## Facts

- In three separate Southern District of Florida prosecutions, defendants moved pretrial to suppress expected testimony from alleged co-conspirators or co-participants who had entered plea/cooperation agreements with the United States.
- In the Lowery case, Lowery and others were indicted for cocaine offenses, including conspiracy to possess and import cocaine.
- Lowery proceeded to trial; co-defendants pleaded guilty under agreements requiring “truthful and complete” cooperation and testimony in proceedings including trial.
- In exchange, the government dismissed other charges and agreed it might, in its discretion, seek a reduced sentence based on substantial assistance (including through a U.S.S.G. § 5K1.1 motion), while warning that false testimony would forfeit any recommendation and that the court was not bound to reduce the sentence.
- In the Burke and Ward/Mathis prosecutions (bank fraud and narcotics offenses), the government used similar cooperation agreements to secure testimony from participants.
- The district court granted suppression in each case, ruling that exchanging sentencing consideration for testimony (1) violated 18 U.S.C. § 201(c)(2) and (2) violated Florida Bar Rule 4-3.4(b); the United States filed interlocutory appeals, which were consolidated.

## Issues

1. Whether cooperation agreements offering sentencing consideration in exchange for truthful testimony violate 18 U.S.C. § 201(c)(2).
2. Whether such agreements violate Florida Bar Rule 4-3.4(b) and, if so, whether that requires suppression of the resulting testimony in federal criminal cases.

## Decision

- The Eleventh Circuit reversed the suppression orders and remanded.
- The court held that 18 U.S.C. § 201(c)(2) does not bar the United States from using plea/cooperation agreements that contemplate possible sentencing reductions in return for truthful testimony.
- The court held that a state professional-conduct rule does not control admissibility in federal criminal trials and does not justify suppressing cooperating-witness testimony obtained through federal plea agreements.

## Legal Principles

- 18 U.S.C. § 201(c)(2) does not criminalize or prohibit federal prosecutors from offering cooperation-based sentencing consideration through authorized federal mechanisms in exchange for truthful testimony.
- Federal law and the federal sentencing framework contemplate cooperation-for-leniency arrangements, and statutes should be read to avoid treating established, congressionally recognized practices as criminal absent clear congressional direction.
- State attorney ethics rules are disciplinary standards and do not supply a basis to exclude evidence in federal criminal proceedings.
- The reliability concerns raised by cooperating-witness incentives are addressed through disclosure, cross-examination, and appropriate jury instructions rather than categorical suppression.

## Conclusion

The Eleventh Circuit vacated suppression orders that had barred testimony from cooperating witnesses, holding that federal cooperation agreements exchanging possible sentencing benefits for truthful testimony do not violate § 201(c)(2) and are not rendered inadmissible by Florida’s professional-conduct rule.


United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999)