Baiting the hook with small fry

WASHINGTON -- There is a saying around federal courthouses these days about an emerging strategy of prosecutors: They will only try to harpoon a great whale after first netting a few minnows.

In other words, prosecutors often build big cases against major criminals by first indicting people on the periphery, people whose misdeeds might otherwise have been of little interest to law enforcement. Prosecutors then threaten the minor players with jail in an attempt to persuade them to flip, the courthouse jargon for becoming a government witness.

The ultimate target may be a drug kingpin, a mob boss or a garden- variety white-collar criminal. The squeeze-and-flip strategy is not new, but over the last decade it has quietly become a favorite tool of federal prosecutors. First used to get at high-level drug dealers, it has since been applied to a range of crimes and has spread to state courts. But as the chief strategy of Kenneth Starr, the independent counsel investigating President Clinton, the practice of squeezing the little people has been moved into the spotlight. And the public spectacle -- a mother forced to testify about her daughter's sex life, a wife charged with crimes to put pressure on her husband -- is prompting some public soul-searching about when and whether the end justifies the means. "No responsible prosecutor should be bringing charges that are borderline or not really what you do against somebody else in order to pressure people to testify," said Gerard Lynch, a law professor at Columbia University who was a federal prosecutor in New York City. "It happens every day in the system. Somebody who might have skated if he was a solo act will be thrown into the indictment if there is some hope that he will crack and give you information about other, more important people." The tactic emerged on a wide scale after Congress imposed sentencing guidelines in 1987 to toughen and standardize penalties. The guidelines greatly reduced the sentencing discretion of judges and, by default, transferred it to prosecutors. Virtually the only way left for defendants to shorten their sentences was to cut a deal with prosecutors, who could either reduce the charges or, after conviction, file a letter with the court noting the defendant's cooperation. "The sentencing guidelines were really crafted to encourage this kind of carrot-and-stick approach," said Michael Chertoff, former U.S. attorney in New Jersey who was the Republican chief counsel of the Senate Whitewater Committee. "It grew out of narcotics cases in the 1980s when prosecutors would get people who were selling the drugs on the street to turn on people who were importing the drugs," he said. "But it has been imported into the white-collar cases." And in white-collar cases, the lower-level people are no longer street dealers. They are lawyers, real estate agents and accountants. "The federal criminal law is so broad now that any person can be found to have committed some crime," said Gerald J. McMahon, a criminal lawyer in Manhattan and a former state prosecutor. McMahon pointed to the case of a client, Albert Pacione, who was indicted for notarizing a deed that was later used as collateral for a loan. The prosecutor was actually trying to build a loan-sharking case against a mobster. Pacione, a county prosecutor in upstate New York, notarized documents in his spare time. He claimed he had no idea what the deed was to be used for and was eventually acquitted. In another case, Carlos Rodriguez, a Miami real estate agent, was charged with harboring two suspected drug traffickers in a house he owned in Fort Lauderdale. He refused to plead guilty. Prosecutors tried him twice. The first jury deadlocked and the second acquitted him. "They didn't need my guy at all," said Richard Sharpstein, the lawyer for Rodriguez. "They just wanted him to testify. He didn't know anything. But they went after this guy like he was Sammy the Bull." Some lawyers complain that the temptation to lie is too great for defendants caught up in such cases. If they have no incriminating information to offer, then they have no power to bargain for a reduced sentence. "Often times, the cases that are brought are not legitimate," said Jeffrey Weiner, a past president of the National Association of Criminal Defense Lawyers. "The people who are threatened into cooperating will say whatever the prosecutors expect them to say to reduce their sentences." In a Miami drug case in 1996, inmates in federal prison practically lined up to testify. The defendants were charged with importing 75 tons of cocaine from 1978 to 1991, and the case was so important to prosecutors that they arranged for 27 prisoners to testify. Inmates call it "getting on the bus." One inmate, Nestor Galleano, wrote in a letter to a friend that prosecutors had told him what to say. "They made me an offer I couldn't refuse," Galleano wrote. "Are you with us or against us? Imagine another indictment for racketeering, or organized crime, with a minimum of life, which means 25 years or more, and me without a lawyer, broke and more cooked than a fish in a pan." Defense lawyers used the letter at the trial, saying that it bolstered their argument that prisoners concocted stories to get out of jail. Both defendants were acquitted. The twists and turns of Starr's investigation of Clinton have snared some major and minor players, most recently Webster Hubbell, a former Justice Department official, and Susan McDougal, a former business partner of the Clintons. Hubbell said he has no information to offer Starr. McDougal served 18 months in prison rather than cooperate. Starr also charged Hubbell's wife and several associates -- the smaller fish who could presumably flip against Hubbell. But sometimes, hardball tactics solidify the resolve of the accused. "They think by indicting my wife and my friends that I will lie about the president and the first lady," Hubbell said. "I will not do so. I want you to know that the office of independent counsel can indict my dog, they can indict my cat, but I'm not going to lie about the president."

Copyright 1998
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