UNITED STATES of America, Plaintiff-Appellee, v. Sonya Evette SINGLETON, Defendant-Appellant. National Association of Criminal Defense Lawyers, Amicus Curiae.
No. 97-3178.
United States Court of Appeals, Tenth Circuit.
Jan. 8, 1999.
165 F.3d 1297
CONCLUSION
We are forever mindful that “[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” Brecheen, 41 F.3d at 1370 (quoting Burger, 483 U.S. at 785, 107 S.Ct. 3114). We thus have given careful consideration to each of Mr. Cooks’ claims. Finding no constitutional error for the reasons stated, we AFFIRM Mr. Cooks’ conviction and sentence.
John V. Wachtel, Klenda, Mitchell, Austerman & Zuercher L.L.C., Wichita, Kansas, for Defendant-Appellant.
Michael Dreeben, U.S. Department of Justice (James K. Robinson, Assistant Attorney General Criminal Division; Jackie N. Williams, United States Attorney; Michael G. Christensen, Assistant United States Attorney, Wichita, Kansas; Sean Connelly, U.S. Department of Justice, Denver, Colorado, with him on the briefs), Washington, D.C., for Plaintiff-Appellee.
Before SEYMOUR, Chief Judge; PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges.
PORFILIO, Circuit Judge.
Sonya Singleton was convicted of money laundering and conspiring to distribute cocaine. A panel of this court reversed that conviction on the ground the prosecuting attorney violated
I
The conspiracy forming the basis of Ms. Singleton‘s conviction required her to send and receive drug proceeds by Western Union wires. Her co-conspirator Napoleon Douglas entered into a plea agreement in which he agreed to testify truthfully in return for the government‘s promise not to prosecute him for related offenses, to advise the sentencing court of his cooperation, and to advise a state parole board of the “nature and extent” of his cooperation.
II
The question before us is whether section 201(c)(2) applies to the government in the prosecution of criminal offenses. Ms. Singleton argues the plain language of the statute permits no answer but that it does. As expected, the government counters such a reading is beyond the intent of Congress and clearly wrong. We review this issue of law de novo, FDIC v. Canfield, 967 F.2d 443, 445 (10th Cir.1992) (en banc), and begin our analysis with the pertinent portions of the statute itself:
(c) Whoever—
....
(2) directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial ... before any court ... shall be fined under this title or imprisoned for not more than two years, or both.
Ms. Singleton takes the position that when Mr. Douglas testified after receiving the government‘s promise of lenient treatment in exchange for his truthful testimony, he became a “paid ‘occurrence’ witness,” and testimony from those of such ilk is contrary to the fundamental precepts of American justice because the payment of something of value would give the witness a strong motivation to lie. She reasons section 201(c)(2) was enacted to deter that result, and we need only apply plain meaning to the word “whoever” contained in the statute to conclude it must apply broadly and encompass the government and its representatives.
In contrast, the United States argues to allow section 201(c)(2) to sweep so broadly would not only be a radical departure from the ingrained legal culture of our criminal justice system but would also result in criminalizing historic practice and established law. The government maintains Congress did not intend to hinder the sovereign‘s authority to prosecute violations against the United States in this fashion.
Viewing the statute on its face, it is apparent the dispute revolves about the word “whoever.” Indeed, the significance of the remaining parts of the statute is not seriously controverted. However, like many words chosen by the legislative branch to convey its intent, this one word evokes more meaning than an innocent first reading of it would portend.
As correctly argued by Ms. Singleton, “whoever” is a broad term which by its ordinary definition would exclude no one. Indeed, if one were to take the word at face value, defendant‘s argument becomes colorable, at least. However, the defendant‘s approach, while facially logical, ignores a crucial point that must be considered in any attempt to apply the statute to the issues of this case. She argues the breadth of the word “whoever” includes within its scope the assistant United States attorney who offered Douglas something of value in exchange for his testimony. To begin the parsing of the statute with this assumption, however, ignores a fundamental fact: the capacity in which the government‘s lawyer appears in the courts.
The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government‘s perspective of the case. Indeed, the prosecutor‘s function is far more significant. Only officers of the Department of Justice or the United States Attorney can represent the United States in the prosecution of a criminal case.
