United States v. Robert Ware, Jr.

episode, conspiracy or not a criminal whether long charged, independent evi and as to that

dence ties scheme. See Krohn, States v. (10th Cir.1978) (finding

1386-87 the district properly prior admitted bad acts fraud

participants a mail scheme indepen- particular

other defendants because particular

dent evidence connected defen- scheme). government pre-

dants to ample proof regarding the

sented existence

of a scheme to defraud Blue and also Cross Toney’s participation in the scheme. Rule

404(b), therefore, does not bar the admissibil-

ity Petty testimony, and Reardon’s

district court abuse did not its discretion

admitting probative their for its

value.

III. CONCLUSION above,

For all of the reasons stated we Toney’s

AFFIRM conviction as set forth in judgment of the district court. America,

UNITED STATES of

Plaintiff-Appellee, WARE, Jr., Defendant-Appellant.

Robert

No. 97-5771. Appeals,

United States Court of Circuit.

Sixth

Argued Sept.

Decided Dec. briefed), (argued L. Roden and

Michael Nashville, Attorney, Office of Tennes- see, Plaintiff-Appellee. for WELLFORD, NORRIS, and Before: BATCHELDER, Judges. Circuit BATCHELDER, J,, opinion delivered the court, E. ALAN NORRIS which WELLFORD, JJ., joined, with and 425-427), WELLFORD, (pp. also J. concuiring delivering separate opinion. a OPINION BATCHELDER, Judge. Circuit Ware, appeals Robert Jr. his Defendant conspiracy conviction for to distribute and possession cocaine with intent distribute conspiracy possession to distribute and and intent cocaine to distribute base viola- tion of U.S.C. and unlawful distri- possession and to distrib- bution with intent in violation of 21 ute cocaine U.S.C. 841(a)(1). reasons, following For the we AFFIRM conviction. Ware’s Background I. April

'In officers of the Nashville up Department Metro Police followed anonymous complaint being cocaine was a at 211 Treutland sold from house Street house, which was surrounded Nashville. fence, by a chain link had barred windows doors, security guarded metal and was well pit a and a bull as rottweiler the front and back of patrolled lookouts who A informant the house. confidential Department made a series of Metro Police purchases through the back metal controlled house; although security door house, he was informant never entered inside, and, occasions, to see on various able table, the kitchen a observed firearm on appearing large amount of substance cocaine, people five to ten inside the surveillance identified one house. Police Ware, the house as Robert people inside in this case. the defendant testing indicated that infor- After field cocaine, briefed), purchases were the officers Cooper (argued mant’s David L. warrant, they Goodlettsville, exe- Cannon, Cooper, & obtained search Cannon Tennessee, The officers seized Defendant-Appellant. April on cuted cocaine, drug paraphernalia, January crack grand jury various On a federal ammunition, guns, numerous silencer and a returned seven count indictment proof among bullet vest. Robert Ware Ware, Jr., Sims, Robert Michael Norman premises the individuals found Pinkston, Perry charging and Michael them Although charges arrested. state were filed conspiracy with to distribute and co- cocaine occupants him and the other grand caine jury base. The federal returned house, was not Ware detained. superseding a indictment which added Jac- queline Woods as a defendant to four July special agent On with seven counts. Drug Agency, Enforcement by a assisted Nashville Metro Police task district evidentiary court an conducted officer, force Phillips arrested and Shaketa hearing on March 1997 on Ware’s motion Curry Ruchelle at the Nashville Internation- 15,1994, suppress April evidence on seized Airport, al having received information that from 211 Treutland Street. The de- matching Phillips’s two individuals Cur- and proceeded nied the motion and the case to a ry’s descriptions arriving at the trial, trial. At Phillips both Shaketa and airport quantity Phillips with cocaine. Curry Ruchelle testified. Each acknowl- Curry search, and consented to and inside edged that she by had been indicted a federal bag by Phillips, carried found officers grand jury following July her arrest in packages four powder, white later deter- plea agreement and had entered into with approximately mined to be four kilograms of government; acknowledged each that un- office, cocaine. From the DEA’s airport plea agreement der her one of the two counts Phillips phone called a police number which of the indictment was dismissed and she girlfriend found was listed to the defendant’s leniency sentencing received in in return for at 214 Following Treutland Street. then- pleading guilty her the remaining count of arrest, Phillips Curry began cooperating and testifying indictment and at Ware’s trial. with the and identified asWare Phillips testified that Ware was known ringleader importation of a cocaine and “Low,” operation living street name working distribution while at first out of the then, Street, fortress at 211 Treutland she Treutland and had after witnessed the raid, April selling address, out of 214 Treutland. cocaine from that and that Low in charge was of the transactions from Through investigation, including further 211 Treutland. further She to sell- admitted operation targeting undercover a woman ing traveling cocaine and to to California at Woods, Jacqueline named the officers were Ware’s direction six times between March Phillips’s able Curry’s to corroborate and July 1994 and purchase 1994 to cocaine. She about information Robert Ware’s involve- accompanied was trips on those she —which ment in the operation. cocaine The officers in recorded her date numerous discovered, book — example, for that Ware sent had individuals, including April, Jacque- Ware in various individuals on to California numerous Woods, line and Curry. Phillips Ruchelle separate to purchase occasions cocaine for purchasing recalled approximately one kilo- him from an individual named Michael Sims. gram on her trip, first “two or kilo- three” Woods, Angeles en route to purchase Los grams on each trips, of the next about three drugs $54,000 for Ware with and a man kilograms trip, on the fourth and “two or Pinkston, named Norman apprehended was kilog-ams” three on fifth. trip, On each airport July 6, at the Atlanta 1994. She Phillips Sims, Ms. met with Michael known name, was for giving arrested a false where- Money, money packed who took the upon Nashville, Ware, called she Ware in Ware, Phillips’s bag by Phillips lawyer Shaketa and a named Dennis Hughes Phillips transported cocaine post to Nash- traveled to Atlanta to her bail. ville, Perry, courier, taped body Michael either on her another concealed arrested airport August carry-on luggage the Nashville 1994 car- where she delivered $47,000 rying Ware, pur- it, that was to be used who sold both as crack and in form, chase cocaine for powder Ware. from 211 Treutland. Hughes; hearsay of Dennis in- phone records corroborated

