9.01                         Overview

The use of informants is an area of conflict for many prosecutors and agents.  Both recognize the importance of developing informants. Without them it is often next to impossible to infiltrate well protected criminal organizations.  Both prosecutors and agents want the information informants can provide.  The conflict arises when agents want to make the informant the primary witness.  Many prosecutors recognize the need to place informants on the witness stand but few experienced prosecutors relish the thought of it.  The better view, where possible, is to use informants to develop information and then find ways to obtain the evidence independent of the informants.  The frequent problems that follow informants into the witness stand are legion and well documented here and in every exposition on the subject.  At the very least, prosecutors can count on jury instructions that direct the jury to view these witnesses with caution.  This chapter discusses the practical, policy and legal issues concerning the use of informants.  

The sources for this chapter include the DOJ Guidelines on the Use of Informants, published in 2002, an article published in the United States Attorneys’ Bulletin by AUSA Ann Rowland (N.D. Ohio) and former AUSA John Carlton (C.D. Cal.), the United States Attorneys’ Manual, Proving Federal Crimes, FBI Legal Handbook for Special Agents (2003), excerpts from The Defender’s Advocate published by the Federal Defender Training Group by Assistant Federal Defenders Hugo Rodriquez and Timothy Cone,  the Eighth Circuit Court of Appeals Model Jury Instructions and Eleventh Circuit Pattern Jury Instructions, all with recent cases supplied by the author.  Three other chapters discuss informant issues: Chapter 13, Ethical Issues, discusses the use of plea bargains and vouching issues in closing argument; Chapter 19 discusses Brady-Giglio issues and Chapter 24 covers negotiated pleas.

9.02                         DOJ informant guidelines

The Department of Justice has published “Guidelines Regarding The Use of Confidential Informants” (hereafter Guidelines or DOJ Informant Guidelines) available at http://www.usdoj.gov/olp/dojguidelines.pdf.  The purpose of the Guidelines is to set mandatory policy regarding the use of confidential informants in criminal investigations and prosecutions by all DOJ law enforcement agencies and federal prosecuting offices.  A confidential informant, or CI, is any individual who provides useful and credible information regarding felonious criminal activities, and from whom the agent expects or intends to obtain useful and credible information regarding such activities in the future.  The Guidelines refer to a DOJ federal law enforcement agency as a JLEA.

The Guidelines require agents and prosecutors to maintain confidential investigative information concerning informants, prohibit agents from withholding the true identity of informants from prosecutors, and require agents to perform a suitability assessment prior to using a CI.  The agent must then register the CI with his/her agency and must advise the CI of the following before making use of the CI:

a.         information provided by the CI to the JLEA must be truthful;

b.         the CI's assistance and the information provided are entirely voluntary;

c.         the United States Government will strive to protect the CI's identity but cannot guarantee that it will not be divulged;

d.         [if applicable:] the JLEA on its own cannot promise or agree to any immunity from prosecution or other consideration by a Federal Prosecutor's Office or a Court in exchange for the CI's cooperation, since the decision to confer any such benefit lies within the exclusive discretion of the Federal Prosecutor's Office and the Court. However, the JLEA will consider (but not necessarily act upon) a request by the CI to advise the appropriate Federal Prosecutor's Office or Court of the nature and extent of his or her assistance to the JLEA;

e.         [if applicable:] the CI has not been authorized to engage in any criminal activity and has no immunity from prosecution for any unauthorized criminal activity;

f.          the CI must abide by the instructions of the JLEA and must not take or seek to take any independent action on behalf of the United States Government;

g.         the CI is not an employee of the United States Government and may not represent himself or herself as such;

h.         the CI may not enter into any contract or incur any obligation on behalf of the United States Government, except as specifically instructed and approved by the JLEA;

i.          the JLEA cannot guarantee any rewards, payments, or other compensation to the CI;

j.          in the event that the CI receives any rewards, payments, or other compensation from the JLEA, the CI is liable for any taxes that may be owed; and

k.         [if applicable:] no promises or commitments can be made, except by the Immigration and Naturalization Service, regarding the alien status of any person or the right of any person to enter or remain in the United States.

DOJ Informant Guidelines (II)(C).

The Guidelines also prohibit agents personally from socializing with, or giving anything of value to informants.  The Guidelines also  govern the distribution of agency payments to the CI.  Section (III)(C) prohibits authorizing a CI to engage in illegal activity except as authorized and specified in Section (III)(C)(2) of the Guidelines.

