Convicted of conspiracy to defraud the Internal Revenue Service by skimming cash from a chain of martial arts schools, Thomas Condon raises a number of arguments on appeal. The only one worth discussing in a published opinion is his contention that 18 U.S.C. § 201(e)(2), foreclosés testimony from witnesses who were promised immunity from prosecution (or lower sentences) in exchange for their cooperation. Other of Condon’s contentions, and all arguments presented by his co-defendants, are addressed in an unpublished order issued contemporaneously with this opinion.
Ever since
United States v. Singleton,
Long before
Singleton
we held, in an opinion the tenth circuit did not mention, that 18 U.S.C. § 201(h), the predecessor to § 201(c)(2), does not require the exclusion of evidence obtained by a promise of immunity.
United States v. Barrett,
Section 201(c)(2) is a criminal statute, not a private right of action or a rule of evidence. It provides specific consequences: fines and imprisonment. Exclusion of evidence would not be an appropriate additional consequence.
United States v. Caceres,
Forgoing criminal prosecution (or securing a lower sentence) is not a “thing of value” within the meaning of § 201(c)(2). Economists equate gains received with loss avoided. A cash payment of $100, and avoiding a fine of $100, come to the same thing. But Congress did not use “thing of value” in this mirror-image sense. All of § 201 speaks of valuable things “received” by the person whose conduct is to be influenced. Although cancellation of a private debt could be a “thing of value” in the statutory sense, payment of a “debt to society” by providing testimony is a different animal altogether: treating immunity from prosecution (or a prosecutorial promise that would lead to a lower sentence) as a “thing of value” would put § 201(c)(2) at war with a long history of lawful inducements to testify, see
The Whiskey Cases,
Because a promise not to prosecute a witness (or to secure a lower sentence for the witness) is not a “thing of value” under § 201(c)(2), it is unnecessary to consider a possibility that some other courts have embraced: that “whoever” in § 201 does not include federal prosecutors. That approach, if taken seriously, would permit prosecutors to pay cash for favorable testimony, a practice that lacks the statutory and historical support of immunity and sentence reduction.
Nardone v. United States,
Condon relies on Rule 3.3(a)(15) of the Rules of Professional Conduct promulgated by the Northern District of Illinois. This rule, which tracks Disciplinary Rule 7-109(C) of the aba’s old Model Code of Professional Responsibility, provides that when
appearing in a professional capacity before a tribunal, a lawyer shall not ... pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’ testimony or the outcome of the case, but a lawyer may advance, guarantee, or acquiesce in the payment of expenses reasonably incurred in attending or testifying, and a reasonable fee for the professional services of an expert witness.
The aba and many states have replaced the Code with the Model Rules of Professional Conduct, which say only that a lawyer shall not “offer an inducement to a witness that is prohibited by law”. Rule 3.4(b). But the Northern District of Illinois crafted a unique set of requirements, blending the Code, the Rules, and ideas of the district court’s devising.
Like the eleventh circuit in
Lowery,
we doubt that a local rule can require the exclusion of evidence. Rule 402 of the Federal Rules of Evidence, which we have already mentioned, says that relevant evidence is admissible except as provided in the Constitution, acts of Congress, or “rules prescribed by the Supreme Court pursuant to statutory authority.” This implies that
local
rules may not require exclusion.
Lowery,
What is more, Local Rule 3.3(a)(15) does not have the effect Condon attributes to it. It refers to “pay” and “compensation”; what we have said about “thing of value” in § 201(c)(2) is equally applicable to this language. The Northern District of Illinois did not purport to override 18 U.S.C. §§ 3521-28, 3553(e), and 6001-05; 28 U.S.C. § 994(n); Fed.R.Crim.P. 11 and 35(b); and U.S.S.G. § 5K1.1, in such an indirect way (nor would the district court be authorized to do so). None of the judges in the Northern District of Illinois has suggested that the local rule interferes with the established practice of withholding the prosecution of, or giving lower sentences to, witnesses who assist prosecutors. To the contrary, all of the judges in the Northern District of Illinois have participated in that practice by reducing sentences at prosecutors’ behest to reward testimonial assistance. If a district court wants to wipe out an enduring feature of the criminal jus *691 tice system, it must address the subject more direetly than the Northern District of Illinois did by promulgating Rule 3.3(a)(15).
AFFIRMED.
