The publicity attendant to a witness's recantation of an earlier inculpatory statement, where the recantation is believed to be in accordance with the facts, has led the prosecutor to support the defense motion to vacate the conviction of those wrongfully incarcerated. See Ronald Sullivan, “How Brooklyn's Conviction Review Unit Became a National Model,” Kings County Politics, Aug. 25, 2017; Andrew Denney, “Queens DA Firm in Refusal to Open Conviction Review Unit,” New York Law Journal, March 1, 2017; “Manhattan District Attorney Creates Wrongful Convictions Unit,” Innocence Project.

But what of a situation where the sole government witness recants but the prosecution does not believe the recantation? This article deals with the parameters of what a federal prosecutor in a criminal case may do when a witness it must call on a post-conviction hearing or trial will withdraw an earlier inculpatory statement. In many ways, the article serves as a primer to prosecutors and to defense lawyers, who also may find it necessary to call a hostile witness, knowing that the witness will reject what he/she has earlier said.

The Facts

Joe Lombardo was considered by government agents to be a major figure in organized crime within the judicial district of New Jersey. Trying as hard as they could, the government found only one witness apparently willing to incriminate Lombardo—Marylou Sicardo, who owned a restaurant in Jersey City. Four FBI agents were dispatched to interview her at her place of business. The agents claim that she told them that Lombardo had lent her money at unlawful rates of interest and threatened her were she not to return the money as promised. In the agents' view, he had committed crimes involving extortionate credit transactions violative of 18 U.S.C. §§893, 894.

The agents, after interviewing her, took her to the U.S. Attorneys' office. She reiterated what she had said to the agents. The FBI interview notes (302s) prepared 10 days after the interviews recorded what she had said to them and later to the prosecutor. The AUSA too wrote a memo to file in which he recorded all that she had said to him and his AUSA colleague. Two FBI agents appeared before the grand jury and testified under oath to the interviews, and what had been said by Sicardo. The court has held that a grand jury indictment can be based wholly on hearsay evidence. Costello v. United States, 350 U.S. 359 (1956); see also F.R.E. 1101(d)(2); but see United States v. Ruggiero, 934 F.2d 440, 447 (2d Cir. 1991) (hearsay evidence may invalidate an indictment if the grand jury is misled as to the hearsay nature of the proof or “there is a high probability that the defendant would not have been indicted had only non-hearsay evidence been used.”). There was no infirmity in the agents' testimony in Lombardo.

Defense counsel met with her three weeks before trial, and she said that she had felt “bombarded” by the agents' questioning. She was “scared” when they interviewed her and she told the agents what they apparently wanted to hear. She told the defense that Lombardo was a patron of her restaurant, and had not extended any loan to her. She said that, in her view, Lombardo was not guilty of the charges that had been brought against him.

Defense counsel prepared a statement, which Sicardo signed, setting forth that she would not implicate Lombardo. A copy of her written statement was sent to the prosecutor's office two weeks before the start of trial. She resisted re-interview. There was no proof that the defense had acted improperly. The prosecutor told defense counsel he had no concern, given what he considered his wealth of proof.

At trial, the government called as its sole witness, Sicardo, who recanted her earlier statement to government agents and to the prosecutor. Sicardo testified in a manner as set forth in her written statement. The court addressed the prosecutor in this reconstructed way:

THE COURT: What, Mr. Prosecutor, do you intend to do.

AUSA: We have a wealth of information with which we can impeach this witness by reference to the grand jury testimony of the FBI agents, for it was given under oath, as well as the statements made to my colleague in the Office.

THE COURT: If that is your intention, I will not allow further inquiry of Ms. Sicardo. I will not allow you to call any witness to what she said during the interview process, or what was said by the agents during the grand jury testimony, and certainly not what she had said to your colleague.

Do I hear a motion from the defense?

DEFENSE: I move for a judgment of acquittal under F. Crim. Rule 29(a).

THE COURT: I grant defense counsel's motion for judgment of acquittal, and the bail is discharged too.

The AUSA and the four FBI agents stood stunned. How did this happen? Meanwhile, the defense gathered its papers, left the courthouse, and sped away with a happy client.