Hotel and cocaine, pur- calculating the amount by Phillips about the Cali- supplied formation poses sentencing guidelines, based Phillips further testified trips. fornia Phillips and of Shaketa County, arrested Rutherford Sims was Jacqueline further claimed Woods. Ware Tennessee, visiting Nashville meet when Treutland nighttime that the search Ware, Phillips posted bond for and that with police officers vio- Street executed state Finally, Phillips money. him with Ware’s lated the Fourth Amendment trip Atlanta Ware testified about (then that the attorney) Constitution Hughes and Dennis Ware’s Woods, beyond a doubt prove failed to reasonable Jacqueline including post bond identity defendant. place that took en route between a discussion Hughes sug- Hughes Phillips, in which and Though claims raised the the family a should be used to gested white numerous, none merito defendant were was import from the cocaine California. instance, a mo rious. For Defendant filed Jacqueline and Norman Pinkston Woods suppress April the tion to evidence seized on of the pled guilty Street, to fewer than all counts assert from Treutland them, trial, they against and at testified that pursuant ing to it should be excluded plea contingent agreements 404(b) had entered into Rule of the Rules of Evidence Federal against their Ware. Woods provides 211 Treutland testified that she had lived at crimes, wrongs, of other or acts Evidence being cocaine sold and had observed Street prove the to character not admissible from the She also described three house. in con- person a order to show action cocaine for trips purchase to California however, may, formity therewith. It be trip and with Ware to from Sims a Ware purposes, for other such as admissible Curry buy and Pink- Arkansas to cocaine. motive, intent, proof opportunity, prepa- roles as ston also testified their Ware’s ration, identity, ab- plan, knowledge, and Ware was drug couriers stated that ... mistake accident sence of as known Low. 404(b). According to the de- R. Evid. Fed. trial, fendant, from Treutland During of the the court “the evidence Street the course uncharged criminal conduct which bears of the indictment’s seven was dismissed one character, jury on which is what against found Ware the Defendant’s counts Ware. 404(b) counts, protect against.” remaining designed and Rule guilty on three of the however, noted, correctly acquitted government three As him on counts. district the of the indictment years to 30 the first two counts court sentenced the defendant conspiracy incarceration, years supervised charged five re- defendant possess dis- lease, and to with intent to special Defendant distribute assessment. base from De- timely appeal judg- tribute cocaine and cocaine filed a notice May 1995. The evi- through cember 1993 ment. sought to exclude was defendant dence resi- April 1994 at defendant’s seized on II. Discussion response argument dence. In to defendant’s A. con- superceding indictment because counts, appeal gun the admission initially tained Defendant claimed prejudice, guns created undue admitting into into evidence the district court erred 404(b) as evidence, guns characterize the limiting in- the district court did without Rule his “part surrounding circumstances of charge, guns, money of all drugs, struction or 404(b).” The under intent and admissible pursuant [ ] paraphernalia recovered however, array seized, warrant; including the allowing intro- evidence state search firearms, charges supports directly in the crack cocaine seized search duction of rightly Treutland, As district court who Ware. when the officer recov- necessary adjunct trial; noted, are a testify at “Guns ered the eocaine did not infor- ... the confidential [and] crack trade co-conspirator statement admitting as weapon upon testimony agreements); mant had seen on the table when tioned United Juncal, (S.D.N.Y. purchases.” he made See one Jen- States v. 1998 WL 525800 Rees, Cir.1986) 20, 1998) nings Aug. (relying upon the historical acceptance (noting handgun fairly requiring a “loaded the canon drug viewed a tool of trafficker’s be included the text for the trade”). pursuant encompass government); statute to The evidence seized Unit Gabourel, ed search warrant was not evidence of States v. 9 F.Supp.2d other (D.Col.1998) wrongs, (looking only crimes or but of involvement in not Therefore, context); conspiracy statutory but the cocaine at issue. States Rule United 404(b) (S.D.Fla. Guillaume, simply applicable. F.Supp.2d The re- 1998); Eisenhardt, maining similarly initial claims are United States v. defective (D.Md.1998) F.Supp.2d (soundly and do not merit further criticiz discussion. ing reasoning Singleton, particularly brief, supplemental argued application exclusionary rule); provisions violated Reid, 1998 WL 481459 prom- of 18 when it made U.S.C. (E.D.Va. 28, 1998); July United States v. leniency cooper- ises of co-defendants (E.D.Mich. Arana, July 1998 WL 420673 ating in exchange witnesses for their testimo- 1998). But Fraguela, see United States v. defendant, ny against the and that the failure (E.D.La. 27, 1998) Aug. WL 560352 appellant’s of trial counsel to raise the issue (adopting Lowery); United v. States Low constituted ineffective assistance of counsel (S.D.Fla.1998) ery, F.Supp.2d (agree that this appeal. Court now consider on ing Singleton with plain meaning upon The defendant relies rationale of 201(c)(2)’s § language encompasses gov Singleton, F.3d 1343 ernment). (10th Cir.1998). Singleton As the decision fallout, generated significant has we turn 201(c)(2) language § The of 18 U.S.C. now to this claim. 201(c)(2) Section of Title 18 of the United provides States Code B. (c) Whoever— July panel