After a CI is authorized to engage in illegal activity, at least one agent of the JLEA, along with one additional agent or other law enforcement official present as a witness, shall review with the CI written instructions that state, at a minimum, that:  the CI is authorized only to engage in the specific conduct set forth in the written authorization and not in any other illegal activity; the CI's authorization is limited to the time period specified in the written authorization;  under no circumstance may the CI: participate in an act of violence; participate in an act that constitutes obstruction of justice (e.g., perjury, witness tampering, witness intimidation, entrapment, or the fabrication, alteration, or destruction of evidence);  participate in an act designed to obtain information for the agent that would be unlawful if conducted by a law enforcement agent (e.g., breaking and entering, illegal wiretapping, illegal opening or tampering with the mail, or trespass amounting to an illegal search); or  initiate or instigate a plan or strategy to commit a federal, state, or local offense. DOJ Informant Guidelines (III)(C)(4).

A DOJ law enforcement agent does not have any authority to make any promise or commitment that would prevent the government from prosecuting an individual for criminal activity, or that would limit the use of any evidence by the government, without the prior written approval of the prosecutor that has primary jurisdiction to prosecute the CI for such criminal activity.  DOJ Informant Guidelines (I)(C).  Any such promises are unenforceable.  United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000).

9.03         Prosecution strategies

The following suggestions on handling informants comes from two public domain articles published in the United States Attorneys’ Bulletin by Assistant United States Attorneys Ann C. Rowland and John L. Carlton entitled Handling Informants and Accomplice Witnesses. U.S. Attorneys’ Bulletin, Vol. 46, Nos. 4-5 (1998).

Informants are persons who provide infor­mation to the Government about criminal activity.  They may or may not be involved in the criminal activity.  Rarely are informants public-spirited citizens who come for­ward solely because they have information that might be useful.  Informants usually receive some compen­sation or benefit for their information, which may be as a reward, regular monetary payments, reimburse­ment for expenses, or other benefit.  Some informants agree to testify at trial, others do not.  In this article, “informant” means any person who receives or expects to receive some compensation, monetary or otherwise, in return for cooperation.

Similarly, accomplice witnesses are just that—participants in the criminal activity who agree to cooperate in the investigation and testify against other participants.  Usually, accomplice witnesses agree to “help” the Government in return for some consider­ation in charging or at sentencing or, some­times, for immunity from prosecution.

Witnesses involved in illegal activity can be very effective in providing the jury an insider’s view of a conspiracy or joint criminal venture.  Indeed, the uncorroborated testimony of an accomplice is sufficient to support a conviction under federal law.  United States v. Spears, 49 F.3d 1136, 1141 (6th Cir. 1995).  It is the rare case, however, that can be prose­cuted successfully without substantial corroboration of the criminal witness.  Defense attorneys routinely mount effective attacks on the “motivations” of informants and accomplices to testify falsely. These motivations include a reduction in a sentence, immunity from prosecution, financial rewards, revenge, and eliminating the competition in criminal activity.  The standard instruction a jury receives when an informer testifies highlights the low esteem in which these witnesses are held.  See Section 9.05.

Selecting the “Cooperating” Witness and Obtaining a Proffer:  Before agreeing to use an informant or an accom­plice as a witness, the Government must show the potential cooperator (and defense counsel) that the event of his or her conviction is certain, and that he or she can only mitigate the resulting sen­tence through complete and full cooperation.  A proffer should be obtained before making a deal with an informant or accomplice.  A proffer session allows the prosecutor to assess the nature and quality of the cooperator’s testimony before committing the Government to the terms of a plea agreement or the offer of immunity.  The proffer session also serves as an opportunity to learn whether the witness has a relationship with any other law enforcement entity through which implied or express promises of leniency or biased treatment may have been made.

Solicit a proffer session by sending a letter to the witness’s lawyer setting forth the terms of the proffer.  Generally, the basic terms of a proffer agreement are: (1) the witness must tell the truth and not make material omissions; (2) statements made during the proffer cannot be used against the witness in the Government’s case-in-chief; (3) statements made during the proffer can be used to impeach the witness at trial and at sentencing if the witness provides information that is contrary to, or inconsis­tent with, statements made during the proffer; (4) the Government is permitted to use the leads and fruits of the interview against the witness, United States v. Clairborne, 62 F.3d 897, 901 (7th Cir. 1995), United States v. Maldonado, 38 F.3d 936, 942 (7th Cir. 1994), United States v. Rowley, 975 F.2d 1357, 1361-62 (8th Cir. 1992); (5) the event of the proffer itself will not be considered “substantial assistance” for purposes of U.S.S.G. § 5K1.1 (this term may not always apply); and (6) any limitations on the use of statements made at the proffer are void if the witness lies.