The Applicable Principles 

The court has wrestled with the problem of the hostile witness and what may be done since at least as early as 1928 in Kuhn v. United States, 24 F.2d 910 (9th Cir. 1928), a prosecution for conspiracy dealing with arms to be sold to China in violation of law. The prosecution called as a witness Lee Yuk, who was interrogated with regard to a material incident; however, from a few answers, it became apparent either that he had no knowledge or was unwilling to testify against the defendant. The U.S. Attorney questioned the witness with respect to a statement previously made to government agents. The government attorney, after being told the procedure was improper, on his own motion withdrew the question and answer from consideration by the jury. In affirming the conviction, the Court of Appeals held that a party is not to be denied the right to attempt to prove its case by a hostile witness, but it may not do so under the guise of impeachment. With respect to a hostile witness, where there is good reason he will decline to testify as desired and when in fact he so declines, the impeachment testimony can be used, but it can never be more than the cancellation of the adverse answer by which the party is surprised. Of course, in Lombardo, the government was not surprised

The court cites no authority, and as we will see, it is infirm in several respects.

United States v. Michener, 152 F.2d 880 (3d Cir. 1945) too was a conspiracy case, charging that false claims against the U.S. Maritime Commission were submitted for repair work done on 12 ships in violation of the Lend Lease Act, 22 U.S.C. 441 et seq. The government was permitted to call government auditors, who testified that they were told by persons not on the witness stand that false claims had been made. The government called as a witness a person believed to know in what respects the false claims were made. The government was surprised. It proceeded to show a prior inconsistent statement. The trial judge instructed the jury following a direction to withdraw the witness that it was to pay no attention to anything to which the witness had testified. The procedure, wrote the Court of Appeals, following the government's attempt to impeach its own witness, could question him on prior contradictory statement, “this was within the bounds of the discretionary power of the trial judge” (citing United States v. Maggio, 126 F.2d 155 (3d Cir. 1942)). But this was not the procedure adopted by the trial court in Lombardo, for the court barred even inquiry as to the prior inconsistent statement. This was the product of a voir dire, which the court was wise enough to hold.

In Michener, the court held that the prior inculpatory statement could be used as long as the witness was given an opportunity to explain away the apparent contradictions, “if such recollection be possible.” We will learn that this is not the approach commonly taken by the courts, which would not, as a general matter, even allow the prior inculpatory statements to be put to the witness in front of the jury.

In United States v. Dobbs, 448 F.2d 1268 (5th Cir. 1971) and United States Coppola, 479 F.2d 1153 (10th Cir. 1973), the Courts of Appeals approach the modern rule. Dobbs, without discussion, holds that cross-examination of a witness by reference to a co-defendant's statement violated the rules of evidence and required reversal. Coppola was a case where the prosecution had claimed to be surprised, and was permitted to cross-examine a witness it called, where he refused to testify “as expected.” There was no surprise in Lombardo, and the court correctly took the position, that being so, the witness could not be cross-examined. Dobbs had it right, Coppola had it wrong.

The court held in Lombardo that there was no need to give Sicardo a chance to explain the contradiction—it had to rely on the fact that this was a one witness case, as far as the prosecution is concerned. Only the word of Sicardo could have helped the prosecution.

Every Circuit to consider this question post-1975 has ruled similarly, adopting the principle in United States v. Morlang, 531 F.2d 183 (4th Cir. 1975). See cases cited in United States v. Hogan, 763 F.2d 697 (5th Cir. 1985). The Morlang rule is the starting point for the analysis of modern principles relating to the hostile witness who recants earlier inculpatory testimony.

Morlang was convicted of conspiracy to bribe. The defense argued on appeal that the district court erred in permitting the prosecution to present to the jury, for purposes of impeachment, an out-of-court statement by its own witness as to Morlang's guilt. The court stated that it recognized that the rule prohibiting impeaching one's own witness had long been discredited. F.R.E. 607. The Circuit Court stated that impeachment by prior inconsistent statements may not be employed as a mere “subterfuge” to get before the jury evidence not otherwise admissible. If that be the “prime purpose,” then a prosecutor may be restrained from even asking questions which he believes will impeach. Like many principles, the prosecution as well as the defense must be familiar with the Morlang rule and use the right language, and not argue as the prosecution did in Lombardo that it wants to impeach the witness or refresh recollection. (“When I use a word, it means just what I want it to mean—neither more nor less.”—Lewis Carroll, Through the Looking Glass (1872).)

In United States v. Shoupe, 548 F.2d 636 (6th Cir. 1977), the Circuit Court had to decide whether the district judge committed reversible error by permitting the prosecutor during direct examination, to use leading questions which incorporated the substance of the witness's prior unsworn statements inculpating the defendants. The trial court permitted the testimony and allowed the hostile government witness to be impeached by reference to the unsworn statements he had made.

