to the federal statute.
They can also be compensated for “the reasonable value of time lost” in attending the trial, such as lost wages.
The exceptions are also accepted under the California bar’s ethical code for attorneys, according to David Carr, a San Diego attorney who specializes in legal ethics. But cases of misconduct are rare.
“In the ethics world, it doesn’t come up often,” Carr said.
Still, legal experts say it’s an area that attorneys — and the law enforcement officers who often handle witnesses — must tread carefully.
Reluctant witnesses
In many cases, potential witnesses in the U.S. can just be subpoenaed, and they are required to show up for court. By law, they are entitled to be paid $40 per day of court, as well as be reimbursed for travel costs.
But foreigners outside the U.S. are not subject to subpoena powers, and a compensation agreement might help convince a resistant witness.
A few months before trial was set to begin in the “Fat Leonard” case, federal agents were scurrying to find some of the prostitutes alleged to have been paid by military contractor Leonard Glenn Francis to have sex with naval officers.
Five former officers are currently on trial, accused of accepting bribes — hotel rooms, lavish parties, fine meals, the services of prostitutes — from Francis in exchange for insider military information and inf luence to push through multimilliondollar contracts.
Agents ultimately made contact with two prostitutes in Southeast Asia. A special agent with the Defense Criminal Investigative Service asked his superiors if certain agency emergency funds might be available for witness compensation. He got a preliminary green light, according to emails presented in court during a special evidentiary hearing last month.
But both women were reluctant to come to the U.S., agents testified. Agents offered one woman $5,000 to come to San Diego and testify; they advised the other that cash payment was possibly available but didn’t provide an exact amount, according to testimony. Both women turned down the offers; neither testified, and neither was paid.
Agents testified that despite DCIS supervisors referring to the offer of payment as a “reward,” the money was meant to compensate the women for loss of wages or expenses such as child care, on top of a fully-funded trip.
“My goal was to alleviate any financial stress any of these woman may be facing,” DCIS Special Agent Cordell DeLaPena testified, noting many people in that part of the world don’t have sick leave or family leave.
The defense has likened the government’s conduct to bribery — the same crime for which the five naval officers are being tried — and is using the episode as part of a broader motion for mistrial or full dismissal of charges.
Prosecutors have responded by pointing to the exceptions in the law that allow compensation in certain circumstances.
The practice is also backed up by the 9th U.S. Circuit Court of Appeals, they argued, in a case that was tried in San Diego.
The case involved testimony from a cooperating witness against men accused of smuggling more than 10 tons of cocaine aboard a fishing boat that was intercepted off the coast of Mexico in 2001.
The witness was paid more than $200,000 to testify on behalf of the government — cash payments that were given to housing providers, him and his family over a 15month period.
The appeals court recognized the “important contribution of cooperating witnesses and informants in our criminal justice system — and the substantial danger that such persons face from retaliation.”
The panel concluded in its 2007 opinion that it joined other federal circuits holding that the federal anti-gratuity statute “does not prohibit the government from paying fees, housing, expenses, and cash rewards to any cooperating witness, so long as the payment does not recompense any corruption of the truth of testimony.”
The ‘reasonable’ test
If compensation is deemed appropriate, the next question is often whether it is “reasonable.”
“The term ‘reasonable’ is mushy, and it’s used everywhere in the law,” said Kevin Cole, a University of San Diego School of Law professor.
What’s reasonable compensation for one person — say, a professional missing out on billable hours — will be very different for another who is retired or earns a lower wage, experts said. The same can be said for travel expenses.
“Was the plane ticket first class or coach?” asked Carr, the ethics expert. “How much would the person really lose by taking time off?”
In the “Fat Leonard” case, defense attorneys have questioned the $5,000 offered to one of the women, who lives in the Philippines, suggesting the amount was out of bounds.
According to the latest survey by the website Picodi on wages around the world, the average monthly salary in the Philippines in early 2021 was $153.
Agents said a calculation was not done as to what the woman’s lost wages or other incurred costs would have amounted to if she would have left home to testify.
In 2008, a federal judge in Indianapolis determined that a witness was overpaid at $200 per hour for his time lost testifying, when his base salary was $88 before retiring three years earlier.
While paying a witness may help get an important witness on the stand, it can also backfire in front of a jury.
While most jurors expect both sides of a case to hire paid experts to testify, fact witnesses often only show up on one side of the case, making for an imbalance, said Cole. And the other side must be informed that the witness is being paid.
That can make for vigorous cross-examination in an effort to discredit the witness. In the cocaine case, the paid witness was exhaustively questioned by defense lawyers representing each of the eight defendants. (The jury convicted two people and hung on the other six.)
Even if the jury accepts the premise of a nonexpert witness being paid to testify, the amount could be key.
“If it comes out that your compensation at a certain level sticks with the jury as excessive, the jury will be left wondering if it actually is an effort to influence the testimony of the witness,” Cole said.
In the Indianapolis case, the witness compensation wasn’t clearly disclosed to the other side. The muff resulted in a mistrial and misconduct finding against the attorneys involved.
The offers to pay prostitutes also weren’t disclosed to the defense in the “Fat Leonard” case, until the information surfaced mid-trial during another evidentiary dispute. The defense argues it should have been disclosed at the forefront. The prosecution says there was no violation because no payment was ever made.
As with many aspects of the law, nuance matters. And U.S. District Judge Janis Sammartino, who is overseeing the “Fat Leonard” case, must now determine if what happened in this instance should ultimately affect the trial going forward. The trial has continued while she considers motions for mistrial or dismissal on several issues.