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With his case going down the sewer, Marvin Washington copped a plea and thought he was done. It was 2002, in the middle of a federal trial on charges that the felon was caught with a gun. The government had put on its case, but Washington’s key witness, Dr. Bruce Barker, was impeached on the stand. So Washington pleaded guilty, agreeing to more than eight years in federal prison. Although he believed that was the end of the story, the government wasn’t done with him yet. Prosecutors brought Washington back from prison and are trying to make him testify in front of a grand jury that is apparently exploring a perjury case against Barker. The doctor has not been indicted so far, but Washington is in trouble for refusing to talk. Prosecutors want him held in contempt, but his attorney, David Anderson, a former assistant U.S. attorney who’s now a partner at Pillsbury Winthrop, said Washington shouldn’t be forced to talk to grand jurors. Anderson believes the threat of contempt is tantamount to breaking the plea deal — a point some experts dispute. The government is also going after Washington’s ex-lawyer’s files, and is trying to seal the case. “I have no argument generally with the government compelling testimony. The difference here is that the government has an agreement with this guy,” Anderson said. “If they wanted something from Marvin Washington, they should have asked for it in the plea agreement.” The matter goes in front of U.S. District Judge Susan Illston today. Anderson believes the case has ramifications for anyone who works in the federal criminal system, where the vast majority of cases are resolved with plea agreements. If the government succeeds in getting Washington to testify, Anderson said, that could chill both prosecutors’ and defense attorneys’ ability to make future deals. “The government has also breached the plea agreement by filing these contempt charges, by threatening yet further charges, and by demanding that Washington release attorney files,” Anderson wrote in court papers. Prosecutors declined to comment on the case. Anderson’s opposition papers rely, in part, upon an unpublished 1995 decision by the Ninth Circuit U.S. Court of Appeals, United States v. Singleton, 47 F.3d 1177. Anderson said he’s allowed to cite it because the government was a party. Singleton concerned a drug dealer who pleaded guilty but didn’t want to cooperate with the government when he was called before a grand jury after his conviction. The district and circuit courts backed up the defendant, saying that even though it wasn’t written into the agreement, oral discussions indicated the defendant would not cooperate. “The Ninth Circuit warned the government that if it wanted to take testimony from a defendant who was entering into a plea agreement, the government should tell the defendant in clear, unambiguous terms,” Anderson wrote in court papers. But George Fisher, a professor of criminal law at Stanford Law School, said Washington’s situation sounds different because, in Singleton, the district court actually heard prosecutors and defense attorneys talk about how the defendant would never cooperate. Anderson said that the government should have told Washington it would eventually want him in front of the grand jury. Instead, the plea agreement only requires he testify about his assets. He should not be compelled to talk about anything else, and certainly not about Barker, Anderson said. But Fisher disagreed, saying the onus was on Washington. “The fact that a plea agreement says he will cooperate in area A doesn’t mean he has the right to not cooperate in area B,” Fisher said. When called in front of the grand jury, Washington invoked his Fifth Amendment right against self-incrimination. The government then granted him immunity . That will make it tough for Anderson in front of Judge Illston, said Rory Little, a Hastings College of the Law professor and former federal prosecutor. “Once you have immunity, you have to testify,” Little said. “Plea agreements are like contracts. It’s �buyer beware.’” Even so, Little agrees with Anderson that Washington’s experience could have a negative effect on future plea deals. But that’s not an argument you make to a judge, Little said. Rather, Anderson should tell that to the U.S. attorney’s office. The government is trying to seal the contempt proceedings scheduled to go in front of Judge Illston. In his brief, Anderson accuses prosecutors of trying to “hide its breach of the plea agreement by conducting secret � proceedings.” The government is also demanding documents from Washington’s attorney in the 2002 trial, San Francisco solo V. Roy Lefcourt. Lefcourt said he would oppose any attempt to get at his files. Washington ended up in federal court when he was arrested after a shooting in the Holly Court projects in San Francisco. Lefcourt said evidence suggested Washington was the intended victim. The government characterized Washington as someone “whose criminal history clearly demonstrates a decades-long commitment to gang membership, crack dealing and other crimes,” according to court files. During the trial, a security guard testified he saw Washington with a gun. But Dr. Barker, a surgeon at Kaiser Permanente and director of a men’s drug rehab program who has known Washington for 20 years, said he saw Washington with a cell phone, not a gun. After the government confronted Barker with evidence that he was elsewhere at that time and questioned him about why he was paying Lefcourt for Washington’s defense, Washington stopped the trial and pleaded guilty. Lefcourt said that if any errors occurred, they probably had more to do with Barker’s confusion about his hectic schedule than anything else. Cristina Arguedas, who represents Barker in the grand jury investigation, said she doesn’t think the perjury case will go anywhere. “There’s a lot of reasons to respect and admire Bruce Barker and I think everyone, the government included, knows that,” said Arguedas of Arguedas, Cassman & Headley in Emeryville. But that won’t necessarily help Washington at this point. Prosecutors didn’t demand Washington’s testimony because doing so would have made the plea less attractive to him, Anderson said. “That’s what [defendants] get in a plea agreement. They get finality.”

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