A federal grand jury in Kansas charged defendant Sonya Singleton with
conspiring to distribute cocaine and with money laundering. Prior to trial, the
United States entered into a court-approved plea agreement with Napoleon
Douglas (one of Singleton's coconspirators), in which Douglas agreed to plead
guilty and testify truthfully in return for leniency. Douglas testified at
Singleton's trial, and the jury convicted her. A panel of this Court reversed
the convictions, holding that the prosecutor violated 18 U.S.C. §
201(c)(2), a criminal statute barring the giving of things of value...for or
because of [a witness's] testimony," by offering Douglas leniency in return for
his truthful trial testimony. The panel further held the remedy for this
statutory violation was suppression of Douglas's testimony, thus effectively
rendering him incompetent as a witness.
I. PROSECUTORS DO NOT VIOLATE THE FEDERAL CRIMINAL STATUTE PROHIBITING
GRATUITIES TO WITNESSES BY ENGAGING IN THE HISTORICAL AND
CONGRESSIONALLY-SANCTIONED PRACTICE OF CONFERRING LENIENCY TO COOPERATING
WITNESSES WHO TESTIFY TRUTHFULLY AGAINST CRIMINAL DEFENDANTS.
The panel's conclusion that prosecutors commit a federal criminal offense when
they engage in the everyday practice of offering leniency for a witness's
truthful testimony was a radical departure from history, practice, and
established law. Not only did the panel make a criminal out of nearly every
federal prosecutor, it suppressed highly relevant evidence and would have
crippled enforcement of federal criminal and civil law. In the ten days of its
existence, the decision caused chaos in district courts and U.S. Attorney's
offices in this Circuit and significant disruption throughout the rest of the
Congress did not intend that result. To the contrary, Congress has enacted
numerous laws that expressly authorize federal prosecutors to confer benefits
on cooperating witnesses in return for their testimony. Congress enacted those
laws against an unbroken historical record of judicial approval for the
practice of offering leniency in exchange for truthful testimony, and there is
no indication section 201(c)(2) was intended to overturn this settled practice,
Congress cannot be deemed -- without a clear and explicit statement -- to have
criminalized a widespread, important, and judicially sanctioned practice that
it has encouraged in many other statutes. The panel's contrary conclusion is
incorrect, leads to absurd results, and should be rejected.
The panel erred in applying section 201(c)(2) to the United States acting in
its sovereign capacity. As the panel acknowledged, federal statutes
presumptively do not apply to the federal government unless they expressly
include it within their scope. That presumption fully applies here and provides
a further basis for rejecting the panel's conclusion.
B. Congress's Enactment Of Statutes Authorizing Prosecutors To Confer
Benefits In Return For Testimony Shows It Never Intended To Make That Practice
A Federal Crime.
Section 201(c)(2) subjects to criminal liability; "Whoever...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" in federal trials or proceedings. Congress first
enacted a version of this statute as part of its revision of the criminal code
in 1948. The legislative history, which states that Congress enacted that
provision to "mak[e] it unlawful to offer a bribe to a witness" contains no
suggestion it applied to prosecutors who seek to obtain truthful testimony by
extending leniency ... .
Since enacting the gratuity statue, Congress has established a statutory and
regulatory scheme that not only permits, but affirmatively encourages, the
United States to offer leniency and other benefits to cooperating witnesses to
obtain their testimony. Indeed, the Supreme court recently noted that two
federal rules, Fed. R. Crim. P. 11 and Fed. R. Evid. 410, have the "goal of
encouraging plea bargaining... . " United States v. Mezzanatto, 513 U.S.
196, 207 (1995). ...
Many other federal statutes authorizing prosecutors to offer leniency in return
for testimony confirm that Congress did not intend to make that practice
illegal in section 201(c)(2). First and most crucially, the Sentencing Reform
Act of 1984, as amended, contains three provisions authorizing sentencing
reduction -- upon government motion -- for cooperators who provide
"substantial assistance in the investigation or prosecution of another"
criminal (emphasis added). See 18 U.S.C. § 3553(e) (reduction below
minimum statutory sentence); 28 U.S.C. § 994(n) (requiring Sentencing
Commission to allow guideline reductions); Fed R Crim. P. 35(b) (reduction for
poet-sentencing cooperation). Contrary to the panel's assertion, the phrase
"substantial assistance in... prosecution" cannot reasonably be read to exclude
"testimony"; most cooperators can substantially assist a "prosecution" -- as
opposed to an "investigation" -- only by testifying... .
Second, before and after enacting section 201(c)(2) and its predecessors,
Congress authorized prosecutors to confer immunity on witnesses in return for
testimony. The current immunity statute, 18 U.S.C. §§ 6001-6005,
specifically allows federal prosecutors to give immunity to witnesses to obtain
testimony in any judicial proceeding. ...
Third, the Witness Relocation and Protection Act authorizes the Attorney
General to give things of value -- housing, payment of living expenses, and
other services -- in return for a witness's agreement "to testify" and provide
Fourth, in 18 U.S.C. § 3059B, Congress authorized the Attorney General,
"notwithstanding any other provision of law," to pay a reward "to any
individual who assists the Department of Justice in performing its functions."
Those "functions" plainly include presenting truthful testimony in federal
As the panel noted, it is a "'classic judicial task'" to "'reconcil[e] many
laws enacted over time, and get  them to make sense in combination.'" The
panel's decision fails to accomplish this task. Section 201(c)(2) makes sense
in light of all the statutes Congress has enacted over time only if interpreted
to exclude promises of leniency made by government attorneys to obtain
testimony for use in federal criminal and civil proceedings.