On of the 10th Circuit held that it awas violation of (2) directly indirectly, gives, or offers or 201(c)(2) for a prosecutor federal to enter promises anything any person, value to agreement accomplice into an with an for or of the testimony because under oath whereby defendant trial the accomplice given or given by affirmation or to be such agreed testify truthfully in return for le trial, person as a witness hearing, niency, including possible 5K1.1 motion court, proceeding, or other any any before from the depar for downward committee of either House or both Houses ture. States v. Singleton, United 144 F.3d at commission, of Congress, agency, or or court 1347. The excluded the by officer authorized laws of Unit- the accomplice and reversed conviction. ed States to evidence hear or take testimo- July 10,1998, The decision vacated on ny, or person’s for or because of such the 10th hearing Circuit and set for en banc therefrom; absence in November 1998. A of district number courts have addressed shall impris- under or fined this title Singleton this issue in the wake of and re- oned years, for not more than two both. jected Singleton the rationale of the decision. See, Szur, e.g., United States v. broadly 1998 WL The court interpreted (S.D.N.Y. 24, 1998); Sept. United the term “whoever” to include the United (S.D.N.Y. Mejia, States v. government. 1998 WL 598098 disagree. States During We 1998); Barbaro, Sept. United the more than provi- three decades that this (S.D.N.Y. 1, 1998) Sept. around, 1998 WL 556152 sion has been until Singleton’s (rejecting reasoning Singleton panel because of apply has read this section acceptance leniency historical government. condi- We think there are a that, justice we shall lized the United States’s criminal variety reasons for of valid States, explain. system. Brady v. United 751-3, L.Ed.2d with, that the To we conclude begin (1970), said, example, for the Court limited the canon reach statutory says that interpretation that validity issue of a [the The we deal do not include general words of a statute guilty plea entered after the defendant rights its unless government or affect pled learned his co-defendant had expressly includes of the statute text testify against guilty and was available government. Nardone in the criminal law and its him] inherent L.Ed. 314 58 S.Ct. guilty pleas are not administration because (1937).1 the cur Nardone Court made The forbidden, constitutionally because sory [the that “the in which statement cases characteristically criminal law extends to applied fall into two classes.” canon] has been setting judge range choice application the stat where Id. first is cases, the sentence in individual and be- deprive the ute to the “would cause both the State pre sovereign recognized or of a established advantageous preclude often find rogative interest”. The second is title or Id. penalty maximum autho- possibility offi application public of a statute to where rized law.... absurdity. Id. would an obvious cers create 384, 58 This fits into both S.Ct. 275. case ... cannot hold it is unconsti- [W]e of those classes. to extend a tutional the State benefit in turn a defendant who extends substan- prosecutorial prerogative to recom- State____ tial benefit leniency mend England dates back to the common law contrary holding require A by recognized approved and has been to forbid Federal Government courts, Sentencing Congress, and the the guilty pleas altogether____ In the of the United States. Commission (9 Cases, Otto) 594, 751-53, Whiskey Brady, 25 90 1463. 99 U.S. 397 at S.Ct. U.S. (1878), Supreme ac- quote L.Ed. 399 the Court to the Fifth The Court went on Circuit: knowledged: by fully plea guilty of entered aware one “[A] explain consequences, including the ac- a the direct