When an assistant United States attorney (AUSA) enters into a plea agreement with a defendant, that plea agreement is between the United States government and the defendant. When an AUSA uses at trial testimony obtained through a plea agreement or an agreement not to prosecute, he does so as the government. An AUSA who, pursuant to the provisions of the United States Sentencing Guidelines, moves for a downward departure under § 5K1.1, does so as the government.
United States v. Ware, 161 F.3d 414, 421 (6th Cir.1998).
Put into proper context, then, the defendant‘s argument is: in a criminal prosecution, the word “whoever” in the statute includes within its scope the United States acting in its sovereign capacity. Extending that premise to its logical conclusion, the defendant implies Congress must have intended to subject the United States to the provisions of section 201(c)(2), and, consequently, like any other violator, to criminal prosecution. Reduced to this logical conclusion, the basic argument of the defendant is patently absurd.
There is even a more fundamental reason for arriving at the same conclusion, however. Although Congress may, by legislative act, add to or redefine the meaning of any word, it did not do so in the passage of section 201(c)(2). Therefore, we must presume it intended to employ the common meaning of the word. The word “whoever” connotes a being. See Webster‘s Third New International Dictionary 2611 (1993) (defining “whoever” as “whatever person: any person” (emphasis added)). The United States is an inanimate entity, not a being. The word “whatever” is used commonly to refer to an inanimate object. See id. at 2600 (defining “whatever” as “anything that: everything that” (emphasis added)). Therefore, construing “whoever” to include the government is semantically anomalous. Looking beyond definitions, though, there are rules of statutory construction that will lead to the same conclusion.
Statutes of general purport do not apply to the United States unless Congress makes the application clear and indisputable. In The Dollar Savings Bank v. United States, 86 U.S. (19 Wall.) 227, 22 L.Ed. 80 (1873), the Court instructed:
It is a familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words. The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect
not him in the least, if they may tend to restrain or diminish any of his rights and interests.... The rule thus settled respecting the British Crown is equally applicable to this government, and it has been applied frequently in the different States, and practically in the Federal courts. It may be considered as settled that so much of the royal prerogatives as belonged to the King in his capacity of parens patriae, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.
Id. at 239 (footnote omitted); see also 8 Matthew Bacon, A New Abridgment of the Law 92 (1869) (“[W]here a statute is general, and thereby (a) any prerogative, right, title, or interest is divested or taken from the king, in such case the king shall not be bound, (b) unless the statute is made by express words to extend to him.“); Henry Campbell Black, The Construction and Interpretation of the Laws 94-97 (2d ed.1911) (same). The Court revisited the concept in Nardone v. United States, 302 U.S. 379, 383-84, 58 S.Ct. 275, 82 L.Ed. 314 (1937), when it held this canon of construction generally applies when failure to limit the application of a statute would “deprive the sovereign of a recognized or established prerogative title or interest” or “where a reading which would include [the government] would work obvious absurdity.”
We have already established the absurdity in trying to apply section 201(c)(2) to the sovereign‘s prosecutorial powers, and a number of courts have agreed for an abundance of reasons we also find persuasive. See, e.g., United States v. Haese, 162 F.3d 359, 366-67 (5th Cir.1998); Ware, 161 F.3d at 421-22; United States v. White, 27 F.Supp.2d 646, 648-49 (E.D.N.C.1998); United States v. Hammer, 25 F.Supp.2d 518, 535-36 (M.D.Pa.1998); United States v. Reid, 19 F.Supp.2d 534, 535-38 (E.D.Va.1998); United States v. Arana, 18 F.Supp.2d 715, 717-19 (E.D.Mich.1998); United States v. Dunlap, 17 F.Supp.2d 1183, 1184-88 (D.Colo.1998); United States v. Guillaume, 13 F.Supp.2d 1331, 1332-34 (S.D.Fla.1998); United States v. Eisenhardt, 10 F.Supp.2d 521, 521-22 (D.Md.1998); United States v. Barbaro, 1998 WL 556152, at *3 (S.D.N.Y. Sept.1, 1998). But see United States v. Revis, 22 F.Supp.2d 1242 (N.D.Okla.1998); United States v. Fraguela, 1998 WL 560352 (E.D.La. Aug.27, 1998).
The next question, then, is whether applying the statute to the government would deprive the sovereign of a recognized or established prerogative, title, or interest. The answer to that question is, inescapably yes.
