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693

Supplemental Brief—Singleton

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,          )
                                   )
          Plaintiff-Appellee,      )
                                   )
v.                                 )    Case No. 97-3178
                                   )
SONYA EVETTE SINGLETON,            )
                                   )
          Defendant-Appellant.     )

SUPPLEMENTAL BRIEF OF THE UNITED STATES
JAMES K. ROBINSON
Assistant Attorney General
Criminal Division

JACKIE N. WILLIAMS
United States Attorney
District of Kansas

SEAN CONNELLY
Attorney, U.S. Department of Justice
1961 Stout Street, Suite 1300
Denver, CO  80294
(303) 454-0361
QUESTION PRESENTED

Whether a federal prosecutor violates the federal criminal statute barring gratuities to witnesses (18 U.S.C. §  201(c)(2)) by executing a plea agreement in which the United States promises leniency in return for truthful testimony by a cooperating witness.

BACKGROUND

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.

ARGUMENT

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.

A. Introduction.

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 country.

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. See Statutory Addendum. The legislative history, which states that Congress enacted that provision to "mak[e] it unlawful to offer a bribe to a witness" (Revisor's Note), contains no suggestion it applied to prosecutors who seek to obtain truthful testimony by extending leniency. In 1962, when revising this provision into its current form, Congress made bribing a witness a separate offense, but gave no indication it intended to include under the new gratuity statute prosecutors who engage in the everyday practice of offering leniency to cooperating witnesses. Instead, the legislative h istory of this revision states it "would make no significant changes of substance." S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3853.

Since enacting the gratuity statute, 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); see also Santobello v. New York, 404 U.S. 257, 260 (1971) ("The disposition of criminal charges by agreement between the prosecutor and the accused ... is an essential component of the administration of justice."). As the Court recognized in Mezzanatto, plea bargaining frequently requires the prosecutor to decide "whether to extend leniency or full immunity to some suspects in order to procure testimony against other, more dangerous suspects" because "prosecutors often need help from the small fish in a conspiracy in order to catch the big ones." 513 U.S. at 207, 208. Accordingly, Rule 11 allows prosecutors to seek dismissal of other charges, agree on sentencing issues, and make other "promises" in a plea agreement that must be disclosed to and accepted by the court. Fed. R. Crim. P. 11(d, e, g). Rule 11 recognizes "the propriety of plea discussions" and that "a plea agreement may also contribute to the successful prosecution of other more serious offenders." See 1974 Advisory Committee Notes.

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 post-sentencing cooperation). Contrary to the panel's assertion (op. 35), 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. Undoubtedly for that reason, the Sentencing Commission implemented these statutory commands by requiring courts to consider "the truthfulness, completeness, and reliability of any information or testimony provided by the defendant" in determining whether to reward a defendant who has cooperated with authorities. See U.S.S.G. §  5K1.1(a)(2). Similarly, this Court has held that "[t]he Government may impose the duty to give truthful testimony as a condition of favorable treatment." United States v. Gomez, 810 F.2d 947, 956 (10th Cir.), cert. denied, 482 U.S. 908 (1987).

Second, before and after enacting section 201(c)(2) and its predecessors, Congress authorized prosecutors to confer immunity on witnesses in return for testimony. See Kastigar v. United States, 406 U.S. 441, 445-47 (1972) (outlining history of immunity statutes dating back to Eighteenth Century). 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. Immunity statutes "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, 406 U.S. at 446; see id. at 447 (immunity statutes are "essential to the effective enforcement of various criminal statutes" and "part of our constitutional fabric") (internal quotations omitted).

The panel recognized that if the immunity statute were read to authorize prosecutors to confer a benefit for testimony, it would "conflict" with section 201(c)(2). Op. 14. To avoid this "absurdity," the panel reasoned that the government does not confer a benefit under the immunity statute because it does "not give immunity directly for the witness's testimony" but merely "move[s] the court to grant immunity." Op. 14. This distinction ignores the realities of the immunity statute, under which the executive branch, and not the courts, is the critical participant. United States v. Doe, 465 U.S. 605, 616 (1984) ("Congress gave certain officials in the Department of Justice exclusive authority to grant immunities" and "foresaw the courts as playing only a minor role in the immunizing process") (internal quotations omitted); see 18 U.S.C. §  6003(a) (court "shall issue" immunity order). The panel's distinction also fails to recognize that prosecutors may give "informal immunity" in return for testimony, a practice this Court has characterized as "entirely proper." United States v. Kilpatrick, 821 F.2d 1456, 1479 (10th Cir. 1987), aff'd sub nom. Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). Finally, given that section 201(c)(2) covers anyone directly or indirectly giving an illegal gratuity, fidelity to the panel's analysis would preclude judges as well as prosecutors from granting immunity.