Prosecutors in such case should of obliged he to him accomplice any to the that is not of commitments made to tual value himself, just counsel, court, criminate and inform him prosecutor, or by the his own reasonably he may expect what he in case ... or induced threats must stand unless faith, fully and good in acts testifies by promises are their nature perhaps case, fairly acts as to his own in the relationship to having proper improper he fulfills those of his associates. When bribes).” prosecutor’s (e.g., business the equitably to those he is entitled conditions States, 246 (quoting Shelton v. United prosecutor, and the pardon, a and the Cir.1957) (rev’d 571, 2 other n. on be, fully if of the court need when informed 26, 563, 2 L.Ed.2d 78 S.Ct. grounds, U.S. facts, join in a will such recommendation. (1958))). implication of that The clear at 604. Id. leniency of language promises is that charges the are dismissal reduction Supreme upheld has repeatedly Court historically uti- practices prosecutor’s business. plea bargaining the rule, Supreme Nothing Although panel in that decision or other noted this the only applied application classes to the court that it to two of the canon found decision 'limits’ Court give rise of cases and did not only Unit- the two of cases mentioned.” classes Arguably at 420673, either Arana, class. "3 WL ed States narrowly. Singleton panel As read Nardone too 1998). 24, (E.D.Mich. July observed, judge "does decision one Nardone Nonetheless, is read exclude if Nardone only application not 'limit' canon to only scope government of a in Court discussed. All that the two classes of cases cases, specific this Court two classes those canon 'has been in Nardone stated was encompasses this case. class applied' fall two classes. finds either cases which into States, legitimate carrying Giglio his In out busi v. United U.S. (1972), S.Ct. 31 L.Ed.2d always properly it has within assistant ness been Attorney neglected to disclose prosecutor’s prerogatives to offer these kinds government’s promise to a promises for a in return benefit to the prosecuted witness that he not be if he government, often the form the defen Supreme cooperated. The Court held that agreements cooperation. dant’s Plea promise the failure to disclose to the government’s promise make the defen effectively defense process resulted a due contingent upon testify the defendant’s dant violation, and, accordingly, ing in the trials offenders are of other cer promise leniency must disclose a tainly contemplated by the Federal Rules of exchange witness 11(e), Rule Criminal Procedure. which sets Similarly, Supreme witness. procedure plea governing agree out Arsdall, Court held in Van Delaware ments, does not lands of detail the commit 679-80, 89 L.Ed.2d government may require ments that the of a (1986), that the fact that a witness had gov criminal for the pending had a him charge dismissed promise ernment’s dismiss certain reasonably might was evidence “that charges, permit plea guilty or to to a lesser have found furnished the witness a motive leniency offense or to seek or recommend favoring prosecution in his testimo- nonetheless, imposed; the sentence to be it is ny;” calling “prototypical it a form of bias from the clear context rule and the part witness,” the Court held detailing history, Committee Notes its not to permit question refusal to a defendant to law, mention decades of case that more charge the witness about the dismissal of the required simply of the defendant than his was a right violation of the Sixth Amendment up giving right example, his For trial. Although Supreme confrontation. Advisory Committee notes to the 1974 squarely Court did not legitima- address the “[flinally, amendments to Rule 11 note that cy cases, promises of such in these plea agreement may contribute also holdings implicitly promises Court’s sanction prosecution successful other more serious leniency. Newman, offenders. See D. Conviction: The In Roberts v. United Determination of or Innocence Guilt Without (1980), 100 S.Ct. 63 L.Ed.2d 622 Trial, (1966); Note, Guilty chs. 2 and 3 Plea Supreme the affirmed a Court district court’s Bargaining: By Compromises Prosecutors sentence, prerogative to base at least Pleas, Guilty Secure To U. Pa. L.Rev. part, on cooperate the defendant’s refusal to (1964).” advisory Fed. R.Crim. P. 11 with the authorities. Court noted that committee’s notes notes. The to the 1975 the defendant had been offered a “favorable explicit: amendments to Rule 11 are disposition in exchange of his ease” his for revealing other dealers in the heroin commu- 11(e) Proposed contemplates Rule 4 differ- nity, and cooper- observed that his refusal to types plea ent agreements.... [It is only ate had the protecting effect not his apparent, stated, though explicitly not that accomplices, former of ensuring but his abili- 11(e) contemplates Rule plea that the ty to activity upon resume his criminal expi- agreement may the bind defendant to do ration expressly of his sentence. Court just plead guilty more than or nolo conten- obligation coop- cast the of the defendant to example, plea agreement dere. For the “deeply erate as a rooted obligation social cooperate bind the to [that] is diminished when the to witness prosecution investiga- the in a different crime is involved in illicit activities himself.” tion. The ap- Committee intends its opinion We view an explicit approval that as 11(e) proval permit parties Rule to the testimony of the use of through obtained the agree plea on in a agree- such terms plea agreement. use of a Interestingly, al- ment.'] though Justice Marshall dissented in that case, opinion dissenting expressly advisory his sanc- Fed. R.Crim. P. 11 committee’s (brackets plea bargaining process added). tioned the use of the original)(emphasis case, settling at liability surely in a criminal it 58 S.Ct. power compromise can use that of to obtain absurdity reading The most such obvious testimony pleas procure to in guilty or other any entered into works is that AUSAs who legitimate objectives proceedings. Both are 11(e) pursuant Rule plea agreements to plea bargaining.”); v. Go of imprisonment. subject to fines and be (10th mez, Cir.1987); Unit by attempting This cannot be avoided result Kimble, 719 F.2d 1253 Cir. ed States argue language of the statute to the McCallie, 1983); United States v. testimony of from a only forbids the use the (6th Cir.1977). 770, 772 plea agree- has entered into the witness who ment, agreement 201(c)(2), plea § itself. Be- which not the If 18 U.S.C. nowhere plea who enters into government, nonetheless cause a defendant mentions the is appear to 11 must agreement pursuant Rule government, include then a fed- read to the plea, the testimony before the court and enter his de- prosecutor’s use of obtained eral entry plea testimony. plea the of is by agreements means of of fendant’s —one plea and the foundation for government from “Central to the principal benefits to the 3553(e). course, § against Finally, of entering judgment the defendant is the U.S.C. guidelines themselves contain Commis open admission in court that defendant’s Statement, Policy required by sion’s as charged he the acts in the indict- committed 994(n), § governing depar downward U.S.C. ment. stands He thus as witness provide for defendants “substan tures who Brady himself.” v. United investigation prose tial in the or assistance 201(c)(2) applies § 1463. If 90 S.Ct. person another has committed cution of who all, applies to to those who AUSAs at § in an offense.” USSG 5K1.1. Included plea by bargaining. guilty obtain the itself may in that the court deter factors consider 201(c)(2) apply § to in To grant whether mining to the motion for person further AUSA works the departure may downward be made —which absurdity making only by criminal that is “the truthful —is ness, completeness, reliability explicitly permitted pursuant in to other sec- by testimony provided formation or the de tions of the States Code as the well 5K1.1(a)(2) fendant,” (emphasis § USSG Sentencing Sentencing Guidelines. The Re- added). apply general language To of 18 Act, by Congress form enacted 201(e)(2) prosecutors § U.S.C. to federal among things, other established the United specific provisions of the face Sentencing Commission, charged with States Sentencing Sentencing Reform Act duty promulgating distributing to is Guidelines absurd. guidelines the federal used in courts be although 994(a). Equally, perhaps somewhat less sentencing. § See U.S.C. obviously, absurd is the effect on the statuto- requires Act explicitly Commission ry providing immunity scheme of wit- guidelines gen- that the assure reflect applying nesses that would from result appropriateness imposing eral a lower public officers. Sections 6001 imposed, sentence than would otherwise be through 6005 of Title enacted 1970 as including a that is than that sentence lower Organized Act, part of the Crime Control by established statute as a minimum sen- expressly provide immunity prose- from tence, to into take account a defendant’s given be cution under witnesses cer- investigation substantial assistance specifically tain conditions. Section 6003 au- prosecution person or of another who has Attorney, a United thorizes States with the committed an offense. approval Attorney General various office, request of that underlings from 994(n). pro- U.S.C. Act further grant- United States district court an order vides: immunity ing to a witness whose Government, Upon motion the court Attorney the United States considers neces- authority impose shall have the a sen- sary public Certainly in the there interest. tence level below established purpose grant immunity for a to a as minimum sentence so as reflect a except witness obtain his And defendant’s substantial assistance certainly immunity prosecution investigation prosecution another “[somejthing given of value” “for or because person who has committed an offense. under oath or affirmation.” shall imposed Such sentence be in accor- 201(C)(2). then U.S.C. Do we assume guidelines dance policy with the state- Congress immunity enacted these Sentencing ments issued Commis- provisions they with the intention pursuant sion to section 994 of title Attorneys utilized the United un- Code. pain United States der criminal of sanction?2 motion; attempt Singleton panel's Attorney 2. We think the to the own must 201(c)(2) dodge obviously prohibits this absurd bit of result is a fine make that motion. Section panel sophistry. government giving, offering promising, directly said That that "the the or either immunity give directly indirectly, anything does not for the witness’s or of of value in testimony; may Attorney the the court Unless the move grant immunity.” immunity request, immunity to The statute does makes the there will be least, permit grant immunity granted. very court to on its At the is an indirect that

