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
18 U.S.C. §
201(c)(2) when he offered leniency to a co-defendant in exchange for
truthful testimony. The panel held the testimony of the co-defendant should
have been suppressed and that the failure to do so was not harmless error.
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). The en banc
court vacated the panel decision, id. at 1361, and has now reheard the
appeal. We now hold 18 U.S.C. § 201(c)(2) does not apply to the United
States or an Assistant United States Attorney functioning within the official
scope of the office.
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.
Before trial, Ms. Singleton moved
to suppress the testimony of Mr. Douglas on the ground the government had
violated 18 U.S.C. § 201(c)(2), the so-called "anti-gratuity statute,"
by promising him leniency in exchange for his testimony. The district court
denied the motion and Mr. Douglas testified, acknowledging the benefits
he would receive in exchange for his testimony and implicating Ms. Singleton
in the charged offenses. Ms. Singleton asks us to review the court's denial
of her motion.
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:
. . . .
(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.
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. 28 U.S.C. §§ 516, 547 (1994); United States v. Navarro,
959 F. Supp. 1273, 1277 (E.D. Cal. 1997), rev'd on other grounds, 160 F.3d
1254, 1998 WL 809553 (9th Cir. 1998). Indeed, a federal court cannot even
assert jurisdiction over a criminal case unless it is filed and prosecuted
by the United States Attorney or a properly appointed assistant. See United
States v. Providence Journal Co., 485 U.S. 693, 699-708, 99 L. Ed. 2d 785,
108 S. Ct. 1502 (1988) (dismissing petition for certiorari for lack of
jurisdiction where the petition was filed by a government lawyer acting
without the authority to do so); United States v. Durham, 941 F.2d 886,
892 (9th Cir. 1991) (whether Special AUSA had been properly appointed went
to jurisdiction of the district court). Therefore, the government's sovereign
authority to prosecute and conduct a prosecution is vested solely in the
United States Attorney and his or her properly appointed assistants. Of
course, it cannot be otherwise because the government of the United States
is not capable of exercising its powers on its own; the government functions
only through its officers and agents. We thus infer in criminal cases that
an Assistant United States Attorney, acting within the scope of authority
conferred upon that office, is the alter ego of the United States exercising
its sovereign power of prosecution. Hence, in the attempt to apply section
201(c)(2), the United States and the Assistant United States Attorney cannot
be separated. Indeed, the alter ego role [n. 1] of the prosecutor is not
unusual, for in a similar case, the Sixth Circuit has noted:
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.
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, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966); Lisenba v.
California, 314 U.S. 219, 227, 86 L. Ed. 166, 62 S. Ct. 280 (1941); Benson
v. United States, 146 U.S. 325, 333-37, 36 L. Ed. 991, 13 S. Ct. 60 (1892);
The Whiskey Cases, 99 U.S. 594, 599-600, 25 L. Ed. 399 (1878). Indeed,
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 diminution of sovereignty
not countenanced in our jurisprudence.
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.
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 18 U.S.C. § 3553(e)
and U.S.S.G. § 5K1.1(a)(2)); Dunlap, 17 F. Supp. 2d at 1184-86 (conflicts
with Fed. R. Crim. P. 11(e)); Guillaume, 13 F. Supp. 2d at 1334 (conflicts
with 18 U.S.C. §§ 6001-05). We simply believe the general principles
we have set forth so completely undercut defendant's reading that further
exposition would be redundant.
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. [n. 2] 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 18 U.S.C.
§ 201(c)(2) grounds. We adopt the ruling of the panel that the evidence
in the record was sufficient to sustain the judgment of conviction, notwithstanding
the panel's conclusion the testimony of Mr. Douglas should have been suppressed.
I concur in the judgment that the
United States and its agent, an Assistant United States Attorney, did not
violate 18 U.S.C. § 201(c)(2) by offering in a plea agreement to exchange
leniency for the testimony of Singleton's co-conspirator. See I R. doc.
109, at 1-4. [n. 1] But I write separately to state my disagreement with
the majority's holding that the word "whoever" in 18 U.S.C. § 201(c)(2),
as it is used to define the class of persons who can violate the statute,
cannot include the government or its agents. The majority's interpretation
would permit the conclusion that consistent with the provisions of §
201, a United States Attorney may pay a prosecution witness for false testimony.
It is undisputed that the Assistant
United States Attorney's offer of leniency to Mr. Douglas was for his testimony.