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 cooperation. See 18 U.S.C. § 3521(b)(1) and (d)(1)(A). Among statutory factors the Attorney General must consider are "the need for" and "relative importance of" the witness's "testimony." Id. (c). Contrary to the panel's investigative/testimonial line, Congress recognized that "[e]ach step of the evidence gathering process moves toward the production of live testimony, testimony that is necessary to bring criminal sanctions into play...." S. Rep. No. 225, 98th Cong., 1st Sess. 407 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3545.

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." See also 18 U.S.C. §§ 3071-3077. Those "functions" plainly include presenting truthful testimony in federal trials. Congress has also enacted a variety of statutes authorizing rewards for "information" about crimes. E.g., 19 U.S.C. § 1619 (customs laws); 26 U.S.C. § 7623 (tax laws); 28 U.S.C. § 524(c)(1)(C) (forfeiture). Such statutes may result in rewards for information that includes testimony. See, e.g., United States v. Murphy, 41 U.S. (16 Pet.) 203, 210-211 (1842); United States v. Cuellar, 96 F.3d 1179, 1182-1183 (9th Cir. 1996), cert. denied, 117 S. Ct. 1117 (1997); United States v. Wilson, 904 F.2d 656, 660 (11th Cir. 1990), cert. denied, 502 U.S. 889 (1991).

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.'" Op. 14-15 (quoting United States v. Fausto, 484 U.S. 439, 453 (1988)). 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 Pardon.

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 defendant. By the time of The Whiskey Cases, a witness who confessed and testified against another was not automatically entitled to a pardon but rather could ask the court to stop his own prosecution so he could petition the executive for "mercy." Id. at 600. The Supreme Court described this as giving "a kind of hope to the accomplice that if he behaves fairly and discloses the whole truth, he may, by a recommendation to mercy, save himself from punishment and secure a pardon" but that "if he acts in bad faith, or fails to testify fully and fairly, he may still be prosecuted as if he had never been admitted as a witness." Id. (citing Rex v. Rudd, 99 Eng. Rep. 1114 (1775)).

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. (citation omitted). 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. In Benson v. United States, 146 U.S. 325, 333-37 (1892), the Supreme Court held that "[a]n accomplice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant's conviction...." Id. at 334 (internal quotation marks and citation omitted). In Lisenba v. California, 314 U.S. 219, 227 (1941), the Court held that "the practice of taking into consideration, in sentencing an accomplice, his aid to the state in turning state's evidence can be no denial of due process to a convicted confederate." In Giglio v. United States, 405 U.S. 150 (1972), the Court held that prosecution promises of leniency to witnesses are impeachment evidence falling within the constitutional disclosure rule of Brady v. Maryland, 373 U.S. 83 (1963). See also United States v. Bagley, 473 U.S. 667 (1985).

As the en banc Fifth Circuit explained, in overturning a series of cases suppressing testimony of prosecution witnesses who were promised contingent fees for their testimony, "[n]o 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), cert. denied, 484 U.S. 1026 (1988). Congress generally provided in Fed. R. Evid. 601 that "[e]very person is competent to be a witness," a Rule clearly encompassing informants who have received benefits for testifying. Long before Rule 601, a person "receiv[ing] a reward for or upon the conviction of the offender" was "universally recognised as a competent witness." United States v. Murphy, 41 U.S. (16 Pet.) at 211. Contrary to Rule 601 and Murphy, the panel effectively held such persons incompetent to testify as government witnesses in federal criminal cases.

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 witnesses testifying in return for sentencing or financial considerations. In United States v. Peister, 631 F.2d 658, 663 (10th Cir. 1980), cert. denied, 449 U.S. 1126 (1981), this Court allowed testimony from two witnesses promised informal immunity in the District of Colorado. See also United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988); United States v. Dailey, 759 F.2d 192, 198-200 (1st Cir. 1985); United States v. Persico, 832 F.2d 705, 716-717 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988); United States v. DeLarosa, 450 F.2d 1057, 1060 (3d Cir.), cert. denied, 405 U.S. 957 (1972); United States v. Morgan, 942 F.2d 243, 247 (4th Cir. 1991); Cervantes-Pacheco, supra; United States v. Grimes, 438 F.2d 391, 395-396 (6th Cir.), cert. denied, 402 U.S. 989 (1971); United States v. Valona, 834 F.2d 1334, 1344 (7th Cir. 1987); United States v. Spector, 793 F.2d 932, 936-937 (8th Cir. 1986), cert. denied, 479 U.S. 1031 (1987); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1338 n.19 (9th Cir. 1977), cert. denied, 436 U.S. 926 (1978); United States v. Valle-Ferrer, 739 F.2d 545, 546-547 (11th Cir. 1984).