Payments to Witnesses:  Paying an informer or cooperating witness is often unavoidable.  These payments may take the form of regular, interval-type payments or a bonus at the completion of the case. When considering whether to authorize the payment to a witness, try to characterize the proposed payment of a bonus as a “possibility,” keeping the amount indefinite so that the witness can testify that he or she does not know the amount or even if the Government will pay him or her.  If money is paid to a cooperating witness, the Assistant United States Attorney (AUSA) should attempt to tie the payments to the “cooperative” actions of the witness, and to the value of the legitimate income that he or she is sacri­ficing to gather information for the Government.  This, of course, is difficult to do when the witness does not have a legitimate income.

Polygraphing Witnesses:  Early in an investigation, many agents consider polygraphing the informant or accomplice witness.  The Department’s policy on the admissibility of polygraphs is set forth in the United States Attorneys’ Manual (USAM) at § 9-13.300 (October 1997), from which the following excerpt is taken regarding the use of polygraphs as an investigative tool:  On the other hand, the Department recognizes that in certain situations, as in testing the reliability of an informer, a polygraph can be of some value. Department policy therefore supports the limited use of the poly­graph during investigations.  This limited use should be effectuated by using the trained exam­iners of the federal investigative agencies, primarily the FBI, following internal procedures formulated by the agencies. E.g., R. Ferguson, Polygraph Policy Model for Law Enforcement, FBI Law Enforcement Bulletin 6‑20 (June 1987).  The case agent or prosecutor should make clear to the possible defendant or witness the limited purpose for which results are used and that the test results will be only one factor in making a prosecutive decision.  If the subject is in custody, Miranda warnings should precede the test. Subsequent admissions or con­fessions will then be admissible if the trial court deter­mines that the statements were voluntary.  Wyrick v. Fields, 459 U.S. 42 (1982); Keiper v. Cupp, 509 F.2d 238 (9th Cir. 1975).  See USAM at § 9-13.300.

If a polygraph is administered to an informant or accomplice witness and the results of the poly­graph test prove the witness is deceptive, then the Government must disclose this fact to the defense because it is Brady material.  Nevertheless, early knowledge that a cooperating witness is lying may prevent the useless expenditure of Government funds on an investigation.  Of course, if a cooperating witness passes a polygraph, then this fact supports the prosecutor’s assertion of a “good faith” basis for proceeding with an investigation.

Grand Jury Considerations:  Criminal witnesses generally are not motivated to cooperate for altruistic reasons.  Accordingly, these witnesses may be inclined to change their testimony at trial if they have become disillusioned with the Government.  Under Fed. R. Evid. 801(d)(1)(A), grand jury testimony can be used as substantive evidence if a witness changes his or her testimony at trial.  United States v. Odom, 13 F.3d 949, 954-55 (6th Cir. 1994); United States v. Milton, 8 F.3d 39, 47 (D.C. Cir. 1993); United States v. Thomas, 987 F.2d 1298, 1300-01 (7th Cir. 1993); United States v. Jacoby, 955 F.2d 1527, 1539 (11th Cir. 1992); United States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991); United States v. Orr, 864 F.2d 1505, 1509 (10th Cir. 1988); United States v. Bigham, 812 F.2d 943, 946 (5th Cir. 1987); United States v. Wilson, 806 F.2d 171, 175 (8th Cir. 1986); United States v. Stockton, 788 F.2d 210, 219 & n.14 (4th Cir. 1986); United States v. Marchand, 564 F.2d 983, 998-99 (2d Cir. 1977); United States v. Morgan, 555 F.2d 238, 242 (9th Cir. 1977).  For these reasons, consider putting informant and accomplice witnesses in the grand jury before presenting the indictment.

Discussions with Defense Counsel at the Investigative Stage:   When an investigation becomes overt and defense attorneys start calling, the prosecutor should take advantage of any opportunities to discuss the case with them and obtain information about Government witnesses.  Conversations with defense counsel about cooperating witnesses may eliminate surprise at trial during the cross-examination of those cooperating witnesses, and may give the AUSA an opportunity to prepare these witnesses to deflect defense attacks.  Keep in mind that the defendant will probably know more about informant and accomplice witnesses than the Government does.