See Maj. Op. at 2; Singleton, 144 F.3d at 1344. Thus, the only issue is
whether 18 U.S.C. § 201(c)(2), the anti-gratuity provision of the
federal bribery statute, prohibits the prosecutor's conduct.
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, 82 L. Ed. 314, 58 S. Ct. 275 (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 7 (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.
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 9. 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. [n 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. [n. 4]
4. The majority's citation of language
from Dollar Savings Bank v. United States, 86 U.S. (19 Wall.) 227, 239,
22 L. Ed. 80 (1873), reaffirming the federal government's right to impose
and collect taxes notwithstanding a law of general applicability, is inapposite
in this context. See Maj. Op. at 8. Whereas the Constitution explicitly
grants the power to tax to the federal government, see U.S. Const. art.
I, § 8, cl. 1 ("The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises . . . ."); U.S. Const. amend. XVI ("The Congress
shall have power to lay and collect taxes on incomes, from whatever source
derived . . . ."), it grants no such explicit right or prerogative to federal
prosecutors. In addition, during the same term as it decided Dollar Savings
Bank, the Court explicitly noted that the longstanding principle that the
king is not subject to acts of Parliament yields where "a statute is passed
. . . to prevent fraud, injury and wrong." United States v. Herron, 87
U.S. (20 Wall.) 251, 255, 22 L. Ed. 275 (1873). Section 201, which criminalizes
bribery and gratuities given to public officers and witnesses, clearly
falls within this exception. The government asserts that because
the Dictionary Act defines "whoever" in a manner that does not expressly
include the federal government, see 1 U.S.C. § 1, Congress could not
have intended its use of "whoever" in § 201(c)(2) to include the government
and its agents. [n. 5] Part of the purpose of § 201, however, is to
criminalize certain behavior of government officials. See 18 U.S.C. §
201(b)(2). In addition, as noted above, the government itself states that
a prosecutor who corruptly bribes a witness to provide testimony is liable
under 18 U.S.C. § 201(b)(3), which, like § 201(c)(2), merely
uses the word "whoever" to identify potentially liable parties. [n. 6]
If "whoever" can refer to government agents in one part of the statute,
then it surely can refer to government agents in § 201(c)(2).
"It is an elementary tenet of statutory
construction that 'where 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, 107 L. Ed.
2d 782, 110 S. Ct. 680 (1990) (quoting Morton v. Mancari, 417 U.S. 535,
550-51, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974)). Rather, a specific statute
controls over the general. See Bulova Watch Co. v. United States, 365 U.S.
753, 758, 6 L. Ed. 2d 72, 81 S. Ct. 864 (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.
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 18 U.S.C. §§ 6001-6005, "reflect[]
the importance of testimony, and the fact that many offenses are of such
a character that the only persons capable of giving useful testimony are
those implicated in the crime." Kastigar v. United States, 406 U.S. 441,
446, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). The Supreme Court has characterized
the immunity statutes as "essential to the effective enforcement of various
criminal statutes," id. at 447, and "so familiar that they have become
part of our 'constitutional fabric,'" United States v. Mandujano, 425 U.S.
564, 575-76, 48 L. Ed. 2d 212, 96 S. Ct. 1768 (1976) (plurality op.) (quoting
Lefkowitz v. Turley, 414 U.S. 70, 81-82, 38 L. Ed. 2d 274, 94 S. Ct. 316
(1973)).
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 18 U.S.C. § 3521(a).
It allows the government to provide numerous things of value, see 18 U.S.C.
§ 3521(b)(1)(B) & (D) (authorizing the government to provide housing
and pay the basic living expenses for protected witnesses), in exchange
for the agreement of the witness "to testify in and provide information
to all appropriate law enforcement officials concerning all appropriate
proceedings," as set forth in a "memorandum of understanding." 18 U.S.C.
§ 3521(d)(1) & (d)(1)(A).
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 18 U.S.C.
§ 3553(e) (authorizing reductions below statutory minimum sentence);
28 U.S.C. § 994(n) (requiring the Sentencing Commission to assure
that Sentencing Guidelines "reflect the general appropriateness" of such
reductions); see also Fed. R. Crim. P. 35(b) (authorizing post-sentencing
reductions "in accordance with the guidelines and policy statements issued
by the Sentencing Commission under 28 U.S.C. § 994"). There can be
little doubt that Congress intended to include the provision of cooperative
testimony under the rubric of "substantial assistance." Both 18 U.S.C.
