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. The en banc court vacated the panel
decision, 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.|
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.
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, 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. 18 U.S.C. § 201(c)(2) (1994).
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
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
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. 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. 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
Put into proper context, then, the defendant's argument is: in a criminal
prosecution, the word "whoever" in the statute includes within its scope the
United States acting in its sovereign capacity. Extending that premise to its
logical conclusion, the defendant implies Congress must have intended to
subject the United States to the provisions of section 201(c)(2), and,
consequently, like any other violator, to criminal prosecution. Reduced to this
logical conclusion, the basic argument of the defendant is patently absurd.
There is even a more fundamental reason for arriving at the same conclusion,
however. Although Congress may, by legislative act, add to or redefine the
meaning of any word, it did not do so in the passage of section 201(c)(2).
Therefore, we must presume it intended to employ the common meaning of the
word. The word "whoever" connotes a being. See Webster's Third New
International Dictionary 2611 (1993) (defining "whoever" as "whatever person:
any person"). The United States is an inanimate entity, not a being. The word
"whatever" is used commonly to refer to an inanimate object. 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 parens patriae, or
universal trustee, enters as much into our political state as it does into the
principles of the British constitution.
We have already established the absurdity in trying to apply section 201(c)(2)
to the sovereign's prosecutorial powers ... .
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.
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. 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. We simply believe the
general principles we have set forth so completely undercut defendant's reading
that further exposition would be redundant.
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. n2
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