Considerations Regarding the Plea Agreements of Cooperating Witnesses:  Once you have decided that a witness has potentially useful testimony or cooperation, memorialize all agreements with the witness in writing.  Always remember that the terms of the witness’s agreement with the Government are discoverable and subject to scrutiny in the court­room.  Carefully review both the substance and the language of the plea agreement with the jury’s perspective in mind.  There should be no unwritten side deals.  Remember, too, all plea agree­ments must involve a faithful and honest application of the Sentencing Guidelines.  See the USAM at §§ 9-27.330 to 9-27.450, for the Department’s policies regarding plea agreements.  The just application of the Sentencing Guidelines ensures consistency in sentencing and adds credibility to the Government’s decision to use cooperating witnesses.  The jury will trust witnesses more if the Government is holding them accountable for their crimes.  A jury will distrust leniently-treated witnesses and may believe that their motivation to testify falsely is greater when the Government offers a substantial departure in exchange for testimony.

Draft plea agreements with the assumption that the jury will read them.  Include language that requires the witness to tell the truth.  Do not specify that the witness is required to testify against a particular person.  Such language invites the defense to establish a motive for the witness to testify falsely against the defendant.

Plea Agreement Considerations:  Follow the USAM’s guidance on Department policies and the procedures implemented in your district regarding plea agreements.  Clearly and expressly set forth in the plea agreement all consideration provided by the Government to a witness.  A plea agreement should clearly state that the ultimate sentencing decision will be made by the court and not the prosecutor.  Also, make sure the plea agreement expressly states that the possibility of a downward departure is NOT contingent on the outcome of any trial or grand jury proceeding. Do not commit to a sentencing recommendation or an agreement to move for a downward departure based upon substantial assistance under U.S.S.G. § 5K1.1, until the witness has fulfilled his or her agreement to cooperate fully.  Carefully consider whether a polygraph requirement should be made part of the plea agreement, and consult the USAM regarding Department policy in this area.

Draft the plea agreement broadly to require testimony in any matter as requested by the Government.  If appropriate, the plea agreement should address the question of cooperation with state and local prosecutors and administrative agencies.  A plea agreement should contain a provision that states:  If the witness engages in illegal conduct, the plea agreement will be declared void and the witness will be subject to prosecution for all criminal activity, including perjury, false statement, and obstruction of justice.

If the Government recommends that a witness and his or her family members consider a witness security program, then the plea agreement should clearly state that the prosecutor does not approve the witness’s admission into the program. The plea agreement should also include a provision regarding agreements about the immigration status of the witness or members of the witness’s family.

Complete immunity should only be granted when necessary.  If the witness committed a crime, he or she should usually be required to incur some criminal liability as part of any plea agreement. See the USAM at §§ 9-27.300 to 27.650.

Rejection of Immunity:  Prosecutors must be cautious about offering immunity because the offer itself can be used against the Government.  In United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990), immunity was offered to a target in exchange for cooperation.  The target rejected the offer and was prosecuted. At trial, the defendant argued that his rejection of the immunity offer was evidence of "consciousness of innocence."  The Second Circuit held that it was wrong for the trial court to exclude the evidence because the jury was "entitled to [the] belief that most people would jump at the chance to obtain an assurance of immunity from prosecution and to infer from rejection of the offer that the accused lacks know­ledge of wrongdoing."  Biaggi, 909 F.2d at 690-91.

Pretrial Preparation:  The identification and production of exculpatory and impeachment material and witness statements present a significant challenge to the Government in cases where informants or accomplices will testify as Government witnesses. The prosecutor has a signifi­cant burden to ensure that any such material (commonly called Brady, Giglio, and Jencks material) is disclosed to defense counsel and that a record of the disclosure is made.  Do not underestimate the time it takes to collect such material, particularly for a witness who has testified in many different districts and has a relationship with several law enforcement agencies.

Preparing the Informant or Accomplice Witness to Testify:  Preparing the testimony of an informant or accomplice is very time consuming.  Besides reviewing the substance of the testimony with the witness, remind him or her to tell the truth.  Do not say anything to a witness that you would not want a defense attorney, a judge, a reporter, or the jury to hear.  Witnesses have been known to tape their conversations with the prosecution team. Avoid becoming too friendly with any witness—especially informants and accomplices.  These people are not the Government's friends, and it should not appear otherwise at trial. By keeping the relationship professional, and somewhat distant, the prosecutor and agents are less likely to overlook signs that the witness is not cooperating fully.

Defense Requests to Interview an Informant or Accomplice Witness:  If the defense requests an interview of an informant or accomplice witness, then the Government must instruct the witness that he or she is free to submit to such an interview.  Telling a witness not to speak to a defense attorney is improper.  However, telling the witness that he or she is not required to speak to a defense attorney is permissible.  United States v. Black, 767 F.2d 1334, 1337-38 (9th Cir. 1985).