C. Congress Did Not Intend To Overturn The Longstanding Practice Of Allowing
Cooperating Defendants To Testify Even Though They Expect Leniency Or A
Section 201(c)(2) must also be construed in light of a well-established and
unbroken body of law, dating to pre-Revolutionary England, allowing cooperating
criminals to testify against their confederates in the hope of receiving
leniency. More than a century ago, in The Whiskey Cases (United States v.
Ford), 99 U.S. 594, 599-600 (1878), the Supreme Court described the
"ancient doctrine of approvement" that entitled capital defendants to an
executive pardon if their testimony resulted in the conviction of another
More recently, in Hoffa v. United States, 385 U.S. 293, 310-312 (1966),
the Supreme Court rejected the contention that the testimony of an informant
who had been paid for his cooperation required the reversal of a criminal
conviction. The Court reiterated that "[i]nsofar as the general attack upon the
use of informants is based upon historic 'notions' of 'English-speaking
peoples,' it is without historical foundation," Id. at 311. Instead, the
Court quoted Judge Learned Hand for the proposition that "'[c]ourts have
countenanced the use of informers from time immemorial....'" Id. While
agreeing that an informant may sometimes have a motive to lie, the court held
that "it does not follow" that the informant's testimony is either "untrue" or
"constitutionally inadmissible." Id. Instead, "[t]he established
safeguards of the Anglo-American legal system leave the veracity of a witness
to be tested by cross-examination, and the credibility of his testimony to be
determined by a properly instructed jury." Id. ...
Many other cases recognize the longstanding practice of offering defendants
leniency and other concessions in return for testimony. ...
As the panel acknowledged (op. 38-43), no court has found that the government
violates section 201(c)(2) by providing leniency in return for testimony.
Instead, every federal court of appeals with jurisdiction over criminal cases
has allowed, and trusted juries to evaluate, testimony of cooperating
government whiteness testifying in return for sentencing or financial
D. The Panel Erred In Concluding That The Term "Whoever" In Section 201
(C)(2) Encompassed The United States.
Relying on the maxim that "the king is subject to the law," the panel held the
statutory term "whoever" includes the United States. That conclusion is
erroneous,. and section 201(c)(2) is more properly read as excluding the United
States from its scope.
The Dictionary Act defines "whoever" in a manner that does not expressly
include the federal government. Moreover, as the panel acknowledged, "[t]he
Supreme Court has recognized a limited canon of construction which provides
that statutes do not apply to the government of affect governmental rights
unless the text expressly includes the government." (citing United States v.
Nardone, 302, U.S. 379, 383 (1987); and United States v. Herron, 87 U.S. 251,
255 (1873)). The panel declined to apply this presumption because 1) applying
the statute to the United States "does not restrict any interest of the
sovereign itself" but "operates only upon an agent of the sovereign, limiting
the way in which that agent carries out the government's interests"; 2)
including the United States within the statute is necessary "to prevent fraud,
injury, or wrong"; and 3) applying the law to the United States would not "work
obvious absurdity." The panel erred in all three respects.
First, the panel's decision does not apply section 201(c)(2) only to an "agent"
of the United States, but to the United States in its sovereign capacity. The
United States, not individual prosecutors, brings federal criminal cases, and
thus it is the United States that enters into plea agreements to settle such
cases and confer benefits on testifying witnesses. By depriving the United
States of a crucial means to obtain convictions in criminal case (and judgments
in civil enforcement cases), the panel's decision obstructs the government's
interest in enforcing federal law. ...
Second, including the United States within section 201(c)(2) is not necessary
to prevent illegality. A prosecutor who truly acts wrongly, by, for example,
"corruptly" bribing a witness, is liable under 18 U.S C. § 201(b)(3), and
possibly other statutes such as 18 U.S.C. § 1512(b). For this reason, the
panel wrongly feared that if the gratuity statute did not apply to federal
prosecutors' plea concessions, "then the statute would not prohibit [AUSAs]
even from bribing a witness with money in exchange for favorable testimony,
which the government concedes the statute prohibits." Section 201(b)(3) can be
applied to corrupt federal prosecutors because doing so disturbs no sovereign
interest (since the action is ultra vires) and upsets no settled tradition of
criminal practice. Unlike defense lawyers or other members of the public,
prosecutors have an affirmative obligation to disclose benefits they confer on
a witness, and defendants are entitled to cross-examine witnesses concerning
any benefits they received from the government. Finally, leniency conferred
under a plea agreement, as here, is subject to the approval of the district
Third, the panel's conclusion plainly works absurd results. The United States
relies on witnesses who testify in return for leniency in literally thousands
of cases each year, including major cases such as the Oklahoma City
bombing prosecutions. Without such testimony, the government could not enforce
the drug laws, could not prosecute organized crime figures under RICO,
and could not prosecute many other cases "of such a character that the only
persons capable of giving useful testimony are those implicated in the crime."
Kastigar, 406 U.S. at 446. The panel decision, in the very short time it
remained in effect, jeopardized important cases in all eight judicial districts
in this Circuit. In addition, in regulatory enforcement and civil penalty
cases, the government frequently must make concessions to persons with relevant
testimony to offer. Congress could not have intended the absurd result of
forbidding all such testimony in federal trials. ...
The panel's reasoning also makes criminals of all federal judges who have
approved a plea agreement making concession for testimony or who have granted a
sentencing reduction (under USSG § 5Kl.1(a)(2) or under pre-guidelines
practice) based in part on a defendant's truthful testimony. The full Court
should not countenance this absurd result. ...