Against this background, the panel decision violates the rule of statutory construction that "[a] party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change." Green v. Bock Laundry Machine Co., 490 U.S. 504, 521 (1989). When legislation is claimed to have fundamentally altered an "ingrained" practice with historical roots dating back centuries, a court should not accept that interpretation without express statutory language or at least legislative history reflecting congressional intent to effectuate the change. In contrast, congressional silence in both the text and legislative history "can be likened to the dog that did not bark" and thus provided Sherlock Holmes an important clue: "'In a case where the construction of legislative language such as this makes so sweeping and so relatively unorthodox a change as that made here, ... judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night.'" Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991) (quoting dissenting opinion of Rehnquist, J., in Harrison v. PPG Industries, Inc., 446 U.S. 578, 602 (1980)).

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. See 1 U.S.C. § 1 ("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"). Cf. United States v. United Mine Workers, 330 U.S. 258, 275 (1947) (the term "persons" "does not include the sovereign, and statutes employing it will ordinarily not be construed to do so"). 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 or affect governmental rights unless the text expressly includes the government." Op. 8 (citing United States v. Nardone, 302 U.S. 379, 383 (1937); 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." Op. 8-10. 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. See, e.g., 18 U.S.C. § 3553(e) (allowing downward departure "on motion of the government"). By depriving the United States of a crucial means to obtain convictions in criminal cases (and judgments in civil enforcement cases), the panel's decision obstructs the government's interest in enforcing federal law. The court's interpretation of section 201(c)(2) therefore directly "deprive[s] the sovereign of a recognized or established prerogative title or interest." Nardone, 302 U.S. at 383.

Nardone, which stated that "[t]he 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" (302 U.S. at 383), is instructive. Given that "[f]or years controversy ha[d] raged with respect to the morality of" police wiretaps, the Nardone Court refused to exempt federal agents from an anti-wiretap statute without an express statement of congressional intent to that effect. Id. at 384; see Olmstead v. United States, 277 U.S. 438, 471-485 (1928) (Brandeis, J., dissenting). Here, in contrast, the legality of the government offering leniency for testimony has never been questioned, and there is no reason to presume Congress meant to outlaw it. Also, unlike the investigative agents whose extrajudicial actions were at issue in Nardone, federal prosecutors directly represent the government in criminal cases and are thus alter egos of the United States in its sovereign capacity. United States v. Arizona, 295 U.S. 174, 184 (1935), on which the panel relied, is inapposite because it involved "regulatory and disciplinary measures" and "[n]o valid reason has been or can be suggested why they should apply to private persons and not to federal and state officers."

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" (op. 15). 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. See Giglio, 405 U.S. 150; Davis v. Alaska, 415 U.S. 308, 316-17 (1974). Finally, leniency conferred under a plea agreement, as here, is subject to the approval of the district court. Fed. R. Crim. P. 11(e).

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. See United States v. Granderson, 511 U.S. 39, 47 n.5 (1994) (statute's plain meaning disregarded if it "leads to an absurd result"); Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 454-55 (1989) (similar); In re Investment Bankers, Inc., 4 F.3d 1556, 1564 (10th Cir. 1993) (similar), cert. denied, 510 U.S. 1114 (1994).

While acknowledging "difficulties in proving certain types of crimes," the panel found the government could "overcome those difficulties" by using "compulsory process." Op. 30. The panel also predicted its holding would not "drastically alter" the criminal justice system because "[t]he government may still make deals with accomplices for their assistance other than testimony." Op. 35. These are not reasonable or realistic alternatives. Statutory immunity is valuable but not alone sufficient because it leaves prosecutors the choice of providing complete use immunity to culpable defendants or else foregoing their testimony altogether. Moreover, the government not only must be able to compel testimony, it must also be able to overcome reluctance or fear in order to induce witnesses' full cooperation and testimony against their accomplices. Deals for assistance "other than testimony" will result in exactly that: assistance without testimony.

The panel's reasoning also makes criminals of all federal judges who have approved a plea agreement making concessions for testimony or who have granted a sentencing reduction (under USSG § 5K1.1(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.

E. The Panel's Remaining Reasons For Applying Section 201(c)(2) To Bar The United States From Obtaining Testimony Through Promises Of Leniency Are Unpersuasive.