Impeachment issues:  The Sixth Amendment "guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’"  Kentucky v. Stincer, 482 U.S. 730, 739 (1987).  The Sixth Amendment requires that a defendant be granted an opportunity to explore criminal charges against a prosecution witness to show motive or self-interest to the jury.  United States v. Garrett, 727 F.2d 1003, 1011 (11th Cir. 1984).  The opportunity to cross-examine is limited.  United States v. Devin, 918 F.2d 280 (1st Cir. 1990) (permissible to preclude cross-examination of an informant on the identity of two other subjects of public corruption investigation when there had been extensive cross-examination of a witness on payments made to other public officials shielded by immunity); United States v. Boylan, 898 F.2d 230, 254 (1st Cir.1990) (precluding cross-examination on witnesses’ procurement of male prostitutes and on witnesses’ sexual orientation not reversible error when defense pursued vigorous cross-examination on grant of immunity and other crimes committed by witnesses).

The general rule is that cross-examination of drug informants on payments received from the Government must be permitted to extend not only to his/her work in the case on trial, but also to previous work for the Government.  United States v. Salsedo, 602 F.2d 318, 321 (9th Cir. 1979); United States v. Leja, 568 F.2d 493 (6th Cir. 1977) (conviction reversed for failure of district court to allow cross-examination on informer’s total compensation package).  Sometimes, limiting cross-examination on payments received in connection with other investigations may be possible.  United States v. Elorduy, 612 F.2d 986, 989 (5th Cir. 1980).  If the witness has received payments in connection with ongoing investigations, a trial judge may refuse to allow cross-examination that might jeopardize such investigations.  United States v. Gray, 626 F.2d 494, 499 (5th Cir. 1980).  In addition, limiting cross-examination of an informant on drug use to a particular period of time may be possible.  United States v. Broadus, 6 F.3d 460, 465 (6th Cir. 1993).  A trial judge may refuse to allow disclosure of the address and place of employment of a witness if the danger to the witness outweighs the value of the evidence.  United States v. Watson, 599 F.2d 1149, 1157 (2d Cir. 1979), modified on other grounds, 633 F.2d 1041 (1980) (permissible to limit cross-examination to protect a witness’s secret identity); United States v. Rice, 550 F.2d 1364, 1371 (5th Cir. 1977).

Cross-examination on the plea agreement and the criminal history of the witness can also be confined.  Where the defendant is permitted to conduct sufficient cross-examination to satisfy the requirements of the Sixth Amendment, the scope of any further cross-examination falls within the discretion of the trial court, and the trial court's ruling will not be disturbed, absent an abuse of discretion.  United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir. 1982).  It is not an abuse of discretion to limit cross-examination of a Government witness concerning past convictions to the facts of conviction rather than allowing defense counsel to explore the underlying details.  United States v. Castro, 788 F.2d 1240, 1246 (7th Cir. 1986); United States v. Beale, 921 F.2d 1412, 1424 (11th Cir. 1991) (no abuse of discretion in precluding cross-examination on underlying facts of pending charges against the witness).  When the jury is fully aware of the plea agreement, limiting cross-examination on the nature of the probationary sentence does not deprive a defendant of a fair trial.  United States v. Atisha, 804 F.2d 920, 929-30 (6th Cir. 1986).

Fed. R. Evid. 608(b) provides that, for the purpose of attacking or supporting the witness’s credibility, specific instances of misconduct cannot be proved by extrinsic evidence, other than conviction of a crime as provided in Fed. R. Evid. 609.  Defense counsel may ask about specific instances of misconduct by an informant or cooperating witness on cross-examination if the same is probative of truthfulness or untruthfulness of the witness.

It is not an abuse of discretion for the district court to exclude evidence that a Government witness used cocaine on an occasion unrelated to the charges against the defendant to impeach the credibility of the witness.  United States v. Phillips, 888 F.2d 38, 41-42 (6th Cir. 1989).  However, extrinsic evidence of the prior misconduct of a witness may be proved if it is probative of bias.  See United States v. Meyer, 803 F.2d 246, 249 (6th Cir. 1986).

9.04                         Defense strategies

The following suggestions as to what to do with Brady information turned over to the defense comes from the public domain article Hugo A. Rodriguez & Timothy Cone, Informants Against Your Client: Impeaching Cooperating Witnesses, The Defender’s Advocate (Summer 1999).

