IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA, )
v. ) Case No. 97-3178
SONYA EVETTE SINGLETON, )
SUPPLEMENTAL BRIEF OF THE UNITED STATES
JAMES K. ROBINSON
Assistant Attorney General
JACKIE N. WILLIAMS
United States Attorney
District of Kansas
Attorney, U.S. Department of Justice
1961 Stout Street, Suite 1300
Denver, CO 80294
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
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
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
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
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
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
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
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
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
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
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
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
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).
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.
[updated July 1998] [cited in Criminal Resource Manual 625]