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 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:
(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. 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:
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.
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.
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.
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,
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.
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.
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.
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.
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, 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.
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.
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.
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 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)).
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).
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)).
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)).
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.
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.
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.
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.
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.