Jury Voir Dire.  In federal court, counsel’s role in voir dire is often restricted. However, if the government attempts during voir dire to “defang” the thieves and liars it expects to call by stating “believe them now that we have ‘bought’ them,” counsel should be prepared to respond.  Especially if attacking the informant is going to be a major theme of the defense, counsel should consider questioning potential jurors on whether they feel comfortable relying on people who have ulterior motives for testifying.  Care should be taken, though, to avoid alerting the government to jurors it may want to strike because they will not believe that the government can transform unscrupulous people into trustworthy characters.

Direct Examination.  The government often attempts to bolster the credibility of an informant through the testimony of the case agent, who may give opinions that “fill the gaps” in the informant’s story.  You should be prepared to object.  The case agent is not an expert, and therefore cannot give opinion testimony.  The agent also generally has no personal knowledge of the alleged criminal activities.  In United States v. Marshall, 173 F.3d 1312 (1lth Cir. 1999), the court ordered a new trial, in part, because the case agent was unduly allowed to opine about gaps in the otherwise impeached testimony of an informant.  A successful objection will not only prevent this prejudicial evidence from coming in, but will point out to the jury that the government had no control over the informant during events that were central to the case – a fact that also ought to be brought out in cross-examination of the case agent.

Cross-Examination.  Obviously, when an informant testifies, whether at your client’s trial or sentencing, all information that discredits the informant should be brought out on cross-examination.  Pay careful attention to the preparation of your cross.  Remember that these witnesses have very strong motives to testify against your client, motives and reasons many of us could never appreciate.  Their testimony is not presented to help your client; rather they are there only to help convict your client.  News stories on acquittals often cite the jury’s rejection of the testimony of an informant as the main reason for the verdict.  Jurors credit defense counsel’s ability to establish that the informant had a criminal history, was promised a break on outstanding charges or a shortened stay in prison in exchange for his or her testimony, or was paid for each felony conviction obtained through his or her testimony.

Recognize that the government is willing to buy testimony, with money or with freedom.  Jurors can be uncomfortable with the idea that on one day the government says that the informant is a criminal who has violated the trust of the public and on the next day  the government says that person has been cleansed.  This about-face should be clearly demonstrated through cross-examination.  If you lay the foundation properly, the money paid to the informant will not be the only price the government pays for taking moral shortcuts to obtain a conviction.

Closing Argument.  Most jurors will be offended by the notion of buying someone’s trust, love, or friendship.  Remind them of that in your closing argument.

Jury Instructions.  Most circuits have pattern jury instructions that counsel should request.  For example, the Eleventh Circuit’s instruction states that a paid informer, or a witness who has been promised that he will not be charged or prosecuted, or a witness who hopes to gain more favorable treatment in his or her own case, may have a reason to make a false statement because he wants to strike a good bargain with the government.  Pattern Jury Instructions of the District Judges Association of the Eleventh Circuit, Criminal Cases, Special Instruction No. 1.1 (West 1985).

Other pattern instructions may be appropriate depending on the evidence concerning the informant.  For example, one instruction states that the motives of a substance abuser for testifying may be suspect, and that this person’s ability to accurately observe may have been impaired.  Consider writing your own modifications to the instruction where the pattern instruction is weak.

Sentencing.  Where your client’s sentence is based at all upon information provided by an informant, you should use the information obtained through discovery to discredit it, first through a detailed sentencing memorandum and then at the actual sentencing.  Doing this becomes particularly important when the information provided by the informant is not corroborated by other evidence. See United States v. Robinson, 164 F.3d 1068 (7th Cir. 1999); see also United States v. Corral, 172 F.3d 714 (9th Cir. 1999) (use of unreliable double hearsay violates due process).

9.05                         Jury instructions

The Model Criminal Jury Instructions for the District Courts of the Eight Circuit, Instruction No. 4.06 comt. (2000):

The giving of a special instruction on the credibility of an informer is within the discretion of the trial court.  United States v. Robertson, 706 F.2d 253, 255 (8th Cir. 1983).  The presence of substantial independent evidence in support of defendant's guilt is a factor entitled to considerable weight in determining whether the trial court abused that discretion in refusing to give an informer instruction.  Id.

Case law clearly identifies an informer as a witness who is a narcotics user or addict and who is testifying either to gain some advantage or to avoid some disadvantage, or who is paid on a contingency fee basis by the government.  See Government of Virgin Islands v. Hendricks, 476 F.2d 776, 779‑780 (3d Cir. 1973).  Informants include witnesses who are paid in cash or receive other benefits for their testimony in a specific case or on a continuing basis by the government.  United States v. Lee, 506 F.2d 111, 122‑23 (D.C. Cir. 1974). 