From the common law, we have drawn a longstanding practice sanctioning the testimony of accomplices against their confederates in exchange for leniency. See Hoffa v. United States, 385 U.S. 293, 310-12, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lisenba v. California, 314 U.S. 219, 227, 62 S.Ct. 280, 86 L.Ed. 166 (1941); Benson v. United States, 146 U.S. 325, 333-37, 13 S.Ct. 60, 36 L.Ed. 991 (1892); The Whiskey Cases, 99 U.S. 594, 599-600, 25 L.Ed. 399 (1878). Indeed,
[n]o practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence.
United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir.1987); United States v. Juncal, 1998 WL 525800, at *1 (S.D.N.Y. Aug.20, 1998) (“The concept of affording cooperating accomplices with leniency dates back to the common law in England and has been recognized and approved by the United States Congress, the United States Courts and the United States Sentencing Commission.“).
This ingrained practice of granting lenience in exchange for testimony has created a vested sovereign prerogative in the government. It follows that if the practice can be traced to the common law, it has acquired stature akin to the special privilege of kings. However, in an American criminal prosecution, the granting of lenience is an authority that can only be exercised by the United States through its prosecutor; therefore, any reading of section 201(c)(2) that would restrict the exercise of this power is surely a
Moreover, in light of the longstanding practice of leniency for testimony, we must presume if Congress had intended that section 201(c)(2) overturn this ingrained aspect of American legal culture, it would have done so in clear, unmistakable, and unarguable language.
Congress is understood to legislate against a background of common-law adjudicatory principles. Thus, where a common-law principle is well established the courts may take it as a given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident. Astoria Fed. Sav. & Loan Ass‘n v. Solimino, 501 U.S. 104, 108, 111, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (citations and quotation marks omitted); see also Green v. Bock Laundry Machine Co., 490 U.S. 504, 521-22, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). It further follows, therefore, the absence of such language makes patent section 201(c)(2) was not intended to apply to the United States or its attorneys.
The government also points out a number of statutes and rules with which defendant‘s reading of section 201(c)(2) would conflict. Other courts have done so as well. See, e.g., Arana, 18 F.Supp.2d at 718-19 (conflicts with
III
Our conclusion in no way permits an agent of the government to step beyond the limits of his or her office to make an offer to a witness other than one traditionally exercised by the sovereign. A prosecutor who offers something other than a concession normally granted by the government in exchange for testimony is no longer the alter ego of the sovereign and is divested of the protective mantle of the government. Thus, fears our decision would permit improper use or abuse of prosecutorial authority simply have no foundation. It is noteworthy, then, that defendant‘s premise relies upon the shibboleth “the government is not above the law.” While we agree with that notion, we simply believe this particular statute does not exist for the government. Accordingly, we AFFIRM the district court‘s denial of the motion to suppress on
HENRY, Circuit Judge, concurring.
This difficult case has spawned three excellent opinions. Judge Lucero‘s concurrence resolves the case most convincingly for me, and I join that concurrence.
I write briefly to add that this problem may arise again. As the dissent notes, Congress has recently passed legislation, sponsored by Rep. Joe McDade and endorsed by the American Bar Association and the American Corporate Counsel Association,1 that repeals the Thornburgh memorandum. It di-
Further, I note that although I believe the majority is correct on the tradition argument, I do not see the statute as construed by the dissent as patently absurd. I do see that its operation as construed by the dissent would work what might be called a legal absurdity, in that Congress would have criminalized the general practice. I simply do not believe Congressional intent could have been to criminalize the widespread and common practice of government lawyers.
LUCERO, J., with whom Judge HENRY joins, concurring.
I concur in the judgment that the United States and its agent, an Assistant United States Attorney, did not violate
I cannot join the dissent, however, because § 201(c)(2) operates in conjunction with other
statutes to allow the government, upon proper disclosure and/or with court approval, to trade certain items of value for testimony. These statutes include
I
It is undisputed that the Assistant United States Attorney‘s offer of leniency to Mr. Douglas was for his testimony. See Maj. Op. at 1298; Singleton, 144 F.3d at 1344. Thus, the only issue is whether
A
The majority holds that “whoever” as used in § 201(c)(2) does not include the government. That result, I believe, cannot be reconciled with Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), which holds that government agents are liable under the wiretapping provisions of the Federal Communications Act. Like the statute at issue here, that under review in Nardone uses a term of general applicability—“no person“—to encompass the class of persons subject to the law. See Nardone, 302 U.S. at 380-82. The majority‘s conclusion that “whoever” cannot refer to the government because it “connotes a being” and not an entity, see Maj. Op. at 1300 (citing dictionary definition of “whoever“), must therefore be incorrect because the statutory language that Nardone holds to include the government also connotes a being and not an entity.