423 1986, 1970, ments in and 1994. The latter an additional canon of statu There is spe dictates tory that subsequent construction two were technical amendments general cific controls over more § § to 18 U.S.C. 28 U.S.C. and 18 HCSC-Laundry provision. v. United See 6001-6005, §§ yet a conflict U.S.C. between S.Ct. partic- never addressed. statutes was Mancari, (1981); Morton L.Ed.2d ular, (e) to 18 subsection was added U.S.C. L.Ed.2d § prior 3553 and law two weeks became (1974). discussion, foregoing it From § that amendments reworded apparent recently more enacted that 201(c)(2),4 explanation § one word of without Sentencing specifical statutes and Guidelines reconciling the contradiction that would exist interpretation ly allow what broad 201(c)(2) §if provisions in the of these terms 201(c)(2) § applicable generally more would Clearly government. expla- includes the principal this basic of prohibit. Applying nation is that no such conflict exists as construction, specifically appli statutory 201(c)(2) apply § was never intended plea agree cable statutes control to validate See, government. Pub.L. No. 99-570 upon testimony despite ments conditioned (100 32707) § Stat. 1986 U.S.C.C.A.N. 201(c)(2). § 5393; § No. 99-646 Pub.L. (100 3592) History Legislative 6139. U.S.C.C.A.N Stat. despite If the above discussion one were to Further, it not our function to while interpret ambiguity language an from of policy-making, involve the court to the statute, legislative examination of the extent is silent and the that the statute history Although in order. we would be legislative history contains no indication ambiguity, we discern further note no such otherwise, longstanding with the and faced legislative history nothing that in the indi- discretion, prosecutorial inclusion of the applies prosecutors.3 Though cates S.R. the reach of within 87-2213, Rep. language which mirrors the of It is clearly policy. would be bad an occu- 87-748, section-by- notes in H.R.Rep. No. prove pational prosecutors hazard of (h) analysis § 201 section that subsection of guilt beyond a of a criminal defendant (the (c)(2)) predecessor offers of “forbids doubt, they rely must reasonable often payments anything of value to a witness defendants, testimony of other criminal given or or to be ‘for because of analysis. many are less than enthusiastic given,” that is the extent whom history is void of legislative declara- assisting prosecution. To now about tion No. 87-849 was intended to that Pub.L. deprive prosecutors accomplice all co- or prosecutorial long-sanctioned pre- thwart the testimony except which is rogative challenged Defendant Ware voluntarily hope of provided without benefit this case. volunteer, seriously un- be to prosecutors ability prose- dermine 201 enacted Pub.L. No. Section cute. through 87-849 underwent alteration amend- offer, well, remarkably promise gift. 3. The asserted We wonder as actually grants