1. The panel supported its unprecedented application of the gratuity statute to federal plea agreements by noting that the statute contains an exception for legislative gratuities but no similar exception for witness gratuities. Compare 18 U.S.C. § 201(c)(1) (criminalizing only gratuities made "otherwise than as provided by law") with id. § (c)(2) (no similar exception). The former exception was necessary because Congress clearly intended the statute to cover legislators, but it wanted to ensure the continued legality of campaign contributions. See United States v. Brewster, 506 F.2d 62, 73 n.26 (D.C. Cir. 1974). The absence of similar language in the witness statute shows only that Congress never contemplated applying the statute to criminalize plea concessions made on behalf of the United States. Similarly, the exclusion of certain witness and other fees (18 U.S.C. §  201(d)) does not affirmatively show congressional intent to include plea agreements but rather that Congress intended to continue to allow traditionally accepted payments even by private parties.

2. The panel supported its conclusion with the observation that "[t]he policy expressed in § 201(c)(2) has long been enforced at common law." Op. 12 (citing cases and treatises involving private payments to fact witnesses). That private parties have long been prohibited from paying for factual testimony, however, says nothing about the legality of government concessions in criminal plea agreements. On this point, even the panel acknowledged that "'[n]o 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.'" Op. 48 (quoting Cervantes-Pacheco, 826 F.2d at 315).

3. Finally, the panel's policy analysis is deeply flawed. Contrary to the panel's view (op. 10), there is nothing "perver[se]" or improper about the United States obtaining truthful testimony in return for leniency and other promises that are fully disclosed to the defense. See Hoffa, 385 U.S. at 311. To the contrary, in prosecuting violations of federal civil and criminal law, the government is fulfilling its obligation to "take Care that the laws be faithfully executed." See U.S. Const. Art. II, § 3. It does not pervert justice, but rather furthers it, to trust jurors to evaluate all the evidence -- including cooperator testimony -- of a defendant's guilt.

II. THE FEDERAL GRATUITY STATUTE DOES NOT SUPPORT AN EXCLUSIONARYRULE, EITHER RETROACTIVELY OR PROSPECTIVELY.

The en banc Court ordered the parties to "address whether any opinion reversing the district court would have prospective or retrospective application." The Court's opinion must govern not only this case but all other nonfinal cases in which the issues were preserved. Griffith v. Kentucky, 479 U.S. 314, 328 (1987); but see Fed. R. Crim. P. 52(b) (defendants who did not timely raise objection must additionally show that violation was "[p]lain error[] or defect[] affecting substantial rights").

Because the panel found that federal prosecutors act criminally and unethically when they offer leniency in return for testimony, the United States asks the Court to overturn the panel's ruling on the merits and not just its remedial holding. The panel erred, however, in employing the severe remedy of exclusion for a nonconstitutional violation of section 201(c)(2). A court may not suppress testimony for a statutory violation unless "Congress explicitly or implicitly provided exclusion as a remedy for a violation of a statute." United States v. Thompson, 936 F.2d 1249, 1251 (11th Cir. 1991), cert. denied, 502 U.S. 1075 (1992); see also United States v. Ani, 138 F.3d 390, 392 (9th Cir. 1998); United States v. Daccarett, 6 F.3d 37, 52 (2d Cir. 1993), cert. denied, 510 U.S. 1191 (1994); United States v. Hensel, 699 F.2d 18, 29 (1st Cir.), cert. denied, 461 U.S. 958 (1983). Here, section 201(c)(2) neither explicitly nor implicitly provides for an exclusionary remedy. A judicially-created exclusionary remedy also contravenes Fed. R. Evid. 601. See Cervantes-Pacheco, 826 F.2d at 315.

The panel created an exclusionary remedy to deter a practice "ingrained" in our criminal justice system. The reason the practice is so ingrained, however, is that federal courts, Congress, and the Sentencing Commission have all accepted its legitimacy. The Court should not impose an exclusionary rule to punish prosecution conduct undertaken in good faith reliance on existing law that everyone -- including courts that not only allowed accomplice testimony but also affirmatively approved plea agreements and rewarded truthful testimony with sentencing reductions -- understood to be correct. Cf. United States v. Leon, 468 U.S. 897 (1984); Illinois v. Krull, 480 U.S. 340 (1987).

CONCLUSION

The Court should hold that the United States is not precluded from offering leniency and other concessions to cooperating defendants in return for truthful testimony.

Respectfully submitted,

[updated July 1998] [cited in Criminal Resource Manual 625]