§ 3553(e) and 28 U.S.C. § 994(n) define such assistance in terms
of "the investigation or prosecution of another person who has committed
an offense." 18 U.S.C. § 3553(3) & 28 U.S.C. § 994(n) (emphasis
added). Although there are some forms of assistance in prosecution that
are neither testimonial nor duplicative of investigatory assistance, it
stretches credulity to suppose that Congress intended to exclude cooperative
testimony from "substantial assistance" as used in these statutes. See
Bridger Coal Co./Pac. Minerals v. Dir., Office of Workers' Compensation
Programs, 927 F.2d 1150, 1153 (10th Cir. 1991) (citations omitted) ("We
will not construe a statute in a way that renders words or phrases meaningless,
redundant, or superfluous.").
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 Fed. R. Crim. P. 11. "Where plea discussions and agreements are viewed
as proper, it is generally agreed that it is preferable that the fact of
the plea agreement be disclosed in open court and its propriety be reviewed
by the trial judge." Fed. R. Crim. P. 11(e) advisory committee's note to
1974 Amendment. This openness was intended to recognize plea bargaining
as "an ineradicable fact," and prevent it from being "driven underground,"
where it would otherwise "occur[] in an informal and largely invisible
manner" without "effective judicial review of the propriety of the agreements,
thus increasing the risk of real or apparent unfairness." Id. Consequently,
construing §§ 3553(e) and 994(n) not to cover pre-testimony negotiation
would contradict the very purpose of Rule 11 by eliminating its "appropriate
and adequate safeguards" embodied therein. Id. Defendants would have little
incentive to provide cooperative testimony, thereby frustrating Rule 11's
purpose in authorizing plea bargaining as "an essential component of the
administration of justice." Id. (quoting Santobello v. New York, 404 U.S.
257, 260, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971)).
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. [n. 7] It is for this reason that I concur
with the majority's result.
This analysis has several advantages
over that of the majority. It provides both a roadmap for the bargaining
process and a clearly articulated criminal statute with which to punish
straying prosecutors. The majority's reading of § 201(c)(2), on the
other hand, creates a conceptually messy legal regime for handling the
case of the errant United States Attorney "who offers something other than
a concession normally granted by the government," Maj. Op. at 11, such
as bribing a witness to provide false testimony.
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 11-12. 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 6, 9-10, 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 provisions,
as in this case, then § 201(c)(2) does not apply.
The court holds that 18 U.S.C. §
201(c)(2) does not apply to the government because government prosecutors
are inseparable from the sovereign, and that its application would deprive
the sovereign of its power to grant leniency in exchange for testimony
and would conflict with various statutory provisions. Because courts
must apply unambiguous statutes as they are written and § 201(c) does
not admit of an exception for the government or its prosecutors, I respectfully
dissent.
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 be
sure, the investigation and prosecution of criminal wrongdoing is an important
societal function. Yet, largely missing from the debate since the panel
opinion was issued is any concern for the other deeply held values that
§ 201(c) was intended to protect and which, I believe, the panel opinion
honored by applying § 201(c) as Congress wrote it. Those concerns
center on maintaining the integrity, fairness, and credibility of our system
of criminal justice. Criminal judgments are accepted by society at large,
and even by individual defendants, only because our system of justice is
painstakingly fair. An additional core value honored by the panel opinion
is the preservation of the separation of powers carefully articulated in
the Constitution between the legislative and judicial branches, and the
proper role of the judiciary as the law-interpreting, rather than lawmaking,
branch of the federal government.
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.
4. The panel's interpretation of
§ 201(c)(2) would not be retroactive. In Teague v. Lane, 489 U.S.
288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), the Court held that "new
constitutional rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are announced," id.
at 310, unless the new rule "places certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe,"
or could be considered a "watershed rule[] of criminal procedure," the
observance of which is "implicit in the concept of ordered liberty." Id.
at 311 (internal citations and quotations omitted). Teague does not apply
to the statutory construction of a substantive criminal statute, and therefore,
there would be no retroactivity under Teague. See Bousley v. United States,
140 L. Ed. 2d 828, 118 S. Ct. 1604, 1610 (1998). 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, 82 L. Ed. 314, 58 S. Ct. 275 (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.
PORFILIO, Circuit Judge.
(c) Whoever--
18 U.S.C. § 201(c)(2) (1994).
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.