Nardone identifies two classes of statutes wherein terms of general applicability do not apply to the government. “The first is where an act, if not so limited, would deprive the sovereign of a recognized or established prerogative title or interest.” Nardone, 302 U.S. at 383. The second is where an interpretation of the statute to include government officers “would work obvious absurdity.” Id. at 384. The majority holds that the government cannot be included within “whoever” in
With regard to the first class, the majority identifies “a longstanding practice sanctioning the testimony of accomplices against their confederates in exchange for leniency” as creating a vested prerogative in the government. Maj. Op. at 1301. Nardone, however, limits the class of statutes under which language of general applicability excludes the government. “The rule of exclusion of the sovereign is less stringently applied where the operation of the law is upon the agents or servants of the government rather than on the sovereign itself.” Nardone, 302 U.S. at 383. The majority would transform virtually all federal “officers and agents” relating to law enforcement and prosecution into alter egos of the government, thereby rendering Nardone‘s limitation on the prerogative of the sovereign mere surplusage.3 In effect, the majority would overrule Nardone‘s holding that federal officers are liable under the wiretapping provisions of the Federal Communications Act. For purposes of Nardone, United States Attorneys must be regarded as agents of the government, not as its alter egos.4
With respect to the second class recognized by Nardone, the majority‘s holding itself works an obvious absurdity by implying that a federal prosecutor who bribes a witness to supply false testimony is not subject to the criminal prohibitions of § 201. Even the government concedes that a prosecutor who corruptly bribes a witness to provide testimony is liable under
B
The government asserts that because the Dictionary Act defines “whoever” in a manner that does not expressly include the federal government, see
Furthermore, the structure of
II
“It is an elementary tenet of statutory construction that ‘[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one.‘” Guidry v. Sheet Metal Workers Nat‘l Pension Fund, 493 U.S. 365, 375, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990) (quoting Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Rather, a specific statute controls over the general. See Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961); see also 2B Norman J. Singer, Sutherland on Statutes and Statutory Construction § 51.05, at 174 (5th ed. 1992) (“Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized; but if there is any conflict, the latter will prevail.“). This is true regardless of the priority of the individual statutes’ enactment. See Bulova Watch, 365 U.S. at 758.
A
Congress has developed an extensive and detailed statutory framework authorizing sentence reductions and recommendations, immunity, and other incentives for cooperating witnesses. Federal immunity statutes, for example, which authorize prosecutors to request immunity for cooperating witnesses, see
Although, as the Singleton panel noted, the government moves the court to grant immunity rather than bestowing immunity directly upon a cooperating witness, see Singleton, 144 F.3d at 1348, the government‘s role in the process is more important than that of the court. See United States v. Doe, 465 U.S. 605, 616, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) (noting that the immunity statutes grant government authorities “exclusive authority to grant immunities” and that the courts play “only a minor role in the immunizing process“); Pillsbury Co. v. Conboy, 459 U.S. 248, 254 n. 11, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (“The court‘s role in granting the [immunity] order is merely to find the facts on which the order is predicated.” (quoting H.R.Rep. No. 91-1549, at 43 (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4018)). Indeed, the statutory language itself requires the court, “upon the request of the United States attorney,” to “issue ... an order requiring [a witness] to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination.”
When granted statutory immunity, the potential witness is given something of value by the government in that his immunized testimony cannot be used to prosecute him. By the same token, the government plainly gains something of value from immunizing the testimony—the testimony itself. See Mandujano, 425 U.S. at 575 (characterizing immunity as “the quid pro quo for securing an answer from the witness“). The immunity statutes give the government leverage with which to obtain testimony from recalcitrant witnesses, and the power to grant immunity serves as one of the bargaining tools in the prosecutorial process. See id. at 576 (characterizing the grant of immunity as the government‘s “ultimate tool for securing testimony that would otherwise be protected“); see also Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, 81 Cal. L.Rev. 1471, 1492 (1993) (placing negotiations over immunity grants within the general framework of the plea bargaining process).