A witness who did not receive any pay or promises was held not to be an informer in United States v. Klein, 701 F.2d 66, 68 (8th Cir. 1983) and in Jones v. United States, 396 F.2d 66, 68 (8th Cir. 1969).  A reluctant witness who was told he would not be prosecuted if he told the truth was not considered an informer in United States v. Phillips, 522 F.2d 388, 391‑92 (8th Cir. 1975).  In all of these cases it was held that a cautionary instruction was not required. 

The Eighth Circuit has declined to adopt a per se rule requiring that an addict‑informant instruction be given on request.  Instead, the circumstances of each case determine the need for an addict‑informant instruction.  United States v. Hoppe, 645 F.2d 630, 633 (8th Cir 1981) (lists several factors obviating need for addict‑informant instruction); United States v. Shigemura, 682 F.2d 699, 702‑03 (8th Cir. 1982); United States v. Broyles, 764 F.2d 525, 527 (8th Cir. 1985).

The following are several issue specific sample informant jury instructions:

Accomplice – Informer – Immunity

Eleventh Circuit Pattern Jury Instructions, No. 1.1 (2003):

The testimony of some witnesses must be considered with more caution than the testimony of other witnesses.  For example, a paid informer, or a witness who has been promised that he or she will not be charged or prosecuted, or a witness who hopes to gain more favorable treatment in his or her own case, may have a reason to make a false statement because the witness wants to strike a good bargain with the Government.  So, while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the testimony of other witnesses.  United States v. Shearer, 794 F.2d 1545, 1551 (11th Cir. 1986) approved similar instruction.  See also United States v. Solomon, 856 F.2d 1572 (11th Cir. 1988)(holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given). 

Accomplice – Co-Defendant – Plea Agreement

Eleventh Circuit Pattern Jury Instructions, Instruction No. 1.2 (2003):

The testimony of some witnesses must be considered with more caution than the testimony of other witnesses. 

In this case the Government called as one of its witnesses a person named as a co-Defendant in the indictment, with whom the Government has entered into a plea agreement providing for the possibility of a lesser sentence than the witness would otherwise be exposed to.  Such plea bargaining, as it's called, has been approved as lawful and proper, and is expressly provided for in the rules of this Court.  However, a witness who hopes to gain more favorable treatment may have a reason to make a false statement because the witness wants to strike a good bargain with the Government.  So, while a witness of that kind may be entirely truthful when testifying, you should consider such testimony with more caution than the testimony of other witnesses. 

And, of course, the fact that a witness has plead guilty to the crime charged in the indictment is not evidence, in and of itself, of the guilt of any other person. United States v. Solomon, 856 F.2d 1572, 1578-79 (11th Cir. 1988) approved similar instruction.

Accomplice – Addictive Drugs – Immunity

Eleventh Circuit Pattern Jury Instructions, Instruction No. 1.3 (2003):

The testimony of some witnesses must be considered with more caution than the testimony of other witnesses.  For example, a witness who was using addictive drugs during the time he or she testified about may have an impaired memory concerning the events that occurred during that time.  Also, a witness who has been promised that he or she will not be charged or prosecuted, or a witness who hopes to gain more favorable treatment in his or her own case, may have a reason to make a false statement because the witness wants to strike a good bargain with the Government.  So, while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the testimony of other witnesses.  United States v. Fajardo, 787 F.2d 1523, 1527 (11th Cir. 1986) approved this instruction.  See also United States v. Solomon, 856 F.2d 1572 (11th Cir. 1988) (holding that, as a general rule, a cautionary instruction regarding the credibility of accomplices should be given).

Testimony of informer

Model Criminal Jury Instructions for the District Courts of the Eight Circuit, Instruction No. 4.06 (1997):

You have heard evidence that (name of witness) has an arrangement with the Government under which [he] [she] [gets paid] [receives (describe benefit)] for providing information to the Government.  [His] [Her] testimony was received in evidence and may be considered by you.  You may give [his] [her] testimony such weight as you think it deserves.  Whether or not [his] [her] information or testimony may have been influenced by [such payments] [receiving (describe benefit)] is for you to determine.

9.06                         Cooperation agreements

The United States Attorneys’ Manual at § 9‑27.620-630 states the rules for entering into cooperation agreements:

A.                  In determining whether, a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including:

1.         The importance of the investigation or prosecution to an effective program of law enforcement

2.         The value of the person's cooperation to the investigation or prosecution; and 

3.         The person's relative culpability in connection with the offense or offenses being investigated or prosecuted and his/her history with respect to criminal activity.

