Leading federal criminal lawyer Michael Leonard addresses the issue of whether a federal criminal defendant can be compelled to testify in a co-defendant’s trial after pleading guilty, despite asserting his Fifth Amendment rights. The short answer is yes. 18 U.S.C 6003 (“section 6003’) provides as follows:
(a) in the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title.
(b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any designated Assistant Attorney General or Deputy Assistant Attorney General, request an order under subsection (a) of this section when in his judgment—
(1) the testimony or other information from such individual may be necessary to the public interest; and
(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.
Oftentimes, such a move or motion by the Government is not necessary because, as part of his plea agreement, the co-defendant has already agreed to provide continuing assistance to the Government, including testifying at the trial of his co-defendants. Accordingly, the Government often delays sentencing that co-defendant until after the trial of the defendant has been completed, in an attempt to ensure the co-defendant’s trial testimony. That is a particularly effective tactic in light of the fact that it incentivizes the co-defendant to testify at trial, knowing that the Government will go to bat for him at sentencing – in part for providing continuing assistance by way of such trial testimony.
The application of section 6003 was recently tested in the trial of United States v. Peoples, 19 CR 418-4 (United States District Court, Northern District of Illinois) (Judge Gettleman). In that case, two of the co-defendants had already pled guilty prior to the defendant’s case proceeding to trial. One had already been sentenced, and one had not. The Government sought to compel the testimony of those co-defendants by way of the assertion of the application of section 6003. Nonetheless, the co-defendants refused to testify at trial by attempting to continue to assert their Fifth Amendment rights. The trial judge found that, because of the language of section 6003, the co-defendants were not entitled to assert their Fifth Amendment rights. The trial court reached that conclusion, even though one of the co-defendants had not yet been sentenced, and thus arguably appeared to be “in jeopardy.” Ultimately, the trial judge held the co-defendants in criminal contempt, indicating that they would face a punishment, including possibly custodial time, in light of their refusal to comply with the court’s Order requiring them to testify at trial in the defendant’s case. So, even though the co-defendants avoided testifying at the trial of the defendant, despite the language of section 6003, it will likely not be without consequences to them.
Written by Michael Leonard
October 29, 2022