The Witness Relocation and Protection Act expressly authorizes the Attorney General to provide for the relocation and protection of certain federal witnesses. See
Dispositive in this case is the Sentencing Reform Act of 1984, which, as amended, authorizes courts, upon motion of the government, to reduce sentences for individuals who provide “substantial assistance in the investigation or prosecution of another.” See
By allowing prosecutors to reward testimony with sentencing benefits, the statutes must also be read to authorize prosecutors to inform a defendant and potential witness of the possibility of such reward. Barring a prosecutor from discussing leniency prior to testimony would seriously inhibit the intended effect of these statutes by reducing the pool of defendants willing to testify against their co-conspirators to those informed by their counsel of the potential benefits of cooperation. Furthermore, a bar to pre-testimony negotiation would contradict the intent of
Pursuant to these grants of statutory authority, the Sentencing Commission has issued a policy statement entitled “Substantial Assistance to Authorities,” see
In totality, these various statutes create both a substantive and procedural framework for bargaining between government agents and potential witnesses. They limit the “something of value” that the government may offer, and detail the roles of both the prosecution and the courts in determining sentences, providing immunity, and granting other forms of assistance. The result is a coherent, narrowly defined set of laws that operate in the same field as the more general prohibitions of § 201(c)(2). Under long-established principles of statutory construction, where specific statutes overlap with a general statute, the latter must give way, insofar as it would prohibit that which the narrow statutes would allow.7 It is for this reason that I concur with the majority‘s result.
B
This analysis has several advantages over that of the majority. It provides both a
The majority reasons that this prosecutor can be held liable because he is acting ultra vires, and is therefore “no longer the alter ego of the sovereign and is divested of the protective mantle of the government.” Maj. Op. at 1302. The majority‘s holding, premised on the government‘s sovereign authority and the common law of exchanges of testimony for leniency, see Maj. Op. at 1300, 1301-1302, is likely to create difficulties for authorities who, in seeking to sanction errant prosecutors, will be forced to study the arcania of the common law to discern the scope of protected prosecutorial activity. On the other hand, the statutory construction proposed here protects the general prohibition of § 201(c)(2), but provides specific exemptions that the government may follow. Prosecutors may offer only those incentives that Congress has approved, and may bargain and execute agreements only within the narrow, specific procedures that Congress and the courts have articulated. If a United States Attorney does not act within the provisions of those specific statutes that conflict with § 201, then § 201—including subsection (c)(2)—applies. Conversely, where the actions of the prosecutor fall within such provi- 1 sions, as in this case, then § 201(c)(2) does not apply.
KELLY, Circuit Judge, with whom SEYMOUR, Chief Judge, and EBEL, Circuit Judge, join, dissenting.
The court holds that
As an initial observation, since the panel issued its opinion in this case, prosecutors from coast to coast have attempted to portray it as the death knell for the criminal justice system as we know it. These are the same grave forecasts made by prosecutors after the Supreme Court‘s decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the advent of the exclusionary rule. But experience has proven that the government, just like the private citizens it regulates and prosecutes, can live within the rules. No one would suggest that the criminal justice system has ceased to function because the Court or Congress has effectuated constitutional or statutory guarantees designed to promote a more reliable outcome in criminal proceedings.