B.         This paragraph is intended to assist Federal prosecutors, and those whose approval they must secure, in deciding whether a person's cooperation appears to be necessary to the public interest.  The considerations listed here are not intended to be all‑inclusive or to require a particular decision in a particular case.  Rather they are meant to focus the decision‑maker's attention on factors that probably will be controlling in the majority of cases.

1.         Importance of Case.  Since the primary function of a Federal prosecutor is to enforce the criminal law, he/she should not routinely or indiscriminately enter into non‑prosecution agreements, which are, in essence, agreements not to enforce the law under particular conditions.  Rather, he/she should reserve the use of such agreements for cases in which the cooperation sought concerns the commission of a serious offense or in which successful prosecution is otherwise important in achieving effective enforcement of the criminal laws.  The relative importance or unimportance of the contemplated case is therefore a significant threshold consideration.

2.         Value of Cooperation.  An agreement not to prosecute in return for a person's cooperation binds the government to the extent that the person carries out his/her part of the bargain.  See Santobello v. New York 404 U.S. 257 (1971); Wade v. United States, 504 U.S. 181 (1992).  Since such an agreement forecloses enforcement of the criminal law against a person who otherwise may be liable to prosecution, it should not be entered into without a clear understanding of the nature of the quid pro quo and  a careful assessment of its probable value to the government.  In order to be in a position adequately to assess the potential value of a person's cooperation, the prosecutor should insist on an "offer of proof" or its equivalent from the person or his/her  attorney.  The prosecutor can then weigh the offer in terms of the investigation or prosecution in connection with which cooperation is sought.  In doing so, he/she should consider such questions as whether the cooperation will in fact be forthcoming, whether the testimony or other information provided will be credible, whether it can be corroborated by other evidence, whether it will materially assist the investigation or prosecution, and whether substantially the same benefit can be obtained from someone else without an agreement not to prosecute.  After assessing all of these factors, together with any others that may be relevant, the prosecutor can judge the strength of his/her case with and without the person's cooperation, and determine whether it may be in the public interest to agree to forego prosecution under the circumstances.

3.         Relative Culpability and Criminal History.  In determining whether it may be necessary to the public interest to agree to forego prosecution of a person who may have violated the law in return for that person’s cooperation, it is also important to consider the degree of his/her apparent  culpability relative to others who are subjects of the investigation or prosecution as well as his/her history of criminal  involvement.  Of course, ordinarily it would not be in the public interest to forego prosecution of a high‑ranking member of a criminal enterprise in exchange for his/her cooperation against one of his/her subordinates, nor would the public interest be served by bargaining away the opportunity to prosecute a person with a long history of serious criminal involvement in order to obtain the conviction of someone else on less serious charges. These are matters with regard to which the attorney for the government may find it helpful to consult with the investigating agency or with other prosecuting authorities who may have an interest in the person or his/her associates.

It is also important to consider whether the person has a background of cooperation with law enforcement officials, either as a witness or an informant, and whether he/she has previously been the subject of a compulsion order under 18 U.S.C. §§ 6001‑6003 or has escaped prosecution by virtue of an agreement not to prosecute.  The information regarding compulsion orders may be available by telephone from the Immunity Unit in the Office of Enforcement Operations of the Criminal Division. 

USAM § 9‑27.620. 

A.         In entering into a non‑prosecution agreement, the attorney for the government should, if practicable, explicitly limit the scope of the government's commitment to: 

1.         Non‑prosecution based directly or indirectly on the testimony or other information provided; or 

2.         Non‑prosecution within his/her district with respect to a pending charge, or to a specific offense then known to have been committed by the person.

B.         The attorney for the government should exercise extreme caution to ensure that his/her non‑prosecution agreement does not confer "blanket" immunity on the witness.  To this end, he/she should, in the first instance, attempt to limit his/her agreement to non‑prosecution based on the testimony or information provided.  Such an "informal use immunity" agreement has two advantages over an agreement not to prosecute the person in connection with a particular transaction:  first, it preserves the prosecutor's option to prosecute on the basis of  independently obtained evidence if it later appears that the person's criminal involvement was more serious than it originally appeared to be; and second, it encourages the witness to be as forthright as possible since the more he/she reveals the more protection he/she will have against a future prosecution.  To further encourage full disclosure by the witness, it should be made clear in the agreement that the government's forbearance from prosecution is conditioned upon the witness's testimony or production of information being complete and truthful, and that failure to testify truthfully may result in a perjury prosecution.