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, 1998 WL 830587, *8 (6th Cir. Dec. 3, 1998).
1. The concurrence finds some oddity
in our reference to a United States Attorney as both the alter ego of the
government and a governmental agent. There is no disparity in the two concepts
because the United States Attorney has duties other than prosecution. Therefore,
when prosecuting a criminal matter in the name of the United States, he
is the government, but when performing another duty of his office, he is
an officer or agent of the government.
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.
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.
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 [*11]
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) ("Where 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, 82 L. Ed. 314, 58 S. Ct. 275 (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,
F.3d , 1998 WL 842185, at *8 (5th Cir. Dec. 7, 1998);
Ware, 161 F.3d 414, 1998 WL 830587, at *9; United States v. White,
F. Supp. 2d , 1998 WL 758830, at *2-3 (E.D.N.C. 1998);
United States v. Hammer, F. Supp. 2d
, 1998 U.S. Dist. LEXIS 16279, 1998 WL 725211, at *17 (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 U.S. Dist. LEXIS 13509, 1998 WL 556152, at *3 (S.D.N.Y.
Sept. 1, 1998). But see United States v. Revis, 22 F. Supp. 2d 1242, 1998
WL 713229 (N.D. Okla. 1998); United States v. Fraguela, 1998 U.S. Dist.
LEXIS 14347, 1998 WL 560352 (E.D. La. Aug. 27, 1998).
no 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 U.S. Dist.
LEXIS 13036, 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.").
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, 115 L. Ed. 2d 96, 111 S. Ct. 2166 (1991)
(citations and quotation marks omitted); see also Green v. Bock Laundry
Machine Co., 490 U.S. 504, 521-22, 104 L. Ed. 2d 557, 109 S. Ct. 1981 (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.
2. The concurrence expresses a concern
our disposition would "permit the conclusion that consistent with the provisions
of § 201, a United States Attorney may pay a prosecution witness for
false testimony." We believe the concern is misplaced. It is inconceivable
that any court would hold that a prosecutor who pays for the false testimony
of a witness is carrying out an official function of the government. Our
disposition protects only those prosecutorial acts of the government which
have been recognized in common law or authorized by statute. A prosecutor
who goes beyond those limitations is clearly not performing a governmental
function. Moreover, a prosecutor who procures false testimony is surely
subject to penalty under 18 U.S.C. § 1622.
The dissent's observation that both
statutes employ the word "whoever" misses our point. "Whoever" includes
the prosecutor in § 1622 because subornation of perjury is not an
official governmental function.
LUCERO, J., with whom Judge HENRY
joins, concurring.
1. The Singleton panel limits its
analysis to "three specific promises made by the government to Mr. Douglas
in return for his explicit promise to testify." Singleton v. United States,
144 F.3d 1343, 1344 (10th Cir. 1998). The second and third promises relate
expressly to the government's advising sentencing bodies of the extent
of Douglas's cooperation. See I R. doc. 109, at 2. It is these promises
that are properly before us because the first promise--forbearance from
prosecution for certain offenses--may be understood as consideration for
Douglas's plea of guilty to six separate criminal counts. See id. at 1
("In exchange for the plea of guilty . . . and the defendant's cooperation
. . ., the United States agrees . . . .") (emphasis added); Fed. R. Crim.
P. 11(e)(1)(A). It should be understood in this manner because, in the
absence of evidence to the contrary, plea agreements--like contracts--are
construed to render each term lawful. See Restatement (Second) of Contracts
§ 203(a) (1979) ("An interpretation which gives a reasonable, lawful,
and effective meaning to all the terms is preferred to an interpretation
which leaves a part unreasonable, unlawful, or of no effect.") & id.
at § 207 ("In choosing among the reasonable meanings of a promise
or agreement or a term thereof, a meaning that serves the public interest
is generally preferred.").
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 18
U.S.C. § 3553(e) and 28 U.S.C. § 994(n), passed as part of the
Sentencing Reform Act of 1984, which allow courts, acting pursuant to the
Sentencing Guidelines and upon motion of the government, to reduce sentences
for individuals who provide "substantial assistance in the investigation
or prosecution of another"; the federal immunity statutes, 18 U.S.C. §§
6001-6005, passed as part of the Organized Crime Control Act of 1970, which
require courts, upon the request of the government, to confer immunity
upon witnesses for their testimony in aid of the prosecution; and the Witness
Relocation and Protection Act, 18 U.S.C. §§ 3521-3528, passed
as part of the Comprehensive Crime Control Act of 1974, which allows the
government to bestow various benefits for the protection of cooperating
witnesses. Because these specific statutes are in conflict with the general
prohibitions of § 201(c)(2), the specific statutes control, and permit
the prosecution's actions in this case. Whereas the majority considers
these statutes to be unnecessary to its result, see Maj. Op. at 11, I find
them dispositive.