In holding that § 201(c)(2) simply does not apply to the government, the court does not hold that leniency in exchange for testimony does not constitute “anything of value.” To
Contrary to the concerns expressed by some commentators and courts, see United States v. Ware, 161 F.3d 414 (6th Cir.1998), a straight-forward interpretation of § 201(c), which encompasses a prohibition against the government buying witness testimony with leniency, actually aids the search for truth. In theory, the leniency is only in exchange for “truthful” testimony. See United States v. Haese, 162 F.3d 359, 366-67 (5th Cir.1998). But as the Supreme Court has recognized: “Common sense would suggest that [an accused accomplice] often has a greater interest in lying in favor of the prosecution rather than against it, especially if he is still awaiting his own trial or sentencing. To think that criminals will lie to save their fellows but not to obtain favors from the prosecution for themselves is indeed to clothe the criminal class with more nobility than one might expect to find in the public at large.” Washington v. Texas, 388 U.S. 14, 22-23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); see also Yvette A. Beeman, Note, Accomplice Testimony Under Contingent Plea Agreements, 72 Cornell L.Rev. 800, 802 (1987) (“Accomplice plea agreements tend to produce unreliable testimony because they create an incentive for the accomplice to shift blame to the defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure lenient prosecution in his own case.“). To be sure, there are devices that partially ameliorate the problem. The government is required to disclose exculpatory information, including impeachment information, to a defendant. Testifying accomplices may be cross-examined. Their credibility may be impeached, and the jury is instructed that it may regard such testimony with caution. However, all of these devices have limitations. In the real world of trial and uncertain proof, and in view of § 201(c), a witness‘s demeanor and actual testimony are simply too important to hinge upon promises of leniency. Although the court notes that a prosecutor who procures false testimony could be prosecuted for subornation of perjury,
On the other side of the ledger is my concern for the institutional role of Article III courts. Much of this case has been about policy. I accept the government‘s position that accomplices can provide important information and interpreting § 201(c) to include prosecutors might require some changes to elicit testimony of some witnesses. While it would be up to the Department of Justice to devise ways of compliance, the government is not precluded from offering leniency in exchange for information and assistance short of actual testimony at trial. Likewise, the government could prosecute accomplices first, then compel their testimony by subpoena against co-conspirators.3 Finally, the gov-
Notes
guilty plea and is sentenced, the prosecutor could subpoena him as a witness in a trial of the other participants in the crime. If the defendant testified contrary to the statements he made during the plea negotiations, the government could impeach him with the record of his prior statements. See United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (upholding waiver of exclusionary provisions of Rule 11(e)). It is important to note that the defendant‘s trial testimony in this situation is compelled through subpoena, and is not given in exchange for anything of value.
Such a practice protects every legitimate prosecutorial concern expressed in this case by the government and refutes its contention that the criminal justice system would be crippled if it could not offer leniency to a defendant in exchange for testimony.
I. “Whoever” Means Whoever
The government argues that construing the word “whoever” to include the government is semantically anomalous because “whoever” connotes a being. As a textual and contextual matter, this is wrong. Textually, “whoever” clearly connotes more than a being and in fact denotes inanimate entities. The Dictionary Act,
The court suggests that the prosecutor and the sovereign are inseparable, and therefore the word “whoever” cannot apply because the United States cannot be prosecuted for providing leniency in exchange for testimony. First and foremost, “the law in this social order is not self-executing—the necessary instrument is the lawyer.” Matter of Doe, 801 F.Supp. 478, 479 (D.N.M.1992). To suggest that government attorneys performing prosecutorial functions are beyond scrutiny because of who they represent is anomalous because it merges attorney and client. No one would suggest that an accused and his attorney are one in the same for purposes of compliance with constitutional, statutory and ethical norms. As discussed below, constraints on government prosecutors are not unusual, notwithstanding that the sovereign is the client. Merely because the government cannot be prosecuted if its agents violate a rule does not mean that the rule may be disregarded; to the contrary, the rule may be enforced by means other than prosecution, here by exclusion of evidence. See Nardone v. United States, 302 U.S. 379, 384-85, 58 S.Ct. 275, 82 L.Ed. 314 (1937). The remedy of exclusion serves as a deterrent, protects a court‘s integrity and allows a federal court the only means it has to enforce federal law.