passing, history Congress's legislative whether the court that "[t]he confirms purposes immunity is not a "Whoever—” for receiving purpose giving anything of val- 201(c)(2). of§ ... ue because of 'witnesses for or ” Further, Singleton panel that the citing to the extent prohibited’ H.R.Rep. No. should also be argument grant on the view that the rested its immunity (1961). 87-748 simply "removes the witness's testimo- compulsion privilege ordinary nial so the be U.S.C. to 18 201 in- The 1986 amendments require testify,” brought to bear to witness to delegates Congress in cluded the brib- certain grant immunity we that the would observe ery prohibition a number of and consolidated having fact the witness from immunizes 201(h) thus Section became subsections. 201(c)(2). derivatively testimony, or evidence obtained language also modified to it, him. See 18 U.S.C. used 99-646, gender Pub.L. 100 Stat. neutral. No. cavil, something Beyond that is value for 424 court, Michaelian,

The and the district also United States v. 803 F.2d (9th 1042, Cir.1986); courts who have chosen to follow the ratio 1049-50 United States (5th Cir.1986). Singleton, Mays, 733, nale of No. Kington, United States 801 F.2d 737 (E.D.Tenn. 18,1998); Sept. 97-CR-127 Unit Congress “Where has both established a Fraguela, ed States v. WL 1998 560352 right provided and exclusive for remedies its (E.D.La. 27, 1998); Aug. v. violation, United States we would ‘encroach pre- (S.D.Fla.1998), Lowery, F.Supp.2d 15 1348 rogatives’ Congress were we to authorize a unreliability testimony focus on the in remedy by for statute.” United by plea agreements tainting duced and the Frazin, (9th 1461, States v. 780 F.2d 1466 judicial decision, process. Lowery The Cir.1986). Ani, also See United States v. 138 adopted entirety by in its courts Fra- (9th Cir.1998). 390, 392 güela Mays, including reasoned that plea agreements “within the violations, Statutory absent un reaches of Section ensures that the derlying rights, constitutional violations or judicial process will by remain untainted generally justify are imposition insufficient to purchased testimony.” admission of 15 exclusionary of the rule. United States v. F.Supp.2d at 1355. As one district court Thompson, 936 F.2d at 1251. “There must correctly pointed however, out “the disclo- exceptional reason, typically be an pro plea agreements sure of the to defense be- tection of a light, constitutional to invoke the trial, fore cooperating cross-examination of exclusionary rule.” United States v. Har witnesses, provide instructions all (9th Cir.1982). rington, 681 F.2d As opportunity to ferret out false explained by Circuit, the Fifth exclu “[t]he might give an interested witness because of sionary rule was not fashioned to vindicate a government promise.” United States v. broad, general right to be agency free of Reid, (E.D.Va.1998). F.Supp.2d law, by action not ‘authorized’ but rather to protect specific, constitutionally Application Exclusionary protected of the Rule Hensel, rights.” United States v. 699 F.2d Finally, assuming even that federal (1st Cir.1982). 18, 29 prosecutors statute, are encompassed application exclusionary there is no for While the ap basis rule has been exclusionary plied remedy statutory violations, rule here. A district court these judge aptly Singleton’s characterized typically implicate “cre cases underlying constitu ation exclusionary ex nihilo of an barring rule rights tional right such as the to be free from virtually every cooperating unreasonable search and seizure. See Miller federal “amazingly witness” as States, unsound” and v. United 78 S.Ct. Eisenhardt, “nonsensical.” United States v. 2 L.Ed.2d 1332 (1958)(excluding money 521(D.Md.1998).5 F.Supp.2d seized because federal officers violated 18 breaking

U.S.C. through a door indicating authority without provides pur their specifically arrest); pose fines or Rea v. United incarceration for violations of 201(c)(2). Generally, (1956); Congress 100 L.Ed. when has (9th Soto-Soto, designated specific remedy States v. violation of 598 F.2d 545 acts, Cir.1979)(suppressing one of its presume courts should evidence obtained Congress engaged illegal necessary has bal border search in violation of federal ancing statutes); Marts, of interests to appro determine the United States v. 986 F.2d priate (8th Cir.1993) penalty. Thomp See (suppression due to 18 son, Cir.1991); violation). see U.S.C. 3109 knock and announce Actually Judge Mary- reaching Smalkin of the district of Court the same conclusion as the Sin- Singleton opinion land characterized the entire are, gleton panel judgment, in this Court’s about espe- as unsound and nonsensical but viewed as discovering the same as that the entire roster of cially application exclusionary so the rule. cleverly the Baltimore Orioles consists of dis- judge predicted, also "the chances of either guised leprechauns.” F.Supp.2d at 521-22. Supreme or both the Fourth Circuit and the