I
A
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 § 201(c)(2) because the statute falls within both these classes.
I respectfully disagree.
3. Although the majority infers
that United States Attorneys are in fact "alter egos" of the government,
"acting within the scope of authority conferred upon that office . . .
[and] exercising [the government's] sovereign power of prosecution," Maj.
Op. at 6, it also characterizes United States Attorneys as "officers and
agents" of the government. Id.
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 18 U.S.C. § 201(b)(3). See Appellee's
Supp. Br. at 15. In short, neither of Nardone's two exceptions supports
the majority's result.
B
5. 1 U.S.C. § 1 states in part:
"In determining the meaning of any act of Congress, unless the context
indicates otherwise . . . the words 'person' and 'whoever' include corporations,
companies, associations, firms, partnerships, societies, and joint stock
companies, as well as individuals."
6. An important aspect of the government's
argument in this respect is that the corrupt prosecutor is acting "ultra
vires." This is unpersuasive not only because it contradicts the statute's
plain meaning, but because it would destroy the logic of the regime that
Congress has created to regulate the bargaining process with, and testimony
of, cooperating witnesses. See infra, section II.
Furthermore, the structure of 18
U.S.C. § 201 indicates that "whoever" is inclusive of public officials.
Sections 201(b) and (c) plainly state that "whoever" performs certain acts
shall be punished under Title 18. For certain offenses, however, §§
201(b)(2) and (c)(1)(B) limit their scope to "whoever . . . being a public
official[, former public official,] or person selected to be a public official."
18 U.S.C. §§ 201(b)(2) and (c)(1)(B). The use of the limiting
construction "being a public official" necessarily implies the inclusion
of such officials within the catch-all term "whoever." Logically, a person
falling within the scope of the construction "whoever . . . being" necessarily
falls within the larger scope of "whoever"--thereby indicating that "whoever"
cannot be construed to exclude those public officials. More generally,
of course, §§ 201(b)(2) and (c)(1)(B) demonstrate Congress's
ability to limit certain offenses under § 201 to certain classes of
individuals when it wishes to do so. The choice not to so limit §
201(c)(2) carries a clear implication that is wrongly ignored by the majority.
I
A
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, 79 L. Ed. 2d
552, 104 S. Ct. 1237 (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, 74 L. Ed. 2d 430, 103 S. Ct. 608 ("'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." 18 U.S.C. § 6003(a).
Pursuant to these grants of statutory
authority, the Sentencing Commission has issued a policy statement entitled
"Substantial Assistance to Authorities," see U.S.S.G. § 5K1.1, which
allows a downward departure in consideration of "the truthfulness, completeness,
and reliability of any information or testimony provided by the defendant."
U.S.S.G. § 5K1.1(a)(2). Courts have upheld the exchange of testimony
for leniency under this authority. See, e.g., United States v. Courtois,
131 F.3d 937, 938-39 (10th Cir. 1997) (holding that prosecution may bargain
away its discretion not to file a § 5K1.1 motion) (citing Wade v.
United States, 504 U.S. 181, 185, 118 L. Ed. 2d 524, 112 S. Ct. 1840 (1992)).
7. Where § 201(c)(2) does give
way, the requirements of constitutional due process and confrontation,
as well as the rules of criminal procedure, will continue to protect the
accused. Thus, prosecutors must disclose to the defendant "evidence of
any understanding or agreement . . . [that] would be relevant to [a witness's]
credibility." Giglio v. United States, 405 U.S. 150, 154-55, 31 L. Ed.
2d 104, 92 S. Ct. 763 (1972); see also Davis v. Alaska, 415 U.S. 308, 316-17,
39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) ("The exposure of a witness's motivation
in testifying is a proper and important function of the constitutionally
protected right of cross-examination."). Additionally, the court plays
an important role in reviewing plea agreements. See Fed. R. Crim. P. 11(c)
(requiring court to advise defendant with respect to plea agreement); Fed.