In reversing the conviction, the court wrote that it found no precedent sanctioning the recitation in the presence of the jury unsworn statements attributed to a government witness, which were recorded in an unverified document, i.e., the agent's 302s, which inculpated the defendants.

Recall in Lombardo, the government offered to call the prosecutor's colleague as a witness to the inculpatory statements made by Sicardo. This would be prejudicial error, for it would place the credibility of the prosecution office before the jury. United States v. Puco, 436 F.2d 761 (2d Cir. 1971).

The Second Circuit in United States v. DeLillo, 620 F.2d 939 (2d Cir. 1980), recognized the authority quoted in Morlang, Shoupe and Hogan as authoritative. However, obviously aware of the rule, the AUSA for the EDNY argued that its hostile witness was not used as a subterfuge with the primary aim of disclosing to the jury a prior inculpatory statement which would impeach the witness. The Circuit Court ruled that “the propriety of impeachment where it is 'necessary to alleviate the harshness of subjecting a party to the mercy of a witness who is recalcitrant or may have been unscrupulously tampered with.'”

In United States v. Zackson, 12 F.3d 1178 (2d Cir. 1993), the court dealt with an appeal by co-defendant Lagatta. Zackson had earlier pleaded guilty. The government intended to call Zackson, whom the voir dire disclosed would deny all recollection of the disputed events, even though he had made out of court statements inculpating the defendant. The defense argued that under the guise of refreshing his recollection, the government would put before the jury all of Zackson's prior statements implicating Lagatta. The Circuit Court found, following the denial of Lagatta's motion, that the prosecutor's use of Zackson's prior statements to the FBI agents should not have been permitted. What made the error more egregious was that the prosecutor stressed to the jury in summation that it could rely on the probative value of the earlier out-of-court statements of Zackson. “We are left with no doubt, therefore, that the government called the witness solely to get before the jury inadmissible hearsay that implicated Lagatta. The prosecutor's explanation that he was merely attempting to refresh the witness's recollection was in our view, wholly unacceptable.”

Unfortunately for Lagatta, there was an abundance of other evidence that made the wrongful procedure harmless error. In Lombardo there was not such other inculpatory proof. The defense thus was not confronted with an abundance of other evidence.

There is always the right of a party to refer to F.R.E. 403, and where the proof is close, a court is likely to prefer to permit the proof. See, for example, Zackson, supra.

Defense counsel must also be familiar with United States v. Buffalo, 358 F.3d 519 (8th Cir. 2004). Applying the Morlang rule, the district court held that the defendant was barred from impeaching or using as substantive proof prior statements of a hostile witness by reference to statements the witness had earlier made out of court confessing to the crime and stating that the defendant was not criminally involved. The defendant proffered that it intended to call several witnesses to testify that they had heard the confession. The district court, on a pretrial motion, held that this would be a pretext to get otherwise inadmissible hearsay proof before the jury, obviously relying on rule in Morlang.

The Court of Appeals, however, disagreed, holding that the admissibility of this testimony was subject to the balancing test of FRE 403, and when a criminal defendant attempts to impeach his own witness to show innocence, the impact of the testimony carries less prejudice than does a Morlang occurrence, for the reason that the statement does not put at risk the defendant's liberty by a conviction founded on out of court statements not subject to confrontation or cross-examination. The district court abused its discretion, so ruled the appellate court, by not allowing the impeachment.

Conclusion

In the well-regarded third edition of his treatise on the Federal Rules of Evidence in February 2019, Prof. Paul Rothstein (Georgetown Univ. School of Law), makes clear that even though it was decided in 1975, the Morlang rule remains a sound and authoritative holding.

Recantation is not a make-weight to freedom or acceptance of a party's proffer. It may not be admissible if the prosecution or defense fails in its argument to the court to use the language of Morlang. Leading questions may not even be available. A party may be so certain of the wealth of proof that it has that it seems to go without saying that a hostile witness, one who recants, may be subject to impeachment, refreshment of recollection, or leading questions. All of this might be so if the right language is used in an argument to the court, but counsel may find him/herself surprisingly barred by not recognizing the parameters set forth in Morlang.

Jay Goldberg was appointed by Attorney General Robert F. Kennedy as acting U.S. Attorney for the Northwest District of Indiana. He served as Special Attorney and counselor to the U.S. Department of Justice and as an assistant District Attorney, New York County. Attorney Alex S. Huot contributed to the publication of this article.