425 My deals with the issue primarily Ware. concurrence exclusionary “rule has rest- Singleton, 144 addressed in United States v. importance that the judgment ed on the (10th Cir.1998), vacated en F.3d 1343 deterring police conduct that invade Singleton in through- banc review. The Tenth Circuit rights individuals constitutional 201(c)(2), § interpreted for the importance 18 U.S.C. community outweighs the out the time, it a for a federal first to make crime specific of the de- securing the conviction Caceres, plea agreement prosecutor to enter into a v. on trial.” United States fendant leniency 1465, offers L.Ed.2d wherein 99 S.Ct. 59 440 U.S. testimony, (1979). exchange in for his or her Though in Caceres witness the Court provides that though agreement challenged con- even in a that the noted footnote statute, testimony penal- must be truthful under and thus did such not violate duct did addition, States, perjury. Id. at 1344. In we do ties of Miller v. United implicate not that the reme- Singleton court determined intended to sanction not believe the Court dy statutory violation was to hold exclusionary rule to for this application of the inadmissible. that such statutory violations across the board.6 mere contrary, the Court United States To the conclusion, court in reaching In “unbending application Payner, v. stated attempted distinguish three Singleton exclusionary sanction to enforce ideals issue, discussing aspect some cases impede governmental rectitude would and it concluded that none were determina truth-finding functions of unacceptably the Isaacs, 347 tive. States v. See United defendant, all, judge jury. After it is the (N.D.Ill.1972); F.Supp. Giglio v. United ” constable, who stands trial. and not the 763, 31 L.Ed.2d 405 U.S. S.Ct. 65 L.Ed.2d Blanton, (1972), States v. and United (1980) (citations omitted)(concluding that (6th Cir.), part, 719 reh’d in 310-11 supervisory power does not authorize Cir.1983) (in (6th order of discus F.2d 815 suppress evidence on the federal court to addition, Single In Singleton). sion unlawfully from a that it was seized ground rejected two other cases decided ton court). party not before the third 201(c) § Eleventh Circuit which held that apply procurement to the of truthful make did not Accordingly, even if we could Jewelry Door Creations necessary prosecuting Golden great leap to include Underwriters, 201(e)(2), Lloyd’s scope § we attorneys within (11th Cir.1997) Moody); (citing exclusionary sup- rule to n. apply the would not Moody, 977 F.2d 1420 Cir. cooperating accom- States press the Blanton,1 1992). view, Moody, Giglio, my In penalties plices. Congress has issue pertinent Door are and Golden of this statute and extension for violations Reid, before us. See United States exclusionary appropriate. rule is not (E.D.Va.1998). F.Supp.2d 534 III. Conclusion Blanton, that the alleged the defendant In reasons, foregoing the conviction 201(c) For the by giving § a wit- government violated Ware, is AFFIRMED. of Robert Jr. liquor license that his ness the assurance Alcoholic Bever- revoked WELLFORD, concurring. Judge, Circuit (“ABC”) for his age Commission per- argued that testimony. The defendant majority view that we I concur with the to revoke the witness’ suading the ABC not convictions of defendant should affirm the fact, authority support Blanton in pains empha- one cites 1. At least the Miller Court was reject of its decision regard there that to the statute at issue size with rationale, stating cannot be "the Government codifying “Congress, a tradition embedded 201(c)(2) when it en- violate Section deemed to law, Anglo-American declared in 3109 the has agreement based ters into a Rule 11 right of of the law for the individual’s reverence nothing cooperation because does defendant’s Miller, U.S. at privacy house.” in his request that the court than or recommend more tradition exists with 78 S.Ct. No such Arana, 18 States v. take a certain action.” United 201(c)(2). regard 18 U.S.C. (E.D.Mich.1998). F.Supp.2d 715 liquor thing given by seeking corruptly of value” license was “a influence witness corrupt government process. in violation of the statute. nor intended the trial finding disagreed, fully This court that the ABC’s The conduct revealed to was the adver- sary weigh decision not to revoke witness’ license and the which was to merely credibility was within its was in light any discretion of the witness of un- Therefore, preservation quo. government of the status derstanding with the and the 201(h), § this violate conduct did not promise witness’ the truth. tell 201(e). precursor §of addressing the Another case distinction be- Supreme Giglio The Court held that “a giving something of tween value for false promise lenity key to a made witness in testimony opposed to truthful testimony must return for his be revealed to Revis, 22 F.Supp.2d United States v. 153-54, Giglio, the defendant.” U.S. at (M.D.Pa.1998). court in Revis consid- 92 S.Ct. 763. The made no comment Court 201(c)(2) § argument ered the defendant’s propriety government’s about promise testify and determined that “the Thus, promise lenity. in Single-, court truthfully ... was not consideration and was Giglio disposi- ton determined that was not given any promise ‘for’ the United Singleton, tive of it. the issue before Rather, Attorney.” Id. at 1256. F.3d at 1356. held, pre-existing court the witness’ was duty testify. I with agree this rationale. in The Eleventh Golden Door in- Circuit my disagreement This is one basis for with terpreted prior Moody in its decision as ex- Singleton, promising that truthful plicitly proposition standing for was 201(c) not consideration the contract since applies only to testimony. false only the witness committed to do Door, at Specifi- Golden 117 F.3d 1335 n. 2. he would called otherwise be to do—-to cally, the court on the in relied statement testify truthfully than falsely. rather 201(c) Moody “obviously proscribes [§ ] testimony; persons bribe for false of ordi- addition, I disagree with the conclusion nary intelligence come to no other Singleton in broadly “is to be 1424-25, Moody, conclusion.” 977 F.2d at legislative construed to its purpose further quoted Singleton, 144 F.3d at 1358. The deterring corruption.” Single- Id. at 1345. rejected Singleton Moody the idea that support principle only ton cites in of that Door, supported holding Golden be- Hernandez, United States v. 731 F.2d Moody cause merely the court had dis- (5th Cir.1984), and United States v. posed vagueness/overbreadth of a challenge Evans, Cir.1978). 572 F.2d by concluding to the obviously statute that it Hernandez, turn, only cites Evans as au- applied to false What the court thority.2 persuasive offer Those cases hold, according Singleton, did not was that depart general reason to from the rule that apply the statute in a would not case involv- criminal statutes to be are construed narrow- ing testimony. Singleton, truthful 144 F.3d ly, broadly, give rather than in order to Thus, posi- the Eleventh Circuit’s benefit of ambiguity to the accused. See persuasive tion was not Conners, United States v. court under those circumstances. (10th Cir.1979) “[cjriminal (reasoning that strictly statutes must be construed with am- cases, Giglio, All of those save dealt with accused.”). biguities resolved in favor of the implication meaning of 18 U.S.C. Supreme explained has Court the rea- 201(c)(2), but in a different fashion than soning behind this rule construction: Singleton. did I do not believe that statute applicable traditionally government’s to the conduct in We have exercised restraint bribing assessing this case because it not akin to of a the reach federal criminal provision entirely courage type corruption. 2. Evans involved a different this I believe the dealing bribery § 201 of a Singleton panel offi- decision and confused Hernandez cial to influence his actions. Evans made refer- congressional legislate broadly intent to to cover cases, ence to a number of similar some of which bribery judicial officials with the objectives Congress discussed the broad interpretation given a to be criminal statute. scope designed the broad of this to dis- statute, pre- of deference both out Dowling v. United Congress,