R. Crim. P. 11(d) (requiring court to insure that plea is voluntary); Fed.
R. Crim. P. 11(e) (permitting court to reject plea agreement).
B
KELLY, Circuit Judge, with whom
SEYMOUR, Chief Judge, and EBEL, Circuit Judge, join, dissenting.
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,
16 L. Ed. 2d 694, 86 S. Ct. 1602 (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.
Contrary to the concerns expressed
by some commentators and courts, see United States v. Ware, 161 F.3d 414,
1998 WL 830587 (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, No. 97-10307, 1998 WL 842185, at *8 (5th Cir. Dec. 7, 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,
18 L. Ed. 2d 1019, 87 S. Ct. 1920 (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, 18 U.S.C. § 1622, [n. 2] such a remedy
offers little practical advantage to a defendant facing trial. By barring
an exchange of leniency for testimony, Congress in § 201(c) has sought
to eliminate, at the source, the most obvious incentive for false testimony.
2. Like § 201(c)(2), the subornation
of perjury statute applies to "whoever," and makes no exception for federal
prosecutors.
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. [n. 3] Finally, the government could
request that the district court order an accomplice to testify under a
grant of immunity. Surely the Department has the ability and resources
to come up with effective and lawful means for procuring necessary accomplice
testimony. However, I also accept the defense attorneys' position that
government leniency in exchange for testimony can create a powerful incentive
to lie and derail the truth-seeking purpose of the criminal justice system.
The very nature and complexity of this policy debate reinforces my initial
belief that this is an argument better left to Congress. This court must
perform its constitutional duties and no more. Ours is not to explore the
farthest meanings that the term "whoever" can bear so as to effectuate
the policy we think best. Our duty is to interpret the plain meaning of
the statute. I continue to believe that meaning is clear: § 201(c),
as written, applies to prosecutors and criminal defendants alike. If the
balance struck by § 201 is to be reweighed, that reweighing should
be done by the policymaking branch of government - the Congress, and not
the courts. In that regard, it bears repeating that the panel's original
opinion was purely a matter of statutory construction, not constitutional
analysis, and it remains completely open for Congress to reweigh the conflicting
values sought to be addressed in § 201. [n. 4]
3. One way prosecutors could obtain
information and assistance short of actual testimony at trial is to enter
into a plea agreement with a defendant under Fed. R. Crim. P. 11(e). Section
201(c) does not prohibit Rule 11(e) plea agreements in which the defendant
pleads in exchange for information helpful to the prosecution if the plea
agreement is not conditioned on the defendant testifying. However, the
prosecutor could record the plea discussions to preserve the information
provided by the defendant. After the defendant enters his 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, 130 L. Ed. 2d 697, 115 S. Ct. 797 (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.
Although the remedy of exclusion
of evidence based upon a statutory violation arguably constitutes a non-constitutional
rule of criminal procedure, see Amicus NACDL Br. at 15-19, such a rule
also would not appear to come within Teague or its exceptions to finality.
Although the concerns of comity are not present when a federal court reviews
federal convictions, the concern with finality apparent in Teague is no
less important. Cf. 28 U.S.C. § 2255 (one-year limitation period applicable
to § 2255 motions).
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, 1 U.S.C. §
1, definition of "whoever" includes, but is not limited to, corporations,
companies, associations, firms, partnerships, societies, and joint stock
companies--all inanimate entities. Contextually, the government concedes
that "whoever" in § 201(b) applies to the government and it acknowledges
that § 201(c) applies to the government if the government pays an
informant money to testify. It makes absolutely no sense to give "whoever"
one meaning in § 201(b) (and in § 201(c) when the inducement
offered by the government is money) and to give the very same word a completely
different meaning in § 201(c) when the inducement offered is leniency
or some other promise to improve the informant's position. After all, §
201(c) is a prophylactic rule to enforce § 201(b). "The interrelationship
and close proximity of these provisions of the statute presents a classic
case for application of the normal rule of statutory construction that
identical words used in different parts of the same act are intended to
have the same meaning.'" Commissioner v. Lundy, 516 U.S. 235, 250, 133
L. Ed. 2d 611, 116 S. Ct. 647 (1996) (internal quotations and citations
omitted). Bought testimony is so fraught with the potential for perjury
that Congress imposed a blanket prohibition that also applies to the government,
just as hearsay testimony is so fraught with the potential for unreliability
that the Federal Rules of Evidence generally prohibit its admission, whether
offered by the government or private litigants.