Recently, Congress enacted a statute that explicitly subjects government attorneys, including federal prosecutors, to State laws and rules governing attorneys. See Omnibus Appropriations Act, Pub.L. No. 105-277, tit. VIII, § 801, 112 Stat. 2681, (1998) (to be codified at
Beyond the government‘s sui generis definition of “whoever,” the government‘s argument rests upon the predicate that the government has the sovereign authority to prosecute criminal conduct, and applying § 201(c) to the government would impermissibly curtail that prerogative. However, applying § 201(c) to the government does not affect the core prerogative to prosecute or to withhold prosecution. The government erroneously conflates two distinct concepts: the vested sovereign prerogative of the government to prosecute and the obvious non-prerogative of how to prosecute. Prohibiting the government from granting witnesses leniency in exchange for testimony leaves the right to prosecute unfettered; the government can still prosecute anybody it wants and charge any way it wants. The anti-gratuity statute only limits how the government may prosecute its case and the government clearly has no vested sovereign prerogative to prove a case in any way it wishes. How the government proves its case is frequently restricted. Federal prosecutors must follow the Constitution, state codes of conduct, the rules of the individual courts, and the rules of evidence. See
Thus, the anti-gratuity statute leaves unfettered the sovereign‘s established prerogative to charge; it merely places a restriction on one method of gathering admissible evidence, here testimony, for or against an accused. A federal prosecutor is not above the law and is not free to prove a case by any
II. Section 201(c)(2) in Relation to Other Statutes
Contrary to the government‘s contentions, the defendant‘s reading of § 201(c)(2) can be reconciled with
First, the statutory language we do have in § 201(c)(2) is a better guide to legislative intent than the silence about leniency in exchange for testimony contained in these other enactments. Second, it would be pure speculation to assume that Congress intended to endorse existing practice. As noted in the panel opinion, nowhere in
Likewise, the defendant‘s reading of § 201(c)(2) can be harmonized with
Finally, the defendant‘s reading of § 201(c)(2) does not conflict with the Witness Relocation and Protection Act,
III. Tradition
The government relies on the common law practice of sanctioning the testimony of accomplices against their confederates in exchange for leniency. Apparently, this practice has not always been an unquestioned part of the common law. The seventeenth century English common law scholar and judge, Sir Matthew Hale, reasoned:
If a reward be promised to a person for giving his evidence before he gives it, this, if proved disables his testimony.
And so for my own part I have always thought, that if a person have a promise of a pardon if he give evidence against one of his own confederates, this disables his testimony, if it be proved upon him.9
II Sir Matthew Hale, The History of Pleas of the Crown 280 (Sollom Emlyn ed. 1736) (footnote omitted). A narrow focus on this practice, however, ignores two other equally compelling traditions: the common law prohibition against paying fact witnesses, and the fundamental policy of ensuring a level playing field between the government and defendant in a criminal case.
Under the common law in most jurisdictions, “it is improper to pay an occurrence witness any fee for testifying.” Model Rules of Professional Conduct Rule 3.4 cmt. [3]; cf. 2 Wigmore, Evidence in Trials at Common Law § 520 (Chadbourn rev.1979) (noting that conviction of suppression of testimony by bribery, a crime of infamy, has been adjudged to render individual incompetent to testify). “Fair competition in the adversary
Congress has expressed its desire that government attorneys comply with state and local federal court rules governing the practice of law. See
[W]e must understand ethical standards are not merely a guide for the lawyer‘s conduct, but are an integral part of the administration of justice. Recognizing a Government lawyer‘s role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of power.
Matter of Doe, 801 F.Supp. at 479-80.
Constitutional law manifests another vital legal tradition which the government‘s position undercuts—the policy of ensuring a level playing field between the government and defendant in a criminal case. The Supreme Court long ago recognized that impartiality in criminal cases requires that “[b]etween [the accused] and the state the scales are to be evenly held.” Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 30 L.Ed. 578 (1887). Such a policy dates back to the Bill of Rights, which was “designed to level the playing field between the defendant and the state,” Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. Chi. L.Rev. 361, 402 (1996), and indeed the policy has animated landmark constitutional decisions, see, e.g., Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (stating that “[s]ociety wins not only when the guilty are convicted but when criminals trials are fair“); Miranda, 384 U.S. at 460 (stating that privilege against self-incrimination is required, inter alia, “[t]o maintain a fair state-individual balance“) (citation and internal quotations omitted). Simply put, ours is an adversarial legal system, and implicit in this system, which pits the government against the defendant in a court of law, is the notion of fair play. See Barbara A. Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 Stan. L.Rev. 1133, 1138 (1982).
Remaining faithful to the important common law prohibition against paying fact witnesses and the fundamental policy of ensuring a level playing field between the government and defendant requires applying § 201(c)(2) to the government as its plain language suggests.
For the above reasons, I respectfully dissent. A more detailed explanation of my position has been set forth in the original panel opinion in this case. See United States v. Singleton, 144 F.3d 1343 (10th Cir.1998).