rogatives 207, 105 (1985), and out of concern

L.Ed.2d 152 given to the warning should be

“a fair world language that the common

world understand, of what the law intends

will passed,” McBoyle v. a certain line is

do if 25, 27, 51 S.Ct. 283 U.S. United (1931).

340, 75 L.Ed. 816 Aguilar, United States (1995); see 132 L.Ed.2d 520 Feroni, Cir.1981) principle (holding that com- of criminal statutes

strict construction the criminal a narrow construction of

pels issue). Singleton

Finally, it to me that the seems literally, interpretation, if

panel followed costs, expenses, payment make the fees, given any involvement

deposition witness, including party to States, “for or of such testi- because

United Surely was not the intent

mony” illegal. this Congress. consti- Such result would absurdity, agreement I am

tute majority affirming opinion

with the case. verdict this

Thus, join rejecting I

panel for the additional reasons indi- decision

cated.

INTERNATIONAL UNION OF OPER- ENGINEERS, LOCAL

ATING

AFL-CIO, Plaintiff-Appellant, RABINE, individually

Gary and d/b/a Brothers, Rabine &

Rabine and G.

Sons, Inc., Defendants-Appellees.

No. 97-2043. Appeals, States Court of Circuit.

Seventh

Argued Nov.

Decided Nov. notes plea act. agreements “A second method criminal We to obtain —is reading prosecutor obtaining a think it is obvious that such a for available to deprive sovereign of an testimony against statute would others is defendant’s up recognized prerogative. process. The Court has established and Be- plea-bargaining theory process that fore we leave this first class of cases which that held however, power applies, we equality bargaining be the Nardone canon note relative it, namely attached pre the defendant that the caveat that prosecutor tween fundamentally sovereign “the process being rule of exclusion less vents 568, 100 stringently applied operation where the unfair.” Id. at S.Ct. agents upon the law servants of the or suit, recogniz courts followed Circuit have sovereign sovereign, rather than on the it- agreements testi ing plea conditioned self,” analysis does not alter either our or mony by co-conspirators. or co-defendants our conclusion. When an assistant United Circuit, practice the Fifth “[n]o As stated (AUSA) Attorney plea into a States enters justice sys ingrained in criminal is more our defendant, agreement agree- plea with a that practice than the tem govern- ment is between the United States accessory calling a witness who is an ment and the defendant. When an AUSA charged which the defendant is crime for testimony through uses at trial obtained testify plea under a having that bar witness plea agreement agreement pros- not to an gain promises that him a reduced sentence.” ecute, government. he does so as the An Cervantes-Pacheco, who, pursuant provisions AUSA (5th denied, Cir.1987), cert. F.2d Guidelines, Sentencing United States moves 98 L.Ed.2d 762 5K1.1, departure downward under (1988). Dailey, also See United States government. “Upon does motion so as the (1st Cir.1985)(holding plea F.2d that government stating the defendant testifying accomplices agreements with did has substantial assistance perjury not create such risk of investigation prosecution per- of another process rights were defendant’s due violated may depart son ... from the accomplices’ admission of the testimo- guidelines.” (emphasis USSG 5K1.1 add- “[ljong ago ny noting at trial and the courts ed). rejected the notion that the of co- the AUSA interested witnesses Even if we were defendants other consider govern- likely simply agent or servant of the was so be unreliable it should excluded.”); Barrett, ment, however, this we conclude that case men- Cir.1974)(holding falls within the second class of cases immunity tioned in Nardone. Those are the eases government may grant civil stating public application where the the statute “[i]f absurdity. work an government can excuse criminal or civil officers would obvious Nardone,

Case Details

Case Name: United States v. Robert Ware, Jr.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 3, 1998

Citation: 161 F.3d 414

Docket Number: 97-5771

Court Abbreviation: 6th Cir.